In re the Marriage of Nelson , 2012 Colo. App. LEXIS 1919 ( 2012 )

Opinion by

Judge NEY.^*

T1 In this post-dissolution of marriage proceeding, James H. Nelson (husband) appeals from the district court's order extending the duration of maintenance payable to Gricela G. Nelson (wife) We dismiss the appeal in part and affirm.

I. Background

12 Commencing in November 2004, husband was ordered to pay wife $1932 in monthly maintenance for five years. A few days after the five years expired, wife moved to modify maintenance, citing an inability to continue to be employed due to illness.

T3 Almost two years later, the district court held a hearing on wife's motion. At the conclusion of the hearing, wife requested an award of attorney fees under section 14-10-119, C.R.S.2012%. Husband objected that he had had no prior notice of the request. The trial court expressed that it was "not, as part of [its] findings and orders right now, going to order attorney's fees," and it suggested that wife should submit a separate motion for fees to give husband an opportunity to respond. The court then delayed entry of its order pending proposed findings from the parties.

{4 Shortly thereafter, wife moved for attorney fees under section 14-10-119. Husband again objected, and he sought fees and costs under section 13-17-102, C.R.S.2012, arguing wife's motion was frivolous, groundless, and vexatious.

T5 One month later, the district court entered its order granting wife's motion to modify support. It reinstated the original award of maintenance ($1982 per month), until the death of either party, wife's remarriage, or her sixty-fifth birthday. It also made the order retroactive to the filing date, finding that husband owed wife an additional $40, 572 for maintenance aceruing from November 2009.

{ 6 Husband's appeal followed.

T7 The district court has not yet ruled on the motions related to attorney fees.

II. Jurisdiction

T8 At the outset, we address our Jurisdiction over this appeal.

T9 Following briefing, this division requested supplemental responses from the parties addressing the applicability of In re Marriage of Hill, 166 P.3d 269, 272 (Colo.App.2007), to post-decree modification of maintenance proceedings. Specifically, we ordered the parties to address whether the principle announced in Hill deprived us of jurisdiction over husband's appeal, given wife's outstanding motion for attorney fees. Both parties argued that ZZill did not deprive us of jurisdiction of this appeal. Upon consideration of those responses, and the applicable legal authorities, we agree that we have Jurisdiction.

110 A judgment is final and therefore appealable if it disposes of the entire litigation on the merits, leaving nothing for the court to do except to execute judgment. See Civil Service Comm'n v. Carney, 97 P.3d 961, 967 (Colo.2004). When an order ends litigation on the merits, but an issue remains to be decided, the remaining issue does not prevent finality when its resolution will not change or moot the determinations contained in the order. Baldwin v. Bright Mortgage Co., 757 P.2d 1072, 1073 (Colo.1988).

T 11 In Hill, another division of this court resolved the finality of permanent orders in a dissolution of marriage proceeding. That division decided that a district court at permanent orders must address several intertwined issues, including parental responsibilities, disposition of property, spousal support, child support, and attorney fees, which if awarded, must be reduced to a sum certain. 166 P.3d at 272. Unless and until the district court fully resolves each of those intertwined issues, including attorney fees, the permanent orders are not final or appealable. Id.

T 12 The rationale underlying Hill is that payment of attorney fees under section 14-10-119 is an "integral and substantive part of equitably disposing of the parties' assets and liabilities and dissolving the marriage." Hill, 166 P.3d at 272.

113 However, when considering a post-decree motion to modify, the district court is no longer concerned with "equitably disposing of the parties' assets and liabilities." See id. At the time of a modification, the assets and liabilities have already been divided, and the court has no continuing duty to dissolve the marriage. Thus, the only issue before the court is whether there has been "a showing of changed cireumstances so substantial and continuing as to make [those] terms unfair." § 14-10-122(1)(a), C.R.S.2012; see also In re Marriage of Aldinger, 813 P.2d 836, 840 (Colo.App.1991) ("A motion to modify is not considered under the same standard as an original award. ...").

