25CA0458 Marriage of Wardell 03-26-2026
COLORADO COURT OF APPEALS
Court of Appeals No. 25CA0458 Douglas County District Court No. 23DR591 Honorable Andrew Baum, Judge
In re the Marriage of
Jaclyn Schell Wardell,
Appellant,
and
Bryce Nielsen Wardell,
Appellee.
JUDGMENT AFFIRMED IN PART AND REVERSED IN PART, AND CASE REMANDED WITH DIRECTIONS
Division VII Opinion by JUDGE JOHNSON Pawar and Gomez, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced March 26, 2026
Schaffner Law LLC, Joseph Maher, Greenwood Village, Colorado, for Appellant
Kumpf Charsley & Hansen, LLC, Robert E. Wells, Englewood, Colorado, for Appellee ¶1 In this dissolution of marriage case between Jaclyn Schell
Wardell (wife) and Bryce Nielsen Wardell (husband), wife appeals
the portion of the district court’s permanent orders relating to the
division of property and the court’s denial of her requests for
maintenance and child support. We conclude that the district court
did not err in its division of property, but we reverse the court’s
ruling with respect to its denial of maintenance and child support.
Therefore, we affirm in part, reverse in part, and remand the case to
the district court to conduct further proceedings consistent with
this opinion.
I. Background
¶2 Husband and wife divorced in 2024 after a nearly thirteen-
year marriage. During the marriage, the parties had three minor
children. The parties agreed to share equal parenting time and
decision-making responsibility for the children.
¶3 After a contested hearing, the district court entered written
permanent orders concerning, as relevant here, the division of the
parties’ marital property, spousal maintenance, and child support.
The court did not award wife maintenance or child support. Wife
1 subsequently filed a motion for post-trial relief under C.R.C.P. 59,
which the court denied.
¶4 Wife now appeals, contending that the district court erred by
(1) failing to divide all the marital property; (2) ordering a sale of the
marital home but not accounting for the costs of a sale in dividing
the marital property; (3) denying her maintenance; and (4) awarding
her no child support by deviating downward from the statutory
guidelines.
II. Division of Marital Property
¶5 Wife claims the district court reversibly erred in its division of
the marital property by (1) failing to value and equitably divide all
the marital property as required under section 14-10-113, C.R.S.
2025; and (2) ordering the sale of the marital home without
accounting for the costs of a sale. We disagree with the first
contention and conclude the second was harmless error.
A. Additional Facts
¶6 Husband and wife held a number of assets and debts at the
time of their divorce, which neither disputed were marital property.
The district court divided the assets and debts, reflected in its
property division spreadsheet. As relevant here, the parties had a
2 marital home, and husband started a business during the marriage,
Omnis Pest Control Inc., which also included Wardell Holdings and
Omnis Montana. Husband requested that the court order the sale
of the business or award wife a portion of the holding company. He
opposed a lump sum award or monthly payments from the
operating account.
¶7 The court, adopting husband’s expert’s opinion, valued the
business at $1,621,279. It also estimated the net equity of the
marital home to be $366,274.
¶8 The court awarded the business interests — including the
associated assets and debts — to husband, and it ordered the
marital home sold with the net proceeds awarded to wife. To
effectuate an equitable division of the assets, the court ordered
husband to pay wife $5,000 a month in “equalization payments” for
125.5 months as “the only practical way to allocate to [w]ife her
share of [the business interests].” The court’s division of property of
these and other assets resulted in husband receiving about $14,000
more than wife in the division of property. The court’s allocation of
property is as follows:
3 Marital Value Husband Wife
Real Estate $366,274 $366,274
Business $1,621,279 $993,779 $627,500
Vehicles $56,093 $15,219.50 $40,873.50
Bank Accounts $26,544 $10,245 $16,299
Investments $9,874 $9,874
Retirement $39,927 $31,651 $8,276 Accounts Personal $9,500 $6,500 $3,000 Property Debts ($11,903) ($1,396) ($10,507)
TOTAL $2,117,588 $1,065,872.50 $1,051,715.50
¶9 Wife claims, and husband agrees, that the district court failed
to account for two categories of additional marital property:
(1) uncashed checks in husband’s possession in the total amount of
$10,872.84; and (2) an additional 401(k) account under husband’s
name in the amount of $18,323.44 — together totaling $29,196.28.
The total value of the marital property, not including these
unaccounted-for assets, was $2,117,588.
B. Standard of Review and Applicable Law
¶ 10 A district court has “discretion to determine an equitable
division of the marital assets and debts,” and we will not disturb its
4 decision “absent a showing that the court abused that discretion.”
