The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.

SUMMARY January 24, 2019

No. 17CA2293, Marriage of Thorstad — Family Law — Uniform Dissolution of Marriage Act — Post-dissolution — Modification and Termination of Provisions for Maintenance, Support, and Property Disposition

A division of the court of appeals addresses the issue of how

trial courts should apply section 14-10-122(2)(a), (b), and (c),

C.R.S. 2018, when deciding whether to modify a payor spouse’s

maintenance obligation because he or she has decided to retire

from employment. These subsections establish a rebuttable

presumption that a decision to retire was made in good faith when

certain conditions are met.

The division then concludes that, absent a court’s decision to

reserve jurisdiction, the parties’ stipulation in a separation

agreement to apply a different standard, or a statute enunciating a

different standard, a court must apply section 14-10-122(1)(a) when deciding whether to grant a payor’s motion to modify or to

terminate maintenance. When a motion to modify or terminate

maintenance is based on a payor’s decision to retire, the court must

therefore decide, considering the factors discussed in section

14-10-114, C.R.S. 2018, whether circumstances have changed in

such a sufficient and continuing way as to render the maintenance

order unfair.

In other words, the payor’s good faith decision to retire is a

factor in the analysis, but it does not automatically require the

court to grant the motion to modify or to terminate a maintenance

obligation.

So, the division reverses the trial court’s order because it

misapplied subsections 122(2)(a), (b), and (c), and the division

remands the case to the trial court for further proceedings. COLORADO COURT OF APPEALS

Court of Appeals No. 17CA2293 Jefferson County District Court No. 01DR2710 Honorable Dennis J. Hall, Judge

In re the Marriage of

Ronald L. Thorstad,

Appellee,

and

Randie J. Thorstad, n/k/a Randie J. Randell,

Appellant.

ORDER REVERSED AND CASE REMANDED WITH DIRECTIONS

Division IV Opinion by CHIEF JUDGE BERNARD Hawthorne and Tow, JJ., concur

Announced January 24, 2019

Elizabeth Henson, Attorney Mediator P.C., Elizabeth Henson, Greenwood Village, Colorado, for Appellee

Schaffner Law LLC, Jennifer A. Schaffner, Denver, Colorado, for Appellant I. Introduction

¶1 Colorado statutes establish how courts set, modify, and

terminate maintenance orders. The decision to modify or to

terminate a maintenance order is often governed by the effect of

changed circumstances on the payor spouse’s ability to pay.

¶2 More specifically, section 14-10-122(1)(a), C.R.S. 2018, states

that, subject to certain enumerated exceptions, “the provisions of

any decree respecting maintenance may be modified . . . only upon

a showing of changed circumstances so substantial and continuing

as to make the terms unfair.” When deciding whether changes have

been sufficiently substantial and continuing as to render a

maintenance order unfair, “the court is required to examine all

circumstances pertinent to awarding maintenance” under section

14-10-114, C.R.S. 2018. In re Marriage of Nelson,

.

¶3 This case examines the statutory structure that courts apply

when dealing with the effect of one potential substantial and

continuing changed circumstance upon a maintenance order: a

payor’s decision to retire. We recognize that, in some cases, there

could be an ulterior motive behind this decision: to reduce or to

1 eliminate the obligation to pay maintenance by reducing or

eliminating the payor’s income. The law gives a name to such an

ulterior motive: “voluntary underemployment or unemployment.”

¶4 Courts frown on voluntary underemployment and

unemployment because these stratagems constitute an attempt to

avoid paying maintenance. They may counter such stratagems by,

for example, considering “whether [a payor] spouse is voluntarily

underemployed in determining whether reduced income is a

substantial and continuing circumstance that would justify

modification or termination of his [or her] maintenance obligation.”

In re Marriage of Swing,

(Colo. App. 2008); see

also In re Marriage of Barnthouse,

(Colo. App.

1988)(“[W]e find no error in the court’s [finding] that the

father . . . was voluntarily earning less than he was capable of

earning. Therefore, there is no merit to the father’s contention that

the . . . maintenance award[] [was] erroneous.”).

