24CA0162 Marriage of Martinez 01-23-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA0162 Pueblo County District Court No. 22DR30157 Honorable Michelle Chostner, Judge
In re the Marriage of
Alonso J. Martinez,
Appellant,
and
Theresa A. Martinez,
Appellee.
JUDGMENT AFFIRMED
Division III Opinion by JUDGE DUNN Tow and Taubman*, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced January 23, 2025
Barrow Brown Carrington, PLLC, Dorothy Walsh Ripka, Denver, Colorado, for Appellant
Law Office of Dailey & Pratt, LLC, Joel M. Pratt, Colorado Springs, Colorado, for Appellee
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2024. ¶1 In this dissolution of marriage case between Alonso J.
Martinez (husband) and Theresa A. Martinez (wife), husband
appeals the district court’s judgment that divided their marital
estate, determined maintenance, and declined his request for
attorney fees and costs. We affirm.
I. Permanent Orders
¶2 The parties were married for twenty-two years. In 2023, the
district court dissolved the marriage and entered permanent orders.
¶3 In doing so, the court divided the parties’ $620,000 marital
estate by allocating to husband about $340,000 of the marital
equity and wife the remaining $280,000.1
Wife Husband
Marital Home $186,459 $186,459
Reimbursement for $0 $9,500 Joint Account Withdrawal Vehicles $11,013 $36,466
Bank Accounts $5,949 $2,119
Personal Property $0 $49,292
1 The court amended its allocation of the marital estate in a post-
trial order, and these values represent the court’s amended permanent orders.
1 Horse $1,500 $0
Public Employees’ $75,857 $75,857 Retirement Association (PERA) Accounts 403(b) Retirement $37,026 $0 Account IRS Debt $10,980 $10,980
Other Debt $26,394 $8,447
TOTAL $280,430 $340,266
¶4 The court then directed wife to pay husband maintenance in
the amount of $340 per month for a term of four years. And it
declined to award husband attorney fees and costs under section
14-10-119, C.R.S. 2024.
II. Property Division
¶5 Husband contends that the district court’s division of the
marital estate was inequitable. He argues that the court erred by
(1) allocating to him all the parties’ personal property, other than
vehicles, a horse, and retirement accounts; (2) determining that the
value of that personal property was $49,292; and (3) not allocating
to him a portion of wife’s 403(b) retirement account. We consider
and reject his contentions.
2 A. Governing Legal Standards
¶6 The court has great latitude to equitably divide the marital
estate in such proportions as it deems just based on the facts and
circumstances of each case. See § 14-10-113(1), C.R.S. 2024; In re
Marriage of Medeiros, 2023 COA 42M, ¶ 28. “The key to an
equitable distribution is fairness . . . .” In re Marriage of Gallo, 752
P.2d 47, 55 (Colo. 1988). We will not disturb a court’s property
division absent an abuse of discretion, which occurs only when the
court’s decision is manifestly arbitrary, unreasonable, or unfair, or
when it misapplies the law. Medeiros, ¶ 28.
¶7 When dividing the marital estate, the court must also
determine the approximate current value of the marital property.
See In re Marriage of Wright, 2020 COA 11, ¶ 4. In doing so, the
court may select one party’s valuation over that of the other party,
or it may make its own valuation when it is reasonable in light of
the evidence as a whole. Medeiros, ¶ 41. It is a party’s duty to
present the court with the requisite information to allow it to make
a sufficient valuation, and the party’s failure to provide that
information does not provide it with grounds for reversal. See In re
Marriage of Rodrick, 176 P.3d 806, 815 (Colo. App. 2007). We will
3 uphold the court’s valuation when it has record support. In re
Marriage of Schmedeman, 190 P.3d 788, 790 (Colo. App. 2008).
B. Personal Property Allocation
¶8 Husband argues that when the court allocated the personal
property, it did not consider the additional burden and the costs
associated with obtaining the personal property’s equity, which
“artificially inflated the value of [his] portion of the marital estate”
and, in turn, reduced the court’s allocation of other more desirable
marital assets to him. We are unpersuaded.
¶9 The parties agreed to retain Steve Cardinelli to appraise about
220 items of their personal property. Cardinelli valued husband’s
property at $22,054 and wife’s property at $27,738.
