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March 26, 2026 Get Citation Alerts Download PDF Add Note

Marriage of Mendozza

Colorado Court of Appeals

• Citations: None known
• Docket Number: 25CA0929

• Precedential Status: Non-Precedential

• Opinion

• Authorities (19)

• Cited By (0)

• Summaries (0)

• Similar Cases (61.1K)

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Combined Opinion

25CA0929 Marriage of Mendozza 03-26-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 25CA0929
Douglas County District Court No. 23DR30437
Honorable Daniel Warhola, Judge

In re the Marriage of

Kristin Marie Mendozza,

Appellee,

and

David Wayne Mendozza,

Appellant.

JUDGMENT AFFIRMED AND CASE
REMANDED WITH DIRECTIONS

Division A
Opinion by JUDGE GRAHAM*
Román, C.J., and Berger*, J., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced March 26, 2026

Cox Baker Page & Bailey, LLC, James S. Bailey, Alexandra Wetzler England,
Lone Tree, Colorado, for Appellee

David Wayne Mendozza, Pro Se

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2025.
¶1 In this proceeding dissolving the marriage of David Wayne

Mendozza (husband) and Kristin Marie Mendozza (wife), husband

appeals portions of the permanent orders regarding parenting time,

property division, and maintenance. We affirm and remand the

case for the determination of attorney fees.

I. Background

¶2 The parties married in 2006 and have two teenage children,

E.M. and M.M. During the marriage, wife’s parents gifted the

children and the parties money and transferred those funds into the

parties’ USAA 0979 checking account. Wife later transferred a

portion of the children’s gifts into tax advantaged 529 plan

accounts and the remainder into a USAA TUTMA 0881 (Texas )

savings account.

¶3 Around February 2022, the parties used a portion of their gift

for a down payment on a home (Pinewood house). Six months later,

the parties hired a construction company — without a signed

contract — to begin demolition in preparation for remodeling the

Pinewood house. Thereafter, the construction company submitted

a bid for the total cost of remodeling that was much higher than the

parties anticipated. When they sought other bids, a second

1
company discovered asbestos in the house’s drywall and demolition

debris. Colorado state health officials halted work on the house

until the asbestos could be abated. In early April 2023, after

abatement, the Pinewood house was in disarray. It had been

stripped down to its wall studs, its existing appliances, windows,

doors, and cabinetry had been removed and left out in the

elements, and some of its pipes had frozen.

¶4 One month later, wife petitioned the court for legal separation.

¶5 From early April 2023 until the filing of the petition, $613,000

was spent on a down payment, monthly mortgage payments, and

renovations for the Pinewood house. The parties also spent an

additional $113,000 on renovations.

¶6 By August or September of 2023, the parties agreed that

renovations should continue in order to sell the house. In the

process of the renovation, wife used funds from the USAA TUTMA

0881 savings account. As part of the stipulation, the parties agreed

that before any division of proceeds from the Pinewood house’s sale,

the proceeds would be used to reimburse the USAA TUTMA 0881

savings account.

2
¶7 From August or September of 2023 until March 2024, the

parties spent an additional $192,000 to prepare the house for sale.

By the time the house sold for $1,175,000, the parties had spent

$932,000 on renovations, a down payment, and mortgage

payments.

¶8 Days before the permanent orders hearing, wife requested that

the court convert her petition for legal separation into a petition for

dissolution. The court granted wife’s request and issued a decree of

dissolution of marriage. As relevant here, at the permanent orders

hearing, the court

• granted mother certain parenting time;

• declined to deem the funds from the children’s 529

accounts and the USAA TUTMA 0881 savings account

marital property;

• found that wife had not dissipated marital property by

continuing to renovate the Pinewood house after filing the

petition for legal separation; and

• ordered husband to pay wife $495 in monthly

maintenance for nine years and four months, as well as

$4,750 in retroactive maintenance.

3
II. C.A.R. Compliance

¶9 Wife contends that husband violated C.A.R. 28 and C.A.R. 32,

“significantly impact[ing her] ability to respond.” Specifically, she

argues that husband (1) “omit[ted] the line number relied upon in

references to the transcript, as well as the page numbers of exhibits

referenced”; (2) cited eleven exhibits that, wife alleges, had not been

admitted; and provided no record support for many assertions.

