24CA0074 Marriage of Ferwerda 11-21-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA0074 Boulder County District Court No. 10DR909 Honorable Andrew Hartman, Judge
In re the Marriage of
Janice Annette Crawford Ferwerda,
Appellant,
and
David Melvin Lopston Ferwerda,
Appellee.
ORDER REVERSED AND CASE REMANDED WITH DIRECTIONS
Division II Opinion by JUDGE JOHNSON Fox and Schock, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced November 21, 2024
Janice Annette Crawford Ferwerda, Pro Se
No Appearance for Appellee ¶1 In this post-decree dissolution of marriage case between
Janice Annette Crawford Ferwerda (wife) and David Melvin Lopston
Ferwerda (husband), wife appeals the district court’s order adopting
a magistrate’s ruling that terminated husband’s maintenance
obligation. We reverse and remand the case to the district court for
further proceedings.
I. Relevant Facts
¶2 In 2010, the district court dissolved the marriage. In doing so,
it adopted the parties’ separation agreement, which directed
husband to pay wife $50,000 in maintenance as a lump sum.
¶3 A couple years later, wife moved to modify maintenance. The
magistrate found that wife’s income had significantly decreased
since the decree and that it was insufficient to meet her needs. The
magistrate modified maintenance and ordered husband to pay wife
$1,200 per month going forward.
¶4 In 2023, husband moved to terminate his maintenance
obligation. He asserted that he had been laid off in 2021, was
unable to find comparable employment, and, at sixty-three years
old, was approaching retirement age.
1 ¶5 At the hearing, husband testified that, since losing his job, he
relied on a severance package, a home equity line of credit, and
early withdrawals from his retirement accounts (averaging $3,450
per month) to support himself. He also testified that within the
next month, he planned to seek social security benefits, which he
anticipated would be about $3,128 per month, and that he intended
to take a lump sum distribution from his pension. He further
acknowledged that he and his current partner shared certain living
expenses. But husband testified that his present income was $0
and that he lacked the ability to continue to pay wife maintenance.
¶6 For her part, wife argued that husband’s financial resources,
which she alleged included approximately $600,000 in retirement
funds and a home in the Florida Keys worth $1 million, would allow
him to continue to pay maintenance and that he was capable of
getting a new job. She also asserted that her financial
circumstances were much worse than husband’s circumstances
and that she relied on maintenance to meet her basic living
expenses. She indicated that she had not worked since 2014, had
relied on public assistance programs, was sixty-nine years old, and
had experienced health issues. She further testified that, without
2 maintenance, her gross income was only $1,510 per month, which
consisted of social security benefits and an annuity payment.
¶7 The magistrate terminated maintenance, determining that
husband had shown a substantial and continuing change to his
financial circumstances. She found that husband was forced into
early retirement, his present income was $0, and he was not
voluntarily underemployed. The magistrate also found that she
“heard no evidence” that husband was being supported by his new
partner.
¶8 Wife petitioned the district court to review the magistrate’s
order. The district court denied the petition and adopted the
magistrate’s order.
II. Standard of Review and Applicable Law
¶9 When we review a district court’s order adopting a magistrate’s
ruling to terminate maintenance, we act as a second layer of
appellate review. In re Marriage of Young, 2021 COA 96, ¶ 8; see
also C.R.M. 7(a)(11). We accept the magistrate’s factual findings
unless they are not supported by the record and will not disturb the
decision absent a showing of an abuse of discretion. See Young,
¶¶ 7-8.
3 ¶ 10 A court may modify or terminate maintenance when there has
been a showing of changed circumstances so substantial and
continuing as to make the terms of the maintenance order unfair.
See § 14-10-122(1)(a), C.R.S. 2024; Young, ¶ 12. The question is
not merely whether the court would have awarded the same
maintenance amount based on the parties’ current financial
circumstances but also whether the changed circumstances have
rendered the maintenance order unfair. See § 14-10-122(1)(a);
Young, ¶ 16.
