Marriage of Lewis

25CA1749 Marriage of Lewis 10-29-2026 COLORADO COURT OF APPEALS Court of Appeals No. 25CA1749 Jefferson County District Court No. 24DR31086 Honorable Chantel E. Contiguglia, Judge In re the Marriage of Amanda Louise Lewis, Appellee, and York Windsor Lewis, Appellant. JUDGMENT REVERSED AND CASE REMANDED WITH DIRECTIONS Division II Opinion by JUDGE JOHNSON Fox and Yun, JJ., concur NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced October 29, 2026 Márquez Law, Jason A. Márquez, Denver, Colorado, for Appellee Hogan Omidi PC, Hollie A. Hinton, Denver, Colorado, for Appellant ¶1 In this dissolution of marriage case between York Windsor Lewis (husband) and Amanda Louise Lewis (wife), husband appeals those portions of the district court’s permanent orders concerning the marital property division and the allocation of dependency tax exemptions. We reverse the marital property division and the allocation of dependency tax exemptions and remand the case for further proceedings. I. Background ¶2 In 2025, the district court entered permanent orders dissolving the parties’ marriage of approximately six years. The court divided the parties’ marital estate, which it valued at approximately $877,000, equally. As part of the marital estate, the court equally divided husband’s one-third interest in $495,000 in proceeds from the sale of a home that had been owned by his recently deceased mother. ¶3 Both parties waived maintenance and the district court awarded wife $3,346 per month in child support for the parties’ two children. The court allocated the dependency tax exemptions associated with the children disproportionately, ordering wife to 1  claim one child every year and ordering the parties to alternate years as to their other child. II. Marital Property Division ¶4 Husband first challenges the district court’s decision to divide as marital property the entirety of his one-third interest in the proceeds from the sale of his mother’s home. While we reject husband’s contention that the proceeds were not property, we agree that the court abused its discretion when it treated all the proceeds as marital. A. Preservation ¶5 We are unpersuaded by wife’s claim that husband failed to preserve this issue for our review. Specifically, wife argues that husband did not raise the issue of his mother’s home in the joint trial management certificate or his own testimony. However, “[w]here an issue was brought to the district court’s attention and the court ruled on it, it is preserved for appellate review.” In re Estate of Owens, 2017 COA 53, ¶ 21. Here, wife testified about the home, and she has not cited, nor are we aware of, any legal authority holding that the appellant must have raised the issue to preserve it for our review. Thus, the issue was preserved. 2  B. Applicable Legal Standards ¶6 A property division requires two steps: first, the court determines whether an interest constitutes “property,” and then, if so, whether it is marital or separate property. In re Marriage of Balanson, 25 P.3d 28, 35 (Colo. 2001). The court must set aside each spouse’s separate property and then divide the marital property. § 14-10-113(1), C.R.S. 2026. ¶7 The classification of property as marital or separate is a legal determination based on the district court’s factual findings. In re Marriage of Morton, 2016 COA 1, ¶ 5. While we independently review issues of law, see id., we review the court’s factual findings for clear error, meaning that we will not disturb them unless they are unsupported by the record. Martinez v. Mintz Law Firm, LLC, 2016 CO 43, ¶ 17. But the court has latitude to equitably distribute the marital estate based upon the circumstances of the case, and we will not disturb its decision absent a clear abuse of discretion. Balanson, 25 P.3d at 35. A court abuses its discretion when it acts in a manifestly arbitrary, unreasonable, or unfair manner, or when it misapplies the law. In re Marriage of Boettcher, 2018 COA 34, ¶ 6, aff’d, 2019 CO 81. 3  C. Additional Background ¶8 At the permanent orders hearing, wife testified that husband had an interest in a home in New York owned by his mother before her death in late 2023. Wife explained that husband had already received at least one payment from his mother’s estate and would be receiving a third of the proceeds from the sale of the home, which was pending at a price of $495,000 as of March 2025. ¶9 Wife also explained that, based on her review of the local assessor’s records, the home had increased in value by about $125,000 since the mother’s death, meaning that husband’s one- third share in the property had increased in value by approximately $42,000 in that time. Wife also asserted that husband had failed to disclose and provide her with information about the home, and accordingly, she asked the court to use the $42,000 figure when dividing the marital estate. ¶ 10 On cross-examination, husband confirmed that the home had recently sold for $495,000, but he maintained that his receipt of any proceeds was uncertain because his mother’s estate first needed to pay off unspecified debts. 