Marriage of Gabriel

• Court: Colorado Court of Appeals
• Decided: January 2, 2025
• Docket: 23CA2216
• Status: Unpublished

Opinion

23CA2216 Marriage of Gabriel 01-02-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA2216 Jefferson County District Court No. 22DR31096 Honorable Christopher B. Rhamey, Judge

In re the Marriage of

David Gabriel,

Appellee,

and

Arina Gabriel,

Appellant.

JUDGMENT AFFIRMED

Division VI Opinion by JUDGE BROWN Welling and Moultrie, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced January 2, 2025

Rathod Mohamedbhai LLC, Felipe Bohnet-Gomez, Denver, Colorado, for Appellee

Arina Gabriel, Pro Se ¶1 In this dissolution of marriage case involving David Gabriel

(husband) and Arina Gabriel (wife), wife appeals portions of the

district court’s permanent orders concerning the division of marital

property and the allocation of parental responsibilities. We affirm

the court’s judgment.

I. Background

¶2 Husband and wife were married in 2014 and have one

daughter. In August 2018, wife’s mother, Faina Ulman, offered to

give the parties $100,000 as a down payment on a house in

exchange for being able to live there with the family. Utilizing the

money from Ulman, the parties jointly purchased the marital home

in November 2018. In November 2022, husband moved out of the

marital home and purchased a mobile home using funds from a

home equity line of credit (HELOC) the parties had jointly obtained

in April 2021.

¶3 Husband filed his petition for dissolution of the marriage in

December 2022. The following year, the district court held a

permanent orders hearing. In October 2023, the court entered an

oral ruling dividing the marital estate and allocating parental

responsibilities and then reduced that order to writing two weeks

1 later. Wife unsuccessfully moved the court to amend or reconsider

the permanent orders, making several of the arguments she now

raises on appeal.

II. Property Division

¶4 Wife contends that the district court erred in dividing the

marital estate by (1) equally allocating the marital assets and debts;

(2) rejecting an alleged stipulation that husband would be

responsible for the HELOC debt; and (3) failing to account for

husband’s alleged violation of the automatic temporary injunction

imposed by section 14-10-107(4)(b)(I), C.R.S. 2024. We address

and reject each contention in turn.

A. Applicable Law and Standard of Review

¶5 Under the Uniform Dissolution of Marriage Act, a district court

must take specific steps to equitably divide the marital estate. In re

Marriage of Balanson, 25 P.3d 28, 35 (Colo. 2001); § 14-10-113,

C.R.S. 2024. First, the court must determine whether an interest

constitutes “property.” Balanson, 25 P.3d at 35. The term

“property” broadly includes “everything that has an exchangeable

value or which goes to make up wealth or estate.” Id. (quoting In re

Marriage of Graham, 574 P.2d 75, 77 (Colo. 1978)).

2 ¶6 Second, once the court determines that an asset is “property,”

it must determine whether the property “is marital and subject to

division or separate and shielded from division.” In re Marriage of

Medeiros, 2023 COA 42M, ¶ 49. Generally, all property acquired

during the marriage is presumed to be marital unless it fits into one

of the exceptions listed in section 14-10-113(2). § 14-10-113(3); In

re Marriage of Seewald, 22 P.3d 580, 586 (Colo. App. 2001).

¶7 Third, once the court deems property to be marital, it must

value the property in order to make an equitable division.

Balanson, 25 P.3d at 36. The court must value the property as of

the date of the decree of dissolution or the date of the hearing on

the disposition of the property if the hearing precedes the date of

the decree. Id.; § 14-10-113(5).

¶8 Finally, the court “shall divide the marital property, without

regard to marital misconduct, in such proportions as the court

deems just after considering all relevant factors.” § 14-10-113(1).

The factors that the court must consider include “[t]he contribution

of each spouse to the acquisition of the marital property”; “[t]he

value of the property set apart to each spouse”; “[t]he economic

circumstances of each spouse at the time the division of property is

3 to become effective”; and “[a]ny increases or decreases in the value

of the separate property of the spouse during the marriage or the

depletion of the separate property for marital purposes.”

