09 In re the Marriage of Zander

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
September 26, 2019
2019COA149
No. 2018CA1209 In re the Marriage of Zander — Family Law —
Uniform Dissolution of Marriage Act — Disposition of Property
— Uniform Premarital And Marital Agreements Act — Colorado
Marital Agreement Act
In this appeal concerning the division of property entered in
connection with a dissolution of marriage, the division considers the
conflict between the Colorado Marital Agreement Act (CMAA) and
the Uniform Dissolution of Marriage Act (UDMA) in the disposition
of marital property.
Though section 14-10-113(2)(d), C.R.S. 2019, of the UDMA
provides that property acquired during marriage is marital property
unless excluded by “valid agreement” of the parties, the CMAA
states that marital agreements must be in writing and signed by
both parties. The division holds the two provisions can be
harmonized by concluding the more specific CMAA provision
governs.
Accordingly, the division reverses the district court’s judgment
dividing the parties’ marital property and remands the case to allow
the court to redetermine an equitable property division.
COLORADO COURT OF APPEALS 2019COA149
Court of Appeals No. 18CA1209
Grand County District Court No. 16DR30001
Honorable Mary C. Hoak, Judge
In re the Marriage of
Denise Zander,
Appellee,
and
John Zander,
Appellant.
JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS
Division I
Opinion by JUDGE TAUBMAN
Hawthorne and Grove, JJ., concur
Announced September 26, 2019
Anthony J. DiCola, Heather A. Stein, Hot Sulphur Springs, Colorado, for
Appellee
Leigh A. Rosser, Edwards, Colorado, for Appellant
¶1 John Zander (husband) appeals the property division entered
in connection with the dissolution of his marriage to Denise Zander
(wife). We reverse and remand for additional proceedings.
I. Background
¶2 In 2018, the district court dissolved the parties’
seventeen-year marriage and divided the marital estate equally. In
doing so, the court determined that an oral agreement entered into
by the parties during the marriage was valid and enforceable. The
court also awarded wife monthly spousal maintenance of $1 until
further court order.
¶3 The district court denied husband’s C.R.C.P. 59 motion, and
this appeal followed.
II. Husband’s Appeal of the Property Division is Not Barred
¶4 To begin, we address wife’s argument, as we understand it,
that husband’s appeal of the property division is barred because he
failed to appeal the maintenance award and used marital funds
during the dissolution proceeding to pay certain marital debts. We
disagree.
¶5 Wife asks us to follow the general rule that a party who
accepts the benefits of a judgment may not seek reversal of that
1
judgment on appeal. In re Marriage of Jones, 627 P.2d 248, 251
(Colo. 1981); DiFrancesco v. Particle Interconnect Corp., 39 P.3d
1243, 1246 (Colo. App. 2001) (Ordinarily, a party’s right to appeal a
judgment is waived by the party’s acceptance of the benefits of that
judgment “when the appeal may result in a determination that the
party is not entitled to what has been accepted.”). However, that
rule is not strictly applied in dissolution of marriage cases, and it
does not apply here. See In re Marriage of Powell, 220 P.3d 952,
954 (Colo. App. 2009); In re Marriage of Burford, 950 P.2d 682, 684
(Colo. App. 1997). Husband’s acceptance of the maintenance award
and his use of marital funds during the dissolution action are not
inconsistent with the basis of his appeal and do not deprive him of
his right to seek review of the court’s property division. See Powell,
220 P.3d at 954; see also In re Marriage of Antuna, 8 P.3d 589, 592
(Colo. App. 2000) (husband’s acceptance of a court-ordered
payment did not constitute a waiver of his right to appeal); In re
Marriage of Lee, 781 P.2d 102, 105 (Colo. App. 1989) (wife’s
acceptance of maintenance payments did not waive her right to
appeal because public policy prohibits requiring a former spouse to
choose between the necessities of life and the right to appeal).
2
III. The Parties’ Oral Marital Agreement is Unenforceable
¶6 Husband contends that the district court erred in finding that
the alleged oral marital agreement was valid and enforceable. We
agree.
