Marriage of Cruickshank

24CA0432 Marriage of Cruickshank 08-28-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0432
Douglas County District Court No. 20DR30744
Honorable Benjamin Todd Figa, Judge

In re the Marriage of

Asia Cruickshank,

Appellant,

and

Richard Cruickshank,

Appellee.

JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS

Division VI
Opinion by JUDGE SULLIVAN
Tow and Yun, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced August 28, 2025

Cox Baker Page & Bailey, LLC, James S. Bailey, Alexandra K. Wetzler, Lone
Tree, Colorado, for Appellant

Aitken Law, LLC, Sharlene J. Aitken, Denver, Colorado, for Appellee
¶1 In this dissolution of marriage proceeding, Asia Cruickshank

(wife) appeals those portions of the district court’s permanent

orders concerning maintenance and certain tax overpayments

credited to Richard Cruickshank (husband). We reverse on those

two narrow issues and remand for additional proceedings.

I. Background

¶2 The parties married in 2001. In 2020, wife petitioned to

dissolve the marriage. After a two-day evidentiary hearing in 2023,

the district court dissolved the parties’ marriage and entered

permanent orders awarding husband 51.5% and wife 48.5% of the

marital estate, which totaled more than $10 million.

¶3 During a portion of their marriage, both husband and wife

received income from a company husband cofounded in 1995, C&R

Industries, although wife didn’t perform any services for the

company. C&R Industries eventually terminated wife in November

2022 while the dissolution case was ongoing.

¶4 During wife’s tenure with C&R Industries, the company

withdrew funds from wife’s income to pay estimated taxes in excess

of what she owed. For reasons that aren’t entirely clear, at least

1
some of these overpayments were credited by taxing authorities to

husband’s social security number rather than wife’s.

¶5 At the permanent orders hearing, husband’s daughter from a

prior relationship, who served as president of C&R Industries,

testified that she was aware of a “tax issue” involving wife’s

withholdings and was working with the company’s CPA to resolve it.

For his part, husband generally denied knowing anything about the

specifics of wife’s tax situation or the tax overpayments.

¶6 In its oral ruling, the district court found that the tax

overpayments allegedly credited to husband weren’t marital

property subject to equitable division. The court also found that

the overpayments, if they existed, had a value of zero.

¶7 In equitably dividing the marital estate, the court awarded wife

the vast majority of the parties’ liquid assets, totaling approximately

$1.2 million, while awarding husband only $15,000. At the same

time, however, the court also allocated all $509,750 of the parties’

debt (including nearly $400,000 in tax debt) exclusively to wife. The

court also declined to award wife maintenance.

¶8 On appeal, wife contends that the district court erred by

(1) denying her maintenance request and (2) determining that the

2
tax overpayments had no value and weren’t marital property

subject to equitable division.

II. Tax Overpayments

¶9 Because we find it dispositive, we first address wife’s

contention regarding the tax overpayments. We agree with wife that

the district court erred by declining to equitably divide the

overpayments.

A. Standard of Review

¶ 10 We review a district court’s equitable division of marital

property for an abuse of discretion. In re Marriage of Cardona, 2014

CO 3, ¶ 9. A court abuses its discretion when its decision is

manifestly arbitrary, unreasonable, or unfair, or when it

misconstrues or misapplies the law. In re Marriage of Fabos, 2022

COA 66, ¶ 16.

¶ 11 But whether an asset constitutes marital property is a mixed

question of fact and law. Cardona, ¶ 9. We defer to the district

court’s factual findings unless they are clearly erroneous but review

purely legal issues de novo. See id.; In re Marriage of Krejci, 2013

COA 6, ¶ 23. We won’t disturb the district court’s valuation of an

3
asset if sufficient evidence supports its determination. In re

Marriage of Van Genderen, 720 P.2d 593, 595 (Colo. App. 1985).

B. Applicable Law

¶ 12 The disposition of marital property in a dissolution proceeding

is governed by section 14-10-113, C.R.S. 2025. The process of

determining whether an interest is marital property subject to

equitable division involves two steps: first, the district court must

determine whether an interest constitutes “property”; if so, the

court must then determine whether the property is marital or

separate. In re Balanson, 25 P.3d 28, 35 (Colo. 2001).

¶ 13 Beginning with step one, the definition of “property” is

“broadly inclusive.” Id. It “includes ‘everything that has an

exchangeable value or which goes to make up wealth or estate.’” Id.

(quoting Graham v. Graham, 574 P.2d 75, 76 (Colo. 1978)).