Wife requests that we sanction husband. Despite these alleged

deficiencies in husband’s briefing, we decline to sanction him.

¶ 10 Husband complied with the relevant requirements for

transcript and exhibit citations. C.A.R. 28(e) requires that an

appellate brief’s record citations “generally follow the format

detailed in the ‘Court of Appeals Policy on Citation to Record’”

(citation policy). C.A.R. 28(e). The citation policy does not require

line numbers for citations to transcripts when the transcripts are

more than one page in length. The citation policy also required

father to provide page numbers for the exhibits he referenced,

which he did. Although he was not consistent with where he placed

the page number — before or after the exhibit number/letter —

4
husband generally cited the page numbers of the exhibits he

referenced.

¶ 11 Wife lists eleven exhibits, not admitted into evidence, that she

alleges husband inappropriately referenced. While courts may not

rely on evidence that was not admitted, the appellate rules do not

address whether or not an appellant errs by relying on such

evidence in their briefing. See Hartman v. Freedman, 591 P.2d

1318, 1321 (Colo. 1979) (“Where [an] issue is tried to the court, it

will not be presumed that weight was accorded to evidence which

was not admitted.”). Assuming without deciding that reliance on

unadmitted evidence violates C.A.R. 28 or 32, there is no need for a

sanction. Wife claims that husband referred to Exhibit 15 in his

opening brief, but we could find no such reference. And she is

correct that husband referred to Exhibit 27, but he did so only to

point out that it was not submitted into evidence. Husband relied

on Exhibits 1A, A, B, E, F, G, LL, 19, and 22 either within his

statement of facts or to support factual statements in his

arguments. We do not rely on these exhibits in our recounting of

the facts or in our analysis.

5
¶ 12 Finally, wife contends — without further explanation or

specific legal authority — that “many” of husband’s assertions have

no support in the record and the judgment “must be affirmed.” We

decline to address this underdeveloped argument. See Antolovich v.

Brown Grp. Retail, Inc., 183 P.3d 582, 604 (Colo. App. 2007).

¶ 13 Ultimately, recognizing that husband appears pro se in this

court (although with an extensive legal background), and given the

fact that his allegedly imperfect briefing nevertheless has facilitated

our review, we elect to address his contentions. See Cikraji, ¶ 10;

see also Bruce, 252 P.3d at 32 (division elected to consider merits of

noncompliant brief).

III. Parenting Time

¶ 14 Husband argues that the district court erred when it granted

wife parenting time before the children’s school dances. We

perceive no error.

A. Legal Framework and Standard of Review

¶ 15 When allocating parenting time, the court must focus on the

children’s best interests, giving paramount consideration to the

children’s safety, needs, and physical, mental, and emotional

conditions. See § 14-10-124(1.5), C.R.S. 2025; In re Marriage of

6
Collins, 2023 COA 116M, ¶ 7. When making this determination,

the court must consider all relevant factors, including the best

interest factors identified in section 14-10-124(1.5)(a). See In re

Marriage of Morgan, 2018 COA 116M, ¶ 21. To determine the

child’s best interest, the court should consider the best interest

factors provided in section 14-10-124(1.5).

¶ 16 Section 14-10-124(3) provides that “the court shall not

presume that any person is better able to serve the best interests of

the child because of the person’s sex.” Therefore, it would be

inappropriate for the court to grant parenting time to the children

solely because she is the mother. See In re Marriage of Miller, 670

P.2d 819, 820 (Colo. App. 1983) (holding that under section

14-10-124(3) it is reversible error to presume that a mother is better

able to serve the child’s best interests because of her sex).

¶ 17 The court has broad discretion to allocate parental

responsibilities and determine parenting time, and we exercise

every presumption in favor of upholding its decision. See In re

Marriage of Hatton, 160 P.3d 326, 330 (Colo. App. 2007). We will

not disturb a court’s parental responsibility and parenting time

7
decisions absent a showing that the court abused its discretion.

See Morgan, ¶ 26; Hatton, 160 P.3d at 330.

