text:
    In re the MARRIAGE OF Michele N. HANSEN, Appellant, and Peter E. Hansen, Appellee.
    No. 01CA2359.
    Colorado Court of Appeals, Div. IV.
    Nov. 21, 2002.
    Donald W. Belveal, Canon City, Colorado, for Appellant.
    Law Office of J.E. Losavio, J.E. Losavio, Karen L. Sims, William J. Culver, John K. Priddy, Pueblo, Colorado, for Appellee.
   Opinion by

Judge DAVIDSON.

Michele N. Hansen (wife) appeals from the permanent orders entered in conjunction with the dissolution of her twenty-three-year marriage to Peter E. Hansen (husband). We reverse and remand.

During the marriage, husband, who was an employee of the Department of Corrections, was placed on full disability provided by the Public Employees’ Retirement Association (PERA). He was forty-five years old and had twelve years of service. He elected the “cobeneficiary plan” option, which entitled wife, as the named beneficiary, to receive full lifetime benefits after his death. Husband also receives Veterans Administration disability benefits, which are not at issue in this appeal.

The parties agreed after mediation to an equal division of the PERA benefits, but left the classification of such benefits as spousal maintenance or property division to the trial court.

After a hearing, the trial court determined that husband’s PERA disability benefit compensated him for loss of future income and was not a marital asset subject to distribution between the parties. The court also found that wife met the threshold of need and was entitled to an award of permanent spousal support. Thus, the court classified wife’s share of the PERA disability benefit as maintenance that would not be terminated by wife’s remarriage. However, the court found that husband could seek modification of such maintenance upon wife’s remarriage, depending on the circumstances.

The court was initially inclined to rule that wife should continue to receive half of the PERA benefit after husband’s death and that the balance should pass to his estate. However, after the parties informed the court that husband could not designate multiple beneficiaries, the court concluded that husband was entitled to change the PERA beneficiary. The court ruled, however, that wife was to continue to receive the same amount of spousal maintenance, even if a change of beneficiary reduces husband’s benefit.

i.

Wife first contends that the trial court erred in determining that the PERA disability benefit did not constitute a marital asset. We agree in part.

Generally, a spouse’s post-dissolution earnings are not marital property, and benefits compensating for loss of those earnings are not subject to division. In re Marriage of Peterson, 870 P.2d 630 (Colo.App.1994)(police disability pension does not constitute marital property based, in part, on analogy to social security, workers’ compensation, and Veterans Administration benefits and, in part, on statute creating such benefits and prohibiting their alienation); In re Marriage of Smith, 817 P.2d 641 (Colo.App.1991)(workers’ compensation award is marital property only to the extent it compensates for lost marital wages or for medical care and other related expenses incurred during the marriage); see also In re Marriage of Breckenridge, 973 P.2d 1290 (Colo.App.1999)(workers’ compensation award is not marital property to the extent it compensates for post-dissolution loss of earning capacity, even if the compensable injury occurred during the marriage).

In contrast, the proceeds from a private disability insurance policy acquired with marital funds during the marriage are subject to division because they are not excluded from the statutory definition of marital property. In re Marriage of Simon, 856 P.2d 47 (Colo.App.1993).

Wife argues that because husband contributed to his PERA pension during the marriage, the disability benefit he received prior to normal retirement age is analogous to the benefit received from a private disability annuity purchased during the marriage with marital funds.

The issue whether pension benefits are marital property is well settled. See In re Marriage of Kelm, 912 P.2d 545 (Colo. 1996); In re Marriage of Grubb, 745 P.2d 661 (Colo.1987).

PERA is a defined benefit plan, accumulated in part through employee contributions. In re Marriage of Nordahl, 834 P.2d 838 (Colo.App.1992). Under § 24-51-701, C.R.S. 2002, any PERA member with five or more years of earned service credit who becomes permanently unable to perform his or her job and who is not already eligible for a normal service retirement is entitled to apply for disability retirement benefits upon terminating employment. Section 24-51-704, C.R.S. 2002.

However, the amount of the PERA disability benefit is not tied to husband’s actual contributions, but is based upon a statutory formula established for all eligible workers. By statute, the disability retirement benefit awarded is equal to the benefit that would have been payable upon reaching sixty-five years of age. The calculation to determine such benefit includes not only earned and purchased service credit accumulated up to the date of disability, but also projected service credit up to sixty-five years of age, not to exceed a total of twenty years of service credit, except in situations not applicable here. Section 24-51-704.

Because an employee receiving a PERA disability benefit must be permanently unable to perform his or her job and not eligible for a normal service retirement, we see no reason to depart from the rule established by Peterson. Therefore, the PERA disability benefit prior to age sixty-five replaces future earnings, and we agree with the trial court that such benefit does not constitute marital property. See also In re Marriage of Breckenridge, swpra.

However, after age sixty-five, the PERA disability benefit is paid for the rest of the disabled employee’s life, regardless of recovery or work status, subject only to the normal postretirement employment limitations applicable to all service retirees. Nevertheless, the portion representing the unearned service credit attributed to the employee remains based upon the disability. State Penitentiary v. Toothaker, 832 P.2d 1009 (Colo.App.1991); see also In re Marriage of Peterson, supra (to the extent disability benefits compensate for lost future earnings they are not treated as marital property).

We further conclude, therefore, that regardless of the worker’s recovery or work status, once the disabled employee reaches age sixty-five and benefits are paid, those benefits, except for the portion of unearned service credit projected to age sixty-five, are more akin to retirement benefits. Thus, when the disabled employee reaches age sixty-five, the portion of PERA benefits that is attributable to the years of service prior to disability constitutes marital property, and the balance remains separate property. See State Penitentiary v. Toothaker, supra.

Here, once disabled, husband received the maximum benefit of fifty percent of his salary, even though his twelve years of service at that time would have entitled him to only thirty percent of his highest average salary at age sixty-five. After age sixty-five, forty percent (eight of twenty years) of the retirement benefit remains attributable to his disability and continues to represent his separate property, and sixty percent (twelve of twenty years) is based upon his actual service and, therefore, constitutes marital property at age sixty-five. See State Penitentiary v. Toothaker, supra.

However, we reject wife’s additional argument that the disability benefit constitutes marital property once husband reaches his normal retirement age, which she construes to be approximately age fifty-eight, when his age plus his actual and projected years of service total eighty.

Wife’s argument is based upon § 24-51-602(l)(c), C.R.S.2002, which is part of the service retirement eligibility statute. It provides that PERA members who are fifty-five years of age or older are entitled to receive service retirement benefits if they have at least five years of service and if their age plus service credit equals eighty years or more. However, because husband did not seek retirement benefits based upon his actual service, but was placed on disability status, we do not view that section as dispositive.

Accordingly, this matter is remanded to the trial court to recharacterize as marital property sixty percent of husband’s PERA benefit payable after age sixty-five.

II.

In the permanent orders, both the property division and maintenance award were determined based on the assumption that' husband’s PERA benefit was his separate property. However, we have determined in Part I that, as to sixty percent of that benefit, this characterization was erroneous. In light of that determination, on remand, the trial court must reconsider the entire property division as well as the maintenance award. See In re Marriage of Antuna, 8 P.3d 589 (Colo.App.2000)(issues of property division and maintenance are inextricably intertwined).

Furthermore, because a portion of the PERA benefit is marital property, the court also must reconsider its determination whether wife is entitled to a share of the PERA death benefit. See In re Marriage of Payne, 897 P.2d 888 (Colo.App.1995). In determining this question, the court may consider additional evidence and argument concerning the characterization of the death benefit, as well as husband’s ability to designate a new beneficiary. See In re Marriage of Lee, 781 P.2d 102 (Colo.App.1989).

The judgment is reversed, and the case is remanded for further proceedings in accordance with this opinion.

Judge VOGT and Judge DAILEY concur.


source: Caselaw Access Project

author: Judge WEBB.

license: Public Domain

text:
    Joseph W. WEISIGER, a/k/a Joseph Weisiger, Jr., a/k/a Joseph W. Weisiger, Jr., and Emily Weisiger, Plaintiffs-Appellees, v. Daniel F. HARBOUR and K. Grant Harbour, Defendants-Appellants.
    No. 01CA2230.
    Colorado Court of Appeals, Div. V.
    Nov. 21, 2002.

      Ed Hartshorn, Fairplay, Colorado, for Plaintiffs-Appellees.
    Dan S. Hughes, P.C., Dan S. Hughes, Colorado Springs, Colorado, for Defendants-Appellants.
   Opinion by

Judge WEBB.

In this dispute between neighboring landowners, defendants, Daniel F. Harbour and K. Grant Harbour, appeal the judgment and decree granting plaintiffs, Joseph W. Weisiger and Emily Weisiger, a prescriptive easement for access to their property over defendants’ property. We affirm.

Since 1970, plaintiffs have owned in whole or in part several mining claims that are entirely surrounded by national forest land, except for one point of contact with the fifty-five-acre tract to the east, which defendants have owned since 1983. In 1998, plaintiffs commenced this action, alleging that they had been crossing defendants’ property on a historic mining road since 1970 and thus were entitled to a prescriptive easement or easement by necessity for access to their property over defendants’ property, as well as an injunction preventing defendants from interfering with their access.

After a bench trial in 2001, the court concluded plaintiffs had established open, continuous, and hostile use for more than the eighteen-year prescriptive period. The court entered a decree granting plaintiffs a prescriptive easement across defendants’ property, but did not address plaintiffs’ claims for an easement by necessity or for injunctive relief.

On appeal, defendants argue the trial court erred because plaintiffs changed their route across defendants’ property during the prescriptive period, plaintiffs’ allegedly hostile use was interrupted by a period of use to which defendants consented, and plaintiffs’ use was neither open and notorious nor hostile to defendants’ use. We reject each contention in turn.

