In re Mack

• Decision Date: 11 April 2022
• Docket Number: Supreme Court Case No. 21SC62
• Citation: 507 P.3d 524
• Parties: IN RE the MARRIAGE OF Robert J. MACK, Petitioner, and Deborah B. Mack, Respondent.
• Court: Colorado Supreme Court

507 P.3d 524

IN RE the MARRIAGE OF Robert J. MACK, Petitioner,

and

Deborah B. Mack, Respondent.

Supreme Court Case No. 21SC62

Supreme Court of Colorado.

April 11, 2022

Petitioner Robert J. Mack, pro se, Colorado Springs, Colorado

Attorneys for Respondent: Beltz & West, P.C., Daniel A. West, Colorado Springs, Colorado

En Banc

CHIEF JUSTICE BOATRIGHT delivered the Opinion of the Court, in which JUSTICE MARQUEZ, JUSTICE HOOD, JUSTICE GABRIEL, JUSTICE HART, JUSTICE SAMOUR, and JUSTICE BERKENKOTTER joined.

CHIEF JUSTICE BOATRIGHT delivered the Opinion of the Court.

¶1 When members of the Public Employees' Retirement Association ("PERA") apply for retirement, they can choose between three options for benefit distribution. See § 24-51-801(1)(a)-(c), C.R.S. (2021). Option 1 results in a higher monthly benefit payment, but when the retiree dies, the monthly payments cease. § 24-51-801(1)(a). Options 2 and 3 result in a lower monthly benefit payment during the retiree's life, but when the retiree dies, the retiree's named cobeneficiary continues to receive monthly payments. § 24-51-801(1)(b), (c).

¶2 Generally, a retiree's option choice is final. See § 24-51-802(1), C.R.S. (2021). However, retirees who are party to a dissolution of marriage action are afforded a narrow exception to this rule. See § 24-51-802(3.8). Pursuant to section 24-51-802(3.8), if a retiree chose either option 2 or 3 at retirement and the retiree's then-spouse was named cobeneficiary, "the court shall have the jurisdiction to order or allow [the] retiree ... to remove the spouse that was named cobeneficiary ... in which case an option 1 benefit shall become payable."

¶3 In this case, we consider whether section 24-51-802(3.8) empowers a divorcing retiree to unilaterally remove a former spouse as named cobeneficiary and convert¹ to option 1 retirement benefits. Assuming without deciding that this issue is adequately preserved for appeal, we answer this question in the negative. Instead, applying the statute's plain language, we hold that section 24-51-802(3.8) vests the trial court, not the retiree, with the authority to remove the former spouse as cobeneficiary and facilitate a conversion to option 1. Therefore, we affirm the judgment of the court of appeals, albeit on different grounds.²

I. Facts and Procedural History

¶4 Robert Mack ("Husband") and Deborah Mack ("Wife") were married in 1987. Shortly after the two married, Husband began working for the City of Colorado Springs. Throughout the marriage, Husband contributed to his retirement account through his PERA plan.

¶5 When Husband retired in 2012, the parties were still married. At that time Husband was able to choose between three retirement benefit option plans. See § 24-51-801(1)(a)-(c). Option 1 pays the retiree a monthly benefit for the retiree's lifetime and, upon the retiree's death, the payments cease. § 24-51-801(1)(a). Option 2 pays the retiree a monthly benefit for the retiree's lifetime and, upon the retiree's death, half of the monthly benefit payment then becomes payable to the retiree's named cobeneficiary for life. § 24-51-801(1)(b). Option 3 is similar to option 2, but upon the retiree's death, the entire monthly benefit payment becomes payable to the named cobeneficiary for life. § 24-51-801(1)(c). Because options 2 and 3 provide for the cobeneficiary to receive benefits in the event of the retiree's death, a retiree who chooses option 2 or 3 receives less money each month than a retiree who chooses option 1. See § 24-51-801(2) ("Options 2 and 3 shall be the actuarial equivalent of option 1."). Husband chose an option 3 benefit plan and named Wife as his cobeneficiary.

¶6 In 2018, Wife petitioned for dissolution of the marriage. The case proceeded to a permanent orders hearing, wherein Husband and Wife contested, inter alia, how to divide the PERA retirement benefits. Although he cited no supporting statutory authority, Husband requested that Wife be removed as cobeneficiary and that his plan convert to an option 1 benefit plan.

¶7 The district court rejected Husband's request. Instead, the court determined that Husband's PERA account was marital property and that it must be equitably divided between Husband and Wife. In so doing, the court ordered that Wife remain an option 3 beneficiary on the account. Then, complying with the court's order and pursuant to section 14-10-113(6)(f), C.R.S. (2021) —which requires that the parties in a dissolution of marriage action execute a "written agreement" to authorize the court's division of public employment benefits — Husband and Wife executed a document specifying that Husband was not allowed to remove Wife as cobeneficiary on the account and that they would split Husband's monthly benefit payments equally.

