Marriage of Bradberry

• Court: Colorado Court of Appeals
• Decided: December 26, 2024
• Docket: 24CA0082
• Status: Unpublished

Opinion

24CA0082 Marriage of Bradberry 12-26-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0082 Jefferson County District Court No. 22DR126 Honorable Tamara S. Russell, Judge

In re the Marriage of

Erik G. Bradberry,

Appellee,

and

Heidi L. Bradberry,

Appellant.

APPEAL DISMISSED IN PART, ORDER AFFIRMED, AND CASE REMANDED WITH DIRECTIONS

Division II Opinion by JUDGE SCHOCK Fox and Johnson, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced December 26, 2024

Erik G. Bradberry, Bloomfield Hills, Michigan, for Appellee

Robinson & Henry, P.C., Kelly Snodgrass, Andrew H. Hug, Highlands Ranch, Colorado, for Appellant ¶1 In this post-decree dissolution of marriage case between Heidi

L. Bradberry (wife) and Erik G. Bradberry (husband), wife appeals

the district court’s order entered in response to husband’s request

for clarification of the court’s permanent orders. We dismiss the

appeal in part, affirm the court’s order as it relates to the deadline

to refinance or sell the marital home, and remand the case for

further proceedings on wife’s request for appellate attorney fees.

I. Background

¶2 During the parties’ marriage, wife operated a business at the

marital home, boarding horses and giving horse riding lessons.

That business was wife’s sole source of income when the parties’

marriage ended. Husband worked as an attorney.

¶3 In August 2023, the district court dissolved the marriage and

entered permanent orders. The court allocated to wife almost

$700,000 of the marital equity and allocated to husband the

remaining $350,000. In doing so, the court awarded wife the

marital home, which had net equity of almost $380,000, and the

business, which had no value beyond its assets. The court

indicated that wife would be required to refinance the mortgage on

1 the marital home to remove husband from that debt. But it did not

specify a deadline for her to do so in its permanent orders.

¶4 The court determined that it did not have sufficient evidence to

value certain miscellaneous assets, including lesson horses,

trailers, barn supplies, shipping containers, and other items. So it

directed the parties to create a list of any such assets they could

not agree how to divide and take turns picking items off that list.

¶5 The court then found that wife could not meet her reasonable

needs without maintenance, noting that her gross income from the

business was $1,120 per month. The court awarded her

maintenance of $3,175 per month for six years and four months.

But because husband had paid the $1,423 monthly mortgage

payment on the marital home during the dissolution proceedings,

the court gave husband a monthly credit against his maintenance

obligation equal to that amount for the first nineteen months.

¶6 About two months after the entry of permanent orders,

husband requested a status conference to clarify, among other

things, wife’s deadline to refinance the marital home mortgage and

the process for dividing the miscellaneous assets. Following the

status conference, in November 2023, the court ordered wife to

2 refinance the mortgage or put the marital home up for sale within

120 days. The court also confirmed the process for dividing the

miscellaneous assets, including those associated with the business,

and imposed a deadline for the parties to complete the process.

¶7 Wife appealed the court’s permanent orders and its November

2023 clarifying orders. Husband moved to dismiss, arguing that

wife’s appeal of the permanent orders was untimely. A motions

division of this court dismissed the appeal as to the permanent

orders (and an order denying wife’s C.R.C.P. 60 motion) and allowed

wife’s appeal to proceed only as to the November 2023 orders

concerning the status conference. In re Marriage of Bradberry,

(Colo. App. No. 24CA0082, July 9, 2024) (unpublished order).

II. Miscellaneous Assets

¶8 Wife contends that the district court erred by including assets

associated with her business in the division of miscellaneous

assets. She argues that the business assets were distinct from the

parties’ personal assets and that husband did not ask to receive

any of the business assets at the permanent orders hearing. She

further argues that husband’s receipt of the business assets would

allow him to dismantle the business that was allocated to her.

3 ¶9 But the parties have since stipulated to the division of the

disputed miscellaneous assets. In that stipulation, the parties

agreed that wife may retain all of the disputed miscellaneous

assets, and husband waived his right to make any further requests

for property located at the marital home. The parties also agreed

that the stipulation “resolves all issues pertaining to” the disputed

miscellaneous assets. Husband argues that this stipulation

renders wife’s appeal moot as to the division of the miscellaneous

assets. We agree and dismiss this portion of the appeal.1

¶ 10 We will not render an opinion on the merits of an issue when

subsequent events have rendered the issue moot. 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.” Id. Whether an issue is moot is a

question of law that we review de novo. See In re Parental

Responsibilities Concerning S.Z.S., 2022 COA 105, ¶ 49.

