24CA1148 Marriage of Loecher 10-02-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA1148 Jefferson County District Court No. 22DR30326 Honorable Meegan A. Miloud, Judge
In re the Marriage of
Brittany V. Loecher,
Appellee,
and
Brent Metz,
Intervenor-Appellee,
Nikolas R. Loecher,
Appellant.
JUDGMENT AFFIRMED IN PART AND REVERSED IN PART, AND CASE REMANDED WITH DIRECTIONS
Division VI Opinion by JUDGE WELLING Gomez and Sullivan, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced October 2, 2025
Gem Family Law, LLC, Steve M. Visioli, Denver, Colorado, for Appellee
Law Office of Heather Mitchell & Associates, LLC, Heather M. Mitchell, Monument, Colorado, for Intervenor-Appellee Peak Legal Services, LLC, Todd J. Narum, Northglenn, Colorado, for Appellant ¶1 In this divorce proceeding involving Brittany V. Loecher (wife)
and Nikolas R. Loecher (husband), husband appeals the marital
property and maintenance portions of the permanent orders
judgment. He also appeals certain issues related to attorney fees.
We affirm in part and reverse in part, and we remand the case for
further proceedings consistent with this opinion.
I. Background
¶2 The parties married in 2010 and have two children. Wife was
a homemaker and, late in the marriage, served on a town council,
earning $400 per month. Husband was employed full time and
provided financially for the family. Wife began a relationship with
Brett Metz in 2021; she filed for divorce in 2022. After she filed for
divorce, wife received loans from Metz to cover certain expenses (the
Metz debt).
¶3 Over the course of this case, the district court entered a
permanent civil protection order against husband in favor of wife.
When husband sought to depose Metz, a nonparty, and repeatedly
subpoenaed his financial information, the court granted Metz’s
request to issue a protective order and quashed the subpoenas.
1 The court ordered husband to pay Metz’s attorney fees for litigation
related to the subpoenas and protective order.
¶4 In 2024, the court held a permanent orders hearing and made
an oral ruling. As relevant here, the court considered, among other
things, the “inherited monies that [husband] received,” and found
that husband’s income was $20,000 per month. The court
allocated the Metz debt to wife. Several months after the oral
ruling, the court amended its findings and allocated the Metz debt
to husband. The court then issued written permanent orders,
which included requirements that husband pay (1) wife’s attorney
fees and (2) Metz’s $8,878 in attorney fees related to the subpoenas
and protective order. The court issued amended permanent orders,
correcting the nunc pro tunc date on the order and a child’s birth
date, and providing more detail regarding the sale of the marital
home.
¶5 Husband filed a C.R.C.P. 59 motion seeking to amend the
court’s findings and judgment, arguing, among other things, that
requiring him to pay both the Metz debt and wife’s attorney fees
was improper because the Metz debt was incurred by wife to pay
2 her attorney fees. The court denied husband’s motion without
addressing this issue.
II. Double Recovery
¶6 Husband argues that the court improperly required him to pay
the Metz debt — which included some of wife’s attorney fees —
while also requiring him to pay wife’s attorney fees. We reverse the
court’s attorney fee award insofar as it requires husband to pay
wife’s attorney fees that are also included in the Metz debt.
A. Metz Debt
¶7 As a preliminary matter, the district court didn’t err in
assigning the Metz debt to husband as part of the marital property
division.
¶8 “Marital liabilities include all debts that are acquired and
incurred by a husband and wife during their marriage.” In re
Marriage of Jorgenson, 143 P.3d 1169, 1171-72 (Colo. App. 2006).
Debts incurred while the parties are separated — including debts to
pay attorney fees — are marital. In re Marriage of Burford, 26 P.3d
550, 559 (Colo. App. 2001). When such debts have already been
paid, they may be allocated in the property division through
reimbursement. Id.
3 ¶9 The district court has great latitude to equitably distribute
marital property based upon the facts and circumstances, and we
will not disturb its decision absent a clear abuse of discretion. In re
Marriage of Medeiros, 2023 COA 42M, ¶ 28. A court abuses its
discretion when its decision is manifestly arbitrary, unreasonable,
or unfair, or based on a misapplication of the law. Id.
¶ 10 Here, wife presented an itemized list of how she spent the
money Metz loaned to her. The list included entries related to the
payment of her legal fees. The total amount of the Metz debt
assigned to legal fees totaled over $61,000. These payments,
already made by wife at the time of the permanent orders hearing,
were a debt incurred while the parties were separated and thus
constitute marital debt.
