Marriage of Udis, In re, 87SC409

• Citation: 780 P.2d 499
• Decision Date: 02 October 1989
• Docket Number: No. 87SC409,87SC409
• Parties: In re the MARRIAGE OF Clare S. UDIS, Petitioner, and Bernard Udis, Respondent.
• Court: Supreme Court of Colorado

Page 499

780 P.2d 499

In re the MARRIAGE OF Clare S. UDIS, Petitioner,

and

Bernard Udis, Respondent.

No. 87SC409.

Supreme Court of Colorado,

En Banc.

Oct. 2, 1989.

Rehearing Denied Oct. 23, 1989.

Marvin B. Woolf, Boulder, for petitioner.

Terrill Stevens Pizzi & Ridgway, Nancy S. Terrill and Catherine Duke Edwards, Boulder, for respondent.

Justice KIRSHBAUM delivered the Opinion of the Court.

We granted certiorari to review the judgment of the Court of Appeals in In re Marriage of Udis, No. 86CA1189 (Ct.App. Sept. 10, 1987) (not selected for official publication) (Udis II ), reversing the trial court's denial of a motion by the respondent, Bernard Udis (the husband), to terminate maintenance payments to the petitioner, Clare S. Udis (the wife). We reverse.

I

On January 15, 1973, the Boulder County District Court entered a decree of dissolution dissolving the twenty-two year marriage of the parties. A separation agreement executed on August 25, 1972, and incorporated into the decree contained the following pertinent language:

4. Alimony. The Husband will pay to the Wife the sum of Two Hundred Dollars ($200.00) per month as alimony beginning the first day of September, 1972. When the younger child becomes emancipated, the parties agree that the alimony shall increase by an increment of Three Hundred Dollars ($300.00), to make the total alimony payment Five Hundred Dollars ($500.00), until the disability or retirement of the Husband, at which time the amount of alimony will be readjusted as agreed between the parties or determined by the Court in accordance with his ability to pay.

The Husband specifically agrees that the amount of alimony as described herein is agreed with the anticipation that the Wife shall seek gainful employment as soon as possible and in the event she obtains gainful employment, the Husband will not attempt to have the alimony decreased by virtue of her having obtained said employment until the younger child becomes emancipated.

On February 23, 1984, the husband filed a motion to terminate maintenance. The petition alleged a substantial change in the financial circumstances of the parties had occurred. ¹ In response, the wife argued that the terms of the separation agreement prohibited modification of the maintenance provision thereof. She also filed a motion to increase maintenance in the event the trial court determined the maintenance provision could be modified.

On June 5, 1984, the trial court determined that the agreement did not preclude modification of the maintenance provisions. On July 10, 1984, an evidentiary hearing was conducted by a different judge. Evidence presented at the hearing established that at the time the decree was entered the wife was not employed and the husband earned income of $28,420; that in 1983 the husband reported adjusted gross income of $51,487 and incurred living expenses of approximately $3,000 per month; that in 1983 the wife earned taxable income of $23,339, excluding $6,000 maintenance; and that in 1983 the wife's monthly living expenses totaled approximately $1,500. ² At the conclusion of the hearing the trial court determined that there had been a substantial change in the position of the parties, denied the wife's motion to increase maintenance and granted the husband's motion to terminate maintenance.

On appeal, the Court of Appeals affirmed the trial court's ruling that the separation agreement did not preclude modification of the maintenance provision thereof but reversed the trial court's termination of maintenance on the ground that the order contained insufficient findings of fact to permit a determination of whether the trial court had abused its discretion. In re Marriage of Udis, No. 84CA1177 (Colo.App. April 10, 1986) (not selected for official publication) (Udis I ). The case was remanded for a determination of whether any change of circumstances was continuing in view of the factors enumerated in sections 14-10-114, 6B C.R.S. (1987 Repl.), and 14-10-122(1), 6 C.R.S. (1973).

On remand, the parties stipulated that no additional evidence would be taken. The trial court then recalculated the wife's 1983 annual income, denied the husband's motion to terminate maintenance and ordered the initial award of maintenance to be reinstated.

The husband appealed, and the Court of Appeals reversed the trial court's judgment on the ground that the husband had established that circumstances had sufficiently changed to justify termination of maintenance.

II

The wife argues that, when properly construed, the trial court's judgment is supported by the record and that the Court of Appeals improperly substituted its own findings for those reached by the trial court. We agree.