¶ 10 Though neither party disputed the valuations, they disagreed
on the allocation of these assets. Husband argued that each party
should keep the personal property in their possession (except for a
few additional items he requested from wife). Wife, however, argued
that husband already took all the “good” items and that he should
be allocated all the personal property. And she argued that he
could use the equity from those items to help offset his request for
financial assistance.
4 ¶ 11 After considering the parties’ competing requests, and in light
of the court’s allocation of other marital assets, the court allocated
all the personal property to husband, which it valued at $49,292.
In the event husband didn’t want some or all of the personal
property, the court ordered the property to be sold with husband to
receive the sale proceeds.
¶ 12 The court’s allocation of personal property was one
determination, among others, it made to effectuate an overall
disproportionate allocation of marital property in husband’s favor.
See § 14-10-113(1); Medeiros, ¶ 28. While husband may not have
wanted all of the personal property, the court weighed the relevant
factors and allocated these marital assets within its discretion
based on the facts and circumstances of the case. See In re
Marriage of Hunt, 909 P.2d 525, 538 (Colo. 1995) (“[A]n appellate
court must not disturb the delicate balance achieved by the trial
court in division of [marital] property . . . unless there has been a
clear abuse of discretion.”). That allocation is not manifestly
unreasonably or arbitrary.
¶ 13 Husband now says that he will not receive the true value of
the property — making the allocation unfair — because he will bear
5 the burden and cost of selling the property. But husband did not
raise this issue in the district court; he did not present any evidence
concerning potential costs or burdens related to the sale of the
personal property or the effect on the remaining equity; and he did
not argue that the court must consider such circumstances in its
allocation. See Schmedeman, 190 P.3d at 790; Rodrick, 176 P.3d at
815. Because husband did not raise this issue at the permanent
orders hearing, we will not consider it now. See In re Marriage of
Crouch, 2021 COA 3, ¶ 13 (declining to address an issue raised for
the first time on appeal); see also Briargate at Seventeenth Ave.
Owners Ass’n v. Nelson, 2021 COA 78M, ¶ 66 (“Arguments made . .
. for the first time in a post-trial motion are too late and . . . are
deemed waived for purposes of appeal.”).
¶ 14 Thus, the court acted within its discretion to allocate the
personal property to husband.
C. Personal Property Value
¶ 15 Husband also contends that the district court erred by double
counting items when it found that the value of personal property
was $49,292. He argues that the court relied on Cardinelli’s
appraisal to assign this value to personal property but that this
6 appraisal included assets that the court separately allocated in its
permanent orders. We discern no reversible error.
¶ 16 Before the permanent orders hearing, the parties executed a
memorandum of understanding (MOU), in which they agreed that
wife would receive a Sundowner horse trailer valued at $11,000 and
a manure spreader valued at $127, and that husband would receive
a Champion boat valued at $10,500 and two homemade trailers
collectively worth $900. They also agreed that the value of a Honda
ATV was $1,600 and subject to the court’s allocation. The court
adopted the MOU and allocated the assets in accordance with the
MOU. The court also allocated the Honda ATV to husband but did
not specify its value. Then, the court allocated to husband the
personal property valued at $49,292, which was almost identical to
Cardinelli’s appraised value.2
¶ 17 Cardinelli’s appraisal listed a “Champion Boat” worth $10,500,
a “Homemade Trailer” worth $600, a “Trailer” worth $300, a
“Millcreek Spreader” worth $127, a “Honda 4 Wheeler” worth
2 The court’s personal property value was about $500 less than
Cardinelli’s total appraised value. Because husband does not raise this slight variation as an issue on appeal, we do not address it.
7 $1,600, and a “Horse Trailer” worth $11,000. Husband argues that
these were the same items separately allocated by the court and
addressed in the MOU. Even if we assume that the court’s
allocation accounted for these assets twice, we will disregard errors
that affect only a small percentage of the overall marital estate. In
re Marriage of Balanson, 25 P.3d 28, 36 (Colo. 2001); In re Marriage
of Zappanti, 80 P.3d 889, 893 (Colo. App. 2003); see C.A.R. 35(c).
The value of the Champion Boat, homemade trailers, Sundowner
horse trailer, manure spreader, and Honda ATV totaled $24,127.
That amounts to less than 4% of the approximately $620,000
marital estate. An error affecting such a small percentage of the
overall marital estate does not warrant reversal. See In re Marriage
of Powell, 220 P.3d 952, 957, 959 (Colo. App. 2009) (upholding the
district court’s refusal to use an expert’s valuation of property that
would have increased the marital estate by only 6.6%, in part,
because it did not materially impact the property division); see also
Balanson, 25 P.3d at 38 (suggesting that an error affecting less than
2% of the overall marital estate would be harmless).
