23CA0720 Marriage of Bolton 11-14-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA0720 Jefferson County District Court No. 17DR30236 Honorable Lily W. Oeffler, Judge
In re the Marriage of
Stacey Bolton, n/k/a Stacey Stafford,
Appellee,
and
Michael K. Bolton,
Appellant.
JUDGMENT AFFIRMED AND CASE REMANDED WITH DIRECTIONS
Division I Opinion by JUDGE J. JONES Lipinsky and Sullivan, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced November 14, 2024
The Harris Law Firm PLLP, Katherine O. Ellis, Denver, Colorado, for Appellee
Feingold Horton, PLLC, Frances C. Fontana, Greenwood Village, Colorado, for Appellant ¶1 In this post-dissolution of marriage proceeding involving
Michael K. Bolton (father) and Stacey Bolton, now known as Stacey
Stafford (mother), father appeals the district court’s post-decree
orders on spousal maintenance modification, child support
modification, and attorney fees. We affirm.
I. Background
¶2 Mother petitioned to end the parties’ twenty-four-year
marriage in 2017. The next year, the district court entered a
dissolution decree and permanent orders. This case arises out of
two post-decree motions filed by father: one to modify parenting
time and decision-making responsibility regarding the parties’
children and the other to modify spousal maintenance and child
support.
¶3 The court denied the first motion and awarded wife her
attorney fees incurred in responding to that motion under section
14-10-119, C.R.S. 2024. Father appealed the award of attorney
fees. A division of this court reviewed the attorney fees award and
remanded for additional findings on the parties’ overall economic
circumstances. In re Marriage of Bolton, (Colo. App. No. 22CA0435,
May 4, 2023) (not published pursuant to C.A.R. 35(e)) (Bolton I).
1 ¶4 While that appeal was pending, father filed the second motion.
The district court denied that motion. It concluded that, as to
maintenance, no modification was appropriate in light of the
parties’ respective incomes. And as to child support, the court
determined that the $3,000 figure to which the parties had
stipulated for purposes of permanent orders remained appropriate
given the parties’ respective incomes and other relevant economic
circumstances.
¶5 Around the same time, as the prior division directed, the
district court entered an order on mother’s attorney fees incurred in
responding to father’s motion to modify parenting time and
decision-making authority. Taking into account evidence and
testimony the parties had submitted on father’s two motions, the
court made the following factual findings relevant to this appeal:
• Father was voluntarily underemployed, having accepted a
seventy percent salary reduction from his sole client.
• Father hadn’t conducted a good faith job search for
higher paying employment.
• Father’s imputed income remained $50,000 per month
based on past earnings.
2 • Mother should be awarded attorney fees because of the
disparity in the parties’ finances.
The court ordered father to pay half of mother’s fees.
II. Discussion
¶6 Father challenges the district court’s orders on spousal
maintenance, child support, and attorney fees. We affirm the
orders.
A. Maintenance Modification
¶7 Father contends that the district court erred by imputing
income to him in denying his request to modify spousal
maintenance. We don’t agree.
1. Additional Facts
¶8 Father worked as outside general counsel for a single client, a
corporation. He testified that his income from 2016 through 2019
was so high (about $80,000 per month) because during that time
the corporation was engaged in intense litigation involving the
father of one of the corporation’s chief executive officers, and that
his income was reduced in 2020 when commodity prices in the
corporation’s industry collapsed, culminating in a renegotiation of
his compensation agreement. He agreed to reduced compensation
3 of $25,000 per month as offered by his client. He also said that he
“constantly looked at other alternatives” of employment by routinely
checking for jobs and adding his name to legal placement service
email lists.
¶9 The district court found, however, that father could continue
to earn $50,000 per month — the amount the court had imputed to
father for permanent orders — but father “made a choice to make
significantly less than what he has made in the past and what he
was continuing to make.” Based on that conclusion, and others
discussed below, the court denied father’s motion.
