Marriage of Luetters

23CA0150 Marriage of Luetters 07-25-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA0150

Jefferson County District Court No. 21DR30252

Honorable Lily W. Oeffler, Judge

In re the Marriage of

Byron Luetters,

Appellant,

and

Michele Luetters n/k/a Michele McGlasson,

Appellee.

JUDGMENT AFFIRMED AND CASE

REMANDED WITH DIRECTIONS

Division I

Opinion by JUDGE J. JONES

Welling and Schock, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced July 25, 2024

Law Office of Dailey & Pratt, LLC, Lisa M. Dailey, Joel M. Pratt, Colorado

Springs, Colorado, for Appellant

Fourth Street Law, LLC, Caroline C. Cooley, Christopher J. Linas, Castle Rock,

Colorado, for Appellee

1

¶ 1 In this dissolution of marriage proceeding involving Byron

Luetters (husband) and Michele Luetters, now known as Michele

McGlasson (wife), husband appeals those portions of the permanent

orders concerning property division and maintenance. We affirm

the judgment and remand the case to the district court to resolve

wife’s request for appellate attorney fees under section 14-10-119,

C.R.S. 2023.

I. Background

¶ 2 The parties married in 1995 and have three children.

¶ 3 After the parties separated in late 2018, wife stayed in the

marital home and husband provided her with financial support.

¶ 4 In 2021, husband petitioned to dissolve the marriage. Around

that time, he reported that he was the chief financial officer (CFO)

for Landmark Management Services, LLC (Landmark), earning

approximately $254,000 per year. Wife, for her part, reported that

she was a delivery driver and plasma donor, earning $1,320 per

year.

¶ 5 In January 2022, husband indicated that Landmark, through

no fault of his own, had demoted him and intended to reduce his

yearly income to $197,000. Then, a few months later, Landmark

2

decided to let him go, giving him a severance payout (based on his

former CFO base salary) plus a disbursement for his unused paid

time off (PTO).

1

¶ 6 Beginning on June 9, 2022, the district court held a four-day

evidentiary hearing. The court dissolved the marriage and entered

permanent orders. It divided the marital estate disproportionately

in wife’s favor as follows:

Marital Asset/Debt

Marital

Value

Wife’s

Portion

Husband’s

Portion

Equity in the Marital

Home

$333,628

$333,628

Investment/Retirement

Accounts

$117,052

$117,052

Bank Accounts

$62,774

$45,520

$17,254

Vehicles

$27,276

$18,156

$9,120

Personal Property

$1,900

$1,150

$750

Debts

($77,666)

($3,014)

($74,652)

TOTAL

$464,964

$395,440

$69,524

1

It appears that Landmark didn’t reduce husband’s salary but

rather continued to pay him his CFO salary until he left Landmark.

But the record isn’t entirely clear in this regard.

3

¶ 7 It then ordered husband to pay wife modifiable maintenance of

$3,900 per month for an indefinite term and to pay $10,000 of her

attorney fees under section 14-10-119. Because the parties’

youngest child was eighteen years old, the court didn’t enter any

parental responsibilities orders. On September 23, 2022, the court

entered a dissolution decree and a written judgment tracking its

oral ruling.

¶ 8 The district court subsequently denied husband’s C.R.C.P. 59

post-trial motion, which sought, among other things,

reconsideration of the unequal property division. In doing so, the

court further explained and clarified its reasoning behind the

property division.

II. Property Division

A. Standard of Review

¶ 9 A district court has great latitude to make an equitable

property division based on the facts and circumstances of each

case, and we won’t disturb its decision absent a showing of an

abuse of its discretion. In re Marriage of Collins, 2023 COA 116M,

¶ 19; see § 14-10-113(1), C.R.S. 2023. A court abuses its discretion

when its decision is manifestly arbitrary, unreasonable, or unfair,

4

or when it misconstrues or misapplies the law. In re Marriage of

Fabos, 2022 COA 66, ¶ 16.

B. Relevant Law

¶ 10 “The property division must be equitable, but not necessarily

equal.” In re Marriage of Wright, 2020 COA 11, ¶ 3; see In re

Marriage of Gallo, 752 P.2d 47, 55 (Colo. 1988) (“The key to an

equitable distribution is fairness, not mathematical precision.”). In

making an equitable division, the district court must consider all

relevant factors, including, among other things, each spouse’s

contribution to the acquisition of the marital property, including the

contribution of a spouse as homemaker, and each spouse’s

economic circumstances. § 14-10-113(1)(a), (c); In re Marriage of

Evans, 2021 COA 141, ¶ 50.