¶5 There is also the prospect that a payor’s decision to retire was

not the product of an ulterior motive, but was, instead, a product of

good faith. See § 14-10-114(8)(c)(V)(B) (“[A] party shall not be

deemed ‘underemployed if . . . [t]he employment is a good faith

2 career choice . . . .”); cf. § 14-10-115(5)(b)(III)(B), C.R.S. 2018 (“[A]

parent shall not be deemed ‘underemployed’ if . . . [t]he employment

is a good faith career choice that is not intended to deprive a child

of support and does not unreasonably reduce the support available

to a child . . . .”). In those situations, the decision to retire may

nonetheless pose a dilemma for the payor — which we shall call the

“payor’s dilemma” — prompting him or her to worry, “If I decide to

retire, thus reducing my income, will a court view my retirement as

voluntary underemployment or unemployment when deciding

whether to grant my motion to modify or to terminate my

maintenance obligation?” This dilemma may be especially

problematic when decisions to retire are irrevocable.

¶6 Swing addressed this concern. The division first recognized

the payor’s dilemma: “Unless the effect of retirement on

maintenance has been addressed in the parties’ separation

agreement, a spouse contemplating retirement who is either paying

or receiving maintenance faces considerable uncertainty.” Swing,

. The uncertainty is generated, on the one hand, by

the reduction in income that almost “irrevocably” accompanies

retirement, and, on the other hand, by the lack of Colorado law

3 “assur[ing] that maintenance will be modified based on the retiree’s

lower wage income.”

¶7 To ameliorate the payor’s dilemma, the division surveyed

decisions from other states, and it discovered a majority rule:

“[R]educed income due to a spouse’s objectively reasonable decision

to retire, made in good faith and not with the intention of depriving

the other spouse of support, should be recognized as a basis for

modifying maintenance.”

. The division then concluded

that a court should not find a payor to be voluntarily

underemployed if the payor’s decision to retire (1) “was made in

good faith, meaning not primarily motivated by a desire to decrease

or eliminate maintenance,” id.; and (2) “was objectively reasonable

based on factors such as the [spouse’s] age . . . [and] health, and

the practice of the industry in which the [spouse] was employed,”

¶8 Apparently following the division’s lead, the legislature took a

similar approach to solving the payor’s dilemma when, in 2013, it

amended section 14-10-122(2)(a), (b), and (c). Ch. 176, sec. 2,

§ 14-10-122(2)(a), (b), (c),

.

4 ¶9 As a result of the amendments, subsection 122(2)(a) now

states that,

[u]nless otherwise agreed in writing or expressly provided in the decree, the obligation to pay future maintenance is terminated upon the earlier of:

(I) The death of either party;

(II) The end of the maintenance term, unless a motion for modification is filed prior to the expiration of the term;

(III) The remarriage of or the establishment of a civil union by the party receiving maintenance; or

(IV) A court order terminating maintenance.

¶ 10 Subsection 122(2)(b) adds that “[a] payor spouse whose

income is reduced or terminated due to his or her retirement after

reaching full retirement age is entitled to a rebuttable presumption

that the retirement is in good faith.” Subsection 122(2)(c) defines

the term “full retirement age” to be “the payor’s usual or ordinary

retirement age when he or she would be eligible for full United

States social security benefits, regardless of whether he or she is

ineligible for social security benefits for some reason other than

attaining full retirement age.” But, according to subsection

122(2)(c), “‘[f]ull retirement age’ shall not mean ‘early retirement age’

5 if early retirement is available to the payor spouse, nor shall it

mean ‘maximum benefit retirement age’ if additional benefits are

available as a result of delayed retirement.”

¶ 11 We must next make a point about the statutes that we

consider in this appeal. In 2013, section 14-10-114 was repealed

and reenacted. Ch. 176, sec. 1, 14-10-114,

-52. The considerations relevant to determining maintenance in

this case used to appear in subsections (3) and (4) before the 2013

amendments, but they now appear in subsection (3).

¶ 12 The petition for dissolution of marriage in this case was filed

on September 17, 2001, so the new version of section 14-10-114

applicable to petitions filed on or after January 1, 2014, does not

apply. See § 14-10-114(9). Rather, “[a]ctions filed before January

1, 2014, are determined pursuant to the provisions of this section

as it existed at the time of the filing of the action.” Id. This means

that from this point on, unless otherwise noted, when we refer to

any of the subsections of section 14-10-114, we are referring to

those that existed in September 2001.

