*1 that, argues if the statute were 8- Pulsifer replaced it with section and contractor” 40-202(2). statutorily damages, limit his an em- 356. read to Laws 1993 Colo. Sess. injure negligently propri- a sole ployer an could described The new section label, independent at a work-site and contractor using than etor employee, rather pay fifteen dollars to have to thousand for courts consid- but a list factors provided negligent damage The caused person for his act. determining is when whether er person completely time, put could a small business At same and “employee.” an Id. every- them to lose act, Assembly eliminat- out of business cause the same General Assembly’s response, thing. and a defi- The “independent contractor” ed both 8-41^401(3) subject term, though it those harsh seem from section nition of that limits, that, propri- is if a sole to sec- the statute’s replaced them with reference 8-40-202(2). However, they consequences, avoid etor wants to Id. 358. insuring responsible against for those language changes not alter these did Id., consequences at 1164- employ” excep- themselves. See not in the same the “another by language of the tion, imposing caps 65. Constrained stat- purpose for or the ute, cannot, infirmi- absent constitutional groups. specified those ties, Assembly’s expressed alter the General compensation workers’ prevail. intent to allow such outcomes to intended, part, pre to create scheme was Here, Pulsifer admits he was hired employers light for expenses dictable He also perform painting services PPC. accompany com planning difficulties statutory is from the admits that he excluded Kelly, P.2d at liability. See mon law tort Therefore, “employee.” Pulsifer definition of legislative history of (describing the subject statutory limits without ex- is predicta creating to the WCA amendments ception. expenses). statutory limit liability ble predict costs employers to their permits III. Conclusion with a claim from individual
when faced is cov perform hired a service who and return this make the rule absolute Thus, Pulsifer cor the WCA. Id. is ered proceedings to the trial court for further ease having noticing free from that PPC is rect this opinion. consistent compensation pay workers’ insurance injuries covering his premiums liability to a
their common law This limit.
fifteen thousand dollar 8-41-401(3). effect of section intended Assembly has shifted
Id. The General injuries more costing
risk work-related dollars to individuals
than fifteen thousand participate in the have the choice who Melodee In re the MARRIAGE OF system. compensation workers’ IKELER, Melodee n/k/a Crawford, Petitioner Although this of the WCA was employer/general con prevent an intended to avoiding under responsibility from tractor Ikeler, Respondent. Douglas Eves shifting cost subcontrac the WCA employees, the subcontractors tors with No. 06SC664. thereby of re were not relieved themselves Colorado, Court Frohlick, Supreme sponsibility for their own acts. En Banc. As ex was Colo. at Kelly, responsi a subcontractor’s plained June bility when protecting extends themselves through a protect does not them the WCA policy. 890 P.2d
general contractor’s *2 in a
hold that waiver review unconseionability, and therefore we reverse appeals. the court of *3 History I. Facts and Procedural (“Wife”) Douglas and Ikel- Melodee Ikeler (“Husband”) er married on were November triplets April gave Wife birth to on In for Wife filed Petition Marriage. During course Dissolution proceedings, of the dissolution Wife filed requesting an motion award 14-10-119, pursuant to section subsequently filed a motion Husband summary attor- judgment for on the issue of ney’s citing agreement a marital marriage. parties signed shortly before agreement of marital Article IV the states part: relevant recognize Parties that under Colorado a court could consider law spousal of them of maintenance or either alimony in mar- the event dissolution of riage, legal separation. Both divorce or provide for own Parties are able their hereby any support and Parties waive both spousal maintenance or right to receive alimony temporary perma- either any time in the nent basis at future. L.L.C., Willoughby Eekelberry, John L. & will their agree pay also that each Parties Denver, Colorado, Eckelberry, Attorneys for any fees in dissolution or attorneys own Petitioner. proceedings. separation P.C., Virnich, Vimich, Loper Sean H. dispute validity of the Wife did not Denver, Colorado, Amy Loper, At- Therese argued that agreement, but rather torneys Respondent. for of mainte- could review the waiver court attorney’s fees for unconscionabili- nance and Opinion Justice RICE delivered agreed ty time Husband at the of dissolution. Court. 