Marriage of Jones, In re

• Decision Date: 13 April 1981
• Docket Number: No. 79SC319,79SC319
• Citation: 627 P.2d 248
• Parties: In re the MARRIAGE OF Billy H. JONES, Petitioner, and Gertrude L. Jones, Respondent.
• Court: Colorado Supreme Court

Page 248

627 P.2d 248

In re the MARRIAGE OF Billy H. JONES, Petitioner and Gertrude L. Jones, Respondent.

No. 79SC319.

Supreme Court of Colorado, En Banc.

April 13, 1981.

Jerry L. Valentine, Denver, for petitioner.

Joseph W. Opstelten, Lakewood, for respondent.

LOHR, Justice.

We granted certiorari in this dissolution of marriage action to review a judgment of the court of appeals which dismissed an appeal by Billy H. Jones (husband) challenging the district court's award of maintenance and attorney's fees to Gertrude L. Jones (wife). ¹ The court of appeals concluded that the husband's acceptance of the property division provisions of the trial court's order foreclosed him from seeking appellate review of that court's award of maintenance and attorney's fees. We reverse the court of appeals' judgment and remand the case for further proceedings.

In November of 1978 the district court entered a decree dissolving the marriage of the parties but deferring the issuance of orders with respect to disposition of property, maintenance and attorney's fees. See section 14-10-106(1)(b), C.R.S. 1973. Thereafter, on December 29, 1978, based on evidence earlier presented, the court entered a written order (the final orders) resolving the issues so deferred.

A summary of the final orders will present the relevant facts. The trial court found that the marriage had continued almost thirty years and that the parties had two children, both of whom were of age. At the time of the hearing on the final orders, the couple owned assets having a value of $201,740.08. The bulk of the property consisted of bank accounts, government bonds, stocks and debentures. $47,000 of the total assets was the wife's separate property, acquired by inheritance. See section 14-10-113(2)(a). The balance of $154,740.08 comprised the marital property.

The court set apart the wife's separate property to her and concluded that the marital property should be divided equally. The resulting division gave the husband assets worth $77,107.24 and the wife assets worth $124,632.84, including her $47,000 inheritance.

The court also found that the wife was employed but that her net monthly income of $420 was insufficient to cover her needs of more than $800 per month for food, clothing, habitation and other necessities. The court determined that the husband's net monthly earnings, excluding income from savings and investments, was $2,320.94. No finding was made as to the husband's monthly expenses. The husband was ordered to pay $400 per month to the wife as maintenance until her death or remarriage. Finally, the court ordered the husband to pay $1000 toward the wife's attorney's fees.

The husband sought reconsideration of the final orders by a motion in the nature of a motion for a new trial, contesting the valuation of certain assets and seeking reversal of the maintenance and attorney's fee awards. The information available to us indicates that the district court made a $2,112.80 adjustment in the property division in favor of the husband but denied his other requests. ²

The husband sought review of only the maintenance and attorney's fee awards on appeal. The wife did not cross-appeal. The court of appeals held that the husband had accepted the benefits of the property division ³ and so could not seek reversal of the other parts of the final orders. The court of appeals reasoned that the statutory interrelationship between maintenance and property division required that they be considered together or not at all. Although the general principles relied on by the court of appeals are correct, we disagree with the manner in which they have been applied in this case.

I.

Generally, one who has accepted the benefits of a judgment may not seek reversal of that judgment on appeal. Farmers Elevator Co. v. First National Bank, 181 Colo. 231, 508 P.2d 1261 (1973). Underlying this rule is the concern that an appeal in such a case may result in a determination that the appellant is "not entitled to what he has received under the judgment appealed from." Wilson v. Automobile Owners Association Insurance Co., 152 Colo. 431, 433, 382 P.2d 815, 817 (1963). It has also been held that where the provisions of a judgment are so closely connected and mutually dependent that reversal as to one would make it necessary to reverse the others, a party cannot accept the benefit of some of those provisions and still appeal from others. See Pacific General Contractor's Inc. v. Slate Construction Co., 196 Or. 608, 251 P.2d 454 (1952); see generally, 4 Am.Jur.2d Appeal and Error §§ 250-259 (1952). Although the husband accepted no benefits from the maintenance and attorney's fee provisions of the final orders, the court of appeals concluded that the interrelationship between those awards and the implemented property division order precludes the husband's appeal here. We do not agree with that conclusion.

