23CA0920 Marriage of Heap 07-11-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA0920
Boulder County District Court No. 20DR30407
Honorable J. Keith Collins, Judge
In re the Marriage of
Robert Bradford Heap,
Appellant,
and
Carol Linda Vilate,
Appellee.
JUDGMENT AFFIRMED AND CASE
REMANDED WITH DIRECTIONS
Division III
Opinion by JUDGE MOULTRIE
Yun and Davidson*, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced July 11, 2024
The W Law, Emily D. Warren, Carolyn C. Witkus, Denver, Colorado, for
Appellant
Dietze and Davis, P.C., Tucker M. Katz, Boulder, Colorado, for Appellee
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2023
1
¶ 1 Robert Bradford Heap (husband) appeals the permanent
orders entered following the dissolution of his marriage to Carol
Linda Vilate (wife) setting aside as wife’s separate property
$285,000 of equity in the marital home. We affirm.
I. Background
¶ 2 The parties were married in October 1999 and purchased the
marital home in July 2010.
¶ 3 During the marriage, the parties worked together in the
restaurant industry. They owned and operated various
establishments where husband provided the culinary services and
wife managed the business operations. Not all of their restaurant
ventures were successful; before purchasing the marital home, they
lost another home because of debts associated with a failed
restaurant.
¶ 4 When the parties purchased the marital home, wife
contributed $285,000 that she received from her parents — a gift
2
characterized as her “inheritance.”
1
In July 2016, the parties
executed a notarized agreement (July agreement) that, as relevant
here, stated:
[Husband] and [wife], enter into a voluntary
agreement in regards to the sale or distribution
of assets of the [marital home]. The
distribution of assets or funds would be as
follows:
[Wife] will retain the amount of $285,000 that
was given to her . . . by her parents. . . . If the
house is sold [husband and wife] would split
the remaining profits of the house. . . .
¶ 5 Husband filed a petition for dissolution of marriage in
December 2020. During the dissolution proceedings, husband
contested the enforceability of the July agreement as a valid marital
agreement, asserting that (1) he and wife lived separately at the
time of signing the agreement, and he signed the agreement to try
1
Though characterized by wife as an “inheritance,” we conclude the
transfer of funds wife received from her parents is more
appropriately described as a gift because she received and accepted
the funds that her parents intended to give to her. Compare In re
Marriage of Balanson, 25 P.3d 28, 37 (Colo. 2001) (“In order to
qualify as a ‘gift,’ a transfer of property must involve a simultaneous
intention to make a gift, delivery of the gift, and acceptance of the
gift.”), with In re A.M.D., 78 P.3d 741, 743 (Colo. 2003) (“A monetary
inheritance is a particular form of a ‘monetary gift’ — it is simply
testamentary, rather than inter vivos, in nature.”).
3
to keep their marriage together; (2) he didn’t understand what he
was signing due to MDMA therapy he received in the spring of
2015; and (3) the agreement lacked conspicuous waiver language as
required by section 14-2-309(3), C.R.S. 2023.
¶ 6 The district court found the July agreement enforceable
because
(1) the agreement was in writing and signed by both parties;
(2) the parties were not contemplating a dissolution or legal
separation when they signed the agreement;
(3) husband signed the agreement more than a year after
completing MDMA therapy and understood what he was
signing;
(4) the language in the agreement was clear and did not
require conspicuous language as husband did not waive
any rights; and
(5) the agreement was not unconscionable.
¶ 7 The district court then allocated $285,000 of equity in the
marital home to wife as her separate property.
¶ 8 Husband appeals the district court’s finding that the July
agreement was enforceable and its resulting allocation of $285,000
4
in equity to wife as her separate property. Husband also appeals
the district court’s allocation of state and federal tax liabilities.
Both parties request appellate attorney fees.
II. Standard of Review
¶ 9 The classification of property as marital or separate is a legal
determination based on resolution of factual disputes. In re
Marriage of Krejci, 2013 COA 6, ¶ 3. And while we defer to the trial
court’s factual findings, we independently review the legal standard
the court applied. Id.
III. Applicable Legal Principles
A. Disposition of Marital Property
¶ 10 Under the Uniform Dissolution of Marriage Act (UDMA), a
court “shall set apart to each spouse [their] property and shall
divide the marital property” in a proceeding for dissolution of
marriage. § 14-10-113(1), C.R.S. 2023. And “marital property” is
all property acquired by either spouse after the date of marriage
except property described in the four statutory exceptions set forth
5
in section 14-10-113(2).
2
See In re Marriage of Blaine, 2021 CO 13,
¶ 3.
