2019 COA 149
Colo. Ct. App.2019Background
- Parties married 17 years; dispute centered on whether a 2007 oral agreement excluded each spouse’s retirement accounts and inheritances from the marital estate.
- In 2007 the parties executed a revocable trust that excluded retirement accounts; wife testified to an oral agreement keeping retirement/inheritances separate; husband denied the agreement.
- District court found the oral agreement valid, admitted an email by husband as corroboration, divided the marital estate equally, and awarded spousal maintenance of $1/month.
- Husband appealed, arguing the Colorado Marital Agreement Act (CMAA) requires marital agreements be written and signed, so an oral marital agreement cannot exclude property.
- The Court of Appeals held the CMAA writing-and-signature requirements control and the alleged oral marital agreement was unenforceable; it reversed the property division and remanded for redetermination.
- The court also held husband’s appeal was not barred by his acceptance of maintenance or use of marital funds during the proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity of an oral marital agreement to exclude property acquired during marriage | Zander (wife): oral agreement was valid and corroborated by conduct and communications | Zander (husband): CMAA requires marital agreements be written and signed, so oral agreement invalid | CMAA’s writing-and-signature requirement governs; oral marital agreement unenforceable |
| Whether acceptance of benefits (maintenance/use of funds) bars appeal | Wife: husband accepted benefits and therefore waived right to appeal | Husband: acceptance of maintenance/use of funds does not bar appeal in dissolution cases | Acceptance did not bar appeal; appeal permitted |
| Whether partial performance/after-the-fact conduct can overcome CMAA writing requirement | Wife: parties’ conduct and partial performance satisfied the writing requirement | Husband: CMAA is specific and precludes oral marital agreements; partial performance cannot overcome it | Partial performance did not excuse the CMAA writing requirement |
| Remedy — whether entire property division must be revisited | Wife: (implicit) court’s prior division stands or only limited adjustment needed | Husband: if exclusion invalid, marital estate changes and property division must be redetermined | Court remanded for full reconsideration of property division and determination of what portions of retirement/inheritances are marital property |
Key Cases Cited
- In re Marriage of Ikeler, 161 P.3d 663 (Colo. 2007) (interpreting marital agreement statutes)
- Michaelson v. Michaelson, 884 P.2d 695 (Colo. 1994) (marital property presumption under UDMA)
- Telluride Resort & Spa, L.P. v. Colo. Dep’t of Revenue, 40 P.3d 1260 (Colo. 2002) (specific statute governs over general when conflict exists)
- In re Marriage of Lemoine-Hofmann, 827 P.2d 587 (Colo. App. 1992) (prior case upholding oral agreement under different facts and pre-CMAA context)
- In re Marriage of Lafaye, 89 P.3d 455 (Colo. App. 2003) (distinguishing Lemoine-Hofmann and rejecting oral promises as enforceable marital agreements)
- In re Marriage of Bisque, 31 P.3d 175 (Colo. App. 2001) (resolving conflicts between UDMA and CMAA)
- In re Marriage of Goldin, 923 P.2d 376 (Colo. App. 1996) (application of CMAA formalities)
- In re Marriage of Balanson, 25 P.3d 28 (Colo. 2001) (errors in property division require reversal when they affect substantial rights)