text:
    IN RE the MARRIAGE OF Vanessa Castillo ARAGON, Appellee, and Alain Leonardo Aragon, Appellant.
    Court of Appeals No. 18CA0500
    Colorado Court of Appeals, Division V.
    Announced May 16, 2019
    Thomas Law Group, P.C., Sergei B. Thomas, Denver, Colorado, for Appellee
    Leonard A. Martinez & Associates, PC, Leonard A. Martinez, Lakewood, Colorado, for Appellant
   Opinion by JUDGE J. JONES

¶1 In this dissolution of marriage case between Vanessa Castillo Aragon (wife) and Alain Leonardo Aragon (husband), husband appeals two post-decree orders: a January 28, 2018, order awarding wife attorney fees, and a March 7, 2018, order awarding her child support and maintenance. We vacate the attorney fees order, affirm in part and reverse in part the child support and maintenance order, and remand the case for further proceedings.

I. Background

¶2 The parties' thirteen-year marriage ended in 2017. They have five children. Under the initial February 2017 permanent orders, the district court ordered husband to pay wife $ 823 per month in child support and $ 1,372 per month in maintenance. Those calculations were based on husband then receiving $ 843 per week in workers' compensation payments for temporary total disability. But because husband was awaiting final resolution of a workers' compensation claim at that time, the court reserved a final decision on property division, child support, and maintenance until the claim was resolved.

¶3 In July 2017, husband settled his workers' compensation claim for a lump-sum payment of $ 171,563, representing 165.34 weeks of pay at the rate of $ 887.48 per week.

¶4 Wife later moved to modify child support and maintenance. She also asked that the issue of attorney fees under section 14-10-119, C.R.S. 2018, be reopened and that husband be ordered to pay $ 28,583.50 of her fees and costs. The court granted wife's request to reopen attorney fees and ordered husband to pay 75% of her requested fees and costs.

¶5 After a hearing, the court determined husband's income by taking his workers' compensation settlement, less the attorney fees he owed to his workers' compensation attorney and the amount set aside for his future medical expenses; prorating that amount over twelve months beginning April 1, 2018; and adding in his income as an Uber driver and from an Airbnb rental property. The court attributed no income to wife and ordered the parties to recalculate child support and maintenance based on husband's income, which resulted in husband owing wife $ 1,695 per month in child support and $ 4,170 per month in maintenance. The court noted that child support and maintenance would have to be recalculated on or before April 1, 2019 - the end of the proration period for husband's settlement - and it denied wife's request for additional attorney fees.

II. Attorney Fees

¶6 Husband first contends that the district court erred in awarding wife attorney fees. He argues that claim preclusion bars an award of fees wife incurred for the initial February 2017 proceedings. He also argues, and wife concedes, that the court didn't make adequate findings to support the award under section 14-10-119. And he argues that the court erred by failing to conduct a hearing on fees and by failing to determine the reasonableness of wife's requested fees using the lodestar method.

¶7 We agree with both parties that additional findings are necessary concerning attorney fees and remand the case for that purpose, and we agree with husband that the court should apply the lodestar method when determining reasonable attorney fees. But we reject husband's arguments that claim preclusion bars wife from receiving fees she incurred for the initial permanent orders proceedings and that he was entitled to a hearing on wife's request.

A. Legal Standards

¶8 Under section 14-10-119, "[t]he court from time to time, after considering the financial resources of both parties, may order a party to pay a reasonable amount" for the other party's costs, including attorney fees, of maintaining dissolution proceedings. See In re Marriage of Gutfreund , 148 P.3d 136, 141 (Colo. 2006) (The statute empowers courts to "equitably apportion costs and fees between parties based on relative ability to pay."). The decision whether to award fees under the statute is discretionary; we won't disturb such a decision absent a showing of an abuse of that discretion. In re Marriage of Davis , 252 P.3d 530, 538 (Colo. App. 2011) ; see Gutfreund , 148 P.3d at 141 (noting district court's "great latitude to craft [attorney fee] orders appropriate to the circumstances of a given case").

¶9 In awarding fees, a court must make findings concerning the parties' relative incomes, assets, and liabilities; and it must apportion fees based on the statute's equitable purpose, explaining how and why it arrived at the specific amount of the award. In re Marriage of Aldrich , 945 P.2d 1370, 1378 (Colo. 1997) ; see also In Interest of K.M.B. , 80 P.3d 914, 917-18 (Colo. App. 2003) ("When awarding attorney fees, the trial court must specifically set forth the reasons for the award...."). The court must also consider the reasonableness of the hourly rate and the necessity for the hours billed. In re Marriage of Connerton , 260 P.3d 62, 67 (Colo. App. 2010) ; In re Marriage of Mockelmann , 944 P.2d 670, 672 (Colo. App. 1997) ; In re Marriage of Rieger , 827 P.2d 625, 625 (Colo. App. 1992) ; see also In re Marriage of Newell , 192 P.3d 529, 537 (Colo. App. 2008) (presuming magistrate considered attorney's fee affidavit and was satisfied that fees were reasonably incurred).

B. Analysis

1. Additional Findings Are Necessary Regarding Attorney Fees

¶10 As wife concedes, although her motion and the court's attorney fees order are captioned "pursuant to" section 14-10-119, the court didn't make any findings regarding the basis for awarding fees under the statute. Though the court attached wife's motion to its order, the motion asserts only that wife incurred substantial fees, most of which were "due to [husband's] actions, lack of action, and/or purposely hiding compensation and employment funds." These factors aren't a proper basis for awarding fees under section 14-10-119. See In re Marriage of Woolley , 25 P.3d 1284, 1288-89 (Colo. App. 2001) ( section 14-10-119 award is primarily intended to apportion fees based on the parties' financial circumstances); see also In re Marriage of Trout , 897 P.2d 838, 840 (Colo. App. 1994).

¶11 Without more specific findings under the statutory standard, we aren't able to meaningfully review the attorney fees order. See In re Marriage of Rozzi , 190 P.3d 815, 822 (Colo. App. 2008). Thus, we vacate the order and remand the case for additional findings. See Aldrich , 945 P.2d at 1380 ; K.M.B. , 80 P.3d at 917.

¶12 But the court need not hold a hearing on remand. As wife points out, the parties stipulated that the court would rule on her motion without a hearing. See In re Marriage of Ensminger , 209 P.3d 1163, 1167 (Colo. App. 2008) (court doesn't have an obligation to hold a hearing sua sponte on a spouse's request for attorney fees); see also Maloney v. Brassfield , 251 P.3d 1097, 1108 (Colo. App. 2010) ("Stipulations are a form of judicial admission" and "are binding on the party who makes them.") (citation omitted).

2. The Court Should Start by Determining a Lodestar Amount

¶13 We further conclude that, on remand, the district court should determine a lodestar amount as the starting point when evaluating the reasonableness and necessity of wife's attorney fees. In so concluding, we reject the majority's decision in Woolley , 25 P.3d at 1289, to the contrary. We instead agree with the dissenting judge in that case, who would have required calculation of a lodestar figure in determining fees under section 14-10-119. See 25 P.3d at 1289-91 (Taubman, J., concurring in part and dissenting in part); see also Visible Voices, Inc. v. Indus. Claim Appeals Office , 2014 COA 63, ¶ 25, 328 P.3d 307 (declining to follow the decision of another division of the court of appeals, and noting that one division of the court isn't bound by another division's decision). We do so for the following reasons.

¶14 The language of the statute clearly limits an award to those fees that are "reasonable." Though the statute requires the court to consider "the financial resources of both parties," that consideration goes to each spouse's respective obligation - that is, the portion of the "reasonable" fees each spouse should bear. It doesn't speak to the reasonableness of the fees incurred in the first instance. So some standard is needed to guide courts in making that threshold determination. One possible such standard is the "lodestar" approach.

¶15 Under the lodestar approach, the court first calculates a lodestar amount, which represents the number of hours reasonably expended on the case multiplied by a reasonable hourly rate. S. Colo. Orthopaedic Clinic Sports Med. & Arthritis Surgeons, P.C. v. Weinstein , 2014 COA 171, ¶ 23, 343 P.3d 1044. After calculating a lodestar amount, the court then has the discretion to make upward or downward adjustments to that amount after considering the relevant factors in Colo. RPC 1.5(a) for determining the reasonableness of attorney fees. S. Colo. Orthopaedic Clinic Sports Med. & Arthritis Surgeons , ¶ 24. These factors include the following:

(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and
(8) whether the fee is fixed or contingent.

Colo. RPC 1.5(a).

¶16 The lodestar approach is therefore consistent with case law requiring a court considering whether to award fees under section 14-10-119 to determine a reasonable hourly rate and a reasonable number of hours billed. Connerton , 260 P.3d at 67 ; Mockelmann , 944 P.2d at 672 ; Rieger , 827 P.2d at 625. And it is consistent with the equitable purpose of the statute in that it requires adjustments to the lodestar figure for relevant circumstances specific to each case.

¶17 On top of that, the lodestar method is tried and true. Indeed, because a lodestar amount "carries with it a strong presumption of reasonableness," Payan v. Nash Finch Co. , 2012 COA 135M, ¶ 18, 310 P.3d 212, Colorado appellate courts have adopted the lodestar method for determining attorney fees awards in many other contexts in which, like under section 14-10-119, a party is entitled to recover "reasonable" attorney fees. See, e.g. , Am. Water Dev., Inc. v. City of Alamosa , 874 P.2d 352, 386-87 (Colo. 1994) (on party's voluntary dismissal of claim under C.R.C.P. 41(a)(2) ); Blooming Terrace No. 1, LLC v. KH Blake Street, LLC , 2017 COA 72, ¶ 34 (contractual fee-shifting provision) (cert. granted Apr. 9, 2018); Payan , ¶ 10 (for successful claim under the Colorado Consumer Protection Act); Catlin v. Tormey Bewley Corp. , 219 P.3d 407, 410-11 (Colo. App. 2009) (to prevailing party under the federal Fair Labor Standards Act); Double Oak Constr., L.L.C. v. Cornerstone Dev. Int'l, L.L.C. , 97 P.3d 140, 151-52 (Colo. App. 2003) (under section 13-17-102, C.R.S. 2018, for bringing a frivolous claim or defense); Dahl v. Young , 862 P.2d 969, 973 (Colo. App. 1993) (under section 38-35-109(3), C.R.S. 2018, for filing a fraudulent lien).

