25CA0929 Marriage of Mendozza 03-26-2026
COLORADO COURT OF APPEALS
Court of Appeals No. 25CA0929 Douglas County District Court No. 23DR30437 Honorable Daniel Warhola, Judge
In re the Marriage of
Kristin Marie Mendozza,
Appellee,
and
David Wayne Mendozza,
Appellant.
JUDGMENT AFFIRMED AND CASE REMANDED WITH DIRECTIONS
Division A Opinion by JUDGE GRAHAM* Román, C.J., and Berger*, J., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced March 26, 2026
Cox Baker Page & Bailey, LLC, James S. Bailey, Alexandra Wetzler England, Lone Tree, Colorado, for Appellee
David Wayne Mendozza, Pro Se
*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 In this proceeding dissolving the marriage of David Wayne
Mendozza (husband) and Kristin Marie Mendozza (wife), husband
appeals portions of the permanent orders regarding parenting time,
property division, and maintenance. We affirm and remand the
case for the determination of attorney fees.
I. Background
¶2 The parties married in 2006 and have two teenage children,
E.M. and M.M. During the marriage, wife’s parents gifted the
children and the parties money and transferred those funds into the
parties’ USAA 0979 checking account. Wife later transferred a
portion of the children’s gifts into tax advantaged 529 plan
accounts and the remainder into a USAA TUTMA 0881 (Texas )
savings account.
¶3 Around February 2022, the parties used a portion of their gift
for a down payment on a home (Pinewood house). Six months later,
the parties hired a construction company — without a signed
contract — to begin demolition in preparation for remodeling the
Pinewood house. Thereafter, the construction company submitted
a bid for the total cost of remodeling that was much higher than the
parties anticipated. When they sought other bids, a second
1 company discovered asbestos in the house’s drywall and demolition
debris. Colorado state health officials halted work on the house
until the asbestos could be abated. In early April 2023, after
abatement, the Pinewood house was in disarray. It had been
stripped down to its wall studs, its existing appliances, windows,
doors, and cabinetry had been removed and left out in the
elements, and some of its pipes had frozen.
¶4 One month later, wife petitioned the court for legal separation.
¶5 From early April 2023 until the filing of the petition, $613,000
was spent on a down payment, monthly mortgage payments, and
renovations for the Pinewood house. The parties also spent an
additional $113,000 on renovations.
¶6 By August or September of 2023, the parties agreed that
renovations should continue in order to sell the house. In the
process of the renovation, wife used funds from the USAA TUTMA
0881 savings account. As part of the stipulation, the parties agreed
that before any division of proceeds from the Pinewood house’s sale,
the proceeds would be used to reimburse the USAA TUTMA 0881
2 ¶7 From August or September of 2023 until March 2024, the
parties spent an additional $192,000 to prepare the house for sale.
By the time the house sold for $1,175,000, the parties had spent
$932,000 on renovations, a down payment, and mortgage
payments.
¶8 Days before the permanent orders hearing, wife requested that
the court convert her petition for legal separation into a petition for
dissolution. The court granted wife’s request and issued a decree of
dissolution of marriage. As relevant here, at the permanent orders
hearing, the court
• granted mother certain parenting time;
• declined to deem the funds from the children’s 529
accounts and the USAA TUTMA 0881 savings account
marital property;
• found that wife had not dissipated marital property by
continuing to renovate the Pinewood house after filing the
petition for legal separation; and
• ordered husband to pay wife $495 in monthly
maintenance for nine years and four months, as well as
$4,750 in retroactive maintenance.
3 II. C.A.R. Compliance
¶9 Wife contends that husband violated C.A.R. 28 and C.A.R. 32,
“significantly impact[ing her] ability to respond.” Specifically, she
argues that husband (1) “omit[ted] the line number relied upon in
references to the transcript, as well as the page numbers of exhibits
referenced”; (2) cited eleven exhibits that, wife alleges, had not been
admitted; and provided no record support for many assertions.
Wife requests that we sanction husband. Despite these alleged
deficiencies in husband’s briefing, we decline to sanction him.