An easement by prescription is acquired when the use is open or notorious, continuous without effective interruption for the prescriptive period, and either adverse or pursuant to an attempted but ineffective grant. Lobato v. Taylor, — P.3d —, 2002 WL 1360432 (Colo. No. 00SC527, June 24, 2002). The prescriptive period is eighteen years. Section 38-41-101, C.R.S.2002.

On review, we will not disturb a trial court’s determination concerning the existence of a prescriptive easement when the court bases its factual findings on competent evidence in the record. Durbin v. Bonanza Corp., 716 P.2d 1124 (Colo.App.1986). We draw all reasonable inferences from the evidence in favor of the prevailing party, Frontier Exploration, Inc. v. American National Fire Insurance Co., 849 P.2d 887 (Colo.App.1992), and defer to the fact finder’s decision on the credibility of witnesses; sufficiency, probative effect, and weight of the evidence; and inferences and conclusions drawn from conflicting evidence. Cottonwood Hill, Inc. v. Ansay, 709 P.2d 62 (Colo.App.1985).

I.

Defendants first contend the trial court erred when it found plaintiffs used the claimed prescriptive easement for over eighteen years, because plaintiffs substantially changed their route across defendants’ property after the thirteenth year. We disagree.

To acquire a prescriptive easement, a party must confine his or her use to a single, definite, and certain path. However, minor deviations do not defeat the claimed easement. Whether the route remained substantially the same is a factual determination for the trial court. Sprague v. Stead, 56 Colo. 538, 139 P. 544 (1914); Brown v. Potter, 534 P.2d 641 (Colo.App.1975)(not published pursuant to C.A.R. 35(f)).

Here, the trial court found, with record support, that from 1970 until 1983 plaintiffs reached their property approximately ten to twelve times per year using the mining road across defendants’ property. In 1983, however, plaintiffs partly changed their route because a new subdivision, bordering defendants’ property on the east, blocked plaintiffs’ direct access to the mining road where it crossed the eastern boundary of defendants’ property.

The trial court further found plaintiffs thereafter continued to reach their property with the same annual frequency by entering defendants’ property via Aspen Lane, a street within the subdivision north of the mining road, from that point creating a new route southwesterly across defendants’ property until they reached the mining road, and then traveling the mining road to their property as they had done since 1970. The trial court did not make a finding concerning the magnitude of the change in plaintiffs’ route, although the map attached to the decree shows both routes.

Defendants argue the trial court should have found this change substantial, thus breaking the statutory period. However, defendants do not dispute the finding that development of the subdivision, rather than a circumstance over which plaintiffs had any control, required them to change their point of entrance to defendants’ property. Hence, for reasons discussed below, we need not address the absence of a finding on the magnitude of that change.

The parties cite no Colorado case dealing with a change in route similarly caused by circumstances beyond the control of the claimant to a prescriptive easement. However, courts in other jurisdictions have applied the requirement of a single path flexibly in similar circumstances. See, e.g., Silverstein v. Byers, 114 N.M. 745, 845 P.2d 839, 843 (Ct.App.1992)(emphasizing “the extent of the deviation and the reason for it” and noting a washout of the road caused the deviation); State ex rel. Game, Forestation & Parks Commission v. Hull, 168 Neb. 805, 97 N.W.2d 535 (1959)(deviations in the route during the prescriptive period to avoid encroachments or obstructions will not defeat a prescriptive easement). See generally 2 G. Thompson, The Modem Law of Real Property § 347 (1980); W.J. Bunn, Annotation, Acquisition of Right of Way by Prescription as Affected by Change of Location or Deviation During Prescriptive Period, 80 A.L.R.2d 1095 (1961).

Moreover, Colorado law requires a party to use a certain and definite route across the burdened estate because the trial court must be able to describe the easement with particularity in its decree. See Wright v. Horse Creek Ranches, 697 P.2d 384 (Colo.1985). Here, both the record and the map incorporated in the decree show plaintiffs’ use was sufficiently definite to specify the route.

Accordingly, we conclude the record supports the trial court’s determination that plaintiffs adequately proved their use of a definite path across defendants’ property for more than eighteen years.

Because we agree with the trial court that plaintiffs’ prescriptive period began in 1970, and we conclude that the changed route did not interrupt this period, we decline to address plaintiffs’ alternative argument that they established adverse use for eighteen years from 1983 to 2001. See Smeal v. Oldenettel, 814 P.2d 904 (Colo.1991)(appellate courts should avoid addressing issues that are unnecessary to the disposition of the appeal).

II.

Defendants next argue the trial court erred in according plaintiffs’ use a presumption of adversity for the eighteen-year period, because defendants gave plaintiffs permission to cross their property for approximately two years beginning in 1989. We do not agree.

Using an easement for more than eighteen years entitles the holder to the presumption that use was adverse. Trueblood v. Pierce, 116 Colo. 221, 179 P.2d 671 (1947). However, this presumption can be rebutted by showing the use was permissive. Bart’s Body Shop, Inc. v. Hageman, 536 P.2d 1150 (Colo.App.1975)(not published pursuant to C.A.R. 35©).

Here, defendants contend plaintiffs’ use was permissive between 1989 and 1991 because, as the trial court found, during this time the gate separating defendants’ property from Aspen Lane had two locks, one for each party, and, plaintiffs entered defendants’ property without removing the gate from its hinges or cutting the chain on the gate, as they had done since 1983.

Faced with conflicting evidence as to the reasons for this arrangement, the trial court concluded that defendants’ evidence was insufficient to overcome the presumption of adverse use. Record support for this conclusion includes testimony of one defendant that he did not know why the gate had two locks, whether plaintiffs had permission to cross defendants’ land to reach their property, or whether he would have allowed plaintiffs to place the lock on the gate had they asked for permission. He also testified that he would have consulted an attorney before consenting to a two-lock arrangement, to be sure he understood the legal significance of his actions. We may not disturb the trial court’s resolution of this conflicting evidence. See Cottonwood Hill, Inc. v. Ansay, supra.

Moreover, the record also supports the trial court’s determination that plaintiffs began crossing defendants’ property in 1970 and that they continued to do so after 1983, despite the fence then built by defendants on the eastern boundary of their land and the gate locked by defendants at Aspen Lane. Thus, regardless of the alleged permissive use from 1989 to 1991, by 1988 plaintiffs had established eighteen years of adverse use.

III.

Defendants finally argue that even if plaintiffs’ period of prescriptive use was not interrupted by either the changed route or an interval of permissive use, the trial court nevertheless erred because plaintiffs’ use was hidden, not open and notorious. Defendants maintain they had no actual knowledge that plaintiffs were crossing their property, and plaintiffs did not exclude defendants from also using the mining road. Again, we disagree.

To satisfy the open and notorious element, the use must be sufficiently obvious to apprise the owner of the servient estate, in the exercise of reasonable diligence, that another is making use of the burdened land so that the owner may object. However, actual knowledge by the owner need not be proved. See Lively v. Wick, 122 Colo. 156, 221 P.2d 374 (1950); Allen v. First National Bank, 120 Colo. 275, 208 P.2d 935 (1949).

Unlike a party claiming title to land by adverse possession, a party claiming a prescriptive easement need not be in continuous physical possession of the easement because a prescriptive easement is only a right to use the route whenever the holder desires passage. Rivera v. Queree, 145 Colo. 146, 358 P.2d 40 (1960)(the party claiming the easement by prescription need not live on the land or use it every day). Thus, requiring exclusive possession by the easement holder would be inconsistent with the nature of an easement. Alexander v. McClellan, 56 P.3d 102 (Colo.App.2002).

Here, defendants argue plaintiffs’ use was not open and notorious because plaintiffs did not tell defendants they were crossing defendants’ land, and defendants did not know plaintiffs were cutting the chain on the gate, removing the gate from its hinges, and creating the two-track road across defendants’ property from Aspen Lane to intersect with the mining road.

However, evidence showed defendants were aware that in 1983 their father had discussed the access issue with plaintiffs. In 1985, plaintiffs sent defendants a written access proposal that defendants rejected. Hence, we conclude the record supports the trial court’s determination that defendants knew plaintiffs were entering their property and using the mining road.

Defendants also argue plaintiffs’ use was not open and notorious because plaintiffs used the route only ten to twelve times per year and did not prohibit defendants from using the route. However, the record also supports the trial court’s determination that plaintiffs crossed defendants’ property whenever they wanted to reach their property.

Intermittent use on a long-term basis satisfies the requirement for open, notorious, and continuous use. Compare Martini v. Smith, 18 P.3d 776 (Colo.App.2000)(using the claimed easement once between 1985 and 1994 is not continuous), aff'd, 42 P.3d 629 (Colo.2002), with Rivera v. Queree, supra (using an alley way for trash collection and ingress and egress as needed was continuous). And the holder of a prescriptive easement need not exclude the owner of the servient estate. Alexander v. McClellan, supra.

The judgment is affirmed.

Judge ROTHENBERG and Judge TAUBMAN concur.


author: Judge NIETO.

text:
    Thomas Chris WHITE, Plaintiff-Appellant, v. PROGRESSIVE MOUNTAIN INSURANCE COMPANY, Defendant-Appellee.
    No. 01CA2058.
    Colorado Court of Appeals, Div. III.
    Nov. 21, 2002.
    The Hannon Law Firm, LLC, Kevin S. Hannon, Andrew B. Reid, Denver, Colorado, for Plaintiff-Appellant.
    Seaman and Giometti, P.C., Gregory R. Giometti, Karl A. Chambers, Denver, Colorado, for Defendant-Appellee.
   Opinion by

Judge NIETO.

Plaintiff, Thomas Chris White, appeals the judgment entered in favor of defendant, Progressive Mountain Insurance Company. We affirm.

