23CA1421 Marriage of Slancik 07-11-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA1421
El Paso County District Court No. 20DR30379
Honorable Erin Sokol, Judge
In re the Marriage of
Michael Ernest Slancik,
Appellee,
and
Rhonda Lee Slancik n/k/a Rhonda Lee Cavanaugh,
Appellant.
ORDER REVERSED AND CASE
REMANDED WITH DIRECTIONS
Division IV
Opinion by JUDGE NAVARRO
Pawar and Richman*, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced July 11, 2024
Beltz & West, P.C., Daniel A. West, Colorado Springs, Colorado, for Appellee
The Drexler Law Group, LLC, Matthew B. Drexler, M. Addison Freebairn,
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. 2023.
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¶ 1 In this dissolution of marriage case, Rhonda Lee Slancik, now
known as Rhonda Lee Cavanaugh (wife), appeals the district court’s
post-decree order that addressed the allocation of her Public
Employees’ Retirement Association (PERA) account and entered a
money judgment against her. We reverse the order and remand for
further proceedings on her request for appellate attorney fees.
I. Relevant Facts
¶ 2 In 2021, the district court dissolved wife’s marriage with
Michael Ernest Slancik (husband) and entered permanent orders.
The court found that wife’s PERA account was a marital asset, from
which she received benefits of $3,797 per month. The court
ordered the equal division of the PERA account via the time rule
formula set forth by In re Marriage of Hunt, 909 P.2d 525, 532
(Colo. 1995), and In re Marriage of Gallo, 752 P.2d 47, 55 (Colo.
1988). The court generally noted wife’s “agreement.” The court
directed the parties to use a qualified domestic relations order
(QDRO) to divide the account and pay husband his share.
¶ 3 Wife appealed the district court’s permanent orders, and a
division of this court affirmed. See In re Marriage of Slancik, (Colo.
App. No. 21CA0871, Sept. 15, 2022) (not published pursuant to
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C.A.R. 35(e)) (Slancik I). She did not challenge the court’s allocation
of her PERA account.
¶ 4 During the pendency of that appeal, wife did not sign the
QDRO, and husband filed a motion to have the QDRO executed on
wife’s behalf. The district court granted husband’s request and
ordered wife to execute any other documents necessary to effectuate
the division of her PERA account.
¶ 5 The district court later determined that, by statute, it did not
have jurisdiction to order the division of wife’s PERA account
without her written agreement. The court withdrew its previous
orders to enforce its allocation of the PERA account, including the
execution of the QDRO. The court noted that it could not revisit its
permanent orders while the appeal was pending but, to give effect to
its allocation of the PERA account, it would need to do so when the
mandate was issued.
¶ 6 Following that mandate, husband filed, as relevant here, a
motion for the entry of judgment against wife. He alleged that,
based on his calculation, he was entitled to approximately $1,300
per month from wife’s PERA account benefits and that wife was not
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giving him his share. He requested an entry of judgment for the
approximately $35,000 unpaid to him since permanent orders.
¶ 7 The district court denied his motion. The court explained
that, given its previous determination that it lacked jurisdiction to
divide wife’s PERA account as it had done in its permanent orders,
it must first amend the judgment to implement an alternative
payment mechanism. The court directed husband to file a new
motion clarifying, among other things, how he wished to have the
court amend its permanent orders.
¶ 8 Husband filed a renewed motion and asked the district court
to order wife to pay him monthly for his share of the PERA account
benefits. He also asked the court to enter judgment against her for
the $35,000 that she had not paid since permanent orders.
¶ 9 Relying on C.R.C.P. 60(a), the district court amended its
permanent orders, and it granted husband’s request, ordering wife
to pay him directly his share of the PERA account, nunc pro tunc to
the date of the 2021 judgment. And the court entered a judgment
of approximately $35,000 against wife.
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II. C.R.C.P. 60(a)
¶ 10 Wife contends that the district court erred by substantively
modifying its permanent orders under C.R.C.P. 60(a). We agree.
A. Governing Legal Principles
¶ 11 After a final judgment is entered in a dissolution of marriage
case, the district court may not alter, amend, or vacate its
allocation of the marital estate unless it finds conditions justifying
reopening the judgment under C.R.C.P. 59 or C.R.C.P. 60. See
§ 14-10-122(1)(a), C.R.S. 2023; Koch v. Dist. Ct., 948 P.2d 4, 7
(Colo. 1997).
¶ 12 C.R.C.P. 60(a) allows a district court, at any time, to correct
“[c]lerical mistakes in judgments, orders, or other parts of the
record and errors therein arising from oversight or omission.”
