Marriage of Simonson

Opinion

23CA0831 Marriage of Simonson 07-11-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA0831

Weld County District Court No. 20DR30492

Honorable W. Troy Hause, Judge

In re the Marriage of

Andrew Simonson,

Appellant,

and

Bonnie Simonson,

Appellee.

JUDGMENT AFFIRMED

Division A

Opinion by CHIEF JUDGE ROMÁN

Bernard* and Richman*, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced July 11, 2024

The Harris Law Firm PLLP, Katherine O. Ellis, Denver, Colorado, for Appellant

Divorce Matters, LLC, Justin J. Oliver, Greenwood Village, 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. 2023.

1

¶ 1 Andrew Simonson (husband) appeals the district court’s

judgment that dissolved his marriage with Bonnie Simonson (wife).

We affirm.

I. Permanent Orders

¶ 2 The parties married in 1998. After wife initiated the

dissolution proceeding, the district court appointed Lauren Long to

value AJ’s Backflow Testing, LLC, a business owned and operated

by husband. Long opined that, as of December 2020, the value of

the business was $1,221,000.

¶ 3 In 2023, the court dissolved the marriage and entered

permanent orders. In dividing the marital estate, the court

accepted Long’s opinion on the value of the business and allocated

it to husband. The court divided the remaining marital assets and

debts, which resulted in each party receiving a relatively equal

share of their over $2 million estate.

¶ 4 Moving to maintenance, the court found that wife was earning

$2,306 per month, and it denied husband’s claim that she was

voluntarily underemployed as a part-time in-home healthcare

provider. The court found that husband’s total gross income was

$14,015 per month, which included his salary, his share of the

2

business’ income, and additional business funds husband used to

pay personal expenses. The court awarded wife maintenance in the

amount of $3,167 per month.

II. AJ’s Backflow Testing’s Value

¶ 5 Husband contends that the district court erred by accepting

Long’s business value. We discern no error.

A. Preservation

¶ 6 As an initial matter, we reject wife’s assertion that husband

did not preserve this issue for appellate review. Husband objected

to Long’s valuation in the joint trial management certificate, he

contested her opinion at the permanent orders hearing, and the

court ultimately ruled on the issue. See In re Marriage of Martin,

2021 COA 101, ¶ 13 (recognizing that all that is required to

preserve an issue for appeal is that the issue be brought to the

court’s attention, so it has an opportunity to rule on the matter).

B. Applicable Law

¶ 7 A court has great latitude to equitably divide the marital estate

based on the facts and circumstances of each case, and we will not

disturb its decision absent a showing that it acted in a manifestly

3

arbitrary, unreasonable, or unfair manner, or it misapplied the law.

In re Marriage of Medeiros, 2023 COA 42M, ¶ 28.

¶ 8 The court must determine the approximate current value of

marital property. In re Marriage of Wright, 2020 COA 11, ¶ 4; see

also § 14-10-113(5), C.R.S. 2023 (directing the court to value

property as of the date of the permanent orders hearing when the

hearing occurs before the entry of the dissolution decree). The

court may select one party’s proposed value over that of the other

party, or it may determine its own reasonable value. Medeiros,

¶ 41. We will not disturb the court’s value determination if it is

reasonable in light of the evidence as a whole. Id.

¶ 9 It is the parties’ duty to present the court with sufficient data

so that the court can make a reasonable property valuation. In re

Marriage of Krejci, 2013 COA 6, ¶ 23. Any failure by the parties to

do so does not provide them with grounds for reversal. Id.; In re

Marriage of Zappanti, 80 P.3d 889, 892-93 (Colo. App. 2003).

C. Discussion

¶ 10 At the hearing, Long testified that following her July 2021

appointment, she “got stuck on the document request portion” for

her valuation. She explained that in October 2021, she received the

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business’ 2018 through 2020 tax returns, but despite repeated

requests to husband for additional financial information over the

next seven months, she received nothing else from him. She

further testified that in May 2022, she informed the parties that in

the absence of any other information, she would prepare her

valuation based solely on the business’ tax returns. She also

informed them that they could provide additional information, but

nothing more was produced.