1 Although the parties’ filed the stipulation in the district court, the

court declined to rule on it because it lacked jurisdiction to do so while the case was on appeal. See In re Marriage of Pawelec, 2024 COA 107, ¶ 17. But given husband’s explicit waiver of his right to make any further requests for property located at the marital home, the lack of a district court order does not affect our conclusion.

4 ¶ 11 The parties’ stipulation resolved the issue of the division of the

miscellaneous assets. More specifically, the parties agreed that wife

would keep all the disputed miscellaneous assets, including those

associated with the business. In other words, wife received the

relief she requests on appeal, and even if she had not, she agreed

that the stipulation resolved the issue. Thus, any decision we could

render on the merits of the district court’s ruling would have no

practical legal effect. See id. at ¶ 51 (concluding that the parties’

stipulation rendered issue on appeal moot); Lego v. Schmidt, 805

P.2d 1119, 1125 (Colo. App. 1990) (recognizing that when the

parties settle the dispute which is the subject of an appeal, the

issue is moot). We therefore dismiss this portion of the appeal.

III. Refinancing the Marital Home Mortgage

¶ 12 Wife next contends that the district court erred by failing to

consider her current economic circumstances, including the

temporarily reduced maintenance payment, when it imposed the

120-day deadline for her to refinance the mortgage or put the

marital home up for sale. We perceive no abuse of discretion.

5 A. Standard of Review

¶ 13 The court has broad discretion to divide the marital estate. In

re Marriage of Medeiros, 2023 COA 42M, ¶ 28. That discretion

extends to the mechanisms the court uses to effectuate the division.

In re Marriage of Wormell, 697 P.2d 812, 814 (Colo. App. 1985).

¶ 14 We review a court’s property division orders and its ruling on a

request for clarification of such orders for an abuse of discretion.

See Medeiros, ¶ 28; In re Marriage of Graff, 902 P.2d 402, 407 (Colo.

App. 1994). We will not disturb the court’s decision absent a

showing that it acted in a manifestly arbitrary, unreasonable, or

unfair manner, or that it misapplied the law. See Medeiros, ¶ 28.

B. Analysis

¶ 15 Wife asserts that the court’s property division was not final

until it issued the November 2023 order setting a deadline for her to

refinance the mortgage or put the marital home up for sale. Relying

on this premise, she argues that the court did not consider her

economic circumstances at the time when “the division of

property . . . bec[a]me effective.” § 14-10-113(1)(c), C.R.S. 2024.

¶ 16 But wife’s premise as to the timing of the property division is

incorrect. The court’s permanent orders fully allocated the marital

6 estate and determined each party’s rights to the assets and liability

for the debts — including wife’s right to the marital home and

liability for the mortgage. Thus, the property division was final and

effective upon the entry of those orders. See In re Marriage of

Collins, 2023 COA 116M, ¶ 66; In re Marriage of Simon, 856 P.2d

47, 49 (Colo. App. 1993) (“The property division is effective if it gives

each party a definable or ascertainable portion of at least some of

the attributes of ownership and the mechanics of any fractional

division can be accomplished within a reasonable time.”); In re

Marriage of Wells, 850 P.2d 694, 697 (Colo. 1993) (noting that final

orders of district courts are “fully effective when they are entered”).

The court’s later clarification of wife’s deadline to refinance the

marital home mortgage did not “complete the division of property,”

as wife contends. It simply set forth the mechanism to carry out

the allocation previously determined by the permanent orders.

¶ 17 In any event, the district court did consider wife’s economic

circumstances when setting the refinance-or-sell deadline. See

Wells, 850 P.2d at 697 (noting that matters related to property

division are equitable in nature and “courts are authorized to

consider evidence of the parties’ changed economic circumstances”).

7 ¶ 18 At the November 2023 status conference, wife argued that it

would be difficult, if not impossible, for her to refinance the

mortgage until the end of 2025. She explained that her income was

minimal and that the reduced maintenance award was not enough

for her to qualify to refinance. She also explained that, if she was

forced to sell the home, she could lose her sole source of income

because she needed the property to operate her business.

¶ 19 Husband, on the other hand, asserted that his continued

mortgage obligation was impacting his financial circumstances and

that he could not buy his own home until wife removed him from

the mortgage. He thus asked the court to order wife to refinance or

sell the home within 90 days. In addition, the court’s previous

allocation of the marital property had given wife almost $700,000 in

equity, while husband had received approximately $350,000.

