Marriage of Cargill and Rollins, In re, 91SC738

• Decision Date: 11 January 1993
• Docket Number: No. 91SC738,91SC738
• Citation: 843 P.2d 1335
• Parties: In re the MARRIAGE OF Lucia C. CARGILL, f/k/a Lucia C. Rollins, Petitioner, and Donald R. ROLLINS, Respondent.
• Court: Colorado Supreme Court

Page 1335

843 P.2d 1335

In re the MARRIAGE OF Lucia C. CARGILL, f/k/a Lucia C. Rollins, Petitioner and Donald R. ROLLINS, Respondent.

No. 91SC738.

Supreme Court of Colorado En Banc.

Jan. 11, 1993.

Frey, Lach, & Michaels, P.C., Susan M. Lach, John P. Frey, Fort Collins, for petitioner.

Wood, Herzog, Osborn & Bloom, P.C., Charles S. Bloom, Jennifer J. Stocker, Fort Collins, for respondent.

Justice MULLARKEY delivered the Opinion of the Court.

The court of appeals in In re the Marriage of Cargill and Rollins, 826 P.2d 387 (Colo.App.1991), reversed the judgment of the district court which had reinstated a maintenance award. The court of appeals concluded that the husband's maintenance obligation terminated upon the remarriage of the wife and could not be revived upon the annulment of that marriage. We granted certiorari and now reverse the court of appeals and remand with directions. We hold that, while an annulment of a marriage does not automatically reinstate a maintenance obligation from a previous marriage as a matter of law, such an obligation may be reinstated, depending on the facts and the equities of the situation.

I.

Lucia C. Cargill and Donald R. Rollins were married in 1972, and four children were born of the marriage. While Rollins completed medical school, Cargill supported the family. At the time when their marriage was dissolved, Cargill was studying to obtain her Master's and Ph.D. degrees in anthropology.

Cargill and Rollins signed a separation agreement in October 1985 in contemplation of dissolving their thirteen-year marriage. The dissolution court subsequently found that the separation agreement was not unconscionable as to support, maintenance, and property distribution and incorporated the agreement into the dissolution of marriage decree. Under the terms of the agreement, Rollins was required to pay Cargill maintenance for a period of six years. ¹ To give Rollins a tax advantage, the payments were attributed completely to maintenance and none to child support.

In August 1988, Lucia Cargill married Stefan Schwaab whom she had known only seven weeks. ² Schwaab represented to Cargill that he wanted to have children, had an income of $37,000 to $39,000 per year, and that he would be able to help support Cargill's children. Instead, Schwaab began to drain Cargill's resources, borrowing $5,000 per month from credit cards and bank credit lines, and refusing to take a job. His behavior was violent, immature and emotionally unstable. They cohabited as husband and wife for about four months and were separated in March 1989, when Cargill petitioned to have the marriage annulled. This marriage was annulled on December 7, 1989 for fraud going to the essence of the marriage. ³ Shortly thereafter, Schwaab declared bankruptcy, leaving Cargill with $120,000 of debt, mostly accrued during their "marriage," and including $21,000 in debt that Cargill was forced to accept when she sold her (second) house ⁴ without being able to pay off the second mortgage on the house, and $20,000 in student loans. At the time of the trial court's decision restoring her maintenance, she was teetering on the edge of bankruptcy. In contrast, Rollins' expected income for 1990 was in excess of $200,000. Cargill's plans to finish studying for her Master's and Ph.D. degrees had been sidetracked because of the litigation, her financial difficulties and the resulting stress.

Rollins was allowed to challenge the annulment of the Cargill-Schwaab marriage when Cargill sought restoration of maintenance. Considering all the evidence, the district court found that Schwaab had lied to Cargill about his income, debts, and financial prospects, and that, once they were married, he rapidly depleted her financial resources. The court concluded that the annulment proceeding was not collusive, that Cargill's marriage to Schwaab was void pursuant to Colorado law, and that this finding was binding on Rollins.

