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In re Marriage of Vittetoe

Court of Appeals of Colorado, Third Division

May 5, 2016

In re the Marriage of Rebecca Vittetoe, Appellant and Cross-Appellee, and David Michael Vittetoe, Appellee and Cross-Appellant.

City and County of Denver District Court No. 14DR30052 Honorable Ross B. Buchanan, Judge

Lubchenco, Kendrick, &, Madrid, LLP, Christopher Kendrick, Denver, Colorado, for Appellant and Cross-Appellee

Hulse Law Firm, LLC, Lauren M. Hulse, Littleton, Colorado, for Appellee and Cross-Appellant

OPINION

BOORAS JUDGE

¶ 1 In this dissolution of marriage proceeding, Rebecca Vittetoe (wife) appeals the district court's permanent orders as they pertain to the classification of a home (the South Magnolia Way home). David Michael Vittetoe (husband) cross-appeals the district court's maintenance award to wife. We affirm in part, vacate in part, and remand the property division for further proceedings. We affirm the maintenance award, but we remand for reconsideration in light of any changes in the property division.

¶ 2 The parties married in 1981 and have no children. The primary issues at the permanent orders hearing concerned the division of the marital estate and wife's maintenance request. The court dissolved the parties' marriage by decree on June 10, 2014.

I. Husband's Cross-Appeal

¶ 3 Because husband's cross-appeal presents us with an issue of first impression, we consider it first. Husband's sole contention on cross-appeal is that the district court erred when it awarded wife maintenance in an amount that exceeded the statutory "cap" under section 14-10-114(3)(b)(I), C.R.S. 2015. We discern no abuse of discretion.

A. Applicable Principles of Statutory Interpretation

¶ 4 Statutory interpretation presents a question of law that we review de novo. Spahmer v. Gullette, 113 P.3d 158, 162 (Colo. 2005). When interpreting a statute, we adopt an interpretation that best effectuates the legislative purposes. Smith v. Exec. Custom Homes, Inc., 230 P.3d 1186, 1189 (Colo. 2010). We must read and consider the statute as a whole and interpret it in a manner giving consistent, harmonious, and sensible effect to all its parts. Lujan v. Life Care Ctrs. of Am., 222 P.3d 970, 973 (Colo.App. 2009). We give words and phrases their plain and ordinary meanings, and where the statutory language is unambiguous, we do not resort to other rules of statutory interpretation but rather apply the language as written. Reno v. Marks, 2015 CO 33, ¶ 20. However, if the relevant statutory language is ambiguous, we may consider other indicators of legislative intent. Jefferson Cty. Bd. of Equalization v. Gerganoff, 241 P.3d 932, 935 (Colo. 2010).

B. Analysis

¶ 5 As relevant here, section 14-10-114(3)(b)(I) requires the district court to apply the following formula to determine the guideline amount for maintenance:

The amount of maintenance under the guidelines is equal to forty percent of the higher income party's monthly adjusted gross income less fifty percent of the lower income party's monthly adjusted gross income; except that, when added to the gross income of the recipient, shall not result in the recipient receiving in excess of forty percent of the parties' combined monthly adjusted gross income.

§ 14-10-114(3)(b)(I) (emphasis added).

¶ 6 Husband argues that the words "shall not" establish a "cap" on the amount of maintenance that the district court may award. Specifically, he asserts that the plain language of the formula prohibits a district court from entering a maintenance award which exceeds forty percent of the parties' combined monthly adjusted gross income. We disagree that the plain language is unambiguous.

¶ 7 Although the use of the word "shall" in section 14-10-114(3)(b) indicates that the calculation set out in the guideline formula is mandatory, it does not address whether the use of the guidelines themselves is mandatory. Because the statute could be reasonably construed either way, we may refer to extraneous sources such as legislative history and the General Assembly's own formal expression of its purpose. § 2-4-203(1), C.R.S. 2015; see also Vensor v. People, 151 P.3d 1274, 1277 (Colo. 2007).

¶ 8 The General Assembly repealed and reenacted the maintenance statute, section 14-10-114 - effective January 1, 2014 - determining that courts and litigants would benefit from "a more detailed statutory framework that includes advisory guidelines to be considered as a starting point for the determination of fair and equitable maintenance awards." § 14-10-114(1)(b)(II); see Ch. 176, sec. 1, ยง 14-10-114, 2013 Colo. Sess. Laws 639-52. As reenacted, the ...


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