Marriage of McCale

23CA1562 Marriage of McCale 08-22-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1562

El Paso County District Court No. 22DR30262

Honorable David Prince, Judge

In re the Marriage of

Allyson Ann McCale,

Appellant,

and

Donald Richard McCale, III,

Appellee.

JUDGMENT AFFIRMED IN PART AND REVERSED IN PART,

AND CASE REMANDED WITH DIRECTIONS

Division VII

Opinion by JUDGE TOW

Gomez and Kuhn, JJ., concur

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

Announced August 22, 2024

The Drexler Law Group, LLC, Matthew B. Drexler, Teresa A. Drexler, Colorado

Springs, Colorado; Drexler Law, LLC, Regina T. Drexler, Denver, Colorado, for

Appellant

Harrison Family Law, PC, Bridgette D. Harrison, Colorado Springs, Colorado,

for Appellee

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¶ 1 In this dissolution of marriage proceeding involving Allyson

Ann McCale (mother) and Donald Richard McCale, III (father),

mother appeals the maintenance, child support, property division,

and life insurance portions of the district court’s permanent orders.

She also seeks disqualification of the district court judge. We affirm

the judgment in part and reverse it in part, and we remand the case

for further proceedings consistent with this opinion.

I. Background

¶ 2 After a hearing, the district court dissolved the parties’

marriage of nearly three decades and entered permanent orders.

After imputing potential income to mother, the district court

awarded mother maintenance of $5,000 per month for twelve

months, followed by $4,000 per month for twenty-four months, and

then $3,000 per month until father retires or mother remarries.

The court also required father to pay a monthly child support

obligation of $1,053 because mother was the primary caretaker for

the parties’ son, who has disabilities and will need care for life. The

district court declined mother’s request, however, to require father

to pay the child support payments into a special needs trust.

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Finally, the court’s permanent orders noted that “the parties agreed

on an obligation of [father] to maintain life insurance” but did not

specify how much life insurance father was required to hold.

¶ 3 Mother then filed a motion for post-trial relief under

C.R.C.P 59, asking the district court to specify that father must

maintain $850,000 in life insurance with mother as the beneficiary.

The court denied the motion, reasoning that the parties “did not

present a dispute relating to the [life] insurance policy at [the

permanent orders hearing] for resolution” and that mother did not

cite any evidence from the record which would justify her request.

II. Timeliness of Appeal

¶ 4 As a preliminary matter, we reject father’s argument that

mother’s appeal is untimely because she filed her notice of appeal

more than forty-nine days after the district court’s permanent

orders. See C.A.R. 4(a)(1) (requiring notice of appeal to be filed

within forty-nine days after entry of judgment). Under C.A.R.

4(a)(3), once a party files a timely Rule 59 motion, the deadline for

filing a notice of appeal is terminated, and the deadline resets once

the district court disposes of the Rule 59 motion. Mother filed her

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notice of appeal on September 7, 2023, which was less than forty-

nine days after the district court denied her timely filed Rule 59

motion on August 1, 2023. Her appeal, therefore, is timely.

III. Shirking Requirement

¶ 5 Mother argues that the district court’s marital property

division, maintenance award, and child support award were

improper because they improperly relied on an imputation of her

potential income. Specifically, mother contends the district court

was required to find that she was shirking a financial obligation

under People v. Martinez, 70 P.3d 474 (Colo. 2003), before it could

impute her potential income. We agree that the district court

improperly imputed potential income to mother. But we note that

this implicates only the maintenance and child support awards and

not the division of marital property.

A. Preservation and Standard of Review

¶ 6 We reject father’s argument that mother did not preserve her

arguments for appeal because she did not raise them in her Rule 59

motion. To preserve an issue for appeal all that is required is that

“the issue be brought to the attention of the trial court and that the

court be given an opportunity to rule on it.” Berra v. Springer &

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Steinberg, P.C., 251 P.3d 567, 570 (Colo. App. 2010). Mother raised

these issues in the joint trial management certificate (JTMC), and

they are therefore preserved.

¶ 7 There is no requirement that mother needed to raise the

issues again in her Rule 59 motion to preserve them for appeal.

Father cites Furer v. Allied Steel Co., 483 P.2d 212, 213 (Colo.

1971), for the proposition that “[u]nless an allegation of error is

brought before the trial court in a new trial motion, [an appellate

court] will not consider that allegation on writ of error.” However,

Furor is over fifty years old and addresses language that has since

been amended. Rule 59(b) now clearly states that a motion for

post-trial relief “shall not be a condition precedent to appeal or

cross-appeal, nor shall filing of such motion limit the issues that

may be raised on appeal.” Mother was not required to raise the

issues again in her Rule 59 motion to preserve them. Accordingly,

we reach the merits of mother’s appeal.