On March 5, 1994, plaintiff was injured in an automobile accident. Plaintiff was insured by an automobile insurance policy issued by defendant that included coverage required by the version of Colorado Auto Accident Reparations Act, § 10-4-701, et seq., C.R.S.2002, in effect at that time. In January 1999, plaintiffs doctors determined that, as a re-suit of his injuries, plaintiff would require vocational rehabilitation. Plaintiff underwent a vocational rehabilitation assessment and received a plan to begin rehabilitation services in June 1999. On March 4, 1999, plaintiff contacted defendant and demanded payment for the rehabilitation services. Defendant advised plaintiff that benefits for such services were beyond the five-year limitation period in the policy and denied plaintiffs claim.

Plaintiff filed a complaint against defendant for breach of contract and bad faith breach of contract. Defendant moved for summary judgment, and the trial court granted defendant’s motion after a hearing and entered judgment in favor of defendant. This appeal followed.

I.

Plaintiff contends that the provision in his policy limiting rehabilitation benefits to a period of five years after an accident is inconsistent with the version of § 10-4-706(l)(c) in effect at the time. Plaintiff argues that the trial court misapplied the statute and erred as a matter of law in granting defendant’s motion for summary judgment. We disagree.

Summary judgment is proper only when the pleadings, affidavits, depositions, or admissions show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Appellate review of a summary judgment is de novo. C.R.C.P. 56; De La Rosa v. Western Funding, Inc., 24 P.3d 637 (Colo.App.2001).

In determining the meaning of statutory provisions, our objective is to give full effect to the intent of the General Assembly. In doing so, we must first consider the statutory language. If the legislative intent is immediately apparent from the commonly understood and accepted meaning of the statutory language, we need look no further and must give effect to the statute as written. However, if the statutory language is ambiguous, we must consider principles of statutory construction to ascertain the legislative intent. In such a ease, we may consider the textual context, the statute’s legislative history, the state of the law prior to the legislative enactment, the problem addressed by the legislation, and the relationship between the particular legislation and other relevant legislative provisions. Colby v. Progressive Casualty Ins. Co., 928 P.2d 1298 (Colo.1996)(Colby II).

The version of § 10-4-706(l)(c)(I)(A) in effect at the time of the accident required an insurer to provide certain minimum coverage in automobile insurance policies for payment of the cost of rehabilitation services incurred as a result of injury arising out of the use or operation of a motor vehicle. Colo. Sess. Laws 1973, ch. 94, § 13-25-6(1) & (4)(a)(I) at 335-36 (now codified with amendments as § 10 — 4—706(l)(c)(I), C.R.S.2002). The version of § 10 — 4—706(l)(c)(II) (the rehabilitation section) then in effect provided:

An insurer obligated to provide direct benefits under this section shall be presumed to have complied with the provision for rehabilitation when the value of rehabilitation services or treatment provided under paragraph (c) of subsection (1) of this section shall have reached fifty thousand dollars within five years after an accident involving a motor vehicle.

Colo. Sess. Laws 1984, ch. 303 at 1071.

Plaintiff contends that the plain language of the rehabilitation section establishes a re-buttable presumption that an insurer has met its obligation if it has paid $50,000 within five years of the accident. He argues that the rehabilitation section does not limit payment for rehabilitation benefits to a period of five years after the accident, but rather that the insured is entitled to rehabilitation benefits for services beyond the five-year period if the insured can demonstrate that less than $50,000 in benefits have been paid and that further rehabilitation services are needed. We are not persuaded.

As discussed in Colby II, the rehabilitation section is ambiguous because the legislative intent is not clear from the language used. In Colby II, the insureds argued that the rehabilitation section created a rebuttable presumption of compliance with the minimum coverage requirements and that the insurer may be required to provide coverage for rehabilitation services until they are no longer necessary. The supreme court rejected this argument and held that the rehabilitation section did not create a rebuttable presumption. Rather, it concluded that “the word ‘presume’ establishes a monetary cap” of $50,000 in rehabilitation benefits coverage. In so holding, the court noted that one meaning of “presume” is “to accept as true or credible without proof or before inquiry.” Colby II, supra, 928 P.2d at 1303.

A footnote in Colby II makes clear that, because there the insurers had paid $50,000 within five years of the accident, the court was not interpreting the phrase “within five years” as used in the rehabilitation section. Colby II, supra, 928 P.2d at 1300 n. 2. However, in interpreting that phrase, we must be guided by the supreme court’s interpretation of other language in that section of the statute. We must apply the term “presumed” as the supreme court has interpreted it. Thus, given that “presumed,” as used in this section, establishes a monetary cap, the statute must also provide a five-year time limit for coverage, and we so hold.

Our conclusion is supported by the legislative history of the rehabilitation section discussed in Colby II. There, the court noted that the legislator sponsoring the bill containing the rehabilitation section stated that rehabilitation expenses were limited to $25,000 within five years. Colby II, supra, 928 P.2d at 1304. The court also referred to Colorado Legislative Council material concerning this auto insurance legislation that stated “[r]eha-bilitation benefits would be provided up to $25,000 within a five year time period.” Colby II, supra, 928 P.2d at 1304. At the time of the accident here, the dollar amount had been amended to $50,000, but the rehabilitation section was otherwise substantially unchanged.

We also find support for our conclusion in the legislative declaration accompanying the 1994 amendment to the rehabilitation section, which states: “The Colorado general assembly hereby finds and declares that the original intention ... in enacting [the rehabilitation section] was to li required rehabilitation benefits in both time and amount.” Colo. Sess. Laws 1994, ch. 187, § 1 at 1066. This declaration responded to an unidentified “recent court opinion” holding that an insurer could not limit payment under the rehabilitation section to the five-year period following the accident. While this subsequent declaration of legislative intent is not controlling here, it is instructive and entitled to significant weight. See Colby II, supra; People v. Holland, 708 P.2d 119 (Colo.1985); cf. Academy of Charter Schools v. Adams County School District No. 12, 32 P.3d 456 (Colo.2001)(where General Assembly intends that an amendment clarifies rather than changes a statute, the amendment may have retroactive affect).

Finally, our conclusion is supported by other Colorado cases that have indicated in dicta that the rehabilitation section limits benefits as to both amount and time. See Sulzer v. Mid-Century Ins. Co., 794 P.2d 1006 (Colo.1990)(rehabilitation benefits under the rehabilitation section are available for a period of five years and are limited to a total of $50,000); Krieg v. Prudential Property & Casualty Ins. Co., 686 P.2d 1331 (Colo.1984)(the rehabilitation section provides for minimum personal injury protection benefits for rehabilitative care and treatment up to a fixed dollar amount rendered within five years after the accident); Cingoranelli v. St. Paul Fire & Marine Ins. Co., 658 P.2d 863 (Colo.1983)(the rehabilitation section provides for rehabilitation benefits up to a fixed dollar amount over a period of five years after the accident).

Plaintiff argues that in Colby v. Progressive Casualty Ins. Co., 908 P.2d 1170 (Colo.App.1995)(Colby I), ajfd, Colby II, supra, a division of this court previously determined that the rehabilitation Section created a rebuttable presumption with respect to time. However, in Colby II the supreme court, while affirming Colby I’s holding that the rehabilitation section established a monetary cap, declined to consider the meaning of the phrase “within five years.” Moreover, as discussed above, we cannot read the word “presumed” in the rehabilitation section to create a monetary cap in one part of the sentence and to create only a rebuttable presumption as to time in another part of the same sentence. Thus, to the extent Colby I’s holding as to the time provision survived the ruling in Colby II, we decline to follow it.

Plaintiffs argument for a rebuttable presumption would be more persuasive if we were writing on a blank slate. However, the interpretation in Colby II and the recent clarifying legislative declaration must inform our interpretation of the statutory language here. Accordingly, we conclude that the rehabilitation section limits rehabilitation benefits to services rendered within five years following the accident, and therefore, the trial court did not err in granting defendant’s motion for summary judgment.

II.

Plaintiff contends that even if the rehabilitation section set forth a time limit for rehabilitation benefits, because his need for such benefits was not discoverable until 1999, the time period in which he must make a claim for such benefits was tolled under the doctrine of discovery. However, plaintiff did not make this argument in his response to defendant’s motion for summary judgment or at the hearing on the motion. Accordingly, because plaintiff raises this argument for the first time on appeal, we decline to address it. See Pomerantz v. Microsoft Corp., 50 P.3d 929 (Colo.App.2002).

The judgment is affirmed.

Judge NEY and Judge KAPELKE concur.


author: Judge VOGT.

text:
    HOFF & LEIGH, INC., Plaintiff-Appellee, v. Rudy BYLER, Defendant-Appellant.
    No. 01CA2005.
    Colorado Court of Appeals, Div. IV.
    Nov. 21, 2002.

      Beatty & Ross, LLP, L. Douglas Beatty, Colorado Springs, Colorado, for Plaintiff-Ap-pellee.
    Mulliken, Gleason, Weiner, Whitney & Jo-livet, P.C., Murray I. Weiner, Carla L. Baker, Colorado Springs, Colorado, for Defendant-Appellant.
   Opinion by

Judge VOGT.

In this action by a real estate broker to recover its commission, defendant, Rudy Byler, appeals the judgment entered in favor of plaintiff, Hoff & Leigh, Inc. We affirm.

Defendant agreed to pay plaintiff, a real estate brokerage firm, a commission if plaintiff “procured a purchaser for [defendant’s] property ... which results in the sale of the property.” The parties later agreed that plaintiff would act as a transaction-broker in connection with the sale.

Plaintiff procured a buyer for the property. After some delays, the sale closed. When defendant did not pay plaintiff its commission, plaintiff sued. At the conclusion of a bench trial, the court found that plaintiff had satisfied the only two requirements for receiving its commission, namely, procurement of a purchaser and resulting sale of the property. The court rejected defendant’s argument that alleged insufficiencies in plaintiffs performance warranted forfeiture of the commission and entered judgment for the amount claimed.

