In re Marriage of Ebel

• Decision Date: 02 June 2005
• Docket Number: No. 03CA2090.,03CA2090.
• Citation: 116 P.3d 1254
• Parties: In re the MARRIAGE OF Lois J. EBEL, Appellee, and Clarence J. Ebel, Jr., Appellant.
• Court: Colorado Supreme Court

116 P.3d 1254

In re the MARRIAGE OF Lois J. EBEL, Appellee, and Clarence J. Ebel, Jr., Appellant.

No. 03CA2090.

Colorado Court of Appeals, Division Two.

March 10, 2005.

Rehearing Denied June 2, 2005.

Michael R. Enwall, Boulder, Colorado, for Appellee.

Philip D. Geil, Boulder, Colorado, for Appellant.

TAUBMAN, J.

In this post-dissolution proceeding, Clarence J. Ebel, Jr. (husband) appeals the district court's order concluding it lacked jurisdiction to determine his request for maintenance from Lois J. Ebel (wife). We affirm.

As noted in a prior appeal, this case has had a "long and tortuous journey through multiple state and federal courts." In re Marriage of Ebel, 2002 WL 1773338 (Colo.App. No. 00CA0170, Feb. 14, 2002)(not published pursuant to C.A.R. 35(f))(Taubman, J., dissenting)(Ebel II). Because the background of this case is sufficiently set forth in two prior decisions, In re Marriage of Ebel, 874 P.2d 406 (Colo.App.1993)(Ebel I), and Ebel II, supra, we need not repeat the entire procedural history of the case here.

However, as pertinent to this appeal, the court held a hearing on permanent orders in 1999. As part of its permanent orders, the trial court awarded wife the entire marital estate, which was estimated by the court at $1.6 million as of the August 1986 decree of dissolution. Neither party sought maintenance as part of the permanent orders proceeding, and the decree and order were silent as to maintenance. Husband appealed the permanent orders to this court, including the issue of whether the trial court erred by not awarding him maintenance. In Ebel II, a majority of the division affirmed the trial court's property distribution and concluded that husband had waived maintenance by failing to list it as an issue on his trial management certificate.

Husband filed a petition for certiorari, which was denied by the supreme court in January 2003. In April 2003, husband filed a motion to modify maintenance. Thereafter, he filed a motion to determine maintenance under § 14-10-114, C.R.S.2004, requesting that the court grant him temporary maintenance until a permanent orders hearing on maintenance could be held.

The magistrate found that the court lacked jurisdiction to consider husband's motion because the trial court had not retained jurisdiction over maintenance when permanent orders were entered in 1999. Husband moved for review of the magistrate's order, which was affirmed by the district court. The district court concluded that § 14-10-114 "simply allows the court at the time of permanent orders and after the marriage is dissolved, to determine maintenance."

I. Maintenance

Husband contends the district court erred in finding it lacked jurisdiction to consider his request for maintenance after permanent orders had been entered. He asserts that he had no reason to request maintenance at the time of the 1999 permanent orders hearing because he expected to receive a reasonable share of the $1.6 million marital estate, which had more than doubled in value by 1999. Husband contends that § 14-10-114(3), C.R.S.2004, allows a party to request maintenance after the entry of permanent orders, even when the court has not expressly reserved jurisdiction to determine maintenance at a later date. Although we agree that the district court lacked jurisdiction to consider husband's motion for maintenance, we reach that conclusion under a different analysis.

A. Effect of Prior Decision

We first address wife's contention that our decision in Ebel II precludes us from considering husband's argument. We agree in part.

To the extent husband argues here that he did not waive maintenance at the time of permanent orders, we conclude that issue has already been determined in Ebel II and is the law of the case. See People v. Roybal, 672 P.2d 1003 (Colo.1983)(the pronouncement of an appellate court on an issue in a case presented to it becomes the law of the case).

However, to the extent husband's claim is based on his interpretation of § 14-10-114(3), we conclude that the division's determination in Ebel II that husband waived maintenance in the initial proceeding is not res judicata or the law of the case on the issue of whether § 14-10-114(3) allows a party to make a new request for maintenance after the entry of permanent orders.

As wife recognizes, the doctrine of res judicata or claim preclusion does not precisely apply here because husband's present request for maintenance is not a proceeding independent of the dissolution case. Further, In re Marriage of Mallon, 956 P.2d 642 (Colo.App.1998), on which wife relies, is distinguishable. There, a division of this court applied the principles of res judicata and collateral estoppel to preclude the wife in an action for dissolution of marriage from attacking the subject matter jurisdiction of the court nineteen months after the court entered its permanent orders. Here, in contrast, husband does not seek to set aside a prior final determination of the trial court. Rather, he contends that he has a statutory right to request maintenance following the issuance of permanent orders.

