23CA1473 Marriage of Gill 02-06-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA1473 City and County of Denver District Court No. 22DR30213 Honorable Christine C. Antoun, Judge
In re the Marriage of
Dayana Borges Viana Gill,
Appellee,
and
Joseph Brandon Gill,
Appellant.
JUDGMENT AFFIRMED IN PART AND REVERSED IN PART, AND CASE REMANDED WITH DIRECTIONS
Division II Opinion by JUDGE FOX Gomez and Lum, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced February 6, 2025
The Harris Law Firm, PLLP, Jason Thacher, Eric B. Limegrover, Denver, Colorado, for Appellee
Aitken Law, LLC, Sharlene J. Aitken, Denver, Colorado, for Appellant ¶1 Joseph Brandon Gill (husband) appeals the district court’s
permanent orders entered in connection with the dissolution of his
marriage to Dayana Borges Viana Gill (wife). We affirm in part,
reverse in part, and remand for further proceedings.
I. Permanent Orders
¶2 In 2023, the district court dissolved the parties’ seven-year
marriage. The court directed the parties to exercise equal parenting
time with their three children, and it allocated to wife sole decision-
making responsibility. The court determined that the true value of
the marital estate was $2,275,000 but allocated marital assets and
debts to the parties. The court also ordered husband to pay wife
$3,000 per month in maintenance and $7,074 per month in child
support. In doing so, the court found that husband’s gross income
was over $30,000 per month and that wife’s gross income was over
$4,000 per month. The court then ordered husband to pay wife’s
outstanding attorney fees and costs — $43,446.95.
II. Decision-Making Responsibility
¶3 Husband contends that the district court misapplied the law
by allocating sole decision-making responsibility to wife. We
disagree.
1 A. Relevant Facts
¶4 Early in the dissolution proceeding, wife sought a civil
protection order against husband. She alleged that he had been
“physically, emotionally, psychologically and financially abusive”
throughout the marriage. The court granted her a temporary
protection order.
¶5 Following the permanent orders hearing, the court issued a
permanent civil protection order, restricting husband’s contact with
wife. It found that husband had a history of domestic violence
against wife, “resort[ed] to name calling and belittling behavior
toward” her, and “harasse[d]” her with “vulgar and demeaning
language” in their communications. It further found that husband
engaged in this behavior to intimidate wife or retaliate against her
and that his behavior would continue unless restrained.
¶6 Later, in its permanent orders ruling, the court incorporated
its findings from the permanent protection order, and it found that
joint decision-making was not in the children’s best interests. The
court explained that minimizing the conflict between the parents
was better for the children, and it allocated to wife sole decision-
making responsibility.
2 B. Analysis
¶7 The allocation of decision-making responsibility is within the
court’s sound discretion, and we exercise every presumption in
favor of upholding its decision. See In re Marriage of Collins, 2023
COA 116M, ¶ 8; In re Marriage of Morgan, 2018 COA 116M, ¶ 23.
We will not disturb the decision absent a showing that the court
misapplied the law or acted in a manifestly arbitrary, unreasonable,
or unfair manner. See Collins, ¶ 8.
¶8 The court must determine the allocation of decision-making
responsibility in accordance with the children’s best interests and
consider all relevant factors. See § 14-10-124(1.5)(b), C.R.S. 2024;
see also § 14-10-124(1.5)(a); Morgan, ¶ 21. When the court finds by
a preponderance of the evidence that a party has committed
domestic violence, it shall not be in the children’s best interests to
allocate joint decision-making responsibility over a party’s
objection, unless the court finds that there is credible evidence that
the parties can make decisions cooperatively in the children’s best
interests and in a manner safe for the abused party and the
children. § 14-10-124(4)(a)(II)(A); see also § 14-10-124(4)(d) (“[T]he
3 court shall consider, as the primary concern, the safety and well-
being of the child[ren] and the abused party.”).
