Marriage of Montes-Gomez

24CA1234 Marriage of Montes-Gomez 09-25-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA1234
Garfield County District Court No. 21DR118
Honorable Elise Myer, Judge

In re the Marriage of

Susana Vasquez-Gonzalez,

Appellee,

and

Sergio Montes-Gomez,

Appellant.

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

Division I
Opinion by JUDGE MOULTRIE
J. Jones and Kuhn, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced September 25, 2025

Garfield & Hecht, P.C., Eric D. Musselman, Aspen, Colorado, for Appellee

Defiance Law Firm, Peter A. Rachesky, Lara Horst, Glenwood Springs,
Colorado, for Appellant
¶1 In this dissolution of marriage case between Sergio

Montes-Gomez (husband) and Susana Vazquez-Gonzalez (wife),

husband appeals the portions of the permanent orders concerning

the property division and maintenance. We affirm the judgment in

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

for further proceedings.

I. Background

¶2 The parties married in 2001 and separated in 2021. In 2024,

the district court dissolved their marriage and entered permanent

orders.

¶3 In dividing the marital property, the court awarded husband

$327,458, or roughly 42%, of the marital estate, including three

real properties the parties owned in Mexico. It awarded $460,679,

or roughly 58%, of the marital estate to wife, including two real

properties the parties owned in Mexico and the parties’ Colorado

mobile home. The court awarded wife $359 per month in

maintenance for ten years.

II. Property Division

¶4 Husband asks us to reverse the court’s unequal division of

marital property because he asserts it’s not equitable.

1
A. Applicable Law and Standard of Review

¶5 The court has great latitude to equitably divide the marital

estate in such proportions as it deems just. See § 14-10-113(1),

C.R.S. 2025; In re Marriage of Medeiros, 2023 COA 42M, ¶ 28. The

property division must be equitable, but it doesn’t have to be equal.

In re Marriage of Wright, 2020 COA 11, ¶ 3. “The key to an

equitable distribution is fairness,” which depends on the facts and

circumstances of each case. In re Marriage of Gallo, 752 P.2d 47,

55 (Colo. 1988); accord Wright, ¶ 3.

¶6 To determine an equitable division, the court should consider

“all relevant factors.” § 14-10-113(1). Relevant factors may

include, but are not limited to, the parties’ contributions to the

acquisition of marital property, the value of property set aside to

each party, and the parties’ economic circumstances. Id.

Determining how to weigh the relevant factors when making an

equitable allocation is within the court’s sound discretion. In re

Marriage of Smith, 2024 COA 95, ¶ 67.

¶7 We may not disturb a court’s property division absent a

showing that the court abused its discretion. Medeiros, ¶ 28. A

court abuses its discretion when it acts in a manifestly arbitrary,

2
unreasonable, or unfair manner, or it misapplies the law. Id.; see

Hall v. Moreno, 2012 CO 14, ¶ 54 (explaining that, when reviewing a

court’s discretionary decision, we consider whether the decision fell

within the range of reasonable options, not whether we would have

reached a different result).

B. Discussion

¶8 When determining how to allocate the marital estate, the court

acknowledged the applicable legal standard and summarized the

conflicting evidence. Then, the court discussed the relevant factors

under section 14-10-113(1) and made detailed factual findings.

¶9 The court found that the parties owned five debt-free

properties in Mexico, which they both financially contributed to

during the marriage, and that they owned a mobile home in

Colorado (though not the land on which the mobile home sits)

where they resided together until 2021. Husband wanted all the

properties sold and the proceeds split evenly, but wife preferred to

retain the mobile home and two of the Mexico properties — Bella

Italia and Montes de Alaska. Having considered both parties’

employment and other economic circumstances during the

marriage and at the time of the hearing, the court found that wife

3
was the primary caregiver for the parties’ now-adult daughter

during the marriage, while husband often worked extra jobs in

addition to his regularly scheduled work shifts and made more

money than wife; the parties both contributed to the household

expenses for the mobile home while they were together, but that

wife had been solely responsible for the mobile home’s upkeep and

lot rent since the parties’ separation; some of wife’s family lived on

the Montes de Alaska property; and that Bella Italia was previously

owned by wife’s father and wife had grown up there.

