author: Judge PICCONE.

text:
    A-1 AUTO REPAIR & DETAIL, INC., Plaintiff-Appellee v. Angela BILUNAS-HARDY, f/k/a Angela Olsen-Hardy, Defendant-Appellant.
    No. 02CA0036.
    Colorado Court of Appeals, Div. V.
    April 22, 2004.

      Goldman, Robbins & Rogers, LLC, Lindsey K.S. Nicholson, Durango, Colorado, for Plaintiff-Appellee.
    Meinert & Hodges, L.L.C., Timothy A. Meinert, Dillon, Colorado, for Defendant-Appellant.
   Opinion by

Judge PICCONE.

In this case involving claims for conversion and civil theft, defendant, Angela Bilunas-Hardy, appeals the summary judgment entered in favor of plaintiff, A-l Auto Repair & Detail, Inc. We affirm.

Hardy was hired, as a secretary by A-l. Her duties included collecting payments from customers, paying the bills, making deposits, and preparing and issuing payroll checks. After Hardy terminated her employment, A-1 discovered that Hardy had overpaid herself on her last paycheck. A-l retained an accountant, who determined Hardy overpaid herself $5,749.25 during her employment. A-l also discovered approximately sixty-nine job invoices were missing. The invoices were marked “paid cash.” The cash from payment of these invoices was never deposited into A-l’s bank account. A-l alleged Hardy took the cash paid by the customers, destroyed A-l’s records of the jobs, and kept the cash.

Hardy was prosecuted for two counts of theft and was found guilty. The conviction was affirmed on appeal. People v. Bilunas, 2003 WL 253170 (Colo.App. No. 01CA0752, Feb. 6, 2003)(not published pursuant to C.A.R. 35(f))(cert. granted Oct. 6, 2003), 2003 WL 22283851 (Colo.).

A-l commenced this action against Hardy for conversion and civil theft. Based upon collateral estoppel, A-l moved for summary judgment on its claim for conversion of payroll overpayments and the amount of cash associated with the missing invoices. A-l also sought treble damages, attorney fees, and costs pursuant to the civil theft statute, § 18-4-405, C.R.S.2003.

The trial court granted A-l’s motion for summary judgment, applying collateral es-toppel only to the issue of liability for conversion of payroll overpayments. With regard to conversion for the missing invoices, civil theft, and the determination of damages, the trial court found there was no genuine issue of material fact, granted summary judgment, and awarded damages, treble damages, and attorney fees.

I.

Hardy contends Colorado law does not allow courts to apply collateral estoppel, now commonly known as the doctrine of issue preclusion, when the first adjudication is criminal and the subsequent litigation is civil. We disagree.

A. Summary'Judgment

Summary judgment is a drastic remedy and should only be granted if there is a clear showing that no genuine issue as to any material fact exists and the moving party is entitled to judgment as a matter of law. Compass Ins. Co. v. City of Littleton, 984 P.2d 606, 613 (Colo.1999). We review orders granting summary judgment de novo. McIntyre v. Bd. of County Comm’rs, 86 P.3d 402 (Colo.2004).

B. Collateral Estoppel or Issue Preclusion

Initially, we note that the terms collateral estoppel and issue preclusion are now used interchangeably. The modern trend is to use the term issue preclusion rather than collateral estoppel. See Byrd v. People, 58 P.3d 50, 53 n. 3 (Colo.2002)(“We prefer to use the terms ‘claim preclusion’ and ‘issue preclusion’ rather than ‘res judicata’ and ‘collateral es-toppel.’ ”).

The doctrine of collateral estoppel or issue preclusion holds that a court’s final decision on an issue actually litigated and decided precludes litigation of that issue in subsequent actions. Pomeroy v. Waitkus, 183 Colo. 344, 517 P.2d 396 (1973). Issue preclusion permits a plaintiff to foreclose a defendant from relitigating an issue previously lost by that defendant in another action. See Parklane Hosiery Co. v. Shore, 439 U.S. 322, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979).

Issue preclusion is intended to “relieve parties of the cost and vexation of multiple lawsuits, conserve judicial resources, and, by preventing inconsistent decisions, encourage reliance on adjudication.” Bebo Constr. Co. v. Mattox & O’Brien, P.C., 990 P.2d 78, 84 (Colo.1999)(quoting Salida Sch. Dist. R-32-J v. Morrison, 732 P.2d 1160, 1163 (Colo.1987), and Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 415, 66 L.Ed.2d 308 (1980)).

In Pomeroy, supra, the supreme court held that under issue preclusion, “the final decision of a court on an issue actually litigated and determined is conclusive of that issue in any subsequent suit.” Pomeroy, supra, 183 Colo. at 350, 517 P.2d at 399 (emphasis added). None of the Colorado cases applying issue preclusion have indicated any intent to limit its application to civil cases as Hardy contends. We conclude that a party to a civil action may invoke the doctrine of issue preclusion against a former criminal defendant to preclude him or her from relitigating an issue decided in the criminal prosecution.

To preclude a civil litigant from relitigating an issue previously found against him in a criminal prosecution is less severe than to preclude him from relitigating such an issue in successive civil trials, for there are rigorous safeguards against unjust conviction, including the requirements of proof beyond a reasonable doubt and of a unanimous verdict, the right to counsel, and a record paid for by the state on appeal. Stability of judgments and expeditious trials are served and no injustice done, when criminal defendants are estopped from re-litigating issues determined in conformity with these safeguards.

Teitelbaum Furs, Inc. v. Dominion Ins. Co., 58 Cal.2d 601, 606, 25 Cal.Rptr. 559, 375 P.2d 439, 441 (1962) (citations omitted).

The clear trend of Colorado eases is not to limit the application of issue preclusion to purely civil or purely criminal proceedings.

The Colorado Supreme Court has given preclusive effect in an attorney disciplinary pi’oceeding to a trial court’s finding in a child support proceeding that the attorney’s failure to pay child support was willful. See People v. Kolenc, 887 P.2d 1024, 1026 (Colo.1994); see also People v. Tucker, 837 P.2d 1225 (Colo.1992)(conclusion in criminal contempt proceeding that attorney willfully failed to pay child support would preclude litigation of willfulness issue in disciplinary proceeding). Further, the supreme court has precluded relitigation of issues decided in an arbitration proceeding so long as the traditional issue preclusion test has been met. Guar. Nat’l Ins. Co. v. Williams, 982 P.2d 306 (Colo.1999); see also Dale v. Guar. Nat’l Ins. Co., 948 P.2d 545 (Colo.1997); Quist v. Specialties Supply Co., 12 P.3d 863 (Colo.App.2000)(the principles of issue preclusion apply to arbitration proceedings). And issue preclusion applies to administrative proceedings in which the agency is acting in a quasi-judicial role. Salida Sch. Dist. R-32-J v. Morrison, supra, 732 P.2d at 1163; see also Pub. Serv. Co. v. Van Wyk, 27 P.3d 377 (Colo.2001); Sunny Acres Villa, Inc. v. Cooper, 25 P.3d 44 (Colo.2001)(preclusion extends to an administrative agency’s finding of fact and conclusion of law).

When intent is an element of the offense, an adjudication of delinquency has been held sufficient to establish a conclusive presumption of intent in an insurance coverage action because adjudication of delinquency requires a higher burden of proof and constitutional protections not present in most civil cases. Swentkowski v. Dawson, 881 P.2d 437 (Colo.App.1994); see also Colo. Farm Bureau Mut. Ins. Co. v. Snowbarger, 934 P.2d 909 (Colo.App.1997)(when the issue of intent is finally decided in previous criminal prosecution, it cannot be relitigated to avoid the intentional acts exclusion of an insurance policy); State Farm Fire & Cas. Co. v. Mason, 697 P.2d 793 (Colo.App.1984)(dismissal of arson charges against the insured in criminal action did not collaterally estop insurer from filing a petition for declaratory judgment where the insurer was not in privity with the prosecutor).

