of Callison , 2021 COA 16 ( 2021 )

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
February 11, 2021
2021COA16
No. 19CA2136, Marriage of Callison — Family Law —
Dissolution — Spousal Maintenance
A division of the court of appeals considers whether the
district court may award retroactive temporary maintenance under
section 14-10-114, C.R.S. 2020, which was repealed and reenacted
in 2014. The division concludes that the reenacted maintenance
statute does not prohibit the district court from awarding
retroactive temporary maintenance, and thus, the court may order
retroactive temporary maintenance within its discretion. The
division also concludes that the district court may order retroactive
temporary maintenance for the time in which the spouses resided
together in the same home after the dissolution proceedings were
initiated.
The division concludes, however, that the district court made
insufficient findings in support of its order for retroactive temporary
maintenance. Accordingly, the division reverses the court’s order
and remands the case to the district court for further findings.
COLORADO COURT OF APPEALS 2021COA16
Court of Appeals No. 19CA2136
Douglas County District Court No. 18DR30367
Honorable Robert Lung, Judge
In re the Marriage of
Cynthia Jean Herold,
Appellee,
and
Kenneth Paul Callison,
Appellant.
ORDER REVERSED AND CASE
REMANDED WITH DIRECTIONS
Division II
Opinion by JUDGE ROMÁN
Welling and Brown, JJ., concur
Announced February 11, 2021
Senn Visciano Canges P.C., James S. Bailey, P. Eric Voorheis, Denver,
Colorado, for Appellee
Robinson Waters & O’Dorisio P.C., Langdon J. Jorgensen, Denver, Colorado,
for Appellant
¶1 In this dissolution of marriage proceeding, Kenneth Paul
Callison (husband) appeals the portion of the district court’s
temporary orders awarding retroactive temporary maintenance
under the reenacted temporary maintenance statute to Cynthia
Jean Herold (wife). Addressing a question of first impression, we
conclude that the reenacted maintenance statute does not prohibit
the district court from awarding retroactive temporary maintenance,
and, thus, it’s not an abuse of discretion if a court orders it. We
also hold that the district court may order retroactive temporary
maintenance for the time in which the spouses resided together in
the same home after the dissolution proceedings were initiated.
However, because the district court made insufficient findings in
support of its order, we reverse the court’s order and remand the
case for further findings.
I. Background
¶2 Husband and wife were married at common law for over thirty
years. Almost a year after wife petitioned for the dissolution of their
marriage, the court held a temporary orders hearing to consider,
among other issues, wife’s request for temporary maintenance.
1
¶3 The court found that husband received approximately $50,000
per month in gross income, while wife earned less than $4,000 per
month. It found that the parties had a “lavish lifestyle” during the
marriage, noting that they took trips to Europe, the Bahamas, the
Cayman Islands, Alaska, and Las Vegas; that wife historically had
“no limitation or restriction on her shopping or spending”; and that
she shopped “at the finest stores and [ate] at the finest
restaurants.” The court further found that wife’s standard of living
had dramatically declined, recognizing that she was now “eating at
McDonald’s . . . if she very infrequently eats out” and that she had
“about $100 a month” for shopping. And the court found that
despite the gross disparity in their incomes, husband had given wife
“zero in spousal support.”
¶4 The court then determined that wife was incapable of meeting
her reasonable needs as established during the marriage. It
ordered husband to pay wife $12,000 per month in temporary
maintenance retroactive to the commencement of the dissolution
proceeding, which resulted in husband owing wife $144,000 in
arrearages.
2
II. Standard of Review
¶5 We review an award of temporary maintenance for an abuse of
discretion. See In re Marriage of Rose, 134 P.3d 559, 561 (Colo.
App. 2006); see also In re Marriage of Antuna, 8 P.3d 589, 595
(Colo. App. 2000). A district court abuses its discretion when it
acts in a manifestly arbitrary, unfair, or unreasonable manner, or
when it misapplies the law. See In re Marriage of Kann, 2017 COA
94, ¶ 56. However, we review de novo the district court’s
interpretation and application of the law. See In re Marriage of
Thorstad, 2019 COA 13, ¶ 27; In re Marriage of Vittetoe, 2016 COA
71, ¶ 4.