§ 14-10-113(1)(a)-(d).

¶9 Notably, the “[a]llocation of marital debts is in the nature of

property division.” In re Marriage of Jorgenson, 143 P.3d 1169,

1172 (Colo. App. 2006). Thus, the court must also classify debts as

marital or separate, determine their value, and divide them among

the spouses, just as it does the assets. See id.

¶ 10 The overall property division must be equitable, but it need

not be equal. In re Marriage of Wright, 2020 COA 11, ¶ 3. “[T]he

key to an equitable distribution is fairness, not mathematical

precision.” In re Marriage of Cardona, 2014 CO 3, ¶ 34. To that

end, a district court has “great latitude to effect an equitable

distribution based upon the facts and circumstances of each case.”

Id. (quoting In re Marriage of Hunt, 909 P.2d 525, 537 (Colo. 1995)).

We review a court’s order dividing a marital estate for an abuse of

discretion. Medeiros, ¶ 28. A court abuses its discretion when its

decision is manifestly arbitrary, unreasonable, or unfair or if it

misapplies the law. Id.

4 B. The District Court Acted Within Its Discretion in Equitably Allocating the Marital Estate

¶ 11 Wife contends that the district court abused its discretion by

ordering a nearly equal allocation of the marital estate. Reviewing

the court’s written and oral orders together, see In re Marriage of

Pawelec, 2024 COA 107, ¶ 41, we disagree.

¶ 12 Temporarily setting aside the marital home, which the parties

agreed to sell, the court allocated the remaining marital assets and

debts as provided in the chart below:

Asset or Debt Husband Wife Down payment debt to Ulman ($50,000) ($50,000) Mobile home $53,0001 2018 Nissan Maxima $6,300 2023 Hyundai Kona $4,356.78 USAA checking account – 1469 $4,364.07 USAA savings account – 1442 $1,000.07 USAA checking account – 3347 $5,028.16 USAA savings account – 3355 $6,213 Investment fund $2,038.14 USAA credit card – 9604 ($2,258)

1 The district court did not make an express finding as to the value

of the mobile home it allocated to husband, but its calculations imply that it found that the mobile home was worth $53,000 — the value listed in the bill of sale. Wife did not offer contrary evidence at the permanent orders hearing and does not challenge the court’s value findings on appeal.

5 Asset or Debt Husband Wife Rocky View dental debt ($357) USAA credit card – 2878 ($8,297.37) Chase Amazon visa card ($61.24) Capital One credit card - 1784 ($455.81) HELOC loan ($82,341.88) Total ($75,941.43) ($35,529.65) ¶ 13 To balance this disproportionate allocation, which resulted in

“a very different division of assets that . . . would be unequitable

and not just,” the court ordered that husband “shall receive . . .

$40,000 of the equity off the top of the selling of” the marital home,

and “[t]he remainder will be split fifty-fifty.” Accordingly, before

accounting for the equal division of the remaining proceeds from

the sale of the marital home, the court’s orders resulted in a near

equal division of the marital estate, with wife having been allocated

$35,529.65 in debt and husband having been allocated $35,941.43

in debt.

¶ 14 On appeal, wife does not contest the court’s findings regarding

the value of the marital property or argue why she should be

entitled to more than roughly fifty percent of the marital estate.

Instead, wife contends that by allowing husband to receive the first

$40,000 of the proceeds from the sale of the marital home, the

6 court is forcing her to pay half of the HELOC debt, which she claims

is husband’s separate property. She argues that “[h]usband was

the only one who benefit[ed] from the mobile home he bought and

improved with a $69k HELOC cash-out; then added $14k to that

HELOC, maxing it out, to pay attorney fees for this case.” She

contends that it is unjust for the court to require that she pay “for

half of [h]usband’s mobile home . . . and half of his attorney fees,

although she will receive no benefit from these.”

