23CA0831 Marriage of Simonson 07-11-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA0831
Weld County District Court No. 20DR30492
Honorable W. Troy Hause, Judge
In re the Marriage of
Andrew Simonson,
Appellant,
and
Bonnie Simonson,
Appellee.
JUDGMENT AFFIRMED
Division A
Opinion by CHIEF JUDGE ROMÁN
Bernard* and Richman*, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced July 11, 2024
The Harris Law Firm PLLP, Katherine O. Ellis, Denver, Colorado, for Appellant
Divorce Matters, LLC, Justin J. Oliver, Greenwood Village, Colorado, for
Appellee
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2023.
1
¶ 1 Andrew Simonson (husband) appeals the district court’s
judgment that dissolved his marriage with Bonnie Simonson (wife).
We affirm.
I. Permanent Orders
¶ 2 The parties married in 1998. After wife initiated the
dissolution proceeding, the district court appointed Lauren Long to
value AJ’s Backflow Testing, LLC, a business owned and operated
by husband. Long opined that, as of December 2020, the value of
the business was $1,221,000.
¶ 3 In 2023, the court dissolved the marriage and entered
permanent orders. In dividing the marital estate, the court
accepted Long’s opinion on the value of the business and allocated
it to husband. The court divided the remaining marital assets and
debts, which resulted in each party receiving a relatively equal
share of their over $2 million estate.
¶ 4 Moving to maintenance, the court found that wife was earning
$2,306 per month, and it denied husband’s claim that she was
voluntarily underemployed as a part-time in-home healthcare
provider. The court found that husband’s total gross income was
$14,015 per month, which included his salary, his share of the
2
business’ income, and additional business funds husband used to
pay personal expenses. The court awarded wife maintenance in the
amount of $3,167 per month.
II. AJ’s Backflow Testing’s Value
¶ 5 Husband contends that the district court erred by accepting
Long’s business value. We discern no error.
A. Preservation
¶ 6 As an initial matter, we reject wife’s assertion that husband
did not preserve this issue for appellate review. Husband objected
to Long’s valuation in the joint trial management certificate, he
contested her opinion at the permanent orders hearing, and the
court ultimately ruled on the issue. See In re Marriage of Martin,
2021 COA 101, ¶ 13 (recognizing that all that is required to
preserve an issue for appeal is that the issue be brought to the
court’s attention, so it has an opportunity to rule on the matter).
B. Applicable Law
¶ 7 A court has great latitude to equitably divide the marital estate
based on the facts and circumstances of each case, and we will not
disturb its decision absent a showing that it acted in a manifestly
3
arbitrary, unreasonable, or unfair manner, or it misapplied the law.
In re Marriage of Medeiros, 2023 COA 42M, ¶ 28.
¶ 8 The court must determine the approximate current value of
also § 14-10-113(5), C.R.S. 2023 (directing the court to value
property as of the date of the permanent orders hearing when the
hearing occurs before the entry of the dissolution decree). The
court may select one party’s proposed value over that of the other
party, or it may determine its own reasonable value. Medeiros,
¶ 41. We will not disturb the court’s value determination if it is
reasonable in light of the evidence as a whole. Id.
¶ 9 It is the parties’ duty to present the court with sufficient data
so that the court can make a reasonable property valuation. In re
Marriage of Krejci, 2013 COA 6, ¶ 23. Any failure by the parties to
do so does not provide them with grounds for reversal. Id.; In re
Marriage of Zappanti, 80 P.3d 889, 892-93 (Colo. App. 2003).
C. Discussion
¶ 10 At the hearing, Long testified that following her July 2021
appointment, she “got stuck on the document request portion” for
her valuation. She explained that in October 2021, she received the
4
business’ 2018 through 2020 tax returns, but despite repeated
requests to husband for additional financial information over the
next seven months, she received nothing else from him. She
further testified that in May 2022, she informed the parties that in
the absence of any other information, she would prepare her
valuation based solely on the business’ tax returns. She also
informed them that they could provide additional information, but
nothing more was produced.
