Marriage of Mulberry

23CA1839 Marriage of Mulberry 08-15-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1839

Pitkin County District Court No. 22DR30019

Honorable Christopher G. Seldin, Judge

In re the Marriage of

Tharyn Dean Mulberry,

Appellee,

and

Narendra Geneva Kristine Conway,

Appellant.

JUDGMENT AFFIRMED

Division VI

Opinion by JUDGE FREYRE

Schutz and Graham*, JJ., concur

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

Announced August 15, 2024

No Appearance for Appellee

Narendra Geneva Kristine Conway, Pro Se

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.

VI, § 5(3), and § 24-51-1105, C.R.S. 2023.

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¶ 1 Narendra Geneva Kristine Conway (wife) appeals the district

court’s permanent orders entered in connection with the dissolution

of her marriage to Tharyn Dean Mulberry (husband). We affirm.

I. Background

¶ 2 In 2022, after fifteen years of marriage and two children,

husband filed a petition for dissolution.

¶ 3 After an evidentiary hearing, the district court issued a

dissolution decree and entered permanent orders. The court

divided the marital estate as follows:

Marital Property

Marital Value

Wife’s Allocation

Husband’s

Allocation

Marital Residence

(a portion of

which served as a

rental unit)

$263,440

$263,440

Vehicles

$22,000

$11,000

$11,000

Bank Accounts

$3,960

$1,980

$1,980

Husband’s PERA

$351,170

$351,170

Husband’s AXA

403(b) Retirement

Account

(retirement

account)

$26,588

$26,588

Husband’s

Vacation Paid

Time Off (PTO)

$8,900

$8,900

Debts Including

Wife’s Attorney

Fees and

Husband’s

Personal Loan

($108,839)

($108,839)

SUBTOTAL

$567,219

$303,008

$264,211

2

“Equalization”

Payment

($24,092)

$24,092

TOTAL

$278,916

$288,303

¶ 4 The court also directed husband to pay wife $2,000 in monthly

maintenance for 100 months plus $201 in monthly child support.

¶ 5 Wife now appeals.

II. Compliance with C.A.R. 28

¶ 6 To start, we observe that wife’s opening brief violates the

appellate rules. They require, among other things, that her

contentions include a statement on preservation along with

citations to both relevant portions of the record and legal authority.

See C.A.R. 28(a)(7)(A) (“[T]he arguments . . . must contain . . . the

precise location in the record where the issue was raised and where

the court ruled.”), (B) (the arguments must contain appellant’s

contentions and reasoning, “with citations to the authorities and

parts of the record on which the appellant relies”).

¶ 7 “The appellate rules are not mere technicalities, but are

designed to facilitate appellate review.” Cikraji v. Snowberger, 2015

COA 66, ¶ 10.

¶ 8 A noncompliant opening brief may be stricken and the appeal

dismissed. See C.A.R. 38(a); see also Bruce v. City of Colorado

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Springs, 252 P.3d 30, 32 (Colo. App. 2010). We are mindful, of

course, that wife is representing herself; however, that does not

excuse her from following the appellate rules. See Cikraji, ¶ 10 (pro

se parties are bound by the same procedural rules as a party

represented by an attorney); see also Rosenberg v. Grady, 843 P.2d

25, 26 (Colo. App. 1992) (A self-represented “litigant who chooses to

rely upon h[er] own understanding of legal principles and

procedures is required to follow the same procedural rules as those

who are qualified to practice law and must be prepared to accept

the consequences of h[er] mistakes and errors.”).

¶ 9 Still, because we can discern the issues on appeal, we exercise

our discretion to consider wife’s contentions. See Bruce, 252 P.3d

at 32. But see Castillo v. Koppes-Conway, 148 P.3d 289, 291 (Colo.

App. 2006) (“In light of [the appellant’s] failures and violations [of

C.A.R. 28], we will not review the [district] court’s order.”). That

said, we will not develop her arguments for her or search the record

for supporting facts. See Minshall v. Johnston, 2018 COA 44, ¶ 21;

see also Cikraji, ¶ 10.

¶ 10 We warn wife that any future noncompliance with C.A.R. 28 or

other applicable appellate rules could lead to our striking the

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offending brief or imposing other appropriate sanctions, including

dismissal. See C.A.R. 38(a); see also Bruce, 252 P.3d at 32.

