The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.
SUMMARY April 2, 2026
2026COA23
No. 23CA2048, In re Marriage of Luttkus — Family Law — Dissolution — Permanent Orders — Spousal Maintenance — Child Support: Health and Welfare — Services for Persons with Intellectual and Developmental Disabilities — Home and Community-Based Servies Waiver for Persons with Developmental Disabilities
In this dissolution of marriage case, the trial court entered
permanent orders that divided the marital estate, awarded
maintenance to wife, and ordered child support to wife concerning
the parties’ adult disabled daughter. In determining maintenance
and child support, the court included in wife’s income money paid
to her through the Home and Community-Based Services Waiver for
Persons with Developmental Disabilities (HCBS-DD waiver)
program — a program related to providing care for the parties’
disabled daughter. On appeal, as an issue of first impression, a division of the
court of appeals concludes that the court erred by including the
HCBS-DD waiver payments in wife’s income. Based on this
conclusion, the division reverses the portion of the trial court’s
permanent orders concerning maintenance and child support and
remands the case to the trial court for further proceedings. COLORADO COURT OF APPEALS 2026COA23
Court of Appeals No. 23CA2048 Douglas County District Court No. 22DR30689 Honorable Donna Stewart, Judge
In re the Marriage of
Vicki Krieger,
Appellant,
and
Jeffrey Luttkus,
Appellee.
JUDGMENT AFFIRMED IN PART AND REVERSED IN PART, AND CASE REMANDED WITH DIRECTIONS
Division VI Opinion by JUDGE WELLING Kuhn and Schutz, JJ., concur
Announced April 2, 2026
Paige Mackey Murray, LLC, Paige Mackey Murray, Boulder, Colorado, for Appellant
Wright Family Law, Jamie L. Wright, Centennial, Colorado, for Appellee ¶1 The district court magistrate, whom we will refer to as the trial
court, dissolved the marriage of Vicki Krieger (wife) and Jeffrey
Luttkus (husband). The trial court entered permanent orders that
divided the marital estate, awarded maintenance to wife, and
ordered child support to wife concerning the parties’ adult disabled
daughter. In determining maintenance and child support, the court
included in wife’s income money paid to her through the Home and
Community-Based Services Waiver for Persons with Developmental
Disabilities (HCBS-DD waiver) program — a program related to
providing care for the parties’ disabled daughter.
¶2 On appeal, wife contends that the court erred by (1) using the
wrong method for allocating husband’s defined benefit pension
plan; (2) including in its determination of her income the money she
received from the HCBS-DD waiver; and (3) ordering a term of
maintenance that automatically terminated when husband retired
from his present employment. We affirm the court’s property
division. But as an issue of first impression, we conclude that the
court erred by including the HCBS-DD waiver payments in wife’s
income. We therefore reverse the portion of the trial court’s
permanent orders concerning maintenance and child support. As a
1 result, we need not address wife’s dispute regarding the
maintenance term. The case is remanded to the trial court for
further proceedings.
I. Background
¶3 The parties were married in 1992 and have three daughters.
The oldest and youngest daughters have disabilities and, from a
young age, have required significant daily assistance, which wife
has primarily provided.1 Wife, who was fifty-seven years old at the
time of the permanent orders hearing, hasn’t been employed
outside the home since 1999.
¶4 L.L., the youngest daughter, was diagnosed with an auditory
processing disorder, generalized anxiety disorder, bipolar disorder,
and an autism spectrum disorder. When she was younger, L.L.
would have violent outbursts that were at times so severe wife was
forced to call the police or take L.L. to a hospital.
¶5 At the time of the permanent orders hearing, L.L. was
eighteen, lived primarily with wife, and spent one night a week with
1 At the time of the permanent orders hearing, the oldest daughter
did not live with the parties, and neither party raises an issue on appeal relevant to their oldest daughter.
2 husband. Wife reported that L.L. no longer experienced violent
episodes, but she still had frequent panic attacks and verbal
outbursts, which could occur unexpectedly. Wife explained that
L.L. required daily care and that wife was responsible for L.L.’s care.
Wife further described being responsible for transporting L.L. to and
from a weekly equine therapy session; facilitating in-home
behavioral therapy sessions for L.L. two or three times a week; and
keeping daily logs of L.L.’s activities, medications, sleep habits,
behavioral outbursts, and health concerns.
