24CA0179 Marriage of Watters 03-20-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA0179 Arapahoe County District Court No. 20DR31696 Honorable Michelle Jones, Judge
In re the Marriage of
Joshua Watters,
Appellant,
and
Jeanise Watters,
Appellee.
APPEAL DISMISSED IN PART, JUDGMENT AFFIRMED IN PART AND REVERSED IN PART, AND CASE REMANDED WITH DIRECTIONS
Division VII Opinion by JUDGE LIPINSKY Johnson and Moultrie, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced March 20, 2025
The Law Office of C. Robert Biondino Jr., P.C., C. Robert Biondino Jr., Highlands Ranch, Colorado, for Appellant
The W Law, Carolyn C. Witkus, Danielle N. Moylett, Denver, Colorado, for Appellee ¶1 Joshua Watters (husband) appeals the judgment addressing
his and Jeanise Watters (wife)’s marital agreement (the agreement),
property division, spousal maintenance, and child support. He also
appeals the district court’s post-decree order denying his C.R.C.P.
70 motion. We affirm the judgment in part, reverse it in part, and
remand the case to the court for further proceedings. We dismiss
as moot husband’s appeal of the court’s denial of his C.R.C.P. 70
motion.
I. Relevant Facts
¶2 The parties married in 1999 and have three children. The
parties entered into the agreement sixteen years later. Although
husband consulted with an attorney regarding the agreement, he
discontinued the representation before he signed the agreement.
Nonetheless, by signing the agreement, he represented that he
“believe[d], based on his discussions with [his former attorney], that
[the] [a]greement [was] fair, equitable, and reasonable.”
¶3 In the agreement, the parties categorized certain parcels of
real property as separate or marital. In recognition of wife
sacrificing her career and focusing on raising the children, the
1 parties stipulated that, upon dissolution of the marriage, she would
be entitled to spousal maintenance and health insurance for life.
¶4 In October 2020, husband filed a petition to dissolve the
marriage.
¶5 At a status conference, the court told the parties to brief the
issue of the agreement’s enforceability and said that it would issue
a ruling without a hearing. Wife filed a motion to enforce the
property division aspects of the agreement (the motion to enforce).
In his response, husband argued that the agreement was
unenforceable, alleging duress, unconscionability, and
abandonment. The court granted the motion to enforce.
¶6 In April 2022, the court entered a decree dissolving the
marriage. In accordance with the agreement, the court found that
wife and husband had separate property worth $1,442,549 and
$317,626, respectively, and then equally divided the marital estate,
with each party receiving approximately $1.1 million in assets. The
court also ordered the parties to file their tax returns for the years
2019 through 2021 as married filing separately. And it directed
husband to pay $11,000 in monthly spousal maintenance for
thirteen years and $231 in monthly child support for their
2 remaining minor child until the child’s emancipation. In addition,
the court required husband to pay for wife’s health insurance for
life per the agreement and to establish a $25,000 escrow account to
cover wife’s “not yet incurred medical debt to the Mayo Clinic in the
estimated amount of $39,500.”
¶7 The court later denied the parties’ respective C.R.C.P. 59
motions, in which they sought, among other relief, amendments to
the court’s property division.
¶8 On September 27, 2023, the court summarily denied
husband’s forthwith C.R.C.P. 70 motion, in which he sought an
order compelling wife to sign releases for Small Business
Administration (SBA) records related to certain COVID-relief loans.
Husband alleged that he had only recently learned about the loans,
even though his name appeared on the loan applications.
II. The Agreement
A. Duress
¶9 Husband contends that the court should have invalidated the
agreement because he signed it under duress. We disagree.
¶ 10 The Uniform Premarital and Marital Agreements Act (UPMAA),
sections 14-2-301 to -313, C.R.S. 2024, governs. § 14-2-303(1),
3 C.R.S. 2024; In re Marriage of Zander, 2019 COA 149, ¶ 11, 486
P.3d 352, 355, aff’d, 2021 CO 12, 480 P.3d 676.
¶ 11 As pertinent here, the UPMAA defines a “[m]arital agreement”
as “an agreement between spouses who intend to remain married
which affirms, modifies, or waives a marital right or obligation
during the marriage or at . . . marital dissolution.” § 14-2-302(2),
C.R.S. 2024; see In re Marriage of Blaine, 2021 CO 13, ¶ 19, 480
P.3d 691, 695.