¶ 20 We presume that the district court considered all of this

evidence. See Collins, ¶ 21. But the parties’ economic

circumstances were not the only consideration. The court also

properly considered the importance of disentangling the parties

financially and providing them with closure. See In re Marriage of

Hunt, 909 P.2d 525, 540 (Colo. 1995); In re Marriage of Paul, 821

8 P.2d 925, 927 (Colo. App. 1991). And it found that having the

parties remain financially connected for the next couple of years by

continuing husband’s mortgage obligation was “not a good idea.”

¶ 21 The court weighed this concern and the parties’ economic

circumstances, and it concluded that wife must refinance or put the

home up for sale within 120 days. While wife disagrees with the

court’s ruling, arguing that the short deadline effectively required

her to sell the property, the court’s decision fell within its discretion

and has record support, so we may not disturb it. See Medeiros,

¶ 28; Wormell, 697 P.2d at 814; see also Hall v. Moreno, 2012 CO

14, ¶ 54 (explaining that in reviewing for an abuse of discretion, we

consider whether the decision fell within the range of reasonable

options, not whether we would have reached a different result).

¶ 22 To the extent wife attempts to distinguish Paul by suggesting

that concerns about financial entanglement apply only to jointly

owned assets and not to joint liability, we are not persuaded.

Financial entanglement may exist with either assets or debts, and

the full resolution of the parties’ liabilities, like their assets, serves

the purpose of “discouraging continued litigation and ongoing

financial interaction” between the parties. Paul, 821 P.2d at 927.

9 ¶ 23 Thus, we conclude that the district court did not abuse its

discretion by imposing a 120-day deadline for wife to either

refinance the mortgage or put the marital home up for sale.

IV. Maintenance and Attorney Fees

¶ 24 Relying on her contention that the property division was not

final until the court set the refinance deadline, wife contends that

the court also erred by determining maintenance and declining to

award her attorney fees before finalizing the property division. See

In re Marriage of de Koning, 2016 CO 2, ¶¶ 21-23, 26 (discussing

the “specific sequence” for determinations of property division,

maintenance, and attorney fees, and recognizing that maintenance

and attorney fees awards “flow from the property distribution”).

¶ 25 But as we explain above, the property division was final upon

the entry of permanent orders. See Collins, ¶ 66; Simon, 856 P.2d

at 49. And in that judgment, the court determined maintenance

and declined to award attorney fees after allocating the marital

estate. See de Koning, ¶¶ 21-23. We thus reject wife’s contention.

To the extent wife attempts to challenge the permanent orders, that

portion of the appeal has been dismissed as untimely. Bradberry,

10 V. Appellate Attorney Fees

¶ 26 Wife requests an award of appellate attorney fees under

section 14-10-119, C.R.S. 2024, due to a disparity in the parties’

financial circumstances. Husband argues that we should deny

wife’s request because her appeal is frivolous and because the

parties’ financial circumstances are not dissimilar.

¶ 27 Section 14-10-119 empowers the court to equitably apportion

attorney fees between the parties based on their relative ability to

pay. In re Marriage of Gutfreund, 148 P.3d 136, 141 (Colo. 2006).

The merit of a party’s contentions is not the standard. In re

Marriage of Trout, 897 P.2d 838, 840 (Colo. App. 1994). Thus, even

though wife was unsuccessful on appeal, she may seek section 14-

10-119 attorney fees. See id.; In re Marriage of Woolley, 25 P.3d

1284, 1288 (Colo. App. 2001) (“[A] party’s behavior may be

considered in awarding fees only to the extent that it might affect

the reasonableness and necessity of those fees.”). But because the

district court is better equipped to determine the factual issues

regarding the parties’ current financial resources, we remand this

issue to the district court. See Collins, ¶ 86; C.A.R. 39.1

11 ¶ 28 Husband requests an award of his appellate attorney fees

under C.A.R. 38(b) and section 13-17-102(4), C.R.S. 2024, on the

ground that wife’s appeal is frivolous. We deny this request.

Although wife did not prevail, we do not agree that her appeal was

frivolous or lacked substantial justification. § 13-17-102(4); see

also In re Marriage of Boettcher, 2018 COA 34, ¶ 38 (“Fees should be

awarded only in clear and unequivocal cases when the appellant

presents no rational argument, or the appeal is prosecuted for the

purpose of harassment or delay.”), aff’d, 2019 CO 81.

VI. Disposition

¶ 29 The portion of the appeal concerning the division of the

miscellaneous assets is dismissed. The order is affirmed as to the

deadline for wife to refinance or put the marital home up for sale.

The case is remanded to the district court for determination of

wife’s request for appellate attorney fees under section 14-10-119.

JUDGE FOX and JUDGE JOHNSON concur.