B. Analysis

¶ 18 Finding that “time with [wife] to do . . . makeup, hair

accessories” was in the children’s’ best interests, the court granted

wife’s request to have parenting time before school dances. While

the court does not provide a specific rationale for its determination,

the record shows that wife helping the children before dances was

the children’s preference and the family’s tradition. See Hatton, 160

P.3d at 329 (appellate court may presume that the district court

took all the competent evidence into consideration in rendering its

decision). Therefore, we disagree with husband’s argument that the

court placed undue emphasis on wife’s ability to support the

children’s preparations on the basis of wife’s sex.

¶ 19 Wife testified that the children wanted this time with her. See

§ 14-10-124(1.5)(a)(II). She also testified that she “always help[ed

the children] to do their hair, pin up their dresses, [and] get the

right undergarments.” See § 14-10-124(1.5)(a)(III) (“the

interaction . . . of the child with [their] parents”), and (VII) (“the past

pattern of involvement of the parties with the child[ren]”). Because

8
the court considered this evidence, which aligns with the required

statutory considerations for determining parenting time, we

perceive no abuse of discretion.

IV. Property Division

A. Governing Law and Standard of Review

¶ 20 When dividing a marital estate, a district court must first

determine whether an asset is marital — that is, acquired during

the marriage and subject to division — or separate property, which

is shielded from distribution. § 14-10-113(1), C.R.S. 2025; In re

Marriage of Dale, 87 P.3d 219 (Colo. App. 2003). Debts incurred

during the marriage, like assets acquired during the marriage, are

presumed to be marital. See § 14-10-113(3); see also In re Marriage

of Speirs, 956 P.2d 622 (Colo. App. 1997) (marital liabilities include

all debts that a spouse incurs during the marriage).

¶ 21 Afterwards, the district court must enter findings on the

approximate value of the spouses’ assets, In re Marriage of Wright,

2020 COA 11, ¶ 4, including marital debts, In re Marriage of

Jorgenson, 143 P.3d 1169, 1172 (Colo. App. 2006). We will uphold

the court’s valuation when it has record support. In re Marriage of

Schmedeman, 190 P.3d 788, 790 (Colo. App. 2008).

9
¶ 22 Finally, after setting aside separate property, the district court

must divide the marital assets and debts in proportions it deems

just, ensuring an equitable, but not necessarily equal, division. See

§ 14-10-113(1).

¶ 23 The district court has great latitude in making an equitable

property division based on the facts and circumstances of each

case, and we will not disturb its decision absent an abuse of

discretion. Collins, ¶ 19. The court abuses its discretion when its

decision is manifestly arbitrary, unreasonable, or unfair, or when it

misapplies the law. In re Marriage of Medeiros, 2023 COA 42M,

¶ 28.

¶ 24 We accept the district court’s factual findings unless clearly

erroneous, meaning they are not supported by the record. See In re

Marriage of Gibbs, 2019 COA 104, ¶ 9. We review de novo,

however, whether the district court applied the correct legal

standard. Medeiros, ¶ 28.

B. Additional Background

¶ 25 During the marriage, wife’s parents gifted the children

$250,000 each for their “future support” and wired the funds into

husband’s and wife’s USAA 0979 checking account. Wife later

10
transferred approximately $30,000 of that gift into two 529

accounts for the children, and the remainder into the USAA TUTMA

0881 savings account.

C. 529 Accounts

¶ 26 Husband argues that the district court erred by failing to

consider the children’s 529 accounts as marital property and

dividing them. We disagree.

¶ 27 While husband correctly points out that “the district court

lacks authority to order postsecondary education support absent an

agreement of the parties,” here, the record shows that the parties

made such an agreement. See In re Marriage of Chalat, 112 P.3d

47, 51 (Colo. 2005). The parties’ joint trial management certificate

identified the children’s 529 accounts as “set aside for children’s

post-secondary education expenses.” Consequently, we perceive no

error in the district court’s determination that the children’s 529

accounts were “child assets” not subject to division.

D. TUTMA USAA 0881 Savings Account

¶ 28 Husband argues that the district court erred by not

considering the funds in the TUTMA USAA 0881 savings account to

be marital and dividing them equally between the parties. He

11
argues that the account does not comply with the requirements of

the Uniform Transfer to Minors Act (UTMA) and is therefore marital.

We are not convinced.

1. Relevant Law

¶ 29 Under Colorado’s UTMA, money, securities, and other property

can be invested in the minor’s name, with a custodian having a

fiduciary responsibility to prudently manage the accounts.