¶ 8 We review the district court’s orders on maintenance, child

support, and division of marital property for an abuse of discretion,

and we will not disturb the court’s decision unless it is shown to be

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manifestly arbitrary, unfair, or unreasonable or based on a

misapplication of the law. In re Marriage of Collins, 2023 COA

116M, ¶¶ 19, 37 (reviewing property division and child support

orders for abuse of discretion); In re Marriage of Medeiros, 2023

COA 42M, ¶¶ 28, 58 (reviewing maintenance order for abuse of

discretion).

B. Analysis

¶ 9 When considering a maintenance or child support request, the

court must make findings of, among other things, the parties’

incomes and financial resources. § 14-10-114(3)(a)(I), C.R.S. 2024

(outlining maintenance factors); § 14-10-115(2)(b)(II), (V), C.R.S.

2024 (outlining child support factors). If a party is voluntarily

underemployed, then maintenance and child support shall be

calculated based on a determination of potential income.

§ 14-10-114(8)(c)(IV); § 14-10-115(5)(b)(I).

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¶ 10 However, before a court can impute a party’s potential income,

it must determine that the party is voluntarily underemployed,

1

This requirement is subject to exceptions, none of which are

applicable here. See § 14-10-114(8)(c)(IV)-(V), C.R.S. 2024.

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meaning the party is shirking a financial obligation “by

unreasonably foregoing higher paying employment that [they] could

obtain.” Martinez, 70 P.3d at 476. Either parent might forgo higher

paying employment to manipulate a court-ordered support payment

and, thus, be considered voluntarily underemployed, regardless of

whether the parent is the obligor or obligee of the court order. See

In re Marriage of Connerton, 260 P.3d 62, 64, 66 (Colo. App. 2010)

(imputing income to mother who was obligee of child support order).

Moreover, although Martinez analyzed the imputation of potential

income for determining child support under section 14-10-115, the

same analysis applies when imputing income for determining

spousal maintenance under section 14-10-114.

2

In re Marriage of

Young, 2021 COA 96, ¶ 22 (“Though Martinez was a child support

case, the analysis of voluntary underemployment is the same in a

maintenance case.” (quoting In re Marriage of Wright, 2020 COA 11,

¶ 21 n.3)).

2

Father does not dispute that a shirking analysis is required before

imputing potential income to the obligee of a maintenance order

under section 14-10-114.

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¶ 11 The district court failed to find that mother shirked a financial

obligation and was voluntarily underemployed. In its permanent

orders, the district court said, “Both parties agree that some degree

of income should be imputed to [mother] above her actual

earnings.” However, in the JTMC, mother expressly argued that “[i]t

would be an abuse of discretion to find that mother was voluntarily

underemployed.” Instead, mother asserted that the court should

use her actual income based on a three-year average.

¶ 12 Further, the record is unclear on whether mother shirked any

financial obligations. At the permanent orders hearing, mother

testified that she was self-employed as a part-time certified public

accountant. However, mother said she had an autoimmune attack

in 2021, and ever since her hands have been impaired. Because of

these health issues and having to care for the parties’ son, mother

said she could not work full time. Father also agreed that mother

could not work full time, but he suggested that she could currently

work more hours than she had been working during the last years

of their marriage. Most of the testimony at the permanent orders

hearing went toward how many hours mother could work, but there

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was little to no development on whether mother was voluntarily

working fewer hours in order to shirk a financial obligation — or, in

other words, whether mother was voluntarily working fewer hours

in order to receive a higher child support award. Thus, on remand,

the district court must determine whether mother was shirking a

financial obligation before it can impute any potential income to

her.

¶ 13 Because the district court’s maintenance and child support

awards were based on mother’s imputed potential income, which

was improperly determined, we reverse those portions of the

permanent orders.

¶ 14 However, we reject mother’s argument that the improper

income imputation also renders the property division erroneous.

First, we note that the parties stipulated to much of the marital

property division in the JTMC. And, to the extent they did not,

their disagreements were not centered around the parties’ economic

circumstances. Second, marital property is divided before

maintenance or child support are determined because determining

those awards requires an understanding of the parties’ financial

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resources, which include the apportioned marital property. In re

Marriage of de Koning, 2016 CO 2, ¶¶ 21-22. While reevaluating a

property division may require reevaluating maintenance, the need

for reevaluation does not necessarily work in both directions. Cf. id.

at ¶ 26 (holding revaluation of attorney fees award did not require

court to reexamine parties’ financial resources). Thus, although the

imputation of potential income resulted in erroneous maintenance

and child support awards, that does not require the court to

redivide the marital property.

¶ 15 Additionally, mother challenges the district court’s refusal to

order father to pay child support into a special needs trust.

However, the parties’ briefs do not develop any arguments regarding

the programs the child was eligible for, the special needs trust

requirements for those programs under state and federal law, or

how those might interact with section 14-10-117, C.R.S. 2024

(outlining payments of child support). Because we reverse the child

support award and remand for further proceedings, we decline to

consider that issue and, instead, allow the district court to consider

it on remand. See Am. Fam. Mut. Ins. Co. v. Am. Nat’l Prop. & Cas.