" 14 Therefore, a district court could fully resolve the merits of a motion to modify maintenance by looking solely at these limited criteria. § 14-10-122(1)(a); Aldinger, 813 P.2d at 840 (motions to modify must be considered under a more limited standard than an original award, because otherwise section 14-10-122 would have no meaning and parties would file motions to modify each time there is a change in their earning ability or needs).

115 In contrast, an attorney fee request entails a much broader consideration. A district court resolving a fee request under section 14-10-119 must consider the parties' relative financial status, which requires consideration of their relative incomes, assets, and liabilities. See In re Marriage of Aldrich, 945 P.2d 1370, 1378 (Colo.1997).

116 Resolution of both motions may involve the consideration of the same evidence. See In re Marriage of Udis, 780 P.2d 499, 503 (Colo.1989); In re Marriage of Weibel, 965 P.2d 126, 129 (Colo.App.1998). However, the resolution of an attorney fee request will not change or moot the determination of whether a substantial and continuing change justifies modification of the maintenance award. See Baldwin, T57 P.2d at 1078. Therefore, an attorney fee request sought in a post-deeree modification motion is ancillary to the motion itself; it is no longer "an integral and substantive part" of the proceeding.

€ 17 While it may promote judicial economy to resolve the issues simultaneously given the similarity in evidence, see Hill, 166 P.8d at 272 (commenting that it promotes judicial economy to review all matters incident to a dissolution of marriage), we think that decision is best left to the district court in light of the facts and cireumstances of each case. And where, as here, the district court decides to resolve the attorney fee request independently of the motion to modify maintenance, such a decision should not prohibit husband's timely appeal from the modification order that has been fully resolved on the merits.

118 Accordingly, we decline to extend Hill to post-decree modification of maintenance cases. We conclude instead that an order fully resolving a motion to modify maintenance is a final appealable order, notwithstanding an unresolved request for attorney fees.

19 Therefore, here, we have jurisdiction over husband's appeal.

III. Permission to File

120 In light of this conclusion, we next address husband's contention that the district court erred when it granted wife leave to file a post-hearing motion for attorney fees under section 14-10-119. This court lacks jurisdiction to consider this contention because there is no final appealable order as to wife's motion for fees. In fact, there is no order for us to review, as the district court has not yet ruled on wife's motion. Thus, the issue is not properly before us on appeal. See C.A.R. 4(a) (appeals may only be taken as to judgments, decrees, or orders as set forth in C.R.C.P. 58); C.R.C.P. 58(a) (a judgment or order is entered when it is reduced to writing, signed, and dated by the court). We therefore dismiss this part of the appeal. See, eg., Rogers v. Tovrea, 484 P.2d 1246, 1246 (Colo.App.1971) (not published pursuant to C.A.R. 35(f)) (order granting motion to set aside judgment and file an amended answer brief is not a final, appealable order; onee judgment enters, the propriety of the order vacating the original judgment can be reviewed on appeal).

IV. Income

121 Husband next contends the district court erred when it determined his income. In particular, he argues that section 14-10-114(2)(b)(IV)(A), C.R.S.2012, requires that the court determine a party's gross income for maintenance in the same way it determines gross income for child support. We disagree.

122 Section 14-10-114(2)(b)(IV)(A) provides that the term "income" shall have the meaning set forth in section 14-10-1158), C.R.S.2012. Section 14-10-1158), in turn, provides that a party's gross income must be determined according to the guidelines in section 14-10-115(5), C.R.S.2012. As pertinent here, the district court's determination of husband's income under the child support guidelines would have required the court to exclude husband's income from his second full-time job. See § 14-10-115(5)(a)(II)(C), C.R.S.2012 (gross income does not include income from additional jobs that result in the employment of the obligor more than forty hours per week or more than what would otherwise be considered to be full-time employment).

123 However, unlike child support, which is determined by a precise mathematical equation using the parents' incomes, maintenance is determined by a discretionary balancing of factors. See In re Marriage of Sim, 939 P.2d 504, 506-07 (Colo.App.1997). Importantly, section 14-10-114(4), CRS. 2012, which dictates how permanent maintenance shall be awarded, does not use the term "income." Instead, that section requires the court to consider the "ability [of the party from whom maintenance is sought] to be able to meet his or her needs independently." § 14-10-1l4(4)(a) _ C.R.S.2012. Thus, where, as here, a court is reviewing a modification of permanent maintenance, an obligor-spouse's income is relevant only to the extent it is indicative of the spouse's ability to meet his or her own needs while also meeting the needs of the payee-spouse. See Sim, 989 P.2d at 506-07.

