24CA1254 Marriage of Ness 08-21-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA1254 Douglas County District Court No. 22DR30184 Honorable Benjamin T. Figa, Judge
In re the Marriage of
Oscar Pablo Ness,
Appellee,
and
Hannah Jo Ness n/k/a Hannah Jo Culbertson,
Appellant.
JUDGMENT AFFIRMED
Division VII Opinion by JUDGE PAWAR Lipinsky and Lum, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced August 21, 2025
Oscar Pablo Ness, Pro Se
Fourth Street Law LLC, Caroline C. Cooley, Christopher J. Linas, Castle Rock, Colorado, for Appellant ¶1 In this dissolution of marriage case between Hannah Jo
Culbertson f/k/a Ness (mother) and Oscar Pablo Ness (father),
mother appeals those portions of the permanent orders concerning
property division, maintenance, and child support. We affirm.
I. Background
¶2 Father petitioned to dissolve the parties’ marriage in March
2022. The parties had been married since September 2018 and
have one minor child.
¶3 The district court held a hearing in January 2024 and, a few
weeks later, entered permanent orders and dissolved the parties’
marriage. Mother appeals the permanent orders, claiming the
district court erred by (1) accepting father’s expert’s valuation of the
marital business over her expert’s opinion; (2) correcting its
calculation of mother’s debt after its initial ruling; (3) deviating from
the child support guidelines to reduce father’s child support
obligation to $0; and (4) denying mother’s request for maintenance.
II. Mother Did Not Preserve Her Dissipation Argument as to the Marital Business
¶4 The parties jointly owned a business, Denver Wedding Rental
Company, which was a marital asset. Mother’s expert testified that
1 the business should be valued at $554,000, while father’s expert
opined that its value was $152,000. The court found that, although
mother’s expert was credible, the expert’s valuation was a year out
of date. It therefore adopted father’s expert’s valuation and
awarded the business to father.
¶5 On appeal, mother contends the court erred because it did not
consider that the business’s value decreased due to father’s
dissipation. Though the parties represent that the dissipation issue
is properly before us, we disagree. See In re Marriage of Hogsett,
2018 COA 176, ¶ 32 n.3 (an appellate court is not bound by a
party’s concession regarding preservation), aff’d sub nom. Hogsett v.
Neale, 2021 CO 1. Based on our independent review of the record,
we conclude that mother did not sufficiently preserve her
dissipation argument, and we therefore do not address it on the
merits. See People v. Tallent, 2021 CO 68, ¶ 11 (“[A]n appellate
court has an independent, affirmative duty to determine whether a
claim is preserved . . . regardless of the positions taken by the
parties.”).
2 A. Applicable Law
¶6 In a civil case, “issues not raised in or decided by a lower court
will not be addressed for the first time on appeal.” Melat, Pressman
& Higbie, L.L.P. v. Hannon Law Firm, L.L.C., 2012 CO 61, ¶ 18.
Though no talismanic language is required to preserve an issue,
People v. Melendez, 102 P.3d 315, 322 (Colo. 2004), “the party
asserting the argument must present ‘the sum and substance of the
argument’ to the district court.” Gebert v. Sears, Roebuck & Co.,
2023 COA 107, ¶ 25 (quoting Madalena v. Zurich Am. Ins. Co., 2023
COA 32, ¶ 50). In other words, to preserve an argument for
appellate review, a party must raise it “to such a degree that the
court has the opportunity to rule on it.” Madalena, ¶ 50 (quoting
Brown v. Am. Standard Ins. Co. of Wis., 2019 COA 11, ¶ 21); see
also In re Marriage of Aragon, 2019 COA 76, ¶ 27.
