In re Marriage of Luttkus

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.

SUMMARY
April 2, 2026

2026COA23

No. 23CA2048, In re Marriage of Luttkus — Family Law —
Dissolution — Permanent Orders — Spousal Maintenance —
Child Support: Health and Welfare — Services for Persons with
Intellectual and Developmental Disabilities — Home and
Community-Based Servies Waiver for Persons with
Developmental Disabilities

In this dissolution of marriage case, the trial court entered

permanent orders that divided the marital estate, awarded

maintenance to wife, and ordered child support to wife concerning

the parties’ adult disabled daughter. In determining maintenance

and child support, the court included in wife’s income money paid

to her through the Home and Community-Based Services Waiver for

Persons with Developmental Disabilities (HCBS-DD waiver)

program — a program related to providing care for the parties’

disabled daughter.
On appeal, as an issue of first impression, a division of the

court of appeals concludes that the court erred by including the

HCBS-DD waiver payments in wife’s income. Based on this

conclusion, the division reverses the portion of the trial court’s

permanent orders concerning maintenance and child support and

remands the case to the trial court for further proceedings.
COLORADO COURT OF APPEALS 2026COA23

Court of Appeals No. 23CA2048
Douglas County District Court No. 22DR30689
Honorable Donna Stewart, Judge

In re the Marriage of

Vicki Krieger,

Appellant,

and

Jeffrey Luttkus,

Appellee.

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

Division VI
Opinion by JUDGE WELLING
Kuhn and Schutz, JJ., concur

Announced April 2, 2026

Paige Mackey Murray, LLC, Paige Mackey Murray, Boulder, Colorado, for
Appellant

Wright Family Law, Jamie L. Wright, Centennial, Colorado, for Appellee
¶1 The district court magistrate, whom we will refer to as the trial

court, dissolved the marriage of Vicki Krieger (wife) and Jeffrey

Luttkus (husband). The trial court entered permanent orders that

divided the marital estate, awarded maintenance to wife, and

ordered child support to wife concerning the parties’ adult disabled

daughter. In determining maintenance and child support, the court

included in wife’s income money paid to her through the Home and

Community-Based Services Waiver for Persons with Developmental

Disabilities (HCBS-DD waiver) program — a program related to

providing care for the parties’ disabled daughter.

¶2 On appeal, wife contends that the court erred by (1) using the

wrong method for allocating husband’s defined benefit pension

plan; (2) including in its determination of her income the money she

received from the HCBS-DD waiver; and (3) ordering a term of

maintenance that automatically terminated when husband retired

from his present employment. We affirm the court’s property

division. But as an issue of first impression, we conclude that the

court erred by including the HCBS-DD waiver payments in wife’s

income. We therefore reverse the portion of the trial court’s

permanent orders concerning maintenance and child support. As a

1
result, we need not address wife’s dispute regarding the

maintenance term. The case is remanded to the trial court for

further proceedings.

I. Background

¶3 The parties were married in 1992 and have three daughters.

The oldest and youngest daughters have disabilities and, from a

young age, have required significant daily assistance, which wife

has primarily provided.1 Wife, who was fifty-seven years old at the

time of the permanent orders hearing, hasn’t been employed

outside the home since 1999.

¶4 L.L., the youngest daughter, was diagnosed with an auditory

processing disorder, generalized anxiety disorder, bipolar disorder,

and an autism spectrum disorder. When she was younger, L.L.

would have violent outbursts that were at times so severe wife was

forced to call the police or take L.L. to a hospital.

¶5 At the time of the permanent orders hearing, L.L. was

eighteen, lived primarily with wife, and spent one night a week with

1 At the time of the permanent orders hearing, the oldest daughter

did not live with the parties, and neither party raises an issue on
appeal relevant to their oldest daughter.

2
husband. Wife reported that L.L. no longer experienced violent

episodes, but she still had frequent panic attacks and verbal

outbursts, which could occur unexpectedly. Wife explained that

L.L. required daily care and that wife was responsible for L.L.’s care.

Wife further described being responsible for transporting L.L. to and

from a weekly equine therapy session; facilitating in-home

behavioral therapy sessions for L.L. two or three times a week; and

keeping daily logs of L.L.’s activities, medications, sleep habits,

behavioral outbursts, and health concerns.

