Marriage of Mulberry
Marriage of Mulberry
Marriage of Mulberry
Opinion
23CA1839 Marriage of Mulberry 08-15-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA1839
Pitkin County District Court No. 22DR30019
Honorable Christopher G. Seldin, Judge
In re the Marriage of
Tharyn Dean Mulberry,
Appellee,
and
Narendra Geneva Kristine Conway,
Appellant.
JUDGMENT AFFIRMED
Division VI
Opinion by JUDGE FREYRE
Schutz and Graham*, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced August 15, 2024
No Appearance for Appellee
Narendra Geneva Kristine Conway, Pro Se
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2023.
1
¶ 1 Narendra Geneva Kristine Conway (wife) appeals the district
court’s permanent orders entered in connection with the dissolution
of her marriage to Tharyn Dean Mulberry (husband). We affirm.
I. Background
¶ 2 In 2022, after fifteen years of marriage and two children,
husband filed a petition for dissolution.
¶ 3 After an evidentiary hearing, the district court issued a
dissolution decree and entered permanent orders. The court
divided the marital estate as follows:
Marital Property
Marital Value
Wife’s Allocation
Husband’s
Allocation
Marital Residence
(a portion of
which served as a
rental unit)
$263,440
$263,440
Vehicles
$22,000
$11,000
$11,000
Bank Accounts
$3,960
$1,980
$1,980
Husband’s PERA
$351,170
$351,170
Husband’s AXA
403(b) Retirement
Account
(retirement
account)
$26,588
$26,588
Husband’s
Vacation Paid
Time Off (PTO)
$8,900
$8,900
Debts Including
Wife’s Attorney
Fees and
Husband’s
Personal Loan
($108,839)
($108,839)
SUBTOTAL
$567,219
$303,008
$264,211
2
“Equalization”
Payment
($24,092)
$24,092
TOTAL
$278,916
$288,303
¶ 4 The court also directed husband to pay wife $2,000 in monthly
maintenance for 100 months plus $201 in monthly child support.
¶ 5 Wife now appeals.
II. Compliance with C.A.R. 28
¶ 6 To start, we observe that wife’s opening brief violates the
appellate rules. They require, among other things, that her
contentions include a statement on preservation along with
citations to both relevant portions of the record and legal authority.
See C.A.R. 28(a)(7)(A) (“[T]he arguments . . . must contain . . . the
precise location in the record where the issue was raised and where
the court ruled.”), (B) (the arguments must contain appellant’s
contentions and reasoning, “with citations to the authorities and
parts of the record on which the appellant relies”).
¶ 7 “The appellate rules are not mere technicalities, but are
designed to facilitate appellate review.” Cikraji v. Snowberger, 2015
COA 66, ¶ 10.
¶ 8 A noncompliant opening brief may be stricken and the appeal
dismissed. See C.A.R. 38(a); see also Bruce v. City of Colorado
3
Springs, 252 P.3d 30, 32 (Colo. App. 2010). We are mindful, of
course, that wife is representing herself; however, that does not
excuse her from following the appellate rules. See Cikraji, ¶ 10 (pro
se parties are bound by the same procedural rules as a party
represented by an attorney); see also Rosenberg v. Grady, 843 P.2d
25, 26 (Colo. App. 1992) (A self-represented “litigant who chooses to
rely upon h[er] own understanding of legal principles and
procedures is required to follow the same procedural rules as those
who are qualified to practice law and must be prepared to accept
the consequences of h[er] mistakes and errors.”).
¶ 9 Still, because we can discern the issues on appeal, we exercise
our discretion to consider wife’s contentions. See Bruce, 252 P.3d
at 32. But see Castillo v. Koppes-Conway, 148 P.3d 289, 291 (Colo.
App. 2006) (“In light of [the appellant’s] failures and violations [of
C.A.R. 28], we will not review the [district] court’s order.”). That
said, we will not develop her arguments for her or search the record
for supporting facts. See Minshall v. Johnston, 2018 COA 44, ¶ 21;
see also Cikraji, ¶ 10.
¶ 10 We warn wife that any future noncompliance with C.A.R. 28 or
other applicable appellate rules could lead to our striking the
4
offending brief or imposing other appropriate sanctions, including
III. Property Division
¶ 11 Wife raises several challenges to the district court’s property
division. We address and reject each.
