In re Marriage of Gibbs —
2019 COA 104
Colo. Ct. App.2019Background
- Parties divorced in 2013; district court ordered husband to pay $1,850/month maintenance until death, remarriage, or further order.
- Three years later husband moved to modify/terminate maintenance, alleging a shoulder injury and stenosis reduced his ability to perform labor and decreased his income.
- At the modification hearing husband, wife, and a physician testified; the district court found no substantial and continuing change and denied modification.
- For maintenance calculation the district court found husband earned $5,000/month as a supervisor (self-employment) and added $1,500/month imputed rental income from his five-bedroom former marital residence, reaching $6,500/month.
- Husband lived in the large house with his girlfriend and her three children; girlfriend paid utilities and groceries but did not pay rent; there was no evidence the house had ever been rented or produced income.
- Court of Appeals affirmed the self-employment income calculation but reversed the imputation of rental income and remanded for recalculation without imputing rental revenue.
Issues
| Issue | Gibbs (Husband) Argument | Gibbs (Wife) / District Court Argument | Held |
|---|---|---|---|
| Whether district court may impute rental income from a primary residence that has never been rented | Court erred by imputing $1,500/month; primary residence never produced rental income and husband did not act in bad faith | Property is larger than needed; husband effectively receives economic benefit by housing girlfriend and children, so fair rental value should be imputed | Reversed: cannot impute potential rental income from a primary residence that has never earned rental income |
| Whether district court properly calculated self-employment income (including in-kind benefits) | Husband contended business expenses were not properly deducted from gross receipts | District court treated in-kind benefits (company vehicle, cell phone) as income and offset business expenses accordingly | Affirmed: district court did not abuse discretion in calculating $5,000/month after accounting for in-kind benefits and expenses |
| Whether husband was underemployed and additional income should be imputed for underemployment | Husband argued he was not underemployed | District court found husband chose a comfortable position and had not sought higher-paying work | No imputed underemployment income was assigned; appellate court did not decide further because district court made no specific imputation |
| Whether evidence showed substantial and continuing change in circumstances to modify maintenance | Husband asserted injury and prognosis constituted substantial change warranting reduction | District court found husband failed to prove substantial and continuing change | Appellate court did not resolve on merits because recalculation on remand required; district court must reassess maintenance without imputed rental income |
Key Cases Cited
- People v. Martinez, 70 P.3d 474 (Colo. 2003) (discusses imputing income to unemployed or underemployed parents)
- In re Marriage of Mugge, 66 P.3d 207 (Colo. App. 2003) (cannot consider unrealized income by forcing liquidation or changing an asset's character)
- In re Marriage of Laughlin, 932 P.2d 858 (Colo. App. 1997) (interest imputed on capital gain used for non-income-producing purposes)
- In re Marriage of Long, 921 P.2d 67 (Colo. App. 1996) (in-kind payments may count as income for support calculations)