¶ 15 As an initial matter, it appears that wife misunderstands the

district court’s orders. Because the mobile home was acquired

during the marriage, the court correctly determined that it was a

marital asset. See § 14-10-113(3). Similarly, because the HELOC

debt was incurred during the marriage, the court correctly

determined that it was a marital debt. See id. The court did not, as

wife appears to argue, determine that the mobile home and the

HELOC debt were husband’s separate property and then

erroneously include them in the marital estate. Instead, once the

court determined that the mobile home and HELOC debt were

marital property, it had the discretion — indeed, the obligation — to

divide that property equitably between the parties. See

7 § 14-10-113(1). The court allocated the entirety of the HELOC debt

to husband along with the asset that would offset most of that

debt — the mobile home.

¶ 16 Against this backdrop, we reject wife’s contention that the

court ordered her to pay half of the HELOC from her share of the

proceeds from the sale of the marital home. The illustration of the

sale set forth in wife’s appellate briefs misses the mark. We provide

the following alternative (and simplified) example to illustrate how

the district court’s order will work.

¶ 17 After paying real estate transaction fees and the mortgage (but

not the HELOC), let us assume the total proceeds from the sale of

the marital home are $300,000.2 As part of its oral ruling, the court

ordered the parties to repay the $100,000 debt to Ulman once the

home is sold, leaving $200,000 to be divided among them. Because

husband is entitled to the first $40,000, $160,000 remains to be

split evenly between the parties. Thus, husband would get

2 The parties stipulated that the value of the marital home is

$527,000 and that the first mortgage held a principal balance of $272,178.77. To offer a simplified illustration, we round the difference ($254,821.23) to $300,000.

8 $120,000 ($40,000 + $80,000) and wife would get $80,000 from the

sale of the marital home.

¶ 18 But husband remains solely obligated to pay the roughly

$82,000 HELOC debt from his share of the sale proceeds; wife has

no corresponding obligation. Indeed, in its order denying wife’s

post-trial motion, the court made clear that “if selling the [marital

home] is contingent on [husband] paying back the HELOC loan,

[husband] must take actions to facilitate the [c]ourt’s order of

selling the home which may require him to pay off the debt.”

¶ 19 As a practical matter, if husband does not pay off the HELOC

before the home is sold, it must be paid at the time of sale, before

the parties receive any sale proceeds. In that circumstance, the

entire HELOC debt would be charged to husband, reducing his

ultimate net share of the sale proceeds. Under our illustration,

after paying Ulman and the HELOC, $118,000 in sale proceeds

would remain to be divided among the parties ($300,000 -

$100,000 - $82,000 = $118,000). But from that amount, husband

9 would receive just $38,000 ($120,0003 - $82,000 = $38,000) while

wife would still receive $80,000.

¶ 20 Returning to the propriety of the $40,000 setoff to husband,

we perceive no inequity. After the court allocated the marital assets

and debts, husband shouldered a disproportionate share of the

debt (roughly $40,000 more than wife), which was not entirely

attributable to the difference between the HELOC debt and the

mobile home value (roughly $29,000). In other words, even if the

HELOC debt and mobile home value were not considered, husband

would still have been allocated less of the marital estate than wife

(or, said another way, more of the marital debt than wife). Viewed

in this context, the equalization payment was not designed to

reimburse husband for the HELOC debt specifically, but to make

the overall distribution of the marital estate equitable given the

parties’ respective circumstances.

¶ 21 Finally, wife argues that requiring her to pay any portion of

the HELOC debt is inequitable because husband used funds from

3 Recall, $120,000 ($40,000 + $80,000) represents the net proceeds

husband would have been entitled to assuming he paid off the HELOC before the sale of the property.

10 the HELOC to pay for improvements to the mobile home and his

attorney fees. First, any improvements to the mobile home should

have been reflected in its valuation, which wife does not challenge

on appeal. Second, husband asked the court to consider the

amounts the parties had paid in attorney fees as marital debt

subject to equitable division by the court. Wife did not object to

that proposal, and at the end of the permanent orders hearing, the

court asked wife how much she had paid in attorney fees. Although

it is unclear where in the marital assets or debts wife’s attorney fees

are reflected, wife does not argue that the court failed to account for

them.

