In re Marriage of Burford, 99CA1781.

• Decision Date: 10 May 2001
• Docket Number: No. 99CA1781.,99CA1781.
• Citation: 26 P.3d 550
• Parties: In re the MARRIAGE OF Robert F. BURFORD, Deceased, by his Estate, Appellant and Cross-Appellee, and Anne M. Burford, Appellee and Cross-Appellant.
• Court: Colorado Court of Appeals

26 P.3d 550

In re the MARRIAGE OF Robert F. BURFORD, Deceased, by his Estate, Appellant and Cross-Appellee, and

Anne M. Burford, Appellee and Cross-Appellant.

No. 99CA1781.

Colorado Court of Appeals, Div. V.

May 10, 2001.

Dufford Waldeck Milburn & Krohn, LLP, Laird T. Milburn, Grand Junction, CO, for Appellant and Cross-Appellee.

Anne M. Burford, Denver, CO, for Appellee and Cross-Appellant.

Opinion by Judge ROTHENBERG.

In this dissolution proceeding, Anne M. Burford (wife) and the estate of her deceased husband, Robert F. Burford (husband's estate), appeal certain provisions of the property division entered by the trial court as permanent orders. We affirm in part, reverse in part, and remand with directions.

In 1992, the trial court entered a decree dissolving the parties' nine-year marriage, but permanent orders were deferred. Husband died two months before the 1993 permanent orders hearing, and his estate was substituted as a party to the dissolution proceeding. At the permanent orders hearing, the trial court first determined whether the parties' assets were separate or marital. It then determined the increase in value of husband's separate property by subtracting the decrease in value of certain of his separate assets from the increase in value of other separate assets. After concluding that the net increase in value of husband's separate property was marital property, the court went on to divide the marital property by awarding wife assets worth $118,130, and awarding husband assets worth $43,286. The court found that this division was justified given that husband had separate assets exceeding $1.6 million.

Wife appealed from that division of property, contending, inter alia, that the dissolution action had abated upon husband's death. A panel of this court agreed, but the supreme court rejected her argument, see Estate of Burford v. Burford, 935 P.2d 943 (Colo.1997),

and remanded the matter to the court of appeals for resolution of the remaining issues.

The division on remand held that the trial court had erred in calculating the increase in value of the husband's property during the marriage. The trial court had subtracted decreases in the value of his separate property during the marriage from the increases of such property, thus netting the gains and losses. In re Marriage of Burford, 950 P.2d 682 (Colo.App.1997).

The panel explained that increases in the value of a particular separate asset constitute marital property under § 14-10-113(4), C.R.S.2000, and that for this purpose, decreases in the value of the separate property should be disregarded. However, it stated that an increase or decrease in the aggregate value of separate property was an economic circumstance to be considered in the equitable division of the marital estate under § 14-10-113(1)(d), C.R.S.2000. The panel reversed and remanded the case to the trial court for reconsideration of the property division, instructing the trial court to recalculate the value of the marital property accordingly.

On remand, the trial court — with a different judge presiding — took no additional evidence. After hearing oral argument, the court entered the 1999 permanent orders at issue here.

The court on remand adhered to the basic valuations made by the original trial court at permanent orders, as well as the original court's proportional division of debt and its division of the marital property. Using separate charts, the trial court on remand found that: (1) husband had premarital assets that had increased in value during the marriage in the aggregate amount of $452,100; (2) the $452,100 constituted marital property and an equal division of it would be equitable; and (3) husband also had separate assets that had decreased in value during the marriage in the amount of $287,700. The court ordered that husband's estate pay wife $226,050 as her half of the increase in the value of his separate property.

The court further found that during the marriage, husband had used between $293,990 and $341,000 of the parties' marital funds to pay down or pay off his separate debts. Wife asserted that the resulting increase in the value of husband's separate property constituted marital property, but the trial court disagreed, concluding that husband's payments did not create an asset subject to division. The trial court reasoned that some of the separate assets had suffered a decrease in value even with the reduction in debt. Alternatively, the court found that even if the pay-down in debt were considered an increase in separate property, the entire increase should be allocated to the husband's estate because of husband's greater financial contribution to the marriage.