14-2-307(2), C.R.S. that under subsection (2006),2 case, the waiver of the court could review In this we address whether unconseionability, ar- but attorney’s fees in a maintenance for can review a waiver of for gued was no basis agreement unconseionability that there valid the court to review waiver under the Colora- at the time of enforcement (“CMAA”), provides that Agreement Act sec- fees. Subsection Marital do (2006).1 -310, otherwise enforceable 14-2-301 to tions amendment, agreement, or revocation re- We cite the most edition of the Colo- such recent determination, unless otherwise noted. rado Revised Statutes late and such maintenance elimination 14-2-307(2) states: 2. Subsection provisions the time are unconscionable A marital or amendment thereto or provisions. The issue of such enforcement unconseionability thereof is otherwise enforce- revocation that shall be decided applying provisions able of subsection after a matter of law. (1) unenforceable of this section nevertheless insofar, insofar, only provisions as the but insofar, appealed, arguing “is nevertheless unenforceable but Husband that the trial insofar, denying court erred in his motion sum mary judgment determination, awarding Wife attor ment ... relate to the modifi- agreed of appeals The court cation, or elimination of therefore the trial In re reversed court. Mar are unconscionable Ikeler, riage (Colo.App. provisions.” time of enforcement of such 2006). conducting analysis, its the court argued plain language Husband appeals no looked further than subsection subsection, only provisions of this of a mari- 14-2-307(2). Relying plain lan tal pertain to maintenance subsection, guage appeals of that the court of reviewable for only provision concluded “the a mari Therefore, time of enforcement. Husband *4 agreement may tal that be for reviewed un- concluded, the court could not review the conscionability is maintenance.” Id. We attorney’s waiver of for fees unconscionabili- decision, granted certiorari review this and ty. nowwe reverse.5 The court trial denied Husband’s motion summary II. judgment. for Standard of Review court first stated that at common law waivers of both We review the of appeals’ court maintenance and fees were unen- interpretation of the CMAA de novo. In re if of en- forceable unconscionable the time Chalat, (Colo. of consequently forcement. The court framed 2005). in construing Our main task statutes question being the as of passage whether the give ascertain is to and effect to the intent of abrogated CMAA the common law re- with Id.; Assembly. People the General v. Dist. gard Noting that the Court, (Colo.1986). 713 P.2d CMAA makes no mention begin with plain language the the statute abrogate the court concluded it did the Assembly’s to ascertain the General intent. common law. The court further Court, concluded plain Dist. 713 P.2d at If 921. the fees to” “relate the determi- language ambiguous is or conflicts other nation, modification, or elimination of statute, provisions of may beyond the look purposes for subsection 14- language the of the statute to other factors. 2-307(2). hearing, Following (Colo. the Luther, court de- People v. 58 P.3d 2002); Chilcutt, termined that the waiver of Buckley fees 968 P.2d (Colo.1998). was unconscionable3 and awarded at-Wife reasonably To effectuate the torney’s intent, moreover, fees its Permanent Orders.4 Assembly’s a stat litigate The trial court also the concerning found waiver of mainte- incurred to the issues children, agreement nance uncon- be the trial court did not breakdown the scionable. The court its based conclusion on the attorney's portions award of fees into the agreement signed, fact that when marital was dispute opposed dealt with the maintenance as healthy gainfully employed. Wife was and After support custody dispute. child and triplets, stopped the birth Wife working outside the and had home no means to granted following 5.We certiorari on the issues: Moreover, support triplets. during or the herself (1) adoption Whether the marriage, Colorado Mar- course Wife's mental Act, -310, Agreement physical ital sections 14-2-301 to health deteriorated. The found Husband, hand, (2006) amended, on the other a net eliminated the com- had approximately $10 worth law million and an annu- mon review for a $300,000. approximately agreement. al income of attorney Husband waiver of fees in a marital appealed findings. (2) has not these factual Whether strict enforcement of waiver attorney fees in marital affects right support, a child’s child when the issue testimony expert, Based on of Wife's support litigated child $58,082 $5,000 is in the dissolution of plus trial awarded marriage. expert expenses. Wife's witness (3) attorney litigated Whether the waiver of fees in a Wife's entitlement against custody amount well void as of maintenance as as the triplets litigated being support the amount of child when the issues include maintenance, party Although responsible. support, which each was child and allo- portion attorney's certainly parental responsibilities. of Wife's fees were cation of catch-all therefore the and considered as whole. be read ute must Court, vision, 117; which allows to contract Dist. Buckley, matter, including personal “[a]ny other interpret a will statute P.2d at 921. We rights obligations party, either consistent, harmonious, and sensible ef give Court, violation any statute im- Dist. P.2d at parts. its fect all 2—304(l)(i), penalty.” posing a criminal a statute separate clauses within 921. “If 14— (2006) this Under one construction but be reconciled subsection, if a waiver vio- interpreta a different conflict under would public policy it cannot lates be enforced tion, which results in harmo the construction it the court because is not valid contract inconsistency should be ny rather than term. adopted.” When we turn to subsection 14-2- Analysis
III.