¶9 Husband highlights that the court relied on its determinations
in the permanent protection order to allocate decision-making
responsibility. However, we are not persuaded that by doing so, the
court applied the wrong legal standard to reach its decision. Before
allocating decision-making responsibility, the court reviewed the
conflicting evidence and made detailed findings concerning the
statutory best interests factors under section 14-10-124(1.5)(a).
The court then incorporated its findings from the permanent
protection order because it had found husband committed domestic
violence and harassed wife in their communications. See § 14-10-
124(4)(a)(II)(A), (4)(b), (4)(d). Given those findings and wife’s
objection to an allocation of joint decision-making responsibility,
the court had to allocate decision-making responsibility to only one
party, unless it determined from the credible evidence that wife and
husband could make joint decisions safely and cooperatively in the
children’s best interests. See § 14-10-124(4)(a)(II)(A). The court did
not make that finding. Rather, its findings suggested that the
evidence established the contrary. Cf. In re Parental Responsibilities
4 Concerning S.Z.S., 2022 COA 105, ¶ 21 (recognizing that a court’s
finding may be implicit in its ruling). The court then determined,
with record support, that allocating wife sole decision-making
responsibility served the children’s best interests.
¶ 10 Still, husband asserts that the court failed to consider the
statutory factors in section 14-10-124(1.5)(b). But the court noted
each of those factors in its order. Though the court did not make
specific findings to address them, it was not required to do so,
when, as here, its findings provided a clear understanding of the
basis of its decision. See In re Marriage of Rodrick, 176 P.3d 806,
813 (Colo. App. 2007). Indeed, the court found that wife credibly
testified that they had a “very abusive” relationship and that the
children had observed husband’s abuse, which had caused the
children to experience long-term issues. See § 14-10-124(1.5)(b)(II),
(4)(a)(II)(A). The court also noted that wife testified that she and
husband were unable to communicate and make decisions together,
and it found that joint decision making was not in the children’s
best interests. See § 14-10-124(1.5)(b)(I), (4)(a)(II)(A).
¶ 11 However, husband contends that the child and family
investigator (CFI) reported that the parties could make joint
5 decisions and recommended joint decision-making responsibility in
her report. But the CFI later testified that since her report, “things
seem to be very bad” between the parties, husband continued to
harass wife, and he may use decision making as a way to control
wife. The CFI then testified that she could “not see how they’re
going to share joint decision making.” The court weighed this, and
the other conflicting evidence, in determining that joint decision-
making responsibility was not in the children’s best interests. We
may not reweigh the court’s resolution of the conflicting evidence.
See Collins, ¶ 13.
¶ 12 The court therefore did not abuse its discretion by allocating
sole decision-making responsibility to wife.
III. Property Division
¶ 13 Husband next contends that the district court’s allocation of
the marital estate must be reversed. We conclude that the court’s
findings are insufficient and reverse this portion of the judgment.
A. Relevant Facts
¶ 14 Husband was a real estate investor. When seeking bank loans
to facilitate his investments, he would complete personal financial
statements. In a 2021 financial statement, he reported that his net
6 worth was $2,275,000, and other financial statements around this
time also reported a net worth of approximately $2 million.
¶ 15 During the dissolution proceeding, husband submitted sworn
financial statements that reported a significantly lower marital
estate value. He also reported a consistently decreasing income in
his sworn financial statements, and these reported incomes were
significantly less than the income he reported in his 2021 financial
statements.
¶ 16 The court found that husband’s representations of the marital
estate’s value at the time of the 2023 hearing were not credible. It
explained that he had “gone out of his way to deplete the marital
estate and/or conceal its whereabouts” and that he had voluntarily
cut off the income from his investment businesses to ensure that
wife received “almost nothing.” The court further explained that
husband had wound down his businesses, engaged in “fishy”
transactions, and hidden his assets. The court determined that the
most accurate value of the marital estate was $2,275,000, which
was the value he reported in the 2021 personal financial statement.
