Marriage of Homoki

• Court: Colorado Court of Appeals
• Decided: January 30, 2025
• Docket: 22CA2069
• Status: Unpublished

Opinion

22CA2069 Marriage of Homoki 01-30-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA2069 Arapahoe County District Court No. 20DR31674 Honorable Cajardo Lindsey, Judge

In re the Marriage of

David J. Homoki,

Appellant,

and

Dahlia M. Homoki,

Appellee.

JUDGMENT AFFIRMED IN PART AND REVERSED IN PART, AND CASE REMANDED WITH DIRECTIONS

Division II Opinion by JUDGE GOMEZ Fox and Lum, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced January 30, 2025

Aitken Law, LLC, Sharlene J. Aitken, Denver, Colorado, for Appellant

Anne Whalen Gill, LLC, Anne Whalen Gill, Castle Rock, Colorado; Law Office of Alexandra White, PC, Michael L. Cheroutes Jr., Centennial, Colorado, for Appellee ¶1 In this dissolution of marriage case between David J. Homoki

(husband) and Dahlia M. Homoki (wife), husband appeals the

portions of the permanent orders concerning the marital property

division and maintenance. Husband also appeals the district

court’s correction pursuant to C.R.C.P. 60(a) of a portion of the

marital property division. We affirm the judgment in part, reverse

in part, and remand the case for further proceedings.

I. Background

¶2 The parties married in 2007. (CF p. 22) In 2022, the district

court dissolved their marriage and entered permanent orders. The

marital estate consisted primarily of the marital home, which was

valued at about $1.2 million, and multiple investment accounts

totaling about $5.2 million.

¶3 As of the permanent orders hearing, husband, who wasn’t

formally employed due to ongoing, significant medical issues,

generated about $100,000 per year via day-trading using the

parties’ investment accounts. Wife was a homemaker during the

parties’ marriage and wasn’t employed as of the permanent orders

hearing.

1 ¶4 The district court awarded the marital home to husband but

divided the various investment accounts between the parties.

Specifically, the court allocated 75% of the value of husband’s E-

Trade account ending in “1594” and Ameritrade account ending in

“1658” to wife, with the remaining 25% of each account allocated to

husband. Conversely, the court allocated wife 25% of husband’s

Schwab account ending in “0521,” with husband receiving the

remaining 75%. The court classified the Schwab and Ameritrade

accounts as retirement accounts and ordered their division using a

Qualified Domestic Relations Order (QDRO).

¶5 In determining maintenance, the district court used husband’s

monthly day-trading income of $8,333 and imputed wife a monthly

income of $2,177. The court found that wife qualified for

maintenance and ordered husband to pay her $1,520.32 per month

for eighty-seven months.

¶6 Wife later filed a motion pursuant to C.R.C.P. 59 seeking

amendment of the marital property division because the district

court had ordered the Ameritrade “1658” and Schwab “0521”

accounts to be divided via a QDRO, even though the accounts

weren’t qualified retirement accounts. However, the district court

2 failed to rule on wife’s motion within sixty-three days and the

motion was deemed denied. Husband then filed a notice of appeal.

¶7 Over a year later, the district court sua sponte amended the

permanent orders pursuant to C.R.C.P. 60(a). The court found that

it had made a clerical error in requiring the Ameritrade “1658” and

Schwab “0521” accounts to be divided via a QDRO, and

accordingly, the court removed the QDRO requirement. The court

also found that it had erroneously allocated husband’s Wells Fargo

“0515” bank account to wife even though the parties had agreed to

allocate the account to husband, and, therefore, the court

reallocated that account to husband.

II. Marital Property Division

¶8 Husband asserts that the district court committed multiple

errors when dividing the marital property in the original permanent

orders and the court’s later amendment of the permanent orders

pursuant to C.R.C.P. 60(a). However, husband failed to preserve

some of his contentions, and we don’t otherwise perceive any error.

A. Tax Implications

¶9 Husband first contends that the district court erred by

dividing the parties’ investment accounts without considering

3 potential tax consequences. We conclude that husband’s

contention is unpreserved.

