Marriage of Watters

24CA0179 Marriage of Watters 03-20-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0179
Arapahoe County District Court No. 20DR31696
Honorable Michelle Jones, Judge

In re the Marriage of

Joshua Watters,

Appellant,

and

Jeanise Watters,

Appellee.

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

Division VII
Opinion by JUDGE LIPINSKY
Johnson and Moultrie, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced March 20, 2025

The Law Office of C. Robert Biondino Jr., P.C., C. Robert Biondino Jr.,
Highlands Ranch, Colorado, for Appellant

The W Law, Carolyn C. Witkus, Danielle N. Moylett, Denver, Colorado, for
Appellee
¶1 Joshua Watters (husband) appeals the judgment addressing

his and Jeanise Watters (wife)’s marital agreement (the agreement),

property division, spousal maintenance, and child support. He also

appeals the district court’s post-decree order denying his C.R.C.P.

70 motion. We affirm the judgment in part, reverse it in part, and

remand the case to the court for further proceedings. We dismiss

as moot husband’s appeal of the court’s denial of his C.R.C.P. 70

motion.

I. Relevant Facts

¶2 The parties married in 1999 and have three children. The

parties entered into the agreement sixteen years later. Although

husband consulted with an attorney regarding the agreement, he

discontinued the representation before he signed the agreement.

Nonetheless, by signing the agreement, he represented that he

“believe[d], based on his discussions with [his former attorney], that

[the] [a]greement [was] fair, equitable, and reasonable.”

¶3 In the agreement, the parties categorized certain parcels of

real property as separate or marital. In recognition of wife

sacrificing her career and focusing on raising the children, the

1
parties stipulated that, upon dissolution of the marriage, she would

be entitled to spousal maintenance and health insurance for life.

¶4 In October 2020, husband filed a petition to dissolve the

marriage.

¶5 At a status conference, the court told the parties to brief the

issue of the agreement’s enforceability and said that it would issue

a ruling without a hearing. Wife filed a motion to enforce the

property division aspects of the agreement (the motion to enforce).

In his response, husband argued that the agreement was

unenforceable, alleging duress, unconscionability, and

abandonment. The court granted the motion to enforce.

¶6 In April 2022, the court entered a decree dissolving the

marriage. In accordance with the agreement, the court found that

wife and husband had separate property worth $1,442,549 and

$317,626, respectively, and then equally divided the marital estate,

with each party receiving approximately $1.1 million in assets. The

court also ordered the parties to file their tax returns for the years

2019 through 2021 as married filing separately. And it directed

husband to pay $11,000 in monthly spousal maintenance for

thirteen years and $231 in monthly child support for their

2
remaining minor child until the child’s emancipation. In addition,

the court required husband to pay for wife’s health insurance for

life per the agreement and to establish a $25,000 escrow account to

cover wife’s “not yet incurred medical debt to the Mayo Clinic in the

estimated amount of $39,500.”

¶7 The court later denied the parties’ respective C.R.C.P. 59

motions, in which they sought, among other relief, amendments to

the court’s property division.

¶8 On September 27, 2023, the court summarily denied

husband’s forthwith C.R.C.P. 70 motion, in which he sought an

order compelling wife to sign releases for Small Business

Administration (SBA) records related to certain COVID-relief loans.

Husband alleged that he had only recently learned about the loans,

even though his name appeared on the loan applications.

II. The Agreement

A. Duress

¶9 Husband contends that the court should have invalidated the

agreement because he signed it under duress. We disagree.

¶ 10 The Uniform Premarital and Marital Agreements Act (UPMAA),

sections 14-2-301 to -313, C.R.S. 2024, governs. § 14-2-303(1),

3
C.R.S. 2024; In re Marriage of Zander, 2019 COA 149, ¶ 11, 486

P.3d 352, 355, aff’d, 2021 CO 12, 480 P.3d 676.

¶ 11 As pertinent here, the UPMAA defines a “[m]arital agreement”

as “an agreement between spouses who intend to remain married

which affirms, modifies, or waives a marital right or obligation

during the marriage or at . . . marital dissolution.” § 14-2-302(2),

C.R.S. 2024; see In re Marriage of Blaine, 2021 CO 13, ¶ 19, 480

P.3d 691, 695.