The United States District Court for the District of Colorado, construing Colorado law, also has applied the doctrine of issue preclusion where the first adjudication was criminal and the subsequent litigation was civil. In Poole v. State Farm Fire & Casualty Co., 941 F.Supp. 964 (D.Colo.1996), aff'd, 125 F.3d 862 (10th Cir.1997), the plaintiff was convicted of first degree murder. The victim’s estate sued for wrongful death. The plaintiff brought a civil action against its insurer seeking a defense and indemnity. The district court granted summary judgment in favor of the insurer under its policy exclusion for “intentional acts causing bodily injury,” concluding the plaintiffs intent was decided in his criminal trial. “To determine in this action that [the plaintiff] did not act with the requisite intent ... would be to hold that the jury in the criminal trial was wrong, which is not permitted under the doctrine of issue preclusion.” Poole, supra, 941 F.Supp. at 968; see also Colo. Farm Bureau Mut. Ins. Co., supra.

Further, substantial case law from other jurisdictions supports our conclusion. Courts in at least twenty states and the District of Columbia have held that a party ⅛ a civil action may invoke issue preclusion to preclude a criminal defendant from relit-igating issues decided in the criminal prose-eution. At least five federal circuit courts have ruled similarly. See, e.g., Gelb v. Royal Globe Ins. Co., 798 F.2d 38 (2d Cir.1986); Compton v. Ide, 732 F.2d 1429, 1434 (9th Cir.1984), abrogated on other grounds by Agency Holding Corp. v. Malley-Duff & Assocs., Inc., 483 U.S. 143, 107 S.Ct. 2759, 97 L.Ed.2d 121 (1987); Wolfson v. Baker, 623 F.2d 1074, 1077-81 (5th Cir.1980); Cardillo v. Zyla, 486 F.2d 473, 475-76 (1st Cir.1973); Scott v. Robertson, 583 P.2d 188, 191-92 (Alaska 1978); Teitelbaum Furs, Inc. v. Dominion Ins. Co., supra, 58 Cal.2d at 607, 25 Cal.Rptr. at 562, 375 P.2d at 442 (“any issue necessarily decided in a prior criminal proceeding is conclusively determined as to the parties if it is involved in a subsequent civil action”); Ross v. Lawson, 395 A.2d 54, 57 (D.C.1978); Aetna Cas. & Sur. Co. v. Niziolek, 395 Mass. 737, 481 N.E.2d 1356 (1985); Ill. Farmers Ins. Co. v. Reed, 662 N.W.2d 529 (Minn.2003); Travelers Ins. Co. v. Thompson, 281 Minn. 547, 163 N.W.2d 289 (1968); Aetna Life & Cas. Ins. Co. v. Johnson, 207 Mont. 409, 673 P.2d 1277, 1280 (1984); Hurtt v. Stirone, 416 Pa. 493, 206 A.2d 624 (1965); see also Restatement of Judgments § 85(2) (1982)(issues determined in a criminal prosecution in favor of the prosecution are preclusive in a civil action against the defendant arising from the criminal prosecution).

The Colorado Rules of Evidence provide for the admissibility of evidence of a criminal conviction in a civil proceeding. CRE 803(22) provides an exception to the hearsay rule for “[ejvidence of a final judgment, entered after a trial or upon a plea of guilty or nolo contendere, adjudging a person guilty of a crime punishable by death or imprisonment in excess of one year, to prove any fact essential to sustain the judgment.”

Accordingly, we hold that issue preclusion will bar litigation in a civil trial of an issue that has been previously litigated in a criminal trial, provided the requisites for the application of issue preclusion are satisfied.

C. Application to Present Case

In Colorado, four elements must be satisfied for a court to apply issue preclusion. The proponent of issue preclusion must demonstrate that: (1) the issue precluded is identical to an issue actually litigated and necessarily adjudicated in the prior proceeding; (2) there was a final judgment on the merits; (3) the party against whom issue preclusion is asserted was a party to, or was in privity with a party to, the prior proceeding; and (4) the party against whom issue preclusion is asserted had a full and fair opportunity to litigate the issue in the prior proceeding. See Bebo Constr. Co., supra; Michaelson v. Michaelson, 884 P.2d 695 (Colo.1994); Pomeroy, supra, 183 Colo. at 351, 517 P.2d at 399. Only the first and fourth elements are disputed here.

1. Identical Issue Actually Litigated

To be actually litigated, an issue must have been raised by the parties in the prior action. Michaelson, supra; Pomeroy, supra. The issue to be precluded must be identical to the issue that was actually and necessarily decided in the prior action. Michaelson, supra.

Hardy arg-ues the issues in the criminal and civil cases were different. However, this argument reflects her misunderstanding of the trial court’s order, which only applied issue preclusion to Hardy’s liability for conversion of payroll overpayments. The court did not apply issue preclusion to any issue concerning the missing invoices, because that issue was not litigated in the criminal proceeding.

The elements of theft pursuant to § 18-4-401 are that the defendant knowingly obtained or exercised control over anything of value of another without authorization, with the intent to deprive the other person permanently of the use or benefit of the thing of value.

Conversion is defined as “any distinct, unauthorized act of dominion or ownership exercised by one person over personal property belonging to another.” Byron v. York Inv. Co., 133 Colo. 418, 424, 296 P.2d 742, 745 (1956).

We conclude the conversion issue here — that Hardy exercised unauthorized possession of the overpayments belonging to A-l — is identical to the issue actually litigated in the criminal proceeding. Therefore the first condition for issue preclusion is satisfied.

2. Full and Fair Opportunity to Litigate the Issue

In Bebo Construction Co., supra, the supreme court set forth the following three factors to consider in determining whether a party has received a full and fair opportunity to litigate an issue in an earlier action: (1) whether the remedies and procedures of the earlier action are substantially different from those in the action in which issue preclusion is asserted; (2) whether the party against whom issue preclusion is sought, or one in privity with that party, had sufficient incentive to litigate vigorously; and (3) the extent to which the issues are identical.

Here, all three factors are satisfied. The remedies and procedures in a criminal case are substantially more stringent than those in a civil case. See Sunny Acres Villa, Inc. v. Cooper, supra. Hardy had incentive to fully litigate and defend herself in the proceeding where her liberty was at stake, and, as discussed above, the elements of theft include the elements of conversion. Therefore we conclude she had a full and fair opportunity to litigate.

Accordingly, we conclude the trial court properly applied issue preclusion to the issue of Hardy's liability for theft through payroll overpayments.

II.

Next, Hardy argues the court erred by granting summary judgment on the payroll overpayment claim in the amount of $5,749.25, because genuine issues of material fact existed as to the amount of damages that exceeded restitution in the criminal case. Hardy also argues the trial court erred in granting summary judgment for $13,830.51 on A-l’s conversion claim for the missing cash from the invoices. We disagree.

The purpose of summary judgment is “to permit the parties to pierce the formal allegations of the pleadings and save the time and expense connected with a trial when, as a matter of law, based on undisputed facts, one party could not prevail.” Mt. Emmons Mining Co. v. Town of Crested Butte, 690 P.2d 231, 238 (Colo.1984)(quoting Ginter v. Palmer & Co., 196 Colo. 203, 205, 585 P.2d 583, 584 (1978)). All doubts concerning the existence of a genuine issue of material fact must be resolved against the moving party. Jones v. Dressel, 623 P.2d 370 (Colo.1981).

A genuine issue cannot be raised simply by . means of argument. Once the movant has made a convincing showing that genuine issues of fact are lacking, the non-moving party must demonstrate by admissible facts that a real controversy exists. Hauser v. Rose Health Care Sys., 857 P.2d 524, 527 (Colo.App.1993).

Under C.R.C.P. 56(e), “[w]hen a motion for summary judgment is made and supported as provided in this Rule, an adverse party may not rest upon mere allegations or denials of the opposing party’s pleadings, but the opposing party’s response by affidavits or otherwise provided in this Rule, must set forth specific facts showing that there is a genuine issue for trial.” An affirmative showing of specific facts, uncontra-dicted by any counteraffidavits, requires a trial court to conclude that no- genuine issue of material fact exists. Civil Serv. Comm’n v. Pinder, 812 P.2d 645, 650 (Colo.1991).

