Marriage of Bolton

23CA0720 Marriage of Bolton 11-14-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA0720
Jefferson County District Court No. 17DR30236
Honorable Lily W. Oeffler, Judge

In re the Marriage of

Stacey Bolton, n/k/a Stacey Stafford,

Appellee,

and

Michael K. Bolton,

Appellant.

JUDGMENT AFFIRMED AND CASE
REMANDED WITH DIRECTIONS

Division I
Opinion by JUDGE J. JONES
Lipinsky and Sullivan, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced November 14, 2024

The Harris Law Firm PLLP, Katherine O. Ellis, Denver, Colorado, for Appellee

Feingold Horton, PLLC, Frances C. Fontana, Greenwood Village, Colorado, for
Appellant
¶1 In this post-dissolution of marriage proceeding involving

Michael K. Bolton (father) and Stacey Bolton, now known as Stacey

Stafford (mother), father appeals the district court’s post-decree

orders on spousal maintenance modification, child support

modification, and attorney fees. We affirm.

I. Background

¶2 Mother petitioned to end the parties’ twenty-four-year

marriage in 2017. The next year, the district court entered a

dissolution decree and permanent orders. This case arises out of

two post-decree motions filed by father: one to modify parenting

time and decision-making responsibility regarding the parties’

children and the other to modify spousal maintenance and child

support.

¶3 The court denied the first motion and awarded wife her

attorney fees incurred in responding to that motion under section

14-10-119, C.R.S. 2024. Father appealed the award of attorney

fees. A division of this court reviewed the attorney fees award and

remanded for additional findings on the parties’ overall economic

circumstances. In re Marriage of Bolton, (Colo. App. No. 22CA0435,

May 4, 2023) (not published pursuant to C.A.R. 35(e)) (Bolton I).

1
¶4 While that appeal was pending, father filed the second motion.

The district court denied that motion. It concluded that, as to

maintenance, no modification was appropriate in light of the

parties’ respective incomes. And as to child support, the court

determined that the $3,000 figure to which the parties had

stipulated for purposes of permanent orders remained appropriate

given the parties’ respective incomes and other relevant economic

circumstances.

¶5 Around the same time, as the prior division directed, the

district court entered an order on mother’s attorney fees incurred in

responding to father’s motion to modify parenting time and

decision-making authority. Taking into account evidence and

testimony the parties had submitted on father’s two motions, the

court made the following factual findings relevant to this appeal:

• Father was voluntarily underemployed, having accepted a

seventy percent salary reduction from his sole client.

• Father hadn’t conducted a good faith job search for

higher paying employment.

• Father’s imputed income remained $50,000 per month

based on past earnings.

2
• Mother should be awarded attorney fees because of the

disparity in the parties’ finances.

The court ordered father to pay half of mother’s fees.

II. Discussion

¶6 Father challenges the district court’s orders on spousal

maintenance, child support, and attorney fees. We affirm the

orders.

A. Maintenance Modification

¶7 Father contends that the district court erred by imputing

income to him in denying his request to modify spousal

maintenance. We don’t agree.

1. Additional Facts

¶8 Father worked as outside general counsel for a single client, a

corporation. He testified that his income from 2016 through 2019

was so high (about $80,000 per month) because during that time

the corporation was engaged in intense litigation involving the

father of one of the corporation’s chief executive officers, and that

his income was reduced in 2020 when commodity prices in the

corporation’s industry collapsed, culminating in a renegotiation of

his compensation agreement. He agreed to reduced compensation

3
of $25,000 per month as offered by his client. He also said that he

“constantly looked at other alternatives” of employment by routinely

checking for jobs and adding his name to legal placement service

email lists.

¶9 The district court found, however, that father could continue

to earn $50,000 per month — the amount the court had imputed to

father for permanent orders — but father “made a choice to make

significantly less than what he has made in the past and what he

was continuing to make.” Based on that conclusion, and others

discussed below, the court denied father’s motion.

