In re Turner
| Decision Date | 31 March 2022 |
| Docket Number | Court of Appeals No. 21CA0663 |
| Citation | 513 P.3d 407,2022 COA 39 |
| Parties | IN RE the MARRIAGE OF Cassandra Marie TURNER, Appellee, and Benjamin O. Turner, Appellant. |
| Court | Colorado Court of Appeals |
Griffiths Law, P.C., Danielle N. Contos, Lone Tree, Colorado, for Appellee
Robinson Waters & O'Dorisio, P.C., Langdon J. Jorgensen, Denver, Colorado, for Appellant
Opinion by JUDGE TOW
¶ 1 In this dissolution of marriage case between Benjamin O. Turner (husband) and Cassandra Marie Turner (wife), husband appeals the portion of the district court's permanent orders concluding that year-end bonuses wife may receive after the dissolution were not marital property subject to division. Applying the analysis the supreme court has used for stock options and vacation pay to this context, we conclude that such bonuses are property only when they are contractually enforceable.
¶ 2 Under this test, we conclude that because wife's potential bonuses were not contractually enforceable as of the date of the permanent orders hearing, they were not property — and thus not marital property subject to division. Accordingly, we affirm the district court's judgment.
¶ 3 Wife and husband were married for approximately twelve years, and they had two children together. During the dissolution proceeding, the parties resolved most financial and parenting issues but disputed whether (1) potential bonuses that wife may receive from her employer after the dissolution constituted marital property and, if so, the court's division of that property; and (2) wife's potential bonuses should be included in her income for purposes of determining child support.
¶ 4 At the January 2021 permanent orders hearing, the following evidence was presented on wife's potential bonuses. Wife earned a base salary and her employer offered incentive plans that could pay her bonuses. Wife testified that, in her position, she was eligible to receive bonuses from an annual incentive plan (referred to by the parties as the AIP) and a supplemental incentive plan (referred to by the parties as the SIP). She said that her employer had not notified her regarding whether she would receive a bonus in 2021 from either plan, but she confirmed that any such bonuses would relate to work performed in 2020. Wife further testified that any bonuses were "highly variable and highly discretionary."
¶ 5 Under the terms of the AIP, most employees were eligible to receive an award as long as they were actively employed at the time of the award. Even if eligible, however, an employee was "not guaranteed" a bonus from the AIP. Any payment was dependent on the company achieving certain operating goals and objectives. The eligible employee also had to achieve certain performance goals, and the employee's supervisor retained discretion to determine any award. As well, the AIP granted the chief executive officer of wife's employer "full discretion and final authority to adopt, amend, alter, or rescind the [AIP] without advance notice for any reason at his/her sole discretion based upon financial or operating conditions or otherwise."
¶ 6 Participation in the SIP was limited to employees holding certain jobs, including wife's position. Employees could not receive a bonus through the SIP unless they were actively employed at the time of the award. But, as with the AIP, an eligible employee had no claim or right to an award, and, even if the employee was awarded a bonus, the employer could recover or cancel it under certain conditions. A committee of the company's executives governed the SIP and had full authority over its administration. Funding for the SIP was dependent on the amount of certain departments’ earnings. If these funding conditions were satisfied, however, the SIP committee still had "sole, complete and absolute discretion" over the funding for the SIP and the total amount of any bonuses awarded. The committee also had sole, complete, and absolute discretion to determine the criteria for awarding a bonus to eligible employees, including which employees would receive an SIP bonus and the amount distributed to them.
¶ 7 The employer's director of compensation further confirmed the discretionary nature of the SIP. He testified that the committee was not required to use any set criteria to determine the distribution of bonuses from the SIP and that an employee's past bonuses were no indication of a future payment because each year the eligible employees "start[ ] at zero." He acknowledged that the availability of a distribution from the SIP was initially dependent on the company meeting certain earnings thresholds. And he stated that, even if the necessary conditions were satisfied, the committee, in its discretion, could deny a bonus to an eligible employee. The director also confirmed that the committee had not yet decided whether to award SIP bonuses for 2020, and the meeting to consider such bonuses was scheduled to take place approximately six weeks after the permanent orders hearing.