¶ 11 The weighing of these factors is within the district court’s

sound discretion. In re Marriage of Powell, 220 P.3d 952, 959 (Colo.

App. 2009). The court doesn’t need to make specific findings as to

each factor so long as its findings allow us to determine that its

decision is supported by competent evidence. Collins, ¶ 19. And we

may look to the court’s oral ruling as supplementing its written

order. See In re Marriage of Thorburn, 2022 COA 80, ¶ 9 n.1.

5

C. Discussion

¶ 12 Husband contends that the disproportionate property division

cannot stand. To get there, he argues that the district court didn’t

consider the factors in section 14-10-113(1), make adequate

findings, or explain its reasoning. We aren’t persuaded by these

arguments.

¶ 13 In dividing the marital estate, the district court made the

following findings:

• This was a long-term marriage lasting twenty-six years.

See § 14-10-113(1) (property division requires

consideration of all relevant factors).

• Husband was the sole source of income for most, if not

all, of the marriage. See § 14-10-113(1)(a).

• During the marriage, wife provided little financially but

contributed as a full-time homemaker, taking care of the

children and maintaining the household. See id.

• Although currently unemployed, husband could a earn a

minimum of $220,000 per year. See § 14-10-113(1)(c).

• In fact, husband confidently represented that he could

find a position within the same field earning a salary

6

similar to that he had earned as CFO for Landmark. See

§ 14-10-113(1).

• In 2020, husband earned roughly $326,536, which

included a bonus. See id.

• Upon leaving Landmark, husband would receive eight

weeks of severance pay at his former CFO salary as well

as a disbursement for his unused PTO. See § 14-10-

113(1)(c).

• Wife hadn’t “worked outside the home in years and

therefore [had] not built up a resume and work history.”

See § 14-10-113(1).

• Wife received a high school diploma and was taking a few

college classes. See id.

• Wife was diagnosed with a vision impairment in 2021

and granted accommodations at her college. See id.

• Wife will begin work at a much lower salary than

husband given her limited employment history and

education, whereas husband “worked throughout the

marriage thereby building a significant career and is able

7

to earn a salary many times higher than wife.” See § 14-

10-113(1)(c).

• Wife had the potential to earn $40,726 per year. See id.

• The bulk of the debt should be allocated to husband

because he had “access more immediately to payments of

cash via severance and subsequent employment.” See id.

• There were minimal assets to divide possibly due to the

parties’ decision to spend $500,000 of husband’s

earnings on the children’s private school, which was no

longer an expense for him. See id.

¶ 14 The district court’s factual findings, which enjoy ample record

support, demonstrate that it considered all relevant factors. See

§ 14-10-113(1)(a), (c); see also Evans, ¶ 50. And those findings are

sufficient to provide us with a clear understanding of its reasons for

the property division. See Collins, ¶ 19. So, contrary to husband’s

argument, the court didn’t err in this regard.

¶ 15 Nor are we persuaded by husband’s related argument that the

district court erred because it improperly considered the vast

disparity in the parties’ future earning capabilities. Our supreme

court has declared it “obvious that a spouse’s earning capabilities

8

are properly part of the ‘economic circumstances’ the court must

consider in compliance with section 14-10-113(1).” See In re

Marriage of Faulkner, 652 P.2d 572, 574 (Colo. 1982) (“[I]t does not

follow that the court may not consider the earning capabilities of

one spouse when determining a fair property distribution.”); see

also In re Marriage of Morehouse, 121 P.3d 264, 265, 266-67 (Colo.

App. 2005) (in achieving an equitable division of property, the

district court may consider anticipated social security benefits as a

relevant economic circumstance); Wright, ¶ 10 (district court didn’t

abuse its discretion in dividing property where the husband’s

income was more than four times the wife’s because it could

reasonably have concluded that he had the financial means with

which to pay more of the marital debts).

¶ 16 And to the extent that husband asks us to reweigh the

evidence or the section 14-10-113(1) factors in his favor and

substitute our judgment for that of the district court, we decline the

invitation. See In re Marriage of Nelson, 2012 COA 205, ¶ 35 (When

reviewing for an abuse of discretion, even where “there is evidence

in the record that could have supported a different conclusion, we

will not substitute our judgment for that of the district court.”); see

9

also Thorburn, ¶ 49 (it is for the district court, not the reviewing

court, to determine witness credibility and the weight, probative

force, and sufficiency of the evidence, including the inferences and

conclusions to be drawn therefrom); Powell, 220 P.3d at 959.

