Marriage of Kirby

• Court: Colorado Court of Appeals
• Decided: February 6, 2025
• Docket: 23CA1470
• Status: Unpublished

Opinion

23CA1470 Marriage of Kirby 02-06-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1470 Arapahoe County District Court No. 21DR752 Honorable James X. Quinn, Magistrate

In re the Marriage of

Courtney Jean Williams,

Appellant,

and

Timothy Davis Kirby,

Appellee.

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

Division IV Opinion by JUDGE KUHN Harris and Yun, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced February 6, 2025

Jones Law Firm, P.C., David Ari Collins, Centennial, Colorado, for Appellant

Fuller & Ahern, P.C., Brian M. Close, Parker, Colorado, for Appellee ¶1 In this dissolution of marriage case between Courtney Jean

Williams (wife) and Timothy Davis Kirby1 (husband), wife appeals

those portions of the permanent orders concerning the marital

property division, spousal maintenance and child support, and

attorney fee awards. We affirm in part, reverse in part, and remand

for further proceedings.

I. Background

¶2 In April 2023, a magistrate dissolved the parties’ marriage of

fourteen years. At that time, the two children of the marriage were

twelve and thirteen years old. Under the permanent orders, wife

received a monthly award of $3,124 for maintenance and $387 for

child support. In calculating these amounts, the district court

imputed wife an income of “minimum wage at $2,366 per month”

after determining that “[s]he [was] still able to work while pursuing

her education” as a full-time student. Wife now appeals. See

1 Wife’s counsel filed a suggestion of death in this case indicating

that husband had passed away in December 2024. We have not received a motion to substitute a personal representative as a party. See C.A.R. 43(a)(1). Further, it does not appear that husband’s passing would moot this appeal. The district court on remand may conduct any appropriate proceedings in response to these events.

1 C.R.M. 7(b) (providing that when a magistrate’s order is made by

consent, the order is appealable “in the same manner as an order or

judgment of a district court”).

II. Analysis

¶3 Wife contends that the district court erred by (1) not ordering

that several cell phone numbers be released to her; (2) imputing her

income while she is enrolled in school full time; (3) not awarding her

retroactive support and maintenance; and (4) denying her request

for attorney fees. We address each in turn.

A. Wife’s Cell Phone

¶4 As an initial matter, wife contends that the court erred by not

ordering that several cell phone numbers be removed from

husband’s account. We disagree.

¶5 The day before the permanent orders hearing, wife attempted

to remove her and one child’s cell phone numbers from husband’s

account with husband’s consent. Wife testified at the hearing that

the telephone carrier would not allow her to do so because

husband’s account was in arrears and had gone into collections.

She requested that the permanent orders grant her access to

husband’s account so she could remove the numbers.

2 ¶6 On appeal, wife argues that the district court should have

addressed this issue in the permanent orders. Husband counters

that wife should have included this issue in the joint trial

management certificate and that by failing to do so, she did not

preserve the issue for appeal. We agree with husband in part.

¶7 As husband points out, the parties are required to identify for

the court any disputed issues in the joint trial management

certificate, which is to be filed at least seven days prior to the

hearing. C.R.C.P. 16.2(h)(2). The court issued an order in advance

of the hearing that specified, in bold uppercase type, that “it is

imperative that each party state as clearly as possible his or her

position on every unresolved issue the court will be asked to

address” in the required joint trial management certificate.

¶8 But given the apparent timing of wife’s discovery that she

could not remove the numbers from husband’s account, it appears

that this issue could not have appeared in the joint trial

management certificate, which had already been filed earlier as

required by the rules and the court’s order. So we do not think that

point is dispositive.

3 ¶9 However, that fact does not absolve wife of her obligation to

affirmatively bring the issue to the court’s attention to seek a ruling.

It’s true that wife’s counsel asked a question about what wife

wanted regarding the phone numbers during her testimony. But

wife didn’t include this request in her closing argument, and she

didn’t inform the district court that she had additional requests she

hadn’t made in the joint trial management certificate. Nor did she

file a subsequent motion asking the court to address the missed

issue.

¶ 10 These failures are fatal to wife’s issue on appeal. An issue not

pursued in the district court through disposition is abandoned for

the purposes of appeal. See Brody v. Hellman, 167 P.3d 192, 199

(Colo. App. 2007); see also Herrera v. Anderson, 736 P.2d 416, 418

(Colo. App. 1987) (“[I]t goes without saying that one who

affirmatively seeks relief . . . must pursue his request to its

disposition before he can complain.”). We therefore decline to

further address this issue.