¶ 10 “[I]ssues not raised in or decided by a lower court will not be

addressed for the first time on appeal.” Melat, Pressman & Higbie,

L.L.P. v. Hannon Law Firm, L.L.C., 2012 CO 61, ¶ 18; see

also Valentine v. Mountain States Mut. Cas. Co., 252 P.3d 1182,

1188 n.4 (Colo. App. 2011) (“A party’s mere opposition to its

adversary’s request . . . does not preserve all potential avenues for

relief on appeal. We review only the specific arguments a party

pursued before the district court.”). While “no talismanic language

is required to preserve an issue” for appeal, In re Estate of Owens,

2017 COA 53, ¶ 21, a party must “raise[] an argument to such a

degree that the court has the opportunity to rule on it,” Madalena v.

Zurich Am. Ins. Co., 2023 COA 32, ¶ 50; see also In re Marriage of

Aragon, 2019 COA 76, ¶ 27.

¶ 11 Husband hasn’t identified where in the record he raised the

issue of the tax ramifications of dividing the investment accounts

with the district court. See C.A.R. 28(a)(7)(A) (requiring the

appellant to identify the “precise location in the record where the

issue was raised”). And we are not persuaded that husband’s

4 general presentation of his proposed marital property valuation and

division raised the issue of tax implications “to such a degree that

the court ha[d] the opportunity to rule on it.” Madalena, ¶ 50.

¶ 12 Likewise, we reject husband’s contention that he is merely

challenging the district court’s findings, which don’t need to be

specifically preserved for appeal. See People in Interest of D.B.,

2017 COA 139, ¶ 30. The district court didn’t have a reasonable

opportunity to consider and rule on the tax implications of dividing

the investment accounts because neither party presented the court

with evidence or argument on that issue. See Madalena, ¶ 50 (a

party must have presented the “sum and substance” of the

argument to the district court) (citation omitted); cf. In re Marriage

of Eisenhuth, 976 P.2d 896, 901 (Colo. App. 1999) (the district court

is required to consider the evidence presented to it; it doesn’t act as

a surrogate attorney). And we are unpersuaded by husband’s

argument that he couldn’t have anticipated needing to bring such

issues to the district court’s attention, particularly given that wife’s

proposed marital property division — which she filed several days

before the permanent orders hearing — split at least one of the

investment accounts between the parties.

5 B. Valuation of Investment Accounts

¶ 13 We next consider and reject husband’s contention that the

district court erroneously failed to address changes in the value of

the investment accounts between the hearing and the issuance of

the permanent orders several months later.

¶ 14 Per its obligation to assign an approximate value to the marital

estate as of the date of the marital property hearing, see In re

Marriage of Wright, 2020 COA 11, ¶ 4; § 14-10-113(5), C.R.S. 2024,

the district court valued the investment accounts using figures wife

provided at the permanent orders hearing. Then, consistent with

wife’s request that the parties both share in the risk or reward of

any fluctuations in value occurring after the hearing, the district

court allocated the investment accounts on a percentage basis

rather than allocating to each party a specified dollar amount.

Thus, we disagree that the court failed to account for fluctuations

6 in the value of the investment accounts occurring after the

permanent orders hearing.1

C. Amendment of the Permanent Orders under C.R.C.P. 60(a)

¶ 15 Husband also contends that the district court erred by

correcting the permanent orders under C.R.C.P. 60(a). We disagree.

¶ 16 Under C.R.C.P. 60(a), “[c]lerical mistakes in judgments, orders,

or other parts of the record and errors therein arising from

oversight or omission may be corrected by the court at any time of

its own initiative or on the motion of any party.” See In re Marriage

of McSoud, 131 P.3d 1208, 1212 (Colo. App. 2006). The rule

“provides a safety valve by which courts can avoid the stubborn

enforcement of an honestly mistaken judgment.” Reasoner v. Dist.

Ct., 594 P.2d 1060, 1061 (Colo. 1979). Thus, “relief under C.R.C.P.

