20CA0698 Marriage of Bowers 11-10-2021
COLORADO COURT OF APPEALS
Court of Appeals No. 20CA0698
Jefferson County District Court No. 18DR30961
Honorable Christie A. Bachmeyer, Judge
In re the Marriage of
Kimberly W. Bowers,
Appellee,
and
Larry D. Bowers,
Appellant.
JUDGMENT AFFIRMED AND CASE
REMANDED WITH DIRECTIONS
Division I
Opinion by JUDGE DAILEY
Dunn and Kuhn, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced November 10, 2021
Colorado Divorce Law Group, LLC, Brandi M. Petterson, Littleton, Colorado, for
Appellee
The Harris Law Firm, PLLP, Katherine O. Ellis, Denver, Colorado, for Appellant
1
¶ 1
In this dissolution of marriage proceeding between Larry D.
Bowers (husband) and Kimberly W. Bowers (wife), husband appeals
the property division and attorney fee provisions of the permanent
orders. We affirm the judgment and remand the case to the district
court to determine wife’s request for appellate attorney fees under
section 14-10-119, C.R.S. 2021.
I. Relevant Facts
¶ 2
The parties married in 1998 and separated in November 2018.
One month later, wife petitioned to end the marriage.
¶ 3
In March 2020, following an evidentiary hearing, the district
court dissolved the marriage and entered permanent orders. The
court made the following findings:
Husband’s testimony “was contradictory and not credible.”
Wife was a “credible and accurate reporter.”
In 2017, the parties acquired a business, Stonewall Lodge
and RV park (Stonewall), which could not be valued. The
business’s real property, however, had a marital value of
$425,872.
Since the parties’ separation, husband operated Stonewall
on his own.
2
“No evidence of the total proceeds or revenues earned by
Stonewall in 2019 were presented by [h]usband, even
though he was the only party privy to the documentation
necessary to provide evidence of business income.”
Husband did not provide any evidence of Stonewall’s 2018,
2019, or ongoing expenses. And he failed to show that
$50,800 in credit card charges in 2019 were for business
expenses.
Husband was paying personal expenses through the
business.
Husband was earning $11,000 per month from Stonewall.
Wife took out a loan from her mother in the amount of
$19,463 to cover attorney fees and living expenses.
Wife was entitled to maintenance in the amount of $361 per
month for a minimum of ten years.
Wife requested a larger share of the marital estate instead of
the presumptive amount of maintenance.
Husband dissipated $88,522 in marital funds but “the exact
amount is difficult to value due to [his] lack of full
disclosure.”
3
Husband needlessly expanded the scope of the litigation by
willfully violating discovery orders and consequently
increased the amount of wife’s attorney fees and costs.
Wife already paid $34,026 in attorney fees and costs and
had an outstanding balance of $7,617.
¶ 4
From those findings, the district court (1) awarded Stonewall
along with its real property to husband; (2) allocated to wife the
loan from her mother; (3) granted wife a disproportionate share of
the marital estate in lieu of maintenance; (4) sanctioned husband
$12,000 for reimbursement of wife’s paid attorney fees and costs;
and (5) directed husband to pay approximately 63% of wife’s
outstanding attorney fees and costs under section 14-10-119. In
the following table, we have summarized the court’s overall property
division:
Marital Asset
Marital Value
Wife’s Portion
Husband’s
Portion
Stonewall Real
Property
$425,872
$425,872
Marital
Residence
$55,598
$55,598
Vehicles
$28,257
$4,665
$23,592
Bank Accounts
$51,078
$8,744
$42,334
Retirement
Accounts
$872,493
$843,595
$28,898
4
Husband’s
Dissipation
$88,523
$88,523
Personal
Property
$2,000
$1,250
$750
Debts
($54,891)
($54,891)
TOTAL
$1,468,930
$803,363
(55%)
$665,567
(45%)
Husband now appeals.
II. Property Division
¶ 5
Husband contends, for several reasons, that the district court
erred in dividing the marital estate. We reject each in turn.
A. Legal Standards
¶ 6
A district court must divide the marital property in such
proportions as it deems just. § 14-10-113(1), C.R.S. 2021; In re
Marriage of LaFleur, 2021 CO 3, ¶ 62; In re Marriage of Wright, 2020
COA 11, ¶ 3 (property division does not have to be equal, only
equitable).
¶ 7
When dividing marital property, the district court considers all
relevant factors, including, as pertinent here, each spouse’s
contribution to the acquisition of the property. See § 14-10-
113(1)(a).
