Marriage of Schmidt

24CA1620 Marriage of Schmidt 05-15-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA1620
Arapahoe County District Court No. 22DR1404
Honorable Christina Apostoli, Judge

In re the Marriage of

Sara Jean Schmidt,

Appellant,

and

Andrew Robert Schmidt,

Appellee.

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

Division A
Opinion by CHIEF JUDGE ROMÁN
Bernard* and Hawthorne*, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced May 15, 2025

Springer and Steinberg, P.C., Amy M. Springer, Michael P. Zwiebel, Denver,
Colorado, for Appellant

Montgomery, Little, & Soran, P.C., Sibylle M. Clark, Greenwood Village,
Colorado, for 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 In this dissolution of marriage case between Sarah Jean

Schmidt (wife) and Andrew Robert Schmidt (husband), wife appeals

the permanent orders regarding property division, maintenance and

child support. We affirm the portion of the judgment concerning

property division, and reverse the portions of the judgment

concerning maintenance, child support, and attorneys fees, and

remand the case to the district court.

I. Background

¶2 In 2022, the parties petitioned to dissolve their nineteen-year

marriage. The hearing on the petition took place in January 2024,

but the judicial officer retired without notifying the parties or

issuing permanent orders. In July 2024, a new judicial officer

issued permanent orders based on the hearing transcript. In

dividing the marital estate, the court determined an interest in a

mountain condominium was husband’s separate property. It also

denied wife’s request for maintenance. Wife moved to amend the

permanent orders pursuant to C.R.C.P. 59 to address six

outstanding issues, including her motion for attorney fees and

costs. The court issued orders addressing these issues and denying

wife’s motion for attorney fees in October 2024.

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II. Classification of Mountain Condominium

¶3 We consider and reject wife’s contention that the district court

erred by classifying a portion of the mountain condominium as

husband’s separate property interest.

A. Standard of Review and Applicable Law

¶4 The classification of property as a marital asset or a separate

asset presents a legal issue that is based on the district court’s

factual findings. In re Marriage of Morton, 2016 COA 1, ¶ 5. We

defer to the court’s factual findings absent an abuse of discretion

and independently review its resolution of legal questions. Id.

¶5 A property division requires two steps: first, the court

determines whether an interest constitutes “property” and then, if

so, whether it is marital or separate property. In re Marriage of

Balanson, 25 P.3d 28, 35 (Colo. 2001). The court sets aside the

spouses’ separate property and then divides the marital property.

§ 14-10-113(1), C.R.S. 2024.

¶6 All property acquired during the marriage is presumed

marital. See § 14-10-113(3); In re Marriage of Vittetoe, 2016 COA

71, ¶ 18. The marital property presumption can be overcome by

evidence establishing that the property in question falls within one

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of four exceptions listed in section 14-10-113(2). Balanson, 25 P.3d

at 36. In this context, property that is acquired in exchange for

premarital property is excluded from the marital property. See

§ 14-10-113(2)(b). To retain its separate character, premarital

property must be traceable to specific assets and there must be

clear and convincing evidence of a party’s intent to keep the

property separate. See In re Marriage of Capparelli, 2024 COA

103M, ¶¶ 11, 17; see also In re Marriage of Green, 169 P.3d 202,

204 (Colo. App. 2007).

B. Analysis

¶7 The district court classified $525,000 of the value of a jointly

titled mountain condominium as husband’s separate property, and

the remainder as marital property. In its orders, the court recited

appropriate law in making a separate property determination,

including that property in joint ownership is presumed to be marital

property unless there is clear and convincing evidence to the

contrary.

¶8 The record supports the court’s finding that husband retained

a separate property interest of $525,000 in a portion of the

mountain condominium. Husband’s property tracing expert

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testified that husband inherited a large sum of money, transferred

$525,000 into an account held by husband alone, and “the intent

was for that money to be parked there for a few days before it got

moved out” and was loaned to allow the purchase of the mountain

condominium. The court received the property tracing expert’s

report into evidence. Husband also testified that he transferred the

funds from an inherited account with the intent that they would

remain a separate property interest. Although wife provided

evidence of a contrary intent, it is in the district court’s sound

discretion to resolve discrepancies in the evidence. Morton, ¶ 5.

The court “can believe all, part, or none of a witness’s testimony,

even if uncontroverted, and its resolution of conflicting evidence is

binding on review.” In re Marriage of Amich, 192 P.3d 422, 424

(Colo. App. 2007). We will not reweigh the evidence or set aside the

court’s findings when, as here, the record supports them. See In re

Marriage of Evans, 2021 COA 141, ¶ 45.

¶9 We therefore discern no error in the court’s classification of

husband’s separate property interest in the mountain

condominium.

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III. Maintenance and Child Support

¶ 10 Next, wife argues that the district court erred in determining

her income for maintenance and child support purposes. Because

we are unable to discern how the court arrived at wife’s income, we

agree.

¶ 11 When awarding maintenance and child support, the district

court must make findings concerning the parties’ gross incomes.

§ 14-10-114(3)(a)(I)(A), (8)(c)(I), C.R.S. 2024 (maintenance); § 14-10-

115(3)(c), (5)(a)(I), C.R.S. 2024 (child support). We review a court’s

maintenance and child support orders for an abuse of discretion,

and, in doing so, we will not disturb the court’s factual findings

unless they are unsupported by the record. In re Marriage of

Schaefer, 2022 COA 112, ¶ 8.

¶ 12 Referencing an evaluation prepared by husband’s vocational

expert, the court found that wife’s average earnings over three years

were $114,000 or $9,500 monthly.