§§ 11-50-110 to -113, C.R.S. 2025. But a person establishing the

account must follow the statutory guidelines under the UTMA.

¶ 30 Specifically, a person may make a gift or transfer of money to

a minor that will be governed by the UTMA, so long as the

transferor, the minor, or the custodian is a resident of Colorado on

the date of the gift or transfer. § 11-50-103(1), C.R.S. 2025. And a

gift or transfer to a minor made pursuant to the UTMA is

irrevocable and conveys to the minor indefeasibly vested legal title

to the property. § 11-50-112(2), C.R.S. 2025.

¶ 31 To constitute an irrevocable gift or transfer or money under

the statute, the transferor must pay or deliver the money to “a

broker or financial institution for credit to an account in the name

of the transferor, . . . followed in substance by the words: ‘as a

12
custodian for _____ (name of minor) under the ‘Colorado Uniform

Transfers to Minors Act.’” § 11-50-110(1)(b). Another division of

this court has determined when an account is established under

the UTMA the district court may not treat it as marital property and

divide the funds between husband and wife. In re Marriage of

Nevedrova, 2024 COA 112, ¶ 14.

1. Analysis

¶ 32 As an initial matter, husband first argues that the initial

transfer of the children’s gifts into the parents’ USAA 0979 checking

account did not create a UTMA account. The court did not

investigate this initial transfer beyond noting the wife’s father’s

intent that the money be used for the children. And the details of

this initial transfer were not necessary to its determination that the

TUTMA USAA 0881 savings account was not marital. Therefore,

even if this initial transfer had been flawed, we perceive no abuse of

discretion. See People v. Frost, 5 P.3d 317, 323-24 (Colo. App.

1999) (finding no abuse of discretion where improperly disclosed

evidence was “not relevant to any issue before the court”).

¶ 33 The court concluded, with record support, that the TUTMA

USAA 0881 savings account met the requirements of the UTMA and

13
was, thus, not marital property. In reaching this conclusion, it

acknowledged that “as a custodian for _____ (name of minor) under

the “Colorado Uniform Transfers to Minors Act” was nowhere

explicitly stated. Nevertheless, it noted that the document showing

the transfer from the parents’ USAA 0979 checking account to the

TUTMA USAA 0881 savings account indicates that the account is in

M.M.’s name, designated a “custodian” and contained a further

designation, “TUTMA.”

¶ 34 Husband relies on Nevedrova to argue that the court should

not have relied on the “TUTMA” notation alone in determining that

the account met the UTMA requirements. In Nevedrova, the court

concluded that no UTMA account had been formed where there was

“no evidence in the record” that the transferor delivered the money

to the bank, followed by a declaration that they were the custodian

for the child as required by section 11-50-110(1)(b) even though the

account was identified as “UGMA_UTMA.” Id. at ¶ 15.

¶ 35 Here, in contrast, the evidence showed not only that wife

transferred the gifted money into an account designated “TUTMA,”

but also that the account was in M.M.’s name, and that wife was

the account’s custodian. In our view, this satisfies the

14
requirements for a UTMA account as the court in Nevedrova

described them. And this is true regardless of the fact that wife

could not recall whether she received any documentation regarding

the “legal ramifications” of creating such an account.

¶ 36 Based on the record, we conclude that there is sufficient

evidence to support the statutory purpose of the UTMA: to protect

minors by ensuring that their property remains separate and

identifiable. See § 11-50-113 (custodial property must be “kept . . .

separate and distinct from all other property in a manner sufficient

to identify it clearly as custodial property of the minor”); see also In

re Marriage of Ludwig, 122 P.3d 1056, 1061 (Colo. App. 2005)

(holding that minor’s property in a UTMA account cannot be used

to reduce a parent’s legal obligation of support); In re Marriage of

Wolfert, 598 P.2d 524, 526 (Colo. App. 1979) (same, but under

Uniform Gifts to Minors Act, which preceded the UTMA). The

record indicates that both parents — particularly husband —

sought to preserve the TUTMA USAA 0881 savings account as

non-marital and “for the kids.” At the permanent orders hearing,

husband testified that he wanted “to make sure that we gave [the

gifted money] to the kids.” And he repeatedly testified that he

15
entered into the stipulation regarding the renovation of the

Pinewood house in order to “protect[] the kids’ money . . . in the

0881 account.” Indeed, as we have already pointed out, one part of

the stipulated agreement was to promptly and completely reimburse

the TUTMA USAA 0881 savings account after the sale of the home.

