Barbara Runge v. Barbara Runge , 415 P.3d 884 ( 2018 )

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
February 22, 2018
2018COA23
No. 16CA1492, In re the Marriage of Runge — Family Law —
Civil Procedure — Court Facilitated Management of Domestic
Relations Cases — Disclosures — Topical subject keywords
A division of the court of appeals considers whether wife’s
motion under C.R.C.P. 16.2(e)(10), filed one day before expiration of
the five-year period where the court retains jurisdiction to allocate
material assets or liabilities, stated sufficient grounds to trigger
discovery and allocation of assets under the rule. The majority
affirms that the district court had jurisdiction to consider wife’s
motion and concludes that the “plausibility” standard, which was
announced in Warne v. Hall, 2016 CO 50, does not apply to a
motion under C.R.C.P. 16.2(e)(10) and that wife’s motion did not
state sufficient grounds to trigger an allocation of assets under the
rule. The dissent would vacate the district court’s order dismissing
wife’s motion on the basis that the district court lost jurisdiction to
consider the motion.
COLORADO COURT OF APPEALS 2018COA23
Court of Appeals No. 16CA1492
Boulder County District Court No. 10DR1467
Honorable Bruce Langer, Judge
In re the Marriage of
Barbara Runge,
Appellant,
and
David Allen Runge,
Appellee.
ORDER AFFIRMED
Division I
Opinion by JUDGE FURMAN
Richman, J., specially concurs
Taubman, J., dissents
Announced February 22, 2018
Robert E. Lanham, P.C., Robert E. Lanham, Boulder, Colorado, for Appellant
Litvak Litvak Mehrtens and Carlton, P.C., Ronald D. Litvak, John C. Haas,
Colorado Springs, Colorado, for Appellee
¶1 In this post-dissolution of marriage dispute between Barbara
Runge (wife) and David Allen Runge (husband), wife moved under
C.R.C.P. 16.2(e)(10) to discover and allocate assets that she alleged
husband did not disclose or misrepresented in the proceedings
surrounding their 2011 separation agreement. Husband moved to
dismiss wife’s motion. In a written order, the district court granted
husband’s motion to dismiss, ruling that wife’s motion did not state
sufficient grounds to trigger discovery and allocation of assets
under the rule.
¶2 On appeal, wife challenges the district court’s order. She
contends that the district court erred by (1) not applying the
“plausibility” standard, which was announced in Warne v. Hall,
2016 CO 50, when granting husband’s motion to dismiss; and (2)
ruling that she did not state sufficient grounds in her motion. She
also contends that the court should have at least allowed her to
conduct discovery to prove her allegations.
¶3 We conclude that the Warne “plausibility” standard does not
apply to the dismissal of a motion under C.R.C.P. 16.2(e)(10). We
also agree with the district court that wife’s motion did not state
1
sufficient grounds to trigger an allocation of assets or discovery
under the rule. Accordingly, we affirm the district court’s order.
¶4 As an initial matter, husband contends that the district court
lacked subject matter jurisdiction under C.R.C.P. 16.2(e)(10)
because the five-year period during which it may reallocate assets
expired the day after wife moved for such relief. We disagree.
¶5 C.R.C.P. 16.2(e)(10) establishes a five-year period where the
court retains jurisdiction to “allocate” material assets or liabilities
that were not allocated as part of the original decree. It does not,
however, limit the court’s jurisdiction to rule on timely motions if
the five-year period expires before the ruling. Therefore, the
majority concludes that the district court had jurisdiction to rule on
the motion because wife’s motion was timely — it was filed within
the five-year period under the rule. C.R.C.P. 16.2(e)(10).
¶6 Because we affirm the court’s dismissal of wife’s motion, this
opinion does not decide whether the court would have had
jurisdiction to allocate assets if it had granted wife’s motion. The
separate concurring opinion of Judge Richman concludes that the
district court retained jurisdiction to both rule on the motion and
allocate assets if necessary. The dissent of Judge Taubman
2
concludes that the district court’s jurisdiction to consider the
motion was lost as soon as the five-year period expired.
I. The Separation Agreement
¶7 The parties, with assistance of counsel, entered into a
separation agreement in 2011 to end their twenty-seven-year
marriage. They requested that the district court find the agreement
to be fair and not unconscionable, and incorporate it into the
dissolution decree. The court did so.
¶8 Four years and 364 days later, wife moved to reopen the
property division provisions of the agreement under C.R.C.P.
16.2(e)(10), contending that husband did not disclose and had
misrepresented assets during the dissolution case.
¶9 In response, husband moved to dismiss wife’s request, arguing
that she had not sufficiently alleged facts showing either material
omissions or misrepresentations. He also argued in his reply that
the district court lacked subject matter jurisdiction under the rule
because the five-year period during which it may reallocate assets
expired the day after wife moved for such relief.
¶ 10 The district court rejected husband’s jurisdictional argument,
but it granted his motion to dismiss, ruling that wife had not made
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a sufficient showing under C.R.C.P. 16.2 that husband had failed to
provide material information.
II. C.R.C.P. 16.2
¶ 11 The purpose of C.R.C.P. 16.2 is to provide uniform case
management procedures and to reduce the negative impact of
adversarial litigation in domestic relations cases. See C.R.C.P.
16.2(a); In re Marriage of Schelp, 228 P.3d 151, 155, 157 (Colo.
