23CA2204 Marriage of Vendetti 01-02-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA2204 Fremont County District Court No. 23DR30021 Honorable Lynette M. Wenner, Judge
In re the Marriage of
John Michael Vendetti,
Appellee,
and
Michelle Ray Vendetti,
Appellant.
JUDGMENT AFFIRMED IN PART AND REVERSED IN PART, AND CASE REMANDED WITH DIRECTIONS
Division V Opinion by JUDGE FREYRE Grove and Lum, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced January 2, 2025
Knies Helland & McPherson Law, Alexander Masterson, Colorado Springs, Colorado, for Appellee
The Harris Law Firm PLLP, Katherine O. Ellis, Denver, Colorado, for Appellant ¶1 In this dissolution of marriage proceeding involving Michelle
Ray Vendetti (wife) and John Michael Vendetti (husband), wife
appeals from the property division entered as part of the district
court’s permanent orders. We affirm in part, reverse in part, and
remand the case with directions to redetermine the property
division and revisit the denial of spousal maintenance and attorney
fees.
I. Relevant Facts
¶2 The parties married in 2011 and separated in March 2023,
when wife left the marital residence. Shortly after, the parties filed
a petition for dissolution.
¶3 During the marriage, wife worked for the United States Postal
Service (USPS). Husband managed the day-to-day operations of
their jointly owned roofing company (marital business), and wife
handled the bookkeeping. In September 2023, the district court
ordered that Amber Conover assume all bookkeeping
responsibilities.
1 ¶4 Two months later, the district court dissolved the marriage
and issued written permanent orders. The court made the following
findings:
• Although wife was allowed to get an evaluation of the
marital business, none was provided on time.
• It was unclear how wife arrived at a value of $325,000 for
the marital business.
• Ms. Conover testified credibly that the business’s books
had not been adequately maintained for over a year and
that wife appeared to lack the knowledge to manage them
accurately.
• Both husband and Ms. Conover testified credibly about
the marital business’s value. Their testimony established
that the business primarily served as a source of income
for husband and did not hold significant value beyond
that. Thus, based on their assessment, the business’s
value was $71,619, which included seven vehicles.
• Husband reported receiving a monthly salary of $7,000
from the marital business. The evidence, however,
suggested that his income was much lower historically.
2 • Wife’s monthly salary from USPS was $4,328.
• Husband’s subsequent appraisal of the marital residence
provided a more accurate valuation than the joint
expert’s appraisal because it was more recent and
correctly reflected the property’s current condition.
• Wife’s Federal Employees Retirement System (FERS)
pension was worth $14,798 at the hearing, but the
present-day value of the future marital interest was
$177,448.
¶5 Based on those and other findings, the district court divided
the marital estate and ordered husband to pay wife an equalization
of $204,123.
Marital Asset/Debt Marital Wife’s Award Husband’s Value Award Marital Business $71,619 $71,619 Marital Residence $560,000 $560,000 Wife’s FERS Pension $177,448 $177,448 Wife’s Thrift Savings $42,088 $42,088 Plan Husband’s USAA $5,094 $5,094 Mutual Fund Bank Accounts $8,993 $8,222 $771
3 Vehicles $78,653 $45,345 $33,308 Debts ($10,558) ($10,558) SUBTOTAL $933,337 $262,545 $670,792 Equalization Payment $204,123 ($204,123) TOTAL $466,668 $466,669
The court denied spousal maintenance, emphasizing wife’s ability to
meet her financial needs through her current employment and
husband’s inability to pay. Last, the court ordered each party to be
responsible for their attorney fees.
II. Property Division
¶6 Wife contends that the district court erred in its valuation of
the marital business and residence, her pension, and by failing to
allocate four vehicles. We address each argument in turn.
a. Preliminary Issue
¶7 We first consider husband’s argument that wife’s appeal is
barred because she “demanded the effectuation of the property
division and benefitted from the [district] court’s judgment.” He is
mistaken.