¶ 17 The court then issued the following orders to divide the marital
estate:
7 • The court found that the marital home had a fair market
value of $900,000 and that husband had depleted the
home’s equity by taking out 2 loans the month before the
permanent orders hearing (a refinance for $460,181 and
another loan of $62,233). The court determined the
home was worth $440,000 and allocated it to wife.
• The court allocated to wife a 2015 Infiniti QX.
• The court allocated to wife the marital property presently
in the marital home.
• The court allocated to wife two First Bank accounts.
• The court found that husband’s businesses were worth
$345,000, and it divided this equity equally between the
parties, ordering husband to pay wife $172,500 for her
share.
• The court allocated to husband approximately $147,000
of the parties’ marital debt.
¶ 18 The court said this allocation was equitable, considering the
$2,275,000 value of the marital estate.
8 B. Allocation of the Marital Estate
¶ 19 Husband argues that the court’s allocation resulted in wife
receiving 96% of the marital property and that such an allocation
“was inequitable and so lopsided” in wife’s favor that it cannot
stand. Because the court’s findings do not sufficiently explain its
allocation, we must reverse.
¶ 20 The court has great latitude to equitably divide the marital
estate in such proportions as it deems just. See § 14-10-113(1),
C.R.S. 2024; In re Marriage of Medeiros, 2023 COA 42M, ¶ 28; see
also In re Marriage of Wright, 2020 COA 11, ¶ 3 (recognizing that
while the court’s property division does not need to be equal; it
must be equitable). We will not disturb the court’s allocation
absent a showing that it abused its discretion. Medeiros, ¶ 28.
¶ 21 The court must allocate all marital assets and debts. See In re
Marriage of Page, 70 P.3d 579, 582 (Colo. App. 2003) (noting the
court’s duty to do so, unless no evidence is presented on the
unallocated asset or debt). And it must make sufficient findings
concerning its allocation so that an appellate court can understand
the basis of its ruling. See In re Marriage of Gibbs, 2019 COA 104,
¶ 9; cf. In re Marriage of Powell, 220 P.3d 952, 959 (Colo. App. 2009)
9 (stating that a court’s property division findings must “allow the
reviewing court to determine that the [court’s] decision is supported
by competent evidence”). “If property is omitted from permanent
orders without explanation, the property division cannot stand.”
Rodrick, 176 P.3d at 815.
¶ 22 The court found that the total value of the marital estate was
$2,275,000, which was the net worth husband reported on a 2021
personal financial statement before he depleted and concealed
marital assets. The court then allocated to wife $612,500 from the
marital home and husband’s businesses. The court also allocated
to her a vehicle, property in the marital home, and two bank
accounts. The court did not specify the values of these additional
assets. While the evidence conflicted, the record supports that the
unvalued assets totaled, at most, approximately $16,000. The
court allocated to husband $172,500 from his businesses as his
only marital asset and approximately $147,000 of the marital debt.
¶ 23 Thus, when dividing the marital estate, the court addressed
approximately $654,000 of the marital equity, and it awarded a
substantial portion of that equity to wife. But the court did not
allocate the remaining $1,621,000 of the marital estate. See id.; see
10 also In re Marriage of Lockwood, 971 P.2d 264, 267 (Colo. App.
1998) (providing that if the court finds that a party dissipated
marital assets or otherwise engaged in economic fault, the court
determines “the value of the asset when it last existed as marital
property and equitably distribute[s] that value to the parties”).
Nothing in the permanent orders indicated that wife received a
portion of this significant marital equity. Nor did the court
expressly allocate it to husband. Moreover, any suggestion that the
court implicitly allocated this remaining equity to husband would
appear inconsistent with its findings of economic fault and reward
him with the additional marital equity he improperly concealed and
depleted from the marital estate. See In re Marriage of Campbell,
140 P.3d 320, 322 (Colo. App. 2006) (recognizing that the court may
consider economic fault in cases where a party dissipates marital
assets in contemplation of the dissolution).