¶18 The only Colorado case we could find that questions the use of the lodestar method in any context, other than Woolley , is Brody v. Hellman , 167 P.3d 192 (Colo. App. 2007). In that case, a division of this court noted the "recent trend" among federal courts in "common fund cases" - class action lawsuits resulting in the recovery of a fund to benefit the class - to use a percentage of the fund method to calculate attorney fees instead of the lodestar method, which the division noted is generally used in "statutory fee-shifting cases." Id. at 198, 201, 204. But the division also noted that these courts "crosscheck the adequacy" of the fee calculated using the percentage method "by applying the lodestar method." Id. at 201. And the division upheld the trial court's calculation of attorney fees under the percentage method and then also under the lodestar method as a "crosscheck" of the percentage method. Id. at 201-02.

¶19 Brody recognized that common fund cases are different from cases in which attorneys expect to be paid by the hour. Specifically, common fund cases are like contingency fee cases because of the risk "that attorneys will realize no return for their investment of time and expenses in cases they lose." Id. The fees awarded in such cases should therefore compensate attorneys "both for services rendered and for the risk of loss or nonpayment assumed by following through with the case." Id.

¶20 This rationale for treating the lodestar method only as a "crosscheck" on fees calculated using some other basis doesn't apply to section 14-10-119. Fees incurred in Uniform Dissolution of Marriage Act cases are for services rendered: there is no risk component as in common fund and contingency fee cases.

¶21 The majority in Woolley rejected the lodestar method summarily. In light of the foregoing considerations, however, we conclude that there is a great deal of merit to applying that method in this context. Doing so will not only provide courts with a tested and approved method of determining "reasonable" fees, it will incentivize counsel to carefully consider, in advance, their time spent on every aspect of the case.

¶22 Accordingly, we hold that a district court should apply the lodestar method when determining reasonable attorney fees in the domestic relations context under section 14-10-119. See Rosen v. Rosen , 696 So. 2d 697, 699-701 (Fla. 1997) (adopting the lodestar method for determining reasonable attorney fees to award under Florida statute similar to section 14-10-119 ); see also Nagl v. Navarro , 187 So. 3d 359, 361 (Fla. Dist. Ct. App. 2016) ("The lodestar method is an appropriate starting point in domestic relations cases."). But we do so with the following caveat: the court shouldn't apply the Colo. RPC 1.5(a) factors rigidly, but instead should carefully consider the extent to which those factors apply in a given situation and the extent to which other factors may need to be applied to achieve an equitable result. See Rosen , 696 So. 2d at 700.

3. Claim Preclusion Doesn't Bar Wife's Request for Fees for the Permanent Orders Proceedings

¶23 Husband's argument that the doctrine of claim preclusion (sometimes referred to as res judicata) bars the court from awarding wife fees incurred for the February 2017 permanent orders proceedings is unpersuasive. Claim preclusion bars a party from relitigating a matter that has already been decided or that could have been raised in a previous proceeding. Argus Real Estate, Inc. v. E-470 Pub. Highway Auth. , 109 P.3d 604, 608 (Colo. 2005). Its purpose is to prevent needless litigation. Id. A claim is precluded, however, only when the court entered a final judgment in the first proceeding. Id.

¶24 In this case, the district court didn't specifically address wife's section 14-10-119 attorney fees request in the February 2017 permanent orders and didn't award fees. However, the court also reserved the financial issues - the potential division of husband's workers' compensation settlement as marital property, as well as child support and maintenance - for later determination after husband's workers' compensation claim was resolved. Then, after husband received his settlement, the court granted wife's request to reopen the issue of attorney fees. The record doesn't show that husband objected to wife's request to reopen the fee issue. Rather, he raised his claim preclusion argument in his objection to wife's later fee affidavit.

¶25 Under these circumstances, assuming without deciding that this argument is preserved, we conclude that claim preclusion doesn't bar wife's fee request. The court contemplated in entering permanent orders initially that husband's pending settlement would change his financial circumstances, and it therefore reserved a final decision on financial issues until the settlement was completed. Claim preclusion doesn't bar the reopened fee determination based on these reserved financial issues because the court hadn't entered a final judgment. See Argus , 109 P.3d at 608 (claim preclusion bars subsequent claims only after final judgment).

III. Income for Maintenance and Child Support Purposes

A. Husband's Income

¶26 Husband also contends that the district court erred by determining his income from his workers' compensation settlement by allocating the amount, less attorney fees and medical expenses, over twelve months beginning April 1, 2018. We agree.

¶27 We initially reject wife's argument that husband didn't preserve this contention. Wife argued in her motion to modify that husband's workers' compensation settlement should be allocated over twelve months, but she didn't provide a specific date that the allocation period should begin. Husband objected in his response, contending that the settlement should instead be allocated consistently with the parties' stipulation and that wife's calculation was "off base." In doing so, husband preserved his argument concerning the allocation of the settlement. See Berra v. Springer & Steinberg, P.C. , 251 P.3d 567, 570 (Colo. App. 2010) (an issue is preserved when brought to the court's attention, so that the court has an opportunity to rule on it).

¶28 Income for the purposes of child support and maintenance includes workers' compensation benefits. § 14-10-114(8)(c)(I)(Q), C.R.S. 2018; § 14-10-115(5)(a)(I)(Q), C.R.S. 2018; see In re Marriage of Smith , 817 P.2d 641, 644 (Colo. App. 1991). Husband cites no authority, and we aren't aware of any in Colorado, concerning how a court should include workers' compensation benefits received in a one-time, lump-sum payment in a party's income for purposes of child support and maintenance.

¶29 We note initially that husband's reliance on In re Marriage of Breckenridge , 973 P.2d 1290 (Colo. App. 1999), is misplaced. That case addressed only the classification of workers' compensation benefits, part of which were paid in a lump sum, as marital or separate property of the receiving spouse. Id. at 1290-91. It didn't address how to include the payment as income for purposes of maintenance or child support. Accordingly, it isn't relevant to the issue before us.

¶30 Husband's workers' compensation settlement, which was based on a "whole person impairment" rating of 52%, represented 165.34 weeks of lost wages. Consistent with these terms, the parties stipulated in connection with wife's initial motion to modify child support that the settlement amount would be allocated over a 165.34-week period to determine husband's income. The district court approved the parties' stipulation the day before wife moved again to modify both maintenance and child support, requesting for the first time that the settlement amount instead be allocated over a twelve-month period to determine husband's income.

¶31 The district court granted wife's request without explaining why it was departing from the terms of husband's workers' compensation settlement and the parties' stipulation. We conclude that it abused its discretion in doing so.

¶32 As wife points out, other one-time payments are sometimes included in the recipient's gross income for the year in which they were received. See In Interest of A.M.D. , 78 P.3d 741, 746 (Colo. 2003) (inheritance); In re Marriage of Bohn , 8 P.3d 539, 541 (Colo. App. 2000) (lottery prize); In re Marriage of Zisch , 967 P.2d 199, 202 (Colo. App. 1998) (capital gain). But, unlike those other types of payments, a workers' compensation settlement is intended as future wage replacement for the injured employee/spouse. See Loofbourrow v. Indus. Claims Office , 321 P.3d 548, 554-55 (Colo. App. 2011) ("The overall purpose of the statutory scheme is to calculate 'a fair approximation of the claimant's wage loss and diminished earning capacity.' ") (citation omitted), aff'd sub nom. Harman-Bergstedt, Inc. v. Loofbourrow , 2014 CO 5, 320 P.3d 327 ; Emp'rs Fire Ins. Co. v. Lumbermens Mut. Cas. Co. , 964 P.2d 591, 594 (Colo. App. 1998) ("[U]nder the Workers' Compensation Act, an injured employee is entitled to receive wage replacement benefits...."); see also In re Marriage of Swan , 526 N.W.2d 320, 325 (Iowa 1995) ("Workers' compensation benefits are not a windfall. They are directly related to the worker's former earnings and his or her ability to earn income in the future."). And the amount of benefits is computed based on the injured employee's average weekly wage. See § 8-42-102(1), C.R.S. 2018; Benchmark/Elite, Inc. v. Simpson , 232 P.3d 777, 779 (Colo. 2010).

¶33 Because husband's workers' compensation settlement represents a replacement for his lost wages due to his injury and was calculated based on his average weekly wage over 165.34 weeks, we conclude that the settlement amount should be allocated consistently with these terms in determining husband's income for child support and maintenance purposes. See Swan , 526 N.W.2d at 325-26 (apportioning workers' compensation award over 126 weeks, consistent with its terms, when calculating the recipient parent's income for child support purposes). The court's decision to instead use a twelve-month allocation period - inexplicably beginning nine months after the date husband received the settlement - not only deviates from the parties' stipulation, it effectively penalizes husband for suffering a compensable work-related injury. It does so by taking wages that, had husband not been injured, would have been earned over a period of 165.34 weeks, and would have been treated as being earned over that period for purposes of calculating husband's income, and instead treating them as if they had been earned over a period of fifty-two weeks, merely because husband received them in one lump-sum payment due to his injury. This seems the very definition of arbitrary and thus can't stand. See In re Marriage of Gromicko , 2017 CO 1, ¶ 18, 387 P.3d 58 ("A district court abuses its discretion when its decision is manifestly arbitrary, unreasonable, or unfair.").

¶34 We recognize that other courts have used different methods to apportion a workers' compensation settlement. See, e.g. , Mayfield v. Mayfield , 371 Ill.Dec. 11, 989 N.E.2d 601, 607-08 (Ill. 2013) (ordering lump-sum child support payment of 20% of settlement amount); Becker v. Becker , 6 Neb.App. 277, 573 N.W.2d 485, 491 (1997) (apportioning settlement amount over remaining period until the youngest child emancipated); In re State , 153 N.H. 700, 904 A.2d 619, 626 (2006) (apportioning settlement amount over recipient's life expectancy). But absent "unique facts" not apparent in the record, we conclude that the preferable method is to apportion such a settlement consistent with its terms, meaning over the number of weeks of lost wages that the lump-sum settlement represents. But cf. In re Marriage of Sullivan , 258 Mont. 531, 853 P.2d 1194, 1198-99 (1993) (including settlement amount in recipient's income for the year it was received when the evidence was that the recipient spent the entire $ 50,000 settlement within that year).

¶35 On remand, the court should recalculate husband's income consistently with the terms of his workers' compensation settlement and redetermine maintenance and child support accordingly.

¶36 Because wife didn't file a cross-appeal, we don't address her argument that the court erred by reducing husband's workers' compensation settlement amount to account for the attorney fees he incurred in obtaining it and his future medical expenses. See Koinis v. Colo. Dep't of Pub. Safety , 97 P.3d 193, 197 (Colo. App. 2003) ("An appellee must file a cross-appeal in order to raise a contention that, if successful, would increase its rights under the judgment or order being reviewed.").

B. Wife's Income

¶37 Last, husband contends that the court abused its discretion by failing to impute income to wife. We disagree.

