Marriage of Bailey

23CA1280 Marriage of Bailey 03-06-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1280
Jefferson County District Court No. 21DR30933
Honorable Jack W. Berryhill, Judge

In re the Marriage of

Charlene M. Bailey,

Appellee and Cross-Appellant,

and

David E. Bailey,

Appellant and Cross-Appellee.

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

Division III
Opinion by JUDGE TOW
Dunn and Graham*, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced March 6, 2025

Belzer Law, Aaron B. Belzer, Ashlee N. Hoffman, Boulder, Colorado; Stahly
Miner, LLC, Todd A. Stahly, J.P. Prentiss, Denver, Colorado, for Appellee and
Cross-Appellant

Caplan & Earnest, LLC, Andrew C. Littman, Craig A. Weinberg, Boulder,
Colorado, for Appellant and Cross-Appellee

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2024.
¶1 David E. Bailey (husband) appeals the permanent orders

entered on the dissolution of his marriage to Charlene M. Bailey

(wife). He argues that the trial court erred by holding that the

parties’ premarital agreement (PMA) was invalid and otherwise

unenforceable. Wife cross-appeals the trial court’s division of the

marital property, asserting that the court erred in its valuation of

husband’s business. We affirm the judgment as to wife’s cross-

appeal, reverse the judgment as to husband’s appeal, and remand

for further proceedings.

I. Background

¶2 The parties married in 2006. In January 2000, over six years

before their marriage, wife executed the PMA, which already bore

husband’s signature when it was presented to her. At the time, the

parties had been in a relationship for approximately five years. Wife

testified that while the parties had previously discussed entering

into a premarital agreement, it had been a source of disagreement

in their relationship because she adamantly opposed such an

agreement.

¶3 According to wife, husband presented the PMA to her shortly

after the parties had moved together into a new house, and his

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presentation of the PMA resulted in a significant argument. While

wife initially refused to sign, she testified that over the course of the

argument, husband became “angry” and was “personally attacking”

her. She asserted that she was not afforded any time to read the

PMA, discuss it with an attorney, or review certain handwritten

annotations that husband had made on the document. After an

hour of arguing, wife angrily signed the PMA on a page titled,

“Statement of Counsel,” which contained signature blocks for the

parties’ respective attorneys to acknowledge the PMA. The PMA was

not notarized, and the signature block for wife’s signature was left

blank.

¶4 Wife explained that she eventually signed because husband

would not stop “pressuring” and “badgering” her to sign, and she

“needed to get out of the situation” because she was afraid husband

would “snap.” Exhibits where the parties could provide financial

disclosures were left blank. However, wife acknowledged that she

had been generally aware of husband’s finances before the parties

were married.

¶5 The dissolution proceedings were bifurcated. After an initial

hearing on the validity of the PMA, the trial court held that the PMA

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was neither valid nor enforceable under Colorado law based on

“procedural unconscionability” surrounding the PMA’s execution.

¶6 At the hearing on the division of the marital property, the

parties called multiple expert witnesses to opine on the premarital

and present value of husband’s interest in his family’s longstanding

business, Erie County Investment Co. (Erie). The trial court

ultimately adopted, with minor alterations, the valuations proposed

by husband’s experts. Accordingly, the trial court found that

husband’s separate, premarital interest in Erie was worth

$19,355,581 and his present interest in Erie was worth

$21,754,061, meaning that there was a $2,398,480 increase in the

value of Erie that qualified as marital property, which the court

allocated.

II. Husband’s Appeal Concerning the Validity and Enforceability
of the PMA

¶7 Husband’s sole contention on appeal is that the trial court

erred by refusing to enforce the PMA. Because we agree that the

trial court strayed from the applicable legal standards and

otherwise made insufficient factual findings, we conclude that

further proceedings are necessary.

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A. The Colorado Marital Agreement Act

¶8 Because the PMA was executed by wife in 2000, the Colorado

Marital Agreement Act (CMAA) applies. See § 14-2-310, C.R.S.

2000 (providing that the CMAA is applicable to all premarital

agreements signed after July 1, 1986); § 14-2-303, C.R.S. 2024

(applying the later, Uniform Premarital and Marital Agreements Act

to all premarital agreements signed after July 1, 2014).