¶ 11 Long then opined that from the financial information husband
disclosed, $1,221,000 was her “best estimate” for the business’
value. She testified that if she had received more information from
husband, she believed “it would have resulted in a higher value,”
and that she suspected husband did not fully disclose all the
business’ income. She said that her valuation was “the lowest
possible number because it’s based on the only information that
[husband] would let [her] see.”
¶ 12 The court found Long “very credible” and said that her
valuation was “the most credible evidence available to the [c]ourt
regarding the value of the business.” The court also agreed that, in
light of the evidence, the business, if anything, may be worth more
5
than $1,221,000. The court then accepted Long’s value for AJ’s
Backflow Testing.
¶ 13 Husband argues that the court was wrong to value the
business based on Long’s outdated and incomplete valuation. He
highlights that even Long acknowledged that she did not adhere to
her normal procedures when valuing the business. But the court
found, with record support, that husband failed to fully disclose
financial information to Long and that he created the problems he
now complains of in her valuation. And husband did not present
an alternate valuation for the business. See Krejci, ¶ 23; Zappanti,
80 P.3d at 892-893. The court thus made a reasonable value
determination based on the evidence. See Medeiros, ¶ 41.
¶ 14 Husband also argues that Long’s methodology was flawed, she
did not consider recent legislative changes that may impact the
business, and she conducted the valuation in the middle of the
COVID-19 pandemic. But “[t]he weight to be given to valuation
techniques used by experts is for the [district] court to decide.” In
re Marriage of Nevarez, 170 P.3d 808, 812 (Colo. App. 2007).
Therefore, it was for the court to determine the weight, probative
force, and sufficiency of Long’s valuation, as well as the inferences
6
and conclusions to be drawn therefrom in determining the value of
husband’s business. See In re Marriage of Thorburn, 2022 COA 80,
¶ 49. We are not at liberty to re-evaluate the conflicting evidence
and set aside the court’s determination when, as here, it was
reasonable in light of the limited evidence presented. See Medeiros,
¶ 41; In re Marriage of Evans, 2021 COA 141, ¶ 45.
¶ 15 The district court therefore did not err by finding that the
value of AJ’s Backflow Testing was $1,221,000.
III. Maintenance
¶ 16 Husband next challenges the district court’s maintenance
award, arguing that the court’s income findings were not supported
by the record and that the court did not make the necessary
findings in support of its award. We reject his contentions.
A. Standard of Review
¶ 17 We may not disturb a court’s maintenance determination
unless it is shown to be manifestly arbitrary, unfair, or
unreasonable, or based on a misapplication of the law. See
Medeiros, ¶¶ 28, 58.
7
B. Wife’s Income
¶ 18 Husband contends that the district court erred by finding that
wife was not voluntarily underemployed and declining to impute an
income commensurate with full-time employment. We disagree.
¶ 19 When determining maintenance, the court must determine
each party’s income, which generally means their actual gross
income. § 14-10-114(3)(a)(I)(A), (8)(a)(II), C.R.S. 2023. But if the
court finds that a party is voluntarily underemployed, the court
determines maintenance based on that party’s potential income.
§ 14-10-114(8)(c)(IV). A party is voluntarily underemployed when
they shirk their support obligations by unreasonably forgoing
employment. See In re Marriage of Collins, 2023 COA 116M, ¶ 29;
see also In re Marriage of Garrett, 2018 COA 154, ¶ 10 (“Imputation
of income is an exception . . . and should be applied with caution.”).
¶ 20 The court has broad discretion in determining income, and we
generally will not disturb the court’s finding when it is supported by
the record. Collins, ¶ 30; see also Garrett, ¶ 9 (recognizing that we
review de novo the court’s application of the law to the facts).
