Marriage of Gill

23CA1473 Marriage of Gill 02-06-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1473
City and County of Denver District Court No. 22DR30213
Honorable Christine C. Antoun, Judge

In re the Marriage of

Dayana Borges Viana Gill,

Appellee,

and

Joseph Brandon Gill,

Appellant.

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

Division II
Opinion by JUDGE FOX
Gomez and Lum, JJ., concur

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

The Harris Law Firm, PLLP, Jason Thacher, Eric B. Limegrover, Denver,
Colorado, for Appellee

Aitken Law, LLC, Sharlene J. Aitken, Denver, Colorado, for Appellant
¶1 Joseph Brandon Gill (husband) appeals the district court’s

permanent orders entered in connection with the dissolution of his

marriage to Dayana Borges Viana Gill (wife). We affirm in part,

reverse in part, and remand for further proceedings.

I. Permanent Orders

¶2 In 2023, the district court dissolved the parties’ seven-year

marriage. The court directed the parties to exercise equal parenting

time with their three children, and it allocated to wife sole decision-

making responsibility. The court determined that the true value of

the marital estate was $2,275,000 but allocated marital assets and

debts to the parties. The court also ordered husband to pay wife

$3,000 per month in maintenance and $7,074 per month in child

support. In doing so, the court found that husband’s gross income

was over $30,000 per month and that wife’s gross income was over

$4,000 per month. The court then ordered husband to pay wife’s

outstanding attorney fees and costs — $43,446.95.

II. Decision-Making Responsibility

¶3 Husband contends that the district court misapplied the law

by allocating sole decision-making responsibility to wife. We

disagree.

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A. Relevant Facts

¶4 Early in the dissolution proceeding, wife sought a civil

protection order against husband. She alleged that he had been

“physically, emotionally, psychologically and financially abusive”

throughout the marriage. The court granted her a temporary

protection order.

¶5 Following the permanent orders hearing, the court issued a

permanent civil protection order, restricting husband’s contact with

wife. It found that husband had a history of domestic violence

against wife, “resort[ed] to name calling and belittling behavior

toward” her, and “harasse[d]” her with “vulgar and demeaning

language” in their communications. It further found that husband

engaged in this behavior to intimidate wife or retaliate against her

and that his behavior would continue unless restrained.

¶6 Later, in its permanent orders ruling, the court incorporated

its findings from the permanent protection order, and it found that

joint decision-making was not in the children’s best interests. The

court explained that minimizing the conflict between the parents

was better for the children, and it allocated to wife sole decision-

making responsibility.

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B. Analysis

¶7 The allocation of decision-making responsibility is within the

court’s sound discretion, and we exercise every presumption in

favor of upholding its decision. See In re Marriage of Collins, 2023

COA 116M, ¶ 8; In re Marriage of Morgan, 2018 COA 116M, ¶ 23.

We will not disturb the decision absent a showing that the court

misapplied the law or acted in a manifestly arbitrary, unreasonable,

or unfair manner. See Collins, ¶ 8.

¶8 The court must determine the allocation of decision-making

responsibility in accordance with the children’s best interests and

consider all relevant factors. See § 14-10-124(1.5)(b), C.R.S. 2024;

see also § 14-10-124(1.5)(a); Morgan, ¶ 21. When the court finds by

a preponderance of the evidence that a party has committed

domestic violence, it shall not be in the children’s best interests to

allocate joint decision-making responsibility over a party’s

objection, unless the court finds that there is credible evidence that

the parties can make decisions cooperatively in the children’s best

interests and in a manner safe for the abused party and the

children. § 14-10-124(4)(a)(II)(A); see also § 14-10-124(4)(d) (“[T]he

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court shall consider, as the primary concern, the safety and well-

being of the child[ren] and the abused party.”).

¶9 Husband highlights that the court relied on its determinations

in the permanent protection order to allocate decision-making

responsibility. However, we are not persuaded that by doing so, the

court applied the wrong legal standard to reach its decision. Before

allocating decision-making responsibility, the court reviewed the

conflicting evidence and made detailed findings concerning the

statutory best interests factors under section 14-10-124(1.5)(a).

The court then incorporated its findings from the permanent

protection order because it had found husband committed domestic

violence and harassed wife in their communications. See § 14-10-

124(4)(a)(II)(A), (4)(b), (4)(d). Given those findings and wife’s

objection to an allocation of joint decision-making responsibility,

the court had to allocate decision-making responsibility to only one

party, unless it determined from the credible evidence that wife and

husband could make joint decisions safely and cooperatively in the

children’s best interests. See § 14-10-124(4)(a)(II)(A). The court did

not make that finding. Rather, its findings suggested that the

evidence established the contrary. Cf. In re Parental Responsibilities

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Concerning S.Z.S., 2022 COA 105, ¶ 21 (recognizing that a court’s

finding may be implicit in its ruling). The court then determined,

with record support, that allocating wife sole decision-making

responsibility served the children’s best interests.

