of Thorstad — ( 2019 )

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
January 24, 2019
2019COA13
No. 17CA2293, Marriage of Thorstad — Family Law — Uniform
Dissolution of Marriage Act — Post-dissolution — Modification
and Termination of Provisions for Maintenance, Support, and
Property Disposition
A division of the court of appeals addresses the issue of how
trial courts should apply section 14-10-122(2)(a), (b), and (c),
C.R.S. 2018, when deciding whether to modify a payor spouse’s
maintenance obligation because he or she has decided to retire
from employment. These subsections establish a rebuttable
presumption that a decision to retire was made in good faith when
certain conditions are met.
The division then concludes that, absent a court’s decision to
reserve jurisdiction, the parties’ stipulation in a separation
agreement to apply a different standard, or a statute enunciating a
different standard, a court must apply section 14-10-122(1)(a) when
deciding whether to grant a payor’s motion to modify or to
terminate maintenance. When a motion to modify or terminate
maintenance is based on a payor’s decision to retire, the court must
therefore decide, considering the factors discussed in section
14-10-114, C.R.S. 2018, whether circumstances have changed in
such a sufficient and continuing way as to render the maintenance
order unfair.
In other words, the payor’s good faith decision to retire is a
factor in the analysis, but it does not automatically require the
court to grant the motion to modify or to terminate a maintenance
obligation.
So, the division reverses the trial court’s order because it
misapplied subsections 122(2)(a), (b), and (c), and the division
remands the case to the trial court for further proceedings.
COLORADO COURT OF APPEALS 2019COA13
Court of Appeals No. 17CA2293
Jefferson County District Court No. 01DR2710
Honorable Dennis J. Hall, Judge
In re the Marriage of
Ronald L. Thorstad,
Appellee,
and
Randie J. Thorstad, n/k/a Randie J. Randell,
Appellant.
ORDER REVERSED AND CASE
REMANDED WITH DIRECTIONS
Division IV
Opinion by CHIEF JUDGE BERNARD
Hawthorne and Tow, JJ., concur
Announced January 24, 2019
Elizabeth Henson, Attorney Mediator P.C., Elizabeth Henson, Greenwood
Village, Colorado, for Appellee
Schaffner Law LLC, Jennifer A. Schaffner, Denver, Colorado, for Appellant
I. Introduction
¶1 Colorado statutes establish how courts set, modify, and
terminate maintenance orders. The decision to modify or to
terminate a maintenance order is often governed by the effect of
changed circumstances on the payor spouse’s ability to pay.
¶2 More specifically, section 14-10-122(1)(a), C.R.S. 2018, states
that, subject to certain enumerated exceptions, “the provisions of
any decree respecting maintenance may be modified . . . only upon
a showing of changed circumstances so substantial and continuing
as to make the terms unfair.” When deciding whether changes have
been sufficiently substantial and continuing as to render a
maintenance order unfair, “the court is required to examine all
circumstances pertinent to awarding maintenance” under section
14-10-114, C.R.S. 2018. In re Marriage of Nelson, 2012 COA 205,
¶ 26.
¶3 This case examines the statutory structure that courts apply
when dealing with the effect of one potential substantial and
continuing changed circumstance upon a maintenance order: a
payor’s decision to retire. We recognize that, in some cases, there
could be an ulterior motive behind this decision: to reduce or to
1
eliminate the obligation to pay maintenance by reducing or
eliminating the payor’s income. The law gives a name to such an
ulterior motive: “voluntary underemployment or unemployment.”
¶4 Courts frown on voluntary underemployment and
unemployment because these stratagems constitute an attempt to
avoid paying maintenance. They may counter such stratagems by,
for example, considering “whether [a payor] spouse is voluntarily
underemployed in determining whether reduced income is a
substantial and continuing circumstance that would justify
modification or termination of his [or her] maintenance obligation.”
In re Marriage of Swing, 194 P.3d 498, 500 (Colo. App. 2008); see
also In re Marriage of Barnthouse, 765 P.2d 610, 613 (Colo. App.
1988)(“[W]e find no error in the court’s [finding] that the
father . . . was voluntarily earning less than he was capable of
earning. Therefore, there is no merit to the father’s contention that
the . . . maintenance award[] [was] erroneous.”).
