Marriage of Bowers

• Court: Colorado Court of Appeals
• Decided: November 10, 2021
• Docket: 20CA0698
• Status: Unknown

Opinion

20CA0698 Marriage of Bowers 11-10-2021

COLORADO COURT OF APPEALS

Court of Appeals No. 20CA0698

Jefferson County District Court No. 18DR30961

Honorable Christie A. Bachmeyer, Judge

In re the Marriage of

Kimberly W. Bowers,

Appellee,

and

Larry D. Bowers,

Appellant.

JUDGMENT AFFIRMED AND CASE

REMANDED WITH DIRECTIONS

Division I

Opinion by JUDGE DAILEY

Dunn and Kuhn, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced November 10, 2021

Colorado Divorce Law Group, LLC, Brandi M. Petterson, Littleton, Colorado, for

Appellee

The Harris Law Firm, PLLP, Katherine O. Ellis, Denver, Colorado, for Appellant

1

¶ 1

In this dissolution of marriage proceeding between Larry D.

Bowers (husband) and Kimberly W. Bowers (wife), husband appeals

the property division and attorney fee provisions of the permanent

orders. We affirm the judgment and remand the case to the district

court to determine wife’s request for appellate attorney fees under

section 14-10-119, C.R.S. 2021.

I. Relevant Facts

¶ 2

The parties married in 1998 and separated in November 2018.

One month later, wife petitioned to end the marriage.

¶ 3

In March 2020, following an evidentiary hearing, the district

court dissolved the marriage and entered permanent orders. The

court made the following findings:

 Husband’s testimony “was contradictory and not credible.”

 Wife was a “credible and accurate reporter.”

 In 2017, the parties acquired a business, Stonewall Lodge

and RV park (Stonewall), which could not be valued. The

business’s real property, however, had a marital value of

$425,872.

 Since the parties’ separation, husband operated Stonewall

on his own.

2

 “No evidence of the total proceeds or revenues earned by

Stonewall in 2019 were presented by [h]usband, even

though he was the only party privy to the documentation

necessary to provide evidence of business income.”

 Husband did not provide any evidence of Stonewall’s 2018,

2019, or ongoing expenses. And he failed to show that

$50,800 in credit card charges in 2019 were for business

expenses.

 Husband was paying personal expenses through the

business.

 Husband was earning $11,000 per month from Stonewall.

 Wife took out a loan from her mother in the amount of

$19,463 to cover attorney fees and living expenses.

 Wife was entitled to maintenance in the amount of $361 per

month for a minimum of ten years.

 Wife requested a larger share of the marital estate instead of

the presumptive amount of maintenance.

 Husband dissipated $88,522 in marital funds but “the exact

amount is difficult to value due to [his] lack of full

disclosure.”

3

 Husband needlessly expanded the scope of the litigation by

willfully violating discovery orders and consequently

increased the amount of wife’s attorney fees and costs.

 Wife already paid $34,026 in attorney fees and costs and

had an outstanding balance of $7,617.

¶ 4

From those findings, the district court (1) awarded Stonewall

along with its real property to husband; (2) allocated to wife the

loan from her mother; (3) granted wife a disproportionate share of

the marital estate in lieu of maintenance; (4) sanctioned husband

$12,000 for reimbursement of wife’s paid attorney fees and costs;

and (5) directed husband to pay approximately 63% of wife’s

outstanding attorney fees and costs under section 14-10-119. In

the following table, we have summarized the court’s overall property

division:

Marital Asset

Marital Value

Wife’s Portion

Husband’s

Portion

Stonewall Real

Property

$425,872

$425,872

Marital

Residence

$55,598

$55,598

Vehicles

$28,257

$4,665

$23,592

Bank Accounts

$51,078

$8,744

$42,334

Retirement

Accounts

$872,493

$843,595

$28,898

4

Husband’s

Dissipation

$88,523

$88,523

Personal

Property

$2,000

$1,250

$750

Debts

($54,891)

($54,891)

TOTAL

$1,468,930

$803,363

(55%)

$665,567

(45%)

Husband now appeals.

II. Property Division

¶ 5

Husband contends, for several reasons, that the district court

erred in dividing the marital estate. We reject each in turn.

A. Legal Standards

¶ 6

A district court must divide the marital property in such

proportions as it deems just. § 14-10-113(1), C.R.S. 2021; In re

Marriage of LaFleur, 2021 CO 3, ¶ 62; In re Marriage of Wright, 2020

COA 11, ¶ 3 (property division does not have to be equal, only

equitable).