¶7 The record reflects that the parties entered the marriage with
separate retirement accounts and received inheritances from their
parents during the marriage. Wife testified that in 2007 the parties
orally agreed to keep their retirement accounts and inheritances as
their separate property. 1 Also in 2007, the parties executed a
revocable living trust, which was amended to exclude their
retirement accounts. Wife offered, and the district court admitted,
Exhibit 41, a 2014 email from husband to his adult son from a
prior marriage, arguably supporting the validity of the alleged oral
agreement:
1 Nevertheless, under section 14-10-113(4), C.R.S. 2019, the value
of retirement accounts and inheritances at the time of the marriage
is considered separate property. Because the increased value of
retirement accounts and inheritances is considered marital
property, a written agreement would be required, as discussed
below, to have that marital property be considered as separate
property.
3
• “I am setting up an investment account with Ameriprise
with money from grandma’s estate. You are the sole
beneficiary.”
• “My [individual retirement account] is down $160,000. You
and [your sister] are the 50-50 beneficiaries. She will
probably let the full amount go to you. That is her
decision.”
¶8 For his part, husband denied having made any such
agreement. 2
¶9 The district court, in a thoughtful and detailed written order,
sided with wife. Relying on section 14-10-113(2)(d), C.R.S. 2019,
basic contract principles, and an adverse credibility finding against
husband, the court determined that wife had established a valid
oral agreement to exclude the parties’ respective retirement
accounts and inheritances from the marital estate. The court
reasoned that husband’s conduct after the alleged agreement
corroborated its existence:
2 Wife does not argue that husband was estopped from disavowing
the oral agreement.
4
[Husband] denies that the parties made the
agreement to keep their inheritances and
retirement accounts their separate property
even though he testified that he wants the
remainder of his IRA as his separate property
when it contains marital property. Further,
Exhibit 41 . . . supports the validity of the
parties’ agreement as does the fact that the
parties never placed their retirement accounts
or the proceeds from their pensions into their
trust, which was their estate planning vehicle.
¶ 10 Husband does not dispute that an oral agreement may be
valid under general contract principles. Rather, he argues that the
enactment of the Colorado Marital Agreement Act (CMAA) in 1986
displaced common law contract principles permitting parties to
enter into marital agreements by means other than those prescribed
in the CMAA. See In re Marriage of Ikeler, 161 P.3d 663, 667 (Colo.
2007); see also § 14-2-310(1), C.R.S. 2007. Put simply, he asserts
that only written and signed marital agreements are valid and
enforceable.
¶ 11 Our analysis requires us to interpret the CMAA, the law
applicable at the time the purported agreement was made, and the
Uniform Dissolution of Marriage Act (UDMA). See § 14-2-303(1),
C.R.S. 2019 (the current version of the Uniform Premarital and
Marital Agreements Act (UPMAA), sections 14-2-301 to -313, C.R.S.
5
2019, applies only to agreements signed on or after July 1, 2014);
Ch. 239, sec. 1, § 14-2-301, 2013 Colo. Sess. Laws 1159 (CMAA
repealed and reenacted as the UPMAA). The interpretation of
statutes is an issue of law that we review de novo. See Ikeler, 161
P.3d at 666.
¶ 12 Our primary goal in statutory interpretation is to find and give
effect to legislative intent. In re Marriage of Joel, 2012 COA 128,
¶ 18, 404 P.3d 1251, 1254. To ascertain the legislative intent, we
look first to the language of the statute, giving words and phrases
their plain and ordinary meanings. See § 2-4-101, C.R.S. 2019;
Joel, ¶ 18. If the language is clear and unambiguous on its face, we
apply the statute as written. In re Marriage of Schmedeman, 190
P.3d 788, 790 (Colo. App. 2008).
¶ 13 But if one statute conflicts with another, we should, if
possible, adopt a construction that harmonizes these provisions
rather than creates an inconsistency or conflict in the statutory
scheme. In re Marriage of Bisque, 31 P.3d 175, 178 (Colo. App.
