Marriage of Breining

24CA1454 Marriage of Breining 09-04-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA1454
El Paso County District Court No. 23DR30395
Honorable Jill M. Brady, Judge

In re the Marriage of

Jilayne Kay Breining-Robertson,

Appellee,

and

Christopher Alyn Breining,

Appellant.

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

Division III
Opinion by JUDGE BROWN
Dunn and Schock, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced September 4, 2025

Jilayne Kay Breining-Robertson, Pro Se

Mark Anthony Law, Mark Anthony Barrionuevo, Colorado Springs, Colorado,
for Appellant
¶1 In this dissolution of marriage case involving Christopher Alyn

Breining (husband) and Jilayne Kay Breining-Robertson (wife),

husband appeals the property division and spousal maintenance

aspects of the permanent orders. We affirm in part, reverse in part,

and remand for additional proceedings.

I. Relevant Facts

¶2 Wife petitioned to dissolve the parties’ five-year marriage in

2023. In April 2024, husband moved to compel wife to produce

certain mandatory financial disclosures under C.R.C.P. 16.2. In

late May, the district court denied the motion.

¶3 A few days later, the district court held an evidentiary hearing,

after which it entered a dissolution decree. As part of the

permanent orders, the court found that the marital portion of wife’s

USAA 401(k) was $124,220, her life insurance policy had no cash

surrender value, and her credit card debt was marital and subject

to division. Based on these and other findings, it denied husband’s

request for an equalization payment and distributed the marital

estate as follows:

1
Marital Marital Value Wife’s Portion Husband’s
Asset/Debt Portion

Marital Home $90,684 $24,852 $65,832
Proceeds

Vehicles $12,250 $7,580 $4,670

Investment $2,947 $2,947
Accounts

Wife’s USAA $124,220 $104,220 $20,000
401(k)

Other Retirement $36,531 $16,596 $19,935
Accounts

Whole Life $0 $0
Insurance Policy

Debts ($48,583) ($39,825) ($8,758)

TOTAL $218,049 $113,423 (52%) $104,626 (48%)

¶4 In declining to award husband spousal maintenance, the court

calculated wife’s monthly gross income at $7,302 per month and

husband’s at $5,410.

II. Request to Dismiss Appeal

¶5 To begin, we consider wife’s request to dismiss husband’s

appeal on the basis that she never received husband’s notice of

appeal. Given that wife was able to file a substantive answer brief,

fully presenting her arguments in opposition to his appeal, we deny

the request.

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III. Request to Strike Answer Brief

¶6 Husband asks us to strike certain portions of wife’s answer

brief because she did not include citations or references to the

record. See C.A.R. 28(b). Wife is not excused from complying with

the appellate rules because she is unrepresented. Gandy v.

Williams, 2019 COA 118, ¶ 8. Still, because we can understand

wife’s arguments despite the deficiencies in her brief, we deny this

request. See C.A.R. 38(a); see also Bruce v. City of Colorado

Springs, 252 P.3d 30, 32 (Colo. App. 2010) (electing to consider a

party’s deficient brief).

IV. Property Division

¶7 Husband contends that the district court erroneously (1) set

aside to wife as her separate property a portion of her USAA 401(k);

(2) assigned a zero value to wife’s life insurance policy; and

(3) treated wife’s credit card debt as marital. We address and reject

each of these contentions.

A. Applicable Law and Standard of Review

¶8 Before dividing the marital estate, the district court must first

determine whether each asset or debt is marital property, which is

subject to division, or separate property, which is not.

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§ 14-10-113(1), C.R.S. 2025. Assets acquired and debts incurred

during the marriage are presumed marital, but this presumption

can be rebutted with evidence proving an exception listed in section

14-10-113(2). § 14-10-113(3); see In re Marriage of Jorgenson, 143

P.3d 1169, 1171-72 (Colo. App. 2006) (“Marital liabilities include all

debts that are acquired and incurred by [the spouses] during their

marriage.”). And although property a spouse acquired before the

marriage is separate property, any appreciation in its value during

the marriage is marital and divisible. § 14-10-113(1)(d), (4); see In

re Marriage of Cardona, 321 P.3d 518, 521 (Colo. App. 2010), aff’d

on other grounds, 2014 CO 3.

¶9 Next, the district court must value each asset or debt. In re

Marriage of Wright, 2020 COA 11, ¶ 4; Jorgenson, 143 P.3d at 1172.

The court may adopt either spouse’s valuation or make its own, so

long as the valuation is reasonable in light of the evidence as a

whole. In re Marriage of Medeiros, 2023 COA 42M, ¶ 41.