II.

In cases where an appeal has been taken from the property division, maintenance and attorney's fee provisions of a dissolution of marriage decree as a whole, we have held that they must be considered together to determine whether the trial court abused its discretion. Carlson v. Carlson, 178 Colo. 283, 497 P.2d 1006 (1972); see also In re Marriage of Lodholm, 35 Colo.App. 411, 536 P.2d 842 (1975). When a property division order has been reversed, in an appeal also challenging the provisions for maintenance, attorney's fees, or both the rule has been to refrain from considering in detail challenges to the maintenance and attorney's fee awards, instead setting those awards aside and remanding the entire matter to the trial court for further consideration in light of the revised property division. See In re Marriage of Nichols, Colo.App., 606 P.2d 1314 (1979); In re Marriage of Johnson, 40 Colo.App. 250, 576 P.2d 188 (1977); In re Marriage of Femmer, 39 Colo.App. 277, 568 P.2d 81 (1977).

The court of appeals has previously entertained challenges to some but fewer than all provisions in final orders in cases where no issue was raised as to the ability to appeal from one provision while accepting the benefits of another. In re Marriage of Eller, 38 Colo.App. 74, 552 P.2d 30 (1976) (appeal from a maintenance order, raising no challenge to court approval of an agreed property division); In re Marriage of Ellis, 36 Colo.App. 234, 538 P.2d 1347 (1975) (appeal from a property division order while accepting the award of maintenance). We have never considered this issue in a dissolution of marriage context.

We find the requisite guidance for resolution of this case in the Uniform Dissolution of Marriage Act, sections 14-10-101 to 133, C.R.S. 1973, and in its history. An examination of the statutory scheme establishes that when neither party contests a trial court's division of property it is not necessary that the court be able to reconsider the property division in order to correct error in the provisions for maintenance and attorney's fees.

Our statutes provide that maintenance may be awarded only if certain specific findings are first made by the trial court. Section 14-10-114, C.R.S. 1973, provides in pertinent part:

"(1) In a proceeding for dissolution of marriage or legal separation or a proceeding for maintenance following dissolution of marriage by a court, the court may grant a maintenance order for either spouse only if it finds that the spouse seeking maintenance:

(a) lacks sufficient property, including marital property apportioned to him, to provide for his reasonable needs ; and

(b) is unable to support himself through appropriate employment or is the custodian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home. " (Emphasis added.)

The application of subsection (1)(a) presupposes that the court has first set apart to each spouse his or her respective separate property and has divided the marital property. Under this statute the propriety of an award of maintenance depends upon the inadequacy of the property and earning capacity possessed by the party seeking the award. In re Marriage of Mitchell, 195 Colo. 399, 579 P.2d 613 (1978).

The history of Colorado's maintenance statute lends further support to the conclusion that the property division must precede the consideration of maintenance. Our Uniform Dissolution of Marriage Act, section 14-10-101 to 133, C.R.S. 1973, is taken from the Uniform Marriage and Divorce Act proposed by the National Conference of Commissioners on Uniform Laws and approved in 1970. The commissioners' comment to the maintenance section, section 308, states that it is the intention "to encourage the court to provide for the financial needs of the spouses by property disposition rather than by an award of maintenance. Only if the available property is insufficient for the purpose and if the spouse who seeks maintenance is unable to secure employment appropriate to his skills and interests or is occupied with child care may an award of maintenance be ordered." 9A Uniform Laws Annotated at 161. See Baum v. Baum, 120 Ariz. 140, 584 P.2d 604 (1978) (interpreting that state's counterpart of section 14-10-114(1), and section 308 of the Uniform Act); In re Marriage of Leon, 80 Ill.App.3d 383, 35 Ill.Dec. 717, 399 N.E.2d 1006 (1980) (same); In re Marriage of Johnsrud, 175 Mont. 117, 572 P.2d 902 (1977) (same). Thus, a highly relevant factor to be considered by the court in effecting a just division of marital property is the extent to which the division will promote the objective of providing for each party's financial needs without maintenance. See section 14-10-113(1), C.R.S. 1973 (1980 Supp.). Only after the property division has been made can the court determine, by application of the statutory standards, whether maintenance is...