¶ 8
The weighing of the section 14-10-113(1) factors is within the
district court’s discretion, and it need not make specific findings as
5
to each factor so long as its findings indicate which factors it found
persuasive. See In re Marriage of Powell, 220 P.3d 952, 959 (Colo.
App. 2009).
¶ 9
The district court has great latitude to equitably divide marital
property based on the facts and circumstances of the case, and we
will not disturb its decision absent a clear abuse of discretion. In re
Marriage of Balanson, 25 P.3d 28, 35 (Colo. 2001); see In re
Marriage of Hunt, 909 P.2d 525, 538 (Colo. 1995) (“[A]n appellate
court must not disturb the delicate balance achieved by the
[district] court in division of property . . . unless there has been a
clear abuse of discretion.”).
¶ 10
The district court abuses its discretion when its decision is
manifestly arbitrary, unreasonable, or unfair, or based on a
misapplication of the law. In re Marriage of Young, 2021 COA 96, ¶
7. And we will not disturb the court’s factual findings unless they
are so clearly erroneous as to find no support in the record. Van
Gundy v. Van Gundy, 2012 COA 194, ¶ 12.
B. Discussion
1. Husband’s Contributions During the Marriage
6
¶ 11
To begin, husband asserts that the district court inequitably
divided the marital estate because it did not consider his
contributions during the marriage. We disagree.
¶ 12
True, the district court did not make specific findings
concerning husband’s contributions during the marriage. § 14-10-
113(1)(a). But the court did not have to. See Powell, 220 P.3d at
need only enter findings on the material and ultimate facts of the
case. The trial court need not assert in detail which propositions
are accepted and which are rejected, but may simply state that the
evidence supports or repudiates a claim or defense.”).
¶ 13
The district court did state, however, that it considered all the
testimony and evidence presented at the permanent orders hearing.
As a result, we may presume that the court was aware of and
considered the largely undisputed evidence regarding husband’s
contributions, including (1) construction skills and labor, along
with funds, on two former residences, which yielded higher sale
prices; (2) care of wife’s mother while she lived with the parties; (3)
financial support to help wife when she retired early; (4) the
renovation projects plus mortgage payments on the marital
7
residence; and (5) efforts in maintaining Stonewall and its real
property since the parties’ separation. See In re Marriage of Hatton,
160 P.3d 326, 329 (Colo. App. 2007) (appellate court may presume
that the district court considered all the evidence before it); see also
In re Marriage of Udis, 780 P.2d 499, 504 (Colo. 1989).
¶ 14
We conclude that, although the district court did not explicitly
address each of husband’s contributions, it sufficiently considered
them as part of its equitable division of the marital estate.
2. Stonewall Real Property
¶ 15
As we understand it, husband argues that the property
division “unfairly prejudiced” him because the district court
mistakenly assumed that he could liquidate or sell the Stonewall
real property and still earn an income from the business. We are
not persuaded.
¶ 16
We first address wife’s claim that husband failed to preserve
this argument for appeal.
¶ 17
Generally, an issue cannot be raised for the first time on
(Colo. App. 2008). To preserve an issue for appeal, it must be
presented in such a way that the district court has an opportunity
8
to rule on it. Berra v. Springer & Steinberg, P.C., 251 P.3d 567, 570
(Colo. App. 2010).
¶ 18
However, a party need not object to findings rendered by the
district court after a permanent orders hearing to preserve a
challenge to them for appeal. See C.R.C.P. 52 (“Neither requests for
findings nor objections to findings rendered are necessary for
purposes of review.”); see also People in Interest of D.B., 2017 COA
139, ¶ 30 (“[A] party is not required to object to the [district] court’s
findings in the [district] court to preserve a challenge to those
findings.”); In re Marriage of Rooks, 2016 COA 153, ¶ 50, rev’d on
other grounds, 2018 CO 85. So, the issue is preserved, and we will
proceed to consider the merits of husband’s argument.
¶ 19
The parties asked, and the district court agreed, that
Stonewall and its real property be allocated to husband. In its
overall property division, the court considered, among other things,
that the real property “can be liquidated.” The court further found
that husband’s income is derived solely from Stonewall, which
became a basis for the unequal property division in lieu of
maintenance.
9
¶ 20
In our view, husband misconstrues the district court’s order.
The court did not, as he seems to argue, require him to liquidate
Stonewall’s real property and lose income therefrom. Indeed, there
is nothing in the record to suggest that he had any intention of
selling the property or the business. Rather, we agree with wife
that the court’s order merely recognizes that he has the option to
sell the property, reinvest the proceeds, and still produce an
income. And the liquidity of the asset was one of many relevant
factors the court considered in making an equitable division.