¶ 10 Still, husband asserts that the court failed to consider the

statutory factors in section 14-10-124(1.5)(b). But the court noted

each of those factors in its order. Though the court did not make

specific findings to address them, it was not required to do so,

when, as here, its findings provided a clear understanding of the

basis of its decision. See In re Marriage of Rodrick, 176 P.3d 806,

813 (Colo. App. 2007). Indeed, the court found that wife credibly

testified that they had a “very abusive” relationship and that the

children had observed husband’s abuse, which had caused the

children to experience long-term issues. See § 14-10-124(1.5)(b)(II),

(4)(a)(II)(A). The court also noted that wife testified that she and

husband were unable to communicate and make decisions together,

and it found that joint decision making was not in the children’s

best interests. See § 14-10-124(1.5)(b)(I), (4)(a)(II)(A).

¶ 11 However, husband contends that the child and family

investigator (CFI) reported that the parties could make joint

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decisions and recommended joint decision-making responsibility in

her report. But the CFI later testified that since her report, “things

seem to be very bad” between the parties, husband continued to

harass wife, and he may use decision making as a way to control

wife. The CFI then testified that she could “not see how they’re

going to share joint decision making.” The court weighed this, and

the other conflicting evidence, in determining that joint decision-

making responsibility was not in the children’s best interests. We

may not reweigh the court’s resolution of the conflicting evidence.

See Collins, ¶ 13.

¶ 12 The court therefore did not abuse its discretion by allocating

sole decision-making responsibility to wife.

III. Property Division

¶ 13 Husband next contends that the district court’s allocation of

the marital estate must be reversed. We conclude that the court’s

findings are insufficient and reverse this portion of the judgment.

A. Relevant Facts

¶ 14 Husband was a real estate investor. When seeking bank loans

to facilitate his investments, he would complete personal financial

statements. In a 2021 financial statement, he reported that his net

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worth was $2,275,000, and other financial statements around this

time also reported a net worth of approximately $2 million.

¶ 15 During the dissolution proceeding, husband submitted sworn

financial statements that reported a significantly lower marital

estate value. He also reported a consistently decreasing income in

his sworn financial statements, and these reported incomes were

significantly less than the income he reported in his 2021 financial

statements.

¶ 16 The court found that husband’s representations of the marital

estate’s value at the time of the 2023 hearing were not credible. It

explained that he had “gone out of his way to deplete the marital

estate and/or conceal its whereabouts” and that he had voluntarily

cut off the income from his investment businesses to ensure that

wife received “almost nothing.” The court further explained that

husband had wound down his businesses, engaged in “fishy”

transactions, and hidden his assets. The court determined that the

most accurate value of the marital estate was $2,275,000, which

was the value he reported in the 2021 personal financial statement.

¶ 17 The court then issued the following orders to divide the marital

estate:

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• The court found that the marital home had a fair market

value of $900,000 and that husband had depleted the

home’s equity by taking out 2 loans the month before the

permanent orders hearing (a refinance for $460,181 and

another loan of $62,233). The court determined the

home was worth $440,000 and allocated it to wife.

• The court allocated to wife a 2015 Infiniti QX.

• The court allocated to wife the marital property presently

in the marital home.

• The court allocated to wife two First Bank accounts.

• The court found that husband’s businesses were worth

$345,000, and it divided this equity equally between the

parties, ordering husband to pay wife $172,500 for her

share.

• The court allocated to husband approximately $147,000

of the parties’ marital debt.

¶ 18 The court said this allocation was equitable, considering the

$2,275,000 value of the marital estate.

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B. Allocation of the Marital Estate

¶ 19 Husband argues that the court’s allocation resulted in wife

receiving 96% of the marital property and that such an allocation

“was inequitable and so lopsided” in wife’s favor that it cannot

stand. Because the court’s findings do not sufficiently explain its

allocation, we must reverse.

¶ 20 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. 2024; In re Marriage of Medeiros, 2023 COA 42M, ¶ 28; see

also In re Marriage of Wright, 2020 COA 11, ¶ 3 (recognizing that

while the court’s property division does not need to be equal; it

must be equitable). We will not disturb the court’s allocation

absent a showing that it abused its discretion. Medeiros, ¶ 28.