B. Attorney Fees
¶ 11 Having assigned the Metz debt to husband, the court then
ordered husband to pay wife’s reasonable attorney fees totaling
$105,155 pursuant to section 14-10-119, C.R.S. 2025. Although
courts also have great latitude to craft attorney fee orders
appropriate to the circumstances of a case, In re Marriage of
Gutfreund, 148 P.3d 136, 141 (Colo. 2006), the court here abused
4 its discretion. See In re Parental Responsibilities Concerning M.E.R-
L., 2020 COA 173, ¶ 33 (reviewing the court’s decision to award fees
under section 14-10-119 for an abuse of discretion).
¶ 12 An attorney fee award is primarily intended to apportion costs
and fees equitably. In re Marriage of Woolley, 25 P.3d 1284, 1288-
89 (Colo. App. 2001). Attorney fees awarded pursuant to section
14-10-119 shouldn’t be characterized as marital debt and
apportioned under section 14-10-113, C.R.S. 2025. See In re
Marriage of Rieger, 827 P.2d 625, 624 (Colo. App. 1992) (attorney
fees awarded pursuant to section 14-10-119 may not be considered
non-challengeable marital debt pursuant to 14-10-113).
¶ 13 As an initial matter, the court followed the proper sequence in
assigning marital debt first and then awarding attorney fees. See In
re Marriage of de Koning, 2016 CO 2, ¶¶ 21-23 (Colorado case law
“contemplate[s] a specific sequence in which the division of
property, maintenance, and attorney[] fees computations should
occur.”). It’s inequitable, however, for a court to double count a
debt when dividing marital property. See In re Marriage of Cardona,
2014 CO 3, ¶ 11 (Boatright, J., concurring in the judgment)
(concluding that it was inequitable for the district court to count
5 twice the accrued leave of an employee spouse, first as a marital
asset subject to division, and second as income for purposes of
maintenance and child support). Here, though, the court’s “double
counting” didn’t occur just within the marital property division;
rather, the double-counting becomes apparent when we look at the
property division and attorney fee award together, as an overlapping
sum was counted once during the marital property division and
once during the attorney fee award.
¶ 14 Relying on wife’s attorney fees affidavit and its attached
exhibit, the court awarded the full amount she requested for
attorney fees. As noted before, the affidavit includes costs that wife
had already paid using loans from Metz. But the court had already
allocated this debt to husband. Because the record thus doesn’t
support awarding wife her full request for attorney fees given it’s
allocation of the Metz debt, the court abused its discretion. We
therefore reverse this portion of the judgment and remand for the
court to reconsider wife’s attorney fee award, taking into account its
allocation of the Metz debt (and the extent to which that debt
included attorney fees).
6 III. Husband’s Income
¶ 15 Husband next argues that the court erred when determining
his income for the purposes of maintenance and child support.
First, he asserts that the court erred in finding that his income
should include money he inherited from his uncle’s estate. Second,
he contends that the court’s income determination rested on
inadequate findings. We disagree with both contentions.
A. Standards of Review
¶ 16 We review the court’s maintenance and child support award
for an abuse of discretion. In re Marriage of Balanson, 25 P.3d 28,
35 (Colo. 2001); In re Marriage of Tooker, 2019 COA 83, ¶¶ 21, 27.
And we review de novo the adequacy of the court’s findings. People
v. Shifrin, 2014 COA 14, ¶ 90 (concluding that “the adequacy of a
trial court’s findings . . . is tested by whether an appellate court can
discern the lower court’s rationale” and reviewing those findings de
novo).
B. Inheritance
¶ 17 “Income” for purposes of determining maintenance and child
support is defined at sections 14-10-114(8) and 14-10-115(5),
C.R.S. 2025, respectively, which contain a list of income sources
7 that are included and excluded from such determinations. See
§§ 14-10-114(8)(c)(I)-(V), 14-10-115(5)(a)(I)(A)-(Z) (income sources).
The principal of a monetary inheritance is considered income if the
recipient uses such funds to meet existing living expenses or
increase their standard of living. See In re A.M.D., 78 P.3d 741,
743-46 (Colo. 2003) (relying on income definition from the child
support statute, which includes “monetary gifts” just as the
maintenance statute does).