¶ 10 After considering these circumstances and making findings

about the value of the parties’ real and personal property, the court

divided the marital property between husband and wife. The court

awarded three Mexico properties to husband: Gustavo Diaz, where

husband’s mother resided; Zicacalco, which housed a mechanic

shop and for which husband received rent; and Margarita, which

had the highest value. The court awarded wife the Montes de

Alaska property, the Bella Italia property, and the parties’ mobile

home. The court awarded each party the vehicle they had been

using while the petition for dissolution was pending and awarded

husband a motorcycle. The court awarded husband his clothes, a

4
bike, and his tools, and the remainder of the parties’ household

items were awarded to wife. And the court awarded each party

bank accounts worth similar amounts.

¶ 11 Husband argues on appeal that the property distribution was

“extremely one sided.” He also argues that, because the court

found that the parties historically shared financial expenses and

both contributed to the acquisition of the properties, the court’s

decision to award to wife the most valuable property — the mobile

home — was erroneous. We aren’t persuaded.

¶ 12 The court considered ordering the sale of all the properties as

husband requested, but it found that doing so would be inequitable

because the parties’ relatives lived on some of the Mexico properties

and at least one property had been in wife’s family for some time.

Accordingly, the court awarded three Mexico properties to husband,

including the property with the highest value, to “offset other

awards to wife.” Moreover, the court found that wife had lived in

the mobile home for more than ten years, wished to remain living

there, and had been maintaining the home — including paying the

lot rent — on her own for three years during the parties’ separation.

5
¶ 13 Despite acknowledging in his opening brief that there is no

requirement that the court “divide property with precise equality in

order to achieve an equitable division,” husband baldly asserts that

the property distribution was inequitable — and therefore an abuse

of discretion — because it was disproportionate. But the record

demonstrates that the court considered the sufficiency and

credibility of the evidence presented to it in reaching its findings. In

re Marriage of Antuna, 8 P.3d 589, 593 (Colo. App. 2000).

¶ 14 Because there was conflicting evidence, it was within the

court’s purview to resolve it. See In re Marriage of Tooker, 2019

COA 83, ¶ 31 (“[A]ny inferences and conclusions to be drawn from

the conflicting evidence were for the district court to resolve.”); see

also In re Marriage of Evans, 2021 COA 141, ¶ 45 (“We are not at

liberty to re-evaluate the conflicting evidence and set aside findings

supported by the record.”). And given the court’s record-supported

findings — which weighed the parties’ economic and noneconomic

contributions during the marriage, current economic

circumstances, and other relevant circumstances as required by

section 14-10-113 — we don’t agree with husband that the court

abused its discretion in dividing the parties’ property. See Antuna,

6
8 P.3d at 594-95 (affirming court’s record-supported

disproportionate, but equitable, distribution of property); see also In

re Marriage of Sorensen, 679 P.2d 612, 613 (Colo. App. 1984)

(affirming facially disproportionate property division supported by

particular circumstances of the case).

¶ 15 We therefore affirm the portion of the judgment allocating the

marital property.

III. Maintenance

¶ 16 Husband also asks us to reverse the portion of the permanent

orders concerning maintenance because, he asserts, (1) he received

ineffective assistance of counsel with respect to the court’s

consideration of maintenance and (2) the court’s findings

supporting its maintenance determination were inadequate.

A. Ineffective Assistance of Counsel

1. Additional Facts

¶ 17 Wife didn’t request maintenance in her petition for dissolution.

The court acknowledged this but found that husband was aware

that wife would request it at the permanent orders hearing because

the parties set forth their positions on maintenance in the joint trial

management certificate. At the permanent orders hearing,

7
husband’s counsel didn’t object to the court’s consideration of wife’s

maintenance request. Indeed, husband’s counsel argued the merits

of the request. Thus, the court found that husband consented to

the court addressing wife’s maintenance request.

2. Discussion

¶ 18 Husband doesn’t challenge the court’s finding that he

consented to the court considering wife’s maintenance request but

alleges that his attorney’s failure to object when the issue was

raised at the permanent orders hearing constituted ineffective

assistance of counsel. Husband acknowledges that there is no

statutory right or case law precedent recognizing a claim for

ineffective assistance of counsel in dissolution of marriage cases.

But he argues that we “should expand the doctrine[] and make [an

ineffective assistance of counsel claim] cognizable” in this context.

We decline to do so.

¶ 19 There is no constitutional or statutory right to counsel in

dissolution of marriage cases. See In re Marriage of Hartley, 886

P.2d 665, 674 n.16 (Colo. 1994). Accordingly, if husband believed

that his attorney was not representing him competently, it was up

to him to fire the attorney and hire another, or to represent himself.

8
His attorney’s actions or inactions in representing him, whether

competent or not, aren’t a basis for reversing the court’s orders. Cf.

