24CA1454 Marriage of Breining 09-04-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA1454 El Paso County District Court No. 23DR30395 Honorable Jill M. Brady, Judge
In re the Marriage of
Jilayne Kay Breining-Robertson,
Appellee,
and
Christopher Alyn Breining,
Appellant.
JUDGMENT AFFIRMED IN PART AND REVERSED IN PART, AND CASE REMANDED WITH DIRECTIONS
Division III Opinion by JUDGE BROWN Dunn and Schock, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced September 4, 2025
Jilayne Kay Breining-Robertson, Pro Se
Mark Anthony Law, Mark Anthony Barrionuevo, Colorado Springs, Colorado, for Appellant ¶1 In this dissolution of marriage case involving Christopher Alyn
Breining (husband) and Jilayne Kay Breining-Robertson (wife),
husband appeals the property division and spousal maintenance
aspects of the permanent orders. We affirm in part, reverse in part,
and remand for additional proceedings.
I. Relevant Facts
¶2 Wife petitioned to dissolve the parties’ five-year marriage in
2023. In April 2024, husband moved to compel wife to produce
certain mandatory financial disclosures under C.R.C.P. 16.2. In
late May, the district court denied the motion.
¶3 A few days later, the district court held an evidentiary hearing,
after which it entered a dissolution decree. As part of the
permanent orders, the court found that the marital portion of wife’s
USAA 401(k) was $124,220, her life insurance policy had no cash
surrender value, and her credit card debt was marital and subject
to division. Based on these and other findings, it denied husband’s
request for an equalization payment and distributed the marital
estate as follows:
1 Marital Marital Value Wife’s Portion Husband’s Asset/Debt Portion
Marital Home $90,684 $24,852 $65,832 Proceeds
Vehicles $12,250 $7,580 $4,670
Investment $2,947 $2,947 Accounts
Wife’s USAA $124,220 $104,220 $20,000 401(k)
Other Retirement $36,531 $16,596 $19,935 Accounts
Whole Life $0 $0 Insurance Policy
Debts ($48,583) ($39,825) ($8,758)
TOTAL $218,049 $113,423 (52%) $104,626 (48%)
¶4 In declining to award husband spousal maintenance, the court
calculated wife’s monthly gross income at $7,302 per month and
husband’s at $5,410.
II. Request to Dismiss Appeal
¶5 To begin, we consider wife’s request to dismiss husband’s
appeal on the basis that she never received husband’s notice of
appeal. Given that wife was able to file a substantive answer brief,
fully presenting her arguments in opposition to his appeal, we deny
the request.
2 III. Request to Strike Answer Brief
¶6 Husband asks us to strike certain portions of wife’s answer
brief because she did not include citations or references to the
record. See C.A.R. 28(b). Wife is not excused from complying with
the appellate rules because she is unrepresented. Gandy v.
Williams, 2019 COA 118, ¶ 8. Still, because we can understand
wife’s arguments despite the deficiencies in her brief, we deny this
request. See C.A.R. 38(a); see also Bruce v. City of Colorado
Springs, 252 P.3d 30, 32 (Colo. App. 2010) (electing to consider a
party’s deficient brief).
IV. Property Division
¶7 Husband contends that the district court erroneously (1) set
aside to wife as her separate property a portion of her USAA 401(k);
(2) assigned a zero value to wife’s life insurance policy; and
(3) treated wife’s credit card debt as marital. We address and reject
each of these contentions.
A. Applicable Law and Standard of Review
¶8 Before dividing the marital estate, the district court must first
determine whether each asset or debt is marital property, which is
subject to division, or separate property, which is not.
3 § 14-10-113(1), C.R.S. 2025. Assets acquired and debts incurred
during the marriage are presumed marital, but this presumption
can be rebutted with evidence proving an exception listed in section
14-10-113(2). § 14-10-113(3); see In re Marriage of Jorgenson, 143
P.3d 1169, 1171-72 (Colo. App. 2006) (“Marital liabilities include all
debts that are acquired and incurred by [the spouses] during their
marriage.”). And although property a spouse acquired before the
marriage is separate property, any appreciation in its value during
the marriage is marital and divisible. § 14-10-113(1)(d), (4); see In
re Marriage of Cardona, 321 P.3d 518, 521 (Colo. App. 2010), aff’d
on other grounds, 2014 CO 3.
¶9 Next, the district court must value each asset or debt. In re
Marriage of Wright, 2020 COA 11, ¶ 4; Jorgenson, 143 P.3d at 1172.
The court may adopt either spouse’s valuation or make its own, so
long as the valuation is reasonable in light of the evidence as a
whole. In re Marriage of Medeiros, 2023 COA 42M, ¶ 41.