¶6 In 2015, wife enrolled L.L. in the Children’s Extensive Support

Waiver — a joint state and federal Medicaid program providing

home- and community-based benefits and services for L.L. based on

her disability. After L.L. turned eighteen, she transitioned from the

Children’s Extensive Support Waiver to the HCBS-DD waiver, which

allowed her to continue to receive benefits and services and remain

at home under her family’s care. From the HCBS-DD waiver, wife

received approximately $5,000 per month. These payments were

referred to as “difficulty of care payments” and were distributed to

wife through a private company. The parties agree that L.L. is

3
disabled for the purposes of child support and will need support

beyond the age of eighteen. See § 14-10-115(13)(a)(II), C.R.S. 2025.

¶7 Throughout the marriage, husband, who was sixty-six years

old at the time of the permanent orders, worked at Lockheed

Martin. His salary was significant and had increased steadily over

the years. From his employment, he received a defined benefit

pension plan and had generated a 401(k) worth nearly $2 million.

Husband testified that he wanted to retire when his oldest daughter

turned twenty-six, which was two years after the permanent orders

hearing.2

¶8 With respect to maintenance and child support, wife argued

that the court shouldn’t include the difficulty of care payments in

her income. She asserted that these benefits from a means-tested

public assistance program were not income and further explained

that the IRS didn’t tax difficulty of care payments for live-in

caretakers such as herself. However, husband argued that wife was

“employed” as L.L.’s caretaker and that the difficulty of care

2 Husband began working for Lockheed Martin in September 1980,

the parties were married in August 1992, and their marriage was
dissolved in October 2023.

4
payments were “paychecks” from the waiver program to compensate

her as L.L.’s caregiver. He further argued that the “benefit” of the

waiver program was the care that L.L. received (not the funds paid

to wife), and that the difficulty of care payments would be paid to

any caregiver for L.L. — whether the caregiver was a member of

L.L.’s family or not. Given that, he contended that the difficulty of

care payments should be included in wife’s income for purposes of

maintenance and child support.

¶9 After the October 2023 hearing, the trial court issued

permanent orders and dissolved the marriage. The court divided

the marital estate relatively equally. With respect to husband’s

pension, the court denied wife’s request to use the net present value

method to immediately distribute the value of the pension. The

court instead used the deferred distribution method, ordering that,

upon husband’s retirement, the benefit will be proportionally

allocated by applying the time rule formula.

¶ 10 With respect to the maintenance and child support, the trial

court found that the difficulty of care payments were income to wife,

ruling as follows:

5
[Wife] receives a difficulty of care payment in
the amount of $5,000 per month for caring for
[L.L.] [Wife] argues that because it is not
taxable, it should not be included as income.
The [c]ourt is not persuaded. [Section] 14-10-
115(5)(a)(II) sets forth funds that are excluded
as income for the purposes of child support
calculations. Difficulty of care payments paid
out by a private entity are not listed as an
exclusion. As such, the [c]ourt finds that
[wife]’s monthly income is $5,000 per month.

¶ 11 The court then found that husband’s gross monthly income

was $19,069. It ordered husband to pay wife $3,702.40 per month

in spousal maintenance, and it directed that this obligation “shall

terminate upon [h]usband’s retirement from his current position

with Lockheed Martin.” The court explained that husband was

“nearing retirement,” and upon his retirement, “both parties will be

receiving a portion of his pension.”

¶ 12 Wife appeals the court’s permanent orders.3

3 A district court magistrate entered the permanent orders with the

parties’ consent. So, pursuant to the rules applicable at the time,
direct appeal to this court was the required path for seeking
appellate review. See C.R.M. 7(b) (2025). After the magistrate
entered judgment in this case, the Colorado Rules for Magistrates
were amended and those amendments apply to orders or judgments
issued by magistrates on or after January 2, 2026. See C.R.M. 7(d),
(g) (2026).

