Marriage of Croghan

23CA0220 Marriage of Croghan 06-26-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA0220
Weld County District Court No. 11DR1201
Honorable Meghan Patrice Saleebey, Judge

In re the Marriage of

Daniel P. Croghan,

Appellant,

and

Kay Lynn Croghan,

Appellee.

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

Division I
Opinion by JUDGE WELLING
Schock and Berger*, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced June 26, 2025

Griffiths Law PC, Christopher Griffiths, Lone Tree, Colorado; Schaffner Law
LLC, Jennifer Schaffner, Greenwood Village, Colorado, for Appellant

Aitken Law, LLC, Sharlene J. Aitken, Denver, Colorado, for Appellee

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2024.
¶1 In this post-dissolution of marriage proceeding involving

Daniel P. Croghan (husband) and Kay Lynn Croghan (wife),

husband appeals the district court’s decision to reopen proceedings

pursuant to C.R.C.P. 16.2(e)(10) and allocate to wife a portion of an

undisclosed asset. We affirm the judgment in part and reverse it in

part and remand the case to the district court for further

proceedings.

I. Background

¶2 In 2011, husband petitioned to dissolve the parties’ twenty-

two-year marriage. Both husband and wife exchanged sworn

financial statements and filed certificates of compliance stating that

they had complied with all mandatory financial disclosures required

by C.R.C.P. 16.2. According to husband’s certificate of compliance,

he had disclosed his sworn financial statement, pay stubs from

Aztech Software, Inc., a US Bank account statement, a balance

sheet for Croghan Solutions, LLC, an auto loan statement, and a

mortgage statement. But he didn’t disclose his ownership interest

in another entity, Excertus, LLC (now Excertus, Inc.), which was

formed in 2009. In wife’s sworn financial statement, she stated, in

relevant part, that (1) “[husband] has [a] business interest in

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Croghan Solutions and Excertus[, but t]he details of these

interest[s] are unknown to me”; and (2) husband’s “income is

unknown from other businesses (Croghan Solutions, Excertus).”

Ultimately, husband and wife signed a stipulated separation

agreement that gave husband the right to retain “all of his interest”

in Croghan Solutions. Soon after, in December 2011, the court

entered a decree of dissolution of marriage.

A. Wife’s Motion to Reopen the Proceedings

¶3 Approximately four and a half years after the district court

entered the decree of dissolution of marriage, wife filed a C.R.C.P.

16.2(e)(10) motion to reopen the proceedings. In her motion, wife

alleged that husband had “omitted significant assets and materially

misrepresented” his financial position in his financial disclosures by

failing to disclose his business interest in Excertus (the undisclosed

asset). More specifically, in her motion, wife alleged that, at the

time of dissolution, husband was a member of Excertus and held a

50% share of the business, which earned him profits during the

2
marriage that were never properly allocated because of his failure to

disclose.1

¶4 While this proceeding was pending, husband and Croghan

Solutions were engaged in a civil suit with Excertus that, in part,

dealt with whether husband had an ownership interest in Excertus.

The district court stayed the proceedings on wife’s motion to reopen

while the civil suit was pending. The civil suit eventually settled,

and in February 2022, after an approximately six-year delay in the

proceedings due to the civil suit and court closures during the

COVID-19 pandemic, the court held a two-day hearing on the

motion to reopen. At the hearing, the court heard evidence about

Excertus, Croghan Solutions, and another business, Apex Back

1 In his brief, husband asserts, “The only information [w]ife

identifies that she claims [h]usband should have disclosed were
readily available corporate filing[s] with the Secretary of State.”
This is a mischaracterization of wife’s motion to reopen. In the
motion, wife contends that the Secretary of State filings show that
husband owned 50% of Excertus at the time of the marriage and
that it’s therefore an “unallocated marital asset.” Wife then alleges
that she “was not provided statements concerning Excertus, Inc.
Specifically, [she] was not provided with any documentation
concerning income, liabilities, assets, business financial
statements, loan applications, property, or any other relevant
documentation concerning Excertus, Inc.”

3
Office Solutions, Inc. (Apex), which was purchased by husband in

2012 with assets from Excertus.