24 We conclude that the district court's consideration of husband's income from his second job did not run afoul of section 14-10-114(2)(b)(IV)(A). Accordingly, we decline to require a recalculation of husband's income under the child support guidelines.

V. Substantial and Continuing Change

125 Husband next contends that the court's conclusion that wife established a substantial and continuing change of cireum-stances was unsupported by the evidence. We disagree.

126 As explained above, maintenance may be modified only upon a showing of changed cireumstances so substantial and continuing as to make the existing terms unfair. $ 14-10-122(1)(a). In making this determination the court is required to examine all cireumstances pertinent to awarding maintenance under section 14-10-114, C.R.S. 2012. In re Marriage of DaFoe, 677 P.2d 426, 427-28 (Colo.App.1983).

127 The determination whether cireum-stances have changed is within the sound discretion of the district court based on the facts presented and, absent an abuse of that discretion, the court's ruling will not be disturbed on review. Further, on appeal, we must construe the evidence in the light most favorable to the prevailing party. In re Marriage of Perlmutter, 772 P.2d 621, 622 (Colo.1989).

128 Onee the movant shows the requisite changed cireumstances, it is within the district court's discretion to modify the decree to meet the needs and abilities of the parties. In re Marriage of Ward, 740 P.2d 18, 20 (Colo.1987).

1 29 Here, wife testified that she had held several jobs since the entry of the original award for maintenance, and that her earnings never exceeded $20,000 for any given job. She testified that because of her age and lack of skill, she was only able to obtain entry-level employment, and that she had been let go from a number of jobs.

130 In addition, wife testified that since the original order, she had been diagnosed with a number of illnesses, including fibro-myalgia. She stated that the fibromyalgia caused constant, major pain throughout her body, gave her sleeping problems and stomach problems, limited her walking, and made her "foggly]" She testified that when the illness "flare[d}," she had to take time off from work. Wife testified that the fibro-myalgia made it hard for her to maintain steady employment, and she believed that the illness was getting worse.

T31 Supporting wife's testimony was the testimony of a rheumatologist and internist who specialized in the practice of arthritis and autoimmune conditions. He testified that fibromyalgia is a neurologic disorder in which patients feel pain in areas where there is no actual physical damage. He testified that he diagnosed wife with fibromyalgia after an exam and history in which she showed the presentation of the disease. He stated that fibromyalgia, in general, made working difficult and could lead to employment issues, because people with fibromyalgia have difficulty with repetitive tasks and their pain could get so bad "they can't do anything." He stated that more than sixty-five percent of fibromyalgia patients did not work, particularly in physical jobs. He testified that wife would likely have similar difficulty holding a job, because her symptoms affected her ability to sleep and work. He opined that while wife's symptoms "wax[ed] and wane[d]," they were chronic and he did not expect her to get better.

132 Other testimony at the hearing showed that husband's income had increased since the time of the original maintenance award because husband was now working a second full-time job. Husband testified, however, that he only took the second job because he needed to pay the original award of maintenance and that, at his age, he did not want to continue to work two jobs. Husband also presented the testimony of a vocational evaluator who opined that wife had the ability to earn more income. Finally, husband elicited testimony that, during the time wife claimed her physical symptoms disrupted her ability to work, she was participating in a bowling league.

33 In reviewing all the evidence, the district court found that wife had established a deterioration of her medical condition not diagnosed at the time of the original award of maintenance that made that prior award unfair. The court was expressly persuaded in this regard by wife's doctor's testimony regarding wife's pain and difficulties in fune-tioning. The district court also made findings regarding the increase in husband's income, noting that his current income did not include his military pay or benefits.

T34 On these findings, the district court determined that wife had met her burden to establish a substantial and continuing change of cireumstances warranting a continuation of her maintenance payment. It thus ordered husband to continue paying wife's maintenance until the death of either party, the remarriage of wife, or wife's reaching sixty-five years of age.