Whether an interest qualifies as property for purposes of a

dissolution proceeding turns, in part, on whether one or both

spouses have an enforceable right to receive the claimed benefit. Id.

at 39. By contrast, “interests that are merely speculative are mere

expectancies.” Id. at 35.

4
¶ 14 If a court determines that an interest is property, it proceeds

to step two to determine whether the property is marital or separate

for purposes of dividing the marital estate. Id. “Marital property”

encompasses “all property acquired by either spouse subsequent to

the marriage,” except for four statutory exceptions not relevant

here. § 14-10-113(2). Thus, all property acquired during a

marriage is generally presumed to be marital property. § 14-10-

113(3); see Balanson, 25 P.3d at 35-36.

¶ 15 If the court deems property marital, it must value the property

to achieve an equitable division. Balanson, 25 P.3d at 36. The

court considers all relevant factors when arriving at an equitable

distribution of marital property, including, among others, the

economic circumstances of each spouse. § 14-10-113(1)(c);

Balanson, 25 P.3d at 35. Marital property should be valued as of

the date of the decree or the date of the hearing on disposition of

property if that hearing precedes the date of the decree. Balanson,

25 P.3d at 35. If the court can’t reasonably ascertain the value of

certain marital property at the time of dissolution, the court should

instead consider the spouse’s right to the property as an economic

5
circumstance of the parties under section 14-10-113(1)(c). See

Cardona, ¶¶ 14, 33.

C. Analysis

¶ 16 Wife asserts that the district court should have characterized

the tax overpayments withheld from her income from C&R

Industries but credited to husband’s social security number as

marital property that was subject to equitable division. Wife also

argues that, if the court couldn’t ascertain the overpayments’ value,

it should have considered the overpayments as an economic

circumstance of husband under section 14-10-113(1)(c). Husband

counters that (1) the district court correctly found that the

overpayments weren’t marital property; and (2) even if the

overpayments could be considered marital, they amount to “mere

speculative interests.”

¶ 17 As we read the district court’s oral ruling, the court

determined that the tax overpayments weren’t marital property

subject to equitable division for two reasons: (1) the evidence didn’t

permit the court to “find or affix a specific dollar amount” to the

overpayments; and (2) the funds, “if there is a withholding,” were in

the “possession of the Department of the Treasury” and therefore

6
didn’t qualify as a “marital asset.” The court then assigned a value

of zero to the overpayments.

¶ 18 For three reasons, we conclude that the district court erred by

determining that the overpayments weren’t marital property subject

to equitable division.

¶ 19 First, contrary to husband’s argument, the tax overpayments

constituted property, not “mere speculative interests.” Subject to

certain setoffs, a person who overpays their tax liability is generally

entitled to a credit or refund of the overpayment amount. See 26

U.S.C. § 6402(a). Thus, depending on who made the overpayment,

at least one spouse had an enforceable right to the overpayment as

either a refund or a tax credit against future liability. See Wagner v.

Duffy, 700 F. Supp. 935, 942 (N.D. Ill. 1988) (“There can be little

doubt that a citizen has a property interest in his or her tax refund,

which is in reality withheld wages.”); see also 1 Brett R. Turner,

Equitable Distribution of Property § 5:9, Westlaw (database updated

Dec. 2024) (recognizing that the right to receive a tax refund and

the right to a tax credit against future liability are both treated as

property).

7
¶ 20 Second, the tax overpayments constituted marital property.

Absent exceptions not relevant here, all property acquired by either

spouse during the marriage is presumed to be marital property.

§ 14-10-113(3); Balanson, 25 P.3d at 36. No dispute exists that the

tax overpayments in this case were made during the parties’

marriage.

¶ 21 We aren’t persuaded otherwise by husband’s argument that

the government’s possession of the overpayments somehow

changed their status as marital property. Physical possession by a

spouse isn’t required for an asset to qualify as marital property

subject to equitable division. See, e.g., In re Marriage of Grubb, 745

P.2d 661, 665 (Colo. 1987) (spouse’s interest in a vested but

unmatured employer-supported pension plan constituted marital

property); accord Allen v. Allen, 607 S.E.2d 331, 335 (N.C. Ct. App.

2005) (explaining that (1) a tax refund constituted marital property

“when the right to receive those funds was acquired during the

marriage” and (2) the parties’ decision to “defer receipt” of the

refund didn’t change its character). Rather, the key determinant is

whether one of the spouses has an enforceable right to receive the

8
asset and whether that right was acquired during the marriage.

See § 14-10-113(2); Cardona, ¶ 14.