The trial court further held that the reinstatement of maintenance was appropriate. At the hearing to determine whether maintenance should be reinstated, Cargill testified that she and Rollins intended to split the assets of the marriage evenly and each took approximately $20,000 in debt from the marriage. Child care also was to be handled equally by the two parents. Cargill testified that the amount of maintenance fixed in the separation agreement, $3,520 per month for twenty seven months and $2,720 per month for thirty five additional months, was designed to allow each separate household to have roughly equivalent lifestyles based on Rollins' 1985 estimated salary of $91,000. Rollins had completed medical school and established a substantial ability to earn income during the thirteen-year marriage. His earning ability far exceeded that of Cargill who was a student with no income at the time of the dissolution decree. Since the marriage was dissolved, Rollins' income has risen substantially, while Cargill is still seeking her Ph.D. in cultural anthropology. Her net worth has declined and her assets have been substantially depleted. ⁵ Essentially, the court found that maintenance was appropriate at the time of the dissolution of the marriage of Cargill and Rollins, and the changes of circumstance simply made the case for maintenance more compelling. The court also ordered that reinstatement of maintenance should be retroactive to August 1988, when Cargill married Schwaab, but subsequently stayed the payment of the retroactive maintenance. The court of appeals reversed the trial court.

II.

We granted certiorari to determine whether the court of appeals correctly held that, as a matter of law, annulment of a woman's second marriage could not reinstate maintenance payable to the woman by her first husband. We disagree with the court of appeals' disposition of this case for several reasons.

First, the court of appeals was mistaken in its conclusion that the term "remarriage" is unambiguous and that its plain meaning is a ceremonial remarriage, not the status of being remarried. Second, we conclude that, while an invalidated second marriage may serve to reinstate a payor spouse's maintenance obligation from the first marriage, such a reinstatement does not occur automatically as a matter of law but must be based on the particular facts and equities of the case. Accordingly, we reverse the court of appeals.

A.

The court of appeals found that the word "remarriage" as used in section 14-10-122(2) is unambiguous and that the plain meaning of the term is a ceremonial marriage. This conclusion is unfounded and creates a tension with the law in this state concerning common-law marriage.

The dictionary defines remarriage as having two meanings: "an act or instance of remarrying; the state of being remarried." Webster's Third New International Dictionary 1919 (1986). Neither definition is preferred. See also Black's Law Dictionary 876 (5th ed. 1979) ("marriage" defined as both status and ceremony). In light of this authority, we find it difficult to understand how the court of appeals could conclude that the plain meaning of "remarriage" is only one of these two complementary meanings of the term.

The primary function of a court in interpreting and construing statutes is to ascertain and to give effect to the intent of the General Assembly, choosing a construction that serves the purpose of the legislative scheme. Farmers Group v. Williams, 805 P.2d 419, 422 (Colo.1991) (quoting Colorado Dep't of Social Serv.'s v. Board of Comm'rs, 697 P.2d 1, 18 (Colo.1985)). In 1971, Colorado adopted the Uniform Marriage and Divorce Act, sections 14-2-101 to -113 and 14-10-101 to -133, 6B C.R.S. (1987 and 1992 Supp.), substantially based on the Uniform Act as approved by the National Commissioners on Uniform State Laws in 1970. See Unif. Marriage and Divorce Act, 9A U.L.A. (1987 & 1992 Supp.). Section 14-10-104 provides that the Act should be applied so as to make the laws of the states which adopt the Act uniform.

While we generally agree that uniform statutes should be construed to bring uniformity to the law in the various states adopting them, there are other factors to consider. First of all, the Uniform Marriage and Divorce Act has been adopted, in whole or (mostly) in part by only seven other states. ⁶ The vast dissimilarities between the version adopted by the General Assembly and those adopted by the other seven states make it difficult to construe the act uniformly. Second, Colorado, unlike all of the other states adopting the Uniform Act except Montana, recognizes common-law marriage. ⁷ Finally, other jurisdictions have not construed the Uniform Act uniformly, so there are disparate constructions placed on the provisions of the uniform act which we are called upon to construe. Compare In re Marriage of Williams, 208 Mont. 252, 677 P.2d 585 (1984) (maintenance obligation neither automatically terminated nor automatically reinstated when remarriage annulled) with In re Marriage of Harris, 203 Ill.App.3d 241, 148 Ill.Dec. 541, 560 N.E.2d 1138 (1990) (remarriage ceremony terminates maintenance obligation, notwithstanding annulment of remarriage).

The plain language of section 14-10-122 provides that maintenance obligations terminate upon "remarriage" but the statute does not define "remarriage." After reviewing the law regarding marriage in Colorado, the changing purposes served by the payment of alimony and maintenance, and case law from other jurisdictions, we conclude that the legislature intended "remarriage" to mean the status of remarriage.

First, the definition of remarriage must take into account the fact that common law marriage is recognized in the State of Colorado. A common law marriage does not require any kind of ceremony at all but only the agreement of the parties, followed by the mutual and open assumption of a marital relationship. People v. Lucero, 747 P.2d 660, 663 (Colo.1987). If remarriage were interpreted to mean...