¶ 13 Wife and both parties’ vocational experts testified that wife’s

income as a real estate agent would vary, and that the last several

years of wife’s income demonstrated both high and low points in the

market. It is well established that when there is substantial

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fluctuation or conflicting evidence regarding income, the court may

consider past earnings and average such earnings to determine a

party’s current income. See Capparelli, ¶ 32. We therefore discern

no error in the court’s stated approach of averaging earnings from

several years to determine wife’s income.

¶ 14 However, husband’s vocational expert opined that wife’s

average net earnings were $102,855 per year, not $114,000. Even

using other earnings figures adopted by husband’s vocational

expert, we are unable to ascertain how the district court arrived at

$114,000 as wife’s income. Furthermore, the vocational expert

made clear that her proposed “figure assumes [wife] would have

doubled her income if she had worked a full year in 2021.” In other

words, the expert’s figures used wife’s potential, and not actual,

income.

¶ 15 A district court may base its calculation on a determination of

potential income if it determines that the party is voluntarily

underemployed. §§ 14-10-114(8)(c)(IV)(for maintenance); 14-10-

115(5)(b)(I)(for child support). But the district court made no such

finding here, and husband concedes there was no evidence

presented at the hearing to support such a finding.

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¶ 16 We recognize that the district court was in a difficult position,

entering orders many months after the evidentiary hearing and

based only on transcripts. But the court must make sufficiently

explicit factual findings to give the appellate court a clear

understanding of the basis of the order. In re Marriage of Gibbs,

2019 COA 104, ¶ 9.

¶ 17 We therefore reverse the maintenance and child support

portions of the permanent orders and remand to the district court

to determine wife’s income and provide clear support for how it

arrived at that number. In re Marriage of Kann, 2017 COA 94,

¶¶ 97-80. If wife is still a real estate agent, the court may

appropriately average wife’s past earnings in determining her actual

income. Capparelli, ¶ 32. Alternatively, if the court makes findings

that wife is voluntarily underemployed or unemployed, it may

impute income to wife. §§ 14-10-114(8)(c)(IV); 14-10-115(5)(b)(I).

But in making its income determination, it may not use both actual

and imputed income.

¶ 18 After determining wife’s income, we direct the court to

consider wife’s request for maintenance and child support, following

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the procedure laid out in sections 14-10-114(3)(a)(I) and 14-10-

115(7).

¶ 19 In reconsidering these issues, the court must base its decision

on the parties’ financial circumstances at the time of remand.

Morton, ¶ 34. To do so, the district court may take additional

evidence on these issues.

IV. Attorney Fees

¶ 20 Last, wife moved for attorney fees and costs pursuant to

section 14-10-119, C.R.S. 2024. At the start of the hearing, the

court and parties agreed to address wife’s motion at a separate

hearing, to be set at another time. Before beginning her testimony,

wife confirmed that she would present evidence regarding attorney

fees at a separate hearing. At the conclusion of the hearing, the

court told the parties that it would contact them prior to issuing

permanent orders.

¶ 21 However, the assigned judicial officer retired a month later

without notifying the parties. The matter was reassigned to another

judicial officer by the district’s chief judge, who told the parties that

that if there were issues that “cannot be gleaned from the

transcript” or “something where there’s any point of confusion or

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any issue, we’ll reach out to you all” for another status conference.

The newly assigned judicial officer reviewed the transcript from the

hearing and issued permanent orders three months later. Three

months after that, the court ruled on wife’s motion for attorney fees.

The court noted that the January 2024 transcript did not contain

any information or evidence regarding wife’s request for attorney

fees and further noted that wife did not schedule any further

hearing to present evidence to support her motion. The court

therefore denied wife’s motion.

¶ 22 It is unclear from the district court’s order if it simply denied

the motion for attorney fees given the financial circumstances of the

parties at the time or if it found that wife implicitly waived her

request for a hearing by her failure to take steps to schedule one.

¶ 23 Waiver is the intentional relinquishment of a known right. To

establish waiver, there must be a clear, unequivocal, and decisive

act by the party against whom waiver is asserted. In re Marriage of

Schlundt, 2021 COA 58, ¶ 18. “To constitute an implied waiver, the

conduct must be free from ambiguity and clearly manifest the

intent not to assert the benefit.” In re Marriage of Hill, 166 P.3d

269, 273 (Colo. App. 2007). Here, although wife filed a number of

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post-trial motions, a request for hearing on the issue of attorney

fees was not among them. While the court made findings about

wife’s failure to act and not the financial circumstances of the

parties, the court failed to make a clear finding that wife waived the

issue of attorney fees.

¶ 24 On remand, the district court should make sufficient findings

about wife’s motion for attorney fees so that we can determine the

basis of its decision. If the court finds that wife did not waive the

issue, it may reconsider wife’s entitlement to an award of attorney

fees under section 14-10-119. In so doing, the court should base

its decision on the parties’ financial circumstances at the time of

remand. Morton, ¶ 34.

¶ 25 Because the district court is better equipped to determine the

factual issues regarding the parties’ current financial resources, we

also direct the court on remand to determine whether an award of

appellate attorney fees under section 14-10-119 is appropriate. See

In re Marriage of Alvis, 2019 COA 97, ¶ 30.

V. Disposition

¶ 26 The portions of the judgment concerning the property division

are affirmed. The portions of the judgment concerning

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maintenance, child support, and wife’s request for attorney fees are

reversed. The case is remanded for further findings and

proceedings as to wife’s requests for maintenance, child support,

attorney fees, and appellate attorney fees. Those portions of the

judgment not challenged on appeal remain undisturbed.

JUDGE BERNARD and JUDGE HAWTHORNE concur.

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