¶ 24 Without further findings by the court, we are unable to discern
how the court allocated this substantial portion of the marital
estate. See Rodrick, 176 P.3d at 815; cf. In re Marriage of Balanson,
25 P.3d 28, 36 (Colo. 2001) (stating that errors in the court’s
property division are reversible when the aggregate effect of the
11 errors affects a large percentage of the marital estate). Absent such
findings, we are unable to review the propriety of the court’s
allocation. See Gibbs, ¶ 9; Powell, 220 P.3d at 959.
¶ 25 In addition, as husband argues, the court failed to allocate the
“Zales” account x3546 and Capital One account x8400 debts and a
2016 Cadillac Escalade. See Rodrick, 176 P.3d at 815. The court
also failed to address the conflicting evidence concerning the values
of these items.
¶ 26 We therefore reverse the court’s property division. On remand,
the court shall reconsider its determination and make findings
sufficient to explain the basis of its allocation. In doing so, the
court must clarify (1) the values as of the date of the permanent
orders hearing for the marital assets and debts unvalued by the
court and (2) its allocation of the entirety of the $2,275,000 marital
equity. See § 14-10-113(5). The court must also rely on the parties’
economic circumstances at the time of the remand to determine the
equitable allocation of the estate. See In re Marriage of Wells, 850
P.2d 694, 696 (Colo. 1993); see also In re Marriage of Corak, 2014
COA 147, ¶ 21 (noting the court may take additional evidence on
remand concerning the parties’ economic circumstances).
12 C. Additional Property Division Contentions
¶ 27 Since on remand the district court cannot revalue the marital
assets and debts (as it determined in its permanent orders) or
recharacterize its classification of the marital property, see Wells,
850 P.2d at 697 n.6; § 14-10-113(5), we consider husband’s
contentions that the court erred by (1) determining the total value of
the marital estate was $2,275,000; (2) omitting a purported
$437,365 loan that he executed with his father; (3) declining to set
aside $66,490 from his businesses as his separate property; and (4)
finding that he refinanced and took out two loans on the marital
home a month before the permanent orders hearing. We will not
disturb the court’s determinations.
1. Value of the Marital Estate
¶ 28 When the court finds that a party has engaged in economic
fault and dissipated marital assets in contemplation of the
dissolution of the marriage, the court may value assets as of the
date they last existed as marital property. Campbell, 140 P.3d at
322. Whether a party dissipated marital assets is a question of
fact, and we will not disturb the court’s finding unless it has no
record support. See In re Marriage of Smith, 2024 COA 95, ¶ 76.
13 ¶ 29 The record supports the court’s finding that husband engaged
in economic fault by improperly concealing and depleting marital
assets, and, thus, it did not err by valuing the marital estate at
$2,275,000 based on a value husband reported in a pre-dissolution
financial statement. See id.; Campbell, 140 P.3d at 322; see also In
re Marriage of Nelson, 2012 COA 205, ¶ 27 (“[W]e must construe the
evidence in the light most favorable to the prevailing party.”).
¶ 30 Wife’s expert witness testified that husband failed to provide
“quite a bit of information” regarding his financials, that he
commingled his business and personal finances, and that he made
his financials “willful[ly] complex[].” The expert also reported after
the dissolution was initiated, “there [was] a drawdown of all of
[husband’s] various different entities, assets and accounts,” despite
normal operations before that time. The expert opined that, as a
result of husband’s conduct, his pre-dissolution financial
statements best indicated the true value of the marital estate.
¶ 31 Husband highlights other evidence presented at the hearing
that, in his view, conflicted with the court’s determination.
However, the court did not find husband credible on this topic and
noted that his “incomplete information and representations”
14 rendered other evidence concerning his finances unreliable. We
may not set aside the court’s resolution of this conflicting evidence.