¶ 10 Husband complied with the relevant requirements for
transcript and exhibit citations. C.A.R. 28(e) requires that an
appellate brief’s record citations “generally follow the format
detailed in the ‘Court of Appeals Policy on Citation to Record’”
(citation policy). C.A.R. 28(e). The citation policy does not require
line numbers for citations to transcripts when the transcripts are
more than one page in length. The citation policy also required
father to provide page numbers for the exhibits he referenced,
which he did. Although he was not consistent with where he placed
the page number — before or after the exhibit number/letter —
4 husband generally cited the page numbers of the exhibits he
referenced.
¶ 11 Wife lists eleven exhibits, not admitted into evidence, that she
alleges husband inappropriately referenced. While courts may not
rely on evidence that was not admitted, the appellate rules do not
address whether or not an appellant errs by relying on such
evidence in their briefing. See Hartman v. Freedman, 591 P.2d
1318, 1321 (Colo. 1979) (“Where [an] issue is tried to the court, it
will not be presumed that weight was accorded to evidence which
was not admitted.”). Assuming without deciding that reliance on
unadmitted evidence violates C.A.R. 28 or 32, there is no need for a
sanction. Wife claims that husband referred to Exhibit 15 in his
opening brief, but we could find no such reference. And she is
correct that husband referred to Exhibit 27, but he did so only to
point out that it was not submitted into evidence. Husband relied
on Exhibits 1A, A, B, E, F, G, LL, 19, and 22 either within his
statement of facts or to support factual statements in his
arguments. We do not rely on these exhibits in our recounting of
the facts or in our analysis.
5 ¶ 12 Finally, wife contends — without further explanation or
specific legal authority — that “many” of husband’s assertions have
no support in the record and the judgment “must be affirmed.” We
decline to address this underdeveloped argument. See Antolovich v.
Brown Grp. Retail, Inc., 183 P.3d 582, 604 (Colo. App. 2007).
¶ 13 Ultimately, recognizing that husband appears pro se in this
court (although with an extensive legal background), and given the
fact that his allegedly imperfect briefing nevertheless has facilitated
our review, we elect to address his contentions. See Cikraji, ¶ 10;
see also Bruce, 252 P.3d at 32 (division elected to consider merits of
noncompliant brief).
III. Parenting Time
¶ 14 Husband argues that the district court erred when it granted
wife parenting time before the children’s school dances. We
perceive no error.
A. Legal Framework and Standard of Review
¶ 15 When allocating parenting time, the court must focus on the
children’s best interests, giving paramount consideration to the
children’s safety, needs, and physical, mental, and emotional
conditions. See § 14-10-124(1.5), C.R.S. 2025; In re Marriage of
6 Collins, 2023 COA 116M, ¶ 7. When making this determination,
the court must consider all relevant factors, including the best
interest factors identified in section 14-10-124(1.5)(a). See In re
Marriage of Morgan, 2018 COA 116M, ¶ 21. To determine the
child’s best interest, the court should consider the best interest
factors provided in section 14-10-124(1.5).
¶ 16 Section 14-10-124(3) provides that “the court shall not
presume that any person is better able to serve the best interests of
the child because of the person’s sex.” Therefore, it would be
inappropriate for the court to grant parenting time to the children
solely because she is the mother. See In re Marriage of Miller, 670
P.2d 819, 820 (Colo. App. 1983) (holding that under section
14-10-124(3) it is reversible error to presume that a mother is better
able to serve the child’s best interests because of her sex).
¶ 17 The court has broad discretion to allocate parental
responsibilities and determine parenting time, and we exercise
every presumption in favor of upholding its decision. See In re
Marriage of Hatton, 160 P.3d 326, 330 (Colo. App. 2007). We will
not disturb a court’s parental responsibility and parenting time
7 decisions absent a showing that the court abused its discretion.
See Morgan, ¶ 26; Hatton, 160 P.3d at 330.
B. Analysis
¶ 18 Finding that “time with [wife] to do . . . makeup, hair
accessories” was in the children’s’ best interests, the court granted
wife’s request to have parenting time before school dances. While
the court does not provide a specific rationale for its determination,
the record shows that wife helping the children before dances was
the children’s preference and the family’s tradition. See Hatton, 160
P.3d at 329 (appellate court may presume that the district court
took all the competent evidence into consideration in rendering its
decision). Therefore, we disagree with husband’s argument that the
court placed undue emphasis on wife’s ability to support the
children’s preparations on the basis of wife’s sex.