¶ 22 Third, even if the district court determined in the alternative

that the tax overpayments qualified as property and were part of the

marital estate, it nonetheless erred by assigning them a value of

zero. True, a trial court has discretion in valuing marital property,

and the parties must present sufficient evidence for the court to

make a reasonable valuation. Krejci, ¶ 23. But here, wife testified

about the overpayments and submitted, among other things,

correspondence from the Internal Revenue Service showing the

federal overpayment amounts for tax years 2019 and 2020. The

district court didn’t find that wife’s evidence lacked credibility or

otherwise explain why the evidence was insufficient for it to value

the overpayments. See In re Marriage of Wright, 2020 COA 11, ¶ 20

(trial court must make sufficiently explicit findings to give the

appellate court a clear understanding of the basis for its order).

¶ 23 Moreover, husband didn’t present competing evidence of

value. To the contrary, one of his witnesses — his daughter, the

president of C&R Industries — acknowledged that the company had

a “tax issue” with appropriately crediting wife’s withholdings and

9
was attempting to get it “sorted out.” On appeal, husband says that

the evidence of the overpayments’ value was “conflicting” but

doesn’t argue that the overpayments were worthless.

¶ 24 Accordingly, because no evidence suggested that the

overpayments were worthless, we conclude that the district court

clearly erred by assigning them a value of zero. Krejci, ¶ 23.

¶ 25 Because the district court also erred by determining in the

alternative that the overpayments weren’t marital property, we

reverse and remand for additional findings. On remand, the court

must value the tax overpayments and equitably divide them in

accordance with section 14-10-113. If the court determines that it

can’t reasonably ascertain the value of the overpayments, the court

must instead consider the overpayments as an economic

10
circumstance of the parties under section 14-10-113(1)(c).1 See

Cardona, ¶¶ 14, 33; In re Marriage of Lafaye, 89 P.3d 455, 461

(Colo. App. 2003). Regardless of which approach the court takes,

the court must make sufficiently explicit findings of fact to give a

reviewing court a clear understanding of the basis for its order. See

Wright, ¶ 20.

III. Maintenance

¶ 26 Awards of spousal maintenance “flow from” the court’s

property division. In re Marriage of de Koning, 2016 CO 2, ¶ 26.

Because these two issues are “interdependent,” a trial court must

reevaluate maintenance when it is required to revisit a property

division. Id. Thus, we also set aside the district court’s decision

declining to award wife maintenance and remand the case for

1 We reject husband’s argument that the district court did consider

the tax overpayments as part of husband’s economic
circumstances. The court’s discussion of economic circumstances
was limited to (1) the parties’ available liquid assets to meet their
living expenses, legal costs, and family needs; (2) whether wife
should remain in the marital home with the parties’ children;
(3) husband’s alleged dissipation of marital assets to support his
separate family in Thailand; and (4) the parties’ income potential,
including wife’s inability to rely on C&R Industries for future
income. The tax overpayments didn’t factor into the court’s
economic circumstances analysis.

11
reconsideration in light of the court’s updated property division.

See LaFleur v. Pyfer, 2021 CO 3, ¶ 66. On remand, the district

court must follow the process laid out in section 14-10-114(3),

C.R.S. 2025, for evaluating a maintenance request, including

making necessary findings of fact that are sufficiently explicit to

give a reviewing court a clear understanding of the basis for its

order. See Wright, ¶¶ 13-20.

¶ 27 At this stage, we express no opinion on the merits of wife’s

maintenance request.

IV. Appellate Attorney Fees

¶ 28 Wife requests her appellate attorney fees under section 14-10-

119, C.R.S. 2025, asserting that the parties’ disproportionate

financial circumstances necessitate an award of fees to equalize

their positions. Because the district court is better equipped to

address the factual issues associated with this request, we direct it

to resolve wife’s section 14-10-119 request for appellate attorney

fees on remand. See In re Marriage of Kann, 2017 COA 94,

¶ 84; see also C.A.R. 39.1.

¶ 29 We reject husband’s argument that wife didn’t comply with

C.A.R. 39.1 by failing to state a factual basis for her request. As

12
wife points out in reply, her opening brief grounded her request in

the “financial disparity between the parties” and their

“disproportionate economic circumstances.” When coupled with the

opening brief’s earlier citations to the record illustrating the parties’

relative economic circumstances, we are able to adequately glean

the factual basis for wife’s request.

V. Disposition

¶ 30 We reverse those portions of the judgment involving the tax

overpayments and maintenance, and we remand the case to the

district court for additional proceedings consistent with this

opinion.

JUDGE TOW and JUDGE YUN concur.

13