In re Estate of Becker

• Decision Date: 07 December 2000
• Docket Number: No. 99CA2251.,99CA2251.
• Citation: 32 P.3d 557
• Parties: In the Matter of the ESTATE OF Darwin J. BECKER, a/k/a Darwin James Becker, Deceased, Donna Fasi, f/k/a Donna Becker or Donna Sue Becker, Appellant, v. Douglas J. Becker, Personal Representative of the Estate of Darwin J. Becker, a/k/a Darwin James Becker, Deceased, Appellee.
• Court: Colorado Court of Appeals

32 P.3d 557

In the Matter of the ESTATE OF Darwin J. BECKER, a/k/a Darwin James Becker, Deceased,

Donna Fasi, f/k/a Donna Becker or Donna Sue Becker, Appellant, v. Douglas J. Becker, Personal Representative of the Estate of Darwin J. Becker, a/k/a Darwin James Becker, Deceased, Appellee.

No. 99CA2251.

Colorado Court of Appeals, Div. I.

December 7, 2000.

As Modified on Denial of Rehearing March 8, 2001.

Certiorari Granted October 15, 2001.

Shaver & Licht, John H. Licht, Denver, CO, for Appellant.

Fairfield & Woods, P.C., John M. Tanner, Denver, CO, for Appellee.

Opinion by Judge ROTHENBERG.

Donna Fasi appeals the trial court's order denying her claim as the beneficiary of a life insurance policy and as the personal representative of a will executed by her former husband, Darwin J. Becker (decedent). We affirm.

Decedent and Fasi were married in August 1983. In 1987, they executed life insurance policies covering them both, with decedent naming Fasi as his beneficiary. In 1991, he also executed a will designating her as his personal representative.

In 1993, decedent and Fasi entered into a separation agreement in contemplation of divorce, and they formally dissolved their marriage in February 1994. The parties' separation agreement did not make any disposition of the insurance policy or any mention of rights under the will.

In 1994, the General Assembly enacted § 15-11-804(2), C.R.S.2000, effective July 1, 1995, which provides in relevant part that:

[T]he divorce or annulment of a marriage:

(a) Revokes any revocable (i) disposition or appointment of property made by a divorced individual to his or her former spouse in a governing instrument ... (iii) nomination in a governing instrument nominating a divorced individual's former spouse ... to serve in any fiduciary or representative capacity, including a personal representative, executor, trustee. . . .

Decedent died on December 31, 1997. At the time of his death, Fasi was still named as the beneficiary of his insurance policy, and she remained on his will as the personal representative of his estate.

Douglas J. Becker is decedent's brother and the alternate personal representative under the will. Decedent's father is the contingent beneficiary under his life insurance policy. Decedent's father predeceased the decedent, however, and thus decedent's estate became the beneficiary pursuant to the terms of the policy. Decedent's two children from his first marriage are the beneficiaries of his estate.

The trial court concluded that § 15-11-804(2) applied retroactively and revoked Fasi's interests as a matter of law.

I.

Fasi first contends the trial court erred in applying § 15-11-804(2) in the first instance because she claims she was never legally married to the decedent. According to Fasi, their ceremonial marriage was invalid because at the time of their wedding, the decedent was still married to his first wife. We disagree.

On January 4, 1983, the decedent and his first wife attended court to obtain final orders in their dissolution of marriage proceeding. The court signed the dissolution of marriage decree on October 31, 1984, nunc pro tunc, January 4, 1983.

The decedent married Fasi after the January 1983 court hearing, but before the signing of the decree in October 1984.

Court orders entered nunc pro tunc, or "now for then," are normally for the purpose of correcting an omission from the court records and are deemed to have retroactive effect. See Perdew v. Perdew, 99 Colo. 544, 64 P.2d 602 (1936); Black's Law Dictionary 1097 (7th ed.1999).

Trial courts have discretion to enter nunc pro tunc orders in dissolution of marriage actions and such orders may not be impeached collaterally. See Diebold v. Diebold, 79 Colo. 7, 243 P. 630 (1926).

According to Fasi, the nunc pro tunc language was ineffective under C.R.C.P. 58(a), which provides in relevant part that:

[U]pon a decision by the court, the court shall promptly prepare, date, and sign a written judgment . . . . The effective date of entry of judgment shall be the actual date of the signing of the written judgment.

In In re the Marriage of Chambers, 657 P.2d 458 (Colo.App.1982), a panel of this court did apply C.R.C.P. 58(a) as a basis for disregarding the nunc pro tunc effect of a dissolution decree between the original parties. However, such ruling was because the effect of the nunc pro tunc order there would have operated to time-bar one of the parties from filing a motion for a new trial.