2001) (resolving conflict between the UDMA and the CMAA). If
statutes addressing the same subject cannot be harmonized, we
ordinarily favor a specific statute over a general one as it is a clearer
6
indication of the General Assembly’s intent in a specific area. See
Telluride Resort & Spa, L.P. v. Colo. Dep’t of Revenue, 40 P.3d 1260,
1265 (Colo. 2002); In re Marriage of Rozzi, 190 P.3d 815, 819 (Colo.
App. 2008); see also § 2-4-205, C.R.S. 2019 (a special provision
prevails as an exception to a general provision, unless the general
provision was later adopted and expresses a manifest intent that it
prevails). Also, if statutes irreconcilably conflict, the statute with
the later effective date prevails. § 2-4-206, C.R.S. 2019.
¶ 14 The UDMA, enacted in 1971, creates a statutory presumption
that property acquired during the marriage is marital property. See
§ 14-10-113(3); see also Michaelson v. Michaelson, 884 P.2d 695,
697 n.2 (Colo. 1994). That presumption, however, may be
overcome by establishing that the property was acquired by one of
the methods listed in section 14-10-113(2). One such method is
that the property acquired during the marriage was excluded “by
valid agreement of the parties.” § 14-10-113(2)(d). Nowhere in the
UDMA is the phrase “valid agreement” specifically defined.
¶ 15 In contrast, section 14-2-302(1), C.R.S. 2007, of the CMAA
defines marital agreement as “an agreement . . . between present
spouses, but only if signed by both parties prior to the filing of an
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action for dissolution of marriage or for legal separation.” See In re
Marriage of Goldin, 923 P.2d 376, 380 (Colo. App. 1996) (agreement
written in longhand by the wife met the statutory definition of
“marital agreement”). According to the CMAA, the requisite
formalities are that marital agreements “be in writing and signed by
both parties.” § 14-2-303, C.R.S. 2007. “A marital agreement
becomes effective upon marriage, if signed by both parties prior to
marriage, or upon the signatures of both parties, if signed after
marriage.” § 14-2-305, C.R.S. 2007. And after the agreement
becomes effective, it can only be amended or revoked “by a written
agreement signed by both parties.” § 14-2-306, C.R.S. 2007.
¶ 16 Looking at the relationship between section 14-10-113(2)(d) of
the UDMA and sections 14-2-302(1), 14-2-303, and 14-2-305,
C.R.S. 2007, of the CMAA, we conclude that the statutory
provisions can be harmonized. See Telluride Resort & Spa, 40 P.3d
at 1265. Thus, a “valid agreement” of the parties to exclude as
marital property certain property acquired during the marriage
must be a written agreement signed by both parties. To conclude
otherwise would mean that spouses in a dissolution of marriage
proceeding could always exclude certain marital property, even if
8
they did not have a written agreement. Such a conclusion would be
inconsistent with the language contained in section 14-2-302(1),
C.R.S. 2007. As a result, the district court erred in not following
the plain language of the CMAA and instead broadly construing
“valid agreement” in section 14-10-113(2)(d) to include an oral
marital agreement.
¶ 17 Our survey of the UDMA leads us to believe that when the
General Assembly intends to require a written agreement, it
expressly says so. See In re Marriage of Paige, 2012 COA 83, ¶ 12,
282 P.3d 506, 508; see also § 14-10-112(1), C.R.S. 2019 (“[P]arties
may enter into a written separation agreement.”); § 14-10-
113(6)(c)(I), (II) (Parties may enter into a UPMAA marital agreement
or a separation agreement “concerning the division of a public
employee retirement benefit . . . pursuant to a written agreement.”);
§ 14-10-114(7)(a), C.R.S. 2019 (“[P]arties may agree in writing or
orally in court to waive maintenance” and “may also agree to waive
maintenance in a premarital agreement or marital agreement
consistent” with the UPMAA.); § 14-10-115(13)(a)(I), C.R.S. 2019
(For child support orders entered on or after July 1, 1997, a child
becomes emancipated at the age of the nineteen unless “[t]he
9
parties agree otherwise in a written stipulation.”); § 14-10-122(2)(a),
C.R.S. 2019 (“Unless otherwise agreed in writing or expressly
provided in the decree, the obligation to pay future maintenance is
terminated upon the earlier of [four listed events.]”).