¶ 22 In the end, we perceive no abuse of discretion in the district

court’s near equal division of the marital estate. See In re Marriage

of Smith, 2024 COA 95, ¶¶ 66-69 (the district court was within its

discretion when it ordered a “relatively equal allocation of the

marital estate”); In re Marriage of Paulsen, 677 P.2d 1389, 1390

(Colo. App. 1984) (the district court was within its discretion “to

effect an equal division of property” and to “equalize” the “net

awards”).

11 C. The District Court’s Order is Consistent with the Parties’ Alleged Stipulation Concerning the HELOC Debt

¶ 23 Wife contends that the district court erred by not giving effect

to the parties’ alleged stipulation that husband would be solely

responsible for the entirety of the HELOC debt as his separate

property. In support of her contention, wife directs us to a sentence

in the joint trial management certificate (JTMC) which reads,

“[Husband] has agreed with [wife] that the repayment of the HELOC

will come from his share of the [marital home] proceeds.” We are

not persuaded that the court erred.

¶ 24 Husband disputes that the parties reached any agreement

that he “would be solely responsible for the HELOC debt or that it

should not be characterized as marital debt.” Instead, husband

argues that “the parties merely agreed that the [c]ourt should

allocate the marital debts ‘such that [h]usband is responsible for

paying all debts in his name, and [w]ife is responsible for paying all

debts in her name.’”

¶ 25 Because the classification of property as marital or separate is

a legal determination, the court is not bound by the parties’

stipulation regarding its character. See Smith, ¶¶ 41-42 (“The party

12 seeking to have the property declared separate bears the burden to

establish that it retains its separate character.”). But even if we

accept that the statements made in the JTMC amount to a

stipulation that husband will be solely responsible for paying back

the HELOC debt, we conclude that the court’s order is consistent

with that stipulation. As explained above, husband remains

obligated to pay the roughly $82,000 HELOC debt and wife has no

corresponding obligation. And nothing in the JTMC suggests that

the parties agreed the HELOC debt would be deemed husband’s

separate property.

D. The Court Considered Husband’s Use of Marital Assets when Allocating the Marital Estate

¶ 26 Wife contends that the district court abused its discretion by

failing to consider husband’s alleged violation of the temporary

injunction imposed by section 14-10-107(4)(b)(I). She argues that

the injunction protects the parties “through an automatic restraint

on their ability to hurt the other spouse physically, emotionally, or

financially” and that husband violated these restraints when he

“cash[ed] out $82K from the HELOC in his name, to serve his own

13 interests by buying and improving his own domicile/mobile home,

and paying for his attorney fees in this case.”

¶ 27 Section 14-10-107(4)(b)(I)(A) enjoins divorcing spouses “from

transferring, encumbering, concealing, or in any way disposing of,

without the consent of the other party or an order of the court, any

marital property, except in the usual course of business or for the

necessities of life.” See In re Storey, 2022 CO 48, ¶ 42. The

temporary injunction takes effect against the petitioner “[u]pon the

filing of a petition for dissolution of marriage.” § 14-10-107(4)(b)(I).

¶ 28 Preliminarily, husband contends that wife failed to preserve

any argument that his alleged violation of the temporary injunction

should have affected the district court’s equitable distribution of the

marital estate. As evidence of preservation, wife directs us to two

pages of the parties’ JTMC and the entirety of the permanent orders

hearing transcript. The cited portions of the JTMC do not reference

husband’s alleged violation of the temporary injunction. And our

review of the cited transcript reveals that wife mentioned the

temporary injunction only in connection with husband using funds

from the HELOC to purchase the mobile home.