¶38 "[B]oth parents have a duty to support their children." People v. Martinez , 70 P.3d 474, 477 (Colo. 2003). So if a parent is voluntarily unemployed or underemployed, the court must calculate child support based on the parent's potential income. § 14-10-115(5)(b)(I) ; see Martinez , 70 P.3d at 477. The court must similarly calculate maintenance based on a spouse's potential income if the spouse is voluntarily underemployed or unemployed. § 14-10-114(8)(c)(IV).

¶39 Whether potential income should be imputed is a question of fact that depends on the circumstances of the case. So we defer to the district court's findings if they are supported by the record. Martinez , 70 P.3d at 480-81.

¶40 We conclude that the district court's decision not to impute potential income to wife has record support.

¶41 Husband testified that he knew wife earned money by cutting hair at the parties' home, but that he didn't know how much she got paid. Wife admitted that she did this for close friends and received "tips." When the court asked husband's attorney how much income he believed should be imputed to wife for cutting hair, the attorney responded, "[w]e know she has cut hair," but didn't provide an amount. The court then declined to impute income to wife, finding that her work from home was "sporadic at best" and her earnings "de minim[i]s."

¶42 The record further reflects that the parties have five children, who, at the time of the income hearing, ranged in age from two to sixteen. The youngest child had attained thirty months only four months before the February 2018 income hearing. See §§ 14-10-114(8)(c)(IV), 14-10-115(5)(b)(I) (income shall not be imputed to a parent who is caring for a child under the age of thirty months). Also, wife testified that one of the children had been diagnosed with autism and ADHD and that she couldn't work and care for the child, who had three weekly therapy appointments. Additionally, wife is from Honduras and doesn't have a work permit to allow her to work legally in this country.

¶43 Under these circumstances, we won't disturb the district court's decision not to impute income to wife. Cf. In re Marriage of Foss , 30 P.3d 850, 852 (Colo. App. 2001) (finding an abuse of discretion when district court imputed full-time income to mother who was caring for one disabled child, including taking the child to two therapy appointments a week).

¶44 Last, to the extent husband argues that the district court didn't make the necessary section 14-10-122(1)(a), C.R.S. 2018, findings to modify maintenance, we note that the court reserved jurisdiction to make a final maintenance decision after husband's workers' compensation claim was resolved. Thus, the court's findings, including those in the February 2017 permanent orders, are sufficient to support awarding wife the statutory guideline amount of maintenance. See § 14-10-114(3)(a)-(e), (g) ; see also In re Marriage of Thorstad , 2019 COA 13, ¶ 29, 434 P.3d 165 (noting that "[a] court can, in specified circumstances, reserve jurisdiction over a maintenance order" and then later resolve the issue under section 14-10-114 instead of section 14-10-122 ).

IV. Appellate Attorney Fees

¶45 Wife requests attorney fees on appeal, citing sections 13-17-102 and 14-10-119. Because she hasn't articulated a factual basis for the request, however, we deny it. See C.A.R. 39.1 (providing that fee claimant must "explain the legal and factual basis" for an award);

In re Marriage of Roddy , 2014 COA 96, ¶ 32, 338 P.3d 1070 (merely citing statute under which fees are requested is insufficient).

V. Conclusion

¶46 The January 28, 2018, order awarding wife attorney fees is vacated, and the case is remanded for additional attorney fees findings as provided herein. The March 7, 2018, order determining child support and maintenance is affirmed as to wife's income and reversed as to husband's income, and the case is remanded for the district court to recalculate husband's income as instructed herein and to redetermine child support and maintenance accordingly.

JUDGE TERRY and JUDGE GROVE concur.

      As discussed below, we modify application of these factors somewhat to account for the nature of proceedings under the Uniform Dissolution of Marriage Act and the purpose of section 14-10-119, C.R.S. 2018.

      Stipulations "are admissions binding on the parties." Cherokee Metro. Dist. v. Upper Black Squirrel Creek Designated Ground Water Mgmt. Dist. , 247 P.3d 567, 573 (Colo. 2011). Wife didn't argue any reason in the district court for disregarding her stipulation; she merely made a request inconsistent with that stipulation.


source: Caselaw Access Project

author: Opinion by JUDGE GROVE J. JONES, J., specially concurring.

license: Public Domain

text:
    WEST COLORADO MOTORS, LLC, d/b/a Autonation Buick GMC Park Meadows, Plaintiff-Appellant, v. GENERAL MOTORS, LLC, Defendant-Appellee.
    Court of Appeals No. 18CA0741
    Colorado Court of Appeals, Division V.
    Announced May 16, 2019
    Ballard Spahr LLP, Patrick G. Compton, Denver, Colorado, Williams & Connolly LLP, Daniel F. Katz, Juli Ann Lund, Washington, DC, for Plaintiff-Appellant
    Nelson Mullins Riley & Scarborough LLP, Mark T. Clouatre, Jacob F. Fischer, Denver, Colorado, for Defendant-Appellee
   Opinion by JUDGE GROVE

¶1 Plaintiff West Colorado Motors, LLC, d/b/a Autonation Buick GMC Park Meadows (Park Meadows), appeals the district court's order dismissing its complaint against defendant, General Motors, LLC (GM), as barred by the statute of limitations. We affirm.

I. Background

¶2 This is the second appearance before this court of a long-running dispute between Park Meadows and GM concerning GM's approval of the relocation of another dealership (Alpine) into what Park Meadows asserts is its territory. In the first case, after unsuccessfully protesting Alpine's proposed relocation with the Executive Director of the Colorado Department of Revenue - who, in a letter to Park Meadows, said that she was declining to investigate or hold a hearing on the matter - Park Meadows filed suit against GM, Alpine, and the Executive Director in Denver District Court. See W. Colo. Motors, LLC v. Gen. Motors, LLC , 2016 COA 103, ¶¶ 1-3, 411 P.3d 1068 ( W. Colo. Motors I ). Park Meadows' complaint included two claims. First, as authorized by Title 12, Article 6, Part 1 of the Colorado Revised Statutes (the Dealer Act), Park Meadows "sought a stay of the relocation of Alpine, a hearing and a judgment as to the reasonableness of GM's approval of Alpine's relocation, and a cease and desist order against GM and Alpine with respect to the proposed relocation." W. Colo. Motors I , ¶ 8. Second, and in the alternative, it sought a declaratory judgment and order compelling the Executive Director to " 'undertake a hearing or other activity' ... to determine whether the proposed relocation of Alpine was reasonable or unreasonable under section 12-6-120.3[, C.R.S. 2014]." Id. at ¶ 9.

¶3 The Executive Director, GM, and Alpine all moved to dismiss Park Meadows' first complaint for lack of subject matter jurisdiction. Concluding that the complaint was tantamount to an appeal of the Executive Director's decision not to hold a hearing as to the reasonableness of the relocation, and noting that under section 12-6-120.3(4)(b)(II) "[t]he court of appeals has initial jurisdiction to review all final actions and orders that are subject to judicial review of the executive director," the district court granted the defendants' motions to dismiss.

¶4 A division of this court affirmed, holding that the Executive Director's letter was a final agency action and that, by statute, "review of the Executive Director's decision fell within the court of appeals' exclusive jurisdiction." W. Colo. Motors I , ¶ 48. In addition, the division held that the district court lacked subject matter jurisdiction over Park Meadows' claim for equitable relief against GM and Alpine because the governing statute, section 12-6-120.3(4)(a), allowed Park Meadows to bring "an action or proceeding before the executive director or a court." Id. at ¶ 49. This disjunctive phrasing, the division concluded, meant that a dealer in Park Meadows' position could seek relief from the Executive Director or a state district court, but not both. Id. The division therefore held that, by opting to seek relief from the Executive Director first, Park Meadows stripped the district court of subject matter jurisdiction over any subsequent request for relief that the Executive Director was also empowered to grant. Id.

¶5 Park Meadows filed a petition for a writ of certiorari that the Colorado Supreme Court accepted and then, after the governing statute was substantially amended in 2017, dismissed as improvidently granted.

¶6 After the mandate was issued, and apparently having failed to prevent Alpine from moving into what it maintained was its territory, Park Meadows gave up on its claims for equitable relief. It instead filed a new lawsuit in district court - the instant case - naming GM as the only defendant. Park Meadows' new complaint seeks damages from GM under two theories: (1) enforcement under section 12-6-122(3), C.R.S. 2014, which Park Meadows asserts entitles it to compensation for all damages resulting from GM's allegedly unreasonable approval of Alpine's relocation (the statutory damages claim); and (2) breach of the dealership agreement between Park Meadows and GM.

¶7 By this time, however, more than three years had passed since GM first notified Park Meadows of Alpine's impending relocation. GM thus moved to dismiss both claims as time barred. See § 13-80-101(1)(a), C.R.S. 2018 (establishing three-year statute of limitations for breach of contract); § 13-80-102(1)(i), C.R.S. 2018 (establishing two-year statute of limitations for statutory damages claim).

¶8 Park Meadows responded by amending its complaint to assert that "[i]n accordance with the remedial revival statute, § 13-80-111[, C.R.S. 2018 ], Park Meadows filed this action on September 14, 2017, less than 90 days after the previous dismissal for lack of subject-matter jurisdiction." GM again moved to dismiss, and the district court granted the motion. In a detailed written order, the district court concluded that "[b]ecause the claim asserted in this litigation is for monetary damages not previously made and because of the findings of the Executive Director, ... [s]ection 13-80-111 cannot serve to permit the Plaintiff to bring its statutory violation claim." As for Park Meadows' claim for breach of contract, the district court concluded that because "this claim was never brought in the original action filed in Denver[,] ... [s]ection 13-80-111 cannot be used as a basis to permit this claim to be filed outside the statute of limitations."

¶9 Park Meadows now appeals, arguing that section 13-80-111 applies to both of its claims for relief, and that its new lawsuit against GM should therefore be deemed timely. We conclude that we need not consider whether Park Meadows' claim for statutory damages qualifies for revival under section 13-80-111 because we hold that W. Colo. Motors I - which neither party challenges - controls the disposition of Park Meadows' statutory claim. With respect to the claim for breach of contract, we hold that section 13-80-111(1) does not apply because that claim is not "upon the same cause of action" as Park Meadows' original lawsuit. Although we acknowledge that the same event triggered both lawsuits, Park Meadows' claim for breach of contract did not arise from the same set of operative facts as its demand for relief under the Dealer Act. We thus affirm the district court's order dismissing Park Meadows' complaint.

II. Standard of Review and Preservation

¶10 We review de novo a district court's dismissal of a complaint on statute of limitations grounds. Harrison v. Pinnacol Assurance , 107 P.3d 969, 971 (Colo. App. 2004). We also review de novo questions of statutory interpretation. Roup v. Commercial Research, LLC , 2015 CO 38, ¶ 8, 349 P.3d 273.