¶ 11 Long then opined that from the financial information husband

disclosed, $1,221,000 was her “best estimate” for the business’

value. She testified that if she had received more information from

husband, she believed “it would have resulted in a higher value,”

and that she suspected husband did not fully disclose all the

business’ income. She said that her valuation was “the lowest

possible number because it’s based on the only information that

[husband] would let [her] see.”

¶ 12 The court found Long “very credible” and said that her

valuation was “the most credible evidence available to the [c]ourt

regarding the value of the business.” The court also agreed that, in

light of the evidence, the business, if anything, may be worth more

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than $1,221,000. The court then accepted Long’s value for AJ’s

Backflow Testing.

¶ 13 Husband argues that the court was wrong to value the

business based on Long’s outdated and incomplete valuation. He

highlights that even Long acknowledged that she did not adhere to

her normal procedures when valuing the business. But the court

found, with record support, that husband failed to fully disclose

financial information to Long and that he created the problems he

now complains of in her valuation. And husband did not present

an alternate valuation for the business. See Krejci, ¶ 23; Zappanti,

80 P.3d at 892-893. The court thus made a reasonable value

determination based on the evidence. See Medeiros, ¶ 41.

¶ 14 Husband also argues that Long’s methodology was flawed, she

did not consider recent legislative changes that may impact the

business, and she conducted the valuation in the middle of the

COVID-19 pandemic. But “[t]he weight to be given to valuation

techniques used by experts is for the [district] court to decide.” In

re Marriage of Nevarez, 170 P.3d 808, 812 (Colo. App. 2007).

Therefore, it was for the court to determine the weight, probative

force, and sufficiency of Long’s valuation, as well as the inferences

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and conclusions to be drawn therefrom in determining the value of

husband’s business. See In re Marriage of Thorburn, 2022 COA 80,

¶ 49. We are not at liberty to re-evaluate the conflicting evidence

and set aside the court’s determination when, as here, it was

reasonable in light of the limited evidence presented. See Medeiros,

¶ 41; In re Marriage of Evans, 2021 COA 141, ¶ 45.

¶ 15 The district court therefore did not err by finding that the

value of AJ’s Backflow Testing was $1,221,000.

III. Maintenance

¶ 16 Husband next challenges the district court’s maintenance

award, arguing that the court’s income findings were not supported

by the record and that the court did not make the necessary

findings in support of its award. We reject his contentions.

A. Standard of Review

¶ 17 We may not disturb a court’s maintenance determination

unless it is shown to be manifestly arbitrary, unfair, or

unreasonable, or based on a misapplication of the law. See

Medeiros, ¶¶ 28, 58.

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B. Wife’s Income

¶ 18 Husband contends that the district court erred by finding that

wife was not voluntarily underemployed and declining to impute an

income commensurate with full-time employment. We disagree.

¶ 19 When determining maintenance, the court must determine

each party’s income, which generally means their actual gross

income. § 14-10-114(3)(a)(I)(A), (8)(a)(II), C.R.S. 2023. But if the

court finds that a party is voluntarily underemployed, the court

determines maintenance based on that party’s potential income.

§ 14-10-114(8)(c)(IV). A party is voluntarily underemployed when

they shirk their support obligations by unreasonably forgoing

employment. See In re Marriage of Collins, 2023 COA 116M, ¶ 29;

see also In re Marriage of Garrett, 2018 COA 154, ¶ 10 (“Imputation

of income is an exception . . . and should be applied with caution.”).

¶ 20 The court has broad discretion in determining income, and we

generally will not disturb the court’s finding when it is supported by

the record. Collins, ¶ 30; see also Garrett, ¶ 9 (recognizing that we

review de novo the court’s application of the law to the facts).

