In re Marriage of Antuna, 98CA1999.

Citation8 P.3d 589
Decision Date06 July 2000
Docket NumberNo. 98CA1999.,98CA1999.
PartiesIn re the MARRIAGE OF Steve N. ANTUNA, Appellant, and Barbara A. Antuna, Appellee.
CourtCourt of Appeals of Colorado

Joseph D. Bloch & Associates, P.C., Mark D. Chapleau, Denver, Colorado, for Appellant.

DiManna & Jackson, Michael F. DiManna, Neeti Pawar, Denver, Colorado, for Appellee.

Opinion by Judge ROTHENBERG.

In this dissolution of marriage action, Steve N. Antuna (husband) appeals from the permanent orders concerning the division of property, award of maintenance, determination of child support, and attorney fees payable by Barbara A. Antuna (wife). We affirm in part, reverse in part, and remand with directions.

The parties stipulated to joint custody of their daughter, with the wife designated as the primary residential custodian. They also agreed to divide equally a retirement fund in wife's name by a Qualified Domestic Relations Order. The balance of the financial issues were presented to the trial court for resolution.

After hearing the testimony of three experts, the trial court credited the testimony of wife's two experts and valued wife's residence at $370,000, even though it was purchased for a higher amount. The court also found that the testimony of wife's expert regarding the value of her interest in a medical corporation was more credible than that of husband's expert, and it valued that asset at $169,000.

The court further found that all of the assets had been acquired with wife's earnings and that division of the interest in the medical corporation would constitute an unfair windfall to husband. It thus awarded that entire asset to wife without crediting her with its value.

Each party was awarded the personal property in his or her possession.

The court determined that husband would receive property with a net value of $166,527 and also determined, without considering the value of wife's interest in the medical practice, that wife would receive property in the amount of $264,562. In order equitably to divide the property, it ordered wife to pay husband the sum of $49,917.50.

The trial court further found that husband met the threshold of need entitling him to maintenance, and after considering the factors listed in § 14-10-114(2), C.R.S.1999, it ordered wife to pay him maintenance of $2000 per month beginning August 1998, for a period of 24 months.

In computing child support, the court found that husband earned $2000 per month gross income and that wife earned $19,500 per month, for a combined income of $21,500, which exceeded the uppermost level of the child support guidelines. The court found that husband keeps the child 97 overnights per year, but it applied worksheet A to calculate husband's child support obligation of $290.05 per month. See § 14-10-115(14)(a), C.R.S.1999. The court did so because it found that application of worksheet B (shared physical care formula), see § 14-10-115(14)(b), C.R.S.1999, would have resulted in wife paying husband child support of $90.73 per month. After considering the financial resources of the parties, the court further determined that it was appropriate for wife to assist husband with the partial payment of his attorney fees, and ordered her to pay $10,000 directly to his attorney.

I.

Initially, we reject wife's assertion that husband is barred from appealing any portion of the property division because he has received his share of the retirement funds. These funds were divided by agreement of the parties before the hearing on permanent orders.

Acceptance of the benefits of a judgment constitutes a waiver of appeal rights only if such action is inconsistent with the basis for the appeal. It is when the appeal, if successful, will again put into issue the right of the party to receive the benefits already accepted that a waiver of the right to appeal has been found. In re Marriage of Burford, 950 P.2d 682 (Colo.App.1997); see In re Marriage of Jones, 627 P.2d 248 (Colo.1981)

.

Here, the parties agreed that the retirement funds held by wife would be shared equally between them based on their value on the date of the decree. Permanent orders on all other issues were entered after the hearing.

In a prior motion, husband asserted a financial need for the immediate distribution of the stipulated funds, and a judge of this court ruled that husband could receive the stipulated funds without waiving his appellate rights.

Because husband's acceptance of the retirement benefits is not inconsistent with the basis of his appeal, we conclude he did not waive his right to appeal by accepting such benefits. See In re Marriage of Burford, supra; cf. In re Marriage of Lee, 781 P.2d 102 (Colo.App.1989)

(acceptance of maintenance payments did not result in a waiver of the right to appeal; public policy prohibits requiring former spouse to elect between the necessities of life and the right to appeal).