¶9 Under the CMAA, a marital or premarital agreement must be

in writing and signed by both parties. § 14-2-303, C.R.S. 2000.

However, a premarital agreement is not otherwise enforceable if the

party opposing enforcement proves (1) that “[s]uch party did not

execute the agreement . . . voluntarily” or (2) that “[b]efore execution

of the agreement . . . such party was not provided a fair and

reasonable disclosure of the property or financial obligations of the

other party.” § 14-2-307(1), C.R.S. 2000; In re Marriage of Goldin,

923 P.2d 376, 380 (Colo. App. 1996) (“Absent involuntary execution

or unfair and unreasonable disclosure . . . , a marital agreement is

enforceable.”).

¶ 10 While the CMAA does not define “voluntarily,” or what

constitutes a “fair and reasonable disclosure,” see § 14-2-307(1),

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C.R.S. 2000, the supreme court has explained that “[t]he General

Assembly’s overriding intent in passing the CMAA was to codify

Colorado’s common law regarding marital agreements.” In re

Marriage of Ikeler, 161 P.3d 663, 668 (Colo. 2007). Thus, we may

look to Colorado cases concerning premarital agreements that

predate the CMAA to inform our interpretation of the statute. See

id.

¶ 11 We review the trial court’s interpretation of the CMAA and its

other conclusions of law de novo. Id. at 666. In interpreting the

CMAA, we first look to the language of the statute and afford the

words their plain and ordinary meanings, and we must consider the

statute as a whole and interpret it in order to give consistent,

harmonious, and sensible effect to all its parts. Id. at 666-67. If

the language in the statute is clear, it must be applied as written.

In re Marriage of Zander, 2019 COA 149, ¶ 12, aff’d, 2021 CO 12.

¶ 12 We defer to the trial court’s factual findings unless they are

clearly erroneous, meaning that there is no evidence to support

them. In re Marriage of Dean, 2017 COA 51, ¶ 8. However, the

court must make findings of fact and conclusions of law sufficiently

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explicit to give us a clear understanding of the basis of its order.

See C.R.C.P. 52; In re Marriage of Gibbs, 2019 COA 104, ¶ 9.

B. Discussion

1. The Trial Court’s Order

¶ 13 In its written order invalidating the PMA, the trial court cited

the CMAA and acknowledged that a premarital agreement is invalid

if not executed voluntarily or if there was not adequate disclosure of

the parties’ respective property and finances. But the trial court,

relying primarily on secondary sources and foreign authority,

invalidated the PMA based on “procedural unconscionability” at the

time of its execution.

¶ 14 The trial court reasoned that while wife in fact signed the PMA,

she did not sign it intelligently or knowingly. The court cited the

fact that wife was unrepresented, and the “anger and emotional

turmoil” surrounding the PMA’s presentation to her “without any

prior explanation to her of [its] contents and provisions.”

¶ 15 The trial court also expressed concern that wife received

inadequate financial disclosures because there was no evidence as

to what information she had received and as to when she received

it, especially given the PMA’s blank disclosure exhibits. Based on

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the totality of the circumstances surrounding the PMA’s execution,

the court concluded that “such defective procedures” made the PMA

“unconscionable and unenforceable.” Because the court concluded

that the circumstances surrounding the PMA’s execution were

unconscionable, it did not review the substance of the document for

unconscionability.

2. The PMA Constituted a Premarital Agreement

¶ 16 As an initial matter, we reject wife’s assertion that we should

affirm because the PMA did not constitute a “marital agreement” as

defined by the CMAA, making it unenforceable. In its written order,

the trial court questioned, without deciding, whether the PMA in

fact constituted a marital agreement.

¶ 17 The CMAA defines a marital agreement as “an agreement . . .

between prospective spouses made in contemplation of marriage.”

§ 14-2-302(1), C.R.S. 2000. Wife argues that the PMA was not

“made in contemplation of marriage.” But the PMA unambiguously

states that the parties “may contemplate marriage to each other,”

and that the parties desired that “their cohabitation and possible

marriage shall not in any way change their current legal rights.”

We conclude that such language sufficiently establishes that the

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PMA was “made in contemplation of marriage” and, thus, the CMAA

applies.