Similarly, husband's statutory argument is not barred by the law of the case doctrine because he raises an issue not previously decided. Thus, we turn to the interpretation of § 14-10-114(3).

B. New Maintenance Request

Initially, we reject husband's contention that the prior version of the statute applies here. Rather, the current version of § 14-10-114(3), in effect when husband filed his motion for maintenance in April 2003, applies. That statute states, in pertinent part:

In a proceeding for dissolution of marriage or legal separation or a proceeding for maintenance following dissolution of marriage by a court, the court may grant a temporary maintenance order ... or a maintenance order at the time of permanent orders for either spouse only if it finds that the spouse seeking maintenance [meets certain conditions].

(Emphasis added.) Thus, the statute appears to contemplate three scenarios in which the court may make an award of maintenance: (1) a proceeding for dissolution; (2) a legal separation; and (3) a proceeding following dissolution.

Husband argues that the third scenario allows a party to request maintenance after the conclusion of permanent orders, particularly where, as here, he did not believe he would need maintenance until the trial court awarded all the marital property to wife.

In addition to the plain language of the statute, husband relies on a Colorado family law treatise, which discusses nominal awards of maintenance, and states:

[T]he statute and case law strongly suggest that the Court always has jurisdiction to enter a post decree order awarding or modifying maintenance, regardless of whether it expressly reserved jurisdiction to do so and regardless of whether it ordered nominal maintenance at the time of entering the decree.

F. McGuane, K. Hogan & B. Storey, 19 Colorado Practice § 25.14 (1999). As authority for this proposition, the treatise cites In re Marriage of Lee, 781 P.2d 102 (Colo.App.1989), a case involving the modification of maintenance.

The court's primary task in construing a statute is to give effect to the intent of the General Assembly by looking first at the language of the statute. Vaughan v. McMinn, 945 P.2d 404 (Colo.1997). In interpreting a comprehensive legislative scheme, the court must give meaning to all portions thereof and construe the statutory provisions to further the legislative intent. A.B. Hirschfeld Press, Inc. v. City & County of Denver, 806 P.2d 917 (Colo.1991). The General Assembly is presumed to be cognizant of and to adopt the construction which prior judicial decisions have placed on particular language when such language is employed in subsequent legislation. Thompson v. People, 181 Colo. 194, 510 P.2d 311 (1973).

Historically, Colorado courts have held that if a party did not request maintenance at a permanent orders hearing, the party waived the right to receive maintenance. See In re Marriage of Seewald, 725 P.2d 1171 (Colo.App.1986). For this reason, courts have often entered a nominal maintenance award of one dollar per year to permit "an adjustment upward if future circumstances require." See In re Marriage of Fernstrum, 820 P.2d 1149, 1152 (Colo.App.1991). Alternatively, the appellate courts have held that a trial court may expressly reserve jurisdiction to review, adjust, or extend the maintenance award under certain specified conditions. In re Marriage of Caufman, 829 P.2d 501 (Colo.App.1992).

Notwithstanding these prior interpretations of Colorado's maintenance statutes, husband maintains that under § 14-10-114(3), the phrase "a proceeding for maintenance following dissolution of marriage by a court," which has not previously been interpreted by Colorado's appellate courts, provides a new and heretofore unused alternative for a party to request maintenance even though he or she did not request maintenance at the permanent orders hearing. We disagree.

In our view, the quoted language emphasized above applies to circumstances where the court issuing the decree of dissolution initially lacked personal jurisdiction over the absent spouse and, therefore, could not have ordered one spouse to pay maintenance.

Colorado's Uniform Dissolution of Marriage Act is based on the model Uniform Marriage and Divorce Act (UMDA), and Colorado courts have looked to the UMDA in interpreting the Colorado statute. See, e.g., In re Marriage of Francis, 919 P.2d 776 (Colo.1996)(citing commissioner's comment to uniform act in interpreting child custody provisions of UMDA); In re Marriage of Fickling, 100 P.3d 571 (Colo.App.2004)(citing official comment to UMDA in analyzing weight given to temporary orders).

Section 308(a) of the UMDA is similar to § 14-10-114(3). It provides: "In a proceeding for dissolution of marriage, legal separation, or maintenance following a decree of dissolution of marriage by a court...