¶11 The parties agree, as do we, that Park Meadows preserved its argument that the remedial revival statute should apply to the instant complaint.

III. The Disposition of Park Meadows' Statutory Claim is Controlled by W. Colo. Motors I

¶12 We first consider whether the district court should have applied section 13-80-111 to Park Meadows' request for statutory damages. We conclude that because section 13-80-111 is not itself a source of subject matter jurisdiction, it cannot be employed to revive Park Meadows' statutory claim.

A. Section 13-80-111

¶13 Section 13-80-111, titled "Commencement of a new action upon involuntary dismissal," states in relevant part as follows:

(1) If an action is commenced within the period allowed by this article and is terminated because of lack of jurisdiction or improper venue, the plaintiff ... may commence a new action upon the same cause of action within ninety days after the termination of the original action ... and the defendant may interpose any defense, counterclaim, or setoff which might have been interposed in the original action.
(2) This section shall be applicable to all actions which are first commenced in a federal court as well as those first commenced in the courts of Colorado or of any other state.

¶14 Although the scope varies from jurisdiction to jurisdiction, nearly every state has a similar statute. Colorado's version has been dubbed the "remedial revival statute," Soehner v. Soehner , 642 P.2d 27, 28 (Colo. App. 1981) ; courts in other states often refer to similar legislation as "savings" or "renewal" statutes, see, e.g. , Gresham v. Harris , 329 Ga.App. 465, 765 S.E.2d 400 (2014) (renewal); Ewing v. State Dep't of Transp. , 235 P.3d 776 (Utah Ct. App. 2010) (savings). No matter what they are called, however, the general purpose of these statutes is the same - "to prevent minor or technical mistakes from precluding a plaintiff from obtaining his day in court and having his claim decided on the merits." Furnald v. Hughes , 804 N.W.2d 273, 276 (Iowa 2011).

¶15 When properly invoked, section 13-80-111(1) "tolls the running of the applicable statute of limitations when the original action has been terminated for lack of jurisdiction." Nguyen v. Swedish Med. Ctr. , 890 P.2d 255, 256 (Colo. App. 1995). The statute "reflects a legislative intent to enable litigants to avoid hardships which might result from strict adherence to the provisions of statutes of limitations" in cases where a litigant diligently pursues claims from the time that they are discovered. Soehner , 642 P.2d at 28. What section 13-80-111 does not do, however, is invite piecemeal litigation by a plaintiff that chooses to parcel out its grievances in dribs and drabs. Consistent with the principles of stability and finality underlying Colorado's statutes of limitations, the remedial revival statute cannot be used as a means for excusing a plaintiff's failure to diligently and timely prosecute known claims.

¶16 Remedial statutes "relate only to remedies or procedures" that are created to enforce substantive rights or liabilities. Vetten v. Indus. Claim Appeals Office , 986 P.2d 983, 986 (Colo. App. 1999). Remedial legislation "must 'be liberally construed to accomplish its object.' " Mishkin v. Young , 198 P.3d 1269, 1273 (Colo. App. 2008) (quoting Colo. & S. Ry. v. State R.R. Comm'n , 54 Colo. 64, 77, 129 P. 506 (1912) ). But we must still give "consistent, harmonious, and sensible effect" to every part of a statute, and strive to "avoid[ ] constructions that would ... lead to illogical or absurd results." Pineda-Liberato v. People , 2017 CO 95, ¶ 22, 403 P.3d 160 ; accord 3 Norman Singer & Shambie Singer, Sutherland Statutory Construction § 60:1, Westlaw (7th ed. database updated Nov. 2018) ("Remedial statutes should not be construed so broadly as to create the possibility of results that are unreasonable, illogical or inconsistent with common sense.").

B. Section 13-80-111 Cannot Be Used to Revive Nonjusticiable Claims

¶17 Park Meadows maintains that its statutory and contract claims both satisfy the remedial revival statute's requirements. In support, it points out that (1) its first lawsuit was timely; (2) it filed the instant complaint within ninety days of the issuance of the mandate; and (3) the division in W. Colo. Motors I , ¶ 49, held that "the district court properly granted the Executive Director's motion to dismiss for lack of subject matter jurisdiction pursuant to C.R.C.P. 12(b)(1)." GM does not dispute the timing of either lawsuit, nor does it question the previous division's conclusion that the district court lacked subject matter jurisdiction over either of Park Meadows' claims for relief in W. Colo. Motors I .

¶18 What Park Meadows overlooks is that statutes like section 13-80-111 only contemplate revival of an otherwise untimely lawsuit in instances where the previous dismissal for lack of subject matter jurisdiction arose from a curable defect. This occurs most often when a plaintiff mistakenly files a claim in federal court that asserts a question arising under state law and does not establish federal subject matter jurisdiction. See, e.g. , Phillips v. Beethe , 679 P.2d 126, 127-28 (Colo. App. 1984) (applying remedial revival statute to medical malpractice claims dismissed from United States District Court for lack of subject matter jurisdiction). Section 13-80-111(1) accounts for this situation by permitting a plaintiff which finds itself in such a situation to file "a new action upon the same cause of action" in a court that has subject matter jurisdiction over the claims asserted.

¶19 But section 13-80-111 is not a means for skirting justiciability problems. To be sure, while the statute creates leeway for a plaintiff to fix and refile claims that have been dismissed for lack of subject matter jurisdiction, the mere act of refiling is not itself such a fix. Put another way, the remedial revival statute implicates only the statute of limitations - it has no effect on any other bounds of subject matter jurisdiction. "Although dismissal for lack of subject matter jurisdiction does not adjudicate the merits of the claims asserted, it does adjudicate the court's jurisdiction." Sandy Lake Band of Miss. Chippewa v. United States , 714 F.3d 1098, 1103 (8th Cir. 2013) ; see also Kulinski v. Medtronic Bio-Medicus, Inc. , 112 F.3d 368, 373 (8th Cir. 1997) (dismissal of the plaintiff's complaint without prejudice for lack of subject matter jurisdiction would prevent the plaintiff from bringing another claim on the same jurisdictional basis, although the plaintiff would remain free to bring "the same claim under a different theory and jurisdictional basis"); Coffin v. Cottle , 33 Mass. (16 Pick.) 383, 386 (1835) ("The proviso in the [Massachusetts] statute ... declares that where the plaintiff has been defeated by some matter not affecting the merits, some defect or informality, which he can remedy or avoid by a new process , the statute shall not prevent him from doing so.") (emphasis added).

¶20 And this is where Park Meadows' statutory claim runs aground. The district court's lack of subject matter jurisdiction over its statutory claims - having been settled in W. Colo. Motors I , and going unchallenged here - cannot be remedied or avoided by a new process. In W. Colo. Motors I , ¶¶ 49-50, a division of this court held that by seeking a ruling on the reasonableness of GM's approval of Alpine's relocation from the Executive Director in the first instance, Park Meadows deprived the district court of subject matter jurisdiction over that claim. Yet despite the instant complaint's reliance on precisely the same alleged statutory violation - GM's ostensibly unreasonable approval of Alpine's move, contrary to section 12-6-120.3(1.5) - Park Meadows does not contest W. Colo. Motors I 's jurisdictional analysis.

¶21 While Park Meadows emphasizes that it now seeks damages, rather than the injunctive relief it requested in W. Colo. Motors I , this is a distinction without a difference. Regardless of the specific relief requested, any claim arising under section 12-6-120.3(1.5) must establish as a threshold matter that the manufacturer's approval of a "motor vehicle dealer facility initial site location or relocation request" was unreasonable. Absent that showing, Park Meadows is not entitled to any relief under section 12-6-120.3(1.5). But as W. Colo. Motors I held, Park Meadows' decision to seek relief from the Executive Director closed the jurisdictional door to the district court's consideration of the reasonableness of GM's decision. Park Meadows does not ask us to revisit that jurisdictional analysis, and, in any event, we see no compelling reason to do so. Consequently, because the defect in subject matter jurisdiction that led to the dismissal of Park Meadows' statutory claim cannot be cured by refiling, we hold that the remedial revival statute does not apply to that claim.

IV. Application of the Remedial Revival Statute to Park Meadows' Claim for Breach of Contract

¶22 We next address Park Meadows' argument that the district court should have revived its claim for breach of contract because it was "upon the same cause of action" as its first complaint and otherwise satisfied the requirements of the remedial revival statute.

A. "Cause of Action" is Ambiguous

¶23 As relevant here, the remedial revival statute applies where (1) a timely filed lawsuit is terminated because of lack of jurisdiction or improper venue and (2) the plaintiff commences "a new action upon the same cause of action" within ninety days after the termination of the original action. § 13-80-111(1). While W. Colo. Motors I deprives the district court of subject matter jurisdiction over Park Meadows' statutory claims, it has no bearing on Park Meadows' claim for breach of contract. All parties likewise agree that Park Meadows' first complaint was terminated for lack of jurisdiction and that it filed its new complaint within ninety days after the termination of that action. The parties disagree, however, as to whether Park Meadows' new lawsuit is a "new action upon the same cause of action." Accordingly, if the complaint is "upon the same cause of action," the remedial revival statute applies. If it is not "upon the same cause of action," it is untimely.

¶24 Drawing largely on the Restatement (Second) of Judgments and case law construing the phrase for the purposes of claim preclusion, Park Meadows urges us to adopt a transactional view of "cause of action." Under this approach, a "cause of action" is "bounded by the injury for which relief is demanded, and not by the legal theory on which the person asserting the claims relies." Farmers High Line Canal & Reservoir Co. v. City of Golden , 975 P.2d 189, 199 (Colo. 1999). GM counters with the Colorado Supreme Court's observation that the Restatement's "concept of a 'transaction, or series of connected transactions' is incapable of mathematical precision and instead contemplates a pragmatic standard, to be applied with attention to the facts of each case." In re Greene , 2013 CO 29, ¶ 10, 302 P.3d 690 (quoting Restatement (Second) of Judgments § 24 cmt. b (1982)). The facts and equities of this case, GM asserts, dictate that the claims in Park Meadows' latest lawsuit fall outside the bounds of the remedial revival statute.

¶25 Colorado adopted its first version of the remedial revival statute in 1868, repealed it in 1961, and then passed a slightly reworded version in 1971. No version has defined "cause of action."

¶26 Legal dictionaries likewise offer little assistance. Black's, for example, defines "cause of action" in three ways: "1. A group of operative facts giving rise to one or more bases for suing; a factual situation that entitles one person to obtain a remedy in court from another person ... 2. A legal theory of a lawsuit ... 3. Loosely, a lawsuit." Black's Law Dictionary 266-67 (10th ed. 2014). Other sources are similarly equivocal. See, e.g. , Bryan A. Garner, Garner's Dictionary of Legal Usage 142 (3d ed. 2011) (defining "cause of action" as "(1) a group of operative facts, such as a harmful act, giving rise to one or more rights of action; or (2) a legal claim").

