24CA0461 Marriage of Carter 02-20-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA0461 Douglas County District Court No. 21DR30418 Honorable Benjamin Todd Figa, Judge
In re the Marriage of
Anthony L. Carter,
Appellant,
and
Jacqueline Jennifer Nolly,
Appellee.
JUDGMENT AND ORDER AFFIRMED
Division V Opinion by JUDGE SCHOCK Freyre and Sullivan, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced February 20, 2025
Pickard Law, P.C., Joe Pickard, Jay Pickard, Kevin Massaro, Chloe Alder, Littleton, Colorado, for Appellant
The W Law, Jon Eric Stuebner, Denver, Colorado, for Appellee ¶1 In this dissolution of marriage case between Anthony L. Carter
(husband) and Jacqueline Jennifer Nolly (wife), husband appeals
the portion of the permanent orders concerning the division of
property and the denial of his C.R.C.P. 59 motion. He contends
that the district court erred by classifying two pieces of real
property as marital and by misvaluing those properties. We affirm.
I. Background
¶2 The parties married in 2004. After living apart for much of the
marriage, with husband in the United Kingdom (U.K.) and wife in
the United States, their marriage was dissolved in 2023.
¶3 The primary assets at issue were two pieces of real property in
the U.K. titled in husband’s name, which we refer to as Hale Road
and Long Lane. Husband acquired Hale Road in 2007 and is the
sole record owner. He acquired his interest in Long Lane in 2020
and is one of four record owners, along with his parents and sister.
¶4 Husband did not disclose his interest in either property before
trial. To the contrary, he indicated in two sworn financial
statements and the Joint Trial Management Certificate (JTMC) that
neither party had any real estate assets. He also represented that
he did not have any separate property. Wife asserted in the JTMC
1 that husband had property interests that he had failed to disclose,
though she did not identify those interests to prevent husband from
“attempt[ing] to fix the disclosure violations . . . at the last minute
before trial.” She instead asked the court to “preclude [h]usband
from presenting any evidence regarding undisclosed property” and
“draw adverse inferences with respect to any undisclosed assets.”
¶5 At trial, husband testified on direct examination that his
parents owned the properties and that he stood to inherit them.
When asked on cross-examination why he was listed as a registered
owner, he said his parents put him on the deeds “for tax purposes”
or as an “inheritance,” but the properties belonged to his parents.
Husband also testified that “the closest value [he] got” for the
properties came from a “surveyor friend” who said Long Lane was
worth about £350,000 and Hale Road was worth £170-180,000.
¶6 Wife did not directly testify as to the value of the properties.
But she testified that her proposed division of marital assets
worksheet included those properties. That document — which was
not formally admitted as an exhibit at trial but was used by the
district court to fashion its property division — listed the value of
Hale Road as $371,359 (approximately £286,000) and the value of
2 Long Lane as $571,129 (approximately £439,000, based on the
exchange rate used by the district court).1 The worksheet included
a calculation of the Long Lane value, which was based on a one-
fourth interest of the estimated value for three residential units and
four commercial units. Wife also introduced internet valuations
that estimated the value of Hale Road as £287,000, with a range of
£273,000 to £302,000, and the total value of two units comprising
Long Lane as £366,000, with a range of £292,000 to £439,000.
¶7 In its oral ruling on the permanent orders, the district court
found that Hale Road and Long Lane were marital property. It
explained that husband had “lost a lot of credibility with the court”
with respect to these properties by failing to disclose them in his
sworn financial statement. The court also found that wife had
persuasively established that husband owned both properties.
¶8 Walking through each of the statutory considerations under
section 14-10-113(1), C.R.S. 2024, the court found that wife “did
not have any part in contributing to the acquisition of these marital
properties.” In doing so, it explained that the properties “appeared
1 The district court took judicial notice of the exchange rate at the
time of the hearing, which the parties agreed was £1 = $1.30.
3 to be gifts from [husband’s] family to him, although there was not
very much evidence in this regard.” The court then found that
there was no evidence of any separate property for either party.
Based on husband’s “disproportionate contribution to the
acquisition of the marital property” — primarily through his
acquisition of Hale Road and Long Lane — the court allocated sixty
percent of the marital assets to husband and forty percent to wife.