¶ 21 Wife testified that, during the marriage, she primarily raised
their children and worked part-time as a healthcare provider from
8
her home. She also said that she had not worked full-time since
early in the marriage. Wife then testified that she was presently
employed as an in-home healthcare provider, worked about
twenty-nine hours per week, and earned $18.35 per hour. She
described having specific clients that gave her a guaranteed number
of hours per week, which she said was hard to find in her
profession. Wife said that she would be willing to work more hours,
but her employer had not offered any additional shifts to her at a
time when she was not already caring for her current clients. And
she testified that her employer had not offered her the opportunity
to work full time.
¶ 22 The court credited wife’s testimony and found that she was not
voluntarily underemployed. It explained that although she was
physically capable of working a full-time schedule, she had not
worked forty hours per week in over twenty-one years, which
dampened her prospects of getting a full-time job. It further
explained that she had secured a job in her area of expertise and
her current employer did not have a full-time schedule available for
her. The court found that wife’s job reasonably suited her
experience and capabilities and that no evidence showed that she
9
had the opportunity to work full time. It determined that based on
her earnings for twenty-nine hours per week, her gross income was
$2,306 per month.
¶ 23 Given the record support for the court’s determination, we
may not disturb it. See Collins, ¶ 30. Although husband suggests
that other evidence at the hearing conflicted with the court’s
finding, it was for the district court, not us, to resolve those
conflicts. See In re Marriage of Tooker, 2019 COA 83, ¶ 31; see also
Evans, ¶ 45.
¶ 24 The court therefore did not err by finding that wife was not
voluntarily underemployed.
C. Husband’s Income
¶ 25 We also reject husband’s contention that the district court
improperly included additional business funds he used for his
personal expenses when it found that his gross income was
$14,015 per month.
¶ 26 Gross income for purposes of maintenance means income
from any source. § 14-10-114(8)(c)(I). For a self-employed party,
gross income equals gross receipts minus ordinary and necessary
expenses. § 14-10-114(8)(c)(III)(A). Gross income also includes a
10
party’s salary and “[a]ny moneys drawn by a self-employed
individual for personal use that are deducted as a business
expense.” § 14-10-114(8)(c)(I)(A), (O), (W).
¶ 27 The court noted that husband claimed his income was $8,386
per month, which represented an average of his annual salary and
share of the business’ income from 2019 through 2021. (Husband
reported annual earnings of $138,215 in 2019, $106,587 in 2020,
and $57,126 in 2021.) However, the court determined that this
amount did not adequately represent his actual gross income.
¶ 28 First, while the court agreed that averaging husband’s salary
and business income was appropriate, it found that husband’s
2021 earnings were not a true representation of his income. It
explained that the COVID-19 pandemic may have caused a minor
dip in the business’ earnings and that the business would likely
recover given its relatively stable nature. The court also hesitated
to accept husband’s reported income during the pendency of the
dissolution proceeding, “particularly considering the conduct of
[h]usband throughout [the] case.” The court averaged husband’s
annual earnings in 2019 and 2020 and found that he had an
annual gross income of $122,401 or $10,200 per month.
11
¶ 29 Then, the court found that both parties described that
husband frequently used business funds to pay personal expenses,
which he would later deduct as business expenses. The court
noted that in 2020, AJ’s Backflow Testing reported over $261,000
in business deductions, and it found that at least some of these
deductions were for personal expenses that must be included in
husband’s gross income. The court acknowledged that, given the
limited evidence on the business’ finances, it was “impossible to
know exactly how much” of that amount husband spent on his
personal expenses, but it said that it could create a clear enough
picture to determine a reasonable amount from the available
evidence.
¶ 30 In doing so, the court looked at husband’s sworn financial
statements. The court noted that in his first sworn financial
statement husband reported a gross income of $14,015 per month.
The court also noted that the parties testified that husband used
business funds to pay for groceries, utilities, gas, and phone bills at
a minimum. It then reviewed husband’s most recent sworn
financial statement and found that he represented spending $3,587
per month on these expenses. The court found that husband also
12
testified he paid about $300 per month for his phone. From this,
the court determined that husband admitted to spending roughly
$3,887 per month from the business on personal expenses. And it
noted that evidence showed that he used business funds to pay
even more personal expenses.