2010); In re Marriage of Hunt, 2015 COA 58, ¶ 9. The rule imposes
heightened affirmative disclosure requirements for divorcing
spouses and allows dissolution courts to reallocate assets in the
event that material misstatements or omissions were made by a
spouse. See Schelp, 228 P.3d at 155; Hunt, ¶ 9; see also C.R.C.P.
16.2(e).
¶ 12 Regarding disclosure, the rule imposes a special duty of
candor on divorcing spouses, which includes “full and honest
disclosure of all facts that materially affect their rights and
interests.” C.R.C.P. 16.2(e)(1); see Schelp, 228 P.3d at 156. In
discharging this duty, “a party must affirmatively disclose all
information that is material to the resolution of the case without
awaiting inquiry from the other party.” C.R.C.P. 16.2(e)(1); see
4
Schelp, 228 P.3d at 156. The rule requires certain mandatory
financial disclosures, which are specified in the appendix to the
rule, and a sworn financial statement with supporting schedules.
See C.R.C.P. 16.2(e)(2) & app. form 35.1; Hunt, ¶¶ 13-15. It further
imposes a general duty on the parties “to provide full disclosure of
all material assets and liabilities.” C.R.C.P. 16.2(e)(10); see Hunt,
¶ 17.
¶ 13 And, as relevant here, C.R.C.P. 16.2(e)(10) provides that,
[i]f the disclosure contains misstatements or
omissions, the court shall retain jurisdiction
after the entry of a final decree or judgment for
a period of 5 years to allocate material assets
or liabilities, the omission or non-disclosure of
which materially affects the division of assets
and liabilities.
See Schelp, 228 P.3d at 156; Hunt, ¶ 17.
III. Warne Plausibility Standard
¶ 14 We first address wife’s contention that the district court erred
by not applying the “plausibility” standard, which was announced
in Warne v. Hall, 2016 CO 50, when granting husband’s motion to
dismiss. We conclude that the Warne plausibility standard
governing motions to dismiss under C.R.C.P. 12(b)(5) does not apply
to wife’s motion under C.R.C.P. 16.2.
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¶ 15 We review de novo whether the district court applied the
correct standard in dismissing wife’s motion. See Ledroit Law v.
Kim, 2015 COA 114, ¶ 47.
¶ 16 Under the “plausibility” standard from Warne, a complaint
must “state a claim for relief that is plausible on its face” to avoid
dismissal under C.R.C.P. 12(b)(5) for failure to state a claim.
Warne, ¶¶ 1, 5 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2007)).
But, we conclude that C.R.C.P. 12(b)(5) does not apply here, and,
thus, neither does the Warne standard. We reach this conclusion
for two reasons.
¶ 17 First, husband did not cite C.R.C.P. 12(b)(5) as authority for
his motion to dismiss, nor did the parties argue a C.R.C.P. 12(b)(5)
standard to the district court.
¶ 18 Second, by its express terms, C.R.C.P. 12(b)(5) applies to a
defense “to a claim for relief in any pleading” when that defense
asserts a “failure to state a claim upon which relief can be granted.”
(Emphasis added.) “A motion is not a pleading.” People v.
Anderson, 828 P.2d 228, 231 (Colo. 1992) (quoting Capitol Indus.
Bank v. Strain, 166 Colo. 55, 58, 442 P.2d 187, 188 (1968)).
6
¶ 19 Indeed, C.R.C.P. 7(a) identifies the pleadings in an action as
the complaint and answer, a reply to a counterclaim, an answer to
a cross-claim, a third-party complaint and answer, and a reply to
an affirmative defense. See In re Estate of Jones, 704 P.2d 845, 847
(Colo. 1985) (defining pleadings as “the formal allegations by the
parties of their respective claims and defenses”). The rule
distinguishes a pleading from a motion, defining a motion as an
“application to the court for an order.” C.R.C.P. 7(a), (b)(1); see
Winterhawk Outfitters, Inc. v. Office of Outfitters Registration, 43
P.3d 745, 747-48 (Colo. App. 2002) (distinguishing under C.R.C.P.
7 a “motion,” meaning a written or oral request for the court to
make a particular ruling or order, from a “pleading,” which includes
the complaint, answer, and reply in a case); see also § 14-10-
105(1), (3), C.R.S. 2017 (Colorado rules of civil procedure apply to
dissolution proceedings and the pleadings in such cases shall be
denominated as provided in those rules except that the initial
pleading shall be denominated a petition and the responsive
pleading shall be denominated a response); cf. In re Marriage of
Plank, 881 P.2d 486, 487 (Colo. App. 1994) (noting that pleadings
in a dissolution case include the petition and response and,
7
therefore, spouse’s post-dissolution motion for writ of garnishment
was not a new “action” but rather a motion ancillary to the original
dissolution action).
¶ 20 Accordingly, because wife’s motion was not a pleading and
husband’s motion to dismiss was not pursuant to C.R.C.P. 12(b)(5),
we conclude that the district court did not err by not applying the
Warne standard.
IV. Wife’s Allegations
¶ 21 We next address whether wife stated sufficient grounds in her
motion to trigger an allocation of undisclosed or misstated assets
under C.R.C.P. 16.2(e)(10). We conclude that she did not. Thus,
we also conclude that further proceedings were not required.
¶ 22 We review de novo the district court’s interpretation of
C.R.C.P. 16.2 in determining the sufficiency of wife’s allegations.
See Hunt, ¶ 10.
