Marriage of Roper

23CA1868 Marriage of Roper 02-20-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1868
Boulder County District Court No. 11DR482
Honorable Thomas F. Mulvahill, Judge

In re the Marriage of

Timothy D. Roper,

Appellee,

and

Donna J. Wilson-Roper,

Appellant.

ORDER AFFIRMED IN PART AND REVERSED IN PART,
AND CASE REMANDED WITH DIRECTIONS

Division IV
Opinion by JUDGE PAWAR
Harris and Grove, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced February 20, 2025

Sherr Puttmann Akins Lamb PC, Courtney McConomy, Denver, Colorado, for
Appellee

Paige Mackey Murray, LLC, Paige Mackey Murray, Boulder, Colorado, for
Appellant
¶1 In this post-dissolution of marriage proceeding involving

Donna J. Wilson-Roper (wife) and Timothy D. Roper (husband), wife

appeals the district court’s adoption of the magistrate’s order

granting husband’s motion to terminate maintenance and denying

her motion for entry of judgment concerning proceeds of the marital

home. We affirm the court’s determination of the motion to

terminate maintenance but reverse the order related to the motion

for entry of judgment. We remand the matter to the district court to

consider wife’s motion for entry of judgment related to the proceeds

of the marital home and both parties’ requests for appellate

attorney fees.

I. Background

¶2 The parties ended their twenty-six-year marriage in 2012, and

the district court entered permanent orders based on a stipulation.

The parties agreed that wife would continue to live in the marital

home with two of their minor children. The parties further agreed

that when the marital home was sold, wife would retain 75% of the

net sales proceeds and husband would retain 25%. Additionally,

the parties agreed that husband would pay wife $14,400 per month

in maintenance and that he would not provide child support. The

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parties stipulated that the maintenance received by wife would not

be recognized as income and should not be taxable to her.

¶3 In 2015, husband moved to modify his maintenance

obligation, asserting that his income had steadily declined over

several years. He further asserted that at the time of dissolution,

wife cared for the parties’ terminally ill son full-time, but that child

had since passed away, so her ability to work and need to stay in

the marital home had also changed. In turn, wife moved for a

verified entry of support judgment, alleging that she was owed over

$80,000 in maintenance arrearages. The parties stipulated to

reduce maintenance to $9,500 per month until the marital home

was sold, and then it would be reduced to $8,000 per month. The

parties also agreed that after December 2015, the maintenance

payments would no longer be tax-free to wife. The parties also

agreed that husband would satisfy his maintenance arrearages

from the proceeds of the sale of the marital home. Wife filed a full

satisfaction of judgment relating to the maintenance arrearages in

September 2019.

¶4 Several years later, in March 2022, husband moved to

terminate maintenance, alleging that his income had continued to

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decrease since the parties’ previous agreement and that despite his

best efforts he once again owed maintenance arrearages to wife.

¶5 Wife filed a verified entry of support judgment related to the

maintenance arrearages claiming she was again owed a substantial

amount. She also moved for an entry of judgment alleging that

when the marital home was sold, $256,953.69 of the proceeds were

used to pay two liens in husband’s name — one to the IRS and one

for maintenance arrearages to her. Wife asserted that, pursuant to

the original separation agreement, she was entitled to 75% of that

amount, or $192,715.27, plus interest.

¶6 After conducting a hearing, the magistrate terminated

husband’s maintenance obligation, finding that it had become

unfair. The magistrate also entered the verified entry of support

judgment in the amount of $81,164.53 related to the maintenance

arrearages. The magistrate denied wife’s motion for entry of

judgment related to the proceeds of the home, noting that no

statute or operation of law allowed the court to reduce the amount

of the proceeds of the sale of the home to a judgment. Wife

petitioned for review and the district court adopted the magistrate’s

order.

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II. Termination of Maintenance

A. Standard of Review and Applicable Law

¶7 A court may modify or terminate maintenance when there has

been a showing of changed circumstances so substantial and

continuing as to make the terms of the existing maintenance order

unfair. § 14-10-122(1)(a), C.R.S. 2024. This is a demanding

standard, and the party seeking to modify maintenance bears a

heavy burden to prove that the maintenance terms have become

unfair under all relevant circumstances. In re Marriage of Young,

2021 COA 96, ¶¶ 12, 16.

¶8 We review a court’s ruling on a motion to terminate or modify

maintenance for an abuse of discretion. Id. at ¶ 7. The court

abuses its discretion when its decision is manifestly arbitrary,

unreasonable, or unfair, or a misapplication of the law. Id.