¶ 12 A marital agreement is unenforceable if a party against whom
enforcement is sought proves that the party entered into the
agreement involuntarily or under duress. § 14-2-309(1)(a), C.R.S.
2024. Accordingly, husband bore the burden of proving, by a
preponderance of the evidence, that he signed the agreement under
duress. § 14-2-309(1); see § 13-25-127(1), C.R.S. 2024 (providing
that the burden of proof in civil cases is a preponderance of the
evidence).
¶ 13 Duress exists if a party’s manifestation of assent to a contract
is induced by an improper threat that leaves no reasonable
alternative. See Vail/Arrowhead, Inc. v. Dist. Ct., 954 P.2d 608, 612
(Colo. 1998).
4 To establish duress as ground[s] for the avoidance of a contract, conveyance, or other act, it is not alone sufficient to show the exertion of pressure by threats or even by physical compulsion, but it must also clearly appear that the force or threats employed actually subjugated the mind and will of the person against whom they were directed, and were thus the sole and efficient cause of the action which he took.
Premier Farm Credit, PCA v. W-Cattle, LLC, 155 P.3d 504, 521 (Colo.
App. 2006) (quoting Wiesen v. Short, 604 P.2d 1191, 1192 (Colo.
App. 1979)).
¶ 14 The existence of duress is ordinarily a question of fact to be
determined according to the circumstances of the case. Id. We will
not disturb a district court’s factual determinations unless they are
clearly erroneous, meaning the record does not support them. In re
Marriage of Young, 2021 COA 96, ¶ 8, 497 P.3d 524, 528.
¶ 15 Husband alleged that
• wife subjected him to years of manipulation, demeaning
comments, and “bull[ying],” creating an environment in
which he felt pressured to comply with her demands even
if he disagreed with them;
5 • wife threatened to withhold sex unless he signed the
agreement;
• wife manipulated him by saying she did not trust him
and that signing the agreement was necessary to rebuild
that trust;
• wife issued an ultimatum, saying their marriage would
end and he would have to “fight to see” the children if he
refused to sign the agreement; and
• wife coerced him into signing the agreement even though
she knew of his devout Catholic faith and his belief that
divorce was “one of the largest sins.”
¶ 16 The court, however, concluded that husband was not coerced
into signing the agreement. The court found that husband
consulted with an attorney before signing the agreement and
actively participated in drafting it, even proposing revisions eight
days before signing it. And the parties said in the agreement that
husband had it reviewed by an attorney and believed it to be fair,
equitable, and reasonable. The court further found there was no
evidence that husband was under the influence of alcohol or drugs
when he signed it.
6 ¶ 17 From those findings, the court determined that husband failed
to prove duress. We see no clear error because the record supports
the court’s findings and determination of lack of duress. See
§ 14-2-309(1); see also Premier Farm Credit, 155 P.3d at 521.
B. Unconscionability
¶ 18 Husband maintains that the property division provisions of
the agreement are invalid because the court did not review them for
unconscionability. He is mistaken.
¶ 19 Under the UPMAA, no review for unconscionability is required
for property division pursuant to a marital agreement, so long as
full disclosure and the absence of fraud or overreaching are
established. See § 14-2-309; see also In re Marriage of Ikeler, 161
P.3d 663, 669 n.8 (Colo. 2007) (Under the UPMAA’s predecessor,
“marital agreements as to property division are neither void as
against public policy generally, nor are they subject to review for
unconscionability.”); Newman v. Newman, 653 P.2d 728, 733-34
(Colo. 1982) (“Once the stringent tests of full disclosure and lack of
fraud or overreaching are met, the parties are free to agree to any
arrangement for division of their property . . . .”).
7 C. Abandonment
¶ 20 Husband argues that the court erred by enforcing the
agreement because the parties’ subsequent actions demonstrated
they had mutually abandoned the agreement’s property division
terms. We disagree.
¶ 21 Under the agreement, wife’s separate property, as relevant
here, included
• 19961 East Tufts Drive (Tufts), which the parties jointly
owned and was encumbered by a debt in husband’s
name;
• 17316 East Rice Circle; and
• 6071 South Tempe Way (Tempe), which the parties
jointly owned and was encumbered by a debt in
husband’s name.
¶ 22 Husband’s separate property, as relevant here, included 4636
South Dillon Court (Dillon), which the parties held as tenants in
common through Watters Management, LLC.
