195 P.2d 387 | Colo. | 1948
WE hereinafter refer to plaintiff in error as plaintiff, and to defendant in error as defendant. This action involves money payments in a divorce case. It is contended that the trial court abused its discretion: (1) In fixing plaintiff's alimony at $125.00 per month; (2) her attorney fees at $350.00, and (3) in refusing to allow her a lump sum amount in addition to periodic payments. Defendant files a cross specification in which he alleges that the court erred in holding that the payments made were alimony and not support money. *301
Plaintiff and defendant were married February 20, 1921, and there is one child, the issue of said marriage, born January 1, 1926. They entered into a purported separation and property settlement agreement August 31, 1933, under the terms of which the custody of the child was given to plaintiff wife and, "as and for support money and alimony, and for support of the minor son of the parties hereto," she was awarded "the sum of Fifty-five Dollars ($55.00) per month." April 6, 1934, a final decree of divorce from defendant was issued to plaintiff by the court, and custody of their child was awarded her "as per stipulation on file." Subsequently citation for contempt was issued against defendant for failure to make payments in accordance with the separation agreement, and plaintiff filed a petition for "permanent support money for herself and minor son." Thereafter and on October 5, 1934, the court entered an order, "that the defendant pay to the plaintiff the sum of $30.00 per month as alimony beginning September 1st, 1934 * * * until the further order of the Court." September 17, 1945, a motion by plaintiff to modify the decree was filed, the stated ground therefor being, that defendant's income had measurably increased and that the amount he was paying her was disproportionate to his income and her needs. Defendant filed a motion to strike this motion on the ground that the court was without jurisdiction to entertain it for the reason that the original stipulation between the parties made no provision for alimony, but only for the payment of support money for their minor child, which motion the court overruled.
[1] I. Alimony or Support Money.
In the separation agreement defendant stipulated to pay alimony and support money for his wife and minor son. Under an order of court dated October 5, 1934, he paid plaintiff alimony in the sum of thirty dollars per month for more than eleven years. Payments under said order were being made when the motion of plaintiff for modification of the same was filed in September, 1945. *302
In view of these facts, the court was right in holding that the payments made were alimony.
[2, 3] II. Amount of Alimony.
More than forty years ago we announced the doctrine in Stevens v. Stevens,
In view of the facts here presented, we are of the opinion that the court did not abuse its discretion in fixing the alimony payments at $125.00 per month.
III. Attorney Fees and Lump Sum Award.
[4] (a) Trial court. The court fixed plaintiff's *303 attorney fees at $350.00. He knew what services they had rendered, and fixed the amount of the fee. In our opinion, in fixing the sum awarded and entering the order thereon, the court did not abuse its discretion.
[5] (b) Fees in This Court. The trial court refused plaintiff's application for attorney fees and costs to be occasioned in bringing the proceedings here for review. Plaintiff's income, as we have noted, is $3,120.00 per year. She sued out the writ of error, which she of course had a right to do, but it was at her own election. The case of Shapiro v. Shapiro,
[6] (c) Finally, plaintiff made application for a lump sum award of $15,000 to $20,000 to be used in the purchase of a home and furniture, and Urling v. Urling,
The judgment is affirmed.
MR. CHIEF JUSTICE BURKE and MR. JUSTICE JACKSON concur.