¶27 Case law and treatises confirm the phrase's flexibility. In 1933, the United States Supreme Court observed that

[a] "cause of action" may mean one thing for one purpose and something different for another. It may mean one thing when the question is whether it is good upon demurrer, and something different when there is a question of the amendment of a pleading or of the application of the principle of res judicata.

United States v. Memphis Cotton Oil Co. , 288 U.S. 62, 67-68, 53 S.Ct. 278, 77 L.Ed. 619 (1933) (footnote omitted). More contemporary sources concur. See, e.g. , Ieropoli v. AC&S Corp. , 577 Pa. 138, 842 A.2d 919, 929-30 (Pa. 2004) ("[T]he phrase 'cause of action' ... does not have a single definition, and means different things depending on context."); see also William D. Ferguson, The Statutes of Limitations Savings Statutes 164 (1978) ("[W]hen dealing with res judicata most courts have traditionally ascribed a broader meaning to the term than when dealing with the term in connection with pleading.").

¶28 We look first to the plain language of a statute to interpret it. But where, as in this case, the plain and ordinary meaning of the statute's language is ambiguous (i.e., it is capable of alternative reasonable constructions or its intended scope is unclear), we may employ various tools to discern legislative intent. We do so below.

¶29 Statutory limitation periods "promote justice by preventing surprises through the revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared." Order of R.R. Telegraphers v. Ry. Express Agency , 321 U.S. 342, 348-49, 64 S.Ct. 582, 88 L.Ed. 788 (1944). "The theory is that even if one has a just claim it is unjust not to put the adversary on notice to defend within the period of limitation and that the right to be free of stale claims in time comes to prevail over the right to prosecute them." Id. at 349, 64 S.Ct. 582. "By penalizing unreasonable delay, statutes of limitation compel litigants to pursue their claims in a timely manner." Dean Witter Reynolds, Inc. v. Hartman , 911 P.2d 1094, 1099 (Colo. 1996).

¶30 But because time bars can be both harsh and subject to manipulation, remedial exceptions abound. Courts will equitably toll a statute of limitations in cases where fundamental fairness demands it. See, e.g. , Garrett v. Arrowhead Improvement Ass'n , 826 P.2d 850, 854-55 (Colo. 1992). And the General Assembly has adopted various statutory tolling provisions intended to ensure that claimants are not unreasonably deprived of their day in court. See, e.g. , § 13-80-106(2), C.R.S. 2018 (extending statute of limitations for product liability actions for minors and those who are "mentally incompetent, imprisoned, or absent from the United States at the time the cause of action accrues and [are] without spouse or natural or legal guardian"); § 13-80-118, C.R.S. 2018 (tolling statute of limitations for period that potential defendant "is out of this state and not subject to service of process or has concealed himself").

¶31 Colorado's remedial revival statute is one such provision. As noted above, it reflects the General Assembly's intent "to enable litigants to avoid hardships which might result from strict adherence to the provisions of statutes of limitations." Soehner , 642 P.2d at 28. It is a backstop intended to ensure that cases are decided on the merits - at least in situations where plaintiffs have pursued their claims diligently and defendants had knowledge of those claims.

Sharp Bros. Contracting Co. v. Westvaco Corp. , 817 P.2d 547, 551 (Colo. App. 1991).

B. Application

¶32 However variable the historical meaning of "cause of action" may be, one thing is clear: section 13-80-111 is a remedial statute and should therefore be construed liberally to effectuate its purpose. Id. Courts interpreting similar legislation in other states thus generally recognize that "the form of the action is not dispositive," Kulinski v. Medtronic Bio-Medicus, Inc. , 577 N.W.2d 499, 504 (Minn. 1998), and that good-faith filing mistakes will not bar otherwise untimely revival of a dismissed complaint, see, e.g. , Pringle v. Kramer , 40 So. 3d 516, 519 (Miss. 2010).

¶33 But a liberal construction is not an unlimited one. As one influential case put it, the key to applying statutes such as section 13-80-111 is determining whether "by invoking judicial aid [in the original action], a litigant [has] give[n] timely notice to his adversary of a present purpose to maintain his rights before the courts." Gaines v. City of New York , 215 N.Y. 533, 109 N.E. 594, 596 (1915). This statement contemplates two conditions: diligence by the plaintiff and notice to the defendant, both of which are critical to ensuring that claims are timely and fairly heard. Ensuring that the remedial revival statute is not invoked by a plaintiff who has slept on its rights - or against a defendant who has thus not received timely notice of the nature of the claims against it - will prevent section 13-80-111 from "swallow[ing] entirely the ordinary restrictions of a statute of limitation." Furnald , 804 N.W.2d at 276.

¶34 To that end, the remedy created by statutes like section 13-80-111 is, as the Iowa Supreme Court put it in Furnald , "narrow and sharp, not broad and blunt." Id. at 283. We agree with this view and hold that section 13-80-111 should be applied only where (1) plaintiffs have pursued their claims diligently and (2) defendants had knowledge of the claims. Sharp Bros. , 817 P.2d at 551. While we construe "cause of action" broadly, as is appropriate for a remedial statute, we conclude that Park Meadows' contract claim satisfies neither of these elements.

¶35 We first reject Park Meadows' assertion that it demonstrated diligence merely by filing its new lawsuit within ninety days after the dismissal of its first complaint became final. The policies underpinning Colorado's statutes of limitation demand more. A cause of action for breach of contract accrues "on the date the breach is discovered or should have been discovered by the exercise of reasonable diligence ." § 13-80-108(6), C.R.S. 2018 (emphasis added). The record establishes that Park Meadows was fully aware of the contractual implications of GM's actions by the time it filed its administrative complaint with the Executive Director. Yet rather than asserting breach of contract in the first complaint that it filed in the district court - or even filing an entirely new, timely complaint and having it stayed pending the outcome of its statutory claim - Park Meadows waited more than three years after the alleged breach to seek judicial relief. Under these circumstances, we conclude that Park Meadows did not demonstrate the diligence necessary to revive its claim for breach of contract.

¶36 We also reject Park Meadows' argument that its claim for breach of contract was "upon the same cause of action" as its original complaint, which, as we have discussed above, sought only statutorily authorized injunctive relief. The substantial differences between the two complaints - and what GM might reasonably be expected to do when addressing them - lend support to this conclusion. Most important is that Park Meadows' complaint in W. Colo. Motors I relied exclusively on GM's alleged violation of the Dealer Act. It did not even mention the dealership agreement, much less allege that GM had violated it. Instead, Park Meadows asserted that "GM's approval of the relocation of Alpine was unreasonable as it infringed upon Plaintiff's '[r]elevant market area' and established a new dealer in an area that is adequately serviced by Plaintiff with high consumer satisfaction for sales and service," and that "[i]f the relocation is allowed to proceed before this Court has the opportunity to consider the reasonableness of the relocation, Plaintiff will be prejudiced without being afforded the rights granted to it by C.R.S. § 12-6-120.3."

¶37 In contrast, Park Meadows' amended complaint in the instant case dedicates ten paragraphs to GM's alleged breach of contract but cites to just a few provisions of the dealership agreement, which also is not in the record before us. For instance, Park Meadows alleges the dealership agreement obligates GM to "service General Motors Products competitively and to permit each dealer the opportunity to achieve a reasonable return on investment if it fulfills its obligations[.]" Additionally, Park Meadows alleges that Michigan law governs disputes concerning the dealership agreement. That contention was not raised on appeal, but it underscores how, from a defendant's perspective, these two claims are distinct.

¶38 While the circumstances surrounding the execution, terms, and duration of the dealership agreement could be highly germane to a claim for breach of contract, that type of evidence has no apparent relevance under section 12-6-120.3(4)(a) - which precisely outlines the burden and nature of proof in a proceeding filed under the Dealer Act. We thus conclude that GM could not have reasonably been expected to infer from Park Meadows' claim for statutory relief that it should also secure and preserve evidence related to its dealership agreement, much less hold on to that evidence for years while Park Meadows' statutory claim wound its way through the courts.

V. Claim Preclusion

¶39 Because we affirm the district court's ruling on the grounds discussed above, we need not address Park Meadows' contention that the district court erroneously found that it was barred by the doctrine of claim preclusion.

VI. Conclusion

¶40 We affirm the district court's dismissal of the complaint.

JUDGE TERRY concurs.

JUDGE J. JONES specially concurs.

J. JONES, J., specially concurring.

¶41 I agree completely with the majority's analysis and therefore join in its opinion in full. I write separately, however, to encourage the General Assembly to clarify when section 13-80-111, C.R.S. 2018, does, or does not, apply.

¶42 As the majority notes, except for a ten-year period between 1961 and 1971, a version of this ambiguous statute has been on the books since 1868. Its origins are relatively ancient, and we don't have any legislative history to go on when deciding how, if at all, it applies in a particular case. Because of this, I see a real possibility that its original meaning has been lost to time. And because of that, Colorado courts will continue to struggle with cases in which a party invokes it. Courts and practitioners could only benefit from some legislative clarification that accounts for current legal practices.

      The controlling statutes have been relocated and substantially amended since 2014. They are now codified at sections 44-20-101 to -142, C.R.S. 2018.

      Although it is not in the record before us, we take judicial notice of Park Meadows' complaint in W. Colo Motors I . See CRE 201(f) ("Judicial notice may be taken at any stage of the proceeding."); Vento v. Colo. Nat'l Bank , 985 P.2d 48, 52 (Colo. App. 1999) (a court may take judicial notice of the contents of court records in a related proceeding).


author: Opinion by JUDGE DUNN

text:
    IN RE the MARRIAGE OF Jennifer Ann TOOKER, Appellant, and Mark Glen Tooker, Appellee,
    and Concerning El Paso County Child Support Services, Intervenor.
    Court of Appeals No. 18CA0589
    Colorado Court of Appeals, Division VII.
    Announced May 23, 2019
    Beltz & West, P.C., Daniel A. West, Colorado Springs, Colorado, for Appellant
    No Appearance for Appellee
    Marrison Family Law, LLC, Mikayla Shearer, Colorado Springs, Colorado, for Intervenor
   Opinion by JUDGE DUNN

¶1 The Post-9/11 Veterans Educational Assistance Act of 2008, referred to here as the GI Bill, 38 U.S.C. §§ 3301 - 3327 (2018), provides eligible veterans with education benefits such as tuition assistance, a stipend for books and supplies, and a monthly housing allowance, 38 U.S.C. § 3313(a), (c)(1) (2018). Mark Glen Tooker, a retired veteran, took advantage of the GI Bill's benefits to attend college.