¶7 When dividing a marital estate, the district court must
disregard marital misconduct. § 14-10-113(1); In re Marriage of
Jorgenson, 143 P.3d 1169, 1173 (Colo. App. 2006). But in extreme
cases, the court may consider “economic fault,” such as a spouse’s
dissipation of marital assets in contemplation of divorce. In re
Marriage of Hunt, 909 P.2d 525, 542 (Colo. 1995); In re Marriage of
3 Jorgenson, 143 P.3d 1169, 1173 (Colo. App. 2006). That is, when
allocating the marital estate, the court may consider one spouse’s
conduct in depleting the estate when that conduct is for an
improper or illegitimate purpose. In re Marriage of Smith, 2024 COA
95, ¶ 75. “[I]f marital assets are dissipated by one of the parties,
they must be valued as of the time when they existed.” In re
Marriage of Finer, 920 P.2d 325, 331 (Colo. App. 1996).
B. Analysis
¶8 On appeal, mother asserts that the district court erred by
using father’s expert’s valuation for the business because it did not
account for father’s “economic fault” of “driving [mother] from the
business.” In her opening brief, mother identifies two places in the
record that she says support her contention that she preserved her
dissipation argument: her testimony and that of her expert witness.
Mother points out that she and her expert both testified that she
did not want to be forced to absorb the decrease in the business’s
value after she stopped working for it. But neither mother nor her
expert testified about husband’s alleged economic fault or
dissipation. Nor did she raise this argument in the joint trial
4 management certificate.1 We conclude that this testimony falls
short of presenting the “sum and substance” of a dissipation claim
— a fact intensive inquiry. Smith, ¶ 76.
¶9 To prove dissipation, mother needed to establish that father
took actions that depleted the value of the marital estate and that
he engaged in those actions for an improper or illegitimate purpose,
such as in contemplation of the dissolution. Id. at ¶ 75. Mother’s
testimony did not draw to the court’s attention her appellate claim
that father depleted the martial estate for an improper or
illegitimate purpose. While she may have complained about his
conduct, she did not make the substantive legal argument required
to alert the court that she was advancing an economic fault theory.
Instead, she only pointed to father’s contemptuous behavior, which
alone is insufficient to preserve her appellate dissipation argument.
¶ 10 Mother argues that the court failed to acknowledge or consider
the reason why mother stopped working at the business. This
illustrates the reason for our jurisprudence on preservation — the
court cannot be expected to make findings on issues of which it did
1 The parties waived closing arguments.
5 not receive sufficient notice. In re Marriage of Eisenhuth, 976 P.2d
896, 901 (Colo. App. 1999) (court is required to consider the
evidence presented to it; it does not act as a surrogate attorney).
¶ 11 We also do not agree, as mother appears to suggest, that the
court’s contempt finding necessarily apprised the court that
dissipation was an issue months later, when it entered permanent
orders. The court’s inquiries for contempt and for economic fault
are different; a contempt finding does not necessarily implicate
economic fault. See Smith, ¶ 80. Though mother proved at the
contempt hearing that father violated the automatic temporary
injunction when he restricted her access to business accounts and
other business resources, proof of dissipation requires more.
Because economic fault can only be considered in extreme cases
and is fact intensive, we cannot say that the earlier contempt
findings are sufficient to preserve mother’s dissipation claim on
appeal.
¶ 12 For these reasons, we conclude mother did not present to the
district court the “sum and substance” of a dissipation argument
that would have given the district court an opportunity to rule on it.
See Gebert, ¶ 25. Therefore, we do not address it.
6 III. Mother’s Marital Debt
¶ 13 Mother also contends that the district court erred when,
following father’s post-trial motion, it adjusted its finding regarding
the amount of her indebtedness to her mother. We are not
persuaded.
A. Applicable Law
¶ 14 According to C.R.C.P. 59(a), a party may file a motion for post-
trial relief, including an amendment of findings or amended
judgment. The primary purpose of a C.R.C.P. 59(a) motion to
amend is to provide the district court with an opportunity to correct
any errors that it may have made. People in Interest of K.L-P., 148
P.3d 402, 403 (Colo. App. 2006). Under C.R.C.P. 59(a), the court
should correct irregularities or errors “that may affect the fairness
of the proceedings and should grant post-trial relief to address
these issues.” Koch v. Dist. Ct., 948 P.2d 4, 8 (Colo. 1997). This is
particularly true in dissolution of marriage cases, given that
permanent orders “have an enormous impact on the lives of the
parties.” Id. at 8-9.
