In re Evans
| Decision Date | 18 November 2021 |
| Docket Number | Court of Appeals No. 20CA1104 |
| Citation | 504 P.3d 988,2021 COA 141 |
| Parties | IN RE the MARRIAGE OF Delinda EVANS, Appellee, and Kenneth Evans, Appellant. |
| Court | Colorado Court of Appeals |
Griffiths Law PC, Duncan L. Griffiths, Christopher Griffiths, Kimberly Newton, Lone Tree, Colorado, for Appellee
Law Office of Anthony J. DiCola, Anthony J. DiCola, Heather A. Stein, Hot Sulphur Springs, Colorado, for Appellant
Opinion by JUDGE FURMAN
¶ 1 In this post-dissolution of marriage proceeding, Kenneth Evans (husband) appeals a judge's order adopting a magistrate's order that allocated a previously undisclosed marital asset, modified his child support obligation, awarded attorney and expert witness fees to Delinda Evans (wife), and imposed an order for security against him. We affirm in part, reverse in part, and remand for further proceedings.
¶ 2 In a dissolution of marriage proceeding, the district court distributes property according to section 14-10-113, C.R.S. 2021. As a matter of first impression, we hold that the district court, when allocating a previously misstated or omitted asset under C.R.C.P. 16.2(e)(10), must follow section 14-10-113, making relevant factual findings and considering the parties’ financial circumstances at the time the property division is to become effective.
¶ 3 As part of the 2013 decree dissolving the parties’ fifteen-year marriage, the district court approved their separation agreement and parenting plan, which resolved all issues concerning property division, parenting time, child support, maintenance, and attorney fees.
¶ 4 In 2016, wife sought to modify husband's $534 monthly child support obligation based on her anticipated employment and belief that husband had more income than he originally disclosed. Through discovery, wife learned that husband had failed to disclose his 100% ownership interest in Premier Earthworks & Infrastructure, Inc. (PEI), during the dissolution proceedings. Wife asked the court to reopen the property division under C.R.C.P. 16.2(e)(10) and allocate the ownership interest in PEI as a marital asset. Husband objected.
¶ 5 In February 2018, after a four-day hearing, a district court magistrate granted wife's C.R.C.P. 16.2(e)(10) motion and her child support modification request. The magistrate found that husband failed to disclose his 100% ownership interest in PEI — a marital asset — during the dissolution proceedings. The magistrate awarded wife $1,168,639 as her share of the value of husband's PEI ownership interest and ordered husband to provide security to insure payment of his obligation. The magistrate then increased husband's monthly child support obligation to $12,000 based, in part, on the parties’ $397,432 combined monthly gross income. The magistrate also found it equitable for husband to pay $62,691.75 of wife's attorney and expert witness fees because of the parties’ disparate incomes and the finding that husband's failure to disclose his ownership interest of PEI led to the need for supplemental proceedings.
¶ 6 Husband sought judicial review of the magistrate's February 2018 order.
¶ 7 In January 2019, the judge adopted the magistrate's decision, reopened the property division under C.R.C.P. 16.2(e)(10), and upheld the magistrate's findings and orders concerning child support and attorney fees. But the judge rejected the magistrate's allocation of the ownership interest in PEI and remanded the case for "further findings regarding the C.R.S. § 14-10-113 factors on which the magistrate relied in allocating the PEI marital asset."
¶ 8 In February 2019, the magistrate made findings under section 14-10-113 and reaffirmed the equal allocation of the ownership interest in PEI. The judge adopted this order in May 2020 and husband timely appealed.
¶ 9 Husband raises six arguments on appeal — five arguments concern the February 2018 order, and the remaining argument concerns the February 2019 order. Wife contends that none of these arguments are preserved for appeal.
We conclude that they are.
¶ 10 Wife first contends that we lack jurisdiction to consider arguments regarding the February 2018 order, specifically those concerning the magistrate's decisions to reopen the property division, modify child support, and award attorney fees. It is wife's position that the judge entered a final order on those issues in January 2019, which order husband did not timely appeal. We disagree.
