The Continued Jurisdiction of the Court to Modify Maintenance
| Publication year | 1984 |
| Pages | 62 |
| Citation | Vol. 13 No. 1 Pg. 62 |
1984, January, Pg. 62. The Continued Jurisdiction of the Court to Modify Maintenance
The Colorado Court of Appeals recently decided the cases of In re Marriage of Sinn and In re Marriage of Woodman,(fn1) which are based on a prior and little-known case, In re Marriage of Gallegos.(fn2) The rules of law in these three cases dramatically affect the court's continued jurisdiction with respect to the issue of maintenance. For this reason, practitioners who handle domestic matters should be aware of those holdings.
Practitioners and judges have previously interpreted the court's jurisdiction to modify awards of maintenance quite differently than the holding as stated in Gallegos. Thus, this article analyzes the Gallegos case, as reiterated and extended by Sinn and Woodman.
The court in Gallegos held:
Where ... maintenance is in a fixed and determinable amount to be paid either in a lump sum or is for a specific amount to be paid over a definite term, unless the power to do so is expressly reserved by the court, it is alimony in gross and has the finality of a judgment, and thus, is not subject to modification on the basis of a change in circumstances.(fn3) (Emphasis added.)
The fact that the wife in Gallegos had filed her motion for modification prior to the expiration of the term of the original award was held to be irrelevant. The maintenance award was considered to be alimony in gross, or lumpsum alimony, as described in Carlson v. Carlson,(fn4) and therefore, non-modifiable.
According to Carlson, the court within its discretion may award periodic alimony or alimony in gross. The award of alimony in gross, or lumpsum alimony, however, provides a definite and final judgment which the court cannot later modify. It is for that reason that periodic payments are normally preferred because such payments can be modified if a change of circumstances occurs.
Pursuant to Gallegos, however, in order for a court to maintain the jurisdiction to modify upon changed circumstances, an amount of maintenance that is payable over a definite period, the court must specifically reserve the power to do so or it loses such power due to the nature of the award and the fact that it is still a form of maintenance in...
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