of Callison

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
February 11, 2021

2021COA16

No. 19CA2136, Marriage of Callison — Family Law —
Dissolution — Spousal Maintenance

A division of the court of appeals considers whether the

district court may award retroactive temporary maintenance under

section 14-10-114, C.R.S. 2020, which was repealed and reenacted

in 2014. The division concludes that the reenacted maintenance

statute does not prohibit the district court from awarding

retroactive temporary maintenance, and thus, the court may order

retroactive temporary maintenance within its discretion. The

division also concludes that the district court may order retroactive

temporary maintenance for the time in which the spouses resided

together in the same home after the dissolution proceedings were

initiated.
The division concludes, however, that the district court made

insufficient findings in support of its order for retroactive temporary

maintenance. Accordingly, the division reverses the court’s order

and remands the case to the district court for further findings.
COLORADO COURT OF APPEALS 2021COA16

Court of Appeals No. 19CA2136
Douglas County District Court No. 18DR30367
Honorable Robert Lung, Judge

In re the Marriage of

Cynthia Jean Herold,

Appellee,

and

Kenneth Paul Callison,

Appellant.

ORDER REVERSED AND CASE
REMANDED WITH DIRECTIONS

Division II
Opinion by JUDGE ROMÁN
Welling and Brown, JJ., concur

Announced February 11, 2021

Senn Visciano Canges P.C., James S. Bailey, P. Eric Voorheis, Denver,
Colorado, for Appellee

Robinson Waters & O’Dorisio P.C., Langdon J. Jorgensen, Denver, Colorado,
for Appellant
¶1 In this dissolution of marriage proceeding, Kenneth Paul

Callison (husband) appeals the portion of the district court’s

temporary orders awarding retroactive temporary maintenance

under the reenacted temporary maintenance statute to Cynthia

Jean Herold (wife). Addressing a question of first impression, we

conclude that the reenacted maintenance statute does not prohibit

the district court from awarding retroactive temporary maintenance,

and, thus, it’s not an abuse of discretion if a court orders it. We

also hold that the district court may order retroactive temporary

maintenance for the time in which the spouses resided together in

the same home after the dissolution proceedings were initiated.

However, because the district court made insufficient findings in

support of its order, we reverse the court’s order and remand the

case for further findings.

I. Background

¶2 Husband and wife were married at common law for over thirty

years. Almost a year after wife petitioned for the dissolution of their

marriage, the court held a temporary orders hearing to consider,

among other issues, wife’s request for temporary maintenance.

1
¶3 The court found that husband received approximately $50,000

per month in gross income, while wife earned less than $4,000 per

month. It found that the parties had a “lavish lifestyle” during the

marriage, noting that they took trips to Europe, the Bahamas, the

Cayman Islands, Alaska, and Las Vegas; that wife historically had

“no limitation or restriction on her shopping or spending”; and that

she shopped “at the finest stores and [ate] at the finest

restaurants.” The court further found that wife’s standard of living

had dramatically declined, recognizing that she was now “eating at

McDonald’s . . . if she very infrequently eats out” and that she had

“about $100 a month” for shopping. And the court found that

despite the gross disparity in their incomes, husband had given wife

“zero in spousal support.”

¶4 The court then determined that wife was incapable of meeting

her reasonable needs as established during the marriage. It

ordered husband to pay wife $12,000 per month in temporary

maintenance retroactive to the commencement of the dissolution

proceeding, which resulted in husband owing wife $144,000 in

arrearages.

2
II. Standard of Review

¶5 We review an award of temporary maintenance for an abuse of

discretion. See In re Marriage of Rose, 134 P.3d 559, 561 (Colo.

App. 2006); see also In re Marriage of Antuna, 8 P.3d 589, 595

(Colo. App. 2000). A district court abuses its discretion when it

acts in a manifestly arbitrary, unfair, or unreasonable manner, or

when it misapplies the law. See In re Marriage of Kann, 2017 COA

94, ¶ 56. However, we review de novo the district court’s

interpretation and application of the law. See In re Marriage of

Thorstad, 2019 COA 13, ¶ 27; In re Marriage of Vittetoe, 2016 COA

71, ¶ 4.