III. Property Division

¶ 11 Wife raises several challenges to the district court’s property

division. We address and reject each.

A. Standard of Review

¶ 12 A district court has great latitude in making an equitable

property division based on the facts and circumstances of each

case, and we will not disturb its decision absent an abuse of

discretion. In re Marriage of Collins, 2023 COA 116M, ¶ 19; see

§ 14-10-113(1), C.R.S. 2023. “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.”). The court abuses its discretion when its

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

misapplies the law. In re Marriage of Medeiros, 2023 COA 42M, ¶

28. We review de novo the court’s application of the law. Id.; see In

re Marriage of Bochner, 2023 COA 63, ¶ 18 (“De novo means

‘anew.’”).

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B. Discussion

1. Husband’s AXA Retirement Account

¶ 13 As best we can discern, wife contends that the district court

erred by (1) determining that husband had a separate property

interest in the AXA retirement account; and (2) valuing the

retirement account. We disagree.

¶ 14 Before dividing the marital estate, the district court must

determine whether an asset is marital, and subject to division, or

whether it is separate and not subject to division. Medeiros, ¶ 49;

see § 14-10-113(1) (district court is required to set apart separate

property to each party and divide the marital property). Marital

property excludes property that a party owned before the marriage.

See § 14-10-113(2). However, the appreciation of a party’s separate

property during the marriage is a divisible asset. See

§ 14-10-113(4) (An asset acquired by a party before the marriage is

considered marital property “to the extent that its present value

exceeds its value at the time of the marriage.”); see also Wright, ¶ 8.

¶ 15 The classification of property as marital or separate is a legal

determination based on the court’s factual findings. In re Marriage

of Morton, 2016 COA 1, ¶ 5. We review de novo the court’s legal

6

determination and defer to its factual findings unless they are

clearly erroneous, meaning they do not have any support in the

record. Id.; see Van Gundy v. Van Gundy, 2012 COA 194, ¶ 12.

¶ 16 The district court must also determine the approximate

current value of marital property. Wright, ¶ 4; see also

§ 14-10-113(5) (district court must value property as of the date of

the permanent orders hearing when the hearing occurs before the

entry of the dissolution decree).

¶ 17 The record reflects that in 1994 (about twelve years before the

marriage) husband opened a Valic retirement account, which was

serviced by AIG, and began investing $300 per month until

sometime “before 2008.” When AIG went bankrupt in 2008, he

transferred the retirement account to AXA. Due to the bankruptcy,

he was unable to get any information documenting the value of the

account at the time of the marriage. He testified that wife never

contributed to the account. He provided an AXA statement

indicating a current balance of $51,587 with a total contribution of

$33,655 since 2008.

¶ 18 The district court found that the retirement account had a

total value of $51,587, consisting of $25,000 of husband’s separate

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property, and $26,587 of marital property. See In re Marriage of

Thorburn, 2022 COA 80, ¶ 9 n.1 (district court’s oral findings

supplement its written order). The court then awarded the account

to wife.

¶ 19 Because there is evidence in the record to support the district

court’s findings that husband established a separate property

interest in the retirement account and that the account was worth

$51,587, we will not disturb them. See Morton, ¶ 5; see also Wright,

¶ 4. And for the same reasons, we reject wife’s assertion that the

court lacked sufficient information to determine a value or that the

court speculated as to the value.

¶ 20 Still, wife argues that husband committed “perjury” by

testifying that AIG went bankrupt in 2008 and that he transferred

the retirement account to AXA. According to her, there were two

separate accounts because husband, without her knowledge,

drained the AIG and moved the funds into a hidden account. Wife’s

claims concern the credibility of the testimony and other evidence

considered by the district court and the weight it should be given.

Such determinations are solely within the district court’s province

and an appellate court may not alter them or substitute its own

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judgment for the district court’s. See Thorburn, ¶ 49 (credibility

determinations and the weight, probative force, and sufficiency of

the evidence, as well as the inferences and conclusions to be drawn

therefrom, are matters within the district court’s sole discretion);

see also In re Marriage of Wollert, 2020 CO 47, ¶ 23 (The district

court’s ability to observe and evaluate the witnesses’ credibility

deserves deference because a “cold record is a poor substitute for

live testimony.” (quoting People v. Scott, 600 P.2d 68, 69 (Colo.