Nelson v. Boeing Co., 446 F.3d 1118, 1119 (10th Cir. 2006) (the

remedy for ineffective assistance in a civil case is a malpractice

lawsuit); Hartley, 886 P.2d at 674 n.16 (rejecting argument that

child was constitutionally entitled to counsel of his choice in his

parents’ dissolution case).

B. Maintenance Award Findings

¶ 20 Husband contends that the court erred because it failed to

follow the statutory procedure for determining maintenance and its

findings (or lack thereof) didn’t support its determinations (1) that

wife lacked sufficient property to meet her reasonable needs;

(2) about wife’s gross income; and (3) that wife was unable to meet

her own reasonable financial needs using her own income. Because

we agree with husband’s first and second contentions — both of

which inform whether wife could meet her own reasonable financial

needs — we decline to address his third and remand with

instructions.

9
1. Standard of Review and Applicable Law

¶ 21 We review a court’s maintenance award for an abuse of

discretion, deferring to the court’s record-supported factual findings

but reviewing de novo whether the court correctly applied the law.

Medeiros, ¶ 58. Section 14-10-114(3), C.R.S. 2025, sets forth the

process a court must follow when considering a maintenance

request. Wright, ¶ 13.

¶ 22 A court’s determination of maintenance is a three-step

process. See id. at ¶¶ 13-16. The court must first make specific

written or oral findings regarding, as relevant here, the financial

resources of each party, including any actual or potential income

from marital property and the amount of each party’s gross income.

§ 14-10-114(3)(a)(I)(A), (C); see Wright, ¶¶ 14, 19.

¶ 23 The court then must determine an amount and term of

maintenance that is fair and equitable to the parties by considering

the statutory advisory guidelines and a list of nonexclusive

statutory factors. § 14-10-114(3)(a)(II)(A)-(B), (3)(b), (3)(c); Wright,

¶ 15. Among the factors the court must consider is the requesting

spouse’s ability to meet their needs independently, including

whether the requesting spouse has potential income from marital

10
property and the recipient spouse’s employment, income, and

employability. § 14-10-114(3)(c)(I), (V). The court is not required to

make specific factual findings about each factor, so long as its

decision gives the reviewing court a clear understanding of the basis

of its order. Wright, ¶ 20.

¶ 24 The last step is for the court to determine whether the

requesting spouse qualifies for maintenance, meaning that the

spouse lacks sufficient property, including awarded marital

property, to provide for the spouse’s reasonable needs and is unable

to support themself through appropriate employment. See

§ 14-10-114(3)(a)(II)(C), (3)(d); Wright, ¶ 16. The court can only

consider this last step if the court first makes the findings of fact

required under the first two steps. See § 14-10-114(3)(d); Wright,

¶ 16.

2. Analysis

a. Sufficiency of Wife’s Property

¶ 25 Regarding his first contention, husband specifically argues

that the court erred by making inadequate initial findings about

wife’s available financial resources because it failed to consider the

11
potential rental income from the properties awarded to wife as

required by section 14-10-114(3)(a)(I)(C). We agree.

¶ 26 Section 14-10-114(3)(a)(I)(C) says, in relevant part,

When a party has requested maintenance in a
dissolution of marriage, . . . prior to granting
or denying an award of maintenance, the court
shall make initial written or oral findings
concerning . . . [t]he financial resources of
each party, including but not limited to the
actual or potential income from separate or
marital property . . . .

¶ 27 The parties each submitted as exhibits property valuation

reports containing conflicting valuations of the Mexico properties.

Both reports were in Spanish. The court noted that the expert who

authored wife’s report testified in support of his report with the

assistance of an interpreter, while husband “did not call a witness

to testify in support of, or to explain,” the valuations contained in

his exhibit.

¶ 28 Wife’s expert acknowledged that he included information

about potential rental prices for each of the Mexico properties in his

report. But he didn’t explain in his testimony how he reached the

rental valuations in his report or explain whether his valuation was

an estimate of monthly rental income, or an estimate of income for

12
some other length of rental term. Wife testified that she didn’t

receive any rental income from the properties in Mexico, but

husband testified that wife was receiving some rental income from

one of the Mexico properties at the time of the permanent orders

hearing, though he didn’t specify an amount. With respect to the

mobile home, wife testified that she had previously rented out a

room for $700 per month.

