Marriage of Loecher

24CA1148 Marriage of Loecher 10-02-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA1148
Jefferson County District Court No. 22DR30326
Honorable Meegan A. Miloud, Judge

In re the Marriage of

Brittany V. Loecher,

Appellee,

and

Brent Metz,

Intervenor-Appellee,

and

Nikolas R. Loecher,

Appellant.

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

Division VI
Opinion by JUDGE WELLING
Gomez and Sullivan, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced October 2, 2025

Gem Family Law, LLC, Steve M. Visioli, Denver, Colorado, for Appellee

Law Office of Heather Mitchell & Associates, LLC, Heather M. Mitchell,
Monument, Colorado, for Intervenor-Appellee
Peak Legal Services, LLC, Todd J. Narum, Northglenn, Colorado, for Appellant
¶1 In this divorce proceeding involving Brittany V. Loecher (wife)

and Nikolas R. Loecher (husband), husband appeals the marital

property and maintenance portions of the permanent orders

judgment. He also appeals certain issues related to attorney fees.

We affirm in part and reverse in part, and we remand the case for

further proceedings consistent with this opinion.

I. Background

¶2 The parties married in 2010 and have two children. Wife was

a homemaker and, late in the marriage, served on a town council,

earning $400 per month. Husband was employed full time and

provided financially for the family. Wife began a relationship with

Brett Metz in 2021; she filed for divorce in 2022. After she filed for

divorce, wife received loans from Metz to cover certain expenses (the

Metz debt).

¶3 Over the course of this case, the district court entered a

permanent civil protection order against husband in favor of wife.

When husband sought to depose Metz, a nonparty, and repeatedly

subpoenaed his financial information, the court granted Metz’s

request to issue a protective order and quashed the subpoenas.

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The court ordered husband to pay Metz’s attorney fees for litigation

related to the subpoenas and protective order.

¶4 In 2024, the court held a permanent orders hearing and made

an oral ruling. As relevant here, the court considered, among other

things, the “inherited monies that [husband] received,” and found

that husband’s income was $20,000 per month. The court

allocated the Metz debt to wife. Several months after the oral

ruling, the court amended its findings and allocated the Metz debt

to husband. The court then issued written permanent orders,

which included requirements that husband pay (1) wife’s attorney

fees and (2) Metz’s $8,878 in attorney fees related to the subpoenas

and protective order. The court issued amended permanent orders,

correcting the nunc pro tunc date on the order and a child’s birth

date, and providing more detail regarding the sale of the marital

home.

¶5 Husband filed a C.R.C.P. 59 motion seeking to amend the

court’s findings and judgment, arguing, among other things, that

requiring him to pay both the Metz debt and wife’s attorney fees

was improper because the Metz debt was incurred by wife to pay

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her attorney fees. The court denied husband’s motion without

addressing this issue.

II. Double Recovery

¶6 Husband argues that the court improperly required him to pay

the Metz debt — which included some of wife’s attorney fees —

while also requiring him to pay wife’s attorney fees. We reverse the

court’s attorney fee award insofar as it requires husband to pay

wife’s attorney fees that are also included in the Metz debt.

A. Metz Debt

¶7 As a preliminary matter, the district court didn’t err in

assigning the Metz debt to husband as part of the marital property

division.

¶8 “Marital liabilities include all debts that are acquired and

incurred by a husband and wife during their marriage.” In re

Marriage of Jorgenson, 143 P.3d 1169, 1171-72 (Colo. App. 2006).

Debts incurred while the parties are separated — including debts to

pay attorney fees — are marital. In re Marriage of Burford, 26 P.3d

550, 559 (Colo. App. 2001). When such debts have already been

paid, they may be allocated in the property division through

reimbursement. Id.

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¶9 The district court has great latitude to equitably distribute

marital property based upon the facts and circumstances, and we

will not disturb its decision absent a clear abuse of discretion. In re

Marriage of Medeiros, 2023 COA 42M, ¶ 28. A court abuses its

discretion when its decision is manifestly arbitrary, unreasonable,

or unfair, or based on a misapplication of the law. Id.

¶ 10 Here, wife presented an itemized list of how she spent the

money Metz loaned to her. The list included entries related to the

payment of her legal fees. The total amount of the Metz debt

assigned to legal fees totaled over $61,000. These payments,

already made by wife at the time of the permanent orders hearing,

were a debt incurred while the parties were separated and thus

constitute marital debt.