¶ 23 Wife contends that husband omitted certain business entities
and interests from his sworn financial statements and the
separation agreement. She also contends that he misrepresented
(1) the value of his primary business interest, Tax Law Solutions, by
stating that the value was “unknown”; and (2) the amount of
8
mortgage debt on the marital residence, which he asserted was $1.4
million.
¶ 24 But, the record reflects that before the parties entered into the
separation agreement, husband advanced funds for wife to hire an
accounting expert to investigate their financial circumstances; he
gave the accountant and wife, through her attorney, voluminous
documents, including personal and business bank statements,
trust documents, records concerning his offshore interests, and his
own accounting expert’s report; and he and his expert testified and
were cross-examined at length at the temporary orders hearing.
¶ 25 Nothing in C.R.C.P. 16.2(e) limits a court’s consideration of the
parties’ sworn financial statements or their separation agreement
when determining the adequacy of financial disclosures. To the
contrary, the rule requires specific financial disclosures, with which
husband certified compliance, and imposes a general duty to
disclose “all facts that materially affect” the parties’ rights and
interests and “all material assets and liabilities.” C.R.C.P.
16.2(e)(1)-(2), (10). Hence, as the district court did, we consider all
forms of husband’s pre-decree disclosure, including his retaining
accounting experts, the documentation provided to wife and her
9
expert, and the information testified to at the 2011 temporary
orders hearing.
¶ 26 In doing so, we conclude that Hunt, on which wife relies, is
materially distinguishable from the present case. In Hunt, it was
undisputed that the husband had failed to disclose certain specific
items that are listed for mandatory disclosure in the appendix to
C.R.C.P. 16.2 — three years of personal and business financial
statements, loan applications and agreements, and appraisals —
before the parties entered into their memorandum of understanding
(MOU) to resolve their dissolution case. See Hunt, ¶¶ 13-15; see
also C.R.C.P. 16.2(e)(2) & app. form 35.1. A division of this court
held that because the husband admittedly did not disclose the
required items, the district court had erred in not granting the
wife’s C.R.C.P. 16.2(e)(10) motion to reopen the MOU’s property
division. Hunt, ¶¶ 15-18. But, the division further noted that but
for the husband having violated the disclosure requirements of the
rule, the wife “would have been bound by her decision to enter into
the MOU, acknowledging the uncertain value” of his business
interest. Id. at ¶ 19; see also id. at ¶¶ 31-36 (Jones, J., specially
concurring) (emphasizing the narrowness of Hunt’s holding).
10
¶ 27 Wife does not allege that husband failed to disclose any
specific item mandated under the rule, and husband certified, as
the rule requires, that he had provided all such items. See C.R.C.P.
16.2(e)(2), (7). Instead, as the district court noted, wife asserts her
suspicions and speculations that husband “likely” failed to disclose
and misrepresented material assets. For example, she argues in
her opening brief that “[i]t is at least plausible, if not very likely,
that Husband failed to provide . . . information that would
presumably have given [her] the opportunity to make a more
informed decision” when entering into the separation agreement.
And, she describes the affidavits she obtained from husband’s
colleagues as “rais[ing] significant concerns” regarding his “assets
and business practices.” Such vague assertions are not sufficient
to trigger an allocation of omitted or misstated assets under
C.R.C.P. 16.2(e)(10) in light of the information wife had pre-decree.
¶ 28 For example, at the February 14, 2011, temporary orders
hearing, wife’s attorney admitted while cross-examining husband
that they had received “an awful lot of documents” from him, as had
their accounting expert. Wife further described two boxes of
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documents that had been produced at a meeting at husband’s
accounting expert’s office with wife and her expert.
¶ 29 And, at the same 2011 hearing, wife’s attorney acknowledged
in opening statement that the parties’ dissolution case was going to
be complicated because there were between thirty and fifty entities
that husband owns or in which he has an interest. The attorney
further stated that he planned to schedule “a couple of depositions”
in order to “look into [husband’s offshore] trust in much greater
detail,” acknowledging that “I do have copies” of the trust
documents. The attorney also stated, looking at husband’s exhibit
showing that Tax Law Solutions generated over $2 million in
revenue in 2009 and $1.6 to $1.8 million in 2010, “[t]hat [it] is
going to take a lot of time to value.” He also noted that the exhibit
listed fifty-six other entities to which husband had some
connection, that this was “not a simple case,” and that the case was
“going to take a lot of time.”
¶ 30 Yet, with the extensive documentation husband provided in
hand and armed with her own accounting expert to analyze that
extensive documentation, wife nonetheless chose to enter into the
separation agreement only a month after the temporary orders
12
hearing. She presumably did not wait to (1) value Tax Law
Solutions as her attorney intended to do; (2) allow her expert to
review husband’s trust documents, which her attorney confirmed
they received; or (3) investigate husband’s other business entities or
interests, including those offshore, which they knew existed and
concerning which husband testified they had documents. She
chose instead to sign the separation agreement that allocated the
marital residence debt free plus $1,100,000 in cash to her and
allocated all of husband’s business interests to him.
¶ 31 We acknowledge that C.R.C.P. 16.2(e)(1)-(2) does not impose a
duty on wife to conduct discovery to obtain required financial
information from husband. See Schelp, 228 P.3d at 156; Hunt,
¶ 14. But, wife’s own attorney stated at the hearing that a lot of
documentation had been produced; that he planned to look into
that information in greater detail, conduct discovery, and obtain a
valuation of husband’s primary business interest; and that the case
was complicated and was going to take a lot of time to litigate.
