Marriage of Martinez

24CA0162 Marriage of Martinez 01-23-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0162
Pueblo County District Court No. 22DR30157
Honorable Michelle Chostner, Judge

In re the Marriage of

Alonso J. Martinez,

Appellant,

and

Theresa A. Martinez,

Appellee.

JUDGMENT AFFIRMED

Division III
Opinion by JUDGE DUNN
Tow and Taubman*, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced January 23, 2025

Barrow Brown Carrington, PLLC, Dorothy Walsh Ripka, Denver, Colorado, for
Appellant

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

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2024.
¶1 In this dissolution of marriage case between Alonso J.

Martinez (husband) and Theresa A. Martinez (wife), husband

appeals the district court’s judgment that divided their marital

estate, determined maintenance, and declined his request for

attorney fees and costs. We affirm.

I. Permanent Orders

¶2 The parties were married for twenty-two years. In 2023, the

district court dissolved the marriage and entered permanent orders.

¶3 In doing so, the court divided the parties’ $620,000 marital

estate by allocating to husband about $340,000 of the marital

equity and wife the remaining $280,000.1

Wife Husband

Marital Home $186,459 $186,459

Reimbursement for $0 $9,500
Joint Account
Withdrawal
Vehicles $11,013 $36,466

Bank Accounts $5,949 $2,119

Personal Property $0 $49,292

1 The court amended its allocation of the marital estate in a post-

trial order, and these values represent the court’s amended
permanent orders.

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Horse $1,500 $0

Public Employees’ $75,857 $75,857
Retirement
Association (PERA)
Accounts
403(b) Retirement $37,026 $0
Account
IRS Debt $10,980 $10,980

Other Debt $26,394 $8,447

TOTAL $280,430 $340,266

¶4 The court then directed wife to pay husband maintenance in

the amount of $340 per month for a term of four years. And it

declined to award husband attorney fees and costs under section

14-10-119, C.R.S. 2024.

II. Property Division

¶5 Husband contends that the district court’s division of the

marital estate was inequitable. He argues that the court erred by

(1) allocating to him all the parties’ personal property, other than

vehicles, a horse, and retirement accounts; (2) determining that the

value of that personal property was $49,292; and (3) not allocating

to him a portion of wife’s 403(b) retirement account. We consider

and reject his contentions.

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A. Governing Legal Standards

¶6 The court has great latitude to equitably divide the marital

estate in such proportions as it deems just based on the facts and

circumstances of each case. See § 14-10-113(1), C.R.S. 2024; In re

Marriage of Medeiros, 2023 COA 42M, ¶ 28. “The key to an

equitable distribution is fairness . . . .” In re Marriage of Gallo, 752

P.2d 47, 55 (Colo. 1988). We will not disturb a court’s property

division absent an abuse of discretion, which occurs only when the

court’s decision is manifestly arbitrary, unreasonable, or unfair, or

when it misapplies the law. Medeiros, ¶ 28.

¶7 When dividing the marital estate, the court must also

determine the approximate current value of the marital property.

See In re Marriage of Wright, 2020 COA 11, ¶ 4. In doing so, the

court may select one party’s valuation over that of the other party,

or it may make its own valuation when it is reasonable in light of

the evidence as a whole. Medeiros, ¶ 41. It is a party’s duty to

present the court with the requisite information to allow it to make

a sufficient valuation, and the party’s failure to provide that

information does not provide it with grounds for reversal. See In re

Marriage of Rodrick, 176 P.3d 806, 815 (Colo. App. 2007). We will

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uphold the court’s valuation when it has record support. In re

Marriage of Schmedeman, 190 P.3d 788, 790 (Colo. App. 2008).

B. Personal Property Allocation

¶8 Husband argues that when the court allocated the personal

property, it did not consider the additional burden and the costs

associated with obtaining the personal property’s equity, which

“artificially inflated the value of [his] portion of the marital estate”

and, in turn, reduced the court’s allocation of other more desirable

marital assets to him. We are unpersuaded.

¶9 The parties agreed to retain Steve Cardinelli to appraise about

220 items of their personal property. Cardinelli valued husband’s

property at $22,054 and wife’s property at $27,738.