In re Marriage of Capparelli, 2024 COA 103M, ¶ 7. A court abuses
its discretion when “it acts in a manifestly arbitrary, unfair, or
unreasonable manner, or when it misapplies the law.” In re
Marriage of Herold, 2021 COA 16, ¶ 5. We defer to a court’s factual
findings “when supported by the record.” Capparelli, ¶ 8. The “key
to an equitable distribution is fairness, not mathematical
precision.” In re Marriage of Hunt, 909 P.2d 525, 537-38 (Colo.
1995).
C. Analysis
¶ 11 Wife contends that the district court reversibly erred because
in its division of the marital property it (1) failed to account for the
two assets identified above, resulting in a windfall for husband;
(2) failed to account for other assets belonging to the businesses; (3)
allowed husband to produce late the value of Omnis Montana,
which prevented wife from disputing his valuation; and (4) ordered
a sale of the marital home, which wife would receive the net equity
from, without factoring in the costs of a sale. She claims that these
errors led to an inequitable division of the marital property. We
disagree.
5 ¶ 12 First, although the district court did not account for
husband’s uncashed checks and his additional 401(k) account, this
error was harmless, as it involved a de minimis amount.
¶ 13 If a district court’s error in dividing the marital property
“affects only a small percentage of the overall marital estate, such
an error may be deemed to have been harmless and thus does not
require reversal.” In re Marriage of Balanson, 25 P.3d 28, 36 (Colo.
2001). If the court’s errors, when viewed in the aggregate, affect a
large percentage of the marital estate, remand is required. Id.
¶ 14 As mentioned, the total value of the marital estate, excluding
the uncashed checks and additional 401(k) account, was over $2.1
million. The combined value of unaccounted-for assets, the checks
and the additional 401(k) account, was $29,196.28. Taken as a
percentage of the overall marital property, only 1.36% of the total
estate was unaccounted for. Thus, the court’s error in failing to
consider the uncashed checks and the 401(k) account was
harmless. See id. at 38 (suggesting that an error affecting less than
two percent of the overall marital estate would be harmless).
¶ 15 Second, wife claims that Omnis Montana, trucks owned by
Omnis Montana, and the bank account for Wardell Holdings were
6 excluded from the valuation of the marital property, which led to an
undervaluation of the businesses and a windfall to husband. But
this claim is not supported by the record — the district court
allocated “Omnis, including Omnis Montana, Wardell Holdings, and
all assets held by these three companies,” to husband. (Emphasis
added.) The court acknowledged that wife argued that the value of
the businesses had increased because of the trucks purchased and
additions to Omni’s checking account after the appraisal. And it
noted that six trucks were “all used solely by Omnis,” so the court
found them “included in . . . the value of Omnis and reallocated to
husband as part of Omnis. The [c]ourt will exclude their values
from its [marital balance sheet].” Thus, the value of Omnis
Montana, the Wardell Holdings bank account, and the alleged
additional trucks were contemplated by the court in its valuation of
the businesses. The total net value of the businesses, the district
court found, was $1,621,279. This finding is supported by the
record, so we defer to it. See Capparelli, ¶ 8.
¶ 16 Related to the business, wife also argues that husband’s
untimely disclosure of his interests in Omnis Montana deprived her
of an opportunity to value the asset or to have it included in the
7 property division valuation. But wife proceeded to final orders
despite husband’s late disclosure of that entity. She has not
directed us to, nor can we find, any place in the record where she
raised this objection below, allowing the court an opportunity to
rule on it. Thus, because she is raising it for the first time on
appeal, we do not address it. See Marcellot v. Exempla, Inc., 2012
COA 200, ¶ 11 (we generally will not address for the first time on
appeal issues not raised in or decided by the district court).
¶ 17 Finally, husband claims wife failed to preserve her argument
that the district court should have considered the costs of a sale of
the marital home when assigning the value of the net equity wife
would receive. Wife points to the parties’ joint trial management
certificate, where she requested that the residence be sold, that she
receive the first $300,000 of a sale, and that any remaining
proceeds or deficits be shared equally between the parties. And she
also points to her closing argument at the hearing, where she noted
that the residence was not tied to Omnis and could be sold with
wife receiving “the sales proceeds to secure necessary funds to
accomplish an equitable division of property,” and that “[c]osts of
8 sale, including potential capital gains taxes[,] are applicable only if
the asset is actually being sold.”1
¶ 18 We conclude that these references are sufficient to preserve a
claim that the district court erred by not factoring in the costs of a
sale of the marital home. But we nonetheless conclude that any
error was harmless. Wife estimated the net equity of the home after
closing costs would be $300,000, meaning that $66,274 should
have been discounted by the district court. Adding this to the error
with the uncashed checks and retirement account totals about
4.3% of the overall marital estate. We acknowledge that this is a
higher percentage than 1.36, and it becomes a much closer case of
whether this is harmless error. But we cannot say that the error
rises to the level that other divisions of this court have found to be
not harmless. See, e.g., Balanson, 25 P.3d at 36 (concluding that
the district court’s combined errors in the division of property were
not harmless when they affected over twenty percent of the overall
marital estate); In re Marriage of Zappanti, 80 P.3d 889, 893 (Colo.
