SUMMARY February 11, 2021 **202 1**  **COA 1**  **6**
**No. 19CA2136,**  **Marriage of Callison**
**— Family Law** 
**— Dissolution** 
**— Spousal Maintenance**  A division of the court of appeals considers whether the district court may award retroactive temporary maintenance u nder section 14

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- 114, C.R.S. 2020, which was repealed and reenacted in 2014. The division concludes that the reenacted maintenance statute does not prohibit the district court from awarding retroactive temporary maintenance, and thus, the court may orde r retroactive temporary maintenance within its discretion. The division also concludes that the district court may order retroactive temporary maintenance for the time in which the spouses resided together in the same home after the dissolution proceeding s were initiated. 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.The division concludes, however, that the district court made insufficient findings in support of its order for retroactive temporary maintenance. Accordingly, the division reverses the court’s order and remands the case to the dis trict court for further findings.COLORADO COURT OF APPEALS **202 1**  **COA 1**  **6**
Court of Appeals No. 19CA2136 Douglas County District Court No. 18DR 30367 Honorable Robert Lung , Judge
In re the Marriage of Cynthia Jean Herold , Appell ee , and Kenneth Paul Callison , Appell ant

.

ORDER REVERSED AND CASE REMANDED WITH DIRECTIONS Division II Opinion by JUDGE ROMÁN Welling and Brown , JJ., concur Announced February 11, 2021
Senn Visciano Canges P.C. , James S. Bailey, P. Eric Voorheis , Denver , Colorado, for Appell ee Robinson Waters & O’Dorisio P.C. , Langdon J. Jorgensen , Denver , Colorado, for Appell ant1 ¶ 1 In this dissolution of marriage proceeding, Kenneth Paul Callison (husband) appeals the portion of the district court’s temporary orders award ing retroactive temporary maintenance under the reenacted temporary maintenance statute to Cynthia Jean Herold (wife). Addressing a question of first impression, we conclude that the reenacted maintenance statute does not prohibit the district court from awarding retroactive temporary maintenance, and , thus, it’s not an abuse of discretion if a court order s it. We also hold that the district court may order retroactive temporary maintenance for the time in which the spouses resided tog ether in the same home after the dissolution proceedings were initiated. However, because the district court made insufficient findings in support of its order, we reverse the court’s order and remand the case for further findings.
I. Background ¶ 2 Husband and wife were married at common law for o ver thirty
years . Almost a year after wife petitioned for the dissolution of their marriage , the court held a temporary orders hearing to consider , among other issues, wife’s request for temporary maintenance.2 ¶ 3 T he cour t found that husband received approximately $50,000 per month in gross income, while wife earned less than $4 , 000 per month. It found that the parties had a “lavish lifestyle” during the marriage , noting that they took trips to Europe, the Bahamas, the
Ca yman Island s , Alaska, and Las Vegas; that wife historically had “no limitation or restriction on her sh o pping or spending ”; and that she shopped “at the finest stores and [ate] at the finest restaurants.” The court further found that wife’s standard of living had dramatically declined , recognizing that she wa s now “ eating at McDonald’s . . . if she very infrequently eats out” and that she had “about $100 a month” for shopping. And the court found that d espite th e gross disparity in their income s , husband had given wife “zero in spousal support

. ” ¶ 4 T he court then determined that wife was incapable of meeting her reasonable needs as established during the marriage

. I t order ed husband to pay wife $12,000 per month in temporary maintenance retroactive to the commencement of the dissolution
p roceeding , which result ed in husband owing wife $144,000 in

arrear ages .3 II. Standard of Review ¶ 5 We review an award of temporary maintenance for an abuse of discretion. See In re Marriage of Rose , 134 P.3d 559, 561 (Colo. App. 2006) ; see also In re Marriage of Antuna , 8 P.3d 589, 595 (Colo . App. 2000)

. A district court abuses its discretion when it acts in a manifestly arbitrary, unfair, or unreasonable manner , or when it misappli es the law. See In re Marriage of Kann , 2017 COA 94, ¶ 56

. However, w e review de novo the district court’s
in terpretation and application of the law. See In re Marriage of Thorstad , 2019 COA 13, ¶ 27 ; In re Marriage of Vittetoe , 2016 COA 71, ¶ 4