¶9 As to the value of Hale Road and Long Lane, the court credited
wife’s position as set forth on her property division worksheet. It
found that Hale Road was worth $371,359 (£286,000) and Long
Lane was worth $571,129 (£439,000). The court awarded Hale
Road to wife and Long Lane to husband. It then ordered husband
to make an equalization payment to wife to achieve the 60/40 split.
¶ 10 Husband filed a motion for post-trial relief under C.R.C.P. 59,
arguing that the court erred by finding Hale Road and Long Lane
were marital property and by overvaluing both properties. The
district court denied the motion, concluding that (1) husband did
not meet his burden of establishing a separate property interest in
the properties; (2) wife presented credible evidence that husband
acquired the properties during the marriage, and the internet
4 records supported the valuations; and (3) husband did not exercise
reasonable diligence to present his additional evidence at trial.
II. Classification as Marital Property
¶ 11 Husband contends that the district court erred by finding that
Hale Road and Long Lane were marital property because the court
found the properties were gifts to him from his family. We disagree
with husband’s premise and, thus, reject his conclusion as well.
A. Standard of Review and Applicable Law
¶ 12 The classification of property as marital or separate is a legal
determination that is based on the district court’s factual findings.
In re Marriage of Smith, 2024 COA 95, ¶ 42. We defer to the district
court’s factual findings unless they are clearly erroneous, and we
independently review its application of the law. Id.
¶ 13 All property acquired by either spouse during the marriage is
presumed to be marital property, regardless of whether title is held
individually or jointly. In re Marriage of Zander, 2021 CO 12, ¶ 16;
see also § 14-10-113(2), (3). That presumption may be overcome by
a showing that the property was acquired by one of the methods
listed in section 14-10-113(2). Zander, ¶ 16; § 14-10-113(3). The
5 party seeking to have property declared as separate bears the
burden of establishing that an exception applies. Smith, ¶ 41.
¶ 14 One exception to the presumption of marital property is
property that a spouse acquires by gift. § 14-10-113(2)(a). To
qualify as a gift, “a transfer of property must involve a simultaneous
intention to make a gift, delivery of the gift, and acceptance of the
gift.” In re Marriage of Balanson, 25 P.3d 28, 37 (Colo. 2001).
Whether a transfer is a gift depends on the intent and acts of the
donor and the recipient, which are questions of fact for the district
court to decide. In re Marriage of Vittetoe, 2016 COA 71, ¶ 34.
B. Analysis
¶ 15 We first disagree with husband that the district court’s
statement that the properties “appeared to be gifts from [husband’s]
family to him” was a finding that the properties were acquired by
gift for purposes of section 14-10-113(2)(a). The court made this
observation after finding that the properties were marital property,
in the context of considering each spouse’s contribution to the
acquisition of the marital property. See § 14-10-113(1)(a); see also
In re Marriage of Rodrick, 176 P.3d 806, 814 (Colo. App. 2007)
(explaining that the court must consider the contributions of each
6 spouse after setting aside to each spouse their separate property).
Thus, the focus of the district court’s comment was not on how the
properties were acquired but on which spouse acquired them.
¶ 16 Moreover, although the court said the properties “appeared to
be gifts,” it immediately clarified that “there was not very much
evidence in this regard.” Read in context, we understand the
district court’s statement to indicate that husband failed to meet
his burden of proving that the properties were acquired by gift but
did show that, however acquired, they were acquired by husband
alone. See In re Marriage of Medeiros, 2023 COA 42M, ¶ 52 (holding
that, by classifying property as marital, the district court implicitly
determined that husband did not overcome the statutory
presumption). The court then relied on that finding to allocate a
larger proportion of the marital assets to husband than to wife.
¶ 17 Nor did the district court clearly err by finding that husband
failed to meet his burden of overcoming the presumption of marital
property. To begin, husband repeatedly represented throughout the
litigation that he did not have any separate property. At trial, his
sole position was that Hale Road and Long Lane were owned by his
parents and thus were not his property at all. Necessarily, then,
7 husband did not present evidence of his parents’ intent to make a
gift or his intent to accept one. See Balanson, 25 P.3d at 37; see
also Medeiros, ¶ 54 (affirming finding of marital property “[g]iven the
minimal and conflicting evidence supporting husband’s separate
property argument”). Indeed, his evidence was to the contrary. See
In re Marriage of Schmedeman, 190 P.3d 788, 792-93 (Colo. App.