6
II. Issues on Appeal

¶ 13 Wife advances three interrelated issues on appeal. First, she

contends that the trial court erred by using the deferred

distribution method to allocate husband’s pension. Second, she

argues that the court incorrectly included in her income the

difficulty of care payments for purposes of determining maintenance

and child support. Third, she contends that the court erred when it

ordered husband’s maintenance obligation to terminate when he

retired. We disagree with wife’s first argument regarding the

pension but agree with her second concerning the inclusion of the

difficulty of care payments in her income. Given our conclusion,

the portion of the permanent orders concerning maintenance and

child support must be reversed and reconsidered by the trial court.

As a result, we decline to review her last argument, which is

unlikely to arise in the same posture on remand.

A. Husband’s Pension

¶ 14 Wife argues that the trial court erred by using the deferred

distribution method to allocate the marital portion of husband’s

defined benefit pension plan. She contends that the court should

have instead used the net present value method and immediately

7
allocated the value of the pension in its division of the marital

estate to better protect her future financial interests. We aren’t

persuaded that the court abused its discretion.

1. Standard of Review

¶ 15 The trial court has great latitude in making an equitable

division of the marital property based on the facts and

circumstances of the case. In re Marriage of Smith, 2024 COA 95,

¶ 64. To achieve an equitable division, the court must consider all

relevant factors, including each party’s contribution, financially and

as a homemaker, to the acquisition of marital property; the value of

property set apart to each party; each party’s economic

circumstances; and any change to the value of each party’s

separate property during the marriage. § 14-10-113(1)(a)-(d), C.R.S.

2025; Smith, ¶ 64.

¶ 16 We won’t disturb the court’s allocation of marital property

without a showing that the court abused its discretion. Smith,

¶ 65. A court abuses its discretion when its decision is manifestly

arbitrary, unreasonable, or unfair, or based on a misapplication of

the law. Id.

8
2. Allocation

¶ 17 When dividing the marital estate, there are three methods that

a court may use to allocate a party’s pension: (1) net present value;

(2) deferred distribution; and (3) reserve jurisdiction. In re Marriage

of Kelm, 912 P.2d 545, 547 (Colo. 1996); In re Marriage of Hunt, 909

P.2d 525, 530-31 (Colo. 1995).

¶ 18 Under the net present value method, the court distributes the

present marital value of the pension at the time of dissolution.

Kelm, 912 P.2d at 547; Hunt, 909 P.2d at 531. To do so, the court

offsets the pension’s value with the value of other marital property.

Kelm, 912 P.2d at 547; Hunt, 909 P.2d at 531.

¶ 19 Under the deferred distribution and reserve jurisdiction

methods, the court delays distribution of the pension until the

pension benefits are distributed. Kelm, 912 P.2d at 547; Hunt, 909

P.2d at 531. With the deferred distribution method, the court

applies the “time rule” formula to predetermine the percentage of

the pension benefits the parties will receive from the allocation of

9
the marital asset.4 Kelm, 912 P.2d at 547; Hunt, 909 P.2d at 531.

With the reserve jurisdiction method, the trial court waits and

determines an equitable allocation of the pension when the benefits

begin to be paid. Kelm, 912 P.2d at 547-48; Hunt, 909 P.2d at 531.

¶ 20 As noted, the parties presented competing requests concerning

the allocation of husband’s pension. Wife asked the court to use

the net present value method and immediately value and distribute

the pension. She asserted that the present value of the pension

was $1,140,000, and she asked the court to allocate this future

benefit to husband, offsetting that value by allocating her additional

equity from the marital estate. Husband asked the court to use the

deferred distribution method, delaying the distribution of the

pension’s marital equity. He explained that using the net present

value method was inequitable because it would give wife virtually all

4 The time rule formula incorporates a “coverture fraction,” which

consists of a numerator — the length of time (in months or years) of
creditable service towards the pension accumulated during the
marriage — over the denominator — the length of time (in months
or years) of total service towards the pension. The coverture
fraction is then multiplied by the monthly pension benefit and
divided in half, representing an equal division of the pension
benefits attributable to the marriage. In re Marriage of Hunt, 909
P.2d 525, 531-32 (Colo. 1995).

10
the liquid marital assets and husband might never receive the full

value of his future pension benefits.

¶ 21 After considering their competing requests and balancing the

relevant circumstances, the trial court adopted husband’s request.

Finding that wife’s proposed net present value was “subject to too

many variables and based on a presumption of [h]usband’s life

expectancy,” it determined that the deferred distribution method

was the most equitable way to allocate the pension.