1979))); In re Marriage of Amich, 192 P.3d 422, 424 (Colo. App.

2007) (it is the district court’s prerogative to believe all, part, or

none of a witness’s testimony, even if uncontroverted); In re

Marriage of Udis, 780 P.2d 499, 504 (Colo. 1989) (appellate court

may presume that the district court considered all of the evidence

admitted).

¶ 21 Wife also argues that husband borrowed against the

retirement account, leaving her responsible for repaying the debt

throughout the marriage. But during the marriage, both parties are

free to dispose of marital assets, even without the other party’s

permission. See In re Marriage of Schmedeman, 190 P.3d 788, 791

(Colo. App. 2008).

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2. Marital Residence

¶ 22 Wife next contends the district court erred in valuing the

marital residence. We discern no error.

¶ 23 At the hearing, wife testified that a 2022 Pueblo County tax

assessment established the fair market value of the marital

residence at $283,434. She then asked the court to reduce that

value by at least $5,500 to cover necessary repairs. Husband

testified that the residence had a fair market value of $360,000

based on an online search. He added that the residence was

encumbered by a single mortgage of roughly $35,400.

¶ 24 After noting the absence of a home appraisal, the district court

found the parties’ valuation evidence unreliable. See Thorburn, ¶ 9

n.1. As to wife’s evidence, the court credited husband’s testimony

that the tax-assessed value was typically lower than the fair market

value. With limited evidence, the court determined that the

residence had a fair market value of $300,000, less a mortgage debt

of $36,560, for a net marital equity of $263,440.

¶ 25 Because the district court chose a figure between two

competing values, which was reasonable given the evidence, we will

not disturb it. See Medeiros, ¶ 41 (the district court may select one

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party’s proposed value, reject both, or independently determine a

reasonable value, and an appellate court will not disturb that

determination if it is reasonable in light of the evidence as a whole);

see also In re Marriage of Krejci, 2013 COA 6, ¶ 23 (the parties must

furnish the district court with sufficient data to enable it to make a

reasonable property valuation, and failure to do so will not

constitute grounds for reversal).

¶ 26 Wife also appears to challenge the district court’s finding that

husband obtained a single mortgage on the marital residence. She

claims that husband “illegally” obtained additional mortgages

throughout the marriage to fund his brother’s alleged criminal acts.

Again, we discern no error. Husband testified that the original

mortgage was sold multiple times to different lenders during the

marriage; thus, the current mortgage, he said, was the “same” as

the original one. See Thorburn, ¶ 49 see also Amich, 192 P.3d at

424.

¶ 27 Wife also contends that husband “fraudulently” took out a

$75,000 home equity line of credit (HELOC) in violation of the

temporary injunction. We are not persuaded.

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¶ 28 Upon the filing of a dissolution petition, “a temporary

injunction shall be in effect against both parties until the final

decree is entered . . . or until further order of the court” restraining

them from “transferring, encumbering, concealing, or in any way

disposing of, without the consent of the other party or an order of

the court, any marital property, except in the usual course of

business or for the necessities of life.” § 14-10-107(4)(b)(I)(A),

C.R.S. 2023.

¶ 29 If a party unilaterally withdraws marital funds during the

proceedings, in violation of the temporary injunction, the district

court may rectify that violation by including the dissipated funds in

the property division. See, e.g., In re Marriage of Jorgenson, 143

P.3d 1169, 1174 (Colo. App. 2006); In re Marriage of

Riley-Cunningham, 7 P.3d 992, 995 (Colo. App. 1999) (dissipation

occurs when a party depletes a marital asset for improper or

illegitimate purposes in contemplation of the dissolution). The

party who spent the funds bears the burden of demonstrating that

they were used for proper expenses. See Martinez v.

Gutierrez-Martinez, 77 P.3d 827, 830 (Colo. App. 2003); see also In

re Marriage of Finer, 920 P.2d 325, 331 (Colo. App. 1996) (the

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district court may not consider an asset to have been dissipated

unless it finds that the party disposed of the asset improperly).