A. Standard of Review
¶ 12 A district court has great latitude in making an equitable
property division based on the facts and circumstances of each
case, and we will not disturb its decision absent an abuse of
discretion. In re Marriage of Collins, 2023 COA 116M, ¶ 19; see
§ 14-10-113(1), C.R.S. 2023. “The property division must be
equitable, but not necessarily equal.” In re Marriage of Wright, 2020
COA 11, ¶ 3; see In re Marriage of Gallo, 752 P.2d 47, 55 (Colo.
1988) (“The key to an equitable distribution is fairness, not
mathematical precision.”). The court abuses its discretion when its
decision is manifestly arbitrary, unreasonable, or unfair, or when it
misapplies the law. In re Marriage of Medeiros, 2023 COA 42M, ¶
28. We review de novo the court’s application of the law. Id.; see In
re Marriage of Bochner, 2023 COA 63, ¶ 18 (“De novo means
‘anew.’”).
5
B. Discussion
1. Husband’s AXA Retirement Account
¶ 13 As best we can discern, wife contends that the district court
erred by (1) determining that husband had a separate property
interest in the AXA retirement account; and (2) valuing the
retirement account. We disagree.
¶ 14 Before dividing the marital estate, the district court must
determine whether an asset is marital, and subject to division, or
whether it is separate and not subject to division. Medeiros, ¶ 49;
see § 14-10-113(1) (district court is required to set apart separate
property to each party and divide the marital property). Marital
property excludes property that a party owned before the marriage.
See § 14-10-113(2). However, the appreciation of a party’s separate
property during the marriage is a divisible asset. See
§ 14-10-113(4) (An asset acquired by a party before the marriage is
considered marital property “to the extent that its present value
exceeds its value at the time of the marriage.”); see also Wright, ¶ 8.
¶ 15 The classification of property as marital or separate is a legal
determination based on the court’s factual findings. In re Marriage
of Morton, 2016 COA 1, ¶ 5. We review de novo the court’s legal
6
determination and defer to its factual findings unless they are
clearly erroneous, meaning they do not have any support in the
¶ 16 The district court must also determine the approximate
current value of marital property. Wright, ¶ 4; see also
§ 14-10-113(5) (district court must value property as of the date of
the permanent orders hearing when the hearing occurs before the
entry of the dissolution decree).
¶ 17 The record reflects that in 1994 (about twelve years before the
marriage) husband opened a Valic retirement account, which was
serviced by AIG, and began investing $300 per month until
sometime “before 2008.” When AIG went bankrupt in 2008, he
transferred the retirement account to AXA. Due to the bankruptcy,
he was unable to get any information documenting the value of the
account at the time of the marriage. He testified that wife never
contributed to the account. He provided an AXA statement
indicating a current balance of $51,587 with a total contribution of
$33,655 since 2008.
¶ 18 The district court found that the retirement account had a
total value of $51,587, consisting of $25,000 of husband’s separate
7
property, and $26,587 of marital property. See In re Marriage of
Thorburn, 2022 COA 80, ¶ 9 n.1 (district court’s oral findings
supplement its written order). The court then awarded the account
to wife.
¶ 19 Because there is evidence in the record to support the district
court’s findings that husband established a separate property
interest in the retirement account and that the account was worth
$51,587, we will not disturb them. See Morton, ¶ 5; see also Wright,
¶ 4. And for the same reasons, we reject wife’s assertion that the
court lacked sufficient information to determine a value or that the
court speculated as to the value.
¶ 20 Still, wife argues that husband committed “perjury” by
testifying that AIG went bankrupt in 2008 and that he transferred
the retirement account to AXA. According to her, there were two
separate accounts because husband, without her knowledge,
drained the AIG and moved the funds into a hidden account. Wife’s
claims concern the credibility of the testimony and other evidence
considered by the district court and the weight it should be given.
Such determinations are solely within the district court’s province
and an appellate court may not alter them or substitute its own
8
judgment for the district court’s. See Thorburn, ¶ 49 (credibility
determinations and the weight, probative force, and sufficiency of
the evidence, as well as the inferences and conclusions to be drawn
therefrom, are matters within the district court’s sole discretion);
see also In re Marriage of Wollert, 2020 CO 47, ¶ 23 (The district
court’s ability to observe and evaluate the witnesses’ credibility
deserves deference because a “cold record is a poor substitute for
live testimony.” (quoting People v. Scott, 600 P.2d 68, 69 (Colo.