¶6 In 2015, wife enrolled L.L. in the Children’s Extensive Support
Waiver — a joint state and federal Medicaid program providing
home- and community-based benefits and services for L.L. based on
her disability. After L.L. turned eighteen, she transitioned from the
Children’s Extensive Support Waiver to the HCBS-DD waiver, which
allowed her to continue to receive benefits and services and remain
at home under her family’s care. From the HCBS-DD waiver, wife
received approximately $5,000 per month. These payments were
referred to as “difficulty of care payments” and were distributed to
wife through a private company. The parties agree that L.L. is
3 disabled for the purposes of child support and will need support
beyond the age of eighteen. See § 14-10-115(13)(a)(II), C.R.S. 2025.
¶7 Throughout the marriage, husband, who was sixty-six years
old at the time of the permanent orders, worked at Lockheed
Martin. His salary was significant and had increased steadily over
the years. From his employment, he received a defined benefit
pension plan and had generated a 401(k) worth nearly $2 million.
Husband testified that he wanted to retire when his oldest daughter
turned twenty-six, which was two years after the permanent orders
hearing.2
¶8 With respect to maintenance and child support, wife argued
that the court shouldn’t include the difficulty of care payments in
her income. She asserted that these benefits from a means-tested
public assistance program were not income and further explained
that the IRS didn’t tax difficulty of care payments for live-in
caretakers such as herself. However, husband argued that wife was
“employed” as L.L.’s caretaker and that the difficulty of care
2 Husband began working for Lockheed Martin in September 1980,
the parties were married in August 1992, and their marriage was dissolved in October 2023.
4 payments were “paychecks” from the waiver program to compensate
her as L.L.’s caregiver. He further argued that the “benefit” of the
waiver program was the care that L.L. received (not the funds paid
to wife), and that the difficulty of care payments would be paid to
any caregiver for L.L. — whether the caregiver was a member of
L.L.’s family or not. Given that, he contended that the difficulty of
care payments should be included in wife’s income for purposes of
maintenance and child support.
¶9 After the October 2023 hearing, the trial court issued
permanent orders and dissolved the marriage. The court divided
the marital estate relatively equally. With respect to husband’s
pension, the court denied wife’s request to use the net present value
method to immediately distribute the value of the pension. The
court instead used the deferred distribution method, ordering that,
upon husband’s retirement, the benefit will be proportionally
allocated by applying the time rule formula.
¶ 10 With respect to the maintenance and child support, the trial
court found that the difficulty of care payments were income to wife,
ruling as follows:
5 [Wife] receives a difficulty of care payment in the amount of $5,000 per month for caring for [L.L.] [Wife] argues that because it is not taxable, it should not be included as income. The [c]ourt is not persuaded. [Section] 14-10- 115(5)(a)(II) sets forth funds that are excluded as income for the purposes of child support calculations. Difficulty of care payments paid out by a private entity are not listed as an exclusion. As such, the [c]ourt finds that [wife]’s monthly income is $5,000 per month.
¶ 11 The court then found that husband’s gross monthly income
was $19,069. It ordered husband to pay wife $3,702.40 per month
in spousal maintenance, and it directed that this obligation “shall
terminate upon [h]usband’s retirement from his current position
with Lockheed Martin.” The court explained that husband was
“nearing retirement,” and upon his retirement, “both parties will be
receiving a portion of his pension.”
¶ 12 Wife appeals the court’s permanent orders.3
3 A district court magistrate entered the permanent orders with the
parties’ consent. So, pursuant to the rules applicable at the time, direct appeal to this court was the required path for seeking appellate review. See C.R.M. 7(b) (2025). After the magistrate entered judgment in this case, the Colorado Rules for Magistrates were amended and those amendments apply to orders or judgments issued by magistrates on or after January 2, 2026. See C.R.M. 7(d), (g) (2026).