¶ 18 Wife cites In re Marriage of Green, 169 P.3d 202, 203 (Colo.

App. 2007), where the court declined to enforce an agreement under

the CMAA because the parties were not contemplating marriage.

But Green is distinguishable because the agreement there only

stated that the parties intended “to live together” and did not

reference marriage in any way. See id. Consequently, we conclude

that the PMA falls within the definition of a “marital agreement” in

section 14-2-302(1), C.R.S. 2000, and we proceed to consider

husband’s argument that the trial court otherwise erred by

invalidating the PMA.

3. Further Findings Are Required on Whether Wife Executed the
PMA “Voluntarily”

¶ 19 Husband argues that the trial court erred by invalidating the

PMA based on “procedural unconscionability” because such a

defense to enforcement of a premarital agreement is not found

within the CMAA. We agree.

¶ 20 Section 14-2-307, C.R.S. 2000, contains only three defenses to

the enforcement of a premarital agreement: (1) that the agreement

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was not executed voluntarily; (2) that the party opposing

enforcement did not receive “fair and reasonable” disclosure of the

other party’s property or financial obligations; and (3) that, at the

time of enforcement, the agreement’s provisions as to spousal

maintenance are unconscionable. See § 14-2-307(1), (2), C.R.S.

2000. The inclusion of these specific statutory defenses suggests to

us that the legislature intended the enumerated defenses to be the

exclusive defenses to the enforcement of a premarital agreement.

See Beeghly v. Mack, 20 P.3d 610, 613 (Colo. 2001) (recognizing

that under the canon of statutory interpretation expressio unius est

exclusio alterius, omissions from a statute are given the same effect

as inclusions, meaning that the inclusion of certain items implies

the exclusion of others).

¶ 21 Accordingly, we conclude that the defense of “procedural

unconscionability,” which is not found in section 14-2-307, C.R.S.

2000, was not a basis for invalidating the PMA. See Beeghly, 20

P.3d at 613; Zander, ¶ 12. And because the court invalidated the

PMA based on procedural unconscionability, it never decided

whether wife executed the PMA voluntarily under section 14-2-

307(1), C.R.S. 2000. Indeed, we cannot locate any place in the

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relevant order where the court explicitly found that the PMA was

either voluntarily or involuntarily executed by wife. Therefore, we

remand the case for findings on whether the PMA was entered into

voluntarily.

¶ 22 That being said, we reject husband’s claim that, as a matter of

law, wife “voluntarily” signed the agreement merely because she

“intended” to sign it. Rather, whether wife voluntarily entered into

the agreement is a factual inquiry that must be left to the trial court

to decide in the first instance, applying traditional concepts of

voluntariness as the court identified in its original order.

¶ 23 Moreover, because of the trial court’s erroneous application of

the law to declare the PMA unenforceable, it never analyzed

whether the provisions of the agreement regarding maintenance

would be unconscionable at the time of enforcement. See § 14-2-

307(2), C.R.S. 2000. Thus, if the court determines on remand that

wife voluntarily executed the PMA, it must consider that partial

defense to the enforceability of the agreement. We express no

opinion on the outcome of either analysis.

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4. Wife’s General Knowledge of Husband’s Finances Was
Sufficient

¶ 24 Husband next argues that the trial court erred in holding that

he had not sufficiently disclosed his financial information to wife at

the time the PMA was executed. While the trial court did not make

explicit findings as to whether wife was provided with “a fair and

reasonable disclosure” of husband’s finances, see § 14-2-307(1)(b),

C.R.S. 2000, because the court found that wife was generally aware

of husband’s finances, we agree with husband that wife received a

“fair and reasonable” disclosure of husband’s financial information

as a matter of law.

¶ 25 Under the common law that the CMAA codified, see Ikeler, 161

P.3d at 668, a fair and reasonable financial disclosure does not

require the parties to exchange a detailed list of assets. In re Estate

of Lewin, 595 P.2d 1055, 1058 (Colo. App. 1979). Instead, “[f]air

disclosure contemplates that each spouse should be given

information, of a general and approximate nature, concerning the

net worth of the other,” In re Estate of Lopata, 641 P.2d 952, 955

(Colo. 1982), and a party’s “general knowledge of the extent of [the

other party’s] assets, . . . even though she may have been unaware

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of their exact value,” may constitute sufficient disclosure. In re

Marriage of Ingels, 596 P.2d 1211, 1214 (Colo. App. 1979).

