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March 12, 2026 Get Citation Alerts Download PDF Add Note

Marriage of Herzik

Colorado Court of Appeals

• Citations: None known
• Docket Number: 24CA1962

• Precedential Status: Non-Precedential

• Opinion

• Authorities (19)

• Cited By (0)

• Summaries (0)

• Similar Cases (0)

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Combined Opinion

24CA1962 Marriage of Herzik 03-12-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA1962
El Paso County District Court No. 23DR32240
Honorable Amanda Philipps, Judge

In re the Marriage of

Shannon Renee Herzik,

Appellee,

and

Brian Louis Herzik,

Appellant.

JUDGMENT AFFIRMED AND CASE
REMANDED WITH DIRECTIONS

Division VI
Opinion by JUDGE WELLING
Gomez and Sullivan, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced March 12, 2026

Law Office of Joel M Pratt, Joel M Pratt, Colorado Springs, Colorado, for
Appellee

Graham Law PC, Tahli Ann Delgado, Colorado Springs, Colorado, for Appellant
¶1 In this dissolution of marriage proceeding, Brian Louis Herzik

(husband) appeals the trial court’s order awarding maintenance to

Shannon Renee Herzik (wife). We affirm and remand the case to the

trial court for a determination of appellate attorney fees.

I. Background

¶2 The parties married in 1997 and filed for divorce in December

1. Husband was in the Army; while married, the parties

frequently moved within the United States and internationally for

his job. During the marriage, wife initially taught English and was

earning credits toward a master’s degree but stopped working full-

time and ended her studies to focus on building a family. The

parties had one child, who was almost seventeen years old at the

time the dissolution decree entered.

¶3 At the time of the permanent orders hearing, husband had

retired from the military and had become a contractor. He earned a

monthly pension and disability payment from the Army, in addition

to his contractor salary of $137,500 per year. During the litigation,

at husband’s request, wife completed a vocational evaluation.

Husband’s evaluator opined that wife could earn an annual salary

of between $49,466 and $53,210. By the permanent orders

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hearing, wife was about to begin a full-time position as an

elementary school media specialist, earning $62,488 per year. In

addition, she reported freelance cataloguing earnings of $25 per

hour; on her sworn financial statement executed shortly before the

hearing, she reported earning approximately $5,000 per year from

this freelance work.

¶4 The parties reached a partial separation agreement, which was

adopted by the court as part of the permanent orders. As relevant

here, according to that agreement

• husband kept the marital home, and, in exchange, wife

received $120,000;

• wife retained ownership of one vehicle, one checking and

two savings accounts, six investment accounts, and an IRA;

and

• wife received half of husband’s military pension and

teaching retirement benefits, including his PERA benefits.

¶5 After a hearing on the remaining issues, which included wife’s

request for maintenance, the court awarded wife $1,300 per month

in maintenance for twelve years.

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II. Standard of Review and Legal Framework

¶6 The trial court has broad discretion in deciding the amount

and duration of a maintenance award, and, absent an abuse of that

discretion, its decision won’t be reversed. See § 14-10-114(2), (3)(e),

C.R.S. 2025; In re Marriage of Wright, 2020 COA 11 ¶ 15; In re

Marriage of Vittetoe, 2016 COA 71, ¶ 14. We review de novo

whether the court applied the proper legal standard. In re Marriage

of Tooker, 2019 COA 83, ¶ 12.

¶7 A trial court’s decision to award maintenance generally

requires the court to follow a three-step process. See Wright, ¶¶ 14-

16 (discussing the three-step framework set forth in section 14-10-

114(3)). The first step requires the court to make “written or oral

findings on each party’s gross income, the marital property

apportioned to each party, each party’s financial resources, the

reasonable financial need as established during the marriage, and

the taxability of the maintenance awarded.” In re Marriage of

Herold, 2021 COA 16, ¶ 25 (first citing § 14-10-114(3)(a)(I); and

then citing Wright, ¶ 14).

¶8 At the outset of step two, the court must determine and

consider the “guideline amount and term of maintenance.” § 14-10-

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114(3)(a)(II)(A). The guideline amount and term of maintenance are

based on the parties’ combined gross income, the parties’ relative

gross incomes, and the duration of the marriage. § 14-10-114(3)(b).