¶ 31 The court concluded that when considering the money
husband acknowledged using on personal expenses (about $3,800
per month) and his average salary and business income ($10,200
per month), it was reasonable to use the gross income he reported
on his initial sworn financial statement and determined that his
income was $14,015 per month.
¶ 32 The record supports the court’s decision to average husband’s
salary and business income as well as its finding that he used
business funds for personal expenses. See § 14-10-114(8)(c)(I)(A),
(O), (W); see also In re Marriage of Salby, 126 P.3d 291, 299 (Colo.
App. 2005) (noting that the court may use an average of a party’s
past income). We therefore will not disturb those determinations.
See Collins, ¶ 30.
¶ 33 Still, husband argues that the court improperly determined
the amount of the additional business funds used on personal
13
expenses. He notes that his phone expenses were double counted,
certain expenses overlapped with valid business expenses, and
some expenses were, in fact, paid with personal funds. Even if we
assume that his representations are correct, he fails to establish
how he was prejudiced. See C.A.R. 35(c) (“The appellate court may
disregard any error or defect not affecting the substantial rights of
the parties.”); see also In re Parental Responsibilities Concerning
E.E.L-T., 2024 COA 12, ¶ 30 (“An error affects a substantial right
only if it substantially influenced the outcome of the case or
impaired the basic fairness of the trial.”). The court found that
while it was undisputed that husband used business funds for
personal use, it had little evidence from which to determine the
892-893. The court then considered the income husband initially
reported ($14,015 per month) and compared that to his most recent
reported expenses to create a framework for identifying a
reasonable amount of personal expenses he paid with business
funds. See Salby, 126 P.3d at 296 (recognizing that a court may
rely on a party’s sworn financial statement). The court referenced
those expenses to determine whether his previously reported gross
14
income of $14,015 per month was reasonable; it did not directly
include the amount of those expenses in determining his gross
income. Moreover, the court identified other personal expenses
paid with business funds, which it did not quantify when accepting
husband’s previously reported income. The court thus determined
a reasonable amount for husband’s gross income based on the
evidence presented. See Collins, ¶ 30.
¶ 34 Husband also argues that, in determining his income, the
court incorrectly said that it did not admit his 2017 through 2019
personal wage and tax statements and the 2021 business tax
return, when the court admitted those exhibits at the hearing.
Even if the court incorrectly referenced the non-admission of these
exhibits, the court next said that it was “not convinced that
consideration of these documents [was] necessary to evaluate
[h]usband’s earnings” in light of the other admitted evidence, which
included husband’s reported earnings for 2019 through 2021, the
business’ 2020 tax return, and husband’s sworn financial
statements. The court therefore found these exhibits irrelevant to
its income determination. And husband directs us to nothing in
those additional exhibits that could have affected the court’s income
15
finding. Nor does he establish that any error affected his
substantial rights. Thus, any misstatement by the court appears
harmless. See C.A.R. 35(c).
¶ 35 Husband also says that “[a]ny reliance by the [district] court
on Ms. Long’s testimony to calculate [h]usband’s income was
improper because Ms. Long did not include an income valuation as
part of her report.” But he does nothing to develop this argument.
We therefore will not consider it. See In re Parental Responsibilities
Concerning S.Z.S., 2022 COA 105, ¶ 29.
¶ 36 The court therefore did not err by finding that husband’s gross
income was $14,015 per month.
D. Sufficient Findings
¶ 37 Husband contends that the district court failed to make all
necessary statutory findings when awarding maintenance. We
disagree.