2. Standard of Review and Applicable Law
¶ 10 We review a maintenance award for an abuse of discretion. In
re Marriage of Medeiros, 2023 COA 42M, ¶ 58. But whether a
spouse is voluntarily underemployed is a mixed question of fact and
law. In re Marriage of Garrett, 2018 COA 154, ¶ 9. We defer to the
district court’s factual findings if they have record support. In re
Marriage of Gibbs, 2019 COA 104, ¶ 9 (“We defer to the district
court’s factual findings unless they are clearly erroneous.” (citing In
re Marriage of Connerton, 260 P.3d 62, 66 (Colo. App. 2010))); In re
Marriage of Bowles, 916 P.2d 615, 617 (Colo. App. 1995) (the
4 district court’s resolution of conflicting evidence is binding on
review). We review questions of law de novo. In re Marriage of
Young, 2021 COA 96, ¶ 9.1
¶ 11 “Motions to modify are not considered under the same
standard as initial awards.” Id. at ¶ 16. Maintenance should only
be modified “upon a showing of changed circumstances so
substantial and continuing as to make the terms unfair . . . .”
§ 14-10-122(1)(a), C.R.S. 2024. The moving party “bears a heavy
burden of proving that the provisions have become unfair under all
relevant circumstances.” Young, ¶ 12.
¶ 12 “If a party is voluntarily unemployed or underemployed,
maintenance shall be calculated based on a determination of
potential income.” § 14-10-114(8)(c)(IV), C.R.S. 2024. Voluntary
underemployment means that a party is shirking a financial
obligation “by unreasonably for[]going higher paying employment
that he or she could obtain.” People v. Martinez, 70 P.3d 474,
1 Father asserts, in conclusory fashion, that the district court
applied the wrong legal standard. But he fails to develop this challenge in his brief. We don’t review conclusory assertions presented without supporting analysis and authority. People v. Brassill, 2024 COA 19, ¶ 64.
5 476-78 (Colo. 2003). Relevant factors may include the amount of
time spent seeking higher paying employment, whether the parent
has refused employment, whether jobs are available, prevailing
wage rates in the relevant industry, and the parent’s employment
experience and history. Id.
3. Father’s Voluntary Underemployment
¶ 13 Relying almost entirely on his own testimony, father argues
that the record doesn’t support the court’s finding that he is
voluntarily underemployed. But the district court considered that
testimony and nevertheless concluded that father was never “really
engaged in a job search.” The court found “no good-faith effort at
him attempting to find a job that in any way reflects his prior
earnings.” And the court found that father was, in effect, charging
his client an hourly rate far below what he had charged the same
client and what the market would bear, father could take on other
clients, father’s health didn’t affect his earning ability, and, given
his experience as a partner at law firms, he could obtain similar
employment paying a good deal more than $25,000 per month.
6 ¶ 14 Record evidence supports the district court’s findings.2 The
court considered father’s testimony concerning his health concerns
and his financial disclosures, assets, liabilities, and his historical
income approaching a million dollars annually. The court noted
instances of forgoing higher paying employment — father’s failure to
renegotiate his compensation with his sole client and his refusal to
take on additional clients as he had done in the past. The court
reviewed father’s sporadic and limited search for employment at the
income level he previously enjoyed — discussion with one family
business of a possible engagement and passive listings on websites.
And it noted that, when father did invest time in a job search, he
did so with limited effort. It also compared his current claimed
earnings of $25,000 per month to his historic income, including
earning $80,000 a month at the time of permanent orders.
Therefore, we conclude the court acted well within its discretion by
finding that father was voluntarily underemployed.
2 Though the court didn’t use the term “shirking,” its conclusion
that father was shirking was implicit. A court’s findings may be implicit in its ruling. See In re Marriage of Nelson, 2012 COA 205, ¶ 41. Still, it must make factual findings sufficient to support its determination. In re Marriage of Martin, 42 P.3d 75, 80 (Colo. App. 2002). The court did so.
7 4. Father’s Health
¶ 15 Father also argues that the district court’s decision to impute
income to him was erroneous because the court disregarded his
health concerns. We disagree.
¶ 16 Father had cancer in 2000. In 2016, he had a heart attack
and was diagnosed with cardiovascular disease. He was also
hospitalized in October 2022 for symptoms of an unknown origin
but was released the next day. Father testified that it was more
challenging for him to do his job as an attorney than it had been
because of these health concerns.
¶ 17 Father anticipated that he would be unable to ski his usual
thirty days during the 2022-2023 season due to his health. At the
very hearing at which his health concerns were discussed, however,
he said he had just returned from an overseas trip — working
significant hours abroad. And he was scheduled to board a plane
for another work trip the day after the hearing.