¶ 21 The court must allocate all marital assets and debts. See In re

Marriage of Page, 70 P.3d 579, 582 (Colo. App. 2003) (noting the

court’s duty to do so, unless no evidence is presented on the

unallocated asset or debt). And it must make sufficient findings

concerning its allocation so that an appellate court can understand

the basis of its ruling. See In re Marriage of Gibbs, 2019 COA 104,

¶ 9; cf. In re Marriage of Powell, 220 P.3d 952, 959 (Colo. App. 2009)

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(stating that a court’s property division findings must “allow the

reviewing court to determine that the [court’s] decision is supported

by competent evidence”). “If property is omitted from permanent

orders without explanation, the property division cannot stand.”

Rodrick, 176 P.3d at 815.

¶ 22 The court found that the total value of the marital estate was

$2,275,000, which was the net worth husband reported on a 2021

personal financial statement before he depleted and concealed

marital assets. The court then allocated to wife $612,500 from the

marital home and husband’s businesses. The court also allocated

to her a vehicle, property in the marital home, and two bank

accounts. The court did not specify the values of these additional

assets. While the evidence conflicted, the record supports that the

unvalued assets totaled, at most, approximately $16,000. The

court allocated to husband $172,500 from his businesses as his

only marital asset and approximately $147,000 of the marital debt.

¶ 23 Thus, when dividing the marital estate, the court addressed

approximately $654,000 of the marital equity, and it awarded a

substantial portion of that equity to wife. But the court did not

allocate the remaining $1,621,000 of the marital estate. See id.; see

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also In re Marriage of Lockwood, 971 P.2d 264, 267 (Colo. App.

1998) (providing that if the court finds that a party dissipated

marital assets or otherwise engaged in economic fault, the court

determines “the value of the asset when it last existed as marital

property and equitably distribute[s] that value to the parties”).

Nothing in the permanent orders indicated that wife received a

portion of this significant marital equity. Nor did the court

expressly allocate it to husband. Moreover, any suggestion that the

court implicitly allocated this remaining equity to husband would

appear inconsistent with its findings of economic fault and reward

him with the additional marital equity he improperly concealed and

depleted from the marital estate. See In re Marriage of Campbell,

140 P.3d 320, 322 (Colo. App. 2006) (recognizing that the court may

consider economic fault in cases where a party dissipates marital

assets in contemplation of the dissolution).

¶ 24 Without further findings by the court, we are unable to discern

how the court allocated this substantial portion of the marital

estate. See Rodrick, 176 P.3d at 815; cf. In re Marriage of Balanson,

25 P.3d 28, 36 (Colo. 2001) (stating that errors in the court’s

property division are reversible when the aggregate effect of the

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errors affects a large percentage of the marital estate). Absent such

findings, we are unable to review the propriety of the court’s

allocation. See Gibbs, ¶ 9; Powell, 220 P.3d at 959.

¶ 25 In addition, as husband argues, the court failed to allocate the

“Zales” account x3546 and Capital One account x8400 debts and a

2016 Cadillac Escalade. See Rodrick, 176 P.3d at 815. The court

also failed to address the conflicting evidence concerning the values

of these items.

¶ 26 We therefore reverse the court’s property division. On remand,

the court shall reconsider its determination and make findings

sufficient to explain the basis of its allocation. In doing so, the

court must clarify (1) the values as of the date of the permanent

orders hearing for the marital assets and debts unvalued by the

court and (2) its allocation of the entirety of the $2,275,000 marital

equity. See § 14-10-113(5). The court must also rely on the parties’

economic circumstances at the time of the remand to determine the

equitable allocation of the estate. See In re Marriage of Wells, 850

P.2d 694, 696 (Colo. 1993); see also In re Marriage of Corak, 2014

COA 147, ¶ 21 (noting the court may take additional evidence on

remand concerning the parties’ economic circumstances).

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C. Additional Property Division Contentions

¶ 27 Since on remand the district court cannot revalue the marital

assets and debts (as it determined in its permanent orders) or

recharacterize its classification of the marital property, see Wells,

850 P.2d at 697 n.6; § 14-10-113(5), we consider husband’s

contentions that the court erred by (1) determining the total value of

the marital estate was $2,275,000; (2) omitting a purported

$437,365 loan that he executed with his father; (3) declining to set

aside $66,490 from his businesses as his separate property; and (4)

finding that he refinanced and took out two loans on the marital

home a month before the permanent orders hearing. We will not

disturb the court’s determinations.

1. Value of the Marital Estate

¶ 28 When the court finds that a party has engaged in economic

fault and dissipated marital assets in contemplation of the

dissolution of the marriage, the court may value assets as of the

date they last existed as marital property. Campbell, 140 P.3d at

322. Whether a party dissipated marital assets is a question of

fact, and we will not disturb the court’s finding unless it has no

record support. See In re Marriage of Smith, 2024 COA 95, ¶ 76.