¶ 26 For instance, in Newman v. Newman, 653 P.2d 728, 733 (Colo.

1982), the premarital agreement was held enforceable where the

wife “had access to the records of her husband’s financial interests

when she worked for him as a bookkeeper and later during their

two years of courtship,” and wife decided to sign the agreement

“with full knowledge that her husband was a person of substantial

wealth.” Similarly, in In re Marriage of Rahn, 914 P.2d 463, 465

(Colo. App. 1995), “[e]ven though the prenuptial agreement

contemplated that the parties would attach lists of their assets,

[and] neither party complied,” the agreement was nevertheless

enforceable given the wife’s general knowledge of the husband’s

assets. See also In re Estate of Stever, 392 P.2d 286, 287 (Colo.

1964) (agreement enforceable where the wife “had known [husband]

more than thirty years, . . . she knew he had property in Kansas,

knew he had ranch property in Colorado[,] and . . . she had visited

some of [the husband’s] ranch properties”).

¶ 27 Here, the trial court found that while there “was testimony

about Wife’s access to financial information and data about

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Husband’s assets and income, there was no credible evidence about

what financial information and data she actually had, or when, or

what such financial information actually disclosed.” The trial court

cited the blank financial disclosure exhibits at the end of the PMA.

Yet, with record support, the trial court also acknowledged wife’s

concession “that she was generally aware of Husband’s assets when

they moved together [in December of 1999], although not their exact

values.”

¶ 28 But because general knowledge of the other party’s assets is

sufficient, even where the parties may have failed to include an

exhibit listing their assets, we conclude as a matter of law that the

trial court’s finding that wife generally knew of husband’s assets

less than a month before her execution of the PMA was sufficient to

satisfy the CMAA’s reasonable and fair financial disclosure

requirement. See Rahn, 914 P.2d at 465; Ingels, 596 P.2d at 1214.

III. Wife’s Cross-Appeal as to the Valuation of Husband’s Business

¶ 29 Because the trial court, on remand, may again find that the

PMA is unenforceable, we address wife’s cross-appeal, which

challenges the trial court’s premarital valuation of husband’s

interest in Erie. Specifically, wife argues that the trial court

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undervalued husband’s premarital interest by approximately $4.4

million because the court erroneously failed to adjust the value of

husband’s interest for certain “built-in capital gains taxes” that Erie

would have to pay as a C corporation. In other words, wife

contends that, when determining the value of the business at the

time of the marriage nearly twenty years ago — a business that was

not pending sale at the time of the marriage and, indeed, was not

sold during the marriage — the court was required to consider the

potential tax liability on unrealized capital gains. We are not

persuaded.

A. Standards of Review and Applicable Law

¶ 30 When dividing marital assets, the court may select the

valuation of one party over that of the other party or make its own

valuation, and its decision will be affirmed if the value is reasonable

in light of the evidence as a whole. In re Marriage of Medeiros, 2023

COA 42M, ¶ 41; In re Marriage of Krejci, 2013 COA 6, ¶ 23

(recognizing that a valuation will be upheld “unless clearly

erroneous”). However, we review the trial court’s conclusions of law

de novo. In re Marriage of Cardona, 321 P.3d 518, 523 (Colo. App.

2010), aff’d, 2014 CO 3.

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¶ 31 In valuing a marital asset, the trial court “may, in its

discretion, consider tax consequences.” In re Marriage of Finer, 920

P.2d 325, 332 (Colo. App. 1996). For instance, In re Marriage of

Bayer, 687 P.2d 537, 539 (Colo. App. 1984), held that the district

court had the discretion to determine whether an equitable division

of the marital property was best achieved by considering the net

equity or gross equity in the parties’ mountain condominium. Id.

Because “there was no evidence of a potential sale of the property,”

the Bayer division held that the district court had not abused its

discretion by refusing to consider capital gains taxes that the

husband would pay in the event of a sale. Id.