¶ 13 Section 14-10-122 does not contain similar language. So,

when we discuss any of the subsections of section 14-10-122, we

6 are concerned with those in existence when husband filed his

motion to terminate his maintenance obligation in May 2017.

¶ 14 Turning to this case, a former husband, Ronald L. Thorstad,

suffered from some health problems, which contributed to his

decision to retire from his job. He therefore asked a magistrate to

terminate his maintenance obligation to his former wife, Randie J.

Thorstad, who is now known as Randie J. Randell. (For readability

purposes, we shall dispense with the adjective “former” and simply

call the parties to this appeal “husband” and “wife.”) The

magistrate granted husband’s request; wife sought the district

court’s review; and the district court denied her petition. (Because

the district court denied wife’s petition, essentially affirming the

magistrate’s decision, we will refer to the district court and the

magistrate cumulatively as “the trial court” unless we need to make

a specific point about either one.)

¶ 15 Wife filed this appeal.

¶ 16 We conclude that the magistrate’s order, as affirmed by the

district court, partially misapplied subsections 122(2)(a), (b), and

(c). We therefore reverse the court’s order, and we remand the case

7 for further proceedings, including ruling on wife’s request for

appellate attorney fees under section 14-10-119, C.R.S. 2018.

II. Background

¶ 17 The decree in this case dissolved the marriage between

husband and wife in May 2002. Their separation agreement

included a “step down” schedule for husband’s maintenance

obligation to wife, meaning that the amount husband paid

decreased over time. He was paying wife $3000 per month when he

asked the trial court to terminate his maintenance obligation.

¶ 18 In the separation agreement, husband and wife agreed that

the trial court would have jurisdiction to modify the amount of

maintenance if wife’s medical condition worsened or if her medical

costs substantially increased. The agreement contained the

following succession of sentences:

 “Maintenance shall be subject to review and modification

by the [c]ourt under [section 14-10-114], without the

requirement of proving a substantial and continuing

change of circumstances making the existing [o]rder

unfair.”

8  Husband and wife “have assumed . . . that wife will be

able to work full-time without disability from her [medical

condition], and that husband will retire completely from

paid employment on or before he reaches age sixty.”

 Husband and wife “understand that a worsening of . . .

wife’s [medical condition] which interferes with her ability

to work full time, or a substantial increase in the wife’s

medical costs, will require a re-evaluation of maintenance

in connection to . . . wife’s needs.”

¶ 19 These sentences do not include any reference to the

termination of maintenance, and they do not refer to section

14-10-122 at all, let alone to subsections 122(2)(a), (b), or (c).

Indeed, they could not refer to those subsections because they did

not exist in their present form when husband and wife entered into

their separation agreement.

¶ 20 In May 2017, relying on subsections 122(2)(a), (b), and (c),

husband asked the magistrate to terminate his maintenance

obligation, alleging that he intended to retire and that his health

had deteriorated. The magistrate granted this request.

9 ¶ 21 Unbeknownst to the magistrate, wife had filed a response to

husband’s motion to terminate maintenance after the time for

responding had lapsed. She did not ask for the magistrate’s

permission to do so. The response asked the court to deny

husband’s request to terminate his maintenance obligation and that

the court take a “wider view” of subsections 122(2)(a), (b), and (c)

and section 14-10-114.

¶ 22 The magistrate granted husband’s motion without a hearing

before wife’s response reached the court’s electronic filing system.

¶ 23 Employing C.R.M. 7(a), wife then filed a petition that asked the

district court to review the magistrate’s order. She raised two

points: first, it was unclear from the magistrate’s order whether

husband had relied on the proper statute when he asked the

magistrate to terminate his maintenance obligation; and, second,

the magistrate erred when he granted husband’s motion without

considering her response.

¶ 24 Wife contended that section 14-10-114 governed husband’s

request to terminate maintenance, instead of subsections 122(2)(a),

(b), and (c), because the court had reserved jurisdiction to modify

maintenance by approving the parties’ separation agreement. She

10 also observed that the district court had determined, during prior

modification proceedings in this case, that section 14-10-114

governed its decision to modify maintenance.

