Marriage of Babson

• Court: Colorado Court of Appeals
• Decided: July 31, 2025
• Docket: 24CA1134
• Status: Unpublished

Opinion

24CA1134 Marriage of Babson 07-31-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA1134 Arapahoe County District Court No. 22DR31039 Honorable Frank Moschetti, Magistrate

In re the Marriage of

Kevin Babson,

Appellant and Cross-Appellee,

and

Kristin Babson,

Appellee and Cross-Appellant.

JUDGMENT AFFIRMED IN PART AND REVERSED IN PART, AND CASE REMANDED WITH DIRECTIONS

Division VII Opinion by JUDGE LIPINSKY Lum and Taubman*, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced July 31, 2025

Warren Domangue, Littleton, Colorado, for Appellant and Cross-Appellee

Feingold Horton, PLLC, Jennifer Feingold, Sarah Quinlan, Greenwood Village, Colorado, for Appellee and Cross-Appellant

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2024. ¶1 Petitioner, Kevin Babson (husband), appeals the permanent

orders entered in this dissolution of marriage action between him

and respondent, Kristin Babson (wife). Wife cross-appeals the

district court’s division of marital property. We affirm the judgment

in part, reverse it in part, and remand for the court to recalculate

the value of the marital estate and to revise its division of marital

property.

I. Background

¶2 Husband filed the petition for dissolution of marriage in this

case in August 2022. Husband and wife were parties to an earlier

dissolution of marriage case (the 2016 case) that was voluntarily

dismissed. The parties entered into a separation agreement (the

2016 separation agreement) in the 2016 case.

¶3 The court conducted a permanent orders hearing in this case

on September 5, 2023. On August 31, in preparation for the

permanent orders hearing, the parties filed a joint trial management

certificate that reflected their disagreement regarding the marital

value of certain assets, including the following:

• E*Trade investment account x2715 (account 2715);

1 • a property on East Ellsworth Avenue in Denver (the

Ellsworth property);

• a property on East Aberdeen Avenue in Englewood (the

Aberdeen property);

• husband’s E*Trade individual retirement account x7021

(account 7021); and

• a property on East Luke Avenue in Phoenix, Arizona (the

Arizona property).

Each party also filed property and debt division spreadsheets.

¶4 The court announced its ruling on property distribution and

other matters from the bench at a hearing conducted on December

1, 2023. The court adopted the transcript of that hearing as its

permanent orders. On June 3, 2024, the court entered a decree of

dissolution of marriage.

¶5 Husband asserts four contentions on appeal: the court (1)

clearly erred by finding that account 2715 had a marital value of

$834,349.06; (2) clearly erred by finding that wife owned a 32%

interest in the Ellsworth property, determining it had a marital

value of only $85,128, and awarding it to wife; (3) erred because it

did not award husband the value of his premarital interest in the

2 Aberdeen property; and (4) abused its discretion by dividing the

home equity line of credit (HELOC) on the Aberdeen property

equally between the parties.

¶6 On cross-appeal, wife argues that the court erred by including

in its calculation of the property division a $55,000 reduction in the

value of husband’s interest in account 7021 after the parties’

marriage and by finding no marital interest in the Arizona

property’s appreciation in value. In addition, wife requests an

award of her appellate attorney fees and costs pursuant to C.A.R.

39.1 and section 13-17-102, C.R.S. 2024.

II. Analysis

A. Husband’s Appellate Arguments

1. The Court Did Not Err in Assigning Account 2715’s Marital Value

¶7 Husband contends that the court erred by finding that

account 2715 had a marital value of $834,349.06 and should have

assigned it a marital value of $37,505.45. We agree with the first

contention but not with the second.

3 a. Additional Facts

¶8 The court said in the permanent orders that the marital value

of account 2715 was $834,349.06. Both parties agreed that this

number was erroneous.