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Co., 2015 COA 135, ¶ 42 (declining to consider undeveloped

argument).

IV. Life Insurance

¶ 16 Mother also argues that the district court erred by denying

mother’s Rule 59 motion, which requested the district court to

specify the amount of life insurance father is required to hold with

mother as the beneficiary. However, we conclude this issue is

unpreserved.

¶ 17 “Ordinarily, raising a new issue for the first time in a [Rule 59]

motion is insufficient to preserve that issue for appeal.” In re

Marriage of Lohman, 2015 COA 134, ¶ 22. In the JTMC, mother

“request[ed] [father] maintain life insurance with [mother] as the

beneficiary in order to secure any financial obligations to [mother]

until such time as those obligations are fulfilled.” Mother did not

request any specific amount of life insurance or say anything more

on the matter, either in the JTMC or at the permanent orders

hearing. And father, in the JTMC, expressly agreed to hold a life

insurance policy for $250,000 for the next eight years. Accordingly,

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the district court noted that the parties agreed on father’s obligation

to hold life insurance.

¶ 18 Mother’s Rule 59 motion then requested that father hold a life

insurance policy of $850,000. However, as the district court noted,

this amount was not raised in the JTMC or at the final orders

hearing. Thus, the issue is unpreserved, and we do not consider it.

V. Judicial Bias

¶ 19 Next, mother contends that the district court judge who

presided over the permanent orders hearing was biased and should

be disqualified. Her argument focuses on the judge’s comments

about her request to have father pay child support into a special

needs trust. The judge called mother’s request a “scheme” to

“manipulate income” and “launder[ing].” However, we do not

believe these comments rise to the level of bias.

¶ 20 In addressing this issue, we do not consider whether the

district court erred by denying mother’s motion for recusal, which

was filed after her notice of appeal. Instead, we consider whether

mother’s judicial bias arguments disqualify the particular judge

from presiding over the matter on remand and whether the district

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court’s orders require vacatur. See Black v. Black, 2020 COA 64M,

¶ 131 (declining to disqualify judge on remand).

¶ 21 For a bias claim to be viable, “a judge must show ‘deep-seated

favoritism or antagonism that would make fair judgment

impossible.’” People in Interest of A.P., 2022 CO 24, ¶ 31 (quoting

Liteky v. United States, 510 U.S. 540, 555 (1994)). However,

“judicial remarks during the course of a trial that are critical or

disapproving of, or even hostile to, counsel, the parties, or their

cases, ordinarily do not support a bias or partiality challenge.” Id.

(alteration omitted) (quoting Liteky, 510 U.S. at 555). And

“‘[e]xpressions of impatience, dissatisfaction, annoyance, and even

anger, that are within the bounds of what imperfect [people], even

after having been confirmed as . . . judges, sometimes display’ don’t

establish bias or partiality.” Id. (alterations in original) (quoting

Liteky, 510 U.S. at 555-56).

¶ 22 The judge’s comments were expressions of dissatisfaction that

do not rise to the level of bias. While his comments may have been

misguided, given that Colorado law permits special needs trusts

under certain circumstances — see, e.g., § 15-14-412.8, C.R.S.

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2024 — they do not suggest that he had an antagonistic opinion of

mother. Rather, his comments exhibited dismay at what he

believed to be an impermissible manipulation of income. See A.P.,

¶ 31. We, therefore, reject mother’s argument that the permanent

orders were issued by a biased judge and are therefore void.

VI. Attorney Fees

¶ 23 Finally, both parties request attorney fees incurred in this

appeal.

¶ 24 Mother requests attorney fees under C.A.R. 38(b) and section

14-10-119, C.R.S. 2024. Rule 38(b) allows attorney fees to be

awarded for frivolous appeals and defense. Father’s briefs on

appeal were not frivolous. Indeed, we affirmed multiple aspects of

the district court’s orders. However, section 14-10-119 does allow a

court to award attorney fees “from time to time, after considering

the financial resources of both parties.” Whether an attorney fees

award is warranted thus depends on the parties’ financial

resources, and because we remand the issue of mother’s income to

be determined by the district court, any attorney fees award should

be determined on remand. See de Koning, ¶ 27.

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¶ 25 Father asks that we award him attorney fees “[s]hould [we]

agree with [his] initial request” for dismissal based on a

determination that mother failed to preserve her arguments and

that her appeal is untimely. For the reasons stated above, we do

not agree with him. Thus, he is not entitled to an award of attorney

fees.

VII. Disposition

¶ 26 We affirm the judgment in part and reverse it in part, and we

remand the case for further proceedings consistent with this

opinion.

JUDGE GOMEZ and JUDGE KUHN concur.