6 II. Issues on Appeal
¶ 13 Wife advances three interrelated issues on appeal. First, she
contends that the trial court erred by using the deferred
distribution method to allocate husband’s pension. Second, she
argues that the court incorrectly included in her income the
difficulty of care payments for purposes of determining maintenance
and child support. Third, she contends that the court erred when it
ordered husband’s maintenance obligation to terminate when he
retired. We disagree with wife’s first argument regarding the
pension but agree with her second concerning the inclusion of the
difficulty of care payments in her income. Given our conclusion,
the portion of the permanent orders concerning maintenance and
child support must be reversed and reconsidered by the trial court.
As a result, we decline to review her last argument, which is
unlikely to arise in the same posture on remand.
A. Husband’s Pension
¶ 14 Wife argues that the trial court erred by using the deferred
distribution method to allocate the marital portion of husband’s
defined benefit pension plan. She contends that the court should
have instead used the net present value method and immediately
7 allocated the value of the pension in its division of the marital
estate to better protect her future financial interests. We aren’t
persuaded that the court abused its discretion.
1. Standard of Review
¶ 15 The trial court has great latitude in making an equitable
division of the marital property based on the facts and
circumstances of the case. In re Marriage of Smith, 2024 COA 95,
¶ 64. To achieve an equitable division, the court must consider all
relevant factors, including each party’s contribution, financially and
as a homemaker, to the acquisition of marital property; the value of
property set apart to each party; each party’s economic
circumstances; and any change to the value of each party’s
separate property during the marriage. § 14-10-113(1)(a)-(d), C.R.S.
2025; Smith, ¶ 64.
¶ 16 We won’t disturb the court’s allocation of marital property
without a showing that the court abused its discretion. Smith,
¶ 65. A court abuses its discretion when its decision is manifestly
arbitrary, unreasonable, or unfair, or based on a misapplication of
the law. Id.
8 2. Allocation
¶ 17 When dividing the marital estate, there are three methods that
a court may use to allocate a party’s pension: (1) net present value;
(2) deferred distribution; and (3) reserve jurisdiction. In re Marriage
of Kelm, 912 P.2d 545, 547 (Colo. 1996); In re Marriage of Hunt, 909
P.2d 525, 530-31 (Colo. 1995).
¶ 18 Under the net present value method, the court distributes the
present marital value of the pension at the time of dissolution.
Kelm, 912 P.2d at 547; Hunt, 909 P.2d at 531. To do so, the court
offsets the pension’s value with the value of other marital property.
Kelm, 912 P.2d at 547; Hunt, 909 P.2d at 531.
¶ 19 Under the deferred distribution and reserve jurisdiction
methods, the court delays distribution of the pension until the
pension benefits are distributed. Kelm, 912 P.2d at 547; Hunt, 909
P.2d at 531. With the deferred distribution method, the court
applies the “time rule” formula to predetermine the percentage of
the pension benefits the parties will receive from the allocation of
9 the marital asset.4 Kelm, 912 P.2d at 547; Hunt, 909 P.2d at 531.
With the reserve jurisdiction method, the trial court waits and
determines an equitable allocation of the pension when the benefits
begin to be paid. Kelm, 912 P.2d at 547-48; Hunt, 909 P.2d at 531.
¶ 20 As noted, the parties presented competing requests concerning
the allocation of husband’s pension. Wife asked the court to use
the net present value method and immediately value and distribute
the pension. She asserted that the present value of the pension
was $1,140,000, and she asked the court to allocate this future
benefit to husband, offsetting that value by allocating her additional
equity from the marital estate. Husband asked the court to use the
deferred distribution method, delaying the distribution of the
pension’s marital equity. He explained that using the net present
value method was inequitable because it would give wife virtually all
4 The time rule formula incorporates a “coverture fraction,” which
consists of a numerator — the length of time (in months or years) of creditable service towards the pension accumulated during the marriage — over the denominator — the length of time (in months or years) of total service towards the pension. The coverture fraction is then multiplied by the monthly pension benefit and divided in half, representing an equal division of the pension benefits attributable to the marriage. In re Marriage of Hunt, 909 P.2d 525, 531-32 (Colo. 1995).
10 the liquid marital assets and husband might never receive the full
value of his future pension benefits.
¶ 21 After considering their competing requests and balancing the
relevant circumstances, the trial court adopted husband’s request.
Finding that wife’s proposed net present value was “subject to too
many variables and based on a presumption of [h]usband’s life
expectancy,” it determined that the deferred distribution method
was the most equitable way to allocate the pension.
