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In re Marriage of DePumpo.

2022 COA 112. No. 21CA0183. Dissolution of Marriage—Spousal Maintenance—Child Support—Imputed Income—Rental Property Income—Ordinary and Necessary Expenses.

September 29, 2022

During the parties’ marriage, husband (DePumpo) produced income through his several businesses. Wife (Schaefer) stayed home to care for the parties’ children, but she sometimes helped DePumpo with his businesses. The parties used income from DePumpo’s businesses to acquire substantial investment accounts, including a TD Ameritrade account, and to purchase several real properties, many of which were used as rentals. In permanent orders, the district court awarded DePumpo $6,703,173.22 of the marital estate, with DePumpo receiving all the real properties, including the rentals. Schaefer was awarded the remaining $2,782,365.80, which included the TD Ameritrade investment account. To equalize this uneven division, the court ordered DePumpo to pay Schaefer $1,960,403.71. For maintenance and child support, the court calculated DePumpo’s monthly income at $57,662 and Schaefer’s at $19,666. The court awarded Schaefer $5,000 per month in monthly maintenance for the duration of her graduate school program (48 months) and ordered her to pay DePumpo $132 per month for child support.

On appeal, Schaefer argued that the district court erroneously included the unrealized capital gains on the TD Ameritrade account as part of her income. Unrealized capital gains in an investment account are not income for maintenance and child support purposes. Here, there was no evidence that the parties received income from the TD Ameritrade account during the marriage; the evidence showed only that this account had grown and had significant income-earning potential. Accordingly, the court erred by including the $16,666 in returns on the TD Ameritrade account in Schaefer’s income calculation.

Schaefer also contended that the district court erred by reducing DePumpo’s rental income by including depreciation expenses. The court erred by failing to make specific findings on why it considered all depreciation on the rentals to be an ordinary and necessary expense.

The judgment was reversed and the case was remanded for recalculation of both parties’ incomes, new maintenance and child support orders, and consideration of Schaefer’s appellate attorney fees request.

Official Colorado Court of Appeals proceedings can be found at the Colorado Court of Appeals website.

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