4 ¶ 11 The district court divided the all of husband’s one-third interest in the proceeds from the home as marital property. The court valued that one-third interest at $165,000 and ordered husband to pay wife half upon his eventual receipt of the proceeds. The court reasoned that it had received limited testimony concerning the home, there was no documentation and disclosure of the home’s sale, and the estate’s outstanding debts were unknown. ¶ 12 Husband asked the district court to reconsider its division of the proceeds in a postjudgment motion. The court declined, explaining that it found wife’s testimony concerning the home to be credible. Again, the court cited husband’s failure to disclose information about the home, including when answering interrogatories served on him by wife. The court further reasoned that, although husband was inheriting property, he “did not clearly delineate his interest from his mother’s passing,” namely, “what amount would be subjected to marital property, and therefore proper equitable division.” Thus, the court reiterated its finding that “at least one-third of the [home’s] sale price was subjected to marital property and equitable division.” 5  D. Husband’s Interest in the Proceeds was Property ¶ 13 Husband first argues that, because the amount he would ultimately receive from the sale of his mother’s home was “speculative,” the proceeds did not constitute property subject to division by the district court under the first step of the court’s inquiry. See Balanson, 25 P.3d at 35. We disagree. ¶ 14 Section 14-10-113’s classification of property was intended to be “broadly inclusive.” Balanson, 25 P.3d at 35. Whether a particular interest is property under that section generally turns on whether a party has an enforceable right to the interest in question. See id. at 35, 39. Speculative interests are “mere expectancies” and are not property. In re Marriage of Cardona, 2014 CO 3, ¶ 13. ¶ 15 Both parties agreed that husband’s mother owned the home and passed away in October 2023. Moreover, husband agreed that the home had sold for $495,000, and wife testified that, based on husband’s representations to her, he would be splitting the proceeds from the sale three ways with his siblings. ¶ 16 Given this record, we conclude that husband’s interest in his share of the proceeds was property. While husband complains that no copy of his mother’s will was presented, the district court was 6  nevertheless free to credit wife’s testimony that husband would be receiving, and therefore effectively had an enforceable right to, one- third of the sale proceeds from his mother’s estate. See Balanson, 25 P.3d at 35, 39; In re Marriage of Lewis, 66 P.3d 204, 207 (Colo. App. 2003) (recognizing that credibility determinations and the weight, probative force, and sufficiency of the evidence, as well as the inferences and conclusions to be drawn therefrom, are within the district court’s sole discretion). ¶ 17 Moreover, unlike an interest that “a party may have . . . under any donative third party instrument which is amendable or revocable,” which is not considered property as a mere expectancy, § 14-10-113(7)(b), husband’s interest as beneficiary of his mother’s estate vested upon his mother’s death. See In re Estate of McCreath, 240 P.3d 413, 418 (Colo. App. 2009) (describing the legal effect and operative date of an executed will as the date of death), superseded by statute on other grounds, Ch. 169, sec. 1, § 15-5- 602(3), 2018 Colo. Sess. Laws 1166, as recognized in In re Thomas E. Hunn Living Tr., 2024 COA 51, ¶ 16. ¶ 18 Husband also claims that his interest in the proceeds from the sale of the home was speculative because he had yet to receive any 7  distributions from his mother’s estate and the estate had to first pay certain, unknown debts and expenses. But that husband had yet to receive any distributions, nor that he knew the exact amount, did not prevent his interest in the proceeds from being property. See In re Marriage of Smith, 2024 COA 95, ¶ 6 (recognizing that a property interest may exist where the spouse has right to a benefit, even if that benefit will not occur until sometime in the future). ¶ 19 In addition, the district court was free to disbelieve husband’s testimony about how much he would receive and instead believe wife’s statement that husband would be receiving one-third of the $495,000 in proceeds. See Lewis, 66 P.3d at 207; In re Marriage of Amich, 192 P.3d 422, 424 (Colo. App. 2007) (The court “can believe all, part, or none of a witness’s testimony, even if uncontroverted, and its resolution of conflicting evidence is binding on review.”). Accordingly, the district court did not err in concluding that husband’s interest in the proceeds from the sale of his mother’s home was property. 