¶ 22 While wife disagrees with the court’s decision, she
acknowledges that applying a present value to husband’s defined
benefit pension involves “various assumptions regarding mortality
and the amount of retirement pay to which [husband] will be
entitled.” Indeed, “[n]ormally, the valuation of future retirement
payments is the subject for expert testimony, usually from an
actuary.” In re Marriage of Zappanti, 80 P.3d 889, 892 (Colo. App.
2003). This is so because determining the present value of a
pension entails applying a series of actuarial and investment
assumptions relating to a party’s life expectancy and probable
retirement age to the benefit. Kelm, 912 P.2d at 551. Wife
presented no expert testimony in support of her purported net
11 present value, and the court found, with record support, that wife’s
value was too uncertain under the circumstances.
¶ 23 Moreover, “[t]he net present value method is used most often
when the value of the pension is low” relative to the marital estate,
and the party had “worked relatively few qualifying years during the
marriage or the [party] earned a relatively low rate of pay.” Hunt,
909 P.2d at 531, 539. But that wasn’t the case here. During the
marriage, husband accumulated over thirty years of service towards
his pension, and the value of the pension (as presented by wife) was
significant, particularly when compared to the remaining value of
the marital estate, which was approximately $2,600,000.
¶ 24 The court exercised its discretion to choose a distribution
method that best suited the needs and financial circumstances of
the parties. See id. at 540; Smith, ¶ 65. In doing so, the court
appeared to prioritize accuracy — and therefore fairness — by
avoiding potentially flawed assumptions. Beyond her disagreement,
wife doesn’t point to anything in the record that shows the court’s
use of the deferred distribution method was arbitrary, capricious, or
contrary to the law. See Smith, ¶ 65. We therefore won’t disturb its
choice. See Hunt, 909 P.2d at 538 (“[A]n appellate court must not
12 disturb the delicate balance achieved by the trial court in division of
property. The trial court is best-situated to render the distribution
in the first instance, and its decision should not be disturbed on
appeal unless there has been a clear abuse of discretion.”).
3. Survivor Benefit
¶ 25 At the permanent orders hearing, husband agreed to purchase
the full survivor benefit on his pension to benefit wife. The trial
court, however, didn’t include this commitment in its final orders.
At oral argument, husband’s counsel stipulated that, on remand,
the court should include in its final orders his commitment to
secure a full survivor benefit on his pension for wife. We accept this
stipulation. Accordingly, on remand the trial court shall amend the
permanent orders to include this obligation.
B. Difficulty of Care Payments
¶ 26 Wife next argues that the trial court erred by including the
difficulty of care payments in its determination of her income for the
purposes of calculating spousal maintenance and child support.
We agree.
13 1. Preservation
¶ 27 Husband, relying on Fidelity National Title Co. v. First American
Title Insurance Co., 2013 COA 80, ¶¶ 46-52, contends that wife
didn’t preserve the argument she advances on appeal. He argues
that, at the hearing, wife’s argument was restricted to excluding the
difficulty of care payments from her income because they were
benefits from a means-tested public assistance program, see § 14-
10-114(8)(c)(II)(B), C.R.S. 2025; § 14-10-115(5)(a)(II)(B), not the
broader argument she now advances on appeal. We disagree with
husband.
¶ 28 A party doesn’t need to use talismanic language to preserve an
issue. In re Marriage of Stradtmann, 2021 COA 145, ¶ 9. The party
need only raise the issue for the court to rule on it. In re Marriage
of Turilli, 2021 COA 151, ¶ 12.
¶ 29 In Fidelity, a division of this court held that the plaintiff hadn’t
preserved an argument that it advanced on appeal because it made
a different argument at trial. Fidelity, ¶¶ 50-51. But here, wife
makes largely the same argument as she did to the trial court —
that the difficulty of care payments shouldn’t be included in her
income for purposes of determining maintenance and child support
14 because they are more akin to other nonincome payments and
aren’t taxed by the IRS. Wife has remained unwaveringly consistent
that the difficulty of care payments shouldn’t be treated as income
for purposes of maintenance and child support and the trial court
ruled on that issue. This is therefore unlike the situation in
Fidelity.
