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In re Marriage of Gibbs

Court of Appeals of Colorado, Fourth Division

July 3, 2019

In re the Marriage of Carl Joseph Gibbs, Appellant, and Joellen Elizabeth Gibbs, Appellee.

          Larimer County District Court No. 12DR408 Honorable Devin R. Odell, Judge.

          Thomas & Associates Law Firm LLC, Joseph G. Williams, Greenwood Village, Colorado, for Appellant

          Alison Ruttenberg, Louisville, Colorado; Vigil Law Offices, P.C., Frank G. Vigil, Lakewood, Colorado, for Appellee

          OPINION

          LIPINSKY J.

         ¶ 1 Three years after the district court entered permanent orders in his dissolution of marriage case, husband, Carl Joseph Gibbs, sought to modify or terminate his maintenance obligation to wife, Joellen Elizabeth Gibbs, under section 14-10-122(1)(a), C.R.S. 2018. Husband argued that his alleged loss of income resulting from a shoulder injury he incurred three years following the entry of the permanent orders constituted a substantial and continuing change in his circumstances that warranted a decrease in his maintenance payments.

         ¶ 2 The district court denied husband's motion based on its calculation of husband's monthly income, including imputed rental income from husband's primary residence.

         ¶ 3 We affirm the portion of the decision addressing husband's self-employment income and reverse the portion imputing rental income to him because husband never used the residence as an income-producing asset. We remand to redetermine husband's maintenance obligation without considering imputed rental income.

         I. Background

         ¶ 4 The parties' marriage ended in 2013. In the permanent orders, the district court awarded wife $1, 850 in monthly maintenance until the death of either party, the remarriage or civil union of wife, or further court order.

         ¶ 5 In September 2016, husband moved to modify or terminate his maintenance obligation. He alleged that, as a result of a severe shoulder injury, he was no longer able to perform labor-oriented work. He further alleged that he had been diagnosed with stenosis, which would require surgery and affect his ability to work for the rest of his life.

         ¶ 6 Following a hearing at which husband, wife, and a physician testified, the court found that husband had not shown a substantial and continuing change in his circumstances and, therefore, denied husband's motion.

         II. Husband's Income

         ¶ 7 Husband contends that the district court abused its discretion in determining that his income was $6, 500 per ...


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