60(a) is limited to cases in which the trial court originally intended

to make the award granted by corrective amendment.” Diamond

Back Servs., Inc. v. Willowbrook Water & Sanitation Dist., 961 P.2d

1 We express no opinion on the district court’s resolution of the

multiple post-dissolution motions for entry of judgment wife filed regarding the division of the investment accounts, as husband’s appeal doesn’t encompass any orders resolving those motions. See C.A.R. 3(d)(2)(B), (E) (requiring the appellant to identify the specific orders being appealed).

7 1134, 1136 (Colo. App. 1997) (C.R.C.P. 60(a) relief was appropriate

when the district court inadvertently failed to include a component

of damages it had intended to award); cf. Jennings v. Ibarra, 921

P.2d 62, 65 (Colo. App. 1996) (“C.R.C.P. 60(a) does not authorize

amendment of a judgment to include interest in situations in which

the trial court did not originally intend such an award.”).

¶ 17 Corrections made pursuant to C.R.C.P. 60(a) are reviewed for

an abuse of discretion, which occurs when the court acts in a

manifestly arbitrary, unfair, or unreasonable manner. McSoud, 131

P.3d at 1212.

¶ 18 We perceive no error in the district court’s reliance on C.R.C.P.

60(a) to correct the permanent orders. Before amending the

permanent orders, the court issued a notice explaining that the

permanent orders didn’t reflect the court’s original intent.

Specifically, the court explained that it had inadvertently awarded

the Wells Fargo “0515” account to wife, which contravened the

consensus of the parties, and that its “intention was to simply order

that the Schwab #[0]521 and Ameritrade #1658 accounts be divided

between the parties, [meaning that] the requirement of a QDRO for

division was simply a clerical error.” The court further clarified that

8 it didn’t originally “find or believe that these accounts were qualified

for purposes of a QDRO.”

¶ 19 Because the district court had “originally intended to make the

award granted by corrective amendment,” Diamond Back, 961 P.2d

at 1136, we conclude the court acted within the confines of C.R.C.P.

60(a) when amending the permanent orders. We also disagree with

husband’s assertion that the elimination of the QDRO requirement

for dividing the Schwab and Ameritrade accounts somehow resulted

in a reallocation of the marital estate. Indeed, the court’s

percentage division of those accounts remained unchanged between

the original permanent orders and the C.R.C.P. 60(a) amendment.

¶ 20 Moreover, because the district court corrected the marital

property division to conform to its original intent, we reject

husband’s claim that the court was also required to reconsider

maintenance and attorney fees; the court’s original intent as to

those issues was already reflected in the permanent orders. Nor

was the court required to revalue the marital estate when correcting

the permanent orders, particularly given that section 14-10-113(5)

expressly required the court to value the marital property as of the

date of the hearing on the marital property.

9 III. Maintenance

¶ 21 While we reject husband’s challenge to the marital property

division, we agree with him that the district court erred and made

insufficient findings when awarding wife maintenance.

A. Standards of Review and Applicable Law

¶ 22 The district court has broad discretion in deciding the amount

and duration of a maintenance award, and, absent an abuse of that

discretion, its decision will not be reversed. See § 14-10-114(2),

(3)(e), C.R.S. 2024; Wright, ¶ 15; In re Marriage of Vittetoe, 2016

COA 71, ¶ 14.

¶ 23 Under section 14-10-114(3), the court must follow a specific

process when awarding maintenance. In re Marriage of Stradtmann,

2021 COA 145, ¶ 28. “[T]he court must first make written or oral

findings on each party’s gross income, the marital property

apportioned to each party, each party’s financial resources, the

reasonable financial need as established during the marriage, and

the taxability of the maintenance awarded.” In re Marriage of

Herold, 2021 COA 16, ¶ 25; see also § 14-10-114(3)(a)(I).

¶ 24 Next, the court must determine the amount and term of

maintenance, if any, that is equitable after considering the

10 statutory advisory guidelines and a list of non-exclusive statutory

factors. § 14-10-114(3)(a)(II)(A), (3)(a)(II)(B), (3)(b), (3)(c); Wright,

¶ 15. Finally, before the court is permitted to award maintenance,

it must find that the party seeking maintenance lacks sufficient

property, including marital property apportioned to them, to provide

for their reasonable needs and is unable to support themself

through appropriate employment. § 14-10-114(3)(a)(II)(C), (3)(d);

Wright, ¶ 16.

