Marriage of McCale
23CA1562
| Colo. Ct. App. | Aug 22, 2024Background
- Allyson Ann McCale (mother) and Donald Richard McCale, III (father) dissolved their nearly 30-year marriage, with permanent orders entered by the district court.
- The district court imputed potential income to mother in calculating her maintenance and child support, awarding step-down maintenance and child support to mother as caretaker of a disabled son.
- Father was required to pay child support but not into a special needs trust as mother requested.
- The court noted an agreement for father to maintain life insurance but did not specify the amount; mother later moved to specify $850,000 in coverage.
- Mother challenged the maintenance, child support, property division, life insurance order, and sought judge disqualification for bias.
- The court of appeals found partial errors, reversed in part, and remanded for further proceedings, especially regarding income imputation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of Appeal | Appeal was timely due to pending Rule 59 motion | Appeal was untimely | Appeal was timely because the Rule 59 motion tolled deadline. |
| Imputation of Income | Court could not impute income without shirking | Issues not preserved; imputation appropriate | Imputation improper without shirking finding; reversed. |
| Life Insurance Specification | Court should have set $850,000 coverage | Issue not properly raised | Issue unpreserved; court did not err. |
| Judicial Bias/Disqualification | Judge's comments showed bias | No bias shown | Comments insufficient to show bias; no disqualification. |
| Attorney Fees on Appeal | Fees warranted based on outcome and resources | Fees warranted if mother's appeal untimely | No fees awarded at this stage; to be considered on remand. |
Key Cases Cited
- People v. Martinez, 70 P.3d 474 (Colo. 2003) (requiring finding of voluntary underemployment/shirking before imputing income)
- In re Marriage of Connerton, 260 P.3d 62 (Colo. App. 2010) (income imputation can apply to obligees as well as obligors)
- Berra v. Springer & Steinberg, P.C., 251 P.3d 567 (Colo. App. 2010) (issue preservation only requires notice to the court)
- Furer v. Allied Steel Co., 483 P.2d 212 (Colo. 1971) (outdated rule on post-trial motions and appellate preservation)