¶ 21 Wife testified that, during the marriage, she primarily raised

their children and worked part-time as a healthcare provider from

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her home. She also said that she had not worked full-time since

early in the marriage. Wife then testified that she was presently

employed as an in-home healthcare provider, worked about

twenty-nine hours per week, and earned $18.35 per hour. She

described having specific clients that gave her a guaranteed number

of hours per week, which she said was hard to find in her

profession. Wife said that she would be willing to work more hours,

but her employer had not offered any additional shifts to her at a

time when she was not already caring for her current clients. And

she testified that her employer had not offered her the opportunity

to work full time.

¶ 22 The court credited wife’s testimony and found that she was not

voluntarily underemployed. It explained that although she was

physically capable of working a full-time schedule, she had not

worked forty hours per week in over twenty-one years, which

dampened her prospects of getting a full-time job. It further

explained that she had secured a job in her area of expertise and

her current employer did not have a full-time schedule available for

her. The court found that wife’s job reasonably suited her

experience and capabilities and that no evidence showed that she

9

had the opportunity to work full time. It determined that based on

her earnings for twenty-nine hours per week, her gross income was

$2,306 per month.

¶ 23 Given the record support for the court’s determination, we

may not disturb it. See Collins, ¶ 30. Although husband suggests

that other evidence at the hearing conflicted with the court’s

finding, it was for the district court, not us, to resolve those

conflicts. See In re Marriage of Tooker, 2019 COA 83, ¶ 31; see also

Evans, ¶ 45.

¶ 24 The court therefore did not err by finding that wife was not

voluntarily underemployed.

C. Husband’s Income

¶ 25 We also reject husband’s contention that the district court

improperly included additional business funds he used for his

personal expenses when it found that his gross income was

$14,015 per month.

¶ 26 Gross income for purposes of maintenance means income

from any source. § 14-10-114(8)(c)(I). For a self-employed party,

gross income equals gross receipts minus ordinary and necessary

expenses. § 14-10-114(8)(c)(III)(A). Gross income also includes a

10

party’s salary and “[a]ny moneys drawn by a self-employed

individual for personal use that are deducted as a business

expense.” § 14-10-114(8)(c)(I)(A), (O), (W).

¶ 27 The court noted that husband claimed his income was $8,386

per month, which represented an average of his annual salary and

share of the business’ income from 2019 through 2021. (Husband

reported annual earnings of $138,215 in 2019, $106,587 in 2020,

and $57,126 in 2021.) However, the court determined that this

amount did not adequately represent his actual gross income.

¶ 28 First, while the court agreed that averaging husband’s salary

and business income was appropriate, it found that husband’s

2021 earnings were not a true representation of his income. It

explained that the COVID-19 pandemic may have caused a minor

dip in the business’ earnings and that the business would likely

recover given its relatively stable nature. The court also hesitated

to accept husband’s reported income during the pendency of the

dissolution proceeding, “particularly considering the conduct of

[h]usband throughout [the] case.” The court averaged husband’s

annual earnings in 2019 and 2020 and found that he had an

annual gross income of $122,401 or $10,200 per month.

11

¶ 29 Then, the court found that both parties described that

husband frequently used business funds to pay personal expenses,

which he would later deduct as business expenses. The court

noted that in 2020, AJ’s Backflow Testing reported over $261,000

in business deductions, and it found that at least some of these

deductions were for personal expenses that must be included in

husband’s gross income. The court acknowledged that, given the

limited evidence on the business’ finances, it was “impossible to

know exactly how much” of that amount husband spent on his

personal expenses, but it said that it could create a clear enough

picture to determine a reasonable amount from the available

evidence.

¶ 30 In doing so, the court looked at husband’s sworn financial

statements. The court noted that in his first sworn financial

statement husband reported a gross income of $14,015 per month.

The court also noted that the parties testified that husband used

business funds to pay for groceries, utilities, gas, and phone bills at

a minimum. It then reviewed husband’s most recent sworn

financial statement and found that he represented spending $3,587

per month on these expenses. The court found that husband also

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testified he paid about $300 per month for his phone. From this,

the court determined that husband admitted to spending roughly

$3,887 per month from the business on personal expenses. And it

noted that evidence showed that he used business funds to pay

even more personal expenses.