¶9 On June 10, 2024, wife filed a C.R.C.P. 60(a) motion (the Rule

60(a) motion) to correct what she described as a typographical error

in the court’s determination of the marital value of account 2715.

Wife said the correct figure was $86,349.06.

¶ 10 She documented that number in a joint spreadsheet (the reply

spreadsheet) that she submitted together with her reply in support

of the Rule 60(a) motion. Scott Saltzman, wife’s forensic accountant

and valuation expert, had testified at the permanent orders hearing

that the marital value of account 2715 was $86,349.06.

¶ 11 Eleven days after husband filed his opening brief in this

appeal — on November 15, 2024 — the court granted the Rule 60(a)

motion and revised the marital value of account 2715 to

$86,349.06. Wife filed her opening-answer brief in this appeal on

December 17.

4 b. Standard of Review

¶ 12 “It is within the trial court’s discretion to choose the valuation

of one party over the other, or to arrive at its own reasonable

determination of value.” In re Marriage of Nordahl, 834 P.2d 838,

842 (Colo. App. 1992). “Unless the trial court’s findings are clearly

erroneous, its valuation is binding on review.” Id.

¶ 13 “It is the responsibility of the trial court as the trier of fact to

determine the credibility of the witness[es] and the sufficiency,

probative effect, and weight of the evidence. That determination will

not be disturbed on review unless the findings of the trial court are

manifestly erroneous.” In re Marriage of Hoyt, 742 P.2d 963, 964

(Colo. App. 1987).

c. The Court Did Not Err by Revising Its Valuation of Account 2715 to $86,349.06

¶ 14 Because the court corrected the error in its initial valuation of

account 2715, husband’s argument that the court clearly erred by

finding that account 2715 had a marital value of $834,349.06 is

moot. See In re Marriage of Salby, 126 P.3d 291, 301 (Colo. App.

2005) (“An issue is moot when a judgment, if rendered, would have

no practical legal effect upon the existing controversy.”).

5 ¶ 15 Husband further asserts that the court should have assigned

a marital value of $37,505.45 to account 2715. But husband does

not explain how the court abused its discretion by assigning a

marital value of $86,349.06 to account 2715 when it corrected its

typographical error. Rather, he merely asserts that the court erred

by not accepting the opinion testimony of Dan Powers, husband’s

accounting expert, that account 2715 had a marital value of

$37,505.45.

¶ 16 However, the court accepted Saltzman’s marital valuation of

account 2715 over Powers’s calculation after finding that Saltzman

was more credible than Powers. The court said Saltzman was “the

expert [it] put more authority in, as opposed to [Powers] . . .

[because Saltzman], with his experience, utilized proper procedures

to do the evaluations and those [were] the ones that [the court]

adopted.” Husband ignores the court’s finding that Saltzman was

more credible than Powers. For these reasons, we may not disturb

the court’s findings on the experts’ credibility. See Marriage of

Hoyt, 742 P.2d at 964.

¶ 17 Thus, the court did not clearly err by assigning account 2715

a marital value of $86,349.06.

6 2. The Court Did Not Err by Finding that Wife Owned a 32% Interest in the Ellsworth Property, and That It Had Only $85,128 in Marital Value

¶ 18 We disagree with husband’s assertions regarding the Ellsworth

¶ 19 The 2016 separation agreement specifies that “[w]ife owns a

32% interest” in the Ellsworth property “along with her family” and

“[h]usband waives any and all interest in this property.” The

parties do not dispute that a trust for wife’s family, the Arch Family

Trust, acquired the Ellsworth property before the parties married.

¶ 20 The court found that the evidence supported wife’s position

that she owned a 32% interest in the Ellsworth property and

rejected husband’s assertion that wife owned 100% of such

property. The court assigned a marital value of $85,128 to the

Ellsworth property. The court based its findings on Saltzman’s

testimony and the language of the 2016 separation agreement.