B. Attorney Fees

¶ 11 Having assigned the Metz debt to husband, the court then

ordered husband to pay wife’s reasonable attorney fees totaling

$105,155 pursuant to section 14-10-119, C.R.S. 2025. Although

courts also have great latitude to craft attorney fee orders

appropriate to the circumstances of a case, In re Marriage of

Gutfreund, 148 P.3d 136, 141 (Colo. 2006), the court here abused

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its discretion. See In re Parental Responsibilities Concerning M.E.R-

L., 2020 COA 173, ¶ 33 (reviewing the court’s decision to award fees

under section 14-10-119 for an abuse of discretion).

¶ 12 An attorney fee award is primarily intended to apportion costs

and fees equitably. In re Marriage of Woolley, 25 P.3d 1284, 1288-

89 (Colo. App. 2001). Attorney fees awarded pursuant to section

14-10-119 shouldn’t be characterized as marital debt and

apportioned under section 14-10-113, C.R.S. 2025. See In re

Marriage of Rieger, 827 P.2d 625, 624 (Colo. App. 1992) (attorney

fees awarded pursuant to section 14-10-119 may not be considered

non-challengeable marital debt pursuant to 14-10-113).

¶ 13 As an initial matter, the court followed the proper sequence in

assigning marital debt first and then awarding attorney fees. See In

re Marriage of de Koning, 2016 CO 2, ¶¶ 21-23 (Colorado case law

“contemplate[s] a specific sequence in which the division of

property, maintenance, and attorney[] fees computations should

occur.”). It’s inequitable, however, for a court to double count a

debt when dividing marital property. See In re Marriage of Cardona,

2014 CO 3, ¶ 11 (Boatright, J., concurring in the judgment)

(concluding that it was inequitable for the district court to count

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twice the accrued leave of an employee spouse, first as a marital

asset subject to division, and second as income for purposes of

maintenance and child support). Here, though, the court’s “double

counting” didn’t occur just within the marital property division;

rather, the double-counting becomes apparent when we look at the

property division and attorney fee award together, as an overlapping

sum was counted once during the marital property division and

once during the attorney fee award.

¶ 14 Relying on wife’s attorney fees affidavit and its attached

exhibit, the court awarded the full amount she requested for

attorney fees. As noted before, the affidavit includes costs that wife

had already paid using loans from Metz. But the court had already

allocated this debt to husband. Because the record thus doesn’t

support awarding wife her full request for attorney fees given it’s

allocation of the Metz debt, the court abused its discretion. We

therefore reverse this portion of the judgment and remand for the

court to reconsider wife’s attorney fee award, taking into account its

allocation of the Metz debt (and the extent to which that debt

included attorney fees).

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III. Husband’s Income

¶ 15 Husband next argues that the court erred when determining

his income for the purposes of maintenance and child support.

First, he asserts that the court erred in finding that his income

should include money he inherited from his uncle’s estate. Second,

he contends that the court’s income determination rested on

inadequate findings. We disagree with both contentions.

A. Standards of Review

¶ 16 We review the court’s maintenance and child support award

for an abuse of discretion. In re Marriage of Balanson, 25 P.3d 28,

35 (Colo. 2001); In re Marriage of Tooker, 2019 COA 83, ¶¶ 21, 27.

And we review de novo the adequacy of the court’s findings. People

v. Shifrin, 2014 COA 14, ¶ 90 (concluding that “the adequacy of a

trial court’s findings . . . is tested by whether an appellate court can

discern the lower court’s rationale” and reviewing those findings de

novo).

B. Inheritance

¶ 17 “Income” for purposes of determining maintenance and child

support is defined at sections 14-10-114(8) and 14-10-115(5),

C.R.S. 2025, respectively, which contain a list of income sources

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that are included and excluded from such determinations. See

§§ 14-10-114(8)(c)(I)-(V), 14-10-115(5)(a)(I)(A)-(Z) (income sources).

The principal of a monetary inheritance is considered income if the

recipient uses such funds to meet existing living expenses or

increase their standard of living. See In re A.M.D., 78 P.3d 741,

743-46 (Colo. 2003) (relying on income definition from the child

support statute, which includes “monetary gifts” just as the

maintenance statute does).

¶ 18 Husband testified that, in addition to his claimed earnings, he

used the money he inherited from his uncle to cover monthly

“expenses.” Because husband testified that he used the inheritance

to meet the family’s existing living expenses, we perceive no abuse

of discretion in the court’s determination that the inheritance

amounts should be considered part of father’s gross income for the

purpose of maintenance and child support. See id. at 746 (when

spent for living expenses, inheritance is considered income).

