Marriage of Ferwerda

24CA0074 Marriage of Ferwerda 11-21-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0074
Boulder County District Court No. 10DR909
Honorable Andrew Hartman, Judge

In re the Marriage of

Janice Annette Crawford Ferwerda,

Appellant,

and

David Melvin Lopston Ferwerda,

Appellee.

ORDER REVERSED AND CASE
REMANDED WITH DIRECTIONS

Division II
Opinion by JUDGE JOHNSON
Fox and Schock, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced November 21, 2024

Janice Annette Crawford Ferwerda, Pro Se

No Appearance for Appellee
¶1 In this post-decree dissolution of marriage case between

Janice Annette Crawford Ferwerda (wife) and David Melvin Lopston

Ferwerda (husband), wife appeals the district court’s order adopting

a magistrate’s ruling that terminated husband’s maintenance

obligation. We reverse and remand the case to the district court for

further proceedings.

I. Relevant Facts

¶2 In 2010, the district court dissolved the marriage. In doing so,

it adopted the parties’ separation agreement, which directed

husband to pay wife $50,000 in maintenance as a lump sum.

¶3 A couple years later, wife moved to modify maintenance. The

magistrate found that wife’s income had significantly decreased

since the decree and that it was insufficient to meet her needs. The

magistrate modified maintenance and ordered husband to pay wife

$1,200 per month going forward.

¶4 In 2023, husband moved to terminate his maintenance

obligation. He asserted that he had been laid off in 2021, was

unable to find comparable employment, and, at sixty-three years

old, was approaching retirement age.

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¶5 At the hearing, husband testified that, since losing his job, he

relied on a severance package, a home equity line of credit, and

early withdrawals from his retirement accounts (averaging $3,450

per month) to support himself. He also testified that within the

next month, he planned to seek social security benefits, which he

anticipated would be about $3,128 per month, and that he intended

to take a lump sum distribution from his pension. He further

acknowledged that he and his current partner shared certain living

expenses. But husband testified that his present income was $0

and that he lacked the ability to continue to pay wife maintenance.

¶6 For her part, wife argued that husband’s financial resources,

which she alleged included approximately $600,000 in retirement

funds and a home in the Florida Keys worth $1 million, would allow

him to continue to pay maintenance and that he was capable of

getting a new job. She also asserted that her financial

circumstances were much worse than husband’s circumstances

and that she relied on maintenance to meet her basic living

expenses. She indicated that she had not worked since 2014, had

relied on public assistance programs, was sixty-nine years old, and

had experienced health issues. She further testified that, without

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maintenance, her gross income was only $1,510 per month, which

consisted of social security benefits and an annuity payment.

¶7 The magistrate terminated maintenance, determining that

husband had shown a substantial and continuing change to his

financial circumstances. She found that husband was forced into

early retirement, his present income was $0, and he was not

voluntarily underemployed. The magistrate also found that she

“heard no evidence” that husband was being supported by his new

partner.

¶8 Wife petitioned the district court to review the magistrate’s

order. The district court denied the petition and adopted the

magistrate’s order.

II. Standard of Review and Applicable Law

¶9 When we review a district court’s order adopting a magistrate’s

ruling to terminate maintenance, we act as a second layer of

appellate review. In re Marriage of Young, 2021 COA 96, ¶ 8; see

also C.R.M. 7(a)(11). We accept the magistrate’s factual findings

unless they are not supported by the record and will not disturb the

decision absent a showing of an abuse of discretion. See Young,

¶¶ 7-8.

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¶ 10 A court may modify or terminate maintenance when there has

been a showing of changed circumstances so substantial and

continuing as to make the terms of the maintenance order unfair.

See § 14-10-122(1)(a), C.R.S. 2024; Young, ¶ 12. The question is

not merely whether the court would have awarded the same

maintenance amount based on the parties’ current financial

circumstances but also whether the changed circumstances have

rendered the maintenance order unfair. See § 14-10-122(1)(a);

Young, ¶ 16.

¶ 11 In making this threshold determination, the court examines

the circumstances pertinent to awarding maintenance under the

statute in effect when the dissolution proceeding was initiated. See

In re Marriage of Thorstad, 2019 COA 13, ¶ 12, superseded by

statute on other grounds, Ch. 176, sec. 1, § 14-10-114(5), 2013

Colo. Sess. Laws 648, as stated in Young, ¶ 13; In re Marriage of

Nelson, 2012 COA 205, ¶ 26; see also § 14-10-114(9), C.R.S. 2024

(“Actions filed before January 1, 2014, are determined pursuant to

the provisions of this section as it existed at the time of the filing of

the action.”).