2008) (holding that promise to bequeath cabin was not gift absent
actual transfer of property); In re Estate of Heyn, 47 P.3d 724, 727
(Colo. App. 2002) (“An inter vivos gift is invalid in the absence of a
delivery that causes the donor to part with control of the property.”).
¶ 18 In any event, the district court found that husband lacked
credibility with respect to Hale Road and Long Lane because he did
not disclose them on his sworn financial statement. Cf. In re
Marriage of Sgarlatti, 801 P.2d 18, 19 (Colo. App. 1990) (holding
that court could draw inference against party who failed to make
adequate financial disclosure). It was for the district court to decide
whether to believe “all, part, or none of [husband’s] testimony, even
if uncontroverted,” and we are bound by its credibility finding. In re
Marriage of Amich, 192 P.3d 422, 424 (Colo. App. 2007). Husband
8 presented no evidence related to his acquisition of Hale Road and
Long Lane beyond his own testimony that the court rejected.
¶ 19 Husband relies on In re Marriage of Martinez, 77 P.3d 827
(Colo. App. 2003), to support his argument that Hale Road and
Long Lane were not marital property. But Martinez relates only to
the theory husband advanced in the district court — that the
properties were still owned by his parents — which the district
court rejected as a factual matter. In contrast to Martinez, where
the district court found that “the sister was the owner of the
property notwithstanding that title was in wife’s name,” id. at 828,
the district court in this case found expressly that husband was the
owner. In other words, the court found that husband failed to show
that he took title “under circumstance[s] that give rise to a resulting
trust.” Id. at 829. Martinez says nothing about the ensuing factual
question as to whether husband acquired the properties by gifts.
¶ 20 In sum, the district court found with record support that
husband acquired Hale Road and Long Lane during the marriage.
That made them marital property unless husband could prove he
had acquired them by gift. By putting all his eggs in the “not my
property” basket, husband failed to present any evidence that the
9 properties were gifts, and the little evidence he did present, the
court found incredible. The district court therefore did not clearly
err by determining Hale Road and Long Lane were marital property.
III. Valuation of Hale Road and Long Lane
¶ 21 Husband also asserts that the district court erred in
determining the value of Hale Road and Long Lane because its
valuations did not have adequate record support. We disagree.
¶ 22 The district court has discretion to determine the value of
marital property, so long as its valuation is reasonable in light of
the evidence as a whole. In re Marriage of Krejci, 2013 COA 6, ¶ 23.
The court may select the valuation of one party over that of the
other, or it may make its own valuation. Id. We will uphold the
district court’s decision unless it is clearly erroneous. Id.
¶ 23 It is the parties’ duty to present the district court with
sufficient data to make a reasonable valuation, and their failure to
do so is not a basis for reversal. Id. Thus, a party who fails to
present sufficient evidence of value at trial may not on appeal
challenge the adequacy of the evidence to support the valuation. In
re Marriage of Zappanti, 80 P.3d 889, 892 (Colo. App. 2003).
10 B. Analysis
¶ 24 Initially, we note that husband presented minimal evidence as
to the value of either Hale Road or Long Lane. The sole evidence he
presented was his own hearsay testimony that “a surveyor friend”
had told him the properties were worth £170-180,000 and
£350,000, respectively. And even if that single unelaborated
comment could have sufficed to support a valuation, the district
court found husband not credible — both in general and with
respect to these two properties in particular. Having failed to
satisfy his duty to present sufficient evidence of the value of the
properties at trial, husband cannot challenge the district court’s
valuations on the ground that there was insufficient evidence to
support them. See Krejci, ¶ 23; Zappanti, 80 P.3d at 992.
¶ 25 In any event, we cannot conclude that the district court’s
valuations were clearly erroneous in light of the record as a whole.
Those values came from wife’s proposed property division
worksheet, which wife identified as an exhibit before trial and to
which husband stipulated as to admissibility. Although the exhibit
itself was not formally admitted at trial, wife (1) referred to it during
her testimony; (2) confirmed that it was the property division she
11 proposed; (3) specifically noted that it included Hale Road and Long
Lane; and (4) requested the equalization payment on the worksheet,
which was based on her valuations of Hale Road and Long Lane. In
doing so, wife’s testimony effectively adopted those valuations.
Indeed, in husband’s C.R.C.P. 59 motion, husband took the
position that the worksheet was admitted as an exhibit at trial. The
district court then used that worksheet — without objection from
husband — in formulating its final property division. Thus, it is not
as if the district court pulled the property values out of thin air.