III. Authority to Award Retroactive Temporary Maintenance
¶6 Husband contends that the district court had no legal
authority to order him to pay retroactive temporary maintenance.
Specifically, he argues that by repealing and reenacting the
maintenance statute in 2014, the legislature eliminated the district
court’s ability to impose retroactive temporary maintenance. We do
not agree.
3
A. Preservation
¶7 Wife first argues that husband did not preserve this issue for
appellate review, and we therefore should not address it. See In re
Estate of Ramstetter, 2016 COA 81, ¶ 12. While a party generally
must make a timely and specific objection before the district court
to preserve an issue for appeal, see Rinker v. Colina-Lee, 2019 COA
45, ¶ 25, wife did not request retroactive temporary maintenance at
or before the temporary orders hearing. Husband thus had no
opportunity to object to an award of retroactive temporary
maintenance or argue that the court lacked the authority to impose
such an award until the court issued its ruling. And “where, as
here, the [district] court rules sua sponte on an issue, the merits of
its ruling are subject to review on appeal, whether timely objections
were made or not.” Id. at ¶ 26.
B. Discussion
¶8 When interpreting a statute, we read and consider the statute
as a whole and interpret it in a manner that gives consistent,
harmonious, and sensible effect to all its parts. Vittetoe, ¶ 4. In
doing so, “we adopt an interpretation that best effectuates the
legislative purposes.” Id.
4
¶9 Before 2014, the maintenance statute created a rebuttable
presumption in favor of temporary maintenance when the parties
earned less than a certain income, and it directed the court to begin
an award for temporary maintenance “at the time of the parties’
physical separation or filing of the petition or service upon the
respondent, whichever occurs last.” § 14-10-114(2)(c), C.R.S. 2013.
¶ 10 The legislature removed these provisions on temporary
maintenance when it repealed and reenacted the maintenance
statute in 2014. Ch. 176, sec. 1, § 14-10-114, 2013 Colo. Sess.
Laws 639.
¶ 11 Contrary to husband’s argument, this repeal does not restrict
the court’s authority. It has been recognized that the reenactment
of the maintenance statute “illustrate[d] the General Assembly’s
intention for the district court to retain broad discretion” over an
award of maintenance. Vittetoe, ¶ 14. Whether to award temporary
maintenance, therefore, remains a determination committed to the
district court’s discretion. See Lanz v. Lanz, 143 Colo. 73, 75, 351
P.2d 845, 846 (1960); In re Marriage of Yates, 148 P.3d 304, 313
(Colo. App. 2006); Rose, 134 P.3d at 561. The new statute provides
“a more detailed statutory framework” that includes guidelines “to
5
be considered as a starting point for the determination of fair and
equitable maintenance awards.” § 14-10-114(1)(b)(II), C.R.S. 2020.
¶ 12 Nothing in the current statute tells the court when it must
begin an award of temporary maintenance or restricts the court’s
ability to award it retroactively. Rather, under the current
maintenance statute, the district court “may award a monthly
amount of temporary maintenance.” § 14-10-114(4)(a)(I); see also
A.S. v. People, 2013 CO 63, ¶ 21 (“[T]he legislature’s use of the term
‘may’ is generally indicative of a grant of discretion . . . .”). And
when doing so, the court must determine a fair and equitable “term
for payment of temporary maintenance.” § 14-10-114(4)(a)(II); see
also § 14-10-114(2).
¶ 13 The repeal and reenactment of the maintenance statute does
not indicate a restriction on the district court’s ability to award
retroactive maintenance. Rather, it expanded the district court’s
discretion in determining a fair and equitable term of maintenance
based on the totality of the circumstances in the case. See Vittetoe,
¶ 14; see also § 14-10-114(4)(a)(II); 24A Am. Jur. 2d Divorce &
Separation § 603, Westlaw (database updated Nov. 2020) (“[T]he
determination as to when an allowance for temporary alimony
6
should begin is generally within the discretion of the court.”). This
allows the court to fulfill an important purpose of temporary
maintenance — “to place the parties on an equal footing during the
dissolution process.” In re Marriage of Nussbeck, 899 P.2d 347, 349
(Colo. App. 1995); see also Bieler v. Bieler, 130 Colo. 17, 19, 272
P.2d 636, 637 (1954).