4 B. Imputed Income for Maintenance and Child Support

¶ 11 Wife next contends that the court erred by imputing her

income for the purposes of calculating child support and

maintenance while she is enrolled in school full time. We agree

with wife and therefore reverse the court’s order with regard to

maintenance and child support.

1. Applicable Law and Standard of Review

¶ 12 In establishing child support and maintenance, the court must

first determine each party’s gross income or potential income, if a

party is voluntarily unemployed or underemployed. See

§ 14-10-114(3)(a)(I)(A), (8)(a)(II), (8)(c)(IV), C.R.S. 2024;

§ 14-10-115(3)(c), (5)(b)(I), C.R.S. 2024. Under both the child

support and maintenance statutes, a party shall not be deemed

voluntarily unemployed or underemployed if the party “is enrolled

in an educational program that is reasonably intended to result in a

degree or certification within a reasonable period of time and that

will result in a higher income, so long as the educational program is

a good faith career choice.” § 14-10-114(8)(c)(V)(C), see also

§ 14-10-115(5)(b)(III)(C) (same). Additionally, for child support

5 purposes only, the educational program must not be “intended to

deprive the child of support [and] . . . unreasonably reduce the

amount of child support available to a child.”

§ 14-10-115(5)(b)(III)(C).

¶ 13 Furthermore, before a court may impute income to a parent

who is voluntarily unemployed or underemployed, it must find that

the parent has been shirking their child support obligation by

unreasonably forgoing higher paying employment that they could

obtain. People v. Martinez, 70 P.3d 474, 480 (Colo. 2003).

Although the court in Martinez analyzed the imputation of potential

income for determining child support under section 14-10-115, the

same analysis applies when imputing income for determining

maintenance under section 14-10-114. In re Marriage of Young,

2021 COA 96, ¶ 22 (“Though Martinez was a child support case, the

analysis of voluntary underemployment is the same in a

maintenance case.” (quoting In re Marriage of Wright, 2020 COA 11,

¶ 21 n.3)). Either parent might forgo higher paying employment to

manipulate a court-ordered support payment and, thus, be

considered voluntarily underemployed, regardless of whether the

parent is the obligor or obligee of the court order. See In re

6 Marriage of Connerton, 260 P.3d 62, 64, 66 (Colo. App. 2010)

(imputing income to mother who was the obligee of child support

order).

¶ 14 Whether the district court erred by imputing to wife a

minimum wage income while she was still enrolled in school as a

full-time student is a mixed question of law and fact. See Young,

¶ 21. We give deference to the court's findings of fact if they are

supported by the record but review de novo its application of

governing legal standards and legal conclusions. In re Marriage of

Garrett, 2018 COA 154, ¶ 9; see also Martinez, 70 P.3d at 476.

2. The Court Did Not Make Sufficient Findings to Enable Review of This Issue

¶ 15 Here, after determining that maintenance was warranted

under section 14-10-114(3)(a), the court went on to make findings

relevant to a determination that wife was not voluntarily

unemployed or underemployed. In doing so, it did not cite to any

law, let alone section 14-10-114(3)(a)(I)(A), (8)(a)(II), (8)(c)(IV), or

section 14-10-115(3)(c), (5)(b)(I). It found that, while wife is

“enrolled in an educational program, which is reasonably intended

to result in a degree or certification within a reasonable period of

7 time, she is still able to work.” And after summarizing the evidence

suggesting she was not voluntarily unemployed or underemployed,

the court nevertheless imputed wife an income of “minimum wage

at $2,366 per month.” The court addressed this imputed income

amount by recounting the parents’ “equal parenting schedule,” the

children’s ages, the fact that wife — who, since the petition for

dissolution was filed had been living with relatives — had no

housing expenses, and that she had “historically both worked and

raised children during the marriage.”

¶ 16 The court’s decision to impute income to wife without

additional findings was erroneous. First, the court did not

determine whether wife’s decision to return to school was in good

faith. §§ 14-10-114(8)(c)(V)(C), 14-10-115(5)(b)(III)(C). The record

indicates that husband took inconsistent positions regarding

whether wife’s decision to enroll in school was in good faith.

Although the joint trial management certificate indicates that

husband thought wife acted in bad faith, during the permanent

orders hearing husband testified that he had supported wife’s

decision to return to school. The court made no findings on this

point.

