Marriage of Cohen, In re, 79CA0892

• Citation: 44 Colo.App. 200,610 P.2d 1092
• Decision Date: 10 April 1980
• Docket Number: No. 79CA0892,79CA0892
• Parties: In re the MARRIAGE of Babette E. COHEN, Appellee, and Mitchell B. Cohen, Appellant. . I
• Court: Colorado Court of Appeals

Page 1092

610 P.2d 1092

44 Colo.App. 200

In re the MARRIAGE of Babette E. COHEN, Appellee and Mitchell B. Cohen, Appellant.

No. 79CA0892.

Colorado Court of Appeals, Div. I.

April 10, 1980.

Wegher & Fulton, P. C., David R. DeMuro, Denver, for appellee.

Lozow & Lozow, Gary Lozow, Denver, for appellant.

COYTE, Judge.

Husband appeals the trial court judgment denying his motion to terminate or modify maintenance. He contends that the court erred in ruling that, under the Uniform Dissolution of Marriage Act, § 14-10-101 et seq., C.R.S.1973, the trial court may not modify a provision for permanent maintenance included in an agreement which has been incorporated into a dissolution of marriage decree unless the court has specifically reserved its power to do so. We reverse.

In May 1976, the parties entered into a separation agreement, including a provision for maintenance, which neither expressly provided for nor precluded future modification of its terms. This agreement was subsequently incorporated into the court decree. Husband contends that to the extent the maintenance provision has become unconscionable by virtue of changed conditions, it is subject to modification. We agree.

Wife argues that under In re Marriage of Corley, 38 Colo.App. 319, 558 P.2d 450 (1976), modification is proper only upon a showing of fraud or overreaching, or by agreement of the parties. Corley, however, stands for the proposition that where the terms of the decree specifically preclude modification without the written consent of the parties, then the court can modify the agreement only upon a showing of fraud or overreaching. See Lay v. Lay, 162 Colo. 43, 425 P.2d 704 (1967). In contrast, here, there is no agreement precluding or limiting modification; thus, Corley is inapposite. Insofar as Corley may have indicated that the rule is to the contrary, we now clarify that issue.

Section 14-10-122(1), C.R.S.1973, provides that, except where the decree expressly precludes or limits modification, the court may modify any maintenance provision as to future installments upon a showing of changed circumstances so substantial and continuing as to make the terms unconscionable. See In re Marriage of Lowery, 39 Colo.App. 413, 568 P.2d 103 (1977), aff'd, 195 Colo. 86, 575 P.2d 430 (1978). Here, since the decree did not reserve any power to modify, the maintenance provision is modifiable only upon a proper showing under § 14-10-122(1), C.R.S.1973.

Wife also contends that husband's...