¶ 11 One statutory exception is property “excluded by valid
agreement of the parties.” § 14-10-113(2)(d). However, “[t]he term
‘valid’ is not defined in section 14-10-113. Nor is it defined
anywhere else in the UDMA.” In re Marriage of Zander, 2021 CO 12,
¶ 17. “The term ‘valid’ is ordinarily and naturally understood as
referring to something that is effective and enforceable under the
law.” Id.
¶ 12 Regarding interspousal gifts, the supreme court has held that
“[p]roperty that is placed in joint tenancy by a spouse during the
marriage reflects an intent by the donor spouse to make a gift to the
marriage. Thus, such property may be presumed to be marital
property absent clear and convincing evidence to the contrary.” In
re Marriage of Balanson, 25 P.3d 28, 37 (Colo. 2001) (citations
omitted); see also Krejci, ¶ 2 (a gift by a third-party donor during
2
The exceptions are (1) property acquired by gift, bequest, devise,
or descent; (2) property acquired in exchange for property acquired
prior to the marriage or in exchange for property acquired by gift,
bequest, devise, or descent; (3) property acquired by a spouse after
a decree of legal separation; and (4) property excluded by valid
agreement of the parties. § 14-10-113(2)(a)-(d), C.R.S. 2023.
6
the marriage that increases the value of a jointly titled asset of the
spouses is presumably a gift to the marriage, and that presumption
can only be rebutted by clear and convincing evidence).
B. Marital Agreements
¶ 13 Under the Uniform Premarital and Marital Agreements Act
(UPMAA), a “marital agreement” is “an agreement between spouses
who intend to remain married which affirms, modifies, or waives a
marital right or obligation during the marriage or at . . . marital
dissolution . . . or the occurrence or nonoccurrence of any other
event.” § 14-2-302(2), C.R.S. 2023. A “marital right or obligation”
arises “between spouses because of their marital status” and
includes, but is not limited to, “[a] right to property, including
characterization, management, and ownership.” § 14-2-302(4)(b).
¶ 14 Section 14-2-309 governs enforceability of agreements under
the UPMAA and says that a marital agreement is unenforceable if
the party against whom enforcement is sought proves, as relevant
here, that the agreement did not include a notice of waiver of rights
under section 14-2-309(3) or a plain-language explanation of the
marital rights being modified or waived by the agreement, unless
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the party had independent legal representation when the agreement
was signed. § 14-2-309(1)(c).
¶ 15 Section 14-2-309(3) requires a notice of waiver of rights to
include language “conspicuously displayed” and substantially
similar to the following:
If you sign this agreement, you may be:
Giving up your right to be supported by the
person you are marrying or to whom you are
married.
Giving up your right to ownership or control of
money and property.
Agreeing to pay bills and debts of the person
you are marrying or to whom you are married.
Giving up your right to money and property if
your marriage ends or the person to whom you
are married dies.
Giving up your right to have your legal fees
paid.
§ 14-2-309(3).
¶ 16 Marital agreements, like other contracts, should be construed
to give effect to the parties’ intent, and where the agreement’s terms
are unambiguous, we determine the parties’ intent from the
language of the instrument itself. In re Estate of Gadash, 2017 COA
54, ¶ 40.
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C. Attorney Fees
¶ 17 In any civil proceeding, the court shall assess attorney fees if it
finds that an attorney or party brought or defended an action that
was substantially frivolous, groundless, or vexatious.
§ 13-17-102(4), C.R.S. 2023. Under the UDMA, and after
considering the financial resources of both parties, the court may
order a party to pay to the other party a reasonable amount for the
cost of maintaining or defending any proceeding under the UDMA,
which includes attorney fees. § 14-10-119, C.R.S. 2023.
¶ 18 Under C.A.R. 39(a)(2), if a judgment is affirmed on appeal,
“costs are taxed against the appellant.” And under C.A.R. 39.1,
attorney fees may be recoverable if the appellate court in its
discretion determines the requesting party is entitled to an award of
attorney fees for the appeal. The appellate court may also remand
those determinations to the district court. See id.
IV. Discussion
A. Stipulation Regarding Tax Liabilities and Debt
¶ 19 In November 2023, the parties reached an agreement that
resolved all matters concerning the allocation of tax liabilities and
filed a joint motion requesting to withdraw husband’s tax argument
9
and for a mandate to the district court to adopt the stipulation.
This court granted in part the joint motion to allow husband to
withdraw his tax argument but deferred to the assigned division the
determination of whether to remand the stipulation to the district
court. We conclude that remanding the parties’ tax stipulation to
the district court for adoption as an order of the court is
appropriate.