B. Evidence Presented at the Hearing
and the District Court’s Order

¶5 At the hearing, the district court heard testimony from

husband; wife; wife’s expert, Lauren Long; husband’s Excertus

business partner, Richard Robertson; and an independent auditor,

Gary Schwartz. Husband, wife, Robertson, and Schwartz testified

primarily to husband’s interest in Excertus. Robertson and

husband testified that during and after the marriage, husband

received payments from Excertus through Croghan Solutions.

Husband testified that he “was always an owner” of Excertus and

that his 50% ownership interest in Excertus commenced in 2009.

But evidence presented at the hearing indicated that husband never

received a K-1 tax form, which an owner would expect to receive.

Long prepared an expert report and testified to her valuation of

Croghan Solutions, which included husband’s ownership interest in

Excertus and Apex.

¶6 In a written order entered after the hearing, the district court

granted wife’s motion to reopen the proceedings and divided

4
husband’s interest in the undisclosed asset. In its order, the court

found that, at the time of the dissolution, husband had a 50%

ownership interest in Excertus, which was a marital asset. The

court further found that husband had an affirmative duty to

disclose his ownership interest and that husband had failed to

disclose documents concerning his ownership interest in Excertus.

Because of husband’s failure to disclose relevant information, the

court concluded that the separation agreement that the parties

executed was “unfair and unconscionable.”

¶7 In its findings, the court adopted Long’s estimated valuation of

husband’s interest in the undisclosed asset at the time of the decree

and, after adding interest for “loss of opportunity,” allocated the

cash equivalent of 60% of the value of the undisclosed asset to wife,

which totaled $775,200.

II. Analysis

¶8 Husband advances three arguments on appeal, contending

that (1) the district court erred by reopening the proceedings

pursuant to C.R.C.P. 16.2(e)(10); (2) the district court erred by

relying on Long’s report to value husband’s interest in Excertus;

and (3) we should vacate the district court’s order because the

5
district court didn’t consider husband’s financial circumstances at

the time of the hearing when dividing the undisclosed asset. We

aren’t persuaded that the district court erred by reopening the

proceedings, but we agree that the district court erred by relying on

Long’s valuation. We therefore remand the case to the district court

to reconsider the value of the undisclosed asset as of the time of the

decree. Because the valuation of the undisclosed asset affects

allocation, we decline to consider the merits of husband’s third

contention and remand to the district court to reconsider how to

allocate the undisclosed asset.

A. The District Court’s Decision to Reopen the Proceedings

¶9 Husband contends that the district court erred by granting

wife’s motion to reopen the proceedings pursuant to C.R.C.P.

16.2(e)(10). We disagree.

1. Legal Principles and Standard of Review

¶ 10 In domestic relations cases, the parties “owe each other and

the court a duty of full and honest disclosure of all facts that

materially affect their rights and interests.” C.R.C.P. 16.2(e)(1). To

fulfill this duty, “a party must affirmatively disclose all information

that is material to the resolution of the case without awaiting

6
inquiry from the other party.” Id. Subject to some exceptions,

pursuant to C.R.C.P. 16.2(e)(2), a party must also provide all

mandatory disclosures set forth in C.R.C.P. Form 35.1. As relevant

here, C.R.C.P Form 35.1 requires that a party disclose “income tax

returns for the three years before filing of the petition or post-decree

motion . . . for any business in which a party has an interest

entitling the party to a copy of such returns,” C.R.C.P. Form

35.1(b), and financial statements for the last three years “[f]or every

business in which a party has access to financial statements,”

C.R.C.P. Form 35.1(d).

¶ 11 If, after entry of a final decree, “a party discovers that the other

party’s disclosures contained misstatements or omissions, [that

party] may seek relief pursuant to [C.R.C.P.] 16.2(e)(10).” In re

Marriage of Durie, 2020 CO 7, ¶ 1 (citing C.R.C.P. 16.2(e)(10)).

