Marriage of Fibiger

23CA1602 Marriage of Fibiger 09-19-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1602
City and County of Denver District Court No. 22DR30695
Honorable Andrew P. McCallin, Judge

In re the Marriage of

Michael John Fibiger,

Appellee,

and

Tristen Anne Rogers,

Appellant.

JUDGMENT AFFIRMED AND CASE
REMANDED WITH DIRECTIONS

Division VII
Opinion by JUDGE TOW
Pawar and Schutz, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced September 19, 2024

Polidori, Franklin, Monahan & Beattie, LLC, Robin Lutz Beattie, Lakewood,
Colorado, for Appellee

Schaffner Law LLC, Jennifer Schaffner, Greenwood Village, Colorado; Griffiths
Law PC, Kimberly A. Newton, Lone Tree, Colorado, for Appellant
¶1 In this dissolution of marriage case between Tristen Anne

Rogers (wife) and Michael John Fibiger (husband), wife appeals the

portion of the district court’s judgment that awarded maintenance

and divided the marital estate. We affirm the judgment and remand

the case for further proceedings on wife’s request for appellate

attorney fees and costs.

I. Background

¶2 The parties married in 2012. A few years later, wife inherited

over $2.3 million from her father. Following this inheritance, wife

left her full-time job and started a business coaching endurance

athletes. Husband worked as a financial advisor.

¶3 In 2023, the district court dissolved the marriage and entered

permanent orders. The court found that wife had gifted all but

$370,000 of her inheritance to the marriage. It explained that the

parties used her inheritance to purchase significant marital

property, fund four jointly owned TD Ameritrade investment

accounts, and financially support their lifestyle.

¶4 The court then divided the approximately $3 million marital

estate disproportionately in wife’s favor. It allocated to wife the

marital home, a home in Fairplay, bank accounts, life insurance

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policies, retirement accounts, her business, and a few other assets.

In doing so, the court allocated to wife the marital appreciation in

two individual retirement accounts (IRAs) that wife inherited from

her father and set aside to her over $300,000 in the IRAs as her

separate property. The court allocated to husband the TD

Ameritrade investment accounts, a home in Steamboat Springs,

and other bank accounts, life insurance policies, and retirement

accounts along with a few other assets. In total, wife received net

marital equity worth over $1.9 million, and husband received the

remaining $1 million.

¶5 Moving to maintenance, the court found that husband’s gross

income was $14,201 per month, and it found that wife’s gross

income was $5,726 per month, which included her wages, business

income, and income from an inherited life insurance policy. The

court determined that based on these incomes, the advisory

guideline amount of maintenance was $1,683 per month. The

court, however, determined that the guideline amount of

maintenance was not warranted. The court highlighted that the

parties historically used funds from wife’s inheritance to support

their lifestyle and standard of living during the marriage, and it

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found that she could continue to do so. The court then awarded

wife maintenance in the amount of $842 per month.

II. Maintenance

¶6 Wife contends that the district court erred by awarding her

$842 per month in maintenance. We disagree.

¶7 When awarding maintenance, the court must determine an

amount and term of maintenance that is fair and equitable based

on the parties’ needs and circumstances. § 14-10-114(3)(a)(II),

(3)(e), C.R.S. 2023. In doing so, the court considers the advisory

guideline amount of maintenance. § 14-10-114(3)(a)(II)(A),

(3)(b)(I)(C). This guideline is a starting point; it does not create a

presumptive maintenance amount. § 14-10-114(1)(b)(II), (3)(e). The

court then considers a nonexclusive list of statutory factors and

determines an appropriate maintenance amount based on the

totality of circumstances. § 14-10-114(3)(a)(II)(B), (3)(c), (3)(e).

¶8 We review a court’s maintenance determination for an abuse

of discretion. In re Marriage of Medeiros, 2023 COA 42M, ¶ 58. A

court abuses its discretion when it acts in a manifestly arbitrary,

unfair, or unreasonable manner, or it misapplies the law. Id. at

¶ 28. We will not disturb a court’s decision when the record

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supports it. In re Marriage of Atencio, 47 P.3d 718, 722 (Colo. App.

2002).

¶9 Wife suggests that the court determined the amount of

maintenance “based solely” on its expectation that she could use

her inheritance to support her financial needs. While the court

highlighted the parties’ historic use of her inheritance, this was not

the only circumstance considered by the court when determining

maintenance. The court also considered the parties’ incomes, the

disproportionate allocation of marital property in wife’s favor, and

wife’s significant financial resources, which included over $1.9

million in marital equity and $370,000 in separate property. See

§ 14-10-114(3)(c)(I), (IV), (V). The court further noted the parties’

contributions to the marriage, husband’s financial resources, and

the parties’ lifestyle during the marriage. See § 14-10-114(3)(c)(II),

(III), (X). The court thus determined a fair and equitable amount of

maintenance based on the totality of circumstances. See § 14-10-

114(3)(e).

¶ 10 Still, wife argues that the record does not support the court’s

finding that she could continue to support her financial needs with

her inheritance. To get there, she asserts that the court relied on

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the parties’ historical use of the TD Ameritrade investment accounts

to find that they used her inheritance during the marriage but that

the court allocated those investment accounts to husband.

However, the record reveals that the TD Ameritrade investment

accounts were not the only assets from her inheritance that the

parties used to sustain their lifestyle. Husband testified that wife

also used “distributions from [her] inherited IRAs” to pay expenses.