¶ 19 Wife testified that the children wanted this time with her. See
§ 14-10-124(1.5)(a)(II). She also testified that she “always help[ed
the children] to do their hair, pin up their dresses, [and] get the
right undergarments.” See § 14-10-124(1.5)(a)(III) (“the
interaction . . . of the child with [their] parents”), and (VII) (“the past
pattern of involvement of the parties with the child[ren]”). Because
8 the court considered this evidence, which aligns with the required
statutory considerations for determining parenting time, we
perceive no abuse of discretion.
IV. Property Division
A. Governing Law and Standard of Review
¶ 20 When dividing a marital estate, a district court must first
determine whether an asset is marital — that is, acquired during
the marriage and subject to division — or separate property, which
is shielded from distribution. § 14-10-113(1), C.R.S. 2025; In re
Marriage of Dale, 87 P.3d 219 (Colo. App. 2003). Debts incurred
during the marriage, like assets acquired during the marriage, are
presumed to be marital. See § 14-10-113(3); see also In re Marriage
of Speirs, 956 P.2d 622 (Colo. App. 1997) (marital liabilities include
all debts that a spouse incurs during the marriage).
¶ 21 Afterwards, the district court must enter findings on the
approximate value of the spouses’ assets, In re Marriage of Wright,
2020 COA 11, ¶ 4, including marital debts, In re Marriage of
Jorgenson, 143 P.3d 1169, 1172 (Colo. App. 2006). We will uphold
the court’s valuation when it has record support. In re Marriage of
Schmedeman, 190 P.3d 788, 790 (Colo. App. 2008).
9 ¶ 22 Finally, after setting aside separate property, the district court
must divide the marital assets and debts in proportions it deems
just, ensuring an equitable, but not necessarily equal, division. See
§ 14-10-113(1).
¶ 23 The district court has great latitude in making an equitable
property division based on the facts and circumstances of each
case, and we will not disturb its decision absent an abuse of
discretion. Collins, ¶ 19. The court abuses its discretion when its
decision is manifestly arbitrary, unreasonable, or unfair, or when it
misapplies the law. In re Marriage of Medeiros, 2023 COA 42M,
¶ 28.
¶ 24 We accept the district court’s factual findings unless clearly
erroneous, meaning they are not supported by the record. See In re
Marriage of Gibbs, 2019 COA 104, ¶ 9. We review de novo,
however, whether the district court applied the correct legal
standard. Medeiros, ¶ 28.
B. Additional Background
¶ 25 During the marriage, wife’s parents gifted the children
$250,000 each for their “future support” and wired the funds into
husband’s and wife’s USAA 0979 checking account. Wife later
10 transferred approximately $30,000 of that gift into two 529
accounts for the children, and the remainder into the USAA TUTMA
0881 savings account.
C. 529 Accounts
¶ 26 Husband argues that the district court erred by failing to
consider the children’s 529 accounts as marital property and
dividing them. We disagree.
¶ 27 While husband correctly points out that “the district court
lacks authority to order postsecondary education support absent an
agreement of the parties,” here, the record shows that the parties
made such an agreement. See In re Marriage of Chalat, 112 P.3d
47, 51 (Colo. 2005). The parties’ joint trial management certificate
identified the children’s 529 accounts as “set aside for children’s
post-secondary education expenses.” Consequently, we perceive no
error in the district court’s determination that the children’s 529
accounts were “child assets” not subject to division.
D. TUTMA USAA 0881 Savings Account
¶ 28 Husband argues that the district court erred by not
considering the funds in the TUTMA USAA 0881 savings account to
be marital and dividing them equally between the parties. He
11 argues that the account does not comply with the requirements of
the Uniform Transfer to Minors Act (UTMA) and is therefore marital.
We are not convinced.
1. Relevant Law
¶ 29 Under Colorado’s UTMA, money, securities, and other property
can be invested in the minor’s name, with a custodian having a
fiduciary responsibility to prudently manage the accounts.
§§ 11-50-110 to -113, C.R.S. 2025. But a person establishing the
account must follow the statutory guidelines under the UTMA.