Nonetheless, wife instead chose to enter into the separation
agreement shortly thereafter. We do not interpret C.R.C.P.
13
16.2(e)(10) as permitting a reallocation of assets under these
circumstances.
¶ 32 Essentially, in her “motion regarding undisclosed assets,” wife
requested to conduct the discovery into and analysis of husband’s
financial and business interests that her attorney had planned to
do and the analysis that could have been done by her attorney and
accounting expert in 2011 before the separation agreement was
signed. We agree with the district court that C.R.C.P. 16.2(e)(10)
was not intended to create a right for an ex-spouse to conduct
discovery into the other spouse’s assets post-decree. Nothing in the
plain language of the rule indicates such a result, which would
contravene established public policy in family law cases. See
Mockelmann v. Mockelmann, 121 P.3d 337, 340 (Colo. App. 2005)
(noting that allowing divorced parties “to perpetuate disputes long
after the entry of permanent orders” is “counter to the strong public
policy favoring the finality of judgments” in family law actions). Nor
does the rule permit a spouse to revalue assets that were disclosed
pre-decree. See Hunt, ¶ 19.
¶ 33 We must interpret the rules of civil procedure consistent with
principles of statutory construction, according to the plain and
14
ordinary meanings of the words used. See § 2-4-101, C.R.S. 2017;
Hiner v. Johnson, 2012 COA 164, ¶ 13. Hence, we may not
“judicially legislate” by reading the rule “to accomplish something
the plain language does not suggest, warrant or mandate.”
Scoggins v. Unigard Ins. Co., 869 P.2d 202, 205 (Colo. 1994).
¶ 34 The remedy created by the C.R.C.P. 16.2(e)(10) is
extraordinary and also very narrow. Under the rule, the court
retains jurisdiction for a period of five years after a dissolution
decree is entered “to allocate material assets or liabilities, the
omission or non-disclosure of which materially affects the division
of assets and liabilities.” C.R.C.P. 16.2(e)(10). The rule says
nothing about “reopening” a case for the purpose of allowing
discovery, as wife requested in her motion. Thus, in our view,
neither the language of the rule nor Hunt rescues wife from the
consequences of her own decision to settle her dissolution case
without fully evaluating the information that husband had provided
to her pre-decree.
¶ 35 We are not persuaded by wife’s arguments that husband’s
pre-decree disclosures of the value of Tax Law Solutions as
“unknown” and of $1.4 million in mortgage debt on the marital
15
home were misleading. Regarding the value of Tax Law Solutions,
the rule requires disclosure of material “facts,” “information,” and
“assets and liabilities.” See C.R.C.P. 16.2(e)(1), (10). It does not
mandate that husband provide his opinion of the value of a
disclosed asset. See Shirley v. Merritt, 147 Colo. 301, 307, 364 P.2d
192, 196 (1961) (“Value is, of course, a matter of opinion and not of
fact . . . .”).
¶ 36 Again, the present situation is unlike that in Hunt, where the
spouse had failed to disclose existing pre-decree appraisals of his
business and loan applications stating a value for his interest in the
business. See Hunt, ¶¶ 12-15. Wife instead merely speculates here
that husband “likely” misrepresented the value of Tax Law
Solutions because an appraisal done two years after the decree
indicated that the business was worth nearly $5 million.
¶ 37 C.R.C.P. 16.2 addresses pre-decree disclosures, omissions,
and misrepresentations. Obviously, husband could not have
disclosed or omitted a valuation opinion that did not exist pre-
decree. Nor could he have misrepresented value based on such an
opinion. A 2013 valuation is not relevant to determining the value
of Tax Law Solutions for purposes of the 2011 dissolution. See §
16
14-10-113(5), C.R.S. 2017 (property shall be valued for purposes of
disposition on dissolution at the time of the decree or the hearing
on disposition, whichever is earlier); see also In re Marriage of
Nevarez, 170 P.3d 808, 813 (Colo. App. 2007).
¶ 38 And, wife knew that the 2011 value of Tax Law Solutions was
presented as “unknown” when she signed the separation
agreement. At the temporary orders hearing just one month earlier,
wife’s own attorney had emphasized on the record the need to value
that particular asset and the time it would take to do so. Thus,
unlike the spouse in Hunt, wife is bound by her decision to enter
into the separation agreement without ever obtaining a pre-decree
valuation for husband’s primary business. See Hunt, ¶ 19.
¶ 39 Regarding the mortgage on the marital home, the record
reflects that wife was well aware before entering into the separation
agreement that this mortgage was not an arm’s length transaction
because husband had an ownership interest in the mortgage
company, Meridian Trust. Wife testified at the 2011 hearing that
husband had told her that they “needed a mortgage deduction” so
he had set up a trust to loan money to them. She described the
mortgage as “not a real mortgage” because husband effectively
17
makes the payments to himself. The circumstances of this
mortgage were not undisclosed or misrepresented. Rather,
according to wife’s own testimony, husband told her about them.
Thus, wife’s allegations regarding these circumstances are not
sufficient to trigger the undisclosed asset allocation remedy under
C.R.C.P. 16.2(e)(10).