¶8 Husband subsequently moved for post-trial relief, asserting that the court's decision was unfair because his monthly benefit payments under option 3 were hundreds of dollars less than they would be under option 1. After Wife responded, Husband replied with a new argument. Specifically, Husband cited section 24-51-802(3.8), which provides that, in a dissolution of marriage action, "the court shall have the jurisdiction to order or allow [the] retiree ... to remove the spouse that was named cobeneficiary by the retiree at retirement, in which case an option 1 benefit shall become payable." Husband argued that this statute gave him an "absolute right" to unilaterally remove Wife as his cobeneficiary and to convert his benefit plan to option 1. The district court denied the motion, finding that Husband "fail[ed] to state any basis to amend the Court's judgement other than his disagreement with the result," and that it had "already considered these arguments."

¶9 Husband appealed, and a unanimous division of the court of appeals affirmed in an unpublished opinion. In re Marriage of Mack , No. 19CA1816, ¶ 1, 2020 WL 7407202 (Dec. 10, 2020). The division held that Husband had failed to preserve his "absolute right" argument under section 24-51-802(3.8) because he had not raised it until his reply in support of his post-trial motion. Id. at ¶¶ 27-28. Thus, the division declined to interpret the statute. Id. at ¶ 28.

¶10 We granted certiorari³ and now affirm the division on different grounds.

II. Analysis

¶11 We begin by assuming, without deciding, that the issue of statutory interpretation is preserved. We then discuss the applicable standard of review and rules of statutory construction. Finally, we analyze section 24-51-802(3.8), and, applying the statute's plain language, we hold that it vests the trial court, not the retiree, with the authority to remove the former spouse as cobeneficiary and facilitate a conversion to option 1.

A. Issue Preservation

¶12 Usually, "issues not raised in or decided by a lower court will not be addressed for the first time on appeal." Glover v. Serratoga Falls LLC , 2021 CO 77, ¶ 26, 498 P.3d 1106, 1114 (quoting United Water & Sanitation Dist. ex rel. United Water Acquisition Project Water Activity Enter. v. Burlington Ditch Reservoir & Land Co., 2020 CO 80, ¶ 37, 476 P.3d 341, 350 ). But because we conclude that Husband's statutory argument is unavailing, we need not decide whether he preserved the issue for appeal.⁴ Therefore, we simply assume that Husband preserved his argument and now address its merits.

B. Interpreting Section 24-51-802(3.8)

1. Standard of Review and Rules of Statutory Construction

¶13 We review questions of statutory interpretation de novo. Justus v. State, 2014 CO 75, ¶ 17, 336 P.3d 202, 208. In construing a statute, our goal "is to give effect to legislative intent." Johnson v. Sch. Dist. No. 1, 2018 CO 17, ¶ 11, 413 P.3d 711, 715. Therefore, we examine "the entire statutory scheme to give consistent, harmonious, and sensible effect to all parts[,]" and we apply "words and phrases according to their plain and ordinary meaning." Vallagio at Inverness Residential Condo. Ass'n v. Metro. Homes, Inc., 2017 CO 69, ¶ 16, 395 P.3d 788, 792 (quoting Pulte Home Corp. v. Countryside Cmty. Ass'n, Inc., 2016 CO 64, ¶ 24, 382 P.3d 821, 826 ).

¶14 When the statutory language is clear, we must enforce it as written. Id. Only if the language is ambiguous may we resort to other tools of statutory construction. Munoz v. Am. Fam. Mut. Ins. Co., 2018 CO 68, ¶ 9, 425 P.3d 1128, 1130.

2. Section 24-51-802(3.8) Vests Power in the Court, Not in the Retiree

¶15 Under section 24-51-802(1), when a retiree chooses a benefit option and designates a cobeneficiary, those choices are final absent some statutory exception. The provision at issue in this case, section 24-51-802(3.8), affords such an exception to section 24-51-802(1)'s general rule. As relevant here, section 24-51-802(3.8) provides that, in any dissolution action where the retiree chose either option 2 or 3 benefits and the retiree's then-spouse was named cobeneficiary, "the court shall have the jurisdiction to order or allow [the] retiree ... to remove the spouse that was named cobeneficiary by the retiree at retirement, in which case an option 1 benefit shall become payable."

¶16 The question here is whether a divorcing retiree can trigger the statute's removal-and-conversion mechanism, or whether that power lies only with the presiding court. Husband contends that the language "the court shall have the jurisdiction to order or allow [the] retiree" to remove the cobeneficiary spouse, id., does not simply enable the court to remove the cobeneficiary but in fact requires the court to do so upon the retiree's request. There are four components to Husband's interpretation, none of which we find persuasive.

¶17 First, Husband reads the verbs to "order" and to "allow" as ministerial. He relies on two subsections of Colorado's equitable distribution statute, section 14-10-113. The first, subsection (6)(f), mandates that "[a] court shall have no jurisdiction to enter an order dividing a public employee retirement benefit except upon written agreement of the parties ." (...