Here, Hardy argues that the court disregarded the fact that the criminal court ordered restitution in the amount of $2,849.59, not $5,749.25. However, the trial court concluded Hardy owed A-l $5,749.25 in damages, as a matter of law, based on the uncontested evidence A-l submitted with its motion for summary judgment. Thus, the court did not rely on issue preclusion in granting summary judgment on the amount of damages.

In support of its summary judgment motion, A-l submitted three affidavits. In response, Hardy submitted a mittimus, a minute order, a proposed restitution order, and an affidavit of her attorney. None of Hardy’s exhibits contained information sufficient to raise a genuine issue of material fact as to the amount of damages A-l asserted it was owed on the claim for payroll overpayment.

Likewise, none of Hardy’s exhibits raised a genuine issue of material fact as to the cash invoices. A-l presented the court with two affidavits that detailed Hardy’s involvement in the retention of the cash payments. One stated Hardy retained a total of $13,830.51. Although Hardy argued A-l’s witnesses were not credible on this point, she failed to set forth specific facts to contradict their testimony. Accordingly, the trial court did not err in granting summary judgment on this issue either.

We reject Hardy’s argument that the trial court improperly shifted the burden of establishing the absence of material fact to her, the nonmoving party.

The party moving for summary judgment has the initial burden to show that there is no genuine issue of material fact. AviComm, Inc. v. Colo. Pub. Utils. Comm’n, 955 P.2d 1023, 1029 (Colo.1998). Once the moving party has met its initial burden, the burden shifts to the nonmovant to establish a genuine issue of material fact. AviComm, Inc. v. Colo. Pub. Utils. Comm’n, supra.

Here, the trial court first determined that A-l had established by affidavits and issue preclusion that no genuine issue of material fact existed. Thus, the trial court correctly applied the summary judgment standard. See Hauser, supra, 857 P.2d at 527; see also DiLeo v. Koltnow, 200 Colo. 119, 126-27, 613 P.2d 318, 324 (1980)(summary judgment proper where nonmoving party failed to submit opposing affidavits, interrogatories, or any supporting documents).

III.

Next, Hardy contends the trial court erred in awarding treble damages and attorney fees under § 18-4-105, C.R.S.2003. We disagree. Because the trial court was undoubtedly referencing § 18-4-405, not § 18-4-105, Hardy has no basis for her contention.

In its order granting summary judgment, the trial court mistakenly referred to § 18-4-105, but quoted language from § 18-4-405 as follows:

All property obtained by theft ... shall be restored to the owner.... In any such action, the owner may recover two hundred dollars or three times the amount of the actual damages sustained by him, whichever is greater, and may also recover costs of the action and reasonable attorney fees....

Section 18-4-405 provides “independent [civil] remedies to the owner of stolen property.” In re Marriage of Allen, 724 P.2d 651, 658 (Colo.1986). To be awarded treble damages, attorney fees, and costs under § 18-4-405, a plaintiff need only prove the defendant committed acts constituting one of the statutory crimes of theft. Itin v. Ungar, 17 P.3d 129 (Colo.2000).

Here, through the application of issue preclusion, the trial court properly concluded that Hardy committed theft of A-l’s property. The trial court likewise properly awarded treble damages and fees under § 18-4-405.

IV.

Hardy argues the trial court erred in denying her request for additional discovery before ruling on A-l’s motion for summary judgment. We are not persuaded.

C.R.C.P. 56(f) provides, in pertinent part: Should it appear from the affidavits of a party opposing the motion [for summary judgment] that the opposing party cannot for reasons stated present by affidavit facts essential to justify its opposition, the court ... may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had....

Whether to grant a request for discovery pursuant to C.R.C.P. 56(f) lies within the discretion of the trial court. It is not an abuse of discretion to deny a C.R.C.P. 56(f) request if the movant has failed to demonstrate that the proposed discovery is necessary and could produce facts that would preclude summary judgment. Keybank v. Mascarenas, 17 P.3d 209, 215 (Colo.App.2000); see also Sundheim v. Bd. of County Comm’rs, 904 P.2d 1337 (Colo.App.1995), aff'd, 926 P.2d 545 (Colo.1996).

Here, the trial court found Hardy’s request for additional time to conduct discovery unpersuasive. Hardy filed her motion nearly two and a half years after she filed her answer. During this time Hardy was involved in the criminal case dealing with the identical claims, yet she could not produce any evidence to contradict A-l’s facts supporting summary judgment. Accordingly, we conclude the trial court did not abuse its discretion in denying Hardy’s motion.

The judgment is affirmed.

Judge CASEBOLT and Judge ROY concur.


source: Caselaw Access Project

author: Judge LOEB.

license: Public Domain

text:
    In the Matter of the ESTATE OF Audrey E. LEWIS, a/k/a Audrey E.M. Lewis, deceased. Julie A. Marsh, individually, Petitioner-Appellant, v. Delta Gamma Anchor Center for Blind Children, Intervenor-Appellee.
    No. 03CA0368.
    Colorado Court of Appeals, Div. IV.
    April 22, 2004.

      Jack Kintzele, Denver, Colorado, for Petitioner-Appellant.
    Holland & Hart, L.L.P., Robert E. Benson, Elizabeth A. Phelan, Denver, Colorado, for Intervenor-Appellee.
   Opinion by

Judge LOEB.

In this probate case, petitioner, Julie A. Marsh, appeals the trial court’s order declaring that stock certificates, jewelry, and coins found in the home of the decedent, Audrey E. Lewis, were part of the decedent’s residuary estate. We affirm.

The decedent wrote a holographic will that stated:

3060 So. Leyden [decedent’s house] & its .entire contents are to go to Julie to be kept or disposed of as she sees fit. Special attention to be paid to the Silver, Crystal, Haviland China and antiques in the China Cabinet, tho [sic] many items are still missing at this time.
My jewelry & coins are temporarily at Norwest Bank at 1745 Broadway. I have been trying to locate Katherine Riedesel last known of in the San Francisco area and her brother Dr. William Riedesel last known to be in St. Louis. I intend to be more specific at a later date.
After any debts, bills, fees etc. are paid, the balance of my estate is to be divided thus....

The decedent then listed various percentages of the residuary estate to be left to a college fund for petitioner’s son and certain charities. The decedent did not specifically mention stock certificates in the will. Petitioner was named personal representative.

Upon decedent’s death, stocks certificates, jewelry, and coins, together valued at approximately $180,000, were found in her house. The will was admitted to probate, and petitioner, as the personal representative, asked for guidance from the court regarding distribution of the stock certificates, jewelry, and coins. The district court found that these items were part of the residuary estate.

Petitioner, in her individual capacity as a devisee under the will, brought this appeal, and the Delta Gamma Anchor Center for Blind Children, one of the charities designated to receive the residuary estate, intervened.

I.

The main issue on appeal is whether the stocks, coins, and jewelry found in the house at the time of death are considered “contents” of the house. Petitioner contends that the plain language of the will indicates that the decedent’s intent was to include all items found on the premises as “contents.” The intervenor contends that the decedent intended the “contents” of the house to be limited to personal property typically used in the house for its functioning and enjoyment and that stocks, jewelry, and coins are not that type of personal property. We agree with the intervenor.

In construing wills, we must ascertain the intent of the testator from the language of the will itself and, if the intent is not contrary to some positive rule of law or public policy, give it effect. In re Estate of Paulsen, 113 Colo. 373, 379, 158 P.2d 186, 189 (1945); In re Estate of Peppler, 971 P.2d 694, 696 (Colo.App.1998). Because construction of a will is a question of law, a reviewing court is not bound by the district court’s construction. In re Estate of Peppler, supra.

Whether the “contents” of a house include stocks, jewelry, or coins found in the house at the time of death is an issue of first impression in Colorado.

