In re Zander

• Decision Date: 26 September 2019
• Docket Number: Court of Appeals No. 18CA1209
• Citation: 486 P.3d 352
• Parties: IN RE the MARRIAGE OF Denise ZANDER, Appellee, and John Zander, Appellant.
• Court: Colorado Court of Appeals

486 P.3d 352

IN RE the MARRIAGE OF Denise ZANDER, Appellee, and John Zander, Appellant.

Court of Appeals No. 18CA1209

Colorado Court of Appeals, Division I.

Announced September 26, 2019

Anthony J. DiCola, Heather A. Stein, Hot Sulphur Springs, Colorado, for Appellee

Leigh A. Rosser, Edwards, Colorado, for Appellant

Opinion by JUDGE TAUBMAN

¶1 John Zander (husband) appeals the property division entered in connection with the dissolution of his marriage to Denise Zander (wife). We reverse and remand for additional proceedings.

I. Background

¶2 In 2018, the district court dissolved the parties’ seventeen-year marriage and divided the marital estate equally. In doing so, the court determined that an oral agreement entered into by the parties during the marriage was valid and enforceable. The court also awarded wife monthly spousal maintenance of $1 until further court order.

¶3 The district court denied husband's C.R.C.P. 59 motion, and this appeal followed.

II. Husband's Appeal of the Property Division is Not Barred

¶4 To begin, we address wife's argument, as we understand it, that husband's appeal of the property division is barred because he failed to appeal the maintenance award and used marital funds during the dissolution proceeding to pay certain marital debts. We disagree.

¶5 Wife asks us to follow the general rule that a party who accepts the benefits of a judgment may not seek reversal of that judgment on appeal. In re Marriage of Jones , 627 P.2d 248, 251 (Colo. 1981) ; DiFrancesco v. Particle Interconnect Corp. , 39 P.3d 1243, 1246 (Colo. App. 2001) (Ordinarily, a party's right to appeal a judgment is waived by the party's acceptance of the benefits of that judgment "when the appeal may result in a determination that the party is not entitled to what has been accepted."). However, that rule is not strictly applied in dissolution of marriage cases, and it does not apply here. See In re Marriage of Powell , 220 P.3d 952, 954 (Colo. App. 2009) ; In re Marriage of Burford , 950 P.2d 682, 684 (Colo. App. 1997). Husband's acceptance of the maintenance award and his use of marital funds during the dissolution action are not inconsistent with the basis of his appeal and do not deprive him of his right to seek review of the court's property division. See Powell , 220 P.3d at 954 ; see also In re Marriage of Antuna , 8 P.3d 589, 592 (Colo. App. 2000) (husband's acceptance of a court-ordered payment did not constitute a waiver of his right to appeal); In re Marriage of Lee , 781 P.2d 102, 105 (Colo. App. 1989) (wife's acceptance of maintenance payments did not waive her right to appeal because public policy prohibits requiring a former spouse to choose between the necessities of life and the right to appeal).

III. The Parties’ Oral Marital Agreement is Unenforceable

¶6 Husband contends that the district court erred in finding that the alleged oral marital agreement was valid and enforceable. We agree.

¶7 The record reflects that the parties entered the marriage with separate retirement accounts and received inheritances from their parents during the marriage. Wife testified that in 2007 the parties orally agreed to keep their retirement accounts and inheritances as their separate property.¹ Also in 2007, the parties executed a revocable living trust, which was amended to exclude their retirement accounts. Wife offered, and the district court admitted, Exhibit 41, a 2014 email from husband to his adult son from a prior marriage, arguably supporting the validity of the alleged oral agreement:

• "I am setting up an investment account with Ameriprise with money from grandma's estate. You are the sole beneficiary."

• "My [individual retirement account] is down $160,000. You and [your sister] are the 50-50 beneficiaries. She will probably let the full amount go to you. That is her decision."

¶8 For his part, husband denied having made any such agreement.²

¶9 The district court, in a thoughtful and detailed written order, sided with wife. Relying on section 14-10-113(2)(d), C.R.S. 2019, basic contract principles, and an adverse credibility finding against husband, the court determined that wife had established a valid oral agreement to exclude the parties’ respective retirement accounts and inheritances from the marital estate. The court reasoned that husband's conduct after the alleged agreement corroborated its existence:

[Husband] denies that the parties made the agreement to keep their inheritances and retirement accounts their separate property even though he testified that he wants the remainder of his IRA as his separate property when it contains marital property. Further, Exhibit 41 ... supports the validity of the parties’ agreement as does the fact that the parties never placed their retirement accounts or the proceeds from their pensions into their trust, which was their estate planning vehicle.