¶ 7

When dividing marital property, the district court considers all

relevant factors, including, as pertinent here, each spouse’s

contribution to the acquisition of the property. See § 14-10-

113(1)(a).

¶ 8

The weighing of the section 14-10-113(1) factors is within the

district court’s discretion, and it need not make specific findings as

5

to each factor so long as its findings indicate which factors it found

persuasive. See In re Marriage of Powell, 220 P.3d 952, 959 (Colo.

App. 2009).

¶ 9

The district court has great latitude to equitably divide marital

property based on the facts and circumstances of the case, and we

will not disturb its decision absent a clear abuse of discretion. In re

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

Marriage of Hunt, 909 P.2d 525, 538 (Colo. 1995) (“[A]n appellate

court must not disturb the delicate balance achieved by the

[district] court in division of property . . . unless there has been a

clear abuse of discretion.”).

¶ 10

The district court abuses its discretion when its decision is

manifestly arbitrary, unreasonable, or unfair, or based on a

misapplication of the law. In re Marriage of Young, 2021 COA 96, ¶

7. And we will not disturb the court’s factual findings unless they

are so clearly erroneous as to find no support in the record. Van

Gundy v. Van Gundy, 2012 COA 194, ¶ 12.

B. Discussion

1. Husband’s Contributions During the Marriage

6

¶ 11

To begin, husband asserts that the district court inequitably

divided the marital estate because it did not consider his

contributions during the marriage. We disagree.

¶ 12

True, the district court did not make specific findings

concerning husband’s contributions during the marriage. § 14-10-

113(1)(a). But the court did not have to. See Powell, 220 P.3d at

959; see also Interest of Spohr, 2019 COA 171, ¶ 24 (“A trial court

need only enter findings on the material and ultimate facts of the

case. The trial court need not assert in detail which propositions

are accepted and which are rejected, but may simply state that the

evidence supports or repudiates a claim or defense.”).

¶ 13

The district court did state, however, that it considered all the

testimony and evidence presented at the permanent orders hearing.

As a result, we may presume that the court was aware of and

considered the largely undisputed evidence regarding husband’s

contributions, including (1) construction skills and labor, along

with funds, on two former residences, which yielded higher sale

prices; (2) care of wife’s mother while she lived with the parties; (3)

financial support to help wife when she retired early; (4) the

renovation projects plus mortgage payments on the marital

7

residence; and (5) efforts in maintaining Stonewall and its real

property since the parties’ separation. See In re Marriage of Hatton,

160 P.3d 326, 329 (Colo. App. 2007) (appellate court may presume

that the district court considered all the evidence before it); see also

In re Marriage of Udis, 780 P.2d 499, 504 (Colo. 1989).

¶ 14

We conclude that, although the district court did not explicitly

address each of husband’s contributions, it sufficiently considered

them as part of its equitable division of the marital estate.

2. Stonewall Real Property

¶ 15

As we understand it, husband argues that the property

division “unfairly prejudiced” him because the district court

mistakenly assumed that he could liquidate or sell the Stonewall

real property and still earn an income from the business. We are

not persuaded.

¶ 16

We first address wife’s claim that husband failed to preserve

this argument for appeal.

¶ 17

Generally, an issue cannot be raised for the first time on

appeal. See In re Marriage of Ensminger, 209 P.3d 1163, 1167

(Colo. App. 2008). To preserve an issue for appeal, it must be

presented in such a way that the district court has an opportunity

8

to rule on it. Berra v. Springer & Steinberg, P.C., 251 P.3d 567, 570

(Colo. App. 2010).

¶ 18

However, a party need not object to findings rendered by the

district court after a permanent orders hearing to preserve a

challenge to them for appeal. See C.R.C.P. 52 (“Neither requests for

findings nor objections to findings rendered are necessary for

purposes of review.”); see also People in Interest of D.B., 2017 COA

139, ¶ 30 (“[A] party is not required to object to the [district] court’s

findings in the [district] court to preserve a challenge to those

findings.”); In re Marriage of Rooks, 2016 COA 153, ¶ 50, rev’d on

other grounds, 2018 CO 85. So, the issue is preserved, and we will

proceed to consider the merits of husband’s argument.

¶ 19

The parties asked, and the district court agreed, that

Stonewall and its real property be allocated to husband. In its

overall property division, the court considered, among other things,

that the real property “can be liquidated.” The court further found

that husband’s income is derived solely from Stonewall, which

became a basis for the unequal property division in lieu of

maintenance.

9

¶ 20

In our view, husband misconstrues the district court’s order.

