23CA1205 Marriage of Bentley 07-25-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA1205
Mesa County District Court No. 21DR763
Honorable Kevin R. Kennedy, Magistrate
In re the Marriage of
Robyn L. Bentley, II,
Appellant,
and
Leslie M. Bentley,
Appellee.
JUDGMENT AFFIRMED
Division IV
Opinion by JUDGE PAWAR
Navarro and Johnson, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced July 25, 2024
James W. Giese, P.C., James W. Giese, Grand Junction, Colorado, for
Appellant
Leslie M. Bentley, Pro Se
1
¶ 1 In this dissolution of marriage proceeding between Robyn L.
Bentley, II (husband) and Leslie M. Bentley (wife), husband appeals
the portion of the permanent orders related to maintenance. We
affirm.
I. Background
¶ 2 Husband and wife were married in 2009 and separated twelve
years later. After their separation, husband paid $1,504 per month
toward marital expenses benefitting wife including the marital
home’s mortgage and utility bills and wife’s cell phone bill and car
insurance. The parties later stipulated to husband’s continued
payment of the mortgage and other bills in lieu of paying temporary
maintenance to wife.
¶ 3 At the final orders hearing, the parties stipulated to the
division of the marital estate, and the court entered a maintenance
award in favor of wife. Pointing to the parties’ stipulation to sell the
marital home, the court ordered husband to pay wife $500 monthly
until the marital home was sold, then increasing to $1,500 per
month for a period of four years.
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II. Husband’s Contentions
¶ 4 Husband asserts that the court erred in awarding wife
maintenance because it did not consider the statutory maintenance
factors. We disagree.
A. Relevant Law and Standard of Review
¶ 5 When considering a maintenance request, the court must first
make findings on the parties’ incomes, the distribution of marital
property, the parties’ financial resources, their reasonable financial
need established during the marriage, and the taxability of any
maintenance awarded. § 14-10-114(3)(a)(I), C.R.S. 2023. Then, the
court must consider an amount and term of maintenance, if any,
that is fair and equitable after considering a nonexclusive list of
statutory factors, including the amount of each party’s gross
income, the marital property appointed to each party, reasonable
financial need as established during the marriage, and the amount
of temporary maintenance and number of months that temporary
maintenance was paid to the recipient spouse. § 14-10-114(3)(a)(II),
(3)(c). The court must also determine if the requesting party lacks
sufficient property to provide for their reasonable needs and is
3
unable to support themselves through appropriate employment.
§ 14-10-114(3)(a)(II)(C), (3)(d).
¶ 6 We review a court’s determinations on maintenance for an
abuse of discretion. In re Marriage of Tooker, 2019 COA 83, ¶ 12. A
court abuses its discretion when it decides an issue in a manifestly
arbitrary, unreasonable, or unfair manner, or it misapplies the law.
In re Marriage of Evans, 2021 COA 141, ¶ 25. We defer to the
court’s income findings unless the record does not support them.
In re Marriage of Gibbs, 2019 COA 104, ¶ 9.
B. Analysis
¶ 7 The record and court’s order show that the court properly
considered the statutory factors before awarding wife maintenance
and that the court’s findings have record support. The court began
by acknowledging the parties’ stipulation regarding property
division, in particular their agreement to sell the marital home.
Next, based on the testimony it heard, the court made findings of
each party’s income — specifically that husband earned $6,517
monthly and that wife was not voluntarily un/underemployed and
earned $450 monthly.
4
¶ 8 The court also found that the parties had no other financial
resources, aside from their earnings, that would affect the
maintenance amount. Although husband testified to wife’s
employment during the marriage, wife testified that her employment
had been sporadic and she was unable to secure appropriate
employment due to physical ailments she suffered. The court
credited wife’s testimony and found that her “history of
unemployment and underemployment during the parties’ marriage,
and the reasons why she did not work established her need for
maintenance.” The court’s written order included findings
concerning the taxability of the maintenance payments. The parties
also testified to the length and amount of husband’s payments
made in lieu of temporary maintenance, something that the court
explicitly considered in its written order.
¶ 9 The record thus shows that the court considered the relevant
statutory factors regarding maintenance and made its
determination based on record evidence.
III. Voluntarily Underemployment
¶ 10 Husband also challenges the court’s finding that wife was not
voluntarily underemployed when it “did not have competent
5
evidence to determine [w]ife was unable to work due to her health.”
Again, we perceive no error.
A. Relevant Law and Standard of Review
¶ 11 A party’s income for purposes of determining maintenance is
generally that party’s actual gross income. See § 14-10-114(8)(a)(I),
(II). “If a party is voluntarily unemployed or underemployed,
maintenance shall be calculated based on a determination of
potential income . . . .” § 14-10-114(8)(c)(IV). However, “a
determination of potential income shall not be made for a party who
is physically or mentally incapacitated.” Id.
¶ 12 Whether a party is voluntarily underemployed is typically a
factual question. People v. Martinez, 70 P.3d 474, 480 (Colo. 2003).
And we defer to the district court’s factual findings if supported by
66 (Colo. App. 2010). As well, witness credibility and the weight,
probative force, and sufficiency of the evidence and the inferences
and conclusions to be drawn therefrom are matters within the
district court’s sole discretion. In re Marriage of Bregar, 952 P.2d
783, 785 (Colo. App. 1997).
6
B. Analysis
¶ 13 The court, relying on section 14-10-114(8)(c)(IV), found that
wife was not voluntarily underemployed. The court found that wife
suffers from ailments that prevent her from working full time,
including “painful vaginal issues, migraine headaches, ringing in
her ears, muscle spasms, gastritis, [and] sciatica pain.”
¶ 14 The record supports these findings. Wife testified that she had
had multiple surgeries, including a hysterectomy. At the time of
the hearing, she had not fully recovered. She testified that she
continues to suffer from severe pain in her genitalia. She also
testified that she has migraines, neck pain, and ringing in her ears.
She testified that she experiences muscle spasms, and that she has
gastrointestinal issues that are painful and nauseating and that
sciatica and arthritis cause her back and hip pain.
¶ 15 At the hearing, wife admitted that — when she feels well
enough — she has earned money dog sitting, making and selling
chocolate sweets and birthday cards, and doing catering work. But
she further explained that she has difficulty standing or sitting for
long periods of time which prevents her from working most jobs.
7
She testified that she has applied for disability benefits but had not
received them at the time of the hearing.
¶ 16 As husband points out, wife presented no expert testimony
regarding her physical impairment. But husband presented no
testimony, other than his own, to refute wife’s description of her
ailments and their impact. Ultimately, the court found, in its
discretion, that wife’s “testimony regarding her ailments was quite
credible.” See Bregar, 952 P.2d at 785 (district court determines
witness credibility and weight of the evidence).
¶ 17 For these reasons we conclude the court did not abuse its
discretion in determining that wife was not voluntarily
underemployed.
IV. Disposition
¶ 18 The judgment is affirmed.
JUDGE NAVARRO and JUDGE JOHNSON concur.