¶ 25 Although the magistrate did not have wife’s response prior to

ruling on husband’s motion, the district court noted in its order

that it had taken her response into account when ruling on her

C.R.M. 7(a) petition. The district court, rejecting wife’s contentions,

denied her petition.

III. Standard of Review

¶ 26 A district court’s review of a magistrate’s order is like appellate

review, and the magistrate’s findings of fact cannot be altered

unless clearly erroneous. C.R.M. 7(a)(9); In re Parental

Responsibilities Concerning G.E.R.,

(Colo.

App. 2011). Our review of the district court’s decision is effectively

a second level of appellate review, and we apply the same clearly

erroneous standard. In re Marriage of Dean,

;

G.E.R.,

.

¶ 27 We review a district court’s order modifying maintenance for

an abuse of discretion. In re Marriage of Ward,

(Colo. 1987). However, we review de novo whether the district court

11 applied the correct legal standard. In re Marriage of Atencio,

(Colo. App. 2002).

IV. Wife’s Contentions and Our Conclusions

¶ 28 Wife raises three contentions. She asserts that the trial court

erred when it

1. relied on section 14-10-122 instead of section

14-10-114 in the course of granting husband’s motion

to terminate his maintenance obligation;

2. terminated husband’s maintenance obligation without

making sufficient factual findings; and

3. treated husband’s motion as confessed even though

wife had submitted an untimely response.

¶ 29 Addressing these contentions, we reach the following

conclusions, which we will explain below in detail.

 The question of what statute applies to resolve husband’s

motion is one of law, which we review de novo. See

Atencio,

.

 Section 14-10-122 was the right statute for the trial court

to use when deciding whether to grant husband’s motion.

But a court cannot automatically terminate a

12 maintenance obligation under subsection 122(2)(a)(IV) if

a payor satisfies the retirement provisions found in

subsections 122(2)(b) and (c). Rather, a payor’s good

faith retirement simply becomes a factor for the court to

consider in the analysis of whether, under subsection

122(1)(a), the payor can show that there has been a

substantial and continuing change of circumstances that

makes the existing maintenance order unfair.

 A court can, in specified circumstances, reserve

jurisdiction over a maintenance order. But husband and

wife’s separation agreement in this case, which the court

had approved, did not reserve jurisdiction over the

question of what effect husband’s retirement would have

on his maintenance obligation. So the separation

agreement did not require the trial court to use section

14-10-114 to resolve husband’s motion instead of

subsections 122(1)(a), (2)(a), (2)(b), and (2)(c).

 We do not need to address wife’s assertion that the trial

court erred when it decided that wife had confessed

husband’s motion.

13 V. Analysis

A. The Decision to Award Maintenance

¶ 30 In 2001, before a court could award maintenance, section

14-10-114(3) required the court to “make a threshold determination

that the requesting spouse lacks sufficient property, including

marital property, to provide for his or her reasonable needs and is

unable to support himself or herself through appropriate

employment.” In re Marriage of Rose,

(Colo. App.

2006). Once the court found that this statutory threshold had been

satisfied, it would turn to section 14-10-114(4) to figure out the

amount and duration of maintenance. To do so, it would consider

“the parties’ financial resources; the recipient’s need for education

or training; the standard of living established during the marriage;

the age and condition, both physical and emotional, of the recipient;

and the payor spouse’s ability to meet his or her own needs while

meeting those of the recipient.” Rose,

.

B. Incorporating a Payor’s Retirement into the Decision to Modify Maintenance

¶ 31 Based upon the relevant facts and law, we ask and answer

three questions concerning how the 2001 version of section

14 14-10-114(3) and (4) and subsection 122(1)(a) interact with

subsections 122(2)(a), (b), and (c) for the purposes of resolving this

appeal.

¶ 32 Do Subsections 122(2)(a), (b), and (c) Create a Reason — Good

Faith Retirement — That Automatically Terminates a Payor’s Duty to

Pay Maintenance?

¶ 33 We answer this question “no.”

¶ 34 To remind the reader, when discussing retirement, subsection

122(2)(b) creates a “rebuttable presumption” that a payor who

retires “after reaching full retirement age” has retired in “good

faith.” Subsection 122(2)(c) adds a definition of “full retirement

age.”