¶ 11 In making this threshold determination, the court examines
the circumstances pertinent to awarding maintenance under the
statute in effect when the dissolution proceeding was initiated. See
In re Marriage of Thorstad, 2019 COA 13, ¶ 12, superseded by
statute on other grounds, Ch. 176, sec. 1, § 14-10-114(5), 2013
Colo. Sess. Laws 648, as stated in Young, ¶ 13; In re Marriage of
Nelson, 2012 COA 205, ¶ 26; see also § 14-10-114(9), C.R.S. 2024
(“Actions filed before January 1, 2014, are determined pursuant to
the provisions of this section as it existed at the time of the filing of
the action.”).
4 ¶ 12 Under the relevant statute, the court may award maintenance
when it finds that the party seeking maintenance lacks sufficient
property to provide for her reasonable needs and is unable to
support herself through appropriate employment. § 14-10-114(3),
C.R.S. 2010. It also must make the maintenance determination
after considering such relevant factors as (a) the financial resources
of the party seeking maintenance and that individual’s ability to
meet her needs independently; (b) the time necessary to enable the
party seeking maintenance to acquire sufficient education or
training to find appropriate employment and that party’s future
earning capacity; (c) the standard of living established during the
marriage; (d) the duration of the marriage; (e) the age and the
physical and emotional condition of the party seeking maintenance;
and (f) the ability of the party from whom maintenance is sought to
meet his needs while meeting those of the party seeking
maintenance. § 14-10-114(4), C.R.S. 2010.
III. Analysis
¶ 13 Wife contends that the magistrate erred by finding that there
was “no evidence” of husband receiving financial support from his
current partner. We agree.
5 ¶ 14 When a court considers a request to terminate maintenance,
it may consider the financial assistance a payor party receives from
that person’s new significant other. See In re Marriage of Bowles,
916 P.2d 615, 618 (Colo. App. 1995).
¶ 15 Husband testified that his current partner was a pediatrician
and that they equally shared expenses associated with the Florida
Keys home, such as utilities, insurance, and taxes. In his sworn
financial statement, husband reported that the household expenses
amounted to approximately $3,000 per month, without specifying
whether this amount was total monthly expenses or only his share.
Husband also testified that while he did not own a car, he drove his
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24CA0074 Marriage of Ferwerda 11-21-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA0074 Boulder County District Court No. 10DR909 Honorable Andrew Hartman, Judge
In re the Marriage of
Janice Annette Crawford Ferwerda,
Appellant,
and
David Melvin Lopston Ferwerda,
Appellee.
ORDER REVERSED AND CASE REMANDED WITH DIRECTIONS
Division II Opinion by JUDGE JOHNSON Fox and Schock, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced November 21, 2024
Janice Annette Crawford Ferwerda, Pro Se
No Appearance for Appellee ¶1 In this post-decree dissolution of marriage case between
Janice Annette Crawford Ferwerda (wife) and David Melvin Lopston
Ferwerda (husband), wife appeals the district court’s order adopting
a magistrate’s ruling that terminated husband’s maintenance
obligation. We reverse and remand the case to the district court for
further proceedings.
I. Relevant Facts
¶2 In 2010, the district court dissolved the marriage. In doing so,
it adopted the parties’ separation agreement, which directed
husband to pay wife $50,000 in maintenance as a lump sum.
¶3 A couple years later, wife moved to modify maintenance. The
magistrate found that wife’s income had significantly decreased
since the decree and that it was insufficient to meet her needs. The
magistrate modified maintenance and ordered husband to pay wife
$1,200 per month going forward.
¶4 In 2023, husband moved to terminate his maintenance
obligation. He asserted that he had been laid off in 2021, was
unable to find comparable employment, and, at sixty-three years
old, was approaching retirement age.
1 ¶5 At the hearing, husband testified that, since losing his job, he
relied on a severance package, a home equity line of credit, and
early withdrawals from his retirement accounts (averaging $3,450
per month) to support himself. He also testified that within the
next month, he planned to seek social security benefits, which he
anticipated would be about $3,128 per month, and that he intended
to take a lump sum distribution from his pension. He further
acknowledged that he and his current partner shared certain living
expenses. But husband testified that his present income was $0
and that he lacked the ability to continue to pay wife maintenance.