¶ 30 Accordingly, we conclude that wife sufficiently preserved for
appellate review her challenge to the trial court’s inclusion of the
difficulty of care payments in her income.
2. Standard of Review
¶ 31 We review a trial court’s maintenance and child support
rulings for an abuse of discretion. In re Marriage of Tooker, 2019
COA 83, ¶ 12.
¶ 32 The court’s determination of a party’s income presents a mixed
question of fact and law. In re Marriage of Garrett, 2018 COA 154,
¶ 9. We defer to the court’s factual findings if they are supported by
the record, but we review de novo its legal conclusions — such as
whether difficulty of care payments should be classified as income.
See Tooker, ¶ 12; Garrett, ¶ 9. “When interpreting a statute, we
15 adopt an interpretation that best effectuates the legislative
purposes.” In re Marriage of Vittetoe, 2016 COA 71, ¶ 4.
3. Analysis
¶ 33 The Colorado Medical Assistance Act (CMAA) implements a
joint state and federal Medicaid program to promote the health and
welfare of individuals and their families who don’t have the
resources to provide the necessary care for themselves. §§ 25.5-4-
102, -104(1), C.R.S. 2025. The HCBS-DD waiver, a program
established by the CMAA, provides home- and community-based
services to individuals with intellectual and developmental
disabilities who need the level of care available in an intermediate
care facility. § 25.5-6-409(1)-(2), C.R.S. 2025. Through this waiver
program, services are provided for the individual’s “social,
habilitative, remedial, residential, health, and other needs” to avoid
placing the individual in an intermediate care facility. § 25.5-6-
409(1).
¶ 34 This case presents a question that no Colorado appellate court
has previously addressed — whether the difficulty of care payments
provided by the HCBS-DD waiver are income for purposes of
spousal maintenance and child support. We begin by examining
16 whether the difficulty of care payments qualify as compensation to
wife, and we conclude that they don’t. Next, we examine whether
the difficulty of care payments, while not compensation, still fall
under the broad definition of income when determining
maintenance and child support. We again conclude that they
don’t.5 Last, we reject husband’s claim that the difficulty of care
payments nonetheless should be considered as income for L.L.,
which could reduce his child support obligation.
a. The Difficulty of Care Payments Aren’t Compensation
¶ 35 For purposes of determining maintenance and child support,
gross income is statutorily defined in sections 14-10-114(8)(c)(I) and
14-10-115(5)(a)(I). These sections contain substantially similar,
comprehensive lists of income sources that a court includes when
calculating a party’s income, including salaries, wages, and
5 Wife also argues that we should consider the fact that the
difficulty of care payments aren’t taxed by the IRS, but that consideration is irrelevant to our analysis. See In re Marriage of Nimmo, 891 P.2d 1002, 1005-06 nn.5, 7 (Colo. 1995) (explaining that state and federal tax code definitions of income “are irrelevant to an interpretation of” gross income under section 14-10-115, C.R.S. 2025); In re Marriage of Armstrong, 831 P.2d 501, 503 (Colo. App. 1992) (“[A] source of income under the child support guidelines is not determined by other definitions which may be used for federal or state income tax purposes.”).
17 payments received as an independent contractor. § 14-10-
114(8)(c)(I)(A), (B), (D); § 14-10-115(5)(a)(I)(A), (B), (D).
¶ 36 Husband contends that the difficulty of care payments wife
receives under the HCBS-DD waiver aren’t “benefits” of the
program — means-tested or otherwise.6 Rather, he argues that the
benefit is the care L.L. receives (whether from wife or anyone else).
He therefore contends that the difficulty of care payments
compensate wife for working as L.L.’s caregiver, just as the
payments would compensate any other third party caring for L.L.,
and that such compensation is included in wife’s income. For two
reasons, we disagree.
¶ 37 First, nothing in the record shows that the difficulty of care
payments cover the actual costs of L.L.’s caregiver needs. Wife
explained that L.L. needs twenty-four-hour care, can have panic
attacks unexpectedly, and requires logistical support for her
ongoing medical, educational, and psychological support programs.