¶9 When, as here, the district court reviewed the magistrate’s

ruling, we act as a second layer of appellate review. Id. at ¶ 8; see

also C.R.M. 7(a)(11). In doing so, we must construe the evidence in

the light most favorable to the prevailing party and accept the

magistrate’s factual findings unless they are clearly erroneous,

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meaning that they have no record support. Young, ¶ 8; In re

Marriage of Nelson, 2012 COA 205, ¶ 27.

B. Exclusion of Evidence Regarding Husband’s Family Trust

¶ 10 Wife first claims that the magistrate erred by excluding

evidence of a trust created by husband’s father which wife sought to

introduce to show that husband could continue to pay

maintenance. We disagree.

¶ 11 A modification of maintenance must be based on current

economic circumstances. In re Marriage of Folwell, 910 P.2d 91, 93

(Colo. App. 1995) (known amount of benefits to be received at

definite date in future is proper consideration in setting amount

and duration of maintenance, otherwise modification of

maintenance must be based upon parties’ needs and circumstances

at time of hearing rather than speculation about future conditions);

see also In re Marriage of Simon, 856 P.2d 47, 51 (Colo. App. 1993)

(“Awards of maintenance must be based upon the parties’ needs

and circumstances at the time of the hearing, rather than upon

their past or future conditions.”).

¶ 12 At the hearing, the magistrate found that husband and his

sister are the beneficiaries of a nonrevocable trust, and that

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husband’s father was the direct beneficiary and had a life estate.

Husband testified that his father was deemed incapacitated in

2018, and a guardian was appointed by a Texas court to conduct

his father’s affairs. Accordingly, the guardian made all of the

decisions regarding the trust. Husband testified that he had never

received any money from the trust and did not know its value.

¶ 13 After this testimony, wife attempted to admit the trust

agreement as an exhibit and to explore the real estate holdings of

an investment company that funded the trust. Husband objected,

arguing that such information was not relevant because the value of

the trust was unknown, and it was speculative that he would ever

receive any money from the trust. The magistrate agreed,

explaining that it did not know the current status of the trust, how

much money was in it, or when or if husband would receive any

proceeds.

¶ 14 Relying on In re Marriage of Jones, 812 P.2d 1152, 1158 (Colo.

1991), wife argues the magistrate abused his discretion by declining

to consider husband’s expectancy interest in the family trust as an

“economic circumstance.” We first note that Jones involved the

division of property under section 14-10-113(1)(c), C.R.S. 2024, and

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not maintenance modification. And as discussed, maintenance

modification should be based on the parties’ current financial

circumstances and not speculative future conditions.

C. Voluntary Underemployment and Income Determinations

¶ 15 Wife next claims that the magistrate erred when he

determined husband’s income. She argues that (1) husband was

voluntarily underemployed and (2) money husband characterized as

loans from his father and father’s estate should have been treated

as gifts and not loans. Lastly, she challenges the magistrate’s

finding that she had the ability to work more hours or find

supplemental work. We address and reject each of these

arguments.

1. Voluntary Underemployment

¶ 16 A spouse is voluntarily underemployed if they are shirking a

financial obligation by unreasonably forgoing higher paying

employment that they could obtain. See People v. Martinez, 70 P.3d

474, 476 (Colo. 2003); see also In re Marriage of Wright, 2020 COA

11, ¶ 21 n.3 (“Though Martinez was a child support case, the

analysis of voluntary underemployment is the same in a

maintenance case.”). When making this determination, the court

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considers all relevant factors, including a party’s post-termination

conduct, job search efforts, and refusal to accept employment at a

higher salary. Martinez, 70 P.3d at 480.

¶ 17 Whether a spouse is voluntarily underemployed is a mixed

question of fact and law that “requires the trial court to make

factual findings and apply a legal standard to those findings.” Id. at

476-77.

¶ 18 The magistrate heard testimony from husband and husband’s

income analysis expert. Husband testified that while dissolution

was pending in 2011, he was employed as a creative director for a

large advertising agency making over $400,000 a year. During the

pendency of dissolution he was fired but had retained employment

as a “roster director” from 2012 to 2014. He testified that he was

no longer able to get the work he needed on the roster and that he

“was basically throwing everything” he had at “any opportunity”

with no results. By 2015, he decided to move to modify his

maintenance obligation.