2. Standard of Review and Applicable Law

¶ 10 We review a maintenance award for an abuse of discretion. In

re Marriage of Medeiros, 2023 COA 42M, ¶ 58. But whether a

spouse is voluntarily underemployed is a mixed question of fact and

law. In re Marriage of Garrett, 2018 COA 154, ¶ 9. We defer to the

district court’s factual findings if they have record support. In re

Marriage of Gibbs, 2019 COA 104, ¶ 9 (“We defer to the district

court’s factual findings unless they are clearly erroneous.” (citing In

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

Marriage of Bowles, 916 P.2d 615, 617 (Colo. App. 1995) (the

4
district court’s resolution of conflicting evidence is binding on

review). We review questions of law de novo. In re Marriage of

Young, 2021 COA 96, ¶ 9.1

¶ 11 “Motions to modify are not considered under the same

standard as initial awards.” Id. at ¶ 16. Maintenance should only

be modified “upon a showing of changed circumstances so

substantial and continuing as to make the terms unfair . . . .”

§ 14-10-122(1)(a), C.R.S. 2024. The moving party “bears a heavy

burden of proving that the provisions have become unfair under all

relevant circumstances.” Young, ¶ 12.

¶ 12 “If a party is voluntarily unemployed or underemployed,

maintenance shall be calculated based on a determination of

potential income.” § 14-10-114(8)(c)(IV), C.R.S. 2024. Voluntary

underemployment means that a party is shirking a financial

obligation “by unreasonably for[]going higher paying employment

that he or she could obtain.” People v. Martinez, 70 P.3d 474,

1 Father asserts, in conclusory fashion, that the district court

applied the wrong legal standard. But he fails to develop this
challenge in his brief. We don’t review conclusory assertions
presented without supporting analysis and authority. People v.
Brassill, 2024 COA 19, ¶ 64.

5
476-78 (Colo. 2003). Relevant factors may include the amount of

time spent seeking higher paying employment, whether the parent

has refused employment, whether jobs are available, prevailing

wage rates in the relevant industry, and the parent’s employment

experience and history. Id.

3. Father’s Voluntary Underemployment

¶ 13 Relying almost entirely on his own testimony, father argues

that the record doesn’t support the court’s finding that he is

voluntarily underemployed. But the district court considered that

testimony and nevertheless concluded that father was never “really

engaged in a job search.” The court found “no good-faith effort at

him attempting to find a job that in any way reflects his prior

earnings.” And the court found that father was, in effect, charging

his client an hourly rate far below what he had charged the same

client and what the market would bear, father could take on other

clients, father’s health didn’t affect his earning ability, and, given

his experience as a partner at law firms, he could obtain similar

employment paying a good deal more than $25,000 per month.

6
¶ 14 Record evidence supports the district court’s findings.2 The

court considered father’s testimony concerning his health concerns

and his financial disclosures, assets, liabilities, and his historical

income approaching a million dollars annually. The court noted

instances of forgoing higher paying employment — father’s failure to

renegotiate his compensation with his sole client and his refusal to

take on additional clients as he had done in the past. The court

reviewed father’s sporadic and limited search for employment at the

income level he previously enjoyed — discussion with one family

business of a possible engagement and passive listings on websites.

And it noted that, when father did invest time in a job search, he

did so with limited effort. It also compared his current claimed

earnings of $25,000 per month to his historic income, including

earning $80,000 a month at the time of permanent orders.

Therefore, we conclude the court acted well within its discretion by

finding that father was voluntarily underemployed.

2 Though the court didn’t use the term “shirking,” its conclusion

that father was shirking was implicit. A court’s findings may be
implicit in its ruling. See In re Marriage of Nelson, 2012 COA 205, ¶
41. Still, it must make factual findings sufficient to support its
determination. In re Marriage of Martin, 42 P.3d 75, 80 (Colo. App.
2002). The court did so.

7
4. Father’s Health

¶ 15 Father also argues that the district court’s decision to impute

income to him was erroneous because the court disregarded his

health concerns. We disagree.

¶ 16 Father had cancer in 2000. In 2016, he had a heart attack

and was diagnosed with cardiovascular disease. He was also

hospitalized in October 2022 for symptoms of an unknown origin

but was released the next day. Father testified that it was more

challenging for him to do his job as an attorney than it had been

because of these health concerns.

¶ 17 Father anticipated that he would be unable to ski his usual

thirty days during the 2022-2023 season due to his health. At the

very hearing at which his health concerns were discussed, however,

he said he had just returned from an overseas trip — working

significant hours abroad. And he was scheduled to board a plane

for another work trip the day after the hearing.

¶ 18 The district court concluded that $50,000 of imputed monthly

income remained an appropriate income figure after considering

father’s health concerns. The district court found that father was

able to work extraordinary hours from time to time, including the

8
days surrounding the hearing. And father hadn’t indicated that his

health concerns interfered with his ability to ski, just that they

might interfere going forward.