V. Conclusion
¶ 40 The district court correctly determined that wife did not allege
a sufficient basis for it to allocate misstated or omitted assets under
C.R.C.P. 16.2(e)(10). The rule was not intended to protect a party
from choosing, perhaps unwisely, to settle a dissolution case after
acknowledging the complexity of and before fully evaluating the
information provided by the other party. Nor does it provide for
post-decree discovery into an ex-spouse’s assets. We will not
extend the plain language of the rule or the disposition in Hunt to
permit such discovery or to compel an allocation of assets under the
circumstances here.
¶ 41 The order is affirmed.
JUDGE RICHMAN specially concurs.
JUDGE TAUBMAN dissents.
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JUDGE RICHMAN, specially concurring.
¶ 42 I concur with Judge Furman that wife’s request to reopen the
dissolution proceeding was correctly denied by the court. However,
unlike Judge Furman, I believe we must consider husband’s
argument that the court lost subject matter jurisdiction under
C.R.C.P. 16.2(e)(10). See In re Estate of Hossack, 2013 COA 64, ¶
11 (if a court lacks subject matter jurisdiction, any judgment it
renders is void). Because I disagree with husband’s position that
the court lost jurisdiction to consider wife’s motion five years after
the date of the decree, I conclude that the order is valid and vote to
affirm the district court’s order.
¶ 43 As noted by Judge Furman, wife filed her request to reopen
four years and 364 days after the permanent orders were entered.
Husband contends that the court lost jurisdiction when five years
passed — the day after the motion was filed.
¶ 44 Husband’s argument relies on the particular language of the
retention provision, specifically that “the court shall retain
jurisdiction” for a five-year period after the decree. C.R.C.P.
16.2(e)(10). According to husband, under the plain language of the
provision, the court’s jurisdiction to reallocate assets immediately
19
ended when this five-year period expired, regardless of wife’s
pending motion at the time. He argues that had the supreme court
intended jurisdiction to extend beyond five years upon the filing of a
motion within that period, it would have so stated, as other statutes
of limitation do. See, e.g., §§ 13-80-101(1), -102(1), C.R.S. 2017
(providing that certain types of civil actions must “be commenced
within” the particular limitations period). I am not persuaded.
¶ 45 We review de novo the legal issue of whether the district court
had subject matter jurisdiction to consider wife’s motion. See
Egelhoff v. Taylor, 2013 COA 137, ¶ 23.
¶ 46 “A court’s acquisition of subject matter jurisdiction depends
on the facts existing at the time jurisdiction is invoked, and a court
ordinarily does not lose jurisdiction by the occurrence of
subsequent events, even if those events would have prevented
acquiring jurisdiction in the first place.” Thomas v. Fed. Deposit
Ins. Corp., 255 P.3d 1073, 1081 (Colo. 2011); see Secrest v. Simonet,
708 P.2d 803, 807 (Colo. 1985) (jurisdiction once acquired over a
defendant was not then lost after he was removed from the
territory). But cf. People in Interest of M.C.S., 2014 COA 46, ¶¶ 14-
17 (holding that because juvenile court jurisdiction is limited by
20
statute — both at the time a dependency and neglect petition is
filed and at the time a child is adjudicated — to children under the
age of eighteen, the court lost its jurisdiction to adjudicate when the
child turned eighteen after the petition was filed but before
adjudication).
¶ 47 The district court’s jurisdiction to reallocate the parties’ assets
under C.R.C.P. 16.2(e)(10) was properly invoked when wife moved
for that relief within five years from the date of the decree. And,
having been properly invoked, the court’s jurisdiction was not then
lost when the court did not rule on the motion until after the
five-year period had expired. See Secrest, 708 P.2d at 807; cf.
Nickerson v. State, 178 So. 3d 538, 538-39 (Fla. Dist. Ct. App. 2015)
(finding subject matter jurisdiction to order restitution under
similarly worded Florida statute — providing that a court retains
jurisdiction for purposes of ordering restitution for up to five years
from a defendant’s release — when the court’s jurisdiction was
invoked within the five-year period even though it did not act within
that period).
¶ 48 In support of this conclusion, I note that in Schelp, the
supreme court commented that the jurisdiction retention provision
21
supplanted the application of “C.R.C.P. 60(b)’s six-month window,
which formerly operated as a bar for such retained jurisdiction.” In
re Marriage of Schelp, 228 P.3d 151, 156 (Colo. 2010). C.R.C.P.
60(b) expressly sets a period of 182 days from the date of the filing
of the motion, and does not require a decision on the motion within
six months as husband argues.
¶ 49 Husband’s proposed interpretation of C.R.C.P. 16.2(e)(10)
would produce uncertain and absurd results and frustrate the
rule’s stated purpose to create uniformity in domestic relations
cases. See C.R.C.P. 16.2(a). Under his interpretation, the deadline
for a party to move for relief under the rule would be uncertain and
would necessarily depend on the state of the docket in the
particular jurisdiction. It would be impossible for a party to predict
when a realistic filing deadline for such a motion might be. I would
not adopt such an interpretation. See § 2-4-201(1)(c), C.R.S. 2017
(statute is presumed to intend a just and reasonable result); In re
Marriage of Hunt, 2015 COA 58, ¶¶ 22-23 (refusing to interpret
C.R.C.P. 16.2 in a manner requiring an absurd or unreasonable
result or frustrating one of its stated goals); see also Schwankl v.
Davis, 85 P.3d 512, 516-17 (Colo. 2004).
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¶ 50 Finally, I question the efficacy of the suggestion in Judge
Taubman’s dissent that a nunc pro tunc order could be employed in
a case where the district court was not given sufficient time to
address a motion to reopen. In Dill v. County Court, 37 Colo. App.
