Aldinger v. Aldinger

• Decision Date: 06 June 1991
• Docket Number: No. 90CA0294,90CA0294
• Citation: 813 P.2d 836
• Parties: In re the Marriage of Carol Ann ALDINGER, Appellee and Cross-Appellant, v. Douglas A. ALDINGER, Appellant and Cross-Appellee. . I
• Court: Colorado Court of Appeals

Page 836

813 P.2d 836

In re the Marriage of Carol Ann ALDINGER, Appellee and Cross-Appellant, v. Douglas A. ALDINGER, Appellant and Cross-Appellee.

No. 90CA0294.

Colorado Court of Appeals Div. I.

June 6, 1991.

Cox and Mustain-Wood, Mary Jane Truesdell Cox, Littleton, for appellee and cross-appellant.

Law Offices of Ruderman & Sturniolo, Anthony J. Sturniolo, Denver, Bill Myers, Denver, for appellant and cross-appellee.

Opinion by Judge PIERCE.

Douglas A. Aldinger, husband, appeals from an order of the trial court that extended the duration of maintenance payable to Carol Ann Aldinger, wife. In her cross-appeal, wife asserts that the amount of maintenance awarded was insufficient and that the court erred in denying her request for attorney fees. We affirm in part, reverse in part, and remand for further proceedings.

A decree of dissolution was entered on March 25, 1987, after a twenty-one year marriage. A stipulated agreement was read into the record and was later reduced to writing and signed by both parties and their counsel. In that agreement, husband waived his right to claim or receive maintenance. However, he agreed to pay wife the sum of $450 per month maintenance beginning May 18, 1987, and continuing thereafter "for a period of 24 months or until further order of this court."

On May 22, 1989, wife sought a continued and increased amount of maintenance based on a substantial and continuing change of circumstances. Husband objected, asserting first that, based on the terms of the separation agreement, wife was contractually barred from requesting additional maintenance. He also argued that, even if modification was not prohibited by the terms of the parties' agreement, the trial court lacked jurisdiction over wife's motion for modification since it was filed after all payments due under the agreement had been made. Finally, he maintained that wife was employed and capable of meeting her own needs without further maintenance.

The trial court found that it had jurisdiction over the issue of maintenance based on: (1) the lack of language in the agreement reflecting that the terms of maintenance were contractual in nature; (2) the absence of a waiver by wife of maintenance after the end of the 24-month period; and (3) the language in the separation agreement expressly providing for maintenance to continue for the 24-month period "or until further order of court." Applying the unconscionability standard, the trial court determined that wife was in need of further maintenance and awarded her the amount of $250 per month until further order of court. although it observed that attorney fees "should be awarded to wife," it nevertheless ordered that each party pay his or her own attorney fees "because the [husband] had reason to believe that his duty to pay maintenance would terminate."

I.

First, husband contends that the separation agreement when read in its entirety allows modification only by written agreement of the parties. Based on this premise, he argues that the court improperly allowed a reopening because the terms of the agreement permit such only if there has been a significant nondisclosure of assets or obligations. We disagree.

Except for terms concerning the support, custody, or visitation of children, a separation agreement may expressly prohibit the modification of the terms set forth in a decree. In re Marriage of Udis, 780 P.2d 499 (Colo.1989); § 14-10-112(6), C.R.S. (1987 Repl.Vol. 6B.). However, while § 14-10-112(6) allows the parties to restrict the jurisdiction of the court to modify the maintenance terms of a settlement agreement, such a restriction must specifically and unequivocally preclude modification. In re Marriage of Rother, 651 P.2d 457 (Colo.App.1982).

Here, the agreement provided that no modification of its terms would be valid or binding unless such modification was reduced to writing and signed and dated by both parties. However, it also provided that maintenance would continue for a period of 24 months "or until further order of court." Hence, the unequivocal language necessary to preclude the court from modifying maintenance was not present.

II.

Husband also asserts that wife was required to seek review, if any, of the agreed upon "maintenance in gross" within the 24 months during which maintenance was due. He argues that since wife filed her motion seeking further maintenance after his obligation under the decree had expired, the court was without further jurisdiction to review the issue of maintenance. We are not persuaded by these arguments.