¶ 21 Husband contends that the court clearly erred by finding that

wife had a 32% ownership interest in the Ellsworth property and

that the property had a marital value of $85,128, as no evidence

supported such findings. He argues that the court improperly

relied on the language of the 2016 separation agreement addressing

7 the Ellsworth property because the 2016 separation agreement,

which the parties executed during the pendency of the 2016 case,

“was never made an order of the court.”

¶ 22 We do not need to decide whether the 2016 separation

agreement is an enforceable contract or order because other

evidence in the record supports the court’s finding that wife had a

32% ownership interest in the Ellsworth property. The evidence

showed that the Ellsworth property was titled in the Arch Family

Trust’s name, wife paid her father a portion of the rent received

from the Ellsworth property each month, and regardless of the

enforceability of the 2016 separation agreement, it showed that the

parties at one time agreed that wife owned 32% of such property.

(Because husband does not challenge the admission of the 2016

separation agreement into evidence, we do not consider whether it

was inadmissible under CRE 408.)

¶ 23 Husband also argues that the court’s findings regarding the

Ellsworth property were clearly erroneous because the parties

reported 100% of the rental income generated from the Ellsworth

property on the tax returns they filed jointly during the marriage.

But husband admitted that wife “paid her dad . . . every month

8 after [the parties] collected” rent from the Ellsworth property. The

record indicates that wife’s father was a beneficiary of the Arch

Family Trust. Husband’s concession undercuts his argument that

wife owned 100% of the Ellsworth property.

¶ 24 In addition, husband attacks the court’s findings regarding the

Ellsworth property because, even though his “attorney repeatedly

asked for documentation to verify” that wife owned a 32%

ownership interest in the Ellsworth property, wife never provided

such documentation. But husband does not point to any place in

the record where he brought this discovery dispute to the court’s

attention. “Defenses and objections raised for the first time on

appeal are not properly before this court and may not be considered

by us, as they are deemed to have been waived.” In re Marriage of

Christen, 899 P.2d 339, 344 (Colo. App. 1995). Thus, we will not

consider the alleged discovery dispute that husband asserts for the

first time on appeal.

¶ 25 For these reasons, we hold that the court correctly determined

that wife owned a 32% interest in the Ellsworth property and that

the property’s marital value was $85,128.

9 3. The Court Did Not Abuse Its Discretion by Not Awarding Husband the Value of His Premarital Interest in the Aberdeen Property

¶ 26 We next turn to the first of the parties’ disputes regarding the

Aberdeen property — whether the court erred by not awarding

husband the value of his premarital interest in the Aberdeen

¶ 27 “In general, the court has broad discretion to determine an

equitable division of the marital assets and debts, and we won’t

disturb its decision absent a showing that the court abused that

discretion.” In re Marriage of Capparelli, 2024 COA 103M, ¶ 7, 561

P.3d 417, 421.

¶ 28 The critical evidence regarding this issue was husband’s

transfer of title from sole ownership of the Aberdeen property to

joint ownership with wife. The record showed that husband

purchased the Aberdeen property in January 2006, the parties

married in December of that year, and husband changed the title to

joint ownership in June 2007. (We note that the court incorrectly

said that the Aberdeen property became marital property six

months after husband purchased it. The record shows that the

property became marital six months after the parties married. The

10 court’s misstatement, however, does not affect its conclusion that

the evidence did not support husband’s argument that he had a

$121,926 separate interest in the Aberdeen property.) The

Aberdeen property was the parties’ primary marital residence.

¶ 29 The parties stipulated on September 5, 2023, that the

Aberdeen property had an appraised value of $589,000 as of the

date of the marriage and a present appraised value of $1,269,000.

¶ 30 The court disagreed with husband that it should award him

his premarital interest in the Aberdeen property, found a marital

value of $926,360, and awarded the property to wife.

¶ 31 Section 14-10-113(7)(a), C.R.S. 2024, says,

For purposes of [the division of marital property], except with respect to gifts of nonbusiness tangible personal property, gifts from one spouse to another, whether in trust or not, shall be presumed to be marital property and not separate property. This presumption may be rebutted by clear and convincing evidence.