¶ 13 We review a district court’s C.R.C.P. 60(a) decision for an
abuse of discretion. Garcia v. Puerto Vallarta Sports Bar, LLC, 2022
COA 17, ¶ 16. The court abuses its discretion when it misapplies
the law. Id. We review de novo the court’s application of the law.
In re Marriage of Medeiros, 2023 COA 42M, ¶ 28.
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B. Analysis
¶ 14 After the mandate in Slancik I, the district court relied on
C.R.C.P. 60(a) to “correct its judgment.” The court explained that it
always intended to allocate husband an equal share of wife’s PERA
account and that due to “circumstances unforeseen” at the time of
its permanent orders, it must amend the allocation of that account.
To effectuate its division of this asset, the court ordered wife to pay
husband directly his marital share from her monthly PERA account
benefits. The court stated that “implement[ing] the mechanical
correction needed here . . . change[d] nothing about the substance
of the judgment or the ultimate liability of the parties” because the
“the end result remain[ed] unchanged.”
¶ 15 C.R.C.P. 60(a) provides a limited means for a district court to
correct a final judgment at any time. See, e.g., Diamond Back
Servs., Inc. v. Willowbrook Water & Sanitation Dist., 961 P.2d 1134,
1136 (Colo. App. 1997). The rule is intended to function “as a
safety valve” when the court enters “an honestly mistaken
judgment” that does not represent the court and the parties’
understanding and expectation. Reisbeck, LLC v. Levis, 2014 COA
167, ¶ 8. The rule applies to errors or omissions by the court, but
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it is confined “to cases in which the [district] court originally
intended to make the award granted by corrective amendment.”
Diamond Back Servs., 961 P.2d at 1136; see also Jennings v. Ibarra,
921 P.2d 62, 65 (Colo. App. 1996) (concluding that C.R.C.P. 60(a)
did “not authorize [an] amendment of a judgment” when the “court
did not originally intend” to include its amended award).
C.R.C.P. 60(a) thus does not permit an unexpected or substantive
change to the judgment, and it does not permit the court to impose
different or additional liabilities on a party. See Reisbeck, ¶¶ 13-15;
see also In re W. Tex. Mktg. Corp. v. Kellogg, 12 F.3d 497, 504 (5th
Cir. 1994) (“[T]he relevant test for the applicability of Rule 60(a) is
whether the change affects substantive rights of the parties and is
therefore beyond the scope of Rule 60(a) or is instead a clerical
error, a copying or computational mistake, which is correctable
under the Rule.”).
¶ 16 The district court did not use C.R.C.P. 60(a) to merely correct
a clerical mistake or an oversight or omission in its original
judgment. The court amended its permanent orders to change the
manner by which it allocated wife’s PERA account because it
determined that its original allocation was legally impermissible.
7
Such an amendment is outside the scope of C.R.C.P. 60(a). See
Weize Co. v. Colo. Reg’l Constr., Inc., 251 P.3d 489, 499 (Colo. App.
2010) (“[T]he trial court’s reliance on C.R.C.P. 60(a) was erroneous
because the correction was based on its statutory interpretation,
not on a clerical mistake.”), superseded by statute on other grounds,
Ch. 279, sec. 1, 2011 Colo. Sess. Laws 1249-50; see also W. Tex.
Mktg. Corp., 12 F.3d at 505 (“Rule 60(a) will not be available to
salvage the government’s blunders. . . . It is only mindless and
mechanistic mistakes, minor shifting of facts, and no new
additional legal perambulations which are reachable through Rule
60(a).”). To put a finer point on it, “Rule 60(a) may not be used to
change something that was deliberately done, . . . even though it
was later discovered to be wrong.” McNickle v. Bankers Life & Cas.
Co., 888 F.2d 678, 682 (10th Cir. 1989) (citation omitted).
¶ 17 In a dissolution of marriage case, the retirement benefits of a
public employee are divisible directly by the retirement plan only
upon the written agreement of the parties. § 14-10-113(6)(a)(I),
C.R.S. 2023; In re Marriage of Tagen, 62 P.3d 1092, 1094 (Colo.
App. 2002). In the absence of an agreement, a court does not have
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jurisdiction to enter an order dividing the public employee
¶ 18 The district court initially ordered the parties to divide wife’s
PERA account through a QDRO and have PERA distribute the
portion allocated to husband. When the court issued those
permanent orders, it did not indicate that it had considered any
alternative ways to effectuate the division of wife’s PERA account.
