In re the Marriage of Wayne Marcus Wright, Jr., Appellant, and Karen Cadine Wright, Appellee
Court of Appeals No. 18CA2342
Colorado Court of Appeals
January 23, 2020
2020COA11
JUDGE TOW; J. Jones and Fox, JJ., concurring
El Paso County District Court No. 18DR2009; Honorable Theresa M. Cisneros, Judge
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 thе language in the summary and in the opinion should be resolved in favor of the language in the opinion.
SUMMARY
January 23, 2020
2020COA11
No. 18CA2342, Marriage of Wright — Family Law — Dissolution — Spousal Maintenance
A division of the court of appeals discusses the specific findings a district court must make when determining a maintenance award and concludes that a district court errs by failing to follow the detailed procedure set forth in
COLORADO COURT OF APPEALS
2020COA11
JUDGMENT AFFIRMED IN PART, REVERSED IN PART, AND CASE REMANDED WITH DIRECTIONS
Division VII
Opinion by JUDGE TOW
J. Jones and Fox, JJ., concur
Announced January 23, 2020
Gwendolyn M. Lawson, Colorado Springs, Colorado, for Appellant
McKinney & Associates P.C., Nathan D. McKinney, Erin Gardner, Amanda C. Musselwhite, Austin G. Jackson, Colorado Springs, Colorado, for Apрellee
I. Property Division
¶ 2 Husband contends that the property division is inequitable, arguing that the court (1) failed to value the personal property; (2) failed to include wife‘s Jamaican property as part of the marital estate; and (3) ordered him to pay more of the marital debts. We perceive no abuse of discretion in the property division. See In re Marriage of Powell, 220 P.3d 952, 954 (Colo. App. 2009).
A. Applicable Law
¶ 3 The district court shall divide the marital property in such proportions as it deems just.
B. Analysis
1. Valuation
¶ 4 A district court is required to find the approximate current value of all property owned by the parties. In re Marriage of Zappanti, 80 P.3d 889, 892 (Colo. App. 2003). But specific findings as to the value of each asset are not always required. See In re Marriage of Page, 70 P.3d 579, 582 (Colo. App. 2003). For example, if the parties’ valuations of an asset conflict, the court may order that each party should retain the property in his or her possession without attributing a value. See Antuna, 8 P.3d at 595.
¶ 5 Wife valued the personal property at $2900, and husband initially said it was worth $500. But at the hearing, husband offered unsubstantiated “estimates” of value for particular items, such as $500 for the bedroom furniture, “somewhere in the range of $600, $700” for lamps, and “several hundred [dollars]” for paintings and mirrors.
¶ 6 On this conflicting and imprecise evidence, we do not find an abuse of discretion
2. Jamaican Home
¶ 7 Husband believed that wife and her mother owned a home in Jamaica. Wife testified that she no longer owned the home after her mother refinanced it but acknowledged that it was worth $3600. Even if we assume that wife still owns the home, husband testified without contradiction that the home was wife‘s premarital property.
¶ 8 Marital property does not include property acquired by one party before the marriage. See
3. Marital Debt
¶ 9 The court should not assign marital liabilities disproportionately to one spouse. In re Marriage of Speirs, 956 P.2d 622, 623 (Colo. App. 1997) (citing In re Marriage of Kiefer, 738 P.2d 54 (Colo. App. 1987)). However, Speirs cannot be read to require a mathematically equal division of marital debt. For one thing, such a requirement would be inconsistent with the “equitable, but not necessarily equal” principle reiterated in Antuna. Moreover, in Kiefer, on which the Speirs division relied, a division of this court reversed a property division that had divided a portion of the value of the marital home between the spouses but had allocated all of the encumbrance on the home to only one spouse. The division specifically disavowed any requirement that the court deduct the amount of the encumbrances before dividing the net value of the home. 738 P.2d at 56. Moreover, it noted that under the circumstances of that case — where the court had found that the parties’ contributions to the marriage and the marital estate were roughly equal — ”equity requires that wife share a part of the debt incurred on the home during the marriage as well as a part of the increase in the home‘s value.” Id. (emphasis added). Thus, Kiefer and, by extension, Speirs merely stand for the general proposition acknowledged in Antuna — that the property and debt division must be equitable.
¶ 10 The court here found that all the parties’ debt was marital, which husband does not appear to dispute on appeal. Given the disparity in the parties’ income, the court deemed it fair to divide the marital debt prоportionately to the parties’ incomes, so it required husband to pay $29,486.90 of the marital debt while wife would pay the remaining $12,886.47. As the record shows that husband‘s income is more than four times wife‘s, the court could reasonably conclude that husband had the financial means with which to pay more of the debts. See
¶ 11 The parties’ marital estate included their marital debt, the personal property, and husband‘s $4000 401(k). As mentioned, the court ordered that the parties would keep the personal property in their possession, and it divided the marital debt in proportion to income. The court also allocated the 401(k) equally between the parties. In light of the limited estate, and recognizing that husband was earning $9583 per month while wife was “living at poverty level,” this property division is fair and equitable. See
II. Maintenance Award
¶ 12 Husband contends that the district court abused its discretion by awarding wife spousal maintenance without applying the required statutory factors. We agree, and therefore reverse and remand the maintenance award for reconsideration.
