In re Cerrone

• Decision Date: 26 August 2021
• Docket Number: Court of Appeals No. 20CA0816
• Citation: 2021 COA 116,499 P.3d 1064
• Parties: IN RE the MARRIAGE OF Jill Louise CERRONE, Appellee, and Dennis John Cerrone, Appellant.
• Court: Colorado Court of Appeals

499 P.3d 1064

2021 COA 116

IN RE the MARRIAGE OF Jill Louise CERRONE, Appellee, and Dennis John Cerrone, Appellant.

Court of Appeals No. 20CA0816

Colorado Court of Appeals, Division V.

Announced August 26, 2021

Ammarell Deasy, LLP, Daniel N. Deasy, Patrick N. Hoover, Greenwood Village, Colorado, for Appellee

The Burnham Law Firm, P.C., Aaron Belzer, J.P. Prentiss, Boulder, Colorado, for Appellant

Opinion by JUDGE GROVE

¶ 1 Dennis John Cerrone (husband) appeals the district court's order adopting a magistrate's ruling denying his motion for a declaratory judgment that his maintenance obligation to Jill Louise Cerrone (wife) under the parties' separation agreement ended automatically on wife's remarriage. Because the separation agreement did not expressly provide that maintenance would continue after wife remarried, we conclude that husband's maintenance obligation terminated by operation of law once she did so. We therefore reverse the order and remand the case to the district court with directions to grant husband's motion and determine the amount wife must reimburse him for maintenance he paid after the date of her remarriage.

I. Background

¶ 2 The parties' twenty-four-year marriage ended in 2016. The district court approved their separation agreement and incorporated it into the decree.

¶ 3 As relevant here, under a subheading titled "Modification," the agreement states,

This Plan shall not be modified except by its own terms or by operation of law or by written agreement of the Parties with approval by the Court.

Under "Maintenance," the agreement provides that

[c]ommencing July 1, 2016, Husband shall pay the Wife maintenance in the amount of $2,489.00 per month for a period of 138 months (totaling 11 ½ years). Payments shall be made directly by Husband to Wife. Maintenance shall terminate at the end of the contractual period of 11 ½ years, December 31, 2027.

All maintenance outlined herein is contractual in nature and shall be non-modifiable for any reason whatsoever by the Court. The Court shall not retain jurisdiction to modify the maintenance either in amount or duration.

¶ 4 Three years after the court entered the decree, husband moved for a declaratory judgment that his maintenance obligation had automatically terminated by operation of law as of wife's May 25, 2018, remarriage. See § 14-10-122(2)(a)(III), C.R.S. 2020 ("Unless otherwise agreed in writing or expressly provided in the decree, the obligation to pay future maintenance is terminated upon ... [t]he remarriage of or the establishment of a civil union by the party receiving maintenance.").

¶ 5 A district court magistrate denied husband's motion, concluding that, by stating in their separation agreement that maintenance was contractual and nonmodifiable, the parties had "agreed in writing" that husband's maintenance obligation would survive wife's remarriage.

¶ 6 Husband petitioned for district court review of the magistrate's order. The district court affirmed and adopted the magistrate's order.

II. Maintenance After the Recipient Spouse Remarries

¶ 7 Husband contends that the magistrate and district court erred by ruling that his obligation to pay wife maintenance continued after her remarriage rather than automatically terminating under section 14-10-122(2)(a)(III). He asserts that In re Marriage of Parsons , 30 P.3d 868, 869 (Colo. App. 2001), which the magistrate found controlling, was wrongly decided. In the alternative, he argues that Parsons is distinguishable from the present case based on the specific language of the parties' separation agreement.

¶ 8 We agree that the magistrate and district court erroneously concluded that husband's maintenance obligation continued after wife's remarriage. In reaching this conclusion, we decline to follow Parsons to the extent it holds that the mere presence of a nonmodification clause is, on its own, sufficient under section 14-10-122(2)(a)(III) to continue a maintenance obligation after a recipient spouse's remarriage. See Chavez v. Chavez , 2020 COA 70, ¶ 13, 465 P.3d 133 (noting that divisions of the court of appeals function independently and thus "divisions are not bound by the decisions of other divisions"). We further conclude that the particular separation agreement language at issue is materially distinguishable from that in Parsons and is not sufficient to continue husband's maintenance obligation after wife's remarriage. Therefore, we reverse the district court's order.

A. Standard of Review

¶ 9 We review de novo the language of the governing statute and the parties' separation agreement. See In re Marriage of Williams , 2017 COA 120M, ¶ 11, 410 P.3d 1271.

