Marriage of Peterson, In re, 76-590
| Citation | 572 P.2d 849,40 Colo.App. 115 |
| Decision Date | 29 September 1977 |
| Docket Number | No. 76-590,76-590 |
| Parties | In re the MARRIAGE OF Carol J. PETERSON, Appellant, and R. Eric Peterson, Appellee. . III |
| Court | Court of Appeals of Colorado |
Jonathan C. S. Cox, P.C., Jonathan C. S. Cox, Valerie G. Brown, Denver, for appellant.
Mason, Reuler & Peek, P.C., William M. Peek, Denver, for appellee.
The parties' marriage was dissolved November 12, 1974. Incorporated in the decree was their April 30 separation agreement. The wife appeals certain orders of the trial court entered in 1976 on matters that arose subsequent to the dissolution. We affirm in part and reverse in part.
I.
From January 17 through September 1975, in the hope of effecting a reconciliation, the parties and their three children lived together in the residence which had been awarded to the wife. During each month of that period, the husband paid the wife $625 (the $300 for child support and $325 for maintenance prescribed in the agreement and order before adjustments in maintenance for additional income of the husband), plus an additional $100 per month in March, April, May, and June, and an additional $375 (to a total of $1,000) during July, August, and September. Also during this period, the husband paid other family expenses as they arose, such as private school tuition, house taxes, food, liquor, etc. Maintenance as such was not discussed by the parties during this time. They attempted to live together with their children as a family unit and to share expenses within the budget prepared by the wife.
The husband moved out at the end of September, and made cash payments to her thereafter. The wife claimed that she was entitled to more than she had been paid for 1975 and, accordingly, asked for judgment for arrearages and for her attorney fees. The court ruled that the obligation to make maintenance payments abated during the period the parties and their children were living together. It found and ordered the husband to pay a $195.54 arrearage in maintenance payments for the last three months of 1975. It also ordered the husband to pay $250 to the wife's attorneys for their services in the hearing. The order was later supplemented to add a requirement that the husband reimburse the wife for $294.50 previously paid by her to her attorneys incident to the earlier dissolution proceedings.
The wife contends on appeal that the court erred in abating the husband's obligation to pay maintenance pursuant to the decree during the time the parties lived together. We do not agree.
There are no Colorado cases covering this specific issue. However, under the circumstances of this case, where the parties made a good faith although unsuccessful attempt at reconciliation and where the husband supported the family during this time, we agree with the trial court that the support paid and contributed by the husband constituted payment of the installments accruing during the period they were living together. This conforms to the public policy in the state "to promote and foster the marriage relationship and reconciliation of estranged spouses." Section 14-12-101, C.R.S.1973.
We agree with the wife that, for the final three months of 1975 when the parties were no longer living together, the court incorrectly computed the amount of additional maintenance due her under the formula set forth in the decree. Based on the court's fact findings, which are supported by the evidence, the monthly computations should have been:
Husband's after tax income in
each of the last three months
(exclusive of bonus) .................. $2,106.52
Less purchase of stock in his
professional corporation (allowable
amount) ............................... $ 120.00
---------- $1,986.52
Less base net monthly income ...................... 1,246.00
---------
$ 740.52
Plus 1/12 of his $6,954.04 bonus
in 1975 ............................................. 579.50
---------
Total of husband's increase in
net take home income over base ................. $1,320.02
---------
Times 30% ..................................... 396.01
Less 1/12 of 50% of the wife's
$474.66 1975 earned income ........................... 19.78
---------
Maintenance payable in addition
to the $325 paid out of the base
income .............................................. 376.23
Less amount paid in each of the
last three months in excess of
the $325 base figure for
maintenance ......................................... 255.00
---------
Balance due to wife from the
husband for each month ................. $ 121.23
----------
Total owing to the wife for the
year 1975 (3 x 121.23) ................. $ 363.69
----------
The judgment for $195.54 should be increased to
$363.69
[40 Colo.App. 118] II
During the period when the motions pertaining to maintenance and attorney fees were filed, heard, and ruled upon, problems arose concerning communication between the parties and visitation by the husband with the children. The wife obtained an order restraining the husband from entering her place of residence and restraining each party from repetitious contact with the other. The court specified that more than one phone call a week to discuss the welfare of the children or visitation would be repetitious contact.
Thereafter, on a showing that the wife had used the order to cut off communication between the husband and the children, the court granted the husband's motion to clarify. It held that there was nothing in the order that prevented him from having direct...
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