¶ 30 Specifically, a person may make a gift or transfer of money to
a minor that will be governed by the UTMA, so long as the
transferor, the minor, or the custodian is a resident of Colorado on
the date of the gift or transfer. § 11-50-103(1), C.R.S. 2025. And a
gift or transfer to a minor made pursuant to the UTMA is
irrevocable and conveys to the minor indefeasibly vested legal title
to the property. § 11-50-112(2), C.R.S. 2025.
¶ 31 To constitute an irrevocable gift or transfer or money under
the statute, the transferor must pay or deliver the money to “a
broker or financial institution for credit to an account in the name
of the transferor, . . . followed in substance by the words: ‘as a
12 custodian for _____ (name of minor) under the ‘Colorado Uniform
Transfers to Minors Act.’” § 11-50-110(1)(b). Another division of
this court has determined when an account is established under
the UTMA the district court may not treat it as marital property and
divide the funds between husband and wife. In re Marriage of
Nevedrova, 2024 COA 112, ¶ 14.
2. Analysis
¶ 32 As an initial matter, husband first argues that the initial
transfer of the children’s gifts into the parents’ USAA 0979 checking
account did not create a UTMA account. The court did not
investigate this initial transfer beyond noting the wife’s father’s
intent that the money be used for the children. And the details of
this initial transfer were not necessary to its determination that the
TUTMA USAA 0881 savings account was not marital. Therefore,
even if this initial transfer had been flawed, we perceive no abuse of
discretion. See People v. Frost, 5 P.3d 317, 323-24 (Colo. App.
1999) (finding no abuse of discretion where improperly disclosed
evidence was “not relevant to any issue before the court”).
¶ 33 The court concluded, with record support, that the TUTMA
USAA 0881 savings account met the requirements of the UTMA and
13 was, thus, not marital property. In reaching this conclusion, it
acknowledged that “as a custodian for _____ (name of minor) under
the “Colorado Uniform Transfers to Minors Act” was nowhere
explicitly stated. Nevertheless, it noted that the document showing
the transfer from the parents’ USAA 0979 checking account to the
TUTMA USAA 0881 savings account indicates that the account is in
M.M.’s name, designated a “custodian” and contained a further
designation, “TUTMA.”
¶ 34 Husband relies on Nevedrova to argue that the court should
not have relied on the “TUTMA” notation alone in determining that
the account met the UTMA requirements. In Nevedrova, the court
concluded that no UTMA account had been formed where there was
“no evidence in the record” that the transferor delivered the money
to the bank, followed by a declaration that they were the custodian
for the child as required by section 11-50-110(1)(b) even though the
account was identified as “UGMA_UTMA.” Id. at ¶ 15.
¶ 35 Here, in contrast, the evidence showed not only that wife
transferred the gifted money into an account designated “TUTMA,”
but also that the account was in M.M.’s name, and that wife was
the account’s custodian. In our view, this satisfies the
14 requirements for a UTMA account as the court in Nevedrova
described them. And this is true regardless of the fact that wife
could not recall whether she received any documentation regarding
the “legal ramifications” of creating such an account.
¶ 36 Based on the record, we conclude that there is sufficient
evidence to support the statutory purpose of the UTMA: to protect
minors by ensuring that their property remains separate and
identifiable. See § 11-50-113 (custodial property must be “kept . . .
separate and distinct from all other property in a manner sufficient
to identify it clearly as custodial property of the minor”); see also In
re Marriage of Ludwig, 122 P.3d 1056, 1061 (Colo. App. 2005)
(holding that minor’s property in a UTMA account cannot be used
to reduce a parent’s legal obligation of support); In re Marriage of
Wolfert, 598 P.2d 524, 526 (Colo. App. 1979) (same, but under
Uniform Gifts to Minors Act, which preceded the UTMA). The
record indicates that both parents — particularly husband —
sought to preserve the TUTMA USAA 0881 savings account as
non-marital and “for the kids.” At the permanent orders hearing,
husband testified that he wanted “to make sure that we gave [the
gifted money] to the kids.” And he repeatedly testified that he
15 entered into the stipulation regarding the renovation of the
Pinewood house in order to “protect[] the kids’ money . . . in the
0881 account.” Indeed, as we have already pointed out, one part of
the stipulated agreement was to promptly and completely reimburse
the TUTMA USAA 0881 savings account after the sale of the home.
