09 In re the Marriage of Zander

     The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                 SUMMARY
                                                         September 26, 2019
                               2019COA149

No. 2018CA1209 In re the Marriage of Zander — Family Law —
Uniform Dissolution of Marriage Act — Disposition of Property
— Uniform Premarital And Marital Agreements Act — Colorado
Marital Agreement Act

     In this appeal concerning the division of property entered in

connection with a dissolution of marriage, the division considers the

conflict between the Colorado Marital Agreement Act (CMAA) and

the Uniform Dissolution of Marriage Act (UDMA) in the disposition

of marital property.

     Though section 14-10-113(2)(d), C.R.S. 2019, of the UDMA

provides that property acquired during marriage is marital property

unless excluded by “valid agreement” of the parties, the CMAA

states that marital agreements must be in writing and signed by

both parties. The division holds the two provisions can be
harmonized by concluding the more specific CMAA provision

governs.

     Accordingly, the division reverses the district court’s judgment

dividing the parties’ marital property and remands the case to allow

the court to redetermine an equitable property division.
COLORADO COURT OF APPEALS                                     2019COA149

Court of Appeals No. 18CA1209
Grand County District Court No. 16DR30001
Honorable Mary C. Hoak, Judge


In re the Marriage of

Denise Zander,

Appellee,

and

John Zander,

Appellant.


                        JUDGMENT REVERSED AND CASE
                         REMANDED WITH DIRECTIONS

                                   Division I
                         Opinion by JUDGE TAUBMAN
                        Hawthorne and Grove, JJ., concur

                         Announced September 26, 2019


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

Leigh A. Rosser, Edwards, Colorado, for Appellant
¶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


                                   1
judgment on appeal. In re Marriage of Jones, 

, 251

(Colo. 1981); DiFrancesco v. Particle Interconnect Corp., 

, 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, 

,

954 (Colo. App. 2009); In re Marriage of Burford, 

, 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,

; see also In re Marriage of Antuna, 

, 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, 

, 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).


                                   2
      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:




 1 Nevertheless, under section 14-10-113(4), C.R.S. 2019, the value
 of retirement accounts and inheritances at the time of the marriage
 is considered separate property. Because the increased value of
 retirement accounts and inheritances is considered marital
 property, a written agreement would be required, as discussed
 below, to have that marital property be considered as separate
 property.

                                   3
      • “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:




 2 Wife does not argue that husband was estopped from disavowing
 the oral agreement.

                                   4
            [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, 

, 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.


                                   5
  2019, applies only to agreements signed on or after July 1, 2014);

  Ch. 239, sec. 1, § 14-2-301, 

 (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, 

,

  ¶ 18, 

, 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, 

, 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, 

, 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


                                     6
  indication of the General Assembly’s intent in a specific area. See

  Telluride Resort & Spa, L.P. v. Colo. Dep’t of Revenue, 

,

  1265 (Colo. 2002); In re Marriage of Rozzi, 

, 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, 

,

  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


                                      7
  action for dissolution of marriage or for legal separation.” See In re

  Marriage of Goldin, 

, 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


                                     8
  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 written agreement, it

  expressly says so. See In re Marriage of Paige, 

, ¶ 12,

  

, 508; see also § 14-10-112(1), C.R.S. 2019 (“[P]arties

  may enter into a written separation agreement.”); § 14-10-

  113(6)(c)(I), (II) (Parties may enter into a UPMAA marital agreement

  or a separation agreement “concerning the division of a public

  employee retirement benefit . . . pursuant to a written agreement.”);

  § 14-10-114(7)(a), C.R.S. 2019 (“[P]arties may agree in writing or

  orally in court to waive maintenance” and “may also agree to waive

  maintenance in a premarital agreement or marital agreement

  consistent” with the UPMAA.); § 14-10-115(13)(a)(I), C.R.S. 2019

  (For child support orders entered on or after July 1, 1997, a child

  becomes emancipated at the age of the nineteen unless “[t]he


                                    9
  parties agree otherwise in a written stipulation.”); § 14-10-122(2)(a),

  C.R.S. 2019 (“Unless otherwise agreed in writing or expressly

  provided in the decree, the obligation to pay future maintenance is

  terminated upon the earlier of [four listed events.]”).