7 B. Analysis
¶ 15 Mother testified at the permanent orders hearing that she had
borrowed $125,000 from her mother during the dissolution
proceedings. In support of this testimony, she submitted an exhibit
of several promissory notes that she said memorialized the loan.
The district court allocated this indebtedness to mother.
¶ 16 Father then moved for post-trial relief pursuant to C.R.C.P. 59
and 60, asserting that the court had given excessive weight to
mother’s testimony regarding her indebtedness to her mother
because the exhibit showed that she only owed her mother
$91,833.10. The court agreed, finding that the exhibit that wife
presented to establish the amount she owed her mother
“contain[ed] several inconsistencies that undermine its credibility.”
It noted that, in her reply to father’s motion, mother attempted to
fill in the gaps in her proof by providing supplemental evidence, but
it declined to reopen the evidentiary portion of the proceedings to
allow her to submit the additional evidence. Based on the exhibit
entered into evidence at the permanent orders hearing, the court
made an amended finding that mother owed her mother
$91,833.10.
8 ¶ 17 On appeal, mother asserts that relief under father’s motion
was limited to that available under C.R.C.P. 59(d), which
enumerates the grounds for granting a new trial and that none of
the listed reasons in that subsection apply. However, father’s
motion did not specify under what subsection he sought relief. And
although he cited C.R.C.P. 59(d), nothing in his motion limited his
request for relief to that subsection alone, as mother suggests on
appeal. Although the court also did not specify under what
subsection it granted the relief, the recalculation of mother’s debts
based on the exhibit admitted at the permanent orders hearing falls
squarely within C.R.C.P. 59(a)(3), which allows a party to move the
court for an “[a]mendment of findings.”
¶ 18 Mother argues that the district court inappropriately
reweighed the evidence when it granted father’s post-trial motion.
But nothing in C.R.C.P. 59 prevents the court from reevaluating its
findings when ruling on a post-trial motion using evidence
presented at a hearing. Indeed, “[d]issolution cases, by their very
nature, often present situations where the need for post-trial relief
to clarify, modify, or to enter additional orders is necessary to
9 achieve fairness given the sometimes conflicting needs and lives of
the parties.” Id. at 9.
¶ 19 The district court reviewed the exhibit that mother claimed
supported her testimony that she borrowed $125,000 from her
mother. The court found that the exhibit did not support that
figure. Instead, the exhibit supported a finding that mother owed
her mother $91,833.10. Because the district court “should
correct . . . errors that may affect the fairness of the proceedings”
via post-trial relief, it did not err when it reduced the amount of
mother’s debt based on the exhibit admitted at the hearing. Id. at
8.
IV. Deviation from Child Support Guidelines
¶ 20 Mother also asserts that the district court erred by declining to
order child support both going forward and retroactively to the filing
date of the petition. We are not persuaded.
¶ 21 There is a rebuttable presumption that the amount of child
support awarded should correspond to the amount specified in the
guidelines. See § 14-10-115(8)(e), C.R.S. 2025. The district court,
however, has discretion to deviate from the guidelines if it
10 determines that their application would be “inequitable, unjust, or
inappropriate.” In re Parental Responsibilities Concerning M.G.C.-G.,
228 P.3d 271, 272 (Colo. App. 2010).
¶ 22 We review for an abuse of discretion the district court’s
decision whether to deviate from the guidelines. See In re Marriage
of Stress, 939 P.2d 500, 502-03 (Colo. App. 1997). Under this
standard, we reverse the district court’s decision only if it was
manifestly arbitrary, unreasonable, or unfair. See Streu v. City of
Colorado Springs, 239 P.3d 1264, 1268 (Colo. 2010). We need not
agree with the district court’s decision; rather, the court’s decision
must not exceed the bounds of rationally available choices. Id.
