Marriage of Lyttle

23CA1609 Marriage of Lyttle 07-25-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1609

Eagle County District Court No. 22DR30001

Honorable Rachel Olguin-Fresquez, Judge

In re the Marriage of

Romaine Ronald Lyttle,

Appellant,

and

Marissa Martina Lyttle,

Appellee.

JUDGMENT REVERSED AND CASE

REMANDED WITH DIRECTIONS

Division III

Opinion by JUDGE MOULTRIE

Dunn and Yun, JJ., concur

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

Announced July 25, 2024

Polidori, Franklin, Monahan, & Beattie, LLC, Robin Lutz Beattie, Lakewood,

Colorado, for Appellant

The Burnham Law Firm, P.C., Samuel J. Scheurich, Brian D. Teed, Centennial,

Colorado, for Appellee

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¶ 1 Romaine Ronald Lyttle (husband) appeals portions of the

judgment entered following the dissolution of his marriage to

Marissa Martina Lyttle (wife), specifically the (1) calculations used

by the trial court to determine the maintenance award; (2)

sufficiency of findings regarding whether wife was voluntarily

underemployed for purposes of determining maintenance and child

support; and (3) sufficiency of the findings supporting the

maintenance award.

¶ 2 We reverse the trial court’s judgment regarding maintenance

and child support and remand the case for the trial court to

reconsider those matters consistent with this opinion.

I. Background

¶ 3 The parties were married for fourteen years, during which time

they had three children. The trial court entered a decree dissolving

the parties’ marriage in April 2023 following a bifurcated

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permanent orders hearing.

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The court bifurcated the contested parenting issues and financial

issues. The hearing on allocation of parental responsibilities was

held in January 2023, and the hearing on financial matters was

held in April 2023.

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¶ 4 Before the April 2023 hearing (April hearing), and for the

purpose of calculating child support and maintenance, the parties

stipulated that husband’s annual earning potential was $75,000.

The parties disputed whether wife should pay husband spousal

maintenance, and if so, the amount. The parties also disputed the

amount of wife’s income, and husband asserted that wife was

voluntarily underemployed.

¶ 5 After the April hearing, the trial court entered permanent

orders and found, as relevant here, that

• wife was an anesthesiologist and husband was a

financial professional in the banking industry;

• when the parties had children, husband reduced his

employment to stay home with the children, which

“allow[ed] [w]ife to excel in her medical profession”;

• before the parties’ separation, wife earned up to $55,000

per month;

• wife decreased her workload and suspended her

partnership interest in an anesthesia practice during the

pendency of the divorce proceeding, which in turn

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reduced her monthly income from approximately $55,000

to $20,000-$25,000;

• “[w]ife has suffered some mental health challenges

causing her to reduce the amount of work she is able to

complete but appears to be able to increase her income

when she is ready and willing to do so”;

• a “near equal” division of marital assets was

“appropriate,” and an equitable division of the marital

estate was awarding husband $503,803.50 and wife

$519,378.00 in marital assets;

• husband lacked sufficient property, including marital

property awarded to him, to provide for his reasonable

needs and was unable to support himself through

appropriate employment;

• “[t]he gross income of the parties [was] $375,000/year”;

• husband’s monthly income was $6,250 and wife’s

monthly income was $25,000 for a combined total gross

monthly income of $31,250;

• husband’s monthly expenses totaled $6,705.78, which

left him with a monthly deficit of $455.76;

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• wife’s monthly expenses totaled $24,398, which left her

with a monthly surplus of $602;

• “[h]usband will need maintenance to sustain a similar

lifestyle to that enjoyed during the marriage”;

• “[h]usband has a reasonable financial need [and] [w]ife

can pay a reasonable maintenance [award] to husband”;

and

• “[t]he parties were married for 166 months.”

¶ 6 Based on those findings, the trial court ordered wife to pay

husband a monthly maintenance amount of $73.11 for a term of

eighty-three months. Husband filed a motion for post-trial relief

requesting the court reconsider the maintenance award. Noting

that section 14-10-114(3)(a)(I)(A), C.R.S. 2023, states that spousal

maintenance should be based on “[t]he amount of each party’s

gross income,” husband asserted that the court erred in its

maintenance calculation by deducting certain expenses from the

parties’ gross monthly incomes before determining the maintenance

amount.

¶ 7 Wife objected to the request for reconsideration, arguing that

the court’s deductions were appropriate considerations of

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husband’s reasonable need for maintenance and wife’s ability to

pay a maintenance award, as required by section 14-10-114(3)(c).