¶ 18     Although the General Assembly did not require in section 14-

  10-113(2)(d) that a “valid agreement” be in writing, it expressly

  provided that marital agreements under section 14-2-302(1), C.R.S.

  2007, be in writing and signed by both parties. Thus, as discussed

  above, section 14-2-302(1), C.R.S. 2007, must be given effect by

  requiring that all marital agreements must be in writing and signed

  by both parties.

¶ 19     In the alternative, if we were to conclude that the statutes

  cannot be harmonized, we would reach the same result because the

  CMAA statute is more specific and more recent. See §§ 2-4-205,

  206.

¶ 20     Nor are we persuaded by the district court’s reliance on In re

  Marriage of Lemoine-Hofmann, 

 (Colo. App. 1992).

  That reliance, although understandable, was misplaced. In

  Lemoine-Hofmann, in 1984, before the parties married, they had

  orally agreed to take turns putting each other through college. See


                                     10
  

. After they wed, but before their separation, the parties

  entered into a written separation agreement, which memorialized

  the prior oral agreement. See 

 After husband obtained his

  college degree, he requested a divorce. See 

¶ 21   Applying general contract principles, the division upheld the

  district court’s finding that the parties’ oral agreement, later

  recognized in their separation agreement, was valid and

  enforceable. See 

. The division considered significant

  the undisputed testimony that the parties intended to put each

  other through college regardless of their marital status. See 

. Also, the division dismissed the husband’s argument that the

  oral agreement was void as contrary to the statute of frauds. See

  

. The division stated that it was undisputed that “the

  obligations at issue were not made upon consideration of the

  parties’ marriage” and that the husband conceded that the wife had

  partially performed the agreement by putting him through college.

  See 

¶ 22   We observe that the 1984 agreement in Lemoine-Hofmann

  arose prior to the effective date of the CMAA. See Ikeler, 161 P.3d

  at 667; see also § 14-2-310(1), C.R.S. 2007. We further observe


                                     11
  that the oral agreement in Lemoine-Hofmann does not appear to

  have been a marital agreement at all as it was not made in

  contemplation of marriage. See Lemoine-Hofmann, 

589-

  90.

¶ 23    In contrast, the circumstances here are substantially similar

  to those in a case decided eleven years later, In re Marriage of

  Lafaye, 

 (Colo. App. 2003). There, the wife sought to

  enforce the husband’s oral promises that he would transfer oil and

  gas interests to her and contribute to her son’s medical school

  education. See 

. In distinguishing Lemoine-Hofmann, the

  division held that the alleged oral promises were not enforceable:

             [T]he court [in Lemoine-Hoffman] did not
             consider application of the [CMAA], and, unlike
             here, the fact that an oral agreement had been
             made and the circumstances of the agreement
             were not disputed. Further, the court found in
             that case that the oral agreement was binding
             based on part performance. No such finding
             was made here with respect to the oil and gas
             interests.

  

 We perceive no reason to depart from the holding in that case.

¶ 24    We also disagree with the district court’s determination that

  the parties’ conduct after entering into the alleged agreement




                                    12
  should be considered partial performance satisfying the writing

  requirement under the CMAA.

¶ 25   Under section 38-10-112(1)(c), C.R.S. 2019, an “agreement,

  promise, or undertaking made upon consideration of marriage,

  except mutual promises to marry,” are void absent a writing. One

  exception to the writing requirement under section 38-10-112(1)(c)

  is partial performance. See Lemoine-Hofmann, 

.

  However, we have concluded that the more specific and more recent

  CMAA governs, and it clearly and unambiguously requires a marital

  agreement to be in writing.