¶6 For her part, wife argued that husband’s financial resources,
which she alleged included approximately $600,000 in retirement
funds and a home in the Florida Keys worth $1 million, would allow
him to continue to pay maintenance and that he was capable of
getting a new job. She also asserted that her financial
circumstances were much worse than husband’s circumstances
and that she relied on maintenance to meet her basic living
expenses. She indicated that she had not worked since 2014, had
relied on public assistance programs, was sixty-nine years old, and
had experienced health issues. She further testified that, without
2 maintenance, her gross income was only $1,510 per month, which
consisted of social security benefits and an annuity payment.
¶7 The magistrate terminated maintenance, determining that
husband had shown a substantial and continuing change to his
financial circumstances. She found that husband was forced into
early retirement, his present income was $0, and he was not
voluntarily underemployed. The magistrate also found that she
“heard no evidence” that husband was being supported by his new
partner.
¶8 Wife petitioned the district court to review the magistrate’s
order. The district court denied the petition and adopted the
magistrate’s order.
II. Standard of Review and Applicable Law
¶9 When we review a district court’s order adopting a magistrate’s
ruling to terminate maintenance, we act as a second layer of
appellate review. In re Marriage of Young, 2021 COA 96, ¶ 8; see
also C.R.M. 7(a)(11). We accept the magistrate’s factual findings
unless they are not supported by the record and will not disturb the
decision absent a showing of an abuse of discretion. See Young,
¶¶ 7-8.
3 ¶ 10 A court may modify or terminate maintenance when there has
been a showing of changed circumstances so substantial and
continuing as to make the terms of the maintenance order unfair.
See § 14-10-122(1)(a), C.R.S. 2024; Young, ¶ 12. The question is
not merely whether the court would have awarded the same
maintenance amount based on the parties’ current financial
circumstances but also whether the changed circumstances have
rendered the maintenance order unfair. See § 14-10-122(1)(a);
Young, ¶ 16.
¶ 11 In making this threshold determination, the court examines
the circumstances pertinent to awarding maintenance under the
statute in effect when the dissolution proceeding was initiated. See
In re Marriage of Thorstad, 2019 COA 13, ¶ 12, superseded by
statute on other grounds, Ch. 176, sec. 1, § 14-10-114(5), 2013
Colo. Sess. Laws 648, as stated in Young, ¶ 13; In re Marriage of
Nelson, 2012 COA 205, ¶ 26; see also § 14-10-114(9), C.R.S. 2024
(“Actions filed before January 1, 2014, are determined pursuant to
the provisions of this section as it existed at the time of the filing of
the action.”).
4 ¶ 12 Under the relevant statute, the court may award maintenance
when it finds that the party seeking maintenance lacks sufficient
property to provide for her reasonable needs and is unable to
support herself through appropriate employment. § 14-10-114(3),
C.R.S. 2010. It also must make the maintenance determination
after considering such relevant factors as (a) the financial resources
of the party seeking maintenance and that individual’s ability to
meet her needs independently; (b) the time necessary to enable the
party seeking maintenance to acquire sufficient education or
training to find appropriate employment and that party’s future
earning capacity; (c) the standard of living established during the
marriage; (d) the duration of the marriage; (e) the age and the
physical and emotional condition of the party seeking maintenance;
and (f) the ability of the party from whom maintenance is sought to
meet his needs while meeting those of the party seeking
maintenance. § 14-10-114(4), C.R.S. 2010.
III. Analysis
¶ 13 Wife contends that the magistrate erred by finding that there
was “no evidence” of husband receiving financial support from his
current partner. We agree.
