Marriage of Wardell

25CA0458 Marriage of Wardell 03-26-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 25CA0458
Douglas County District Court No. 23DR591
Honorable Andrew Baum, Judge

In re the Marriage of

Jaclyn Schell Wardell,

Appellant,

and

Bryce Nielsen Wardell,

Appellee.

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

Division VII
Opinion by JUDGE JOHNSON
Pawar and Gomez, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced March 26, 2026

Schaffner Law LLC, Joseph Maher, Greenwood Village, Colorado, for Appellant

Kumpf Charsley & Hansen, LLC, Robert E. Wells, Englewood, Colorado, for
Appellee
¶1 In this dissolution of marriage case between Jaclyn Schell

Wardell (wife) and Bryce Nielsen Wardell (husband), wife appeals

the portion of the district court’s permanent orders relating to the

division of property and the court’s denial of her requests for

maintenance and child support. We conclude that the district court

did not err in its division of property, but we reverse the court’s

ruling with respect to its denial of maintenance and child support.

Therefore, we affirm in part, reverse in part, and remand the case to

the district court to conduct further proceedings consistent with

this opinion.

I. Background

¶2 Husband and wife divorced in 2024 after a nearly thirteen-

year marriage. During the marriage, the parties had three minor

children. The parties agreed to share equal parenting time and

decision-making responsibility for the children.

¶3 After a contested hearing, the district court entered written

permanent orders concerning, as relevant here, the division of the

parties’ marital property, spousal maintenance, and child support.

The court did not award wife maintenance or child support. Wife

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subsequently filed a motion for post-trial relief under C.R.C.P. 59,

which the court denied.

¶4 Wife now appeals, contending that the district court erred by

(1) failing to divide all the marital property; (2) ordering a sale of the

marital home but not accounting for the costs of a sale in dividing

the marital property; (3) denying her maintenance; and (4) awarding

her no child support by deviating downward from the statutory

guidelines.

II. Division of Marital Property

¶5 Wife claims the district court reversibly erred in its division of

the marital property by (1) failing to value and equitably divide all

the marital property as required under section 14-10-113, C.R.S.

2025; and (2) ordering the sale of the marital home without

accounting for the costs of a sale. We disagree with the first

contention and conclude the second was harmless error.

A. Additional Facts

¶6 Husband and wife held a number of assets and debts at the

time of their divorce, which neither disputed were marital property.

The district court divided the assets and debts, reflected in its

property division spreadsheet. As relevant here, the parties had a

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marital home, and husband started a business during the marriage,

Omnis Pest Control Inc., which also included Wardell Holdings and

Omnis Montana. Husband requested that the court order the sale

of the business or award wife a portion of the holding company. He

opposed a lump sum award or monthly payments from the

operating account.

¶7 The court, adopting husband’s expert’s opinion, valued the

business at $1,621,279. It also estimated the net equity of the

marital home to be $366,274.

¶8 The court awarded the business interests — including the

associated assets and debts — to husband, and it ordered the

marital home sold with the net proceeds awarded to wife. To

effectuate an equitable division of the assets, the court ordered

husband to pay wife $5,000 a month in “equalization payments” for

125.5 months as “the only practical way to allocate to [w]ife her

share of [the business interests].” The court’s division of property of

these and other assets resulted in husband receiving about $14,000

more than wife in the division of property. The court’s allocation of

property is as follows:

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Marital Value Husband Wife

Real Estate $366,274 $366,274

Business $1,621,279 $993,779 $627,500

Vehicles $56,093 $15,219.50 $40,873.50

Bank Accounts $26,544 $10,245 $16,299

Investments $9,874 $9,874

Retirement $39,927 $31,651 $8,276
Accounts
Personal $9,500 $6,500 $3,000
Property
Debts ($11,903) ($1,396) ($10,507)

TOTAL $2,117,588 $1,065,872.50 $1,051,715.50

¶9 Wife claims, and husband agrees, that the district court failed

to account for two categories of additional marital property:

(1) uncashed checks in husband’s possession in the total amount of

$10,872.84; and (2) an additional 401(k) account under husband’s

name in the amount of $18,323.44 — together totaling $29,196.28.

The total value of the marital property, not including these

unaccounted-for assets, was $2,117,588.

B. Standard of Review and Applicable Law

¶ 10 A district court has “discretion to determine an equitable

division of the marital assets and debts,” and we will not disturb its

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decision “absent a showing that the court abused that discretion.”