¶ 18 The district court concluded that $50,000 of imputed monthly
income remained an appropriate income figure after considering
father’s health concerns. The district court found that father was
able to work extraordinary hours from time to time, including the
8 days surrounding the hearing. And father hadn’t indicated that his
health concerns interfered with his ability to ski, just that they
might interfere going forward.
¶ 19 Under these circumstances, we can’t say that the district court
gave insufficient weight to father’s health-related testimony. See In
re Estate of Owens, 2017 COA 53, ¶ 22 (the weight to be given
particular testimony is entirely within the district court’s purview);
In re Marriage of Rahn, 914 P.2d 463, 465 (Colo. App. 1995) (an
appellate court may not reweigh the evidence).
B. Child Support Modification
¶ 20 Father next argues that the district court abused its discretion
by not modifying the child support obligation. Again, we disagree.
¶ 21 Mother and father stipulated — for purposes of the permanent
orders entered in 2018 — that father would pay mother $3,000 in
child support per month. At the time, the parties’ five children were
all under the age of majority. By the time father filed his motion in
2023, two were emancipated. After reviewing the child support
guidelines and the evidence concerning the parties’ financial
circumstances, the court determined that $3,000 per month
9 remained “a fair and equitable child support payment.” The record
shows that the court considered the following:
• Father’s imputed income remained $50,000 per month.
• Mother’s income from her work was $3,333 per month.
• Father’s maintenance obligation to mother had been
reduced by $3,000 per month per the permanent orders.
• Two children had reached the age of nineteen or above.
• Father no longer exercised overnight parenting time with
the children and his parenting time with them had
decreased over the years.
• The parties’ combined income significantly exceeded the
top gross income in the statutory child support schedule.
See § 14-10-115(7)(b), C.R.S. 2024. The court said that,
at the top end of the schedule, father’s obligation would
average $2,800 per month, taking into account the
children’s ages and changes in father’s maintenance
payments to mother. Extrapolating from the schedule
based on the parents’ combined income would yield a
figure “thousands of dollars higher.”
10 • The combined cost of the children’s food, shelter,
education, transportation, and recreation had increased
since dissolution.
• Mother pays for the children’s expenses aside from
healthcare.
• Mother had legitimately incurred significant debt.
• Mother’s attorney fees had been very high.
• Mother had needed to liquidate retirement assets.
• Father had liquidated assets.
¶ 22 We review a child support order for an abuse of discretion
because determinations regarding the parents’ financial resources
are factual in nature. In re Marriage of Balanson, 25 P.3d 28, 35
(Colo. 2001). A court abuses its discretion when its decision is
manifestly arbitrary, unreasonable, or unfair, or misapplies the
law. In re Marriage of Bergeson-Flanders, 2022 COA 18, ¶ 10. We
review de novo whether the district court applied the correct legal
standard. In re Marriage of Boettcher, 2018 COA 34, ¶ 6, aff’d,
2019 CO 81.
11 ¶ 23 “[P]rovisions of any decree respecting child support may be
modified . . . only upon a showing of changed circumstances that
are substantial and continuing . . . .” § 14-10-122(1)(a). A court
must determine whether — because of a substantial and continuing
change — the terms of the original decree have become unfair. In re
Marriage of Aldrich, 945 P.2d 1370, 1375 (Colo. 1997). The moving
party bears a heavy burden to show credible evidence of a
cognizable change. Id. at 1376.
3. Father’s Income
¶ 24 Because we’ve already concluded that the district court didn’t
abuse its discretion by imputing income to father for purposes of
spousal maintenance, we likewise reject father’s identical challenge
to the court’s child support determination.
4. Mathematical Error
¶ 25 Father argues that the district court made a mathematical
error in its analysis of his motion to modify child support. We
conclude that, although the district court did make a mathematical
error, the error was harmless.
¶ 26 In the course of issuing its ruling, the court said, “The Court
has considered the disparity in income between the parties. Using
12 $50,000 a month as imputed income that should be earned, the
Court finds that [father] earns double the income of [mother] even
when maintenance and child support are added as income.”
¶ 27 Father argues that, if his maintenance payments to wife and
child support count as part of her income, then for child support
calculation purposes, those same amounts should be subtracted
from his income. Thus, he says, his $50,000 imputed monthly
income should be reduced by his monthly $18,000 maintenance
and $3,000 child support obligations, making his income $29,000
per month. On the other hand, mother’s imputed income of $3,333
per month plus the maintenance and child support makes her total
income $24,333 per month. This would mean that father has about
twenty percent more income than mother, not one hundred percent
more as the district court indicated.