307(2), upon
appeals re
which the court of
lied, we find that
the CMAA states that an
gov-
Marital
Colorado
agreement “is
CMAA,
otherwise enforceable marital
passed by
which
by the
was
erned
insofar,
but
nevertheless unenforceable
Assembly in
The court
the General
insofar, analysis in this
exclu-
appeals’
case focused
determination,
...
relate to
sively
on subsection
*5
or elimination of
CMAA,
the
which addresses
enforcement
provisions
are unconscionable at
the
Ikeler, agreements.
marital
P.3d
provisions.”
time of enforcement
subsection,
appeals
Based on this
the
14-2-307(2)
§
sub
This
plain language
CMAA’s
concluded that
the
purports
section therefore
to limit uncon-
uneonscionability review of marital
limited
scionability
provisions,
to
review maintenance
regarding
to
agreements
those
seemingly
the exclusion
a waiver of
to
By reading
spousal maintenance.
subsec-
attorney’s
conflict between this
fees. The
14-2-307(2) in
than
isolation rather
con-
2—304(l)(i),however,
ap
and subsection
whole, however,
as a
sidering the CMAA
the
14—
parent.
provisions,
Unconscionable contract
that
appeals
failed to consider
sub-
particularly
agree
the
of marital
context
conflicts with
section
ments,
precisely
are unconscionable
because
regarding
content of
CMAA’s
See Newman
policy.
they
public
violate
Because of this conflict
agreements.
marital
(Colo.1982)
provi-
CMAA’s
plain language
in the
of the
provisions in a
(holding that maintenance
sions,
beyond
plain lan-
we must
look
premarital
un-
agreement are reviewable for
guage
the statute
determine whether
conscionability at the time
the dissolution
legislature
intended for waiver
attor-
public policy principles); Richard
based on
ney’s fees to be reviewable for unconseiona-
(4th
Lord,
on Contracts
§ 18:7
Williston
A.
bility.
1998) (“[Wjhere
strong public
is a
ed.
there
practice,
policy against
particular
a con
Conflicting
A.
Provisions
The CMAA’s
inimical
to that
will
tract or clause
agreements
The
is con-
content of
and unen
likely be declared unconscionable
CMAA,
by
14-2-304 of the
trolled
clearly
policy is
out
forceable unless the
subjects
parties
to which
lists those
which
legitimate interest
in favor
weighed
some
agreement.
in marital
may validly contract
provi
of the individual benefited
provides
example,
specifically
For
the CMAA
sion.”).
parties may contract
determi-
“[t]he
that
in the
nation,
We therefore find
conflict
elimination
14-2-307(2),
14-2~304(l)(d),
§
CMAA between
subsection
maintenance.”
(2006).