¶ 22 While wife disagrees with the court’s decision, she

acknowledges that applying a present value to husband’s defined

benefit pension involves “various assumptions regarding mortality

and the amount of retirement pay to which [husband] will be

entitled.” Indeed, “[n]ormally, the valuation of future retirement

payments is the subject for expert testimony, usually from an

actuary.” In re Marriage of Zappanti, 80 P.3d 889, 892 (Colo. App.

2003). This is so because determining the present value of a

pension entails applying a series of actuarial and investment

assumptions relating to a party’s life expectancy and probable

retirement age to the benefit. Kelm, 912 P.2d at 551. Wife

presented no expert testimony in support of her purported net

11
present value, and the court found, with record support, that wife’s

value was too uncertain under the circumstances.

¶ 23 Moreover, “[t]he net present value method is used most often

when the value of the pension is low” relative to the marital estate,

and the party had “worked relatively few qualifying years during the

marriage or the [party] earned a relatively low rate of pay.” Hunt,

909 P.2d at 531, 539. But that wasn’t the case here. During the

marriage, husband accumulated over thirty years of service towards

his pension, and the value of the pension (as presented by wife) was

significant, particularly when compared to the remaining value of

the marital estate, which was approximately $2,600,000.

¶ 24 The court exercised its discretion to choose a distribution

method that best suited the needs and financial circumstances of

the parties. See id. at 540; Smith, ¶ 65. In doing so, the court

appeared to prioritize accuracy — and therefore fairness — by

avoiding potentially flawed assumptions. Beyond her disagreement,

wife doesn’t point to anything in the record that shows the court’s

use of the deferred distribution method was arbitrary, capricious, or

contrary to the law. See Smith, ¶ 65. We therefore won’t disturb its

choice. See Hunt, 909 P.2d at 538 (“[A]n appellate court must not

12
disturb the delicate balance achieved by the trial court in division of

property. The trial court is best-situated to render the distribution

in the first instance, and its decision should not be disturbed on

appeal unless there has been a clear abuse of discretion.”).

3. Survivor Benefit

¶ 25 At the permanent orders hearing, husband agreed to purchase

the full survivor benefit on his pension to benefit wife. The trial

court, however, didn’t include this commitment in its final orders.

At oral argument, husband’s counsel stipulated that, on remand,

the court should include in its final orders his commitment to

secure a full survivor benefit on his pension for wife. We accept this

stipulation. Accordingly, on remand the trial court shall amend the

permanent orders to include this obligation.

B. Difficulty of Care Payments

¶ 26 Wife next argues that the trial court erred by including the

difficulty of care payments in its determination of her income for the

purposes of calculating spousal maintenance and child support.

We agree.

13
1. Preservation

¶ 27 Husband, relying on Fidelity National Title Co. v. First American

Title Insurance Co., 2013 COA 80, ¶¶ 46-52, contends that wife

didn’t preserve the argument she advances on appeal. He argues

that, at the hearing, wife’s argument was restricted to excluding the

difficulty of care payments from her income because they were

benefits from a means-tested public assistance program, see § 14-

10-114(8)(c)(II)(B), C.R.S. 2025; § 14-10-115(5)(a)(II)(B), not the

broader argument she now advances on appeal. We disagree with

husband.

¶ 28 A party doesn’t need to use talismanic language to preserve an

issue. In re Marriage of Stradtmann, 2021 COA 145, ¶ 9. The party

need only raise the issue for the court to rule on it. In re Marriage

of Turilli, 2021 COA 151, ¶ 12.

¶ 29 In Fidelity, a division of this court held that the plaintiff hadn’t

preserved an argument that it advanced on appeal because it made

a different argument at trial. Fidelity, ¶¶ 50-51. But here, wife

makes largely the same argument as she did to the trial court —

that the difficulty of care payments shouldn’t be included in her

income for purposes of determining maintenance and child support

14
because they are more akin to other nonincome payments and

aren’t taxed by the IRS. Wife has remained unwaveringly consistent

that the difficulty of care payments shouldn’t be treated as income

for purposes of maintenance and child support and the trial court

ruled on that issue. This is therefore unlike the situation in

Fidelity.