C. Adequacy of Findings

¶ 19 In making its income determination, the court found that

husband’s income fluctuated. Relying on In re Marriage of Salby,

126 P.3d 291, 299 (Colo. App. 2005), the court took an average of

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husband’s income over time and found his monthly income to be

$20,000. The court explicitly relied on wife’s forensic accountant’s

expert testimony to arrive at this monthly income figure.

¶ 20 Wife’s forensic accountant testified that, considering

husband’s earnings and the distributions from his uncle’s estate,

his average monthly salary fluctuated between $19,408 to $25,658.

The court chose an amount within this range — $20,000. Because

we are able to discern the lower court’s rationale and it’s supported

by the record, we perceive no basis for reversal.

IV. Metz Attorney Fees and Credit Card Statements

¶ 21 Husband next contends that the court erred when it quashed

his subpoenas to depose Metz and obtain his financial information,

specifically statements from a credit card on which wife was a

cosigner. Husband also claims that the court erred in awarding

Metz his attorney fees incurred in connection with the subpoena

litigation.

A. Additional Facts

¶ 22 At wife’s deposition in 2023, she stated that she had been

added to two of Metz’s credit cards and that she had used them to

pay for the family’s expenses. Later, at a status conference related

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to husband’s request to depose Metz, the court limited husband’s

deposition of Metz “to promissory notes and any dependable income

or gifts to [wife]” (first discovery order).

¶ 23 Husband then subpoenaed Metz to produce “bank and credit

account statements January 2022 – August 2023 for accounts in

your name which [wife] is authorized to use or from which you

spent money on [wife] or the Loecher children for living expenses or

travel.” Metz moved to quash the subpoena because it was “unduly

burdensome” and required him to “produce nearly all of his

financials as though he were a party and subject to 16.2 disclosure

requirements.” Before the period for husband’s response had

elapsed, a magistrate granted Metz’s motion to quash this

subpoena. The magistrate’s order rested, in part, on husband’s

failure to comply with the court’s order limiting the scope of the

deposition.

¶ 24 Husband then served Metz with another subpoena. This one

requested that Metz produce “bank and credit card statements of all

gifts and financial contributions to [wife] since April 8, 2022,

including amounts covered by the three promissory notes between

Metz and [wife] and amounts charged on the two Metz credit card

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accounts to which [wife’s] name was added.” After a hearing, the

court granted Metz’s motion to quash the second subpoena, “noting

that [its first discovery] order cite[d] [a] very narrow” scope for

Metz’s deposition (second discovery order). The second discovery

order also granted Metz’s request for a protective order and

indicated that the court would consider Metz’s request for an award

of his attorney fees at permanent orders.

¶ 25 At permanent orders, the court found that husband’s

subpoenas sought information beyond the court’s limited scope for

“the purposes of harassment and delay.” The court also noted that,

regardless, husband didn’t use information from Metz’s deposition

at permanent orders. It then granted Metz’s request for an award of

attorney fees pursuant to section 13-17-102, C.R.S. 2025.

B. Notice of Appeal and Preservation

¶ 26 As an initial matter, Metz and wife argue that this issue wasn’t

properly preserved for appeal because his notice of appeal didn’t

indicate that he intended to appeal the discovery rulings and the

award of attorney fees to Metz. But including an issue in the notice

of appeal isn’t necessary to provide Metz notice of husband’s claims.

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¶ 27 C.A.R. 3(d), which provides that the notice of appeal should

include an “advisory listing of the issues to be raised on appeal,”

doesn’t require that an issue be included in the notice of appeal in

order to be raised on appeal so long as the issue is properly

preserved in the trial court. Cf. Vikman v. Int’l Bhd. of Elec.

Workers, 889 P.2d 646, 658-59 (Colo. 1995) (holding that a division

of this court erred in addressing certain issues because those

issues had not been presented either in the trial court or in the

appellant’s notice of appeal).

¶ 28 Husband preserved his claims before the trial court.

Husband’s claim that the court’s first discovery order didn’t prevent

him from seeking “a deposition to obtain/authenticate documents”

was preserved in a brief filed with the court prior to its second

discovery order. And husband’s claim that wife violated C.R.C.P.