¶ 26 Wife also presented internet valuation estimates for each of
the properties, which were admitted without objection. The
estimate for Hale Road was £287,000 — the same value used in
wife’s worksheet and adopted by the district court, with any minor
discrepancy attributable to differing exchange rates. The estimate
for Long Lane consisted of two separate valuations for two separate
units. The total of those two estimates was £366,000, but the total
range of estimates was £292,000 to £439,000. The value the
district court adopted was right at the top end of that range.
¶ 27 Husband argues that both wife’s testimony and the internet
estimates were inadmissible. He asserts that wife was not qualified
12 to testify as to the value of the properties because she was not an
owner and lacked sufficient knowledge of the properties to form an
intelligent opinion as to their value. See In re Marriage of Plummer,
709 P.2d 1388, 1389 (Colo. App. 1985). And he maintains that,
given wife’s lack of personal knowledge, the internet estimates
should not have been admitted either. But husband did not object
to either wife’s testimony or the internet estimates at trial. We
therefore will not review these evidentiary objections for the first
time on appeal. See Antolovich v. Brown Grp. Retail, Inc., 183 P.3d
582, 600 (Colo. App. 2007) (“If a party makes no contemporaneous
objection to the introduction of evidence, we will not review the
alleged error on appeal.”); Gestner v. Gestner, 2024 COA 55, ¶ 18
(“In civil cases, issues not raised in or decided by the district court
generally will not be addressed for the first time on appeal.”).
¶ 28 Husband also contends that the district court could not rely
on wife’s proposed property division worksheet because (1) it was
not admitted into evidence and (2) it did not explain the basis for its
estimated values. As to the first argument, we have already noted
that wife adopted the worksheet in her testimony, giving the court
an evidentiary basis for considering the worksheet valuations even
13 if the worksheet itself was not admitted. Moreover, husband
stipulated to its admissibility before trial. While it appears that wife
may have simply overlooked formally moving for its admission, the
worksheet was indisputably before the court without objection.
¶ 29 As to husband’s challenge to the values on the worksheet, we
acknowledge that the basis for the Long Lane valuation in
particular is pretty thin. The note on the worksheet simply states
that it is “[b]ased on 1/4 ownership of 3 residential units (£165,000
per unit) and 4 commercial units (£321,400 per unit).” It does not
explain where those per-unit values came from, and the evidence at
trial did not establish exactly how many units comprised Long
Lane. Nor does the calculation on the worksheet appear to be tied
in any way to the Long Lane internet estimate that wife presented.
¶ 30 But given husband’s failure to present any credible evidence to
the contrary, the district court was entitled to “rel[y] upon the only
evidence available to it” — to which, again, husband did not object.
Zappanti, 80 P.3d 892-93. Under these circumstances, and with no
other information to make its own valuation, the district court’s
decision to accept wife’s threadbare valuation over husband’s
threadbare and incredible one was neither unreasonable nor clearly
14 erroneous. See Krejci, ¶ 23; see also In re Marriage of Nevarez, 170
P.3d 808, 812 (Colo. App. 2007) (holding that district court did not
abuse its discretion where, “based upon the record the parties
made, [it] had a single choice”). Thus, because the district court’s
valuations of Hale Road and Long Lane have record support, we will
not disturb them. See Krejci, ¶ 25; Nevarez, 170 P.3d at 813.
¶ 31 Finally, we reject husband’s attempt to pin his lack of evidence
on wife’s failure to disclose his inadequate disclosure sooner, which
he calls a due process violation.2 It was husband’s obligation to
disclose all properties he owned. See C.R.C.P. 16.2(e)(2), (10) (“[I]t
is the duty of parties . . . to provide full disclosure of all material
assets and liabilities.”); In re Marriage of Martin, 2021 COA 101,
¶ 25. Notwithstanding husband’s insistence that he did not believe
he owned Hale Road and Long Lane, his name was on the deeds,
and the district court found he violated his disclosure obligation
and “underreported his real estate holdings” by not disclosing them.
2 Husband did not make a due process argument in the district
court. See Gestner v. Gestner, 2024 COA 55, ¶ 18 (noting that we do not address issues first raised on appeal). But we consider the substance of this argument to the extent it bears on whether the district court clearly erred by relying on wife’s valuations.