¶ 23 The agreement designated as marital property:
• the primary marital residence at 19594 East Pinewood
Drive (Pinewood), which the parties owned as tenants in
8 common, with husband solely responsible for the
mortgage during the marriage; and
• 4261 South Fairplay Circle (Fairplay), which the parties
held as tenants in common through Watters
Management, LLC, with husband solely responsible for
the mortgage during the marriage.
¶ 24 Following the execution of the agreement, husband reported
that the parties “transferred” Tufts, Tempe, Pinewood, and Fairplay
to Watters Tufts Properties, LLC, Watters Tempe Properties, LLC,
Watters Pinewood Properties, LLC, and Watters Fairplay, LLC,
respectively. The parties had jointly formed those entities.
¶ 25 On appeal, husband argues that
• those LLC transfers were inconsistent with the
agreement’s terms;
• even though the agreement said that wife claimed Tufts
and Tempe as her separate property, she subsequently
allowed husband to convey a 50% ownership interest in
those properties to Watters Tufts Properties, LLC, and
Watters Tempe Properties, LLC, respectively; and
9 • contrary to the agreement’s stipulation that husband
would be responsible for paying the mortgages on Tufts
and Pinewood, wife paid them with rental income she
earned from those properties.
¶ 26 Like other types of contracts, the parties may waive the
enforcement of certain provisions of a marital agreement. See In re
Estate of Gadash, 2017 COA 54, ¶ 40, 413 P.3d 272, 277 (“Marriage
agreements should be construed and treated in the same manner
as other contracts, and, in construing them, we must give effect to
the parties’ intent.”); In re Marriage of Fiffe, 140 P.3d 160, 163
(Colo. App. 2005) (holding that premarital agreements should be
construed in the same manner as other contracts); see also
Magliocco v. Olson, 762 P.2d 681, 685 (Colo. App. 1987) (noting that
a party may waive provisions of a contract by engaging in conduct
that is inconsistent with the enforcement of those provisions); In re
Marriage of Zimmerman, 714 P.2d 927, 929 (Colo. App. 1986)
(holding that parties abandoned specific provisions of their
premarital agreement by entering into a joint business venture and
thereby sharing the business’s liabilities in accordance with their
respective stock interests, and not as specified in the agreement).
10 ¶ 27 Parties may also agree to abandon or rescind a marital
agreement in its entirety. See In re Marriage of Young, 682 P.2d
1233, 1236 (Colo. App. 1984) (premarital agreement was
abandoned and rescinded by the parties’ mutual consent, as
evidenced by their pooling and holding their property in joint
tenancy).
¶ 28 A marital agreement may be abandoned or rescinded by
mutual consent, including by consent implied from the parties’
actions or conduct. See id. (citation omitted). But such actions or
conduct “must be positive, unequivocal, and inconsistent with
intent to be further bound by the contract.” Id. (citation omitted).
¶ 29 Whether parties have abandoned or rescinded a marital
agreement through their actions or conduct is a factual question for
the court to decide. Id.
¶ 30 While we agree with husband that the court did not directly
address the abandonment issue, we conclude that the issue is
properly before us. This is so because the court said it had (1)
reviewed husband’s response to wife’s motion to enforce, in which
he raised the abandonment issue, and her reply, in which she
contested the issue; (2) acknowledged the parties’ agreement to
11 forgo an evidentiary hearing and that the court could rule based on
the court filings; and (3) determined that the agreement was valid
and enforceable. This record shows that the court implicitly found
that the parties did not abandon or rescind the agreement through
their subsequent actions and conduct. See In re Parental
Responsibilities Concerning S.Z.S., 2022 COA 105, ¶ 23, 521 P.3d
1025, 1032 (noting that a district court’s finding may be implicit in
its ruling); see also In re Marriage of Udis, 780 P.2d 499, 504 (Colo.
1989) (explaining that an appellate court may presume that the
court considered all the evidence presented when arriving at its
decision).
¶ 31 We conclude that the record supports the court’s
determination that the parties’ actions or conduct was consistent
with the agreement and did not establish that the parties intended
to abandon or rescind the agreement’s property division terms. See
Young, 682 P.2d at 1236.