¶ 17 Husband also argues that the property division should be

reversed given that the district court didn’t consider that the

retirement accounts allocated to him were illiquid. According to

him, “he received a bit of retirement and more debt and obligations

than he could meet.” But the court specifically addressed that

issue, finding that the parties had very few marital assets to divide

and that husband could manage the marital debts with his

severance payout, PTO disbursement, and subsequent employment.

We observe that husband was also awarded several bank accounts

containing more than $17,000. And he doesn’t point us to where

he presented evidence regarding the potential lost value incurred by

liquidating his retirement funds. In all, we can’t say that the court

abused its discretion on this point. See In re Marriage of Davis, 618

P.2d 692, 694 (Colo. App. 1980) (district court didn’t abuse its

discretion when it allocated to the wife all the parties’ cash and

10

liquid assets, leaving the husband with practically no marketable or

liquid assets while saddling him extensive debts).

¶ 18 We understand husband to maintain that the district court

conflated property division and maintenance when it “justified” its

unequal property division with wife’s “need for support.” The record

belies this claim. After considering the relevant factors under

section 14-10-113(1) and making express factual findings, the court

concluded that the property division was “equitable within the

context of the lengthy marriage, the disparity in education, job

history, and earning potential along with immediate income

disparities.” Thus, the court didn’t rely on wife’s need for support

or maintenance when it divided the parties’ property.

¶ 19 Because the district court’s decision to divide the marital

property equitably, albeit disproportionately in wife’s favor, was

within the court’s very broad discretion, we won’t disturb it. See

Collins, ¶ 19.

III. Maintenance

A. Standard of Review

¶ 20 The district court has broad discretion to award maintenance,

if any, that is fair and equitable to both spouses based on the

11

totality of the circumstances. § 14-10-114(3)(e), C.R.S. 2023; see

also In re Marriage of Vittetoe, 2016 COA 71, ¶ 14. We won’t disturb

the court’s award of maintenance absent a showing of an abuse of

that discretion. See In re Marriage of Medeiros, 2023 COA 42M,

¶ 58.

B. Relevant Law

¶ 21 Section 14-10-114(3) sets forth a specific process that a court

must follow when considering a maintenance request. Wright, ¶ 13.

¶ 22 The district court must first make findings regarding each

spouse’s income, the marital property apportioned to each spouse,

the spouses’ financial resources, the spouses’ reasonable financial

needs established during the marriage, and the taxability of the

maintenance awarded. § 14-10-114(3)(a)(I); Wright, ¶¶ 14, 19.

¶ 23 Next, the district court must determine an amount and a term

of maintenance that are fair and equitable to the parties. § 14-10-

114(3)(a)(II); Wright, ¶ 15.

¶ 24 Although the district court generally must also find and

consider the guideline amount and term of maintenance under

sections 14-10-114(3)(b)(I) and (3)(b)(II), those guidelines don’t apply

when, as here, the spouses’ combined annual adjusted gross

12

income exceeds $240,000. § 14-10-114(3.5); In re Marriage of

Herold, 2021 COA 16, ¶ 26. Still, the court isn’t precluded from

considering the guidelines. See § 14-10-114(3.5). In this context,

the court must determine the appropriate amount of maintenance

based on the statutory factors in section 14-10-114(3)(c). See § 14-

10-114(3.5). Those factors include the recipient spouse’s financial

resources and ability to meet her reasonable needs independently;

the payor spouse’s financial needs and ability to meet his

reasonable needs while paying maintenance; the lifestyle during the

marriage; the distribution of marital property; each spouse’s

income, employment, and employability, obtainable through

reasonable diligence and additional training or education; whether

a spouse has historically earned a higher or lower income; the

duration of the marriage; the payment of temporary maintenance;

each spouse’s age and health; significant economic or noneconomic

contribution to the marriage; and any other relevant factor. § 14-

10-114(3)(c)(I)-(X), (XIII).

¶ 25 The district court doesn’t have to make specific factual

findings on each factor so long as its decision gives us a clear

understanding of the basis of its order. See Wright, ¶ 20; see also

13

In re Marriage of Stradtmann, 2021 COA 145, ¶ 32; § 14-10-

114(3)(e) (“The court shall make specific written or oral findings in

support of the amount and term of maintenance awarded pursuant

to this section or an order denying maintenance.”).

¶ 26 And when a marriage exceeds twenty years, like this one, the

district court can award maintenance for an indefinite term. § 14-

10-114(3)(b)(II)(B).