But when the parties’ combined gross income exceeds $240,000 per

year (or $20,000 per month) — as it did here — the three-step

process discussed and applied in Wright is short-circuited. Under

these circumstances, the requirement that the court calculate “the

advisory guideline amount of maintenance does not apply, and the

court shall instead consider the factors set forth in subsection (3)(c)

of [section 14-10-114] in determining the amount of maintenance.”

§ 14-10-114(3.5); see also § 14-10-114(3)(c) (setting forth a

nonexhaustive list of factors a court should consider in fashioning a

maintenance award). The factors listed in section 14-10-114(3)(c)

aren’t exclusive, so “[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.” Wright, ¶¶ 15-16

(citation omitted).

¶9 Finally, the court must find that the party seeking

maintenance lacks sufficient property, including marital property

apportioned to them, to provide for their reasonable needs and is

4
unable to support themselves through appropriate employment.

§ 14-10-114(3)(a)(II)(C), (3)(d); see also Wright, ¶¶ 16-17 (“[T]he

legislature has instructed the trial court to consider this arguably

threshold inquiry last . . . .”).

III. Wife’s Income, Reasonable Needs, and Appropriate
Employment

¶ 10 Husband first contends that the trial court abused its

discretion when it awarded maintenance to wife (1) without properly

determining her gross income pursuant to section 14-10-

114(3)(a)(I); (2) after improperly assessing both parties’ financial

circumstances; and (3) without finding that wife had insufficient

property to provide for her reasonable needs or that she couldn’t

support herself through appropriate employment. We disagree that

the court reversibly erred.

A. Wife’s Income

¶ 11 The court found wife’s gross monthly income to be $8,370. It

reached this figure by adding together her monthly salary of $5,205

from her full-time employment as an elementary school media

specialist and half of husband’s military retirement, which the court

calculated to be $3,163 (and then rounding up by $2). The court,

5
however, excluded from the calculation of wife’s gross monthly

income any earnings from her freelance cataloging work,

characterizing that work as “voluntary overtime” in addition to her

full-time employment. Husband contends that the court erred in

two respects when calculating wife’s gross income: (1) it erred in

calculating her half of his military retirement, and (2) it erred by

excluding her cataloging work earnings from her gross income.

¶ 12 We reject husband’s first contention that the court should

have found wife’s half of his military pension benefits to be $3,383

per month. The record shows that husband’s monthly pension

amount of $6,767 was reduced by $440 to pay for survivor benefit

costs. Therefore, each party is allocated half of $6,327 per month,

or $3,163.50 each. Accordingly, the court — which used $3,163

per month — didn’t err in this calculation.

¶ 13 But we agree with husband’s second contention that the court

erred by excluding wife’s cataloguing earnings from its calculation

of her gross income. Section 14-10-114(8)(c)(I) and (II) set forth

various categories of earnings that are included (subparagraph (I))

and excluded (subparagraph (II)) from the definition of gross income

for the purpose of determining maintenance. Citing section 14-10-

6
114(8)(c)(II)(C), wife argues that the court properly excluded her

cataloging earnings because that income was in addition to her

earnings from full-time employment. Wife, however, reads section

14-10-114(8)(c)(II)(C) too broadly. That section excludes from the

definition of gross income earnings that are “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.” Id. (emphasis added). But wife, as the party

awarded maintenance, is the obligee; husband is the obligor. Thus,

we conclude that the trial court erred by excluding the earnings

from this additional work from wife’s gross monthly income.

¶ 14 But we only reverse if the error affects a party’s substantial

rights. See C.A.R. 35(c) (“The appellate court may disregard any

error or defect not affecting the substantial rights of the parties.”).

We conclude this error didn’t, for two reasons. First, at most, the

record supports that wife earned $5,000 per year (or approximately

$417 per month) for her cataloging work. Thus, the court should

have used a figure of approximately $8,787 per month for wife.

This is less than a 5% discrepancy from the figure the court used.