¶ 18 We therefore conclude that any error in allocating personal
property to husband worth $49,292 was harmless.
8 D. Retirement Accounts
¶ 19 We also reject husband’s contention that the district court
abused its discretion by declining to allocate to him a portion of
wife’s 403(b) retirement account.
¶ 20 Husband argues that because the 403(b) retirement account
was marital property, he was entitled to a portion of it. But a court
is not required to divide each individual marital asset between the
parties. Rather, it’s required to equitably divide the entire marital
estate. See § 14-10-113(1); Medeiros, ¶ 28. And when dividing the
entire marital estate, the court allocated to husband other marital
assets, from which he received over $340,000 of the marital equity.
Given those allocations, the court determined that it was
appropriate for wife to retain the 403(b) retirement account (worth
approximately $37,000), which allowed her to receive approximately
$280,000 of the marital equity. While husband wanted a different
allocation, the court’s overall allocation was equitable and within its
discretion. See Medeiros, ¶ 28; see also Hunt, 909 P.2d at 538.
¶ 21 Husband also generally asserts that wife didn’t properly
disclose the 403(b) retirement account. But the record shows that,
at the hearing, husband knew of the account, did not dispute its
9 value, and addressed its allocation. Because husband doesn’t
develop any legal or factual argument to establish how the
purported inadequacy impacted the court’s allocation or otherwise
supports reversal, we decline to further address this undeveloped
assertion. See In re Parental Responsibilities Concerning S.Z.S.,
2022 COA 105, ¶ 29.
¶ 22 And to the extent husband now attempts to challenge the
value of the 403(b) retirement account, arguing that wife failed to
provide an updated balance for the account at the time of the
hearing, husband did not challenge this value before the district
court and raises it for the first time in his reply brief. We therefore
decline to address it. See id. at ¶ 24; see also Crouch, ¶ 13.
¶ 23 Finally, husband objects that wife presented an outdated
value of her PERA account at the hearing. But he develops no
argument explaining how the absence of an updated account value
affected his substantial rights when the court directed the parties to
equally divide the PERA account based on its value on the date of
the hearing. See S.Z.S., ¶ 29.
¶ 24 We therefore are unpersuaded that the court abused its
discretion by allocating the 403(b) retirement account to wife.
10 III. Maintenance
¶ 25 Husband next contends that the district court abused its
discretion by awarding him maintenance of $340 per month for a
term of only four years. We disagree.
A. Governing Legal Standards
¶ 26 When awarding maintenance, the court must determine an
amount and term of maintenance that are fair and equitable. § 14-
10-114(3)(a)(II), (3)(e), C.R.S. 2024. To do so, the court considers
the advisory guidelines on the amount and term of maintenance.
§ 14-10-114(3)(a)(II)(A), (3)(b). These guidelines are a starting point;
they do not create a presumptive maintenance amount or term.
§ 14-10-114(1)(b)(II), (3)(e). The court then considers a nonexclusive
list of statutory factors to determine the appropriate amount and
term of maintenance, if any, based on the totality of circumstances.
§ 14-10-114(3)(a)(II)(B), (3)(c), (3)(e).
¶ 27 We will uphold the court’s maintenance determination unless
it is shown to be an abuse of discretion. Medieros, ¶ 58.
B. Discussion
¶ 28 When determining maintenance, the court found that
husband’s gross income was $4,967 per month, and it noted the
11 substantial equity he received from the marital estate. See § 14-10-
114(3)(a)(I)(A)-(C), (3)(c)(I), (IV). The court found that wife’s gross
income was $8,583 per month. See § 14-10-114(3)(a)(I)(A), (3)(c)(II).
It acknowledged that, in addition to this income, wife also owned a
consulting business near the end of the marriage that had provided
the parties with additional income, but it found that wife had to
close that business. See § 14-10-114(3)(a)(I)(A), (C), (3)(c)(II), (III),
(V). The court found that the parties enjoyed a comfortable lifestyle
throughout their marriage, and that due to wife’s recent increased
income, they had lived a more luxurious lifestyle at the end of the
marriage. See § 14-10-114(3)(a)(I)(D), (3)(c)(III).