¶ 28 Mother concedes that the court made a mathematical error.
But she says that, under the permanent orders, her maintenance
was reduced to $15,000 on May 1, 2023, making father’s monthly
income $32,000 after paying maintenance and child support. Her
income of $3,333, plus $15,000 in maintenance and $3,000 child
support, makes her monthly income $21,333. This means that
13 father has about fifty percent more income than she does. Mother’s
calculation is correct.
¶ 29 Accordingly, we conclude that the district court erred by
saying that father earned double mother’s income after accounting
for maintenance and child support. But because the record
supports the court’s ultimate determination that $3,000 remains a
fair amount of child support, we conclude that the error is
harmless. See C.R.C.P. 61 (we may disregard any error not
affecting the parties’ substantial rights).
¶ 30 The court’s error didn’t affect father’s substantial rights for
the following interrelated reasons. First, the difference in incomes
was only one factor among many the court considered. (We discuss
these factors in more detail below.)
¶ 31 Second, while knowing the children’s ages, father stipulated to
paying mother $3,000 per month. He knew at the time that his
children would, over time, reach the age of majority, but he
nevertheless agreed to the figure without making any provision for a
change in the child support amount based on the children’s ages.3
3 We don’t say that this alone precluded father from seeking a
modification of child support; it’s simply a relevant factor.
14 ¶ 32 Third, the parents’ combined imputed income was well above
the top of the schedule of base child support obligations created by
the General Assembly. See § 14-10-115(7)(b). Because of this, the
court had broad discretion in calculating support. See Boettcher,
¶¶ 12-18. As noted, the district court said it had extrapolated from
the schedule and calculated a projected amount of monthly child
support “thousands of dollars higher” than $2,800 per month.
Father doesn’t take issue with that conclusion.
¶ 33 Fourth, the court recognized changes in circumstances
supporting a figure of $3,000 per month in child support,
notwithstanding that two of the parties’ five children had reached
the age of majority. For one, it noted that father no longer exercised
overnight parenting time with any of the children. The court also
found that father’s overall parenting time had decreased over the
years. The court found, with record support, that the cost of the
children’s food, shelter, transportation, and recreation — all of
which mother paid — had increased.
¶ 34 Fifth, the court considered the incomes, assets, and liabilities
of both mother and father and concluded, in essence, that father
was in a far better financial position than mother.
15 ¶ 35 So although the district court made a mathematical mistake
by finding that father earns twice the income of mother after
accounting for maintenance and child support, in the end, its
decision not to modify father’s child support obligation is supported
by the record. The fact remains that father’s income is fifty percent
higher than mother’s — even accounting for maintenance and child
support — and the court properly considered other circumstances
showing that $3,000 per month remained fair, equitable, and in the
children’s best interests.
5. Mother’s Debt
¶ 36 Father next argues that the district court erred by
mischaracterizing the reason for mother’s debt. We disagree.
¶ 37 Father says the court should not have considered mother’s
debt because mother incurred it to pursue a Ph.D. degree and her
choice to do so won’t benefit the children before all but one will
become emancipated.4
¶ 38 The court, however, may consider debt when evaluating
financial circumstances. See § 14-10-115(2)(b). And we agree with
4 The debt considered by the court also included attorney fees
incurred in this litigation.
16 mother that father hasn’t provided any authority supporting the
proposition that incurring debt to obtain higher paying employment
is somehow irrelevant to the required evaluation of the parties’
financial circumstances. Therefore, we conclude that the district
court didn’t abuse its discretion by considering mother’s student
loan debt.
6. Father’s Asset Liquidation
¶ 39 We also reject father’s argument that the district court
improperly weighed evidence of his use of assets to pay expenses.
¶ 40 To support his assertion, father cites the court’s statement
that he was using his retirement funds to pay expenses, and
contrasts this with the court’s statement at a hearing that “It’s a
mystery why [father] is not in debt. It’s a mystery how [father] is
able to pay these expenses.”
¶ 41 It appears that father believes the court therefore failed to
account for his use of assets to pay expenses when imputing
income to him. But we have already concluded that record evidence
supports the court’s imputation of income to father — a conclusion
independent of father’s asset liquidation. Father fails to explain
how his liquidation of certain assets should have led the district
17 court to arrive at a different figure when imputing income to him.