¶ 32 The property transfers to the LLCs after the parties entered
into the agreement did not clearly or unambiguously signal an
intention to abandon the agreement. See § 14-2-309(1)(a); see also
Young, 682 P.2d at 1236. Dillon and Fairplay were titled in the
12 names of the parties’ jointly owned LLCs at the time the parties
executed the agreement. Even though Tufts and Tempe were jointly
titled but encumbered solely in husband’s name, the agreement
explicitly designated them as wife’s separate property. See In re
Marriage of Stumpf, 932 P.2d 845, 847 (Colo. App. 1996) (explaining
that the form in which title is held is not dispositive in determining
whether property is marital or separate); Martinez v.
Gutierrez-Martinez, 77 P.3d 827, 828-29 (Colo. App. 2003)
(upholding exclusion of property from marital estate
“notwithstanding that title was in [the] wife’s name”).
Consequently, wife’s consent to convey a 50% interest in those
properties to the LLCs did not establish mutual consent to abandon
the agreement.
¶ 33 Contrary to husband’s claim, the agreement did not provide
that he alone could make the mortgage payments for Tufts.
Instead, the agreement says that, at the time of execution, the
“encumbrance associated with [the] property [was] in [h]usband’s
name alone.” Wife’s assumption of the mortgage payments for
Tufts, which she paid from the rental income from that property,
did not contradict the agreement.
13 ¶ 34 Husband also failed to meet his burden to show that wife’s
mortgage payments for Pinewood and Fairplay clearly or
unambiguously indicated a mutual intent to abandon the
agreement. See § 14-2-309(1)(a); see also Young, 682 P.2d at 1236.
In his response to wife’s motion to enforce, husband asserted that
the parties acted inconsistently with the agreement based on wife’s
admission that she, not husband, paid the mortgages for Pinewood
and Fairplay. Her admission was part of her answer to an
interrogatory concerning her “day-to-day operations of [her] rental
properties.” In her reply, she said that husband “should have been
paying” the Pinewood mortgage according to the agreement, but
that he had failed to do so. Because husband did not pay those
mortgages, wife said that she paid them to protect her interests in
Pinewood and Fairplay under the agreement and to preserve those
marital assets, and that her payment of the Pinewood and Fairplay
mortgages did not indicate that she intended to abandon the
agreement.
¶ 35 Moreover, neither in the court nor on appeal did husband cite
any specific authority to support his claim that wife’s payments of
the Pinewood and Fairplay mortgages established a mutual intent
14 to abandon the agreement because such payments were
inconsistent with the agreement’s language saying that he was
responsible for paying those mortgages. See Zander, ¶ 27, 486 P.3d
at 357 (explaining that an appellate court will not consider an
argument not supported by legal authority or any meaningful legal
analysis); see also In re Marriage of Dean, 2017 COA 51, ¶ 31, 431
P.3d 246, 252 (noting that an appellate court will not consider
arguments in a reply brief that seek to expand on contentions
raised in an opening brief).
¶ 36 Further, Husband seeks to incorporate by reference into his
opening brief his response to wife’s motion to enforce. We decline to
address any contentions contained in his response but not in his
opening brief. See C.A.R. 28(a)(7)(B) (requiring arguments in a brief
to contain contentions and reasoning, with citations to the
authorities and parts of the record on which the appellant relies);
see also C.A.R. 57 (“Incorporation by reference of briefs previously
filed in the lower court is prohibited.”); Castillo v. Koppes-Conway,
148 P.3d 289, 291 (Colo. App. 2006) (Incorporation by reference “is
improper because it attempts to shift — from the litigants to the
15 appellate court — the task of locating and synthesizing the relevant
facts and arguments.”).
D. Health Insurance
¶ 37 Husband contends that the court erred by ordering him to
provide lifetime health insurance for wife, even though he stipulated
to do so in the agreement. We agree.
¶ 38 The agreement includes a subsection under maintenance
requiring husband, upon dissolution, to pay for wife’s health
insurance for life. But in the motion to enforce, wife focused on the
property division and did not request enforcement of the
maintenance provision, including the health insurance
requirement. Moreover, wife represented in her reply in support of
the motion to enforce that the parties agreed the maintenance
provision was unenforceable. And during the permanent orders
hearing, wife’s counsel asserted that she was not asking the court
to enforce the health insurance subsection because it conflicted
with federal law. Additionally, in her closing argument, wife’s
counsel did not request that husband be ordered to pay for wife’s
health insurance.