¶ 29 The court specifically said that it “consider[ed] the distribution

of property when determining maintenance.” But the court didn’t

make specific findings about wife’s potential income from the mobile

home or the two Mexico properties awarded to her, despite being

presented with the above evidence. And because the court was

required to make explicit findings about wife’s potential income

from those properties as part of the first step of its maintenance

award analysis, the court abused its discretion by not doing so. See

§ 14-10-114(3)(a)(I)(C); Wright, ¶ 19. But see In re Marriage of

Gibbs, 2019 COA 104, ¶ 24 (holding that where a party has not

historically earned rental income from his or her primary residence,

potential rental income from that asset cannot be imputed to the

party for purposes of calculating maintenance).

13
b. Wife’s Income

¶ 30 The court made the following findings about wife’s income at

the time of the permanent orders hearing:

• Wife was unemployed for a period of time due to an

injury she suffered at work. During that time, she

received financial assistance from a community

organization.

• Wife was working part-time as she recovered from her

work-related injury.

• Wife worked between eighteen and twenty hours per

week, earning $35 per hour.

• Wife had no income other than her primary employment.

¶ 31 Based on this evidence, the court determined that wife’s

average work hours were nineteen hours per week and concluded

that her gross monthly income was $2,660 per month. The court

also concluded that wife “presently has limited earning potential

because she continues to recover[] from her ankle injury. Whether

[w]ife will be able to return to full-time work remains to be seen,

although she is hopeful.” Based on the court’s income calculations,

14
the court ordered husband to pay wife monthly maintenance of

$359 for ten years.

¶ 32 This was error.

¶ 33 As best we can tell, the court concluded that wife’s gross

monthly income was $2,660 by multiplying wife’s hourly salary by

the average weekly number of hours she worked and assuming a

four-week month (35 dollars per hour x 19 hours per week x 4

weeks per month = 2,660). But all months are not created equal,1

and there are fifty-two weeks in a year.2

¶ 34 Thus, accepting the district court’s findings about wife’s

hourly salary and average hours worked, the court should have

calculated wife’s gross income to be approximately $2,882 per

month (35 dollars per hour x 19 hours per week x 52 weeks per

year ÷ 12 months per year = 2,881.67). There is no indication in

the record of whether the court considered additional factors (for

example, assuming wife had four weeks of unpaid vacation) to

arrive at its calculation of wife’s monthly income.

1 TechClaw, How Many Weeks in a Month: Unraveling the Calendar

Puzzle, Medium (Aug. 9, 2023), https://perma.cc/J6C4-ES8P.
2 Math.net, Weeks in a Year, https://perma.cc/G366-F8VG.

15
¶ 35 And, as just discussed, the court didn’t make explicit findings

about whether wife had potential income from the proprieties the

court awarded to her. Nor did the court adequately explain why

wife’s income — which was reduced at the time of the hearing due

to wife’s limited ability to work because of her then-present ankle

injury — would continue to be reduced into the future thus

supporting a static ten-year maintenance award. See

§ 14-10-114(3)(c)(V).

¶ 36 The court’s findings, while generally thorough, don’t enable us

to understand how it calculated wife’s gross income or whether it

appropriately considered wife’s potential income from the properties

it awarded to her. Because both of these considerations inform

whether wife was entitled to maintenance, see

§ 14-10-114(3)(a)(I)(A), (C), (3)(a)(II), (3)(d), we must reverse, see

Wright, ¶¶ 16, 19-20.

¶ 37 Accordingly, we reverse the maintenance award and remand to

the district court with directions to follow the procedure outlined in

section 14-10-114(3). On remand, the court must make the specific

findings required by section 14-10-114(3)(a)(I). Any findings

supporting its maintenance determination must appropriately

16
consider the statutory factors and be sufficiently explicit for us to

determine the basis for its order on review. Wright, ¶ 23. The court

may exercise its discretion to receive additional evidence and must

consider the parties’ current economic circumstances in making its

maintenance determination. See In re Marriage of Capparelli, 2024

COA 103M, ¶ 28; see also In re Sharp’s Marriage, 539 P.2d 1306,

1309 (Colo. App. 1975) (noting that a maintenance order must be

based on the circumstances at the time of the hearing). However,

because no party challenged the property valuations, the court

must use the same property valuations from the permanent orders.

Capparelli, ¶ 26; § 14-10-113(5).

¶ 38 Finally, because husband partially prevailed on appeal, on

remand the court must determine whether wife is entitled to her

appellate costs under C.A.R. 39(a)(4).

IV. Disposition

¶ 39 We affirm the judgment as to the court’s allocation of property.

We reverse the judgment as to the court’s determination of

maintenance and remand to the district court for further

proceedings consistent with this opinion.

JUDGE J. JONES and JUDGE KUHN concur.

17