¶ 12 A marital agreement is unenforceable if a party against whom

enforcement is sought proves that the party entered into the

agreement involuntarily or under duress. § 14-2-309(1)(a), C.R.S.

2024. Accordingly, husband bore the burden of proving, by a

preponderance of the evidence, that he signed the agreement under

duress. § 14-2-309(1); see § 13-25-127(1), C.R.S. 2024 (providing

that the burden of proof in civil cases is a preponderance of the

evidence).

¶ 13 Duress exists if a party’s manifestation of assent to a contract

is induced by an improper threat that leaves no reasonable

alternative. See Vail/Arrowhead, Inc. v. Dist. Ct., 954 P.2d 608, 612

(Colo. 1998).

4
To establish duress as ground[s] for the
avoidance of a contract, conveyance, or other
act, it is not alone sufficient to show the
exertion of pressure by threats or even by
physical compulsion, but it must also clearly
appear that the force or threats employed
actually subjugated the mind and will of the
person against whom they were directed, and
were thus the sole and efficient cause of the
action which he took.

Premier Farm Credit, PCA v. W-Cattle, LLC, 155 P.3d 504, 521 (Colo.

App. 2006) (quoting Wiesen v. Short, 604 P.2d 1191, 1192 (Colo.

App. 1979)).

¶ 14 The existence of duress is ordinarily a question of fact to be

determined according to the circumstances of the case. Id. We will

not disturb a district court’s factual determinations unless they are

clearly erroneous, meaning the record does not support them. In re

Marriage of Young, 2021 COA 96, ¶ 8, 497 P.3d 524, 528.

¶ 15 Husband alleged that

• wife subjected him to years of manipulation, demeaning

comments, and “bull[ying],” creating an environment in

which he felt pressured to comply with her demands even

if he disagreed with them;

5
• wife threatened to withhold sex unless he signed the

agreement;

• wife manipulated him by saying she did not trust him

and that signing the agreement was necessary to rebuild

that trust;

• wife issued an ultimatum, saying their marriage would

end and he would have to “fight to see” the children if he

refused to sign the agreement; and

• wife coerced him into signing the agreement even though

she knew of his devout Catholic faith and his belief that

divorce was “one of the largest sins.”

¶ 16 The court, however, concluded that husband was not coerced

into signing the agreement. The court found that husband

consulted with an attorney before signing the agreement and

actively participated in drafting it, even proposing revisions eight

days before signing it. And the parties said in the agreement that

husband had it reviewed by an attorney and believed it to be fair,

equitable, and reasonable. The court further found there was no

evidence that husband was under the influence of alcohol or drugs

when he signed it.

6
¶ 17 From those findings, the court determined that husband failed

to prove duress. We see no clear error because the record supports

the court’s findings and determination of lack of duress. See

§ 14-2-309(1); see also Premier Farm Credit, 155 P.3d at 521.

B. Unconscionability

¶ 18 Husband maintains that the property division provisions of

the agreement are invalid because the court did not review them for

unconscionability. He is mistaken.

¶ 19 Under the UPMAA, no review for unconscionability is required

for property division pursuant to a marital agreement, so long as

full disclosure and the absence of fraud or overreaching are

established. See § 14-2-309; see also In re Marriage of Ikeler, 161

P.3d 663, 669 n.8 (Colo. 2007) (Under the UPMAA’s predecessor,

“marital agreements as to property division are neither void as

against public policy generally, nor are they subject to review for

unconscionability.”); Newman v. Newman, 653 P.2d 728, 733-34

(Colo. 1982) (“Once the stringent tests of full disclosure and lack of

fraud or overreaching are met, the parties are free to agree to any

arrangement for division of their property . . . .”).

7
C. Abandonment

¶ 20 Husband argues that the court erred by enforcing the

agreement because the parties’ subsequent actions demonstrated

they had mutually abandoned the agreement’s property division

terms. We disagree.

¶ 21 Under the agreement, wife’s separate property, as relevant

here, included

• 19961 East Tufts Drive (Tufts), which the parties jointly

owned and was encumbered by a debt in husband’s

name;

• 17316 East Rice Circle; and

• 6071 South Tempe Way (Tempe), which the parties

jointly owned and was encumbered by a debt in

husband’s name.

¶ 22 Husband’s separate property, as relevant here, included 4636

South Dillon Court (Dillon), which the parties held as tenants in

common through Watters Management, LLC.