¶ 10 Finally, the district court must equitably divide the marital
estate, considering all relevant factors. § 14-10-113(1); see In re
Marriage of Evans, 2021 COA 141, ¶ 50; Wright, ¶ 3; see also
Jorgenson, 143 P.3d at 1172 (distribution of marital debts is like
4 property division). The division must be equitable, but it need not
be equal. Wright, ¶ 3.
¶ 11 A district court has broad discretion to equitably divide the
marital estate based on the particular facts and circumstances of
each case, and we will not disturb its decision absent an abuse of
that discretion. In re Marriage of Collins, 2023 COA 116M, ¶ 19; see
§ 14-10-113(1); In re Marriage of Smith, 2024 COA 95, ¶ 67
(weighing the statutory factors is within the court’s sound
discretion). A court abuses its discretion when it misapplies the law
or its decision is manifestly arbitrary, unreasonable, or unfair.
Medeiros, ¶ 28. Specific findings on every statutory factor are not
required, provided that the court’s overall findings allow us to
determine that its decision is supported by competent evidence.
Collins, ¶ 19.
B. Wife’s USAA 401(k)
1. Late Disclosure
¶ 12 The district court found, based on a March 2018 statement,
that wife entered into the marriage with $65,537 in her USAA
401(k). The court excluded this amount from its current value of
$146,657, which was derived from an April 2024 statement. The
5 court then added back a $43,100 loan that wife had taken out
against it. In the end, the court calculated the marital share at
$124,220; of this, $20,000 was allocated to husband, with the
remainder going to wife.
¶ 13 Husband challenges the classification of $65,537 as wife’s
separate property, asserting that she disclosed the March 2018
statement just a week before the hearing and should have been
precluded from admitting it. See C.R.C.P. 16.2(e)(2) (requiring that
the parties make certain mandatory disclosures within forty-two
days after service of a petition); C.R.C.P. 16.2(j) (authorizing
sanctions for failure to comply). Wife counters that she timely and
repeatedly disclosed the statement.
¶ 14 Even assuming wife did not timely disclose the statement,
husband fails to explain how wife’s allegedly late disclosure
prejudiced his substantial rights. See C.R.C.P. 61 (an error is only
reversible if it affects a party’s substantial rights); In re Marriage of
Pawelec, 2024 COA 107, ¶ 56 (“An error affects a party’s
substantial rights if ‘it can be said with fair assurance that the error
substantially influenced the outcome of the case or impaired the
basic fairness of the trial itself.’” (citations omitted)). Husband
6 simply states that the admission of the statement “cause[d]
significant financial harm” because wife “was awarded solely
$65,537 of the 401(k).” That “harm” stems from the probative force
of the evidence, not from the fact that wife allegedly disclosed the
document late. Absent a showing of prejudice resulting from the
allegedly delayed disclosure, reversal is unwarranted. See In re
M.E.R-L., 2020 COA 173, ¶ 15.
2. Hearsay
¶ 15 Husband argues that the March 2018 statement was
inadmissible hearsay under CRE 802. The statement is a four-page
standard retirement account statement issued by USAA. Husband
does not allege, nor do we see, that it was incomplete, marked, or
altered in any way; his entire argument is that “there was no
verification that [the statement] was true.”
¶ 16 Without expressly referencing the statement, wife testified that
the value of the account as of the date of the marriage was $65,537.
Husband had notice that wife claimed that amount as her separate
property, including through the joint asset and debt spreadsheet
the parties filed with their joint trial management certificate and a
stipulated exhibit reflecting wife’s proposed property division. Yet,
7 on cross-examination, husband’s counsel did not challenge wife’s
valuation or ask wife about the March 2018 statement, much less
attempt to establish that the statement contained inaccurate
information. Under these circumstances, we conclude that any
error in admitting the statement over husband’s hearsay objection
was harmless. See People in Interest of R.D.H., 944 P.2d 660, 664
(Colo. App. 1997) (concluding that any error in admitting evidence
that is cumulative of other admissible evidence is harmless); see
also Medeiros, ¶ 41 (we will affirm a court’s valuation if it is
reasonable in light of the evidence as a whole).
3. Division of the 401(k)
¶ 17 We reject husband’s claim that awarding wife most of the
marital portion of the USAA 401(k) was, by itself, unfair. We do not
look at the court’s division of a particular asset in isolation.
Instead, the critical question is whether the overall property division
was equitable and, as set forth below, we conclude that the court
acted within its discretion. See In re Marriage of Hunt, 909 P.2d
525, 537-38 (Colo. 1995) (a division of pension benefits is only a
part of the district court’s equitable division of the overall marital
8 property, and an appellate court should not disturb the balance
achieved by the division absent a clear abuse of discretion).