¶ 31 The court concluded that when considering the money

husband acknowledged using on personal expenses (about $3,800

per month) and his average salary and business income ($10,200

per month), it was reasonable to use the gross income he reported

on his initial sworn financial statement and determined that his

income was $14,015 per month.

¶ 32 The record supports the court’s decision to average husband’s

salary and business income as well as its finding that he used

business funds for personal expenses. See § 14-10-114(8)(c)(I)(A),

(O), (W); see also In re Marriage of Salby, 126 P.3d 291, 299 (Colo.

App. 2005) (noting that the court may use an average of a party’s

past income). We therefore will not disturb those determinations.

See Collins, ¶ 30.

¶ 33 Still, husband argues that the court improperly determined

the amount of the additional business funds used on personal

13

expenses. He notes that his phone expenses were double counted,

certain expenses overlapped with valid business expenses, and

some expenses were, in fact, paid with personal funds. Even if we

assume that his representations are correct, he fails to establish

how he was prejudiced. See C.A.R. 35(c) (“The appellate court may

disregard any error or defect not affecting the substantial rights of

the parties.”); see also In re Parental Responsibilities Concerning

E.E.L-T., 2024 COA 12, ¶ 30 (“An error affects a substantial right

only if it substantially influenced the outcome of the case or

impaired the basic fairness of the trial.”). The court found that

while it was undisputed that husband used business funds for

personal use, it had little evidence from which to determine the

amount of those funds. See Krejci, ¶ 23; Zappanti, 80 P.3d at

892-893. The court then considered the income husband initially

reported ($14,015 per month) and compared that to his most recent

reported expenses to create a framework for identifying a

reasonable amount of personal expenses he paid with business

funds. See Salby, 126 P.3d at 296 (recognizing that a court may

rely on a party’s sworn financial statement). The court referenced

those expenses to determine whether his previously reported gross

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income of $14,015 per month was reasonable; it did not directly

include the amount of those expenses in determining his gross

income. Moreover, the court identified other personal expenses

paid with business funds, which it did not quantify when accepting

husband’s previously reported income. The court thus determined

a reasonable amount for husband’s gross income based on the

evidence presented. See Collins, ¶ 30.

¶ 34 Husband also argues that, in determining his income, the

court incorrectly said that it did not admit his 2017 through 2019

personal wage and tax statements and the 2021 business tax

return, when the court admitted those exhibits at the hearing.

Even if the court incorrectly referenced the non-admission of these

exhibits, the court next said that it was “not convinced that

consideration of these documents [was] necessary to evaluate

[h]usband’s earnings” in light of the other admitted evidence, which

included husband’s reported earnings for 2019 through 2021, the

business’ 2020 tax return, and husband’s sworn financial

statements. The court therefore found these exhibits irrelevant to

its income determination. And husband directs us to nothing in

those additional exhibits that could have affected the court’s income

15

finding. Nor does he establish that any error affected his

substantial rights. Thus, any misstatement by the court appears

harmless. See C.A.R. 35(c).

¶ 35 Husband also says that “[a]ny reliance by the [district] court

on Ms. Long’s testimony to calculate [h]usband’s income was

improper because Ms. Long did not include an income valuation as

part of her report.” But he does nothing to develop this argument.

We therefore will not consider it. See In re Parental Responsibilities

Concerning S.Z.S., 2022 COA 105, ¶ 29.

¶ 36 The court therefore did not err by finding that husband’s gross

income was $14,015 per month.

D. Sufficient Findings

¶ 37 Husband contends that the district court failed to make all

necessary statutory findings when awarding maintenance. We

disagree.