¶ 32 Similarly, in Finer, 920 P.2d at 332, the division held that the

district court abused its discretion by subtracting selling costs and

capital gains taxes from the value of a condominium where there

was “no evidence as to whether [the] husband intended to keep or

to sell” the property. The court reasoned that whether to adjust for

such costs involves “a determination whether the property will

actually be sold, thereby resulting in a net equity.” Id.; see also In

re Marriage of Woodrum, 618 P.2d 732, 734 (Colo. App. 1980)

(holding that in valuing the marital home, the district court could,

15
within its discretion, deduct estimated real estate commissions and

capital gains taxes), overruled on other grounds by In re Marriage of

Nussbeck, 974 P.2d 493 (Colo. 1999).

B. Discussion

¶ 33 Here, although wife argued, based on federal decisions valuing

C corporations for tax purposes, that the trial court was required to

deduct mandatory capital gains taxes from the premarital valuation

of Erie, the trial court disagreed. See Eisenberg v. Comm’r, 155

F.3d 50, 54-59 (2d Cir. 1998) (holding that for gift tax purposes, “an

adjustment for potential capital gains tax liabilities should be taken

into account in valuing the stock at issue in the closely held C

corporation” because a hypothetical buyer would take into account

unavoidable “built-in” capital gains taxes that had been imposed on

C corporations since 1986); Est. of Jelke v. Comm’r, 507 F.3d 1317,

1318-21 (11th Cir. 2007) (holding the same for estate tax valuation

purposes).

¶ 34 The trial court reasoned that because there was no evidence of

a contemplated sale of Erie or its assets, the taxes that may apply

to a future sale were speculative. The court cited the testimony of

husband’s first expert witness, who had valued Erie as a “going

16
concern” and had stated that it was inappropriate to deduct capital

gains taxes under Bayer. The court rejected the federal tax cases

cited by wife as not applicable to the Uniform Dissolution of

Marriage Act, and adopted the reasoning of husband’s experts, who

had valued Erie based on the assumption that the business was not

going to be liquidated but would continue operating.

¶ 35 Wife asks us to reverse the trial court’s valuation and hold as

a matter of law that the trial court was required to consider capital

gains taxes when valuing Erie as a C corporation. But we decline to

do so because the Colorado Supreme Court has previously refused

to impose per se legal tests governing the valuation of marital

property given the discretion vested in trial courts to divide marital

estates equitably. See In re Marriage of Thornhill, 232 P.3d 782, 787

(Colo. 2010).

¶ 36 Specifically, in Thornhill, 232 P.3d at 785, the supreme court

declined to adopt an overarching rule prohibiting the application of

marketability discounts to the valuation of an ownership interest in

a closely held corporation. Even though the supreme court had

previously prohibited marketability discounts in the context of a

corporation buying out a dissenting minority shareholder, see

17
Pueblo Bancorporation v. Lindoe, Inc., 63 P.3d 353 (Colo. 2003), the

Thornhill court refused to extend that blanket prohibition to

dissolution of marriage proceedings. Thornhill, 232 P.3d at 785.

The court reasoned that section 14-10-113, C.R.S. 2024, did not

specifically require marital assets to be assigned their fair market

value, and that said section instead gave district courts “broad

discretion to divide marital property as they ‘deem[] just’ after

‘considering all relevant factors.’” Thornhill, 232 P.3d at 786

(quoting § 14-10-113(1)). Consequently, Thornhill left the

application of a marketability discount to the discretion of the trial

court because “the language of the marriage dissolution statute

suggests that a case-by-case approach is most appropriate.” Id. at

787.

¶ 37 We see no reason to depart from Thornhill here, as nothing in

the text of section 14-10-113(1) suggests that the trial court was

required, as a matter of law, to account for capital gains taxes in

valuing Erie, as opposed to valuing and dividing the marital estate

in a way that the court deemed just. While wife cites two out-of-

state cases that required unrealized capital gains tax liability to be

accounted for when valuing a C corporation during divorce

18
proceedings, see Bathke v. Costley, 332 So. 3d 1076, 1078 (Fla.

Dist. Ct. App. 2021); Wechsler v. Wechsler, 866 N.Y.S.2d 120, 122–

29 (App. Div. 2008), we decline to mandate such a valuation

approach because Thornhill, 232 P.3d at 787, affords trial courts

substantial discretion to value assets on a case-by-case basis.