75, 77, 541 P.2d 1272, 1273 (1975), a division of the court of
appeals concluded that a nunc pro tunc judgment may not be used
“to circumvent the time requirements of the rules of procedure” and
resurrect an appeal that was untimely filed. In Mark v. Mark, 697
P.2d 799, 801 (Colo. App. 1985), overruled by Robbins v. A.B.
Goldberg, 185 P.3d 794 (Colo. 2008), our court cited Dill for the
proposition that “a trial court may not regain jurisdiction, once it
has been lost, by purporting to act in the past” through a nunc pro
tunc judgment.
¶ 51 Although Goldberg, the case cited by Judge Taubman to
support the use of a nunc pro tunc judgment, overruled Mark, it did
not address Dill. And in People v. Sherrod, 204 P.3d 466, 469 (Colo.
2009), the supreme court cited Dill in discussing “whether nunc pro
tunc orders can cure jurisdictional defects,” but ultimately did not
decide that question.
23
¶ 52 I thus question whether use of a nunc pro tunc judgment
could would allow a district court to decide a motion to reopen after
the five-year jurisdictional period has run, as suggested by Judge
Taubman.
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JUDGE TAUBMAN, dissenting.
¶ 53 In my view, the threshold ― and dispositive ― question in this
case is whether the trial court had subject matter jurisdiction under
C.R.C.P. 16.2(e)(10) to consider the motion of Barbara Runge (wife)
to reopen the marital property division entered four years and 364
days earlier in her dissolution of marriage action. Because I believe
that rule provides the trial court with subject matter jurisdiction to
consider such motions for up to five years from the date of
permanent orders, I disagree with Judge Furman and Judge
Richman rejecting the argument of David Allen Runge (husband)
that the trial court had lost subject matter jurisdiction to consider
wife’s motion. I also disagree with Judge Richman’s conclusion that
the trial court had jurisdiction to rule on wife’s motion.
¶ 54 Barbara and David Allen Runge divorced in 2011. The decree
of dissolution was entered on April 22, 2011. One day shy of five
years later, on April 21, 2016, wife filed a motion to reopen the
property portions of the dissolution decree under C.R.C.P.
16.2(e)(10). In her motion, wife made general allegations that
husband had either hidden or undervalued assets. The record
provides no explanation for wife’s decision to file her motion one day
25
shy of the five-year jurisdictional provision of that rule. The district
court ruled that it had jurisdiction to consider wife’s motion, but
ultimately dismissed her motion after concluding that wife “ha[d]
not made a sufficient showing” that husband failed to provide
material financial information.
¶ 55 “[S]ubject matter jurisdiction concerns the court’s authority to
deal with the class of cases in which it renders judgment, not its
authority to enter a particular judgment in that class.” Minto v.
Lambert, 870 P.2d 572, 575 (Colo. App. 1993). “Whether a court
possesses . . . jurisdiction is generally only dependent on the nature
of the claim and the relief sought.” Trans Shuttle, Inc. v. Pub. Utils.
Comm’n, 58 P.3d 47, 50 (Colo. 2002). “[I]n determining whether a
court has subject matter jurisdiction, it is important to distinguish
between cases in which a court is devoid of power and those in
which a court may have inappropriately exercised its power.” SR
Condos., LLC v. K.C. Constr., Inc., 176 P.3d 866, 869-70 (Colo. App.
2007). If a court acted when it was devoid of power, it acted
without jurisdiction and any judgment rendered is void. In re
Marriage of Stroud, 631 P.2d 168, 170 (Colo. 1981).
26
¶ 56 Rule 16.2(e)(10) requires that, at the outset of a dissolution of
marriage action, the parties must “provide full disclosure of all
material assets and liabilities.” If such financial disclosures contain
“misstatements or omissions, the court shall retain jurisdiction
after the entry of a final decree or judgment for a period of 5 years
to allocate material assets or liabilities, the omission or
non-disclosure of which materially affects the division of assets and
liabilities.”
¶ 57 Rule 16.2 was promulgated in 2005 in an effort to reform the
“procedure for the resolution of all issues in domestic relations
cases.” C.R.C.P. 16.2(a); see also In re Marriage of Schelp, 228 P.3d
151, 155 (Colo. 2010). Rule 16.2 sets forth comprehensive
disclosure and discovery requirements and allows for tailored case
management. See generally C.R.C.P. 16.2(a). The rule was “the
culmination of five years of pilot projects statewide and two years of
drafting by a subcommittee of the Supreme Court Standing
Committee on Family Issues.” David M. Johnson et al., New Rule
16.2: A Brave New World, 34 Colo. Law. 101, 101 (Jan. 2005). It
was drafted with significant input from “the Bench and Bar.” Id.
27
¶ 58 As Judge Richman notes, the Schelp court stated that Rule
16.2(e)(10) “renders inactive” C.R.C.P. 60(b), “which formerly
operated as a bar” to retained jurisdiction by requiring that parties
in most circumstances file a post-decree challenge within six
months. Schelp, 228 P.3d at 156. Thus, Rule 16.2(e)(10)
supplanted Rule 60(b) in the context of post-decree challenges
based on nondisclosure of material assets or liabilities. See id.