1[ 35 We find no abuse of discretion in this determination. See Perlmutter, 772 P.2d at 622; Ward, 740 P.2d at 20; see also In re Marriage of Caufman, 829 P.2d 501, 505 (Colo.App.1992) (when a district court's order regarding maintenance is supported by competent evidence, it should not be disturbed on review). While there is evidence in the ree-ord that could have supported a different conclusion, we will not substitute our judgment for that of the district court. See Gebhardt v. Gebhardt, 198 Colo. 28, 30, 595 P.2d 1048, 1050 (1979) (an appellate court cannot substitute itself as a finder of fact, and factual findings of the district court will not be disturbed on appeal unless clearly erroneous and not supported by the record).

136 We are cognizant that husband argues wife's illness is not a "changed" circumstance, as she presented evidence of her fibromyalgia at the permanent orders hearing. However, on the record before us we cannot conclude, as husband urges, that the court must necessarily have considered this information when entering permanent orders. Rather, the record establishes only that wife's fibromyalgia was mentioned in the context of her use of husband's military health insurance. There is no indication in the record, either express or implied, that at the time of the original award, the parties or the court considered the effect the illness could have on wife or on her ability to work.

137 We are also cognizant of husband's argument that his increased income is not a sufficient change in cireumstances warranting modification. However, because husband's income was only one factor in the district court's overall determination, we perceive no abuse of discretion. See DaFoe, 677 P.2d at 427-28; see also Udis, 780 P.2d at 503 (whether a modification of maintenance is appropriate requires examination of all relevant ctreumstamces of both parties); cf. In re Marriage of Bowles, 916 P.2d 615, 618 (Colo.App.1995) (mere increases or decreases in earnings do not require the conclusion that the amount of maintenance has become unconscionable).

€88 We therefore decline to disturb the district court's order modifying husband's maintenance obligation to wife.

VI. Retroactivity

139 Husband also contends that the court abused its discretion by making the maintenance modification retroactive to the date wife filed her motion. Again, we disagree.

140 Generally, a modification of maintenance is effective as of the date of the filing of the motion, unless the court finds that it would cause undue hardship or substantial injustice. § 14-10-122(1)(d), C.R.S. 2012. The district court has discretion to determine whether to modify maintenance as of the date the motion was filed. See DaFoe, 677 P.2d at 427-28; In re Marriage of Walsh, 44 Colo.App. 502, 503, 614 P.2d 913, 914 (1980).

141 Here, there was no specific finding that a retroactive application would create a hardship for husband. However, the district court's findings that husband's income had increased, and its notation that his gross income did not include his military pay or benefits, support its apparent conclusion that husband has the ability to pay the retroactive maintenance. See Foster v. Phillips, 6 P.3d 791, 796 (Colo.App.1999) (while it is better practice to make express findings, they may be implicit in a court's ruling); Catron v. Catron, 40 Colo.App. 476, 479, 577 P.2d 322, 324 (1978) (implied findings are sufficient). Accordingly, we do not disturb the district court's decision to order retroactive payments.

VII. Attorney Fees on Appeal

142 We decline to consider husband's request for attorney fees under seetion 18-17-102, in having to respond to wife's post-trial motion. This request is currently pending before the district court. See Estate of Stevenson v. Hollywood Bar & Cafe, Inc., 832 P.2d 718, 721 n. 5 (Colo.1992) ("Arguments never presented to, considered or ruled upon by a trial court may not be raised for the first time on appeal." (emphasis added)).

148 We also decline to consider wife's request for appellate attorney fees under section 14-10-119. Instead, wife may raise the issue in the district court. See Hill, 166 P.3d at 273; see also In re Marriage of Chalat, 112 P.3d 47, 59 (Colo.2005) (entrusting to the district court "the determination of entitlement to or the amount of any attorney fees" and costs on remand (quoting C.A.R.39.5)).

T44 The appeal is dismissed as to wife's post-hearing motion for attorney fees, and the order modifying maintenance is affirmed.

Judge ROMAN concurs. Judge BERNARD dissents.

* Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 53), and § 24-51-1105, C.R.S.2012.