16 ¶ 39 The court’s order requiring husband to provide lifetime health
insurance to wife was improper because, not only did she fail to
seek enforcement of that provision during the proceedings, but she
expressly asserted that the order was unenforceable under federal
law. While she suggests in her answer brief that the order is proper
under the Colorado maintenance statute, she did not include the
cost of her health insurance as part of her reasonable needs when
the court awarded her $11,000 per month in maintenance, as she
requested. Nor has she identified in the record where the court was
otherwise presented with information regarding the cost of her
¶ 40 We reverse that portion of the judgment and remand the case
to the court to vacate the health insurance requirement from the
permanent orders. Because the agreement includes a severability
clause, this reversal does not impact the validity of the rest of the
III. Property Division
A. Standard of Review
¶ 41 A district court has great latitude to make an equitable
property division based on the facts and circumstances of each
17 case, and we will not disturb its decision absent an abuse of
discretion. In re Marriage of Collins, 2023 COA 116M, ¶ 19, 544
P.3d 1258, 1267; see § 14-10-113(1), C.R.S. 2024. “The property
division must be equitable, but not necessarily equal.” In re
Marriage of Wright, 2020 COA 11, ¶ 3, 459 P.3d 757, 759; see In re
Marriage of Gallo, 752 P.2d 47, 55 (Colo. 1988) (“The key to an
equitable distribution is fairness, not mathematical precision.”). A
court abuses its discretion when its decision is manifestly arbitrary,
unreasonable, or unfair, or when it misconstrues or misapplies the
law. In re Marriage of Fabos, 2022 COA 66, ¶ 16, 518 P.3d 297,
301-02.
B. Relevant Law
¶ 42 A court must conduct a multi-step analysis when it allocates
marital property. LaFleur v. Pyfer, 2021 CO 3, ¶ 63, 479 P.3d 869,
885. The court (1) must determine whether an interest is property;
(2) if so, it must classify the property as marital or separate; and (3)
it must value the marital property and determine an equitable
distribution of such property. Id.
¶ 43 In making an equitable distribution, the court must consider
all relevant factors, including, as relevant here, each spouse’s
18 contribution to the acquisition of the marital property, including the
contribution of a spouse as homemaker, and each spouse’s
economic circumstances. § 14-10-113(1)(a), (c); In re Marriage of
Evans, 2021 COA 141, ¶ 50, 504 P.3d 988, 998.
¶ 44 The weighing of those factors is within the court’s sound
discretion. In re Marriage of Powell, 220 P.3d 952, 959 (Colo. App.
2009). The court need not make specific findings as to each factor
so long as its findings allow us to determine whether its decision is
supported by competent evidence. Collins, ¶ 19, 544 P.3d at 1267.
C. Discussion
1. Tax Returns
¶ 45 Husband contends that the court erred by requiring the
parties to file their taxes for 2019 through 2021 as married filing
separately rather than jointly. We are not persuaded.
¶ 46 To protect herself financially, wife asked the court to order the
parties to file taxes as married filing separately for the years 2019
through 2021. She testified that husband had previously “lied” on
their joint business tax returns, which had resulted in audits. She
recalled a warning from an IRS agent, who stressed that any future
19 misrepresentations could lead to criminal charges and possible jail
time.
¶ 47 In the permanent orders, the court instructed the parties to
file their tax returns for the years 2019 through 2021 as married
filing separately.
¶ 48 Because wife’s testimony supports the court’s decision, we
cannot say the court abused its discretion by ordering the parties to
file as married filing separately. See In re Marriage of Thorburn,
2022 COA 80, ¶ 49, 519 P.3d 736, 744 (explaining that credibility
determinations and the weight, probative force, and sufficiency of
the evidence, as well as the inferences and conclusions to be drawn
therefrom, are matters within the court’s sole discretion); see also In
re Marriage of Amich, 192 P.3d 422, 424 (Colo. App. 2007) (noting
that the district court can believe all, part, or none of a witness’s
testimony, even if uncontroverted).
2. Husband’s Commissions
¶ 49 Husband also contends that the court’s award to wife of
one-half of his commissions earned from projects sold before entry
of the dissolution decree but installed after the decree was
inequitable. We disagree.