16.2(e)’s mandatory disclosure requirements when she “refused to

produce evidence of marital debt,” including the requested credit

card statements, was preserved in a motion filed before the second

discovery order.

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¶ 29 Because husband’s arguments were preserved before the

district court, we reject wife’s and Metz’s arguments that we can’t or

shouldn’t address them.

C. Financial Information

1. Relevant Law and Standard of Review

¶ 30 C.R.C.P. 16.2 governs discovery and disclosures in a domestic

relations proceeding. In re Marriage of Gromicko, 2017 CO 1, ¶ 27.

The rule allows the district court to impose appropriate sanctions

against a party who fails to comply with any of its provisions.

C.R.C.P. 16.2(j); see also C.R.C.P. 16.2(e)(5) (sanctions may be

imposed against a party who does not timely provide mandatory

disclosures). The court has considerable discretion to determine

whether to impose sanctions for noncompliance with C.R.C.P. 16.2,

and we won’t disturb its decision absent an abuse of discretion.

M.E.R-L., ¶ 6.

2. Analysis

¶ 31 Here, the first and second discovery orders are brief and

general. The second discovery order doesn’t indicate whether the

court specifically considered husband’s arguments that the first

discovery order was too restrictive or that wife violated mandatory

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disclosure procedures by not producing the credit card statements.

Although hearings were held in advance of both orders, husband

didn’t designate the transcripts of these hearings for the record on

appeal. In the absence of transcripts, “we must assume that the

[district court’s] factual findings were supported by the evidence.”

In re Marriage of Rivera, 91 P.3d 464, 466 (Colo. App. 2004) (“[I]t is

the obligation of the party asserting error in a judgment to present a

record that discloses that error, because a judgment is presumed to

be correct until the contrary affirmatively appears.”). We therefore

presume that the evidence supports the court’s conclusion that the

narrowed scope of the deposition was proper and that husband’s

subpoenas of Metz impermissibly sought information beyond their

scope.

¶ 32 Similarly, the record on appeal is silent as to husband’s

argument regarding wife’s failure to disclose the credit card

statements pursuant to C.R.C.P. 16.2(e). Without a transcript, we

must assume that the court concluded, in its considerable

discretion, that wife’s actions did not justify husband issuing broad

discovery directed at Metz.

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D. Metz Attorney Fees

¶ 33 Husband argues that the court erred in ordering him to pay

Metz the $8,878 in attorney fees. We understand husband’s

argument that he shouldn’t have been ordered to pay this amount

to rest entirely on his contention that the subpoenas were quashed

in error and that the protection order unnecessary. Because we

perceive no basis in the record to conclude that the court erred with

regard to the subpoenas and protection order, we reject husband’s

invitation to reverse the court’s award of attorney fees to Metz.

V. Marital Property Determination

¶ 34 Husband makes two arguments related to the court’s

classification of his ownership interest in three real properties —

the Char-Rose Townhomes, Investment International, and the

Eighth Avenue Apartments — and a Roth IRA (collectively, the

properties). We aren’t persuaded by either argument.

A. Relevant Law and Standard of Review

¶ 35 All property acquired during the marriage is presumed

marital. In re Marriage of Caparelli, 2024 COA 103M, ¶ 10; § 14-10-

113(2)-(3). Property acquired before the marriage may be separate.

Wright, ¶ 8; see § 14-10-113(4). But even for separate property

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acquired before marriage, the appreciation of a party’s separate

property during the marriage is a divisible asset. See § 14-10-

113(4) (An asset acquired by a party before the marriage is

considered marital property “to the extent that its present value

exceeds its value at the time of the marriage.”). The spouse

claiming that property is premarital bears the burden of proving the

property’s separate character. See In re Marriage of Smith, 2024

COA 95, ¶ 41 (referring to property acquired during the marriage

that a party intends to keep separate).

¶ 36 The classification of property as marital or separate is a legal

determination based on the district court’s factual findings. In re

Marriage of Capparelli, 2024 COA 103M, ¶ 8. While we defer to the

court’s factual findings, we review its legal determinations de novo.

Id. The district court “has broad discretion to determine an

equitable division of the marital assets and debts.” Id. at ¶ 7. We

won’t disturb that division absent an abuse of discretion. LaFleur v.

Pyfer, 2021 CO 3, ¶ 61.

