In re Young

Citation497 P.3d 524,2021 COA 96
Decision Date15 July 2021
Docket NumberCourt of Appeals No. 20CA1023
Parties IN RE the MARRIAGE OF Hadley Rasch YOUNG, Appellant, and Kimberly Ross Young, Appellee.
CourtCourt of Appeals of Colorado

497 P.3d 524
2021 COA 96

IN RE the MARRIAGE OF Hadley Rasch YOUNG, Appellant,
and
Kimberly Ross Young, Appellee.

Court of Appeals No. 20CA1023

Colorado Court of Appeals, Division VI.

Announced July 15, 2021


Griffiths Law PC, Eliza Steinberg, Christopher Griffiths, Duncan Griffiths, Lone Tree, Colorado, for Appellant

Bettenberg, Maguire & Associates, LLC, Alison A. Bettenberg, Centennial, Colorado, for Appellee

Opinion by JUDGE BERGER

¶ 1 When a court orders spousal maintenance, it must make written or oral findings on a number of statutory factors. § 14-10-114(3)(a)(I), C.R.S. 2020. But must a court make express findings on all those factors when addressing a motion to modify an existing maintenance award under section 14-10-122, C.R.S. 2020? As a matter of first impression, the answer is no.

¶ 2 In this post-dissolution of marriage proceeding, Hadley Rasch Young (husband) appeals the district court's order adopting the magistrate's order, which denied husband's motion to modify his maintenance obligation to Kimberly Ross Young (wife).1 We reject his argument that the magistrate erred by not addressing all of the factors in section 14-10-114(3)(a)(I). But we agree that some of the magistrate's findings are not supported by the record, so we reverse and remand the case for further consideration.

I. Background

¶ 3 In contemplation of their divorce, the parties entered into a memorandum of understanding in which husband agreed to pay wife $20,000 in monthly maintenance until December 1, 2024. The parties stipulated that husband earned $70,000 per month as a programmer and chief executive officer (CEO) of his company, Hybir, and that wife could earn $3,000 per month. The parties agreed that the maintenance award would be modifiable as to amount but not term. Husband's uncontradicted testimony was that the parties made the amount of maintenance modifiable because his income was "variable" and that "there was some uncertainty." The district court incorporated the parties' stipulated terms into the dissolution decree.

¶ 4 Nine months later, husband moved to modify maintenance under section 14-10-122.2 Husband argued that his income had dropped to $42,333 per month and he could no longer afford to pay wife $20,000. Husband wanted the court to lower his payment to $12,000 per month for the duration of the maintenance term.

¶ 5 By the time of the February 2019 hearing on husband's motion to modify, he asserted that his income had dropped even further, to $17,333 per month (approximately $200,000 annually). At the hearing, wife agreed that husband's monthly income had dropped to $17,000. The parties again stipulated that wife could earn $3,000 per month. Husband requested that the court award wife $5,133 in monthly maintenance and order her to reimburse any overpayment from the date he filed his motion.

¶ 6 The magistrate denied husband's motion after finding that he had failed to meet his burden to establish a substantial and

497 P.3d 528

continuing change of circumstances justifying a maintenance modification. Husband sought review of the magistrate's order in the district court under C.R.M. 7(a). The district court adopted the magistrate's order.

II. Analysis

A. Standard of Review

¶ 7 We review an order denying a modification of maintenance for an abuse of discretion. In re Marriage of Gibbs , 2019 COA 104, ¶ 8, 446 P.3d 968. A court abuses its discretion if its decision is manifestly arbitrary, unreasonable, or unfair, or if the court misapplies the law. Id.

¶ 8 A district court must defer to a magistrate's factual findings unless they are clearly erroneous. C.R.M. 7(a)(9). Our review of the district court's decision is effectively a second layer of appellate review; we apply the same clearly erroneous standard to the magistrate's findings. In re Parental Responsibilities Concerning G.E.R. , 264 P.3d 637, 638-39 (Colo. App. 2011). A court's factual finding is clearly erroneous if there is no support for it in the record. Gagne v. Gagne , 2019 COA 42, ¶ 17, 459 P.3d 686.

¶ 9 We review questions of law de novo, including whether the court applied the proper legal standard. In re Marriage of Thorstad , 2019 COA 13, ¶ 27, 434 P.3d 165.

B. Maintenance Modification

¶ 10 Citing Thorstad , husband argues that the magistrate erred by failing to make findings under section 14-10-114(3)(a)(I). We reject this argument.