¶ 38 When considering maintenance, the court must first make

findings on the parties’ incomes, the distribution of marital

property, the parties’ financial resources, the reasonable financial

need established during the marriage, and the taxability of any

maintenance awarded. § 14-10-114(3)(a)(I). Then, the court must

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consider an amount and term of maintenance, if any, that is fair

and equitable. § 14-10-114(3)(a)(II). To do so, the court considers

advisory maintenance guidelines and a nonexclusive list of

statutory factors. § 14-10-114(3)(a)(II)(A)-(B), (3)(b), (3)(c). The court

must also determine if the requesting party lacks sufficient property

to provide for their reasonable needs and is unable to support

themself through appropriate employment. § 14-10-114(3)(a)(II)(C),

(3)(d).

¶ 39 Husband does not dispute that the court made the required

statutory findings on the parties’ incomes, the distribution of

marital property, the parties’ financial resources, and the taxability

of maintenance. § 14-10-114(3)(a)(I)(A)-(C), (E). Nor does he

challenge the court’s finding that wife met the statutory

requirement for maintenance. § 14-10-114(3)(a)(II)(C), (3)(d).

¶ 40 Thus, as to the statutorily required findings, husband only

appears to argue that the court failed to address the parties’

reasonable financial need as established during the marriage. See

§ 14-10-114(3)(a)(I)(D). But the court found that during the

marriage, “the parties lived comfortably, holding many large assets

and making investments for their future, all with little to no debt.”

17

It also recognized that husband reported earning over $100,000 per

year during the marriage and that wife provided additional income.

And it found that wife’s current income ($2,306 per month) would

not sufficiently provide for her reasonable needs as established

during the marriage. Thus, a review of the court’s ruling

demonstrates that it made sufficient findings on this issue.

¶ 41 Husband also suggests that the court did not make findings

on all of the section 14-10-114(3)(c) factors when it determined the

amount of maintenance. While the court did not address all of the

statutory factors, it was not required to do so when, as here, it

sufficiently explained the basis of its decision and made findings on

the factors it found relevant. See Wright, ¶ 20.

¶ 42 Specifically, the court found that

• husband was the primary breadwinner and earned an

income of over $14,000 per month, see

§ 14-10-114(3)(c)(II), (V), (VI);

• husband grew his business during the marriage, received

the business in the property division, and will continue to

earn a relatively consistent income from it, see

§ 14-10-114(3)(c)(II), (IV), (X);

18

• husband paid wife $3,000 per month in temporary

maintenance during the proceeding, see

§ 14-10-114(3)(c)(VIII);

• wife earned $2,306 per month, sacrificed her ability to

grow her earnings in favor of supporting husband, and

needed financial support and assistance to get back on

her feet, see § 14-10-114(3)(c)(I), (V), (X); and

• wife reported expenses ($3,300 per month) that were

“fairly bare bones,” and even after alleviating her rental

expenses, wife could not meet her reasonable needs as

established during the nearly twenty-five-year-marriage

with her income or the property allocated to her, see

§ 14-10-114(3)(c)(I), (III), (VII).

¶ 43 The court then determined that the advisory guideline amount

of maintenance ($3,167 per month) was fair and equitable.

§ 14-10-114(3)(b)(I)(C), (3)(e).

¶ 44 The court thus made the required findings and considered the

statutory factors when it awarded wife maintenance. The record

supports its determinations, and we therefore will not disturb its

maintenance award.

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IV. Appellate Attorney Fees and Costs

¶ 45 Wife asks for an award of attorney fees and costs on appeal,

arguing that husband’s appeal is frivolous and vexatious. See

C.A.R. 38(b); see also § 13-17-102(4), C.R.S. 2023. Even though

unsuccessful, we do not agree that husband’s appeal warrants such

an award. See Glover v. Serratoga Falls LLC, 2021 CO 77, ¶ 70

(noting that we award such attorney fees only in clear and

unequivocal cases of egregious conduct where no rational argument

is presented). We therefore deny wife’s request.

V. Disposition

¶ 46 The judgment is affirmed.

JUDGE BERNARD and JUDGE RICHMAN concur.