¶ 10 Finally, the district court must equitably divide the marital

estate, considering all relevant factors. § 14-10-113(1); see In re

Marriage of Evans, 2021 COA 141, ¶ 50; Wright, ¶ 3; see also

Jorgenson, 143 P.3d at 1172 (distribution of marital debts is like

4
property division). The division must be equitable, but it need not

be equal. Wright, ¶ 3.

¶ 11 A district court has broad discretion to equitably divide the

marital estate based on the particular facts and circumstances of

each case, and we will not disturb its decision absent an abuse of

that discretion. In re Marriage of Collins, 2023 COA 116M, ¶ 19; see

§ 14-10-113(1); In re Marriage of Smith, 2024 COA 95, ¶ 67

(weighing the statutory factors is within the court’s sound

discretion). A court abuses its discretion when it misapplies the law

or its decision is manifestly arbitrary, unreasonable, or unfair.

Medeiros, ¶ 28. Specific findings on every statutory factor are not

required, provided that the court’s overall findings allow us to

determine that its decision is supported by competent evidence.

Collins, ¶ 19.

B. Wife’s USAA 401(k)

1. Late Disclosure

¶ 12 The district court found, based on a March 2018 statement,

that wife entered into the marriage with $65,537 in her USAA

401(k). The court excluded this amount from its current value of

$146,657, which was derived from an April 2024 statement. The

5
court then added back a $43,100 loan that wife had taken out

against it. In the end, the court calculated the marital share at

$124,220; of this, $20,000 was allocated to husband, with the

remainder going to wife.

¶ 13 Husband challenges the classification of $65,537 as wife’s

separate property, asserting that she disclosed the March 2018

statement just a week before the hearing and should have been

precluded from admitting it. See C.R.C.P. 16.2(e)(2) (requiring that

the parties make certain mandatory disclosures within forty-two

days after service of a petition); C.R.C.P. 16.2(j) (authorizing

sanctions for failure to comply). Wife counters that she timely and

repeatedly disclosed the statement.

¶ 14 Even assuming wife did not timely disclose the statement,

husband fails to explain how wife’s allegedly late disclosure

prejudiced his substantial rights. See C.R.C.P. 61 (an error is only

reversible if it affects a party’s substantial rights); In re Marriage of

Pawelec, 2024 COA 107, ¶ 56 (“An error affects a party’s

substantial rights if ‘it can be said with fair assurance that the error

substantially influenced the outcome of the case or impaired the

basic fairness of the trial itself.’” (citations omitted)). Husband

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simply states that the admission of the statement “cause[d]

significant financial harm” because wife “was awarded solely

$65,537 of the 401(k).” That “harm” stems from the probative force

of the evidence, not from the fact that wife allegedly disclosed the

document late. Absent a showing of prejudice resulting from the

allegedly delayed disclosure, reversal is unwarranted. See In re

M.E.R-L., 2020 COA 173, ¶ 15.

2. Hearsay

¶ 15 Husband argues that the March 2018 statement was

inadmissible hearsay under CRE 802. The statement is a four-page

standard retirement account statement issued by USAA. Husband

does not allege, nor do we see, that it was incomplete, marked, or

altered in any way; his entire argument is that “there was no

verification that [the statement] was true.”

¶ 16 Without expressly referencing the statement, wife testified that

the value of the account as of the date of the marriage was $65,537.

Husband had notice that wife claimed that amount as her separate

property, including through the joint asset and debt spreadsheet

the parties filed with their joint trial management certificate and a

stipulated exhibit reflecting wife’s proposed property division. Yet,

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on cross-examination, husband’s counsel did not challenge wife’s

valuation or ask wife about the March 2018 statement, much less

attempt to establish that the statement contained inaccurate

information. Under these circumstances, we conclude that any

error in admitting the statement over husband’s hearsay objection

was harmless. See People in Interest of R.D.H., 944 P.2d 660, 664

(Colo. App. 1997) (concluding that any error in admitting evidence

that is cumulative of other admissible evidence is harmless); see

also Medeiros, ¶ 41 (we will affirm a court’s valuation if it is

reasonable in light of the evidence as a whole).

3. Division of the 401(k)

¶ 17 We reject husband’s claim that awarding wife most of the

marital portion of the USAA 401(k) was, by itself, unfair. We do not

look at the court’s division of a particular asset in isolation.

