Engleman v. Engleman
Decision Date | 23 January 1961 |
Docket Number | No. 19568,19568 |
Citation | 358 P.2d 864,145 Colo. 299 |
Parties | Esther ENGLEMAN, Plaintiff in Error, v. Edward ENGLEMAN, Defendant in Error. |
Court | Colorado Supreme Court |
Edward A. Jersin, Denver, for plaintiff in error.
No appearance for defendant in error.
On March 28, 1955 the plaintiff in error, plaintiff in the trial court, was granted an interlocutory decree in divorce from the defendant in error, defendant in the trial court. The decree provided, inter alia, that the two minor children should be placed in the custody of the plaintiff and that 'until the further order of the court the defendant [shall] pay into the registry of this court the sum of $100 per month, in semi-monthly payments, for the support and maintenance of plaintiff and the minor children * * *.' On September 29, 1955 the interlocutory decree became final continuing until further order of court the same terms and conditions as to custody, alimony and support as were contained in the interlocutory decree.
On December 10, 1959 the plaintiff filed a motion for the issuance of a contempt citation and as grounds therefor alleged that the defendant from and after April, 1958 had made monthly payments of only $50 and was accordingly in arrears in the amount of $1000 (20 months at the rate of $50 per month) and further that none of the payments had ever been made into the registry of the court. The contempt citation issued and the defendant was ordered to show cause why he should not be punished for contempt. Before the hearing on this citation, defendant filed a motion to reduce the support order, whereupon the plaintiff filed a motion to increase the support order.
On March 8, 1960 hearing was held on the contempt citation and the two motions seeking a change in the support order. The only witnesses examined were the plaintiff and the defendant. From the record it is learned that the defendant apparently paid $100 per month from March, 1955 until April 1958, at which time as the result of unilateral action on his part and without the benefit of court approval or order, he reduced his monthly payment to $50 per month. The reason given for his doing so was that at that time one of the two children married and he felt such fact should immediately be reflected in the amount of his support order. From the record it is ascertained that all such payments were made directly to the plaintiff and not into the registry of the court, the court being by-passed by both litigants. At the conclusion of the hearing the trial judge dismissed the contempt citation, reduced the support order to $65 per month and cancelled the undisputed arrearage of $1000. Thereafter the plaintiff's motion for a new trial was timely filed, fully argued but denied in its entirety and the plaintiff is here by writ of error.
The plaintiff now contends that the judgment was erroneous in all respects but primarily stresses that the trial court had absolutely no authority to cancel the arrearage. She also contends that the trial court erred in dismissing the contempt citation and in reducing the support order, and seeks reversal of the entire judgment.
Adjudging one to be in contempt or conversely absolving one so charged, is uniformly held to be a matter within the sound discretion of the trial court and will not be disturbed on review unless there be abuse of such discretion. In Conway v. Conway, 134 Colo. 79, 299 P.2d 509, 510, the trial court dismissed a contempt citation issued because of an arrearage under a support order. In affirming the action of dismissal this court said:
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