According to C.R.C.P. 16.2(e)(10),

it is the duty of parties to an action for decree
of dissolution of marriage, legal separation, or
invalidity of marriage, to provide full disclosure
of all material assets and liabilities. If a
disclosure contains a misstatement or
omission materially affecting the division of
assets or liabilities, any party may file and the
court shall consider and rule on a motion
seeking to reallocate assets and liabilities

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based on such a misstatement or omission,
provided that the motion is filed within 5 years
of the final decree or judgment.

Thus, under C.R.C.P. 16.2(e)(10), a district court must assess

(1) whether a party’s disclosure “contains a misstatement or

omission”; and (2) if there is a misstatement or omission, whether

that misstatement or omission “materially affect[ed] the division of

assets or liabilities.” Id.

¶ 12 We review the “district court’s interpretation and application of

C.R.C.P. 16.2” de novo, In re Marriage of Hunt, 2015 COA 58, ¶ 10,

including the sufficiency of a party’s allegations for relief under

C.R.C.P. 16.2(e)(10), In re Marriage of Martin, 2021 COA 101, ¶ 24.

But “[w]e review the [district] court’s factual findings for clear error.”

In Interest of Becker, 2017 COA 114, ¶ 27. “A court’s factual

findings are clearly erroneous only if there is no support for them in

the record.” Van Gundy v. Van Gundy, 2012 COA 194, ¶ 12.

2. The District Court Didn’t Err by Granting Wife’s Motion to
Reopen the Proceedings

¶ 13 Because the district court found, and the record supports,

that husband’s disclosures contained a misstatement or omission

that materially affected the division of assets and liabilities between

8
husband and wife, we conclude that the district court properly

granted wife’s motion to reopen the proceedings. See C.R.C.P.

16.2(e)(10).

a. Husband’s Disclosures Contained a Misstatement or Omission

¶ 14 The district court found that husband’s disclosures contained

a misstatement or omission because he failed to disclose his

ownership interest in Excertus. Specifically, the district court

found that husband had a 50% ownership interest in Excertus and

failed to disclose documents concerning that ownership interest,

including profit and loss statements, “the operating agreement, tax

documents, information about disbursements[,] and other financial

disclosures.”

¶ 15 These findings are supported by the record. Admitted exhibits

and multiple witnesses, including husband himself, indicated that

husband had an ownership interest in Excertus at the time of the

dissolution. But the sworn financial statement that husband

provided during the dissolution proceedings didn’t mention any

ownership interest in Excertus.

¶ 16 Because husband failed to disclose his ownership interest in

Excertus, his disclosures contained a misstatement or omission.

9
Thus, the district court correctly found that husband made a

misstatement or omission.

¶ 17 A misstatement or omission alone, however, isn’t enough to

prompt reopening under C.R.C.P. 16.2(e)(10). Any misstatement or

omission must also have “materially affect[ed] the division of assets

or liabilities.” C.R.C.P. 16.2(e)(10). This is where we turn to next.

b. Husband’s Misstatement or Omission Materially Affected the
Division of Assets or Liabilities Between the Parties

¶ 18 The district court found that husband’s “ownership of

Excertus . . . materially affects/affected [wife’s] rights and interests”

and that his failure to disclose his ownership interest in Excertus

“contained a misstatement and an omission . . . pursuant to

C.R.C.P. 16.2(e)(10).” Inherent in this finding is a conclusion that

the misstatement or omission affected the division of assets or

liabilities. See C.R.C.P. 16.2(e)(10). Thus, the record supports a

determination that husband’s failure to disclose his interest in

Excertus materially affected the division of the marital estate.

Indeed, because of husband’s failure to disclose his interest in

Excertus, the total value of that interest wasn’t divided as part of

the marital estate.

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¶ 19 The materiality of the omission is further illustrated by two

payments that were made to husband shortly after the decree was

entered. Specifically, in the months immediately following the

dissolution, husband received two payments totaling approximately

$82,000, which Robertson testified that husband had earned before

the dissolution. Wife didn’t receive any portion of these payments

or a share of the equity that generated this income because the

payments were made after the decree had been entered.

¶ 20 Husband admitted that he “suspect[ed] [the payments were]

more of an owner distribution,” and the district court found that

these were disbursements related to husband’s ownership interest

in Excertus and thus should have been divided as part of the

marital estate. See In re Marriage of Corak, 2014 COA 147, ¶ 11

(“Marital property includes all property that either spouse acquires

during the marriage. It does not include property that the spouses

acquired before the marriage, or that they have agreed will remain

separate.”).