20 ¶ 50 Compensation received or fully earned during marriage is
marital property subject to equitable distribution. See In re
Marriage of Sewell, 817 P.2d 594 (Colo. App. 1991); see also In re
Marriage of Huston, 967 P.2d 181 (Colo. App. 1998) (concluding
that compensation deferred until after the dissolution, but fully
earned during the marriage, is marital property); In re Marriage of
Cardona, 321 P.3d 518, 522 (Colo. App. 2010) (holding that income
earned from separate property during the marriage is marital
property), aff’d, 2014 CO 3, 316 P.3d 626.
¶ 51 The court found that, as of the date of the dissolution decree,
husband had earned, but had not yet received, a portion of his
income. His income was entirely commission-based. He received
half of his commission when a project was “sold” and the other half
when the project was “installed.” If a customer canceled the project
before installation, husband was required to return the initial half
of the commission he had received. The court also found that, due
to prevailing economic conditions, including supply chain
disruptions and other issues, the time between sales and
installations had increased, and that this delay led to a
higher-than-usual percentage of orders being canceled. The court
21 determined that wife was entitled to one-half of husband’s
commissions received after the date of the decree, even if those
commissions resulted from sales he made before the decree.
¶ 52 Because husband had an enforceable right to his
commissions, the court correctly awarded wife a share of those
commissions. See Huston, 967 P.2d at 184 (holding that earnings
or payments derived from work performed during the marriage are
marital property, subject to equitable distribution upon
dissolution); see also In re Marriage of Turner, 2022 COA 39,
¶ 18 n.1, 513 P.3d 407, 411 n.1 (noting that whether a bonus is an
enforceable right depends heavily on the court’s assessment of
credibility, and because the court found the wife’s employer
credible, “we must conclude that the record supports the finding
that [she] did not yet have an enforceable right to the bonus”);
Sewell, 817 P.2d at 596 (deciding that district court properly
divided as marital property income that the husband had earned
during the marriage but that he had not yet received at the time of
the permanent orders).
¶ 53 Nonetheless, husband asserts that the court should have
issued “corresponding [o]rders” providing guidance on how to
22 address a customer cancellation that necessitated a “return” of a
commission. Because husband does not direct us to where in the
record he raised this specific issue, it is not preserved and may not
be raised for the first time on appeal. See In re Marriage of Turilli,
2021 COA 151, ¶ 12, 507 P.3d 83, 87 (holding that an issue is
preserved for appeal when it is brought to the court’s attention and
the court ruled on it); see also In re Marriage of Garrett, 2018 COA
154, ¶ 35, 444 P.3d 812, 819 (holding that issues not raised before
the district court will not be addressed for the first time on appeal);
Brody v. Hellman, 167 P.3d 192, 199 (Colo. App. 2007) (holding that
an issue that is not pursued during the hearing on permanent
orders or through disposition is abandoned for appeal).
Accordingly, we decline to address the merits of this assertion. See
Garrett, ¶ 35, 444 P.3d at 819.
¶ 54 We similarly reject husband’s related contention that the court
failed to address the potential tax liabilities arising from his
commission payments to wife. He does not tell us where in the
record he specifically informed the court of these potential liabilities
or provided any calculations for the court to consider. Because the
court had no obligation to consider hypothetical tax implications,
23 we cannot say that the court abused its broad discretion by
ordering husband to pay wife a share of the subject commissions.
Collins, ¶ 19, 544 P.3d at 1267; see also In re Marriage of Dale, 87
P.3d 219, 226 (Colo. App. 2003).
3. Personal Property and Marital Property Located Inside the Marital Residence
¶ 55 Husband argues that the court erred by dividing the parties’
personal property and marital property located inside the marital
residence. We disagree.
¶ 56 Husband sought an order allowing him to retrieve certain
personal belongings and marital property from the marital
residence. He presented two demonstrative exhibits listing specific
items of personal and sentimental value to him that he wished to
have, along with an inventory of the remaining marital property
inside the residence.
¶ 57 Wife testified that husband had already received his personal
property and a fair share of the marital assets.
¶ 58 The court ordered wife to return to husband personal items
such as husband’s birth certificate, social security card,
grandparents’ rings, and sports awards. However, the court said it
24 lacked sufficient evidence to accurately value and divide the
remaining personal items and marital property in the residence. It
encouraged the parties to cooperate and allow husband to retrieve
his belongings and a fair share of the marital property from the
residence.