III. Authority to Award Retroactive Temporary Maintenance

¶6 Husband contends that the district court had no legal

authority to order him to pay retroactive temporary maintenance.

Specifically, he argues that by repealing and reenacting the

maintenance statute in 2014, the legislature eliminated the district

court’s ability to impose retroactive temporary maintenance. We do

not agree.

3
A. Preservation

¶7 Wife first argues that husband did not preserve this issue for

appellate review, and we therefore should not address it. See In re

Estate of Ramstetter, 2016 COA 81, ¶ 12. While a party generally

must make a timely and specific objection before the district court

to preserve an issue for appeal, see Rinker v. Colina-Lee, 2019 COA

45, ¶ 25, wife did not request retroactive temporary maintenance at

or before the temporary orders hearing. Husband thus had no

opportunity to object to an award of retroactive temporary

maintenance or argue that the court lacked the authority to impose

such an award until the court issued its ruling. And “where, as

here, the [district] court rules sua sponte on an issue, the merits of

its ruling are subject to review on appeal, whether timely objections

were made or not.” Id. at ¶ 26.

B. Discussion

¶8 When interpreting a statute, we read and consider the statute

as a whole and interpret it in a manner that gives consistent,

harmonious, and sensible effect to all its parts. Vittetoe, ¶ 4. In

doing so, “we adopt an interpretation that best effectuates the

legislative purposes.” Id.

4
¶9 Before 2014, the maintenance statute created a rebuttable

presumption in favor of temporary maintenance when the parties

earned less than a certain income, and it directed the court to begin

an award for temporary maintenance “at the time of the parties’

physical separation or filing of the petition or service upon the

respondent, whichever occurs last.” § 14-10-114(2)(c), C.R.S. 2013.

¶ 10 The legislature removed these provisions on temporary

maintenance when it repealed and reenacted the maintenance

statute in 2014. Ch. 176, sec. 1, § 14-10-114, 2013 Colo. Sess.

Laws 639.

¶ 11 Contrary to husband’s argument, this repeal does not restrict

the court’s authority. It has been recognized that the reenactment

of the maintenance statute “illustrate[d] the General Assembly’s

intention for the district court to retain broad discretion” over an

award of maintenance. Vittetoe, ¶ 14. Whether to award temporary

maintenance, therefore, remains a determination committed to the

district court’s discretion. See Lanz v. Lanz, 143 Colo. 73, 75, 351

P.2d 845, 846 (1960); In re Marriage of Yates, 148 P.3d 304, 313

(Colo. App. 2006); Rose, 134 P.3d at 561. The new statute provides

“a more detailed statutory framework” that includes guidelines “to

5
be considered as a starting point for the determination of fair and

equitable maintenance awards.” § 14-10-114(1)(b)(II), C.R.S. 2020.

¶ 12 Nothing in the current statute tells the court when it must

begin an award of temporary maintenance or restricts the court’s

ability to award it retroactively. Rather, under the current

maintenance statute, the district court “may award a monthly

amount of temporary maintenance.” § 14-10-114(4)(a)(I); see also

A.S. v. People, 2013 CO 63, ¶ 21 (“[T]he legislature’s use of the term

‘may’ is generally indicative of a grant of discretion . . . .”). And

when doing so, the court must determine a fair and equitable “term

for payment of temporary maintenance.” § 14-10-114(4)(a)(II); see

also § 14-10-114(2).

¶ 13 The repeal and reenactment of the maintenance statute does

not indicate a restriction on the district court’s ability to award

retroactive maintenance. Rather, it expanded the district court’s

discretion in determining a fair and equitable term of maintenance

based on the totality of the circumstances in the case. See Vittetoe,

¶ 14; see also § 14-10-114(4)(a)(II); 24A Am. Jur. 2d Divorce &

Separation § 603, Westlaw (database updated Nov. 2020) (“[T]he

determination as to when an allowance for temporary alimony

6
should begin is generally within the discretion of the court.”). This

allows the court to fulfill an important purpose of temporary

maintenance — “to place the parties on an equal footing during the

dissolution process.” In re Marriage of Nussbeck, 899 P.2d 347, 349

(Colo. App. 1995); see also Bieler v. Bieler, 130 Colo. 17, 19, 272

P.2d 636, 637 (1954).