6 We acknowledge wife’s argument that the HCBS-DD waiver is a
means-tested program that, by statute, would be excluded from a party’s income. See § 14-10-114(8)(c)(II)(B), C.R.S. 2025; § 14-10- 115(5)(a)(II)(B). But given that we conclude the difficulty of care payments aren’t income under an alternative rationale, we don’t review or resolve this issue.
18 These needs, coupled with the program’s prohibition on L.L. having
more than $2,000 in her bank account, mean that wife will almost
certainly be required to provide for nearly all of L.L.’s extensive
needs out of pocket. See Dep’t of Health Care Pol’y & Fin. Rule
8.7100.C.2, 10 Code Colo. Regs. 2505-10; see also Reilly v. Marin
Hous. Auth., 472 P.3d 472, 484 (Cal. 2020) (“At best, a parent’s
[difficulty of care payments] will offset a portion of the costs of
keeping a developmentally disabled family member at home, and
[they] would not go far in meeting the family’s daily needs.”).
¶ 38 Second, the difficulty of care payments don’t adequately
compensate wife for her work or even acknowledge the amount of
work she provides caring for L.L. This is ably demonstrated by the
ample evidence of L.L.’s extensive needs and wife’s responsibilities
under the waiver program. Moreover, to even qualify for the HCBS-
DD waiver, L.L. must need “access to [twenty-four]-hour services
and supports to meet [her] daily living needs.” Dep’t of Health Care
Pol’y & Fin. Rule 8.7101.J.2.b, 10 Code Colo. Regs. 2505-10. Wife,
therefore, is essentially on call for at least six days a week while L.L.
is in her care. In addition, wife logs all of L.L.’s medications,
activities, outbursts, and sleep habits; coordinates her
19 transportation to and from multiple programs each week; and
participates in multiple therapy sessions with L.L. each week. See
Reilly, 472 P.3d at 483 (“Unlike third party caregivers whose job it
is to take care of someone on an hourly basis, for these parent
providers, caring for their child ‘is not a day job; it is their life.’”
(citation omitted)). Husband’s characterization of wife’s role in
L.L.’s care as fungible significantly undervalues her contribution as
reflected in the record. And his assertion that L.L. “can do anything
that a normal [eighteen]-year-old can do” is contradicted by the
weight of evidence, including the fact that L.L. must require twenty-
four-hour care to even qualify for the HCBS-DD waiver.
b. The Difficulty of Care Payments Aren’t Income to Wife
¶ 39 Having concluded that the difficulty of care payments aren’t
compensation to wife, we must next consider whether they
nevertheless are included in the broad definition of income for
purposes of maintenance and child support. We conclude that they
aren’t.
¶ 40 As wife argues, the policy goals of the HCBS-DD waiver are in
line with payment programs such as adoption subsidies and foster
care payments, which aren’t included in a parent’s income. See,
20 e.g., In re Marriage of Dunkle, 194 P.3d 462, 465-66 (Colo. App.
2008); In re Marriage of Bolding-Roberts, 113 P.3d 1265, 1267-68
(Colo. App. 2005); see also Reilly, 472 P.3d at 486 (in holding that
difficulty of care payments must be excluded from a party’s income,
the court noted that “[it couldn’t] endorse a construction that yields
a result antithetical to our nation’s ‘goal of providing families of
children with disabilities with the support they need to raise their
children at home’” (quoting 42 U.S.C. § 15091(c))). In Bolding-
Roberts, an adoption subsidy wasn’t included in a parent’s income,
and the division concluded that the subsidy shouldn’t be used to
reduce a parent’s child support obligation. 113 P.3d at 1267-68.
The division explained that while the payments were made directly
to the parent, the purpose of the subsidy was “to help, or remove
financial barriers to, the adoption of Colorado children with special
needs by providing assistance to the parent or parents in the
payment of expenses of caring for and raising the child.” 113 P.3d
at 1267 (citation omitted). The division observed — and we agree —
that allowing the subsidy to be a credit against the father’s child
support obligation “would be tantamount to absolving father of his
duty to support his child, placing [the child] in a worse position
21 than a child without special needs.” Id. Similarly, in Dunkle, a
division of this court concluded that adoption subsidies and foster
care payments received by a parent were not income for that parent
when determining child support. 194 P.3d at 465-66.