¶ 8 The trial court denied husband’s motion for post-trial relief,

noting that the permanent orders “reference the parties’ gross

incomes” and “include[] an analysis of the maintenance factors

found in C.R.S. § 14-10-114.” This appeal followed.

II. Standard of Review

¶ 9 We review maintenance and child support orders for an abuse

of discretion as “the issue of the [parties’] financial resources is

factual in nature,” but we review de novo whether the trial court

applied the correct legal standard to its findings of fact. In re

Marriage of Davis, 252 P.3d 530, 533 (Colo. App. 2011); see also In

re Marriage of Wells, 252 P.3d 1212, 1213 (Colo. App. 2011) (child

support); In re Marriage of Yates, 148 P.3d 304, 313 (Colo. App.

2006) (maintenance).

¶ 10 Whether a party is “voluntarily underemployed” presents a

mixed question of law and fact under section 14–10–114(8)(c)(IV).

People v. Martinez, 70 P.3d 474, 476-77 (Colo. 2003). We defer to

the trial court’s findings of fact if they are supported by the record

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and review its legal conclusions de novo. Id. at 476; see also In re

Marriage of Garrett, 2018 COA 154, ¶ 9.

III. Applicable Legal Principles

A. Calculation of Maintenance

¶ 11 Section 14-10-114(3) details the process a trial court must

follow when considering a maintenance request. In re Marriage of

Wright, 2020 COA 11, ¶ 13. The court must first make findings

concerning (1) the amount of each party’s gross income; (2) the

marital property distributed to each party; (3) the financial

resources of each party; (4) the reasonable financial need

established during the marriage; and (5) whether the maintenance

award would be deductible for federal income tax purposes.

§ 14-10-114(3)(a)(I); see also Wright, ¶ 14.

¶ 12 After making these initial findings, the court must determine

the amount and term of maintenance, if any, that is fair and

equitable to the parties. § 14-10-114(3)(a)(II); Wright, ¶ 15. And

where, as here, the parties’ combined annual adjusted gross income

exceeds $240,000, the advisory guideline amount of maintenance

doesn’t apply; instead, the trial court must consider the

nonexclusive list of thirteen factors set forth in section

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14-10-114(3)(c) when determining the maintenance award’s amount

but may consider the advisory guideline term set forth in section

14-10-114(3)(b)(II) when establishing the maintenance award’s

duration. § 14-10-114(3.5); In re Marriage of Herold, 2021 COA 16,

¶ 26.

¶ 13 The trial court isn’t required to make explicit factual findings

about each of the thirteen factors in section 14-10-114(3)(c), as long

as the record shows that it meaningfully considered the factors, and

it provides us with a clear understanding of the basis for its

decision. Wright, ¶ 20.

B. Determination of Income

¶ 14 “Gross income” means income from any source and includes

potential income for a party who the court finds is voluntarily

underemployed. § 14-10-114(8)(c)(I), (IV). And a party is

voluntarily underemployed if the trial court finds they are

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“unreasonably for[]going higher paying employment that [they]

could obtain.” Martinez, 70 P.3d at 476.

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¶ 15 If a party is voluntarily underemployed, the trial court must

determine what the party could reasonably earn and contribute. Id.

“Potential income” is “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. To determine

potential income, the court may consider the party’s historical

income, education, and work experience. Id. A trial court may

“interpret a [party]’s lack of initiative in finding or keeping work as a

voluntary refusal to fulfill a support obligation.” Martinez, 70 P.3d

at 480.

¶ 16 Section 14-10-114(8)(a)(I) sets forth the three acceptable

adjustments to a party’s gross income for maintenance calculation

purposes: (1) a pre-existing court-ordered child support obligation

actually paid by a party; (2) a pre-existing court-ordered

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While People v. Martinez, 70 P.3d 474 (Colo. 2003), concerned

child support, similar principles apply to a court’s determination of

whether a person is voluntarily underemployed, and should be

imputed potential income, for purposes of calculating maintenance.

Compare § 14-10-115(3)(c), C.R.S. 2023 (child support guidelines),

with § 14-10-114(8)(a)(II), C.R.S. 2023 (maintenance).

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maintenance obligation actually paid by a party; or (3) adjustments

for any children who are not children of the marriage for whom the

party has a legal responsibility to support.