8  E. The Court’s Treatment of Husband’s Interest as Entirely Marital Property ¶ 20 We agree with husband, however, that the district court abused its discretion when it divided the entirety of his interest in the proceeds as marital property. ¶ 21 Under section 14-10-113, subject to certain listed exceptions, all property acquired by either spouse during the marriage is presumed marital. Balanson, 25 P.3d at 35. But section 14-10- 113(2)(a) and (b) specifically exclude as non-marital property that was “acquired by gift, bequest, devise, or descent,” as well as all property “acquired . . . in exchange for property acquired by gift, bequest, devise, or descent.” In addition, section 14-10-113(4) provides that an asset acquired by gift, bequest, devise, or descent “shall be considered as marital property . . . to the extent that its present value exceeds its value . . . at the time of acquisition if acquired after the marriage.” 1. The Court’s Findings were Inconsistent and Unsupported ¶ 22 Both parties agreed that husband’s interest in the proceeds from the sale of his mother’s home was predicated on his mother’s death in 2023. Thus, under section 14-10-113(2)(a) and (b), 9  husband’s interest in the home and the corresponding proceeds from its sale were his separate property, except to the extent that they had increased in value between the time of his mother’s death and the permanent orders. See § 14-10-113(4). ¶ 23 As to that increase in value, the district court made inconsistent findings that leave us unable to understand the basis of its order. See In re Marriage of Gibbs, 2019 COA 104, ¶ 9 (“The district court must make sufficiently explicit findings of fact to give the appellate court a clear understanding of the basis of its order.”). In its oral ruling, which was incorporated into the written permanent orders, the court explained that it had divided husband’s entire one-third interest in the sales proceeds, totaling $165,000, as marital property because it had received limited testimony concerning the sale of the home, including evidence as to any increase in its value. ¶ 24 Yet, in its later ruling denying husband’s postjudgment motion, the district court also explained that it had found wife “credible in her testimony” as to the home. At no point, however, did wife testify that husband’s one-third share of the home had increased in value by $165,000 during the marriage, thus 10  constituting marital property. See § 14-10-113(4). Instead, wife testified that husband’s one-third interest in the home had increased by only $42,000 in value during the marriage. Therefore, wife’s testimony did not support the district court treating as marital property husband’s total share of the sales proceeds. ¶ 25 We acknowledge that the district court, as factfinder, was free to believe as much or as little of wife’s testimony as it deemed credible. See Amich, 192 P.3d at 424. But even if the court disbelieved wife’s testimony as to the increase in value, it was nevertheless error for the court, contrary to the clear delineation between marital and separate property in section 14-10-113(2)(a) and (b) to make its own unsupported findings that the entirety of husband’s inherited interest in the proceeds from the home constituted marital property. See Martinez, ¶ 17 (reviewing factual findings for clear error). 2. Adverse Inference ¶ 26 Wife argues that, regardless, we should not disturb the district court’s findings because husband failed to fully disclose relevant information concerning his inheritance during the proceedings. And here, in addition to explaining that it found wife’s testimony 11  concerning the home to be credible, the court appears to have made an adverse inference against husband for inadequate disclosures. Specifically, the court explained in its oral ruling that there had not been “proper documentation or disclosure” from the sale of the home, and when denying husband’s postjudgment motion, the court found that wife lacked information concerning the home “because of [husband’s] failure to properly disclose it.” As an example, the court cited husband’s answer of “does not apply” in response to an interrogatory that asked whether any other person or entity held property for his benefit. ¶ 27 A district court may impose an adverse inference against a party for the failure to comply with that party’s duty under C.R.C.P. 16.2(e) to affirmatively disclose all material information. See also C.R.C.P. 16.2(j) (allowing sanctions for a party’s failure to comply with the duty to disclose); In re Marriage of Sgarlatti, 801 P.2d 18, 19 (Colo. App. 1990) (“[B]ecause of the father’s refusal to make a willing disclosure of his financial status, the trial court, as the finder of fact, was authorized to draw the inference that the father was concealing additional income.”). Sanctions for nondisclosure and noncompliance are committed to the district court’s discretion. 