Menor v. Menor

• Citation: 391 P.2d 473,154 Colo. 475
• Decision Date: 20 April 1964
• Docket Number: No. 20766,20766
• Parties: James E. MENOR, Plaintiff in Error, v. Marjorie N. MENOR, Defendant in Error.
• Court: Supreme Court of Colorado

Page 473

391 P.2d 473

154 Colo. 475

James E. MENOR, Plaintiff in Error, v. Marjorie N. MENOR, Defendant in Error.

No. 20766.

Supreme Court of Colorado, En Banc.

April 20, 1964.

Leland S. Huttner, Lionel Dunievitz, Denver, for plaintiff in error.

Sheldon & Nordmark, James T. Bayer, Donald B. Robertson, Denver, for defendant in error.

MOORE, Justice.

Defendant in error, to whom we will refer as plaintiff or Marjorie, was granted a decree of divorce from plaintiff in error who will be referred to as the defendant or James. The decree was entered March 1, 1962. The trial court conducted extensive hearings relating to a division of property between the parties, permanent alimony, and custody and support money for their three minoe children.

March 5, 1963, 'Findings of Fact, Conclusions of Law and Order' consisting of twenty-two typewritten pages, were entered. The trial court dealt extensively with the financial affairs of the parties from the date of their marriage in August 1952 to the time of the hearing. Pertinent portions of the Findings of Fact are as follows:

'Due to domestic difficulties, the parties separated in May of 1961, James vacating the family home and taking only his personal belongings, and going to live in the apartment of his geologist. At the time of the separation, the parties had no current debts; and the assets of the parties were a 1959 Oldsmobile stationwagon, now worth $1,500; the family home, located at 3239 South Detroit, having a now market value of $36,000, with a $16,000 encumbrance against the same, leaving an equity of $18,000, said home being owned in joint tenancy; that at the time the parties had $3,000 either in a checking or a savings account and James had a fifty percent stock ownership in Compass Exploration Company.

'At the time of the separation, James was drawing a salary from Compass of $1,500 a month; and, at other times prior thereto, he had received a monthly salary of $1,750 a month.

'James reported income for tax purposes for 1961 at $20,295.40. In January of 1962, James reduced his salary to $800 a month, which continued through May of 1962, at which time he again reduced it to $600 which salary was supplemented by a $5,000 bonus and a $2,041 outside commission, making a total income for the year 1962 at a sum of $15,241. The testimony indicated that James expects, for the year 1963, an equal or larger income than he has received in the last three years.'

The judgment and order of the trial court awarded to Marjorie:

1. The family home subject to a first trust deed of $16,000.00--(an equity of $20,000.00).

2. The furniture and furnishings in the family home valued at $10,000.00.

3. A 1959 Oldsmobile station wagon valued at $1,500.00.

4. Custody of the children.

5. James to pay $150.00 per month for the support of each child, or a total of $450.00 per month.

6. Alimony to Marjorie of $300.00 per month.

The court further ordered as follows:

'(6) That the Court has fully considered the Amicus Curiae Brief of George Aubrey and the agreement by and between the Defendant James Menor and his co-owner of Compass Exploration Company, George Aubrey, dated January 10, 1960; that the Court does not intend, nor will it by this Order, disturb any of the contractual rights that have heretofore been vested in said agreement; that, considering all of the evidence on the point, the Court hereby awards the Plaintiff twenty-five percent of the proceeds realized out of the Defendant's fifty percent stock ownership in Compass Exploration Company; that the obligation to pay any of said proceeds realized from said stock ownership shall arise only in the event of the dissolution of said Company, or upon the Defendant's sale of his stock ownership, pursuant to the terms of said buy-and-sell agreement of January 10, 1960; that, in the event of the realization of any of said proceeds, said amount is to be placed in trust, so that equal shares would go to each of the Defendant's three children and his former wife Marjorie Menor. Once the said children have reached the age of twenty-one years, or they are emancipated, their interest would be given to them at that time; and, in the interim, that Majorie would act as Guardian of said funds for said children; that, in the event said dissolution or sale or realization of said proceeds would be realized after the age of twenty-one of said children, that then said proceeds would be distributed in four equal shares immediately.

'(7) That the Defendant James Menor keep in full force and effect the $150,000 insurance in favor of the Defendant Marjorie Menor, and that he or his Company pay all premiums thereon promptly; and, in the event of any delinquency or imminent delinquency as to payments on said policy, notice should be immediately given to the Plaintiff; that said policies are to remain in the Registry of the Denver District Court, and not be released except by Order of Court.

'(8) That in the event there is any change in circumstances of the Defendant, as to his ability to comply with any of these Orders, the Court hereby Orders that the Defendant provide the Plaintiff with a certified copy of each and every Federal Income Tax return by him, annually, after the date of this Order, and within five days after the filing of the original with the Director of the Internal Revenue Bureau.'

James argues in this court that the orders for alimony and support money are unjust, excessively burdensome, beyond the needs of the recipients, and amount to an abuse of discretion which this court should reverse or modify. We find no abuse of discretion in the instant case with respect to the awards of alimony and support money.

For a period of at least four years prior to the hearing, defendant's income had never been less than $15,000.00 per year. He is a 50% owner in a corporation which has an earning potential, and over which he, together with his associates, has full control concerning the compensation which he shall receive. According to the record, his automobile and living expenses are in a substantial degree paid by the corporation.

The judgment for cash payments of alimony and support money accordingly is affirmed.

We now direct our attention to that portion of the judgment relating to the stock owned by defendant in the corporation from which his income was derived. This corporate stock was subject to an agreement under which the owner of another substantial block of stock would have a prior right to purchase same in the event of a sale thereof by the defendant. The judgment of the trial court decreed that in the event there was a 'dissolution' of the corporation, or a sale of the stock owned by the defendant, 25% of the proceeds realized by defendant upon such dissolution, or...