IV. Discussion

A. The Trial Court Erred in Calculating the Parties’ Combined

Adjusted Gross Income

¶ 17 Husband asserts the trial court erroneously calculated the

parties’ combined adjusted gross income and then relied on that

incorrect adjustment to calculate his maintenance award. We

agree.

¶ 18 None of the adjustments authorized by section 14-10-114(8)

applied here. As such, the trial court was required to use each

party’s actual gross income when calculating maintenance. See

§ 14-10-114(3)(a)(I)(A).

¶ 19 The parties stipulated that husband’s potential income was

$6,250 per month ($75,000 per year), and the trial court found that

wife’s income was $25,000 per month and “[t]he gross income of the

parties [was] $375,000/year.” But as discussed in Part IV.B below,

the court’s findings about wife’s income were insufficient.

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¶ 20 Wife concedes that “the trial court did not strictly calculate

‘adjusted gross income’ under the statute” but maintains that any

error in calculating adjusted gross income was harmless. We

disagree.

¶ 21 Instead of using the parties’ gross incomes as required by

section 14-10-114(3)(a)(I)(A) and (8)(c)(I), the court — contrary to

section 14-10-114(8)(a)(I) — “adjusted” both parties’ monthly

incomes by deducting certain expenses from each party’s monthly

income to arrive at a net total monthly income for the parties, from

which it then determined the maintenance award amount.

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We

can’t conclude that this error was harmless given the court’s failure

to follow the statutory procedures and the resulting minimal

maintenance award. See C.R.C.P. 61; see also In re Parental

Responsibilities Concerning E.E.L-T., 2024 COA 12, ¶ 30 (noting that

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The court deducted certain expenses, such as housing and child-

related expenses, from husband’s stipulated monthly income

($6,250) and wife’s monthly income as found by the court ($25,000)

to arrive at net monthly incomes for each party, resulting in a

$455.78 deficit for husband and a $602 surplus for wife. The court

then subtracted husband’s deficit from wife’s surplus to arrive at a

figure ($146.22) it then divided in half to arrive at the maintenance

award amount ($73.11).

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an error that substantially influences the outcome of a case or

impairs the basic fairness of a trial is reversible).

¶ 22 Accordingly, we remand to the trial court to calculate

maintenance based on the parties’ gross incomes as set forth in

section 14-10-114(8)(c)(I). On remand, the trial court should

consider the parties’ current circumstances and receive additional

evidence. In re Marriage of Salby, 126 P.3d 291, 301 (Colo. App.

2005). The court’s new orders must contain specific factual

findings supported by the record explaining how it arrived at any

awarded maintenance amount. See In re Marriage of Evans, 2021

COA 141, ¶ 62; see also § 14-10-114(3)(e).

B. The Trial Court’s Findings Regarding Wife’s Income were

Insufficient

¶ 23 Husband also contends that the trial court failed to make

explicit findings regarding whether wife was voluntarily

underemployed, such that potential income should have been

imputed to her. Wife asserts that the trial court implicitly rejected

husband’s argument that she was voluntarily underemployed by

finding she had “suffered some mental health challenges causing

her to reduce the amount of work she is able to complete but

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appears to be able to increase her income when she is ready and

willing to do so.”

¶ 24 While a court’s findings may be implicit in its ruling, see In re

Marriage of Nelson, 2012 COA 205, ¶ 41, it must make factual

findings sufficient to support its determination of whether a party is

voluntarily underemployed. See In re Marriage of Martin, 42 P.3d

75, 80 (Colo. App. 2002).

¶ 25 The court appears to have credited wife’s testimony, supported

by her sworn financial statement, that when she reduced her hours

due to “mental health challenges,” her monthly income fluctuated

but averaged $20,000. And wife acknowledged that her most recent

paycheck was for $25,000.

¶ 26 Conversely, wife didn’t dispute that she historically earned

approximately $55,000 per month, including during the dissolution

proceedings. And the court found that “[w]ife has the option of

becoming a partner again if she chooses based on her strong work

ethic and competence” and that “[w]ife can, when she chooses,

return to full partnership at [the anesthesia practice],” which would

“significantly increase her income.” (Emphasis added.)

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¶ 27 The trial court’s findings that wife could “choose” to return to

her anesthesia practice full time — thereby receiving more income

— contradict the conclusion that the court implicitly rejected that

wife was voluntarily underemployed. See Martinez, 70 P.3d at 480.