. III. Authority to Award Retroactive Temporary Maintenance ¶ 6 Husband contends that the district court had no legal authority to order him to pay retroactive temporary maintenance

. Specifically, he argues that by repealing and reenacting the maintenance statute in 2014, the legislature eliminated the district court’s ability to impose re troactive temporary maintenance. We d o
not agree.4 A. Preservation ¶ 7 Wife first argues that husband did not preserve this issue for appellate review , and we therefore should not address it. See In re
Est ate of Ramstetter , 2016 COA 81, ¶ 12

. While a party gene rally must make a timely and specific objection before the district court to preserve an issue for appeal, see Rinker v. Colina

- Lee , 2019 COA 45, ¶ 25, wife did not request retroactive temporary maintenance at or before the temporary orders hearing. H usband thus had no opportunity to object to an award of retroactive temporary maintenance or argue that the court lacked the authority to impose such an award until the court issued its ruling. And “w here, as here, the [district] court rules su a sponte on an issue, the merits of its ruling are subject to review on appeal, whether timely objections were made or not .” Id. at ¶ 26

. B. Discussion ¶ 8 When interpreting a statute, we read and consider the statute as a whole and interpret it in a manner that gives consistent, harmonious, and sensible effect to all its parts

. Vittetoe , ¶ 4. In doing so, “ we adopt an interpretation that best effectuates the legislative purposes. ” Id.5 ¶ 9 Before 2014, t he maintenance statute created a rebuttable presumption in favor of temporary maintenance when the part ies earned less than a certain income , and it directed the court to begin an award for temporary maintenance “ at the time of the parties ’ physical separation or filing of the petition or service upon the respondent, whichever occurs last. ” § 14

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- 114(2)(c), C.R.S. 2013. ¶ 10 The legislature removed th e s e provision s on temporary maintenance when it repealed and reenacted the maintenance
statute in 2014. Ch. 176, sec. 1, § 14

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- 11 4, 2013 Colo. Sess.
Laws 639. ¶ 11 Contrary to husband’s argument , this repeal does not restrict the court’s authority

. I t has been recognized that the reenactment of the maintenance statute “ illustrate [d] the General Assembly’s intention for the district cour t to retain broad discretion ” over an award of maintenance. Vittetoe , ¶ 14. W hether to award temporary maintenance , therefore, remains a determination committed to the district court’s discretion. See Lanz v. Lanz , 143 Colo. 73, 75, 351 P.2d 845, 846 (1960); In re Marriage of Yates , 148 P.3d 304, 313 (Colo. App. 2006); Rose , 134 P.3d at 561. T he new statute provides “a more detailed statutory framework ” that includes guidelines “ to6 be considered as a starting poin t for the determination of fair and equitable maintenance awards.” § 14

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- 114(1)(b)(II) , C.R.S. 20 20

. ¶ 12 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 retroac tively. Rather, u nder t he current maintenance statute , the district court “may award a monthly amount of temporary maintenance.” § 14

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- 114(4)(a)(I); see also A.S. v. People , 2013 CO 63, ¶ 21 (“ [T]he legislature ’ s use of the term ‘may’ is generally indi cative of a grant of discretion

. . . .” ). And

w hen doing so, the court must determine a fair and equitable “term for payment of temporary maintenance

. ” § 14

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- 114(4)(a)(II); see also § 14

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- 114(2). ¶ 13 The repeal and reenactment of the maintenance statute does not indicate a restrict ion on the district court’s ability to award retroactive maintenance. Rather, i t expand ed the district court ’s discretion in determining a fair and equitable term of maintenance based on the totality of the circumstances in the case. See Vittetoe , ¶ 14 ; s ee also § 14

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- 114(4)(a)(II); 24A Am. Jur. 2d Divorce & Separation § 603, Westlaw (database updated Nov . 2020 ) (“[T] he determination as to when an allowance for temporary alimony7 should begin is generally within the discretion of the court. ”). This allows the court to fulfill an important purpose of temporary maintenance

— “to place the parties on an equal footi ng during the dissolution process.” In re Marriage of Nussbeck , 899 P.2d 347, 349 (Colo. App. 1995); see also Bieler v. Bieler , 130 Colo. 17, 19, 272 P.2d 636, 637 (1954)

