Marriage Samuelson

24CA1201 Marriage of Samuelson 05-22-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA1201
Pueblo County District Court No. 23DR30158
Honorable Tayler M. Thomas, Judge

In re the Marriage of

Peggy Samuelson,

Appellee,

and

Shawn Samuelson,

Appellant.

JUDGMENT AFFIRMED AND CASE
REMANDED WITH DIRECTIONS

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

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced May 22, 2025

Law Office of Joel M Pratt, Joel M. Pratt, Colorado Springs, Colorado, for
Appellee

Griner Legal, LLC, Amy D. Griner Guheen, Lakewood, Colorado, for Appellant
¶1 Shawn Samuelson (husband) appeals the maintenance award

entered in connection with the dissolution of his marriage to Peggy

Samuelson (wife). We affirm the maintenance award and remand

the case to the district court to consider wife’s request for attorney

fees.

I. Background

¶2 Husband and wife married in June 2004. Wife filed the

petition for dissolution of marriage in June 2023. About three

months after the petition was filed, the parties stipulated that

husband would pay wife $2,759.31 per month in temporary

maintenance. After a contested permanent orders hearing, the

district court dissolved the parties’ marriage and entered permanent

orders.

¶3 The permanent orders included a maintenance award to wife

in the amount of $2,759.31 per month for ten years. Husband filed

a post-trial motion pursuant to C.R.C.P. 59, asking, as relevant

here, the district court to reconsider the term of the maintenance

award. The court granted the motion in part, modifying the

maintenance term from ten years to nine years and eleven months.

1
II. Maintenance

¶4 Husband appeals contending that the district court erred

when it determined the amount and term of the maintenance award

and when it used his profit sharing and dividend income to

determine the amount of the award. We aren’t persuaded.

A. Standard of Review and Applicable Law

¶5 We review a district court’s maintenance award for an abuse of

discretion. In re Marriage of Tooker, 2019 COA 83, ¶ 12. A court

abuses its discretion if it awards maintenance without making

statutorily required findings. See In re Marriage of Wright, 2020

COA 11, ¶¶ 19, 33.

¶6 When awarding maintenance, the court must determine the

amount and term of maintenance that are fair and equitable. § 14-

10-114(3)(a)(III), 3(e), C.R.S. 2024. To do so, the court must

consider the advisory statutory guidelines on the amount and term

of maintenance. § 14-10-114(3)(a)(II)(A), 3(b). These guidelines are

a starting point; they don’t create a presumptive maintenance

amount or term. § 14-10-114(1)(b)(II), 3(e). The court then

considers a nonexclusive list of statutory factors to determine the

2
appropriate amount and term of maintenance, if any, based on the

totality of circumstances. § 14-10-114(3)(a)(II)(B), 3(c), 3(e).

B. Discussion

1. The Court’s Findings

¶7 When determining maintenance, the district court found that

husband’s gross income was $23,085.68 per month. The court

considered husband’s testimony that he was the president of Salida

Winsupply and that he received a regular salary and considerable

profit sharing. It noted husband’s testimony that once his business

made ten percent of its net worth, he was awarded profit sharing

based on his sales. Husband further testified that he had the

discretion to take a percentage of profit sharing not to exceed sixty-

five percent and that in 2023, he took forty-four percent and

distributed the remaining amount to his employees. See § 14-10-

114(3)(a)(I)(A) (court shall make findings about each party’s income).

¶8 The court found that wife’s gross income was $756.00 per

month from a chocolate business that she owned and ran. It found

that wife had started the chocolate business three years before the

permanent orders hearing, but that it had never turned a profit.

The court noted wife’s testimony that she couldn’t make the

3
chocolate business profitable after leaving the marital home

because she didn’t have the counter space or air conditioning

outside the marital home, but the court also found that the

business had not been profitable even when wife lived in the marital

home. Accordingly, the court found that the chocolate business

wasn’t a good faith career choice.

¶9 The court found that prior to starting the chocolate business,

wife was employed as a manager in a marijuana cultivation

business and had made $46,000 during the last year she was

employed. However, it found she was unlikely to immediately make

a similar amount if she rejoined the workforce today.

¶ 10 The court found wife could work full time and could make $16

an hour. Accordingly, it imputed income to wife of $2,733.33 per

month, or $33,280.00 annually. See § 14-10-114(3)(a)(I)(A),

(3)(c)(II).

