24CA0193 Marriage of Tumbarello 05-29-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA0193 Jefferson County District Court No. 22DR30940 Honorable Stephen A. Groome, Judge
In re the Marriage of
Joseph Lawrence Tumbarello,
Appellant,
and
Tamara Rose Tumbarello,
Appellee.
JUDGMENT AFFIRMED
Division VI Opinion by JUDGE TOW Yun and Sullivan, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced May 29, 2025
Montgomery, Little, & Soran, P.C., Sibylle M. Clark, Greenwood Village, Colorado, for Appellant
Fuller & Ahern, P.C., Brian M. Close, Parker, Colorado, for Appellee ¶1 Joseph Lawrence Tumbarello (husband) appeals the district
court’s property division order entered in connection with the
dissolution of his marriage to Tamara Rose Tumbarello (wife). We
affirm.
I. Background
¶2 Husband and wife were married in 2009. Husband initiated
the dissolution proceeding a little over fourteen years later.
¶3 During the parties’ marriage, wife’s mother gifted $345,858.87
to wife for the purchase of a liquor store business and the
associated real property. The liquor store business operated as
Small Batch Liquors, LLC (SBL). Both parties worked at SBL.
Tumbarello, LLC (Tumbarello) held title to the real property where
the store was housed (the Tennyson property). Wife was the sole
owner of SBL and Tumbarello.
¶4 A few months before husband filed for dissolution of the
marriage, the parties agreed to sell SBL and Tumbarello. Several
days after the dissolution petition was filed, wife sold SBL for
$100,000 and the Tennyson property for $700,000. The proceeds
from these sales were placed in a trust account, until the parties
1 agreed on how to disburse the funds or a court order disbursed
them.
¶5 After a permanent orders hearing, the district court found that
the proceeds from the sale of the Tennyson property were wife’s
separate property but that the proceeds from the sale of SBL were a
marital asset after a “decade of comingling.” The court awarded
husband $39,298.63 (one half of the SBL proceeds) and wife
$550,180.74 (one half of the SBL proceeds plus all the proceeds
from the sale of the Tennyson property).
II. Tennyson Property
¶6 Husband contends that the district court erred by determining
that the proceeds from the sale of the Tennyson property were wife’s
separate property. We disagree.
A. Standard of Review and Applicable Law
¶7 “The initial step a court must make in evaluating a marital
estate for distribution is to determine whether an asset is marital,
that is, acquired during the marriage and subject to division, or
separate property, which is shielded from distribution.” In re
Marriage of Dale, 87 P.3d 219, 226 (Colo. App. 2003); see also
§ 14-10-113, C.R.S. 2024. “Property acquired by either spouse
2 during the marriage is presumed marital . . . .” Dale, 87 P.3d at
226; § 14-10-113(2)-(3). However, the marital property
presumption can be overcome by evidence establishing that the
property was acquired by gift. § 14-10-113(2)(a). “To qualify as a
gift, a transfer of property must involve a simultaneous intention to
make a gift, delivery of the gift, and acceptance of the gift.” Dale, 87
P.3d at 227. “That determination hinges fundamentally on the
intent and acts of the donor and recipient, which, in turn, are
questions of fact for the trial court to resolve.” Id.
¶8 “Separate property that is so commingled with marital
property that it cannot be traced back to its original separate form
becomes marital property.” In re Marriage of Corak, 2014 COA 147,
¶ 11.
¶9 “The district court’s classification of property as marital or
separate is a legal determination that is based on the court’s factual
findings.” In re Marriage of Smith, 2024 COA 95, ¶ 42. “We defer to
the court’s factual findings unless they are clearly erroneous and
independently review its application of the law.” Id.
3 B. Analysis
¶ 10 As a threshold matter, wife contends that we should not
review this claim because husband failed to identify the portion of
the appellate record that demonstrates he preserved the issue.
Although husband did not comply with C.A.R. 28(a)(7)(A), the issue
is preserved because, as wife acknowledges, it was raised and the
district court allocated the proceeds from the sale of the Tennyson
property and SBL. See In re Marriage of Turilli, 2021 COA 151, ¶ 12
(“An issue is preserved for appeal when it is brought to the court’s
attention and the court ruled on it.”). Thus, notwithstanding
husband’s noncompliant brief, we will address the merits of his
contention.
¶ 11 The Tennyson property was acquired during the parties’
marriage and is therefore presumed to be marital property. See
§ 14-10-113(2)-(3). But the district court found that the funds used
to purchase the Tennyson property were a gift only to wife (not the
marital estate) from her mother. The record supports the court’s
finding.
¶ 12 Wife’s mother testified that she gave the money only to wife.
Wife testified that she was the sole owner of Tumbarello to protect
4 her family’s finances and to maintain control over the building in
case something happened.