B. Alleged Lack of Findings

¶ 37 Husband first claims the court erred when it didn’t make

findings “about the dates of acquisition or origin of” husband’s

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ownership interest the properties. Husband points out that

“neither party presented historical values for [his] interests in the

[properties].” He further asserts that “[wife] never asked the [court]

to order date-of-marriage valuations.” Husband’s argument misses

the mark. As the party claiming that the properties were premarital

and therefore separate, husband had the burden of proving that the

properties retained their character as separate property. See Smith,

¶ 41. Husband also had the burden of providing the court with

information necessary for it to determine how much of a property

was separate, including the “dates of acquisition or origin.”

¶ 38 Husband, however, didn’t do so. Although husband argues on

appeal that it was “undisputed that [he] owned [the properties] prior

to the date of the marriage,” the court found that “there was no

amount and no testimony given regarding separate property

[versus] what was accrued during the marriage.” The record

supports the court’s findings.

• Husband testified at the permanent orders hearing that

he never provided a “date of marriage statement” for the

Roth IRA. Husband’s financial statements valued it at

$39,103 at the time of the hearing.

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• Husband testified that he used a 2021 appraisal of Char-

Rose to identify the amount corresponding to the

percentage of his ownership, and he admitted that he did

not provide a date of marriage valuation for that asset.

Husband’s sworn financial statements each list Char-

Rose as a business interest, but neither provides a value,

historic or otherwise.

• Husband listed Investments International on his second

sworn financial statement, but he provided no known

estimated value from either before or after the marriage.

• The court admitted a letter from husband in which he

admitted to owning a “small percentage” of interest in the

Eighth Avenue Apartments, but husband otherwise

provided no evidence of its past or present value.

¶ 39 True, more than three months after the hearing, husband filed

a copy of his 2009 income tax returns, which showed that husband

had a premarital ownership interests in the properties. But

husband makes no argument regarding how these assets retained

their separate character throughout the marriage. See Capparelli,

¶ 10 (“The spouse claiming that property existing at dissolution is

18
separate because it was owned prior to the marriage has the burden

of proof to trace the property back to the original premarital

asset.”). Nor do the tax returns provide premarital valuations of

these assets.

¶ 40 We acknowledge that husband also argues that the court

incorrectly designated his parents’ bank accounts as marital

property. However, he didn’t sufficiently develop this argument, so

we don’t address it. See Antolovich v. Brown Grp. Retail, Inc., 183

P.3d 582, 604 (Colo. App. 2007).

¶ 41 Finally, husband correctly points out that a valuation and

allocation for his ownership interest in the Eighth Avenue

Apartments isn’t listed in the written permanent orders. However,

the court assigned this marital property a value and allocated it to

husband in the oral ruling, which the court explicitly incorporated

into its written order. Because the record supports the court’s

determinations, we perceive no abuse of discretion.

C. Marital Property

¶ 42 Husband next contends that the failure “to calculate the

increase in value of separate assets during a marriage does not

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authorize [the court] to re-classify the assets as marital.” We

perceive no abuse of discretion.

¶ 43 Wife argues this issue wasn’t properly preserved for appeal.

She claims that husband improperly relies on his own C.R.C.P. 59

motion as his basis for preservation and, generally speaking,

arguments raised for the first time in a post-trial motion aren’t

preserved for appellate review. In re Marriage of McClure, 2024 COA

70, ¶ 7. Wife also argues that identification of an argument in a

trial management certificate, without more, is insufficient to

preserve the issue for appellate review. In re Marriage of Corak,

2014 COA 147, ¶ 23.

¶ 44 Husband claims that his own Bates Stamp log is evidence of

his submission of a 2009 income tax return. However, husband

doesn’t argue that this document contains information regarding

the premarital value of the properties. In any event, because the

documents it lists — including, for example, a 2021 appraisal of

Char-Rose — aren’t in the record, we can’t ascertain any premarital

value.

¶ 45 And even if we were to assume the argument was preserved,

husband still doesn’t prevail. He points to no authority, and we are

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aware of none, requiring the court to calculate an increase in the

value of allegedly separate property when the party shouldering the

burden of establishing such value presents no evidence of the

property’s value at the time of marriage. The court, therefore, didn’t

abuse its discretion in determining that the properties’ entire value

was marital.

VI. Disposition

¶ 46 The court’s permanent orders are reversed as to wife’s attorney

fees as stated in Part II.B. They are otherwise affirmed, and the

case is remanded for further proceedings consistent with this

opinion.

JUDGE GOMEZ and JUDGE SULLIVAN concur.

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