¶ 21 The record supports that husband’s misstatement or omission

materially affected the division of the assets. Thus, the district

court didn’t err.

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c. Husband’s Arguments to the Contrary Are Unavailing

¶ 22 Husband makes two arguments against reopening the

proceedings despite his failure to fully disclose his assets. First, he

argues that the district court erred by reopening the proceedings

because wife’s knowledge of the existence of Excertus and Croghan

Solutions precluded the reopening. And second, he argues that the

district court shouldn’t have reopened the proceedings because his

ownership interest in Excertus was never determined in the civil

suit. We aren’t persuaded by either of husband’s arguments.

i. Wife’s Knowledge of Excertus and Croghan Solutions

¶ 23 Husband contends that wife’s knowledge of the existence of

Excertus and Croghan Solutions should have precluded the court

from reopening the proceedings. But because wife didn’t know the

nature of husband’s ownership interest in Excertus and husband

didn’t disclose any information about the nature of that interest,

wife’s knowledge about the existence of Excertus isn’t enough to

preclude the court from reopening the proceedings.

¶ 24 As an initial matter, we address husband’s assertion that

divisions of this court have approached C.R.C.P. 16.2(e)(10)

differently, with some divisions applying C.R.C.P. 16.2(e)(10) more

12
liberally, see, e.g., In re Marriage of Evans, 2021 COA 141; Hunt,

2015 COA 58, and other divisions applying C.R.C.P. 16.2(e)(10)

more narrowly, see, e.g., In re Marriage of Runge, 2018 COA 23M;

Martin, 2021 COA 101. According to husband, the cases that more

narrowly apply C.R.C.P. 16.2(e)(10) generally hold “that where a

spouse provides the other with information and the other spouse

chooses not to review or pursue further inquiry based on the

information disclosed, the [district] court should not reopen the

property division.” We disagree with husband’s assertion, however,

that divisions of this court have taken two distinct approaches

when deciding issues regarding C.R.C.P. 16.2(e)(10). Instead, any

discrepancies in C.R.C.P. 16.2(e)(10) cases are attributable to the

distinct factual circumstances of each case rather than divergent

applications of the law.

¶ 25 Husband argues that the facts of this case are similar to those

that counsel for a narrower application of C.R.C.P. 16.2(e)(10) and

attempts to distinguish the facts of this case from Hunt and Evans.

Specifically, according to husband, because wife knew that

Excertus and Croghan Solutions existed and knew that husband

had performed work for and earned income from those entities, the

13
proceedings shouldn’t have been reopened. As support for this

assertion, husband points to wife’s acknowledgment of Excertus

and Croghan Solutions in her sworn financial statement, his

disclosure of a bank account for Croghan Solutions, his disclosure

of a balance sheet for Croghan Solutions, and wife’s knowledge that

husband was performing contract work unrelated to his job at

Aztech Software.

¶ 26 To be sure, that wife knew of Excertus’s existence is readily

apparent from her sworn financial statement, in which she states

that husband’s “income is unknown from other businesses

(Croghan Solutions, Excertus)” and “[husband] has [a] business

interest in Croghan Solutions and Excertus. The details of these

interest[s] are unknown to me.” But the district court found, and

the record supports, that while wife knew that Excertus and

Croghan Solutions existed, she lacked fundamental knowledge

about the entities and was merely aware that husband had side

jobs. Indeed, she said as much in her sworn financial statement.

And we agree with the district court that “[t]here is a fundamental,

dramatic difference between [husband] receiving payments to

14
Croghan Solutions, LLC from Excertus as an employee who receives

a 1099, and [husband] having a 50% ownership in Excertus.”

¶ 27 Thus, while we agree with husband that, unlike in Evans, wife

had some knowledge of the undisclosed asset before the dissolution,

see Evans, ¶¶ 4, 31, we disagree with husband’s attempt to

distinguish his case from Hunt. To put a sharper point on it,

although wife had some knowledge about Excertus and Croghan

Solutions, similar to Hunt, she didn’t have “all the information she

was entitled to receive.” Hunt, ¶ 19.