Instead, the critical question is whether the overall property division

was equitable and, as set forth below, we conclude that the court

acted within its discretion. See In re Marriage of Hunt, 909 P.2d

525, 537-38 (Colo. 1995) (a division of pension benefits is only a

part of the district court’s equitable division of the overall marital

8
property, and an appellate court should not disturb the balance

achieved by the division absent a clear abuse of discretion).

C. Life Insurance Policy

¶ 18 The district court credited wife’s testimony that her life

insurance policy, despite its $250,000 “face value,” held no cash

surrender value and would soon expire. The court therefore valued

the policy at zero and allocated it to wife.

¶ 19 Husband maintains that the district court clearly erred by

finding that wife’s “whole life insurance asset” had a zero value.

But the life insurance policy at issue was not a whole life insurance

policy that “can provide a combination of a death benefit and an

accumulation of a cash value”; it was a term life insurance policy

that provides for the payment of a death benefit but has no cash

value. 24 Colorado Practice Series, Elder Law § 7:7, Westlaw (1st.

ed. database updated Nov. 2024); see also 4 Pat Magarick & Ken

Brownlee, Casualty Insurance Claims § 52:4, Westlaw (4th ed.

database updated Aug. 2025) (explaining the difference between

whole life insurance and term life insurance). The policy statement

in the record reflects that it is a “[twenty] year level term series”

with a “net death benefit” of $250,000 but does not reflect any cash

9
value. Moreover, because wife’s testimony independently supports

the court’s valuation finding, we will not disturb it. See Medeiros,

¶ 41; see also In re Marriage of Thorburn, 2022 COA 80, ¶ 49 (it is

for the district court to determine witness credibility and the weight,

probative force, and sufficiency of the evidence, as well as the

inferences and conclusions to be drawn therefrom); In re Marriage of

Amich, 192 P.3d 422, 424 (Colo. App. 2007) (the district court can

believe all, part, or none of a witness’s testimony).

¶ 20 Having concluded that the district court did not err by finding

that the life insurance policy had no value, we need not consider

husband’s assertion that awarding it solely to wife was an abuse of

discretion.

D. Wife’s Credit Card Debt

¶ 21 At the hearing, the parties agreed that wife incurred credit

card debt during the marriage. Wife testified that the debt covered

her “household expenses.” The district court found that the debt

was marital and included it in the property division. Because the

record supports the court’s determination, we discern no error. See

§ 14-10-113(3); Jorgenson, 143 P.3d at 1172; see also In re Marriage

of Capparelli, 2024 COA 103M, ¶¶ 8, 21-24 (because the husband

10
incurred a line of credit debt for living expenses while the

dissolution was pending, it was a marital debt that should have

been allocated in the property division).

¶ 22 Still, husband insists that his testimony that he did not

receive any benefit from wife’s purchases and two exhibits showing

that the expenditures were made after the parties separated require

a different outcome. But husband cites no authority, and we are

not aware of any, requiring that both parties benefit from a debt

incurred during the marriage before it can be classified as a marital

debt. And reweighing the evidence is not our role. See Thorburn,

¶ 49; Amich, 192 P.3d at 424; see also In re Marriage of Kann, 2017

COA 94, ¶ 36 (“[O]ur supreme court has . . . expressed unbridled

confidence in [district] courts to weigh conflicting evidence.”);

Collins, ¶ 21 (appellate court may presume that the district court

considered all the evidence admitted).

E. Overall Property Division

¶ 23 The district court expressly acknowledged both parties’

contributions to the marital estate. Even so, the court found that

wife, through her “more stable employment and income,”

“contributed far more to the marriage,” including periods where she

11
financially “carried the household” during husband’s intermittent

unemployment. It determined that the overall property division was

equitable, even with wife receiving a slightly larger share.

¶ 24 Husband argues that the overall property division was

inequitable because the district court “ignored” or gave insufficient

weight to his limited earning capacity, contributions to the marital

estate, and history of unemployment. See § 14-10-113(1). We

decline his invitation to reweigh the statutory factors in his favor

and substitute our judgment for that of the district court. See

Smith, ¶ 64; Collins, ¶ 21; see also In re Marriage of Nelson, 2012

COA 205, ¶ 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.”). Accordingly, we discern no abuse of discretion

in the property division.

V. Financial Disclosures and Maintenance

¶ 25 Husband contends that the district court erred by denying his

maintenance request because, among other things, it improperly

denied his motion to compel wife to update her mandatory financial

12
disclosures, which were necessary to determine her monthly gross

income accurately. We agree.