¶ 37 Finally, we disagree with husband’s contention that the court’s
order improperly changed the minor beneficiary of the account to
make both children beneficiaries. True, as husband points out,
section 11-50-111, C.R.S. 2025 states that, under the UTMA, “a
transfer may be made only for one minor.” § 11-50-111. And we
acknowledge that the court’s ruling is muddled — mentioning the
parties’ intent to have both children benefit from the account.
Nevertheless, the court specifically found that the account was in
M.M.’s name alone. This finding meets the requirements of section
11-50-111.
¶ 38 Given this record, in which the court applied the appropriate
law with record support, and cognizant of the wide latitude the
court has to make property division, we conclude that it did not
abuse its discretion in removing the TUTMA USAA 0881 savings
account’s funds from its calculation of the marital property.
16 V. No Dissipation
¶ 39 Husband argues that the district court erred when it
determined that wife had not dissipated marital funds by
continuing the Pinewood house renovation after filing the petition
for legal separation. We perceive no basis for reversal.
¶ 40 Upon wife’s petitioning for legal separation, an automatic
temporary injunction entered. See § 14-10-107(4)(b)(I), C.R.S.
2025. The injunction prohibited either party “from transferring,
encumbering, concealing, or in any way disposing of, without the
consent of the other party or an order of the court, any marital
property, except in the usual course of business or for the
necessities of life . . . .” § 14-10-107(4)(b)(1)(A). Such a temporary
injunction remains in effect until the final decree is entered, the
petition is dismissed, “or until further order of the court.”
§ 14-10-107(4)(b)(I).
¶ 41 In extreme cases, if a party unilaterally withdraws martial
funds during the proceedings, in violation of the temporary
injunction, the district court may rectify that violation by including
the dissipated funds in the property division. See, e.g., Jorgenson,
17 143 P.3d at 1173-74 (a court may consider dissipation of marital
assets in contemplation of divorce when dividing marital assets); In
re Marriage of Riley-Cunningham, 7 P.3d 992, 995 (Colo. App. 1999)
(dissipation occurs when a party depletes a marital asset for
improper or illegitimate purposes in contemplation of the
dissolution). The district court may not consider an asset to have
been dissipated unless it finds that the party disposed of the asset
improperly. See In re Marriage of Finer, 920 P.2d 325, 331 (Colo.
App. 1996).
¶ 42 The determination of whether or not a party dissipated marital
assets is a purely factual determination. See In re Marriage of
Martinez, 77 P.3d 827, 831 (Colo. App. 2003). Thus, we defer to the
district court’s finding on that issue if the record supports it.
Gibbs, ¶ 9.
¶ 43 True, renovation of the Pinewood house continued after wife
filed the petition for legal separation. The district court concluded
that the continuing renovation was not a violation of Colorado’s
statutory temporary injunction pursuant to section
14-10-107(4)(b)(1)(A) and, therefore, was not a dissipation of the
18 marital estate. In doing so, the court found that, because the
parties had “already spent hundreds of thousands of dollars” on the
Pinewood house and its renovation by the time wife filed the
petition, “the construction of the home was in the usual course of
business for the family” and therefore did not violate the statutory
injunction. The court also found, with record support, that wife
had “apprised [husband] of the construction progress that included
the work to be done, by whom, and the cost of that work”
throughout the project. And it found that evidence indicated
husband was “thankful that [w]ife . . . includ[ed] him in the
Pinewood project” and that he wanted to “be part of the renovation
process.” Finally, the court found that continuing the renovation
was necessary to preserve the value of the Pinewood house as a
marital asset.
¶ 44 These findings are supported by the record. Although
husband urges us to conclude that the parties had only spent
money on the architectural drawings and asbestos remediation
when the petition was filed, the record shows that they had already
spent $613,000 by the time wife filed the petition for legal
separation.
19 ¶ 45 The record shows that husband received emails regarding the
house’s ongoing renovation in April and May 2023, before the
petition was filed. And husband acknowledged that he had chosen
not to open additional emails from wife, sent after the petition was
filed — which included emails titled “Pinewood Quotes/Project Cost
June 2023” and “Pinewood Project Files.” These emails contained
information about money spent on renovations beginning in May
2023 when wife filed the petition. Nevertheless, two months after
the petition was filed, husband texted wife that he “very much
appreciate[d her] bringing [him] into a renovation-related decision”
and lamented not being included sooner. He assured wife that he
agreed with renovation of the Pinewood house.