. ¶ 14 H usband , however , argues that without specific statutory authorization , a court may not impose family support obligations for any time before the court conducts a hearing on the issue

. H e relies on cases addressing a parent’s child support obligation and contends that th e rationale from these cases s hould apply equally to a spouse’s temporary maintenance obligation

. See, e.g. , In re Marriage of Serfoss , 642 P.2d 44, 46 (Colo. App. 1981)

. But husband did not present this argument until his reply brief ; therefore , we will not address it

. See In re Ma rriage of Drexler , 2013 COA 43, ¶ 24 (declining to address an argument not raised in a party’s opening brief)

. ¶ 15 Nothing in the reenactment of the maintenance statute expressly requires retroactive maintenance or prohibits it. Given the district court’s discretion over the term for an award of8 temporary maintenance, w e cannot conclude that the court lack ed the a uthority to order retroactive temporary maintenance.
IV. Retroactive Temporary Maintenance Award ¶ 16 T he parties continued to r eside together in the marital home after wife filed the dissolution petition , and even attempted to reconcile

. During this time, husband paid the mortgage , utilities, and other shared living expenses. Husband argues that because he was doing so, the dist rict court improperly award ed retroactive temporary maintenance

. Under these circumstances, w e disagree. ¶ 17 In fashioning a maintenance award, the court must consider a spouse’s ability to independently meet his or her reasonable needs. § 14

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- 114(3)(c)(I) , (3) (d) ; Antuna , 8 P.3d at 595 ; see also § 14

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- 114(4)(a)(III) ( requiring the court to determin e temporary maintenance pursuant to the relevant provisions of section
14

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- 114(3) )

. In doing so, the court “is not limited to satisfying a spouse’s basic or survival needs.” Yates , 148 P.3d at 313. The court, instead, should consider the facts and circumstances of the

case , including the standard of living established during the marriage. See In re Marriage of Thornhill , 232 P.3d 782, 789 (Colo. 2010); Yat es , 148 P.3d at 313.9 ¶ 18 Wife acknowledged that she had been living in the marital home with husband and that he was paying the mortgage , utilities, and other living expenses. She testified , however , that she was unable to meet her reasonable financial needs and that husband had not provided her with any money to do so , even though he was receiving over $50,000 per month in gross income

. She further testified that she had wanted to end their living arrangement since filing her petition , but sh e lacked the financial resources to leave ; that she had been forced to liquidate her retirement account and work at a second job to pay her expenses ; and that she could not obtain dental care, vision care, or health care because she could not afford to pay the required deductible s . ¶ 19 As well, wife testified to the extravagant lifestyle that the parties had established during the marriage, including driving luxury cars, din ing at high

- end restaurants, shopping for designer items , and going o n expensive vacatio ns. S he also testified that during the dissolution proceeding, husband’s lifestyle remained the same but her standard of living had dramatically decreased because husband had restricted her access to their financial resources by10 cancelling credit cards, c losing bank accounts, and limiting her income

. ¶ 20 T he court found that wife lacked sufficient financial resources
to meet her reasonable needs as established during the marriage. It noted that husband had deliberately “chosen the low road” by not financially supporting wife and that it had “never seen a more grave example of disparity and disregard for a spouse.” T he court th en determined that retroactive temporary maintenance was appropriate , finding that it, along with the other temporary orders, would “level [the] playing field.” ¶ 21 G iven these findings, we dis agree with husband that the district court failed to explain it s reasons for award ing retroactive temporary maintenance eve n though the parties were living together

. And although husband paid some of the parties’
pre - temporary orders expenses , the record supports the court’s determination that wife could not meet her reasonable needs as established during the marriage and tha t an award of retroactive temporary maintenance was appropriate. See Thornhill , 232 P.3d at 789; Yates , 148 P.3d at 313 ; see also Bieler , 130 Colo. at 20 , 272 P.2d at 637 (recognizing th at temporary maintenance is intended to11 allow a spouse to live in his or her “ accustomed manner ” pending the dissolution proceeding) (citation omitted)