C. Life Insurance Policy
¶ 18 The district court credited wife’s testimony that her life
insurance policy, despite its $250,000 “face value,” held no cash
surrender value and would soon expire. The court therefore valued
the policy at zero and allocated it to wife.
¶ 19 Husband maintains that the district court clearly erred by
finding that wife’s “whole life insurance asset” had a zero value.
But the life insurance policy at issue was not a whole life insurance
policy that “can provide a combination of a death benefit and an
accumulation of a cash value”; it was a term life insurance policy
that provides for the payment of a death benefit but has no cash
value. 24 Colorado Practice Series, Elder Law § 7:7, Westlaw (1st.
ed. database updated Nov. 2024); see also 4 Pat Magarick & Ken
Brownlee, Casualty Insurance Claims § 52:4, Westlaw (4th ed.
database updated Aug. 2025) (explaining the difference between
whole life insurance and term life insurance). The policy statement
in the record reflects that it is a “[twenty] year level term series”
with a “net death benefit” of $250,000 but does not reflect any cash
9 value. Moreover, because wife’s testimony independently supports
the court’s valuation finding, we will not disturb it. See Medeiros,
¶ 41; see also In re Marriage of Thorburn, 2022 COA 80, ¶ 49 (it is
for the district court to determine witness credibility and the weight,
probative force, and sufficiency of the evidence, as well as the
inferences and conclusions to be drawn therefrom); In re Marriage of
Amich, 192 P.3d 422, 424 (Colo. App. 2007) (the district court can
believe all, part, or none of a witness’s testimony).
¶ 20 Having concluded that the district court did not err by finding
that the life insurance policy had no value, we need not consider
husband’s assertion that awarding it solely to wife was an abuse of
discretion.
D. Wife’s Credit Card Debt
¶ 21 At the hearing, the parties agreed that wife incurred credit
card debt during the marriage. Wife testified that the debt covered
her “household expenses.” The district court found that the debt
was marital and included it in the property division. Because the
record supports the court’s determination, we discern no error. See
§ 14-10-113(3); Jorgenson, 143 P.3d at 1172; see also In re Marriage
of Capparelli, 2024 COA 103M, ¶¶ 8, 21-24 (because the husband
10 incurred a line of credit debt for living expenses while the
dissolution was pending, it was a marital debt that should have
been allocated in the property division).
¶ 22 Still, husband insists that his testimony that he did not
receive any benefit from wife’s purchases and two exhibits showing
that the expenditures were made after the parties separated require
a different outcome. But husband cites no authority, and we are
not aware of any, requiring that both parties benefit from a debt
incurred during the marriage before it can be classified as a marital
debt. And reweighing the evidence is not our role. See Thorburn,
¶ 49; Amich, 192 P.3d at 424; see also In re Marriage of Kann, 2017
COA 94, ¶ 36 (“[O]ur supreme court has . . . expressed unbridled
confidence in [district] courts to weigh conflicting evidence.”);
Collins, ¶ 21 (appellate court may presume that the district court
considered all the evidence admitted).
E. Overall Property Division
¶ 23 The district court expressly acknowledged both parties’
contributions to the marital estate. Even so, the court found that
wife, through her “more stable employment and income,”
“contributed far more to the marriage,” including periods where she
11 financially “carried the household” during husband’s intermittent
unemployment. It determined that the overall property division was
equitable, even with wife receiving a slightly larger share.
¶ 24 Husband argues that the overall property division was
inequitable because the district court “ignored” or gave insufficient
weight to his limited earning capacity, contributions to the marital
estate, and history of unemployment. See § 14-10-113(1). We
decline his invitation to reweigh the statutory factors in his favor
and substitute our judgment for that of the district court. See
Smith, ¶ 64; Collins, ¶ 21; see also In re Marriage of Nelson, 2012
COA 205, ¶ 35 (When reviewing for an abuse of discretion, even
where “there is evidence in the record that could have supported a
different conclusion, we will not substitute our judgment for that of
the district court.”). Accordingly, we discern no abuse of discretion
in the property division.
V. Financial Disclosures and Maintenance
¶ 25 Husband contends that the district court erred by denying his
maintenance request because, among other things, it improperly
denied his motion to compel wife to update her mandatory financial
12 disclosures, which were necessary to determine her monthly gross
income accurately. We agree.