However, courts of numerous jurisdictions have considered this issue and have articulated a general rule that, unless a contrary intention is clearly expressed in the will, a devise of a house and its contents does not include items such as stock certificates, bank accounts, checks, insurances policies, deeds, mortgages, and securities which are found in the house. The rule has also been applied to exclude jewelry and coins from the definition of “contents.”

For example, in In re Estate of Lawson, 792 So.2d 977 (Miss.2001), the court recited the general rule stated above and held, “The gift of the ‘contents’ of a home is limited to those things ordinarily identified with a home. The term ‘contents’ when referring to a household customarily and ordinarily encompasses articles of personal property typically used in and about the household.... ” In re Estate of Lawson, supra, 792 So.2d at 979 (citation omitted). The court specifically held that securities are not included within the term “contents” simply because they “fortuitously happen to be on the premises at the time of the decedent’s death.” In re Estate of Lawson, supra, 792 So.2d at 980; see also Souder v. Johnson, 501 So.2d 745, 746 (Fla.Dist.Ct.App.l987)(devise of house and its “contents” did not include stock certificates or proceeds from financial institution passbooks found on the premises); Linson v. Crapps, 204 Ga. 264, 49 S.E.2d 523, 524 (1948)(devise of a home and “the contents of said home” did not include government bonds found in dresser drawer in the home at the time of death); In re Estate of Shoptaugh, 482 N.E.2d 1142, 1145 (Ind.Ct.App.1985)(six stock certificates found in decedent’s house held not included in devise of house and “all contents”); In re Estate of Lamb, 445 Pa. 323, 285 A.2d 163, 164 (1971)(real property and “contents thereof’ did not include savings and checking accounts, savings bank certificates, and uncashéd checks); In re Estate of Rudy, 329 Pa.Super. 458, 478 A.2d 879, 881 (1984) (testator’s bequest of the “contents” of his house did not include the cash, stocks, bonds, old coins, watches, and jewelry found therein).

Here, we conclude that the language of the will reflects the decedent’s intent that the “contents” of her home not include the stock certificates, jewelry, and coins. We are persuaded by the general rule as articulated in numerous cases and therefore elect to adopt and apply it here.

Within the paragraph in the will conveying the house and its contents to petitioner, the decedent specifically referenced silver, crystal, china, and antiques, thus indicating that she perceived “contents” to be items such as these, which are commonly associated with the use and enjoyment of a house. See Estate of Lawson, supra, 792 So.2d at 980 (silverware and glassware included in “contents” as items typically associated with use and enjoyment of a house). And, given the significant value of the stocks, jewelry, and coins, the decedent’s failure to mention these items in this paragraph, while specifically mentioning other household items, further supports the conclusion that they were not considered part of the “contents” of the house.

Other language in the will also specifically supports excluding the jewelry and coins from the “contents” of the house. According to the will, when it was written, the jewelry and coins were not in the house, but were at Norwest Bank. The decedent referred to the location of the jewelry and coins in a separate-paragraph and indicated an intention to dispose of these items at a later date. See Wright v. Dzienis, 77 N.J.Super. 455, 187 A.2d 8, 9 (1962) (“personal jewelry, articles of personal adornment, and the like, do not pass under a bequest of ‘household chattels’ simply because they happen fortuitously to be in the premises at the time of decedent’s death”); In re Estate of Rudy, supra, 478 A.2d at 881 (neither jewelry nor coins were included in real property “together with the contents thereof’).

We also note that, because there is a residuary devise, we are not faced with the possibility of intestacy. See In re Estate of Jenkins, 904 P.2d 1316, 1321 (Colo.1995)(“[I]t is a well settled rule of construction that in determining the testator’s intent, courts should adopt a construction that avoids partial intestacy.”); In re Estate of Paulsen, supra (savings accounts included in devise of “personal property,” in part because to conclude otherwise would create an intestacy); see also In re Estate of Lawson, supra (devise of a house and its contents does not include stock certificates and bonds, despite partial intestacy).

Indeed, the will designates several specific devisees to receive the residuary estate. Interpreting the will to give the stocks,.jewelry, and coins to petitioner would reduce the value of this residuary estate by approximately $180,000. The decedent designated several charities as residuary devisees and allotted specific percentages of the residuary estate to each devisee. It is therefore clear from the language of the will that the decedent intended the residuary beneficiaries to receive a substantial amount of money. It would be contrary to this intent to convey the items at issue here to petitioner and thereby significantly deplete the residuary estate. See In re Estate of Lamb, supra, 285 A.2d at 164 (residuary estate would be significantly depleted, frustrating decedent’s charitable intent, if bank accounts found in home were considered “contents” of home).

We disagree with petitioner that In re Estate of Paulsen, supra, compels a different result. There, the court stated that the term “personal property” in a will includes “credits, savings-bank deposits, notes, bonds, the proceeds arising from the sale of realty, and the right to a certificate in foreclosure.” In re Estate of Paulsen, supra, 113 Colo. at 384, 158 P.2d at 191 (quoting 3 Page on Wills § 964, at 44 (Lifetime ed.)). Here, however, we are not dealing with a term as broad as “personal property” but rather with the narrower term “contents” of a residence.

Similarly, the additional out-of-state authorities tendered by petitioner at oral argument are all distinguishable because the language of the wills in those cases differs from the language of the will at issue here. See, e.g., Winkler v. Woodruff, 182 A. 409 (Del.Ch.1935)(broad language in devise of real estate and “all the furniture, household furnishings and personal property of any kind whatsoever in the said above mentioned property” included cash, shares of stock, jewelry, and wearing apparel found on the premises); Cuppett v. Neilly, 143 W.Va. 845, 105 S.E.2d 548, 553 (1958)(devise of home “with all the furniture and contents including linens and silverware” included jewelry in the home, where, unlike here, will did not contain other specific provisions referencing jewelry and indicating decedent’s intent that jewelry was not considered as contents of home), overruled on other grounds by Watson v. Santalucia, 189 W.Va. 32, 427 S.E.2d 466 (1993); In re Treat’s Estate, 253 Wis. 527, 34 N.W.2d 685, 687 (1948)(bequest of “furniture, household goods, ornaments and personal effects located in my dwelling” included testatrix’s jewelry).

Finally, petitioner’s argument notwithstanding, the court’s admonition in Paulsen not to place too much reliance on precedents is hot at issue here, where the language of the will evidences an intent consistent with the general rule that the “contents” of a house do not include stock certificates, jewelry, and coins.

Accordingly,-we conclude that the district court correctly included in the residuary estate the stock certificates, jewelry, and coins found in the decedent’s house at the time of death.

II.

Petitioner also contends that her attorney fees for the proceedings in the district court and on appeal should be paid from the estate. We disagree.

As a general rule, where an action is necessary to discern the proper construction of a will, the attorney fees should be paid by the estate for the party instituting the action. In re Estate of Fryer, 874 P.2d 490, 492 (Colo.App.1994). However, attorney fees are only proper where the estate benefits from the action. In re Estate of Coors, 140 Colo. 343, 346, 344 P.2d 184, 185 (1959). Generally, attorney fees are awarded only to the personal representative. See § 15-12-720, C.R.S.2003 (fees allowed to personal representative); In re Estate of Fryer, supra. However, a beneficiary may be awarded attorney fees where the action benefits the estate by preventing an unlawful distribution or where the beneficiary is responding to an action instigated by another. See Tarr v. Newby, 146 Colo. 296, 302, 361 P.2d 622, 625 (1961); In re Estate of Coors, supra. Where a beneficiary’s motive is financial gain, an award of attorney fees from estate funds is inappropriate. In re Estate of Fryer, supra.

Here, the record does not indicate that the personal representative requested attorney fees in the district court, and thus there is no order for us to review regarding such a request. See Citizens Bank v. Kruse, 691 P.2d 1143, 1144 (Colo.App.1984)(where motion in trial court specifically challenged award of attorney fees, issue was preserved for appeal).

