Marriage of Ward, In re

• Decision Date: 20 July 1987
• Docket Number: No. 86SC23,86SC23
• Citation: 740 P.2d 18
• Parties: In re the MARRIAGE OF Franklin Manning WARD, Petitioner, and Lola Lee Ward, Respondent.
• Court: Colorado Supreme Court

Page 18

740 P.2d 18

In re the MARRIAGE OF Franklin Manning WARD, Petitioner,

and

Lola Lee Ward, Respondent.

No. 86SC23.

Supreme Court of Colorado,

En Banc.

July 20, 1987.

Franklin M. Ward, Glen Burnie, Md., pro se.

Stephen R. Higgins, Englewood, for respondent.

ERICKSON, Justice.

We granted certiorari to review In re Marriage of Ward, 717 P.2d 513 (Colo.App.1985). The trial court granted a temporary reduction of the petitioner's maintenance payments to his ex-wife, conditioned upon the petitioner paying the difference between the original maintenance award and the reduced amount after he reestablished his law practice. The court of appeals reversed the trial court and held that section 14-10-122, 6 C.R.S. (1986 Supp.), does not authorize a temporary reduction of maintenance. The record on appeal, consisting of a six page excerpt from the hearing on the motion for reduction of maintenance, is wholly inadequate to determine whether the trial court abused its discretion. We reverse the court of appeals and remand this case with directions to reinstate the order of the trial court.

I.

The marriage between petitioner Franklin Ward (the husband) and respondent Lola Ward (the wife) was dissolved in November 1980 by a decree of the El Paso County District Court. A provision of the decree ordered the husband to pay $400 monthly as spousal maintenance.

In April 1983, the husband terminated his employment as a lawyer in Brush, Colorado and moved to Maryland to pursue his legal career. In March 1984, the husband filed a motion for a reduction of the maintenance order in the dissolution decree pursuant to section 14-10-122, 6 C.R.S. (1986 Supp.). The motion asserted that the husband's inability to find suitable employment and the need to establish his own law practice resulted in a substantial and continuing change of circumstance that rendered enforcement of the original decree unconscionable. ¹ A hearing was held on May 10, 1984 and the trial court issued a ruling from the bench which was later reduced to a written order. ² The court found that the husband voluntarily left Colorado and moved to Maryland. At the time of the hearing, the husband had passed the Maryland bar examination and was in the process of setting up his own law practice. The order stated:

The Court further finds that this is a difficult time for both Petitioner and Respondent and the Court does not believe that [the husband] has done any wrong as such.

The Court finds and determines that relief should be granted ... in order to grant [the husband] an opportunity to pursue his private law practice.

The Court further finds and determines that the original award of $400.00 per month as and for spousal maintenance is still an appropriate award ... and that Respondent should not suffer ultimate financial loss because of the personal opportunity decisions made by the Petitioner.

The trial court reduced maintenance from $400 per month to $250 per month for the twelve-month period from June 1984 through May 1985. The husband was ordered to pay $350 per month from June 1985 through May 1986. From June 1986 through May 1987, the maintenance award returned to the original amount of $400 monthly. Commencing in June 1987, the husband was ordered to pay $500 per month until the $2,400 deficiency created by the reduced payments was made up, at which time maintenance would again return to the original $400 amount.

The husband appealed the May 1984 modification order, and the court of appeals reversed, holding that section 14-10-122, 6 C.R.S. (1986 Supp.), does not authorize a temporary abatement of maintenance. We reverse, and remand with directions.

II.

Section 14-10-122, 6 C.R.S. (1986 Supp.) establishes the parameters of the trial court's authority to modify an award of maintenance:

Except as otherwise provided ..., the provisions of any decree respecting maintenance may be modified only as to installments accruing subsequent to the motion for modification and only upon a showing of changed circumstances so substantial and continuing as to make the terms unconscionable....

The court of appeals held that a temporary reduction in maintenance contravened the terms of the modification statute. When maintenance is temporarily reduced, the original maintenance award is automatically reinstated at the end of the abatement period. The court of appeals reasoned that the reinstatement of the original award, without a renewed showing of changed circumstances, absolved the wife of her burden to justify the reinstatement, implying that maintenance can be modified only on a permanent basis. We disagree.

The trial court is without authority to modify a decree unless the threshold requirements of changed circumstances and unconscionability are established. In Sinn v. Sinn, 696 P.2d 333, 337 (Colo.1985), we stated that the party seeking a modification bears "a heavy burden." The strict standard of proof required by the modification statute "is intended to discourage repeated or insubstantial motions for modification." Uniform Marriage and Divorce Act § 316 commissioner's note, 9A U.L.A. 183, 184 (1979).

Once the movant meets the burden of showing changed circumstances and unconscionability, however, it is within the discretion of the trial court to modify the decree to meet the needs and abilities of the parties. In our view, the trial court's discretion extends to the amount of maintenance and the mode of payment. Cf. In re Marriage of Icke, 189 Colo. 319, 540 P.2d 1076 (1975) (maintenance of life insurance policy with minor children as beneficiaries is a reasonable means by which child support obligations can be met). Although we have not addressed the precise issue, courts of other jurisdictions have held that temporary modifications of spousal maintenance or child support are authorized under substantially similar statutes. Johnson v. Johnson, 185 Conn. 573, 441 A.2d 578 (1981) (order allowing three-month reduction of husband's alimony and child support obligations was not an abuse of discretion); Graham v. Graham, 21 Ill.App.3d 1032, 316 N.E.2d 143 (1974) (temporary reduction of child support until father finished his doctoral degree was not an abuse of discretion); Geisner v. Geisner, 319 N.W.2d 718 (Minn.1982) (alternatives such as deferral or abatement of maintenance and support are available if trial court determines husband started new business in good faith).

We do not agree with the husband's contention that the trial court has circumvented the statutory burden of proof by the reinstatement of the original award at the end of the abatement period. ³ The modified decree finding that $400 per month remains an appropriate award is prospective in its application. The escalating payments and the reinstatement of the original award are part of the trial court's decree. If the husband is unable to satisfy his obligations under the modified decree, he has the burden of again seeking modification by showing a change in circumstances. In Sinn v. Sinn, 696 P.2d 333 (1985), we held that the trial court abused its discretion in limiting the husband's maintenance payments to the wife to two years. We stated that, on the facts presented, it was "inappropriate to require the dependent spouse to return to court and assume [the burden of proving that maintenance should not terminate on the date set by the trial court], where ... it appears likely that the need for maintenance will continue past...