¶ 23 The agreement designated as marital property:

• the primary marital residence at 19594 East Pinewood

Drive (Pinewood), which the parties owned as tenants in

8
common, with husband solely responsible for the

mortgage during the marriage; and

• 4261 South Fairplay Circle (Fairplay), which the parties

held as tenants in common through Watters

Management, LLC, with husband solely responsible for

the mortgage during the marriage.

¶ 24 Following the execution of the agreement, husband reported

that the parties “transferred” Tufts, Tempe, Pinewood, and Fairplay

to Watters Tufts Properties, LLC, Watters Tempe Properties, LLC,

Watters Pinewood Properties, LLC, and Watters Fairplay, LLC,

respectively. The parties had jointly formed those entities.

¶ 25 On appeal, husband argues that

• those LLC transfers were inconsistent with the

agreement’s terms;

• even though the agreement said that wife claimed Tufts

and Tempe as her separate property, she subsequently

allowed husband to convey a 50% ownership interest in

those properties to Watters Tufts Properties, LLC, and

Watters Tempe Properties, LLC, respectively; and

9
• contrary to the agreement’s stipulation that husband

would be responsible for paying the mortgages on Tufts

and Pinewood, wife paid them with rental income she

earned from those properties.

¶ 26 Like other types of contracts, the parties may waive the

enforcement of certain provisions of a marital agreement. See In re

Estate of Gadash, 2017 COA 54, ¶ 40, 413 P.3d 272, 277 (“Marriage

agreements should be construed and treated in the same manner

as other contracts, and, in construing them, we must give effect to

the parties’ intent.”); In re Marriage of Fiffe, 140 P.3d 160, 163

(Colo. App. 2005) (holding that premarital agreements should be

construed in the same manner as other contracts); see also

Magliocco v. Olson, 762 P.2d 681, 685 (Colo. App. 1987) (noting that

a party may waive provisions of a contract by engaging in conduct

that is inconsistent with the enforcement of those provisions); In re

Marriage of Zimmerman, 714 P.2d 927, 929 (Colo. App. 1986)

(holding that parties abandoned specific provisions of their

premarital agreement by entering into a joint business venture and

thereby sharing the business’s liabilities in accordance with their

respective stock interests, and not as specified in the agreement).

10
¶ 27 Parties may also agree to abandon or rescind a marital

agreement in its entirety. See In re Marriage of Young, 682 P.2d

1233, 1236 (Colo. App. 1984) (premarital agreement was

abandoned and rescinded by the parties’ mutual consent, as

evidenced by their pooling and holding their property in joint

tenancy).

¶ 28 A marital agreement may be abandoned or rescinded by

mutual consent, including by consent implied from the parties’

actions or conduct. See id. (citation omitted). But such actions or

conduct “must be positive, unequivocal, and inconsistent with

intent to be further bound by the contract.” Id. (citation omitted).

¶ 29 Whether parties have abandoned or rescinded a marital

agreement through their actions or conduct is a factual question for

the court to decide. Id.

¶ 30 While we agree with husband that the court did not directly

address the abandonment issue, we conclude that the issue is

properly before us. This is so because the court said it had (1)

reviewed husband’s response to wife’s motion to enforce, in which

he raised the abandonment issue, and her reply, in which she

contested the issue; (2) acknowledged the parties’ agreement to

11
forgo an evidentiary hearing and that the court could rule based on

the court filings; and (3) determined that the agreement was valid

and enforceable. This record shows that the court implicitly found

that the parties did not abandon or rescind the agreement through

their subsequent actions and conduct. See In re Parental

Responsibilities Concerning S.Z.S., 2022 COA 105, ¶ 23, 521 P.3d

1025, 1032 (noting that a district court’s finding may be implicit in

its ruling); see also In re Marriage of Udis, 780 P.2d 499, 504 (Colo.

1989) (explaining that an appellate court may presume that the

court considered all the evidence presented when arriving at its

decision).

¶ 31 We conclude that the record supports the court’s

determination that the parties’ actions or conduct was consistent

with the agreement and did not establish that the parties intended

to abandon or rescind the agreement’s property division terms. See

Young, 682 P.2d at 1236.