Even so, dissipation is reserved for “extreme cases.” Jorgenson, 143

P.3d at 1173.

¶ 30 Husband testified that, with wife’s consent, he opened the

HELOC and withdrew funds from it to repair the marital residence,

satisfy a joint tax obligation, cover their child’s dance expenses, and

pay for their dissolution-related legal fees. He said the bank later

restricted his access to the HELOC and that he was forced to take

out a personal loan to pay the outstanding balance. He indicated

that the highest balance ever carried on the HELOC was around

$31,000. As part of the permanent orders, the court granted wife’s

request to allocate the personal loan with a balance of $5,989 to

husband.

¶ 31 Because the record shows that husband obtained wife’s

approval for the HELOC and authorized its use, we conclude that

husband did not violate the temporary injunction. See

§ 14-10-107(4)(b)(I)(A); see also Thorburn, ¶ 49; Amich, 192 P.3d at

424. Moreover, nothing in the record shows that the expenses were

used for improper purposes or incurred to deplete the marital estate

13

in contemplation of the dissolution proceedings. See

Riley-Cunningham, 7 P.3d at 995; see also Martinez, 77 P.3d at 830.

3. Husband’s PERA

¶ 32 Wife next contends that the district court erred in valuing

husband’s PERA. We disagree.

¶ 33 The district court found that the parties stipulated that

husband’s PERA had a present value of $595,204 with a marital

portion of $351,170. The record supports that finding.

¶ 34 Before the hearing, the parties filed a joint trial management

certificate containing their stipulation:

The [p]arties do not agree to the allocation of

[h]usband’s PERA but do agree to the following

values: [his] PERA is presently valued on a full

refund basis of $595,204. [He] has been

contributing since 1994, the parties’ [d]ate of

[m]arriage is 2006 and it is currently 2023.

[His] separate property claim to the PERA is

41% with the marital portion being 59%.

Accordingly, the martial portion is $351,170.

At the hearing, husband testified about the stipulation and

requested that the court approve it. Then, wife testified briefly, and

contrary to the stipulation, that the PERA account was “twice

undervalued,” and claimed its actual worth exceeded $1 million.

Because it was up to the district court to decide the credibility of

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the evidence before it, we discern no abuse of discretion in the

court’s decision to accept the parties’ stipulated values rather than

wife’s contrary testimony. See Thorburn, ¶ 49; see also Amich, 192

P.3d at 424; Krejci, ¶ 23.

4. Husband’s Cafeteria Plan

¶ 35 Wife next contends that the district court erred by excluding

from the marital estate husband’s cafeteria plan sponsored by his

employer. We decline to address the issue because it is

undeveloped. See In re Marriage of Zander, 2019 COA 149, ¶ 27

(appellate court will not consider an argument not supported by

legal authority or any meaningful legal analysis), aff’d, 2021 CO 12;

Barnett v. Elite Props. of Am., Inc., 252 P.3d 14, 19 (Colo. App. 2010)

(“We will not consider a bald legal proposition presented without

argument or development.”).

5. Husband’s Vacation PTO

¶ 36 Wife next contends that the district court should have given

her all of husband’s Vacation PTO. We disagree.

¶ 37 The district court found that husband, who was earning

$174,731 annually, had 106 hours of vacation PTO, which equated

to approximately $8,900 based on his hourly wage of $84. See

15

Thorburn, ¶ 9 n.1. The court then found it appropriate to award all

his vacation PTO to him.

¶ 38 Husband testified that he could only cash out his unused

vacation PTO every two years, with the next opportunity being in

November 2024. He also said that given the stress of his job and

the impact of the COVID-19 pandemic, he would like the

opportunity to take a vacation.

¶ 39 Given that the district court’s findings have ample record

support, we cannot say that the court’s allocation was manifestly

unreasonable or unfair. See Collins, ¶ 19.

IV. Maintenance and Child Support

¶ 40 Last, we decline to address wife’s undeveloped argument that

the district court erred by failing to order an income assignment for

husband’s maintenance and child support obligations. See Zander,

¶ 27.

V. Disposition

¶ 41 The judgment is affirmed.

JUDGE SCHUTZ and JUDGE GRAHAM concur.