¶ 37 Finally, we disagree with husband’s contention that the court’s

order improperly changed the minor beneficiary of the account to

make both children beneficiaries. True, as husband points out,

section 11-50-111, C.R.S. 2025 states that, under the UTMA, “a

transfer may be made only for one minor.” § 11-50-111. And we

acknowledge that the court’s ruling is muddled — mentioning the

parties’ intent to have both children benefit from the account.

Nevertheless, the court specifically found that the account was in

M.M.’s name alone. This finding meets the requirements of section

11-50-111.

¶ 38 Given this record, in which the court applied the appropriate

law with record support, and cognizant of the wide latitude the

court has to make property division, we conclude that it did not

abuse its discretion in removing the TUTMA USAA 0881 savings

account’s funds from its calculation of the marital property.

16
V. No Dissipation

¶ 39 Husband argues that the district court erred when it

determined that wife had not dissipated marital funds by

continuing the Pinewood house renovation after filing the petition

for legal separation. We perceive no basis for reversal.

A. Legal Framework and Standard of Review

¶ 40 Upon wife’s petitioning for legal separation, an automatic

temporary injunction entered. See § 14-10-107(4)(b)(I), C.R.S.

1. The injunction prohibited either party “from transferring,

encumbering, concealing, or in any way disposing of, without the

consent of the other party or an order of the court, any marital

property, except in the usual course of business or for the

necessities of life . . . .” § 14-10-107(4)(b)(1)(A). Such a temporary

injunction remains in effect until the final decree is entered, the

petition is dismissed, “or until further order of the court.”

§ 14-10-107(4)(b)(I).

¶ 41 In extreme cases, if a party unilaterally withdraws martial

funds during the proceedings, in violation of the temporary

injunction, the district court may rectify that violation by including

the dissipated funds in the property division. See, e.g., Jorgenson,

17
143 P.3d at 1173-74 (a court may consider dissipation of marital

assets in contemplation of divorce when dividing marital assets); In

re Marriage of Riley-Cunningham, 7 P.3d 992, 995 (Colo. App. 1999)

(dissipation occurs when a party depletes a marital asset for

improper or illegitimate purposes in contemplation of the

dissolution). The district court may not consider an asset to have

been dissipated unless it finds that the party disposed of the asset

improperly. See In re Marriage of Finer, 920 P.2d 325, 331 (Colo.

App. 1996).

¶ 42 The determination of whether or not a party dissipated marital

assets is a purely factual determination. See In re Marriage of

Martinez, 77 P.3d 827, 831 (Colo. App. 2003). Thus, we defer to the

district court’s finding on that issue if the record supports it.

Gibbs, ¶ 9.

B. Analysis

¶ 43 True, renovation of the Pinewood house continued after wife

filed the petition for legal separation. The district court concluded

that the continuing renovation was not a violation of Colorado’s

statutory temporary injunction pursuant to section

14-10-107(4)(b)(1)(A) and, therefore, was not a dissipation of the

18
marital estate. In doing so, the court found that, because the

parties had “already spent hundreds of thousands of dollars” on the

Pinewood house and its renovation by the time wife filed the

petition, “the construction of the home was in the usual course of

business for the family” and therefore did not violate the statutory

injunction. The court also found, with record support, that wife

had “apprised [husband] of the construction progress that included

the work to be done, by whom, and the cost of that work”

throughout the project. And it found that evidence indicated

husband was “thankful that [w]ife . . . includ[ed] him in the

Pinewood project” and that he wanted to “be part of the renovation

process.” Finally, the court found that continuing the renovation

was necessary to preserve the value of the Pinewood house as a

marital asset.

¶ 44 These findings are supported by the record. Although

husband urges us to conclude that the parties had only spent

money on the architectural drawings and asbestos remediation

when the petition was filed, the record shows that they had already

spent $613,000 by the time wife filed the petition for legal

separation.