In re Marriage of Capparelli, 2024 COA 103M, ¶ 7. A court abuses

its discretion when “it acts in a manifestly arbitrary, unfair, or

unreasonable manner, or when it misapplies the law.” In re

Marriage of Herold, 2021 COA 16, ¶ 5. We defer to a court’s factual

findings “when supported by the record.” Capparelli, ¶ 8. The “key

to an equitable distribution is fairness, not mathematical

precision.” In re Marriage of Hunt, 909 P.2d 525, 537-38 (Colo.

1995).

C. Analysis

¶ 11 Wife contends that the district court reversibly erred because

in its division of the marital property it (1) failed to account for the

two assets identified above, resulting in a windfall for husband;

(2) failed to account for other assets belonging to the businesses; (3)

allowed husband to produce late the value of Omnis Montana,

which prevented wife from disputing his valuation; and (4) ordered

a sale of the marital home, which wife would receive the net equity

from, without factoring in the costs of a sale. She claims that these

errors led to an inequitable division of the marital property. We

disagree.

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¶ 12 First, although the district court did not account for

husband’s uncashed checks and his additional 401(k) account, this

error was harmless, as it involved a de minimis amount.

¶ 13 If a district court’s error in dividing the marital property

“affects only a small percentage of the overall marital estate, such

an error may be deemed to have been harmless and thus does not

require reversal.” In re Marriage of Balanson, 25 P.3d 28, 36 (Colo.

2001). If the court’s errors, when viewed in the aggregate, affect a

large percentage of the marital estate, remand is required. Id.

¶ 14 As mentioned, the total value of the marital estate, excluding

the uncashed checks and additional 401(k) account, was over $2.1

million. The combined value of unaccounted-for assets, the checks

and the additional 401(k) account, was $29,196.28. Taken as a

percentage of the overall marital property, only 1.36% of the total

estate was unaccounted for. Thus, the court’s error in failing to

consider the uncashed checks and the 401(k) account was

harmless. See id. at 38 (suggesting that an error affecting less than

two percent of the overall marital estate would be harmless).

¶ 15 Second, wife claims that Omnis Montana, trucks owned by

Omnis Montana, and the bank account for Wardell Holdings were

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excluded from the valuation of the marital property, which led to an

undervaluation of the businesses and a windfall to husband. But

this claim is not supported by the record — the district court

allocated “Omnis, including Omnis Montana, Wardell Holdings, and

all assets held by these three companies,” to husband. (Emphasis

added.) The court acknowledged that wife argued that the value of

the businesses had increased because of the trucks purchased and

additions to Omni’s checking account after the appraisal. And it

noted that six trucks were “all used solely by Omnis,” so the court

found them “included in . . . the value of Omnis and reallocated to

husband as part of Omnis. The [c]ourt will exclude their values

from its [marital balance sheet].” Thus, the value of Omnis

Montana, the Wardell Holdings bank account, and the alleged

additional trucks were contemplated by the court in its valuation of

the businesses. The total net value of the businesses, the district

court found, was $1,621,279. This finding is supported by the

record, so we defer to it. See Capparelli, ¶ 8.

¶ 16 Related to the business, wife also argues that husband’s

untimely disclosure of his interests in Omnis Montana deprived her

of an opportunity to value the asset or to have it included in the

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property division valuation. But wife proceeded to final orders

despite husband’s late disclosure of that entity. She has not

directed us to, nor can we find, any place in the record where she

raised this objection below, allowing the court an opportunity to

rule on it. Thus, because she is raising it for the first time on

appeal, we do not address it. See Marcellot v. Exempla, Inc., 2012

COA 200, ¶ 11 (we generally will not address for the first time on

appeal issues not raised in or decided by the district court).

¶ 17 Finally, husband claims wife failed to preserve her argument

that the district court should have considered the costs of a sale of

the marital home when assigning the value of the net equity wife

would receive. Wife points to the parties’ joint trial management

certificate, where she requested that the residence be sold, that she

receive the first $300,000 of a sale, and that any remaining

proceeds or deficits be shared equally between the parties. And she

also points to her closing argument at the hearing, where she noted

that the residence was not tied to Omnis and could be sold with

wife receiving “the sales proceeds to secure necessary funds to

accomplish an equitable division of property,” and that “[c]osts of

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sale, including potential capital gains taxes[,] are applicable only if

the asset is actually being sold.”1

¶ 18 We conclude that these references are sufficient to preserve a

claim that the district court erred by not factoring in the costs of a

sale of the marital home. But we nonetheless conclude that any

error was harmless. Wife estimated the net equity of the home after

closing costs would be $300,000, meaning that $66,274 should

have been discounted by the district court. Adding this to the error

with the uncashed checks and retirement account totals about

4.3% of the overall marital estate. We acknowledge that this is a

higher percentage than 1.36, and it becomes a much closer case of

whether this is harmless error. But we cannot say that the error

rises to the level that other divisions of this court have found to be

not harmless. See, e.g., Balanson, 25 P.3d at 36 (concluding that

the district court’s combined errors in the division of property were

not harmless when they affected over twenty percent of the overall

marital estate); In re Marriage of Zappanti, 80 P.3d 889, 893 (Colo.