And the evidence showed that wife received over $8,600 in

distributions from the inherited IRAs in 2022 and that the parties

regularly received such distributions during the marriage. Because

wife retained these inherited IRAs, the court reasonably determined

that she could continue to use her inheritance to support her

financial needs. See In re Marriage of Thorburn, 2022 COA 80, ¶ 49

(recognizing that the district court determines the credibility,

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

the inferences and conclusions to be drawn therefrom).

¶ 11 Wife also argues that the “evidence contradicts the court’s

finding” that she used her inheritance to financially support the

parties during the marriage. Even though wife claimed that

husband used her inheritance without her knowledge or

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involvement, the court rejected that claim and, instead, found that

“wife had to know that her inherited property was being used to

acquire marital property and to supplement the parties’ lifestyle and

standard of living.” We must defer to this determination when, as

here, the evidence supports it. See id.; see also In re Marriage of

Evans, 2021 COA 141, ¶ 45 (“We are not at liberty to re-evaluate

the conflicting evidence and set aside findings supported by the

record.”). Indeed, husband testified that the parties used funds

from wife’s inheritance to acquire marital property, fund wife’s

business, and pay their living expenses. And he said that wife

knew of and authorized their use of the inheritance and that they

could not have supported their standard of living without it.

¶ 12 Nor do we agree with wife’s suggestion that the court’s

maintenance determination improperly required her to deplete her

assets to satisfy her reasonable needs. True, wife is “not required to

consume her portion of the marital estate before being entitled to

maintenance.” In re Marriage of Sewell, 817 P.2d 594, 597 (Colo.

App. 1991). But the court did not determine that wife was not

entitled to maintenance at all because of these funds. The court

merely determined that the parties’ historical use of these funds

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helped inform the amount of maintenance wife would require. We

are aware of no case law that suggests a court cannot take such

established practice during the marriage into account when

determining the amount of maintenance.

¶ 13 To the contrary, as discussed above, the court found, with

record support, that wife historically used her inheritance to satisfy

their financial needs, and it could properly consider this established

lifestyle when determining an equitable maintenance amount. See

§ 14-10-114(3)(c)(III). Moreover, the court recognized that the

parties’ historic use of the inheritance did not negatively impact the

overall value of their assets and that they, instead, had grown their

estate. The court thus reasonably inferred that given their

customary practice, wife could rely on assets from her inheritance

to support her financial needs. Cf. In re Marriage of Jones, 627 P.2d

248, 253-54 (Colo. 1981) (reversing a court’s maintenance order

when the court did not consider the income a party could generate

from her property).

¶ 14 To the extent wife generally asserts that the “court erred in

calculating [her] income,” she does nothing to legally or factually

develop that argument. We therefore will not further address it.

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See In re Parental Responsibilities Concerning S.Z.S., 2022 COA 105,

¶ 29.

¶ 15 The district court thus acted within its discretion when it

awarded wife maintenance in the amount of $842 per month.

III. Property Division

¶ 16 Wife next contends that the district court erred by finding that

the parties agreed her business was worth $17,000. We discern no

reversible error.

¶ 17 When allocating marital property, the court determines an

approximate current value of the parties’ assets. In re Marriage of

Wright, 2020 COA 11, ¶ 4. The court may select one party’s

proposed value over that of the other party, or the court may

determine its own value, and we will not disturb its decision when

the value is reasonable in light of the evidence as a whole.

Medeiros, ¶ 41; see also LaFleur v. Pyfer, 2021 CO 3, ¶ 61

(recognizing the district court’s discretion over property division).

¶ 18 The parties informed the court that they agreed to the present

values for the assets identified on wife’s proposed property division

spreadsheet. While this spreadsheet did not state a specific value

for wife’s business, it suggested that the business had no value.

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Then, during the hearing, husband testified that he believed the

value of wife’s business was $17,000 (the value of the business’

assets) and that it was subject to the court’s allocation.

¶ 19 The court made no express findings on the business’ value.

Rather, after addressing the other assets, the court said that the

“parties agreed to the nature, value and allocation of the remaining

property and debt identified on the attached property allocation

spreadsheet,” and, on that spreadsheet, the court listed the

business’ value as $17,000.

¶ 20 The court thus appeared to accept husband’s value for wife’s

business. See Medeiros, ¶ 41. While the court may have misstated

the parties’ agreement to that value, any error in the court’s

misstatement was harmless. An appellate court may disregard any

error or defect in a dissolution proceeding when the aggregate effect

of the error does not affect the parties’ substantial rights. See

C.A.R. 35(c); see In re Marriage of Balanson, 25 P.3d 28, 36 (Colo.

2001). A court’s error when dividing the marital estate that impacts

only a small percentage of the overall marital estate does not affect

the parties’ substantial rights. Balanson, 25 P.3d at 36.

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¶ 21 The overall marital estate was worth almost $3 million. Thus,

any error by the court in valuing the business at $17,000 (as

compared to $0) amounts to less than 1% of the marital estate.

Such a small error does not warrant reversal. See id. at 38

(suggesting that an error affecting less than 2% of the overall

marital estate is harmless).

IV. Appellate Attorney Fees and Costs

¶ 22 Wife requests an award of attorney fees and costs on appeal

based on the disparity in the parties’ financial resources. See

§ 14-10-119, C.R.S. 2023; In re Marriage of Collins, 2023 COA

116M, ¶ 86. However, the district court is better equipped to

address the factual issues associated with this request, and we

thus remand it to the district court. See C.A.R. 39.1; Collins, ¶ 86.

¶ 23 Costs are taxed in accordance with C.A.R. 39(a)(2).

V. Disposition

¶ 24 We affirm the district court’s judgment and remand the case

for further proceedings on wife’s request for appellate attorney fees

and costs.

JUDGE PAWAR and JUDGE SCHUTZ concur.

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