¶ 23 The district court noted that the recommended amount of
child support to mother under the guidelines was $491.19 per
month.2 However, the court found it would be “inappropriate,
inequitable, or unjust” to require father to pay child support in the
recommended amount. The court said that, although it had
2 The court initially calculated the guideline amount as $635.41 but
revised this calculation after correcting its calculation of the overnight visits awarded to each parent.
11 allocated the marital estate equally, father also had substantial
separate student loan debt and outstanding attorney fees. The
court found that father had “very strained financial resources to
meet his own needs and others.” It then considered the “significant
and substantial disparity in assets of the parties,” including
separate property in the form of mother’s business, Culbertson,
LLC, finding “that’s approximately a half a million-dollar swing
between mother’s assets and father’s debts.”
¶ 24 Mother argues that the district court abused its discretion
because it should not have considered father’s “non-family support
debts,” such as student loans, credit cards, and attorney fees as a
reason to deviate from the guidelines. She asserts that “non-family
support debt” is not one of the enumerated grounds supporting an
order for deviation set forth in section 14-10-115(8)(e). Although
she acknowledges that the statute does not set forth an exclusive
list of reasons deviation would be appropriate, she asserts that any
reason the court deviates must “fall within a similar category” as
the enumerated reasons of section 14-10-115(8)(e) and father’s
personal debt is not of that ilk.
12 ¶ 25 First, we agree that the court inappropriately considered the
amount of attorney fees father owed related to this proceeding as a
factor when it deviated from the statutory child support guidelines.
The proper mechanism to address any inequity arising from father’s
outstanding attorney fee obligation is through section 14-10-119,
C.R.S. 2025, not by lowering his child support obligation.
¶ 26 Nonetheless, the court has the discretion to deviate from the
guidelines when, as here, its reasons are based on “valid
considerations.” In re Marriage of Andersen, 895 P.2d 1161, 1164
(Colo. App. 1995). Mother asserts that father’s outstanding
personal debt (including his premarital student loan debt) is not a
valid consideration because including it in the calculation of child
support is contrary to public policy. In support, she points to
certain lien and collection statutes that prioritize child support over
other debts. That may be so, but we are not convinced that the
court’s consideration of father’s premarital student loan debt and
other personal debt was an abuse of discretion. As mother
acknowledges, section 14-10-115(8)(e) provides a non-exclusive list
of reasons why the court may deviate from the child support
guidelines and expressly provides that the court may deviate “even
13 if a factor enumerated in this section does not exist.” Mother’s
interpretation of subsection (8)(e) would require us to read
restrictions into the statute that are not there. See Springer v. City
& Cnty. of Denver, 13 P.3d 794, 804 (Colo. 2000) (“Where the
legislature could have chosen to restrict the application of a statute,
but chose not to, we do not read additional restrictions into the
statute.”).
¶ 27 Moreover, section 14-10-115(2)(b)(IV) requires the court to
consider “[t]he financial resources and needs of the noncustodial
parent” when determining a child support amount. (Emphasis
added). Thus, the court did not err when it considered father’s
needs, including his outstanding debts. We note that father
incurred his largest single debt — his separate student loan debt —
for education, the unpaid balance of that debt is substantial
(approximately $236,000), and, unlike personal credit card debt,
student loan debt is not dischargeable in bankruptcy. In sum, the
district court considered father’s actual ability to pay child support
in light of his constrained finances and outstanding debt. Given
father’s significant separate debt, we conclude that, to the extent
14 the court considered father’s attorney fees debt in support of its
decision to deviate, that error was harmless.
¶ 28 Mother also asserts that that the court erred by denying her
child support based on her separate ownership of Culbertson, LLC.