¶ 14 Husband, however, argues that without specific statutory
authorization, a court may not impose family support obligations
for any time before the court conducts a hearing on the issue. He
relies on cases addressing a parent’s child support obligation and
contends that the rationale from these cases should apply equally
to a spouse’s temporary maintenance obligation. See, e.g., In re
Marriage of Serfoss, 642 P.2d 44, 46 (Colo. App. 1981). But
husband did not present this argument until his reply brief;
therefore, we will not address it. See In re Marriage of Drexler, 2013
COA 43, ¶ 24 (declining to address an argument not raised in a
party’s opening brief).
¶ 15 Nothing in the reenactment of the maintenance statute
expressly requires retroactive maintenance or prohibits it. Given
the district court’s discretion over the term for an award of
7
temporary maintenance, we cannot conclude that the court lacked
the authority to order retroactive temporary maintenance.
IV. Retroactive Temporary Maintenance Award
¶ 16 The parties continued to reside together in the marital home
after wife filed the dissolution petition, and even attempted to
reconcile. During this time, husband paid the mortgage, utilities,
and other shared living expenses. Husband argues that because he
was doing so, the district court improperly awarded retroactive
temporary maintenance. Under these circumstances, we disagree.
¶ 17 In fashioning a maintenance award, the court must consider a
spouse’s ability to independently meet his or her reasonable needs.
§ 14-10-114(3)(c)(I), (3)(d); Antuna, 8 P.3d at 595; see also
§ 14-10-114(4)(a)(III) (requiring the court to determine temporary
maintenance pursuant to the relevant provisions of section
14-10-114(3)). In doing so, the court “is not limited to satisfying a
spouse’s basic or survival needs.” Yates, 148 P.3d at 313. The
court, instead, should consider the facts and circumstances of the
case, including the standard of living established during the
marriage. See In re Marriage of Thornhill, 232 P.3d 782, 789 (Colo.
2010); Yates, 148 P.3d at 313.
8
¶ 18 Wife acknowledged that she had been living in the marital
home with husband and that he was paying the mortgage, utilities,
and other living expenses. She testified, however, that she was
unable to meet her reasonable financial needs and that husband
had not provided her with any money to do so, even though he was
receiving over $50,000 per month in gross income. She further
testified that she had wanted to end their living arrangement since
filing her petition, but she lacked the financial resources to leave;
that she had been forced to liquidate her retirement account and
work at a second job to pay her expenses; and that she could not
obtain dental care, vision care, or health care because she could not
afford to pay the required deductibles.
¶ 19 As well, wife testified to the extravagant lifestyle that the
parties had established during the marriage, including driving
luxury cars, dining at high-end restaurants, shopping for designer
items, and going on expensive vacations. She also testified that
during the dissolution proceeding, husband’s lifestyle remained the
same but her standard of living had dramatically decreased because
husband had restricted her access to their financial resources by
9
cancelling credit cards, closing bank accounts, and limiting her
income.
¶ 20 The court found that wife lacked sufficient financial resources
to meet her reasonable needs as established during the marriage. It
noted that husband had deliberately “chosen the low road” by not
financially supporting wife and that it had “never seen a more grave
example of disparity and disregard for a spouse.” The court then
determined that retroactive temporary maintenance was
appropriate, finding that it, along with the other temporary orders,
would “level [the] playing field.”
¶ 21 Given these findings, we disagree with husband that the
district court failed to explain its reasons for awarding retroactive
temporary maintenance even though the parties were living
together. And although husband paid some of the parties’
pre-temporary orders expenses, the record supports the court’s
determination that wife could not meet her reasonable needs as
established during the marriage and that an award of retroactive
temporary maintenance was appropriate. See Thornhill, 232 P.3d at
789; Yates, 148 P.3d at 313; see also Bieler, 130 Colo. at 20, 272
P.2d at 637 (recognizing that temporary maintenance is intended to
10
allow a spouse to live in his or her “accustomed manner” pending
the dissolution proceeding) (citation omitted).