¶ 14 Husband, however, argues that without specific statutory

authorization, a court may not impose family support obligations

for any time before the court conducts a hearing on the issue. He

relies on cases addressing a parent’s child support obligation and

contends that the rationale from these cases should apply equally

to a spouse’s temporary maintenance obligation. See, e.g., In re

Marriage of Serfoss, 642 P.2d 44, 46 (Colo. App. 1981). But

husband did not present this argument until his reply brief;

therefore, we will not address it. See In re Marriage of Drexler, 2013

COA 43, ¶ 24 (declining to address an argument not raised in a

party’s opening brief).

¶ 15 Nothing in the reenactment of the maintenance statute

expressly requires retroactive maintenance or prohibits it. Given

the district court’s discretion over the term for an award of

7
temporary maintenance, we cannot conclude that the court lacked

the authority to order retroactive temporary maintenance.

IV. Retroactive Temporary Maintenance Award

¶ 16 The parties continued to reside together in the marital home

after wife filed the dissolution petition, and even attempted to

reconcile. During this time, husband paid the mortgage, utilities,

and other shared living expenses. Husband argues that because he

was doing so, the district court improperly awarded retroactive

temporary maintenance. Under these circumstances, we disagree.

¶ 17 In fashioning a maintenance award, the court must consider a

spouse’s ability to independently meet his or her reasonable needs.

§ 14-10-114(3)(c)(I), (3)(d); Antuna, 8 P.3d at 595; see also

§ 14-10-114(4)(a)(III) (requiring the court to determine temporary

maintenance pursuant to the relevant provisions of section

14-10-114(3)). In doing so, the court “is not limited to satisfying a

spouse’s basic or survival needs.” Yates, 148 P.3d at 313. The

court, instead, should consider the facts and circumstances of the

case, including the standard of living established during the

marriage. See In re Marriage of Thornhill, 232 P.3d 782, 789 (Colo.

2010); Yates, 148 P.3d at 313.

8
¶ 18 Wife acknowledged that she had been living in the marital

home with husband and that he was paying the mortgage, utilities,

and other living expenses. She testified, however, that she was

unable to meet her reasonable financial needs and that husband

had not provided her with any money to do so, even though he was

receiving over $50,000 per month in gross income. She further

testified that she had wanted to end their living arrangement since

filing her petition, but she lacked the financial resources to leave;

that she had been forced to liquidate her retirement account and

work at a second job to pay her expenses; and that she could not

obtain dental care, vision care, or health care because she could not

afford to pay the required deductibles.

¶ 19 As well, wife testified to the extravagant lifestyle that the

parties had established during the marriage, including driving

luxury cars, dining at high-end restaurants, shopping for designer

items, and going on expensive vacations. She also testified that

during the dissolution proceeding, husband’s lifestyle remained the

same but her standard of living had dramatically decreased because

husband had restricted her access to their financial resources by

9
cancelling credit cards, closing bank accounts, and limiting her

income.

¶ 20 The court found that wife lacked sufficient financial resources

to meet her reasonable needs as established during the marriage. It

noted that husband had deliberately “chosen the low road” by not

financially supporting wife and that it had “never seen a more grave

example of disparity and disregard for a spouse.” The court then

determined that retroactive temporary maintenance was

appropriate, finding that it, along with the other temporary orders,

would “level [the] playing field.”

¶ 21 Given these findings, we disagree with husband that the

district court failed to explain its reasons for awarding retroactive

temporary maintenance even though the parties were living

together. And although husband paid some of the parties’

pre-temporary orders expenses, the record supports the court’s

determination that wife could not meet her reasonable needs as

established during the marriage and that an award of retroactive

temporary maintenance was appropriate. See Thornhill, 232 P.3d at

789; Yates, 148 P.3d at 313; see also Bieler, 130 Colo. at 20, 272

P.2d at 637 (recognizing that temporary maintenance is intended to

10
allow a spouse to live in his or her “accustomed manner” pending

the dissolution proceeding) (citation omitted).