1979))); In re Marriage of Amich, 192 P.3d 422, 424 (Colo. App.
2007) (it is the district court’s prerogative to believe all, part, or
none of a witness’s testimony, even if uncontroverted); In re
Marriage of Udis, 780 P.2d 499, 504 (Colo. 1989) (appellate court
may presume that the district court considered all of the evidence
admitted).
¶ 21 Wife also argues that husband borrowed against the
retirement account, leaving her responsible for repaying the debt
throughout the marriage. But during the marriage, both parties are
free to dispose of marital assets, even without the other party’s
permission. See In re Marriage of Schmedeman, 190 P.3d 788, 791
(Colo. App. 2008).
9
2. Marital Residence
¶ 22 Wife next contends the district court erred in valuing the
marital residence. We discern no error.
¶ 23 At the hearing, wife testified that a 2022 Pueblo County tax
assessment established the fair market value of the marital
residence at $283,434. She then asked the court to reduce that
value by at least $5,500 to cover necessary repairs. Husband
testified that the residence had a fair market value of $360,000
based on an online search. He added that the residence was
encumbered by a single mortgage of roughly $35,400.
¶ 24 After noting the absence of a home appraisal, the district court
found the parties’ valuation evidence unreliable. See Thorburn, ¶ 9
n.1. As to wife’s evidence, the court credited husband’s testimony
that the tax-assessed value was typically lower than the fair market
value. With limited evidence, the court determined that the
residence had a fair market value of $300,000, less a mortgage debt
of $36,560, for a net marital equity of $263,440.
¶ 25 Because the district court chose a figure between two
competing values, which was reasonable given the evidence, we will
not disturb it. See Medeiros, ¶ 41 (the district court may select one
10
party’s proposed value, reject both, or independently determine a
reasonable value, and an appellate court will not disturb that
determination if it is reasonable in light of the evidence as a whole);
see also In re Marriage of Krejci, 2013 COA 6, ¶ 23 (the parties must
furnish the district court with sufficient data to enable it to make a
reasonable property valuation, and failure to do so will not
constitute grounds for reversal).
¶ 26 Wife also appears to challenge the district court’s finding that
husband obtained a single mortgage on the marital residence. She
claims that husband “illegally” obtained additional mortgages
throughout the marriage to fund his brother’s alleged criminal acts.
Again, we discern no error. Husband testified that the original
mortgage was sold multiple times to different lenders during the
marriage; thus, the current mortgage, he said, was the “same” as
the original one. See Thorburn, ¶ 49 see also Amich, 192 P.3d at
424.
¶ 27 Wife also contends that husband “fraudulently” took out a
$75,000 home equity line of credit (HELOC) in violation of the
temporary injunction. We are not persuaded.
11
¶ 28 Upon the filing of a dissolution petition, “a temporary
injunction shall be in effect against both parties until the final
decree is entered . . . or until further order of the court” restraining
them from “transferring, encumbering, concealing, or in any way
disposing of, without the consent of the other party or an order of
the court, any marital property, except in the usual course of
business or for the necessities of life.” § 14-10-107(4)(b)(I)(A),
C.R.S. 2023.
¶ 29 If a party unilaterally withdraws marital funds during the
proceedings, in violation of the temporary injunction, the district
court may rectify that violation by including the dissipated funds in
the property division. See, e.g., In re Marriage of Jorgenson, 143
P.3d 1169, 1174 (Colo. App. 2006); In re Marriage of
Riley-Cunningham, 7 P.3d 992, 995 (Colo. App. 1999) (dissipation
occurs when a party depletes a marital asset for improper or
illegitimate purposes in contemplation of the dissolution). The
party who spent the funds bears the burden of demonstrating that
they were used for proper expenses. See Martinez v.
Gutierrez-Martinez, 77 P.3d 827, 830 (Colo. App. 2003); see also In
re Marriage of Finer, 920 P.2d 325, 331 (Colo. App. 1996) (the
12
district court may not consider an asset to have been dissipated
unless it finds that the party disposed of the asset improperly).