¶2 In this post-dissolution of marriage dispute, Mark's former spouse, Jennifer Ann Tooker, challenges the district court's order modifying Mark's spousal maintenance and child support obligations. More specifically, she contends the district court erred in not (1) including the tuition assistance and book stipend Mark received under the GI Bill as income for purposes of calculating maintenance and child support; (2) including Mark's potential timber income in calculating maintenance and child support; and (3) making sufficient findings to modify Mark's maintenance obligation. Because we disagree with these contentions, we affirm.

I. Background

¶3 The district court entered a decree dissolving the parties' twenty-year marriage in 2015. At that time, Mark and Jennifer had two biological children. Jennifer also had a daughter, A.C.J.T., who was not Mark's biological child.

¶4 As part of the dissolution decree, and based on the parties' agreed parenting plan, the district court excluded A.C.J.T. from the child support calculation but ordered Mark to pay child support for the Tookers' two biological children, as well as maintenance.

¶5 Within the next few years, Jennifer and Mark each sought to modify Mark's monthly obligations. For her part, Jennifer asserted that Mark was A.C.J.T.'s legal parent and moved to modify the child support obligation to include A.C.J.T. She also moved to modify maintenance, arguing that circumstances had changed due to a "more than 10%" decrease in her income.

¶6 For his part, Mark sought modification or termination of maintenance based on other changed circumstances, including his reduced income (due to his military retirement) and, in his view, Jennifer's "dramatically increased income."

¶7 While the modification motions were pending, the juvenile court, in a separate proceeding not contested here, determined that Mark was A.C.J.T.'s legal father.

¶8 Not long after, the district court held an evidentiary hearing on the parties' motions to modify maintenance and Jennifer's motion to modify child support. It declined to modify Mark's maintenance obligation and, as relevant here, ordered Mark to pay $ 563 a month in child support for A.C.J.T. When calculating Mark's income, the district court included his military retirement; forty hours per week of imputed employment income; and, from the GI Bill, Mark's tuition assistance, book stipend, and housing allowance.

¶9 After the court entered the modification order, Mark sought reconsideration under C.R.C.P. 59. With respect to the GI Bill benefits, Mark argued that the tuition assistance and book stipend benefits should not be included as income for purposes of child support and maintenance. But he acknowledged that "the housing allowance stipend paid directly to [him] should be included." The district court agreed, finding that the tuition assistance payment was "made directly to [Mark's] educational institution" and he was not free to use this money on daily living expenses. The court similarly found the GI Bill allotted the book stipend for Mark's "educational books" and he could not use the stipend for discretionary expenses.

¶10 Given this, the district court excluded the GI Bill tuition assistance and book stipend benefits from Mark's income. It then recalculated his income using his military retirement, the GI Bill housing allowance, and forty hours per week of imputed employment income. The court concluded that Mark's monthly income was $ 3749. Based on the recalculated income, the district court ordered Mark to pay $ 553 per month in child support. And applying "the statutory formula" for maintenance to Mark's recalculated income, the district court found that he owed "$ 0.00" and therefore terminated his maintenance obligation.

II. The GI Bill Benefits

¶11 Jennifer contends the district court erred in excluding Mark's GI Bill tuition assistance and book stipend benefits from his income for purposes of calculating maintenance and child support. We are not persuaded.

¶12 We review maintenance and child support orders for an abuse of discretion. See In re Marriage of Thorstad , 2019 COA 13, ¶ 27, 434 P.3d 165 (maintenance modification); In re Marriage of Davis , 252 P.3d 530, 533 (Colo. App. 2011) (child support modification). But we review de novo whether the court applied the correct legal standard. See Thorstad , ¶ 27 (maintenance modification); Davis , 252 P.3d at 533 (child support modification).

¶13 A district court must determine the parties' gross incomes before calculating maintenance and child support. See § 14-10-114(3)(a)(I)(A), C.R.S. 2018 (maintenance);

§ 14-10-115(1)(b)(I), (5)(a), C.R.S. 2018 (child support). A party's gross income for this purpose means "income from any source." § 14-10-114(8)(c)(I) ; § 14-10-115(5)(a)(I).

¶14 The statutes, however, say nothing about GI Bill benefits, neither including them in the definition of gross income, see § 14-10-114(8)(c)(I) (nonexclusive list of income included in definition of gross income for maintenance); § 14-10-115(5)(a)(I) (same for child support), nor excluding them from the definition, see § 14-10-114(8)(c)(II) (excluding certain income from gross income for purposes of maintenance); § 14-10-115(5)(a)(II) (same for purposes of child support).

¶15 And Jennifer points us to no authority - nor have we found any - that has included (or excluded) GI Bill tuition assistance and book stipend benefits in a former spouse's gross income for purposes of maintenance and child support. But courts have considered whether payments made for a spouse's benefit are includable as gross income under the maintenance and child support statutes when those payments are not currently available for the spouse's general living expenses. See, e.g. , Davis , 252 P.3d at 535 ; In re Marriage of Mugge , 66 P.3d 207, 210 (Colo. App. 2003).

¶16 Mugge is particularly instructive. There, the father retired in exchange for an employer contribution to his pension plan. 66 P.3d at 209. On his retirement, the father elected not to take a distribution but to roll his pension into another plan. Id. The mother moved to modify the father's child support obligation, arguing the employer's pension contribution should be included as gross income for child support purposes. Id. at 209-10. The Mugge division disagreed. Id. at 211. It recognized that the father did not have the option of directly receiving the contribution "as wages." Id. And it thus concluded that, before actual distribution to the father is made, employer contributions to his retirement account or pension plan do not "constitute gross income" for child support purposes. Id.

¶17 Some years later, the Davis division considered whether an employer's contributions to the husband's 401(k) plan and health insurance plans should be included in his income for child support purposes. 252 P.3d at 534-35. The division concluded that the district court did not err in excluding the employer's contributions from the husband's gross income. Id. at 535. In reaching this conclusion, it found that, as in Mugge , the husband "did not have the option to take [the employer's] contributions as wages and use them for general living expenses." Id. ; see also In re Marriage of Mellott , 32 Kan.App.2d 1031, 93 P.3d 1219, 1221-22 (2004) (concluding that employer tuition reimbursements were not income under Kansas's child support guidelines because the tuition reimbursements did not reduce the father's living expenses).

¶18 The principle that emerges from these cases is that, to be included as gross income for purposes of maintenance and child support, benefits received by an individual (if not otherwise excluded from the definition of gross income in the maintenance and child support statutes) must be available for the individual's discretionary use or to reduce daily living expenses. With this in mind, we turn to the tuition assistance and book stipend benefits Mark received under the GI Bill.

¶19 Jennifer does not dispute that Mark's tuition assistance benefit was not paid to him but, rather, was paid directly to his college. A letter from the Department of Veterans Affairs introduced at the modification hearing confirmed that the Department "issued a tuition and fees payment to [Mark's] school[ ] on [his] behalf." And nothing in the record shows that Mark had any ability to receive the GI Bill tuition assistance benefit personally or use it for general living or other discretionary expenses.

¶20 Because the tuition assistance benefit was not available to Mark for general living expenses and would in no discernable way assist him in paying maintenance or child support, we conclude that the district court properly excluded the tuition assistance benefit as gross income for purposes of calculating maintenance and child support. See Davis , 252 P.3d at 535 ; Mugge , 66 P.3d at 211 ; see also Mellott , 93 P.3d at 1221-22.

¶21 We reach the same conclusion with respect to the book stipend. Though the relatively modest stipend appears to be paid directly to Mark, the record supports the district court's finding that it was "allotted for [his] educational books and ... may not be used at [his] discretion to decrease his daily living expenses." And Jennifer neither argues otherwise nor points to any record evidence suggesting differently. Given this, the district court did not abuse its discretion in excluding the book stipend from Mark's gross income. See Davis , 252 P.3d at 536 (concluding that the district court did not err in excluding the employer's health insurance stipend from the employee's gross income for child support purposes because the stipend was not significant and did not reduce living expenses); cf. In re Marriage of Long , 921 P.2d 67, 69 (Colo. App. 1996) (receiving free military housing and utilities was income for purposes of child support because the noncash benefit relieved the husband of "what is arguably his primary necessary expense" and increased his income "by approximately 20%").

¶22 We are not persuaded otherwise by Jennifer's reliance on Oley v. Branch , 63 Va.App. 681, 762 S.E.2d 790 (2014). There, the Virginia Court of Appeals concluded that a Federal Pell Grant (a form of financial assistance given to eligible students with no obligation to repay) was part of the mother's gross income for purposes of child support. Id. at 796-97. But in reaching this conclusion, the court focused on the language of Virginia's child support statute that states gross income includes "all income from all sources" and the fact that Virginia courts had interpreted this language to mean any source of income "unless specifically excluded ." Id. at 796 (quoting Frazer v. Frazer , 23 Va.App. 358, 477 S.E.2d 290, 299-300 (1996) ). Because the child support statute did not "specifically exclude federal education grants," the court there concluded that the mother's Federal Pell Grant was part of her gross income. Id. at 797. But see In re Marriage of Syverson , 281 Mont. 1, 931 P.2d 691, 698 (1997) (concluding that only the portion of a Federal Pell Grant that exceeded the mother's tuition bill should be considered gross income because the Montana child support rule defined gross income to include "grants ... intended to subsidize the parent's living expenses ") (citation omitted). Because Colorado courts interpret this state's maintenance and child support statutes differently, Oley does not change our analysis. See Davis , 252 P.3d at 535 ; Mugge , 66 P.3d at 211.

¶23 For these reasons, we perceive no error in the district court's exclusion of the GI Bill tuition assistance and book stipend benefits from Mark's gross income for purposes of modifying Mark's maintenance obligation and calculating child support for A.C.J.T.

III. Potential Income

¶24 Jennifer next contends the court erred in refusing to impute additional "potential income" to Mark when determining his gross income. We again are not persuaded.

¶25 If a party is voluntarily unemployed or underemployed, child support and maintenance are calculated based on the party's potential income. § 14-10-114(8)(c)(IV) (maintenance); § 14-10-115(5)(b)(I) (child support).

¶26 "Potential income" is described as the amount a party could earn from a full-time job commensurate with the party's demonstrated earning ability. People in Interest of A.R.D. , 43 P.3d 632, 637 (Colo. App. 2001). In determining potential income, the district court may consider several factors, including the party's historical income, education, and work experience. See id.

