Marriage of Kupersmit

22CA2098 Marriage of Kupersmit 07-18-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA2098

Jefferson County District Court No. 21DR1293

Honorable Philip J. McNulty, Judge

In re the Marriage of

Daniela Beatrice Uslan,

Appellee,

and

Daniel Kupersmit,

Appellant.

JUDGMENT AFFIRMED IN PART AND REVERSED IN PART,

AND CASE REMANDED WITH DIRECTIONS

Division III

Opinion by JUDGE DUNN

Yun and Moultrie, JJ., concur

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

Announced July 18, 2024

Daniela Beatrice Uslan, Pro Se

Daniel Kupersmit, Pro Se

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¶ 1 In this dissolution of marriage proceeding involving Daniel

Kupersmit (husband) and Daniela Beatrice Uslan (wife), husband

appeals those portions of the permanent orders concerning property

division and maintenance. We affirm in part, reverse in part, and

remand the case with directions.

I. Background

¶ 2 The district court dissolved the parties’ ten-year marriage and

allocated marital assets and debts between the parties. It adopted

the parties’ stipulation that the marital home be sold and ordered

$299,220 to be paid to wife’s parents from the proceeds. This

amount accounted for various loans the parties took from wife’s

parents for a down payment on the marital home, living and

educational expenses while husband was in medical school, and for

wife’s living expenses after dissolution was filed. The court ordered

that the remaining proceeds be split equally between the parties.

¶ 3 Additionally, the district court ordered each party to retain

their own vehicles, bank accounts, and retirement accounts and to

pay their own credit card debts and attorney fees. The court found

that husband’s substantial student loans were partly premarital

debt and partly marital debt but ordered responsibility for them to

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him alone. Lastly, the court ordered that husband pay wife

$4,571.25 per month in maintenance for sixty-three months and

$777.27 per month in child support.

II. Property Division

¶ 4 Husband challenges the district court’s finding that the

$200,000 from wife’s parents for a down payment on the marital

home was a loan, rather than a gift. He also challenges the court’s

order requiring that he be solely responsible for his student loan

debt. We are not persuaded.

A. Standard of Review

¶ 5 A district court has great latitude to make 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.”). A court abuses its discretion when its

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

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misconstrues or misapplies the law. In re Marriage of Fabos, 2022

COA 66, ¶ 16. The allocation of marital debt is in the nature of

property division and is reviewed under the same abuse of

discretion standard. See In re Marriage of Nevarez, 170 P.3d 808,

814 (Colo. App. 2007).

B. Loans from Wife’s Parents

¶ 6 When allocating the marital estate, the district court must

determine whether a particular debt exists and, if so, whether that

debt is marital. See In re Marriage of Balanson, 25 P.3d 28, 35

(Colo. 2001); In re Marriage of Jorgenson, 143 P.3d 1169, 1171-72

(Colo. App. 2006).

¶ 7 A court’s determination of marital debt, including the

classification of money as a debt or a gift, depends on the resolution

of factual disputes. See In re Marriage of Corak, 2014 COA 147,

¶ 9; see also In re Marriage of Hoffman, 650 P.2d 1344, 1345-46

(Colo. App. 1982). “In order to qualify as a ‘gift,’ a transfer of

property must involve a simultaneous intention to make a gift,

delivery of the gift, and acceptance of the gift.” Balanson, 25 P.3d

at 37. Because the court determines the credibility, weight,

probative force, and sufficiency of the evidence, as well as the

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inferences and conclusions to be drawn from the evidence, we defer

to its factual findings when they are supported by the record. See

In re Marriage of Lewis, 66 P.3d 204, 207 (Colo. App. 2003).

¶ 8 The district court found that it was “crystal clear, beyond clear

and convincing evidence” that the $200,000 provided by wife’s

parents as a down payment for the marital home was a loan, not a

gift. It noted that wife’s and wife’s father’s testimony was

“substantially, overwhelmingly” more credible than husband’s

testimony on this point. It found that the parties would never have

been able to buy the marital home without wife’s parents help and

the fact that wife’s parents refinanced their own home to provide

the money supported the notion that it was not a gift.

¶ 9 On appeal, husband argues that he never had a conversation

with anyone about the $200,000 being a loan or paying back the

$200,000. He also highlights a “gift letter” that wife’s parents

signed when the parties were in the process of qualifying for their

mortgage.

¶ 10 But the court credited both wife’s and her father’s testimony

that they talked about having to pay the $200,000 back. Wife also

testified that she told husband it was not a gift and “he seemed

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kind of annoyed by it, but he just said okay.” She testified that

their mortgage advisor told them that the $200,000 “needed to be a

gift” in order to qualify for a mortgage so her parents signed a “gift

letter” but made it clear that the money was a loan and that it

would be paid back. And the court specifically found that the

$200,000 “was a loan, irrespective of the Gift Affidavit.”

¶ 11 With respect to the other loans, both wife and her father

testified that the parties borrowed more than $88,000 while

husband was in medical school to pay for living expenses and to

help husband travel to Germany as part of his residency. The

parties had made payments on this loan and owed about $62,000.

The court ordered that the balance of this loan be split between the

parties and paid from the proceeds of the sale of the marital home.

¶ 12 Husband argues that wife’s and wife’s father’s testimony was

“false” and “slanderous,” that wife’s parents earned well over

$300,000 on a house they bought in Denver for the parties to live in

while he was in medical school, and that wife’s parents held

husband solely responsible for the $88,000 borrowed. Even if these

allegations are true, supported by the record, and reviewable by this

court, we do not perceive how they establish that the district court

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abused its discretion by requiring the $62,000 loan be split between

the parties and paid from the proceeds of the sale of the marital

home.