1 Of note, wife’s reference to costs of sale was only to rebut
husband’s claim that he was entitled to a deduction in the value of Omnis due to capital gains taxes.
9 App. 2003) (holding that an error in failing to set aside $400,000 of
$600,000 pension as separate property was not harmless).
¶ 19 Because the district court’s division of the marital property
was equitable, we affirm that portion of the permanent orders.
III. Spousal Maintenance
¶ 20 Wife argues the district court erred by denying her
maintenance under section 14-10-114, C.R.S. 2025. We agree.
¶ 21 The district court determined that husband’s gross income
was $16,350 per month, which included $8,667 as a salary from
the business and $7,683 of shareholder income, which husband
testified he typically reinvested in the business. The court
determined that wife’s gross monthly income from being a dental
assistant on a full-time basis was $3,987. Before considering the
monthly equalization payments, the district court found wife’s
monthly shortfall was $3,182. The court then noted that, as a
result of the division of the marital property, wife would receive a
car worth $33,000; the net equity from the sale of the marital
home — over $360,000 — and over $600,000 in value from Omnis
(paid out in $5,000 monthly equalization payments for 125.5
10 months). As a result, the court determined that the “additional
$5,000 installment allows [w]ife to meet this shortfall and realize a
monthly excess of $1,818.”
¶ 22 The court found that the monthly equalization payments
“provide[] a means to support [wife] financially until she returns to
college as planned and is able to earn significantly more income.” It
further found that wife could choose to use the monthly
equalization payments to pay for expenses, invest, or save for the
future and could use the net equity from the sale of the marital
home to reduce her monthly mortgage payment. Husband, the
court found, still had his salary to live on, while the $5,000
installment would come from his additional shareholder income
from the business interests. The court also found that, while
husband received “over $16,000 of [gross monthly income], half of
this is shareholder income which he will have to use to pay the
installment payment and reinvest to continue to grow Omnis.” The
court concluded, “Practically speaking, this leaves him with his
gross monthly salary of $8,667.” After consideration of its findings,
the district court declined to award wife spousal maintenance.
11 B. Standard of Review and Applicable Law
¶ 23 We review a maintenance order for an abuse of discretion. In
re Marriage of Tooker, 2019 COA 83, ¶ 12. We defer to the district
court’s factual findings about maintenance “unless they are clearly
erroneous.” Capparelli, ¶ 30.
¶ 24 When considering whether to award maintenance, a district
court must consider thirteen enumerated factors in addition to
“[a]ny other factor that the court deems relevant.” § 14-10-
114(3)(c)(I–XIII). As relevant here, those factors include: (1) the
financial resources of the recipient spouse, including the actual or
potential income from separate or marital property or any other
source and the ability of the recipient spouse to meet her needs
independently; (2) the financial resources of the payor spouse,
including the actual or potential income from separate or marital
property or any other source and the ability of the payor spouse to
meet his reasonable needs while paying maintenance; (3) the
lifestyle during the marriage; (4) the distribution of marital property,
including whether additional marital property may be awarded to
reduce or alleviate the need for maintenance; (5) both parties’
income; and (6) the duration of the marriage. Id.
12 ¶ 25 After considering the statutory factors, a court “shall award
maintenance only if it finds that the spouse seeking maintenance
lacks sufficient property, including marital property apportioned to
. . . her, to provide for . . . her reasonable needs and is unable to
support . . . herself through appropriate employment.” § 14-10-
114(3)(d). The district court has discretion to determine the award
of maintenance that is “fair and equitable to both parties based
upon the totality of the circumstances.” § 14-10-114(3)(e).
¶ 26 Wife contends that by denying her maintenance, the district
effectively required her to deplete her monthly $5,000 equalization
payments from the division of property to meet her and the
children’s expenses. We agree.