¶ 32 The property transfers to the LLCs after the parties entered

into the agreement did not clearly or unambiguously signal an

intention to abandon the agreement. See § 14-2-309(1)(a); see also

Young, 682 P.2d at 1236. Dillon and Fairplay were titled in the

12
names of the parties’ jointly owned LLCs at the time the parties

executed the agreement. Even though Tufts and Tempe were jointly

titled but encumbered solely in husband’s name, the agreement

explicitly designated them as wife’s separate property. See In re

Marriage of Stumpf, 932 P.2d 845, 847 (Colo. App. 1996) (explaining

that the form in which title is held is not dispositive in determining

whether property is marital or separate); Martinez v.

Gutierrez-Martinez, 77 P.3d 827, 828-29 (Colo. App. 2003)

(upholding exclusion of property from marital estate

“notwithstanding that title was in [the] wife’s name”).

Consequently, wife’s consent to convey a 50% interest in those

properties to the LLCs did not establish mutual consent to abandon

the agreement.

¶ 33 Contrary to husband’s claim, the agreement did not provide

that he alone could make the mortgage payments for Tufts.

Instead, the agreement says that, at the time of execution, the

“encumbrance associated with [the] property [was] in [h]usband’s

name alone.” Wife’s assumption of the mortgage payments for

Tufts, which she paid from the rental income from that property,

did not contradict the agreement.

13
¶ 34 Husband also failed to meet his burden to show that wife’s

mortgage payments for Pinewood and Fairplay clearly or

unambiguously indicated a mutual intent to abandon the

agreement. See § 14-2-309(1)(a); see also Young, 682 P.2d at 1236.

In his response to wife’s motion to enforce, husband asserted that

the parties acted inconsistently with the agreement based on wife’s

admission that she, not husband, paid the mortgages for Pinewood

and Fairplay. Her admission was part of her answer to an

interrogatory concerning her “day-to-day operations of [her] rental

properties.” In her reply, she said that husband “should have been

paying” the Pinewood mortgage according to the agreement, but

that he had failed to do so. Because husband did not pay those

mortgages, wife said that she paid them to protect her interests in

Pinewood and Fairplay under the agreement and to preserve those

marital assets, and that her payment of the Pinewood and Fairplay

mortgages did not indicate that she intended to abandon the

agreement.

¶ 35 Moreover, neither in the court nor on appeal did husband cite

any specific authority to support his claim that wife’s payments of

the Pinewood and Fairplay mortgages established a mutual intent

14
to abandon the agreement because such payments were

inconsistent with the agreement’s language saying that he was

responsible for paying those mortgages. See Zander, ¶ 27, 486 P.3d

at 357 (explaining that an appellate court will not consider an

argument not supported by legal authority or any meaningful legal

analysis); see also In re Marriage of Dean, 2017 COA 51, ¶ 31, 431

P.3d 246, 252 (noting that an appellate court will not consider

arguments in a reply brief that seek to expand on contentions

raised in an opening brief).

¶ 36 Further, Husband seeks to incorporate by reference into his

opening brief his response to wife’s motion to enforce. We decline to

address any contentions contained in his response but not in his

opening brief. See C.A.R. 28(a)(7)(B) (requiring arguments in a brief

to contain contentions and reasoning, with citations to the

authorities and parts of the record on which the appellant relies);

see also C.A.R. 57 (“Incorporation by reference of briefs previously

filed in the lower court is prohibited.”); Castillo v. Koppes-Conway,

148 P.3d 289, 291 (Colo. App. 2006) (Incorporation by reference “is

improper because it attempts to shift — from the litigants to the

15
appellate court — the task of locating and synthesizing the relevant

facts and arguments.”).

D. Health Insurance

¶ 37 Husband contends that the court erred by ordering him to

provide lifetime health insurance for wife, even though he stipulated

to do so in the agreement. We agree.

¶ 38 The agreement includes a subsection under maintenance

requiring husband, upon dissolution, to pay for wife’s health

insurance for life. But in the motion to enforce, wife focused on the

property division and did not request enforcement of the

maintenance provision, including the health insurance

requirement. Moreover, wife represented in her reply in support of

the motion to enforce that the parties agreed the maintenance

provision was unenforceable. And during the permanent orders

hearing, wife’s counsel asserted that she was not asking the court

to enforce the health insurance subsection because it conflicted

with federal law. Additionally, in her closing argument, wife’s

counsel did not request that husband be ordered to pay for wife’s

health insurance.