In any event, the personal representative is the party who would be granted attorney fees for the action in the district court, and the personal representative, as such, is not a party to this appeal. See In re Marriage of Pontius, 761 P.2d 247, 250 (Colo.App.1988)(because father was not party to appeal, court would not address portion of order requiring him to be jointly and severally liable for mother’s attorney fees).

We also conclude that petitioner is not entitled to an award of attorney fees on appeal. Petitioner brought this appeal in her capacity as an individual devisee under the will, not as the personal representative, and the appeal is intended to benefit her alone. See In re Estate of Fryer, supra. Moreover, she was not responding to an action by another, but rather is simply challenging the district court’s ruling.

Under these circumstances, we conclude that granting petitioner attorney fees on appeal from the estate is not warranted.

Order affirmed.

Judge CASEBOLT and Judge GRAHAM concur.


text:
    Gilbert R. EGLE and Deborah Palm-Egle, Plaintiffs-Appellants, v. CITY AND COUNTY OF DENVER, a municipal corporation; Kent Straptko, Administrator, Denver Department of Zoning; Steve Draper, Administrator, Denver Building Inspections Division; and Polich-Paragon Joint Venture, Defendants-Appellees.
    No. 02CA2495.
    Colorado Court of Appeals, Div. II.
    May 6, 2004.

      Gilbert R. Egle, Denver, Colorado, for Plaintiffs-Appellants.
    Cole Finegan, Denver City Attorney, Charles T. Solomon, Assistant City Attorney, Helen Eekardt Raabe, Assistant City Attorney, Denver, Colorado, for Defendants-Ap-pellees City and County of Denver, Kent Straptko, and Steve Draper.
    Thomas A. Polich, Golden, Colorado, for Defendant-Appellee Polich-Paragon Joint Venture.
   Opinion by

Judge PICCONE.

Plaintiffs, Gilbert R. Egle and Deborah Palm-Egle, appeal the trial court’s judgment dismissing their complaint against defendants, the City and County of Denver; Kent Straptko, administrator of the Denver Department of Zoning; Steve Draper, Administrator of the Denver Building Inspections Division; and the Polich-Paragon Joint Venture, for lack of subject matter jurisdiction, We affirm.

In March 2000, Polich-Paragon began construction of the residence at issue in this appeal. While it was under construction, Neighborhood Inspection Services (NIS), which is authorized to act on behalf of the Zoning Department, inspected the residence and determined it did not comply with building plans approved by the Department. In particular, NIS determined that the roofline projected four feet through the north side bulk plane, in violation of the Denver Revised Municipal Code (D.R.M.C.). Thereafter, NIS issued an order to cease and desist, directing Polich-Paragon to correct the violation.

Polich-Paragon appealed the order to cease and desist to the Board of Adjustment for Zoning Appeals. The Board of Adjustment directed Polich-Paragon to redesign and rebuild the roofline of the residence to bring it into compliance with the bulk plane provisions in the D.R.M.C. The Zoning Department approved Polich-Paragon’s plans to bring the roofline into compliance and issued Polich-Paragon a zoning permit authorizing it to rebuild the residence in accordance with those plans.

Plaintiffs own the house directly north of the residence. They appealed the Zoning Department’s approval of the plans to the Board of Adjustment, asserting the plans allowed the dormer on the north side of the residence to exceed the bulk plane. The Board of Adjustment upheld the Zoning Department’s decision to approve the plans.

NIS inspected the rebuilt residence and found it complied with the plans approved by the Zoning Department. This finding was a prerequisite for a certificate of occupancy to be issued by the Building Department.

Approximately three months after the Board of Adjustment rejected their appeal concerning the revised plans, plaintiffs presented the Zoning Department with a survey which attempted to demonstrate that the dormer on the north side was in violation of the north bulk plane. The Zoning Department did not rescind or otherwise revoke its approval of the rebuilt residence after receiving plaintiffs’ survey.

About four months later, the Building Department issued a certificate of occupancy for the residence.

Plaintiffs then filed a complaint in district court for mandamus relief directing the Zoning Department to enforce the zoning code and to find that the dormer on the north side exceeded the north bulk plane, and directing the Building Department to revoke the certificate of occupancy.

Following a hearing, the trial court dismissed plaintiffs’ complaint. The court held adequate administrative remedies existed, and because plaintiffs had failed to exhaust their administrative remedies, the court lacked subject matter jurisdiction.

I.

Plaintiffs contend the trial court erred in dismissing their complaint for lack of subject matter jurisdiction. We disagree.

C.R.C.P. 12(b)(1) governs motions to dismiss for lack of subject matter jurisdiction. The plaintiffs bear the burden of proving jurisdiction. Trinity Broad. of Denver, Inc. v. City of Westminster, 848 P.2d 916 (Colo.1993); Bazemore v. Colo. State Lottery Div., 64 P.3d 876 (Colo.App.2002).

When reviewing rulings on C.R.C.P. 12(b)(1) motions, this court employs a mixed standard of review. A trial court’s factual findings are reviewed under the clear error standard, while a trial court’s legal conclusions are reviewed de novo. Bazemore, supra.

[4] Mandamus lies to compel the performance of purely ministerial duties involving no discretionary rights and no exercise of judgment. C.R.C.P. 106(a)(2); Bd. of County Comm’rs v. County Road Users Ass’n, 11 P.3d 432, 437 (Colo.2000). It is appropriate when the following three-part test is satisfied: (1) the plaintiff must have a clear right to the relief sought; (2) the defendant must have a clear duty to perform the act requested; and (3) there must be no other available remedy. Gramiger v. Crowley, 660 P.2d 1279, 1281 (Colo.1983). The third prong of this test is at issue in this case. Mandamus is not appropriate unless all alternative forms of relief have been exhausted. Gramiger, supra..

When administrative remedies are provided by statute or ordinance, the procedure outlined in the statute or ordinance must be followed if the contested matter is within the jurisdiction of the'administrative authority. Horrell v. Dep’t of Admin., 861 P.2d 1194, 1197 (Colo.1993). “If complete, adequate, and speedy administrative remedies are available, a party must pursue these remedies before filing suit in district court.” City & County of Denver v. United Air Lines, Inc., 8 P.3d 1206, 1212 (Colo.2000). This requirement “promotes several important and related policy interests”:

It allows agencies with expertise in a particular subject matter to develop the necessary factual record upon which the agency and subsequent reviewing courts may base their decisions. The doctrine promotes efficiency in the administrative context by preventing the interruption and fragmentation of the administrative process. Allowing the agency the opportunity to correct its own errors in the first instance preserves the autonomy of the agency. In addition to promoting the efficiency and integrity of the administrative forum, the requirement of exhaustion conserves judicial resources by insuring that courts intervene only if the administrative process fails to provide adequate remedies.

United Air Lines, supra, 8 P.3d at 1212-13 (citations omitted).

If a plaintiff fails to exhaust available administrative remedies or to establish that an exception to the exhaustion requirement excuses the failure to do so, “the district court may lack subject-matter jurisdiction over the action.” United Air Lines, supra, 8 P.3d at 1212.

Exhaustion is unnecessary when (1) it is “clear beyond a reasonable doubt that further administrative review by the agency would be futile because the agency will not provide the relief requested,” or (2) the agency lacks the authority or capacity to determine the matters in controversy. United Air Lines, supra, 8 P.3d at 1213 (quoting State v. Golden’s Concrete Co., 962 P.2d 919, 923 (Colo.1998)).

Here, we conclude plaintiffs were required to exhaust the two administrative remedies available before filing suit in district court, and plaintiffs did not establish an exception to the exhaustion doctrine. Consequently, the trial court properly dismissed the complaint.

A.

Section-Bl.19-3 of the Denver City Charter and D.R.M.C. § 53-39 allow any aggrieved person to challenge any decision of the Zoning Department by filing a notice of appeal with the Board of Adjustment within the time prescribed in the Board of Adjustment’s rules.