¶ 11 Our jurisdiction is limited to review of final, appealable judgments or orders. People in Interest of S.C. , 2020 COA 95, ¶ 6, 469 P.3d 564 ; C.A.R. 1(a). An order is final if it ends the action, leaving nothing further to be done to determine the parties’ rights. People in Interest of M.R.M. , 2021 COA 22, ¶ 13, 484 P.3d 807. A final, appealable order is one that prevents further proceedings or effectively terminates the proceedings. S.C. , ¶ 6 ; see also Cyr v. Dist. Ct. , 685 P.2d 769, 770 (Colo. 1984) (). Piecemeal review of orders that do not fully resolve an issue or claim is generally discouraged at any level of review, including the review or appeal of a magistrate's order. In re Marriage of Roosa , 89 P.3d 524, 529 (Colo. App. 2004) ; see also Hait v. Miller , 38 Colo. App. 503, 505, 559 P.2d 260, 261 (1977) ().
¶ 12 In the January 2019 order, the judge adopted some of the magistrate's February 2018 findings but rejected the allocation of PEI and remanded the case for the magistrate to make further findings. Thus, neither the February 2018 nor the January 2019 orders fully resolved the case or terminated the proceedings. The case was not fully resolved until the judge adopted the magistrate's February 2019 order in May 2020. See M.R.M. , ¶ 13 ; S.C. , ¶ 6. Thus, husband's timely appeal of the May 2020 order gives us jurisdiction to consider the findings and orders entered in February 2018.
¶ 13 Wife also contends that husband is barred from appealing the magistrate's February 2019 order because his petition for review was untimely filed with the district court. We disagree.
¶ 14 C.R.M. 7(a)(5) allows the parties to file a petition for review of a magistrate's order "no later than ... 21 days from the date the final order or judgment is mailed or otherwise transmitted to the parties." If a party fails to request timely judicial review, the magistrate's order or judgment becomes the order or judgment of the district court and appeal of the district court's order is barred. C.R.M. 7(a)(12).
¶ 15 The magistrate rules do not contain a separate section on procedure. See In re Marriage of Talbott , 43 P.3d 734, 735 (Colo. App. 2002). But district court magistrates have the power to preside over proceedings arising under the Uniform Dissolution of Marriage Act (UDMA), §§ 14-10-101 to - 133, C.R.S. 2021, and the Colorado Rules of Civil Procedure apply to all proceedings under the UDMA, § 14-10-105(1), C.R.S. 2021. Hence, the Colorado Rules of Civil Procedure apply to a magistrate's proceeding. See Talbott , 43 P.3d at 735.
¶ 16 In computing any time period prescribed or allowed by the Rules of Civil Procedure, C.R.C.P. 6(a)(1) provides that "[t]he last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or a legal holiday, in which event the period runs until the end of the next day which is not a Saturday, a Sunday, or a legal holiday." See also § 2-4-108(2), C.R.S. 2021 (); C.A.R. 26(a) ().
¶ 17 The magistrate entered the pertinent order on February 3, 2019, meaning that any petition for review filed under C.R.M. 7(a)(5) should have been filed by February 24, 2019. But because February 24 was a Sunday, the twenty-one-day deadline under C.R.M. 7(a)(5) was extended until the end of the next day, which was not a Saturday, Sunday, or legal holiday. See C.R.C.P. 6(a). February 25, 2019, was not a Saturday, Sunday, or legal holiday, so it became the last day on which a party could file a petition to review the order. See id. Husband filed his petition on February 25. His appeal of the February 2019 order is therefore timely.
¶ 18 We refer to the February 2018 and February 2019 orders together as "the magistrate's order." We similarly refer to the judge's January 2019 and May 2020 reviews of the magistrate's order as "the judge's order."
¶ 19 Because this case involves a reopened property division under C.R.C.P. 16.2(e)(10), we start by discussing this rule.
¶ 20 "Family members stand in a special relationship to one another and to the court system." C.R.C.P. 16.2(a). "Parties to domestic relations cases owe each other and the court a duty of full and honest disclosure of all facts that materially affect their rights and interests and those of the children involved in the case." C.R.C.P. 16.2(e)(1). The intent of this rule is to reduce the negative impacts of adversarial litigation in domestic relations cases. In re Marriage of Hunt , 2015 COA 58, ¶ 9, 353 P.3d 911. To that end, each party has an affirmative obligation to disclose all information material to the resolution of the case without awaiting inquiry from the other party. C.R.C.P. 16.2(e)(1).
¶ 21 C.R.C.P. 16.2(e)(10) states as follows:
If a disclosure contains a misstatement or omission materially affecting the division of assets or liabilities, any party may file and the court shall consider and rule on a motion seeking to reallocate assets and liabilities based on such a misstatement or omission, provided that the motion is filed within 5 years of the final...
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