4 ¶8 Generally, a party cannot accept the benefits of a judgment
and seek reversal of that judgment on appeal. In re Marriage of
Zander, 2019 COA 149, ¶ 5, aff’d, 2021 CO 12, ¶ 5; In re Marriage
of Jones, 627 P.2d 248, 251 (Colo. 1981). But that rule is relaxed
in dissolution of marriage cases. See Zander, ¶ 5; see also In re
Marriage of Powell, 220 P.3d 952, 954 (Colo. App. 2009).
¶9 By “demanding” the equalization payment, wife did not accept
the benefits of the district court’s property division. Nor was this
action inconsistent with the basis of her appeal. Thus, she is not
deprived of her right to seek review of the property division. See
Powell, 220 P.3d at 954; see also In re Marriage of Antuna, 8 P.3d
589, 592 (Colo. App. 2000) (the husband’s acceptance of a court-
ordered payment did not constitute a waiver of his right to appeal);
In re Marriage of Lee, 781 P.2d 102, 105 (Colo. App. 1989) (the
wife’s acceptance of maintenance payments did not waive her right
to appeal because public policy prohibits requiring a former spouse
to choose between the necessities of life and the right to appeal).
5 b. Standard of Review and Governing Law
¶ 10 The district court has considerable discretion to achieve an
equitable property division, and we will uphold its decision absent
an abuse of that discretion. In re Marriage of Medeiros, 2023 COA
42M, ¶ 28. The court abuses its discretion when its decision is
manifestly arbitrary, unreasonable, or unfair, or when it misapplies
the law. Id.
¶ 11 We will not disturb the district court’s valuation findings if
they are reasonable in light of the competent evidence as a whole.
In re Marriage of Krejci, 2013 COA 6, ¶ 23. The court may select the
valuation of one spouse over that of the other spouse or make its
own valuation, and the court’s determination will be upheld on
appeal unless clearly erroneous, meaning no evidence in the record
supports it. See id.; see also Van Gundy v. Van Gundy, 2012 COA
194, ¶ 12.
c. The Marital Business
¶ 12 We reject wife’s first argument that the district court abused
its discretion by valuing the marital business at $71,619 based on
husband’s testimony.
6 ¶ 13 On October 6, 2023, wife moved for an evaluation of the
marital business and asked that the cost be split evenly. She
indicated that the evaluation would be completed within ten days.
The court ordered that if she wanted the evaluation, she would have
to pay for it.
¶ 14 Twenty days later, the district court held the permanent
orders hearing. Wife did not provide a business evaluation. She
explained that husband failed to timely give her a “management
report,” which she alleged was essential for finishing the evaluation.
She did not, however, request a continuance. At the close of
evidence, the court directed the parties to submit proposed
permanent orders.
¶ 15 Wife appended to her proposed permanent orders a November
9, 2023, evaluation that assessed the marital business’s worth at
$1,382,000. The district court granted husband’s motion to strike
the evaluation because the new evidence was offered too late. On
November 27, 2023, the court issued its written permanent orders,
determining that the business had a value of $71,619.
¶ 16 Wife asserts that upon receiving the business evaluation, the
district court should have sua sponte granted a new trial under
7 C.R.C.P. 59(c) or reopened the evidence. We disagree for two
reasons.
¶ 17 First, C.R.C.P. 59 is inapplicable as the district court had yet
to issue a final judgment when wife filed her proposed permanent
orders. See C.R.C.P. 59(a) (authorizing relief from final or otherwise
appealable judgments as provided in C.R.C.P. 58); see also C.R.C.P.
58 (“The term ‘judgment’ includes an appealable decree or order as
set forth in C.R.C.P. 54(a)); C.R.C.P. 54(a) (“‘Judgment’ as used in
these rules includes a decree and order to or from which an appeal
lies.”); Przekurat v. Torres, 2016 COA 177, ¶ 53 (“[A] C.R.C.P. 59
motion may only be filed to challenge a final order or judgment, not
a non-final or interlocutory order or judgment.”), aff’d, 2018 CO 69,
¶ 53.