“[W]hen one spouse causes title to be placed jointly with the other

spouse a gift is presumed and the burden to show otherwise is

upon the donor.” In re Marriage of Moncrief, 535 P.2d 1137, 1138

(Colo. App. 1975).

11 ¶ 32 The record shows that, at the time of the permanent orders

hearing, the Aberdeen property was titled in the names of both

parties as joint owners, and the parties maintained it with marital

funds. We presume that husband gifted an interest in the

Aberdeen property to wife when he caused title to be placed jointly

with wife, and it then became marital property. See Marriage of

Moncrief, 535 P.2d at 1138.

¶ 33 Husband neither addresses Marriage of Moncrief nor cites any

evidence to defeat the presumption that, by causing title to the

Aberdeen property to be placed jointly with wife, he intended to

effect a gift to the marital estate. See In re Marriage of Stumpf, 932

P.2d 845, 848 (Colo. App. 1996) (concluding that, “in the absence of

appropriate evidence that the property was excluded from being

marital property by a valid agreement of the parties,” a transfer

during the marriage from one spouse’s sole ownership to joint

tenancy “must be understood as evidencing an intention to transfer

the property to the marital estate”); see also Marriage of Capparelli,

¶ 16, 561 P.3d at 423.

12 ¶ 34 For these reasons, we conclude that the court did not abuse

its discretion by not awarding husband his premarital interest in

the Aberdeen property.

4. The Court Did Not Abuse Its Discretion by Ordering the Parties to Equally Divide the HELOC

¶ 35 Our determination that the Aberdeen property was marital

property informs our analysis of the court’s decision to equally

divide the HELOC.

¶ 36 A “court should not assign marital liabilities disproportionately

to one spouse,” but such rule “cannot be read to require a

mathematically equal division of marital debt.” In re Marriage of

Wright, 2020 COA 11, ¶ 9, 459 P.3d 757, 760. Instead, the

“distribution must be just and equitable” but not “necessarily

equal.” In re Marriage of McGinnis, 778 P.2d 281, 284 (Colo. App.

1989). “In reviewing a trial court’s division of property, we

recognize that the trial court has great latitude to effect an equitable

distribution based upon the facts and circumstances of each case.”

In re Marriage of Balanson, 25 P.3d 28, 35 (Colo. 2001).

¶ 37 Because the HELOC was jointly titled, the court found it was a

marital debt and ordered the parties to split it equally.

13 ¶ 38 Husband contends that the court abused its discretion by

ordering the parties to split the HELOC, but he does not provide

any supporting evidence. Rather, the record shows that the HELOC

was the only contested debt that the court ordered the parties to

divide equally. For example, the court rejected wife’s request to

consider wife’s loan from her parents as marital debt because the

evidence was “insufficient to establish that [debt] as a loan.”

¶ 39 In addition, husband argues that splitting the HELOC equally

was inequitable. The record shows, however, that the court did not

assign marital liabilities disproportionately to husband. The reply

spreadsheet illustrates that the court’s equal split of the HELOC

was equitable in light of the court’s designation of $2,188,070.25 in

assets as husband’s separate property and $161,306 as wife’s

separate property. Further, the parties waived spousal

maintenance, indicating that each party had sufficient property to

satisfy his or her respective reasonable needs. See In re Marriage of

Bartolo, 971 P.2d 699, 701 (Colo. App. 1998).

¶ 40 Because the Aberdeen property was joint property and the

HELOC was jointly titled, the court did not clearly err by finding

14 that the HELOC was a marital debt and did not abuse its discretion

by ordering the parties to divide it equally.

B. Wife’s Arguments in Her Cross-Appeal

1. The Court Erred by Using a Negative Value for Account 7021 in Dividing the Marital Property

¶ 41 We next turn to wife’s argument that the court erred by

considering the post-marital decrease in the value of account 7021

in determining the property distribution.