Even so, dissipation is reserved for “extreme cases.” Jorgenson, 143
P.3d at 1173.
¶ 30 Husband testified that, with wife’s consent, he opened the
HELOC and withdrew funds from it to repair the marital residence,
satisfy a joint tax obligation, cover their child’s dance expenses, and
pay for their dissolution-related legal fees. He said the bank later
restricted his access to the HELOC and that he was forced to take
out a personal loan to pay the outstanding balance. He indicated
that the highest balance ever carried on the HELOC was around
$31,000. As part of the permanent orders, the court granted wife’s
request to allocate the personal loan with a balance of $5,989 to
husband.
¶ 31 Because the record shows that husband obtained wife’s
approval for the HELOC and authorized its use, we conclude that
husband did not violate the temporary injunction. See
§ 14-10-107(4)(b)(I)(A); see also Thorburn, ¶ 49; Amich, 192 P.3d at
424. Moreover, nothing in the record shows that the expenses were
used for improper purposes or incurred to deplete the marital estate
13
in contemplation of the dissolution proceedings. See
Riley-Cunningham, 7 P.3d at 995; see also Martinez, 77 P.3d at 830.
3. Husband’s PERA
¶ 32 Wife next contends that the district court erred in valuing
husband’s PERA. We disagree.
¶ 33 The district court found that the parties stipulated that
husband’s PERA had a present value of $595,204 with a marital
portion of $351,170. The record supports that finding.
¶ 34 Before the hearing, the parties filed a joint trial management
certificate containing their stipulation:
The [p]arties do not agree to the allocation of
[h]usband’s PERA but do agree to the following
values: [his] PERA is presently valued on a full
refund basis of $595,204. [He] has been
contributing since 1994, the parties’ [d]ate of
[m]arriage is 2006 and it is currently 2023.
[His] separate property claim to the PERA is
41% with the marital portion being 59%.
Accordingly, the martial portion is $351,170.
At the hearing, husband testified about the stipulation and
requested that the court approve it. Then, wife testified briefly, and
contrary to the stipulation, that the PERA account was “twice
undervalued,” and claimed its actual worth exceeded $1 million.
Because it was up to the district court to decide the credibility of
14
the evidence before it, we discern no abuse of discretion in the
court’s decision to accept the parties’ stipulated values rather than
wife’s contrary testimony. See Thorburn, ¶ 49; see also Amich, 192
P.3d at 424; Krejci, ¶ 23.
4. Husband’s Cafeteria Plan
¶ 35 Wife next contends that the district court erred by excluding
from the marital estate husband’s cafeteria plan sponsored by his
employer. We decline to address the issue because it is
undeveloped. See In re Marriage of Zander, 2019 COA 149, ¶ 27
(appellate court will not consider an argument not supported by
legal authority or any meaningful legal analysis), aff’d, 2021 CO 12;
Barnett v. Elite Props. of Am., Inc., 252 P.3d 14, 19 (Colo. App. 2010)
(“We will not consider a bald legal proposition presented without
argument or development.”).
5. Husband’s Vacation PTO
¶ 36 Wife next contends that the district court should have given
her all of husband’s Vacation PTO. We disagree.
¶ 37 The district court found that husband, who was earning
$174,731 annually, had 106 hours of vacation PTO, which equated
to approximately $8,900 based on his hourly wage of $84. See
15
Thorburn, ¶ 9 n.1. The court then found it appropriate to award all
his vacation PTO to him.
¶ 38 Husband testified that he could only cash out his unused
vacation PTO every two years, with the next opportunity being in
November 2024. He also said that given the stress of his job and
the impact of the COVID-19 pandemic, he would like the
opportunity to take a vacation.
¶ 39 Given that the district court’s findings have ample record
support, we cannot say that the court’s allocation was manifestly
unreasonable or unfair. See Collins, ¶ 19.
IV. Maintenance and Child Support
¶ 40 Last, we decline to address wife’s undeveloped argument that
the district court erred by failing to order an income assignment for
husband’s maintenance and child support obligations. See Zander,
¶ 27.
V. Disposition
¶ 41 The judgment is affirmed.
JUDGE SCHUTZ and JUDGE GRAHAM concur.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.