¶ 59 We discern no error because husband failed to provide
adequate evidence for the court to properly value and divide the
disputed property. See In re Marriage of Rodrick, 176 P.3d 806,
815 (Colo. App. 2007) (noting that it is the parties’ duty to present
the district court with the requisite data to value property, and any
failure in that regard should not provide them with grounds for
review); see also In re Marriage of Eisenhuth, 976 P.2d 896, 901
(Colo. App. 1999) (explaining that the district court considers the
evidence presented to it).
IV. Medical Escrow Account
¶ 60 Husband argues that the court erred by ordering him to
establish a $25,000 medical escrow account to cover wife’s future
medical expenses related to injuries that she sustained from his
domestic violence during the marriage. He reasons that the court
25 should not have considered a hypothetical, not-yet-incurred
medical debt. We conclude that any error was harmless.
¶ 61 Wife testified about a planned spinal procedure at the Mayo
Clinic and said the parties had saved for it. She added that the
medical procedure was a result of husband’s domestic violence. It
was undisputed, however, that the parties had not incurred any
debt to the Mayo Clinic at the time of permanent orders. The court
therefore erred by ordering the establishment of a medical escrow
account for a non-existent and potentially hypothetical future debt.
See § 14-10-113(5) (providing that a district court is required to
divide the marital property or debt based on its value at the time of
the decree or the hearing on the disposition of property).
¶ 62 But when viewed in relation to the overall property division, an
error in dividing a nonexistent marital debt is reversible only if the
error affects the parties’ substantial rights. See C.A.R. 35(c); see
also In re Marriage of Balanson, 25 P.3d 28, 36 (Colo. 2001). “An
error affecting only a small percentage of the overall marital estate
is harmless . . . .” In re Marriage of Zappanti, 80 P.3d 889, 893
(Colo. App. 2003).
26 ¶ 63 The assumed error of $25,000 represents less than 1% of the
$2.2 million marital estate. Such a small percentage does not
warrant reversal of the court regarding the establishment of the
medical escrow account. See id. We note that the medical escrow
account is specifically designated for treatment of wife’s neck
condition and limited to expenses not reimbursed by health
insurance, and that any funds remaining in the account after five
years must be returned to husband.
V. Maintenance
¶ 64 The court has broad discretion to award maintenance, if any,
that is fair and equitable to both spouses based on the totality of
the circumstances. § 14-10-114(3)(e), C.R.S. 2024; see also In re
Marriage of Vittetoe, 2016 COA 71, ¶ 14, 488 P.3d 103, 106. We
will not disturb the court’s maintenance award absent an abuse of
that discretion. See In re Marriage of Medeiros, 2023 COA 42M,
¶ 58, 534 P.3d 531, 542.
27 B. Relevant Law
¶ 65 Section 14-10-114(3) sets forth the specific process a court
must follow when considering a maintenance request. Wright, ¶ 13,
459 P.3d at 761.
¶ 66 The district court must first make findings regarding, as
relevant here, the requesting party’s reasonable financial need as
established during the marriage and the tax deductibility of
maintenance. § 14-10-114(3)(a)(I)(C)-(E); see Wright, ¶ 14, 459 P.3d
at 761. The court then determines an amount and term of
maintenance that is fair and equitable to the parties.
§ 14-10-114(3)(a)(II); Wright, ¶ 15, 459 P.3d at 761.
¶ 67 Although the court generally must also consider the guideline
amount and term of maintenance under section 14-10-114(3)(b)(I)
and (3)(b)(II), those guidelines do not apply when, as here, the
spouses’ combined annual adjusted gross income exceeds
$240,000. § 14-10-114(3.5); In re Marriage of Herold, 2021 COA 16,
¶ 26, 484 P.3d 782, 787. But the court may still consider the
guidelines under these circumstances. See § 14-10-114(3.5). In
this context, the court must determine the appropriate amount of
28 maintenance based on the statutory factors set forth in section
14-10-114(3)(c). See § 14-10-114(3.5).
¶ 68 The court is not required to make specific factual findings on
each factor, so long as its decision gives the reviewing court a clear
understanding of the basis of its order. See In re Marriage of
Stradtmann, 2021 COA 145, ¶ 32, 506 P.3d 77, 83; see also
§ 14-10-114(3)(e) (“The court shall make specific written or oral
findings in support of the amount and term of maintenance
awarded pursuant to this section or an order denying
maintenance.”).