¶ 19 Husband testified that he continued doing freelance

copywriting and any directing job he could find before finally

deciding to start his own directing company. He said he continued

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to look for advertising agency jobs, but that technology and hiring

philosophies had changed and that no one was looking to pay a

sixty-year-old man $400,000 for on the job training. Husband

testified that he worked forty hours a week at his directing company

and had never turned down work offered to him. The magistrate

credited husband’s income analysis expert’s testimony that over the

past five years husband earned an average of $97,405 each year. It

also credited husband’s testimony that he did not want to “give up”

and approach the court for a modification and instead had

attempted for years to get additional funds to make up the shortfall.

The magistrate noted that no party presented a vocational expert

who could address husband’s specific job market, but it found that

husband testified credibly that he continued to look for full-time

work through advertising agencies by using his contacts and a

headhunter, and in the meantime worked diligently at his own

company and did freelance work. In short, it found husband was

not shirking and its finding enjoys record support.

¶ 20 The magistrate also considered money husband received as

gifts from his family’s estate. Husband’s income analysis expert

provided an estimation of husband’s average annual income,

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including tax-motivated gift income husband received in 2021 and

2022. The magistrate credited the expert’s testimony and included

that amount in calculating husband’s income.

¶ 21 For her part, wife argues that the record showed that husband

only sought employment as an advertising executive for about six

months, that most of his evidence pertained to his efforts to get

individual jobs through his current company, and that the

magistrate erred by accepting husband’s income and business

expense calculation “without any scrutiny whatsoever.” But wife

essentially asks us to reweigh the evidence, which we cannot do.

Nelson, ¶ 35 (When reviewing for an abuse of discretion, even where

“there is evidence in the record that could have supported a

different conclusion, we will not substitute our judgment for that of

the district court.”); see also In re Marriage of Thorburn, 2022 COA

80, ¶ 49 (it is for the district court, not the reviewing court, to

determine the witnesses’ credibility and the weight of the evidence).

2. Husband’s Loans

¶ 22 We likewise find record support for the magistrate’s finding

that funds husband received pursuant to promissory notes were

loans and not gifts.

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¶ 23 A court’s determination of money as a debt or a gift depends

on the resolution of factual disputes. See In re Marriage of Hoffman,

650 P.2d 1344, 1345-46 (Colo. App. 1982). “In order to qualify as a

‘gift,’ a transfer of property must involve a simultaneous intention to

make a gift, delivery of the gift, and acceptance of the gift.” In re

Marriage of Balanson, 25 P.3d 28, 37 (Colo. 2001).

¶ 24 Husband testified that he took several loans from his father

from 2014 through 2022, eventually totaling $500,000. He testified

that each time he requested a loan, he did so from either his father,

or, later, from the guardian of his father’s estate, who is a licensed

attorney and with whom husband had no personal relationship.

Five of the promissory notes, totaling $150,000, matured ten years

from the issue date and fourteen of them, totaling $350,000,

matured five years from the issue date. Repayment of the first

promissory note was scheduled to begin in February 2024.

¶ 25 Wife testified that she believed the promissory notes did not

have to be paid back because they were not secured, they had no

default clause, and the payment period of the more recent loans

had decreased from ten years to five years. Thus, she argued, the

funds husband received in connection with the promissory notes

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should be treated as income. The magistrate disagreed, finding that

the promissory notes were not income but, “for the most part, arms

length transactions,” that would have to be repaid starting in

February 2024.

¶ 26 Wife challenges the magistrate’s finding, pointing to husband

having described the loans as an “advance on his inheritance” in

his motion. She further argues that it is “doubtful that any

reasonable fiduciary” would lend husband $500,000 given his

financial difficulties and debts. Wife’s arguments again ask us to

reweigh the evidence to find in her favor and substitute our own

judgment for that of the magistrate, which we cannot do. Nelson,

¶ 35; see also Thorburn, ¶ 49.

3. Wife’s Income

¶ 27 Wife also challenges the magistrate’s finding that she had the

ability to work additional hours or find supplemental work should

the financial need arise. We perceive no error.

¶ 28 Wife testified that she worked a total of thirty-seven hours per

week between two jobs. She made $20 an hour at a package liquor

store and made 10% of her sales through a wine distributor. Wife

admitted that her sales commission with the wine distributor

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compared to the number of hours she put in (i.e., 20 hours/week to

earn $500/month) yielded less than minimum wage but testified

that her business with the wine distributor “was building” and that

she made a “good faith career choice that will yield [her] more

income.” This testimony supports the magistrate’s determination

that wife is capable of earning more income. The magistrate also

observed that wife’s federal income tax withholdings exceeded her

income, and her state withholdings were also “well above schedule.”