¶ 18 Although the General Assembly did not require in section 14-
10-113(2)(d) that a “valid agreement” be in writing, it expressly
provided that marital agreements under section 14-2-302(1), C.R.S.
2007, be in writing and signed by both parties. Thus, as discussed
above, section 14-2-302(1), C.R.S. 2007, must be given effect by
requiring that all marital agreements must be in writing and signed
by both parties.
¶ 19 In the alternative, if we were to conclude that the statutes
cannot be harmonized, we would reach the same result because the
CMAA statute is more specific and more recent. See §§ 2-4-205,
206.
¶ 20 Nor are we persuaded by the district court’s reliance on In re
Marriage of Lemoine-Hofmann, 827 P.2d 587 (Colo. App. 1992).
That reliance, although understandable, was misplaced. In
Lemoine-Hofmann, in 1984, before the parties married, they had
orally agreed to take turns putting each other through college. See
10
id. at 588. After they wed, but before their separation, the parties
entered into a written separation agreement, which memorialized
the prior oral agreement. See id. After husband obtained his
college degree, he requested a divorce. See id.¶ 21 Applying general contract principles, the division upheld the
district court’s finding that the parties’ oral agreement, later
recognized in their separation agreement, was valid and
enforceable. See id. at 589-90. The division considered significant
the undisputed testimony that the parties intended to put each
other through college regardless of their marital status. See id. at
589. Also, the division dismissed the husband’s argument that the
oral agreement was void as contrary to the statute of frauds. See
id. at 590. The division stated that it was undisputed that “the
obligations at issue were not made upon consideration of the
parties’ marriage” and that the husband conceded that the wife had
partially performed the agreement by putting him through college.
See id.¶ 22 We observe that the 1984 agreement in Lemoine-Hofmann
arose prior to the effective date of the CMAA. See Ikeler, 161 P.3d
at 667; see also § 14-2-310(1), C.R.S. 2007. We further observe
11
that the oral agreement in Lemoine-Hofmann does not appear to
have been a marital agreement at all as it was not made in
contemplation of marriage. See Lemoine-Hofmann, 827 P.2d at 589-
90.
¶ 23 In contrast, the circumstances here are substantially similar
to those in a case decided eleven years later, In re Marriage of
Lafaye, 89 P.3d 455 (Colo. App. 2003). There, the wife sought to
enforce the husband’s oral promises that he would transfer oil and
gas interests to her and contribute to her son’s medical school
education. See id. at 460. In distinguishing Lemoine-Hofmann, the
division held that the alleged oral promises were not enforceable:
[T]he court [in Lemoine-Hoffman] did not
consider application of the [CMAA], and, unlike
here, the fact that an oral agreement had been
made and the circumstances of the agreement
were not disputed. Further, the court found in
that case that the oral agreement was binding
based on part performance. No such finding
was made here with respect to the oil and gas
interests.
Id. We perceive no reason to depart from the holding in that case.
¶ 24 We also disagree with the district court’s determination that
the parties’ conduct after entering into the alleged agreement
12
should be considered partial performance satisfying the writing
requirement under the CMAA.
¶ 25 Under section 38-10-112(1)(c), C.R.S. 2019, an “agreement,
promise, or undertaking made upon consideration of marriage,
except mutual promises to marry,” are void absent a writing. One
exception to the writing requirement under section 38-10-112(1)(c)
is partial performance. See Lemoine-Hofmann, 827 P.2d at 590.
However, we have concluded that the more specific and more recent
CMAA governs, and it clearly and unambiguously requires a marital
agreement to be in writing.