¶ 19 Under these circumstances, we can’t say that the district court

gave insufficient weight to father’s health-related testimony. See In

re Estate of Owens, 2017 COA 53, ¶ 22 (the weight to be given

particular testimony is entirely within the district court’s purview);

In re Marriage of Rahn, 914 P.2d 463, 465 (Colo. App. 1995) (an

appellate court may not reweigh the evidence).

B. Child Support Modification

¶ 20 Father next argues that the district court abused its discretion

by not modifying the child support obligation. Again, we disagree.

1. Additional Facts

¶ 21 Mother and father stipulated — for purposes of the permanent

orders entered in 2018 — that father would pay mother $3,000 in

child support per month. At the time, the parties’ five children were

all under the age of majority. By the time father filed his motion in

2023, two were emancipated. After reviewing the child support

guidelines and the evidence concerning the parties’ financial

circumstances, the court determined that $3,000 per month

9
remained “a fair and equitable child support payment.” The record

shows that the court considered the following:

• Father’s imputed income remained $50,000 per month.

• Mother’s income from her work was $3,333 per month.

• Father’s maintenance obligation to mother had been

reduced by $3,000 per month per the permanent orders.

• Two children had reached the age of nineteen or above.

• Father no longer exercised overnight parenting time with

the children and his parenting time with them had

decreased over the years.

• The parties’ combined income significantly exceeded the

top gross income in the statutory child support schedule.

See § 14-10-115(7)(b), C.R.S. 2024. The court said that,

at the top end of the schedule, father’s obligation would

average $2,800 per month, taking into account the

children’s ages and changes in father’s maintenance

payments to mother. Extrapolating from the schedule

based on the parents’ combined income would yield a

figure “thousands of dollars higher.”

10
• The combined cost of the children’s food, shelter,

education, transportation, and recreation had increased

since dissolution.

• Mother pays for the children’s expenses aside from

healthcare.

• Mother had legitimately incurred significant debt.

• Mother’s attorney fees had been very high.

• Mother had needed to liquidate retirement assets.

• Father had liquidated assets.

2. Standard of Review and Applicable Law

¶ 22 We review a child support order for an abuse of discretion

because determinations regarding the parents’ financial resources

are factual in nature. In re Marriage of Balanson, 25 P.3d 28, 35

(Colo. 2001). A court abuses its discretion when its decision is

manifestly arbitrary, unreasonable, or unfair, or misapplies the

law. In re Marriage of Bergeson-Flanders, 2022 COA 18, ¶ 10. We

review de novo whether the district court applied the correct legal

standard. In re Marriage of Boettcher, 2018 COA 34, ¶ 6, aff’d,

2019 CO 81.

11
¶ 23 “[P]rovisions of any decree respecting child support may be

modified . . . only upon a showing of changed circumstances that

are substantial and continuing . . . .” § 14-10-122(1)(a). A court

must determine whether — because of a substantial and continuing

change — the terms of the original decree have become unfair. In re

Marriage of Aldrich, 945 P.2d 1370, 1375 (Colo. 1997). The moving

party bears a heavy burden to show credible evidence of a

cognizable change. Id. at 1376.

3. Father’s Income

¶ 24 Because we’ve already concluded that the district court didn’t

abuse its discretion by imputing income to father for purposes of

spousal maintenance, we likewise reject father’s identical challenge

to the court’s child support determination.

4. Mathematical Error

¶ 25 Father argues that the district court made a mathematical

error in its analysis of his motion to modify child support. We

conclude that, although the district court did make a mathematical

error, the error was harmless.

¶ 26 In the course of issuing its ruling, the court said, “The Court

has considered the disparity in income between the parties. Using

12
$50,000 a month as imputed income that should be earned, the

Court finds that [father] earns double the income of [mother] even

when maintenance and child support are added as income.”

¶ 27 Father argues that, if his maintenance payments to wife and

child support count as part of her income, then for child support

calculation purposes, those same amounts should be subtracted

from his income. Thus, he says, his $50,000 imputed monthly

income should be reduced by his monthly $18,000 maintenance

and $3,000 child support obligations, making his income $29,000

per month. On the other hand, mother’s imputed income of $3,333

per month plus the maintenance and child support makes her total

income $24,333 per month. This would mean that father has about

twenty percent more income than mother, not one hundred percent

more as the district court indicated.