¶ 18 Second, wife never requested to reopen the evidence. In her
proposed permanent orders, she simply stated that the business
was worth $1,382,000 and appended the business evaluation. Nor
did she file a response to husband’s motion to strike.1 On appeal,
1 Husband filed his motion to strike on November 13, 2023, and the
court denied it fourteen days later. Although wife was not given the full twenty-one days to respond to husband’s motion to strike
8 wife fails to cite any case law, and we can find none, requiring a
district court, absent a motion by a party, to reopen the evidence
before the entry of a dissolution decree and permanent orders. In
fact, our review of the relevant case law shows just the opposite.
See People v. Hall, 2021 CO 71M, ¶¶ 16, 24 (a district court is
permitted to reopen a case and allow both parties to present
additional argument, either following a party’s motion or sua
sponte, as long as “there is no prejudice to either party and,
accordingly, justice is served”) (citation omitted); see also Medeiros,
¶¶ 16, 22 (the district court has the legal authority to rule on a
party’s request to reopen a case before the entry of a dissolution
decree and permanent orders based on alleged changed economic
circumstances, but in doing so, must consider certain factors); In re
Marriage of McSoud, 131 P.3d 1208, 1222 (Colo. App. 2006) (district
court may in its discretion permit a party who has rested to reopen
a case to present further evidence). Because wife did not request to
reopen the evidence and there is no requirement that a court, on its
before the district court issued its ruling, she does not raise this as an issue. See C.R.C.P. 121, § 1-15(1)(b)).
9 own initiative, must do so, we cannot say that the court’s decision
was manifestly arbitrary, unreasonable, or unfair. See Medeiros,
¶ 28; see also In re Marriage of Eisenhuth, 976 P.2d 896, 901 (Colo.
App. 1999) (the district court considers the evidence presented to it;
it does not act as a surrogate attorney for the parties).
¶ 19 While wife insists that the district court should have
continued the permanent orders hearing to allow her to complete
the business evaluation given husband’s admitted failure to timely
provide an allegedly essential document, we decline to address this
undeveloped argument. See Zander, ¶ 27 (an appellate court may
decline to consider an argument not supported by legal authority or
any meaningful legal analysis); see also Vallagio at Inverness
Residential Condo. Ass’n v. Metro. Homes, Inc., 2017 CO 69, ¶ 40
(an appellate court will “decline to assume the mantle” when parties
offer no supporting arguments for their claims).
¶ 20 Given our disposition, we need not resolve husband’s
assertion that wife failed to preserve this issue. See In re Marriage
of Mack, 2022 CO 17, ¶ 12 (because a contention was unavailing,
the appellate court need not decide whether it was preserved);
accord In re Marriage of Collins, 2023 COA 116M, ¶ 48.
10 d. Marital Residence
¶ 21 Wife challenges the district court’s finding that the marital
residence had a value of $560,000. We discern no error.
¶ 22 The record reflects that a joint appraiser assessed the marital
residence at $600,000 as of June 2023. The joint appraiser
indicated that the residence was well-maintained and in good
condition. Later, husband obtained another appraisal. His
appraiser opined that the residence was worth $560,000 as of
August 2023, observing “some deferred maintenance” on the
property.
¶ 23 Wife asked the district court to accept the higher value of
$600,000, claiming that husband did not adequately maintain the
marital residence. She described the residence as being in
“gorgeous” condition when she vacated the property. Husband, on
the other hand, asserted that the decrease in value was not due to
his actions or inactions. He testified that the second appraisal
corrected certain inaccuracies from the initial appraisal and was
conducted closer in time to the current condition of the residence.
¶ 24 Ultimately, the district court sided with husband and valued
the residence at $560,000. The court then allocated it to him.
11 ¶ 25 Because there is evidence in the record to support the district
court’s finding that the residence was worth $560,000, we will not
disturb it. See Krejci, ¶ 23; see also Van Gundy, ¶ 12.
¶ 26 Still, wife argues that the district court did not address her
“concerns” that husband depleted or dissipated the marital estate
by “failing to care” for the marital residence during the proceedings.