¶27 The district court has broad discretion in determining income, and whether to impute income to a party is typically a question of fact that we will not disturb if supported by the record. See People v. Martinez , 70 P.3d 474, 480 (Colo. 2003) ; see also In re Marriage of Connerton , 260 P.3d 62, 66 (Colo. App. 2010).

¶28 At the hearing on the motions to modify child support and maintenance, Jennifer argued Mark should be imputed income for forty hours per week of employment. She also argued that the court should consider timber on Mark's property as a resource when determining whether his maintenance obligation should be modified due to changed circumstances. In contrast, Mark argued that he should not be imputed any additional income because he is enrolled as a full-time student at an online college.

¶29 The district court rejected Mark's argument and imputed "40 hours of employment income" at minimum wage to him (a decision not challenged here). Although the court acknowledged that Mark had available "timber from a property he owns," it declined to impute any additional amounts to Mark for this "potential income."

¶30 Jennifer argues that the district court should have imputed additional potential income to Mark based on his timber ownership. In particular, she argues that Mark could receive additional income through timber sales, as he did in 2015. But she points us to no authority supporting her contention that a one-time (or possible future) sale of a good should be included as imputed income - in addition to forty hours per week of imputed employment income. See, e.g. , A.R.D. , 43 P.3d at 637 (describing potential income as related to full-time job); In re Marriage of Jaeger , 883 P.2d 577, 582 (Colo. App. 1994) (considering historical employment income when imputing income).

¶31 In any event, Mark testified he no longer received income from the timber. And while Jennifer testified Mark "could make a phone call and have a check well over a million dollars," nothing in the record shows the amount or value of timber available for sale. So, any inferences and conclusions to be drawn from the conflicting evidence were for the district court to resolve. In re Marriage of Lewis , 66 P.3d 204, 207 (Colo. App. 2003).

¶32 We therefore conclude the district court didn't abuse its discretion in declining to impute non-employment income related to possible future timber sales. Given this conclusion, we necessarily reject Jennifer's related argument that the court "made no findings of fact as to the amount of this potential income."

IV. Modification of Maintenance

¶33 Jennifer next argues that the district court failed to make sufficient findings of fact and conclusions of law in modifying Mark's maintenance. We don't agree.

¶34 The decision whether to modify maintenance is within the district court's sound discretion based on the facts presented. In re Marriage of Nelson , 2012 COA 205, ¶ 27, 292 P.3d 1214. Absent an abuse of that discretion, we will not disturb the court's ruling on review. Id.

¶35 A district court may modify maintenance on a showing of changed circumstances so substantial and continuing as to make the existing maintenance terms unfair. § 14-10-122(1)(a), C.R.S. 2018; see Nelson , ¶ 26. In making this determination, the court must examine the circumstances pertinent to initially awarding maintenance under section 14-10-114, including the relevant circumstances of both parties. In re Marriage of Kann , 2017 COA 94, ¶ 73 ; Nelson , ¶ 26. However, the determination is not the same as when making an original award; rather, the issue when considering a motion to modify is whether the terms of the original award have become unfair. In re Marriage of Weibel , 965 P.2d 126, 128-29 (Colo. App. 1998).

¶36 After the hearing on the parties' modification motions, the district court found that since the entry of the initial maintenance award, Mark had retired from the military, he was a full-time student, and his income had decreased to $ 3749 per month (from $ 6371 when maintenance was first ordered). See § 14-10-114(3)(c)(II), (V) ; see also § 14-10-122(1)(a).

¶37 With respect to Jennifer's income, the district court concluded that she earned roughly the same monthly income at the time of the modification hearing as she had at the time the court initially awarded maintenance. See § 14-10-114(3)(c)(I), (V) ; see also § 14-10-122(1)(a).

¶38 Based on this evidence, the district court found that Mark had "shown a change in circumstances under ... § 14-10-122, which is so substantial and continuing as to make the terms of" the original maintenance award "unfair." Applying the maintenance guidelines, the district court found that Mark's "suggested award of $ 0.00" was "fair, equitable, and not unconscionable."

¶39 The district court's findings sufficiently support its determination that substantial and continuing changed circumstances made the initial maintenance award unfair. See Kann , ¶ 73. We therefore don't agree with Jennifer that the district court "made no findings regarding the factors listed under [ section] 14-10-114(3)(c)."

V. Conclusion

¶40 We affirm the district court's order terminating Mark's maintenance obligation and modifying his child support obligation.

Ashby and Martinez , JJ., concur

      Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5 (3), and § 24-51-1105, C.R.S. 2018.

      For clarity, and without intending any disrespect to the parties, we will refer to the parties by their first names.

      While the modification proceedings were pending, the Tookers' two biological children became emancipated.


author: Opinion by JUDGE ROMÁN

text:
    IN RE the ESTATE OF Mark M. KING, deceased.
    Julie M. King, Appellant, v. Carylyn K. Bell, as Personal Representative of the Estate of Mark M. King; Michael McCandish King; and Colton McCandish King, Appellees.
    Court of Appeals No. 18CA0541
    Colorado Court of Appeals, Division III.
    Announced May 23, 2019
    Jones & Keller, P.C., G. Stephen Long, Denver, Colorado, for Appellant
    Springer and Steinberg, P.C., Jeffrey A. Springer, Craig L. Pankratz, Denver Colorado, for Appellee Carylyn K. Bell
    Brownstein Hyatt Farber Schreck, LLP, Carrie E. Johnson, Denver, Colorado, for Appellees Michael McCandish King and Colton McCandish King
   Opinion by JUDGE ROMÁN

¶1 This appeal presents a probate question of first impression in Colorado: Does the omitted spouse statute, section 15-11-301(1)(c), C.R.S. 2018, preclude a surviving spouse from claiming an intestate share of the decedent's estate where the decedent did not mention the surviving spouse of ten months in his will but did leave her $ 4,000,000 in life insurance proceeds and $ 52,000 in joint bank accounts? Applying section 15-11-301, we conclude that the answer is yes. Therefore, we affirm.

I. Background

¶2 Julie M. King (surviving spouse) filed a "Petition for an Omitted Spouse Share," contending that she was unintentionally disinherited from the estate of Mark M. King (decedent) and, therefore, entitled to "$ 163,000.00 (indexed for inflation) ... plus 50% of the balance of the estate." The personal representative, decedent's sister Carylyn K. Bell, and decedent's children, Michael McCandish King and Colton McCandish King (collectively, the estate), opposed the petition, arguing that surviving spouse's omission was intentional because decedent provided for her outside of the will - namely, through $ 4,462,806 she received in life insurance proceeds and joint bank accounts.

¶3 The magistrate held an evidentiary hearing. Following the hearing, the magistrate entered a written order regarding the Petition for an Omitted Spouse Share. The magistrate found the following.

¶4 Decedent established his estate plan in 2000. In doing so, he created a pourover will and the Mark M. King Revocable Trust. Decedent also executed three codicils to the will and amended the trust three times.

¶5 In May 2015, decedent and his first wife divorced. Decedent and surviving spouse began dating, and by July 2015 decedent regarded surviving spouse as his "partner." On July 27, 2015, decedent obtained a $ 5,000,000 life insurance policy and designated surviving spouse, then known as Julie Pelletier, to receive $ 4,000,000 of the policy and another friend, Jana Olsen, to receive the other $ 1,000,000.

¶6 Decedent and surviving spouse married six weeks later, on September 16, 2015. Decedent did not amend his will or trust documents.

¶7 But, eight months later, on May 19, 2016, decedent did amend the $ 4,000,000 life insurance policy to reflect his new spouse. Specifically, he wrote to the Northwestern Mutual Insurance Company about amending the life insurance policy:

I just looked at insurance summary and it was not clear that my Wife Julie Michelle King is the beneficiary of the $ 4mm of the $ 5mmm policy. First it shows her maiden name of Pelletier but second does not specify her allocation of 80% of the policy. Can you please correct her name change and send a policy that provides that she is beneficiary, Thanks Mark King.

Decedent passed away two months later.

¶8 In addition to the $ 4,000,000 life insurance policy, surviving spouse received about $ 52,000 contained in joint bank accounts and $ 410,806 from decedent's retirement plans. In total, surviving spouse received $ 4,462,806. Conversely, according to decedent's will, eighty-five percent of decedent's estate poured into the Mark M. King Revocable Trust for his children and fifteen percent went to other family members and charity.

¶9 Based on these findings, the magistrate concluded that surviving spouse was not an omitted spouse. This appeal followed. See C.R.M. 7(b).

II. Entitlement of Surviving Spouse: Effect of Premarital Will

A. Standard of Review

¶10 We review a judgment entered after a trial to the court as a mixed question of fact and law. Jehly v. Brown , 2014 COA 39, ¶ 8, 327 P.3d 351. "We defer to the court's credibility determinations and will disturb its findings of fact only if they are clearly erroneous and not supported by the record.... We review de novo the court's application of the governing legal standards." Id. (quoting Lawry v. Palm , 192 P.3d 550, 558 (Colo. App. 2008) ).

¶11 In addition, we interpret statutes de novo. Sandstead-Corona v. Sandstead , 2018 CO 26, ¶ 38, 415 P.3d 310. In construing a statute, "we look to the entire statutory scheme in order to give consistent, harmonious, and sensible effect to all of its parts, and we apply words and phrases in accordance with their plain and ordinary meanings." UMB Bank, N.A. v. Landmark Towers Ass'n , 2017 CO 107, ¶ 22, 408 P.3d 836. If the statutory language is clear, we apply it as written with the goal of effectuating the legislature's intent. Sandstead-Corona , ¶ 39 ; see St. Vrain Valley Sch. Dist. RE-1J v. Loveland , 2017 CO 54, ¶ 11, 395 P.3d 751.

B. Section 15-11-301 of the Colorado Probate Code

¶12 The omitted spouse statute - section 15-11-301 - of the Colorado Probate Code is designed to protect the testator's surviving spouse against unintentional disinheritance resulting from a premarital will. The statute reads in part:

If a testator's surviving spouse married the testator after the testator executed his or her will, the surviving spouse is entitled to receive, as an intestate share, no less than the value of the share of the estate he or she would have received if the testator had died intestate as to that portion of the testator's estate, if any, that neither is devised outright to nor in trust for the benefit of a child of the testator who was born before the testator married the surviving spouse and who is not a child of the surviving spouse nor is so devised to a descendant of such a child, or passes under section 15-11-603 or 15-11-604 to such a child or to a descendant of such a child....

§ 15-11-301(1).

¶13 Because the protection afforded by the omitted spouse statute relates only to unintentional disinheritance, the statute does not apply if:

(a) It appears from the will or other evidence that the will was made in contemplation of the testator's marriage to the surviving spouse;
(b) The will expresses the intention that it is to be effective notwithstanding any subsequent marriage; or
(c) The testator provided for the spouse by transfer outside the will and the intent that the transfer be in lieu of a testamentary provision is shown by the testator's statements or is reasonably inferred from the amount of the transfer or other evidence.