5 ¶ 14 When a court considers a request to terminate maintenance,
it may consider the financial assistance a payor party receives from
that person’s new significant other. See In re Marriage of Bowles,
916 P.2d 615, 618 (Colo. App. 1995).
¶ 15 Husband testified that his current partner was a pediatrician
and that they equally shared expenses associated with the Florida
Keys home, such as utilities, insurance, and taxes. In his sworn
financial statement, husband reported that the household expenses
amounted to approximately $3,000 per month, without specifying
whether this amount was total monthly expenses or only his share.
Husband also testified that while he did not own a car, he drove his
partner’s vehicle. In addition, he said that he split the costs of gas
and food with his partner, which, according to his sworn financial
statement, amounted to over $700 per month. Husband further
confirmed that he and his partner had a joint bank account that
they used to pay their shared expenses.
¶ 16 By contributing to these living expenses, husband’s partner
assisted husband in satisfying his reasonable needs. The
magistrate thus clearly erred by finding that there was “no
evidence” that he received financial support from his current
6 partner. See Young, ¶ 8; see also Bowles, 916 P.2d at 618.
Consequently, the magistrate overlooked husband’s financial
circumstance when analyzing his ability to meet his needs while
paying maintenance and determining whether the $1,200 per
month maintenance order was unfair. See § 14-10-114(4)(f), C.R.S.
2010; § 14-10-122(1)(a).
¶ 17 Likewise, the magistrate did not examine wife’s financial
resources when deciding to terminate maintenance. See § 14-10-
114(4)(a), C.R.S. 2010. Specifically, it is unclear whether, and to
what extent, the magistrate considered wife’s present financial
resources. See In re Marriage of Gibbs, 2019 COA 104, ¶ 9 (“The
district court must make sufficiently explicit findings of fact to give
the appellate court a clear understanding of the basis of its order.”).
¶ 18 In her ruling, the magistrate recapped the parties’ conflicting
testimony, which included wife’s representation that she had
severely limited income and husband’s claim that wife had
additional resources available to her that she had not disclosed.
For example, husband testified that wife purportedly had a pension,
a 401(k) account, and monies in bank accounts, but he did not
know specifics because wife had not fully disclosed her finances.
7 The magistrate did not indicate which party she found more
credible on the matter. Nor did the magistrate make express
findings to resolve the conflicting evidence.
¶ 19 We therefore reverse the district court’s order adopting the
magistrate’s ruling that terminated husband’s maintenance
obligation. The matter is remanded for the district court to
reconsider husband’s motion. See C.R.M. 7(a)(10) (“The reviewing
judge shall adopt, reject, or modify the initial order or judgment of
the magistrate by written order, which order shall be the order or
judgment of the district court.”); see also In re Marriage of Matheny,
2024 COA 81, ¶ 19 (on a petition for review of a magistrate order,
the district court cannot remand the matter to the magistrate for
reconsideration).
¶ 20 In reconsidering wife’s motion, the district court must base its
decision on the parties’ current financial circumstances, taking
additional evidence and conducting further proceedings as it deems
appropriate. See C.R.M. 7(a)(8) (“The reviewing judge shall consider
the petition for review on the basis of the petition and briefs filed,
together with such review of the record as is necessary. The
reviewing judge also may conduct further proceedings, take
8 additional evidence, or order a trial de novo in the district court.”);
see also In re Marriage of Wright, 2020 COA 11, ¶ 24; In re Marriage
of Kann, 2017 COA 94, ¶ 79; In re Marriage of Folwell, 910 P.2d 91,
93 (Colo. App. 1995) (“[M]odification of maintenance must be based
upon the parties’ needs and circumstances at the time of the
hearing . . . .”). The court also must make findings of fact and
conclusions of law sufficiently explicit to give us an understanding
of the basis of its ruling. See Gibbs, ¶ 9; see also § 14-10-114(4),
C.R.S. 2010; § 14-10-122(1)(a).1
IV. Conclusion
¶ 21 We reverse the district court’s order adopting the magistrate’s
ruling terminating husband’s maintenance obligation. The case is
remanded to the district court for further proceedings consistent
with this opinion.
JUDGE FOX and JUDGE SCHOCK concur.
1 In light of our conclusion, we need not address wife’s remaining
contentions.