(507 P.2d 1110)
No. 72-139Colorado Court of Appeals.
Decided March 20, 1973.
In divorce action child support dispute, defendant appealed from judgment
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which fixed the amount of child support arrearage due and the amount of future support payments.
Affirmed
1. DIVORCE — Alimony and Child Support — Original Order — Subsequent Order — Child Support Only — Remarriage — Immaterial — Determination of Arrearages. Although defendant in divorce action was originally ordered to make periodic payments for alimony and child support, the most recent order, based on the parties’ written stipulation, required defendant to make weekly payments for the support of the minor children and contained no mention of any alimony or support for plaintiff; thus, the remarriage of plaintiff subsequent to that order is immaterial in determining the existence and amount of arrearages owed by defendant.
2. Child Support — Lump Sum — Two Children — Determination of Arrearages — Child’s Marriage — No Deduction — Correct. Where support order in divorce action provided for one lump sum payable periodically for the support of two children, and where one of those children was married during the period for which plaintiff subsequently sought arrearages from defendant, the trial court was correct in not allowing any deduction from the arrearages because of the child’s marriage.
3. Reduction of Child Support — $100 — Over Year’s Period — Not — Abuse of Discretion. In hearing on reduction of child support, defendant failed in his proof that child support should be reduced by any particular amount; thus, trial court’s order requiring defendant to pay $100 per month which, over a year’s time, would be only $100 less than the prior award, did not constitute an abuse of discretion.
Appeal from the District Court of the City and County of Denver, Honorable Gerald E. McAuliffe, Judge.
Stevens Park Kinney, II, for plaintiff-appellee.
Greenburg and Yoelin, Edward S. Greenburg, for defendant-appellant.
Division I.
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Opinion by JUDGE ENOCH.
This a domestic relations case involving a dispute over support payments. Eva Ferguson, plaintiff-appellee, filed a motion for the issuance of a contempt citation and as grounds therefore alleged that Raymond Ferguson, defendant-appellant, was in arrears in support payments. Plaintiff also moved for an increase in the amount of the payments. Defendant then filed a motion to decrease the amount of the support payments. At the hearing in 1971, the attorneys submitted the case to the court on their own statements of the facts in which there was no dispute. The court dismissed the contempt citation but found that defendant was in arrears on child support for the years of 1968, 1969, and 1970 in the total amount of $1,862.50. Plaintiff’s motion to increase the payments was denied and defendant’s motion to decrease payments was granted. Defendant appeals from those parts of the judgment which fixed the amount of the arrearage and the amount of the future support payments. We affirm.
Plaintiff and defendant were divorced in August 1962. At that time plaintiff was given custody of their two minor children, and defendant was ordered to pay $25 per week for alimony and child support. On October 30, 1964, the court, upon a written stipulation and agreement of the parties, entered an order to the effect that defendant was then $680 in arrears in support payments, and that defendant was to pay $30 per month on the arrearage in addition to $25 per week for the support of the minor children. Plaintiff remarried in 1966, and the older child, Gary, married in 1968. After Gary’s marriage, defendant unilaterally reduced the amount of the weekly payments without the authorization of the court. It was agreed: (1) that under the court order defendant was to have paid $3,900 during the three years 1968-70, (2) that he did in fact pay $2,037.50 during that period, and (3) that the difference ($1,862.50) is the amount of arrearage. The arrearage of $680 dating back to 1964 had been paid
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previously and is not a part of the present controversy.
The most important of defendant’s several allegations of error is that “the trial court failed to allow for the automatic termination of the child support payments upon the emancipation of the minor child, and [that it] failed to allow for the automatic termination of alimony upon the remarriage of plaintiff.” Defendant contends that the 1964 court order included alimony and that part of the weekly payment should have automatically terminated in 1966 when plaintiff remarried, and another part should have automatically terminated in 1968 when Gary married. We do not agree.
[1] The 1964 court order which is the most recent order was based ont he parties’ written stipulation and agreement, and the wording of that order is clear and unambiguous. Defendant was to pay $25 per week for the support of the minor children, and there is no mention in that order of any alimony or support for plaintiff. Thus, the subsequent remarriage of plaintiff in 1966 is immaterial in the disposition of this case since defendant was under no order to pay any alimony at that time.Defendant cites Berglund v. Berglund, 28 Colo. App. 382, 474 P.2d 800, in support of his contention that when Gary was emancipated by marriage in 1968, support payments for Gary automatically terminated. The rule in that case is applicable only where there is a specific amount separately stated for the support of the particular child emancipated. In Berglund there was only one involved, and the support order related only to that child. In the case at hand there is one lump sum payable for the support of two children. The applicable rule under these facts is set forth in Taylor v. Taylor, 147 Colo. 140, 362 P.2d 1027, where our Supreme Court said:
“When a divorce decree directs the father to pay a specified amount periodically for the joint benefit of more than one minor child, the emancipation of one of such children does not automatically affect the liability of the father for the full sum prescribed by the order. Rather it becomes the burden of the father, if he so desires, to make such showing
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as would entitle him to be relieved of all or a part of such obligation. His failure to do so estops him from asserting any credits for such emancipation under an arrearage judgment for the full amount of the group allowance.”
[2] The trial court was correct in not allowing any deduction from the arrearage due to Gary’s marriage in 1968. Engleman v. Engleman, 145 Colo. 299, 358 P.2d 864. [3] Defendant further contends that the court erred when it granted his motion to reduce the support payments and then entered an order for $100 per month which, over a year’s time, would be only $100 less than the prior order of $25 per week. Defendant asserts that the court failed to accept any evidence on this issue. The record does not support this assertion. The court accepted the statements of counsel at counsel’s request in lieu of testimony, and twice the court specifically asked counsel if they did not want to put on some evidence relative to the issue of support for the unmarried son, Richard. Both times counsel declined and asked the court to rule on the issue on the basis of the motions and statements made to the court. Admittedly the court did not grant much of a reduction; however, defendant failed in his burden of proving that the payments should be reduced by any particular amount. Support orders are matters which lie within the sound discretion of the trial court and will not be disturbed on review unless an abuse of discretion is shown. Engleman v. Engleman, supra. We find no such abuse by the trial court.Judgment affirmed.
JUDGE COYTE and JUDGE SMITH concur.
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