Cf. In re Marriage of Balanson, 25 P.3d 28, 36 (Colo. 2001) (“If . . . a

7
trial court’s error affects only a small percentage of the overall

marital estate, such an error may be deemed to have been harmless

and thus does not require reversal.”).

¶ 15 Second, because the parties’ combined gross monthly income

exceeded $20,000 per month, regardless of whether the court

included wife’s earnings from cataloging work,1 the court wasn’t

required to calculate guideline maintenance. See § 14-10-114(3.5).

So we can’t even say that this minor discrepancy in wife’s gross

monthly income impacted the court’s calculation of maintenance.

¶ 16 Simply put, although the court erred in excluding the earnings

from wife’s cataloging work in calculating her gross monthly

income, that error was harmless, so it doesn’t provide a basis for

reversing the court’s order.

1 The court found husband’s gross monthly income to be $17,407

and wife’s income to be $8,370 without the cataloging income or
$8,787 with it. Thus, the parties’ combined gross monthly income
was either $25,777 or $26,194, both of which exceed the $20,000
upper limit that renders inapplicable the requirement that the court
calculate guideline maintenance. See § 14-10-114(3.5), C.R.S. 2025
(If the parties combined gross income exceeds $20,00 per month,
“the calculation methodology . . . for determining the advisory
guideline amount of maintenance does not apply.”).

8
B. Parties’ Financial Circumstances

¶ 17 The court found husband’s financial resources would continue

to be greater than wife’s throughout their careers, “[e]ven if wife

continue[d] to expand her education and degrees.” Thus, the court

properly considered the parties’ economic circumstances, and the

record supports its factual findings.

¶ 18 While husband correctly points out that a maintenance award

must be based upon the parties’ needs and circumstances at the

time of the hearing, rather than upon past or future conditions, see

In re Marriage of Simon, 856 P.2d 47, 51-52 (Colo. App. 1993), the

court is also obligated to consider both parties “employability,

obtainable through reasonable diligence and additional training or

education,” § 14-10-114(3)(c)(V).

¶ 19 The court considered husband’s monthly income of $17,407 —

which was comprised of his salary, his portion of his military

pension, and his monthly military disability payment. The court

also considered wife’s monthly income of $8,370 from both her

media specialist position and her portion of husband’s military

pension. The court also considered that wife had “potential

additional work . . . as a cataloger,” “if she cho[se] to take on this

9
additional work.” The court further found, as supported by the

vocational evaluation report, that even if wife earned future degrees,

wife would still “have less earning potential” than husband

throughout her career. Because the court applied the proper

statutory framework and the record supports its factual findings,

we perceive no abuse of discretion. To the extent that the record

also contains evidence suggesting that husband’s income could

decrease, it’s the trial court’s responsibility to judge the credibility

of witnesses and resolve conflicting evidence. See In re Parental

Responsibilities Concerning B.R.D., 2012 COA 63, ¶ 15.

C. Wife’s Reasonable Needs and Appropriate Employment

¶ 20 The record demonstrates that when the court fashioned its

maintenance award, it considered wife’s reasonable needs as

established during the marriage, as it was required to do. See

Herold, ¶ 17 (the court is not limited to satisfying a spouse’s basic

or survival needs); see also In re Marriage of Olar, 747 P.2d 676,

681 (Colo. 1987) (“reasonable needs” has been liberally construed

and depends on the particular circumstances of the marriage). The

court considered that while, during the marriage, wife owned a

home, she lacked the credit history necessary to purchase a home

10
on her own and would instead have to pay rent. The court also

considered that while husband previously saved for the couple’s

retirement and emergency needs, wife must now independently save

for these things. And the court noted that wife’s older model car

“may need additional maintenance and repairs.” Moreover, to the

extent that husband suggests that wife’s equalization payment of

$120,000 obviated her maintenance request, a spouse isn’t required

to deplete their share of the marital property to be entitled to

maintenance. See In re Marriage of Bartolo, 971 P.2d 699, 702

(Colo. App. 1998).