¶ 11 The court determined that even with this income imputed to

her, wife would still not be able to meet her monthly expenses if not

awarded maintenance. The court considered that wife’s portion of

the marital estate was sizeable and included half of the proceeds

from the sale of the marital home, two expensive cars, and no debt,

4
but also that she would not have life insurance or a retirement

account. See § 14-10-114(3)(a)(I)(B), (3)(b)(IV), (XIII). And it found

that while married the parties lived a lifestyle that allowed wife to

not work while husband earned a significant amount of money

through his business. See § 14-10-114(3)(a)(I)(D), (3)(c)(III).

¶ 12 The court further noted that it need not follow the advisory

maintenance guidelines because the parties made over $240,000

per year. See § 14-10-114(3.5). And it found that the length of

their marriage was 238 months. See § 14-10-114(3)(b)(II)(A)-(B).

¶ 13 After considering all of these relevant circumstances, the court

concluded that a maintenance award of $2,759.31 per month for a

term of nine years and eleven months — instead of ten years — was

fair and equitable.

2. Husband’s Income

¶ 14 Husband argues that the district court erred when it included

profit sharing and dividends as part of his income because they

were “not guaranteed.” Husband asserts that the court

“disregarded” the “undisputed facts” that his profit sharing bonus is

dependent on the company’s performance and that he had testified

that business had been down in the first quarter of 2024.

5
¶ 15 The court acknowledged that only husband’s salary was

guaranteed. It then found that the “profit-sharing pool” was

uncapped once husband’s store started making over ten percent of

its net worth, that he had the discretion to take a percentage not to

exceed sixty-five percent of sales after that point, and that in 2023

he had taken forty-four percent. Accordingly, the court

appropriately considered the non-guaranteed nature of husband’s

profit-sharing income and structure and still found that it was

appropriate to include those amounts in its income determination.

Husband’s argument asks us to reweigh that evidence, which we

can’t do. See In re Marriage of Kann, 2017 COA 94, ¶ 36 (“[O]ur

supreme court has . . . expressed unbridled confidence in trial

courts to weigh conflicting evidence.”).

¶ 16 Husband also argues that his profit-sharing payments were

“speculative” and a “mere expectancy” and cites to In re Marriage of

Turner, 2022 COA 39 (Colo. App. 2022), and In re Marriage of Miller,

915 P.2d 1314, 1318 (Colo. 1996). But those cases considered

whether a future expectancy, such as stock options or year-end

bonuses were marital property subject to division, not whether they

could appropriately be considered in the court’s income

6
determination when considering maintenance. Indeed, as wife

points out, the definition of “income” in section 14-10-114(8)(c)(I)(F)

and (W) includes both “dividends” and “[i]ncome from general

partnerships, limited partnerships, closely held corporations, or

limited liability companies.” Husband doesn’t contend that these

definitions don’t apply.

¶ 17 Lastly, husband argues it was error for the court to consider

profit sharing as income because wife had already been awarded

one half of the profit-sharing bonus from 2024 when the court

divided marital savings. But husband doesn’t explain, or provide

any authority for, his argument that profit-sharing earnings going

forward aren’t income simply because wife received a portion of a

previous year’s earnings as part of the property division.

¶ 18 Accordingly, the court didn’t err when it considered husband’s

dividends and profit sharing as part of his gross income for the

purpose of maintenance.

3. Amount and Term of Maintenance

¶ 19 Husband also argues that wife didn’t meet the threshold

requirement for maintenance under section 14-10-114(3)(d)

because the court had awarded her sufficient property to provide for

7
her reasonable needs and she was able to support herself through

appropriate employment.

¶ 20 Wife received $900,985.71 in the division of marital property,

which husband argues was enough to meet her basic needs. But

wife isn’t required to deplete her share of the marital property in

order to be entitled to maintenance. In re Marriage of Bartolo, 971

P.2d 699, 702 (Colo. App. 1998) (receipt of a balancing payment

can’t be viewed as a substitute for maintenance).

