 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
In re Marriage of Dale11/20/2003
JUDGMENT AFFIRMED
Dailey and Pierce , JJ., concur
Opinion Modified, and As Modified, Petition for Rehearing DENIED
Opinion modified February 5, 2004
In this dissolution of marriage proceeding, Tondeleyo L. Dale (wife) appeals from the division of property set forth in the trial court's permanent orders. We affirm.
Wife married Christopher T. Major (husband) in 1997, and the decree dissolving their marriage was entered by the trial court in March 2002. The marriage was the second for both, no children were born to the parties, and both parties waived maintenance. Therefore, only property division issues are raised in this appeal.
In reviewing a trial court's division of property, we recognize that the trial court has great latitude to effect an equitable distribution based on the facts and circumstances of each case. Thus, on review, an appellate court must not disturb a trial court's decision regarding division of property unless there has been a clear abuse of discretion. In re Marriage of Balanson, 25 P.3d 28, 35 (Colo. 2001).
I.
Wife asserts that the trial court exceeded its authority by addressing her interests in various family trusts because, under § 14-10-113(7)(b), C.R.S. 2003, those interests could not be considered either as property or an economic circumstance for purposes of the property division. We conclude that the trial court properly addressed wife's vested interest in her grandfather's irrevocable trust, and we need not consider her interest in her parents' revocable trusts.
A.
Remainder interests in irrevocable trusts have been deemed property for purposes of the disposition of property in a dissolution action. Such interests may present only a right to future enjoyment and are subject to complete divestment or defeasance, but they are certain, fixed interests subject only to the condition of survivorship and may not be withheld by the trustee in his or her discretion. Thus, they are distinct from interests in a discretionary or revocable trust, which are viewed as mere expectancies. In re Marriage of Balanson, supra, 25 P.3d at 41.
A division of this court in In re Marriage of Gorman, 36 P.3d 211 (Colo. App. 2001), also determined that a remainder interest in a revocable trust constituted property. The division reasoned that such an interest is vested subject to a condition subsequent. Common conditions triggering divestment include the death of the remainderman during the life of the present beneficiary, the exercise of a power to revoke, or the invasion and depletion of the corpus. The division recognized that if a condition subsequent does not occur, the remainderman's interest will remain vested, thereby establishing that it is a present property interest.
Following the Gorman decision, the General Assembly enacted § 14-10-113(7)(b), which provides:
For purposes of subsections (1) to (4) of this section only, "property" and "an asset of a spouse" shall not include any interest a party may have as an heir at law of a living person or any interest under any donative third party instrument which is amendable or revocable, including but not limited to third-party wills, revocable trusts, life insurance, and retirement benefit instruments, nor shall any such interests be considered as an economic circumstance or other factor.
(Emphasis supplied.)
B.
Wife argues that her interest in the irrevocable trust falls within the exception to property created under § 14-10-113(7)(b) through the phrase, "any interest a party may have as an heir at law of a
Page 1 2 3 4 5 6 7 Colorado Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|