¶ 35 “[W]e ‘must read and consider the statutory scheme as a whole

to give consistent, harmonious[,] and sensible effect to all its parts.’”

People v. Stellabotte,

(quoting Martin v. People,

(Colo. 2001)). When we look at the entirety of

subsection 122(2), we see that it deals with the decision to

terminate “the obligation to pay future maintenance.” A court

therefore considers the rebuttable presumption found in subsection

122(2)(b) when deciding to terminate the obligation.

15 ¶ 36 But it is also clear from the statutory language that this

rebuttable presumption is not conclusive on the question of

whether the court should terminate the payor’s maintenance

obligation. Subsection 122 does not state that the court “shall” or

“must” terminate a payor’s maintenance obligation if the payor

establishes that he or she is entitled to the rebuttable presumption.

¶ 37 Because the presumption is rebuttable, the spouse who is

receiving maintenance must have the opportunity to rebut the

presumption. “Rebuttable presumptions have a limited purpose.”

Krueger v. Ary,

(Colo. 2009). They “(1) shift[]

the burden of going forward to the party against whom it is raised,

and (2) if that burden is not met, establish[] the presumed facts as a

matter of law.”

¶ 38 Once the payor satisfies the rebuttable presumption created

by subsection 122(2)(b), the presumption shifts the burden of going

forward to the recipient to show that the payor’s decision to retire

was not made in good faith. If the recipient does not meet this

burden, then the court will presume, as a matter of law, that the

payor’s decision to retire was made in good faith. Looking to Swing,

we see that “good faith” means that the retirement decision was not

16 affected by the ulterior motive of voluntary unemployment or

underemployment, as a means to reduce or eliminate a

maintenance obligation.

.

¶ 39 Do Subsections 122(2)(a), (b), and (c) Merely Set Out a Factor —

Good Faith Retirement — That a Court Must Consider When Deciding,

Under Subsection 122(1)(a), Whether Circumstances Have Changed

in Such a Substantial and Continuing Way as to Make the Terms of

the Existing Maintenance Order Unfair?

¶ 40 Looking at the language of these subsections together, we

conclude that the answer to this second question is generally “yes.”

¶ 41 As we point out above, subsection 122(1)(a) tells courts that,

when deciding whether to modify a maintenance order, they must

decide whether circumstances have changed in such a substantial

and continuing way as to make the existing terms of the

maintenance order unfair. A payor’s decision to retire could,

indeed, be such a factor. But it is only one factor among potentially

many because “the court must examine all circumstances pertinent

to an initial maintenance award, including all relevant

circumstances of both parties” under the 2001 version of section

14-10-114(4). In re Marriage of Kann,

; Nelson,

17 ¶ 26. (When addressing this issue for cases filed after the 2013

amendments, courts should look to section 14-10-114(3).)

¶ 42 To determine if the parties’ changed circumstances warrant

modification, the court must examine them as if it were awarding

maintenance for the first time under section 14-10-114. Nelson,

¶ 26. The party seeking to modify maintenance carries a heavy

burden of showing that the changed circumstances warrant

modification. Kann, ¶ 74. If that party makes the required

showing, it is within the court’s discretion to modify the

maintenance order to meet the needs and abilities of the parties.

Ward,

; Nelson, ¶ 28.

¶ 43 In other words, if a payor asks a court to modify or to

terminate a maintenance obligation because he or she intends to

retire, then the court should follow a general rule. First, applying

subsections 122(b) and (c), it should decide whether the payor’s

decision to retire was made in good faith. Second, it should then

incorporate its findings concerning the payor’s decision to retire as

one of the factors to consider in deciding whether, under subsection

122(1)(a), circumstances have changed in such a substantial and

continuing way as to make the original order unfair. In doing so, it

18 must also consider the factors listed in the 2001 version of section

14-10-114(3) and (4).

¶ 44 We therefore conclude that the trial court erred because it did

not apply the general rule in this case. Its order treated husband’s

good faith decision to retire as conclusive in resolving his motion to

terminate maintenance. The order did not address the subsection

122(1)(a) question of whether husband’s retirement and declining

health were continuing and substantial changed circumstances

that rendered his maintenance obligation unfair. And it did not

consider husband’s and wife’s needs and abilities, as required by

the 2001 version of section 14-10-114(3) and (4). See Nelson,

¶¶ 26, 28; Swing,

(observing that the magistrate

made extensive findings on the parties’ financial circumstances

before modifying maintenance); Rose,

; In re

Marriage of Caufman,

(Colo. App. 1992).