¶10 Husband does not dispute that an oral agreement may be valid under general contract principles. Rather, he argues that the enactment of the Colorado Marital Agreement Act (CMAA) in 1986 displaced common law contract principles permitting parties to enter into marital agreements by means other than those prescribed in the CMAA. See In re Marriage of Ikeler , 161 P.3d 663, 667 (Colo. 2007) ; see also § 14-2-310(1), C.R.S. 2007. Put simply, he asserts that only written and signed marital agreements are valid and enforceable.

¶11 Our analysis requires us to interpret the CMAA, the law applicable at the time the purported agreement was made, and the Uniform Dissolution of Marriage Act (UDMA). See § 14-2-303(1), C.R.S. 2019 (the current version of the Uniform Premarital and Marital Agreements Act (UPMAA), sections 14-2-301 to - 313, C.R.S. 2019, applies only to agreements signed on or after July 1, 2014); Ch. 239, sec. 1, § 14-2-301, 2013 Colo. Sess. Laws 1159 (CMAA repealed and reenacted as the UPMAA). The interpretation of statutes is an issue of law that we review de novo. See Ikeler , 161 P.3d at 666.

¶12 Our primary goal in statutory interpretation is to find and give effect to legislative intent. In re Marriage of Joel , 2012 COA 128, ¶ 18, 404 P.3d 1251, 1254. To ascertain the legislative intent, we look first to the language of the statute, giving words and phrases their plain and ordinary meanings. See § 2-4-101, C.R.S. 2019; Joel , ¶ 18. If the language is clear and unambiguous on its face, we apply the statute as written. In re Marriage of Schmedeman , 190 P.3d 788, 790 (Colo. App. 2008).

¶13 But if one statute conflicts with another, we should, if possible, adopt a construction that harmonizes these provisions rather than creates an inconsistency or conflict in the statutory scheme. In re Marriage of Bisque , 31 P.3d 175, 178 (Colo. App. 2001) (resolving conflict between the UDMA and the CMAA). If statutes addressing the same subject cannot be harmonized, we ordinarily favor a specific statute over a general one as it is a clearer indication of the General Assembly's intent in a specific area. See Telluride Resort & Spa, L.P. v. Colo. Dep't of Revenue , 40 P.3d 1260, 1265 (Colo. 2002) ; In re Marriage of Rozzi , 190 P.3d 815, 819 (Colo. App. 2008) ; see also § 2-4-205, C.R.S. 2019 (a special provision prevails as an exception to a general provision, unless the general provision was later adopted and expresses a manifest intent that it prevails). Also, if statutes irreconcilably conflict, the statute with the later effective date prevails. § 2-4-206, C.R.S. 2019.

¶14 The UDMA, enacted in 1971, creates a statutory presumption that property acquired during the marriage is marital property. See § 14-10-113(3) ; see also Michaelson v. Michaelson , 884 P.2d 695, 697 n.2 (Colo. 1994). That presumption, however, may be overcome by establishing that the property was acquired by one of the methods listed in section 14-10-113(2). One such method is that the property acquired during the marriage was excluded "by valid agreement of the parties." § 14-10-113(2)(d). Nowhere in the UDMA is the phrase "valid agreement" specifically defined.

¶15 In contrast, section 14-2-302(1), C.R.S. 2007, of the CMAA defines marital agreement as "an agreement ... between present spouses, but only if signed by both parties prior to the filing of an action for dissolution of marriage or for legal separation." See In re Marriage of Goldin , 923 P.2d 376, 380 (Colo. App. 1996) (agreement written in longhand by the wife met the statutory definition of "marital agreement"). According to the CMAA, the requisite formalities are that marital agreements "be in writing and signed by both parties." § 14-2-303, C.R.S. 2007. "A marital agreement becomes effective upon marriage, if signed by both parties prior to marriage, or upon the signatures of both parties, if signed after marriage." § 14-2-305, C.R.S. 2007. And after the agreement becomes effective, it can only be amended or revoked "by a written agreement signed by both parties." § 14-2-306, C.R.S. 2007.

¶16 Looking at the relationship between section 14-10-113(2)(d) of the UDMA and sections 14-2-302(1), 14-2-303, and 14-2-305, C.R.S. 2007, of the CMAA, we conclude that the statutory provisions can be harmonized. See Telluride Resort & Spa , 40 P.3d at 1265. Thus, a "valid agreement" of the parties to exclude as marital property certain property acquired during the marriage must be a written agreement signed by both parties. To conclude otherwise would mean that spouses in a dissolution of marriage proceeding could always exclude certain marital property, even if they did not have a written agreement. Such a conclusion would be inconsistent with the language contained in section 14-2-302(1), C.R.S. 2007. As a result, the district court erred in not following the plain language of the CMAA and instead broadly construing "valid agreement" in section 14-10-113(2)(d) to include an oral marital agreement.

¶17 Our survey of the UDMA leads us to believe that when the General Assembly intends to require a...