¶ 41 We are convinced that the same rationale applies to the
difficulty of care payments from the HCBS-DD waiver. By including
those payments in wife’s income, the court diluted the intended
effect of the difficulty of care payments — allowing L.L. to remain in
her family’s care and supplementing the costs of providing for L.L.’s
increased needs. And including it as income would improperly
dilute husband’s responsibility to financially provide for L.L.
¶ 42 Indeed, other courts have warned that categorizing these
payments as income could create a perverse incentive to
institutionalize family members. See Reilly, 472 P.3d at 482
(“[F]amilies that strive to avoid institutionalization should be
encouraged, and not punished.” (citation omitted)). Those needing
twenty-four-hour care, like L.L., “are more likely to receive better
continuous care from relatives living with them whose care is more
than contractual.” Id. (emphasis omitted) (citation omitted).
Further, a family member providing such care will often “insure the
22 least intrusion upon the recipient’s privacy.” Id. at 483 (citation
omitted). Allowing L.L. to receive her necessary care at home and
from her own mother clearly improves the nature and quality of her
care. Categorizing the difficulty of care payments as nonincome
therefore encourages the positive outcomes sought by the HCBS-DD
waiver.
¶ 43 Moreover, the negative outcomes associated with categorizing
the difficulty of care payments as income contradicts the purposes
of the HCBS-DD waiver and those of the Uniform Dissolution of
Marriage Act (UDMA). For instance, our legislature has expressed a
commitment to provide services for people with developmental
disabilities that “minimize admissions to institutions.” § 25.5-6-
402(1)(a), C.R.S. 2025. Interpreting the income provisions of the
UDMA in a way that provides an incentive to institutionalize family
members with disabilities directly undercuts the legislature’s stated
policy goal. That incentive also offends the most basic policy goals
of the UDMA, which include minimizing harm to the relationships
between parents and their children and protecting children from the
potential harm their parents’ dissolution of marriage could cause
23 them. See § 14-10-104.5, C.R.S. 2025; In re Marriage of Bohn, 8
P.3d 539, 542 (Colo. App. 2000).
¶ 44 Still, husband argues that because wife may spend the
difficulty of care payments on expenses like household bills and
living costs, the payments are income. In support, he relies on
Tooker, a case in which a division of this court ruled that to include
benefits in a party’s income, the funds must be available for the
party’s discretionary use or to reduce their daily living expenses.
Tooker, ¶ 18. Husband’s argument misses the mark. In Tooker, the
division concluded that the husband’s GI Bill tuition assistance
wasn’t income because the funds couldn’t be used for his personal
expenses. Id. at ¶ 20. But the Tooker division didn’t hold that the
mere availability of a portion of the financial benefit for
discretionary use requires its inclusion in a party’s income. The
maintenance and child support statutes likewise don’t support
husband’s position. See, e.g., §§ 14-10-114(8)(c)(II)(B), 14-10-
115(5)(a)(II)(B) (excluding from a party’s income cash assistance
paid out through the Colorado works program); § 26-2-706.6(2),
C.R.S. 2025 (“[C]ash assistance” paid out through the Colorado
24 works program “is designed to meet the basic ongoing needs of the
persons” receiving the payments.).
¶ 45 Accordingly, we conclude that the difficulty of care payments
don’t constitute income for the purposes of determining
maintenance or child support.
c. The Difficulty of Care Payments Don’t Reduce L.L.’s Needs
¶ 46 Finally, husband argues that even if we determine that the
difficulty of care payments aren’t income to wife, the payments
should be considered as L.L.’s income because the benefits from
these payments diminish L.L.’s basic needs. See § 14-10-115(11)(b)
(“Any additional factors that actually diminish the basic needs of
the child may be considered for deductions from the basic child
support obligation.”). We aren’t persuaded.
¶ 47 In Bolding-Roberts, the division concluded that the trial court
correctly declined to find that an adoption subsidy was income to
the child. 113 P.3d at 1267-68. In that case, the subsidy paid
benefits to parents who adopted children with “special, unusual, or
significant physical or mental disability, or emotional disturbance.”