Similarly, nunc pro tunc orders have been held ineffective when determining the timing of appeals. See In re Marriage of Gardella, 190 Colo. 402, 547 P.2d 928 (1976)

(time for appeal of a nunc pro tunc order begins from date that order actually entered); Joslin Dry Goods Co. v. Villa Italia Ltd., 35 Colo.App. 252, 539 P.2d 137 (1975)(nunc pro tunc effect of order cannot reduce the time or defeat right to seek review).

Apart from these limited circumstances, however, nunc pro tunc orders have been regularly enforced in Colorado. See In re Marriage of Booker, 811 P.2d 405 (Colo.App. 1990),

rev'd on other grounds,

833 P.2d 734 (Colo.1992) (nunc pro tunc child support order constitutes final judgment under C.R.C.P. 58(a)); In re Marriage of Rose, 40 Colo.App. 176, 574 P.2d 112 (1977) (affirming nunc pro tunc dissolution order that denied spouse benefits where husband died before order had entered).

Further, the majority of jurisdictions addressing the issue have held that nunc pro tunc divorce decrees validate a party's remarriage occurring between the time of the entry of an order dissolving the marriage and the effective date of the decree. See Malott v. Malott, 145 Ariz. 587, 703 P.2d 531 (App. 1985)

; Van Pelt v. Van Pelt, 172 A.D.2d 659, 568 N.Y.S.2d 160 (1991); C.P. Jhong, Annotation, Entering Judgment or Decree of Divorce Nunc Pro Tunc, 19 A.L.R.3d 648 (2000). We agree with those jurisdictions.

Here, the dissolution of marriage between the decedent and his first wife was finalized on January 4, 1983, except for the determination of child custody. And, unlike the circumstances in In re Marriage of Chambers, supra, and In re Marriage of Gardella, supra, there was no dispute between the decedent and his first wife concerning the order or the timeliness of filing further motions.

We therefore conclude that the nunc pro tunc order had the effect of dissolving decedent's first marriage before his remarriage to Fasi and, therefore, that Fasi was legally married to the decedent until February 1994, when their marriage was dissolved.

II.

Fasi next contends that even if she were legally married to the decedent, § 15-11-804(2) does not apply because their dissolution of marriage occurred before the effective date of the statute. Fasi maintains that the statute must be applied prospectively and that the trial court erred in ruling otherwise. We disagree.

Section 15-17-102(1), C.R.S.2000, provides that:

Except as provided elsewhere in this code and except as provided otherwise in this section, parts 1 to 9 of article 11, as reenacted effective July 1, 1995, shall apply to the estates, wills, or governing instruments of decedents dying on or after July 1, 1995. (emphasis added)

There is a presumption that statutes are to be applied prospectively. See § 2-4-202, C.R.S.2000. Nevertheless, where the plain language of an act shows a clear legislative intent that it be applied retroactively, such language is sufficient to overcome the presumption. See Ficarra v. Department of Regulatory Agencies, 849 P.2d 6 (Colo.1993)

.

Other sections of Title 15 expressly provide for prospective application. See § 15-11-601 and § 15-11-701, C.R.S.2000. However, there is no prospective language in § 15-11-804(2), which falls within the parts identified in § 15-17-102(1), C.R.S.2000.

The trial court reasoned that the plain language of the statute operated to make it applicable to estates and documents of persons dying after July 1, 1995, and that since decedent had died on December 31, 1997, it was applicable to the documents at issue. We agree with the trial court that § 15-17-102(1) evidences the General Assembly's clear intent to apply § 15-11-804(2) retroactively under these circumstances.

III.

Fasi next contends that retroactive application of § 15-11-804(2) by the trial court violates the prohibition against retrospective laws in Colo. Const. art. II, § 11, and also violates the impairments of contracts clause under both the Colorado and United States Constitutions. See Colo. Const. art. II, § 2; U.S. Const., art. I, § 10. We are not persuaded.

Before addressing the merits of Fasi's contentions, we first consider Becker's assertion that Fasi is procedurally barred from raising the issue of the statute's constitutionality in this appeal because she failed to give notice to the Attorney General under C.A.R. 44(a). We disagree.

The rule provides that:

In a review involving the constitutionality of any Colorado statute in which neither the state nor any state agency nor any representative thereof is a party, the party raising such question shall give immediate notice in writing to the Supreme Court of the existence of the question. The clerk shall thereupon certify such fact to the Attorney General.

The cases on which Becker relies in support of this proposition involved challenges to the facial constitutionality of statutes or ordinances. See Cuny v. Vail Associates, 902 P.2d 881 (Colo.App.1995)

; Wilson v. Board of County Commissioners, 703 P.2d 1257 (Colo. 1985).

However, Fasi did not challenge the facial constitutionality of the statute. She maintains that the statute is constitutional and that it applies prospectively. Alternatively, and in response to Becker's contention and the trial court's ruling that the statute applies retrospectively, she argues that the statute is unconstitutional as applied.

Under these circumstances, we conclude Fasi is not barred from raising the constitutional issues because of...