In Re Marriage of Weibel

965 P.2d 126, 98 Colo. J. C.A.R. 4623, 1998 Colo. App. LEXIS 216, 98 CJ C.A.R. 4623
CourtColorado Court of Appeals
DecidedSeptember 3, 1998
Docket97CA0459
StatusPublished
Cited by17 cases

This text of 965 P.2d 126 (In Re Marriage of Weibel) is published on Counsel Stack Legal Research, covering Colorado Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Marriage of Weibel, 965 P.2d 126, 98 Colo. J. C.A.R. 4623, 1998 Colo. App. LEXIS 216, 98 CJ C.A.R. 4623 (Colo. Ct. App. 1998).

Opinions

Opinion by

Judge ROY.

In this post-dissolution proceeding, Anita R. Weibel (wife) appeals the trial court order reducing maintenance payable by Charles W. Weibel (husband) and denying her request for attorney fees. We vacate the order.

The parties were married 25 years. The decree of dissolution was entered in 1990, at which time husband was ordered to pay maintenance to wife in the sum of $1,500 per month. Husband, an attorney and certified public accountant, was awarded his law/accounting business together with other property, and wife was awarded the marital home with an equity valued by her at $200,000 together with other property.

Upon the sale of the marital residence, the court ordered maintenance reduced to $1,200 a month. Wife sold the marital residence and purchased a replacement residence for $90,000, which she paid in cash, and invested the balance of the proceeds from the sale of the marital residence in a savings/retirement plan.

In 1992, upon husband’s motion, the court ordered maintenance reduced to $800 a month. At that time, wife was employed as a social worker with a gross monthly income of $1,260 and a net monthly income of $971. Her expenses were $2,160 a month, her savings/retirement plan had a balance of $110,-000, and her total assets were $201,000. Husband reported assets of $156,900, a gross monthly income of approximately $5,000, and a net monthly income of $3,300. Both parties were free of debt.

In 1996, husband filed the present motion to reduce or terminate maintenance. Following a hearing, the magistrate found that husband was in approximately the same financial condition as when the decree originally entered and retained the ability to pay maintenance. The magistrate also found that: (1) wife’s earnings from employment had increased to $2,496 per month; (2) she remained debt-free; (3) her savings had increased to over $150,000; (4) she made monthly contributions of $374.40 to a 401(k) plan; and (5) she continued to own her home debt-free. The magistrate concluded that: “On this basis the Court would find it unconscionable to require that [husband] continue to pay the same amount of maintenance.” Accordingly, the magistrate recommended that maintenance be reduced to $250 per month.

On review, the trial court concluded that: (1) wife’s financial circumstances had improved since the last hearing; (2) the magistrate had considered all other necessary factors; and (3) the reduced maintenance of $250 would permit wife to meet her monthly expenses as stated by her in her testimony and financial affidavit. The court accepted the magistrate’s recommended reduction of maintenance and also denied wife’s request for attorney fees.

I.

Wife contends the trial court abused its discretion in sustaining the magistrate’s determination that the maintenance award had become unfair. We agree.

At the outset, we note that husband is not asserting an inability to pay maintenance in the amount of $800 a month as ordered in 1992. Nor is he asserting any change in his circumstances which would make his payment of the maintenance in that amount unfair. Husband’s motion is directed solely to changes in wife’s income and financial circumstances.

A party seeking modification of an existing support or maintenance order bears a heavy burden. See In re Marriage of Udis, 780 P.2d 499 (Colo.1989). Motions to modify maintenance under § 14-10-122, C.R.S.1997, are not considered under the same standard as original awards.

A division of this court, in Aldinger v. Aldinger, 813 P.2d 836, 840 (Colo.App.1991), stated that, in reviewing a motion for modification of maintenance:

[129]*129The issue is not whether, based on the current financial circumstances of the parties, the court would have ordered the same amount of support. Instead, the question is different: Have the terms of the original award become unfair, i.e., unconscionable.

In reviewing a maintenance award and determining whether a modification is justified, the trial court is required to consider the parties’ economic circumstances and the reasonable expectations established during the marriage. The term “reasonable needs” is not to be viewed narrowly. It does not mean the minimum requirements to sustain life, but is “dependent upon the particular facts and circumstances of the parties’ marriage.” In re Marriage of Olar, 747 P.2d 676, 681 (Colo.1987).

Nor does the fact that the spouse receiving maintenance is able to increase his or her income, in itself, make the initial award unconscionable. A division of this court cautioned in In re Marriage of Udis, supra, 780 P.2d at 503, that:

[T]he fact that a spouse who receives maintenance enjoys increased income in comparison to the amount of income earned by that spouse at the time the decree was entered does not necessarily require the conclusion that the initial award of maintenance has been rendered unconscionable, (citations omitted) Whether such a change is so substantial and continuing that some modification is appropriate requires examination of all relevant circumstances of both parties, (emphasis added)

See also In re Marriage of Bowles, 916 P.2d 615 (Colo.App.1995); In re Marriage of Trout, 897 P.2d 838 (Colo.App.1994).

Here, the record reflects that, between the 1992 hearing and the 1996 hearing, wife’s gross income from employment had increased from $1,260 to $2,496 a month with a net increase from $971 to $1,521 a month. Her living expenses were $2,378 per month, leaving a deficit of $857 a month before maintenance and any application of the interest from her savings/retirement account. Even without the 401(k) deduction and other tax considerations, wife still had a monthly deficit of $483 before maintenance and interest. Thus, the reduced payment of maintenance did not allow her to meet her reasonable needs.

Further, and contrary to the magistrate’s finding, wife’s assets had not changed substantially between 1992 and 1996. The only significant changes in wife’s assets were attributable to interest on her savings/retirement plan and appreciation in the value of her residence.

Husband’s position in his brief and at oral argument has been straightforward. He asserts he should not have to pay maintenance because wife “does not need” it. He maintains that, since the fall of 1995, wife has been able to put $374 a month into a tax deferred 401(k) retirement plan and is saving approximately $600 a month in her savings/retirement account. Husband argues that if wife used these funds she would be able to meet her stated monthly expenses.

Wife’s age and health are significant. At the time of the 1996 hearing, wife was 53 years old and testified that she continued to suffer from health problems including a heart problem, chronic fatigue, and fibromyalgia, and that she suffered from pain “about a third of the time” she is at work. Given her age, her future earning capacity is a legitimate concern as is her need to establish a retirement fund.

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Bluebook (online)
965 P.2d 126, 98 Colo. J. C.A.R. 4623, 1998 Colo. App. LEXIS 216, 98 CJ C.A.R. 4623, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marriage-of-weibel-coloctapp-1998.