Opinion
June 26, 1973.
Editorial Note:
This case has been marked 'not for publication' by the court.
Phelps, Hall & Keller, Glen E. Keller, Jr., Denver, Dosgriff, Dunn, French & Seavy,
Page 931
Dickerson & Levine, Jack Levine, F. E. Dickerson, Denver, for plaintiff-appellant.
Peter Cosgriff, Leadville, for defendant-appellee.
COYTE, Judge.
This is the second appeal of a divorce action concerning the division of property betwen the parties. When this case was before us on a prior occasion, Nolan v. Nolan, 491 P.2d 1397, (not officially published) the record revealed that plaintiff had income from trusts during the marriage in the amount of $43,042.25. However, the trial court did not indicate in its findings that it had considered this figure in arriving at its division of property between the parties. We returned the case to the trial court with directions to 'make findings as to the disposition of the extra contribution in cash made to the ranching operation by plaintiff and as to the effect, if any, of this contribution on the property settlement ordered by the court, and to thereupon enter orders based on such findings.'
The original order of the trial court provided that the ranch which plaintiff owned at the time of the marriage had a value of $30,000 at the time of the marriage and that, at the time of the divorce, the ranch had a value of $168,750, the ranch and farm equipment had a value of $12,230, and the ranch livestock had a value of.$49,165. It ruled that if plaintiff desired to purchase the property, she should first deduct the $30,000 which she had contributed and then pay defendant one-half the remaining value of the ranch and one-half the value of the equipment and livestock, or a total of $100,072.50; that if she did not desire to keep the property, defendant could buy it by paying her $99,375 ($30,000 plus one-half of the remaining value) for her interest in the real estate plus one-half of the value of the equipment and livestock; but that if neither party desired to retain the property then it would be sold, plaintiff would be paid $30,000, and the balance of the proceeds of sale would be divided equally between the parties.
On remand the court found that $33,042.25 of the $43,042.25 was contributed by the plaintiff toward the operation of the ranch. It then deducted $1,364.00 which defendant had earned as outside income and contributed to the ranching operation, leaving an excess contribution by plaintiff of $31,678.25. It further found that by dividing the personal property equally, plaintiff would in that manner receive one-half of the $31,678.25 and should be given credit for the other one-half or $15,839.13. This is an erroneous finding in that by computing plaintiff's credit in this manner she would receive only 75% Of the $31,678.25.
Plaintiff alleges that the remand order required the trial court to receive additional testimony. The trial court was directed to make additional findings. It was within the discretion of the trial court to make the findings from the evidence in the record from the original hearing or, if it felt that it was necessary, it could require additional evidence be presented. Since the court was able to make the findings from the record, it was not error for the court to refuse to hear additional testimony.
If plaintiff desires to retain the property, there should be subtracted the sum of $61,678.25 ($30,000 plus $31,678.25) from the value of the property and then one-half the balance of the value should be paid to defendant; or, if plaintiff does not desire to retain the property but defendant does, then $61,678.25 should be deducted from the total value of the property and paid to plaintiff in addition to one-half of the remaining value of the property after the $61,678.25 has been deducted. Likewise, if neither party desires to retain the property, then it should be sold and plaintiff should be paid $61,678.25 and the balance divided equally between the parties.
Since the findings of the court regarding the disposition of the $43,042.25 are supported by evidence in the record, they will not be disturbed on review. However, correction of the mathematical application of the findings to the facts in the case will be made. Case is remanded to the trial court with directions to modify the judgment as herein provided to correct mathematical computations and the judgment as modified is affirmed.
SILVERSTEIN, C.J., and PIERCE, J., concur.