But we may presume that the court considered all the evidence
before it, even if it did not make express findings regarding that
evidence. See Collins, ¶ 21.
e. Wife’s FERS Pension
¶ 27 Next, wife maintains that the district court erred by allowing
husband, a lay witness, to render an expert opinion on the present-
day value of her FERS pension, and by adopting that valuation. We
agree.
¶ 28 A district court has wide latitude in accepting or refusing
evidence, and its rulings may only be overturned if there is a clear
abuse of discretion. City of Aurora v. Colo. State Eng’r, 105 P.3d
595, 610 (Colo. 2005); see In re Marriage of Humphries, 2024 COA
12 92M, ¶ 26 (a district court has broad discretion to determine the
admissibility of expert testimony).
¶ 29 In determining whether testimony is lay testimony under CRE
701 or expert testimony under CRE 702, the district court must
examine the basis for the opinion. Grand Junction Peace Officers’
Ass’n v. City of Grand Junction, 2024 COA 89, ¶ 77 (quoting
Venalonzo v. People, 2017 CO 9, ¶ 23).
¶ 30 Under CRE 701, lay witness testimony is limited to opinions or
inferences that are (1) rationally based on the witness’s perception;
(2) helpful to a clear understanding of the witness’s testimony or the
determination of a fact in issue; and (3) not based on scientific,
technical, or other specialized knowledge within the scope of CRE
702. Thus, if the testimony relies on the witness’s personal
experiences or knowledge that an ordinary person could be
expected to have, then it constitutes lay testimony.
¶ 31 By contrast, CRE 702 governs expert witness testimony, which
is admissible if the witness is qualified by knowledge, skill,
experience, training, or education, and if the testimony will help the
trier of fact understand the evidence or determine a fact in issue.
13 Expert testimony “requires experience, skills, or knowledge that the
ordinary person would not have.” Venalonzo, ¶ 22.
¶ 32 Here, neither party called an expert to opine on the value of
wife’s FERS pension.
¶ 33 Wife testified that the pension’s present-day value should be
limited to $14,798.36 — the amount of contributions she had made
up to the time of the hearing.
¶ 34 Husband, on the other hand, offered Exhibit 38 showing the
present-day value of wife’s FERS pension to be $177,448. This
figure was derived using a web-based calculator with the following
inputs: $14,798.36 in annual payments, beginning in seventeen
years and eight months, to be paid over twenty-three years, with an
annual “investment interest rate” of 2.34%, and monthly payments
commencing at the start of each month. Wife objected to the
exhibit, asserting that a qualified actuary was required. See In re
Marriage of Zappanti, 80 P.3d 889, 892 (Colo. App. 2003) (the
valuation of future retirement payments is often the subject of
expert testimony, usually provided by an actuary; see also In re
Marriage of Riley-Cunningham, 7 P.3d 992, 994 (Colo. App. 1999)
(“Under the net present value method, the [district] court, guided by
14 actuarial data, values the future benefit . . . .”). The district court
admitted Exhibit 38.
¶ 35 Husband explained that once wife turns fifty-seven (in
seventeen years and eight months), her annual retirement income
would include the marital interest of $14,798.36. He anticipated
that if she lives to the age of eighty, she would receive $14,798.36
every year for twenty-three years totaling $340,362. Then, by
discounting wife’s future payments using the “[thirty-]year average
inflation rate” of 2.34%, he arrived at a present-day value of
¶ 36 The district court, citing Exhibit 38, accepted husband’s
valuation.
¶ 37 We acknowledge the challenges the district court faced in
valuing the present-day value of wife’s FERS pension given the
evidence, particularly in the absence of an expert witness. We
nevertheless conclude that the court abused its discretion by
admitting and relying on husband’s valuation, which was based on
mere guesswork rather than competent evidence. See City of
Aurora, 105 P.3d at 610; see also Eisenhuth, 976 P.2d at 901 (the
15 district court must rely on competent evidence to ensure an
equitable property division).