Charter § B 1.19-3 provides in relevant part:

Appeals to the board of adjustment may be taken by any person aggrieved ... by any decision of an administrative officer. Such appeal shall be taken within a reasonable time, as provided by the rules of the board.

As is relevant here, D.R.M.C. § 53-39 states: “Any person aggrieved ... may appeal to the board of adjustment from an order or decision of the department....”

The Board of Adjustment derives its authority from the Denver City Charter. See Denver City Charter §§ Bl.19-1 to B.19-9. The Board is authorized to “hear and decide appeals where it is alleged there is an error iri any order, requirement,-decision or determination made by an administrative official [including those determinations made by the Zoning Department] in the enforcement of this amendment or any ordinance adopted pursuant thereto.” See § Bl.19-6(1). It also is empowered to grant appropriate relief in such situations and to “reverse or affirm, wholly or partly, or ... modify the order, requirement, decision or determination appealed from and make such order, requirement, decision or determination as ought to be made.” See § Bl.19-7. Any person aggrieved by a decision of the Board of Adjustment may seek judicial review of the decision in accordance with C.R.C.P. 106(a)(4).

Accordingly, plaintiffs had an administrative remedy available to challenge the Zoning Department’s decision to give its approval for the issuance of the certificate of occupancy.

B.

Plaintiffs also had an administrative remedy available to challenge the Building Department’s issuance of the certificate of occupancy.

The Building Code of the City and County of Denver § 118.2 provides in relevant part:

Any person ... aggrieved by a decision of the Department ... or where there is error in any order, requirement, decision or determination made by the Department, may, within 30 days of the date of notice of such decision or order, appeal the decision or order of the Department by filing an application with the Board [of Appeals],

Additionally, Building Code § 112.6(2)(A) authorizes the Board to “[h]ear and decide appeals where it is alleged there is error in any order, requirement, decision or determination made by the Department in the enforcement of the Building Code.”

Any person aggrieved by a decision of the Board of Building Appeals may pursue judicial review. See Building Code § 114.1, et seq.

Sections 112.1 through 112.9 of the Building Code authorize the Board of Appeals to decide appeals where a party alleges that there is an error in any order, requirement, decision, or determination made by the Building Department, and to grant appropriate relief in such cases. See Building Code §§ 112.6(2)(A), 112.6(30). Any person aggrieved by a decision of the Board of Building Appeals also is able to seek judicial review of the decision. See Building Code § 114.1.

Therefore, we conclude plaintiffs had complete, adequate, and speedy administrative remedies to challenge the Building Department’s decision to issue the certificate of occupancy for the residence.

C.

Relying on Gramiger, supra, plaintiffs nevertheless argue that no single adequate administrative remedy was available because neither the Board of Adjustment nor the Board of Building Appeals had the authority to address both of their issues. According to plaintiffs, they would have been required to appeal the decisions of two separate administrative bodies to two different appeal boards because neither board “had the authority to pass on every question raised” to obtain all relief requested. In Gramiger, however, the supreme court held there were no administrative remedies available to the petitioner and there was “grave doubt” that either of the administrative agencies had the authority to grant relief to the petitioner. Gramiger, supra, 660 P.2d at 1282-83.

Further, plaintiffs’ argument is contrary to the purpose of the exhaustion doctrine, which recognizes that administrative agencies have expertise in the subject matter before them and are in a better position than the court to adjudicate matters involving that expertise. See State v. Golden’s Concrete Co., supra; see also United Air Lines, supra, 8 P.3d at 1212 (“The exceptions to the exhaustion doctrine apply to situations in which the policies underlying the doctrine would not be served by requiring the protesting party to pursue available administrative remedies.”).

II.

Next, plaintiffs argue there was not a final decision subject to administrative review. We disagree.

Sections 160.2 and 160.3 of the Building Code provide that the Building Department shall issue a certificate of occupancy in conjunction with the Zoning Department after certain city agencies approve the issuance of the certificate of occupancy.

Here, there were two decisions: (1) the Zoning Department’s decision to give its approval for the issuance of the certificate of occupancy and (2) the Building Department’s decision to issue the certificate of occupancy.

NIS approved the issuance of the certificate of occupancy. Once the certificate of occupancy was issued, it was clear the Zoning Department had rejected plaintiffs’ con-téntion that the dormer was constructed in excess of the bulk plane.

If plaintiffs disagreed with the Zoning Department’s decision to allow the certificate of occupancy to be issued, they had the right to challenge the Zoning Department’s decision pursuant to the administrative remedies established in the Denver City Charter, in the D.R.M.C., and in the rules of the Board of Adjustment.

If plaintiffs disagreed with the Building Department’s decision to issue the certificate of occupancy, they had the right to appeal the Building Department’s decision in accordance with the administrative remedies in the Building Code.

Accordingly, we conclude the trial court correctly held plaintiffs had complete, adequate, and speedy administrative remedies to challenge the Zoning Department’s decision to give its approval for the issuance of the certificate of occupancy and the Building Department’s issuance of that certificate, and the trial court did not err in dismissing plaintiffs’ complaint.

Because we have concluded the trial court lacked subject matter jurisdiction, the trial court properly did not address plaintiffs’ factual contentions. Such issues are to be raised before the administrative agency.

Judgment affirmed.

Judge ROTHENBERG and Judge NIETO concur.


author: Judge VOGT.

text:
    In re the MARRIAGE OF Michelle GREEN, n/k/a Michelle Routzon, Appellee, and Kenneth Green, Appellant.
    No. 02CA2610.
    Colorado Court of Appeals, Div. V.
    May 6, 2004.

      Greene, Meyer & McElroy, P.C., Patricia A. McEahern, Boulder, Colorado, for Appel-lee.
    Kenneth Green, Pro Se.
   Opinion by

Judge VOGT.

Kenneth Green (husband) appeals from the trial court’s order denying his motion to modify his child support obligation. We reverse and remand with directions.

The marriage between husband and Michelle Green, n/k/a Michele Routzon (wife), was dissolved by decree entered in December 1988. Wife was granted sole custody of the parties’ two minor children. Husband was ordered to pay child support in the amount of $255 per month until either of the children reached the age of twenty-one, died, or became and remained emancipated, or until further order of the court.

Shortly after the decree entered, the older child moved into the paternal grandmother’s home with wife’s consent. No changes to the permanent orders were requested or made, and husband did not make any support payments.

In October 1998, the county department of social services obtained a verified entry of judgment against husband in the amount of $26,325 for child support arrearages accrued from December 1988 through August 1998. In June 2002, husband filed a motion to modify child support retroactively to January 1989, to vacate the judgment, and to modify current child support prospectively.

The trial court ruled on the motion based on the parties’ written submissions and the file. The court acknowledged that § 14-10-122(5), C.R.S.2003, allows retroactive modification of child support where there has been a mutually agreed upon change of physical custody. However, the court reasoned, because a judgment had entered on the unpaid child support arrearages, the judgment could be set aside only pursuant to C.R.C.P. 60(b). The court found that husband’s motion, filed more than three and one-half years after the child support judgment entered, was not made within a reasonable time, as required by the rule. It accordingly declined to modify child support retroactively.

The court granted husband’s request for prospective modification of the child support obligation for the younger child, relying on a worksheet provided by the department of social services.

I.

Husband contends that the trial court erred in ruling that his request for retroactive modification of child support was time barred. He argues that the statutes governing retroactive modification of child support upon change of physical custody conflict with C.R.C.P. 60(b) and therefore control over the rule. We agree.

C.R.C.P. 81(b) states that the rules of civil procedure “shall not govern procedure and practice in actions in dissolution of marriage ... insofar as they may be inconsistent or in conflict with the procedure and practice provided by the applicable statutes.” See also § 14-10-105, C.R.S.2003 (rules of civil procedure apply in dissolution proceedings except as otherwise specifically provided in dissolution statutes); Moats v. Moats, 168 Colo. 120, 450 P.2d 64 (1969)(compulsory counterclaim rule did not bar divorce action where statute permitted it).