¶ 10 Though neither party disputed the valuations, they disagreed

on the allocation of these assets. Husband argued that each party

should keep the personal property in their possession (except for a

few additional items he requested from wife). Wife, however, argued

that husband already took all the “good” items and that he should

be allocated all the personal property. And she argued that he

could use the equity from those items to help offset his request for

financial assistance.

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¶ 11 After considering the parties’ competing requests, and in light

of the court’s allocation of other marital assets, the court allocated

all the personal property to husband, which it valued at $49,292.

In the event husband didn’t want some or all of the personal

property, the court ordered the property to be sold with husband to

receive the sale proceeds.

¶ 12 The court’s allocation of personal property was one

determination, among others, it made to effectuate an overall

disproportionate allocation of marital property in husband’s favor.

See § 14-10-113(1); Medeiros, ¶ 28. While husband may not have

wanted all of the personal property, the court weighed the relevant

factors and allocated these marital assets within its discretion

based on the facts and circumstances of the case. See In re

Marriage of Hunt, 909 P.2d 525, 538 (Colo. 1995) (“[A]n appellate

court must not disturb the delicate balance achieved by the trial

court in division of [marital] property . . . unless there has been a

clear abuse of discretion.”). That allocation is not manifestly

unreasonably or arbitrary.

¶ 13 Husband now says that he will not receive the true value of

the property — making the allocation unfair — because he will bear

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the burden and cost of selling the property. But husband did not

raise this issue in the district court; he did not present any evidence

concerning potential costs or burdens related to the sale of the

personal property or the effect on the remaining equity; and he did

not argue that the court must consider such circumstances in its

allocation. See Schmedeman, 190 P.3d at 790; Rodrick, 176 P.3d at

815. Because husband did not raise this issue at the permanent

orders hearing, we will not consider it now. See In re Marriage of

Crouch, 2021 COA 3, ¶ 13 (declining to address an issue raised for

the first time on appeal); see also Briargate at Seventeenth Ave.

Owners Ass’n v. Nelson, 2021 COA 78M, ¶ 66 (“Arguments made . .

. for the first time in a post-trial motion are too late and . . . are

deemed waived for purposes of appeal.”).

¶ 14 Thus, the court acted within its discretion to allocate the

personal property to husband.

C. Personal Property Value

¶ 15 Husband also contends that the district court erred by double

counting items when it found that the value of personal property

was $49,292. He argues that the court relied on Cardinelli’s

appraisal to assign this value to personal property but that this

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appraisal included assets that the court separately allocated in its

permanent orders. We discern no reversible error.

¶ 16 Before the permanent orders hearing, the parties executed a

memorandum of understanding (MOU), in which they agreed that

wife would receive a Sundowner horse trailer valued at $11,000 and

a manure spreader valued at $127, and that husband would receive

a Champion boat valued at $10,500 and two homemade trailers

collectively worth $900. They also agreed that the value of a Honda

ATV was $1,600 and subject to the court’s allocation. The court

adopted the MOU and allocated the assets in accordance with the

MOU. The court also allocated the Honda ATV to husband but did

not specify its value. Then, the court allocated to husband the

personal property valued at $49,292, which was almost identical to

Cardinelli’s appraised value.2

¶ 17 Cardinelli’s appraisal listed a “Champion Boat” worth $10,500,

a “Homemade Trailer” worth $600, a “Trailer” worth $300, a

“Millcreek Spreader” worth $127, a “Honda 4 Wheeler” worth

2 The court’s personal property value was about $500 less than

Cardinelli’s total appraised value. Because husband does not raise
this slight variation as an issue on appeal, we do not address it.

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$1,600, and a “Horse Trailer” worth $11,000. Husband argues that

these were the same items separately allocated by the court and

addressed in the MOU. Even if we assume that the court’s

allocation accounted for these assets twice, we will disregard errors

that affect only a small percentage of the overall marital estate. In

re Marriage of Balanson, 25 P.3d 28, 36 (Colo. 2001); In re Marriage

of Zappanti, 80 P.3d 889, 893 (Colo. App. 2003); see C.A.R. 35(c).

