IN RE the MARRIAGE OF Marta Doris CARDONA, Petitioner and Jaime Felipe CASTRO, Respondent.
[Copyrighted Material Omitted]
Certiorari to the Colorado Court of Appeals 5 Court of Appeals,
Case No. 09CA1996
Joseph H. Antolinez,
Melissa E. Miller, Antolinez Miller, LLC, Littleton, CO, for Petitioner.
Karin Johnson Chatfield, Karin Johnson Chatfield, LLC, Denver, CO, for Respondent.
¶ 1 In this dissolution of marriage proceeding, we granted certiorari review to consider whether accrued vacation and sick leave may be considered marital property subject to division under section 14-10-113, C.R.S. (2013), of the Uniform Dissolution of Marriage Act (" UDMA" ). In this case, the trial court entered an order dividing the value of the husband's accrued vacation and sick leave as part of the marital estate. The husband appealed and the court of appeals reversed, holding that a spouse's accrued leave time is not marital property subject to distribution in dissolution proceedings. In re Marriage of Cardona & Castro, __ P.3d __, No. 09CA1996, 2010 WL 5013737 (Colo.App., Dec. 9, 2010).
¶ 2 We now hold that where a spouse has an enforceable right to be paid for accrued vacation or sick leave, as established by an employment agreement or policy, such accrued leave earned during the marriage is marital property for purposes of the UDMA. Where the value of such leave at the time of dissolution can be reasonably ascertained, it must be equitably divided as part of the marital estate. However, in the event that a court cannot reasonably ascertain the value of such leave at the time of dissolution, the court should consider a spouse's right to such leave as an economic circumstance of the parties when equitably dividing the marital estate. In this case, we conclude that the trial court erred in considering the value of the husband's accrued leave as part of the marital estate because no competent evidence was presented to establish that the husband had an enforceable right to payment for such leave. We therefore affirm the court of appeals' judgment on narrower grounds.
¶ 3 Marta Doris Castro (" Wife" ) and Felipe Cardona (" Husband" ) co-petitioned for dissolution of their marriage in May 2007. In its August 2009 Permanent Orders, the trial court divided Husband's accrued, unused vacation and sick leave as marital property.
¶ 4 Wife first raised the issue of Husband's accrued leave in a demonstrative exhibit used during opening statements, titled " Petitioner's Proposed Division of Assets/Debt/Arguments Associated therewith." A note at the bottom of the exhibit indicated that Husband held accrued vacation and sick leave that Wife valued at over $23,000, but that Wife did not seek division of that amount if she was permitted to move with the children to Florida:
Not included in the above numbers is accrued leave and sick time for [Husband] totaling 452 hours @ 51.40 per hour. The total value of this time is $23,232.80. [Wife] is not requesting 50% of this amount if she is permitted to go to Florida
as [Husband] could use this time to do parenting time exchanges and exercise parenting time in Florida.
During opening statements, Wife's counsel asked the court to treat Husband's leave time not as a marital asset, but as an economic circumstance, again noting that Husband might need to use that leave to visit the children:
[W]hat's not taken into account ... [is that] [t]here's an additional amount of 452 hours of [leave] time that [Husband] has accrued that has the substantial value of about $23,000.00. She's saying you know if we go to Florida, he'll need that time[.] I'm not asking for division of that. He'll need that time, he has ample time to visit his kids, 452 hours he can take a lot of breaks, a lot of time to see his kids in the coming years okay.
¶ 5 Husband's accrued leave was reflected in his most recent pay stub attached to his sworn financial statement. The pay stub indicated that he had an available total of 279.76 hours of vacation time and 171.85 hours of sick time, for a total of 451.61 hours of accrued leave. The pay stub did not indicate the cash value of the accrued leave, or whether Husband was entitled to cash payment for any portion of the leave.
¶ 6 At the permanent orders hearing, Wife's attorney called Husband to testify to the amount of his accrued vacation and sick leave, the rate at which it accrued, and the fact that the accrued time rolled over from year to year. During this exchange, Wife's attorney asked Husband, " If your job was terminated today they would pay you that accrued leave? You'd be entitled to that?" Husband responded, " According to the law I think that's the way it works yes." This statement was the only evidence presented regarding Husband's potential entitlement to payment for the accrued leave.
¶ 7 Nearly a year after the hearing, Wife filed her proposed permanent orders. Contrary to the position she took at the hearing, Wife requested, among other things, that the court award her half of Husband's accrued leave, which Wife valued at $23,232.00. In its permanent orders, the trial court allowed Wife to relocate to Florida with the children. The trial court also divided the value of Husband's accrued vacation and sick leave as part of its division of the marital estate and required Husband to pay wife $11,616.00 for her " interest in this pay."
¶ 8 On appeal, Husband argued that accrued leave is not marital property. A divided panel of the court of appeals agreed and reversed. The majority reasoned that Husband's accrued leave was analogous to unvested stock options or an interest in a discretionary trust and " is thus not property subject to distribution on dissolution." Cardona, --- P.3d at __, 2010 WL 5013737, at *4. The court of appeals remanded with directions to the trial court to reconsider the marital property division without considering Husband's accrued vacation and sick time. Id. at __, 2010 WL 5013737 at *5. Judge Dailey dissented, perceiving no error in the trial court's treatment of Husband's accrued leave time as marital property. Id. at ---- - ----, 2010 WL 5013737 at *9-10. We granted certiorari review.
¶ 9 The equitable division of marital property is a matter within the trial court's discretion. In re Marriage of Hunt, 909 P.2d 525, 538 (Colo.1995). However, the determination of whether a purported asset constitutes marital property under the UDMA is a mixed question of fact and law. We defer to the trial court's findings of fact unless they do not find support in the record. In re Marriage of Balanson, 25 P.3d 28, 35 (Colo.2001). We review purely legal issues, such as this matter of first impression, de novo. In re Marriage of Ciesluk, 113 P.3d 135, 141 (Colo.2005).
¶ 10 We are asked to determine whether a spouse's accrued ...