Beren v. Beren (In re Estate of Beren)

• Decision Date: 05 December 2013
• Docket Number: Court of Appeals No. 12CA1912
• Parties: IN RE the ESTATE OF Sheldon K. BEREN, deceased. Miriam Beren, Plaintiff–Appellee, and Robert M. Goodyear, Jr., in his capacity as Liquidating Trustee of the Beren Estate Residuary Trust and the David I. Beren Subtrust thereof, Garnishee–Appellee, v. David Beren, Defendant–Appellant.
• Court: Colorado Court of Appeals

321 P.3d 615

IN RE the ESTATE OF Sheldon K. BEREN, deceased.
Miriam Beren, Plaintiff–Appellee,
and
Robert M. Goodyear, Jr., in his capacity as Liquidating Trustee of the Beren Estate Residuary Trust and the David I. Beren Subtrust thereof, Garnishee–Appellee,
v.
David Beren, Defendant–Appellant.

Court of Appeals No. 12CA1912

Colorado Court of Appeals,
Div. IV.

December 5, 2013

[321 P.3d 616]

City and County of Denver Probate Court Nos. 96PR401, 96PR100401, & 11PR2267, Honorable Elizabeth D. Leith, Judge.
The Moore Law Firm, P.C., Theresa M. Moore, Denver, Colorado, for Plaintiff–Appellee.

Carver Schwarz McNab Kamper & Forbes, LLC, Peter C. Forbes, Denver, Colorado, for Garnishee–Appellee.

Blain Myhre LLC, Blain D. Myhre, Englewood, Colorado, for Defendant–Appellant.

Opinion by JUDGE WEBB

¶ 1 This probate appeal involves two unresolved questions in Colorado: first, whether section 15–11–205(4), C.R.S.2013, of the Colorado Probate Code requires a surviving spouse to bring a separate action for contribution, before serving a writ of garnishment based on the contribution liability, although the probate court order has fixed the contribution liability of a person under that section; and, second, whether trust funds subject

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to a valid spendthrift provision may be garnished by a creditor of the beneficiary once distribution of those funds becomes mandatory, but before the funds have been distributed. We conclude that the probate court properly allowed garnishment of trust funds subject to mandatory distribution, without requiring the creditor to obtain a judgment in a separate contribution action. Therefore, we affirm the order allowing garnishment.

I. Facts

¶ 2 This appeal involves the estate of Sheldon Beren, who died testate in 1996. The underlying probate proceedings and background are described in In re Estate of Beren, 2012 COA 203, ––– P.3d ––––, 2012 WL 5871034 (Beren I ). The parties to this appeal are one of the decedent's sons, David Beren; the estate's personal representative, in his capacity as liquidating trustee, Robert M. Goodyear, Jr.; and the decedent's surviving spouse, Mrs. Beren, who is the garnishor.

¶ 3 On September 2, 2010, the probate court approved Goodyear's petition for final settlement and distribution (Final Distribution Plan). The Final Distribution Plan called for the creation of liquidating trusts, including the Beren Estate Residuary Liquidating Trust Agreement (Liquidating Trust), because of Goodyear's concern over a contingent income tax liability of the estate. ¹ Over David Beren's objections to the creation of the trusts, the probate court ordered Goodyear, as liquidating trustee, to distribute the estate assets in the “manner set forth” in the Final Distribution Plan (September 2 order).

II. Contribution Liability

¶ 4 David Beren first contends Mrs. Beren could not garnish his interest in the Liquidating Trust to collect the contribution amounts that he owed her until she obtained a judgment establishing this liability in a separate contribution action. We conclude that because the September 2 order fixed this contribution liability, Mrs. Beren was not required to obtain such a judgment before she could garnish his interest.

A. Background

¶ 5In 1997, David Beren received a $1,000,000 bequest from the estate under the terms of a stipulation in which Mrs. Beren joined. The Final Distribution Plan approved in the September 2 order contained a schedule showing this bequest subject to contribution of $459,546.51 for funding Mrs. Beren's elective share. At that time, no separate judgment was entered.

¶ 6 In challenging the garnishment, David Beren argued that because the September 2 order did not constitute “an executable judgment,” Mrs. Beren was required to obtain a judgment in a separate action before she could garnish any contribution amounts owed to her. Noting that Beren I was pending, the probate court declined to rule on this issue. However, the order enforcing the writ of garnishment directed that the register of actions reflect a “judgment in the sum of $459,456.57 against David Beren and in favor of [Mrs.] Beren entered as of September 2, 2010....”

¶ 7 This issue turns on interpreting two provisions of the Colorado Probate Code—sections 15–11–205(4) and 15–11–205(5), C.R.S.2013, which the parties have fully briefed. Thus, in lieu of remanding, we address it on appeal. Cf. People v. Mumford, 275 P.3d 667, 671 (Colo.App.2010) (addressing contention subject to de novo review, even though trial court did not address it).