¶5 There is also the prospect that a payor’s decision to retire was
not the product of an ulterior motive, but was, instead, a product of
good faith. See § 14-10-114(8)(c)(V)(B) (“[A] party shall not be
deemed ‘underemployed if . . . [t]he employment is a good faith
2
career choice . . . .”); cf. § 14-10-115(5)(b)(III)(B), C.R.S. 2018 (“[A]
parent shall not be deemed ‘underemployed’ if . . . [t]he employment
is a good faith career choice that is not intended to deprive a child
of support and does not unreasonably reduce the support available
to a child . . . .”). In those situations, the decision to retire may
nonetheless pose a dilemma for the payor — which we shall call the
“payor’s dilemma” — prompting him or her to worry, “If I decide to
retire, thus reducing my income, will a court view my retirement as
voluntary underemployment or unemployment when deciding
whether to grant my motion to modify or to terminate my
maintenance obligation?” This dilemma may be especially
problematic when decisions to retire are irrevocable.
¶6 Swing addressed this concern. The division first recognized
the payor’s dilemma: “Unless the effect of retirement on
maintenance has been addressed in the parties’ separation
agreement, a spouse contemplating retirement who is either paying
or receiving maintenance faces considerable uncertainty.” Swing,
194 P.3d at 500. The uncertainty is generated, on the one hand, by
the reduction in income that almost “irrevocably” accompanies
retirement, and, on the other hand, by the lack of Colorado law
3
“assur[ing] that maintenance will be modified based on the retiree’s
lower wage income.” Id.¶7 To ameliorate the payor’s dilemma, the division surveyed
decisions from other states, and it discovered a majority rule:
“[R]educed income due to a spouse’s objectively reasonable decision
to retire, made in good faith and not with the intention of depriving
the other spouse of support, should be recognized as a basis for
modifying maintenance.” Id. at 501. The division then concluded
that a court should not find a payor to be voluntarily
underemployed if the payor’s decision to retire (1) “was made in
good faith, meaning not primarily motivated by a desire to decrease
or eliminate maintenance,” id.; and (2) “was objectively reasonable
based on factors such as the [spouse’s] age . . . [and] health, and
the practice of the industry in which the [spouse] was employed,”
id.¶8 Apparently following the division’s lead, the legislature took a
similar approach to solving the payor’s dilemma when, in 2013, it
amended section 14-10-122(2)(a), (b), and (c). Ch. 176, sec. 2,
§ 14-10-122(2)(a), (b), (c), 2013 Colo. Sess. Laws 652.
4
¶9 As a result of the amendments, subsection 122(2)(a) now
states that,
[u]nless otherwise agreed in writing or
expressly provided in the decree, the obligation
to pay future maintenance is terminated upon
the earlier of:
(I) The death of either party;
(II) The end of the maintenance term, unless a
motion for modification is filed prior to the
expiration of the term;
(III) The remarriage of or the establishment of a
civil union by the party receiving maintenance;
or
(IV) A court order terminating maintenance.
¶ 10 Subsection 122(2)(b) adds that “[a] payor spouse whose
income is reduced or terminated due to his or her retirement after
reaching full retirement age is entitled to a rebuttable presumption
that the retirement is in good faith.” Subsection 122(2)(c) defines
the term “full retirement age” to be “the payor’s usual or ordinary
retirement age when he or she would be eligible for full United
States social security benefits, regardless of whether he or she is
ineligible for social security benefits for some reason other than
attaining full retirement age.” But, according to subsection
122(2)(c), “‘[f]ull retirement age’ shall not mean ‘early retirement age’
5
if early retirement is available to the payor spouse, nor shall it
mean ‘maximum benefit retirement age’ if additional benefits are
available as a result of delayed retirement.”
¶ 11 We must next make a point about the statutes that we
consider in this appeal. In 2013, section 14-10-114 was repealed
and reenacted. Ch. 176, sec. 1, 14-10-114, 2013 Colo. Sess. Laws
639-52. The considerations relevant to determining maintenance in
this case used to appear in subsections (3) and (4) before the 2013
amendments, but they now appear in subsection (3).
¶ 12 The petition for dissolution of marriage in this case was filed
on September 17, 2001, so the new version of section 14-10-114
applicable to petitions filed on or after January 1, 2014, does not
apply. See § 14-10-114(9). Rather, “[a]ctions filed before January
1, 2014, are determined pursuant to the provisions of this section
as it existed at the time of the filing of the action.” Id. This means
that from this point on, unless otherwise noted, when we refer to
any of the subsections of section 14-10-114, we are referring to
those that existed in September 2001.