¶ 42 “We give deference to the court’s findings of fact but review de

novo its application of governing legal standards and legal

conclusions.” In re Marriage of Connerton, 260 P.3d 62, 65 (Colo.

App. 2010).

¶ 43 Account 7021 was husband’s separate property because he

inherited it during the marriage. See § 14-10-113(2)(a) (explaining

that, although “marital property” is “all property acquired by either

spouse subsequent to the marriage,” property “acquired by gift,

bequest, devise, or descent” is separate property).

¶ 44 A court must not consider the post-marital decrease in the

value of separate property when valuing the marital estate. In re

Marriage of Burford, 950 P.2d 682, 685 (Colo. App. 1997). Once the

15 court has determined the value of the marital estate, it should

“consider whether the overall value of the spouse’s entire ‘separate

property’ has been subject to an increase or decrease in value, or

whether that property has been depleted for marital purposes, so as

to determine an equitable and just division of the marital estate.”

Id.

¶ 45 In the permanent orders, the court said,

As to [account 7021], all premarital value to [h]usband, [its] lost value, down approximately $55,000, which, contrary to [w]ife’s assertion, I believe should be offset, as that loss accrued during the marriage, so it is negative marital value, if you will. So $55,000 from the 7021 account shall be assessed in the total values we’re dealing with.

We agree with wife that the court erred by considering account

7021’s decrease in value when valuing the marital estate. See id.

The court may nonetheless consider such decrease in value after it

has otherwise divided the marital property. See id.

¶ 46 Husband asserts, without explanation or analysis, that

Marriage of Burford does not apply to retirement accounts, such as

account 7021. But he does not develop this argument; therefore,

we do not consider it on the merits. See In re Marriage of Wiggs,

16 2025 COA 10, ¶ 45, 566 P.3d 1032, 1041 (declining to consider

undeveloped argument).

¶ 47 Because we conclude that the court erred by considering

account 7021’s $55,000 post-marital decrease in value when it

valued the marital estate, we remand for the court to recalculate the

marital estate’s value without considering account 7021’s

diminution in value.

2. The Court Erred by Finding There Was No Marital Interest in the Appreciation in the Value of the Arizona Property

¶ 48 Wife argues that, contrary to the court’s reasoning, her

execution of a quitclaim deed to enable husband to refinance the

Arizona property did not result in a waiver of her marital interest in

such property’s appreciation in value. We agree.

¶ 49 Husband inherited the Arizona property during the marriage.

It was separate property at the time he acquired it.

§ 14-10-113(2)(a). Wife argued that the Arizona property’s

$640,500 appreciation in value was marital property under section

14-10-113(1)(d), which explains that the court must consider “[a]ny

increases . . . in the value of the separate property of the spouse

during the marriage” when dividing the marital property. Husband

17 responded that, because wife had “waived her interests in the

property years ago via quitclaim deed,” there was “no marital

interest” in the Arizona property.

¶ 50 The parties do not dispute that wife executed the quitclaim

deed to facilitate husband’s refinancing of the Arizona property.

The quitclaim deed states that wife “has no right, title, interest,

claim or lien of any kind or nature whatsoever in, to or against” the

Arizona property.

¶ 51 In general, any “appreciation of a spouse’s separate property

during the marriage is marital property subject to equitable

division.” In re Marriage of Krejci, 2013 COA 6, ¶ 13, 297 P.3d

1035, 1038. A spouse can overcome the marital property

presumption by establishing that the parties agreed to exclude that

property from the marital estate. See § 14-10-113(2)(d) (“Property

excluded by valid agreement of the parties” is not marital property.);

Marriage of Bartolo, 971 P.2d at 700.