¶ 26 The district court’s reliance on Lemoine-Hofmann does not
support its conclusion. As stated previously, the oral agreement in
Lemoine-Hofmann was not a marital agreement and was entered
into before the CMAA was enacted. See id. at 589-90. Importantly,
the division there upheld the parties’ oral agreement determining
that partial performance overcame the requirements of section 38-
10-112(1)(c); it did not say, however, that the partial performance
doctrine excused the writing requirement in the CMAA. See
Lemoine-Hofmann, 827 P.2d at 590. We may presume that the
General Assembly was aware of that case when the CMAA was
13
enacted. See Vaughan v. McMinn, 945 P.2d 404, 409 (Colo. 1997)
(“The legislature is presumed to be aware of the judicial precedent
in an area of law when it legislates in that area.”); U.S. Fid. & Guar.,
Inc. v. Kourlis, 868 P.2d 1158, 1162-63 (Colo. App. 1994). We see
nothing in the language of the CMAA and have found no authority
to indicate that the General Assembly intended to incorporate such
an exception.
¶ 27 Wife summarily states that “[e]ven if the [district] court was
wrong in determining the validity of the oral agreement, the
testimony [about an oral agreement] was parol evidence of the
parties[’] intent to show what went on with the retirement accounts
that were in and then out of the trust.” Because she does not
support this argument with legal authority or any meaningful legal
analysis, we will not address it. Barnett v. Elite Props. of Am., Inc.,
252 P.3d 14, 19 (Colo. App. 2010) (“We will not consider a bald legal
proposition presented without argument or development.”).
¶ 28 Given our disposition, we need not address husband’s
argument that the oral marital agreement was not enforceable
because the parties did not adequately disclose their finances prior
14
to its execution. See § 14-2-307(1)(b), C.R.S. 2007; Bisque, 31 P.3d
at 178.
¶ 29 In sum, we conclude that the more specific CMAA provision
requiring a marital agreement to be in writing prevails over the
general UDMA provision at section 14-10-113(2)(d). Thus, the
district court erred in construing “valid agreement” in section 14-
10-113(2)(d) to include an oral marital agreement. Contrary to the
court’s determination, the alleged oral agreement here is not valid
and enforceable because it does not meet the statutory
requirements under the CMAA. See §§ 14-2-302(1), 14-2-303, 14-
2-305, C.R.S. 2007. Accordingly, we reverse this portion of the
permanent orders, and on remand the district court is instructed to
determine what, if any, portion of the parties’ retirement accounts
and inheritances are marital property under section 14-10-113(1).
IV. Property Division
¶ 30 Considering that our disposition may significantly change the
marital estate, we must reverse and remand the entire property
division for reconsideration. See In re Marriage of Balanson, 25
P.3d 28, 36 (Colo. 2001) (errors by the court in dividing property are
reversible when the aggregate effect of such errors affects the
15
parties’ substantial rights); see also In re Marriage of Zappanti, 80
P.3d 889, 893 (Colo. App. 2003) (an error affecting a large
percentage of the marital estate requires remand to the district
court to correct such error). The court must also consider the
parties’ economic circumstances at the time of the remand. See In
re Marriage of Morton, 2016 COA 1, ¶ 14, 369 P.3d 800, 801; see
also In re Marriage of Wells, 850 P.2d 694, 697-98 (Colo. 1993). In
so doing, the court, in exercising its discretion, may also consider
husband’s apparent adherence to the marital and oral agreement
until the permanent orders hearing. See In re Marriage of
Eisenhuth, 976 P.2d 896, 901 (Colo. App. 1999) (district court has
broad discretion in dividing marital property; the division must be
equitable but need not be mathematically equal).
V. Conclusion
¶ 31 We reverse the district court’s judgment, and the case is
remanded for the district court to determine what part, if any, of the
parties’ retirement accounts and inheritances are marital property
and redetermine an equitable property division.
JUDGE HAWTHORNE and JUDGE GROVE concur.
16