The court did not, as he seems to argue, require him to liquidate

Stonewall’s real property and lose income therefrom. Indeed, there

is nothing in the record to suggest that he had any intention of

selling the property or the business. Rather, we agree with wife

that the court’s order merely recognizes that he has the option to

sell the property, reinvest the proceeds, and still produce an

income. And the liquidity of the asset was one of many relevant

factors the court considered in making an equitable division.

¶ 21

For all those reasons, we cannot see how husband is

prejudiced by the court’s findings regarding Stonewall and its real

property.

3. Wife’s Mother’s Loan

¶ 22

Next, husband argues that the district court erred in

classifying money wife received from her mother as a marital debt

and not a gift. Wife asserts, and we agree, that he did not preserve

this specific argument in the district court either in his pre-trial

statement or at the permanent orders hearing. See Core-Mark

Midcontinent Inc. v. Sonitrol Corp., 2016 COA 22, ¶¶ 26-27 (only

specific arguments made to the district court are preserved for

10

appeal); Berra, 251 P.3d at 570. True, when asked by the district

court what he wanted to do with wife’s “loan” from her mother, he

answered that “[s]he’s responsible for that.” His response, however,

cannot be taken as specifically asking the court to treat the debt as

a gift and to exclude it from the property division. So, we decline to

address the argument now. See In re Marriage of Crouch, 2021 COA

3, ¶ 13 (declining to consider argument raised for the first time on

appeal).

¶ 23

Husband also argues that the district court’s findings are

inadequate regarding the validity or existence of wife’s mother’s

loan. We disagree because the basis for the court’s ultimate

determination is sufficiently explicit. See Moeller v. Colo. Real

Estate Comm’n, 759 P.2d 697, 703 (Colo. 1988) (“Though the

factual findings of the [district] court are brief and undetailed, we

are able to determine the basis of the . . . court’s judgment from its

findings and a review of the record.”); Manor Vail Condo. Ass’n v.

Town of Vail, 604 P.2d 1168, 1172 (Colo. 1980) (“The brevity of

findings and conclusions alone does not necessarily determine their

validity.”).

11

¶ 24

The record reflects that during the parties’ separation, wife

borrowed $19,463 from her mother to help pay her attorney fees

and living expenses. Wife testified that the loan and a specific

payment plan was memorialized in a promissory note, a copy of

which was admitted as an exhibit. She also testified that she had

intended to repay the loan and that throughout the marriage, the

parties had paid off several loans from her mother.

¶ 25

For his part, husband offered no evidence contradicting wife’s

testimony. And we note that the district court specifically found

wife more credible overall than husband.

¶ 26

Because the record, including the district court’s credibility

finding, supports its determination that the loan was a marital debt

subject to division, we discern no error. See In re Marriage of Farr,

228 P.3d 267, 270 (Colo. App. 2010) (determining the credibility of

the witnesses and resolving conflicting evidence are within the

province of the district court, and an appellate court will not disturb

those findings on appeal); see also In re Marriage of Amich, 192 P.3d

422, 424 (Colo. App. 2007) (district court can believe all, part, or

none of a witness’s testimony, even if uncontroverted).

12

¶ 27

Even if we assume the district court erred by including the

$19,463 loan in the marital det, we conclude that any such error is

harmless. This is so because the alleged error affects approximately

1% of the parties’ sizable $1,469,313 marital estate. See Balanson,

25 P.3d at 36; see also In re Marriage of Zappanti, 80 P.3d 889, 893

(Colo. App. 2003) (“Errors by the [district] court in determining the

property division are reversible only when overall they affect the

parties’ substantial rights.”); C.R.C.P. 61.

4. Unequal Property Division in Lieu of Maintenance

¶ 28

The district court, in lieu of maintenance, awarded an unequal

property division in wife’s favor. Thus, the issues of maintenance

and property division are interrelated. Husband challenges the

property division on the basis that the record does not support the

court’s determination that wife was entitled to maintenance. We

are not persuaded.

¶ 29

We reject wife’s argument that husband failed to preserve this

contention for appeal. Husband preserved the issue by consistently

testifying that he could not earn $11,000 per month from

Stonewall. And because the court ruled on wife’s entitlement to

13

maintenance, we conclude that the issue is preserved for our

review. See Berra, 251 P.3d at 570.

¶ 30

The law does not compel an award of maintenance. Gleason v.

Gleason, 162 Colo. 212, 215, 425 P.2d 688, 689 (1967). The

district court is encouraged to provide for the financial needs of the

spouses by property disposition rather than an award of

maintenance. In re Marriage of Huff, 834 P.2d 244, 252 (Colo.