B. The July Agreement is an Enforceable Marital Agreement
¶ 20 Husband argues
3
that the district court erred in finding the
July agreement enforceable because the agreement lacked a notice
of waiver with conspicuous language as required by section
14-2-309(3). Wife argues that the July agreement is enforceable
because it contained a plain language explanation of the marital
rights husband was modifying or waiving should the marital home
3
At trial, husband argued the July agreement was unenforceable
because he was under “duress” when he signed the agreement
because the parties signed it “right after” husband completed
MDMA therapy. Wife testified that husband completed the MDMA
therapy more than a year before the parties signed the July
agreement, and the district court did not credit husband’s
testimony that his memory was “a little foggy” surrounding the
execution of the agreement. Because husband hasn’t argued the
court’s findings and conclusions on this issue were erroneous here,
we deem this argument abandoned.
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be sold by describing the amount of wife’s separate property
interest ($285,000) and the basis for her claiming it as separate
property.
¶ 21 In reasoning that the July agreement was enforceable, the
district court found that the language of the agreement was clear,
and conspicuous waiver language wasn’t required because husband
didn’t waive any rights by signing it.
¶ 22 We disagree with the district court’s conclusion that husband
didn’t waive any rights by signing the July agreement, but we agree
that the July agreement’s language was clear.
¶ 23 The July agreement stated that the parties were entering into
a voluntary agreement regarding the sale or distribution of assets
from the marital home. It expressly stated that wife will retain
$285,000 — which was described as an inheritance from her
parents — as her separate property and the remaining equity in the
marital home would be split equally between husband and wife. As
such, this agreement plainly explained the marital rights husband
was modifying or waiving should the assets from the marital home
be sold or distributed. See § 14-2-309(1)(c). Thus, the agreement
was enforceable as a marital agreement under section 14-2-302.
11
¶ 24 True, the July agreement didn’t have a conspicuously
displayed notice of waiver of rights. But section 14-2-309(1)(c)
requires either a notice of waiver of rights or a plain language
explanation of the marital rights being modified or waived by the
agreement; it doesn’t require both.
¶ 25 Because the plain language of the agreement evidences the
parties’ intent that wife’s $285,000 gift from her parents would be
treated as her own separate property should the assets from the
sale of the marital home be distributed, husband waived any
marital claim to that amount of equity. Thus, we affirm the district
court’s order allocating to wife as her separate property $285,000 of
equity from the marital home.
C. Appellate Attorney Fees and Costs
¶ 26 Husband requests attorney fees under sections 13-17-102 and
14-10-119, and C.A.R. 39.1. Wife requests attorney fees under
section 14-10-119 and C.A.R. 39.1 and costs under C.A.R. 39(a).
Both parties object to the other’s request for appellate costs and
attorney fees.
12
1. Section 13-17-102
¶ 27 Husband cited section 13-17-102 in support of his request for
attorney fees but didn’t provide any factual or legal basis for an
award under this section. Husband’s request for attorney fees
under section 13-17-102 is denied. See In re Marriage of Aldrich,
945 P.2d 1370, 1379 (Colo. 1997) (“Conclusory statements that a
claim is frivolous, groundless, or vexatious are insufficient for
purposes of appellate review and inadequate to satisfy the statutory
requirement of specificity.”).
2. C.A.R. 39
¶ 28 As the prevailing party on appeal, wife is entitled to appellate
costs under C.A.R. 39 should the district court decide awarding
costs is appropriate under the circumstances. See C.A.R. 39(a), (c);
In re Marriage of Goodbinder, 119 P.3d 584, 586 (Colo. App. 2005)
(noting that the district court has discretion in awarding costs
unless a statute or rule specifically prohibits such award).
Accordingly, we remand the determination of wife’s appellate costs,
if deemed appropriate, to the district court.
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3. C.A.R. 39.1 and Section 14-10-119
¶ 29 Both parties request reasonable attorney fees under section
14-10-119, asserting that the other party has superior financial
resources, and cite C.A.R. 39.1 to support their respective requests.
Because the district court is better equipped to determine the
factual issues regarding the parties’ current financial resources, we
remand to it the issue of whether either party should be awarded
reasonable attorney fees. See In re Marriage of Bochner, 2023 COA
63, ¶ 22; see also In re Marriage of Schaefer, 2022 COA 112, ¶ 37
(holding that wife’s request for award of her attorney fees associated
with successful appeal of maintenance and child support awards
would be considered on remand).
V. Disposition
¶ 30 The judgment is affirmed. This case is remanded to the
district court with directions to (1) adopt the parties’ stipulation
regarding tax liabilities and enter it as a court order; (2) determine
the amount of and award to wife her costs associated with this
appeal, if appropriate; and (3) determine whether either party is
entitled to reasonable attorney fees under section 14-10-119.
JUDGE YUN and JUDGE DAVIDSON concur.