A. Mootness

¶ 26 As an initial matter, wife contends that this portion of the

appeal should be dismissed as moot because husband remarried in

August 2024. See In re Marriage of Thomas, 2021 COA 123, ¶ 21

(an issue is moot when the relief requested, if granted, would have

no practical effect on an existing controversy); In re Parental

Responsibilities Concerning S.Z.S., 2022 COA 105, ¶ 50 (an

appellate court will not render an opinion on the merits of an issue

when later events have rendered it moot). But because the alleged

fact is not part of the appellate record, we decline to consider the

argument. See In re Marriage of McSoud, 131 P.3d 1208, 1223

(Colo. App. 2006) (“Only facts appearing in the record can be

reviewed . . . .”); see also In re Marriage of Drexler, 2013 COA 43,

¶ 24 (declining to consider an exhibit appended to a party’s brief

that was not part of the certified record). And even assuming

husband did remarry as alleged, he could still be entitled to

retroactive maintenance until the date of remarriage.

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B. Applicable Law and Standard of Review

¶ 27 C.R.C.P. 16.2(e) imposes an affirmative duty on each spouse in

a domestic relations case to “disclose all information that is

material . . . without awaiting inquiry from the other [spouse].”

C.R.C.P. 16.2(e)(1); In re Marriage of Hunt, 2015 COA 58, ¶ 13.

C.R.C.P. Form 35.1 specifies the required disclosures, including

• pay stubs, a current income statement, and the final

income statement for the prior year; and

• federal income tax returns, including all schedules, W-2s,

and 1099s, for the three years preceding the dissolution

petition.

¶ 28 Spouses have a continuing duty to promptly supplement or

amend these disclosures as governed by C.R.C.P. 26(e). C.R.C.P.

16.2(e)(4). Failure to comply may result in appropriate sanctions,

including adverse inferences or other evidentiary sanctions. See

C.R.C.P. 16.2(e)(5), (j); Wright, ¶¶ 25, 28; Camp Bird Colo., Inc. v.

Bd. of Cty. Comm’rs, 215 P.3d 1277, 1290 (Colo. App. 2009).

¶ 29 We review rulings on motions to compel discovery for an abuse

of discretion. DCP Midstream LP v. Anadarko Petroleum Corp., 2013

CO 36, ¶ 24.

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C. Discussion

¶ 30 In May 2023, about two months after petitioning for

dissolution, wife submitted a sworn financial statement, reporting a

monthly gross income of $6,205 as a claims adjuster at USAA,

where she had worked since 1998. Over the ensuing months and

through two different attorneys, wife filed two certificates of

compliance with C.R.C.P. 16.2, indicating that she provided, as

relevant here,

• biweekly pay stubs for the periods of January 2023 to

March 2023 and September 2023 to December 2023; and

• W-2s and tax returns from 2020 to 2022.

¶ 31 In January 2024, the district court ordered both parties to

exchange updated disclosures.

¶ 32 In March, husband’s third attorney entered an appearance. A

month later, husband filed a motion to compel wife to provide both

the mandatory financial disclosures previously given to his former

attorneys and the following updated disclosures:

• biweekly pay stubs from June 2023 to the present; and

• a 2023 W-2 and tax return.

15
¶ 33 In response, wife conceded that she had not provided pay

stubs from June 2023 to August 2023 but claimed she had

disclosed all other pay stubs for that year. She added that she was

“working on obtaining her new pay stubs and [would] supplement

[her disclosures] at the earliest convenience.” Regarding her taxes,

she represented that she had not yet received her 2023 W-2 and, as

a result, had not filed her tax return.

¶ 34 In a verified reply, husband alleged that a review of his former

attorneys’ files confirmed that wife’s disclosures were still

incomplete. He noted that her response lacked any documentation

proving that she had produced the disputed pay stubs or tax

information.

¶ 35 On May 27, 2024, four days before the hearing, the district

court denied husband’s motion to compel. The court reasoned that

wife was not obligated to resend documents already disclosed to his

former attorneys, but it did not address his request for updated

disclosures.

¶ 36 At the hearing, husband testified that wife failed to update her

pay stubs past March 2023 and provide her 2023 tax

16
documentation. Wife admitted that she could retrieve her pay stubs

via the USAA website but chose not to “show” them to husband.

¶ 37 The district court accepted wife’s testimony that her income

remained largely unchanged since the start of the proceedings.

Relying solely on a pay stub from March 2023, which the court

described as the “best available evidence,” it calculated her monthly

gross income to be $7,302 and denied husband’s request for

maintenance. The court then reiterated its denial of husband’s

motion to compel, explaining simply that wife’s response was more

persuasive.

¶ 38 Husband asserts that the district court erred by denying his

motion to compel, ultimately leading to an inaccurate income

calculation for wife. He maintains that she never produced, among

other things, her 2024 pay stubs and 2023 W-2 and tax return.