12  Pinkstaff v. Black & Decker (U.S.) Inc., 211 P.3d 698, 702 (Colo. 2009) (imposing sanctions under C.R.C.P. 37); In re Marriage of Davis, 252 P.3d 530, 537 (Colo. App. 2011). But that discretion has limits. The reviewing court must overturn sanctions that “substantially tip the balance in an effort to avoid prejudice and delay.” Pinkstaff, 211 P.3d at 703 (quoting J.P. v. Dist. Ct., 873 P.2d 745, 751 (Colo. 1994)). ¶ 28 Here, we conclude that the specific adverse inference that the district court appeared to impose against husband — treating his entire interest in his mother’s home as marital property — was an abuse of discretion. To start, the record does not reflect that husband completely failed to provide wife information concerning his inheritance. Although husband answered “does not apply” to wife’s interrogatory concerning whether another person held property for his benefit, in response to another interrogatory, he confirmed that he was the beneficiary of his mother’s estate and acknowledged the possibility of future distributions. Moreover, while it appears that husband did not divulge detailed information concerning his inheritance, we see no indication that wife ever objected to husband’s disclosures or discovery responses or 13  otherwise moved to compel his compliance with the same. Nor did wife seek any disclosure-related sanctions beyond a conclusory request for attorney fees. ¶ 29 Indeed, regardless of husband’s incomplete disclosures, wife had actual notice of the home and its pending sale, as evidenced by her testimony concerning the sale price and marital increase in value based on her review of the property records. Zueger v. Goss, 2014 COA 61, ¶ 9 (noting that disclosure requirements are intended to give parties adequate time to prepare by obtaining relevant evidence to prevent trial by ambush and surprise). ¶ 30 Given these circumstances, we cannot say that wife was so prejudiced by husband’s disclosure deficiencies that dividing husband’s entire inherited interest in his mother’s home as marital property was a commensurate, as opposed to an arbitrary, sanction. See Pinkstaff, 211 P.3d at 700, 704 (District courts should impose sanctions “commensurate with the harm done,” meaning that sanctions should be “tailored to the exact violation.”); Boettcher, ¶ 6. Thus, to the extent that the court’s allocation of the home was alternatively based on such an adverse inference against husband, we conclude that the court abused its discretion. 14  3. Husband’s Statements Concerning Marital Property ¶ 31 When denying husband’s postjudgment motion, the district court also referenced certain testimony that it viewed as a concession by husband that there was no separate property for either party. Wife now asks us to affirm on this basis. But we decline to do so because the record does not indicate that husband conceded the issue. Critically, all of husband’s statements that we have been able to locate were in response to questioning about the nature of specific financial accounts and did not constitute a concession that there was no separate property. ¶ 32 Nor do we agree with wife’s suggestion that husband waived his claim to any separate property interest in his mother’s home in the joint trial management certificate. See Bernache v. Brown, 2020 COA 106, ¶ 10 (recognizing waiver as the intentional relinquishment of a known right). Although husband’s mother’s home was not identified in that document, his brief position statement stated that the court “should treat all property as marital.” And in the joint property worksheet that the parties concurrently submitted to the court, the home was listed with an unknown value and the word “All” in the column for husband’s 15  separate property. Thus, we cannot say that husband unambiguously waived any separate property interest. See Universal Res. Corp. v. Ledford, 961 P.2d 593, 596 (Colo. App. 1998) (requiring a waiver to be “clear, unequivocal, and decisive”). F. Remand Instructions ¶ 33 Because we conclude that the district court erred by treating the entirety of husband’s interest in his mother’s home as marital property, we reverse the marital property division and remand the case for further proceedings. On remand, the court must determine what portion of husband’s interest in the home constitutes marital property and what portion constitutes husband’s separate property. See § 14-10-113(1). The court must set aside the separate property component to husband and divide the marital component. See id. ¶ 34 The court should then reconsider the allocation of the marital property and debts based on this determination. In doing so, the court must consider the parties’ economic circumstances at the time of the remand. See In re Marriage of Wells, 850 P.2d 694, 697, 699 (Colo. 1993); In re Marriage of Evans, 2021 COA 141, ¶ 53. The court should give the parties an opportunity