See Smith, ¶ 50 (recognizing that credibility determinations and the
weight, probative force, and sufficiency of the evidence, as well as
the inferences and conclusions to be drawn therefrom, are matters
within the district court’s sole discretion); cf. In re Marriage of
Sgarlatti, 801 P.2d 18, 19 (Colo. App. 1990) (determining that a
party’s refusal to make willing disclosures of his financial status
authorized the court’s adverse inference that he was concealing
additional income).
¶ 32 The court thus acted within its discretion to value the marital
estate at $2,275,000, in accordance with husband’s reported net
worth before concealing assets and dissipating the marital estate.
2. Purported Loan from Husband’s Father
¶ 33 When allocating the parties’ marital debts, the court declined
to include a purported $437,365 loan that husband claimed he
executed with his father. The court found that this was not an
actual debt, and the record supports that finding.
¶ 34 The classification of money as a debt or a gift is dependent on
the court’s resolution of factual disputes, and we defer to its
15 determination when supported by the record. See In re Marriage of
Hoffman, 650 P.2d 1344, 1345-46 (Colo. App. 1982). Debts
incurred during the marriage are subject to the court’s allocation,
but gifts are not. See id.; § 14-10-113(1), (2)(a).
¶ 35 During the dissolution case, husband executed a promissory
note with his father for $437,365. Wife argued that this was not an
actual loan and testified that husband had not made any payments
toward the loan. Wife’s expert also opined that the money husband
received from his father was not a loan. The court resolved the
conflicting evidence and determined that the money husband
received from his father was not an actual, outstanding debt. The
court explained that husband’s transactions with his father were
“fishy” and that it was not convinced husband had to pay this
money back. We will not disturb the court’s factual determination.
See Smith, ¶ 50; see also First Nat’l Bank v. Honstein, 355 P.2d 535,
536 (Colo. 1960) (“Transfers of property between parents and
children are presumed to be gifts until the contrary is clearly and
unequivocally shown.”).
¶ 36 Still, husband claims that the court’s exclusion of this
purported loan was inconsistent with its determination of the
16 marital estate’s value because this purported loan was listed as a
debt on his pre-dissolution personal financial statement. But
neither the 2021 personal financial statement relied on by the court
to determine the $2,275,000 estate value nor any other personal
financial statement identifies the purported loan to husband’s
father.
¶ 37 The court thus did not err by finding that husband’s
purported loan from his father was not a valid debt.
3. Husband’s Alleged Separate Property
¶ 38 Husband argued to the district court that before the marriage,
one of his businesses had a premarital value of $66,490 and that
this amount should be set aside to him as his separate property.
The court was not persuaded. Husband argues that this was error
because the undisputed evidence showed that he had a separate
property interest in his businesses. We disagree.
¶ 39 The parties’ joint expert witness reported that husband formed
Urban Land Acquisitions LLC before the marriage, and he noted
that the premarital value of that business likely was $66,490.
While a premarital interest could be set aside to husband as his
separate property, see § 14-10-113(1)-(2), the expert went on to
17 testify that Urban Land Acquisitions had ceased operations and
that this business had no present value. Thus, even if we assume
that Urban Land Acquisitions had a premarital value, that separate
property interest did not exist at the time of the permanent orders
hearing. It therefore could not be set aside to husband. See In re
Marriage of Turner, 2022 COA 39, ¶ 15 (noting that the court makes
“the determination of whether something is property at all” on the
date of the permanent orders hearing when that hearing precedes
the decree).
¶ 40 To the extent husband suggests that this separate property
interest still existed, he directs us to no evidence from the hearing
in support of that suggestion or that showed he used any portion of
the premarital property to acquire a different asset during the
marriage. See Smith, ¶ 41 (recognizing that property acquired in
exchange for separate property retains its separate character if the
party seeking to establish it as separate property meets their
burden of tracing it back to a separate asset).
¶ 41 The court thus did not err by declining to set aside $66,490 as
husband’s separate property.