¶ 25 While the district court ultimately has discretion to enter a fair

and equitable maintenance award, it must “make specific written or

oral findings in support of the amount and term of maintenance

awarded.” § 14-10-114(3)(e); see also 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.”); In re Marriage of Garst, 955 P.2d 1056,

1058 (Colo. App. 1998) (“Factual findings are sufficient if they

identify the evidence which the fact finder deemed persuasive and

determinative of the issues raised.”).

11 B. Discussion

¶ 26 We agree with husband that the district court made

insufficient findings in support of the $1,520.32 per month in

maintenance awarded to wife. Specifically, we are left without a

clear understanding of the basis of the maintenance award because

of the court’s minimal findings concerning (1) wife’s reasonable

financial need as established during the marriage, see § 14-10-

114(3)(a)(I)(D), and (2) whether wife, as the party seeking

maintenance, lacked sufficient property, including marital property

apportioned to her, to provide for her reasonable needs, see § 14-

10-114(3)(d). See also Gibbs, ¶ 9.

¶ 27 As to the parties’ reasonable financial needs during the

marriage, given a lack of evidence on the issue, the district court

surmised that the parties enjoyed an upper-middle-class lifestyle

based on the value of the marital home and the vehicles they

owned. Yet, beyond that basic description of the parties’ lifestyle,

the court made no other findings concerning the costs associated

with the parties’ reasonable financial needs. And while wife cites

the parties’ respective sworn financial statements as indicative of

12 their reasonable financial needs, the district court also didn’t make

any findings based on those affidavits.

¶ 28 Given that it was the district court’s role to make credibility

determinations, as well as to synthesize and resolve any

contradictions in the evidence, we decline wife’s invitation to infer

our own findings as to the parties’ reasonable needs based on the

record. Cf. In re Marriage of Wollert, 2020 CO 47, ¶ 23 (recognizing

that “[f]actfinding is the basic responsibility of district courts, rather

than appellate courts” because a “cold record is a poor substitute

for live testimony” (quoting Pullman-Standard v. Swint, 456 U.S.

273, 291 (1982), and People v. Scott, 600 P.2d 68, 69 (Colo. 1979),

respectively)). Instead, the lack of findings as to the parties’

reasonable financial needs leaves us unable to determine whether

the court’s award of $1,520.32 per month to wife was appropriate to

meet wife’s reasonable financial needs while also allowing husband

to meet his own financial needs. See § 14-10-114(3)(a)(I)(D), (3)(c)(I),

(3)(e); Gibbs, ¶ 9.

¶ 29 Likewise, we agree with husband that the district court made

insufficient findings on the final, threshold issue of whether wife, as

the party seeking maintenance, lacked sufficient property, including

13 marital property apportioned to her, to provide for her reasonable

needs. See § 14-10-114(3)(d); Wright, ¶ 16. Critically, the court’s

only discussion of whether wife demonstrated such a threshold

entitlement to an award of maintenance was a bare recitation of the

statutory text and a conclusory statement that wife qualified for

maintenance.

¶ 30 The lack of any detailed findings on whether wife met the

threshold test for entitlement to maintenance under section 14-10-

114(3)(d) again leaves us without a clear understanding of the basis

for the maintenance award. See Gibbs, ¶ 9. Notably, wife was

allocated over three million dollars in marital property. And while

wife isn’t required to deplete her share of the marital property in

order to be entitled to maintenance, see In re Marriage of Bartolo,

971 P.2d 699, 702 (Colo. App. 1998), the court provided no

explanation as to why wife’s share of the marital estate, when

considered in conjunction with her imputed income, was

insufficient to meet her reasonable needs, see § 14-10-114(3)(d),

which the court hadn’t assigned a value to under section 14-10-

114(3)(a)(I)(D).