¶ 38 When considering maintenance, the court must first make
findings on the parties’ incomes, the distribution of marital
property, the parties’ financial resources, the reasonable financial
need established during the marriage, and the taxability of any
maintenance awarded. § 14-10-114(3)(a)(I). Then, the court must
16
consider an amount and term of maintenance, if any, that is fair
and equitable. § 14-10-114(3)(a)(II). To do so, the court considers
advisory maintenance guidelines and a nonexclusive list of
statutory factors. § 14-10-114(3)(a)(II)(A)-(B), (3)(b), (3)(c). The court
must also determine if the requesting party lacks sufficient property
to provide for their reasonable needs and is unable to support
themself through appropriate employment. § 14-10-114(3)(a)(II)(C),
(3)(d).
¶ 39 Husband does not dispute that the court made the required
statutory findings on the parties’ incomes, the distribution of
marital property, the parties’ financial resources, and the taxability
of maintenance. § 14-10-114(3)(a)(I)(A)-(C), (E). Nor does he
challenge the court’s finding that wife met the statutory
requirement for maintenance. § 14-10-114(3)(a)(II)(C), (3)(d).
¶ 40 Thus, as to the statutorily required findings, husband only
appears to argue that the court failed to address the parties’
reasonable financial need as established during the marriage. See
§ 14-10-114(3)(a)(I)(D). But the court found that during the
marriage, “the parties lived comfortably, holding many large assets
and making investments for their future, all with little to no debt.”
17
It also recognized that husband reported earning over $100,000 per
year during the marriage and that wife provided additional income.
And it found that wife’s current income ($2,306 per month) would
not sufficiently provide for her reasonable needs as established
during the marriage. Thus, a review of the court’s ruling
demonstrates that it made sufficient findings on this issue.
¶ 41 Husband also suggests that the court did not make findings
on all of the section 14-10-114(3)(c) factors when it determined the
amount of maintenance. While the court did not address all of the
statutory factors, it was not required to do so when, as here, it
sufficiently explained the basis of its decision and made findings on
the factors it found relevant. See Wright, ¶ 20.
¶ 42 Specifically, the court found that
• husband was the primary breadwinner and earned an
income of over $14,000 per month, see
§ 14-10-114(3)(c)(II), (V), (VI);
• husband grew his business during the marriage, received
the business in the property division, and will continue to
earn a relatively consistent income from it, see
§ 14-10-114(3)(c)(II), (IV), (X);
18
• husband paid wife $3,000 per month in temporary
maintenance during the proceeding, see
§ 14-10-114(3)(c)(VIII);
• wife earned $2,306 per month, sacrificed her ability to
grow her earnings in favor of supporting husband, and
needed financial support and assistance to get back on
her feet, see § 14-10-114(3)(c)(I), (V), (X); and
• wife reported expenses ($3,300 per month) that were
“fairly bare bones,” and even after alleviating her rental
expenses, wife could not meet her reasonable needs as
established during the nearly twenty-five-year-marriage
with her income or the property allocated to her, see
§ 14-10-114(3)(c)(I), (III), (VII).
¶ 43 The court then determined that the advisory guideline amount
of maintenance ($3,167 per month) was fair and equitable.
§ 14-10-114(3)(b)(I)(C), (3)(e).
¶ 44 The court thus made the required findings and considered the
statutory factors when it awarded wife maintenance. The record
supports its determinations, and we therefore will not disturb its
maintenance award.
19
IV. Appellate Attorney Fees and Costs
¶ 45 Wife asks for an award of attorney fees and costs on appeal,
arguing that husband’s appeal is frivolous and vexatious. See
C.A.R. 38(b); see also § 13-17-102(4), C.R.S. 2023. Even though
unsuccessful, we do not agree that husband’s appeal warrants such
an award. See Glover v. Serratoga Falls LLC, 2021 CO 77, ¶ 70
(noting that we award such attorney fees only in clear and
unequivocal cases of egregious conduct where no rational argument
is presented). We therefore deny wife’s request.
V. Disposition
¶ 46 The judgment is affirmed.
JUDGE BERNARD and JUDGE RICHMAN concur.