¶ 29 The court determined that, based on the parties’ gross
incomes, the guideline amount of maintenance was $340 per
month. See § 14-10-114(3)(b)(I)(C). And it found that given the
length of their marriage (261 months), the guideline term was ten
years. See § 14-10-114(3)(b)(II)(A)-(B).
¶ 30 Then, after considering the relevant circumstances, the court
concluded that $340 per month for a four-year maintenance term
was fair and equitable. The court noted the parties’ ages in relation
to retirement (husband was forty-seven and wife was fifty-two) and
12 its allocation of the PERA accounts. See § 14-10-114(3)(c)(I), (II),
(IV), (IX). The court also explained that husband’s portion of the
marital estate, in addition to his other financial resources, would
allow him to provide for his reasonable financial needs moving
forward. See § 14-10-114(3)(c)(I), (IV). The court further found that
the parties had reliable employment and that they both had made
substantial contributions to the marriage. See § 14-10-114(3)(c)(V),
(X). And the court recognized that wife had paid husband
temporary maintenance for almost a year during the dissolution
case, she was allocated a larger share of the marital debt, and,
historically, she earned an income only slightly more than that of
husband. See § 14-10-114(3)(c)(II), (IV), (VI), (VIII).
¶ 31 Husband argues that the court did not consider evidence and
circumstances that could have supported a maintenance
determination more favorable to him. He highlights the parties’
higher standard of living toward the end of the marriage, wife’s
historically higher income, his non-economic contributions to the
marriage, and his medical conditions that lessened his work
capacity. But, contrary to his claims, the court considered the
totality of circumstances, including many of those highlighted by
13 husband, and concluded that four years was a fair and equitable
maintenance term.
¶ 32 Because the record supports the court’s findings, we will not
disturb its determination. See In re Marriage of Atencio, 47 P.3d
718, 722 (Colo. App. 2002) (providing that we will not disturb a
court’s maintenance determination when the record supports it);
see also In re Marriage of Evans, 2021 COA 141, ¶ 45 (“We are not
at liberty to re-evaluate the conflicting evidence and set aside [the
court’s] findings supported by the record.”). Wife testified that their
standard of living had historically been modest and that while they
recently enjoyed a higher standard of living due to the additional
income from her consulting business, she could no longer earn that
additional income. And she said that, during the marriage, the
parties’ incomes were relatively equal and that there was only “a
two or three thousand dollar a year difference” between them.
Husband also confirmed that he earned almost $5,000 per month
and had been employed at the same organization for fifteen years.
Moreover, the court allocated to husband a greater share of the
marital assets and a lower portion of the marital debt.
14 ¶ 33 To the extent the court may not have directly addressed any
circumstance highlighted by husband, the court did not need to
make explicit findings on every factor. See Wright, ¶ 20; see also In
re Marriage of Collins, 2023 COA 116M, ¶ 21 (recognizing that we
may presume that the court considered all the evidence presented).
The court’s findings discussed the factors it found relevant, and
those findings provide a clear understanding of the basis of its
decision. See Wright, ¶ 20.
¶ 34 The court therefore did not abuse its discretion by ordering
wife to pay maintenance in the amount of $340 per month for a
four-year term.
IV. Attorney Fees and Costs
¶ 35 Husband next contends that the district court abused its
discretion by declining to award him attorney fees and costs under
section 14-10-119. We are unpersuaded.
¶ 36 To ensure that a party in a dissolution proceeding does not
suffer undue economic hardship, a court may equitably apportion
attorney fees and costs between parties based on their relative
economic circumstances. Collins, ¶ 49; see § 14-10-119. We will
15 not disturb the court’s decision absent a showing that it abused its
discretion. See Collins, ¶ 51.
¶ 37 The court found that even though a gap existed in the parties’
respective incomes, an award of attorney fees and costs was not
necessary or appropriate. The court explained that when
considering the property division (which allocated to him over
$340,000) and the parties’ financial resources, including the
maintenance award, there was not a significant financial disparity
between the parties and husband could pay his attorney fees.
¶ 38 The record supports the court’s findings concerning the
parties’ relatively similar financial circumstances. And because we
reject husband’s claims of reversible error concerning the property
division (and maintenance), we necessarily reject his argument that
those errors warrant reconsideration of the court’s denial of
attorney fees and costs.
¶ 39 The court therefore acted within its discretion by declining to
award husband attorney fees and costs.
V. Disposition
¶ 40 The judgment is affirmed.
JUDGE TOW and JUDGE TAUBMAN concur.