Thus, in determining whether parties seeking relief from a judgment or decree in a dissolution action were required to comply with C.R.C.P. 60, courts have considered whether the relevant statute contemplated modification of the judgment or decree other than pursuant to C.R.C.P. 60. Compare Ingels v. Ingels, 29 Colo.App. 585, 487 P.2d 812 (1971)(time requirements of C.R.C.P. 60(b) were inapplicable to motion to modify decree as to property division, where statute provided that court would retain jurisdiction to modify property division and set no time limit), with In re Marriage of Scheuerman, 42 Colo.App. 206, 591 P.2d 1044 (1979)(Ingels did not apply where new statute made no reference to procedure by which property division order could be reopened; thus, final judgment as to division of property could be vacated only as provided for in C.R.C.P. 60).

Before § 14 — 10—122(l)(c) was amended to include a specific reference to retroactive modification of child support upon change of physical custody, see Colo. Sess. Laws 1998, ch. 215 at 765, opinions from the supreme court and this court held that child support judgments could be set aside only in accordance with C.R.C.P. 60 or by filing an independent equitable action. See Schaffer v. District Court, 172 Colo. 43, 470 P.2d 18 (1970)(C.R.C.P.60(b) motion alleging fraud and mistake as grounds for relief from judgment for support arrearages had to be filed within six months of judgment); In re Marriage of Jacobs, 859 P.2d 914 (Colo.App.1993)(noting that motion filed under C.R.C.P. 60(b) was appropriate method to seek relief from judgment for unpaid child support obligations); In re Marriage of Warner, 719 P.2d 363 (Colo.App.1986)(husband could seek relief from judgment for child support arrearages by motion pursuant to C.R.C.P. 59 or 60, or by filing independent equitable action; however, his motion filed more than one year after entry of the judgment was untimely).

In contrast to the statutes at issue in Schaffer, Jacobs, and Warner, the current version of § 14-10-122(l)(c), C.R.S.2003, includes a specific provision for retroactive modification of child support when physical care or custody of the child is changed by mutual agreement. The statute provides:

In any action or proceeding in any court of this state in which child support ... is ordered, a payment becomes a final money judgment, referred to in this section as a support judgment, when it is due and not paid. Such payment shall not be retroactively modified except pursuant to paragraph (a) of this subsection (1) and may be enforced as other judgments without further action by the court; except that an existing child support order with respect to child support payable by the obligor may be modified retroactively to the time that a mutually agreed upon change of physical custody occurs pursuant to subsection (5) of this section.

(Emphasis added.) Section 14-10-122(l)(a), C.R.S.2003, to which § 14-10-122(l)(e) refers, prescribes the showing required to modify child support decrees “except as otherwise provided in subsection (5) of this section.” The subsection to which both statutes refer, § 14-10-122(5) provides, as pertinent here:

Notwithstanding the provisions of subsection (1) of this section, when a mutually agreed upon change of physical care occurs, the provisions for child support of the obligor under the existing child support order, if modified pursuant to this section, will be modified as of the date when physical care was changed.

Under these statutes, a prior child support obligation will be modified as of the date when the child’s physical custody has been changed by mutual agreement. See In re Marriage of Emerson, 77 P.3d 923 (Colo.App.2003). Further, the statutes place no time limit on the obligor’s ability to seek, or the court’s authority to grant, retroactive modification of child support in these circumstances. Such lack of a time limit is consistent with the absence of a time limit for obtaining a verified entry of judgment for child support arrearages. See In re Marriage of Morris, 32 P.3d 625 (Colo.App.2001).

Because § 14-10-122(l)(c) expressly provides for retroactive modification of child support upon a voluntary change of physical custody without imposing any time limit for seeking modification, we conclude that C.R.C.P. 60(b), which imposes such limits, is inconsistent with the procedure contemplated in the statute. See Ingels v. Ingels, supra. Thus, the rule cannot be applied to bar a motion for retroactive modification of child support based on a mutually agreed upon change of physical custody.

That the child support arrearage here had been reduced to judgment does not change the analysis. Under § 14-10-122(l)(e), a child support payment automatically becomes a final money judgment when it is due and not paid. The language of the statute affords no basis for concluding that a child support order cannot be retroactively modified once judgment has entered for unpaid amounts. Just as entry of a judgment by operation of law pursuant to § 14-10-122(l)(e) does not deprive the trial court of its authority to enforce its child support orders underlying the judgment, see In re Marriage of Nussbeck, 974 P.2d 493 (Colo.1999), such entry of judgment does not deprive the court of its authority to modify retroactively a child support order based upon a voluntary change of physical custody.

In sum, husband’s motion for retroactive modification of child support was not time barred. Therefore, the trial court’s order so concluding must be reversed and the case remanded to permit consideration of husband’s motion on the merits.

II.

We also agree with husband that he was entitled to a hearing to determine the parties’ incomes and related issues bearing on the amount of their child support obligations.

When issues of fact are in dispute, a hearing is generally required on a motion to set aside a judgment for child support arrearag-es. See In re Marriage of Jacobs, supra.

Here, the parties stipulated that the court could resolve husband’s motion on the briefs, without any further hearing, “unless the Court determines that a hearing is necessary to hear any factual issues that may be in dispute.” The record reflects that numerous issues of fact were disputed, including the time during which the older child lived with husband or husband’s mother and the appropriate amount of income to be attributed to husband and to wife. Thus, on remand, a hearing should be held to resolve disputed issues of fact regarding the parties’ support obligations.

In light of our resolution of the issues, we deny wife’s request that she be awarded her attorney fees on appeal based on husband’s assertedly vexatious and frivolous contentions.

The order is reversed, and the case is remanded for further proceedings in accordance with the views expressed here.

Judge DAILEY and Judge RUSSEL concur.


author: Judge RUSSEL.’

text:
    In re the MARRIAGE OF Leigh A. HADDAD, Appellee, and Joseph M. Haddad, Appellant, and Concerning El Paso County Child Support Enforcement Unit, Intervenor-Appellee.
    No. 03CA0072.
    Colorado Court of Appeals, Div. V.
    May 6, 2004.

      No Appearance for Appellee.
    Sidney L. Patín, P.C., Sidney L. Patín, Colorado Springs, Colorado, for Appellant.
    Belveal & Eigel, L.L.C., Christina K. Ei-gel, Colorado Springs, Colorado, for Interve-nor-Appellee.
   Opinion by

Judge RUSSEL.’

In this proceeding under the Uniform Interstate Family Support Act, § 14-5-101, et seq., C.R.S.2003 (UIFSA), Joseph M. Had-dad (father) appeals from the district court’s order finding that it lacked jurisdiction over Leigh A. Haddad (mother) to enter a judgment against her for overpaid child support and refusing to offset father’s overpayment against his current child support obligation. We affirm in part, vacate in part, and remand with directions.

Prior to the dissolution of marriage, father was a resident of Colorado, and mother and the parties’ four children were residents of Connecticut. In 1996, the State of Connecticut, on behalf of mother, forwarded a uniform support petition to the Teller County Child Support Enforcement Unit (CSEU), requesting entry of an order of child support. Based on that petition, the Teller County District Court ordered father to pay $315.17 per month in child support.

The El Paso County District Court entered a decree of dissolution of marriage in 1998, incorporating the child support order entered in the UIFSA proceeding. In 2000, venue of the UIFSA proceeding was transferred from Teller County to El Paso County. All subsequent child support orders were entered in the El Paso County UIFSA proceeding.

In 2002, father requested modification of the child support order. He noted that one of the children had lived with him since 1999, and he asked the magistrate to (1) modify the amount of child support and (2) apply the new amount retroactively to 1999. The magistrate modified the amount but declined to make the modification retroactive. The district court subsequently reversed part of the magistrate’s ruling and made the child support modification retroactive to July 1999.