¶ 13 Section 14-10-122 does not contain similar language. So,
when we discuss any of the subsections of section 14-10-122, we
6
are concerned with those in existence when husband filed his
motion to terminate his maintenance obligation in May 2017.
¶ 14 Turning to this case, a former husband, Ronald L. Thorstad,
suffered from some health problems, which contributed to his
decision to retire from his job. He therefore asked a magistrate to
terminate his maintenance obligation to his former wife, Randie J.
Thorstad, who is now known as Randie J. Randell. (For readability
purposes, we shall dispense with the adjective “former” and simply
call the parties to this appeal “husband” and “wife.”) The
magistrate granted husband’s request; wife sought the district
court’s review; and the district court denied her petition. (Because
the district court denied wife’s petition, essentially affirming the
magistrate’s decision, we will refer to the district court and the
magistrate cumulatively as “the trial court” unless we need to make
a specific point about either one.)
¶ 15 Wife filed this appeal.
¶ 16 We conclude that the magistrate’s order, as affirmed by the
district court, partially misapplied subsections 122(2)(a), (b), and
(c). We therefore reverse the court’s order, and we remand the case
7
for further proceedings, including ruling on wife’s request for
appellate attorney fees under section 14-10-119, C.R.S. 2018.
II. Background
¶ 17 The decree in this case dissolved the marriage between
husband and wife in May 2002. Their separation agreement
included a “step down” schedule for husband’s maintenance
obligation to wife, meaning that the amount husband paid
decreased over time. He was paying wife $3000 per month when he
asked the trial court to terminate his maintenance obligation.
¶ 18 In the separation agreement, husband and wife agreed that
the trial court would have jurisdiction to modify the amount of
maintenance if wife’s medical condition worsened or if her medical
costs substantially increased. The agreement contained the
following succession of sentences:
 “Maintenance shall be subject to review and modification
by the [c]ourt under [section 14-10-114], without the
requirement of proving a substantial and continuing
change of circumstances making the existing [o]rder
unfair.”
8
 Husband and wife “have assumed . . . that wife will be
able to work full-time without disability from her [medical
condition], and that husband will retire completely from
paid employment on or before he reaches age sixty.”
 Husband and wife “understand that a worsening of . . .
wife’s [medical condition] which interferes with her ability
to work full time, or a substantial increase in the wife’s
medical costs, will require a re-evaluation of maintenance
in connection to . . . wife’s needs.”
¶ 19 These sentences do not include any reference to the
termination of maintenance, and they do not refer to section
14-10-122 at all, let alone to subsections 122(2)(a), (b), or (c).
Indeed, they could not refer to those subsections because they did
not exist in their present form when husband and wife entered into
their separation agreement.
¶ 20 In May 2017, relying on subsections 122(2)(a), (b), and (c),
husband asked the magistrate to terminate his maintenance
obligation, alleging that he intended to retire and that his health
had deteriorated. The magistrate granted this request.
9
¶ 21 Unbeknownst to the magistrate, wife had filed a response to
husband’s motion to terminate maintenance after the time for
responding had lapsed. She did not ask for the magistrate’s
permission to do so. The response asked the court to deny
husband’s request to terminate his maintenance obligation and that
the court take a “wider view” of subsections 122(2)(a), (b), and (c)
and section 14-10-114.
¶ 22 The magistrate granted husband’s motion without a hearing
before wife’s response reached the court’s electronic filing system.
¶ 23 Employing C.R.M. 7(a), wife then filed a petition that asked the
district court to review the magistrate’s order. She raised two
points: first, it was unclear from the magistrate’s order whether
husband had relied on the proper statute when he asked the
magistrate to terminate his maintenance obligation; and, second,
the magistrate erred when he granted husband’s motion without
considering her response.
¶ 24 Wife contended that section 14-10-114 governed husband’s
request to terminate maintenance, instead of subsections 122(2)(a),
(b), and (c), because the court had reserved jurisdiction to modify
maintenance by approving the parties’ separation agreement. She
10
also observed that the district court had determined, during prior
modification proceedings in this case, that section 14-10-114
governed its decision to modify maintenance.
¶ 25 Although the magistrate did not have wife’s response prior to
ruling on husband’s motion, the district court noted in its order
that it had taken her response into account when ruling on her
C.R.M. 7(a) petition. The district court, rejecting wife’s contentions,
denied her petition.