1992). Section 14-10-114(3)(f), C.R.S. 2021, allows a district court

to award additional marital property to the recipient spouse or

otherwise adjust the marital property distribution or debt to

alleviate the need for maintenance.

¶ 31

The district court determined that wife was entitled to monthly

maintenance in the amount of $361 for a period of at least ten

years. The court based its determination, in part, on its finding

that husband’s earning capacity from Stonewall was $11,000 per

month. It then awarded wife more of the marital estate in lieu of

maintenance.

¶ 32

Husband asserts that the district court’s income finding as to

him is clearly erroneous. Because the record supports the court’s

finding, we decline to disturb it.

14

¶ 33

On his 2019 and 2020 sworn financial statements, husband

reported monthly incomes of $12,509 and $11,000, respectively.

Husband clarified that those figures represent what Stonewall earns

before business expenses are paid. The record reflects that

husband did not provide a full financial background of the

business, nor did he detail its total revenues and expenses. As well,

the record indicates that the business was operated “substantially”

on a cash basis, making its income difficult to verify.

¶ 34

Husband testified that it was “impossible” for him to make

$12,500 per month. He added that he had “never taken a salary” or

a single “penny from the [business].” Yet, he later testified that he

regularly uses the business’s income to pay personal expenses.

¶ 35

The parties’ 2018 federal tax return, on which husband relies,

states that the business earned gross income in the amount of

$12,746 per month (comprising of checks, cash, and credit card

transactions) less expenses of $10,086 per month, leaving a net

income of $2,660 per month. But wife, who the court found

credible, testified that husband had a history of including improper

business expenses. In fact, husband provided no accounting or

15

explanatory testimony for $50,800 in alleged business expenses in

2019.

¶ 36

Given the district court’s finding that husband’s testimony

was contradictory and not credible, his failure to provide supporting

documentation of Stonewall’s revenues and expenses, his

commingling of business and personal expenditures, and wife’s

credible testimony regarding his improper business expenses, we

find no basis to disturb his reported monthly income of $11,000.

See Van Gundy, ¶ 12; see also Farr, 228 P.3d at 270; In re Marriage

of Rose, 134 P.3d 559, 561 (Colo. App. 2006) (appellate court is

bound by the district court’s factual findings supporting its

maintenance determination, including its income findings, unless

such findings are clearly erroneous).

¶ 37

Nor are we persuaded by husband’s assertion that the district

court erred by not making the required findings in determining

whether wife was entitled to maintenance under section 14-10-114.

¶ 38

Section 14-10-114(3) sets forth a specific process for the

district court to follow when considering a maintenance request. In

re Marriage of Herold, 2021 COA 16, ¶ 24. As a relevant here,

under section 14-10-114(3)(a)(I), the court must first make initial

16

findings concerning each party’s income, the marital property

apportioned to each, their financial resources, and the reasonable

financial needs during the marriage. Wright, ¶ 14.

¶ 39

After making these findings, the district court considers the

advisory guideline amount and term of maintenance under section

14-10-114(3)(b) and the factors under section 14-10-114(3)(c).

§ 14-10-114(3)(a)(II)(A)-(B); see Wright, ¶ 15.

¶ 40

The district court’s final step is to determine whether the

requesting spouse lacks sufficient property, including marital

property awarded, to provide for his or her reasonable needs and is

unable to support himself or herself through appropriate

employment. § 14-10-114(3)(a)(II)(C), (3)(d); see Wright, ¶ 16 (noting

that “[t]he statute makes clear” that the court is to consider this

issue only after it has made the required initial findings under the

other provisions of section 14-10-114(3)).

¶ 41

The district court here made sufficient findings to support its

determination that wife was entitled to maintenance:

 Husband was earning $11,000 per month, operating

Stonewall. See § 14-10-114(3)(a)(I)(A), (C), (c)(II), (V).

17

 Wife, a retired schoolteacher, had a PERA account in pay

status from which she was receiving approximately $6,500

per month. See § 14-10-114(3)(a)(I)(A), (C), (c)(I), (V).

 “Husband will receive [Stonewall’s real property] which can

be liquidated [and] an up-front payment for his interest in

[w]ife’s PERA . . . whereas wife does not receive the same

benefit . . . but rather, can only receive her value over time.”

See § 14-10-114(3)(a)(I)(B)-(C), (c)(IV).