B. Analysis

¶ 8 Questions of statutory interpretation are reviewed de novo, looking first at the plain language of a statute to determine legislative intent. Granite State Ins. Co. v. Ken Caryl Ranch Master Ass'n, 183 P.3d 563, 567 (Colo.2008). If the meaning is clear, the statute is applied as written. Wells Fargo Bank v. Kopfman, 226 P.3d 1068, 1072 (Colo.2010). When examining the wording of a

[321 P.3d 618]

statute, “[w]e do not presume that the legislature used language ‘idly and with no intent that meaning should be given to its language.’ ” Colo. Water Conservation Bd. v. Upper Gunnison River Water Conservancy Dist., 109 P.3d 585, 597 (Colo.2005) (citation omitted). In addition, “we strive to interpret statutes in a manner that avoids rendering any provision superfluous.” Qwest Corp. v. Colo. Div. of Prop. Taxation, 2013 CO 39, ¶ 16, 304 P.3d 217.

¶ 9 Under section 15–11–205(4):

After notice and hearing, the court shall determine the elective-share and ... order its payment from the assets of the augmented estate or by contribution as appears appropriate under sections 15–11–203 and 15–11–204. If it appears that a fund or property included in the augmented estate has not come into the possession of the personal representative, or has been distributed by the personal representative, the court nevertheless shall fix the liability of any person who has any interest in the fund or property or who has possession thereof, whether as trustee or otherwise....

(Emphasis added.) David Beren concedes that under this section, the probate court could “fix” his contribution liability for the $1,000,000 bequest.

¶ 10 But he argues that even if the September 2 order did so, the order was not an executable judgment. Rather, he asserts that under section 15–11–205(5), Mrs. Beren was required to bring a separate contribution action and obtain a judgment on which she could execute, before serving a writ of garnishment. In relevant part, this section provides: “[a]n order or judgment of the court may be enforced as necessary in suit for contribution or payment in other courts of this state or other jurisdictions.” (Emphasis added.)

¶ 11 Contrary to David Beren's argument, the plain language of section 15–11–205(5) does not require a surviving spouse to bring a separate action after contribution liability has been fixed under section 15–11–205(4). Instead, it addresses only whether an order or judgment on contribution liability “may” be enforced in “other courts of this state or other jurisdictions.” Nothing in section 15–11–204(5) precludes a contribution order entered under section 15–11–204(4) from being effective as a judgment for purposes of supplemental proceedings such as garnishment, at least in the court that issued the order. But where enforcement involves a proceeding in a different court from the one that entered the order, a “suit for contribution” could be brought in such “other court[ ]” on either an “order or judgment.”

¶ 12 David Beren's argument that this interpretation renders 15–11–204(5) superfluous fails because it ignores the qualifier “in other courts,” as well as the term “may” and the phrase “as necessary.” Use of such terms and phrases denotes discretion. Cagle v. Mathers Family Trust, 2013 CO 7, ¶ 31, 295 P.3d 460 (“The word ‘may’ denotes a grant of discretion and is usually permissive.”); Bishop v. Iowa State Bd. of Pub. Instruction, 395 N.W.2d 888, 892 (Iowa 1986) (“ ‘as necessary’ language ... gave the Valley school board broad discretion”). This wording shows that the plain language of section 15–11–205(5) allows, but does not require, a surviving spouse to enforce an order or judgment on contribution in a separate proceeding.

¶ 13 Use of the phrase “order or judgment” also weighs against David Beren's position. If a judgment was required, as opposed to an order, then section 15–11–205(5) would not refer to an “order.”

¶ 14 Thus, because the September 2 order fixed David Beren's contribution liability to Mrs. Beren at $459,546.51, no separate judgment was necessary for Mrs. Beren to enforce this liability through a supplemental proceeding in the probate court.

¶ 15 This conclusion also resolves David Beren's argument that the probate court erred by calculating postjudgment interest on his contribution liability from September 2. He argues only that the September 2 order did not constitute an executable judgment, which we have rejected.² Hence, that

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order sets the date for calculating postjudgment interest.

C. 1997 Stipulation

¶ 16 Alternatively, David Beren argues that his bequest should not have been subject to contribution because in the 1997 stipulation, Mrs. Beren did not reserve any right to seek contribution. Beren I forecloses this argument.

¶ 17 David Beren raised this argument in Beren I, but the division declined to address it. The division explained that while David Beren had “made numerous arguments in his objections” to the September 2 order in the probate court, his mere cross-reference to an earlier filing failed to alert the court to his assertion that the stipulation precluded contribution. Beren I, ¶¶ 78–80. Thus, David Beren cannot raise this argument again. See Loveland Essential Grp., LLC v. Grommon Farms, Inc., 2012 COA 22, ¶ 14, ––– P.3d ––––, 2012 WL 311662 (quoting Argus Real Estate, Inc. v. E–470 Pub. Highway Auth., 109 P.3d 604, 608 (Colo.2005) (“Claim preclusion (formerly known as res...