¶ 21
For all those reasons, we cannot see how husband is
prejudiced by the court’s findings regarding Stonewall and its real
property.
3. Wife’s Mother’s Loan
¶ 22
Next, husband argues that the district court erred in
classifying money wife received from her mother as a marital debt
and not a gift. Wife asserts, and we agree, that he did not preserve
this specific argument in the district court either in his pre-trial
statement or at the permanent orders hearing. See Core-Mark
Midcontinent Inc. v. Sonitrol Corp., 2016 COA 22, ¶¶ 26-27 (only
specific arguments made to the district court are preserved for
10
appeal); Berra, 251 P.3d at 570. True, when asked by the district
court what he wanted to do with wife’s “loan” from her mother, he
answered that “[s]he’s responsible for that.” His response, however,
cannot be taken as specifically asking the court to treat the debt as
a gift and to exclude it from the property division. So, we decline to
address the argument now. See In re Marriage of Crouch, 2021 COA
3, ¶ 13 (declining to consider argument raised for the first time on
appeal).
¶ 23
Husband also argues that the district court’s findings are
inadequate regarding the validity or existence of wife’s mother’s
loan. We disagree because the basis for the court’s ultimate
determination is sufficiently explicit. See Moeller v. Colo. Real
Estate Comm’n, 759 P.2d 697, 703 (Colo. 1988) (“Though the
factual findings of the [district] court are brief and undetailed, we
are able to determine the basis of the . . . court’s judgment from its
findings and a review of the record.”); Manor Vail Condo. Ass’n v.
Town of Vail, 604 P.2d 1168, 1172 (Colo. 1980) (“The brevity of
findings and conclusions alone does not necessarily determine their
validity.”).
11
¶ 24
The record reflects that during the parties’ separation, wife
borrowed $19,463 from her mother to help pay her attorney fees
and living expenses. Wife testified that the loan and a specific
payment plan was memorialized in a promissory note, a copy of
which was admitted as an exhibit. She also testified that she had
intended to repay the loan and that throughout the marriage, the
parties had paid off several loans from her mother.
¶ 25
For his part, husband offered no evidence contradicting wife’s
testimony. And we note that the district court specifically found
wife more credible overall than husband.
¶ 26
Because the record, including the district court’s credibility
finding, supports its determination that the loan was a marital debt
subject to division, we discern no error. See In re Marriage of Farr,
228 P.3d 267, 270 (Colo. App. 2010) (determining the credibility of
the witnesses and resolving conflicting evidence are within the
province of the district court, and an appellate court will not disturb
those findings on appeal); see also In re Marriage of Amich, 192 P.3d
422, 424 (Colo. App. 2007) (district court can believe all, part, or
none of a witness’s testimony, even if uncontroverted).
12
¶ 27
Even if we assume the district court erred by including the
$19,463 loan in the marital det, we conclude that any such error is
harmless. This is so because the alleged error affects approximately
1% of the parties’ sizable $1,469,313 marital estate. See Balanson,
25 P.3d at 36; see also In re Marriage of Zappanti, 80 P.3d 889, 893
(Colo. App. 2003) (“Errors by the [district] court in determining the
property division are reversible only when overall they affect the
parties’ substantial rights.”); C.R.C.P. 61.
4. Unequal Property Division in Lieu of Maintenance
¶ 28
The district court, in lieu of maintenance, awarded an unequal
property division in wife’s favor. Thus, the issues of maintenance
and property division are interrelated. Husband challenges the
property division on the basis that the record does not support the
court’s determination that wife was entitled to maintenance. We
are not persuaded.
¶ 29
We reject wife’s argument that husband failed to preserve this
contention for appeal. Husband preserved the issue by consistently
testifying that he could not earn $11,000 per month from
Stonewall. And because the court ruled on wife’s entitlement to
13
maintenance, we conclude that the issue is preserved for our
review. See Berra, 251 P.3d at 570.
¶ 30
The law does not compel an award of maintenance. Gleason v.
Gleason, 162 Colo. 212, 215, 425 P.2d 688, 689 (1967). The
district court is encouraged to provide for the financial needs of the
spouses by property disposition rather than an award of
maintenance. In re Marriage of Huff, 834 P.2d 244, 252 (Colo.
1992). Section 14-10-114(3)(f), C.R.S. 2021, allows a district court
to award additional marital property to the recipient spouse or
otherwise adjust the marital property distribution or debt to
alleviate the need for maintenance.