¶ 13 Husband’s reliance on cases involving joint ownership is
unavailing because, as noted, the Tennyson property was only ever
titled in Tumbarello’s name. See Corak, ¶ 14 (“Because title to the
property did not change hands, the facts in this case are not
analogous to a case in which one spouse places separate property
in joint ownership during a marriage, which creates a presumption
that the separate property has become marital property.”).
¶ 14 Nor are we persuaded by husband’s contention that the
Tennyson property was so commingled with SBL that it became
marital property. As noted, wife and her mother both testified that
wife was the sole owner of Tumbarello in order to protect her
finances. The proceeds from the sale of the Tennyson property
could also be traced back solely to the Tennyson property, separate
from the proceeds of the sale of SBL. Cf. Corak, ¶ 11. And the
district court found, with record support, that any money wife used
from the sale proceeds of the Tennyson property for family expenses
was marital property, but the remaining amount of those proceeds
was not commingled and was wife’s separate property.
5 ¶ 15 We agree that wife’s use of some of the proceeds from the sale
of the Tennyson property to cover family expenses during the
dissolution proceeding does not convert the remainder of the
proceeds into marital property. Cf. id. at ¶ 16 (concluding that use
of the husband’s separate property as collateral did not turn all or
part of it into marital property).
¶ 16 Husband next contends that neither asset could exist without
the other; therefore, any comingling applicable to SBL must also
apply to the Tennyson property because the assets cannot be
separated. But the Tennyson property is real property that exists
independently of any business inside it, and the sales of SBL and
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24CA0193 Marriage of Tumbarello 05-29-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA0193 Jefferson County District Court No. 22DR30940 Honorable Stephen A. Groome, Judge
In re the Marriage of
Joseph Lawrence Tumbarello,
Appellant,
and
Tamara Rose Tumbarello,
Appellee.
JUDGMENT AFFIRMED
Division VI Opinion by JUDGE TOW Yun and Sullivan, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced May 29, 2025
Montgomery, Little, & Soran, P.C., Sibylle M. Clark, Greenwood Village, Colorado, for Appellant
Fuller & Ahern, P.C., Brian M. Close, Parker, Colorado, for Appellee ¶1 Joseph Lawrence Tumbarello (husband) appeals the district
court’s property division order entered in connection with the
dissolution of his marriage to Tamara Rose Tumbarello (wife). We
affirm.
I. Background
¶2 Husband and wife were married in 2009. Husband initiated
the dissolution proceeding a little over fourteen years later.
¶3 During the parties’ marriage, wife’s mother gifted $345,858.87
to wife for the purchase of a liquor store business and the
associated real property. The liquor store business operated as
Small Batch Liquors, LLC (SBL). Both parties worked at SBL.
Tumbarello, LLC (Tumbarello) held title to the real property where
the store was housed (the Tennyson property). Wife was the sole
owner of SBL and Tumbarello.
¶4 A few months before husband filed for dissolution of the
marriage, the parties agreed to sell SBL and Tumbarello. Several
days after the dissolution petition was filed, wife sold SBL for
$100,000 and the Tennyson property for $700,000. The proceeds
from these sales were placed in a trust account, until the parties
1 agreed on how to disburse the funds or a court order disbursed
them.
¶5 After a permanent orders hearing, the district court found that
the proceeds from the sale of the Tennyson property were wife’s
separate property but that the proceeds from the sale of SBL were a
marital asset after a “decade of comingling.” The court awarded
husband $39,298.63 (one half of the SBL proceeds) and wife
$550,180.74 (one half of the SBL proceeds plus all the proceeds
from the sale of the Tennyson property).
II. Tennyson Property
¶6 Husband contends that the district court erred by determining
that the proceeds from the sale of the Tennyson property were wife’s
separate property. We disagree.
A. Standard of Review and Applicable Law
¶7 “The initial step a court must make in evaluating a marital
estate for distribution is to determine whether an asset is marital,
that is, acquired during the marriage and subject to division, or
separate property, which is shielded from distribution.” In re
Marriage of Dale, 87 P.3d 219, 226 (Colo. App. 2003); see also
§ 14-10-113, C.R.S. 2024. “Property acquired by either spouse
2 during the marriage is presumed marital . . . .” Dale, 87 P.3d at
226; § 14-10-113(2)-(3). However, the marital property
presumption can be overcome by evidence establishing that the
property was acquired by gift. § 14-10-113(2)(a). “To qualify as a
gift, a transfer of property must involve a simultaneous intention to
make a gift, delivery of the gift, and acceptance of the gift.” Dale, 87
P.3d at 227. “That determination hinges fundamentally on the
intent and acts of the donor and recipient, which, in turn, are
questions of fact for the trial court to resolve.” Id.
¶8 “Separate property that is so commingled with marital
property that it cannot be traced back to its original separate form
becomes marital property.” In re Marriage of Corak, 2014 COA 147,
¶ 11.