¶ 22 Still, husband argues that under In re Marriage of Peterson, 40
Colo. App. 115, 572 P.2d 849 (1977), a party’s maintenance
obligation abates when the parties live together and the party
obligated to pay maintenance pays the other party’s expenses. But
Peterson is distinguishable. There, the former spouses attempted to
reconcile after the dissolution of their marriage. Id. at 116, 572
P.2d at 850. During that time, the parties lived together, and the
ex-husband paid the ex-wife a portion of his maintenance obligation
and other family expenses. Id. at 116-17, 572 P.2d at 850. The
division held that “under the circumstances of th[at] case, where
the parties made a good faith although unsuccessful attempt at
reconciliation and where the [ex-]husband supported the family
during this time,” the ex-wife was not entitled to a maintenance
arrearage. Id. at 117, 572 P.2d at 851. Peterson did not hold that a
court may never order maintenance for the time in which the
parties lived together and one spouse paid living expenses.
Specifically, unlike Peterson, the district court found, with record
11
support, that husband had not supported wife’s reasonable
financial needs while they were living together.
¶ 23 Accordingly, the court did not err by ordering husband to pay
retroactive temporary maintenance for the time when the parties
lived together and husband paid some of their pre-temporary orders
expenses.
V. Sufficiency of the District Court’s Findings
¶ 24 Husband also argues that the district court did not make
sufficient findings under section 14-10-114(3) or (4) to support its
award of $12,000 per month for retroactive temporary maintenance.
We agree that further findings are needed.
Section 14-10-114(3) sets forth a specific process for the
district court to follow when considering a maintenance request at
permanent orders. In re Marriage of Wright, 2020 COA 11, ¶ 13.
The process detailed under this statute also provides the framework
by which a court must determine temporary maintenance.
§ 14-10-114(4)(a)(I).
¶ 25 Under section 14-10-114(3), the court must first make written
or oral findings on each party’s gross income, the marital property
apportioned to each party, each party’s financial resources, the
12
reasonable financial need as established during the marriage, and
the taxability of the maintenance awarded. § 14-10-114(3)(a)(I);
Wright, ¶ 14.
¶ 26 Next, the court must determine the amount and term of
maintenance, if any, that is fair and equitable to both parties after
considering the statutory advisory guidelines and a list of
non-exclusive statutory factors. § 14-10-114(3)(a)(II)(A), (3)(a)(II)(B),
(3)(b), (3)(c); Wright, ¶ 15. When, as here, the parties’ combined
annual adjusted gross income exceeds $240,000, the advisory
guideline amount for maintenance under section 14-10-114(3)(b)(I)
does not apply. § 14-10-114(3.5). Instead, the court must
determine the amount of maintenance based on its consideration of
the statutory factors in section 14-10-114(3)(c). § 14-10-114(3.5).
¶ 27 Section 14-10-114(3) also requires the court to find that the
party seeking maintenance lacks sufficient property, including
marital property apportioned to him or her, to provide for his or her
reasonable needs and is unable to support himself or herself
through appropriate employment before awarding maintenance.
§ 14-10-114(3)(a)(II)(C), (3)(d).
13
¶ 28 Given the nature of temporary maintenance and the timing of
such a decision, certain findings the court must make or factors the
court must consider under section 14-10-114(3) for permanent
orders may not be relevant to its determination of temporary
maintenance. See, e.g., § 14-10-114(4)(a)(II) (noting that the
advisory guideline term for maintenance does not apply to
temporary maintenance). But the court must still adhere to the
process set forth in section 14-10-114(3) and apply the provisions
relevant to its temporary maintenance determination.
§ 14-10-114(4)(a)(I). The court must also “consider any additional
factors specific to the determination of temporary maintenance,
including the payment of family expenses and debts.”
§ 14-10-114(4)(a)(III).
¶ 29 In the end, the court has discretion to enter a fair and
equitable maintenance award, but it must “make specific written or
oral findings in support of the amount and term of maintenance
awarded.” § 14-10-114(3)(e); see also In re Marriage of Gibbs, 2019
COA 104, ¶ 9 (“The district court must make sufficiently explicit
findings of fact to give the appellate court a clear understanding of
the basis of its order.”).