¶ 52 The “valid agreement[s]” referenced in section 14-10-113(2)(d)

are limited to “marital agreement[s].” In re Marriage of Blaine, 2021

CO 13, ¶¶ 18-21, 28, 480 P.3d 691, 695-96. A “[m]arital

agreement” is “an agreement between spouses who intend to remain

18 married which affirms, modifies, or waives a marital right or

obligation during the marriage or at legal separation, marital

dissolution, death of one of the spouses, or the occurrence or

nonoccurrence of any other event.” § 14-2-302(2), C.R.S. 2024. “A

. . . marital agreement must be in a record and signed by both

parties,” § 14-2-306, C.R.S. 2024, and is ineffective unless signed

by both parties, § 14-2-307, C.R.S. 2024. Thus, a document signed

by only one spouse is not a “[m]arital agreement.” See

§ 14-2-302(2). For this reason, in Marriage of Blaine, the supreme

court decided that “a spouse’s conveyance of his interest in a home

through an interspousal transfer deed . . . [does not] automatically

overcome[] the presumption of marital property.” Marriage of

Blaine, ¶ 1, 480 P.3d at 692.

¶ 53 The supreme court held in Marriage of Blaine that the wife’s

interspousal transfer deed was not a “marital agreement” because

both parties had not signed it. Id. at ¶¶ 20-21, 480 P.3d at 695.

The court underscored that “a party may overcome the [statutory]

marital property presumption . . . only through the four exceptions

set forth in section 14-10-113(2)(a)-(d).” Id. at ¶ 28, 480 P.3d at

696. The supreme court noted that section 14-10-113 does not

19 contain an exception for “deed[s] conveying [the marital] property

from one spouse to the other as separate property” even if “there is

also evidence of the conveying spouse’s intent to exclude the

property.” Id. at ¶ 21, 480 P.3d at 695 (quoting In re Marriage of

Blaine, 2019 COA 164, ¶ 14, 486 P.3d 358, 361).

¶ 54 In addition, Marriage of Bartolo does not support husband’s

argument that, by executing the quitclaim deed, wife waived her

marital interest in the Arizona property’s appreciation in value. In

that case, the husband contended that the court “erred in finding

that he had made a gift to wife by conveying his interest in [a]

residence to her.” Marriage of Bartolo, 971 P.2d at 700.

¶ 55 The division disagreed and concluded that the husband had

overcome the marital property presumption. However, the division

rested its conclusion on the district court’s finding, by “clear and

convincing” evidence, that the husband had intended to make a gift

to the wife. Id. at 700-01.

¶ 56 The court did not make such finding in this case. Rather,

contrary to Marriage of Bartolo, the court concluded that the

quitclaim deed, which wife alone executed, without more, supported

20 husband’s argument that the Arizona property’s appreciation in

value was not marital.

¶ 57 We conclude that the court erred because the quitclaim deed

was not a marital agreement, as only wife signed it. See

§ 14-2-302(2); Marriage of Blaine, ¶ 21, 480 P.3d at 695.

Accordingly, on remand, the court must include the $640,500

appreciation in the value of the Arizona property in its allocation of

marital property.

3. Wife’s Request for Attorney Fees and Costs

¶ 58 Wife requested that we order husband to contribute to her

appellate attorney fees and costs under C.A.R. 39.1 and section

13-17-102. We deny her request.

¶ 59 Husband’s argument in his opening brief regarding account

2715 did not lack substantial justification because he filed it before

the court addressed the typographical error identified in the Rule

60(a) motion. The court mooted husband’s argument when it

corrected the marital value of account 2715 in the permanent

orders. Therefore, husband’s argument regarding account 2715 did

not, as wife contends, “needlessly expand[] the time and fees [she]

incurred in this appeal.”

21 III. Disposition

¶ 60 The judgment is affirmed in part, reversed in part, and

remanded for the court to recalculate the division of marital

property without considering account 7021’s diminution in value

and to include the appreciation in the value of the Arizona property

as marital property in its property allocation.

JUDGE LUM and JUDGE TAUBMAN concur.