COA - In re Marriage of Thorstad. Modification of Spousal Maintenance (alimony)

The Colorado Court of Appeals, In Re the Marriage of Thorstad, deals with post-decree spousal maintenance (i.e. alimony) payments and a request to terminate alimony upon husband’s retirement. Ex-husband moved to modify his spousal maintenance due to retirement.; ex-wife opposed.

The starting point is CRS Section 14-10-122 (1), which says a Colorado Court can modify subsequent spousal maintenance (alimony) orders if there is a showing of substantial and continuing circumstances that make the current order unfair.

This appeal concerned CRS Section 14-10-122 (2) which says, a payor spouse whose income is reduced or at an end due to retirement, upon reaching “full retirement age” gets a rebuttable presumption that retirement was in good faith and not for the purpose of reducing income or support (alimony). Full retirement age is defined in CRS Section 14-10-122 (2) (c). The issue in this case was that when the parties entered into their Separation Agreement, CRS Section 14-10-122 (2) (a), (b), and (c) did not yet exist. Nor did their separation agreement reserve jurisdiction for the court to deal with maintenance upon retirement.

The trial court had granted Ex-Husband’s motion to terminate spousal maintenance (alimony) under CRS Section 14-10-114, and Ex-Wife argued, on appeal, that the trial court should have looked at CRS Section 14-10-122. CRS Section 14-10-114 deals with how the trial court initially decides whether to order spousal maintenance.

The Court of Appeals held that the trial court should not have treated Ex-Husband’s presumptive good faith retirement as conclusive, and that it should have also considered whether his retirement and declining health were continuing and substantial changed circumstances such that they made the prior order for spousal maintenance (alimony) unfair. Per the Court of Appeals, the trial court should have looked at the 2001 version of CRS Section 14-10-114 because the newer version applies to petitions filed on or after January 1, 2014. The trial court had failed to evaluate both parties new circumstances (ability to pay and need for alimony) per the 2001 version of the statute. The case was remanded for findings on whether, for Ex-Husband, there had been a substantial and continuing change to his circumstances such that the present order for spousal maintenance is unfair and also to review Wife’s request for attorney’s fee under CRS Section 14-10-119.