§ 15-11-301(1).

¶14 If any of these three exceptions apply, the surviving spouse is not entitled to an omitted spouse share of the testator's estate. Conversely, if none of the exceptions apply, the surviving spouse shall receive an omitted share of the testator's estate. § 15-11-301.

C. Intent That Transfer be in Lieu of a Testamentary Provision

¶15 In Colorado, intent that a transfer was in lieu of a testamentary provision may be (1) shown by the testator's statements; (2) reasonably inferred from the amount of the transfer; or (3) reasonably inferred from other evidence. § 15-11-301(1)(c). In this case, the magistrate did not accept any evidence of decedent's statements. However, the parties dispute whether the magistrate could reasonably infer the intent of the decedent from the amount of the transfer and whether there exists other evidence of the decedent's intent. Because no Colorado case has interpreted Colorado's omitted spouse statute, we look to decisions from other states that, like Colorado, have adopted versions of Uniform Probate Code section 2-301. See, e.g. , In re Estate of Becker , 32 P.3d 557, 563 (Colo. App. 2000) (examining other jurisdictions' interpretation of the Uniform Probate Code to determine revocation by divorce). Indeed, section 15-11-301 of the Colorado Probate Code is identical to the corresponding section 2-301 of the Uniform Probate Code. Unif. Probate Code § 2-301 (Unif. Law Comm'n 1969) (amended 2010).

¶16 When determining whether a transfer was intended to be in lieu of a testamentary provision, courts in other jurisdictions have concluded that the important inquiry is not the form in which the transfer was made, or when the transfer occurred, but rather whether the transfer was so minimal and made in such a way that it appears the testator failed to provide for his surviving spouse. In re Estate of Keeven , 110 Idaho 452, 716 P.2d 1224, 1230 (1986) ; Estate of Christensen v. Christensen , 655 P.2d 646, 650 (Utah 1982).

¶17 In Estate of Christensen , the testator's premarital will left the bulk of his estate in trust for his granddaughter while his surviving spouse received the value of corporate stock - a devise left to her, in the will, before they were married. As part of its analysis, the Utah Supreme Court established several factors to consider in determining whether the testator intentionally provided for a surviving spouse by transfer outside of the will:

(1) the alternative takers under the will, (2) the dollar value of the testamentary gift to the surviving spouse, (3) the fraction of the estate represented by that gift, (4) whether comparable gifts were made to other persons, (5) the length of time between execution of the testamentary instrument and the marriage, (6) the duration of the marriage, (7) any inter vivos gifts the testator has made to the surviving spouse, and (8) the separate property and needs of the surviving spouse.

Estate of Christensen , 655 P.2d at 650 ; accord Estate of Keeven , 716 P.2d at 1230-31.

¶18 Although Estate of Christensen is factually different from this case because, there, the transfer occurred within the premarital will of the testator, we nevertheless find those factors helpful to our analysis. Indeed, Utah's omitted spouse statute - Utah Code Annotated section 75-2-301 (West 2018) - is identical to Colorado Revised Statutes section 15-11-301. Accordingly, we adopt the factors articulated in Estate of Christensen and hold that, to determine whether an omitted spouse is entitled to an intestate share of an estate when a proponent of the will argues the exception under section 15-11-301(1)(c) applies, the court should examine the transfer in light of these factors, to the extent they are addressed by the evidence. To these factors, we add two additional points.

¶19 First, the plain language of section 15-11-301 makes no distinction between a transfer made to a future spouse in contemplation of marriage and a transfer made to a future spouse as a friend or in some other capacity. Rather, the statute requires a failure by the testator to provide for a surviving spouse in any capacity.

¶20 Second, the amount of the transfer may be considered in isolation or in relation to the total net probate estate. This is especially appropriate in Colorado, where intent can be reasonably inferred from the amount of the transfer. See § 15-11-301(1)(c) ; see also In re Estate of Taggart , 95 N.M. 117, 619 P.2d 562, 569-70 (App. 1980) (evidence supported a conclusion that the decedent's intent was to provide for the surviving spouse by creation of joint accounts and a retirement plan); In re Estate of Knudsen , 342 N.W. 2d 387, 391 (N.D. 1984) (life insurance benefits and joint tenancy arrangements can constitute "transfers" for the purposes of the omitted spouse statute);

In re Timmerman , 331 S.C. 455, 502 S.E.2d 920 (App. 1998) (making no indication of the total value of the testator's estate where the transfers to spouse totaled $ 1,191,000); Estate of Christensen , 655 P.2d at 650 (the surviving spouse's gift, which only constituted four percent of the total value of the estate, was nevertheless a substantial dollar value considering the short marriage).

¶21 We now apply these principles to the facts of the present case.

D. Application

¶22 Surviving spouse first argues that the magistrate impermissibly shifted the burden of proof to her by requiring her to show that the "substantial" amount that she received was not intentionally transferred in lieu of a testamentary provision. We apply the following burden-shifting test.

¶23 First the surviving spouse is required to prove that he or she is a spouse of the decedent and does not appear in the testamentary documents. See § 15-11-301(1).

¶24 Second, after the surviving spouse proves that he or she falls under section 15-11-301(1), the burden shifts to the proponent(s) of the will to establish that one of the exceptions set forth in section 15-11-301(1)(a)-(c) applies. Unif. Probate Code § 2-301 cmt.; see In re Estate of Beaman , 119 Ariz. 614, 583 P.2d 270, 274 (App. 1978) ; Estate of Christensen , 655 P.2d at 650.

¶25 Third, if the proponents of the will have satisfied their burden, the surviving spouse may present rebuttal evidence that he or she was not provided for by those transfers. The evidence must be sufficient to establish that the transfer could not reasonably represent the testator's effort to provide for his or her spouse in lieu of a testamentary provision. Estate of Christensen , 655 P.2d at 650.

¶26 Here, surviving spouse demonstrated that she was not provided for in the will. The burden then shifted to the estate (the proponents of the will) to present evidence that surviving spouse was provided for by transfers she received outside of the will, which it did through evidence of life insurance, joint accounts, and retirement plan transfers. Surviving spouse then sought to rebut this evidence by arguing that there was no evidence that decedent intended those transfers to be in lieu of a testamentary provision.

¶27 After considering the evidence, the magistrate concluded that

the amount of life insurance specifically created and designated for [surviving spouse] along with the jointly owned checking account(s) collectively totaling $ 4,052,000.00 was a substantial monetary transfer that Decedent intended at that time be provide[d] to his new spouse outside of his pre-marital estate plan convincing this court that [surviving spouse] was not an omitted spouse.

¶28 Applying the test we announce today, we conclude that the record supports the magistrate's determination that surviving spouse was not an omitted spouse under section 15-11-301. Specifically, the $ 4,000,000 life insurance transfer to surviving spouse provided six weeks before marriage and later ratified after marriage supports the permissible inference that decedent intended the transfer to provide for surviving spouse in lieu of a testamentary disposition. See Estate of Christensen , 655 P.2d at 650 (including "the dollar value of the testamentary gift to the surviving spouse" and "the duration of the marriage" as relevant factors to determine whether a transfer was provided in lieu of a testamentary provision); see also Estate of Taggart , 619 P.2d at 569 (considering the "not insignificant amount" transferred to the surviving spouse as evidence of intent to transfer in lieu of a testamentary provision).

¶29 This is so even though the life insurance transfer designation was made before decedent and surviving spouse's marriage. Estate of Beaman , 583 P.2d at 274 ("The section is designed to guard against unintentional disinheritance. It does not apply if the will states an intent to make no provision for a later spouse. Nor does it apply if before or after the marriage the testator makes some other provision for the spouse (a living trust, joint tenancy with right of survivorship, annuity, outright gift, or life insurance payable to the spouse) if this other provision was to take the place of a provision by will. The statute makes 'statements of the testator' admissible to show intent, but also permits other evidence to establish this.") (citation omitted).

¶30 In addition, applying section 15-11-301(1)(c), we conclude that "other evidence" in the record supports the magistrate's findings:

1. Decedent first executed his will in 2000 and then executed codicils on three separate occasions modifying the existing will to account for changes in life circumstances. Thus, decedent knew how to amend his will but did not do so after he married surviving spouse.
2. After the marriage, decedent re-designated surviving spouse - as his spouse, whereas she had been designated as his "partner" before - as the beneficiary of a life insurance policy in the amount of $ 4,000,000.
3. The amount of this transfer was not minimal and presents the kind of "other evidence" contemplated in the statute to show intent.
4. Decedent and surviving spouse were married for a short period of time - ten months.
5. Surviving spouse received an additional $ 52,000 in transfers from joint accounts (not to mention decedent's retirement plans outside of the will) in addition to the life insurance proceeds. See Estate of Taggart , 619 P.2d at 569-70 ; In re Estate of Frandson , 356 N.W.2d 125, 128 (N.D. 1984).

¶31 For these reasons, we find no error in the magistrate's findings that surviving spouse is not an omitted spouse under section 15-11-301.

¶32 In light of this disposition, we do not reach what share of the estate surviving spouse would have been entitled to had she fallen under section 15-11-301.

III. Conclusion

¶33 The magistrate's order is affirmed.

JUDGE WEBB and JUDGE FREYRE concur.

      The estate also argued that decedent's retirement plans, which went to surviving spouse, totaling $ 410,806, were a transfer that should be included as proof that surviving spouse's omission was intentional. Because the magistrate's order, as will be seen, did not include the retirement plans in its ultimate conclusion, neither do we.

      The magistrate's order stated that "[n]otwithstanding the fact that [surviving spouse] received the retirement funds in the amount of $ 410,806.00," the amount of money surviving spouse received was "substantial." It is unclear to us whether the magistrate made a determination as to whether this money constituted a "transfer" for purposes of section 15-11-301(1)(c), C.R.S. 2018, or simply chose not to use it within his calculations of the amount surviving spouse received. In the end, as will be discussed, regardless of whether the retirement plan amount was considered a transfer by the magistrate, his findings rested on a permissible inference based on the life insurance transfer and the value of the joint bank accounts.

      The parties dispute the net value of decedent's estate, but the magistrate did not make a finding of the value. Like the magistrate, we do not decide the net value of the estate because, as will be discussed, the net value of the estate is not dispositive of the question before us.

      Utah and Colorado both adopted the original Uniform Probate Code and subsequently adopted its revisions. Although the Estate of Christensen court considered the original Uniform Probate Code, the language at issue in both Estate of Christensen and this case did not change with the revisions, but was merely re-codified.