1 Of note, wife’s reference to costs of sale was only to rebut

husband’s claim that he was entitled to a deduction in the value of
Omnis due to capital gains taxes.

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App. 2003) (holding that an error in failing to set aside $400,000 of

$600,000 pension as separate property was not harmless).

¶ 19 Because the district court’s division of the marital property

was equitable, we affirm that portion of the permanent orders.

III. Spousal Maintenance

¶ 20 Wife argues the district court erred by denying her

maintenance under section 14-10-114, C.R.S. 2025. We agree.

A. Additional Facts

¶ 21 The district court determined that husband’s gross income

was $16,350 per month, which included $8,667 as a salary from

the business and $7,683 of shareholder income, which husband

testified he typically reinvested in the business. The court

determined that wife’s gross monthly income from being a dental

assistant on a full-time basis was $3,987. Before considering the

monthly equalization payments, the district court found wife’s

monthly shortfall was $3,182. The court then noted that, as a

result of the division of the marital property, wife would receive a

car worth $33,000; the net equity from the sale of the marital

home — over $360,000 — and over $600,000 in value from Omnis

(paid out in $5,000 monthly equalization payments for 125.5

10
months). As a result, the court determined that the “additional

$5,000 installment allows [w]ife to meet this shortfall and realize a

monthly excess of $1,818.”

¶ 22 The court found that the monthly equalization payments

“provide[] a means to support [wife] financially until she returns to

college as planned and is able to earn significantly more income.” It

further found that wife could choose to use the monthly

equalization payments to pay for expenses, invest, or save for the

future and could use the net equity from the sale of the marital

home to reduce her monthly mortgage payment. Husband, the

court found, still had his salary to live on, while the $5,000

installment would come from his additional shareholder income

from the business interests. The court also found that, while

husband received “over $16,000 of [gross monthly income], half of

this is shareholder income which he will have to use to pay the

installment payment and reinvest to continue to grow Omnis.” The

court concluded, “Practically speaking, this leaves him with his

gross monthly salary of $8,667.” After consideration of its findings,

the district court declined to award wife spousal maintenance.

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B. Standard of Review and Applicable Law

¶ 23 We review a maintenance order for an abuse of discretion. In

re Marriage of Tooker, 2019 COA 83, ¶ 12. We defer to the district

court’s factual findings about maintenance “unless they are clearly

erroneous.” Capparelli, ¶ 30.

¶ 24 When considering whether to award maintenance, a district

court must consider thirteen enumerated factors in addition to

“[a]ny other factor that the court deems relevant.” § 14-10-

114(3)(c)(I–XIII). As relevant here, those factors include: (1) the

financial resources of the recipient spouse, including the actual or

potential income from separate or marital property or any other

source and the ability of the recipient spouse to meet her needs

independently; (2) the financial resources of the payor spouse,

including the actual or potential income from separate or marital

property or any other source and the ability of the payor spouse to

meet his reasonable needs while paying maintenance; (3) the

lifestyle during the marriage; (4) the distribution of marital property,

including whether additional marital property may be awarded to

reduce or alleviate the need for maintenance; (5) both parties’

income; and (6) the duration of the marriage. Id.

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¶ 25 After considering the statutory factors, a court “shall award

maintenance only if it finds that the spouse seeking maintenance

lacks sufficient property, including marital property apportioned to

. . . her, to provide for . . . her reasonable needs and is unable to

support . . . herself through appropriate employment.” § 14-10-

114(3)(d). The district court has discretion to determine the award

of maintenance that is “fair and equitable to both parties based

upon the totality of the circumstances.” § 14-10-114(3)(e).

C. Analysis

¶ 26 Wife contends that by denying her maintenance, the district

effectively required her to deplete her monthly $5,000 equalization

payments from the division of property to meet her and the

children’s expenses. We agree.