Significantly, Rule 60(b) set a filing deadline whereas Rule
16.2(e)(10) states that the court “shall retain jurisdiction” for five
years after the entry of a final decree or judgment. Compare
C.R.C.P. 60(b), with C.R.C.P. 16.2(e)(10).
¶ 59 On appeal, husband asserts that Rule 16.2(e)(10) strips a
court of jurisdiction to consider a post-decree challenge based on
financial nondisclosure five years after the date of the decree. That
is, husband contends the rule imposes a limit on a district court’s
jurisdiction. In response, wife contends that the rule imposes a
mere filing deadline, and does not require the court to act within
the five-year window. In other words, wife views the rule as a
claims processing provision. I agree with husband’s reading of Rule
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16.2(e)(10) and would therefore conclude that the district court lost
jurisdiction to consider wife’s motion the day after she filed it.
¶ 60 Rules of statutory construction apply to the interpretation of
rules of civil procedure. Watson v. Fenney, 800 P.2d 1373, 1375
(Colo. App. 1990). Thus, the primary task in construing a rule is to
ascertain and to give effect to the intent of the adopting body. Id.
To discern that intent, a court should look first to the language of
the rule, giving words and phrases their plain and ordinary
meanings. See People v. Dist. Court, 713 P.2d 918, 921 (Colo.
1986). If the language of a rule is clear, there is no need to resort to
other rules of construction. Watson, 800 P.2d at 1375.
¶ 61 I consider the meaning of Rule 16.2(e)(10) plain: a district
court retains jurisdiction to reopen a dissolution decree for five
years after the decree’s entry. Once five years have passed since
the date of permanent orders, the court loses jurisdiction under
Rule 16.2(e)(10) to consider a motion to reopen a property division
in a dissolution of marriage case. No Colorado case law contradicts
this reading of the rule, and in fact some cases support my
interpretation. See generally Schelp, 228 P.3d at 156 (“The five-year
retention provision states that for any disclosures made under the
29
new [Rule 16.2], the court shall retain jurisdiction for a period of five
years after the entry a decree to reallocate assets and liabilities.”)
(emphasis added).
¶ 62 Although Judge Furman appears to apply a plain meaning
interpretation of Rule 16.2(e)(10), I disagree with his construction of
the rule. In his interpretation, a trial court may consider a motion
to reallocate marital assets or liabilities whenever it is filed, but only
retains jurisdiction for five years from the date of permanent orders
if it intends to grant the motion. This novel interpretation was not
argued by the parties or addressed by the trial court. Further, I am
not aware of any decision considering a trial court’s subject matter
jurisdiction which has held that a jurisdictional limit applies to the
granting of a motion, but not to its denial.
¶ 63 I have three concerns about Judge Furman’s interpretation.
First, it does not alert litigants that the five-year period in Rule
16.2(e)(10) applies only when a court intends to grant a motion to
reallocate marital assets and liabilities. Second, it does not account
for other language in this rule that the five-year provision does not
limit other remedies that may be available to a party. Thus, a
litigant filing a motion to reallocate marital assets more than five
30
years after the date of permanent orders would not know whether to
pursue such motion under Rule 16.2(e)(10) or pursue some other
remedy. Indeed, my guess is that after the five-year period has
elapsed, a litigant would never file a motion under this rule.
¶ 64 Third, Judge Furman’s construction of Rule 16.2(e)(10) rests
on the assumption that a trial court will be able to decide a motion
under that rule without affording the moving party an opportunity
to conduct discovery. Here, wife moved for discovery to assist her
in proving the allegations contained in her motion. In this case, as
in many others, discovery may be necessary to establish whether an
initial disclosure of assets and liabilities contained material
misstatements or omissions. While a trial court may be able to rule
in some cases that a motion to reallocate assets and liabilities is
insufficient on its face, in my view most cases will require that some
discovery be undertaken.
¶ 65 While Judge Richman concludes that the district court had
jurisdiction because wife filed her motion within five years of the
date of the decree, I disagree with that interpretation as well, for
several reasons. First, as I have already noted, the plain language
of Rule 16.2(e)(10) is phrased in terms of the district court’s
31
jurisdiction and makes no mention of a date by which a party must
file a motion to reopen. I would give effect to the rule’s plain
language.
¶ 66 Second, when we consider the meaning of rules, “inclusion of
certain items implies the exclusion of others.” Beeghly v. Mack, 20
P.3d 610, 613 (Colo. 2001). I would conclude that the express
inclusion of the word “jurisdiction” in Rule 16.2(e)(10) implies that
the supreme court rejected phrasing the rule as imposing a filing
deadline. In contrast, other procedural rules require that a party
file a motion within a certain window. See C.A.R. 4(a) (requiring
that parties file notice of appeal “within 49 days of the date of the
entry of the judgment, decree, or order from which the party
appeals”); C.R.C.P. 59(a) (“Within 14 days of entry of judgment as
provided in C.R.C.P. 58 or such greater time as the court may allow,
a party may move for post-trial relief.”); C.R.C.P. 60(b) (requiring
that motion for relief from a judgment or order “shall be made
within a reasonable time, and for [certain enumerated claims] not
more than 182 days after the judgment, order, or proceeding was
entered or taken”); see also §§ 13-80-101(1), -102(1), C.R.S. 2017
(requiring that civil actions be “commenced within” certain statutes
32
of limitations periods); cf. In re Fisher, 202 P.3d 1186, 1198 (Colo.