¶ 18 Husband testified that, in addition to his claimed earnings, he
used the money he inherited from his uncle to cover monthly
“expenses.” Because husband testified that he used the inheritance
to meet the family’s existing living expenses, we perceive no abuse
of discretion in the court’s determination that the inheritance
amounts should be considered part of father’s gross income for the
purpose of maintenance and child support. See id. at 746 (when
spent for living expenses, inheritance is considered income).
C. Adequacy of Findings
¶ 19 In making its income determination, the court found that
husband’s income fluctuated. Relying on In re Marriage of Salby,
126 P.3d 291, 299 (Colo. App. 2005), the court took an average of
8 husband’s income over time and found his monthly income to be
$20,000. The court explicitly relied on wife’s forensic accountant’s
expert testimony to arrive at this monthly income figure.
¶ 20 Wife’s forensic accountant testified that, considering
husband’s earnings and the distributions from his uncle’s estate,
his average monthly salary fluctuated between $19,408 to $25,658.
The court chose an amount within this range — $20,000. Because
we are able to discern the lower court’s rationale and it’s supported
by the record, we perceive no basis for reversal.
IV. Metz Attorney Fees and Credit Card Statements
¶ 21 Husband next contends that the court erred when it quashed
his subpoenas to depose Metz and obtain his financial information,
specifically statements from a credit card on which wife was a
cosigner. Husband also claims that the court erred in awarding
Metz his attorney fees incurred in connection with the subpoena
litigation.
A. Additional Facts
¶ 22 At wife’s deposition in 2023, she stated that she had been
added to two of Metz’s credit cards and that she had used them to
pay for the family’s expenses. Later, at a status conference related
9 to husband’s request to depose Metz, the court limited husband’s
deposition of Metz “to promissory notes and any dependable income
or gifts to [wife]” (first discovery order).
¶ 23 Husband then subpoenaed Metz to produce “bank and credit
account statements January 2022 – August 2023 for accounts in
your name which [wife] is authorized to use or from which you
spent money on [wife] or the Loecher children for living expenses or
travel.” Metz moved to quash the subpoena because it was “unduly
burdensome” and required him to “produce nearly all of his
financials as though he were a party and subject to 16.2 disclosure
requirements.” Before the period for husband’s response had
elapsed, a magistrate granted Metz’s motion to quash this
subpoena. The magistrate’s order rested, in part, on husband’s
failure to comply with the court’s order limiting the scope of the
deposition.
¶ 24 Husband then served Metz with another subpoena. This one
requested that Metz produce “bank and credit card statements of all
gifts and financial contributions to [wife] since April 8, 2022,
including amounts covered by the three promissory notes between
Metz and [wife] and amounts charged on the two Metz credit card
10 accounts to which [wife’s] name was added.” After a hearing, the
court granted Metz’s motion to quash the second subpoena, “noting
that [its first discovery] order cite[d] [a] very narrow” scope for
Metz’s deposition (second discovery order). The second discovery
order also granted Metz’s request for a protective order and
indicated that the court would consider Metz’s request for an award
of his attorney fees at permanent orders.
¶ 25 At permanent orders, the court found that husband’s
subpoenas sought information beyond the court’s limited scope for
“the purposes of harassment and delay.” The court also noted that,
regardless, husband didn’t use information from Metz’s deposition
at permanent orders. It then granted Metz’s request for an award of
attorney fees pursuant to section 13-17-102, C.R.S. 2025.
B. Notice of Appeal and Preservation
¶ 26 As an initial matter, Metz and wife argue that this issue wasn’t
properly preserved for appeal because his notice of appeal didn’t
indicate that he intended to appeal the discovery rulings and the
award of attorney fees to Metz. But including an issue in the notice
of appeal isn’t necessary to provide Metz notice of husband’s claims.
11 ¶ 27 C.A.R. 3(d), which provides that the notice of appeal should
include an “advisory listing of the issues to be raised on appeal,”
doesn’t require that an issue be included in the notice of appeal in
order to be raised on appeal so long as the issue is properly
preserved in the trial court. Cf. Vikman v. Int’l Bhd. of Elec.
Workers, 889 P.2d 646, 658-59 (Colo. 1995) (holding that a division
of this court erred in addressing certain issues because those
issues had not been presented either in the trial court or in the
appellant’s notice of appeal).
¶ 28 Husband preserved his claims before the trial court.
Husband’s claim that the court’s first discovery order didn’t prevent
him from seeking “a deposition to obtain/authenticate documents”
was preserved in a brief filed with the court prior to its second
discovery order. And husband’s claim that wife violated C.R.C.P.