I.

Defendant contends that, because plaintiff did not perform the duties imposed by statute on transaction-brokers, the trial court erred in not requiring it to forfeit its commission. We disagree.

In 1993, the General Assembly enacted “An Act Concerning Brokerage Relationships in Real Estate Transactions,” codified at § 12-61-801, et seq., C.R.S.2002. The Act clarified the relationships between real estate professionals and the public. In a significant departure from the traditional common law view of agency relationships in real estate transactions, the Act recognized a non-agent real estate professional, the transaction-broker. See Sussman v. Stoner, 143 F.Supp.2d 1232 (D.Colo.2001); G. Lane Earnest & J. Marcus Painter, The New Brokerage Legislation: The Demise of “Agency by Surprise, ” 22 Colo. Law.1919 (Sept.1993).

A transaction-broker is “a broker who assists one or more parties throughout a contemplated real estate transaction with communication, interposition, advisement, negotiation, contract terms, and the closing of [the] transaction without being an agent or advocate for the interests of any party to such transaction.” Section 12-61-802(6), C.R.S.2002; see also § 12-61-807(1), C.R.S. 2002 (“A broker engaged as a transaction-broker is not an agent for either party.”). Although a broker may still act as an agent for a buyer or a seller, it is presumed that a broker is acting as a non-agent transaction-broker absent a written agency agreement or a subagency relationship. Section 12-61-803(2), C.R.S.2002.

While a real estate broker acting as an agent owes fiduciary duties to his or her principal, see Moore & Co. v. T-A-L-L, Inc., 792 P.2d 794 (Colo.1990), a transaction-broker is not in a fiduciary relationship with either party to a real estate transaction. See § 12-61-802(6); Sussman v. Stoner, supra.

However, a transaction-broker has certain statutory obligations and responsibilities. He or she must “perform the terms of any written or oral agreement made with any party to the transaction” and must “exercise reasonable skill and care as a transaction-broker” in performing certain enumerated duties. Section 12-61-807(2), C.R.S.2002. These duties include: presenting offers and counteroffers in a timely manner; advising the parties and keeping them informed; accounting for money and property received; assisting the parties in complying with contractual terms and conditions; and disclosing certain information. Section 12 — 61—807(2)(b), C.R.S.2002. The transaction-broker is prohibited from disclosing certain other information, such as the price a party will pay or accept, without the consent of all parties, and is not under any duty to conduct independent inspections of the property or of the buyer’s financial condition. See § 12-61-807(3)-(5), C.R.S.2002.

Although the statute enumerates the obligations and responsibilities of a transaction-broker, it does not prescribe any remedy for nonperformance of these obligations.

Defendant asserted at trial, as he does on appeal, that plaintiffs broker-associate did not satisfactorily perform certain of his statutory duties, such as assisting the parties in complying with the terms of their purchase contract and facilitating the closing. Instead, according to defendant, the broker “did nothing beyond procuring a buyer and waiting for his commission to be paid.” While the trial court did not expressly find that the broker had failed to perform his statutory obligations, it noted that, by his own admission, he had simply transmitted communications back and forth and had not displayed any initiative in resolving difficulties that arose before the transaction was completed.

Contrary to defendant’s contention, even if we interpret the trial court’s ruling as a determination that plaintiffs broker-associate failed to perform certain statutory duties, forfeiture of the commission was not a remedy for such nonperformance.

Defendant relies on Moore & Co. v. T-AL-L, Inc., supra, in support of his contention. His reliance is misplaced. In Moore, the supreme court held that a real estate broker who breached his fiduciary duty to the seller by withholding material information and disclosing confidential information to another purchaser was not entitled to retain the commission paid to him. In so holding, the court relied on the agency law principle that “an agent is entitled to no compensation for conduct ... which is a breach of his duty of loyalty.” Moore, supra, 792 P.2d at 800 (quoting Restatement (Second) of Agency § 469).

The principle requiring forfeiture of the commission in Moore has no applicability here. As noted, a transaction-broker is not an agent of either party to the real estate transaction and thus does not owe fiduciary duties to either party. Further, there is no language in the statute suggesting that a transaction-broker who performs the terms of its agreement may nevertheless be required to forfeit its commission.

II.

Defendant next contends that the trial court erred in failing to offset against the judgment the damages he sustained as a result of plaintiffs asserted nonperformance of its statutory duties. Again, we disagree.

Damages need not be proved with mathematical certainty. However, a party seeking damages must prove the fact of damage and provide evidence sufficient to allow a reasonable estimate of the loss sustained. See Margenau v. Bowlin, 12 P.3d 1214 (Colo.App.2000)(tort damages); Interbank Investments, L.L.C. v. Vail Valley Consolidated Water District, 12 P.3d 1224 (Colo.App.2000)(contraet damages).

In its bench ruling, the trial court observed that defendant would have had a remedy for any out-of-pocket expenses he incurred as a result of plaintiffs inaction, but found that defendant asserted no such claim and that “nothing was submitted to the Court about actual out-of-pocket expense caused by lack of effort on the part of the broker.”

These findings are supported by the record. Although defendant argues on appeal that he sufficiently raised a damages claim in his answer to the complaint, his counsel expressly advised the court during closing arguments that defendant was not asserting a counterclaim for damages. Further, although defendant presented testimony that he had had to incur attorney fees as a result of plaintiffs inaction, he offered no evidence of the amount of such fees or of the amount of any other monetary damages caused by plaintiffs alleged nonperformance of its statutory obligations.

Thus, even if we assume that plaintiff breached a duty imposed by statute and that such breach could give rise to a claim for damages or an offset, the trial court did not err in declining to award such damages here.

The judgment is affirmed.

Judge DAVIDSON and Judge DAILEY concur.


author: Judge ROTHENBERG.

text:
    IN STITCHES, INC., Petitioner-Appellee, and Colorado State Board of Assessment Appeals, Appellee, v. DENVER COUNTY BOARD OF COUNTY COMMISSIONERS, Respondent-Appellant.
    No. 01CA1974.
    Colorado Court of Appeals, Div. V.
    Nov. 21, 2002.
    Rubin & Zimmerman, P.C., Steven L. Zimmerman, Ronald M. Rubin, Denver, CO, for Petitioner-Appellee.
    Ken Salazar, Attorney General, Mark Ger-ganoff, Assistant Attorney General, Denver, CO, for Appellee.
    J. Wallace Wortham, Jr., City Attorney, Eugene J. Kottenstette, Assistant City Attorney, Denver, CO, for Respondent-Appellant.
   Opinion by

Judge ROTHENBERG.

In this property tax case, respondent, the Denver County Board of County Commissioners (BOCC), appeals from an order of the Board of Assessment Appeals (BAA) in favor of petitioner, In Stitches, Inc. (taxpayer). The BAA ruled that the county assessor had improperly made retroactive assessments of additional property taxes against taxpayer s personal property for five previous tax years, and it reinstated the assessor’s original valuations of that property for those years. We affirm.

At issue in this appeal is whether the statutory authorization for retroactive assessments of additional property taxes against “omitted property” applies to previously taxed property that has been undervalued. We agree with the BAA that it does not and that there was no omitted property in this case.

The record reveals the following. Taxpayer did not file personal property declaration schedules for the 1993 through 1997 tax years. Consequently, the assessor previously made “best information available” (BIA) valuations of taxpayer’s personal property for each of those tax years as permitted under § 39-5-116(1), C.R.S.2002. Taxpayer did not protest the annual BIA valuations of approximately $50,000 assigned to the entirety of its taxable personal property, and it paid the taxes for those years.

In 1998, an audit was conducted, and the assessor determined that taxpayer’s personal property had a substantially higher valuation than the previous BIA valuation for each of the 1993 through 1997 tax years. Thereafter, the assessor made additional assessments for those tax years for omitted property, based on the increase in the valuation of the personal property. After taxpayer’s challenges to the additional assessments were denied by the BOCC, taxpayer appealed the matter to the BAA.

Following a hearing, the BAA ruled that the subject property was not omitted property, but had merely been undervalued, and that the assessor could not later increase the BIA valuations and retroactively assess taxes for the five years on the difference in value. Accordingly, the BAA concluded the original $50,000 BIA valuations for the 1993 through 1997 tax years must stand and ordered the BOCC to grant taxpayer relief from the additional assessments.

The BOCC now contends the BAA erred in so ruling because it failed to abide by the statutory scheme regarding valuation of personal property. We disagree.

Under § 39-5-125(1), C.R.S.2002, upon discovery that “any taxable property has been omitted from the assessment roll,” the assessor is required to determine “the value of such omitted property,” to notify the treasurer of any unpaid taxes “on such property” for prior years, and to list it on the assessment roll. Hence, § 39-5-125(1) authorizes assessors to make retroactive assessments of taxes for prior years against previously omitted property. See also § 39-10-101(2)(a)(I), C.R.S.2002 (providing similar statutory authorization for treasurers to make retroactive assessments against previously omitted property).

However, in Cabot Petroleum Corp. v. Yuma County Board of Equalization, 847 P.2d 152, 155 (Colo.App.1992) (Cabot I), rev’d on other grounds, 856 P.2d 844 (Colo.1993) (Cabot II), a division of this court explained that the foregoing statutory provisions authorize retroactive assessments of property taxes only against “omitted property,” and not against “omitted value.” The division distinguished between property that has been omitted from previous taxation and property that has been undervalued and concluded that these statutory provisions did not authorize retroactive assessments against property that was previously undervalued.

Although the supreme court in Cabot II held the retroactive assessments of additional property taxes were authorized in that case, it relied on other statutory provisions applicable to the assessment of property taxes on oil or gas leaseholds. Cabot II did not disturb the holding in Cabot I regarding the construction of §§ 39-5-125(1) and 39-10-101(2)(a)(I).