¶ 11 True, when a court grants an initial maintenance award, the court

shall make initial written or oral findings concerning:

(A) The amount of each party's gross income;

(B) The marital property apportioned to each party;

(C) The financial resources of each party, including but not limited to the actual or potential income from separate or marital property;

(D) Reasonable financial need as established during the marriage; and

(E) Whether maintenance awarded pursuant to this section would be deductible for federal income tax purposes by the payor and taxable income to the recipient.

§ 14-10-114(3)(a)(I) (emphasis added); In re Marriage of Wright , 2020 COA 11, ¶ 14, 459 P.3d 757.

¶ 12 But on a motion to modify maintenance under section 14-10-122, the inquiry is different. The threshold question is whether the moving party has demonstrated "changed circumstances so substantial and continuing as to make the existing terms unfair." § 14-10-122(1)(a). To decide this question, "[t]he court may consider the guideline amount and term of maintenance and the statutory factors set forth in subsection (3) of this section." § 14-10-114(5) (emphasis added). The party seeking modification bears a heavy burden of proving that the provisions have become unfair under all relevant circumstances. In re Marriage of Udis , 780 P.2d 499, 503 (Colo. 1989).

¶ 13 In Thorstad , ¶ 42, a division of this court held, "[t]o determine if the parties' changed circumstances warrant modification, the court must examine them as if it were awarding maintenance for the first time." But Thorstad analyzed section 14-10-114 as it existed in September 2001. Id. at ¶¶ 12, 41. That version of the statute did not contain subsection (5), specifically addressing modifications. Compare § 14-10-114, C.R.S. 2001 (the statute analyzed in Thorstad ), with Ch. 176, sec 1, § 14-10-114(5), 2013 Colo. Sess. Laws 648 (amending the maintenance statute to include subsection (5) on modification), and § 14-10-114(5), C.R.S. 2020 (current law). Thorstad , therefore, did not address the current, pertinent statutory language.

¶ 14 While husband argues that the magistrate needed to make findings on every factor pertinent to an initial award of maintenance, the statutory subsection addressing modification says that a court "may " consider those factors. § 14-10-114(5) (emphasis added). "The word may ‘is generally indicative of a grant of discretion or choice among alternatives.’ "

497 P.3d 529

AA Wholesale Storage, LLC v. Swinyard , 2021 COA 46, ¶ 29, 488 P.3d 1213 (quoting A.S. v. People , 2013 CO 63, ¶ 2, 312 P.3d 168 ). The absence of "mandatory language directed at the court, such as ‘must,’ ‘shall,’ or ‘is required to,’ " is a strong indicator that a court has discretion to choose which, if any, of the maintenance factors to address. See Sidman v. Sidman , 2016 COA 44, ¶ 19, 411 P.3d 167.

¶ 15 "We interpret ‘may’ as ‘shall’ only when the purposes underlying the rule are ‘not fulfilled by a permissive construction.’ " AA Wholesale , ¶ 29 (citation omitted). We conclude that the purposes of section 14-10-114(5) are not frustrated, but served, by the permissive construction.

¶ 16 Motions to modify are not considered under the same standard as initial awards. See, e.g. , Aldinger v. Aldinger , 813 P.2d 836, 840 (Colo. App. 1991). The issue is not whether, based on the current financial circumstances of the parties, the court would have awarded the same amount as originally awarded. In re Marriage of Weibel , 965 P.2d 126, 128 (Colo. App. 1998). Rather, the issue central to modification is whether the terms of the initial award have become unfair. § 14-10-122(1)(a) ; In re Marriage of Tooker , 2019 COA 83, ¶ 35, 444 P.3d 856. This is a much more demanding standard, which seeks to prevent "the filing of motions to modify each time there is any change in the earning ability or needs of a party." Aldinger , 813 P.2d at 840.

¶ 17 Our conclusion that "may" grants the trial court discretion is buttressed by the fact that other sections of the spousal maintenance statute use the restrictive "shall," including the subsection addressing an initial award of maintenance. See § 14-10-114(3)(a)(I). "Where both mandatory and directory verbs are used in the same statute ... the verbs should carry with them their ordinary meanings." A.S. , ¶ 21 (quoting 3 Norman J. Singer & J.D. Shambie Singer, Sutherland Statutory Construction § 57:11 (7th ed.) ). We therefore conclude that the magistrate was not required to address all of the factors in section 14-10-114(3) when ruling on husband's motion to modify the existing award of spousal maintenance.

¶ 18 For the same reasons, we also reject husband's alternative, more limited, argument that the magistrate erred by not making findings as to the amount of his gross income and the applicable guideline amount of maintenance based on that...

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