15 ¶ 32 Husband can hardly now complain that his due process rights
were violated because wife discovered the omission before trial and
did not more promptly warn him to correct it. See In re Marriage of
Schelp, 228 P.3d 151, 156 (Colo. 2010) (noting that C.R.C.P. 16.2(e)
“shift[s] the responsibility for omissions or misstatements” from the
receiving party to the disclosing party); cf. Rodrick, 176 P.3d at 815
(holding that the district court properly relied on husband’s
evidence as to value despite wife’s argument that she had been
unable to obtain appraisals of the property because she did not
receive copies of the deeds until shortly before the hearing).
¶ 33 That does not mean we condone wife’s gamesmanship of
intentionally withholding the details of husband’s nondisclosure to
gain an advantage at trial. Beyond the general duty of candor to
the court, “[p]arties to domestic relations cases owe each other and
the court a duty of full and honest disclosure” of all material facts
and “must affirmatively disclose all information that is material to
the resolution of the case.” C.R.C.P. 16.2(e)(1). More specifically,
wife’s sworn financial statement required wife to disclose all assets
owned by either party. Yet despite complaining about husband’s
16 nondisclosure, wife also knowingly failed to disclose Hale Road and
Long Lane — contrary to her own disclosure obligation.
¶ 34 Nevertheless, the fact that wife may also have violated her
disclosure obligation does not excuse husband’s nondisclosure or
his failure to present evidence of value. It is undisputed that
husband knew about Hale Road and Long Lane well before wife
disclosed them and, thus, had ample opportunity to obtain evidence
of their value in the event they were deemed to be his properties.
And when wife disclosed the properties on her exhibit list five days
before trial, husband did not ask for a continuance or request any
other relief. Thus, even if wife should have handled husband’s
nondisclosure better, her response is not a basis for reversal.
IV. C.R.C.P. 59 Motion
¶ 35 Husband next contends that the district court erred by
denying his C.R.C.P. 59 motion. As he acknowledges, his
challenges to the Rule 59 order mirror his challenges to the
permanent orders, and we reject them for the same reasons.
Because the court did not err by finding that Hale Road and Long
Lane were marital property, and because there was record support
for its valuations of those properties, the court did not abuse its
17 discretion by denying the Rule 59 motion. See Sch. Dist. No. 12 v.
Sec. Life of Denver Ins. Co., 185 P.3d 781, 787-88 (Colo. 2008)
(reviewing ruling on C.R.C.P. 59 motion for abuse of discretion).
¶ 36 Husband takes issue with the district court’s finding that he
“could have, with reasonable diligence, discovered and produced
additional evidence at the hearing.” But to the extent husband
sought by his Rule 59 motion to present new evidence — including
“an inspection and official valuation [of Long Lane] by a qualified
and professional surveyor,” city records showing the number of
units in Long Lane, and recent “qualified and professional
valuation[s]” for both properties — that is the standard he was
required to meet. See C.R.C.P. 59(d)(4); see also Aspen Skiing Co. v.
Peer, 804 P.2d 166, 172 (Colo. 1991). For the reasons outlined
above, we agree with the district court that he failed to do so.
V. Attorney Fees
¶ 37 Wife requests an award of her appellate attorney fees under
section 13-17-102(4), C.R.S. 2024, on the ground that husband’s
appeal lacked substantial justification and was brought for the
purpose of delay. We deny this request. Although husband did not
prevail, we do not agree that his appeal lacked substantial
18 justification. See 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. Nor is there any basis in the record for us to conclude that
husband brought the appeal as an improper delay tactic.
¶ 38 Wife also cites section 14-10-119, C.R.S. 2024, as a basis for
an award of attorney fees, but she does not make any argument
under that statute that is distinct from her argument that husband
acted improperly in initiating and pursuing this appeal. We
therefore do not address wife’s entitlement to fees under section
14-10-119. See C.A.R. 39.1 (“Mere citation . . . to a statute, without
more, does not satisfy the legal basis requirement.”). To the extent
wife wishes to seek fees under that statute, she may do so in the
district court. See In re Marriage of Collins, 2023 COA 116M, ¶ 86
(noting that “the district court is better equipped to determine the
factual issues regarding the parties’ current financial resources”).
VI. Disposition
¶ 39 The judgment and order are affirmed.
JUDGE FREYRE and JUDGE SULLIVAN concur.