¶ 22 Still, husband argues that under In re Marriage of Peterson, 40

Colo. App. 115, 572 P.2d 849 (1977), a party’s maintenance

obligation abates when the parties live together and the party

obligated to pay maintenance pays the other party’s expenses. But

Peterson is distinguishable. There, the former spouses attempted to

reconcile after the dissolution of their marriage. Id. at 116, 572

P.2d at 850. During that time, the parties lived together, and the

ex-husband paid the ex-wife a portion of his maintenance obligation

and other family expenses. Id. at 116-17, 572 P.2d at 850. The

division held that “under the circumstances of th[at] case, where

the parties made a good faith although unsuccessful attempt at

reconciliation and where the [ex-]husband supported the family

during this time,” the ex-wife was not entitled to a maintenance

arrearage. Id. at 117, 572 P.2d at 851. Peterson did not hold that a

court may never order maintenance for the time in which the

parties lived together and one spouse paid living expenses.

Specifically, unlike Peterson, the district court found, with record

11
support, that husband had not supported wife’s reasonable

financial needs while they were living together.

¶ 23 Accordingly, the court did not err by ordering husband to pay

retroactive temporary maintenance for the time when the parties

lived together and husband paid some of their pre-temporary orders

expenses.

V. Sufficiency of the District Court’s Findings

¶ 24 Husband also argues that the district court did not make

sufficient findings under section 14-10-114(3) or (4) to support its

award of $12,000 per month for retroactive temporary maintenance.

We agree that further findings are needed.

Section 14-10-114(3) sets forth a specific process for the

district court to follow when considering a maintenance request at

permanent orders. In re Marriage of Wright, 2020 COA 11, ¶ 13.

The process detailed under this statute also provides the framework

by which a court must determine temporary maintenance.

§ 14-10-114(4)(a)(I).

¶ 25 Under section 14-10-114(3), the court must first make written

or oral findings on each party’s gross income, the marital property

apportioned to each party, each party’s financial resources, the

12
reasonable financial need as established during the marriage, and

the taxability of the maintenance awarded. § 14-10-114(3)(a)(I);

Wright, ¶ 14.

¶ 26 Next, the court must determine the amount and term of

maintenance, if any, that is fair and equitable to both parties after

considering the statutory advisory guidelines and a list of

non-exclusive statutory factors. § 14-10-114(3)(a)(II)(A), (3)(a)(II)(B),

(3)(b), (3)(c); Wright, ¶ 15. When, as here, the parties’ combined

annual adjusted gross income exceeds $240,000, the advisory

guideline amount for maintenance under section 14-10-114(3)(b)(I)

does not apply. § 14-10-114(3.5). Instead, the court must

determine the amount of maintenance based on its consideration of

the statutory factors in section 14-10-114(3)(c). § 14-10-114(3.5).

¶ 27 Section 14-10-114(3) also requires the court to find that the

party seeking maintenance lacks sufficient property, including

marital property apportioned to him or her, to provide for his or her

reasonable needs and is unable to support himself or herself

through appropriate employment before awarding maintenance.

§ 14-10-114(3)(a)(II)(C), (3)(d).

13
¶ 28 Given the nature of temporary maintenance and the timing of

such a decision, certain findings the court must make or factors the

court must consider under section 14-10-114(3) for permanent

orders may not be relevant to its determination of temporary

maintenance. See, e.g., § 14-10-114(4)(a)(II) (noting that the

advisory guideline term for maintenance does not apply to

temporary maintenance). But the court must still adhere to the

process set forth in section 14-10-114(3) and apply the provisions

relevant to its temporary maintenance determination.

§ 14-10-114(4)(a)(I). The court must also “consider any additional

factors specific to the determination of temporary maintenance,

including the payment of family expenses and debts.”

§ 14-10-114(4)(a)(III).

¶ 29 In the end, the court has discretion to enter a fair and

equitable maintenance award, but it must “make specific written or

oral findings in support of the amount and term of maintenance

awarded.” § 14-10-114(3)(e); see also In re Marriage of Gibbs, 2019

COA 104, ¶ 9 (“The district court must make sufficiently explicit

findings of fact to give the appellate court a clear understanding of

the basis of its order.”).