¶ 30 Accordingly, we conclude that wife sufficiently preserved for

appellate review her challenge to the trial court’s inclusion of the

difficulty of care payments in her income.

2. Standard of Review

¶ 31 We review a trial court’s maintenance and child support

rulings for an abuse of discretion. In re Marriage of Tooker, 2019

COA 83, ¶ 12.

¶ 32 The court’s determination of a party’s income presents a mixed

question of fact and law. In re Marriage of Garrett, 2018 COA 154,

¶ 9. We defer to the court’s factual findings if they are supported by

the record, but we review de novo its legal conclusions — such as

whether difficulty of care payments should be classified as income.

See Tooker, ¶ 12; Garrett, ¶ 9. “When interpreting a statute, we

15
adopt an interpretation that best effectuates the legislative

purposes.” In re Marriage of Vittetoe, 2016 COA 71, ¶ 4.

3. Analysis

¶ 33 The Colorado Medical Assistance Act (CMAA) implements a

joint state and federal Medicaid program to promote the health and

welfare of individuals and their families who don’t have the

resources to provide the necessary care for themselves. §§ 25.5-4-

102, -104(1), C.R.S. 2025. The HCBS-DD waiver, a program

established by the CMAA, provides home- and community-based

services to individuals with intellectual and developmental

disabilities who need the level of care available in an intermediate

care facility. § 25.5-6-409(1)-(2), C.R.S. 2025. Through this waiver

program, services are provided for the individual’s “social,

habilitative, remedial, residential, health, and other needs” to avoid

placing the individual in an intermediate care facility. § 25.5-6-

409(1).

¶ 34 This case presents a question that no Colorado appellate court

has previously addressed — whether the difficulty of care payments

provided by the HCBS-DD waiver are income for purposes of

spousal maintenance and child support. We begin by examining

16
whether the difficulty of care payments qualify as compensation to

wife, and we conclude that they don’t. Next, we examine whether

the difficulty of care payments, while not compensation, still fall

under the broad definition of income when determining

maintenance and child support. We again conclude that they

don’t.5 Last, we reject husband’s claim that the difficulty of care

payments nonetheless should be considered as income for L.L.,

which could reduce his child support obligation.

a. The Difficulty of Care Payments Aren’t Compensation

¶ 35 For purposes of determining maintenance and child support,

gross income is statutorily defined in sections 14-10-114(8)(c)(I) and

14-10-115(5)(a)(I). These sections contain substantially similar,

comprehensive lists of income sources that a court includes when

calculating a party’s income, including salaries, wages, and

5 Wife also argues that we should consider the fact that the

difficulty of care payments aren’t taxed by the IRS, but that
consideration is irrelevant to our analysis. See In re Marriage of
Nimmo, 891 P.2d 1002, 1005-06 nn.5, 7 (Colo. 1995) (explaining
that state and federal tax code definitions of income “are irrelevant
to an interpretation of” gross income under section 14-10-115,
C.R.S. 2025); In re Marriage of Armstrong, 831 P.2d 501, 503 (Colo.
App. 1992) (“[A] source of income under the child support
guidelines is not determined by other definitions which may be used
for federal or state income tax purposes.”).

17
payments received as an independent contractor. § 14-10-

114(8)(c)(I)(A), (B), (D); § 14-10-115(5)(a)(I)(A), (B), (D).

¶ 36 Husband contends that the difficulty of care payments wife

receives under the HCBS-DD waiver aren’t “benefits” of the

program — means-tested or otherwise.6 Rather, he argues that the

benefit is the care L.L. receives (whether from wife or anyone else).

He therefore contends that the difficulty of care payments

compensate wife for working as L.L.’s caregiver, just as the

payments would compensate any other third party caring for L.L.,

and that such compensation is included in wife’s income. For two

reasons, we disagree.

¶ 37 First, nothing in the record shows that the difficulty of care

payments cover the actual costs of L.L.’s caregiver needs. Wife

explained that L.L. needs twenty-four-hour care, can have panic

attacks unexpectedly, and requires logistical support for her

ongoing medical, educational, and psychological support programs.