14 ¶ 29 But husband bought the mobile home in November 2022

before he filed the petition for dissolution of marriage the following

month. Because husband used the money drawn from the HELOC

before the temporary injunction took effect, this transaction could

not have violated the injunction. See Atmel Corp. v. Vitesse

Semiconductor Corp., 30 P.3d 789, 796 (Colo. App. 2001) (“The

purpose of an injunction is to prevent ‘future harm,’ not to penalize

a defendant for alleged past unauthorized actions.”) (citation

omitted), abrogated on other grounds by Ingold v. AIMCO/Bluffs,

L.L.C. Apartments, 159 P.3d 116 (Colo. 2007). Thus, the district

court did not abuse its discretion by not identifying husband’s

purchase of the mobile home as a violation of the temporary

injunction.

¶ 30 In her reply brief, wife provides a different citation to a section

of the JTMC addressing attorney fees, in which she “request[ed]

notice of [husband’s] nonconsensual violation of the temporary

injunction, where [husband] took out a portion of the marital

HELOC to pay his attorney without [wife’s] consent.” We reject

wife’s contention for three reasons.

15 ¶ 31 First, wife had an obligation to identify in her opening brief

“the precise location in the record where” her contested issue was

preserved, C.A.R. 28(a)(7)(A), and we typically do not consider

arguments raised for the first time in a reply brief, In Interest of

L.B., 2017 COA 5, ¶ 48.

¶ 32 Second, even considering the new record citation provided in

the reply brief, we are not persuaded that wife has preserved the

issue for appeal. While wife included a single line in the JTMC

raising the issue, that line appeared in her request for attorney fees,

and wife does not appeal the court’s order regarding attorney fees.

Wife did not raise the issue at the permanent orders hearing,

develop any argument before the district court as to how husband’s

alleged violation of the temporary injunction should have impacted

the equitable distribution of the marital estate, or obtain a ruling on

the matter. See In re Marriage of Turilli, 2021 COA 151, ¶ 12 (“An

issue is preserved for appeal when it is brought to the court’s

attention and the court ruled on it.”). As a result, the court never

had a meaningful opportunity to consider wife’s argument. See

Gestner v. Gestner, 2024 COA 55, ¶ 18 (“[I]ssues not raised in or

16 decided by the district court generally will not be addressed for the

first time on appeal.”).

¶ 33 Third, considering wife’s argument on the merits, we conclude

that husband did not violate the temporary injunction because

“marital assets can be, and regularly are, used to pay attorney[] fees

during the course of a divorce proceeding.” Storey, ¶ 43.

III. Allocation of Parental Responsibilities

¶ 34 Wife contends that the portion of the district court’s order

pertaining to the child’s attendance at religious services infringes on

her fundamental right to parent. We disagree.

¶ 35 All citizens enjoy the right to freely pursue their religious

beliefs as guaranteed by the Free Exercise Clause of the First

Amendment of the United States Constitution and applied to the

states through the Due Process Clause of the Fourteenth

Amendment. In re Marriage of McSoud, 131 P.3d 1208, 1215 (Colo.

App. 2006). Parents also have the fundamental right to make

decisions concerning the care, custody, and control of their

children. Id.; Troxel v. Granville, 530 U.S. 57, 66 (2000) (“[T]he Due

Process Clause of the Fourteenth Amendment protects the

17 fundamental right of parents to make decisions concerning the

care, custody, and control of their children.”).

¶ 36 “A parent’s right to determine the religious upbringing of a

child derives from the parent’s right both to exercise religion freely

and to the care, custody, and control of a child.” McSoud, 131 P.3d

at 1215. Accordingly, even in cases where a parent lacks

decision-making authority with respect to religion, that parent

nevertheless retains a constitutional right to educate their child in

their chosen religion. Id. at 1215-16; see also In re Marriage of

Crouch, 2021 COA 3, ¶ 27 (“A parent’s free exercise rights are not

implicated by a court’s allocation of decision-making responsibility

between parents.”).

¶ 37 Allocating parental responsibilities is a matter within the

sound discretion of the district court. Crouch, ¶ 21; Pawelec, ¶ 45.

A court abuses its discretion when its decision is manifestly

arbitrary, unreasonable, or unfair or when it misapplies the law.

Medeiros, ¶ 28. However, we review de novo whether the court’s

order violates wife’s constitutional rights. See In re Marriage of

Newell, 192 P.3d 529, 535 (Colo. App. 2008).

