In re the Marriage of Jorgenson

143 P.3d 1169, 2006 Colo. App. LEXIS 1284, 2006 WL 2291158
CourtColorado Court of Appeals
DecidedAugust 10, 2006
DocketNo. 05CA0212
StatusPublished
Cited by489 cases

This text of 143 P.3d 1169 (In re the Marriage of Jorgenson) is published on Counsel Stack Legal Research, covering Colorado Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re the Marriage of Jorgenson, 143 P.3d 1169, 2006 Colo. App. LEXIS 1284, 2006 WL 2291158 (Colo. Ct. App. 2006).

Opinion

Opinion by

Judge TAUBMAN.

In this dissolution of marriage proceeding, Randy W. Jorgenson (husband) appeals from the property division entered as part of the trial court’s permanent orders. We reverse and remand for further proceedings.

Husband and Rosanne R. Jorgenson (wife) were married for approximately twenty-seven years. In 2001, wife received a personal injury settlement in the amount of $1.9 million to compensate her for heart damage caused by a prescription drug. Most of the marital assets, including the marital residence, were purchased with the settlement proceeds. The parties also spent $171,000 to start a business known as All Tune and Lube. The remaining funds, in excess of $1 million, were either lost in the stock market or spent by the parties. Of those funds, the court determined that husband had withdrawn, transferred, or concealed $217,099.90 and that he failed to show the funds were used either for necessities or in the ordinary course of business.

In January 2004, husband stopped making payments on the business lease for All Tune and Lube. In June 2004, he sold the business assets, effectively negating the parties’ prior stipulation to list the business for sale. The court noted that the parties were being sued by the lessor and found that despite wife’s personal guarantee of the lease, she had not been involved in the management or operation of the business. The court also found that husband had funds available to him to make more payments on the lease than he did.

The trial court included the value of the assets dissipated by husband in the marital estate, ordered some assets to be sold, and then divided the marital assets equally. However, because of husband’s unilateral action in stopping payment on the lease and related actions, the trial court imposed sole liability upon him to satisfy any judgment or settlement entered against the parties relating to the lease dispute.

I. Classification of Potential Marital Liability

Husband first contends that the property division must be set aside because the trial court erred by not classifying the potential marital liability associated with the lawsuit. We find no error.

The initial step a court must make in evaluating a marital estate for distribution is to determine whether an asset is marital, that is, acquired during the marriage and [1172]*1172subject to division, or separate property, which is shielded from distribution. Section 14-10-113, C.R.S.2005; In re Marriage of Dale, 87 P.3d 219 (Colo.App.2003). Allocation of marital debts is in the nature of property division. In re Marriage of Burford, 26 P.3d 550 (Colo.App.2001). Thus, debts, as well as assets, must be classified as marital or separate.

Marital liabilities include all debts that are acquired and incurred by a husband and wife during their marriage. In re Marriage of Speirs, 956 P.2d 622 (Colo.App.1997).

Here, the trial court specifically determined that the personal injury settlement proceeds constituted marital property, and it was undisputed that the business was started with a portion of those funds. The court also divided the business bank accounts and the proceeds from the sale of the business equipment as marital assets and rejected as inequitable husband’s proposal that wife share fifty percent of the potential liability for the lease default.

Thus, although the trial court did not specifically classify the lease obligation as a marital debt, it is clear from the undisputed facts and the trial court’s order that the debt was marital and treated as such in the property division. See In re Marriage of Dale, supra (property acquired by either spouse during the marriage is presumed marital, as is the appreciation in the value of separate property and any income produced by separate assets during the marriage).

II. Valuation of Potential Liability

Husband next contends that the trial court erred by not valuing the potential lease liability. We agree and conclude that additional findings regarding this issue are necessary.

Once property has been deemed to be marital, the court must value it. In re Marriage of Zappanti, 80 P.3d 889 (Colo.App.2003).

That principle applies to marital debt, which must be valued in the same way marital property is valued. Ordinarily, the trial court must compute the total amount of the parties’ debts and must determine the date of valuation under the rules that apply to the valuation of marital property. See § 14-10-113(5), C.R.S.2005 (property should be valued as of the date of the decree or as of the date of the hearing on disposition of property if such hearing precedes the date of the decree of dissolution).

An obligation to guarantee the debt of another should not be considered at all when the chance of liability is so small as to be speculative. However, if there is a quantifiable likelihood of liability, the obligation should be valued at its face amount times the percentage chance of liability. 2 Brett R. Turner, Equitable Distribution of Property § 6.98, at 520 (3d ed.2005) (citing Blackstone v. Blackstone, 288 Ill.App.3d 905, 224 Ill.Dec. 90, 681 N.E.2d 72 (1997)).

Here, no party disputes that the lessor has pursued litigation or that lease payments were not made. Wife also testified that the parties were being sued for missed payments of $48,743.27, as well as penalties, interest, attorney fees, and the balance due for the remainder of the lease period, which was approximately $250,000. Under these circumstances, the trial court could not reasonably disregard the potential liability as speculative.

We recognize that a personal guaranty may pose significant valuation problems given the contingent nature of the debt. Therefore, on remand, the court may obtain guidance by looking to the accepted methods of valuation and distribution for other contingent property interests, such as pensions and trusts.

The three methods of distribution for pension benefits are net present value, deferred distribution, and reserve jurisdiction. In re Marriage of Hunt, 909 P.2d 525 (Colo.1995). Under the net present value method, the trial court should consider a number of factors, including certain risks, and accord a present value to the future benefit, or in this case, the future liability, which will then be allocated between the parties immediately and may involve an offset against other property or debt in the [1173]*1173marital estate. See In re Marriage of Riley-Cunningham, 7 P.3d 992 (Colo.App.1999).

The remaining two methods involve a delay in distribution. Under the deferred distribution approach, the parties’ percentage share is determined at the time of permanent orders, but is applied later when the benefit is received.

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Bluebook (online)
143 P.3d 1169, 2006 Colo. App. LEXIS 1284, 2006 WL 2291158, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-jorgenson-coloctapp-2006.