The Colorado Court of Appeals has just issued a decision holding that domestic relations judge may award retroactive temporary maintenance at a hearing, even when the spouses were still living in the same house.
Facts Supporting Retroactive Temporary Maintenance
In Herold,1In re: Marriage of Herold & Callison, 2021 COA 16. the parties had a common law marriage for over 30 years, and at the temporary orders hearing (held, for some reason, almost a year after filing!), the Court made several findings to award retroactive temporary maintenance:
- The husband’s gross monthly income was $50,000.
- The wife’s gross monthly income was under $4000.
- The couple enjoyed a lavish lifestyle during marriage.
- The wife’s standard of living had “dramatically declined” in the year since the dissolution started.
- The wife was not capable of meeting her reasonable living needs without maintenance.
The trial court then awarded $12,000/mo in temporary maintenance, with retroactive temporary maintenance back to the date of filing, which resulted in a retroactive alimony award of $144,000. The husband appealed, and the Colorado Court of Appeals upheld the award of retroactive temporary alimony.
2014 Changes to Maintenance Statute Not Preclude Temporary Maintenance
When Colorado’s alimony statute (C.R.S. 14-10-114) was repealed and reenacted in 2014, the legislature eliminated a provision from the prior version of the statute which created a rebuttable presumption in favor of temporary alimony when the parties’ incomes were under a certain threshold, to be awarded upon the later of (1) physical separation, (2) filing the petition for dissolution, or (3) service of the summons.
The husband in Herold argued that this repeal restricts the court’s authority to award maintenance retroactive to the date the case commenced, and that without specific statutory authorization, the trial court only had the authority to award prospective alimony, from the date of the hearing onwards, as opposed to retroactive maintenance.
The court was not convinced, referencing that the General Assembly intended for district courts to retain “broad discretion” over the award of maintenance. Herold.2In re: Marriage of Herold & Callison, 2021 COA 16, ¶ 11.
“Nothing in the current statute tells the court when it must begin an award of temporary maintenance or restricts the court’s ability to award it retroactively. Rather, under the current maintenance statute, the district court ‘may award a monthly amount of temporary maintenance.'”Herold.3In re: Marriage of Herold & Callison, 2021 COA 16, ¶ 12.
Moreover, instead of restricting the court’s ability to award temporary maintenance, the repeal and reenactment of the maintenance statute expanded the trial court’s discretion. ¶ 13
For a more detailed discussion of maintenance and temporary maintenance in Colorado, see our Spousal Support article in the Colorado Family Law Guide.
Sharing House & Paying Bills Not Preclude Temporary Maintenance
The husband’s next argument was that since he continued to pay the mortgage, utility and other shared living expenses during the pendency of the dissolution, the court was precluded from awarding maintenance during that timeframe. The Court of Appeals was similarly unimpressed, noting that the purpose of maintenance was not to provide for a spouse’s basic survival needs, but to consider a variety of circumstances, including the parties’ standard of living during the marriage.
And in this case, while the husband’s lavish lifestyle apparently continued after filing, he cut off the wife from the joint accounts and cancelled the joint credit cards, leaving the wife with insufficient money to live on, even after she liquidated a retirement account and worked a second job. In a caution to spouses everywhere who may be tempted to cut off the other spouse, the trial court characterized the husband as having deliberately “chosen the low road”. Herold.4In re: Marriage of Herold & Callison, 2021 COA 16, ¶ 20.
The husband also argued that under Peterson,5In re: Marriage of Peterson, 572 P.2d 849 (Colo.App. 1977). a party’s maintenance obligation abates while the parties live together and that party is paying for the other’s living expenses. However, as the Court of Appeals pointed out, Peterson is distinguishable in that it is a post-decree case where, after divorce, the parties attempted to reconcile so started living together. ¶ 22.
Trial Court Made Insufficient Findings for Temporary Maintenance
All was not lost for the husband in Herold. While the legal arguments went against him, he did persuade the Court of Appeals that the trial court did not make sufficient findings to justify the maintenance award, including the $144K of retroactive temporary maintenance. As we have noted previously in this blog, courts must make specific findings when awarding or denying maintenance, and failure to do so will inevitably see the case remanded for more specific findings.
In this case, while the trial court did make detailed findings as to the parties’ incomes, that the wife lacked the ability to provide for her reasonable needs without maintenance, and noted it was “mindful” of the maintenance statute, it failed to determine what the wife’s actual reasonable needs were, and whether $12,000/mo would meet them. Herold.6In re: Marriage of Herold & Callison, 2021 COA 16, ¶ 20.
In particular, the court of appeals noted that the wife’s sworn financial statement reflected needs of almost $10,000/mo, and she earned $4000 from her primary employment, and the trial court also did not consider the impact of the husband paying the mortgage, utilities, and other living expenses on the wife’s needs.
Accordingly, the award of temporary maintenance and retroactive temporary maintenance was remanded for additional findings. Note that this remand does not necessarily mean the maintenance outcome will be different. The trial court could decide additional evidence is needed, or that none is needed, and could also keep the same $12,000/mo temporary alimony award, just better articulate the math behind this amount.
The takeaway? Yet again, Herold shows the importance of courts making detailed findings when determining maintenance. In most cases, there is probably not enough money involved in a temporary maintenance award to justify the costs of an appeal, but in this case, when $144K in retroactive temporary maintenance alone was on the block, plus temporary maintenance after the hearing date, there was enough at stake to justify an appeal.
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