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In re Marriage of Simon5/6/1993
In this dissolution of marriage action, Karin J. Simon (wife) appeals the permanent orders for property division, maintenance, and attorney fees. Ned A. Simon (husband) cross-appeals the orders for property division. We reverse and remand.
The parties were married in 1969. Wife was a homemaker, raised the parties' two children, and was not employed outside the home during the marriage. Husband, who worked as an accountant, was permanently disabled in a 1981 automobile accident and subsequently terminated his employment.
Husband sought damages in tort for his injuries and wife sued for loss of consortium resulting from the 1981 accident. The claims were settled by agreement, and the parties received cash payments and a structured settlement. The structured settlement provided specified annual payments until 1997, as well as an annuity paying $6000 per month for a minimum of 15 years and as long as either party lives.
The parties' marriage was dissolved in 1991, when both were 45 years old. The trial court found that they then had four categories of marital property: (I) assets not acquired with the settlement proceeds, valued at $287,267; (II) assets that may or may not have been acquired with those proceeds, valued at $118,751; (III) investments of those proceeds, totalling $690,205; and (IV) the annuity with a present value of $922,071 and the annual payments therefrom with a present value of $104,847.
The court awarded each party 50% of the property in categories I and II and also awarded husband 90% and wife 10% of the property in categories III and IV, all without specifying which party would receive which assets. The court also awarded wife $600 per month maintenance, custody of the two children, then ages 19 and 16, and $1000 per month child support . Her request for an award of attorney fees was denied.
A. Property
1. Division
We agree with husband's contention on cross-appeal that the trial court erred in failing to order a division of the marital property.
Under ยง 14-10-113(1), C.R.S. (1987 Repl. Vol. 6B), the trial court is required to divide the marital property. The property division is effective if it gives each party a definable or ascertainable portion of at least some of the attributes of ownership and the mechanics of any fractional division can be accomplished within a reasonable time. In re Marriage of Gehret, 41 Colo. App. 162, 580 P.2d 1275 (1978). It is generally improper to continue a joint or common tenancy between the parties, as contrary to the public policy of discouraging continued litigation and ongoing financial interaction between divorced spouses. See In re Marriage of Paul, 821 P.2d 925 (Colo. App. 1991).
Here, the trial court awarded each party a percentage of all the marital assets, which included real and personal property, a partnership interest, and various accounts and investments. That order effectively continued the parties' joint ownership.
We conclude that a more definite order is required to divide the assets in categories I, II, and III between the parties. The category IV assets, the annuity and the annual payments, may be divided on a present value, percentage, or other equitable basis, with appropriate implementing orders. See In re Marriage of Gallo, 752 P.2d 47 (Colo. 1988).
As husband points out, the additional orders should also clarify the Disposition of payments which may be received after the death of one of the parties, but the court is not bound by either party's proposal in that regard. And, it may conside
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