¶9 “The district court’s classification of property as marital or
separate is a legal determination that is based on the court’s factual
findings.” In re Marriage of Smith, 2024 COA 95, ¶ 42. “We defer to
the court’s factual findings unless they are clearly erroneous and
independently review its application of the law.” Id.
3 B. Analysis
¶ 10 As a threshold matter, wife contends that we should not
review this claim because husband failed to identify the portion of
the appellate record that demonstrates he preserved the issue.
Although husband did not comply with C.A.R. 28(a)(7)(A), the issue
is preserved because, as wife acknowledges, it was raised and the
district court allocated the proceeds from the sale of the Tennyson
property and SBL. See In re Marriage of Turilli, 2021 COA 151, ¶ 12
(“An issue is preserved for appeal when it is brought to the court’s
attention and the court ruled on it.”). Thus, notwithstanding
husband’s noncompliant brief, we will address the merits of his
contention.
¶ 11 The Tennyson property was acquired during the parties’
marriage and is therefore presumed to be marital property. See
§ 14-10-113(2)-(3). But the district court found that the funds used
to purchase the Tennyson property were a gift only to wife (not the
marital estate) from her mother. The record supports the court’s
finding.
¶ 12 Wife’s mother testified that she gave the money only to wife.
Wife testified that she was the sole owner of Tumbarello to protect
4 her family’s finances and to maintain control over the building in
case something happened.
¶ 13 Husband’s reliance on cases involving joint ownership is
unavailing because, as noted, the Tennyson property was only ever
titled in Tumbarello’s name. See Corak, ¶ 14 (“Because title to the
property did not change hands, the facts in this case are not
analogous to a case in which one spouse places separate property
in joint ownership during a marriage, which creates a presumption
that the separate property has become marital property.”).
¶ 14 Nor are we persuaded by husband’s contention that the
Tennyson property was so commingled with SBL that it became
marital property. As noted, wife and her mother both testified that
wife was the sole owner of Tumbarello in order to protect her
finances. The proceeds from the sale of the Tennyson property
could also be traced back solely to the Tennyson property, separate
from the proceeds of the sale of SBL. Cf. Corak, ¶ 11. And the
district court found, with record support, that any money wife used
from the sale proceeds of the Tennyson property for family expenses
was marital property, but the remaining amount of those proceeds
was not commingled and was wife’s separate property.
5 ¶ 15 We agree that wife’s use of some of the proceeds from the sale
of the Tennyson property to cover family expenses during the
dissolution proceeding does not convert the remainder of the
proceeds into marital property. Cf. id. at ¶ 16 (concluding that use
of the husband’s separate property as collateral did not turn all or
part of it into marital property).
¶ 16 Husband next contends that neither asset could exist without
the other; therefore, any comingling applicable to SBL must also
apply to the Tennyson property because the assets cannot be
separated. But the Tennyson property is real property that exists
independently of any business inside it, and the sales of SBL and
the Tennyson property were two distinct, negotiated sales with two
separate payments.
¶ 17 To the extent husband cites contrary evidence that would
support a finding of commingling, it was for the district court — not
us — to resolve any factual conflicts and to determine the credibility
of witnesses, the weight to be given the testimony, and the
inferences to be drawn from the evidence. See In re Estate of
Owens, 2017 COA 53, ¶ 22. We cannot reweigh the court’s factual
determinations when, as here, the record supports them. See id.
6 ¶ 18 Thus, the district court did not err by classifying the Tennyson
property as wife’s separate property.1
III. Stipulation
¶ 19 Finally, husband contends that wife stipulated that the
Tennyson property was marital property. Wife contends that
husband did not preserve this argument because he did not make it
in the district court. We agree with wife.
¶ 20 Before the permanent orders hearing, the parties filed a
stipulation stating that “[t]he parties have not yet determined the
allocation of this marital asset as part of a global settlement,”
referring to the proceeds from the sales of SBL and the Tennyson
property. During closing argument at the hearing, wife’s counsel
explained that the money from the sales had been deposited into an
account and that there was a marital component and a separate
property component. Husband’s counsel did not make any
argument to the contrary, and the court was not asked to rule on
this issue of whether the stipulation meant that wife had conceded
1 We decline to address husband’s argument regarding sworn
financial statements raised for the first time in his reply brief. See IBC Denver II, LLC v. City of Wheat Ridge, 183 P.3d 714, 718 (Colo. App. 2008).
7 that the Tennyson property was marital property. The fact that the
court took judicial notice of the stipulation does not save husband
from his failure to make any argument about its scope and effect
during the hearing.
¶ 21 Therefore, husband did not preserve his argument, and we do
not address it further. See Turilli, ¶ 12; Brown v. Am. Standard Ins.
Co. of Wis., 2019 COA 11, ¶ 21 (“It is axiomatic that in civil cases,
issues not raised in or decided by the trial court generally will not
be addressed for the first time on appeal.”).
IV. Disposition
¶ 22 The judgment is affirmed.
JUDGE YUN and JUDGE SULLIVAN concur.