Authority to modify maintenance is derived from § 14-10-122(1)(a), C.R.S. (1987 Repl.Vol. 6B). In re Marriage of Ward, 740 P.2d 18 (Colo.1987). That section provides that:

"[A]ny decree respecting maintenance may be modified only as to installments accruing subsequent to the motion for modification and only upon a showing of changed circumstances so substantial and continuing. The provisions as to property disposition may not be revoked or modified unless the court finds the existence of conditions that justify the reopening of the judgment. (emphasis added)

In In re Marriage of Sinn, 696 P.2d 333 (Colo.1985), our supreme court has construed the words "any decree" as those terms are used in § 14-10-122(1)(a). There, it stated:

"We construe the words 'any decree' to mean all maintenance decrees, not just open-ended decrees. The statute draws no distinction between open-ended maintenance awards and awards of a fixed duration, and we see no sound basis for reading such a distinction into the statute.... In our view, section 14-10-122 authorizes the modification of those awards traditionally labeled as maintenance in gross even though the decree does not expressly reserve the power to modify the order.... Only where the parties have expressly agreed to preclude modification under section 14-10-112(6), should maintenance be incapable of modification." (emphasis in original)

Husband argues that In re Marriage of Sinn, supra, is not dispositive of the jurisdiction question because, in that case, the trial court had expressly provided for a review of maintenance at the end of six months. Here, in contrast, wife filed her motion seeking modification after the last monthly maintenance payment had been due and paid.

We recognize that, in Sinn, the court did not directly address the issue of when a motion to modify an award of maintenance in gross must be filed. Nevertheless, we conclude that the Sinn reasoning remains persuasive and, therefore, hold that § 14-10-122(1)(a) authorizes the court to modify this determinable award of maintenance.

This conclusion is buttressed by the fact that, in In re Marriage of Sinn, supra, our supreme court expressly overruled In re Marriage of Gallegos, 41 Colo.App. 116, 580 P.2d 838 (1979), in which a division of this court had interpreted § 14-10-122(1)(a) narrowly as here urged by husband. In doing so, the court concluded that § 14-10-122 authorizes the modification of those awards traditionally labeled as maintenance in gross, even though the decree does not expressly reserve the power to modify the order.

By interpreting § 14-10-122 to mean that all maintenance decrees are capable of being modified regardless of whether the trial court has expressly retained jurisdiction (unless the parties expressly agree otherwise), the court in Sinn observed that its conclusion was consistent with public policy and the liberal objectives of the Uniform Dissolution of Marriage Act, as set forth in § 14-10-102, C.R.S. (1987 Repl.Vol. 6B).

It further elaborated, in footnote 4, that:

"A trial court should be free to determine if there is a need for and ability to pay maintenance based upon the actual situation of the parties at the time the request is made. Trial courts should not be required to speculate or guess as to what the parties' financial situation will be several years in the future, with no possibility of relief should the anticipated events not occur...." (emphasis in original)

Consistent with this view, we conclude that it is not appropriate under the facts of this case to limit the dependent spouse's access to a court, nor to limit the court's jurisdiction, in regard to the issue of whether a modification of support is appropriate where an actual need for further or continued support may not be apparent during the term of limited maintenance and the parties have provided for further court orders.

Conversely, even though the specific period for payments has expired, a court should not be deprived of the authority to modify an award of determinable maintenance based solely on the desire of promoting the goals of finality and permanency of a dissolution decree. See In re Marriage of Marshall, 394 N.W.2d 392 (Iowa 1986). Instead, In re Marriage of Sinn, 674 P.2d 988 (Colo.App.1983) (Sternberg, J., dissenting), rev'd, In re Marriage of Sinn, supra, states:

"[F]inality to litigation is a strong competing interest. However, ... ensuring reasonable support for one with precarious financial security must hold sway even when the price is a subsequent hearing."

This court has previously recognized, implicitly, that § 14-10-122 gives a trial court continuing jurisdiction over the amount and duration of court-ordered maintenance. See In re Marriage of Lodholm, 35 Colo.App. 411, 536 P.2d 842 (1975). In contrast, when maintenance is not awarded as part of the initial decree and yet a future need is anticipated, we have approved of the use of a nominal award of maintenance to preserve the trial court's jurisdiction for later review. See In re Marriage of Reeser, 635 P.2d 930 (Colo.App.1981); In re Marriage of Davis, 35 Colo.App. 447, 534 P.2d 809 (1975). Therefore, in view of this case law, we reject husband's argument that a determinable award of maintenance in which all installments have been timely paid is equivalent to an...