¶ 27 A dependent spouse is not required to deplete her share of the
marital property in order to qualify for maintenance, so receipt of
marital property in the form of payments “cannot be viewed as a
substitute for maintenance.” In re Marriage of Bartolo, 971 P.2d
699, 702 (Colo. App. 1998); accord In re Marriage of Nordahl, 834
P.2d 838, 842 (Colo. App. 1992).
13 ¶ 28 Wife requested $3,698 monthly in maintenance. The district
court looked at husband’s monthly income of $16,350, of which
husband had to pay wife $5,000 every month for her portion of the
business, as well as reinvesting in the business, reducing his gross
monthly income to around $8,667, “from which it would be difficult
to pay an additional $3,698 in maintenance as [w]ife requests.” But
the $5,000 monthly payments to wife were not to be substituted for
living expenses; rather, those were equalization payments to ensure
she received her share of the business, which no one disputes is
marital property. Indeed, husband wanted to retain possession of
the marital home so that the children had stability. The court could
not square that request with husband also retaining the business,
and, therefore, the court ordered the sale of the home and monthly
payments to wife for her share of the business — which had to be
her share of the division of marital property, not income, in order
for the division of property to be equitable.
¶ 29 Wife relies on Bartolo, 971 P.2d at 702; Nordahl, 834 P.2d at
842; and In re Marriage of Eller, 552 P.2d 30, 31 (Colo. App. 1976)
for the well-settled proposition that she cannot be required to
deplete her share of the marital property for living expenses in lieu
14 of maintenance. We agree that while the monthly installments
might provide wife with a liquid asset, this does not mean that she
must deplete her division of the marital property for living expenses.
¶ 30 The court’s reasoning demonstrates that, even though it said
the $5,000 was not income, it treated it as such. The court noted
that, according to its maintenance worksheet calculations, wife
should receive $4,918 a month. It then stated that wife could use
the $5,000 equalization payment to “pay part of her personal
expenses [or] pay for a mortgage on a home,” or she could “invest it
and earn returns, save it for the short term, or save it for
retirement.” In other words, husband’s income of $8,667 was about
equal to wife’s income of $3,987 once the $5,000 payment was
included.
¶ 31 But as was true in Eller, the property awarded to wife “was not
so substantial as to provide significant income for her to live on.”
552 P.2d at 31. Indeed, the court’s own findings support that it
considered the $5,000 monthly equalization payments as part of
wife’s income by acknowledging that these payments provide “a
means [for wife] to support herself” in lieu of maintenance. In
15 contrast, it does not appear that husband would have needed to
deplete his marital property to meet his expenses.
¶ 32 Notwithstanding this case law — and the fact that the district
court’s denial of maintenance requires wife to deplete or at least use
her division of marital property — husband contends the cases
relied on by wife are inapplicable. Specifically, he claims that the
court did not require her to deplete her division of marital property
because it made findings that she had adequate funds to live on
with her monthly equalization payments and receipt of over one
million dollars’ worth of assets in marital property. But this misses
the point. Without the equalization payment of $627,500 — broken
into monthly payments of $5,000 — for wife’s share of the business,
wife would not have received an equitable division of property;
therefore, the court’s ruling necessarily requires her to deplete her
marital property to support herself.
¶ 33 Husband also contends that the district court took into
consideration that he has historically reinvested profits to capitalize
the business, and if he is required to pay maintenance, less capital
will go into the business, putting at risk growth and current
liabilities and obligations. But we view this argument to be part of
16 the valuation of the business asset itself, and husband has not
pointed to any evidence in which he specifically delineates how less
capital might adversely affect the business. Even so, such evidence
might be relevant to determine an appropriate amount of
maintenance to award to wife — not whether she is entitled to it.
¶ 34 In sum, the district court incorrectly treated the monthly
equalization payments to wife as income or a portion of her monthly
income, rather than as marital property, and required her to deplete
this property to meet her and the children’s expenses in lieu of
maintenance. Because the court abused its discretion, we reverse
this portion of the permanent orders and remand for the court to
reconsider wife’s request for maintenance.
¶ 35 As part of this reconsideration, and because on remand the
court must take into account the parties’ present circumstances,
the court may consider the net equity that wife actually received in
the home, given her request that the court factor closing costs into
its division of property. Even though we found this error to be
harmless in the context of the division of property, with respect to
maintenance, the court may consider the position wife has been left
in following the sale of the home.
17 ¶ 36 The court may also consider the payments wife receives from
Aveanna — the entity that both parties receive money from to
support the care of one of their children with a disability — as part
of her income for purposes of maintenance because the
maintenance statute only precludes consideration of income from
additional jobs of the obligor, not the obligee. See § 14-10-
114(8)(c)(I) (for purposes of maintenance, gross income does not
include “[i]ncome from additional jobs that result in the
employment of the obligor more than forty hours per week or more
than what would otherwise be considered to be full-time
employment” (emphasis added)).
