23CA0997 Marriage of Derengowski 07-03-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA0997
El Paso County District Court No. 17DR3699
Honorable Monica J. Gomez, Judge
In re the Marriage of
Tracy Lynn Brookham
Appellee,
and
William Lawrence Derengowski,
Appellant.
APPEAL DISMISSED IN PART
AND ORDER AFFIRMED
Division I
Opinion by JUDGE WELLING
J. Jones and Schock, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced July 3, 2024
No Appearance for Appellee
William Lawrence Derengowski, Pro Se
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¶ 1 In this post-dissolution of marriage proceeding between
William Lawrence Derengowski (husband) and Tracy Lynn
Brookham (wife), husband appeals the district court’s order denying
his motion for half of the tax refund from a 2017 joint return. We
dismiss the appeal of the magistrate’s order and affirm the district
court’s order.
I. Background
¶ 2 The decree and permanent orders ending the marriage
between husband and wife were entered in 2018. The lengthy
record accumulated since that time reveals dozens of motions from
husband, most of which concern a motor home awarded to wife and
the marital joint tax filing for tax year 2017. At least eight motions
sought sanctions against wife for (1) failing to prove that she had
removed his name from any liens on the motor home and/or
(2) failing to file an amended “married filing separately” 2017 tax
return. He failed to achieve his desired relief.
¶ 3 On March 31, 2023, husband filed two additional motions. In
the first motion, he asked for wife to be found in contempt because
her evidence of the motor home lien cancellation was incomplete. A
magistrate denied this motion. In the second motion, husband
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requested one half of the 2017 tax refund in lieu of wife filing an
amended return. The district court denied the request, warning
that it wouldn’t entertain any further motions on the matter.
Husband appeals the district court order, but he also argues that
the court erred by accepting wife’s proof of lien cancellation.
II. Motor Home Issue
¶ 4 The district court’s order is the only order properly on appeal.
To the extent husband also attempts to appeal the magistrate’s
order regarding wife’s proof of the motor home lien cancellation,
that order isn’t properly before us. When, as here, a magistrate
rules on a matter where consent isn’t necessary, a party may not
appeal the magistrate’s order to this court unless the party first files
a timely petition for review to the district court and the district
court rules on the petition. C.R.M. 7(a)(11), (12). Because husband
didn’t petition for district court review of the magistrate’s order, we
don’t have jurisdiction to review it. See In re Marriage of Stockman,
251 P.3d 541, 543 (Colo. App. 2010). Accordingly, we dismiss the
appeal as to the motor home issue.
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III. 2017 Tax Issue
¶ 5 In the June 2018 permanent orders, a magistrate ordered the
parties to “file married filing separately for the 2017 tax year.” But
the April tax filing deadline had already passed, and wife had
already filed a joint return for 2017. She had reported only her
income and received a federal refund of $8,186 and a state refund
of $628 — though she alleges that the latter was “confiscated” and
applied to husband’s overdue restitution.
¶ 6 In 2019, the district court “amended” the final orders as
follows: “The parties shall file separate tax returns for tax year
2017. [Husband] may proceed with filing his own tax return.” Wife
later alleged, with supporting evidence, that the IRS wouldn’t allow
her to amend her return to file separately. See
https://perma.cc/A6TJ-4SMP at 8. And she alleged that husband
had no income in 2017. In his 2023 motion, husband didn’t
dispute either allegation, and he didn’t allege that he would have
been entitled to a refund had he been permitted to file a separate
return. Rather, he alleged that because the parties were still
married when the return was filed, he was entitled to half of the
refund “under Colorado law.”
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¶ 7 We interpret husband’s motion for half of the 2017 tax refund
as a motion to modify the property disposition provisions of the
dissolution decree, and we review de novo whether the district court
¶ 13.
¶ 8 The property disposition provisions of a dissolution decree
may not be modified unless the movant asserts, and the court
finds, conditions that justify reopening a judgment under
C.R.C.P. 59 or C.R.C.P. 60. § 14-10-122(1)(a), C.R.S. 2023; see In
re Marriage of McKendry, 735 P.2d 908, 909 (Colo. App. 1986); see
also In re Marriage of Anderson, 711 P.2d 699, 701 (Colo. App.
1985) (courts may not modify property division terms when the
movant made no attempt to establish the existence of conditions
justifying reopening of the judgment). Husband didn’t cite either
C.R.C.P. 59 or C.R.C.P. 60 — or any other legal authority — as a
basis for his motion. And the district court didn’t apply either rule
or find conditions that justify reopening the final orders, as
mandated by section 14-10-122(1)(a). See In re Marriage of Connell,
831 P.2d 913, 916 (Colo. App. 1992) (court erred by modifying
provision allocating home sale proceeds without first finding
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conditions that justified reopening the judgment). Moreover,
husband’s request to amend the permanent orders was filed well
beyond the 182-day deadline for requesting such relief for mistake,
inadvertence, surprise, or excusable neglect under C.R.C.P. 60(b).
¶ 9 For these reasons, we conclude that the district court lacked
jurisdiction to grant husband’s request and properly denied it. See
Koch v. Dist. Ct., 948 P.2d 4, 7-8 (Colo. 1997); see also In re
Marriage of Mattson, 694 P.2d 1285, 1286 (Colo. App. 1984) (court
had no authority to modify property disposition without making
findings under C.R.C.P. 60(b)).
IV. Disposition
¶ 10 To the extent husband appeals the motor home issue, the
appeal is dismissed. The district court’s order addressing the tax
issue is affirmed.
JUDGE J. JONES and JUDGE SCHOCK concur.