to present additional evidence on such circumstances and may also consider the 16  evidence from the permanent orders hearing. See In re Marriage of Corak, 2014 COA 147, ¶ 21. The court may, within its discretion, receive other additional evidence, including evidence concerning the separate and marital property components of husband’s interest in the proceeds from his mother’s home. See In re Marriage of Lee, 781 P.2d 102, 104 (Colo. App. 1989). III. Dependency Tax Exemptions ¶ 35 Husband next contends that the district court erred by dividing the dependency tax exemptions for the children so that wife received 75% of the exemptions, with husband received the remaining 25%. We agree. A. Application of Pre-May 31, 2025 Law ¶ 36 As an initial matter, we must first resolve the parties’ dispute concerning which version of section 14-10-115(12), governing the allocation of dependency exemptions, applies given that the district court’s initial oral ruling allocating the dependency exemptions was issued on May 22, 2025, yet the formal written permanent orders were issued on June 13, 2025, nun pro tunc to May 22. The parties’ disagreement arises because the General Assembly amended 17  section 14-10-115(12) effective May 31, 2025. See Ch. 334, sec. 2, § 14-10-115, 2025 Colo. Sess. Laws 1760-61. ¶ 37 We conclude that the version of section 14-10-115(12) in effect before May 31, 2025, applies. Regardless of the district court’s later issuance of the June 13, 2025, written permanent orders, C.R.C.P. 58(a) provides that “[t]he effective date of entry of judgment shall be the actual date of the signing of the written judgment.” Here, concurrent with its oral ruling, the court also signed a May 22, 2025, minute order, which briefly summarized the key provisions of the permanent orders, including the child support orders that the allocation of the dependency exemptions was intertwined with. See In re Marriage of Oberg, 900 P.2d 1267, 1271 (Colo. App. 1994) (“[T]he award of the tax exemption is intimately related to the issue of child support . . . .”). Thus, because the court signed a written order on May 22, 2025, summarizing its oral ruling, the judgment was effective on that date and the version of section 14-10-115(12) in effect on that date applied. Cf. Specialty Rests. Corp. v. Nelson, 231 P.3d 393, 399 (Colo. 2010) (A statute is presumed to operate prospectively and may be interpreted to operate retroactively only if the General Assembly clearly indicates that intent). 18  B. Standard of Review ¶ 38 We review child support orders, including the district court’s allocation of the dependency exemptions, for abuse of discretion. Davis, 252 P.3d at 533. C. Analysis ¶ 39 Under section 14-10-115(12), C.R.S. 2024, the court “shall” allocate the dependency tax exemption between the parties “in proportion to their contributions to the costs of raising the children,” which means based on the percentage of child support attributed to each parent under section 14-10-115(7)(a)(I). See In re Marriage of Staggs, 940 P.2d 1109, 1111 (Colo. App. 1997) (reviewing the relevant legislative history). Under the concurrent child support order, husband’s share of the basic child support obligation is approximately 46% and wife’s share is approximately 54%, yet the court allocated the dependency exemptions 75% in favor of wife. Because the court failed to adhere to section 14-10- 115(12), on remand, the court should reallocate the dependency exemptions. ¶ 40 While wife argues that the district court could deviate from the allocation required by section 14-10-115(12), we disagree. 19  Specifically, section 14-10-115(12) provides that the court “shall” allocate the exemptions in the described manner, suggesting that the court is without discretion to deviate from the statutory mandate. See In re Marriage of Slowinski, 199 P.3d 48, 52 (Colo. App. 2008) (“Unless the context indicates otherwise, the word ‘shall’ generally indicates that the provision is mandatory.”). And although wife argues that section 14-10-115(8)(e) permitted deviation, it is apparent to us that said subsection only applies to deviation from the guidelines and schedule of basic child support obligations set forth in subsection (7). Therefore, we must reverse the court’s allocation of the dependency exemptions. IV. Appellate Attorney Fees ¶ 41 Asserting that husband’s appeal lacked substantial justification, wife requests an award of her appellate attorney fees and costs under C.A.R. 39(a), C.A.R. 39.1, and section 13-17-102, C.R.S. 2026. Given our disposition, we deny her request. V. Conclusion ¶ 42 Those portions of the judgment concerning the marital property division and the allocation of the dependency tax exemptions are reversed, and the case is remanded for further 20 proceedings consistent with this opinion. Those portions of the permanent orders not challenged on appeal remain undisturbed. JUDGE FOX and JUDGE YUN concur. 21