This evidence further supports the magistrate’s findings regarding

wife’s income and we will therefore not disturb those findings.

D. Current Spouse’s Contributions to Husband

¶ 29 Wife next claims that the magistrate erred by not considering

husband’s current spouse’s “significant income” when it determined

that husband’s change of circumstances was significant and

continuing. See In re Marriage of Bowles, 916 P.2d 615, 618 (Colo.

App. 1995) (recognizing, under limited circumstances, consideration

of a third party’s resources if “the existence or use of such assets is

directly relevant to an allegation by the payor spouse of a

substantial and continuing change of circumstances in his ability to

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meet his reasonable needs while meeting the needs of his former

spouse”).

¶ 30 We acknowledge that the magistrate found that husband

“testified that he is currently married and relies a lot on his

spouse’s income to pay for a large share of expenses.” However,

this finding is not supported by the record. Husband testified that

his current wife “did not give [him] money” and that she “takes care

of her share of expenses” but “doesn’t supplement [his] direct

lifestyle.” Nothing in the record indicates what expenses husband’s

current wife paid or how her resources were directly relevant to

husband’s changed circumstances. Accordingly, we discern no

error.

E. Termination Rather than Modification of Maintenance

¶ 31 Wife asserts that the magistrate erred by determining husband

had insufficient resources to pay any maintenance. She argues

that the maintenance amount should have been reduced instead of

terminated.

¶ 32 The magistrate found, with record support, that husband

earned an average of $97,405 annually, or $8,117 monthly, and

that the $8,000 per month in maintenance consumed nearly all of

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his monthly earnings. The court noted that husband made regular,

but mostly insufficient, maintenance payments from 2016 forward.

As discussed, husband borrowed roughly $500,000 from his

father’s estate over several years and he estimated that between 80

and 90% of those loans were used to pay wife maintenance or

attorney fees. Even still, at the time of the hearing, husband again

owed more than $80,000 in maintenance arrearages.

¶ 33 Based on this evidence the magistrate found that husband’s

present and future employment prospects had changed so

drastically as to make the amount and term of maintenance unfair.

It further noted that husband’s income was such that he was not

“capable of paying the ordered amount or really any amount.”

Based on this record, we cannot conclude that the magistrate erred

when he found husband’s circumstances had changed so

drastically that he was unable to pay any amount of maintenance.

F. Cumulative Error

¶ 34 To the extent wife seeks to invoke the doctrine of cumulative

error by arguing that the claimed factual errors should be “coupled

with the numerous procedural and substantive due process

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violations,” that doctrine does not apply in civil cases, see Scott R.

Larson, P.C. v. Grinnan, 2017 COA 85, ¶ 79.

III. Order Regarding Proceeds from Marital Home

¶ 35 Lastly, wife argues that the magistrate erred when he denied

her motion for entry of judgment quantifying the amount due to her

after the sale of the marital home. We agree.

¶ 36 We review de novo questions of law, including whether the

magistrate properly interpreted a statute or applied the correct legal

standard. Thorburn, ¶ 26.

¶ 37 A dissolution court “retains jurisdiction to enforce its orders

and to ensure complete resolution of the issues addressed in the

orders, including marital property division.” Wilson v. Prentiss, 140

P.3d 288, 291 (Colo. App. 2006). Where the dissolution court

entered orders addressing the marital property in question, it has

continuing jurisdiction to address that property. See Mockelmann

v. Mockelmann, 121 P.3d 337, 339 (Colo. App. 2005) (a court has

continuing jurisdiction to enforce its orders).

¶ 38 We therefore conclude the magistrate erred by finding he did

not have jurisdiction to enter a judgment for the amount wife was

owed from the proceeds of the sale of the marital home.

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Accordingly, we remand this issue to the district court to consider

wife’s request; the court may, if it deems it necessary, consider

additional evidence.

IV. Attorney Fees

¶ 39 Both parties request appellate attorney fees under section 14-

10-119, C.R.S. 2024, based on the disparity in their incomes and

costs pursuant to C.A.R. 39. Because the district court is in a

better position than we are to make findings about the parties’

financial circumstances, we direct the court to consider both

parties’ appellate fee requests on remand based on the parties’

relative financial circumstances at that time. See C.A.R. 39.1; In re

Marriage of Martin, 2021 COA 101, ¶ 42.

V. Disposition

¶ 40 We affirm the order in part, reverse it in part, and remand the

case for further proceedings.

JUDGE HARRIS and JUDGE GROVE concur.

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