II. Discovery

We also reject husband's contention that the trial court abused its discretion in failing to strike the report of one of wife's experts and in allowing another to testify.

In Todd v. Bear Valley Village Apartments, 980 P.2d 973 (Colo.1999), the supreme court reaffirmed the principle that a party should not be denied his or her day in court because of an inflexible application of the rules of procedure. Further, in determining whether the severe sanction of witness preclusion is appropriate, the trial court should consider a number of factors including whether the opposing party will have an adequate opportunity to defend against the evidence. These principles support the trial court's ruling here.

A.

Husband maintains that wife should not have been permitted to submit the expert's report concerning her interest in the medical practice as an exhibit because it was not timely exchanged under C.R.C.P. 26(a)(2)(C)(III), and there was no valid reason given to support the delay. We disagree.

C.R.C.P. 26.2(a)(2)(C) provides that disclosures shall be made in a domestic relations case at least 60 days before the date set for the commencement of the hearing. The disclosure of expert testimony must be accompanied by a written report or summary.

Here, both parties filed a formal disclosure list of witnesses less than 60 days before the date of the permanent orders hearing. In her list, which was filed seven days after husband's list was filed, wife asserted that her accountant would be a rebuttal witness and would testify regarding the value of wife's interest in the medical practice and, therefore, that such expert was not required to file a written report.

At the permanent orders hearing, wife's expert submitted a written report, but only his curriculum vitae was admitted into evidence. Husband's expert testified first and critiqued the opinion that wife's expert had presented in his report regarding the value of her interest in the medical practice. While husband's expert originally valued the interest at $285,000, without a reduction for present value, he later used other methods to value that interest at greater than $300,000. However, that expert did not disclose the subsequent opinions until his testimony at trial.

Even if we assume that wife should have exchanged her expert's report earlier, husband failed to show he was prejudiced by the late receipt. Accordingly, we conclude the trial court did not abuse its discretion when it declined to strike the testimony of wife's expert.

B.

Husband also asserts that the trial court erred in allowing wife to present rebuttal testimony concerning the sales of homes in Highlands Ranch because she did not timely disclose that expert pursuant to C.R.C.P. 26(a)(2)(C)(III). Again, we disagree.

C.R.C.P. 26.2(a)(2)(C)(III) requires the disclosure of rebuttal evidence within 20 days after disclosure made by the other party on the same subject matter. The admission of rebuttal testimony is within the sound discretion of the fact-finder and will not be disturbed absent an abuse of that discretion. Wertz v. People, 160 Colo. 260, 418 P.2d 169 (1966); Rice v. Department of Corrections, 950 P.2d 676 (Colo.App.1997).

The rebuttal expert did not value wife's residence. His testimony was admitted for the limited purpose of addressing issues on which the other experts had disagreed: whether sales in the Highlands Ranch area vary between one neighborhood and another and market trends in the area. This testimony was helpful to the court in resolving a basic disagreement between the experts, and there was no surprise to husband. Further, the testimony was cumulative to that of wife's expert who had already testified that homes in various subdivisions of Highlands Ranch differed significantly in value. Thus, the trial court did not abuse its discretion in allowing the admission of this limited testimony.

III. Property Division
A.

Husband contends the trial court abused its discretion in valuing the marital residence at an amount less than its purchase price. We disagree.

Trial courts are vested with broad discretion to fashion an equitable division of the parties' property in a dissolution proceeding. In re Marriage of Gallo, 752 P.2d 47 (Colo.1988). The determinations of value and the sufficiency and credibility of the evidence are within the trial court's discretion, and may not be disturbed unless they are unsupported by the record. In re Marriage of Elmer, 936 P.2d 617 (Colo.App.1997).

Husband offered the testimony of an expert whose appraisal was based upon comparable homes located in the greater Highlands Ranch area, but not in the more immediate neighborhood of the residence. In contrast, the testimony of wife's expert was based upon comparable homes located within the same or similar subdivision as the wife's residence.

After considering the testimony, the trial court found the testimony of wife's expert more convincing as to the impact of location on the value of homes within various subdivisions of the Highlands Ranch area. In explaining why the...

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