¶ 13
¶ 14 First, a court considering a maintenance request
shall make initial written or oral findings concerning:
(A) The amount of each party‘s gross income;
(B) The marital property apportioned to each party;
(C) The financial resources of each party, including but not limited to the actual or
potential income from separate or marital property;
(D) Reasonable financial need as established during the marriage; and
(E) Whether maintenance awarded pursuant to this section would be deductible for federal income tax purposes by the payor and taxable income to the recipiеnt.
¶ 15 Next, the court
shall determine the amount and term of the maintenance award, if any, that is fair and equitable to both parties after considering:
(A) The guideline amount and term of maintenance set forth in paragraph (b) of subsection (3), if applicable, based upon the duration of the marriage and the combined gross incomes of the parties;
(B) The factors relating to the amount and term of maintenance set forth in paragraph (c) of this subsection (3); and
(C) Whether the party seeking maintenance has met the requirement for a maintenance award pursuant to paragraph (d) of this subsection (3).
¶ 16 Finally, the court must consider whether the party seeking maintenance has met the requirement for a maintenance award under
only if it finds that the spouse seeking maintenance lacks sufficient property, including marital property apportioned to him or her, to provide for his or her reasonable needs and is unаble to support himself or herself through appropriate employment or is the custodian of a child whose condition or circumstances make it inappropriate for the
spouse to be required to seek employment outside the home.
In other words, although the legislature has instructed the trial court to consider this arguably threshold inquiry last, it is nevertheless an essential finding before maintenance may be awarded.
¶ 17 Whether the court grants or denies a maintenance request, it “shall make specific written or oral findings in support of” its decision.
¶ 18 The following is the court‘s maintenance order:
3. The Court Orders that Mr. Wright pay spousal maintenance to Mrs. Wright.
a. The Court finds that Mrs. Wright has a need for spousal maintenance and that Mr. Wright has the ability to pay.
b. The Court Orders that Mr. Wright pay $2,585 per month in spousal maintenance for 6 years and 4 months. The Court calculates that amount based on a finding that the parties were married for 12 years and 8 months, that Mrs. Wright earns $2,080 per month and Mr. Wright earns $9,583 per month. The Court finds that under C.R.S. § 14-10-114, the Court is able to find that the guideline amount is the proper amount.
c. The Court generated a Spousal Maintenance and [a] Child Support worksheet to reflect these calculations which have been filed
contemporaneously with this Order and are hereby incorporated as a part of the Order.
¶ 19 These findings are insufficient under the statute, since they lack most of the required findings under subsections
¶ 20 The second step does not require explicit findings. However, while a district court has no obligation to make specific factual findings on every factor listed in
¶ 21 For example, the district court made no mention of husband‘s claim that wife was underemployed.3 Moreover, the district court did not mention, and it is unclear whether it considered, the impact of the disproportionate allocation of marital debts on either wife‘s needs or husband‘s ability to pay.
¶ 22 Here, the district court first considered whether wife qualified for maintenance, which pursuant to statute is supposed to be the last thing considered. Next, the district court calculated the amount and term pursuant to the statutory guideline, incorporating
¶ 23 Accordingly, we reverse the maintenance award and remand for the district court to follow the procedure specified by
¶ 24 Because maintenance is based on the parties’ financial circumstances at the time the order is entered, the district court should consider the parties’ current circumstances on remand. See In re Marriage of Kann, 2017 COA 94, ¶ 79. For that reason, we need not consider husband‘s argument that the court improperly calculated wife‘s income.
III. Attorney Fees Sanction
¶ 25 Wife moved to compel husband‘s disclosure of bank statements, credit card statements, and additional income documentation. Her motion sought sanctions under
¶ 26 After the permanent orders hearing, the court ordered husband to pay wife $2500 of attorney fees “for causing [wife] to have to file a [m]otion to [c]ompel by providing incomplete disclosures and for his failure to participаte in the drafting of the [t]rial [m]anagement [c]ertificate.” Husband contends that this order is an abuse of discretion. We disagree.
¶ 27 Under
¶ 28 Under
¶ 29 We will not disturb the district court‘s imposition of sanctions absent an abuse of discretion. See Cardona, 321 P.3d at 527 (
¶ 30 Despite husband‘s cursory statement that he complied with disclosures, the record shows that he provided wife with limited financial information, which prompted wife‘s motion to compel. In addition, husband did not cooperate in drafting the TMC, which the court concluded resulted in needlessly incurred expenses. Based on this record, we cannot conclude that the district court abused its discretion by imposing a sanction.