Because of the contradictory findings in the court’s order, we are

unable to discern from the record whether the court implicitly

found that wife was reasonably forgoing higher paying employment

because of her life circumstances, or that she was unreasonably

forgoing higher paying employment because she could presently —

but hadn’t chosen to — return to such employment. See Wright,

¶ 20; see also Garrett, ¶ 15 (noting insufficiency of findings

regarding voluntary underemployment).

¶ 28 Thus, the trial court’s findings are insufficient for us to

conclude that the court considered but rejected husband’s assertion

that wife was voluntarily underemployed. Because the trial court

must consider the parties’ current financial circumstances on

remand, see Wright, ¶ 24, the court must also consider and make

sufficient findings about whether wife is voluntarily underemployed

should husband continue to assert that on remand.

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¶ 29 If husband asserts that wife remains voluntarily

underemployed, the trial court must first determine whether she is

voluntarily underemployed before calculating the parties’ gross

incomes. See § 14-10-114(8)(c)(I), (IV). If the court finds wife is

voluntarily underemployed, then it must impute potential income to

her before calculating maintenance and child support. See id.

C. Sufficiency of Findings Regarding the Maintenance Award and

Recalculation of Child Support

¶ 30 Husband asserts that the trial court’s findings were

insufficient to support its monthly maintenance award of $73.11.

Since we are remanding for the trial court to recalculate the parties’

gross incomes and the resulting maintenance amount, and since

that amount is based on the parties’ financial circumstances at the

time of the order, we decline to further address this contention. See

Wright, ¶ 24.

¶ 31 We note that husband asserts the trial court improperly

included wife’s parents’ monthly food expenses when determining

wife’s reasonable monthly expenses. To the extent that this issue

arises on remand, the court should only consider contributions

made to either party based on a legal obligation. See In re Marriage

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of Balanson, 107 P.3d 1037, 1048 (Colo. App. 2004) (noting that

whether the parties’ adult child lived with wife was irrelevant to

wife’s own reasonable and necessary expenses).

¶ 32 Additionally, the court must recalculate the length of the

parties’ marriage because it may impact its determination of the

term of maintenance. § 14-10-114(3.5). Though not raised by

either party, it appears the court erroneously concluded that the

parties were married for 166 months. See In re Marriage of Young,

2021 COA 96, ¶ 8. The parties were married on June 13, 2008,

and the decree of dissolution was effective on April 27, 2023. A

court must consider the duration of the parties’ marriage in

determining a maintenance award, which is defined as “the number

of whole months, beginning from the first day of the month

following the date of the parties’ marriage until the date of the

decree.” § 14-10-114(3)(c)(VII), (8)(b). Given the dates of the

parties’ marriage and the final decree, the duration of the parties’

marriage was 177 months.

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The dates used for this calculation are from July 1, 2008, to April

27, 2023.

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¶ 33 Lastly, because maintenance and child support are

“inextricably intertwined,” we also remand for recalculation of child

support consistent with section 14-10-115(3)(a), C.R.S. 2023.

Salby, 126 P.3d at 301.

D. Appellate Attorney Fees and Costs are Remanded to the Trial

Court

¶ 34 Asserting that wife has superior financial resources, husband

requests his reasonable appellate attorney fees and costs.

¶ 35 Section 14-10-119, C.R.S. 2023, authorizes a court to award

attorney fees in dissolution proceedings after considering the

financial resources of both parties.

¶ 36 While husband is entitled to his appellate costs, see C.A.R.

39(a)(3), because the trial court is better equipped to determine the

factual issues regarding the parties’ current financial resources, we

remand to it the issue of whether husband should be awarded

reasonable appellate attorney fees. See C.A.R. 39.1; In re Marriage

of Bochner, 2023 COA 63, ¶ 22; see also In re Marriage of Schaefer,

2022 COA 112, ¶ 37 (holding that wife’s request for award of her

attorney fees associated with successful appeal of maintenance and

child support awards would be considered on remand).

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V. Disposition

¶ 37 The judgment is reversed. This case is remanded to the trial

court with directions to (1) determine a maintenance award for

husband based on the parties’ gross incomes that is supported by

sufficient findings for the amount and term of maintenance

awarded; (2) make additional factual findings and a conclusion of

law determining whether wife is voluntarily underemployed if

husband maintains that argument on remand; (3) impute to wife

her potential income if she is found to be voluntarily

underemployed; (4) recalculate child support; and (5) determine

whether husband is entitled to reasonable attorney fees associated

with this appeal.

JUDGE DUNN and JUDGE YUN concur.