Id. at 1267 (citation omitted). The division reasoned that the
adoption subsidy wasn’t intended as a substitute or replacement for
25 lost income; instead, it was designed to offset the special needs of
the adopted child. Id. at 1268. The subsidy therefore didn’t reduce
the child’s needs for purposes of determining child support. Id.
The division anchored its conclusion on the fact that, had the
parents not separated, the child would have had the benefit of both
parents’ incomes and the subsidy. Id.
¶ 48 We agree with the logic of Bolding-Roberts. The difficulty of
care payments don’t reduce L.L.’s needs. Instead, they supplement
the additional costs of caring for L.L. at home, partially offsetting
those increased needs. Such payments therefore aren’t income
attributable to L.L. that would diminish her basic needs for
purposes of determining child support.
¶ 49 In sum, because we determine that the difficulty of care
payments aren’t compensation and that categorizing them as
income — for wife or for L.L. — contradicts the purposes of the
UDMA and the HCBS-DD waiver, we conclude that the trial court
erred by including these payments in wife’s income when it
determined spousal maintenance and child support. We reverse
this portion of the trial court’s permanent orders, and we remand
the issues of maintenance and child support to the trial court for
26 reconsideration. Because orders on maintenance and child support
are based on the parties’ circumstances at the time the orders are
entered, we direct the trial court on remand to consider the parties’
circumstances at the time of the remand hearing. See In re
Marriage of Wright, 2020 COA 11, ¶ 24; In re Parental
Responsibilities Concerning M.G.C.-G., 228 P.3d 271, 273 (Colo.
App. 2010).
¶ 50 Wife further requests that we foreclose husband from arguing
on remand that she is voluntarily underemployed or unemployed
because the court declined to make any such finding in its original
permanent orders. As discussed, the court must consider the
parties’ current circumstances at the time of entering orders on
remand. Therefore, we decline wife’s request.
C. The Duration of the Maintenance Award
¶ 51 Wife also argues that the trial court erred by ordering the
spousal maintenance to automatically terminate when husband
retires. Because have reversed the maintenance award, and, on
remand, the trial court must reconsider whether to award
maintenance and what term, if any, is appropriate based on the
parties’ then-current circumstances, we don’t need to reach this
27 issue. Additionally, given husband’s testimony at the 2023
permanent orders hearing that he hoped to retire within two years,
i.e., in 2025, it’s unclear whether this issue will arise in the same
posture on remand. We therefore decline to weigh in. Cf. Nguyen v.
Lai, 2022 COA 141, ¶ 17 (noting our inability to give advisory
opinions).
III. Appellate Attorney Fees and Costs
¶ 52 Wife requests an award of her attorney fees incurred on appeal
under section 14-10-119, C.R.S. 2025, due to the disparity in the
parties’ earning capacities and financial resources. See In re
Marriage of Collins, 2023 COA 116M, ¶ 49 (“To ensure that a party
does not suffer undue economic hardship from the proceedings in a
dissolution of marriage case,” section 14-10-119 permits the court
to “order a party to pay a reasonable amount for the other party’s
attorney fees and costs based on the parties’ relative economic
circumstances.”). The trial court is better positioned than an
appellate court to consider the factual issues regarding the parties’
current financial resources. Therefore, we direct the trial court to
address wife’s request for appellate attorney fees on remand. See
C.A.R. 39.1; Collins, ¶ 86.
28 ¶ 53 The trial court should also address the parties’ requests for
appellate costs under C.A.R. 39. See C.A.R. 39(a)(4) (“[I]f a
judgment is affirmed in part [and] reversed in part, . . . costs are
taxed only as ordered by the trial court.”).
IV. Disposition
¶ 54 We affirm the portion of the trial court’s permanent orders that
allocated husband’s pension by using the deferred distribution
method. We reverse the portion of the orders concerning
maintenance and child support. The case is remanded to the trial
court for further proceedings consistent with this opinion.
¶ 55 In particular, on remand, the court shall reconsider
maintenance and child support based on the parties’ circumstances
at the time of the remand proceedings. The court shall also
incorporate into its judgment husband’s stipulation concerning the
full survivor benefit for wife on his pension. And the court shall
address wife’s request for appellate attorney fees under section 14-
10-119 and the parties’ requests for appellate costs.
JUDGE KUHN and JUDGE SCHUTZ concur.