To the extent father argues that his sworn financial statements and
related documents should have led the court to reach a contrary
conclusion, it was within the court’s province to weigh any
conflicting evidence. See Bowles, 916 P.2d at 617.
C. Attorney Fees
¶ 42 Lastly, father asks us to reverse the district court’s order
entered on remand requiring that he pay half of mother’s attorney
fees incurred in connection with his motion to modify parenting
time and decision-making authority. He hasn’t convinced us to do
so.
¶ 43 As noted, a division of this court reversed and remanded the
previous award of attorney fees on the first modification motion for
additional findings. Bolton I, ¶¶ 19-20. On remand, the district
court made additional findings. It determined how much father
could earn in income using an imputed income analysis, considered
father’s and mother’s respective expenses, factored in mother’s
receipt of maintenance, and considered the parties’ respective
18 assets and liabilities. The district court concluded that it was fair
and equitable that father pay half of mother’s fees.
¶ 44 “We review the district court’s decision to award attorney fees
and costs for an abuse of discretion, but we review the legal
conclusions forming the basis for that decision de novo.” In re
Marriage of Gallegos, 251 P.3d 1086, 1087 (Colo. App. 2010). “[A]n
award of attorney fees must be reviewed in light of the parties’
financial resources after the property division and any maintenance
award.” In re Marriage of Huff, 834 P.2d 244, 248 (Colo. 1992).
“The trial court has wide discretion in awarding attorney fees, and
its ruling will not be disturbed absent an abuse of that discretion.”
In re Marriage of McCord, 910 P.2d 85, 90 (Colo. App. 1995) (citation
omitted).
¶ 45 “The court from time to time, after considering the financial
resources of both parties, may order a party to pay a reasonable
amount . . . for attorney fees . . . .” § 14-10-119. “The award of fees
is designed to equalize the status of the parties and to enable the
court to ensure that neither party is forced to suffer unduly as a
consequence of the proceedings.” McCord, 910 P.2d at 90.
19 3. Analysis
¶ 46 Father argues that the district court failed to follow the
division’s instructions on remand by applying an improper legal
analysis in its determination. We disagree.
¶ 47 First, father says that the district court was supposed to
determine attorney fees as of the time of the original post-decree
hearing and should have held a hearing on remand to determine
the parties’ economic circumstances as of that point in time. He
bases this argument on the following line from the division’s
opinion: “On this record, however, we cannot tell if the court
evaluated the parties’ overall economic circumstances at the time of
the proceeding.” Bolton I, ¶ 15. His argument, however,
misconstrues the division’s opinion.
¶ 48 The statement on which father relies was made in the context
of addressing whether there were sufficient findings to meaningfully
review the district court’s resolution of mother’s request for attorney
fees in December 2021. Later in the opinion, the division gave the
district court directions to follow on remand:
If the court on remand determines that the disparity in the parties’ current financial circumstances is not what it originally
20 believed, it may deny mother’s request. If, on the other hand, the court determines that the parties’ current financial circumstances are sufficiently disparate that a fee award is appropriate, the court must apply the lodestar method . . . .
Id. at ¶ 20 (emphasis added). The division plainly contemplated
that the district court would evaluate the parties’ circumstances as
of the time of its determination of mother’s request on remand.
¶ 49 Second, father repeats his mathematical error argument
concerning the parties’ respective incomes. But, as discussed
above, the court’s calculation was not as mathematically incorrect
as father claims: father’s income is still one-and-one-half times
mother’s.
¶ 50 As well, the court reviewed a substantial amount of testimony
and other evidence relating to father’s motion and made extensive
findings based on that evidence. We simply cannot say that the
court’s determination of attorney fees suffers from insufficient
findings or a lack of supporting evidence.
III. Appellate Attorney Fees
¶ 51 Mother requests an award of her appellate attorney fees under
section 14-10-119, citing a significant disparity in the parties’
21 respective financial circumstances. Because the district court is
better positioned than we are to resolve factual issues associated
with this request, we remand the case to the district court to
determine whether mother is entitled to an award of appellate fees
and, if so, the appropriate amount. See C.A.R. 39.1; In re Marriage
of Thorburn, 2022 COA 80, ¶ 58.
IV. Disposition
¶ 52 The judgment is affirmed, and the case is remanded for
further proceedings concerning mother’s request for appellate
attorney fees.
JUDGE LIPINSKY and JUDGE SULLIVAN concur.