¶ 38 Husband’s evidence exceeded the scope of permissible lay
testimony. His valuation was a projection based on several
assumptions such as wife’s life expectancy, the investment return
rate, and the inflation rate. His calculation necessitated specialized
knowledge, skill, experience, training, or education which he did not
have. See CRE 702; see also Venalonzo, ¶ 22. And there was no
evidence to establish that multiplying the current marital interest
by the number of years of expected payments and then applying
either the investment return rate or the inflation rate would yield an
accurate present-day value.
¶ 39 We therefore reverse this portion of the permanent orders and
remand the case for the district court to reconsider the
characterization and value of wife’s FERS pension and redetermine
an equitable property division. See In re Marriage of Corak, 2014
COA 147, ¶ 31; see also Krejci, ¶ 18. On remand, the court may
take additional evidence concerning the value of the pension as of
the date of the decree. See In re Marriage of Mohrlang, 85 P.3d 561,
564 (Colo. App. 2003); see also § 14-10-113(5), C.R.S. 2024
16 (property must be valued at the time of the decree or of the hearing
on disposition, whichever is earlier).
f. Vehicles
¶ 40 Wife asserts that the district court omitted a 1984 Toyota
truck, purportedly worth $28,000. We agree.
¶ 41 In general, the district court must allocate all marital assets
and debts. See In re Marriage of Page, 70 P.3d 579, 582 (Colo. App.
2003). And it must make sufficient findings concerning its
allocation so that an appellate court can understand the basis of its
ruling. See In re Marriage of Gibbs, 2019 COA 104, ¶ 9; cf. Powell,
220 P.3d at 959 (stating that a court’s property division findings
must “allow the reviewing court to determine that the [court’s]
decision is supported by competent evidence”). “If property is
omitted from permanent orders without explanation, the property
division cannot stand.” In re Marriage of Rodrick, 176 P.3d 806,
815 (Colo. App. 2007).
¶ 42 Husband testified that he owned a 1984 Toyota truck, having
recently invested $9,400 for new axles and spent up to $14,000 on
it during the marriage. While he did not include the truck in his
17 proposed permanent orders, wife did, valuing it at $28,000 and
asking that husband keep it. The court did not allocate the truck in
the permanent orders. We instruct the court on remand to
characterize, value, and allocate the truck.
¶ 43 We reject wife’s related assertion that the following vehicles
were omitted from the property division: (1) a 2005 Wells Cargo
trailer, purportedly worth $2,500; (2) a 1998 flatbed trailer worth
$2,000; and (3) a 2007 CAT Skid and attachments, purportedly
worth $25,000. The court found that those vehicles were part of
the marital business; valued them at $2,000, $2,000, and $10,000,
respectively; included them in the marital business’s overall
valuation; and awarded the marital business to husband.
III. Maintenance and Attorney Fees
¶ 44 Because we have reversed the district court’s property
division, we necessarily reverse its order regarding maintenance
and section 14-10-119, C.R.S. 2024, attorney fees. See In re
Marriage of de Koning, 2016 CO 2, ¶ 26 (when a district court is
required to revisit a property division, it must also reevaluate
maintenance and attorney fees in light of the updated property
18 division, because the issues are interdependent). The court must
reconsider maintenance and attorney fees after it reconsiders its
property division. See Medeiros, ¶ 62. In doing so, it must base its
decision on the parties’ financial circumstances at the time of the
remand. See In re Marriage of Stradtmann, 2021 COA 145, ¶ 35
(because maintenance is based on the parties’ financial
circumstances at the time the order is entered, the court should
consider the parties’ current circumstances on remand).
IV. Appellate Attorney Fees
¶ 45 Husband argues that this appeal lacks substantial
justification and seeks an award of his appellate attorney fees
under C.A.R. 39.1 and section 13-17-102, C.R.S. 2024. Given our
disposition, we deny his request.
V. Disposition
¶ 46 That part of the judgment regarding the values of the marital
business and residence is affirmed. The portions of the judgment
valuing wife’s FERS pension, omitting the 1984 Toyota truck, and
denying maintenance as well as attorney fees are reversed, and the
case is remanded to the district court for further proceedings
19 consistent with this opinion. The portions of the judgment not
challenged on appeal remain undisturbed.
JUDGE GROVE and JUDGE LUM concur.