¶ 27 A dependent spouse is not required to deplete her share of the

marital property in order to qualify for maintenance, so receipt of

marital property in the form of payments “cannot be viewed as a

substitute for maintenance.” In re Marriage of Bartolo, 971 P.2d

699, 702 (Colo. App. 1998); accord In re Marriage of Nordahl, 834

P.2d 838, 842 (Colo. App. 1992).

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¶ 28 Wife requested $3,698 monthly in maintenance. The district

court looked at husband’s monthly income of $16,350, of which

husband had to pay wife $5,000 every month for her portion of the

business, as well as reinvesting in the business, reducing his gross

monthly income to around $8,667, “from which it would be difficult

to pay an additional $3,698 in maintenance as [w]ife requests.” But

the $5,000 monthly payments to wife were not to be substituted for

living expenses; rather, those were equalization payments to ensure

she received her share of the business, which no one disputes is

marital property. Indeed, husband wanted to retain possession of

the marital home so that the children had stability. The court could

not square that request with husband also retaining the business,

and, therefore, the court ordered the sale of the home and monthly

payments to wife for her share of the business — which had to be

her share of the division of marital property, not income, in order

for the division of property to be equitable.

¶ 29 Wife relies on Bartolo, 971 P.2d at 702; Nordahl, 834 P.2d at

842; and In re Marriage of Eller, 552 P.2d 30, 31 (Colo. App. 1976)

for the well-settled proposition that she cannot be required to

deplete her share of the marital property for living expenses in lieu

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of maintenance. We agree that while the monthly installments

might provide wife with a liquid asset, this does not mean that she

must deplete her division of the marital property for living expenses.

¶ 30 The court’s reasoning demonstrates that, even though it said

the $5,000 was not income, it treated it as such. The court noted

that, according to its maintenance worksheet calculations, wife

should receive $4,918 a month. It then stated that wife could use

the $5,000 equalization payment to “pay part of her personal

expenses [or] pay for a mortgage on a home,” or she could “invest it

and earn returns, save it for the short term, or save it for

retirement.” In other words, husband’s income of $8,667 was about

equal to wife’s income of $3,987 once the $5,000 payment was

included.

¶ 31 But as was true in Eller, the property awarded to wife “was not

so substantial as to provide significant income for her to live on.”

552 P.2d at 31. Indeed, the court’s own findings support that it

considered the $5,000 monthly equalization payments as part of

wife’s income by acknowledging that these payments provide “a

means [for wife] to support herself” in lieu of maintenance. In

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contrast, it does not appear that husband would have needed to

deplete his marital property to meet his expenses.

¶ 32 Notwithstanding this case law — and the fact that the district

court’s denial of maintenance requires wife to deplete or at least use

her division of marital property — husband contends the cases

relied on by wife are inapplicable. Specifically, he claims that the

court did not require her to deplete her division of marital property

because it made findings that she had adequate funds to live on

with her monthly equalization payments and receipt of over one

million dollars’ worth of assets in marital property. But this misses

the point. Without the equalization payment of $627,500 — broken

into monthly payments of $5,000 — for wife’s share of the business,

wife would not have received an equitable division of property;

therefore, the court’s ruling necessarily requires her to deplete her

marital property to support herself.

¶ 33 Husband also contends that the district court took into

consideration that he has historically reinvested profits to capitalize

the business, and if he is required to pay maintenance, less capital

will go into the business, putting at risk growth and current

liabilities and obligations. But we view this argument to be part of

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the valuation of the business asset itself, and husband has not

pointed to any evidence in which he specifically delineates how less

capital might adversely affect the business. Even so, such evidence

might be relevant to determine an appropriate amount of

maintenance to award to wife — not whether she is entitled to it.

¶ 34 In sum, the district court incorrectly treated the monthly

equalization payments to wife as income or a portion of her monthly

income, rather than as marital property, and required her to deplete

this property to meet her and the children’s expenses in lieu of

maintenance. Because the court abused its discretion, we reverse

this portion of the permanent orders and remand for the court to

reconsider wife’s request for maintenance.

¶ 35 As part of this reconsideration, and because on remand the

court must take into account the parties’ present circumstances,

the court may consider the net equity that wife actually received in

the home, given her request that the court factor closing costs into

its division of property. Even though we found this error to be

harmless in the context of the division of property, with respect to

maintenance, the court may consider the position wife has been left

in following the sale of the home.

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¶ 36 The court may also consider the payments wife receives from

Aveanna — the entity that both parties receive money from to

support the care of one of their children with a disability — as part

of her income for purposes of maintenance because the

maintenance statute only precludes consideration of income from

additional jobs of the obligor, not the obligee. See § 14-10-

114(8)(c)(I) (for purposes of maintenance, gross income does not

include “[i]ncome from additional jobs that result in the

employment of the obligor more than forty hours per week or more

than what would otherwise be considered to be full-time

employment” (emphasis added)).