Mother acknowledges that a court may consider one parent’s
ownership of a “substantial nonincome producing asset” when
determining whether it should deviate from the guidelines. See §
14-10-115(8)(e). However, she asserts that the court’s “degree” of
deviation was arbitrary because it denied her any child support.
¶ 29 Contrary to mother’s assertions, however, the district court
did not deny child support solely based on mother’s ownership of a
nonincome producing asset. Nor did the court’s order require
mother to deplete this asset to become entitled to child support, as
she suggests. Rather, the court considered mother’s overall
financial resources and noted that it had allocated her half of the
marital estate, she had considerable nonmarital property, and she
had the ability to work and set up a new business, while father had
considerable separate debt.
¶ 30 Mother also asserts that the court made insufficient findings
because it needed to decide how long it would take her to sell
15 Culbertson, LLC’s property and the amount of income she could
generate from such a sale. But such a specific finding was not
required. The court considered that mother held a substantial
nonincome producing asset as one of the factors for deviating from
the child support guidelines, as the statute provides that it could
do. See In re Marriage of Garst, 955 P.2d 1056, 1058 (Colo. App.
1998) (“Factual findings are sufficient if they identify the evidence
which the fact finder deemed persuasive and determinative of the
issues raised.”). Thus, the court’s findings are sufficient for this
court to determine the basis of its ruling. See In re Marriage of
Gibbs, 2019 COA 104, ¶ 9 (a district court must make findings of
fact and conclusions of law sufficiently explicit to give an appellate
court a clear understanding of the basis of its order).
¶ 31 Lastly, we do not agree that the district court failed to consider
that father could pay retroactive child support out of his share of
the marital estate rather than his future earnings. Mother had
specifically testified that she wanted retroactive support to be “paid
out of the proceeds” from sale of the marital home. The court
rejected her request, stating that it had “accounted for what assets
are in the parties’ possession.” We construe this finding as
16 recognizing that the parties’ remaining assets and debts reflected
the costs they each incurred to support the child during the
pendency of the dissolution of marriage proceeding. Thus, the
equal division of the marital estate accounted for their child-related
expenses without the need for retroactive support. And nothing
indicates the court believed that retroactive child support was
otherwise appropriate. Rather, the court generally found that a
child support order would be “inappropriate, inequitable, or unjust”
based on the parties’ relative financial situations.
V. Denial of Maintenance
¶ 32 Mother also asserts that the district court erred by declining to
order father to pay retroactive maintenance. She does not appear
to challenge the court’s decision to deny prospective maintenance at
permanent orders, except to argue that the court must reconsider it
if we reverse the property division award. Given our disposition of
that issue, there is no basis to reconsider prospective maintenance.
¶ 33 We also disagree with mother’s claim that the district court
erred when it denied her request for retroactive maintenance.
Mother argues that the court erred by considering the $5,000 per
month she received from father during the pendency of the
17 dissolution action and following the contempt hearing. We
disagree. While the court may have mischaracterized those
payments as temporary support (the record reflects the payments
were a contempt sanction for keeping mother from the parties’
business), it nevertheless properly considered these funds as
available to mother for her monthly living expenses. See § 14-10-
114(3)(c)(I) (court shall consider all relevant factors including
income from any source). And though mother complains on appeal
that the court erred because it did not consider whether mother
was entitled to retroactive maintenance independent of prospective
maintenance, she did not present any evidence that she was unable
to meet her reasonable needs during the pendency of the
proceeding — for example, evidence of her reasonable needs, her
income from all sources, and the age of the minor child after mother
moved out of state and before entry of permanent orders. See In re
Marriage of Krejci, 2013 COA 6, ¶ 23 (parties must present relevant
evidence to the court, and their failure to do so does not provide
grounds for reversal); Eisenhuth, 973 P.2d at 901.
18 VI. Costs
¶ 34 Because we reject all of mother’s claims, we deny her request
for appellate costs. See C.A.R. 39(a)(2).
VII. Disposition
¶ 35 The judgment is affirmed.
JUDGE LIPINSKY and JUDGE LUM concur.