¶ 31
The district court determined that wife was entitled to monthly
maintenance in the amount of $361 for a period of at least ten
years. The court based its determination, in part, on its finding
that husband’s earning capacity from Stonewall was $11,000 per
month. It then awarded wife more of the marital estate in lieu of
maintenance.
¶ 32
Husband asserts that the district court’s income finding as to
him is clearly erroneous. Because the record supports the court’s
finding, we decline to disturb it.
14
¶ 33
On his 2019 and 2020 sworn financial statements, husband
reported monthly incomes of $12,509 and $11,000, respectively.
Husband clarified that those figures represent what Stonewall earns
before business expenses are paid. The record reflects that
husband did not provide a full financial background of the
business, nor did he detail its total revenues and expenses. As well,
the record indicates that the business was operated “substantially”
on a cash basis, making its income difficult to verify.
¶ 34
Husband testified that it was “impossible” for him to make
$12,500 per month. He added that he had “never taken a salary” or
a single “penny from the [business].” Yet, he later testified that he
regularly uses the business’s income to pay personal expenses.
¶ 35
The parties’ 2018 federal tax return, on which husband relies,
states that the business earned gross income in the amount of
$12,746 per month (comprising of checks, cash, and credit card
transactions) less expenses of $10,086 per month, leaving a net
income of $2,660 per month. But wife, who the court found
credible, testified that husband had a history of including improper
business expenses. In fact, husband provided no accounting or
15
explanatory testimony for $50,800 in alleged business expenses in
2019.
¶ 36
Given the district court’s finding that husband’s testimony
was contradictory and not credible, his failure to provide supporting
documentation of Stonewall’s revenues and expenses, his
commingling of business and personal expenditures, and wife’s
credible testimony regarding his improper business expenses, we
find no basis to disturb his reported monthly income of $11,000.
See Van Gundy, ¶ 12; see also Farr, 228 P.3d at 270; In re Marriage
of Rose, 134 P.3d 559, 561 (Colo. App. 2006) (appellate court is
bound by the district court’s factual findings supporting its
maintenance determination, including its income findings, unless
such findings are clearly erroneous).
¶ 37
Nor are we persuaded by husband’s assertion that the district
court erred by not making the required findings in determining
whether wife was entitled to maintenance under section 14-10-114.
¶ 38
Section 14-10-114(3) sets forth a specific process for the
district court to follow when considering a maintenance request. In
re Marriage of Herold, 2021 COA 16, ¶ 24. As a relevant here,
under section 14-10-114(3)(a)(I), the court must first make initial
16
findings concerning each party’s income, the marital property
apportioned to each, their financial resources, and the reasonable
financial needs during the marriage. Wright, ¶ 14.
¶ 39
After making these findings, the district court considers the
advisory guideline amount and term of maintenance under section
14-10-114(3)(b) and the factors under section 14-10-114(3)(c).
§ 14-10-114(3)(a)(II)(A)-(B); see Wright, ¶ 15.
¶ 40
The district court’s final step is to determine whether the
requesting spouse lacks sufficient property, including marital
property awarded, to provide for his or her reasonable needs and is
unable to support himself or herself through appropriate
employment. § 14-10-114(3)(a)(II)(C), (3)(d); see Wright, ¶ 16 (noting
that “[t]he statute makes clear” that the court is to consider this
issue only after it has made the required initial findings under the
other provisions of section 14-10-114(3)).
¶ 41
The district court here made sufficient findings to support its
determination that wife was entitled to maintenance:
Husband was earning $11,000 per month, operating
Stonewall. See § 14-10-114(3)(a)(I)(A), (C), (c)(II), (V).
17
Wife, a retired schoolteacher, had a PERA account in pay
status from which she was receiving approximately $6,500
per month. See § 14-10-114(3)(a)(I)(A), (C), (c)(I), (V).
“Husband will receive [Stonewall’s real property] which can
be liquidated [and] an up-front payment for his interest in
[w]ife’s PERA . . . whereas wife does not receive the same
benefit . . . but rather, can only receive her value over time.”
See § 14-10-114(3)(a)(I)(B)-(C), (c)(IV).
“Wife will leave the marriage with debt and a monthly
income and insufficient liquid assets to purchase a new
home for herself at 63 years of age; . . . the exact amount
dissipated by [h]usband is difficult to value due to a lack of
full disclosure; [and] . . . [w]ife has significant financial
obligations that she must repay whereas [h]usband failed to
provide any documentation of current marital debts that
would be legitimate for the [c]ourt to consider.” See § 14-
10-114(3)(a)(I)(B)-(D), (c)(I), (IV), (IX), (XIII).