IV. Child Support

¶ 37 Wife contends the district court erred by deviating downward

from the statutory child support amount to the point of denying her

child support. Because we have already concluded that the district

court erred by denying wife spousal maintenance, on remand the

court should reconsider — in light of the maintenance amount —

whether an application of the guideline child support amount

remains inequitable, unjust, or inappropriate.

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A. Standard of Review and Applicable Law

¶ 38 We review child support orders for an abuse of discretion. In

re Marriage of Garrett, 2018 COA 154, ¶ 8.

¶ 39 Colorado’s child support guidelines include a “[s]chedule of

basic child support obligations” with explicit award schedules for

families with one to six children and a combined monthly income of

up to $30,000. In re Marriage of Boettcher, 2019 CO 81, ¶ 13

(quoting § 14-10-115(7)(b), C.R.S. 2025). There is a rebuttable

presumption that a child support award should correspond to the

amount outlined in the guidelines. See § 14-10-115(8)(e); Boettcher,

¶ 14. A court may deviate from the schedule it if determines that

the presumptive amount would be “inequitable, unjust, or

inappropriate.” § 14-10-115(8)(e).

¶ 40 Reasons to deviate from the guideline child support amount

include, but are not limited to: (1) instances where one of the

parents spends substantially more time with the children than is

reflected by a straight calculation of overnights; (2) the

extraordinary medical expenses incurred for treatment of either

parent or a current spouse; (3) extraordinary costs associated with

parenting time; (4) the gross disparity in income between the

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parents; (5) the ownership by a parent of a substantial nonincome

producing asset; (6) consistent overtime not considered gross

income under the statute; or (7) income from employment that is in

addition to a full-time job or that results in the employment of the

obligor more than forty hours per week or more than what would

otherwise be considered to be full-time employment. Id. The

existence of one of the enumerated factors “does not require the

court to deviate from the guidelines” but may be a factor in the

decision to deviate. Id. And the district court “may deviate from the

guidelines” even if one of the enumerated factors does not exist. Id.

¶ 41 Factors a district court is to consider when determining the

appropriate amount of child support to award include, but are not

limited to: (1) the financial resources of the children; (2) the

financial resources of the custodial parent; (3) the standard of living

the children would have enjoyed had the marriage not been

dissolved; (4) the physical and emotional conditions of the children

and their educational needs; and (5) the financial resources and

needs of the noncustodial parent. § 14-10-115(2)(b)(I)-(V).

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B. Analysis

¶ 42 As previously noted, the parties stipulated to equal parenting

time. The district court found that based on the parties’ incomes as

discussed above, awarding the guideline amount of $1,485 per

month in child support to wife was inequitable, unjust, or

inappropriate. It therefore deviated downward, ordering no child

support.

¶ 43 Because a change in spousal maintenance may affect the

district court’s consideration of child support, we decline to address

this issue on the merits. Cf. People in Interest of M.H-K, 2018 COA

178, ¶ 83 (declining to address an issue because, even if the issue

was presented on remand, the circumstances “[would] have

evolved”). Indeed, as the district court noted, had it awarded wife

maintenance, the guideline amount of child support of $50 would

be owed to wife from husband, which the court found to be de

minimis. But the court may not consider the income either of the

parties receive from Aveanna related to caring for their child with a

disability. See § 14-10-115(5)(a)(II)(c) (for purposes of child support,

gross income does not include “[i]ncome from additional jobs that

result in the employment of more than forty hours per week or more

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than what would otherwise be considered to be full-time

employment”). Thus, after reconsidering wife’s request for

maintenance, the court should also reconsider its child support

ruling.

V. Attorney Fees and Costs

¶ 44 Husband requests appellate attorney fees and costs under

section 13-17-102, C.R.S. 2025. Because we have deemed wife’s

appeal to be meritorious, we deny his request. See Rademacher v.

Becker, 2015 COA 133, ¶ 30 (denying the appellee’s request for

attorney fees as a sanction for filing a frivolous appeal because the

appellant prevailed on appeal).

VI. Conclusion

¶ 45 We affirm the portion of the permanent orders concerning the

court’s division of property but reverse the court’s denial of spousal

maintenance and child support. We remand this case to the

district court to conduct further proceedings consistent with this

opinion.

JUDGE PAWAR and JUDGE GOMEZ concur.

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