16
¶ 39 The court’s order requiring husband to provide lifetime health

insurance to wife was improper because, not only did she fail to

seek enforcement of that provision during the proceedings, but she

expressly asserted that the order was unenforceable under federal

law. While she suggests in her answer brief that the order is proper

under the Colorado maintenance statute, she did not include the

cost of her health insurance as part of her reasonable needs when

the court awarded her $11,000 per month in maintenance, as she

requested. Nor has she identified in the record where the court was

otherwise presented with information regarding the cost of her

health insurance.

¶ 40 We reverse that portion of the judgment and remand the case

to the court to vacate the health insurance requirement from the

permanent orders. Because the agreement includes a severability

clause, this reversal does not impact the validity of the rest of the

agreement.

III. Property Division

A. Standard of Review

¶ 41 A district court has great latitude to make an equitable

property division based on the facts and circumstances of each

17
case, and we will not disturb its decision absent an abuse of

discretion. In re Marriage of Collins, 2023 COA 116M, ¶ 19, 544

P.3d 1258, 1267; see § 14-10-113(1), C.R.S. 2024. “The property

division must be equitable, but not necessarily equal.” In re

Marriage of Wright, 2020 COA 11, ¶ 3, 459 P.3d 757, 759; see In re

Marriage of Gallo, 752 P.2d 47, 55 (Colo. 1988) (“The key to an

equitable distribution is fairness, not mathematical precision.”). A

court abuses its discretion when its decision is manifestly arbitrary,

unreasonable, or unfair, or when it misconstrues or misapplies the

law. In re Marriage of Fabos, 2022 COA 66, ¶ 16, 518 P.3d 297,

301-02.

B. Relevant Law

¶ 42 A court must conduct a multi-step analysis when it allocates

marital property. LaFleur v. Pyfer, 2021 CO 3, ¶ 63, 479 P.3d 869,

885. The court (1) must determine whether an interest is property;

(2) if so, it must classify the property as marital or separate; and (3)

it must value the marital property and determine an equitable

distribution of such property. Id.

¶ 43 In making an equitable distribution, the court must consider

all relevant factors, including, as relevant here, each spouse’s

18
contribution to the acquisition of the marital property, including the

contribution of a spouse as homemaker, and each spouse’s

economic circumstances. § 14-10-113(1)(a), (c); In re Marriage of

Evans, 2021 COA 141, ¶ 50, 504 P.3d 988, 998.

¶ 44 The weighing of those factors is within the court’s sound

discretion. In re Marriage of Powell, 220 P.3d 952, 959 (Colo. App.

2009). The court need not make specific findings as to each factor

so long as its findings allow us to determine whether its decision is

supported by competent evidence. Collins, ¶ 19, 544 P.3d at 1267.

C. Discussion

1. Tax Returns

¶ 45 Husband contends that the court erred by requiring the

parties to file their taxes for 2019 through 2021 as married filing

separately rather than jointly. We are not persuaded.

¶ 46 To protect herself financially, wife asked the court to order the

parties to file taxes as married filing separately for the years 2019

through 2021. She testified that husband had previously “lied” on

their joint business tax returns, which had resulted in audits. She

recalled a warning from an IRS agent, who stressed that any future

19
misrepresentations could lead to criminal charges and possible jail

time.

¶ 47 In the permanent orders, the court instructed the parties to

file their tax returns for the years 2019 through 2021 as married

filing separately.

¶ 48 Because wife’s testimony supports the court’s decision, we

cannot say the court abused its discretion by ordering the parties to

file as married filing separately. See In re Marriage of Thorburn,

2022 COA 80, ¶ 49, 519 P.3d 736, 744 (explaining 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 court’s sole discretion); see also In

re Marriage of Amich, 192 P.3d 422, 424 (Colo. App. 2007) (noting

that the district court can believe all, part, or none of a witness’s

testimony, even if uncontroverted).

2. Husband’s Commissions

¶ 49 Husband also contends that the court’s award to wife of

one-half of his commissions earned from projects sold before entry

of the dissolution decree but installed after the decree was

inequitable. We disagree.