The value of the Champion Boat, homemade trailers, Sundowner

horse trailer, manure spreader, and Honda ATV totaled $24,127.

That amounts to less than 4% of the approximately $620,000

marital estate. An error affecting such a small percentage of the

overall marital estate does not warrant reversal. See In re Marriage

of Powell, 220 P.3d 952, 957, 959 (Colo. App. 2009) (upholding the

district court’s refusal to use an expert’s valuation of property that

would have increased the marital estate by only 6.6%, in part,

because it did not materially impact the property division); see also

Balanson, 25 P.3d at 38 (suggesting that an error affecting less than

2% of the overall marital estate would be harmless).

¶ 18 We therefore conclude that any error in allocating personal

property to husband worth $49,292 was harmless.

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D. Retirement Accounts

¶ 19 We also reject husband’s contention that the district court

abused its discretion by declining to allocate to him a portion of

wife’s 403(b) retirement account.

¶ 20 Husband argues that because the 403(b) retirement account

was marital property, he was entitled to a portion of it. But a court

is not required to divide each individual marital asset between the

parties. Rather, it’s required to equitably divide the entire marital

estate. See § 14-10-113(1); Medeiros, ¶ 28. And when dividing the

entire marital estate, the court allocated to husband other marital

assets, from which he received over $340,000 of the marital equity.

Given those allocations, the court determined that it was

appropriate for wife to retain the 403(b) retirement account (worth

approximately $37,000), which allowed her to receive approximately

$280,000 of the marital equity. While husband wanted a different

allocation, the court’s overall allocation was equitable and within its

discretion. See Medeiros, ¶ 28; see also Hunt, 909 P.2d at 538.

¶ 21 Husband also generally asserts that wife didn’t properly

disclose the 403(b) retirement account. But the record shows that,

at the hearing, husband knew of the account, did not dispute its

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value, and addressed its allocation. Because husband doesn’t

develop any legal or factual argument to establish how the

purported inadequacy impacted the court’s allocation or otherwise

supports reversal, we decline to further address this undeveloped

assertion. See In re Parental Responsibilities Concerning S.Z.S.,

2022 COA 105, ¶ 29.

¶ 22 And to the extent husband now attempts to challenge the

value of the 403(b) retirement account, arguing that wife failed to

provide an updated balance for the account at the time of the

hearing, husband did not challenge this value before the district

court and raises it for the first time in his reply brief. We therefore

decline to address it. See id. at ¶ 24; see also Crouch, ¶ 13.

¶ 23 Finally, husband objects that wife presented an outdated

value of her PERA account at the hearing. But he develops no

argument explaining how the absence of an updated account value

affected his substantial rights when the court directed the parties to

equally divide the PERA account based on its value on the date of

the hearing. See S.Z.S., ¶ 29.

¶ 24 We therefore are unpersuaded that the court abused its

discretion by allocating the 403(b) retirement account to wife.

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III. Maintenance

¶ 25 Husband next contends that the district court abused its

discretion by awarding him maintenance of $340 per month for a

term of only four years. We disagree.

A. Governing Legal Standards

¶ 26 When awarding maintenance, the court must determine an

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

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

the advisory guidelines on the amount and term of maintenance.

§ 14-10-114(3)(a)(II)(A), (3)(b). These guidelines are a starting point;

they do not 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 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).

¶ 27 We will uphold the court’s maintenance determination unless

it is shown to be an abuse of discretion. Medieros, ¶ 58.

B. Discussion

¶ 28 When determining maintenance, the court found that

husband’s gross income was $4,967 per month, and it noted the

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substantial equity he received from the marital estate. See § 14-10-

114(3)(a)(I)(A)-(C), (3)(c)(I), (IV). The court found that wife’s gross

income was $8,583 per month. See § 14-10-114(3)(a)(I)(A), (3)(c)(II).

It acknowledged that, in addition to this income, wife also owned a

consulting business near the end of the marriage that had provided

the parties with additional income, but it found that wife had to

close that business. See § 14-10-114(3)(a)(I)(A), (C), (3)(c)(II), (III),

(V). The court found that the parties enjoyed a comfortable lifestyle

throughout their marriage, and that due to wife’s recent increased

income, they had lived a more luxurious lifestyle at the end of the

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

¶ 29 The court determined that, based on the parties’ gross

incomes, the guideline amount of maintenance was $340 per

month. See § 14-10-114(3)(b)(I)(C). And it found that given the

length of their marriage (261 months), the guideline term was ten

years. See § 14-10-114(3)(b)(II)(A)-(B).

