In re Marriage of Durie, 2018 COA 143

The Duries entered a separation agreement incorporated into a 2014 decree allocating the parties’ business interests to Husband and an equalization payment to Wife; joint and independent valuations ranged ~ $770k–$920k.
In 2015 Husband sold part of the business for $6.9 million — ~850% above the joint appraisal — and Wife later moved under C.R.C.P. 16.2(e)(10) (post-decree five-year remedy for misstatements/omissions) to reallocate sale proceeds.
Wife alleged (including on information and belief) that Husband negotiated the sale before the valuation and failed to disclose those negotiations or update the expert, which materially affected valuation.
Husband moved to dismiss Wife’s Rule 16.2(e)(10) motion; the district court applied the Rule 12(b)(5)/Warne “plausibility” standard and dismissed. Wife appealed.
The Court of Appeals reversed, following Runge, holding Rule 12(b)(5)/Warne and Rule 9(b) are inapplicable to Rule 16.2(e)(10) motions, permitting allegations on information and belief, and allowing limited discovery regulated by the court.

Issue	Durie (Wife) Argument	Durie (Husband) Argument	Held
Whether Rule 12(b)(5)/Warne plausibility standard applies to a Rule 16.2(e)(10) motion	Motion should survive under Warne plausibility; allegations suffice to proceed	Motion to dismiss properly resolved under Rule 12(b)(5); dismissal appropriate	Rule 12(b)(5) and Warne do not apply to 16.2(e)(10) motions; district court erred in using them
Whether Rule 9(b) particularity for fraud applies to 16.2(e)(10) motions	Not required because 16.2(e)(10) addresses misstatements/omissions, not only fraud	16.2(e)(10) is effectively an anti-fraud remedy so Rule 9(b) should apply	Rule 9(b) does not apply; 16.2(e)(10) covers both innocent and intentional nondisclosures
Whether allegations on information and belief are permitted in a 16.2(e)(10) motion	Allowed because movant often lacks access to defendant’s information; Rule 8(e)(1) permits it	Such allegations are insufficient and speculative	Allegations on information and belief are permitted in 16.2(e)(10) motions, though sole reliance on them may be insufficient
Whether movant is entitled to discovery to support a 16.2(e)(10) motion	Limited, proportional discovery is necessary and appropriate to prove nondisclosure	Post-decree discovery into ex-spouse’s assets is not authorized or is overly burdensome	Movant may obtain limited, court-tailored discovery under Rules 16.2 and 26; district court must manage proportionality

Warne v. Hall, 373 P.3d 588 (Colo. 2016) (articulates the plausibility standard for dismissal under Rule 12(b)(5))
Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (U.S. 2007) (federal pleading plausibility framework cited in Warne)
In re Marriage of Runge, 415 P.3d 884 (Colo. App. 2018) (held Warne/Rule 12(b)(5) inapplicable to Rule 16.2(e)(10) motions)
In re Marriage of Gromicko, 387 P.3d 58 (Colo. 2017) (promotes active judicial case management and proportional discovery in family cases)
Antero Res. Corp. v. Strudley, 347 P.3d 149 (Colo. 2015) (supports liberal discovery interpretation to advance truth-seeking)
State Farm Mut. Auto. Ins. Co. v. Parrish, 899 P.2d 285 (Colo. App. 1994) (Rule 9(b) applied where claims sound in fraud)
In re Marriage of Rose, 134 P.3d 559 (Colo. App. 2006) (discusses prospective attorney-fee awards under § 14-10-119)