A. Mootness
¶ 26 As an initial matter, wife contends that this portion of the
appeal should be dismissed as moot because husband remarried in
August 2024. See In re Marriage of Thomas, 2021 COA 123, ¶ 21
(an issue is moot when the relief requested, if granted, would have
no practical effect on an existing controversy); In re Parental
Responsibilities Concerning S.Z.S., 2022 COA 105, ¶ 50 (an
appellate court will not render an opinion on the merits of an issue
when later events have rendered it moot). But because the alleged
fact is not part of the appellate record, we decline to consider the
argument. See In re Marriage of McSoud, 131 P.3d 1208, 1223
(Colo. App. 2006) (“Only facts appearing in the record can be
reviewed . . . .”); see also In re Marriage of Drexler, 2013 COA 43,
¶ 24 (declining to consider an exhibit appended to a party’s brief
that was not part of the certified record). And even assuming
husband did remarry as alleged, he could still be entitled to
retroactive maintenance until the date of remarriage.
13 B. Applicable Law and Standard of Review
¶ 27 C.R.C.P. 16.2(e) imposes an affirmative duty on each spouse in
a domestic relations case to “disclose all information that is
material . . . without awaiting inquiry from the other [spouse].”
C.R.C.P. 16.2(e)(1); In re Marriage of Hunt, 2015 COA 58, ¶ 13.
C.R.C.P. Form 35.1 specifies the required disclosures, including
• pay stubs, a current income statement, and the final
income statement for the prior year; and
• federal income tax returns, including all schedules, W-2s,
and 1099s, for the three years preceding the dissolution
petition.
¶ 28 Spouses have a continuing duty to promptly supplement or
amend these disclosures as governed by C.R.C.P. 26(e). C.R.C.P.
16.2(e)(4). Failure to comply may result in appropriate sanctions,
including adverse inferences or other evidentiary sanctions. See
C.R.C.P. 16.2(e)(5), (j); Wright, ¶¶ 25, 28; Camp Bird Colo., Inc. v.
Bd. of Cty. Comm’rs, 215 P.3d 1277, 1290 (Colo. App. 2009).
¶ 29 We review rulings on motions to compel discovery for an abuse
of discretion. DCP Midstream LP v. Anadarko Petroleum Corp., 2013
CO 36, ¶ 24.
14 C. Discussion
¶ 30 In May 2023, about two months after petitioning for
dissolution, wife submitted a sworn financial statement, reporting a
monthly gross income of $6,205 as a claims adjuster at USAA,
where she had worked since 1998. Over the ensuing months and
through two different attorneys, wife filed two certificates of
compliance with C.R.C.P. 16.2, indicating that she provided, as
relevant here,
• biweekly pay stubs for the periods of January 2023 to
March 2023 and September 2023 to December 2023; and
• W-2s and tax returns from 2020 to 2022.
¶ 31 In January 2024, the district court ordered both parties to
exchange updated disclosures.
¶ 32 In March, husband’s third attorney entered an appearance. A
month later, husband filed a motion to compel wife to provide both
the mandatory financial disclosures previously given to his former
attorneys and the following updated disclosures:
• biweekly pay stubs from June 2023 to the present; and
• a 2023 W-2 and tax return.
15 ¶ 33 In response, wife conceded that she had not provided pay
stubs from June 2023 to August 2023 but claimed she had
disclosed all other pay stubs for that year. She added that she was
“working on obtaining her new pay stubs and [would] supplement
[her disclosures] at the earliest convenience.” Regarding her taxes,
she represented that she had not yet received her 2023 W-2 and, as
a result, had not filed her tax return.
¶ 34 In a verified reply, husband alleged that a review of his former
attorneys’ files confirmed that wife’s disclosures were still
incomplete. He noted that her response lacked any documentation
proving that she had produced the disputed pay stubs or tax
information.
¶ 35 On May 27, 2024, four days before the hearing, the district
court denied husband’s motion to compel. The court reasoned that
wife was not obligated to resend documents already disclosed to his
former attorneys, but it did not address his request for updated
disclosures.
¶ 36 At the hearing, husband testified that wife failed to update her
pay stubs past March 2023 and provide her 2023 tax
16 documentation. Wife admitted that she could retrieve her pay stubs
via the USAA website but chose not to “show” them to husband.
¶ 37 The district court accepted wife’s testimony that her income
remained largely unchanged since the start of the proceedings.
Relying solely on a pay stub from March 2023, which the court
described as the “best available evidence,” it calculated her monthly
gross income to be $7,302 and denied husband’s request for
maintenance. The court then reiterated its denial of husband’s
motion to compel, explaining simply that wife’s response was more
persuasive.
¶ 38 Husband asserts that the district court erred by denying his
motion to compel, ultimately leading to an inaccurate income
calculation for wife. He maintains that she never produced, among
other things, her 2024 pay stubs and 2023 W-2 and tax return.