¶ 13 Additionally, after the parties filed for dissolution, wife

borrowed around $36,000 from her father to pay her rent and for

summer childcare. Husband argues the district court erred by

requiring this loan also be paid from the proceeds of the marital

home because it was not a debt he agreed to or incurred. But the

court found, with record support, that husband paid “very little

child support and maintenance” since dissolution was filed and,

therefore, the loan should be shared equally and be paid from the

proceeds of the marital home. See In re Marriage of Burford, 26

P.3d 550, 560 (Colo. App. 2001) (debts incurred while the parties

are separated are marital).

¶ 14 Husband argues that he paid wife $10,000 shortly after

dissolution was filed, and the record shows he gave her another

$3,500 a few months later. It is unclear from the record whether

the parties intended this money to be temporary maintenance or

child support. At any rate, husband’s income amounted to more

than $20,000 a month and, thus, the district court did not abuse

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its discretion when it found that the $13,500 husband gave wife

over the course of almost a year while dissolution was pending

amounted to “very little” to “no” temporary maintenance and child

support.

¶ 15 In sum, husband essentially asks us to reweigh the evidence

to find in his favor and substitute our own judgment for that of the

district court, which we can’t do. See In re Marriage of Nelson, 2012

COA 205, ¶ 35 (When reviewing for an abuse of discretion, even

where “there is evidence in the record that could have supported a

different conclusion, we will not substitute our judgment for that of

the district court.”); see also In re Marriage of Thorburn, 2022 COA

80, ¶ 49 (it is for the district court, not the reviewing court, to

determine the witnesses’ credibility and the weight of the evidence).

C. Student Loan Debts

¶ 16 Husband next argues that the district court abused its

discretion when it allocated more than $400,000 of student loans to

him even though he testified that about $86,000 was used by both

parties as living expenses. But the court rejected husband’s

arguments about living expenses. It credited wife’s testimony that

she worked at various jobs while husband was in medical school

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and used that money for living expenses. Beyond that, the record

does not contain documentation showing that any portion of

student loans were used for the parties’ living expenses.

¶ 17 Husband contends that the district court’s finding that wife

provided support to husband while he was in medical school to her

detriment is “wholly and clearly unreasonable” and asserts that her

various business ventures during this time actually cost the parties

money. But wife testified that while husband was in medical school

she worked as a teacher, a private tutor, at an after-school

program, and as a website designer. She testified that she had an

online business that she had to “start over” when the parties moved

to Florida for husband’s residency and that she used her earnings

for “household expenses” during that time. The court found that

wife and her parents did “everything they could to put [husband] in

a position where he’s now able to earn substantial amounts of

money” but are not receiving benefits from his education and higher

earnings. Accordingly, it found it equitable for husband to retain all

of his student loan debt. Because the record supports the court’s

findings, we can’t conclude that the court abused its discretion.

See In re Marriage of Speirs, 956 P.2d 622, 625 (Colo. App. 1997) (a

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court does not abuse its discretion in finding that all of a student

loan should be the responsibility of the party incurring it because

the party’s degree will primarily benefit that party).

III. Husband’s Other Contentions

¶ 18 Husband also generally contends that the district court

abused its discretion when it (1) figured his income at the

“maximum possible without accounting for student loans or taxes”

and knowing that his bonuses were “inconsistent”; (2) divided the

child’s medical and education expenses in a manner that was not

requested by either party and complicates their child’s care; and (3)

awarded wife maintenance.

¶ 19 First, with respect to the income determination, the court used

husband’s 2021 W-2, as confirmed by his current paystub, to find

that he made approximately $20,000 per month. Although that

figure included a bonus, husband does not explain how the court

abused its discretion by using this number. See § 14-10-

114(8)(c)(I)(E), C.R.S. 2023 (for purposes of maintenance gross

income includes income from any source including bonuses); § 14-

10-115(5)(a)(I)(E), C.R.S. 2023 (for purposes of child support gross

income includes income from any source including bonuses).

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¶ 20 Second, with respect to the division of medical and

educational expenses, we can’t conclude that the court abused its

discretion when it required husband to be responsible for seventy-

five percent of the child’s medical care and schooling expenses and

wife to cover twenty-five percent, given the court’s finding that

husband’s income was four times as much as wife’s. And, other

than one sentence, husband does not further develop his argument

about the allocation of childcare expenses. See In re Parental

Responsibilities Concerning S.Z.S., 2022 COA 105, ¶ 29 (we will not

address an argument that lacks legal and factual development).

¶ 21 And finally, because the court didn’t make sufficient findings

to permit appellate review regarding its determination of

maintenance, we must reverse this portion of the permanent orders

and remand the case so that the district court can make findings

sufficient for appellate review. See Wright, ¶ 19; see also §§ 14-10-

113(3)-(4). And because the findings must be based upon the

parties’ needs and circumstances at the time of the remand

hearing, on remand the court must take additional evidence on this

issue. See In re Marriage of Simon, 856 P.2d 47, 51 (Colo. App.

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1993) (awards of maintenance must be based upon the parties’

needs and circumstances at the time of the hearing).

IV. Disposition

¶ 22 We affirm the judgment in part, reverse the judgment in part,

and remand the case with directions.

JUDGE YUN and JUDGE MOULTRIE concur.