14 ¶ 31 We acknowledge that the district court could only make

findings concerning reasonable financial need to the extent

sufficient evidence was presented on it, which wife, as the party

seeking maintenance, had the burden of presenting. See § 14-10-

114(3)(d) (“[T]he court shall award maintenance only if it finds that

the spouse seeking maintenance” lacks sufficient property or

appropriate employment to provide for their reasonable needs.); cf.

W. Distrib. Co. v. Diodosio, 841 P.2d 1053, 1058 (Colo. 1992) (the

burden of proof or persuasion on the essential elements of a claim

remains with the plaintiff). But given the insufficient findings, we

nonetheless conclude that the maintenance award cannot stand.

See Gibbs, ¶ 9.

¶ 32 Accordingly, we reverse the maintenance award and remand

the case for further proceedings. On remand, the district court

must reconsider wife’s request for maintenance using the procedure

specified by section 14-10-114(3), making findings where required,

and addressing the factors relevant to its determination. See

Herold, ¶¶ 29-32; Stradtmann, ¶¶ 33-35. The court must make

sufficiently explicit findings of fact to give us a clear understanding

of the basis of its order. See Wright, ¶ 20; Gibbs, ¶ 9. Because

15 maintenance is based on the spouses’ financial circumstances at

the time an order is entered, the court on remand must consider

the parties’ current financial circumstances, which means it must

take additional evidence. See Wright, ¶ 24; Stradtmann, ¶ 35.

C. Husband’s Other Contentions Concerning Maintenance

¶ 33 Given that the district court must reconsider maintenance

based on the parties’ current financial circumstances, Wright, ¶ 24;

Stradtmann, ¶ 35, we decline to consider husband’s additional

contentions that the court erred (1) by finding that he earned

$100,000 per year because his income was generated by the

investment accounts, over half of which were allocated to wife, and

(2) by failing to attribute to wife the income she could earn on her

portion of those investment accounts. To the extent that husband’s

income has been reduced and wife’s has been increased because of

the marital property division, the parties may present the court with

relevant evidence on remand. See § 14-10-114(8)(c)(I)(F), (K), (N)

(including dividends, interest, and capital gains within the

definition of “gross income” for maintenance purposes).

¶ 34 However, because the issue may arise on remand, we consider

and reject husband’s contention that the district court failed to

16 consider, as temporary maintenance, the $80,000 he paid to wife

during the pendency of the dissolution proceedings. See § 14-10-

114(3)(c)(VIII). The parties unambiguously stipulated that the

$80,000 payment, which was ultimately accounted for in the

marital property division, was an advanced distribution of marital

property to wife. The additional $22,500 husband paid wife during

the pendency of the proceedings likewise was part of the parties’

stipulated marital property division; and to the extent that the court

didn’t include this sum in the property division, its omission is

de minimis. See C.R.C.P. 61; In re Marriage of Balanson, 25 P.3d

28, 36 (Colo. 2001) (“If . . . a trial court’s error affects only a small

percentage of the overall marital estate, such an error may be

deemed to have been harmless and thus does not require

reversal.”).

IV. Appellate Attorney Fees

¶ 35 Wife requests an award of her appellate attorney fees on the

ground that husband’s appeal was vexatious and stubbornly

litigious. See § 13-17-102(4), (9)(a), C.R.S. 2024. Given our

disposition, we deny this request. See In re Marriage of Martin,

2021 COA 101, ¶ 42.

17 ¶ 36 Both parties request an award of their appellate attorney fees

under section 14-10-119, C.R.S. 2024, due to the alleged disparities

between their respective economic circumstances. Because the

district court is better equipped to determine the factual issues

regarding the parties’ current financial resources, we direct it to

address these opposing requests on remand. See C.A.R. 39.1; In re

Marriage of Schlundt, 2021 COA 58, ¶ 54.

V. Disposition

¶ 37 The portions of the judgment concerning the marital property

division are affirmed. The portions of the judgment concerning

maintenance are reversed, and the case is remanded to the district

court to reconsider and make additional findings regarding wife’s

request for maintenance and to consider the parties’ opposing

requests for appellate attorney fees under section 14-10-119. The

remaining portions of the judgment that were not appealed remain

undisturbed.

JUDGE FOX and JUDGE LUM concur.