6 We acknowledge wife’s argument that the HCBS-DD waiver is a

means-tested program that, by statute, would be excluded from a
party’s income. See § 14-10-114(8)(c)(II)(B), C.R.S. 2025; § 14-10-
115(5)(a)(II)(B). But given that we conclude the difficulty of care
payments aren’t income under an alternative rationale, we don’t
review or resolve this issue.

18
These needs, coupled with the program’s prohibition on L.L. having

more than $2,000 in her bank account, mean that wife will almost

certainly be required to provide for nearly all of L.L.’s extensive

needs out of pocket. See Dep’t of Health Care Pol’y & Fin. Rule

8.7100.C.2, 10 Code Colo. Regs. 2505-10; see also Reilly v. Marin

Hous. Auth., 472 P.3d 472, 484 (Cal. 2020) (“At best, a parent’s

[difficulty of care payments] will offset a portion of the costs of

keeping a developmentally disabled family member at home, and

[they] would not go far in meeting the family’s daily needs.”).

¶ 38 Second, the difficulty of care payments don’t adequately

compensate wife for her work or even acknowledge the amount of

work she provides caring for L.L. This is ably demonstrated by the

ample evidence of L.L.’s extensive needs and wife’s responsibilities

under the waiver program. Moreover, to even qualify for the HCBS-

DD waiver, L.L. must need “access to [twenty-four]-hour services

and supports to meet [her] daily living needs.” Dep’t of Health Care

Pol’y & Fin. Rule 8.7101.J.2.b, 10 Code Colo. Regs. 2505-10. Wife,

therefore, is essentially on call for at least six days a week while L.L.

is in her care. In addition, wife logs all of L.L.’s medications,

activities, outbursts, and sleep habits; coordinates her

19
transportation to and from multiple programs each week; and

participates in multiple therapy sessions with L.L. each week. See

Reilly, 472 P.3d at 483 (“Unlike third party caregivers whose job it

is to take care of someone on an hourly basis, for these parent

providers, caring for their child ‘is not a day job; it is their life.’”

(citation omitted)). Husband’s characterization of wife’s role in

L.L.’s care as fungible significantly undervalues her contribution as

reflected in the record. And his assertion that L.L. “can do anything

that a normal [eighteen]-year-old can do” is contradicted by the

weight of evidence, including the fact that L.L. must require twenty-

four-hour care to even qualify for the HCBS-DD waiver.

b. The Difficulty of Care Payments Aren’t Income to Wife

¶ 39 Having concluded that the difficulty of care payments aren’t

compensation to wife, we must next consider whether they

nevertheless are included in the broad definition of income for

purposes of maintenance and child support. We conclude that they

aren’t.

¶ 40 As wife argues, the policy goals of the HCBS-DD waiver are in

line with payment programs such as adoption subsidies and foster

care payments, which aren’t included in a parent’s income. See,

20
e.g., In re Marriage of Dunkle, 194 P.3d 462, 465-66 (Colo. App.

2008); In re Marriage of Bolding-Roberts, 113 P.3d 1265, 1267-68

(Colo. App. 2005); see also Reilly, 472 P.3d at 486 (in holding that

difficulty of care payments must be excluded from a party’s income,

the court noted that “[it couldn’t] endorse a construction that yields

a result antithetical to our nation’s ‘goal of providing families of

children with disabilities with the support they need to raise their

children at home’” (quoting 42 U.S.C. § 15091(c))). In Bolding-

Roberts, an adoption subsidy wasn’t included in a parent’s income,

and the division concluded that the subsidy shouldn’t be used to

reduce a parent’s child support obligation. 113 P.3d at 1267-68.

The division explained that while the payments were made directly

to the parent, the purpose of the subsidy was “to help, or remove

financial barriers to, the adoption of Colorado children with special

needs by providing assistance to the parent or parents in the

payment of expenses of caring for and raising the child.” 113 P.3d

at 1267 (citation omitted). The division observed — and we agree —

that allowing the subsidy to be a credit against the father’s child

support obligation “would be tantamount to absolving father of his

duty to support his child, placing [the child] in a worse position

21
than a child without special needs.” Id. Similarly, in Dunkle, a

division of this court concluded that adoption subsidies and foster

care payments received by a parent were not income for that parent

when determining child support. 194 P.3d at 465-66.