. ¶ 22 Still, husband argues that under In re Marriage of Peterson , 40 Colo. App. 115, 5 72 P.2d 849 (1977) , a party’s maintenance obligation abates when the parties live together and the party obligated to pay maintenance pays the other party’s expenses. But
Peterson is distinguishable. There , the former spouses attempted to reconcile after the dissolution of th eir marriage. Id. at 116, 572 P.2d at 850. During that time, the parties lived together , and the

ex - husband paid the ex

- wife a portion of his maintenance obligation and other family expenses

. Id. at 116

- 17 , 572 P.2d at 850. T he division held that “ under the circumstances of th [at] case , where the parties made a good faith although unsuccessful attempt at reconciliation and where the [ex

- ] husband supported the family during this time , ” the ex

- wife was not entitled to a maintena nce
arrearage . Id. at 117, 572 P.2d at 851. Peterson did not hold that a court may never order maintenance for the time in which the parties lived together and one spouse paid living expenses. Specifically , unlike Peterson , the district court found, wit h record12 support, that husband had not supported wife’s reasonable financial needs while they were living together. ¶ 23 Accordingly, t he court did not err by ordering husband to pay retroactive temporary maintenance for the time when the parties lived together and husband paid some of their pre

- temporary orders
expenses . V. Sufficiency of the District Court’s Findings ¶ 24 Husband also argues that the district court did not make sufficient findings under section 14

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- 114 (3) or (4) to support its award of $12,000 per month for retroactive temporary maintenance. We agree that further findings are needed

. Section 14

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- 114(3) sets forth a specific process for the district court to follow when considering a maintenance request at permanent orders

. In re Marriage of Wright , 2020 COA 11, ¶ 13. The process detailed under this statute also provides the framework by which a court must determine temporary maintenance. § 14

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- 114(4)(a)(I). ¶ 25 Under section 14

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- 114(3), t he court must first make written or oral findings on each part y’s gross income, the marital property apportioned to each party, each part y’ s financial resources, the13 reasonable financial need as established during the marriage, and the taxab ility of the maintenance awarded

. § 14

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- 114(3)(a)(I) ; Wright , ¶ 14

. ¶ 26 Next , the court must determine the amount and term of maintenance, if any, that is fair and equitable to both parties after considering the statutory advisory guideline s and a list of

n on - exclusive statutory factors

. § 14

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- 114(3)(a)(II) (A), (3)(a)(II)(B) , (3)(b), (3)(c) ; Wright , ¶ 15. When , as here, the parties’ combined annual adjusted gross income exceeds $240,000, the advisory guideline amount for maintenance under section 14

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- 114(3)(b) (I) does not apply . § 14

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- 114(3.5). Instead, the court must determine the amount of maintenance based on its consideration of the statutory factors in section 14

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- 114(3)(c)

. § 14

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- 114(3.5). ¶ 27 Section 14

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- 114(3) also requires the cou rt to find that the party seeking maintenance lacks sufficient property, including marital property apportioned to him or her, to provide for his or her reasonable needs and is unable to support himself or herself through appropriate employment before awar ding maintenance. § 14

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- 114(3)(a)(II) ( C) , (3)(d).14 ¶ 28 Given the nature of temporary maintenance and the timing of such a decision , certain findings the court must make or factors the
court must consider under section 14

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- 114(3) for permanent orders may no t be relevant t o its determin ation of temporary maintenance

. See, e.g. , § 14

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- 114(4)(a)(II) (noting that the advisory guideline term for maintenance does not apply to temporary maintenance). But the court must still adhere to the
process set forth in section 14

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- 114(3) and apply the provisions relevant to its temporary main tenance determination. § 14

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- 114(4)(a)(I). T he court must also “ consider any additional factors specific to the determination of temporary maintenance, including the payment of family expenses and debts.” § 14

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- 114(4)(a)(III). ¶ 29 In the end, the court has discretion to enter a fair and equitable maintenance award, but it must “make specific written or oral findings in support of the amount and term of maintenance awarded.” § 14

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- 114(3)(e); see also In re Marriage of Gibbs , 2019 COA 104, ¶ 9 (“ The dis trict court must make sufficiently explicit findings of fact to give the appellate court a clear understanding of the basis of its order. ”).15 ¶ 30 Here , t he district court indicated that it was “mindful” of section 14

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- 114 and noted that under this statute it was

“ directed to consider every relevant factor.” The court then made findings on the parties’ gross incomes ; admonished husband for not provid ing spousal support to wife; considered the parties’ financial
resources, noting that husband possess ed and controlled “a vast majority of the marital assets and marital income”; and discussed the parties ’ “lavish lifestyle” during the marriage. It stated that it “also reference [ d ] all the factors under [14

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- 114](3)(c) ,” list ing the financial resources of the recipient spouse, the pay [o] r spouse, the lifestyle during the marriage [,] . . . [the] limited, if any, distribution of marital property[,] [t] he parties ’ incomes, employability, their age, their health [,] . .

