Marriage of Kelly

CourtColorado Court of Appeals
DecidedOctober 30, 2025
Docket24CA2169
StatusUnpublished

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Bluebook
Marriage of Kelly, (Colo. Ct. App. 2025).

Opinion

24CA2169 Marriage of Kelly 10-30-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA2169 Arapahoe County District Court No. 22DR31018 Honorable Kimberly Karn, Judge

In re the Marriage of

Uriah Michael Kelly,

Appellee,

and

Cassandra Anne Kelly,

Appellant.

ORDERS AFFIRMED IN PART, REVERSED IN PART, AND VACATED IN PART, AND CASE REMANDED WITH DIRECTIONS

Division A Opinion by JUDGE BERNARD* Román, C.J., and Berger*, J., concur

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

Law Office of Leonard R. Higdon, PLLC, Leonard R. Higdon, Jacqueline M. Schneider, Greenwood Village, Colorado for Appellee

Paul A. Frederiksen, Parker, Colorado for Appellant

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2025. ¶1 This is a dissolution of marriage proceeding between a wife,

Cassandra Anne Kelly, and a husband, Uriah Michael Kelly. Wife

appeals the district court’s permanent orders. She submits the

court did not have jurisdiction over the parties, and she challenges

the court’s determinations on maintenance and dividing up the

marital property. We affirm in part, reverse in part, vacate in part,

and we remand the case to the court for further proceedings.

I. Background

¶2 In 2022, husband asked the court to dissolve the parties’

fourteen-year marriage. Wife filed a motion to dismiss the petition,

asserting the court lacked jurisdiction because the parties had

moved to Florida. After a hearing, the court determined wife was

domiciled in Florida, but husband continued to be domiciled in

Colorado.

¶3 The court later entered permanent orders. As is pertinent to

our analysis, the court found the value of husband’s 401(k) was

$69,353.94 and it had a loan against it of $27,494.64. So the court

allocated husband his 401(k) in the amount of $41,859.30. The

court allocated to wife the parties’ debt to wife’s parents in the

amount of $23,363.89.

1 ¶4 With respect to the marital home in Florida, the court

• valued it at $295,800, noting it was encumbered by a

mortgage with a balance of $238,558.21;

• allocated the marital equity in the home of $57,241.79 to

wife;

• ordered her to assume the mortgage or to refinance it in

her name within ninety days; if she could not do so, she

was to sell the home within sixty-one days of the order;

• decided, if wife sold the home and garnered more than

$57,241.79 in profit, she must split the proceeds above

this amount equally with husband.

¶5 With respect to maintenance, the court found husband should

pay wife the guideline amount, which it calculated at $385.05 per

month for a period of eight years and four months. But the court

found husband had paid the entire mortgage on the Florida home in

the time the parties owned it, even though husband never lived in

the home. These payments totaled $52,977.08. The court

considered these payments to be a form of maintenance and

credited them to husband, resulting in an overpayment of

2 $14,472.58 in the amount of maintenance due. As a result, the

court found husband did not owe wife any maintenance, but it did

not require wife to refund the overpayment to husband.

II. Jurisdiction

¶6 Wife contends the court did not have jurisdiction to preside

over the dissolution proceeding because both parties were domiciled

in Florida. We disagree.

A. Applicable Law

¶7 To dissolve a marriage, a court must find, among other things,

that “one of the parties has been domiciled in this state for ninety-

one days” before the proceedings began. § 14-10-106(1)(a)(I), C.R.S.

2025. If this domiciliary requirement is not met, the court lacks

subject matter jurisdiction to dissolve the marriage. See In re

Marriage of Barnes, 907 P.2d 679, 681-82 (Colo. App. 1995).

¶8 The determination of a spouse’s domicile is a question of fact.

In re Marriage of Akins, 932 P.2d 863, 868 (Colo. App. 1997).

Accordingly, we review the court’s finding that husband was

domiciled in Colorado for the requisite time before filing the petition

for clear error, meaning we will not disturb the finding if it is

3 supported by the record. See Martinez v. Mintz Law Firm, LLC, 2016

CO 43, ¶ 17.

¶9 Domicile “is the place of one’s actual residence with the

intention to remain permanently, or for an indefinite time, and

without any certain purpose to return to a former place of abode.”

Akins, 932 P.2d at 868; see also Brandt v. Brandt, 2012 CO 3, ¶ 43

(domicile is a “person’s permanent home to which he or she intends

to return to and remain”). “Domicile” is not synonymous with

“residence,” however, because a person can have more than one

residence at a time, but only one domicile. Old Republic Nat’l Title

Ins. Co. v. Kornegay, 2012 COA 140, ¶ 18; see Brandt, ¶ 43. Both

residence and intent to remain permanently must coexist to create

a person’s domicile. Akins, 932 P.2d at 868. Once established, a

person’s domicile continues until another one is established,

without regard to any “changes in temporary sojourn.” Id.

B. Discussion

¶ 10 The court found, although wife moved to Florida in July 2021,

husband never moved to join her. It also found, although it may

have been husband’s intent to reside in Florida at some point, he

4 was never domiciled there and remained domiciled in Colorado.

The record supports the court’s findings.

¶ 11 Both parties testified wife moved to Florida in July 2021, but

husband was unable to move because he could not ask for a

transfer of employment until at least April 2022. Husband

continued to live in Colorado at his father’s home. He testified that,

after wife moved, he visited Florida only twice for a total of ten days

and returned to Colorado after each trip. He also testified and

provided exhibits supporting his testimony that he had a

commercial driver’s license issued out of Colorado; he was

registered to vote in Colorado; he titled, registered, and insured his

car in Colorado; and he was not aware of receiving any mail at an

address outside of Colorado.

¶ 12 We acknowledge wife asserts husband intended to move to

Florida once he was able to request a transfer from his employer, he

signed a mortgage agreement which appears to state his intent to

live in the Florida home, and he alone paid the mortgage for the

Florida house. But it is the court’s role, and not ours, to resolve the

conflicting evidence regarding where and when husband established

a domicile, and its resolution of that factual issue is binding on

5 review. See M.D.C./Wood, Inc. v. Mortimer, 866 P.2d 1380, 1383-84

(Colo. 1994); see also In re Marriage of Farr, 228 P.3d 267, 270

(Colo. App. 2010)(it is the province of the district court to determine

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