Only upon learning that the court could not effectuate its division of
wife’s PERA account through a QDRO did the court revisit its
permanent orders and amend the manner by which it allocated this
account.
¶ 19 The district court thus amended wife’s liability to conform with
(determining that, in the absence of the parties’ written agreement,
the court could order the husband to pay the wife a portion of his
PERA benefits as he received his retirement checks). This
amendment required her to take on the additional responsibility of
paying husband directly. See Reisbeck, ¶¶ 13-15. Nothing in the
record indicated that the court ever had the original intent to
implement such a requirement. See Diamond Back Servs., 961 P.2d
9
to equally divide the marital portion of wife’s PERA account,
C.R.C.P. 60(a) did not authorize it to change its permanent orders
and direct an entirely different mechanism when its initial ruling
also W. Tex. Mktg. Corp., 12 F.3d at 505; McNickle, 888 F.2d at 682.
¶ 20 Husband attempts to salvage the district court’s ruling by
arguing that the court had the inherent authority to enforce its
judgment. While a court may use any method prescribed by statute
to enforce its judgment, see § 14-10-118(2), C.R.S. 2023; In re
Marriage of Collins, 2023 COA 116M, ¶ 64, the court is confined to
C.R.C.P. 59 or C.R.C.P. 60 when it seeks to modify a final
dissolution judgment, see § 14-10-122(1)(a); Koch, 948 P.2d at 7.
As discussed above, the court’s order improperly modified its
permanent orders; it did not merely enforce the judgment. We thus
reject this alternative basis. See Mulei v. Jet Courier Serv., Inc., 860
P.2d 569, 571 (Colo. App. 1993) (concluding that the court could
issue an order to enforce its prior decree when that order did not
affect the parties’ substantive rights under the prior judgment).
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¶ 21 Accordingly, we reverse the district court’s post-decree order
that modified the court’s allocation of wife’s PERA account.
1
III. Entry of Judgment
¶ 22 Wife also contends that the district court erred by entering the
judgment against her for the unpaid PERA account benefits. The
court’s determination to enter the money judgment against wife
stemmed from its C.R.C.P. 60(a) ruling that amended the
permanent orders. The parties acknowledge that the resolution of
this issue rests on the validity of the court’s C.R.C.P. 60(a) ruling.
Having reversed that C.R.C.P. 60(a) ruling, we also reverse the
court’s entry of judgment. See Prairie Mountain Publ’g Co. v.
Regents of Univ. of Colo., 2021 COA 26, ¶ 36 (recognizing that when
an underlying judgment is reversed, an award that is dependent on
that judgment for its validity is also reversed); Sharon v. SCC Pueblo
Belmont Operating Co., 2019 COA 178, ¶ 17 (stating that when a
judgment is reversed, the parties return to the same position they
were in before the judgment was rendered).
1
Because we address only whether the district court’s order was
authorized under C.R.C.P. 60(a), we express no opinion as to
whether husband may seek a remedy under any other avenue
available to him.
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IV. PERA Account’s Value
¶ 23 Given our reversal of the district court’s post-decree order, we
need not address wife’s additional contention that the court clearly
erred by finding that her PERA account was valued at $710,563.
¶ 24 To the extent wife attempts to challenge the district court’s
previous rulings that have referenced that value, wife did not timely
appeal those rulings, and we therefore lack jurisdiction to review
them. See C.A.R. 4(a)(1) (requiring a party to file a notice of appeal
within forty-nine days of the entry of judgment); In re Marriage of
James, 2023 COA 51, ¶ 8 (“The timely filing of a notice of appeal is
a jurisdictional prerequisite for appellate review.”).
V. Appellate Attorney Fees
¶ 25 Wife requests an award of attorney fees incurred on appeal
under section 14-10-119, C.R.S. 2023, due to a purported disparity
in the parties’ financial circumstances. Because the district court
is better equipped to determine the factual issues regarding their
current financial resources, we remand this issue to the district
court. See C.A.R. 39.1; Collins, ¶ 86.
¶ 26 Husband also requests an award of appellate attorney fees.
He argues that wife’s appeal lacks substantial justification and that
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he is entitled to attorney fees under section 13-17-102, C.R.S.
2023. Given our disposition, we deny husband’s request. See
Collins, ¶ 87.
VI. Conclusion
¶ 27 The post-decree order amending the district court’s permanent
orders and entering judgment against wife is reversed. The case is
remanded for further proceedings on wife’s request for appellate
attorney fees under section 14-10-119.
JUDGE PAWAR and JUDGE RICHMAN concur.