19
¶ 45 The record shows that husband received emails regarding the

house’s ongoing renovation in April and May 2023, before the

petition was filed. And husband acknowledged that he had chosen

not to open additional emails from wife, sent after the petition was

filed — which included emails titled “Pinewood Quotes/Project Cost

June 2023” and “Pinewood Project Files.” These emails contained

information about money spent on renovations beginning in May

2023 when wife filed the petition. Nevertheless, two months after

the petition was filed, husband texted wife that he “very much

appreciate[d her] bringing [him] into a renovation-related decision”

and lamented not being included sooner. He assured wife that he

agreed with renovation of the Pinewood house.

¶ 46 To the extent that husband suggests that the court failed to

consider wife’s alleged economic misconduct when determining that

no dissipation had occurred, we disagree. Economic fault is

“strictly confined” to “extreme cases.” See In re Marriage of Smith,

2024 COA 95, ¶ 80. Even in cases in which, after the filing of the

petition, one spouse violates the temporary injunction and

“financially impact[s] the marital estate,” divisions of this court have

relied on the district court’s determination that no dissipation

20
occurred when the party was motivated by preserving marital

assets. See id. (no economic fault where spouse violated injunction

in order to limit liability for another marital asset). In this case, the

court found that wife, by continuing the renovation process after

filing the petition, had not committed economic misconduct by

dissipating marital assets. Rather, the court concluded, the

renovations preserved the value of the Pinewood house as a marital

asset.

¶ 47 This, too, was supported by the record. Husband texted wife

two months after she filed the petition that, in proceeding with the

renovation, “he want[ed] to help and do what’s best for [the parties’]

finances” and was “committed to . . . proceeding in ways that best

protect our shared assets.” Husband’s assent to the renovation as

a way to preserve the house as a marital asset distinguishes this

case from the case he relies on in his briefing: In re Matter of Storey,

2022 CO 48, ¶ 41. In Storey, the Colorado Supreme Court held

that the sale of family furniture — without the knowledge or

consent of one party — dissipated marital assets. Id.

¶ 48 The record supports the court’s conclusion that wife did not

violate the temporary injunction, see § 14-10-107(4)(b)(I)(A), as well

21
as its conclusion that funds and expenses were not used for

improper purposes or incurred to deplete the marital estate in

contemplation of the dissolution proceedings. See

Riley-Cunningham, 7 P.3d at 995. Therefore, the court did not err.

VI. Maintenance

¶ 49 Husband argues that the district court erred when, in

determining maintenance, it allegedly did not account for wife’s

potential income (to include gift income and inheritance), her

increased earnings, future inheritance, “the inequities in the

parties’ future incomes,” and wife’s use of husband’s earnings

during the separation. We perceive no basis for reversal.

A. Legal Framework and Standard of Review

¶ 50 Section 14-10-114(3), C.R.S. 2025, specifies the process a

district court must follow when considering a maintenance request.

Wright, ¶ 13. The court must first make findings concerning (1) the

amount of each party’s gross income; (2) the marital property

apportioned to each party; (3) the financial resources of each party;

(4) the reasonable financial need as established during the

marriage; and (5) whether the maintenance awarded would be

22
deductible for federal income tax purposes by the payor and taxable

income to the recipient. § 14-10-114(3)(a)(I); see Wright, ¶ 14.

¶ 51 After making these initial findings, the district court must

determine the amount and term of maintenance, if any, that is fair

and equitable to the parties. § 14-10-114(3)(a)(II). The court

considers the guideline amount and term set forth in section

14-10-114(3)(b). § 14-10-114(3)(a)(II); Wright, ¶ 15. These

guidelines are a “starting point for the determination of fair and

equitable maintenance awards.” § 14-10-114(1)(b)(II). And the

court must weigh the statutory factors set forth in section

14-10-114(3)(c), including “[t]he lifestyle during the marriage,”

temporary maintenance amount and duration, “[t]he financial

resources of the recipient spouse,” the duration of the marriage,

and the health of the parties. § 14-10-114(3)(c). But “the factors

set forth in section 14-10-114(3)(c) are not exclusive, as the final

factor is ‘[a]ny other factor that the court deems relevant.’” Wright,

¶ 15 (quoting section 14-10-114(3)(c)(XIII)). “Thus, ‘[t]he court has

discretion to determine the award of maintenance that is fair and

equitable to both parties based upon the totality of the

circumstances.’” Id. (quoting section 14-10-114(3)(e)).