16.2(e)’s mandatory disclosure requirements when she “refused to
produce evidence of marital debt,” including the requested credit
card statements, was preserved in a motion filed before the second
discovery order.
12 ¶ 29 Because husband’s arguments were preserved before the
district court, we reject wife’s and Metz’s arguments that we can’t or
shouldn’t address them.
C. Financial Information
1. Relevant Law and Standard of Review
¶ 30 C.R.C.P. 16.2 governs discovery and disclosures in a domestic
relations proceeding. In re Marriage of Gromicko, 2017 CO 1, ¶ 27.
The rule allows the district court to impose appropriate sanctions
against a party who fails to comply with any of its provisions.
C.R.C.P. 16.2(j); see also C.R.C.P. 16.2(e)(5) (sanctions may be
imposed against a party who does not timely provide mandatory
disclosures). The court has considerable discretion to determine
whether to impose sanctions for noncompliance with C.R.C.P. 16.2,
and we won’t disturb its decision absent an abuse of discretion.
M.E.R-L., ¶ 6.
2. Analysis
¶ 31 Here, the first and second discovery orders are brief and
general. The second discovery order doesn’t indicate whether the
court specifically considered husband’s arguments that the first
discovery order was too restrictive or that wife violated mandatory
13 disclosure procedures by not producing the credit card statements.
Although hearings were held in advance of both orders, husband
didn’t designate the transcripts of these hearings for the record on
appeal. In the absence of transcripts, “we must assume that the
[district court’s] factual findings were supported by the evidence.”
In re Marriage of Rivera, 91 P.3d 464, 466 (Colo. App. 2004) (“[I]t is
the obligation of the party asserting error in a judgment to present a
record that discloses that error, because a judgment is presumed to
be correct until the contrary affirmatively appears.”). We therefore
presume that the evidence supports the court’s conclusion that the
narrowed scope of the deposition was proper and that husband’s
subpoenas of Metz impermissibly sought information beyond their
scope.
¶ 32 Similarly, the record on appeal is silent as to husband’s
argument regarding wife’s failure to disclose the credit card
statements pursuant to C.R.C.P. 16.2(e). Without a transcript, we
must assume that the court concluded, in its considerable
discretion, that wife’s actions did not justify husband issuing broad
discovery directed at Metz.
14 D. Metz Attorney Fees
¶ 33 Husband argues that the court erred in ordering him to pay
Metz the $8,878 in attorney fees. We understand husband’s
argument that he shouldn’t have been ordered to pay this amount
to rest entirely on his contention that the subpoenas were quashed
in error and that the protection order unnecessary. Because we
perceive no basis in the record to conclude that the court erred with
regard to the subpoenas and protection order, we reject husband’s
invitation to reverse the court’s award of attorney fees to Metz.
V. Marital Property Determination
¶ 34 Husband makes two arguments related to the court’s
classification of his ownership interest in three real properties —
the Char-Rose Townhomes, Investment International, and the
Eighth Avenue Apartments — and a Roth IRA (collectively, the
properties). We aren’t persuaded by either argument.
A. Relevant Law and Standard of Review
¶ 35 All property acquired during the marriage is presumed
marital. In re Marriage of Caparelli, 2024 COA 103M, ¶ 10; § 14-10-
113(2)-(3). Property acquired before the marriage may be separate.
Wright, ¶ 8; see § 14-10-113(4). But even for separate property
15 acquired before marriage, the appreciation of a party’s separate
property during the marriage is a divisible asset. See § 14-10-
113(4) (An asset acquired by a party before the marriage is
considered marital property “to the extent that its present value
exceeds its value at the time of the marriage.”). The spouse
claiming that property is premarital bears the burden of proving the
property’s separate character. See In re Marriage of Smith, 2024
COA 95, ¶ 41 (referring to property acquired during the marriage
that a party intends to keep separate).
¶ 36 The classification of property as marital or separate is a legal
determination based on the district court’s factual findings. In re
Marriage of Capparelli, 2024 COA 103M, ¶ 8. While we defer to the
court’s factual findings, we review its legal determinations de novo.
Id. The district court “has broad discretion to determine an
equitable division of the marital assets and debts.” Id. at ¶ 7. We
won’t disturb that division absent an abuse of discretion. LaFleur v.
Pyfer, 2021 CO 3, ¶ 61.