This distinction between omitted property and previously undervalued property has also been recognized in the reference manuals published by the Property Tax Administrator (PTA). As relevant here, the PTA’s reference manuals provide that when property has been valued and taxed in prior years “and it is later discovered that the property has a greater value, the property has been undervalued and the value cannot be increased” retroactively, because undervaluation “does not qualify as omitted property.” 2 Assessors Reference Library § III, at 3.20 (rev.Dec.2001). The interpretations of statutory provisions by agencies charged with their administration must be given deference. See Besch v. Jefferson County Bd. of County Comm’rs, 20 P.3d 1195 (Colo.App.2000).

Thus, we agree with the BAA and the division in Cabot I that the provisions of §§ 39-5-125(1) and 39-10-101(2)(a)(I) do not authorize retroactive assessments against later increases in the value placed on previously undervalued property, because such valuation increases do not involve omitted property.

We also agree with the BAA that the retroactive assessments in this case were not made against omitted property, but were made against later valuation increases for previously undervalued property. Although taxpayer did not file the required personal property schedules, the entirety of taxpayer’s personal property was previously taxed based on the assessor’s BIA valuations, although it was undervalued, and we cannot say any property was omitted from the assessment roll.

We note in this regard that assessors have two enforcement methods available to assist them when taxpayers do not file the required personal property schedules. See § 39-5-116(1) (authorizing assessors to assess fines for a taxpayer’s failure to complete and file a personal property declaration schedule); § 39-5-119, C.R.S.2002 (authorizing assessors to apply for district court order requiring a taxpayer to answer questions about property). The record does not reflect whether the assessor employed either method in this case.

In summary, we conclude the retroactive assessments here were not authorized under the omitted property provisions of §§ 39-5-125(1) and 39-10-101(2)(a)(I). We therefore perceive no error in the BAA’s ruling upholding the assessor’s original BIA valuations of taxpayer’s personal property for the 1993— 1997 tax years.

The BOCC’s remaining contentions of error are also unpersuasive. Taxpayer’s request for an award of attorney fees is denied.

The order of the BAA is affirmed.

Judge MARQUEZ and Judge TAUBMAN concur.


author: Judge CASEBOLT.

text:
    Elzbieta JAROSINSKI, Petitioner, v. INDUSTRIAL CLAIM APPEALS OFFICE OF the STATE of Colorado, Unique Casual Restaurants/Fuddruckers, and Insurance Company of the State of Pennsylvania, Respondents.
    No. 02CA0332.
    Colorado Court of Appeals, Div. II.
    Dec. 5, 2002.

      Law Office of O’Toole & Sbarbaro, P.C., Neil D. O’Toole, Denver, Colorado, for Petitioner.
    Ken Salazar, Attorney General, Laurie Rottersman, Assistant Attorney General, Denver, Colorado, for Respondent Industrial Claim Appeals Office.
    Treece, Alfrey, Musat & Bosworth, P.C., James B. Fairbanks, Denver, Colorado, for Respondents Unique Casual Restaurants/Fuddruckers and Insurance Company of the State of Pennsylvania.
   Opinion by

Judge CASEBOLT.

Claimant, Elzbieta Jarosinski, seeks review of a final order of the Industrial Claim Appeals Office (Panel) denying her petition to reopen. We affirm.

Claimant sustained an admitted work-related injury in November 1997 when she fell at work, striking her head and neck. Before that injury, she had a medical history of preexisting migraine headaches, dizziness, imbalance, and other problems. The Administrative Law Judge (ALJ) found that the injury temporarily aggravated the migraine headaches and dizziness and authorized treatment for imbalance, visual problems, and depression.

In November 1999 a physician performing a division-sponsored independent medical examination (DIME) placed claimant at maximum medical improvement (MMI). Although he initially assigned a nine percent permanent impairment rating, the physician retracted it after viewing videotapes showing claimant performing activities that were inconsistent with the symptoms and disability she had reported.

Claimant sought a hearing to overcome the DIME physician’s opinions concerning MMI and impairment. Following that hearing in March 2000, the ALJ found against claimant, denied her claim for medical benefits after the date of MMI, and denied and dismissed the claim for permanent medical impairment benefits. Claimant did not appeal that determination.

Claimant filed a petition to reopen in July 2000, alleging that her condition had worsened, as exhibited by increasing depression and visual problems. After a hearing, the ALJ found that claimant had failed to prove an entitlement to reopen because of a change of condition. The ALJ also found that claimant’s depression had worsened after the March 2000 hearing and, especially, after he issued his written order. However, he determined that any change of condition was not a natural consequence of the work injury, but resulted from claimant’s experiences during the March 2000 litigation, when she had to watch surveillance videotapes of “her apparently inconsistent and possibly fabricated complaints.”

The ALJ also concluded that claimant had failed to prove that her continuing migraine headaches and dizziness problems were due to the work injury. In so finding, the ALJ determined that his March 2000 order was conclusive that claimant’s continuing headaches and dizziness were not work-related. Thus, the ALJ applied the doctrine of collateral estoppel to preclude relitigation of that issue.

On review, the Panel determined that substantial evidence supported the ALJ’s evi-dentiary finding that the worsening of claimant’s depression was caused solely by her reaction to the litigation and the order denying medical benefits. The Panel also determined, as a matter of law, that psychological problems resulting from “litigation stress” and entry of an adverse order were not sufficiently similar to “quasi-course of employment” injuries to justify compensation.

Because it was not raised, the Panel did not address whether the claim for “litigation stress” was subject to the restrictions of the mental impairment statute, § 8-41-301(2)(a) through (d), C.R.S.2002, nor did it consider whether the current or previous version of the statute would apply. Because claimant did not prove any compensable worsening of condition, the Panel also did not consider whether the ALJ correctly had held that collateral estoppel precluded relitigation of the causation issue.

I.

Claimant contends the ALJ and the Panel erred in denying the petition to reopen because she sustained a compensable worsening of her condition. Specifically, she notes the ALJ found her depression worsened as a result of litigation stress, and she asserts that the law supports the compensa-bility of litigation stress and depression under the circumstances of this case. We disagree.

Workers’ compensation claims may be reopened because of a change in condition. Section 8-43-303(1), C.R.S.2002. A change in condition refers to a “change in the condition of the original compensable injury or to a change in claimant’s physical or mental condition which can be causally connected to the original compensable injury.” Chavez v. Indus. Comm’n, 714 P.2d 1328, 1330 (Colo.App.1985).

The claimant has the burden of proof, and in the absence of fraud or clear abuse of discretion, the ALJ’s decision concerning reopening is binding on appeal. Richards v. Indus. Claim Appeals Office, 996 P.2d 756 (Colo.App.2000). An abuse of discretion occurs when the ALJ’s order is beyond the bounds of reason, as where it is unsupported by the evidence or contrary to law. Pizza Hut v. Indus. Claim Appeals Office, 18 P.3d 867 (Colo.App.2001).

Generally, proof of causation is an issue of evidentiary fact for determination by the ALJ. Section 8-43-301(8), C.R.S.2002. The ALJ’s evidentiary findings must be upheld if supported by substantial evidence in the record. Section 8-43-301(8); Wal-Mart Stores, Inc. v. Indus. Claims Office, 989 P.2d 251 (Colo.App.1999).

Here, the ALJ found that claimant was depressed because of the results of the March 2000 hearing and the adverse ruling entered after that hearing. Claimant argues that the stress or depression caused by the litigation process is naturally incident to, and flows from, the underlying injury when neurotic symptoms accompanied by disability occur. She analogizes litigation stress to “quasi-course of employment injuries.” We are not persuaded.

Under the quasi-course of employment doctrine, compensation is awarded when a claimant is injured while seeking authorized medical treatment. For instance, in Excel Corp. v. Industrial Claim Appeals Office, 860 P.2d 1393 (Colo.App.1993), the claimant was injured when he slipped and fell while leaving an authorized physical therapy session. Upholding compensability under these circumstances, the division held that, although such injuries occur outside employment-related activities, an employer has a quasi-contractual obligation to provide treatment for the compensable injury and the claimant has a corresponding • obligation to submit to treatment. Under such circumstances, trips to receive authorized treatment constitute an implied condition or expectation of the employment contract.

If the element of contractual obligation is missing, however, the resulting injuries are not compensable. See Schrieber v. Brown & Root, Inc., 888 P.2d 274 (Colo.App.1993)(no implied condition or expectation of the employment contract found when claimant sustained injuries while seeking unauthorized medical treatment and, thus, the injuries were not compensable).

Psychological problems resulting from “litigation stress” and the entry of an adverse order are distinguishable from the type of injuries covered by the quasi-course of employment doctrine. When a claimant is presenting evidence and making argument in support of a claim for benefits, he or she is not performing an activity that may fairly be characterized as a service or activity inherent in the employment contract. Rather, the claimant is exercising the right to make a claim for benefits.

Similarly, when exercising their statutory right to defend a claim by presenting evidence adverse to the claimant, respondents are not engaged in an activity secondary to the employment contract. And the issuance of an ALJ’s order resolving the parties’ dispute occurs entirely outside of the employment contract, except that such a contract must exist for any benefits to be awarded.

Like the Panel, we reject claimant’s theory on both factual and legal grounds. On a factual level, claimant argues that her idiosyncratic psychological reaction to respondents’ successful conduct of the March 2000 litigation should itself provide the groundwork for additional benefits. However, if claimant were correct, respondents in future cases would be required to calculate, to the extent they are able, whether the benefits of successful litigation are likely to outweigh the potential costs if the claimant experiences a psychological reaction to an adverse ruling. If this were the law, respondents might forgo the presentation of valid defenses and drive up employers’ costs of procuring workers’ compensation insurance. Such a result would be contrary to the statutory purpose of assuring the quick and efficient delivery of disability and medical benefits at a reasonable cost. See § 8-40-102(1), C.R.S.2002.