. [t] he undisputable fact that one par ty has historically earned a higher income [,] [a] nd the significant economic and/or noneconomic contribution to the marriage. Then, the court determined that wife was incapable of meeting her reasonable needs and awarded her $12,000 per month

— the amount wife requested

— in retroactive temporary maintenance. ¶ 31 For two reasons, we conclude that additional findings are
necessary. First, the court made insufficient findings on what it determined to be wife’s reasonable financial needs and whether16 $12,000 per month would me e t th o se needs

. See § 14

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- 114(3)(a)(I)(D) , (3)(c)(I), (4)(a)(I) , (4)(a)(III)

. Wife’s financial affidavit represented expenses of almost $10,000 per month, excluding her attorney fees , and reported income of almost $4,000 per month

. S he admitted at the hearing that husband had been
pa ying the mortgage, utilities, and other shared living expenses listed in her affidavit

— a pproximately $4,000 per month . S he also acknowledged that she was not incurring an a dditional $1,200 of the expenses she had listed. Still, w ife s aid that the expenses on her financial affidavit did not meet her needs as established during the marriage and that $12,000 per month was consistent with her reasonable financial needs. But sh e indicated that this figure did not include husband’s payment of the mortgage, utilities, and other living expenses. ¶ 32 Thus, wife’s expenditures during the time for which the court awarded retroactive temporary maintenance w ere less than $12,000 per month. While the court was not limited to an award that only satisfied wife’s basic needs, see Yates , 148 P.3d at 313, it provided no explanation why $12,000 per month was appropriate for wife

. The court ’s findings, instead, focuse d on the parties’ lavish lifestyle17 during the marriage , but even then, the court made no determination that such a lifestyle supported the amount of maintenance awarded or that such an award met wife’s reasonable needs. Cf. Thornhill , 232 P.3d at 789 ( “ [T ]he parties’ standard of living during marriage is . . . an appropriate . . . starting point for the trial court’s determination of a particular spouse’s reasonable needs . . . .”) (emphasis added). We th erefore lack a clear understanding of the basis of th e court’s award of $12,000 per
month in retroactive temporary maintenance and are unable to determine whether th is amount was appropriate to meet wife’s reasonable financial needs. See § 14

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- 114(3)(a) (I) (D), (3)(c)(I), (3)(e) , (4)(a) (I), (4)(a) (III) ; see also Gibbs , ¶ 9

. ¶ 33 Second , the court did not make findings related to husband’s payment of the shared expenses and debts or otherwise recognize the statute’s requirement that it must consider additional factor s specific to the determination of temporary maintenance

. § 14

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- 114(4)(a)(III). We therefore are unable to determine whether the court accounted for husband’s undisputed payment of the mortgage, utilities, and other shared living expenses during the18 time in which the court ordered retroactive te mporary maintenance. See Gibbs , ¶ 9. ¶ 34 For these reasons, w e reverse the district court’s retroactive temporary maintenance order and remand for additional findings. On remand, the court must follow the procedure in sub section s (3) and (4) of section 14

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- 114 , make the required findings

— including regarding wife’s reasonable financial needs

— and consider husband’s payment of family expenses and debts and any other factors it deem s relevant in determining retroactive temporary maintenance

. The findings entered on remand must be sufficient for us to conclude that it considered the relevant factors and to determine the basis for the court’s maintenance award. See Wright , ¶ 2 3 ; see also Gibbs , ¶ 9

. VI. Conclusion ¶ 35 We reverse the district court’s award of retroactive temporary maintenance and remand the case for the court to make additional findings in accordance with section 14

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- 114(3) and (4)

. JUDGE WELLING and JUDGE BROWN concur.