Lopez v. Lopez, 19978
| Decision Date | 20 November 1961 |
| Docket Number | No. 19978,19978 |
| Citation | 366 P.2d 373,148 Colo. 404 |
| Parties | Lydia Antoinette LOPEZ, Plaintiff in Error, v. Louis E. LOPEZ, Defendant in Error. |
| Court | Colorado Supreme Court |
James B. Radetsky, Jules Ornstein, Denver, for plaintiff in error.
No appearance for defendant in error.
On March 28, 1961 an order for temporary support of Mrs. Lopez and the three children of Mr. and Mrs. Lopez was entered pending final disposition of her suit for separate maintenance. By the order Mr. Lopez was directed to pay $55 per week. On July 3, 1961 a decree of separate maintenance was entered, fixing again the sum of $55 each week as support for the wife and three children, and further directing Mr. Lopez to pay $225 in installments of $15 each week for her attorney's fee.
These awards were made in due course after Mr. Lopez failed to appear personally or by counsel. Having failed to make several installment payments on the allowance for attorney's fee, Mr. Lopez was cited to appear before the court 'to show cause, if any he may have, why he should not be punished for contempt.'
Mr. Lopez appeared for the first time in the cause and from his evidence it developed that he earned $295 per month; that pursuant to the order of the trial court he paid his wife $220, leaving him a balance for the month of $75; that if he was required to pay the attorney's fee in manner settled by the order, he would be left the sum of $15 with which to exist during the month. Deeming the order for support and attorney's fee at odds with reality and inequitable, the trial court directed Mr. Lopez to pay into the registry of the court the sum of $40 weekly for the wife and children, and to 'comply with the order respecting attorney's fees.' It is this last order which is the subject of review on writ of error.
Mrs. Lopez contends that the 'trial court was without jurisdiction to reduce plaintiff's support payments without notice to plaintiff of the hearing, without application being made therefor, and without a showing of change in circumstances.'
In a separate maintenance action 'the court may make such orders, if any, as the circumstances of the case may warrant for:
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'(c) Care and support of children dependent upon the parent or parents for support;
'(d) Maintenance;
'(e) Suit money, court costs and attorney fees.' (Emphasis supplied.) C.R.S. '53, 1960 Perm.Cum.Supp. 46-2-4.
In determining the amount of support to be awarded, whether temporary or permanent, the court should consider the ability of the husband. The value of his estate, if any, is a significant factor, and if he has no estate, his earning capacity becomes of capital concern. Fahey v. Fahey, 43 Colo. 354, 96 P. 251, 18 L.R.A.,N.S., 1147, 121 Am.S.R. 118. Adjudication in this regard should not result in an appropriation of the entire estate of the husband, or in the impoverishment of the husband to the extent that he is unable to maintain himself as a working unit. See Elmer v. Elmer, 132 Colo. 57, 285 P.2d 601.
Viewed in retrospect and in the light of tardy disclosure of his earnings, Mr. Lopez is under the burden of doing that which would not have been imposed had the trial court been initially fully informed. The fault, if any, can be ascribed to his failure to appear and apprise the court of the true circumstances of his ability to support.
Absent any procedural attempt to correct the order, based upon its...
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Barrett v. Barrett
...906 (1974); Muery v. Muery, 46 Ala.App. 617, 247 So.2d 123 (1971); Truslow v. Truslow, 212 A.2d 763 (D.C.App.1965); Lopez v. Lopez, 148 Colo. 404, 366 Pa.2d 373 3 Since a proceeding in civil contempt remains essentially civil, despite the quasi-criminal element of possible imprisonment, our......
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Barrett v. Barrett
... ... 617, 247 So.2d 123 (1971); ... Truslow v. Truslow, 212 A.2d 763 (D.C.App.1965); Lopez v ... Lopez, 148 Colo. 404, 366 Pa.2d 373 (1961) ... [3] Since a proceeding in civil contempt ... ...
- Wooley v. People, 19544
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Santilli v. Santilli, 22599
...be reduced to less than $200 a month for himself. A court cannot make an award which will impoverish the husband. See Lopez v. Lopez, 148 Colo. 404, 366 P.2d 373; Kane v. Kane, 154 Colo. 440, 391 P.2d Although we note that the original order of the court is no longer in effect, nevertheless......
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ARTICLE 10
...since to reduce support payments required by an order of the trial court necessitated a motion by him who sought relief. Lopez v. Lopez, 148 Colo. 404, 366 P.2d 373 (1961). One who has accepted benefits of judgment may not seek reversal of that judgment on appeal. In re Jones, 627 P.2d 248 ......
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ARTICLE 10 UNIFORM DISSOLUTION OF MARRIAGE ACT
...since to reduce support payments required by an order of the trial court necessitated a motion by him who sought relief. Lopez v. Lopez, 148 Colo. 404, 366 P.2d 373 (1961). One who has accepted benefits of judgment may not seek reversal of that judgment on appeal. In re Jones, 627 P.2d 248 ......
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Maintenance in Colorado: Issues and Factors
...v. Santilli, 453 P.2d 606 (Colo. 1969) (eight-year marriage, neither husband nor wife employed at permanent orders). 39. Lopez v. Lopez, 366 P.2d 373 (Colo. 1961) (order for support of wife and children impoverished husband, who did not appear at hearing). 40. Nevil, supra, note 4; Singer v......