¶ 41 We are convinced that the same rationale applies to the

difficulty of care payments from the HCBS-DD waiver. By including

those payments in wife’s income, the court diluted the intended

effect of the difficulty of care payments — allowing L.L. to remain in

her family’s care and supplementing the costs of providing for L.L.’s

increased needs. And including it as income would improperly

dilute husband’s responsibility to financially provide for L.L.

¶ 42 Indeed, other courts have warned that categorizing these

payments as income could create a perverse incentive to

institutionalize family members. See Reilly, 472 P.3d at 482

(“[F]amilies that strive to avoid institutionalization should be

encouraged, and not punished.” (citation omitted)). Those needing

twenty-four-hour care, like L.L., “are more likely to receive better

continuous care from relatives living with them whose care is more

than contractual.” Id. (emphasis omitted) (citation omitted).

Further, a family member providing such care will often “insure the

22
least intrusion upon the recipient’s privacy.” Id. at 483 (citation

omitted). Allowing L.L. to receive her necessary care at home and

from her own mother clearly improves the nature and quality of her

care. Categorizing the difficulty of care payments as nonincome

therefore encourages the positive outcomes sought by the HCBS-DD

waiver.

¶ 43 Moreover, the negative outcomes associated with categorizing

the difficulty of care payments as income contradicts the purposes

of the HCBS-DD waiver and those of the Uniform Dissolution of

Marriage Act (UDMA). For instance, our legislature has expressed a

commitment to provide services for people with developmental

disabilities that “minimize admissions to institutions.” § 25.5-6-

402(1)(a), C.R.S. 2025. Interpreting the income provisions of the

UDMA in a way that provides an incentive to institutionalize family

members with disabilities directly undercuts the legislature’s stated

policy goal. That incentive also offends the most basic policy goals

of the UDMA, which include minimizing harm to the relationships

between parents and their children and protecting children from the

potential harm their parents’ dissolution of marriage could cause

23
them. See § 14-10-104.5, C.R.S. 2025; In re Marriage of Bohn, 8

P.3d 539, 542 (Colo. App. 2000).

¶ 44 Still, husband argues that because wife may spend the

difficulty of care payments on expenses like household bills and

living costs, the payments are income. In support, he relies on

Tooker, a case in which a division of this court ruled that to include

benefits in a party’s income, the funds must be available for the

party’s discretionary use or to reduce their daily living expenses.

Tooker, ¶ 18. Husband’s argument misses the mark. In Tooker, the

division concluded that the husband’s GI Bill tuition assistance

wasn’t income because the funds couldn’t be used for his personal

expenses. Id. at ¶ 20. But the Tooker division didn’t hold that the

mere availability of a portion of the financial benefit for

discretionary use requires its inclusion in a party’s income. The

maintenance and child support statutes likewise don’t support

husband’s position. See, e.g., §§ 14-10-114(8)(c)(II)(B), 14-10-

115(5)(a)(II)(B) (excluding from a party’s income cash assistance

paid out through the Colorado works program); § 26-2-706.6(2),

C.R.S. 2025 (“[C]ash assistance” paid out through the Colorado

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works program “is designed to meet the basic ongoing needs of the

persons” receiving the payments.).

¶ 45 Accordingly, we conclude that the difficulty of care payments

don’t constitute income for the purposes of determining

maintenance or child support.

c. The Difficulty of Care Payments Don’t Reduce L.L.’s Needs

¶ 46 Finally, husband argues that even if we determine that the

difficulty of care payments aren’t income to wife, the payments

should be considered as L.L.’s income because the benefits from

these payments diminish L.L.’s basic needs. See § 14-10-115(11)(b)

(“Any additional factors that actually diminish the basic needs of

the child may be considered for deductions from the basic child

support obligation.”). We aren’t persuaded.

¶ 47 In Bolding-Roberts, the division concluded that the trial court

correctly declined to find that an adoption subsidy was income to

the child. 113 P.3d at 1267-68. In that case, the subsidy paid

benefits to parents who adopted children with “special, unusual, or

significant physical or mental disability, or emotional disturbance.”

