DeAnna S. Dotson and Robert L. Dotson - Page 7

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          petitioner an ownership interest in Mr. Jefferies’ future retired           
          military pay.                                                               
               We have no reason to question the validity of petitioner’s             
          and Mr. Jefferies’ agreement to divide Mr. Jefferies’ future                
          “military retirement income”.  In Colorado, as elsewhere, parties           
          to a divorce generally “are at liberty mutually to agree upon               
          provisions * * * which the court could not impose upon them.”  In           
          re Marriage of Lamm, 682 P.2d 67, 68 (Colo. Ct. App. 1984)                  
          (upholding validity of separation agreement requiring automatic             
          increases in child support payments according to cost of living             
          increases, despite Colorado courts’ lack of authority to impose             
          such an arrangement).  That said, however, we are not persuaded             
          that the separation agreement gave petitioner any ownership                 
          interest in Mr. Jefferies’ future military retirement pay.  To              
          the contrary, we believe that under Ellis v. Ellis, supra, at the           
          time of petitioner’s separation agreement and divorce decree the            
          future military retirement pay was not “property” in which                  
          petitioner could acquire an ownership interest.                             
               As the Colorado Supreme Court explained in In re Marriage of           
          Balanson, 25 P.3d 28, 35 (Colo. 2001), a determination as to                
          property division in a Colorado divorce proceeding “requires two            
          steps:  first, a court must determine whether an interest                   
          constitutes ‘property’; if so, the court must then determine                
          whether the property is marital or separate.”  The lower court’s            

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