The adjustment practices of workers’ compensation insurers may give rise to tort liability for bad faith claims, including claims for intentional infliction of emotional distress and outrageous conduct. It would be anomalous, as the Panel found, to conclude that an insurer’s “bad faith” conduct subjects the insurer to civil liability, but, conversely, an insurer’s appropriate defense conduct also subjects the insurer to liability under the Workers’ Compensation Act for a claimant’s idiosyncratic psychological reactions to the litigation.

Like the Panel, we acknowledge the “majority rule,” as set forth in 3 Larson’s Workers’ Compensation Law § 56.05[1] (2002), which allows recovery for compensation neurosis. Under that view, “assuming that the anxiety over compensation and the accompanying neurosis are genuine, the line of causation from the original injury to the present disability is unbroken.” Larson’s, supra, § 56.05[2]. However, as that treatise concedes, there is a substantial contrary line of authority, see Larson’s, supra, § 56.05[1], and we reject the majority view as inconsistent with the prevailing theory of compensa-bility in Colorado under the “quasi-course of employment” theory.

In Colorado, the “chain of causation analysis” relied upon by Larson’s is reserved for cases in which the industrial injury leaves the body in a weakened condition and the weakened condition plays a causative role in the subsequent injury. See Standard Metals Corp. v. Ball, 172 Colo. 510, 474 P.2d 622 (1970). However, in quasi-course cases, the immediate cause of the claimant’s subsequent injury is an intervening accident sustained while obtaining medical treatment. In this line of cases, the rationale for compensability is the implied contractual obligations of the employer to provide treatment and the claimant to cooperate with it, not the indirect causal relationship to the underlying workers’ compensation injury. See Employers Fire Ins. Co. v. Lumbermens Mut. Cas. Co., 964 P.2d 591 (Colo.App.1998).

Because the ALJ did not find claimant’s worsened depression resulted from a weakened condition stemming from the compensa-ble injury, but rather resulted from claimant’s reaction to the insurer’s conduct in its defense of the claim, this case is more analogous to the quasi-course cases than to the chain of causation eases. Thus, again like the Panel, we are persuaded by those authorities that treat litigation stress as an intervening event, not a compensable consequence of the industrial injury. See Motorola, Inc. v. Indus. Comm’n, 125 Ariz. 211, 608 P.2d 788 (Ct.App.1980)(claimant’s reaction to notice of claim terminating her benefits was independent superseding event that broke chain of causation between initial industrial injury and present psychological problems that were due to preexisting personality trait); Rodriguez v. Workers’ Comp. Appeals Bd., 21 Cal.App.4th 1747, 27 Cal.Rptr.2d 93 (1994)(rejecting Detjen v. Workmen’s Comp. Appeals Bd., 42 Cal.App.3d 470, 116 Cal. Rptr. 860 (1974), and finding no compensable injury when the psychiatric injury occurred as a result of the litigation process and not the original injury); Funaioli v. City of New London, 61 Conn.App. 131, 763 A.2d 22 (2000)(mental state or nervous disturbance caused merely by the pendency of compensation proceedings is not referable to the injury).

Claimant’s petition to reopen was therefore properly denied.

II.

Claimant also asserts that the ALJ improperly relied upon the collateral estoppel doctrine when he denied her petition to reopen. Because claimant failed to establish a • compensable worsening of condition, we, like the Panel, need not consider this issue.

The order is affirmed.

Judge JONES and Judge ROY, concur.


text:
    BOARD OF COUNTY COMMISSIONERS OF JEFFERSON COUNTY; Kevin J. McCasky, in his official capacity as Jefferson County Assessor; and Robert Bammerlin, in his official capacity as Jefferson County Treasurer, PlaintiffsAppellants, v. CITY AND COUNTY OF BROOMFIELD, successor to the City of Broomfield, Defendant-Appellee.
    No. 01CA2333.
    Colorado Court of Appeals, Div. II.
    Dec. 5, 2002.

      William A. Tuthill, III, County Attorney, Patricia W. Gilbert, Assistant County Attorney, Lily Oeffler, Assistant County Attorney, Golden, Colorado, for Plaintiffs-Appellants.
    Hahn Smith & Walsh, P.C., David J. Hahn, John W. Smith, III, Edward J. Walsh, Cynthia A. Calkins, Denver, Colorado; Roy S. Howard, City Attorney, Tonya R. Haas, Deputy City Attorney, Broomfield, Colorado, for DefendanL-Appellee.
   Opinion by

Judge CASEBOLT.

This declaratory judgment action involves interpretation of a constitutional amendment that created the City and County of Broom-field. Plaintiffs, the Board of County Commissioners of Jefferson County, the Jefferson County Assessor, and the Jefferson County Treasurer (collectively Jefferson County), appeal the judgment in favor of defendant, the City and County of Broomfield, the successor to the City of Broomfield. The trial court determined that the amendment gave Broomfield the power to retain and use taxes payable in 2002 attributable to properties that became part of the City and County of Broomfield on November 15, 2001, but which were previously located in and assessed for valuation by Jefferson County in 2001. We affirm.

Before November 15, 2001, the City of Broomfield was located in the separate counties of Jefferson, Adams, Boulder, and Weld, and city residents paid taxes to the county in which their property was located. Under a constitutional amendment enacted by Colorado voters, the City of Broomfield became the City and County of Broomfield on November 15, 2001. See Colo. Const, art. XX, §§ 10-13.

In January 2001, the Jefferson County Assessor listed, appraised, and valued for assessment the property in Jefferson County that would become part of the City and County of Broomfield. That same month, Broomfield informed Jefferson County that it intended to collect and retain all property taxes payable in 2002 attributable to that property.

Jefferson County then initiated this action, seeking a declaratory judgment that it was entitled to those disputed taxes and an injunction prohibiting Broomfield from retaining that money. Broomfield filed a motion for a judgment on the pleadings. The trial court found in favor of Broomfield, and this appeal followed.

I.

Jefferson County contends that the trial court erred in interpreting Colo. Const, art. XX, §§ 10-13 to allow Broomfield to retain property taxes collected in 2002, attributable to Jefferson County’s 2001 assessment on property that became part of the City and County of Broomfield on November 15, 2001. We disagree.

Interpretation of a constitutional amendment, like the interpretation of a statute, presents a question of law that we review de novo. See City of Wheat Ridge v. Cerveny, 913 P.2d 1110 (Colo.1996).

When interpreting a constitutional amendment, we should ascertain and give effect to the intent of those who adopted it. If, as here, the provision was adopted by popular vote, we must determine what the People believed the language of the amendment meant when they approved it. To do so, we must give the language the natural and popular meaning usually understood by the voters. See Urbish v. Lamm, 761 P.2d 756 (Colo.1988).

Courts should not engage in a narrow or technical reading of language contained in a constitutional amendment if that reading would defeat the intent of the People. If the intent of the electorate is not clear from an amendment’s language, courts should construe it in light of the objective the amendment seeks to achieve and the mischief it seeks to avoid, and should consider the amendment as a whole. Zaner v. City of Brighton, 917 P.2d 280 (Colo.1996).

Colo. Const, art. XX, § 10 provides, in pertinent part:

On and after November 15, 2001, all territory in the municipal boundaries of the city of Broomfield shall be detached from the counties of Adams, Boulder, Jefferson, and Weld and shall be consolidated into a single county and municipal corporation with the name “The City and County of Broom-field.”

The transfer of government is provided for in Colo. Const, art. XX, § 12, which, as pertinent here, states:

[O]n and after November 15, 2001, the city of Broomfield and those parts of the counties of Adams, Boulder, Jefferson, and Weld included in the boundaries of said city shall be consolidated into the city and county of Broomfield. The duties and terms of office of all officers of Adams, Boulder, Jefferson, and Weld counties shall no longer be applicable to and shall terminate with regard to the city and county of Broomfield.... The city council ... shall perform the duties of a board of county commissioners .... The city and county of Broomfield shall have the power to continue to impose and collect sales, use, and property taxes that were imposed by the city of Broomfield and the counties of Adams, Boulder, Jefferson, and Weld within the areas where said taxes were imposed on November 14, 2001 ....

These constitutional provisions are intended to be “in all respects self-executing and shall be construed so as to supersede any conflicting constitutional or statutory provision that would otherwise impede the creation of the city and county of Broomfield.” Colo. Const, art. XX, § 13.

For a number of reasons, we conclude that these constitutional provisions permit Broomfield to retain and use property taxes payable in 2002, attributable to Jefferson County’s 2001 assessment on property that became part of the City and County of Broomfield.

First, § 12 of art. XX provides that Broomfield “shall have the power to continue to ... collect ... property taxes that were imposed by ... the countfy] of ... Jefferson ... within the areas where said taxes were imposed on November 14, 2001.” The word “continue” means to keep up or maintain, especially without interruption, a particular condition, course, or series of actions. See Webster’s Third Neiv International Dictionary 493 (1986). Thus, § 12 indicates that Broomfield has the power to maintain, uninterrupted, the collection of taxes that were previously assessed by Jefferson County in 2001. Moreover, this power covers taxes “imposed by” the other counties.

Second, the execution section of the amendment requires that we construe the provisions to avoid any conflicts that would impede creation of. the new entity. If Broomfield were not able to collect, retain, and use taxes due and payable in 2002, it would lack revenue to provide the necessary services to its citizens in that year.

Third, we must construe the language of the amendment in light of its objective to create a new city and county that is a fully functioning governmental entity upon creation. A construction permitting Jefferson County to obtain such revenues would frustrate this objective.