8 ¶ 17 Second, the court did not make a finding that wife was

“voluntarily” unemployed or underemployed. See

§§ 14-10-114(8)(c)(IV), 14-10-115(5)(b)(I). Whether a parent is

voluntarily unemployed or underemployed “requires the trial court

to make factual findings and apply a legal standard to those

findings.” Martinez, 70 P.3d at 476-77. To the extent husband

contends that wife admitted to being voluntarily unemployed, the

record belies this claim. Wife testified that, during the marriage

after the birth of the children, she was “voluntarily unemployed”

because she was “a stay-at-home mom.” But this status had

changed by the time of the permanent orders hearing, when wife

presented evidence of her enrollment as a full-time student.

¶ 18 Finally, the court did not make a finding that wife had been

shirking her child support obligation or manipulating her

maintenance amount by unreasonably forgoing higher paying

employment. See id. at 475.

¶ 19 Because the court provided few factual findings and no legal

conclusions regarding the voluntariness of wife’s unemployment in

light of her full-time school enrollment, we cannot properly review

the court’s order with regard to maintenance and child support.

9 See People in Interest of J.L., 121 P.3d 315, 318 (Colo. App. 2005).

We therefore reverse as to this issue.

C. Retroactive Support

¶ 20 Wife also contends that the court abused its discretion when it

ordered that she receive “no retroactive support.” She argues that

husband owes her retroactive maintenance and child support in an

amount exceeding the $2,000 he paid her each of the fifteen

months between the filing of the petition and the permanent orders

hearing. With regard to retroactive maintenance, she asserts that

no evidence in the record supports the court’s denial of her request.

Indeed, wife points out that she and husband both testified that

retroactive maintenance — beyond husband’s voluntary payments

— should be paid. And she argues that the court made no findings

specifically related to retroactive payment of child support.

¶ 21 The court denied wife’s request for “retroactive support” in

part because she had not made a request for retroactive

maintenance in the joint trial management certificate. While the

court did not explain its decision further, other divisions of this

court have concluded that a party in a divorce proceeding waives an

10 issue that is not included in the trial management certificate. See

In re Marriage of Ebel, 116 P.3d 1254, 1255 (Colo App. 2005).

¶ 22 We need not decide whether the court properly denied wife’s

request for retroactive support given that we are reversing the

court’s underlying order regarding maintenance and child support.

On remand, the court will have to revisit wife’s entitlement to, and

the amount of, maintenance and child support. Wife can raise any

claim for retroactive maintenance in connection with those

proceedings on remand.

¶ 23 Likewise, the court made no findings regarding wife’s request

for retroactive child support. If the court determines on remand

that retroactive child support is warranted, then it should

recalculate the amount in consideration of its determination

regarding mother’s imputed income.

D. Attorney Fees

¶ 24 Wife argues that the court erred when it denied her request for

an award of attorney fees under section 14-10-119, C.R.S. 2024.

We disagree.

¶ 25 Section 14-10-119 empowers the district court to equitably

apportion costs and fees between parties in dissolution and post-

11 dissolution matters based on their relative ability to pay. In re

Marriage of Gutfreund, 148 P.3d 136, 141 (Colo. 2006). The court

apportions fees based upon relative economic circumstances to

equalize the parties’ status and ensure that neither suffers undue

economic hardship from the proceedings. In re Marriage of de

Koning, 2016 CO 2, ¶ 23; In re Marriage of Aldrich, 945 P.2d 1370,

1377 (Colo. 1997). A court exercises its power to apportion fees

when it orders the parties to pay their own fees. See In re Marriage

of Rodrick, 176 P.3d 806, 816 (Colo. App. 2007); In re Marriage of

Nichols, 553 P.2d 77, 78-79 (Colo. App. 1976). The court has broad

discretion in deciding whether to award fees under section

14-10-119, and we won’t disturb its decision absent an abuse of

that discretion. In re Marriage of Aragon, 2019 COA 76, ¶ 8.

¶ 26 Here, the magistrate found, “considering the financial

resources of the parties,” the amount of each party’s attorney fees

incurred and owed, and the monthly payments husband had made

to wife since the petition was filed, “that it is equitable for both

parties to assume their respective attorney[] fees and costs.”

Because the court explicitly considered the parties’ financial

resources, in light of section 14-10-119’s equitable purpose, we

12 cannot say that the court abused its discretion when it denied wife’s

request for an award of attorney fees. See de Koning, ¶ 23. We

therefore perceive no basis for reversal, see Aragon, ¶ 8, though wife

may be able to raise a new claim for fees depending on what

happens on remand, see § 14-10-119.

III. Disposition

¶ 27 The judgment is affirmed in part and reversed in part, and the

case is remanded for further proceedings consistent with this

opinion.

JUDGE HARRIS and JUDGE YUN concur.