20
¶ 50 Compensation received or fully earned during marriage is

marital property subject to equitable distribution. See In re

Marriage of Sewell, 817 P.2d 594 (Colo. App. 1991); see also In re

Marriage of Huston, 967 P.2d 181 (Colo. App. 1998) (concluding

that compensation deferred until after the dissolution, but fully

earned during the marriage, is marital property); In re Marriage of

Cardona, 321 P.3d 518, 522 (Colo. App. 2010) (holding that income

earned from separate property during the marriage is marital

property), aff’d, 2014 CO 3, 316 P.3d 626.

¶ 51 The court found that, as of the date of the dissolution decree,

husband had earned, but had not yet received, a portion of his

income. His income was entirely commission-based. He received

half of his commission when a project was “sold” and the other half

when the project was “installed.” If a customer canceled the project

before installation, husband was required to return the initial half

of the commission he had received. The court also found that, due

to prevailing economic conditions, including supply chain

disruptions and other issues, the time between sales and

installations had increased, and that this delay led to a

higher-than-usual percentage of orders being canceled. The court

21
determined that wife was entitled to one-half of husband’s

commissions received after the date of the decree, even if those

commissions resulted from sales he made before the decree.

¶ 52 Because husband had an enforceable right to his

commissions, the court correctly awarded wife a share of those

commissions. See Huston, 967 P.2d at 184 (holding that earnings

or payments derived from work performed during the marriage are

marital property, subject to equitable distribution upon

dissolution); see also In re Marriage of Turner, 2022 COA 39,

¶ 18 n.1, 513 P.3d 407, 411 n.1 (noting that whether a bonus is an

enforceable right depends heavily on the court’s assessment of

credibility, and because the court found the wife’s employer

credible, “we must conclude that the record supports the finding

that [she] did not yet have an enforceable right to the bonus”);

Sewell, 817 P.2d at 596 (deciding that district court properly

divided as marital property income that the husband had earned

during the marriage but that he had not yet received at the time of

the permanent orders).

¶ 53 Nonetheless, husband asserts that the court should have

issued “corresponding [o]rders” providing guidance on how to

22
address a customer cancellation that necessitated a “return” of a

commission. Because husband does not direct us to where in the

record he raised this specific issue, it is not preserved and may not

be raised for the first time on appeal. See In re Marriage of Turilli,

2021 COA 151, ¶ 12, 507 P.3d 83, 87 (holding that an issue is

preserved for appeal when it is brought to the court’s attention and

the court ruled on it); see also In re Marriage of Garrett, 2018 COA

154, ¶ 35, 444 P.3d 812, 819 (holding that issues not raised before

the district court will not be addressed for the first time on appeal);

Brody v. Hellman, 167 P.3d 192, 199 (Colo. App. 2007) (holding that

an issue that is not pursued during the hearing on permanent

orders or through disposition is abandoned for appeal).

Accordingly, we decline to address the merits of this assertion. See

Garrett, ¶ 35, 444 P.3d at 819.

¶ 54 We similarly reject husband’s related contention that the court

failed to address the potential tax liabilities arising from his

commission payments to wife. He does not tell us where in the

record he specifically informed the court of these potential liabilities

or provided any calculations for the court to consider. Because the

court had no obligation to consider hypothetical tax implications,

23
we cannot say that the court abused its broad discretion by

ordering husband to pay wife a share of the subject commissions.

Collins, ¶ 19, 544 P.3d at 1267; see also In re Marriage of Dale, 87

P.3d 219, 226 (Colo. App. 2003).

3. Personal Property and Marital Property Located Inside
the Marital Residence

¶ 55 Husband argues that the court erred by dividing the parties’

personal property and marital property located inside the marital

residence. We disagree.

¶ 56 Husband sought an order allowing him to retrieve certain

personal belongings and marital property from the marital

residence. He presented two demonstrative exhibits listing specific

items of personal and sentimental value to him that he wished to

have, along with an inventory of the remaining marital property

inside the residence.

¶ 57 Wife testified that husband had already received his personal

property and a fair share of the marital assets.

¶ 58 The court ordered wife to return to husband personal items

such as husband’s birth certificate, social security card,

grandparents’ rings, and sports awards. However, the court said it

24
lacked sufficient evidence to accurately value and divide the

remaining personal items and marital property in the residence. It

encouraged the parties to cooperate and allow husband to retrieve

his belongings and a fair share of the marital property from the

residence.