IV. Child Support
¶ 37 Wife contends the district court erred by deviating downward
from the statutory child support amount to the point of denying her
child support. Because we have already concluded that the district
court erred by denying wife spousal maintenance, on remand the
court should reconsider — in light of the maintenance amount —
whether an application of the guideline child support amount
remains inequitable, unjust, or inappropriate.
18 A. Standard of Review and Applicable Law
¶ 38 We review child support orders for an abuse of discretion. In
re Marriage of Garrett, 2018 COA 154, ¶ 8.
¶ 39 Colorado’s child support guidelines include a “[s]chedule of
basic child support obligations” with explicit award schedules for
families with one to six children and a combined monthly income of
up to $30,000. In re Marriage of Boettcher, 2019 CO 81, ¶ 13
(quoting § 14-10-115(7)(b), C.R.S. 2025). There is a rebuttable
presumption that a child support award should correspond to the
amount outlined in the guidelines. See § 14-10-115(8)(e); Boettcher,
¶ 14. A court may deviate from the schedule it if determines that
the presumptive amount would be “inequitable, unjust, or
inappropriate.” § 14-10-115(8)(e).
¶ 40 Reasons to deviate from the guideline child support amount
include, but are not limited to: (1) instances where one of the
parents spends substantially more time with the children than is
reflected by a straight calculation of overnights; (2) the
extraordinary medical expenses incurred for treatment of either
parent or a current spouse; (3) extraordinary costs associated with
parenting time; (4) the gross disparity in income between the
19 parents; (5) the ownership by a parent of a substantial nonincome
producing asset; (6) consistent overtime not considered gross
income under the statute; or (7) income from employment that is in
addition to a full-time job or that results in the employment of the
obligor more than forty hours per week or more than what would
otherwise be considered to be full-time employment. Id. The
existence of one of the enumerated factors “does not require the
court to deviate from the guidelines” but may be a factor in the
decision to deviate. Id. And the district court “may deviate from the
guidelines” even if one of the enumerated factors does not exist. Id.
¶ 41 Factors a district court is to consider when determining the
appropriate amount of child support to award include, but are not
limited to: (1) the financial resources of the children; (2) the
financial resources of the custodial parent; (3) the standard of living
the children would have enjoyed had the marriage not been
dissolved; (4) the physical and emotional conditions of the children
and their educational needs; and (5) the financial resources and
needs of the noncustodial parent. § 14-10-115(2)(b)(I)-(V).
20 B. Analysis
¶ 42 As previously noted, the parties stipulated to equal parenting
time. The district court found that based on the parties’ incomes as
discussed above, awarding the guideline amount of $1,485 per
month in child support to wife was inequitable, unjust, or
inappropriate. It therefore deviated downward, ordering no child
support.
¶ 43 Because a change in spousal maintenance may affect the
district court’s consideration of child support, we decline to address
this issue on the merits. Cf. People in Interest of M.H-K, 2018 COA
178, ¶ 83 (declining to address an issue because, even if the issue
was presented on remand, the circumstances “[would] have
evolved”). Indeed, as the district court noted, had it awarded wife
maintenance, the guideline amount of child support of $50 would
be owed to wife from husband, which the court found to be de
minimis. But the court may not consider the income either of the
parties receive from Aveanna related to caring for their child with a
disability. See § 14-10-115(5)(a)(II)(c) (for purposes of child support,
gross income does not include “[i]ncome from additional jobs that
result in the employment of more than forty hours per week or more
21 than what would otherwise be considered to be full-time
employment”). Thus, after reconsidering wife’s request for
maintenance, the court should also reconsider its child support
ruling.
V. Attorney Fees and Costs
¶ 44 Husband requests appellate attorney fees and costs under
section 13-17-102, C.R.S. 2025. Because we have deemed wife’s
appeal to be meritorious, we deny his request. See Rademacher v.
Becker, 2015 COA 133, ¶ 30 (denying the appellee’s request for
attorney fees as a sanction for filing a frivolous appeal because the
appellant prevailed on appeal).
VI. Conclusion
¶ 45 We affirm the portion of the permanent orders concerning the
court’s division of property but reverse the court’s denial of spousal
maintenance and child support. We remand this case to the
district court to conduct further proceedings consistent with this
opinion.
JUDGE PAWAR and JUDGE GOMEZ concur.