¶ 21 Similarly, the record shows that the court considered wife’s

appropriate employment when it determined maintenance. The

determination of “appropriate employment” requires the

consideration of “the party’s economic circumstances and

reasonable expectations established during the marriage.” Olar,

747 P.2d at 681. The court considered that, during the marriage,

wife sometimes worked part-time to allow her to care for the parties’

child, and she managed the couple’s finances. To the extent that

the record contains conflicting evidence about whether the parties

discussed wife’s return to work after the child became school aged,

11
the trial court apparently credited wife’s evidence that they didn’t.

See B.R.D., ¶ 15. The court considered that wife became employed,

with a salary exceeding husband’s vocational expert’s estimate of

her earning capacity but nevertheless found that she lacked

sufficient income to meet her reasonable needs.

¶ 22 Given this record, which supports the court’s consideration of

both wife’s reasonable needs and her appropriate employment, the

court didn’t abuse its discretion in awarding wife maintenance.

IV. Adequate Findings

¶ 23 Husband next contends that the trial court made inadequate

findings to support the maintenance award. Specifically, husband

argues first that the court didn’t make the required findings

pursuant to section 14-10-114(3)(a)(I)(A) and (D), 14-10-

114(3)(a)(II)(B), or 14-10-114(3)(d). We disagree.

A. Standard of Review and Relevant Law

¶ 24 We review de novo the adequacy of the court’s findings. People

v. Shifrin, 2014 COA 14, ¶ 90. Indeed, “the adequacy of a trial

court’s findings, as contrasted with the sufficiency of the evidence

to support them, is tested by whether an appellate court can

discern the lower court’s rationale.” Id.

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¶ 25 A trial court’s findings are adequate when the court’s order

contains findings of fact and conclusions of law sufficient to give an

appellate court a clear understanding of the basis of its order and to

enable the appellate court to determine the grounds upon which it

reached its decision. In re Marriage of Van Inwegen, 757 P.2d 1118,

1121 (Colo. App. 1988). We consider the trial court’s findings and

rulings from the bench as a supplement to its written order.

Friends of Denv. Parks, Inc. v. City & County of Denver, 2013 COA

177, ¶¶ 34-37.

¶ 26 As noted above, pursuant to section 14-10-114(3)(a)(I), the

court must first make written or oral findings on five specific issues,

including, as relevant to husband’s challenge, each party’s gross

income and their reasonable financial needs as established during

the marriage. See 14-10-114(3)(a)(I)(A), (D); Herold, ¶ 25; Wright,

¶ 14. The findings pursuant to section 14-10-114(3)(d) have been

characterized as “required” and “essential.” Wright, ¶ 16.

¶ 27 However, with respect to the findings pursuant to section 14-

10-114(3)(c), “a district court has no obligation to make specific

factual findings on every factor listed in [that] section.” Wright,

¶ 20. Instead, a court must make findings of fact and conclusions

13
of law “sufficiently explicit . . . to give the appellate court a clear

understanding of the basis of its order.” Id. (quoting In re Marriage

of Gibbs, 2019 COA 104, ¶ 9); see also In re Marriage of Garst, 955

P.2d 1056, 1058 (Colo. App. 1998) (“Factual findings are sufficient

if they identify the evidence which the fact finder deemed persuasive

and determinative of the issues raised.”).

B. Analysis

¶ 28 Husband doesn’t challenge that the court made income

findings pursuant to section 14-10-114(3)(a)(I)(A). Instead,

husband disputes the accuracy of the court’s gross income

determination for wife. As we discussed above, though the court

erred in determining wife’s income by excluding her cataloguing

earnings, that error was harmless.

¶ 29 And while husband contends that the court didn’t make

sufficient findings regarding the parties’ reasonable financial needs

as established during the marriage, as required by section 14-10-

114(3)(a)(I)(D), the record shows that the court did. Indeed, the

court explicitly considered the reasonable needs of the parties to

include their respective needs for a stable home and the ability to

14
save for retirement. As we discussed above, the court accounted for

these needs when determining wife’s maintenance amount.

¶ 30 With regard to section 14-10-114(3)(a)(II)(B), which requires

the court to consider the factors listed in 14-10-114(3)(c) —

specifically, that the court consider wife’s ability to meet her needs

independently pursuant to section 14-10-114(3)(c)(I) — the record

shows the court did just that. The court considered wife’s income

and her need to shoulder new financial burdens such as rent,

retirement savings, and saving for emergencies.