Fourth, in its analysis of the 1998 Ballot Proposals, the Legislative Council of the General Assembly made a number of remarks concerning the proposed amendments that support our interpretation. See Carrara Place, Ltd. v. Arapahoe County Board of Equalization, 761 P.2d 197 (Colo.1988) (while not controlling, arguments in the Legislative Council research publication provide important insight into the electorate’s understanding of a constitutional amendment when it was passed); see also In re Proposed Initiative ‘Public Rights in Waters II”, 898 P.2d 1076 (Colo.1995)(Legislative Council publication is a helpful source equivalent to the legislative history of a proposed amendment).

The Council noted an argument for adopting the proposed amendment was that the tax dollars of Broomfield residents would “stay in Broomfield to provide services to Broomfield residents” and “county taxes paid by Broomfield residents will no longer be distributed among the four counties.” The Council further noted that the amendment would transfer current city services and responsibilities to the new city and county and would require Broomfield to deliver county services previously delivered by the four affected counties. In addition, the Council noted that the four affected counties would lose almost $8 million dollars in revenue from property, sales, and use taxes “currently collected from the area within the City of Broomfield.” See Colorado Legislative Council, An Analysis of 1998 Ballot Proposals (1998).

These comments indicate that Broomfield would need to retain and use the taxes previously imposed by the four counties to provide current services for residents .of the new city and county previously provided by the other counties. They further recognize that the other four counties would necessarily lose revenue.

As Jefferson County asserts, the language of § 12 does not expressly allow Broomfield to “retain” and “use” the property taxes it collects. However, the narrow reading Jefferson County advocates would defeat what we perceive to be the intent of the People. Because voters must have known that Broomfield would assume the duties and responsibilities formerly carried out by other counties with respect to property within the new city and county, they also must have intended that Broomfield would have the power to retain and use the property taxes that Jefferson County formerly assessed and imposed.

II.

Jefferson County nevertheless contends that a different interpretation is warranted because it provided services to Broomfield residents for most of 2001 and was therefore entitled to receive the taxes paid in 2002 for those 2001 services. In support of this proposition, it correctly notes that property taxes are paid and collected “in arrears” in the year following the one in which they were assessed and levied. See § 39-10-102, C.R.S.2002; Hendricks v. Town of Julesburg, 55 Colo. 59, 132 P. 61 (1913). It further correctly notes that, under §§ 39-1-105 and 39-1-107, C.R.S.2002, a perpetual tax lien on the properties at issue was created on January 1, 2001, for 2001 taxes to be paid in 2002. See Israel v. Rifle Econolodge Joint Venture, 793 P.2d 658 (Colo.App.1990). However, we disagree with the County’s reasoning.

A.

Jefferson County’s contention reflects a misunderstanding of the statutory scheme that governs the assessment, levy, and collection of property taxes.

The property taxation process is outlined in various statutory provisions, and each taxing authority is assigned duties, responsibilities, and deadlines for completing each step in the process. See §§ 39-1-101 to 39-14-102, C.R.S.2002.

The valuation and assessment process begins in January in each county based on the property located in that county on January 1 of that year. See § 39-1-105; Gilpin County Board of Equalization v. Russell, 941 P.2d 257 (Colo.1997)(“assessment” means the process of placing a value for tax purposes upon the property of a particular taxpayer).

Following opportunities for protest as to valuation, the county assessor certifies the assessments by August 25 of each year. See §§ 39-1-105 to 39-5-128.

Counties then prepare a proposed budget by October 15 that is to govern the following fiscal year. See § 29-1-105, C.R.S.2002; see also §§ 29-1-102(4), 29-1-108, C.R.S.2002 (the budget must include projections for expenditures, as well as the anticipated revenues for the upcoming fiscal year).

By December 22 of each year, the board of county commissioners, or the city council for Denver or Broomfield, must levy a tax against the assessed value of all taxable property located in the county and certify the levy to the assessor. See § 39-1-111, C.R.S. 2002. The assessor then delivers the tax warrant to the treasurer, commanding the treasurer to collect all taxes. See § 39-5-129, C.R.S.2002.

By January 10 of the following year, the treasurer must commence collection of the levied property taxes. See §§ 39-5-129, 39-10-101, C.R.S.2002. Those taxes are then available for expenditure by the political subdivision that levied them during the fiscal year in which they are collected. See § 39-1-112, C.R.S.2002.

It is apparent from a review of these provisions that a county actually pays for the services it provides in any given fiscal year with the tax revenue collected that same year, even though the revenues are based upon assessments and levies made the previous fiscal year. Consequently, here, although the property at issue was located in Jefferson County as of January 1, 2001, and Jefferson County performed the assessment and valuation function, upon the transfer of that property to the City and County of Broomfield on November 15, 2001, Broom-field acquired the rights, powers, and duties of Jefferson County and was then authorized to complete the taxation process.

Hence, Broomfield levied the taxes in December 2001 and was entitled to collect, retain, and use them in 2002, based on Jefferson County’s assessments. And, pursuant to § 39-1-112, the Broomfield treasurer collected the taxes in 2002 and made those funds available to Broomfield because that political subdivision had levied the taxes.

Accordingly, Jefferson County’s argument that it is entitled to the money collected in 2002 to pay for services it rendered in 2001 is incorrect. The services it rendered in 2001 were actually paid for with taxes collected in 2001; services rendered in 2002 by Broom-field are paid for with the taxes it collects in 2002. The fact that taxes are paid “in arrears” does not alter this conclusion.

Our interpretation of the constitutional amendments gives a consistent, harmonious, and sensible effect to the various statutes that create the property tax scheme. See City of Grand Junction v. Sisneros, 957 P.2d 1026 (Colo.1998)(statutes must be construed together as a whole, and courts inteipreting them must strive to give consistent, harmonious, and sensible effect to all the parts). A different conclusion permitting Jefferson County to obtain the 2002 taxes would represent a windfall to it, because the services for the residents of the property no longer in Jefferson County, but now lying within Broomfield, must be provided and paid for by Broomfield in 2002.

B.

Similarly, Jefferson County’s reliance on § 39-1-107, which creates a lien for general taxes on the date of assessment, is misplaced. That statute provides, in pertinent part, that a “lien of general taxes for the current year ... shall attach to all taxable property, real and personal, at 12 noon on the assessment date.” Section 39-1-107(1), C.R.S.2002. The statute also provides that “taxes levied on real and personal property ... shall be a perpetual lien thereon, and such lien shall have priority over all other liens until such taxes ... have been paid in full.” Section 39-1-107(2), C.R.S.2002.

However, the statute does not determine which entity is entitled to retain the property taxes assessed and levied in 2001. While a general tax lien attached to the property located in Jefferson County as of January 1, 2001, the statute does not indicate which entity, as between Jefferson County and the City and County of Broomfield, holds the lien. Further, the lien is inchoate until the taxes are levied, at which time the lien relates back and attaches as of the assessment date to give it priority over subsequently acquired liens. See Wolf v. Antonoff, 161 Colo. 473, 423 P.2d 840 (1967).

Here, the entity imposing the levy is the City and County of Broomfield, not Jefferson County. Thus, we are not persuaded that the lien statutes give Jefferson County a superior right to the taxes that are collected in 2002.

III.

Finally, we reject Jefferson County’s assertion that the trial court proeedurally erred in relying upon a factual determination not alleged in its complaint in deciding Broomfield’s motion for judgment on the pleadings. While it is correct that, under C.R.C.P. 12(b), the court must accept as true all material allegations of the complaint in determining such a motion, the issue here is the proper interpretation of a constitutional amendment, which presents purely a question of law. See City of Wheat Ridge v. Cerveny, supra.

Here, the trial court concluded that if Broomfield were not allowed to retain the property taxes that are due and payable in 2002, it would lack revenue to provide required services to its citizens in that year. That determination is not the resolution of a disputed fact or a conclusion unwarranted by the language of the complaint. It is merely the result that would occur if Jefferson County’s interpretation of the constitutional provisions were to prevail.

For these reasons, the trial court did not err in its interpretation of the constitutional amendment at issue.

The judgment is affirmed.

Judge JONES and Judge ROY concur.


author: Judge JONES.

text:
    In re the MARRIAGE OF Brenda S. Lindsey TAGEN, Appellee, and Steven Walter Tagen, Appellant.
    No. 01CA0404.
    Colorado Court of Appeals, Div. III.
    Dec. 19, 2002.

      John R. Perrin, Colorado Springs, Colorado, for Appellee.
    Warren & Mundt, P.C., Robert B. Warren, Colorado Springs, Colorado, for Appellant.

       Sitting by assignment of the Chief Justice under provisions of Colo. Const, art. VI, § 5(3), and § 24-51-1105, C.R.S.2002.

   Opinion by

Judge JONES.

Steven Walter Tagen (husband) appeals from certain portions of the permanent orders entered in connection with the dissolution of his marriage to Brenda S. Lindsey Tagen (wife). We affirm.

The trial court determined that the husband contributed to a Public Employees’ Retirement Association (PERA) account during the marriage and that the account constituted marital property. The court held that it should be divided between the parties using the “Hunt” formula, with the husband receiving an offset for his share of the equity in the marital home. The court ordered the retirement analysis expert, who had been retained by the wife, to prepare the calculations and documents to effect the award and ordered the husband to pay all of that expert’s fees. Finally, the court ordered the husband to select “Option 2” to secure payment of the PERA benefits to the wife in the event of his death.

Recognizing that, absent agreement of the parties, the PERA plan could not be ordered to make payments directly to the wife, the court ordered the husband to pay the wife her share of the PERA benefits as he receives his retirement checks.

The court also found that the husband was presently earning $39,600 per year as a teacher and that he would earn at least $7750 more annually working at a community college. The court calculated the wife’s income at $1520 per month based upon her testimony that she has nineteen piano students at $80 per month from each. The trial court further found that although the husband earned his educational degrees during the marriage, the wife did not complete the degree that she had started prior to the marriage.