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¶ 29 The record supports the court’s finding that husband engaged

in economic fault by improperly concealing and depleting marital

assets, and, thus, it did not err by valuing the marital estate at

$2,275,000 based on a value husband reported in a pre-dissolution

financial statement. See id.; Campbell, 140 P.3d at 322; see also In

re Marriage of Nelson, 2012 COA 205, ¶ 27 (“[W]e must construe the

evidence in the light most favorable to the prevailing party.”).

¶ 30 Wife’s expert witness testified that husband failed to provide

“quite a bit of information” regarding his financials, that he

commingled his business and personal finances, and that he made

his financials “willful[ly] complex[].” The expert also reported after

the dissolution was initiated, “there [was] a drawdown of all of

[husband’s] various different entities, assets and accounts,” despite

normal operations before that time. The expert opined that, as a

result of husband’s conduct, his pre-dissolution financial

statements best indicated the true value of the marital estate.

¶ 31 Husband highlights other evidence presented at the hearing

that, in his view, conflicted with the court’s determination.

However, the court did not find husband credible on this topic and

noted that his “incomplete information and representations”

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rendered other evidence concerning his finances unreliable. We

may not set aside the court’s resolution of this conflicting evidence.

See Smith, ¶ 50 (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 matters

within the district court’s sole discretion); cf. In re Marriage of

Sgarlatti, 801 P.2d 18, 19 (Colo. App. 1990) (determining that a

party’s refusal to make willing disclosures of his financial status

authorized the court’s adverse inference that he was concealing

additional income).

¶ 32 The court thus acted within its discretion to value the marital

estate at $2,275,000, in accordance with husband’s reported net

worth before concealing assets and dissipating the marital estate.

2. Purported Loan from Husband’s Father

¶ 33 When allocating the parties’ marital debts, the court declined

to include a purported $437,365 loan that husband claimed he

executed with his father. The court found that this was not an

actual debt, and the record supports that finding.

¶ 34 The classification of money as a debt or a gift is dependent on

the court’s resolution of factual disputes, and we defer to its

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determination when supported by the record. See In re Marriage of

Hoffman, 650 P.2d 1344, 1345-46 (Colo. App. 1982). Debts

incurred during the marriage are subject to the court’s allocation,

but gifts are not. See id.; § 14-10-113(1), (2)(a).

¶ 35 During the dissolution case, husband executed a promissory

note with his father for $437,365. Wife argued that this was not an

actual loan and testified that husband had not made any payments

toward the loan. Wife’s expert also opined that the money husband

received from his father was not a loan. The court resolved the

conflicting evidence and determined that the money husband

received from his father was not an actual, outstanding debt. The

court explained that husband’s transactions with his father were

“fishy” and that it was not convinced husband had to pay this

money back. We will not disturb the court’s factual determination.

See Smith, ¶ 50; see also First Nat’l Bank v. Honstein, 355 P.2d 535,

536 (Colo. 1960) (“Transfers of property between parents and

children are presumed to be gifts until the contrary is clearly and

unequivocally shown.”).

¶ 36 Still, husband claims that the court’s exclusion of this

purported loan was inconsistent with its determination of the

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marital estate’s value because this purported loan was listed as a

debt on his pre-dissolution personal financial statement. But

neither the 2021 personal financial statement relied on by the court

to determine the $2,275,000 estate value nor any other personal

financial statement identifies the purported loan to husband’s

father.

¶ 37 The court thus did not err by finding that husband’s

purported loan from his father was not a valid debt.

3. Husband’s Alleged Separate Property

¶ 38 Husband argued to the district court that before the marriage,

one of his businesses had a premarital value of $66,490 and that

this amount should be set aside to him as his separate property.

The court was not persuaded. Husband argues that this was error

because the undisputed evidence showed that he had a separate

property interest in his businesses. We disagree.

¶ 39 The parties’ joint expert witness reported that husband formed

Urban Land Acquisitions LLC before the marriage, and he noted

that the premarital value of that business likely was $66,490.

While a premarital interest could be set aside to husband as his

separate property, see § 14-10-113(1)-(2), the expert went on to

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testify that Urban Land Acquisitions had ceased operations and

that this business had no present value. Thus, even if we assume

that Urban Land Acquisitions had a premarital value, that separate

property interest did not exist at the time of the permanent orders

hearing. It therefore could not be set aside to husband. See In re

Marriage of Turner, 2022 COA 39, ¶ 15 (noting that the court makes

“the determination of whether something is property at all” on the

date of the permanent orders hearing when that hearing precedes

the decree).