¶ 69 The last step is for the court to determine whether the
requesting spouse qualifies for maintenance, meaning that the
spouse lacks sufficient property, including awarded marital
property, to provide for the spouse’s reasonable needs and is unable
to support himself or herself through appropriate employment. See
§ 14-10-114(3)(a)(II)(C), (3)(d); Wright, ¶ 16, 459 P.3d at 761-62.
¶ 70 Husband contends that the court erred in its calculation of
maintenance because (1) the record does not support its finding
that wife’s reasonable needs were $18,000 per month under section
29 14-10-114(3)(a)(I)(D); and (2) it did not make a finding on the tax
implications of the award under section 14-10-114(3)(a)(I)(E),
(c)(XII). We are not persuaded.
¶ 71 The court found that the parties had a “very high standard of
living” during the marriage and that wife’s reasonable needs
amounted to $18,000 per month. A CPA who managed the parties’
day-to-day finances for nine months testified that wife’s “expenses”
were approximately $18,000 per month. Wife said that such
amount was her reasonable monthly need, although, in her sworn
financial statement filed a week before the issuance of the
permanent orders, wife indicated that her overall monthly expenses
were approximately $30,076. See Udis, 780 P.2d at 504; see also In
re Marriage of Plesich, 881 P.2d 379, 381 (Colo. App. 1994)
(appellate court must view the evidence in the light most favorable
to the district court’s order). Because the record supports the
court’s finding, we will not disturb it. See Young, ¶ 8, 497 P.3d at
528.
¶ 72 Nor are we persuaded by husband’s insistence that the court
did not consider “the significant state and federal taxes that [he] is
required to pay on his income before he provides any spousal
30 maintenance to [w]ife.” The court ordered that the maintenance
award would not be deductible by husband or taxable to wife. But
husband points to nothing in the record indicating he told the court
what the significant tax implications would be. See Dale, 87 P.3d at
226.
VI. Child Tax Dependency Exemption
¶ 73 Husband contends, and we agree, that the court did not
allocate the dependency tax exemption for the minor child. Section
14-10-115(12), C.R.S. 2024, requires the court to allocate the
dependency tax exemption between the parents in proportion to
their contributions to the expenses of raising the child. S.F.E. in
Interest of T.I.E., 981 P.2d 642, 648 (Colo. App. 1998). The court
never addressed the issue even though wife agreed to an allocation
of the tax deduction.
¶ 74 We reverse the judgment concerning this issue. On remand,
the court should allocate the exemption between the parties as
section 14-10-115(12) requires. See S.F.E., 981 P.2d at 648.
VII. C.R.C.P. 70
¶ 75 Finally, husband contends that the court erred by denying his
forthwith motion pursuant to C.R.C.P. 70, in which he sought to
31 compel wife to sign releases for SBA records related to certain
COVID-relief loans. We conclude that the issue is now moot.
¶ 76 In his motion, husband specifically requested that the court
order wife to sign the releases by April 17, 2023, to allow him to
meet a deadline for filing formal disputes with the SBA. That
deadline has long since passed. Therefore, because any order
compelling wife to sign the releases at this point would have no
practical legal effect, we dismiss as moot this part of husband’s
appeal. See In re Marriage of Thomas, 2021 COA 123, ¶ 21, 501
P.3d 290, 294 (explaining that an issue is moot when the relief
requested, if granted, would have no practical effect on an existing
controversy).
VIII. Appellate Attorney Fees and Costs
¶ 77 Wife asks us to order husband to pay her appellate attorney
fees under section 13-17-102, C.R.S. 2024, asserting that the
appeal lacks substantial justification. Given our disposition, we
deny her request.
¶ 78 Husband requests an award of his appellate attorney fees
under C.A.R. 39.1, based on wife’s alleged failure to comply with
C.R.C.P. 16.2(e)’s financial disclosure requirements regarding the
32 SBA loans. We deny the request because the court’s order lacks
any factual finding that wife violated C.R.C.P. 16.2.
IX. Disposition
¶ 79 The portion of the judgment requiring husband to pay for
wife’s health insurance is reversed. That requirement is vacated
from the permanent orders. The portion of the judgment
concerning the child tax exemption is also reversed, and we remand
the case for an allocation of the exception, as section 14-10-115(12)
requires. The judgment is otherwise affirmed.
¶ 80 Husband’s challenge to the court’s denial of his C.R.C.P. 70
motion is dismissed as moot.
JUDGE JOHNSON and JUDGE MOULTRIE concur.