¶ 28 We further disagree with husband’s assertion that his

incomplete disclosures about Croghan Solutions in his sworn

financial statements should have prompted wife to request more

information. While husband wasn’t required to provide an opinion

on the value of his interests in Croghan Solutions and Excertus, he

was required to present wife with all relevant financial documents

relating to these entities. See Runge, ¶ 35 (“Regarding the value of

[husband’s business interest], the rule requires disclosure of

material ‘facts,’ ‘information,’ and ‘assets and liabilities.’ It does not

mandate that husband provide his opinion of the value of a

disclosed asset.”) (citation omitted); see also Evans, ¶ 34 (holding

15
that wife shouldn’t “have had to conduct a thorough business

evaluation to determine the existence of a marital asset that

husband had an affirmative obligation to disclose” even though she

may have discovered the existence of the asset if she had conducted

a business evaluation). Therefore, based on the facts and

circumstances of this case, we reject the notion that wife’s failure to

request more information about Excertus and Croghan Solutions

before the parties signed the stipulation bars her from invoking

C.R.C.P. 16.2(e)(10) to reopen the proceedings for reallocation of the

property distribution.

¶ 29 The district court appropriately characterized the problem with

husband’s argument when it stated that husband’s failure to

disclose is more egregious than in Hunt because, in this case,

husband didn’t even disclose the nature of his business interest in

Excertus. And because wife didn’t know the nature of husband’s

relationship to or interest in Excertus, we can’t agree that wife’s

knowledge of the existence of Excertus or Croghan Solutions should

have precluded reopening under C.R.C.P. 16.2(e)(10).

16
ii. The Absence of a Determination of Husband’s Ownership
Interest in the Civil Suit

¶ 30 Husband next argues that because there wasn’t a

determination in the civil case that he had an ownership interest in

Excertus, the district court erred by granting wife’s motion to

reopen. But given husband’s testimony that he “was always an

owner” of Excertus, we aren’t persuaded by this argument.

Further, we disagree with husband’s contention that the “civil court

had exclusive jurisdiction” over whether husband possessed an

ownership interest in Excertus in 2011, the year the marriage was

dissolved.

¶ 31 Simply put, because there is record evidence supporting the

district court’s determination that husband failed to fully disclose

his ownership interest in Excertus at the time of dissolution and

because record evidence supports a determination that husband’s

failure to disclose materially affected the division of the parties’

assets and liabilities, the court didn’t err by reopening the

proceedings pursuant to C.R.C.P. 16.2(e)(10).

17
B. The District Court’s Valuation of the Undisclosed Asset

¶ 32 We now turn to husband’s contention that the district court

erred by relying on Long’s report to value husband’s interest in

Excertus. We agree with husband that, by relying on Long’s report

and testimony, the district court erroneously valued husband’s

interest in Excertus. Based on this, we reverse the district court’s

allocation of the undisclosed asset because it’s predicated on the

erroneous valuation.

1. Legal Principles and Standard of Review

¶ 33 When allocating undisclosed property pursuant to C.R.C.P.

16.2(e)(10), “the court should consider the section 14-10-

113(1)[, C.R.S. 2024,] factors.” Evans, ¶ 51. Section 14-10-113

provides that the court must value an asset “as of the date of the

decree or as of the date of the hearing on disposition of property if

such hearing precedes the date of the decree.” § 14-10-113(5).

This date-of-decree valuation approach applies to “previously

misstated or omitted asset[s].” Evans, ¶ 52.

¶ 34 “Valuing property is within the trial court’s discretion, and the

court’s determination will not be disturbed on appeal if it is

reasonable in light of the evidence as a whole.” In re Marriage of

18
Krejci, 2013 COA 6, ¶ 23. “[A]n appellate court must not disturb a

trial court’s decision regarding division of property unless there has

been a clear abuse of discretion.” In re Balanson, 25 P.3d 28, 35

(Colo. 2001). “A court abuses its discretion if its decision is

manifestly arbitrary, unreasonable, or unfair, or misapplies the

law.” In re Marriage of Bergeson-Flanders, 2022 COA 18, ¶ 10.

