In Re Marriage of Weibel

Judge CASEBOLT

concurring in part and dissenting in part.

I agree with the majority’s decision to affirm the denial of attorney fees to wife. However, I dissent from the majority’s conclusion that the trial court and the magistrate abused their discretion regarding the reduction of maintenance issue.

Except in circumstances not applicable here, maintenance may be modified only upon a showing of changed circumstances so substantial and continuing as to make the terms unfair. Section 14-10-122(l)(a), C.R.S.1997. In making this determination, the court may apply the factors governing the establishment of maintenance in § 14r-10-114, C.R.S.1997. In re Marriage of Lowery, 39 Colo.App. 413, 568 P.2d 103 (1977), aff'd, 195 Colo. 86, 575 P.2d 430 (1978).

Once the movant shows the requisite changed circumstances, it is within the trial court’s discretion to modify the decree to meet the needs and abilities of the parties. In re Marriage of Ward, 740 P.2d 18 (Colo.1987); see In re Marriage of LeBlanc, 800 P.2d 1384 (Colo.App.1990) (upon remand for modification of maintenance, statutory factors used for initial establishment of maintenance were to be applied). And, when a trial court’s order regarding maintenance is supported by competent evidence, it should not *131be disturbed on review. In re Marriage of Caufman, 829 P.2d 501 (Colo.App.1992).

Here, the record reflects that the accuracy of income and expense figures on the parties’ 1996 financial affidavits was disputed, as was the reasonableness of the stated expenses. For example, wife questioned whether husband’s income and personal expenses were accurately stated because of his use of a “Subchapter S” corporation to pay certain expenses. Husband questioned whether wife’s listing of $450 per month for “miscellaneous” expenses was reasonable and whether a $300 per month clothing expense and an additional $200 per month recreational expense were appropriate. The questioning also pointed out that wife was able to contribute $374 per month to a 401(k) plan and yet was still able to make ends meet.

There were no express findings concerning wife’s reasonable needs; hence, remand for additional findings would be appropriate here. At a minimum, however, the issues concerning reasonableness and accuracy of the figures on the financial affidavits involve determinations of credibility. Therefore, I cannot accept the premise, as the majority does, that the financial affidavits conclusively establish the “reasonable needs” of the parties. Rather, issues of credibility and issues of fact are to be resolved by the trial court and we should not substitute our own findings for those trial court findings and conclusions that are supported by the record. See In re Marriage of Udis, 780 P.2d 499 (Colo.1989).

Moreover, even using only those figures set forth on the financial affidavits of the parties, a conclusion that an abuse of discretion has occurred here is not warranted.

Wife’s financial affidavit shows that the 1996 net income figure of $1521 already included a deduction for the 401 (k) plan; hence, her net income, assuming that deduction was not taken, would be approximately $270 more after accounting for taxes at a 28% rate. Further, the magistrate ordered maintenance to continue at $250 per month and the net of that figure after taxes would be approximately $180. Thus, wife’s net income, after the reduction in maintenance ordered here, would be $1971.

Moreover, the $1971 figure does not account for any interest on the retirement savings accumulated by wife. It was undisputed that, in 1992, wife had taken $110,000 in savings and placed those funds into an annuity for retirement purposes. Its value as of the 1996 hearing was $125,000. Husband asserted that some amount of interest should be imputed to wife on such funds, and he suggested that a reasonable return would yield approximately $600 per month as imputed income.

In addition, it was undisputed that wife was working 32 hours per week at her job; she owned an unencumbered house that was worth, by her own estimation, $97,000; she had retirement funds and an annuity that were worth $143,000; and she had other assets worth approximately $20,000. Further, comparison of wife’s stated assets on the financial affidavits for 1992 and 1996 reveals an increase of $60,000 during that time.

Under these circumstances, I cannot conclude, as the majority does, that wife has conclusively proven a “need” to keep the maintenance figure at $800 per month. The reduced rate of maintenance appears to be within discretionary standards.

I recognize that mere increases or decreases in earnings do not require the conclusion that the amount of maintenance has become unconscionable, nor do they necessarily reduce or increase dollar-for-dollar the amount of maintenance properly awarded pursuant to § 14-10-114. In re Marriage of Bowles, 916 P.2d 615 (Colo.App.1995).

However, in my view, the magistrate considered more than just wife’s financial circumstances. The magistrate expressly considered many of the statutory factors set forth in § 14-10-114, including the parties’ incomes, health conditions, financial needs, disparity in incomes, wife’s assets and debts, husband’s training and ability to pay maintenance, and the length of the marriage. Thus, even if I assume that wife’s reasonable needs are as set forth in her financial affidavit, the evidence presented at the hearing supports the conclusion that wife’s need for maintenance decreased because of substantial and *132continuing changes in the parties’ circumstances, including, but not limited to, wife’s substantial increase in income. See In re Marriage of Udis, supra (appellate court may presume that trial court considered evidence presented, and even if order does not expressly reflect consideration of all relevant circumstances, order may be affirmed if evidence supports ultimate conclusion).

Furthermore, the trial court correctly modified the magistrate’s findings to reflect that husband’s income had changed, see C.R.M. 6(e)(4), but it nevertheless concluded that the result reached by the magistrate was supported by the evidence.

The standard of review requires a finding of abuse of discretion in order to set aside the court’s findings and conclusions; I can find no abuse here.

Accordingly, I respectfully dissent from the majority’s decision to vacate the order modifying maintenance.