In Re the Marriage of Woodrum

618 P.2d 732, 1980 Colo. App. LEXIS 724
CourtColorado Court of Appeals
DecidedSeptember 11, 1980
Docket79CA0096
StatusPublished
Cited by18 cases

This text of 618 P.2d 732 (In Re the Marriage of Woodrum) 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 the Marriage of Woodrum, 618 P.2d 732, 1980 Colo. App. LEXIS 724 (Colo. Ct. App. 1980).

Opinion

SMITH, Judge.

In this marriage dissolution case, husband appeals the valuation and subsequent distribution of marital assets and an order of court finding him in contempt. We affirm in part and remand for further proceedings.

The parties had been married for twenty-four years at the time, of the dissolution. Husband was retired from the military after thirty years of service. The trial court determined that although retirement pay, the right to which accrued during the period of the marriage of the parties, was not a marital asset, the amount thereof, $996 per month, could be considered in the computation of maintenance. The marital property of the parties consisted principally of $13,-700 equity in a home valued at $43,500. From this equity, however, the court deducted an estimated commission of $3,000 and estimated federal taxes of $2,500, which it found would be incurred if the home was sold. It then determined that this net equity, $8,200, should be divided equally between the parties. The court further determined that wife could remain in the home, but in the event she sold the house, and the estimated capital gains taxes and sales commission were greater than the actual taxes and commissions, she was responsible for restoring one-half of this difference to husband.

The court also determined that the value of household goods and furniture was $3,250. This amount was divided evenly between the parties. Husband also received miscellaneous other items, but was made responsible for paying $483 per month to satisfy more than $9,000 in unsecured liabilities.

*734 The division of property was accomplished by awarding wife the house and $260 per month as maintenance. However, husband was allowed an offset of $60 per month on his maintenance payments as a method of payment to him from wife for the portion husband was entitled to receive as equity in the family home and other assets.

I.

Husband asserts that the trial court erred in deducting an estimated real estate commission and capital gains tax from the gross equity in the home belonging to the parties. We disagree.

Husband cites Rhoades v. Rhoades, 188 Colo. 423, 535 P.2d 1122 (1975), as authority for prohibiting consideration of the net equity in the home of the parties. We find husband’s reliance upon this case to be misplaced. In Rhoades, the Supreme Court held that it was not error for the trial court to value the home based upon gross equity rather than equity after selling costs. In our view, although that case authorizes a different approach under its facts, it does not prohibit the trial court from considering net equity. Although the court in Rhoades determined that a calculation of sellers’ costs to be incurred at some future time leads to results which are speculative at best, the court qualified this statement by relating it to the facts there at issue. In Rhoades, the trial court had balanced the disallowance of sellers’ costs against the fact than an offsetting interest payment to the party not receiving the home was not required.

The purpose of the division of marital property is to allocate to each spouse the equity which belongs to him or her. In re Marriage of Graham, 194 Colo. 429, 574 P.2d 75 (1978). Where a trial court, acting within its discretion, determines that an equitable division of property can best be achieved by considering the net equity rather than the gross equity of the property, this court will not interfere with that determination. Although it is true, as husband asserts, that the amount attributable to sellers’ costs cannot be determined with precision, we conclude that there is no abuse of discretion by a trial court in allowing a reasonable value to be deducted from the gross equity of a home as an amount representing sellers’ costs. Thus, we will not disturb this determination on review. Graham, supra.

Furthermore, here, the court in making a division of property not only allowed a deduction for potential sellers’ costs, but also provided a means for compensating husband in the event that the actual sellers’ costs differ from the estimated cost determined by the court. Accordingly, we reject husband’s contention that the trial court erred in deducting sellers’ costs.

II.

Husband next asserts that the trial court erred in valuing certain household items and furnishings at $3,250. He asserts that the value should be $6,500 as established by affidavits. We disagree.

Generally, in making a division of property, the trial court is charged with finding the approximate current value of all property owned by the parties. In re Marriage of Weaver, 39 Colo.App. 523, 571 P.2d 307 (1977). Here, there was evidence that the value of the property in question was $6,500. There was also evidence, however, that when certain items of this property were sold, they brought only approximately one-half the value that had been ascribed to them. Thus, we conclude that the trial court reasonably could infer that the current value of the property was less than that ascribed to the property in the affidavit. We, therefore, affirm the finding of $3,250 as the value of the household items and furnishings. Graham, supra.

III.

We also reject husband’s assertion that the trial court erred in the division of property by allowing marital fault to enter into its calculations.

The trial court, in its ruling on the motion for new trial, stated:

*735 “Furthermore, the court would express its opinion that it is appropriate to take into consideration the sentimental attachment of someone in Mrs. Woodrum’s position of the attachment of the house and what it might mean to her. She wasn’t in favor of the divorce, she didn’t think the marriage was broken, and she didn’t want it, so the court notes Mr. Woodrum was the one bringing this action. It was a marriage of long standing. Mrs. Wood-rum is left in the way of preserving her sense of stability, and the house means something to her beside[s] just a place to live in.

We do not consider this a violation of § 14-10-113(1), C.R.S.1973 (1979 Cum. Supp.) which requires that the marital property be divided “without regard to marital misconduct.”

We consider the trial court’s comments as merely an explanation as to why it did not order the home sold, and instead, gave it to wife as part of her share in the marital property. The specific circumstances and feelings of each party are appropriate considerations in determining which specific items of property should be sold, or alternatively, distributed to a particular party. That was the ease here.

IV.

Finally, husband challenges the validity of a contempt finding and order relative to his failure to comply with temporary orders. In finding husband in contempt, the court determined that husband had not complied with previous court orders under which he had been ordered to pay his wife support and attorney’s fees.

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Bluebook (online)
618 P.2d 732, 1980 Colo. App. LEXIS 724, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-woodrum-coloctapp-1980.