¶ 21 He also argues that wife was able to earn more than $16 an

hour because she earned $46,000 annually (about $22 per hour)

when she left the workforce three years prior. But he cites no

authority to support his position. Wife testified that she had

worked several years before reaching a managerial position where

she made $46,000 a year before leaving the workforce. She further

testified that she didn’t believe she would make that amount if

entering the workforce today. The district court credited wife’s

testimony. Again, we cannot reweigh this evidence on appeal. In re

Marriage of Thorburn, 2022 COA 80, ¶ 49 (it is for the district court,

not the reviewing court, to determine the witnesses’ credibility and

the weight of the evidence).

8
¶ 22 Husband also argues that the income the court imputed to

wife, “would meet all but $125.00 of wife’s monthly financial needs”

and that she could supplement the shortfall with earnings from her

chocolate business. But under husband’s proposal wife would have

to work full time in addition to running the chocolate business just

to meet her minimum expenses, and it overlooks the fact that the

chocolate business had never turned a profit. Moreover, the court

found that, in addition to being unable to meet her monthly

expenses, wife had little retirement savings and no life insurance.

See In re Marriage of Yates, 148 P.3d 304, 313 (Colo. App. 2006) (“A

maintenance award is not limited to satisfying a spouse’s basic or

survival needs.”).

¶ 23 Husband contends that the amount of maintenance was

unfair and inequitable because it far exceeded his annual salary of

$75,911.60. But, as discussed, the court found that husband’s

income included his annual salary and substantial profit sharing

and dividends.

¶ 24 Husband also asserts that the court erred when it set the term

for maintenance because it didn’t receive information about

maintenance amounts he paid prior to temporary orders. And he

9
claims it was error for the court not to “credit” him for the fifteen

months he made temporary maintenance payments.

¶ 25 The court found that husband paid temporary maintenance

before temporary orders required it, but that the amount and length

of the payments were not disclosed to the court. This finding is

supported by husband’s testimony that prior to temporary orders

he “was giving [wife] 1,000, 1,500. There were some months I paid

her 3,000 . . . .” Accordingly, we can’t agree that the court erred

when it found husband didn’t provide a specific amount or length of

time he paid before temporary maintenance was ordered.

¶ 26 As for awarding “credit” for the time husband paid temporary

maintenance, although section 14-10-114(3)(c)(VII) provides that a

court shall consider the amount of temporary maintenance and the

number of months it was paid, he provides no authority, nor are we

aware of any, that requires a court to discount the maintenance

term for the number of months that temporary maintenance was

paid.

¶ 27 Notably, husband testified that he made a significant amount

in income and that wife worked until three years prior to the

petition for dissolution. Husband’s income, even when wife worked,

10
vastly outweighed wife’s income and, although they each received

equal division of the marital home, vehicles, and other property,

husband retained his business, and wife had no life insurance and

little retirement savings.

¶ 28 In sum, the court considered the totality of the circumstances,

including many of those highlighted by husband, and concluded

that $2,759.31 for nine years and eleven months was a fair and

equitable maintenance amount and term.

¶ 29 Because the record supports the court’s findings, we won’t

disturb its determination. See In re Marriage of Atencio, 47 P.3d

718, 722 (Colo. App. 2002) (providing that we will not disturb a

court’s maintenance determination when the record supports it);

see also In re Marriage of Evans, 2021 COA 141, ¶ 45 (“We are not

at liberty to re-evaluate the conflicting evidence and set aside [the

court’s] findings supported by the record.”).

III. Appellate Attorney Fees

¶ 30 Wife requests an award of appellate attorney fees under

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

lacks substantial justification. We deny this request. Although

husband didn’t prevail, his appeal was not so lacking in substantial

11
justification as to warrant an award of attorney fees. See In re

Marriage of Boettcher, 2018 COA 34, ¶ 38 (“Fees should be awarded

only in clear and unequivocal cases when the appellant presents no

rational argument, or the appeal is prosecuted for the purpose of

harassment or delay.”), aff’d, 2019 CO 81.

¶ 31 Wife also asks for her appellate attorney fees pursuant to

section 14-10-119, C.R.S. 2024, due to the substantial disparity in

the parties’ incomes. Because the district court is better equipped

to determine the parties’ relevant financial resources, we remand

the case for the district court to consider wife’s request. See In re

Marriage of Collins, 2023 COA 116M, ¶ 86.

IV. Disposition

¶ 32 We affirm the judgment and remand for the resolution of wife’s

request for attorney fees under section 14-10-119.

JUDGE KUHN and JUDGE SCHUTZ concur.

12