2. Additional Facts

¶ 35 At the hearing, Long testified about her valuation report on

Croghan Solutions, which considered husband’s ownership in

Excertus and Apex. She testified that when valuing a business, she

normally would use “historical data to project the future cash flows

of a business or the future profitability,” but in this case, because

she already knew the actual cash flows of the business, she didn’t

have to predict. Instead, she only needed to “determine what

payments were received and what they were received for.”

¶ 36 According to Long’s report, which was admitted into evidence

at the hearing, she used the “discounted cash flow method” which

“calculates the present value of the future cash flows using a

discount rate.” To assist with her calculation, she used the cash

flows for Croghan Solutions for years 2012 through 2016 — the five

19
years immediately following the dissolution of the marriage — and

she included the discounted value of a promissory note that

husband received in 2020 in the civil suit settlement concerning

Excertus. Long concluded that the value of Croghan Solutions,

including direct and indirect ownership of Excertus and Apex, at

the time of the divorce, would have been $596,000 (rounded), and

that, with a “statutory interest rate of 8%,” its value as of the date

of her report in 2021 would be $1,291,596. At the hearing,

husband never provided expert testimony on the value of his

interest in Excertus or Croghan Solutions at the time of the

dissolution.

¶ 37 The district court adopted Long’s valuation of husband’s

interest in the undisclosed asset at the time of the decree.

3. The District Court’s Valuation of the Undisclosed Asset
Was Erroneous

¶ 38 As best we can discern, Long valued husband’s interest in

Croghan Solutions (including his ownership in Excertus and Apex)

based exclusively on financial data from 2011 through 2017 and

2020 (the year husband received the promissory note), and then

she used a discount rate to determine what the value of husband’s

20
interest would have been at the time of the dissolution in 2011. If

Long had been hired in 2011 to value the undisclosed asset, she

would have taken pre-dissolution financial data and used it to

forecast future cash flows and discount them back rather than

using the actual financial data for the five years following the

dissolution.

¶ 39 The fundamental problem with Long’s approach — and the

district court’s reliance on it — is that she valued the undisclosed

asset solely based on post-dissolution data. And, while the district

court has discretion when valuing marital property, its valuation is

erroneous if it fails to value an undisclosed asset as of the date of

the decree. See Krejci, ¶ 23 (the district court has discretion when

valuing property); Evans, ¶ 52 (the district court “must” value

misstated or omitted assets “as of the date of the decree or as of the

date of the hearing on disposition of property if such hearing

precedes the date of the decree” (quoting § 14-10-113(5))). We don’t

go so far as to say that, when determining an asset’s value post-

dissolution, it’s per se unreasonable to consider post-dissolution

financial data. In certain situations, it might be reasonable for an

expert or the court to look at later financial data to confirm or rebut

21
the pre-dissolution data. But it isn’t proper to exclusively rely on

post-dissolution data, as Long appears to have done here.

¶ 40 Indeed, our suspicion that Long’s methodology is flawed is

confirmed by her reliance on the promissory note that husband

received approximately nine years after the dissolution. Long used

the discounted value of the promissory note, at least in part, to

calculate the value of husband’s interest in Excertus. But it

appears that husband’s receipt of the promissory note dealt, at

least in part, with the sale of intellectual property that, in all

likelihood, wasn’t in existence at the time of the dissolution. Thus,

while the promissory note may have partially concerned husband’s

ownership interest in Excertus, the value of the promissory note

certainly can’t be attributed entirely to the value of husband’s

ownership interest in Excertus at the time of the dissolution. Nor

do we understand how it relates to the value of the entity at the

time of the dissolution.

¶ 41 We acknowledge that the district court had valuation

information from only one source because husband didn’t retain his

own expert to opine on the value of his interest in the undisclosed

asset at the time of the decree. But husband highlighted flaws in

22
Long’s analysis during his cross-examination. And just because it’s

the only expert valuation doesn’t mean the court must accept it in

its entirety. See In re Marriage of Page, 70 P.3d 579, 582 (Colo.