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¶ 12 Under the relevant statute, the court may award maintenance

when it finds that the party seeking maintenance lacks sufficient

property to provide for her reasonable needs and is unable to

support herself through appropriate employment. § 14-10-114(3),

C.R.S. 2010. It also must make the maintenance determination

after considering such relevant factors as (a) the financial resources

of the party seeking maintenance and that individual’s ability to

meet her needs independently; (b) the time necessary to enable the

party seeking maintenance to acquire sufficient education or

training to find appropriate employment and that party’s future

earning capacity; (c) the standard of living established during the

marriage; (d) the duration of the marriage; (e) the age and the

physical and emotional condition of the party seeking maintenance;

and (f) the ability of the party from whom maintenance is sought to

meet his needs while meeting those of the party seeking

maintenance. § 14-10-114(4), C.R.S. 2010.

III. Analysis

¶ 13 Wife contends that the magistrate erred by finding that there

was “no evidence” of husband receiving financial support from his

current partner. We agree.

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¶ 14 When a court considers a request to terminate maintenance,

it may consider the financial assistance a payor party receives from

that person’s new significant other. See In re Marriage of Bowles,

916 P.2d 615, 618 (Colo. App. 1995).

¶ 15 Husband testified that his current partner was a pediatrician

and that they equally shared expenses associated with the Florida

Keys home, such as utilities, insurance, and taxes. In his sworn

financial statement, husband reported that the household expenses

amounted to approximately $3,000 per month, without specifying

whether this amount was total monthly expenses or only his share.

Husband also testified that while he did not own a car, he drove his

partner’s vehicle. In addition, he said that he split the costs of gas

and food with his partner, which, according to his sworn financial

statement, amounted to over $700 per month. Husband further

confirmed that he and his partner had a joint bank account that

they used to pay their shared expenses.

¶ 16 By contributing to these living expenses, husband’s partner

assisted husband in satisfying his reasonable needs. The

magistrate thus clearly erred by finding that there was “no

evidence” that he received financial support from his current

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partner. See Young, ¶ 8; see also Bowles, 916 P.2d at 618.

Consequently, the magistrate overlooked husband’s financial

circumstance when analyzing his ability to meet his needs while

paying maintenance and determining whether the $1,200 per

month maintenance order was unfair. See § 14-10-114(4)(f), C.R.S.

2010; § 14-10-122(1)(a).

¶ 17 Likewise, the magistrate did not examine wife’s financial

resources when deciding to terminate maintenance. See § 14-10-

114(4)(a), C.R.S. 2010. Specifically, it is unclear whether, and to

what extent, the magistrate considered wife’s present financial

resources. See In re Marriage of Gibbs, 2019 COA 104, ¶ 9 (“The

district court must make sufficiently explicit findings of fact to give

the appellate court a clear understanding of the basis of its order.”).

¶ 18 In her ruling, the magistrate recapped the parties’ conflicting

testimony, which included wife’s representation that she had

severely limited income and husband’s claim that wife had

additional resources available to her that she had not disclosed.

For example, husband testified that wife purportedly had a pension,

a 401(k) account, and monies in bank accounts, but he did not

know specifics because wife had not fully disclosed her finances.

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The magistrate did not indicate which party she found more

credible on the matter. Nor did the magistrate make express

findings to resolve the conflicting evidence.

¶ 19 We therefore reverse the district court’s order adopting the

magistrate’s ruling that terminated husband’s maintenance

obligation. The matter is remanded for the district court to

reconsider husband’s motion. See C.R.M. 7(a)(10) (“The reviewing

judge shall adopt, reject, or modify the initial order or judgment of

the magistrate by written order, which order shall be the order or

judgment of the district court.”); see also In re Marriage of Matheny,

2024 COA 81, ¶ 19 (on a petition for review of a magistrate order,

the district court cannot remand the matter to the magistrate for

reconsideration).

¶ 20 In reconsidering wife’s motion, the district court must base its

decision on the parties’ current financial circumstances, taking

additional evidence and conducting further proceedings as it deems

appropriate. See C.R.M. 7(a)(8) (“The reviewing judge shall consider

the petition for review on the basis of the petition and briefs filed,

together with such review of the record as is necessary. The

reviewing judge also may conduct further proceedings, take

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additional evidence, or order a trial de novo in the district court.”);

see also In re Marriage of Wright, 2020 COA 11, ¶ 24; In re Marriage

of Kann, 2017 COA 94, ¶ 79; In re Marriage of Folwell, 910 P.2d 91,

93 (Colo. App. 1995) (“[M]odification of maintenance must be based

upon the parties’ needs and circumstances at the time of the

hearing . . . .”). The court also must make findings of fact and

conclusions of law sufficiently explicit to give us an understanding

of the basis of its ruling. See Gibbs, ¶ 9; see also § 14-10-114(4),

C.R.S. 2010; § 14-10-122(1)(a).1

IV. Conclusion

¶ 21 We reverse the district court’s order adopting the magistrate’s

ruling terminating husband’s maintenance obligation. The case is

remanded to the district court for further proceedings consistent

with this opinion.

JUDGE FOX and JUDGE SCHOCK concur.

1 In light of our conclusion, we need not address wife’s remaining

contentions.

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