¶ 59 We discern no error because husband failed to provide

adequate evidence for the court to properly value and divide the

disputed property. See In re Marriage of Rodrick, 176 P.3d 806,

815 (Colo. App. 2007) (noting that it is the parties’ duty to present

the district court with the requisite data to value property, and any

failure in that regard should not provide them with grounds for

review); see also In re Marriage of Eisenhuth, 976 P.2d 896, 901

(Colo. App. 1999) (explaining that the district court considers the

evidence presented to it).

IV. Medical Escrow Account

¶ 60 Husband argues that the court erred by ordering him to

establish a $25,000 medical escrow account to cover wife’s future

medical expenses related to injuries that she sustained from his

domestic violence during the marriage. He reasons that the court

25
should not have considered a hypothetical, not-yet-incurred

medical debt. We conclude that any error was harmless.

¶ 61 Wife testified about a planned spinal procedure at the Mayo

Clinic and said the parties had saved for it. She added that the

medical procedure was a result of husband’s domestic violence. It

was undisputed, however, that the parties had not incurred any

debt to the Mayo Clinic at the time of permanent orders. The court

therefore erred by ordering the establishment of a medical escrow

account for a non-existent and potentially hypothetical future debt.

See § 14-10-113(5) (providing that a district court is required to

divide the marital property or debt based on its value at the time of

the decree or the hearing on the disposition of property).

¶ 62 But when viewed in relation to the overall property division, an

error in dividing a nonexistent marital debt is reversible only if the

error affects the parties’ substantial rights. See C.A.R. 35(c); see

also In re Marriage of Balanson, 25 P.3d 28, 36 (Colo. 2001). “An

error affecting only a small percentage of the overall marital estate

is harmless . . . .” In re Marriage of Zappanti, 80 P.3d 889, 893

(Colo. App. 2003).

26
¶ 63 The assumed error of $25,000 represents less than 1% of the

$2.2 million marital estate. Such a small percentage does not

warrant reversal of the court regarding the establishment of the

medical escrow account. See id. We note that the medical escrow

account is specifically designated for treatment of wife’s neck

condition and limited to expenses not reimbursed by health

insurance, and that any funds remaining in the account after five

years must be returned to husband.

V. Maintenance

A. Standard of Review

¶ 64 The court has broad discretion to award maintenance, if any,

that is fair and equitable to both spouses based on the totality of

the circumstances. § 14-10-114(3)(e), C.R.S. 2024; see also In re

Marriage of Vittetoe, 2016 COA 71, ¶ 14, 488 P.3d 103, 106. We

will not disturb the court’s maintenance award absent an abuse of

that discretion. See In re Marriage of Medeiros, 2023 COA 42M,

¶ 58, 534 P.3d 531, 542.

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B. Relevant Law

¶ 65 Section 14-10-114(3) sets forth the specific process a court

must follow when considering a maintenance request. Wright, ¶ 13,

459 P.3d at 761.

¶ 66 The district court must first make findings regarding, as

relevant here, the requesting party’s reasonable financial need as

established during the marriage and the tax deductibility of

maintenance. § 14-10-114(3)(a)(I)(C)-(E); see Wright, ¶ 14, 459 P.3d

at 761. The court then determines an amount and term of

maintenance that is fair and equitable to the parties.

§ 14-10-114(3)(a)(II); Wright, ¶ 15, 459 P.3d at 761.

¶ 67 Although the court generally must also consider the guideline

amount and term of maintenance under section 14-10-114(3)(b)(I)

and (3)(b)(II), those guidelines do not apply when, as here, the

spouses’ combined annual adjusted gross income exceeds

$240,000. § 14-10-114(3.5); In re Marriage of Herold, 2021 COA 16,

¶ 26, 484 P.3d 782, 787. But the court may still consider the

guidelines under these circumstances. See § 14-10-114(3.5). In

this context, the court must determine the appropriate amount of

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maintenance based on the statutory factors set forth in section

14-10-114(3)(c). See § 14-10-114(3.5).

¶ 68 The court is not required to make specific factual findings on

each factor, so long as its decision gives the reviewing court a clear

understanding of the basis of its order. See In re Marriage of

Stradtmann, 2021 COA 145, ¶ 32, 506 P.3d 77, 83; see also

§ 14-10-114(3)(e) (“The court shall make specific written or oral

findings in support of the amount and term of maintenance

awarded pursuant to this section or an order denying

maintenance.”).