¶ 46 To the extent that husband suggests that the court failed to
consider wife’s alleged economic misconduct when determining that
no dissipation had occurred, we disagree. Economic fault is
“strictly confined” to “extreme cases.” See In re Marriage of Smith,
2024 COA 95, ¶ 80. Even in cases in which, after the filing of the
petition, one spouse violates the temporary injunction and
“financially impact[s] the marital estate,” divisions of this court have
relied on the district court’s determination that no dissipation
20 occurred when the party was motivated by preserving marital
assets. See id. (no economic fault where spouse violated injunction
in order to limit liability for another marital asset). In this case, the
court found that wife, by continuing the renovation process after
filing the petition, had not committed economic misconduct by
dissipating marital assets. Rather, the court concluded, the
renovations preserved the value of the Pinewood house as a marital
asset.
¶ 47 This, too, was supported by the record. Husband texted wife
two months after she filed the petition that, in proceeding with the
renovation, “he want[ed] to help and do what’s best for [the parties’]
finances” and was “committed to . . . proceeding in ways that best
protect our shared assets.” Husband’s assent to the renovation as
a way to preserve the house as a marital asset distinguishes this
case from the case he relies on in his briefing: In re Matter of Storey,
2022 CO 48, ¶ 41. In Storey, the Colorado Supreme Court held
that the sale of family furniture — without the knowledge or
consent of one party — dissipated marital assets. Id.
¶ 48 The record supports the court’s conclusion that wife did not
violate the temporary injunction, see § 14-10-107(4)(b)(I)(A), as well
21 as its conclusion that funds and expenses were not used for
improper purposes or incurred to deplete the marital estate in
contemplation of the dissolution proceedings. See
Riley-Cunningham, 7 P.3d at 995. Therefore, the court did not err.
VI. Maintenance
¶ 49 Husband argues that the district court erred when, in
determining maintenance, it allegedly did not account for wife’s
potential income (to include gift income and inheritance), her
increased earnings, future inheritance, “the inequities in the
parties’ future incomes,” and wife’s use of husband’s earnings
during the separation. We perceive no basis for reversal.
¶ 50 Section 14-10-114(3), C.R.S. 2025, specifies the process a
district court must follow when considering a maintenance request.
Wright, ¶ 13. The court must first make findings concerning (1) the
amount of each party’s gross income; (2) the marital property
apportioned to each party; (3) the financial resources of each party;
(4) the reasonable financial need as established during the
marriage; and (5) whether the maintenance awarded would be
22 deductible for federal income tax purposes by the payor and taxable
income to the recipient. § 14-10-114(3)(a)(I); see Wright, ¶ 14.
¶ 51 After making these initial findings, the district court must
determine the amount and term of maintenance, if any, that is fair
and equitable to the parties. § 14-10-114(3)(a)(II). The court
considers the guideline amount and term set forth in section
14-10-114(3)(b). § 14-10-114(3)(a)(II); Wright, ¶ 15. These
guidelines are a “starting point for the determination of fair and
equitable maintenance awards.” § 14-10-114(1)(b)(II). And the
court must weigh the statutory factors set forth in section
14-10-114(3)(c), including “[t]he lifestyle during the marriage,”
temporary maintenance amount and duration, “[t]he financial
resources of the recipient spouse,” the duration of the marriage,
and the health of the parties. § 14-10-114(3)(c). But “the factors
set forth in section 14-10-114(3)(c) are not exclusive, as the final
factor is ‘[a]ny other factor that the court deems relevant.’” Wright,
¶ 15 (quoting section 14-10-114(3)(c)(XIII)). “Thus, ‘[t]he court has
discretion to determine the award of maintenance that is fair and
equitable to both parties based upon the totality of the
circumstances.’” Id. (quoting section 14-10-114(3)(e)).
23 ¶ 52 Last, before awarding maintenance, the district court must
find that the party seeking maintenance lacks sufficient property,
including marital property apportioned to him or her, to provide for
his or her reasonable needs and is unable to support himself or
herself through appropriate employment. § 14-10-114(3)(d).