14
¶ 30 Here, the district court indicated that it was “mindful” of

section 14-10-114 and noted that under this statute it was

“directed to consider every relevant factor.” The court then made

findings on the parties’ gross incomes; admonished husband for not

providing spousal support to wife; considered the parties’ financial

resources, noting that husband possessed and controlled “a vast

majority of the marital assets and marital income”; and discussed

the parties’ “lavish lifestyle” during the marriage. It stated that it

“also reference[d] all the factors under [14-10-114](3)(c),” listing

the financial resources of the recipient spouse,
the pay[o]r spouse, the lifestyle during the
marriage[,] . . . [the] limited, if any, distribution
of marital property[,] [t]he parties’ incomes,
employability, their age, their health[,] . . . [t]he
undisputable fact that one party has
historically earned a higher income[,] [a]nd the
significant economic and/or noneconomic
contribution to the marriage.

Then, the court determined that wife was incapable of meeting her

reasonable needs and awarded her $12,000 per month — the

amount wife requested — in retroactive temporary maintenance.

¶ 31 For two reasons, we conclude that additional findings are

necessary. First, the court made insufficient findings on what it

determined to be wife’s reasonable financial needs and whether

15
$12,000 per month would meet those needs. See

§ 14-10-114(3)(a)(I)(D), (3)(c)(I), (4)(a)(I), (4)(a)(III). Wife’s financial

affidavit represented expenses of almost $10,000 per month,

excluding her attorney fees, and reported income of almost $4,000

per month. She admitted at the hearing that husband had been

paying the mortgage, utilities, and other shared living expenses

listed in her affidavit — approximately $4,000 per month. She also

acknowledged that she was not incurring an additional $1,200 of

the expenses she had listed. Still, wife said that the expenses on

her financial affidavit did not meet her needs as established during

the marriage and that $12,000 per month was consistent with her

reasonable financial needs. But she indicated that this figure did

not include husband’s payment of the mortgage, utilities, and other

living expenses.

¶ 32 Thus, wife’s expenditures during the time for which the court

awarded retroactive temporary maintenance were less than $12,000

per month. While the court was not limited to an award that only

satisfied wife’s basic needs, see Yates, 148 P.3d at 313, it provided

no explanation why $12,000 per month was appropriate for wife.

The court’s findings, instead, focused on the parties’ lavish lifestyle

16
during the marriage, but even then, the court made no

determination that such a lifestyle supported the amount of

maintenance awarded or that such an award met wife’s reasonable

needs. Cf. Thornhill, 232 P.3d at 789 (“[T]he parties’ standard of

living during marriage is . . . an appropriate . . . starting point for

the trial court’s determination of a particular spouse’s reasonable

needs . . . .”) (emphasis added). We therefore lack a clear

understanding of the basis of the court’s award of $12,000 per

month in retroactive temporary maintenance and are unable to

determine whether this amount was appropriate to meet wife’s

reasonable financial needs. See § 14-10-114(3)(a)(I)(D), (3)(c)(I),

(3)(e), (4)(a)(I), (4)(a)(III); see also Gibbs, ¶ 9.

¶ 33 Second, the court did not make findings related to husband’s

payment of the shared expenses and debts or otherwise recognize

the statute’s requirement that it must consider additional factors

specific to the determination of temporary maintenance.

§ 14-10-114(4)(a)(III). We therefore are unable to determine whether

the court accounted for husband’s undisputed payment of the

mortgage, utilities, and other shared living expenses during the

17
time in which the court ordered retroactive temporary maintenance.

See Gibbs, ¶ 9.

¶ 34 For these reasons, we reverse the district court’s retroactive

temporary maintenance order and remand for additional findings.

On remand, the court must follow the procedure in subsections (3)

and (4) of section 14-10-114, make the required

findings — including regarding wife’s reasonable financial

needs — and consider husband’s payment of family expenses and

debts and any other factors it deems relevant in determining

retroactive temporary maintenance. The findings entered on

remand must be sufficient for us to conclude that it considered the

relevant factors and to determine the basis for the court’s

maintenance award. See Wright, ¶ 23; see also Gibbs, ¶ 9.

VI. Conclusion

¶ 35 We reverse the district court’s award of retroactive temporary

maintenance and remand the case for the court to make additional

findings in accordance with section 14-10-114(3) and (4).

JUDGE WELLING and JUDGE BROWN concur.

18