The parties were married for twenty-two years. See § 14-
10-114(3)(c)(VII).
18
Wife was dependent on others to meet her financial needs.
See § 14-10-114(3)(c)(I).
Wife has “several medical conditions for which she currently
receives treatment, or for which she will receive treatment.”
See § 14-10-114(3)(c)(IX).
Husband was not credible while wife was. See § 14-10-
114(3)(c)(XIII).
The statutory guidelines suggested that wife be awarded
$361 per month for at least ten years. See § 14-10-
114(3)(b).
Wife would meet the threshold for maintenance. § 14-10-
114(3)(a)(II)(C), (3)(d).
¶ 42
Husband points out that the district court did not make
express findings on the parties’ lifestyle during the marriage and
whether either party had historically earned more or less money
than they were earning at the time of the permanent orders. See §
14-10-114(3)(c)(III), (VI). But it was not required to do so. See
Wright, ¶ 20 (district court need not make explicit findings on the
factors under section 14-10-114(3)(c) so long as its order gives the
appellate court a clear understanding of its basis); see also In re
19
Marriage of Lee, 781 P.2d 102, 105 (Colo. App. 1989) (when
awarding maintenance, the district court need not explain how it
weighed the parties’ evidence).
¶ 43
Because the district court made the necessary findings under
section 14-10-114(3)(a)(I) and considered the advisory guideline
amount and term of maintenance under section 14-10-114(3)(b)
along with the relevant factors under section 14-10-114(3)(c), we
discern no error regarding maintenance.
III. District Court Attorney Fees and Costs
¶ 44
Last, husband contends that the district court committed
“legal error” when it included wife’s paid attorney fees and costs as
part of the property division under section 14-10-113. We disagree.
¶ 45
We reject wife’s assertion that husband failed to preserve this
contention. Husband could not have raised this issue until after
the court made its findings and apportioned the attorney fees in the
way that it did. See C.R.C.P. 52; see also D.B., ¶ 30.
¶ 46
The record reflects that wife incurred and paid $34,026 in
attorney fees and costs. The record further shows that she paid
that amount using a credit card and the loan from her mother. We
discern no legal error in the district court’s allocation of wife’s paid
20
litigation costs as debts in the marital estate. When litigation costs
have already been paid, the court is permitted to allocate the debt
for such costs in the property division. See In re Marriage of
Burford, 26 P.3d 550, 559 (Colo. App. 2001).
¶ 47
In his summary of the argument and later in his argument
heading, husband asserts that the district court erred in double
counting wife’s attorney fees and costs in the property division, first
as part of the marital debt and again when it ordered him to
reimburse her $12,000 as a sanction. But he does not further
develop this assertion, so we decline to address it. . See In re
Marriage of Zander, 2019 COA 149, ¶ 27, aff’d, 2021 CO 12
(appellate court will not consider an argument not supported by any
meaningful legal analysis); Barnett v. Elite Props. of Am., Inc., 252
P.3d 14, 19 (Colo. App. 2010) (“We will not consider a bald legal
proposition presented without argument or development.”).
IV. Appellate Attorney Fees and Costs
¶ 48
Wife asks for her appellate attorney fees under section 13-17-
102(4), C.R.S. 2021, asserting that husband’s appeal lacks
substantial justification. Though husband did not succeed, we do
not consider his contentions to be frivolous. See Mission Denver Co.
21
v. Pierson, 674 P.2d 363, 365 (Colo. 1984) (“Standards for
determining whether an appeal is frivolous should be directed
toward penalizing egregious conduct without deterring a lawyer
from vigorously asserting his client’s rights.”). Therefore, we deny
her request on this basis.
¶ 49
Arguing that the parties’ financial resources are disparate, wife
also requests her appellate attorney fees pursuant to section 14-10-
119. Because the district court is better equipped to resolve the
factual issues concerning the parties’ current financial
circumstances, we remand this issue for its consideration. See In re
Marriage of Alvis, 2019 COA 97, ¶ 30; C.A.R. 39.1.
¶ 50
Appellate costs will be assessed pursuant to C.A.R. 39.
V. Conclusion
¶ 51
The judgment is affirmed. The case is remanded for the
district court to consider wife’s request for appellate attorney fees
under section 14-10-119.
JUDGE DUNN and JUDGE KUHN concur.