 “Wife will leave the marriage with debt and a monthly

income and insufficient liquid assets to purchase a new

home for herself at 63 years of age; . . . the exact amount

dissipated by [h]usband is difficult to value due to a lack of

full disclosure; [and] . . . [w]ife has significant financial

obligations that she must repay whereas [h]usband failed to

provide any documentation of current marital debts that

would be legitimate for the [c]ourt to consider.” See § 14-

10-114(3)(a)(I)(B)-(D), (c)(I), (IV), (IX), (XIII).

 The parties were married for twenty-two years. See § 14-

10-114(3)(c)(VII).

18

 Wife was dependent on others to meet her financial needs.

See § 14-10-114(3)(c)(I).

 Wife has “several medical conditions for which she currently

receives treatment, or for which she will receive treatment.”

See § 14-10-114(3)(c)(IX).

 Husband was not credible while wife was. See § 14-10-

114(3)(c)(XIII).

 The statutory guidelines suggested that wife be awarded

$361 per month for at least ten years. See § 14-10-

114(3)(b).

 Wife would meet the threshold for maintenance. § 14-10-

114(3)(a)(II)(C), (3)(d).

¶ 42

Husband points out that the district court did not make

express findings on the parties’ lifestyle during the marriage and

whether either party had historically earned more or less money

than they were earning at the time of the permanent orders. See §

14-10-114(3)(c)(III), (VI). But it was not required to do so. See

Wright, ¶ 20 (district court need not make explicit findings on the

factors under section 14-10-114(3)(c) so long as its order gives the

appellate court a clear understanding of its basis); see also In re

19

Marriage of Lee, 781 P.2d 102, 105 (Colo. App. 1989) (when

awarding maintenance, the district court need not explain how it

weighed the parties’ evidence).

¶ 43

Because the district court made the necessary findings under

section 14-10-114(3)(a)(I) and considered the advisory guideline

amount and term of maintenance under section 14-10-114(3)(b)

along with the relevant factors under section 14-10-114(3)(c), we

discern no error regarding maintenance.

III. District Court Attorney Fees and Costs

¶ 44

Last, husband contends that the district court committed

“legal error” when it included wife’s paid attorney fees and costs as

part of the property division under section 14-10-113. We disagree.

¶ 45

We reject wife’s assertion that husband failed to preserve this

contention. Husband could not have raised this issue until after

the court made its findings and apportioned the attorney fees in the

way that it did. See C.R.C.P. 52; see also D.B., ¶ 30.

¶ 46

The record reflects that wife incurred and paid $34,026 in

attorney fees and costs. The record further shows that she paid

that amount using a credit card and the loan from her mother. We

discern no legal error in the district court’s allocation of wife’s paid

20

litigation costs as debts in the marital estate. When litigation costs

have already been paid, the court is permitted to allocate the debt

for such costs in the property division. See In re Marriage of

Burford, 26 P.3d 550, 559 (Colo. App. 2001).

¶ 47

In his summary of the argument and later in his argument

heading, husband asserts that the district court erred in double

counting wife’s attorney fees and costs in the property division, first

as part of the marital debt and again when it ordered him to

reimburse her $12,000 as a sanction. But he does not further

develop this assertion, so we decline to address it. . See In re

Marriage of Zander, 2019 COA 149, ¶ 27, aff’d, 2021 CO 12

(appellate court will not consider an argument not supported by any

meaningful legal analysis); Barnett v. Elite Props. of Am., Inc., 252

P.3d 14, 19 (Colo. App. 2010) (“We will not consider a bald legal

proposition presented without argument or development.”).

IV. Appellate Attorney Fees and Costs

¶ 48

Wife asks for her appellate attorney fees under section 13-17-

102(4), C.R.S. 2021, asserting that husband’s appeal lacks

substantial justification. Though husband did not succeed, we do

not consider his contentions to be frivolous. See Mission Denver Co.

21

v. Pierson, 674 P.2d 363, 365 (Colo. 1984) (“Standards for

determining whether an appeal is frivolous should be directed

toward penalizing egregious conduct without deterring a lawyer

from vigorously asserting his client’s rights.”). Therefore, we deny

her request on this basis.

¶ 49

Arguing that the parties’ financial resources are disparate, wife

also requests her appellate attorney fees pursuant to section 14-10-

119. Because the district court is better equipped to resolve the

factual issues concerning the parties’ current financial

circumstances, we remand this issue for its consideration. See In re

Marriage of Alvis, 2019 COA 97, ¶ 30; C.A.R. 39.1.

¶ 50

Appellate costs will be assessed pursuant to C.A.R. 39.

V. Conclusion

¶ 51

The judgment is affirmed. The case is remanded for the

district court to consider wife’s request for appellate attorney fees

under section 14-10-119.

JUDGE DUNN and JUDGE KUHN concur.