The court awarded husband's estate his separate assets, stating that it "[had] considered their decrease in value and their allocation to husband's separate estate in subsequently determining the division of the marital assets."

I. Appeal by Husband's Estate

Husband's estate contends the trial court on remand erred by failing to follow the law of the case established in the original permanent orders and by failing properly to consider the decrease in husband's separate property. We reject both contentions.

A. Law of the Case

The estate maintains that wife never appealed the provision in the original permanent orders giving husband credit for the decrease in value of his separate property. The estate characterizes wife's prior appeal as one challenging the process by which husband was given credit for the decrease. According to the estate, husband therefore must be given credit for the decrease in value of his separate property in the same manner as in the original permanent orders. We disagree with the estate's application of the law of the case doctrine.

Under the law of the case doctrine, conclusions of an appellate court on issues presented to it, as well as rulings logically necessary to sustain such conclusions, become the law of the case and generally must be followed in subsequent proceedings in that case. See Super Valu Stores, Inc. v. District Court, 906 P.2d 72 (Colo.1995)

. The law of the case doctrine also applies to "the binding force of trial court rulings during later trial court proceedings." People v. Roybal, 672 P.2d 1003 (fn.5) (Colo.App.1983). However, application of the law of the case by a trial court to its prior rulings is a discretionary rule of practice. Kuhn v. State Dept. of Revenue, 897 P.2d 792 (fn.5)(Colo.1995).

In wife's appeal following the original permanent orders, she asserted that the trial court had erred in its calculation of the marital estate, and that decreases in the value of husband's separate assets should not have been deducted from the marital estate. She asserted that the decreases should have been taken into account only in the context of the equitable division of the marital property under § 14-10-113(1)(d).

The panel agreed and held that the decrease in value of the husband's separate property could not be considered when classifying property under § 14-10-113(4). The panel concluded that an overall, aggregate increase or decrease in separate property should be considered only for the purposes of the division of the marital estate if it affected the economic circumstances of the parties. See In re Marriage of Burford, supra.

The panel addressed the issue of the decrease in separate property in terms of its effect on the calculation of the marital estate and the division of the marital estate. Thus, the panel's opinion is the law of the case and must be followed on remand. The trial court's original permanent orders lost any binding effect or precedential value when they were reversed on appeal.

Although the trial court on remand adopted portions of the original permanent orders insofar as they were not inconsistent with the panel's opinion, this was a discretionary decision made by the trial court on remand. It was not mandated.

We therefore reject the estate's argument that the trial court on remand erred in failing to follow the law of the case established in the original permanent orders.

B. Increase or Decrease in Husband's Separate Property

Husband's estate next contends the trial court erred in failing to give appropriate consideration to the decrease in the value of husband's separate property in dividing the marital estate, or alternatively, by failing to articulate its reason for not doing so. Again, we disagree.

In the first appeal, the trial court was instructed by the panel to consider a decrease in the value of husband's separate property in dividing the marital estate only if there was an overall decrease in the entire aggregate value of the separate property. In re Marriage of Burford, supra. If there was an overall increase in value, any specific decreases in his separate assets were irrelevant.

Because the parties disagree whether there was an increase or a decrease in the overall aggregate value of husband's separate property during the marriage, we must first address this issue.

Wife asserts there was an overall increase in husband's separate property and points to the trial court's finding on remand that the husband's "total separate property increased in value during the marriage by $165,000." We assume the court reached this approximate figure by subtracting $287,700, which was the decrease in value of certain separate assets, from $452,100, which was the increase in value of the other separate assets.

Husband's estate, however, maintains that there was an overall decrease in his separate property during the marriage. According to the estate, the $452,100 increase in the value of the husband's separate assets became marital property under § 14-10-113(4), and once that increase became marital property, it could not be considered under § 14-10-113(1)(d) as an increase in the value of separate property affecting the equitable division of marital property. We reject the estate's argument, and...