III. Standard of Review
¶ 26 A district court’s review of a magistrate’s order is like appellate
review, and the magistrate’s findings of fact cannot be altered
unless clearly erroneous. C.R.M. 7(a)(9); In re Parental
Responsibilities Concerning G.E.R., 264 P.3d 637, 638-39 (Colo.
App. 2011). Our review of the district court’s decision is effectively
a second level of appellate review, and we apply the same clearly
erroneous standard. In re Marriage of Dean, 2017 COA 51, ¶ 8;
G.E.R., 264 P.3d at 639.
¶ 27 We review a district court’s order modifying maintenance for
an abuse of discretion. In re Marriage of Ward, 740 P.2d 18, 21
(Colo. 1987). However, we review de novo whether the district court
11
applied the correct legal standard. In re Marriage of Atencio, 47
P.3d 718, 720 (Colo. App. 2002).
IV. Wife’s Contentions and Our Conclusions
¶ 28 Wife raises three contentions. She asserts that the trial court
erred when it
1. relied on section 14-10-122 instead of section
14-10-114 in the course of granting husband’s motion
to terminate his maintenance obligation;
2. terminated husband’s maintenance obligation without
making sufficient factual findings; and
3. treated husband’s motion as confessed even though
wife had submitted an untimely response.
¶ 29 Addressing these contentions, we reach the following
conclusions, which we will explain below in detail.
 The question of what statute applies to resolve husband’s
motion is one of law, which we review de novo. See
Atencio, 47 P.3d at 720.
 Section 14-10-122 was the right statute for the trial court
to use when deciding whether to grant husband’s motion.
But a court cannot automatically terminate a
12
maintenance obligation under subsection 122(2)(a)(IV) if
a payor satisfies the retirement provisions found in
subsections 122(2)(b) and (c). Rather, a payor’s good
faith retirement simply becomes a factor for the court to
consider in the analysis of whether, under subsection
122(1)(a), the payor can show that there has been a
substantial and continuing change of circumstances that
makes the existing maintenance order unfair.
 A court can, in specified circumstances, reserve
jurisdiction over a maintenance order. But husband and
wife’s separation agreement in this case, which the court
had approved, did not reserve jurisdiction over the
question of what effect husband’s retirement would have
on his maintenance obligation. So the separation
agreement did not require the trial court to use section
14-10-114 to resolve husband’s motion instead of
subsections 122(1)(a), (2)(a), (2)(b), and (2)(c).
 We do not need to address wife’s assertion that the trial
court erred when it decided that wife had confessed
husband’s motion.
13
V. Analysis
A. The Decision to Award Maintenance
¶ 30 In 2001, before a court could award maintenance, section
14-10-114(3) required the court to “make a threshold determination
that the requesting spouse lacks sufficient property, including
marital property, to provide for his or her reasonable needs and is
unable to support himself or herself through appropriate
employment.” In re Marriage of Rose, 134 P.3d 559, 561 (Colo. App.
2006). Once the court found that this statutory threshold had been
satisfied, it would turn to section 14-10-114(4) to figure out the
amount and duration of maintenance. To do so, it would consider
“the parties’ financial resources; the recipient’s need for education
or training; the standard of living established during the marriage;
the age and condition, both physical and emotional, of the recipient;
and the payor spouse’s ability to meet his or her own needs while
meeting those of the recipient.” Rose, 134 P.3d at 561.
B. Incorporating a Payor’s Retirement into the Decision to Modify
Maintenance
¶ 31 Based upon the relevant facts and law, we ask and answer
three questions concerning how the 2001 version of section
14
14-10-114(3) and (4) and subsection 122(1)(a) interact with
subsections 122(2)(a), (b), and (c) for the purposes of resolving this
appeal.
¶ 32 Do Subsections 122(2)(a), (b), and (c) Create a Reason — Good
Faith Retirement — That Automatically Terminates a Payor’s Duty to
Pay Maintenance?
¶ 33 We answer this question “no.”
¶ 34 To remind the reader, when discussing retirement, subsection
122(2)(b) creates a “rebuttable presumption” that a payor who
retires “after reaching full retirement age” has retired in “good
faith.” Subsection 122(2)(c) adds a definition of “full retirement
age.”
¶ 35 “[W]e ‘must read and consider the statutory scheme as a whole
to give consistent, harmonious[,] and sensible effect to all its parts.’”