¶ 26   The district court’s reliance on Lemoine-Hofmann does not

  support its conclusion. As stated previously, the oral agreement in

  Lemoine-Hofmann was not a marital agreement and was entered

  into before the CMAA was enacted. See 

. Importantly,

  the division there upheld the parties’ oral agreement determining

  that partial performance overcame the requirements of section 38-

  10-112(1)(c); it did not say, however, that the partial performance

  doctrine excused the writing requirement in the CMAA. See

  Lemoine-Hofmann, 

. We may presume that the

  General Assembly was aware of that case when the CMAA was


                                   13
  enacted. See Vaughan v. McMinn, 

, 409 (Colo. 1997)

  (“The legislature is presumed to be aware of the judicial precedent

  in an area of law when it legislates in that area.”); U.S. Fid. & Guar.,

  Inc. v. Kourlis, 

, 1162-63 (Colo. App. 1994). We see

  nothing in the language of the CMAA and have found no authority

  to indicate that the General Assembly intended to incorporate such

  an exception.

¶ 27   Wife summarily states that “[e]ven if the [district] court was

  wrong in determining the validity of the oral agreement, the

  testimony [about an oral agreement] was parol evidence of the

  parties[’] intent to show what went on with the retirement accounts

  that were in and then out of the trust.” Because she does not

  support this argument with legal authority or any meaningful legal

  analysis, we will not address it. Barnett v. Elite Props. of Am., Inc.,

  

, 19 (Colo. App. 2010) (“We will not consider a bald legal

  proposition presented without argument or development.”).

¶ 28   Given our disposition, we need not address husband’s

  argument that the oral marital agreement was not enforceable

  because the parties did not adequately disclose their finances prior




                                     14
  to its execution. See § 14-2-307(1)(b), C.R.S. 2007; Bisque, 

.

¶ 29   In sum, we conclude that the more specific CMAA provision

  requiring a marital agreement to be in writing prevails over the

  general UDMA provision at section 14-10-113(2)(d). Thus, the

  district court erred in construing “valid agreement” in section 14-

  10-113(2)(d) to include an oral marital agreement. Contrary to the

  court’s determination, the alleged oral agreement here is not valid

  and enforceable because it does not meet the statutory

  requirements under the CMAA. See §§ 14-2-302(1), 14-2-303, 14-

  2-305, C.R.S. 2007. Accordingly, we reverse this portion of the

  permanent orders, and on remand the district court is instructed to

  determine what, if any, portion of the parties’ retirement accounts

  and inheritances are marital property under section 14-10-113(1).

                          IV. Property Division

¶ 30   Considering that our disposition may significantly change the

  marital estate, we must reverse and remand the entire property

  division for reconsideration. See In re Marriage of Balanson, 

, 36 (Colo. 2001) (errors by the court in dividing property are

  reversible when the aggregate effect of such errors affects the


                                    15
  parties’ substantial rights); see also In re Marriage of Zappanti, 

, 893 (Colo. App. 2003) (an error affecting a large

  percentage of the marital estate requires remand to the district

  court to correct such error). The court must also consider the

  parties’ economic circumstances at the time of the remand. See In

  re Marriage of Morton, 

, ¶ 14, 

, 801; see

  also In re Marriage of Wells, 

, 697-98 (Colo. 1993). In

  so doing, the court, in exercising its discretion, may also consider

  husband’s apparent adherence to the marital and oral agreement

  until the permanent orders hearing. See In re Marriage of

  Eisenhuth, 

, 901 (Colo. App. 1999) (district court has

  broad discretion in dividing marital property; the division must be

  equitable but need not be mathematically equal).

                              V. Conclusion

¶ 31   We reverse the district court’s judgment, and the case is

  remanded for the district court to determine what part, if any, of the

  parties’ retirement accounts and inheritances are marital property

  and redetermine an equitable property division.

       JUDGE HAWTHORNE and JUDGE GROVE concur.




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