¶ 53 We review a court’s maintenance award for an abuse of
discretion. Medeiros, ¶ 58. A court abuses its discretion when its
decision is manifestly arbitrary, unreasonable, or unfair, or when it
misapplies the law. Id. at ¶ 28.
B. Court’s Findings
¶ 54 In ordering husband to pay maintenance, the court,
referencing section 14-10-114(3)(a)(I), made the following findings.
• The parties had stipulated to their gross monthly
incomes of $7,800 (wife) and $13,300 (husband).
• Considering wife’s financial resources and need, the
court found that she had been a stay-at-home parent and
was “the sole primary provider for the children during the
marriage.” We note that wife did work part time, but this
does not contradict the fact that she was a stay-at-home
parent and the primary caretaker for the children. The
24 gift wife’s parents gave was a gift to the marriage, not just
to her. And wife’s monthly income does not cover her
expenses.
• With regard to husband’s financial resources and need,
the court considered husband’s salary and work history.
Husband “advanced his career and his education and
was working as an attorney” during the marriage. And
husband’s monthly income does not cover his expenses.
• Maintenance “would not be deductible for federal income
tax purposes by the payor, nor would be taxable income
to the recipient.”
¶ 55 The court then reviewed the requirements for section
14-10-114(3)(a)(II) and found that there is no maintenance guideline
amount in this case because the parties’ incomes are too high, but
that “the term of maintenance set forth pursuant to statute would
be nine years and four months.”
¶ 56 Finally, as required by section 14-10-114(3)(d), and despite
husband’s argument that the court made no such determination,
the court determined that wife lacked sufficient property, including
marital property apportioned to her, to provide for her reasonable
25 needs and was unable to support herself through appropriate
employment. § 14-10-114(3)(d). In making this finding, the court
explicitly referenced wife’s parents’ large financial gifts as “an early
inheritance” and that wife has “just started working again
full-time.”
C. Analysis
¶ 57 Husband argues that the district court was required to make
findings about wife’s “actual or potential income” including her gift
income and inheritance. § 14-10-114(3)(a)(I)(C). Specifically,
husband says that the court “failed to account” for wife’s parents’
gifts which, according to husband, would increase wife’s “historical
income” to “an average of $168,750 per year between 2021 and
2024.” But the record shows that the court did consider these gifts
when determining wife’s reasonable need for maintenance.
Similarly, husband suggests wife has a future inheritance, but his
record citation does not clearly support that contention.
¶ 58 The court made the required findings pursuant to the
applicable statutory framework and with record support. Therefore,
it did not abuse its discretion.
26 VII. Requests for Attorney Fees
¶ 59 Husband requests an award of attorney fees pursuant to
C.A.R. 38(b). He argues that wife’s answer brief contains
arguments that are “vague, misleading, incoherent, and based on
shifting legal standards and inaccurate analyses.” Even if C.A.R.
38(b) were applicable to wife’s answer to husband’s appeal, we
disagree that her briefing was so flawed as to justify the award of
husband’s attorney fees. C.A.R. 38(b) (“If the appellate court
determines that an appeal . . . is frivolous, it may award damages it
deems appropriate, including attorney fees . . . .”).
¶ 60 Wife requests an award of attorney fees pursuant to C.A.R.
39.1; she argues that husband’s claims were “frivolous and
unsubstantiated.” Frivolous appeals include those that lack any
rational justification or are prosecuted for the sole purpose of
harassment or delay. See In re Marriage of Boettcher, 2018 COA 34,
¶ 38. We cannot conclude that husband’s arguments justify an
award of fees under this section. Husband’s arguments did not
lack rational justification and we could find no evidence — nor did
wife point us to any — to indicate that husband’s appeal was filed
to solely delay finality or harass her.
27 ¶ 61 Wife also requests attorney fees under section 14-10-119,
C.R.S. 2025. But the district court has already found that there is
no equitable basis for such an award and we agree.
VIII. Disposition
¶ 62 The judgment is affirmed and the case is remanded for a
determination of attorney fees pursuant to section 14-10-119.
CHIEF JUDGE ROMÁN and JUDGE BERGER concur.