14
¶ 30 Here, the district court indicated that it was “mindful” of
section 14-10-114 and noted that under this statute it was
“directed to consider every relevant factor.” The court then made
findings on the parties’ gross incomes; admonished husband for not
providing spousal support to wife; considered the parties’ financial
resources, noting that husband possessed and controlled “a vast
majority of the marital assets and marital income”; and discussed
the parties’ “lavish lifestyle” during the marriage. It stated that it
“also reference[d] all the factors under [14-10-114](3)(c),” listing
the financial resources of the recipient spouse,
the pay[o]r spouse, the lifestyle during the
marriage[,] . . . [the] limited, if any, distribution
of marital property[,] [t]he parties’ incomes,
employability, their age, their health[,] . . . [t]he
undisputable fact that one party has
historically earned a higher income[,] [a]nd the
significant economic and/or noneconomic
contribution to the marriage.
Then, the court determined that wife was incapable of meeting her
reasonable needs and awarded her $12,000 per month — the
amount wife requested — in retroactive temporary maintenance.
¶ 31 For two reasons, we conclude that additional findings are
necessary. First, the court made insufficient findings on what it
determined to be wife’s reasonable financial needs and whether
15
$12,000 per month would meet those needs. See
§ 14-10-114(3)(a)(I)(D), (3)(c)(I), (4)(a)(I), (4)(a)(III). Wife’s financial
affidavit represented expenses of almost $10,000 per month,
excluding her attorney fees, and reported income of almost $4,000
per month. She admitted at the hearing that husband had been
paying the mortgage, utilities, and other shared living expenses
listed in her affidavit — approximately $4,000 per month. She also
acknowledged that she was not incurring an additional $1,200 of
the expenses she had listed. Still, wife said that the expenses on
her financial affidavit did not meet her needs as established during
the marriage and that $12,000 per month was consistent with her
reasonable financial needs. But she indicated that this figure did
not include husband’s payment of the mortgage, utilities, and other
living expenses.
¶ 32 Thus, wife’s expenditures during the time for which the court
awarded retroactive temporary maintenance were less than $12,000
per month. While the court was not limited to an award that only
satisfied wife’s basic needs, see Yates, 148 P.3d at 313, it provided
no explanation why $12,000 per month was appropriate for wife.
The court’s findings, instead, focused on the parties’ lavish lifestyle
16
during the marriage, but even then, the court made no
determination that such a lifestyle supported the amount of
maintenance awarded or that such an award met wife’s reasonable
needs. Cf. Thornhill, 232 P.3d at 789 (“[T]he parties’ standard of
living during marriage is . . . an appropriate . . . starting point for
the trial court’s determination of a particular spouse’s reasonable
needs . . . .”) (emphasis added). We therefore lack a clear
understanding of the basis of the court’s award of $12,000 per
month in retroactive temporary maintenance and are unable to
determine whether this amount was appropriate to meet wife’s
reasonable financial needs. See § 14-10-114(3)(a)(I)(D), (3)(c)(I),
(3)(e), (4)(a)(I), (4)(a)(III); see also Gibbs, ¶ 9.
¶ 33 Second, the court did not make findings related to husband’s
payment of the shared expenses and debts or otherwise recognize
the statute’s requirement that it must consider additional factors
specific to the determination of temporary maintenance.
§ 14-10-114(4)(a)(III). We therefore are unable to determine whether
the court accounted for husband’s undisputed payment of the
mortgage, utilities, and other shared living expenses during the
17
time in which the court ordered retroactive temporary maintenance.
See Gibbs, ¶ 9.
¶ 34 For these reasons, we reverse the district court’s retroactive
temporary maintenance order and remand for additional findings.
On remand, the court must follow the procedure in subsections (3)
and (4) of section 14-10-114, make the required
findings — including regarding wife’s reasonable financial
needs — and consider husband’s payment of family expenses and
debts and any other factors it deems relevant in determining
retroactive temporary maintenance. The findings entered on
remand must be sufficient for us to conclude that it considered the
relevant factors and to determine the basis for the court’s
maintenance award. See Wright, ¶ 23; see also Gibbs, ¶ 9.
VI. Conclusion
¶ 35 We reverse the district court’s award of retroactive temporary
maintenance and remand the case for the court to make additional
findings in accordance with section 14-10-114(3) and (4).
JUDGE WELLING and JUDGE BROWN concur.
18