¶ 27 The last step is for the district court to determine whether the

requesting spouse qualifies for maintenance, meaning that she

lacks sufficient property, including marital property awarded, to

provide for her reasonable needs and is unable to support herself

through appropriate employment. See § 14-10-114(3)(a)(II)(C),

(3)(d); Wright, ¶ 16.

C. Discussion

1. Factual Findings and Consideration of the Relevant Factors

¶ 28 Husband contends that the district court abused its discretion

by determining maintenance because it failed to make factual

findings concerning the parties’ financial resources under section

14-10-114(3)(a)(I)(C), wife’s reasonable needs under section 14-10-

14

114(3)(a)(I)(D), and their lifestyle during the marriage under section

14-10-114(3)(c)(III). We disagree.

¶ 29 The district court found that (1) husband and wife had the

potential to earn annual incomes of $220,000 and $40,726,

respectively; (2) from the limited marital estate, wife was allocated

the marital home and husband was allocated the

investment/retirement accounts; (3) wife would be responsible for

mortgage payments, taxes, and expenses on the marital home; (4)

the parties lived a “comfortable lifestyle”; (5) during most of the

marriage, husband was the sole income earner and wife worked as

a homemaker; (6) husband had an established career and would be

able to earn a salary many times higher than wife; (7) wife was

financially disadvantaged given her lack of education and work

experience; (8) wife was currently in college pursuing a bachelor’s

degree; (9) wife was diagnosed with a vision impairment; and (10)

the parties had a long-term marriage.

¶ 30 From those findings and after looking at the guidelines, the

district court ordered husband to pay wife modifiable maintenance

of $3,900 per month for an indefinite term, determining that wife

lacked sufficient income from marital property and employment to

15

meet her reasonable needs and that husband had the ability to pay

the amount of maintenance awarded and still meet his own

reasonable needs.

¶ 31 We conclude that the district court adequately set forth its

factual findings on the parties’ financial resources under 14-10-

114(3)(a)(I)(C). The court found that the marital estate was

essentially limited to the marital home and the parties’

investment/retirement accounts. The court also highlighted the

disparity in the parties’ potential incomes.

¶ 32 As to wife’s reasonable needs under section 14-10-

114(3)(a)(I)(D), the district court expressly found that she would be

solely responsible for all expenses associated with the marital

home, including the mortgage and taxes. And given that the court

said that it adopted the parties’ stipulated exhibits as identified in

their joint trial management certificate, we may presume that it

knew of and considered her other reasonable needs and expenses

as reflected in her sworn financial statement. See In re Marriage of

Udis, 780 P.2d 499, 504 (Colo. 1989); see also In re Marriage of

Salby, 126 P.3d 291, 296 (Colo. App. 2005) (the district court may

rely on parties’ financial affidavits to support its findings).

16

¶ 33 Contrary to husband’s insistence, the district court wasn’t

required to make specific factual findings on the parties’ lifestyle

during the marriage under section 14-10-114(3)(c)(III). See

Stradtmann, ¶ 32. The court nevertheless credited husband’s

testimony that they enjoyed a “comfortable” lifestyle. The court also

said that it “looked at [their] standard of living during the marriage.”

¶ 34 We reject husband’s argument that the district court

“disregarded” the fact that the parties had been separated for

several years before he petitioned for dissolution and that he had

provided wife with consistent financial support throughout the

dissolution proceeding. The court specifically found that he had

provided financial support to her since the parties separated in

2018.

2. Maintenance Amount

¶ 35 Next, husband argues that the district court didn’t sufficiently

explain how it arrived at a monthly maintenance amount of $3,900.

But the evidence shows that wife’s sworn financial statement

represented that she had roughly $6,500 in reasonable expenses

each month. And the court explained that the monthly

maintenance award of $3,900, when added to her potential income

17

of $3,393, would meet her monthly reasonable expenses. Because

we can understand the basis of the court’s decision, we don’t see

any reason to disturb it. See Wright, ¶ 20.

3. Maintenance Term

¶ 36 Husband claims that the district court’s decision to award wife

indefinite or lifetime maintenance isn’t supported by the record, as

wife testified that “she intended to become self-supporting” after

finishing her bachelor’s degree, earning her master’s degree, and

transitioning back into the work force as a therapist. Again, we

aren’t persuaded. As noted above, a court may consider a spouse’s

“employability, obtainable through reasonable diligence and

additional training or education.” See § 14-10-114(3)(c)(V). And a

vocational expert, who assessed wife’s employment prospects,

testified that her educational goals were “unrealistic,” saying that

she would be in her mid-fifties before she meets them, if she ever

does so.