¶ 31 Nor did husband ever challenge the reasonableness of the fee award or request a hearing in the district court to test that reasonableness. In fact, when submitting his objections to the form of the written order, he challenged only the decision to order fees, not the amount ordered.4 Thus, any challenge
¶ 32 Similarly, because it was first raised in the reply brief, we do not consider husband‘s argument that
¶ 33 In any event, husband‘s pro se status does not excuse his noncompliance with
IV. Bias or Prejudice
¶ 34 Husband contends that the permanent orders must be reversed because the district court‘s bias and prejudice against men and his religion are evident in its rulings. While we disapprove of some of the court‘s commentary, we disagree that it requires reversal.
¶ 35 At the hearing, wife testified that she volunteered at the parties’ church during the marriage. However, when wife accepted a job offer that would prevent her from continuing to volunteer with the church, husband told her not to come back to the church. A few days later, husband packed up his belоngings from the parties’ shared apartment and sent a text to wife saying that she had to move out by the end of the week. Thereafter, wife testified that husband stopped giving her financial assistance, which required her to obtain food stamps, stay with friends until she could obtain Section 8 housing, and rely on state-paid day care facilities. Wife also testified that husband changed his phone number and cancelled their child‘s health insurance without telling her. Finally, wife testified that husband stopped asking about the pаrties’ child.
¶ 36 Peppered in among the court‘s factual findings and legal conclusions were the following comments:
- “The Court is disappointed with Mr. Wright. And quite frankly, I‘m glad I don‘t attend the church that he goes to.”
- “Mr. Wright caused his child to be without a home when he was upset at Ms. Wright, when he took steps to have the home given back to whoever owned the home. That caused Ms. Wright and that child to have to go — I think the kids call it couch surfing. And I just think that‘s unconscionable. I just think that‘s unconscionable. I‘m disappointed that Mr. Wright, as a churchgоing man, would do that to his little girl.”
- “The Court‘s position is is [sic] that dads who are putting their children‘s needs first make sure that the other parent has accurate health insurance information. And the fact that Mr. Wright chose to withhold that is very offensive to the Court, especially when he comes in and he‘s shedding some tears, wanting me to believe that he‘s putting his child first, when that fact —
that‘s the second fact that shows that he didn‘t put the child‘s needs first.” - “You‘re not so different from a lot of other dads I‘ve seen that come into court and claim that they love their child and, ‘Oh, the child is the end all and the be
- all and I would do anything for the child.’ I don‘t believe them any more than I believe you. Because good dads don‘t do to their child what you did to your child.”
- “I don‘t know what to make of this church. I‘m just glad I don‘t go there. Most churches I know support family units and support kids and support dads involved in kids. And what has been described to me today just makes me glad I don‘t go to your church. And I‘d be willing to bet God is disappointed with you, too.”
- “Mr. Wright, I am disappointed in you. I‘m disappointed in you. Your child will not be well served by your behavior. And truthfully, I would expect better of a churchgoing man.”
- “Mr. Wright, I am so disappointed in you. I‘m just disappointed. I just hope you don‘t continue to behave like this. That would not be good for your daughter, honestly. And I happen to believe everything you said about the importance of dads in kids[‘] lives. I know
- that‘s a fact. But not when you‘re behaving like a knucklehead.”
¶ 37 A judge must be free of all taint of bias and partiality. Watson v. Cal-Three, LLC, 254 P.3d 1189, 1192 (Colo. App. 2011); see also C.J.C. 2.3(B) (a judge shall not manifest bias or prejudice). But prejudice is distinguishable from the sort of personal opinions that as a matter of course arise during a judge‘s hearing of a cause. See Smith v. Dist. Court, 629 P.2d 1055, 1057 (Colo. 1981). Thus, “judicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge.” Liteky v. Unites States, 510 U.S. 540, 555-56 (1994); see also People v. Roehrs, 2019 COA 31, ¶ 33 (a judge ordinarily cannot be disqualified on the basis of opinions, attitudes, and knowledge gained during her participation in judicial proceedings).
¶ 38 We disapprоve of the court‘s comments about husband‘s church. However, when read in context with the evidence presented at the hearing, the comments do not reflect a bias or prejudice about husband‘s gender or religion. Instead, the comments reflect the court‘s opinion, based on the evidence, that
husband made poor decisions to withhold money, parenting time, and proper living quarters from the child “[a]ll because he‘s upset with the mom.” While the tone of these comments and the exрression of the court‘s opinion about husband‘s church were ill advised, they were based on the evidence the court heard in the course of the proceedings and thus do not show an unreasonable or unfair bias against husband.
V. Appellate Attorney Fees Request
¶ 39 We deny husband‘s request for appellate attorney fees because he has failed to cite any legal authority for the request. See
¶ 40 Husband does not assert that wife‘s defense of the appeal lacked substantial justification, see
VI. Conclusion
¶ 42 The portion of the judgment regarding maintenance is reversed, and the case is remanded for further proceedings consistent with this opinion. In all other respects, the judgment is affirmed.
JUDGE J. JONES and JUDGE FOX concur.