2009) (concluding that C.R.C.P. 251.19(a), which requires that
attorney discipline hearing board “shall prepare” an opinion within
fifty-six days of a hearing, does not state that the board “loses
jurisdiction to rule on a matter if the opinion is not issued within”
that timeframe). Thus, where the Colorado Supreme Court has
intended to create a filing deadline, it has done so. It did not do so
here.
¶ 67 Third, I believe that reading Rule 16.2(e)(10) as creating a
five-year jurisdictional window is in keeping with the intent of
revised Rule 16.2 as a whole. See Dist. Court, 713 P.2d at 921 (“To
reasonably effectuate the legislative intent, a statute must be read
and considered as a whole.”). In light of the rule’s rigorous
mandatory disclosure scheme, see generally C.R.C.P. 16.2(e); see
also C.R.C.P. 16.2 app. form 35.1, I believe that the supreme court
envisioned less frequent post-decree challenges to property
divisions in permanent orders. Thus, a five-year cap on a district
court’s jurisdiction to reopen decrees strikes me as a sensible
limitation, as well as a significant expansion of the prior limitations
of Rule 60(b).
33
¶ 68 Fourth, I do not think that my interpretation of Rule
16.2(e)(10) would lead to the “uncertain and absurd results” that
Judge Richman envisions. He concludes that, if the rule’s plain
meaning were given effect, parties would be forced to predict an
appropriate date to file a motion to reopen based on a district
court’s ability to decide such motion within the five-year
jurisdictional period. However, I do not believe reading Rule
16.2(e)(10) as imposing a jurisdictional limit would engender such
uncertainty.1 In the event that parties discover grounds for
reopening a decree when the five-year window has almost run, they
can file motions requesting a district court to decide the matter
during the five-year period it retains jurisdiction.
¶ 69 Moreover, in my view, the supreme court has set forth an
appropriate remedy for situations in which a district court does not
decide a matter within the jurisdictional window despite being given
sufficient time to do so. In Robbins v. A.B. Goldberg, the supreme
1 On the contrary, Rule 16.2(e)(10) should encourage parties to file
motions to reopen a property division sufficiently in advance of the
jurisdictional deadline to permit the district court to timely rule.
Further, as in Robbins v. A.B. Goldberg, 185 P.3d 794 (Colo. 2008),
the parties can advise the court as necessary of the impending
jurisdictional deadline.
34
court stated that C.R.C.P. 54(h)’s requirement that “[a] revived
judgment must be entered within twenty years after entry of the
original judgment” “was not intended to deprive litigants of a
judgment simply because of court delays.” 185 P.3d 794, 795-96
(Colo. 2008). Thus, the Robbins court held that, if court delay
caused the court to lose jurisdiction, the appropriate remedy was
an entry of judgment nunc pro tunc as of a date within Rule 54(h)’s
twenty-year window. Id. at 797; see also Perdew v. Perdew, 99
Colo. 544, 547, 64 P.2d 602, 604 (1937) (providing that a judgment
nunc pro tunc may be entered “where the cause was ripe for
judgment and one could have been entered at the date to which it is
to relate back, provided [any] failure is not the fault of the moving
party”).
¶ 70 Rule 16.2(e)(10) does “not limit other remedies that may be
available to a party by law.” Thus, in the event a party files a
motion under Rule 16.2(e)(10) but “court congestion or other
administrative delays prevent a court from considering [the] matter
before [the] legal deadline,” a judgment nunc pro tunc as of a date
35
within the five-year window would be appropriate.2 Robbins, 185
P.3d at 796. However, that remedy is not appropriate here, where
wife does not offer any reason for filing her motion only one day
before the jurisdictional deadline and where wife did not alert the
court to its imminent loss of jurisdiction.
¶ 71 Finally, I disagree with wife’s contention, made during oral
argument, that the use of the term “jurisdiction” in Rule 16.2(e)(10)
was “an example of poor drafting” by the Supreme Court Civil Rules
Committee. As I have stated, I find the meaning of the rule plain,
and the extensive drafting process that led to its enactment
suggests that some forethought led to the use of the word
“jurisdiction” in Rule 16.2(e)(10). See generally Johnson et al., 34
Colo. Law. at 101. Even if interpreting Rule 16.2(e)(10) according to
2 Although absence of jurisdiction typically acts as an absolute
restriction on a court’s power to hear a matter, there are exceptions
to that seemingly hard and fast rule. Exhaustion of administrative
remedies is a jurisdictional prerequisite to bringing a suit
challenging an administrative action, but there are several
exceptions to that jurisdictional bar. City & Cty. of Denver v. United
Air Lines, Inc., 8 P.3d 1206, 1213 & n.11 (Colo. 2000) (summarizing
exceptions, including futility and waiver by the agency). Similarly,
timely filing of a notice of appeal is ordinarily a jurisdictional
prerequisite to appellate review, but certain exceptions allow for
appellate review even in the case of untimely filing. See generally In
re C.A.B.L., 221 P.3d 433, 438-40 (Colo. App. 2009).
36
its plain meaning would lead to a result not intended by the
supreme court, “we are not a board of editors” tasked with rewriting
the Rules of Civil Procedure when their meaning is clear. McGihon
v. Cave, 2016 COA 78, ¶ 11, ___ P.3d ___, ___.
¶ 72 Accordingly, I would vacate the district court’s order
dismissing wife’s motion on the basis that the district court lacked
jurisdiction to consider the motion. Because I would vacate the
order rather than affirm on the merits, I respectfully dissent.
37