¶ 31 Husband also suggests that there was “little analysis” as to his

ability to meet his reasonable needs while paying maintenance as

required by section 14-10-114(3)(c)(II). But the record shows that

the court considered husband’s high voluntary contributions to his

own retirement savings, as well as his unnecessarily high loan

payments related to wife’s equity payout, when it concluded that

husband should be able to pay $1,300 in monthly maintenance

while earning an income of “well over $17,000 a month.” Because

this record provides the bases for the court’s order, its findings are

sufficient.

15
¶ 32 Finally, the court made sufficient findings pursuant to section

14-10-114(3)(d), which requires the court to make findings that the

party seeking maintenance lacks sufficient property to provide for

their reasonable needs and is unable to support themselves

through appropriate employment. Other divisions of this court —

for example, in Wright, ¶ 16, and In re Marriage of Stradtmann,

2021 COA 145, ¶ 31 — have suggested that a specifically worded

finding regarding section 14-10-114(3)(d) isn’t required. The

division in Wright was primarily concerned with reviewing the

correct order of application for section 14-10-114(3)(a), (3)(c), and

(3)(d) — something not challenged here. In Wright, it wasn’t the

court’s general finding pursuant to subsection (3)(d) that the wife

“ha[d] a need for spousal maintenance” that necessitated reversal,

but rather the fact that the court entered this finding before making

other necessary findings. Wright, ¶¶ 11, 18, 22. Similarly, relying

on Wright, the division in Stradtmann noted that subsection (3)(d)

findings are “required” but focused on the court’s failure to “make

any findings on” federal tax implications pursuant to subsection

(3)(a), implying that more general findings under subsection (3)(a) or

(3)(d) may be acceptable. Stradtmann, ¶ 33 (emphasis added).

16
¶ 33 Here, while the court didn’t specifically state that maintenance

was required to satisfy wife’s reasonable needs even after

appropriate employment, its ruling supports this conclusion. After

considering the factors from subsections (3)(a), (3)(b), and (3)(c), the

court concluded that wife “lack[ed] sufficient . . . income . . . and

[wa]s in need of maintenance.”

¶ 34 Given this record, which provides the bases for the court’s

ruling, we conclude that the trial court’s findings and order were

adequate.

V. Insufficient Evidence

¶ 35 Lastly, husband contends that the evidence is insufficient to

support granting wife maintenance. “Claims regarding the

sufficiency of the evidence are mixed questions of law and fact.” In

re Estate of Owens, 2017 COA 53, ¶ 19. “[W]e defer to a trial

court’s factual findings unless they are so clearly erroneous as to

find no support in the record.” Target Corp. v. Prestige Maint. USA,

Ltd., 2013 COA 12, ¶ 24. We review de novo issues of law. In re

Marriage of Young, 2021 COA 96, ¶ 9. We have already discussed

how the record supports the court’s findings regarding wife’s need

for maintenance. As we have shown, the court properly considered

17
wife’s reasonable needs and the appropriateness of her

employment, as well as husband’s ability to pay, before ordering

maintenance, and its determinations are supported by the record.

VI. Wife Requests Attorney Fees

¶ 36 Wife requests that we award her attorney fees incurred on

appeal. As grounds for an award of appellate attorney fees, she

cites section 14-10-119, C.R.S. 2025, contending that there is a

significant disparity in the parties’ financial resources. See In re

Marriage of Alvis, 2019 COA 97, ¶ 30 (determining that a court may

consider the parties’ relative financial circumstances when

awarding attorney fees pursuant to section 14-10-119). We remand

to the trial court to determine whether wife is entitled to an award

of her appellate attorney fees on this ground and, if so, in what

amount. See In re Marriage of Martin, 2021 COA 101, ¶ 42.

VII. Disposition

¶ 37 The judgment is affirmed, and the case is remanded for the

determination of appellate attorney fees.

JUDGE GOMEZ and JUDGE SULLIVAN concur.

18