¶ 37 Husband also argues that the district court failed to consider

the parties’ ages. The evidence presented to the court included the

parties’ ages, and we may presume that the court considered this

circumstance. See Udis, 780 P.2d at 504.

18

4. Husband’s Imputed Income

¶ 38 Husband contends that the district court erred first by not

expressly finding him voluntarily unemployed and then also by

imputing to him yearly income of $220,000. We disagree.

¶ 39 In calculating maintenance, income means a party’s actual

gross income if the spouse is fully employed. § 14-10-114(8)(a)(II).

If, however, a spouse is voluntarily unemployed, maintenance is

calculated based on that spouse’s potential income. § 14-10-

114(8)(c)(IV). “‘[P]otential income’ is described as the amount a

party could earn from a full-time job commensurate with the party’s

demonstrated earning ability.” In re Marriage of Tooker, 2019 COA

83, ¶ 26.

¶ 40 The district court has broad discretion in determining income

for maintenance purposes, and whether to impute income to a

spouse is typically a question of fact, the determination of which we

won’t disturb if it has record support. See People v. Martinez, 70

P.3d 474, 480 (Colo. 2003); see also Tooker, ¶ 27.

¶ 41 At the initial permanent orders hearing on May 23, 2022,

husband told the district court that Landmark had recently ended

19

his employment. After the court expressed its frustration about the

last-minute disclosure, husband’s attorney said the following:

[Husband] is not here asking the [c]ourt not to

impute income to him. He understands that

he’s capable of making a certain amount.

What that amount is . . . is in dispute.

However, he’s not here to say I lost my job, so I

shouldn’t have to pay maintenance.

. . . .

[Husband] is not requesting that the [c]ourt

forego [sic] imputing income.

The court eventually continued the hearing to June 9, 2022.

¶ 42 At the June 9 hearing, husband testified that the next day

would be his last day with Landmark. He asserted that he should

be imputed yearly income of $197,000, his “actual salary” in

January 2022. Yet when he was asked what the “minimum

amount” he could earn was, he replied that a yearly salary ranging

between $175,000 and $225,000 was “achievable.” A vocational

expert later testified that husband was “highly employable,” would

not have any difficulty landing a job in his field, and could earn as

much as $275,000 per year. The expert added that husband was

not performing a “valid job search.”

20

¶ 43 While the district court credited the vocational expert’s

opinion, the court determined that it was more appropriate to

impute to husband a yearly income of $220,000. In support, the

court found that husband had “marketable skills” and could find

work in his field given the wide availability of jobs. The court also

emphasized that husband had “expressed directly . . . that he could

find a position with a similar salary.”

¶ 44 Those findings, combined with the evidence in the record,

imply a finding that husband was voluntarily unemployed by

choosing not to earn the full-time income he was capable of

earning. See Nelson, ¶ 41 (implied findings are sufficient); see also

Martinez, 70 P.3d at 480 (“A court may interpret a parent’s lack of

initiative in finding or keeping work as a voluntary refusal to fulfill a

support obligation.”).

¶ 45 And because the record, including husband’s admissions,

supports the amount of income that was imputed to him, we won’t

disturb the court’s ruling. See Martinez, 70 P.3d at 480; see also

Tooker, ¶ 27.

21

IV. Attorney Fees in the District Court

¶ 46 Husband requests that if we reverse the property division, we

instruct the district court on remand to reconsider its 14-10-119

attorney fee award. See In re Marriage of de Koning, 2016 CO 2,

¶ 26 (when a district court is required to revisit property division, it

must also re-evaluate its determination on attorney fees in light of

the updated property division). Given our disposition, we decline to

do so.

V. Appellate Attorney Fees and Costs

¶ 47 Wife asks us to order husband to pay her appellate attorney

fees under section 14-10-119, asserting that the parties’ financial

resources are disparate. We remand her request to the district

court. See In re Marriage of Martin, 2021 COA 101, ¶ 42; see also §

14-10-119; C.A.R. 39.1.

¶ 48 Wife is also entitled to an award of her appellate costs. See

C.A.R. 39(a)(2) (costs are taxed against the appellant if a judgment

is affirmed).

22

VI. Disposition

¶ 49 The judgment is affirmed, and the case is remanded to the

district court to resolve wife’s section 14-10-119 appellate attorney

fees request.

JUDGE WELLING and JUDGE SCHOCK concur.