¶ 39 The district court did not err by declining to compel wife to
resend documents previously provided to husband’s former
attorneys. But, on this record, we conclude that it abused its
discretion by failing to enforce wife’s obligation to provide updated
mandatory financial disclosures. See DCP Midstream LP, ¶ 24.
Under C.R.C.P. 16.2(e)(1) and (e)(4), and consistent with the court’s
17 January 2024 order, wife had an ongoing duty to supplement her
disclosures, even without husband having to ask. Wife presented
no evidence to contradict husband’s claim that she failed to provide
updated disclosures. On the contrary, her own testimony
suggested that the current income documentation was not only
available but had been withheld.
¶ 40 In declining to compel wife to produce updated disclosures
and then relying on year-old information to determine her income,
the district court effectively rewarded wife’s noncompliance to
husband’s detriment. See C.R.C.P. 16.2(e)(1), (4). That said, we
cannot tell the extent of the harm caused by the court’s error.
Without the missing pay stubs and 2023 tax documents, we cannot
determine wife’s actual monthly gross income or whether the court
might have granted husband’s request for maintenance considering
more accurate income information.
¶ 41 Consequently, we reverse the district court’s order denying
husband’s motion to compel wife to update her mandatory financial
disclosures. We also reverse the court’s denial of maintenance, as
wife’s income was central to that determination. See
§ 14-10-114(3)(a)(I)(A), (C), (3)(a)(II)(A), (B), (3)(c)(I), (II), (V), (VI),
18 C.R.S. 2025. We remand and instruct the district court to enforce
wife’s disclosure obligations under C.R.C.P. 16.2, consider whether
to impose appropriate sanctions for her noncompliance,
redetermine her monthly gross income, and revisit husband’s
request for maintenance. In doing so, the court must allow the
parties to present new evidence of their current financial
circumstances. See Wright, ¶ 24; In re Marriage of Stradtmann,
2021 COA 145, ¶ 35.
¶ 42 Given our disposition, we decline to address husband’s
remaining arguments that the district court inappropriately
excluded certain income sources from wife’s monthly gross income.
VI. Attorney Fees in the District Court
¶ 43 To the extent wife seeks an order requiring husband to pay
attorney fees she incurred during the dissolution proceedings, we
deny the request. Our appellate jurisdiction is limited to reviewing
final judgments or orders, and wife does not point us to any part of
the record reflecting that she made that request of the district
court. See C.A.R. 1(a)(1); § 13-4-102(1), C.R.S. 2025; Evans, ¶ 11;
see also In re Org. of N. Chaffee Cty. Fire Prot. Dist., 544 P.2d 637,
19 638 (Colo. 1975) (“The purpose of an appellate court is to [r]eview
judgments, not to make them . . . .”).
VII. Appellate Attorney Fees and Costs
¶ 44 Husband asks for his appellate attorney fees under section
14-10-119, C.R.S. 2025, based on the disparity in the parties’
financial resources. See In re Marriage of Gutfreund, 148 P.3d 136,
141 (Colo. 2006) (“Section 14-10-119 empowers the [district] court
to equitably apportion costs and fees between parties based on
relative ability to pay.”). Because the district court is better
situated than we are to determine the factual issues regarding the
parties’ current financial resources, we remand for the district court
to consider his request. See C.A.R. 39.1; Gutfreund, 148 P.3d at
141; In re Marriage of Alvis, 2019 COA 97, ¶ 30.
¶ 45 Husband also requests attorney fees under section 13-17-102,
C.R.S. 2025, for having to appeal the district court’s “plain errors.”
But he does not develop any argument for why he is entitled to
such fees. See C.A.R. 39.1 (“If attorney fees are recoverable for the
appeal, the principal brief of the party claiming attorney fees must
include a specific request, and explain the legal and factual basis,
for an award of attorney fees.”); cf. Cikraji v. Snowberger, 2015 COA
20 66, ¶ 21 n.3 (“We do not consider bald factual or legal assertions
presented without argument or development.”). Thus, we deny his
request.
¶ 46 Husband also seeks his appellate costs. Because we affirm in
part and reverse in part, we remand to the district court to
determine appellate costs. See C.A.R. 39(a)(4) (“[I]f a judgment is
affirmed in part, reversed in part, modified, or vacated, costs are
taxed only as ordered by the [district] court.”).
VIII. Disposition
¶ 47 The judgment is affirmed in part and reversed in part, and the
case is remanded for further proceedings consistent with this
opinion.
JUDGE DUNN and JUDGE SCHOCK concur.