B. Alleged Lack of Findings
¶ 37 Husband first claims the court erred when it didn’t make
findings “about the dates of acquisition or origin of” husband’s
16 ownership interest the properties. Husband points out that
“neither party presented historical values for [his] interests in the
[properties].” He further asserts that “[wife] never asked the [court]
to order date-of-marriage valuations.” Husband’s argument misses
the mark. As the party claiming that the properties were premarital
and therefore separate, husband had the burden of proving that the
properties retained their character as separate property. See Smith,
¶ 41. Husband also had the burden of providing the court with
information necessary for it to determine how much of a property
was separate, including the “dates of acquisition or origin.”
¶ 38 Husband, however, didn’t do so. Although husband argues on
appeal that it was “undisputed that [he] owned [the properties] prior
to the date of the marriage,” the court found that “there was no
amount and no testimony given regarding separate property
[versus] what was accrued during the marriage.” The record
supports the court’s findings.
• Husband testified at the permanent orders hearing that
he never provided a “date of marriage statement” for the
Roth IRA. Husband’s financial statements valued it at
$39,103 at the time of the hearing.
17 • Husband testified that he used a 2021 appraisal of Char-
Rose to identify the amount corresponding to the
percentage of his ownership, and he admitted that he did
not provide a date of marriage valuation for that asset.
Husband’s sworn financial statements each list Char-
Rose as a business interest, but neither provides a value,
historic or otherwise.
• Husband listed Investments International on his second
sworn financial statement, but he provided no known
estimated value from either before or after the marriage.
• The court admitted a letter from husband in which he
admitted to owning a “small percentage” of interest in the
Eighth Avenue Apartments, but husband otherwise
provided no evidence of its past or present value.
¶ 39 True, more than three months after the hearing, husband filed
a copy of his 2009 income tax returns, which showed that husband
had a premarital ownership interests in the properties. But
husband makes no argument regarding how these assets retained
their separate character throughout the marriage. See Capparelli,
¶ 10 (“The spouse claiming that property existing at dissolution is
18 separate because it was owned prior to the marriage has the burden
of proof to trace the property back to the original premarital
asset.”). Nor do the tax returns provide premarital valuations of
these assets.
¶ 40 We acknowledge that husband also argues that the court
incorrectly designated his parents’ bank accounts as marital
property. However, he didn’t sufficiently develop this argument, so
we don’t address it. See Antolovich v. Brown Grp. Retail, Inc., 183
P.3d 582, 604 (Colo. App. 2007).
¶ 41 Finally, husband correctly points out that a valuation and
allocation for his ownership interest in the Eighth Avenue
Apartments isn’t listed in the written permanent orders. However,
the court assigned this marital property a value and allocated it to
husband in the oral ruling, which the court explicitly incorporated
into its written order. Because the record supports the court’s
determinations, we perceive no abuse of discretion.
C. Marital Property
¶ 42 Husband next contends that the failure “to calculate the
increase in value of separate assets during a marriage does not
19 authorize [the court] to re-classify the assets as marital.” We
perceive no abuse of discretion.
¶ 43 Wife argues this issue wasn’t properly preserved for appeal.
She claims that husband improperly relies on his own C.R.C.P. 59
motion as his basis for preservation and, generally speaking,
arguments raised for the first time in a post-trial motion aren’t
preserved for appellate review. In re Marriage of McClure, 2024 COA
70, ¶ 7. Wife also argues that identification of an argument in a
trial management certificate, without more, is insufficient to
preserve the issue for appellate review. In re Marriage of Corak,
2014 COA 147, ¶ 23.
¶ 44 Husband claims that his own Bates Stamp log is evidence of
his submission of a 2009 income tax return. However, husband
doesn’t argue that this document contains information regarding
the premarital value of the properties. In any event, because the
documents it lists — including, for example, a 2021 appraisal of
Char-Rose — aren’t in the record, we can’t ascertain any premarital
value.
¶ 45 And even if we were to assume the argument was preserved,
husband still doesn’t prevail. He points to no authority, and we are
20 aware of none, requiring the court to calculate an increase in the
value of allegedly separate property when the party shouldering the
burden of establishing such value presents no evidence of the
property’s value at the time of marriage. The court, therefore, didn’t
abuse its discretion in determining that the properties’ entire value
was marital.
VI. Disposition
¶ 46 The court’s permanent orders are reversed as to wife’s attorney
fees as stated in Part II.B. They are otherwise affirmed, and the
case is remanded for further proceedings consistent with this
opinion.
JUDGE GOMEZ and JUDGE SULLIVAN concur.