18 B. The District Court’s Order Does Not Infringe on Wife’s Constitutional Right to Parent

¶ 38 Wife argues that the district court’s order concerning the

child’s attendance at religious services on Sunday mornings

infringes on her fundamental right to make decisions concerning

the care, custody, and control of her child. We consider wife’s

contention in the context of the court’s overall allocation of parental

responsibilities.

¶ 39 To accommodate wife’s work schedule on Friday and Saturday

evenings, the court ordered that wife have parenting time from

Sunday through Tuesday and that husband have parenting time

from Thursday to Saturday, with the parents alternating

Wednesdays.4 The court also ordered that

[husband] and [wife] shall agree on the religious facility that the child is to attend on Sunday mornings. If no agreement is made, the party shall continue to attend the same

4 It appears that the district court’s written order contains a typo

regarding the parenting time schedule. The written order states, “[Wife] will have parenting time Sunday through Thursday. [Husband] shall have parenting time Thursday through Saturday. The parties will alternate on Wednesdays.” Because the parties cannot alternate Wednesdays if Wednesday parenting time is allocated to wife, we assume that the court intended for its written order to parallel its oral order, which correctly reflected that wife’s parenting time is from Sunday to Tuesday.

19 religious facility that was in place at the time of the separation. [Husband] is responsible for taking the child to [the] religious facility on Sunday morning pursuant to the parenting plan issued in this order. [Wife] is responsible for picking up the child from any religious activity on Sunday morning.5

Finally, the court ordered that the parents have joint

decision-making responsibility.

¶ 40 Wife argued in her post-trial motion that the court’s order

meant “that the child be raised with one religion” and infringed “on

the co-parents’ rights to make joint decisions about religion.” In

denying wife’s motion, the court clarified that wife “is free to take

the child to any religious facility during her parenting time” and

that it “did not order the child to be raised in one religious setting

or restrict the opportunity for religious freedom.” Rather, the court

explained that it merely “made a decision surrounding parenting

time on Sunday [m]ornings.”

5 The district court actually ordered that “[wife] is responsible for

taking the child to religious facility on Sunday morning” and that “[husband] is responsible for picking up the child from any religious activity on Sunday morning,” but given that the child would be with husband Saturday night into Sunday morning and that wife’s parenting time was to begin on Sunday morning, it appears that the court reversed the party designations in this part of its written order.

20 ¶ 41 On appeal, wife argues that the portion of the court’s order

requiring the child to “attend the same religious facility that was in

place at the time of the separation” requires the child to attend

husband’s religious services and infringes on wife’s right to make

decisions about her child’s religion. We are not persuaded.

¶ 42 First, the court’s order does not implicate wife’s right to freely

exercise religion under the First Amendment. A plain reading of the

order reveals that it does not prohibit wife from practicing the

religion of her choice, require that she accompany the child to

husband’s religious services, or prevent her from educating the

child in her chosen religion. See McSoud, 131 P.3d at 1215-16.

¶ 43 Second, the court’s order does not require the child to be

raised in any particular religion or restrict wife’s right to make

religious decisions for her child. Although nothing in the original

order imposed such restrictions, the court made clear in its order

denying wife’s post-trial motion that wife was free to educate the

child in her chosen religion and take the child to religious services

of her choosing during her parenting time. See id.

¶ 44 Third, the court’s order is reasonably understood as an

attempt to facilitate the parenting time exchanges that were to

21 occur on Sunday mornings by identifying the location for such an

exchange, absent the parties’ agreement to a different arrangement.

Given that the child was to transition from husband to wife on

Sunday mornings because wife worked late on Saturday nights, the

court tried to give the parties a practical solution for parenting time

exchanges. It did not mandate the child’s religious upbringing.

¶ 45 Evaluated in this context, the district court’s order did not

infringe on wife’s fundamental right to parent, and we cannot

conclude that the court abused its discretion.

IV. Disposition

¶ 46 We affirm the district court’s judgment.

JUDGE WELLING and JUDGE MOULTRIE concur.