23
¶ 52 Last, before awarding maintenance, the district court must

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. § 14-10-114(3)(d).

¶ 53 We review a court’s maintenance award for an abuse of

discretion. Medeiros, ¶ 58. A court abuses its discretion when its

decision is manifestly arbitrary, unreasonable, or unfair, or when it

misapplies the law. Id. at ¶ 28.

B. Court’s Findings

¶ 54 In ordering husband to pay maintenance, the court,

referencing section 14-10-114(3)(a)(I), made the following findings.

• The parties had stipulated to their gross monthly

incomes of $7,800 (wife) and $13,300 (husband).

• Considering wife’s financial resources and need, the

court found that she had been a stay-at-home parent and

was “the sole primary provider for the children during the

marriage.” We note that wife did work part time, but this

does not contradict the fact that she was a stay-at-home

parent and the primary caretaker for the children. The

24
gift wife’s parents gave was a gift to the marriage, not just

to her. And wife’s monthly income does not cover her

expenses.

• With regard to husband’s financial resources and need,

the court considered husband’s salary and work history.

Husband “advanced his career and his education and

was working as an attorney” during the marriage. And

husband’s monthly income does not cover his expenses.

• Maintenance “would not be deductible for federal income

tax purposes by the payor, nor would be taxable income

to the recipient.”

¶ 55 The court then reviewed the requirements for section

14-10-114(3)(a)(II) and found that there is no maintenance guideline

amount in this case because the parties’ incomes are too high, but

that “the term of maintenance set forth pursuant to statute would

be nine years and four months.”

¶ 56 Finally, as required by section 14-10-114(3)(d), and despite

husband’s argument that the court made no such determination,

the court determined that wife lacked sufficient property, including

marital property apportioned to her, to provide for her reasonable

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needs and was unable to support herself through appropriate

employment. § 14-10-114(3)(d). In making this finding, the court

explicitly referenced wife’s parents’ large financial gifts as “an early

inheritance” and that wife has “just started working again

full-time.”

C. Analysis

¶ 57 Husband argues that the district court was required to make

findings about wife’s “actual or potential income” including her gift

income and inheritance. § 14-10-114(3)(a)(I)(C). Specifically,

husband says that the court “failed to account” for wife’s parents’

gifts which, according to husband, would increase wife’s “historical

income” to “an average of $168,750 per year between 2021 and

2024.” But the record shows that the court did consider these gifts

when determining wife’s reasonable need for maintenance.

Similarly, husband suggests wife has a future inheritance, but his

record citation does not clearly support that contention.

¶ 58 The court made the required findings pursuant to the

applicable statutory framework and with record support. Therefore,

it did not abuse its discretion.

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VII. Requests for Attorney Fees

¶ 59 Husband requests an award of attorney fees pursuant to

C.A.R. 38(b). He argues that wife’s answer brief contains

arguments that are “vague, misleading, incoherent, and based on

shifting legal standards and inaccurate analyses.” Even if C.A.R.

38(b) were applicable to wife’s answer to husband’s appeal, we

disagree that her briefing was so flawed as to justify the award of

husband’s attorney fees. C.A.R. 38(b) (“If the appellate court

determines that an appeal . . . is frivolous, it may award damages it

deems appropriate, including attorney fees . . . .”).

¶ 60 Wife requests an award of attorney fees pursuant to C.A.R.

39.1; she argues that husband’s claims were “frivolous and

unsubstantiated.” Frivolous appeals include those that lack any

rational justification or are prosecuted for the sole purpose of

harassment or delay. See In re Marriage of Boettcher, 2018 COA 34,

¶ 38. We cannot conclude that husband’s arguments justify an

award of fees under this section. Husband’s arguments did not

lack rational justification and we could find no evidence — nor did

wife point us to any — to indicate that husband’s appeal was filed

to solely delay finality or harass her.

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¶ 61 Wife also requests attorney fees under section 14-10-119,

C.R.S. 2025. But the district court has already found that there is

no equitable basis for such an award and we agree.

VIII. Disposition

¶ 62 The judgment is affirmed and the case is remanded for a

determination of attorney fees pursuant to section 14-10-119.

CHIEF JUDGE ROMÁN and JUDGE BERGER concur.

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