In Re the Marriage of Renier

854 P.2d 1382, 17 Brief Times Rptr. 717, 1993 Colo. App. LEXIS 130, 1993 WL 143698
CourtColorado Court of Appeals
DecidedMay 6, 1993
Docket92CA0120
StatusPublished
Cited by13 cases

This text of 854 P.2d 1382 (In Re the Marriage of Renier) 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 Renier, 854 P.2d 1382, 17 Brief Times Rptr. 717, 1993 Colo. App. LEXIS 130, 1993 WL 143698 (Colo. Ct. App. 1993).

Opinion

Opinion by

Judge TAUBMAN.

In this dissolution of marriage action, Kathleen J. Renier (wife) appeals the judgment for property division, maintenance, and attorney fees. We reverse and remand for further proceedings.

Wife and James H. Renier (husband) were married in 1986 and had one child. The marriage was dissolved in 1991.

I.

Wife first contends that the trial court erred in determining the number of stock shares and options which were marital property. Specifically, she contends that the court improperly calculated the parties’ marital property without requiring hus *1384 band to trace his ownership of stocks and options he owned at the time of the marriage and without properly classifying particular stock shares and options as marital or separate property. We agree.

Husband owned 1,534 shares of stock in his employer’s company at the time of the marriage. Husband gained an additional 1,534shares from a 1986 stock split after the marriage.

Husband also owned 2,750 stock options in his employer’s company at the time of the marriage. As a result of the same stock split, the options became options for 5,500 shares of stock in 1986. It is undisputed that the parties used marital funds to exercise these 5,500 options during the marriage. It is also undisputed that additional shares of stock in the same company were bought and sold during the marriage.

A.

In support of the trial court’s judgment, husband contends that both the original 1,534shares and the additional 1,534 shares gained from the 1986 stock split were his separate property. We agree with husband in part.

Husband testified that he still had ■certificates for the original 1,534 shares solely in his name at the time of the dissolution. Therefore, contrary to wife’s contention, those shares were properly considered his separate property, except to the extent the shares appreciated in value during the marriage. See § 14-10-113(4), C.R.S. (1987 Repl.Vol. 6B); In Re Marriage of Wildin, 39 Colo.App. 189, 563 P.2d 384 (1977).

According to husband, his 1,534 shares gained from the 1986 stock split were also his separate property, since they were in effect property “acquired in exchange for property acquired prior to the marriage_” Section 14-10-113(2)(b), C.R.S. (1987 Repl.Vol. 6B). Here, when husband’s stocks underwent a two for one split, he was able to transmute his 1,534 shares into 3,068 shares.

A stock split does not increase the shareholder’s ownership rights in a corporation. See In re Marriage of Smith, 86 Ill.2d 518, 56 Ill.Dec. 693, 427 N.E.2d 1239 (1981). Thus, apart from the issue of appreciation in value during the marriage, the additional 1,534shares potentially could be classified as husband’s separate property.

However, to retain its separate character, premarital property must be traceable to specific assets. In re Marriage of Stedman, 632 P.2d 1048 (Colo.App.1981).

Here, husband did not trace the additional 1,534 shares to the original 1,534 shares he owned at the time of the marriage. Rather, he combined those shares with other shares acquired during the marriage and many of the combined shares were sold. Contending that it was unnecessary for him to trace the shares received in the stock split to the shares remaining as of the date of the hearing, husband presented no evidence to demonstrate which of the shares still remained.

In the absence of evidence tracing these shares, we conclude that the additional 1,534shares obtained through the stock split after the marriage should not have been set apart to husband as his separate property.

B.

We turn now to consideration of husband’s 2,750 options owned at the time of the marriage.

Although husband concedes that the 1981 options were exercised during the marriage, he contends that the trial court properly determined that the 5,500 shares obtained by their exercise remained his separate property. We disagree.

First, he asserts that since certificates for those stocks were issued in his name alone, the stocks were his separate property. However, this is not determinative.

Section 14-10-113(3), C.R.S. (1987 Repl. Vol. 6B) establishes a presumption that all property acquired by either spouse subsequent to the marriage is marital, “regardless of whether title is held individually or by the spouses in some form of co-owner *1385 ship.... ” Thus, that the stock certificates were in his name alone is not dispositive.

Second, husband maintains that since the 1981 options were his separate property, the stocks acquired by exercise of the options necessarily remained his separate property. However, the record reveals it to be undisputed that husband used marital funds to exercise the 1981 options.

Stated otherwise, husband did not show that he used his separate property, such as money he received from an inheritance, to exercise the options. Had he done so, husband might have been able to establish that the stocks acquired through the exercise of the 1981 options had retained their character as his separate property. In the absence of such evidence, it is presumed that these 5,500 shares of stock were marital property.

On remand, the trial court is directed to reconsider the division of the shares, first setting apart to husband the premarital value of his 1,534 shares owned at the time of the marriage and then equitably distrib-' uting the marital increase in value of those shares and the remaining shares and options. The trial court may consider the parties’ respective economic circumstances at the time of any hearing on remand for the purpose of equitably dividing the property. See In re Marriage of Wells, 850 P.2d 694 (Colo. No. 92SC113 April 12, 1993).

II.

We do not address wife’s arguments, raised for the first time on appeal, that 4,000 shares sold during the marriage and 962 shares held in trust for husband’s child from a previous marriage should also be deemed marital property. See First National Bank v. Union Tavern Corp., 794 P.2d 261 (Colo.App.1990).

III.

Wife next contends that the trial court abused its discretion in failing to award maintenance and attorney fees to her. We agree that the issues must be reconsidered on remand.

Awards of property, maintenance, and attorney fees are interrelated. Because the order for property division has been reversed, the issues of maintenance and attorney fees must be reconsidered as well. See In re Marriage of Jones, 627 P.2d 248

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854 P.2d 1382, 17 Brief Times Rptr. 717, 1993 Colo. App. LEXIS 130, 1993 WL 143698, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-renier-coloctapp-1993.