Because the retroactive application of the modified child support resulted in an overpayment, father requested that the district court enter a judgment against mother for the overpaid child support and relieve him of his present child support payments until he received reimbursement for the overpayment. The district court found there was an overpayment of $12,709.81. But the court held that it lacked jurisdiction to enter a judgment against mother for the overpayment. The court further declined to offset the overpayment against father’s current child support obligation.

I. Jurisdiction

Father first contends that the district court erred in finding that it lacked jurisdiction to enter a judgment against mother for the overpaid child support. We agree.

Whether the court has jurisdiction in a UIFSA action to enter an order remedying an overpayment of child support is a question of both subject matter jurisdiction and personal jurisdiction.

A.

Subject matter jurisdiction concerns the authority of the court to decide a particular matter. The issue of subject matter jurisdiction may be raised at any time, and the right to do so cannot be waived. In re Marriage of Tonnessen, 937 P.2d 863 (Colo.App.1996).

In addressing the issue of subject matter jurisdiction in this case, it is important to note what is not at stake. There is no doubt that the court here had jurisdiction over the child support orders generally, for Colorado is both the “issuing state” and “responding state” under § 14-5-102, C.R.S.2003. Thus, unlike in In re Marriage of Zinke, 967 P.2d 210, 211 (Colo.App.1998), the court had continuing and exclusive jurisdiction to modify the child support orders. Similarly, there is no doubt that the court’s determination here was limited to issues of child support. Unlike in People in Interest of R.L.H., 942 P.2d 1386, 1389 (Colo.App.1997), the court was not asked to rule on any extraneous matter, such as parenting time.

We begin with an examination of § 14-5-305(b), C.R.S.2003, which sets forth the powers of the responding tribunal in a UIFSA proceeding. We first note that, under § 14-5 — 305(b)(1), C.R.S.2003, the tribunal has the power to issue or enforce a “support order.” The term “support order” is defined as “a judgment, decree, or order, whether temporary, final, or subject to modification ... which provides for monetary support, health care, arrearages, or reimbursement” Section 14-5-101(21), C.R.S.2003 (emphasis added; version effective until July 1, 2004). We conclude that an order requiring one party to repay or reimburse the other party for overpaid child support qualifies as a “reimbursement,” within the meaning of § 14-5-101(21). Consequently, the court had authority to issue and enforce its order under § 14-5-305(b)(1).

Additionally, we note that, under § 14-5-305(b)(12), C.R.S.2003, the tribunal has the authority to grant “any other available remedy.” Because courts are empowered under § 14-5-305(b) to handle a wide range of issues concerning child support — including the power to “issue or enforce” and “modify” support orders — we conclude that the power to address overpayments is an “available remedy” within the meaning of § 14-5-305(b)(12).

We therefore conclude that the district court had subject matter jurisdiction to issue an order regarding overpayments of child support. This jurisdiction corresponds to the authority that a court has in a non-UIFSA proceeding to order that overpayments of child support be credited or reimbursed where appropriate. See, e.g., In re Marriage of George, 650 P.2d 1353 (Colo.App.1982)(af-firming trial court’s order that wife pay husband $1000 as reimbursement for overpayment of child support).

B.

In addition to subject matter jurisdiction, the court must have personal jurisdiction over a nonresident in a proceeding brought under UIFSA. As pertinent here, § 14-5-201, C.R.S.2003, sets forth the bases on which a tribunal of this state may acquire jurisdiction over a nonresident. Among other things, a tribunal acquires personal jurisdiction if “[tjhe individual submits to the jurisdiction of this state by consent, by entering a general appearance, or by filing a responsive document having the effect of waiving any contest to personal jurisdiction.” Section 14-5-201(a)(2), C.R.S.2003.

Here, mother initiated a UIFSA proceeding by filing a petition in Colorado. Although the matter was lodged by the Teller County CSEU, the action was brought under mother’s name, and mother signed as petitioner. Under the circumstances, we conclude that mother entered an appearance and consented to the personal jurisdiction of the court. See In re Marriage of Jeffers, 992 P.2d 686, 689 (Colo.App.1999)(a party enters a general appearance and consents to the personal jurisdiction of a court by seeking relief in a form that acknowledges the personal jurisdiction of the court).

But this does not end our inquiry. The El Paso County CSEU argues that, although mother submitted to the court’s jurisdiction to enforce the child support order, she did not submit for any other purpose, such as being subject to an order regarding overpayment. The El Paso County CSEU relies on § 14-5-314(a), C.R.S.2003 (version effective until July 1, 2004), which immunizes a UIF-SA petitioner from suit in “another proceeding”:

Participation by a petitioner in a proceeding before a responding tribunal, whether in person, by private attorney, or through services provided by the support enforcement agency, does not confer personal jurisdiction over the petitioner in another proceeding.

We reject this argument. Section § 14-5-314(a) is designed to shield parties in child support actions from the burdens of litigation over collateral matters such as parental responsibilities and parenting time. Thus, a petition for affirmative relief under UIFSA limits the jurisdiction of the tribunal to the boundaries of the support proceeding. Uniform Interstate Family Support Act § 314 cmt., 9 U.L.A. 325-26 (1999). But a claim of overpayment of child support is within the boundaries of a support proceeding, especially when, as here, the court has continuing and exclusive jurisdiction over the support order. See § 14-5-205(a)(l), C.R.S.2003 (version effective until July 1, 2004).

Accordingly, we conclude that the district court had both the subject matter and personal jurisdiction to enter judgment with respect to the overpayment. We therefore vacate that portion of the district court’s order and remand with directions to consider what remedy, if any, is available for father’s overpayment.

II. Appropriate Remedy

Special considerations of an equitable nature arise in the domestic relations field. In re Marriage of Pusey, 811 P.2d 457 (Colo.App.1991). District courts necessarily are vested with discretion to achieve fair results under a wide variety of circumstances, attending always to the interests of the children. See, e.g., People v. Martinez, 70 P.3d 474, 478 (Colo.2003)(child support order should serve statutory purposes and the bests interests of the child); In re Marriage of Bertsch, — P.3d -, 2004 WL 63459 (Colo.App. No. 02CA0888, Jan. 15, 2004)(in allocating parental responsibilities, trial courts give paramount consideration to the needs of the children; court’s decision is reviewed for abuse of discretion).

In light of the above considerations, we reject father’s argument that the district court was required to offset father’s current child support obligation by the amount of overpayment. Although a court may employ this remedy, it should do so only when the interests of the children will not be harmed. In re Marriage of Wisdom, 833 P.2d 884 (Colo.App.1992); In re Marriage of DiFatta, 306 Ill.App.3d 656, 239 Ill.Dec. 795, 714 N.E.2d 1092 (1999)(while the court may, on remand, reduce respondent’s child support obligation based on his overpayment of child support, the court must ensure that the reduction does not work a deprivation on the child).

Here, the court found that an offset was inappropriate because it would deprive the children of their current support. We conclude that the court did not abuse its discretion in making this determination. Accordingly, this part of the district court’s order is affirmed.

On remand, the district court must order a remedy that will yield a fair and equitable result and will protect the interests of the children. The court has discretion to select from a range of remedies. Upon appropriate findings, these remedies include delaying, reducing, or eliminating mother’s obligation to repay. See, e.g., In re Marriage of Pusey, supra (mother not required to reimburse father for the overpayment of child support); In re Marriage of George, supra (wife ordered to reimburse husband for overpayment of support and maintenance); see also In re Marriage of Rivera, 91 P.3d 464, 2004 WL 583701 (Colo.App. No. 03CA0235, Mar. 25, 2004)(eourt had equitable authority to reduce the amount of arrearage that mother was required to pay); In re Marriage of Dennin, 811 P.2d 449 (Colo.App.1991)(mother equitably estopped from asserting her right to collection of part of child support arrearag-es).

The order is vacated to the extent it determined the court lacked jurisdiction to enter a judgment against mother for the overpayment, and the case is remanded for further action consistent with this opinion. In all other respects, the order is affirmed.

Judge VOGT and Judge DAILEY concur.