¶ 69 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 himself or herself through appropriate employment. See

§ 14-10-114(3)(a)(II)(C), (3)(d); Wright, ¶ 16, 459 P.3d at 761-62.

C. Discussion

¶ 70 Husband contends that the court erred in its calculation of

maintenance because (1) the record does not support its finding

that wife’s reasonable needs were $18,000 per month under section

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14-10-114(3)(a)(I)(D); and (2) it did not make a finding on the tax

implications of the award under section 14-10-114(3)(a)(I)(E),

(c)(XII). We are not persuaded.

¶ 71 The court found that the parties had a “very high standard of

living” during the marriage and that wife’s reasonable needs

amounted to $18,000 per month. A CPA who managed the parties’

day-to-day finances for nine months testified that wife’s “expenses”

were approximately $18,000 per month. Wife said that such

amount was her reasonable monthly need, although, in her sworn

financial statement filed a week before the issuance of the

permanent orders, wife indicated that her overall monthly expenses

were approximately $30,076. See Udis, 780 P.2d at 504; see also In

re Marriage of Plesich, 881 P.2d 379, 381 (Colo. App. 1994)

(appellate court must view the evidence in the light most favorable

to the district court’s order). Because the record supports the

court’s finding, we will not disturb it. See Young, ¶ 8, 497 P.3d at

528.

¶ 72 Nor are we persuaded by husband’s insistence that the court

did not consider “the significant state and federal taxes that [he] is

required to pay on his income before he provides any spousal

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maintenance to [w]ife.” The court ordered that the maintenance

award would not be deductible by husband or taxable to wife. But

husband points to nothing in the record indicating he told the court

what the significant tax implications would be. See Dale, 87 P.3d at

226.

VI. Child Tax Dependency Exemption

¶ 73 Husband contends, and we agree, that the court did not

allocate the dependency tax exemption for the minor child. Section

14-10-115(12), C.R.S. 2024, requires the court to allocate the

dependency tax exemption between the parents in proportion to

their contributions to the expenses of raising the child. S.F.E. in

Interest of T.I.E., 981 P.2d 642, 648 (Colo. App. 1998). The court

never addressed the issue even though wife agreed to an allocation

of the tax deduction.

¶ 74 We reverse the judgment concerning this issue. On remand,

the court should allocate the exemption between the parties as

section 14-10-115(12) requires. See S.F.E., 981 P.2d at 648.

VII. C.R.C.P. 70

¶ 75 Finally, husband contends that the court erred by denying his

forthwith motion pursuant to C.R.C.P. 70, in which he sought to

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compel wife to sign releases for SBA records related to certain

COVID-relief loans. We conclude that the issue is now moot.

¶ 76 In his motion, husband specifically requested that the court

order wife to sign the releases by April 17, 2023, to allow him to

meet a deadline for filing formal disputes with the SBA. That

deadline has long since passed. Therefore, because any order

compelling wife to sign the releases at this point would have no

practical legal effect, we dismiss as moot this part of husband’s

appeal. See In re Marriage of Thomas, 2021 COA 123, ¶ 21, 501

P.3d 290, 294 (explaining that an issue is moot when the relief

requested, if granted, would have no practical effect on an existing

controversy).

VIII. Appellate Attorney Fees and Costs

¶ 77 Wife asks us to order husband to pay her appellate attorney

fees under section 13-17-102, C.R.S. 2024, asserting that the

appeal lacks substantial justification. Given our disposition, we

deny her request.

¶ 78 Husband requests an award of his appellate attorney fees

under C.A.R. 39.1, based on wife’s alleged failure to comply with

C.R.C.P. 16.2(e)’s financial disclosure requirements regarding the

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SBA loans. We deny the request because the court’s order lacks

any factual finding that wife violated C.R.C.P. 16.2.

IX. Disposition

¶ 79 The portion of the judgment requiring husband to pay for

wife’s health insurance is reversed. That requirement is vacated

from the permanent orders. The portion of the judgment

concerning the child tax exemption is also reversed, and we remand

the case for an allocation of the exception, as section 14-10-115(12)

requires. The judgment is otherwise affirmed.

¶ 80 Husband’s challenge to the court’s denial of his C.R.C.P. 70

motion is dismissed as moot.

JUDGE JOHNSON and JUDGE MOULTRIE concur.

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