¶ 28 Mother concedes that the court made a mathematical error.

But she says that, under the permanent orders, her maintenance

was reduced to $15,000 on May 1, 2023, making father’s monthly

income $32,000 after paying maintenance and child support. Her

income of $3,333, plus $15,000 in maintenance and $3,000 child

support, makes her monthly income $21,333. This means that

13
father has about fifty percent more income than she does. Mother’s

calculation is correct.

¶ 29 Accordingly, we conclude that the district court erred by

saying that father earned double mother’s income after accounting

for maintenance and child support. But because the record

supports the court’s ultimate determination that $3,000 remains a

fair amount of child support, we conclude that the error is

harmless. See C.R.C.P. 61 (we may disregard any error not

affecting the parties’ substantial rights).

¶ 30 The court’s error didn’t affect father’s substantial rights for

the following interrelated reasons. First, the difference in incomes

was only one factor among many the court considered. (We discuss

these factors in more detail below.)

¶ 31 Second, while knowing the children’s ages, father stipulated to

paying mother $3,000 per month. He knew at the time that his

children would, over time, reach the age of majority, but he

nevertheless agreed to the figure without making any provision for a

change in the child support amount based on the children’s ages.3

3 We don’t say that this alone precluded father from seeking a

modification of child support; it’s simply a relevant factor.

14
¶ 32 Third, the parents’ combined imputed income was well above

the top of the schedule of base child support obligations created by

the General Assembly. See § 14-10-115(7)(b). Because of this, the

court had broad discretion in calculating support. See Boettcher,

¶¶ 12-18. As noted, the district court said it had extrapolated from

the schedule and calculated a projected amount of monthly child

support “thousands of dollars higher” than $2,800 per month.

Father doesn’t take issue with that conclusion.

¶ 33 Fourth, the court recognized changes in circumstances

supporting a figure of $3,000 per month in child support,

notwithstanding that two of the parties’ five children had reached

the age of majority. For one, it noted that father no longer exercised

overnight parenting time with any of the children. The court also

found that father’s overall parenting time had decreased over the

years. The court found, with record support, that the cost of the

children’s food, shelter, transportation, and recreation — all of

which mother paid — had increased.

¶ 34 Fifth, the court considered the incomes, assets, and liabilities

of both mother and father and concluded, in essence, that father

was in a far better financial position than mother.

15
¶ 35 So although the district court made a mathematical mistake

by finding that father earns twice the income of mother after

accounting for maintenance and child support, in the end, its

decision not to modify father’s child support obligation is supported

by the record. The fact remains that father’s income is fifty percent

higher than mother’s — even accounting for maintenance and child

support — and the court properly considered other circumstances

showing that $3,000 per month remained fair, equitable, and in the

children’s best interests.

5. Mother’s Debt

¶ 36 Father next argues that the district court erred by

mischaracterizing the reason for mother’s debt. We disagree.

¶ 37 Father says the court should not have considered mother’s

debt because mother incurred it to pursue a Ph.D. degree and her

choice to do so won’t benefit the children before all but one will

become emancipated.4

¶ 38 The court, however, may consider debt when evaluating

financial circumstances. See § 14-10-115(2)(b). And we agree with

4 The debt considered by the court also included attorney fees

incurred in this litigation.

16
mother that father hasn’t provided any authority supporting the

proposition that incurring debt to obtain higher paying employment

is somehow irrelevant to the required evaluation of the parties’

financial circumstances. Therefore, we conclude that the district

court didn’t abuse its discretion by considering mother’s student

loan debt.

6. Father’s Asset Liquidation

¶ 39 We also reject father’s argument that the district court

improperly weighed evidence of his use of assets to pay expenses.

¶ 40 To support his assertion, father cites the court’s statement

that he was using his retirement funds to pay expenses, and

contrasts this with the court’s statement at a hearing that “It’s a

mystery why [father] is not in debt. It’s a mystery how [father] is

able to pay these expenses.”

¶ 41 It appears that father believes the court therefore failed to

account for his use of assets to pay expenses when imputing

income to him. But we have already concluded that record evidence

supports the court’s imputation of income to father — a conclusion

independent of father’s asset liquidation. Father fails to explain

how his liquidation of certain assets should have led the district

17
court to arrive at a different figure when imputing income to him.