People v. Stellabotte, 2018 CO 66, ¶ 32 (quoting Martin v. People, 27
P.3d 846, 851 (Colo. 2001)). When we look at the entirety of
subsection 122(2), we see that it deals with the decision to
terminate “the obligation to pay future maintenance.” A court
therefore considers the rebuttable presumption found in subsection
122(2)(b) when deciding to terminate the obligation.
15
¶ 36 But it is also clear from the statutory language that this
rebuttable presumption is not conclusive on the question of
whether the court should terminate the payor’s maintenance
obligation. Subsection 122 does not state that the court “shall” or
“must” terminate a payor’s maintenance obligation if the payor
establishes that he or she is entitled to the rebuttable presumption.
¶ 37 Because the presumption is rebuttable, the spouse who is
receiving maintenance must have the opportunity to rebut the
presumption. “Rebuttable presumptions have a limited purpose.”
Krueger v. Ary, 205 P.3d 1150, 1154 (Colo. 2009). They “(1) shift[]
the burden of going forward to the party against whom it is raised,
and (2) if that burden is not met, establish[] the presumed facts as a
matter of law.” Id.¶ 38 Once the payor satisfies the rebuttable presumption created
by subsection 122(2)(b), the presumption shifts the burden of going
forward to the recipient to show that the payor’s decision to retire
was not made in good faith. If the recipient does not meet this
burden, then the court will presume, as a matter of law, that the
payor’s decision to retire was made in good faith. Looking to Swing,
we see that “good faith” means that the retirement decision was not
16
affected by the ulterior motive of voluntary unemployment or
underemployment, as a means to reduce or eliminate a
maintenance obligation. 194 P.3d at 501.
¶ 39 Do Subsections 122(2)(a), (b), and (c) Merely Set Out a Factor —
Good Faith Retirement — That a Court Must Consider When Deciding,
Under Subsection 122(1)(a), Whether Circumstances Have Changed
in Such a Substantial and Continuing Way as to Make the Terms of
the Existing Maintenance Order Unfair?
¶ 40 Looking at the language of these subsections together, we
conclude that the answer to this second question is generally “yes.”
¶ 41 As we point out above, subsection 122(1)(a) tells courts that,
when deciding whether to modify a maintenance order, they must
decide whether circumstances have changed in such a substantial
and continuing way as to make the existing terms of the
maintenance order unfair. A payor’s decision to retire could,
indeed, be such a factor. But it is only one factor among potentially
many because “the court must examine all circumstances pertinent
to an initial maintenance award, including all relevant
circumstances of both parties” under the 2001 version of section
14-10-114(4). In re Marriage of Kann, 2017 COA 94, ¶ 73; Nelson,
17
¶ 26. (When addressing this issue for cases filed after the 2013
amendments, courts should look to section 14-10-114(3).)
¶ 42 To determine if the parties’ changed circumstances warrant
modification, the court must examine them as if it were awarding
maintenance for the first time under section 14-10-114. Nelson,
¶ 26. The party seeking to modify maintenance carries a heavy
burden of showing that the changed circumstances warrant
modification. Kann, ¶ 74. If that party makes the required
showing, it is within the court’s discretion to modify the
maintenance order to meet the needs and abilities of the parties.
Ward, 740 P.2d at 20; Nelson, ¶ 28.
¶ 43 In other words, if a payor asks a court to modify or to
terminate a maintenance obligation because he or she intends to
retire, then the court should follow a general rule. First, applying
subsections 122(b) and (c), it should decide whether the payor’s
decision to retire was made in good faith. Second, it should then
incorporate its findings concerning the payor’s decision to retire as
one of the factors to consider in deciding whether, under subsection
122(1)(a), circumstances have changed in such a substantial and
continuing way as to make the original order unfair. In doing so, it
18
must also consider the factors listed in the 2001 version of section
14-10-114(3) and (4).
¶ 44 We therefore conclude that the trial court erred because it did
not apply the general rule in this case. Its order treated husband’s
good faith decision to retire as conclusive in resolving his motion to
terminate maintenance. The order did not address the subsection
122(1)(a) question of whether husband’s retirement and declining
health were continuing and substantial changed circumstances
that rendered his maintenance obligation unfair. And it did not
consider husband’s and wife’s needs and abilities, as required by
the 2001 version of section 14-10-114(3) and (4). See Nelson,
¶¶ 26, 28; Swing, 194 P.3d at 499 (observing that the magistrate
made extensive findings on the parties’ financial circumstances
before modifying maintenance); Rose, 134 P.3d at 561; In re
Marriage of Caufman, 829 P.2d 501, 502 (Colo. App. 1992).