A

The trial court's final order denying the husband's motion to terminate maintenance contains the following pertinent language:

At the time of the dissolution of the marriage in 1972 [sic], the [wife] was not employed. The separation agreement provided that "the Wife shall seek gainful employment as soon as possible." She subsequently became a real estate broker. In arriving at the $500 monthly "alimony" payment, it was anticipated that the [wife] would be earning income in the future. Andrews, Jr. v. Andrews, 161 Colo. [529, 423 P.2d 573 (1967) ].

The Court of Appeals construed this language to indicate a conclusion by the trial court that the separation agreement prohibited any consideration of the wife's income in determining the husband's motion. However, the trial court expressly compared the income of both parties in arriving at its decision. It is more probable that the language in question simply states a fact: the separation agreement did expressly "contemplate" that the wife would earn income subsequent to September 1972.

Although the agreement and the decree refer to "alimony" rather than to "maintenance" payments, the Uniform Dissolution of Marriage Act governs these proceedings because the petition for dissolution was filed subsequent to the effective date of that statute. § 14-10-133, 6B C.R.S. (1987 Repl.). See In re Marriage of Perlmutter, 772 P.2d 621 (Colo.1989). Section 14-10-112(6), 6B C.R.S. (1987 Repl.), provides that "[e]xcept for terms concerning the support, custody, or visitation of children, the decree may expressly preclude or limit modification of terms set forth in the decree if the separation agreement so provides." Although a separation agreement incorporated into a decree may expressly prohibit any modification of maintenance provisions contained therein, a district court may modify the maintenance provisions of a separation agreement incorporated into a dissolution decree on grounds of unconscionability if the agreement is silent on the subject or if the parties specifically reserve such power to the court. § 14-10-122(1)(a), 6B C.R.S. (1987 Repl.); see In re Marriage of Thompson, 640 P.2d 279, 281 (Colo.App.1982); In re Marriage of Cohen, 44 Colo.App. 200, 610 P.2d 1092, 1093 (1980); Lowery v. Lowery, 39 Colo.App. 413, 414, 568 P.2d 103, 105 (1977), aff'd sub nom. In re Marriage of Lowery, 195 Colo. 86, 575 P.2d 430 (1978). Any effort to limit or preclude the authority of a district court to modify the maintenance provision of a separation agreement must be articulated by language that is specific and unequivocal. In re Marriage of Rother, 651 P.2d 457, 459 (Colo.App.1982).

The separation agreement entered into by the parties here states that "[n]o modification or waiver of any of the terms or conditions of this agreement shall be valid unless in writing and executed with the same formality as this agreement." In Thompson, 640 P.2d 279, the Court of Appeals held that a separation agreement containing identical language precluded subsequent judicial modification of the maintenance provisions of that agreement. However, in this case the agreement also contains language expressly recognizing that the maintenance provision thereof may be "readjusted as agreed between the parties or determined by the Court...." In view of this authorization of judicial modification of the separation agreement, we conclude that when read as a whole the agreement did not specifically and unequivocally preclude the trial court from modifying the maintenance provisions thereof on grounds of unconscionability.

The husband contends that the trial court's citation of our opinion in Andrews, Jr. v. Andrews, 161 Colo. 529, 423 P.2d 573 (1967), indicates that the trial court erroneously failed to consider the wife's income. In Andrews, a separation agreement incorporated into a dissolution decree established a specific formula, based upon fixed percentages of the husband's annual taxable income, for calculating child support payments to be made by the husband. Ten years after the entry of the decree the trial court granted the wife's petition for increased support payments based on the husband's increased income. On appeal, we reversed, stating in pertinent part as follows:

The divorce decree, therefore, by its terms anticipated the very change in circumstances upon which the court at the modification hearing based its new order. Accordingly, we hold that such a change in circumstances cannot support a later decree of the court modifying the original decree. Where the alleged change in the circumstances of the parties is one that the trial court anticipated and made allowance for when entering the original decree, such change is not a ground for a modification of the decree.

Andrews, 161 Colo. at 531, 423 P.2d at 574 (citation omitted).

In Andrews, the specific basis agreed by both parties at the time of the decree to be determinative of the amounts of future child support payments was the basis relied upon by the wife to establish a change of circumstances. In this case, the separation agreement does not specify any specific formula for calculating future maintenance payments. The cases are inapposite, as the...