¶ 30 Then, after considering the relevant circumstances, the court

concluded that $340 per month for a four-year maintenance term

was fair and equitable. The court noted the parties’ ages in relation

to retirement (husband was forty-seven and wife was fifty-two) and

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its allocation of the PERA accounts. See § 14-10-114(3)(c)(I), (II),

(IV), (IX). The court also explained that husband’s portion of the

marital estate, in addition to his other financial resources, would

allow him to provide for his reasonable financial needs moving

forward. See § 14-10-114(3)(c)(I), (IV). The court further found that

the parties had reliable employment and that they both had made

substantial contributions to the marriage. See § 14-10-114(3)(c)(V),

(X). And the court recognized that wife had paid husband

temporary maintenance for almost a year during the dissolution

case, she was allocated a larger share of the marital debt, and,

historically, she earned an income only slightly more than that of

husband. See § 14-10-114(3)(c)(II), (IV), (VI), (VIII).

¶ 31 Husband argues that the court did not consider evidence and

circumstances that could have supported a maintenance

determination more favorable to him. He highlights the parties’

higher standard of living toward the end of the marriage, wife’s

historically higher income, his non-economic contributions to the

marriage, and his medical conditions that lessened his work

capacity. But, contrary to his claims, the court considered the

totality of circumstances, including many of those highlighted by

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husband, and concluded that four years was a fair and equitable

maintenance term.

¶ 32 Because the record supports the court’s findings, we will not

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.”). Wife testified that their

standard of living had historically been modest and that while they

recently enjoyed a higher standard of living due to the additional

income from her consulting business, she could no longer earn that

additional income. And she said that, during the marriage, the

parties’ incomes were relatively equal and that there was only “a

two or three thousand dollar a year difference” between them.

Husband also confirmed that he earned almost $5,000 per month

and had been employed at the same organization for fifteen years.

Moreover, the court allocated to husband a greater share of the

marital assets and a lower portion of the marital debt.

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¶ 33 To the extent the court may not have directly addressed any

circumstance highlighted by husband, the court did not need to

make explicit findings on every factor. See Wright, ¶ 20; see also In

re Marriage of Collins, 2023 COA 116M, ¶ 21 (recognizing that we

may presume that the court considered all the evidence presented).

The court’s findings discussed the factors it found relevant, and

those findings provide a clear understanding of the basis of its

decision. See Wright, ¶ 20.

¶ 34 The court therefore did not abuse its discretion by ordering

wife to pay maintenance in the amount of $340 per month for a

four-year term.

IV. Attorney Fees and Costs

¶ 35 Husband next contends that the district court abused its

discretion by declining to award him attorney fees and costs under

section 14-10-119. We are unpersuaded.

¶ 36 To ensure that a party in a dissolution proceeding does not

suffer undue economic hardship, a court may equitably apportion

attorney fees and costs between parties based on their relative

economic circumstances. Collins, ¶ 49; see § 14-10-119. We will

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not disturb the court’s decision absent a showing that it abused its

discretion. See Collins, ¶ 51.

¶ 37 The court found that even though a gap existed in the parties’

respective incomes, an award of attorney fees and costs was not

necessary or appropriate. The court explained that when

considering the property division (which allocated to him over

$340,000) and the parties’ financial resources, including the

maintenance award, there was not a significant financial disparity

between the parties and husband could pay his attorney fees.

¶ 38 The record supports the court’s findings concerning the

parties’ relatively similar financial circumstances. And because we

reject husband’s claims of reversible error concerning the property

division (and maintenance), we necessarily reject his argument that

those errors warrant reconsideration of the court’s denial of

attorney fees and costs.

¶ 39 The court therefore acted within its discretion by declining to

award husband attorney fees and costs.

V. Disposition

¶ 40 The judgment is affirmed.

JUDGE TOW and JUDGE TAUBMAN concur.

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