Danneberg v. Danneberg

         April 4, 1972

         Editorial Note:

         This case has been marked 'not for publication' by the court.

         Gorsuch, Kirgis, Campbell, Walker & Grover, Bennett S. Aisenberg, Denver, for plaintiff-appellee.

         Victoria F. Gross, Denver, for defendant-appellant.

         COYTE, Judge.

         The defendant (husband) brings this appeal objecting to temporary orders entered in connection with a pending divorce.

         The parties had been married nineteen years and are parents of five minor children. After they separated the plaintiff and children continued to reside in the family home and had monthly living expenses of approximately $3500. The husband listed his monthly living and personal expenses, exclusive of family obligations, as $1151 and his monthly take-home pay as $2700. The wife had income from outside sources of $2655 per month. In the temporary orders the court ordered the husband to pay temporary support and maintenance for the wife and minor children of $2189.12 a month. In addition he was required to pay a swimming pool repair bill of $350 and the 1970 residence taxes of $2900.

         The sole issue on appeal is whether the trial court abused its discretion as to the amount of temporary support and maintenance awarded plaintiff and the minor children. We affirm.

          The parties agree that the defendant has a continuing responsibility to support his family pending action on the divorce. The husband contends that the proportion of the burden of maintaining the family placed on him is inequitable in light of his cash income and the financial status of each party. The defendant's access to his corporate and partnership assets was disputed by the parties, but there was evidence that he had substantial resources in addition to his take-home pay sufficient to meet the obligations imposed upon him. He argues that he should not be required to invade his capital in order to comply with the orders of court. The present orders are temporary. They are intended to provide for the payment of some outstanding bills and for the continuing expenses of the family.

         Under such circumstances the trial court did not abuse its discretion in considering the husband's earnings, his potential earnings, and assets. Meagher v. Meagher, 190 Cal.App.2d 62, 11 Cal.Rptr. 650.

          Absent a clear showing of abuse of discretion by the trial court, a temporary award will not be disturbed or modified on appeal. Bieler v. Bieler, 130 Colo. 17, 272 P.2d 636; McPheeters v. McPheeters, 132 Colo. 312, 287 P.2d 959. Since there was competent evidence of the family expenses and the defendant's ability to pay the amounts ordered, there was no abuse of discretion.

         The judgment is affirmed.

         ENOCH and PIERCE, JJ., concur.