¶ 39 The district court did not err by declining to compel wife to

resend documents previously provided to husband’s former

attorneys. But, on this record, we conclude that it abused its

discretion by failing to enforce wife’s obligation to provide updated

mandatory financial disclosures. See DCP Midstream LP, ¶ 24.

Under C.R.C.P. 16.2(e)(1) and (e)(4), and consistent with the court’s

17
January 2024 order, wife had an ongoing duty to supplement her

disclosures, even without husband having to ask. Wife presented

no evidence to contradict husband’s claim that she failed to provide

updated disclosures. On the contrary, her own testimony

suggested that the current income documentation was not only

available but had been withheld.

¶ 40 In declining to compel wife to produce updated disclosures

and then relying on year-old information to determine her income,

the district court effectively rewarded wife’s noncompliance to

husband’s detriment. See C.R.C.P. 16.2(e)(1), (4). That said, we

cannot tell the extent of the harm caused by the court’s error.

Without the missing pay stubs and 2023 tax documents, we cannot

determine wife’s actual monthly gross income or whether the court

might have granted husband’s request for maintenance considering

more accurate income information.

¶ 41 Consequently, we reverse the district court’s order denying

husband’s motion to compel wife to update her mandatory financial

disclosures. We also reverse the court’s denial of maintenance, as

wife’s income was central to that determination. See

§ 14-10-114(3)(a)(I)(A), (C), (3)(a)(II)(A), (B), (3)(c)(I), (II), (V), (VI),

18
C.R.S. 2025. We remand and instruct the district court to enforce

wife’s disclosure obligations under C.R.C.P. 16.2, consider whether

to impose appropriate sanctions for her noncompliance,

redetermine her monthly gross income, and revisit husband’s

request for maintenance. In doing so, the court must allow the

parties to present new evidence of their current financial

circumstances. See Wright, ¶ 24; In re Marriage of Stradtmann,

2021 COA 145, ¶ 35.

¶ 42 Given our disposition, we decline to address husband’s

remaining arguments that the district court inappropriately

excluded certain income sources from wife’s monthly gross income.

VI. Attorney Fees in the District Court

¶ 43 To the extent wife seeks an order requiring husband to pay

attorney fees she incurred during the dissolution proceedings, we

deny the request. Our appellate jurisdiction is limited to reviewing

final judgments or orders, and wife does not point us to any part of

the record reflecting that she made that request of the district

court. See C.A.R. 1(a)(1); § 13-4-102(1), C.R.S. 2025; Evans, ¶ 11;

see also In re Org. of N. Chaffee Cty. Fire Prot. Dist., 544 P.2d 637,

19
638 (Colo. 1975) (“The purpose of an appellate court is to [r]eview

judgments, not to make them . . . .”).

VII. Appellate Attorney Fees and Costs

¶ 44 Husband asks for his appellate attorney fees under section

14-10-119, C.R.S. 2025, based on the disparity in the parties’

financial resources. See In re Marriage of Gutfreund, 148 P.3d 136,

141 (Colo. 2006) (“Section 14-10-119 empowers the [district] court

to equitably apportion costs and fees between parties based on

relative ability to pay.”). Because the district court is better

situated than we are to determine the factual issues regarding the

parties’ current financial resources, we remand for the district court

to consider his request. See C.A.R. 39.1; Gutfreund, 148 P.3d at

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

¶ 45 Husband also requests attorney fees under section 13-17-102,

C.R.S. 2025, for having to appeal the district court’s “plain errors.”

But he does not develop any argument for why he is entitled to

such fees. See C.A.R. 39.1 (“If attorney fees are recoverable for the

appeal, the principal brief of the party claiming attorney fees must

include a specific request, and explain the legal and factual basis,

for an award of attorney fees.”); cf. Cikraji v. Snowberger, 2015 COA

20
66, ¶ 21 n.3 (“We do not consider bald factual or legal assertions

presented without argument or development.”). Thus, we deny his

request.

¶ 46 Husband also seeks his appellate costs. Because we affirm in

part and reverse in part, we remand to the district court to

determine appellate costs. See C.A.R. 39(a)(4) (“[I]f a judgment is

affirmed in part, reversed in part, modified, or vacated, costs are

taxed only as ordered by the [district] court.”).

VIII. Disposition

¶ 47 The judgment is affirmed in part and reversed in part, and the

case is remanded for further proceedings consistent with this

opinion.

JUDGE DUNN and JUDGE SCHOCK concur.

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