¶ 8 Wife reported that she had received bonuses in differing amounts from the AIP each year since 2010. Wife also reported that, other than in 2016, she had received a SIP bonus each year since 2012. The amount she received each year varied substantially.
¶ 9 Based on this evidence, the district court first considered whether wife's potential bonuses constituted marital property. It found that wife was eligible to participate in the AIP and SIP, and that any bonuses she may receive in 2021 would be in consideration for services she completed during the marriage. The court then focused its examination on whether wife had contractually enforceable rights to the bonuses. The court found that she did not. It explained that any bonus from the AIP was dependent on the achievement of certain conditions, including the company's earnings, and, as of the permanent orders hearing, the employer had not notified wife of any decision on a bonus from this plan. The court also found that a bonus from the SIP was completely within the committee's discretion, and that the committee had not yet determined whether to award a bonus to wife. The court thus concluded that wife's potential bonuses did not constitute property subject to its division of the marital estate.
¶ 10 Several weeks after the permanent orders hearing, wife was awarded substantial bonuses, which husband contends should have been considered marital property.
¶ 11 As for child support, the court concluded that wife's bonuses must be included in her income, and it used a five-year average of her earnings to determine her child support obligation. (Neither party challenges the child support ruling on appeal.)
¶ 12 Husband contends that the district court misapplied the law by excluding wife's potential bonuses from the marital property because, in his view, wife earned the bonuses in 2020 and a spouse's compensation earned during the marriage is always marital property. We disagree.
¶ 13 When dissolving a marriage, the court must make an equitable division of the parties’ marital property. § 14-10-113(1), C.R.S. 2021; In re Marriage of Balanson , 25 P.3d 28, 35 (Colo. 2001). To determine whether an interest is marital property, the court engages in a two-step analysis. In re Marriage of Cardona , 2014 CO 3, ¶ 12, 316 P.3d 626. It first must determine whether the interest constitutes property subject to the court's division. Id. ; Balanson , 25 P.3d at 35. If so, the court then must determine whether that property is marital. Cardona , ¶ 12 ; Balanson , 25 P.3d at 35 ; see also § 14-10-113(3) ().
¶ 14 "[I]n determining whether a spouse's interest constitutes property," a court "focus[es] on whether the spouse has an enforceable right to receive a benefit." Cardona , ¶ 26 ; see Balanson , 25 P.3d at 35 ; see also In re Marriage of Miller , 915 P.2d 1314, 1318 (Colo. 1996) (). If there is an enforceable right, property exists for purposes of section 14-10-113. Cardona , ¶ 13 ; Balanson , 25 P.3d at 39. But interests that are "speculative" are "mere expectancies" and do not constitute property subject to division in the dissolution proceeding. Balanson , 25 P.3d at 35 ; accord Cardona , ¶ 13. Whether a spouse has an enforceable right against an employer for compensation depends on the terms of any agreement between them. See Cardona , ¶ 30 ; see also Balanson , 25 P.3d at 39.
¶ 15 A court's determination of marital property presents a mixed question of fact and law. Cardona , ¶ 9. We defer to a district court's findings of fact when supported by the record and review de novo its conclusions of law. Id. The valuation of marital property — and thus, necessarily, the determination of whether something is property at all — is established on the date of the decree or as of the date of the hearing on disposition of property where, as here, that hearing preceded the date of the decree. See § 14-10-113(5).
¶ 16 Husband's contention rests on the premise that wife "earned" the AIP and SIP bonuses during the marriage because any potential bonuses she received would relate to the services she performed before the dissolution. But here, to "earn" the potential bonuses, wife needed to obtain an enforceable right to them under the terms of the AIP and SIP. See Cardona , ¶¶ 13, 26. And the record supports the court's conclusion that she had not yet obtained an enforceable right.
¶ 17 Under the terms of the AIP, wife would receive a bonus only if she and her employer achieved established performance goals and objectives and, even then, only if her employer chose to award a bonus. As well, wife would be...
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