App. 2003) (the district court has “discretion to choose the property

valuation of one party over that of the other or to make its own

reasonable determination of value”). Because it appears that the

district court accepted a valuation of husband’s interest in the

undisclosed asset that is fundamentally flawed, the court erred.

C. The Court’s Failure to Consider Husband’s
Financial Circumstances

¶ 42 Husband’s final contention is that we should vacate the

district court’s order because it incorrectly allocated the

undisclosed asset by failing to fully and properly consider his

financial circumstances at the time of allocation.

¶ 43 When allocating an undisclosed asset, the court “must

consider the parties’ economic circumstances at the time of the

C.R.C.P. 16.2(e)(10) hearing.” Evans, ¶ 54; see also § 14-10-

113(1)(c). Here, it’s clear from the record that the court allocated a

portion of the undisclosed asset to wife without complete

information about husband’s current financial circumstances. But

23
husband bears considerable responsibility for the court having an

incomplete picture of his then-current financial circumstances.

Indeed, prior to and at the hearing, husband objected to the district

court’s order that he supply an updated sworn financial statement

and C.R.C.P. 16.2 disclosures. But after taking the issue under

advisement, the court ruled that an updated sworn financial

statement wasn’t necessary because they weren’t relevant to the

proceedings. It appears from the record that husband may have

made the decision not to provide his updated sworn financial

statement because he didn’t expect the court to resolve whether to

reopen the proceedings at the same time as deciding the

undisclosed asset’s value and how it should be properly allocated.

¶ 44 The record is at least ambiguous as to whether the court put

husband on notice that it would make the valuation and allocation

determinations at the same time as deciding whether to reopen the

proceedings. Husband played a dangerous game when he declined

to provide his sworn financial statement in advance of the hearing.

But because of the ambiguity in the record as to what would be

decided at the hearing and because we are remanding the case to

the district court for reconsideration of the value of the undisclosed

24
asset, we don’t need to reach the issue of whether the district court

erred by allocating husband’s interest in the undisclosed asset

without considering his financial circumstances at the time of the

hearing.

¶ 45 Indeed, given our clarification regarding the proper approach

to valuing the undisclosed asset, on remand the court should

permit both parties to present new or additional evidence on both

the value of the undisclosed asset at the time of the dissolution and

their current financial circumstances, which the court must

consider when allocating the undisclosed asset. It will be up to the

district court, in the exercise of its discretion, to manage discovery

and disclosures related to this additional evidence. See Durie, ¶ 32

(holding that when considering a C.R.C.P. 16.2(e)(10) motion, “the

court, in its discretion, may allow discovery or schedule a hearing

(or both) if it concludes that the facts asserted in the motion are

sufficient to justify doing so”).

D. Wife’s Request for Attorney Fees

¶ 46 Wife requests that we award her attorney fees incurred on

appeal. As grounds for an award of attorney fees, she cites section

14-10-119, C.R.S. 2024, contending that there is a significant

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disparity in the parties’ financial resources, and C.A.R. 38(b) and

section 13-17-102, C.R.S. 2024, contending that husband’s appeal

was groundless and frivolous. We decline to award wife attorney

fees under section 13-17-102 and C.A.R. 38(b) because husband’s

appeal isn’t groundless or frivolous, as evidenced by our decision to

partially reverse the district court’s judgment. See Martin, ¶ 42.

But we remand to the district court the issue of whether wife is

entitled to an award of her appellate attorney fees pursuant to

section 14-10-119 and, if so, in what amount. See Martin, ¶ 42.

III. Disposition

¶ 47 The judgment is affirmed in part and reversed in part. The

case is remanded to the district court for (1) reconsideration of the

value of husband’s interest in the undisclosed asset at the time of

the dissolution; (2) reallocation of the undisclosed asset based on

the new valuation; and (3) determination of an award of appellate

attorney fees under section 14-10-119. On remand, the court may,

in its discretion, permit the parties to present additional evidence

on any matter relevant to the valuation and allocation of the

undisclosed asset, including expert testimony, but the court must

permit both parties to present new evidence regarding their current

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financial circumstances including updated sworn financial

statements.

JUDGE SCHOCK and JUDGE BERGER concur.

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