18 4. Marital Home Debt
¶ 42 Husband also argues that nothing in the record supports the
court’s finding that he “refinanced and took 2 loans out of the
[marital] home in April of 2023[,] . . . basically depleting the
proceeds of the sale of the home for his own benefit.” He asserts
that the two loans associated with the marital home were executed
before April 2023, and that the court appeared to misinterpret his
property division spreadsheet, which reported the April 2023
balance of these loans. Even if we assume that the court misstated
the date of these loans, husband develops no argument to explain
how that misstatement affected the court’s judgment or impacted
his substantial rights. See C.A.R. 35(c) (noting that we may
disregard any error of defect that does not affect the parties’
substantial rights). We therefore will not further address it. See
Collins, ¶ 56 (declining to address an undeveloped argument).
¶ 43 In sum, we will not disturb the court’s determinations
concerning the marital estate’s total value, the $473,365 purported
loan, husband’s alleged separate property, and the marital home
debt.
19 IV. Maintenance, Child Support, and Attorney Fees
¶ 44 Husband next contends that the district court incorrectly
determined the parties’ incomes for purposes of deciding
maintenance and child support, made insufficient findings in
support of its child support determination, erred by awarding wife
$3,000 per month in maintenance, and improperly ordered him to
pay wife’s outstanding attorney fees and costs under section 14-10-
119, C.R.S. 2024.
¶ 45 However, when a court is required to revisit the property
division on remand, it must re-evaluate maintenance in light of the
updated property division. See In re Marriage of de Koning, 2016
CO 2, ¶ 26 (“[A]wards of spousal maintenance . . . flow from the
property distribution . . . .”). The court also must redetermine the
child support obligation. See de Koning, ¶ 22; cf. In re Marriage of
Salby, 126 P.3d 291, 301 (Colo. App. 2005) (“[T]he issues of child
support and maintenance are inextricably intertwined.”). And when
the court reconsiders maintenance and child support, it must base
its decision on the parties’ financial circumstances at the time of
the remand. See Wright, ¶ 24; In re Parental Responsibilities
Concerning M.G.C.-G., 228 P.3d 271, 273 (Colo. App. 2010).
20 Following the court’s reconsideration of property division,
maintenance, and child support, it must re-evaluate whether to
award section 14-10-119 attorney fees and costs. See de Koning,
¶ 26; In re Marriage of Morton, 2016 COA 1, ¶ 33.
¶ 46 Given that the court must revisit these issues on remand, we
decline to address husband’s contentions concerning the court’s
determinations on incomes, maintenance, child support, and
attorney fees and costs. However, when the court addresses these
issues on remand, it must adhere to the directives in sections 14-
10-114, C.R.S. 2024, 14-10-115, C.R.S. 2024, and 14-10-119. See
also In re Marriage of Aragon, 2019 COA 76, ¶ 22 (directing the
court to conduct a lodestar analysis when determining the
reasonableness of attorney fees under section 14-10-119). It also
must make all required statutory findings, address the statutory
factors relevant to its determinations, and make findings sufficient
to explain the reasons for its decisions. See Wright, ¶ 23; Gibbs,
¶ 9; see also In re Marriage of Aldrich, 945 P.2d 1370, 1378 (Colo.
1997) (“In awarding fees and costs under section 14-10-119, the
district court must . . . mak[e] findings that explain how and why it
arrived at the specific amount of the award.”).
21 V. Appellate Attorney Fees
¶ 47 Wife requests an award of appellate attorney fees under C.A.R.
38(b), arguing that husband’s appeal was frivolous. Given our
disposition, we do not agree and, therefore, deny this request. See
In re Marriage of Martin, 2021 COA 101, ¶ 42.
VI. Disposition
¶ 48 We affirm the district court’s allocation of decision-making
responsibility. We reverse the portion of the judgment that divided
the marital estate and, as a result, direct the court to reconsider
that determination and the other financial decisions that flow from
property division. The case is remanded for further proceedings
consistent with this opinion. Those portions of the judgment not
challenged on appeal remain undisturbed.
JUDGE GOMEZ and JUDGE LUM concur.