¶ 40 To the extent husband suggests that this separate property

interest still existed, he directs us to no evidence from the hearing

in support of that suggestion or that showed he used any portion of

the premarital property to acquire a different asset during the

marriage. See Smith, ¶ 41 (recognizing that property acquired in

exchange for separate property retains its separate character if the

party seeking to establish it as separate property meets their

burden of tracing it back to a separate asset).

¶ 41 The court thus did not err by declining to set aside $66,490 as

husband’s separate property.

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4. Marital Home Debt

¶ 42 Husband also argues that nothing in the record supports the

court’s finding that he “refinanced and took 2 loans out of the

[marital] home in April of 2023[,] . . . basically depleting the

proceeds of the sale of the home for his own benefit.” He asserts

that the two loans associated with the marital home were executed

before April 2023, and that the court appeared to misinterpret his

property division spreadsheet, which reported the April 2023

balance of these loans. Even if we assume that the court misstated

the date of these loans, husband develops no argument to explain

how that misstatement affected the court’s judgment or impacted

his substantial rights. See C.A.R. 35(c) (noting that we may

disregard any error of defect that does not affect the parties’

substantial rights). We therefore will not further address it. See

Collins, ¶ 56 (declining to address an undeveloped argument).

¶ 43 In sum, we will not disturb the court’s determinations

concerning the marital estate’s total value, the $473,365 purported

loan, husband’s alleged separate property, and the marital home

debt.

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IV. Maintenance, Child Support, and Attorney Fees

¶ 44 Husband next contends that the district court incorrectly

determined the parties’ incomes for purposes of deciding

maintenance and child support, made insufficient findings in

support of its child support determination, erred by awarding wife

$3,000 per month in maintenance, and improperly ordered him to

pay wife’s outstanding attorney fees and costs under section 14-10-

119, C.R.S. 2024.

¶ 45 However, when a court is required to revisit the property

division on remand, it must re-evaluate maintenance in light of the

updated property division. See In re Marriage of de Koning, 2016

CO 2, ¶ 26 (“[A]wards of spousal maintenance . . . flow from the

property distribution . . . .”). The court also must redetermine the

child support obligation. See de Koning, ¶ 22; cf. In re Marriage of

Salby, 126 P.3d 291, 301 (Colo. App. 2005) (“[T]he issues of child

support and maintenance are inextricably intertwined.”). And when

the court reconsiders maintenance and child support, it must base

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

the remand. See Wright, ¶ 24; In re Parental Responsibilities

Concerning M.G.C.-G., 228 P.3d 271, 273 (Colo. App. 2010).

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Following the court’s reconsideration of property division,

maintenance, and child support, it must re-evaluate whether to

award section 14-10-119 attorney fees and costs. See de Koning,

¶ 26; In re Marriage of Morton, 2016 COA 1, ¶ 33.

¶ 46 Given that the court must revisit these issues on remand, we

decline to address husband’s contentions concerning the court’s

determinations on incomes, maintenance, child support, and

attorney fees and costs. However, when the court addresses these

issues on remand, it must adhere to the directives in sections 14-

10-114, C.R.S. 2024, 14-10-115, C.R.S. 2024, and 14-10-119. See

also In re Marriage of Aragon, 2019 COA 76, ¶ 22 (directing the

court to conduct a lodestar analysis when determining the

reasonableness of attorney fees under section 14-10-119). It also

must make all required statutory findings, address the statutory

factors relevant to its determinations, and make findings sufficient

to explain the reasons for its decisions. See Wright, ¶ 23; Gibbs,

¶ 9; see also In re Marriage of Aldrich, 945 P.2d 1370, 1378 (Colo.

1997) (“In awarding fees and costs under section 14-10-119, the

district court must . . . mak[e] findings that explain how and why it

arrived at the specific amount of the award.”).

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V. Appellate Attorney Fees

¶ 47 Wife requests an award of appellate attorney fees under C.A.R.

38(b), arguing that husband’s appeal was frivolous. Given our

disposition, we do not agree and, therefore, deny this request. See

In re Marriage of Martin, 2021 COA 101, ¶ 42.

VI. Disposition

¶ 48 We affirm the district court’s allocation of decision-making

responsibility. We reverse the portion of the judgment that divided

the marital estate and, as a result, direct the court to reconsider

that determination and the other financial decisions that flow from

property division. The case is remanded for further proceedings

consistent with this opinion. Those portions of the judgment not

challenged on appeal remain undisturbed.

JUDGE GOMEZ and JUDGE LUM concur.

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