¶ 45 We reverse the trial court’s order and remand this case to the
court because of this error. On remand, the court shall consider
husband’s good faith retirement as a factor in deciding whether,
under subsection 122(1)(a), circumstances have changed in such a
substantial and continuing way as to make the existing terms of
19
husband’s maintenance obligation unfair. While doing so, the court
shall consider the factors found in the 2001 version of section
14-10-114(3) and (4) concerning husband’s and wife’s needs and
abilities.
¶ 46 What Happens to This General Rule If a Separation Agreement
Reserves Jurisdiction?
¶ 47 We conclude that such language might establish an exception
to the general rule. But the boundaries of the exception are
established by the specific language of the separation agreement.
And, in this case, the separation agreement did not reserve
jurisdiction for the trial court to consider husband’s decision to
retire or his declining health.
¶ 48 If, at the time of permanent orders, an important future
contingency exists that a court can resolve in a reasonable and
specific time, the court may reserve jurisdiction to modify
maintenance under section 14-10-114. In re Marriage of Folwell,
910 P.2d 91, 93 (Colo. App. 1995). To do so, the court must (1)
explicitly state its intent to reserve jurisdiction; (2) describe the
future event upon which the reservation of jurisdiction is based;
and (3) set forth a reasonably specific future time within which
20
maintenance may be considered under section 14-10-114. Folwell,
910 P.2d at 93.
¶ 49 If the court does not properly reserve jurisdiction, it can only
modify maintenance under the parameters set out under subsection
122(1)(a). See id. “[I]f the . . . court merely reserves jurisdiction for
modification ‘as provided by law,’ or fails to establish a legal
standard in its order, the statutory requirements of changed
circumstances and [unfairness]” in subsection 122(1)(a) “also
apply.” Caufman, 829 P.2d at 502.
¶ 50 In this case, although the separation agreement mentioned
husband’s retirement, its language did not reserve jurisdiction to
the court concerning husband’s decision to retire or his declining
health, or state that husband’s good faith retirement or declining
health would automatically terminate his obligation to pay future
maintenance to wife. Rather, the agreement identified two events —
a worsening of wife’s medical condition that interfered with her
ability to work full time or a substantial increase in her medical
costs — as the basis for the court’s reserved jurisdiction.
¶ 51 But husband did not ask the court to terminate his
maintenance obligation on the basis of either of these events; he
21
relied, instead, on his own health complications and on his
anticipated retirement. Section 14-10-114 therefore did not imbue
the trial court with jurisdiction to modify or terminate husband’s
maintenance obligation. See Folwell, 910 P.2d at 93 (by identifying
husband’s retirement as a specific event, district court properly
retained jurisdiction to modify maintenance under section
14-10-114 when husband retired). As a result, we disagree with
wife’s contention that the separation agreement reserved
jurisdiction to the district court to modify maintenance under
section 14-10-114 upon husband’s retirement. See Folwell, 910
P.2d at 93.
VI. Magistrate’s Ruling Deeming Husband’s Motion Confessed
¶ 52 Wife also contends that the magistrate erred when he found
that wife had confessed husband’s motion to terminate
maintenance. Because the district court considered wife’s response
before ruling on her C.R.M. 7(a) petition, and because we have
reversed the order terminating maintenance and remanded the case
for further proceedings, we will not address this contention.
22
VII. Wife’s Request for Appellate Attorney Fees
¶ 53 Wife asks that we award her appellate attorney fees under
section 14-10-119. She contends that husband has substantially
greater financial resources than she does to litigate this appeal.
Because the trial court is better equipped to resolve the factual
issues regarding the parties’ current financial circumstances, we
remand wife’s request to the trial court. See Kann, ¶ 84.
¶ 54 We reverse the trial court’s order terminating husband’s
maintenance obligation, and we remand the case to the trial court
to determine (1) whether husband’s circumstances have changed in
such a substantial and continuing way as to make the existing
terms of husband’s maintenance obligation unfair; and (2) wife’s
request for appellate attorney fees under section 14-10-119.
JUDGE HAWTHORNE and JUDGE TOW concur.
23