Marriage of Bentley

23CA1205 Marriage of Bentley 07-25-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1205

Mesa County District Court No. 21DR763

Honorable Kevin R. Kennedy, Magistrate

In re the Marriage of

Robyn L. Bentley, II,

Appellant,

and

Leslie M. Bentley,

Appellee.

JUDGMENT AFFIRMED

Division IV

Opinion by JUDGE PAWAR

Navarro and Johnson, JJ., concur

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

Announced July 25, 2024

James W. Giese, P.C., James W. Giese, Grand Junction, Colorado, for

Appellant

Leslie M. Bentley, Pro Se

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¶ 1 In this dissolution of marriage proceeding between Robyn L.

Bentley, II (husband) and Leslie M. Bentley (wife), husband appeals

the portion of the permanent orders related to maintenance. We

affirm.

I. Background

¶ 2 Husband and wife were married in 2009 and separated twelve

years later. After their separation, husband paid $1,504 per month

toward marital expenses benefitting wife including the marital

home’s mortgage and utility bills and wife’s cell phone bill and car

insurance. The parties later stipulated to husband’s continued

payment of the mortgage and other bills in lieu of paying temporary

maintenance to wife.

¶ 3 At the final orders hearing, the parties stipulated to the

division of the marital estate, and the court entered a maintenance

award in favor of wife. Pointing to the parties’ stipulation to sell the

marital home, the court ordered husband to pay wife $500 monthly

until the marital home was sold, then increasing to $1,500 per

month for a period of four years.

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II. Husband’s Contentions

¶ 4 Husband asserts that the court erred in awarding wife

maintenance because it did not consider the statutory maintenance

factors. We disagree.

A. Relevant Law and Standard of Review

¶ 5 When considering a maintenance request, the court must first

make findings on the parties’ incomes, the distribution of marital

property, the parties’ financial resources, their reasonable financial

need established during the marriage, and the taxability of any

maintenance awarded. § 14-10-114(3)(a)(I), C.R.S. 2023. Then, the

court must consider an amount and term of maintenance, if any,

that is fair and equitable after considering a nonexclusive list of

statutory factors, including the amount of each party’s gross

income, the marital property appointed to each party, reasonable

financial need as established during the marriage, and the amount

of temporary maintenance and number of months that temporary

maintenance was paid to the recipient spouse. § 14-10-114(3)(a)(II),

(3)(c). The court must also determine if the requesting party lacks

sufficient property to provide for their reasonable needs and is

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unable to support themselves through appropriate employment.

§ 14-10-114(3)(a)(II)(C), (3)(d).

¶ 6 We review a court’s determinations on maintenance for an

abuse of discretion. In re Marriage of Tooker, 2019 COA 83, ¶ 12. A

court abuses its discretion when it decides an issue in a manifestly

arbitrary, unreasonable, or unfair manner, or it misapplies the law.

In re Marriage of Evans, 2021 COA 141, ¶ 25. We defer to the

court’s income findings unless the record does not support them.

In re Marriage of Gibbs, 2019 COA 104, ¶ 9.

B. Analysis

¶ 7 The record and court’s order show that the court properly

considered the statutory factors before awarding wife maintenance

and that the court’s findings have record support. The court began

by acknowledging the parties’ stipulation regarding property

division, in particular their agreement to sell the marital home.

Next, based on the testimony it heard, the court made findings of

each party’s income — specifically that husband earned $6,517

monthly and that wife was not voluntarily un/underemployed and

earned $450 monthly.

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¶ 8 The court also found that the parties had no other financial

resources, aside from their earnings, that would affect the

maintenance amount. Although husband testified to wife’s

employment during the marriage, wife testified that her employment

had been sporadic and she was unable to secure appropriate

employment due to physical ailments she suffered. The court

credited wife’s testimony and found that her “history of

unemployment and underemployment during the parties’ marriage,

and the reasons why she did not work established her need for

maintenance.” The court’s written order included findings

concerning the taxability of the maintenance payments. The parties

also testified to the length and amount of husband’s payments

made in lieu of temporary maintenance, something that the court

explicitly considered in its written order.

¶ 9 The record thus shows that the court considered the relevant

statutory factors regarding maintenance and made its

determination based on record evidence.

III. Voluntarily Underemployment

¶ 10 Husband also challenges the court’s finding that wife was not

voluntarily underemployed when it “did not have competent

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evidence to determine [w]ife was unable to work due to her health.”

Again, we perceive no error.

A. Relevant Law and Standard of Review

¶ 11 A party’s income for purposes of determining maintenance is

generally that party’s actual gross income. See § 14-10-114(8)(a)(I),

(II). “If a party is voluntarily unemployed or underemployed,

maintenance shall be calculated based on a determination of

potential income . . . .” § 14-10-114(8)(c)(IV). However, “a

determination of potential income shall not be made for a party who

is physically or mentally incapacitated.” Id.

¶ 12 Whether a party is voluntarily underemployed is typically a

factual question. People v. Martinez, 70 P.3d 474, 480 (Colo. 2003).

And we defer to the district court’s factual findings if supported by

the record. Id.; see also In re Marriage of Connerton, 260 P.3d 62,

66 (Colo. App. 2010). As well, witness credibility and the weight,

probative force, and sufficiency of the evidence and the inferences

and conclusions to be drawn therefrom are matters within the

district court’s sole discretion. In re Marriage of Bregar, 952 P.2d

783, 785 (Colo. App. 1997).

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B. Analysis

¶ 13 The court, relying on section 14-10-114(8)(c)(IV), found that

wife was not voluntarily underemployed. The court found that wife

suffers from ailments that prevent her from working full time,

including “painful vaginal issues, migraine headaches, ringing in

her ears, muscle spasms, gastritis, [and] sciatica pain.”

¶ 14 The record supports these findings. Wife testified that she had

had multiple surgeries, including a hysterectomy. At the time of

the hearing, she had not fully recovered. She testified that she

continues to suffer from severe pain in her genitalia. She also

testified that she has migraines, neck pain, and ringing in her ears.

She testified that she experiences muscle spasms, and that she has

gastrointestinal issues that are painful and nauseating and that

sciatica and arthritis cause her back and hip pain.

¶ 15 At the hearing, wife admitted that — when she feels well

enough — she has earned money dog sitting, making and selling

chocolate sweets and birthday cards, and doing catering work. But

she further explained that she has difficulty standing or sitting for

long periods of time which prevents her from working most jobs.

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She testified that she has applied for disability benefits but had not

received them at the time of the hearing.

¶ 16 As husband points out, wife presented no expert testimony

regarding her physical impairment. But husband presented no

testimony, other than his own, to refute wife’s description of her

ailments and their impact. Ultimately, the court found, in its

discretion, that wife’s “testimony regarding her ailments was quite

credible.” See Bregar, 952 P.2d at 785 (district court determines

witness credibility and weight of the evidence).

¶ 17 For these reasons we conclude the court did not abuse its

discretion in determining that wife was not voluntarily

underemployed.

IV. Disposition

¶ 18 The judgment is affirmed.

JUDGE NAVARRO and JUDGE JOHNSON concur.