B. Section 14-10-122(2)(a)(III)

¶ 10 Section 14-10-122(2)(a)(III) states, in relevant part, that "[u]nless otherwise agreed in writing or expressly provided in the decree, the obligation to pay future maintenance is terminated upon ... [t]he remarriage of ... the party receiving maintenance." Accordingly, the issue, as it was in the district court, is whether the parties "agreed in writing" in their separation agreement that maintenance would continue for the full 138-month term even if wife remarried. See id. ; cf. Williams , ¶ 10 (determining de novo, based on the separation agreement, whether maintenance survived the obligor spouse's death as a continuing obligation of his estate or was terminated under section 14-10-122(2)(a)(I) ).

C. Early Case Law Interpreting the Statute

¶ 11 A division of this court addressed a predecessor version of section 14-10-122(2)(a)(III) in Spratlen v. Spratlen , 30 Colo. App. 91, 93-94, 491 P.2d 608, 609-10 (1971). That statute provided that "[t]he remarriage of a party entitled to [maintenance] ... shall relieve the other party from further payments of said [maintenance]; but nothing in this section shall preclude the parties from providing otherwise by written agreement or stipulation." Id. at 93, 491 P.2d at 609 (quoting § 46-1-5(5), C.R.S. 1963). The separation agreement at issue in Spratlen provided that the husband would pay maintenance to the wife "until the death of his father." Id. at 92, 491 P.2d at 609. The division held that the statute "require[d] an express statement that [maintenance] continue after remarriage, and the failure of the agreement in question to specify this point" was fatal to the wife's argument that her maintenance continued until the death of the husband's father regardless of her remarriage. Id. at 94, 491 P.2d at 610.

¶ 12 Spratlen relied on In re Estate of Kettering , 151 Colo. 202, 206-07, 376 P.2d 983, 986 (1962), in which the supreme court, applying common law principles, held that maintenance ends with an obligor spouse's death unless the agreement otherwise "expressly or by clear implication" provides that maintenance payments continue. Thus, in Kettering , the agreement's language — which specified only that maintenance would continue "so long as the wife may live and remain unmarried" — did not require the husband's estate to continue paying the wife maintenance after his death. Id. at 207, 376 P.2d at 986 ; see also Williams , ¶¶ 9 n.1, 12-21 (relying in part on Kettering and concluding that similar language was insufficient under the provision of section 14-10-122(2)(a) stating that, "[u]nless otherwise agreed in writing or expressly provided in the decree," the obligation to pay maintenance ends on the obligor spouse's death); cf. Int'l Tr. Co. v. Liebhardt , 111 Colo. 208, 218, 139 P.2d 264, 267 (1943) (An agreement providing that maintenance would continue "after the death of the husband" was explicit enough to require his estate to continue paying the wife maintenance.).

¶ 13 Ten years after Spratlen , a division of this court decided In re Marriage of Hahn , 628 P.2d 175 (Colo. App. 1981), again addressing whether particular separation language was explicit enough to continue maintenance payments after the recipient spouse's remarriage. The Hahn division interpreted a previous but materially similar version of section 14-10-122(2)(a)(III), which provided, "[u]nless otherwise agreed in writing or expressly provided in the decree, the obligation to pay future maintenance is terminated upon the death of either party or the remarriage of the party receiving maintenance." Id. at 176 (quoting § 14-10-122(2), C.R.S. 1973 ).

¶ 14 The separation agreement in Hahn provided that maintenance payments "will not be subject to modification for any reason except the death of the wife." Id. Citing Spratlen , the division noted that section 14-10-122(2) had been "construed to require an express provision that alimony continue after marriage." Id. However, the division then concluded that

the quoted language of the separation agreement is such an express provision. Although it does not explicitly provide for continuation or termination of maintenance in the event of remarriage, nevertheless, it indicates that it was the contemplation of the parties that only the wife's death would absolve the husband of liability for payment of maintenance.

Id.

D. Parsons

¶ 15 This brings us to Parsons , which was decided twenty years after Hahn . There, a division of this court also cited Spratlen with approval for the proposition that "[g]enerally, to overcome th[e] statutory termination upon remarriage, an explicit reference to the continuation of maintenance after the recipient's remarriage is necessary." Parsons , 30 P.3d at 869. Regarding the agreed ninety-six months of maintenance, the Parsons separation agreement stated that

[i]t is expressly understood and agreed that the maintenance ... is contractual in nature and non-modifiable by any court. The payment of maintenance to [wife] shall not be subject to increase, or decrease, or extension due to change of economic circumstances of either party or for any other reason.

Id. at 868.

¶ 16 The obligor spouse argued that this language was materially distinguishable from that at issue in Hahn because it did not reference a specific event, i.e., the wife's...