To the extent father argues that his sworn financial statements and

related documents should have led the court to reach a contrary

conclusion, it was within the court’s province to weigh any

conflicting evidence. See Bowles, 916 P.2d at 617.

C. Attorney Fees

¶ 42 Lastly, father asks us to reverse the district court’s order

entered on remand requiring that he pay half of mother’s attorney

fees incurred in connection with his motion to modify parenting

time and decision-making authority. He hasn’t convinced us to do

so.

1. Additional Facts

¶ 43 As noted, a division of this court reversed and remanded the

previous award of attorney fees on the first modification motion for

additional findings. Bolton I, ¶¶ 19-20. On remand, the district

court made additional findings. It determined how much father

could earn in income using an imputed income analysis, considered

father’s and mother’s respective expenses, factored in mother’s

receipt of maintenance, and considered the parties’ respective

18
assets and liabilities. The district court concluded that it was fair

and equitable that father pay half of mother’s fees.

2. Standard of Review and Applicable Law

¶ 44 “We review the district court’s decision to award attorney fees

and costs for an abuse of discretion, but we review the legal

conclusions forming the basis for that decision de novo.” In re

Marriage of Gallegos, 251 P.3d 1086, 1087 (Colo. App. 2010). “[A]n

award of attorney fees must be reviewed in light of the parties’

financial resources after the property division and any maintenance

award.” In re Marriage of Huff, 834 P.2d 244, 248 (Colo. 1992).

“The trial court has wide discretion in awarding attorney fees, and

its ruling will not be disturbed absent an abuse of that discretion.”

In re Marriage of McCord, 910 P.2d 85, 90 (Colo. App. 1995) (citation

omitted).

¶ 45 “The court from time to time, after considering the financial

resources of both parties, may order a party to pay a reasonable

amount . . . for attorney fees . . . .” § 14-10-119. “The award of fees

is designed to equalize the status of the parties and to enable the

court to ensure that neither party is forced to suffer unduly as a

consequence of the proceedings.” McCord, 910 P.2d at 90.

19
3. Analysis

¶ 46 Father argues that the district court failed to follow the

division’s instructions on remand by applying an improper legal

analysis in its determination. We disagree.

¶ 47 First, father says that the district court was supposed to

determine attorney fees as of the time of the original post-decree

hearing and should have held a hearing on remand to determine

the parties’ economic circumstances as of that point in time. He

bases this argument on the following line from the division’s

opinion: “On this record, however, we cannot tell if the court

evaluated the parties’ overall economic circumstances at the time of

the proceeding.” Bolton I, ¶ 15. His argument, however,

misconstrues the division’s opinion.

¶ 48 The statement on which father relies was made in the context

of addressing whether there were sufficient findings to meaningfully

review the district court’s resolution of mother’s request for attorney

fees in December 2021. Later in the opinion, the division gave the

district court directions to follow on remand:

If the court on remand determines that the
disparity in the parties’ current financial
circumstances is not what it originally

20
believed, it may deny mother’s request. If, on
the other hand, the court determines that the
parties’ current financial circumstances are
sufficiently disparate that a fee award is
appropriate, the court must apply the lodestar
method . . . .

Id. at ¶ 20 (emphasis added). The division plainly contemplated

that the district court would evaluate the parties’ circumstances as

of the time of its determination of mother’s request on remand.

¶ 49 Second, father repeats his mathematical error argument

concerning the parties’ respective incomes. But, as discussed

above, the court’s calculation was not as mathematically incorrect

as father claims: father’s income is still one-and-one-half times

mother’s.

¶ 50 As well, the court reviewed a substantial amount of testimony

and other evidence relating to father’s motion and made extensive

findings based on that evidence. We simply cannot say that the

court’s determination of attorney fees suffers from insufficient

findings or a lack of supporting evidence.

III. Appellate Attorney Fees

¶ 51 Mother requests an award of her appellate attorney fees under

section 14-10-119, citing a significant disparity in the parties’

21
respective financial circumstances. Because the district court is

better positioned than we are to resolve factual issues associated

with this request, we remand the case to the district court to

determine whether mother is entitled to an award of appellate fees

and, if so, the appropriate amount. See C.A.R. 39.1; In re Marriage

of Thorburn, 2022 COA 80, ¶ 58.

IV. Disposition

¶ 52 The judgment is affirmed, and the case is remanded for

further proceedings concerning mother’s request for appellate

attorney fees.

JUDGE LIPINSKY and JUDGE SULLIVAN concur.

22