¶ 38 Nor do we perceive any abuse of the trial court’s substantial

discretion here. In declining to include the potential tax liability on

unrealized capital gains in its valuation of Erie, consistent with

Bayer, 687 P.2d at 539, and Finer, 920 P.2d at 332, the trial court

found that there was no indication that a sale of Erie, and thus the

payment of capital gains taxes, was imminent. Cf. In re Marriage of

Dale, 87 P.3d 219, 226 (Colo. App. 2003) (“[A] trial court is not

obligated to consider hypothetical tax implications.”).

¶ 39 Moreover, the trial court’s findings were supported by the

testimony of husband’s expert, who stated that as of the premarital

valuation date, no portions of Erie were for sale. And the trial

court’s finding that Erie’s tax liability was speculative likewise

enjoyed record support. Wife’s own expert conceded that capital

gains taxes were not payable until the actual liquidation of Erie,

and experts for both parties acknowledged that, had there been a

19
sale, at least some capital gains taxes could possibly have been

avoided at the time of the premarital valuation using a “1031

exchange.” Cf. In re Marriage of Grubb, 721 P.2d 1194, 1196 (Colo.

App. 1986) (no abuse of discretion in refusing to consider tax

consequences where “although a tax liability was certain, the

amount of such liability was speculative”), rev’d on other grounds,

745 P.2d 661 (Colo. 1987). While wife points to other evidence,

such as internal Erie documents that considered potential tax

liability on unrealized capital gains, the trial court, as fact finder,

was free to weigh such evidence as it saw fit. In re Marriage of

Lewis, 66 P.3d 204, 207 (Colo. App. 2003) (recognizing that

credibility determinations and the weight, probative force, and

sufficiency of the evidence, as well as the inferences and

conclusions to be drawn therefrom, are within the trial court’s sole

discretion).

¶ 40 We also disagree with wife’s assertion that the trial court erred

because it concluded that it was categorically prohibited from

considering Erie’s potential tax liability on unrealized capital gains.

Nowhere in the permanent orders did the trial court make such a

ruling. Instead, the court acknowledged Bayer, 687 P.2d at 539,

20
which affords the court the discretion to consider capital gains

taxes, and it emphasized that it had exercised that discretion when

selecting between each party’s respective valuation.

¶ 41 Finally, to the extent that wife argues that the trial court erred

because husband’s experts were allowed to impermissibly express

an opinion on the applicable law, we decline to review her

contention given her lack of a contemporaneous objection to that

testimony. See CRE 103(a); see also People v. Martinez, 549 P.2d

758, 760 (Colo. 1976) (“It is axiomatic that contemporaneous

objections must be made to allegedly erroneous rulings.”).

Likewise, we decline to consider wife’s contention, raised for the

first time in her reply brief, that the trial court made an additional

valuation error because it calculated the premarital value of Erie

without considering capital gains taxes, but then included such

capital gains taxes when determining the present value of Erie,

resulting in an inconsistent valuation. See In re Marriage of Herold,

2021 COA 16, ¶ 14 (issue raised for the first time in reply brief will

not be addressed).

¶ 42 In sum, we affirm the trial court’s determination of both the

premarital and marital values of husband’s interest in Erie, and in

21
the event the trial court again determines on remand that the PMA

is unenforceable, it may reinstate its original marital property

division.

IV. Disposition

¶ 43 The portion of the judgment determining the premarital and

marital values of husband’s interest in Erie is affirmed. The portion

of the judgment determining the enforceability of the PMA is

reversed, and the case is remanded for further proceedings.

¶ 44 On remand, the court shall first reconsider whether wife

voluntarily executed the PMA and make findings accordingly. If the

court finds wife did not voluntarily execute the PMA, it may

reinstate the original marital property division.

¶ 45 If, on the other hand, the court finds wife voluntarily executed

the PMA, it must re-open the marital property division to enforce

the applicable provisions of the PMA and allow the parties to

present additional evidence on their present economic

circumstances. If the court reopens the marital property division, it

must also consider whether the provisions of the PMA regarding

maintenance are presently unconscionable.

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¶ 46 Those portions of the judgment not challenged on appeal

remain undisturbed.

JUDGE DUNN and JUDGE GRAHAM concur.

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