Opinion
Jan. 26, 1971.
Editorial Note:
This case has been marked 'not for publication' by the court.
Schwartz & Snyder, Denver, for plaintiff in error.
Alex Stephen Keller, Denver, for defendant in error.
ENOCH, Judge.
This case was originally filed in the Supreme Court of the State of Colorado and subsequently transferred to the Court of Appeals under authority vested in the Supreme Court.
This is a divorce action and all of the issues on appeal relate to the permanent orders entered by the trial court.
The plaintiff (wife) was granted a decree of divorce in April 1966. The defendant (husband) initiated this appeal after the permanent orders were entered on December 10, 1968, Nunc pro tunc June 14, 1968, which was the date of the last hearing.
The parties had acquired several pieces of real estate during their marriage and the husband owned and operated an insurance agency. Prior to the June 14, 1968 hearing, the court had appointed an appraiser to appraise the four parcels of real estate and another appraiser to appraise the insurance agency. At the hearing, neither appraiser was called to testify but their respective written reports were accepted into evidence. The wife presented no evidence, relying on her financial affidavit and the appraisals. The husband did testify and the wife was called for cross-examination.
The court adopted the appraisers' values and arrived at the following conclusions:
Parcels Value Encumbrance Equity
------- ----- -----------
A $25,000 $21,000 $ 4,000
B 18,500 8,100 10,400
C 17,500 12,600 4,900
D 4,875 (none, but defendant 2,437.50
owns half)
E Insurance Agency
27,172.75 27,172.75
Total Values -- $93,047.75
Encumbrances -- 44,137.50
Net Value -- $48,910.25
In an apparent attempt to divide this net value equally, the court awarded the wife parcels A and B. Parcels C, D and the insurance agency were given to the husband. In addition, the husband was ordered to pay the wife $10,000 in cash to accomplish the equal division of the assets.
The record discloses that at the time of the divorce, the husband had personal debts in excess of $3,000 and his insurance agency had business debts between $14,000 and $17,000. The appraiser did not consider any debts of the business in arriving at the figure of $27,172.75. The court, also, gave no consideration to any debts and used the gross value of the business as the basis of the property division. It was error for the court not to have determined the net value of the business in its effort to make an equitable division of the property. Donnelly v. Donnelly, 167 Colo. 229, 449 P.2d 350.
It is correct that matters of property division and alimony test within the sound discretion of the trial court and will not be disturbed in the absence of abuse of discretion and if the trial court's findings are supported by competent evidence, they will not ordinarily be disturbed on review. Gleason v. Gleason, 162 Colo. 212, 425 P.2d 688. However, where the evidence indicates an error in the computation of the value of the assets, the cause must be remanded for correction. Since the record is not clear as to the exact amount of the debts existing at the time of the divorce, the trial court may find it necessary to hear further evidence on the question.
The court's orders for child support, alimony, attorney's fees, appraisers' fees and costs have been considered. Though these orders appear to be reasonable and supported by the evidence, we are neither affirming nor reversing these orders. Since the property division is such an integral part in the determination of the rights of the parties, the trial court should review its payment orders after the property division has been determined.
The judgment is reversed and the cause remanded for further proceedings consonant with the views herein expressed.
COYTE and DWYER, JJ., concur.