The court concluded that the wife needed maintenance in order to complete her education and awarded her $500 per month for a period of seven years or until she is fully self-supporting. The court ordered the husband to pay $648 per month as child support. Finally, the court ordered the husband to pay $2000 of the wife’s attorney fees.

I.

The husband contends that the trial court erred in dividing the PERA account. We are not persuaded.

A.

The husband first asserts that the trial court lacked subject matter jurisdiction to divide the PERA account in the absence of an agreement of the parties. We disagree.

The statutory language controlling the distribution of PERA accounts prohibits a court from ordering PERA itself to divide the account and to distribute the account benefits to anyone but the accountholder absent an agreement of the parties. Section 14-10-113(6)(a)(I), C.R.S.2002, states, in relevant part, that “all retirement benefits of any nature for public employees ... shall be, in all actions for dissolution of marriage ... divisible directly by the plan upon written agreement of the parties.” Section 14-10-113(6)(f), C.R.S.2002, bolsters this law by stating, in relevant part, “A court shall have no jurisdiction to enter an order dividing a public employee retirement benefit except upon written agreement of the parties .... ”

Thus, a trial court can order the PERA plan to pay benefits directly to a former spouse only when the parties agree to the division in a written separation agreement submitted to the court.

However, there is no statutory provision that prohibits a trial court from entering an order directing one spouse to pay benefits to the other when the parties have not reached an agreement. Indeed, assets in PERA accounts must be included for purposes of calculating the total marital assets subject to division. See In re Marriage of Pope, 37 Colo.App. 237, 544 P.2d 639 (1975).

Shortly after the 1996 adoption of the predecessor statutory language to § 14-10-113(6), C.R.S.2002, a division of this court held that the three methods of dividing a pension upon dissolution of marriage, which were set forth by the supreme court in In re Marriage of Hunt, 909 P.2d 525 (Colo.1995), apply to private pension plans and PERA plans equally. In applying Hunt, the division took no special note that the pension was a PERA account and emphasized that, as had been the case in the past, the choice of a distribution method lies within the sound discretion of the trial court. In re Marriage of James, 950 P.2d 624, 626-27 (Colo.App.1997).

In so holding, the James division implicitly acknowledged that a trial court may order the parties to share PERA benefits, as the trial court did here, without running afoul of § 14-10-113(6). Thus, the new section simply gave spouses the option of agreeing that PERA would directly distribute the retirement benefits to each of them. Cf. In re Marriage of Kelm, 912 P.2d 545, 547 (Colo.1996)(supreme court recognized that pension benefits are marital property subject to distribution upon dissolution and treated wife’s PERA benefits as any other pension benefit); In re Marriage of Blake, 807 P.2d 1211 (Colo.App.1990)(affirming trial court’s order requiring husband to pay wife her portion of his PERA benefits in monthly payments even before husband had begun receiving his benefits).

Accordingly, we reject the husband’s argument that the trial court lacked jurisdiction to divide the PERA pension under these circumstances and conclude that “the method a trial court uses to distribute a pension in effecting an equitable distribution lies within its sound discretion.” In re Marriage of Kelm, supra, 912 P.2d at 551.

Here, the trial court properly treated the husband’s PERA benefits as any other pension benefit and acted within its discretion in ordering the husband to pay the wife a portion of the PERA benefits as the husband receives his retirement checks. We, thus, conclude that the trial court’s order resulted in the equitable division of the marital assets. See In re Marriage of Gallo, 752 P.2d 47, 55 (Colo.1988).

B.

The husband alternatively asserts that the trial court’s order is inconsistent because it simultaneously utilizes the present value of assets and the future value of the assets in ordering the deferred distribution of the PERA account. We are not persuaded.

The trial court has broad discretion to determine the most appropriate and equitable division of a pension accrued during marriage. In re Marriage of Hunt, supra; In re Marriage of Blake, supra.

Here, contrary to the husband’s assertions, the trial court did not use the present value of the PERA account in calculating the deferred distribution of the account. While the present value of the PERA account was listed on the wife’s proposed property division, the trial court properly used the “deferred distribution method” to determine the offset amount the husband was to receive in the form of PERA benefits. In so doing, the court used the “Hunt” formula to determine the percentage of the pension stream that the wife would be eligible to receive once the husband began receiving the benefits. See In re Marriage of Hunt, supra. The present value of the account played no part in this calculation.

Additionally, any further dispute concerning the propriety of the terms of the order prepared by the wife’s expert to effect the division may be brought to the trial court’s attention for clarification or resolution within the court’s continuing jurisdiction.

Finally, the husband’s post-trial request for $14,434 in interest on the offset amount owed to him was deemed denied under C.R.C.P. 59(j). Nevertheless, the award of interest on such sum was discretionary with the court. See In re Marriage of Lucas, 631 P.2d 1175 (Colo.App.1981). We perceive no abuse of discretion here.

II.

The husband also contends that the trial court abused its discretion in awarding the wife maintenance. Again, we disagree.

The trial court has broad discretion in determining the amount and duration of a maintenance award, and absent an abuse of discretion, a trial court’s order will not be reversed. In re Marriage of Antuna, 8 P.3d 589 (Colo.App.2000).

An award of maintenance to a spouse is appropriate if that spouse lacks sufficient property, including marital property awarded, to provide for his or her reasonable needs and is unable to be self-supporting through appropriate employment. In re Marriage of Bartolo, 971 P.2d 699 (Colo.App.1998). The statutory threshold for maintenance is a flexible standard that takes into account the particular facts and circumstances of each case and the reasonable expectations of the parties established during the marriage. In re Marriage of Olar, 747 P.2d 676 (Colo.1987).

Here, the trial court based the award of maintenance upon its finding, which is supported by the record, that the wife presented a good faith educational plan that would enable her to become self-supporting within five to seven years. The court also found, based on the testimony, that the husband had sufficient income from his employment to pay the wife some maintenance and, although obligated to reimburse his mother’s account at some point, historically had access to his mother’s funds to supplement the ongoing financial needs of his family.

While the testimony established that the wife stopped pursuing a college degree several years before the parties married, the wife testified that she did not require a degree to be a piano teacher. In addition, other than teaching students at home, from which she earned some money, the wife’s primary duty during the marriage had been to raise the parties’ twin daughters and maintain the household. Accordingly, the award of maintenance is supported by the evidence. Thus, the award does not constitute an abuse of discretion.

III.

In a related argument, the husband contends that the amount of child support was improperly calculated. We disagree.

Section 14 — 10—115(7)(a)(I)(C), C.R.S.2002, provides that “gross income” does not include “income from additional jobs that result in the employment of the obligor more than forty hours per week or more than what would otherwise be considered to be full-time employment.”

Here, the record does not contain a child support worksheet that demonstrates the calculation of support under the permanent orders entered by the court. However, the husband has not asserted that the trial court incorrectly calculated the amount of child support based upon the findings made.

Furthermore, no evidence was presented to the trial court that the husband’s income was improperly based upon employment that exceeded forty hours per week or full-time employment. The husband testified only that his community college teaching typically would occur in the summertime and that he had earned $7750 gross income for the eight months preceding the permanent orders hearing. Thus, error may not be predicated on the argument, raised for the first time on appeal, that child support was calculated in violation of § 14-10-115(7)(a)(I)(C). See In re Marriage of Aldrich, 945 P.2d 1370 (Colo.1997).

IV.

The husband next contends that the trial court erred in ordering him to pay fees that were incurred for the wife’s expert. We do not agree.

We review a trial court’s award of fees for an abuse of discretion. In re Marriage of Balanson, 25 P.3d 28, 35 (Colo.2001).

Here, the trial court’s final order required the husband to pay for the expert’s services related to the experts original evaluation of the PERA account, the expert’s court testimony, and any fees incurred for the expert to prepare the court’s order. Thus the husband apparently was ordered to pay the entire $1505 that was owed to the expert.

The husband alleges that part of the fee was generated when the expert prepared an irrelevant domestic relations order, but the wife responds that all of the expert’s work was necessary and appropriate to comply with the court’s order. Yet, there is nothing in the record that enables us to review the viability of either position. Nothing transmitted to this court itemizes the expert’s $1505 fee or otherwise indicates how that total was reached.

It is the appellant’s responsibility to designate the record on appeal, including any parts of the trial proceeding that are necessary for purposes of the appeal, and to ensure that the record is properly transmitted to an appellate court. C.A.R. 10(b). Any facts not appearing in the record cannot be reviewed, and we presume that material portions omitted from the record would support the judgment of the trial court. People v. Wells, 776 P.2d 386, 390 (Colo.1989).

Because we conclude that the record does not contain sufficient information to allow us to determine whether the award of fees was reasonable and properly within the court’s discretion, we presume the correctness of the trial court’s order.

y.

Finally, the husband contends that there was no disparity in the parties’ economic circumstances to warrant an award of attorney fees to the wife. We perceive no error.

Section 14-10-119, C.R.S.2002, permits the trial court to apportion attorney fees and costs in dissolution and postdissolution matters based upon the relative economic circumstances of the parties. In re Marriage of Woolley, 25 P.3d 1284 (Colo.App.2001).

Here, the wife testified that she incurred $3600 in reasonable and necessary attorney fees through the permanent orders hearing and had borrowed funds from her family to obtain those services. The trial court ordered the husband to pay approximately one-half of those fees. In doing so, the court found that it was equitable to require the husband to contribute to the fees and costs incurred by the wife because of the parties’ disparate incomes and the lack of liquid assets from which the wife could pay such costs. The award is supported by the evidence and is within the broad discretion of the trial court. See In re Marriage of Weibel, 965 P.2d 126 (Colo.App.1998).

The judgment is affirmed.

Judge DAVIDSON and Judge STERNBERG , concur.