Id. at 1267 (citation omitted). The division reasoned that the

adoption subsidy wasn’t intended as a substitute or replacement for

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lost income; instead, it was designed to offset the special needs of

the adopted child. Id. at 1268. The subsidy therefore didn’t reduce

the child’s needs for purposes of determining child support. Id.

The division anchored its conclusion on the fact that, had the

parents not separated, the child would have had the benefit of both

parents’ incomes and the subsidy. Id.

¶ 48 We agree with the logic of Bolding-Roberts. The difficulty of

care payments don’t reduce L.L.’s needs. Instead, they supplement

the additional costs of caring for L.L. at home, partially offsetting

those increased needs. Such payments therefore aren’t income

attributable to L.L. that would diminish her basic needs for

purposes of determining child support.

¶ 49 In sum, because we determine that the difficulty of care

payments aren’t compensation and that categorizing them as

income — for wife or for L.L. — contradicts the purposes of the

UDMA and the HCBS-DD waiver, we conclude that the trial court

erred by including these payments in wife’s income when it

determined spousal maintenance and child support. We reverse

this portion of the trial court’s permanent orders, and we remand

the issues of maintenance and child support to the trial court for

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reconsideration. Because orders on maintenance and child support

are based on the parties’ circumstances at the time the orders are

entered, we direct the trial court on remand to consider the parties’

circumstances at the time of the remand hearing. See In re

Marriage of Wright, 2020 COA 11, ¶ 24; In re Parental

Responsibilities Concerning M.G.C.-G., 228 P.3d 271, 273 (Colo.

App. 2010).

¶ 50 Wife further requests that we foreclose husband from arguing

on remand that she is voluntarily underemployed or unemployed

because the court declined to make any such finding in its original

permanent orders. As discussed, the court must consider the

parties’ current circumstances at the time of entering orders on

remand. Therefore, we decline wife’s request.

C. The Duration of the Maintenance Award

¶ 51 Wife also argues that the trial court erred by ordering the

spousal maintenance to automatically terminate when husband

retires. Because have reversed the maintenance award, and, on

remand, the trial court must reconsider whether to award

maintenance and what term, if any, is appropriate based on the

parties’ then-current circumstances, we don’t need to reach this

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issue. Additionally, given husband’s testimony at the 2023

permanent orders hearing that he hoped to retire within two years,

i.e., in 2025, it’s unclear whether this issue will arise in the same

posture on remand. We therefore decline to weigh in. Cf. Nguyen v.

Lai, 2022 COA 141, ¶ 17 (noting our inability to give advisory

opinions).

III. Appellate Attorney Fees and Costs

¶ 52 Wife requests an award of her attorney fees incurred on appeal

under section 14-10-119, C.R.S. 2025, due to the disparity in the

parties’ earning capacities and financial resources. See In re

Marriage of Collins, 2023 COA 116M, ¶ 49 (“To ensure that a party

does not suffer undue economic hardship from the proceedings in a

dissolution of marriage case,” section 14-10-119 permits the court

to “order a party to pay a reasonable amount for the other party’s

attorney fees and costs based on the parties’ relative economic

circumstances.”). The trial court is better positioned than an

appellate court to consider the factual issues regarding the parties’

current financial resources. Therefore, we direct the trial court to

address wife’s request for appellate attorney fees on remand. See

C.A.R. 39.1; Collins, ¶ 86.

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¶ 53 The trial court should also address the parties’ requests for

appellate costs under C.A.R. 39. See C.A.R. 39(a)(4) (“[I]f a

judgment is affirmed in part [and] reversed in part, . . . costs are

taxed only as ordered by the trial court.”).

IV. Disposition

¶ 54 We affirm the portion of the trial court’s permanent orders that

allocated husband’s pension by using the deferred distribution

method. We reverse the portion of the orders concerning

maintenance and child support. The case is remanded to the trial

court for further proceedings consistent with this opinion.

¶ 55 In particular, on remand, the court shall reconsider

maintenance and child support based on the parties’ circumstances

at the time of the remand proceedings. The court shall also

incorporate into its judgment husband’s stipulation concerning the

full survivor benefit for wife on his pension. And the court shall

address wife’s request for appellate attorney fees under section 14-

10-119 and the parties’ requests for appellate costs.

JUDGE KUHN and JUDGE SCHUTZ concur.

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