¶ 45 We reverse the trial court’s order and remand this case to the

court because of this error. On remand, the court shall consider

husband’s good faith retirement as a factor in deciding whether,

under subsection 122(1)(a), circumstances have changed in such a

substantial and continuing way as to make the existing terms of

19 husband’s maintenance obligation unfair. While doing so, the court

shall consider the factors found in the 2001 version of section

14-10-114(3) and (4) concerning husband’s and wife’s needs and

abilities.

¶ 46 What Happens to This General Rule If a Separation Agreement

Reserves Jurisdiction?

¶ 47 We conclude that such language might establish an exception

to the general rule. But the boundaries of the exception are

established by the specific language of the separation agreement.

And, in this case, the separation agreement did not reserve

jurisdiction for the trial court to consider husband’s decision to

retire or his declining health.

¶ 48 If, at the time of permanent orders, an important future

contingency exists that a court can resolve in a reasonable and

specific time, the court may reserve jurisdiction to modify

maintenance under section 14-10-114. In re Marriage of Folwell,

(Colo. App. 1995). To do so, the court must (1)

explicitly state its intent to reserve jurisdiction; (2) describe the

future event upon which the reservation of jurisdiction is based;

and (3) set forth a reasonably specific future time within which

20 maintenance may be considered under section 14-10-114. Folwell,

.

¶ 49 If the court does not properly reserve jurisdiction, it can only

modify maintenance under the parameters set out under subsection

122(1)(a). See

“[I]f the . . . court merely reserves jurisdiction for

modification ‘as provided by law,’ or fails to establish a legal

standard in its order, the statutory requirements of changed

circumstances and [unfairness]” in subsection 122(1)(a) “also

apply.” Caufman,

.

¶ 50 In this case, although the separation agreement mentioned

husband’s retirement, its language did not reserve jurisdiction to

the court concerning husband’s decision to retire or his declining

health, or state that husband’s good faith retirement or declining

health would automatically terminate his obligation to pay future

maintenance to wife. Rather, the agreement identified two events —

a worsening of wife’s medical condition that interfered with her

ability to work full time or a substantial increase in her medical

costs — as the basis for the court’s reserved jurisdiction.

¶ 51 But husband did not ask the court to terminate his

maintenance obligation on the basis of either of these events; he

21 relied, instead, on his own health complications and on his

anticipated retirement. Section 14-10-114 therefore did not imbue

the trial court with jurisdiction to modify or terminate husband’s

maintenance obligation. See Folwell,

(by identifying

husband’s retirement as a specific event, district court properly

retained jurisdiction to modify maintenance under section

14-10-114 when husband retired). As a result, we disagree with

wife’s contention that the separation agreement reserved

jurisdiction to the district court to modify maintenance under

section 14-10-114 upon husband’s retirement. See Folwell,

.

VI. Magistrate’s Ruling Deeming Husband’s Motion Confessed

¶ 52 Wife also contends that the magistrate erred when he found

that wife had confessed husband’s motion to terminate

maintenance. Because the district court considered wife’s response

before ruling on her C.R.M. 7(a) petition, and because we have

reversed the order terminating maintenance and remanded the case

for further proceedings, we will not address this contention.

22 VII. Wife’s Request for Appellate Attorney Fees

¶ 53 Wife asks that we award her appellate attorney fees under

section 14-10-119. She contends that husband has substantially

greater financial resources than she does to litigate this appeal.

Because the trial court is better equipped to resolve the factual

issues regarding the parties’ current financial circumstances, we

remand wife’s request to the trial court. See Kann, ¶ 84.

¶ 54 We reverse the trial court’s order terminating husband’s

maintenance obligation, and we remand the case to the trial court

to determine (1) whether husband’s circumstances have changed in

such a substantial and continuing way as to make the existing

terms of husband’s maintenance obligation unfair; and (2) wife’s

request for appellate attorney fees under section 14-10-119.

JUDGE HAWTHORNE and JUDGE TOW concur.

23