not, however,
only
face
allows unconseionabili
spe- which on its
The CMAA does
14-2-304;
ty
agreement provisions
review of marital
cifically
mention
Ikeler,
maintenance,
C.J.,
(Davidson,
and subsection
spe-
that
relate
particular goal and the Attorney’s C. statutory attempting Fees scheme in to ascertain Luther, 1015; legislative intent. 58 P.3d at public policy underly- next turn 2-4-203, Our is to task ing an award of the law gives a construction choose that effect concerning attorney’s prior fees that existed legislature’s pur intent and serves the passage. considering to the CMAA’s After pose the overall scheme. factors, these we conclude Rollins, Marriage Cargill Assembly preclude did not intend to courts (Colo.1993); In re reviewing from waivers of Rose, (Colo.App.2006). Rather, the time of enforcement. a waiver of Legislative History B. fees in a marital that is Assembly’s overriding The General intent unconscionable at the time of the dissolution in passing codify the CMAA towas Colora- violates and therefore regarding do’s common law 14-2-304(l)(i) be enforced under subsection Mclnnis, Representative ments. Scott CMAA, because it is a valid con- sponsor Representa- bill’s the House of term. tract tives, was stated the bill intended public policy underlying an award of codify incorpo- Colorado’s law and case fees in a marital dissolution single rate the relevant statutes into a stat- *6 ceeding is in established the Uniform Disso- governing agreements. ute marital See Act, Marriage lution of sections 14-10-101 Hearing H.B. on 86-1212 H. Before -133, (2006) (“UDMA”) to C.R.S. and has Comm, Judiciary, 55th Legis.2d Reg. on been articulated in the case law. The trial (Feb. 1986). 18, Sess. The who witness authority court’s to award in a fees bill, Laura Vogelgesang, testified about proceeding marital in dissolution rests sec- was a member of the Bar Colorado Associa- 14-10-119, (2006), provides C.R.S. which Section, tion’s Probate and Trust Law which part:7 in relevant helped draft the bill. Vogelgesang Ms. testi- time, The court from time to consid- after codify fied that the drafters’ intent was to in ering the par- both resources financial of a single then-existing statute Colorado’s case ties, may party pay order a to a reasonable prevent adoption law and statutes order party amount for the cost the other of Agreement of the Uniform Premarital Act in maintaining defending any proceeding Id. At Colorado. the time of the CMAA’s attorney’s fees, under this article and for adoption, no had case addressed the including legal sums for services rendered specific question a waiver attor- whether of prior and costs incurred the commence- agreement could be entry of proceeding ment or after by a unconscionability reviewed court for at judgment. the time of enforcement. There no was also 14-10-119 discussion of fees in either the prior passage House or the Senate An award of fees is legislative history, therefore, bill. The does one of the that the Assembly tools light little to shed on whether provided carry the General courts order to out its subject 6. The silence CMAA's A court can also award fees under 13-17-102, ambiguity (2006). allowing fees also creates us to look Marriage section In Aldrich, interpretation 1370, (Colo.1997). to other tools of to ascer- 945 P.2d 1377 legislative statute, however, Buckley, tain applicability intent. See 968 P.2d this is not before us. “may potential agreement a marital become “mitigat[ing] the vision objective of stated by spouses and their children occasioned to the voidable for harm dissolution of process legal existing at the time of the caused circumstances 14-10-102(2)(b), marriage.” marriage holding Id. This was dissolution.” equalize the Attorney’s intended to fees are based, part, Colorado’s un party neither suffers parties and ensure mitigating spouses the harm to caused hardship of the disso because due economic marriage.9 Id. at 734-35. dissolution of Marriage Ald marriage. In re lution explained: The court (Colo.1997); rich, 1370, In re 945 P.2d policy mitigate against potential 499, Franks, 508, 542 Marriage 189 Colo. legitimate gov- harm consistent with the is (1975); 845, Marriage In re P.2d generally of the state ernmental interest Lee, 102, (Colo.App.1989). An 781 P.2d protect the health and welfare of its citi- is on the same based recognize zens. It is unrealistic an award of underlying premise as employability spouse of the the health lesser-earning provide maintenance —to during a mar- have so deteriorated food, clothing, Alli and shelter. spouse with riage pro- that to enforce Allison, P.2d 150 Colo. son antenuptial agreement would visions of an Dechant, (1962); In re becoming public in the spouse result Lee, (Colo.App.1993); Thus, charge. do not to the we subscribe antenuptial agreement, that the even view this never decided Although court has though entered into in accordance with in a whether a waiver to, strictly strict tests heretofore alluded can be reviewed for un- intervening regardless enforceable conscionability, prior ruled init events which have rendered effect the maintenance adoption that CMAA’s unconscionable. of a marital visions at 735. We further noted that Id. Newman, unconscionability. review for spouses protecting interest behind out- we first deter- 734-35. parties’ rights weighed the to freedom as to mainte- mined that As- Id. at 736 n. 8. The General contract. per public policy.8 nance do not se violate holding in sembly Newman sub- codified the full at 734. An reached after CMAA, which and in the absence of fraud disclosure appeals that the court of re- the subsection *7 overreaching Id. went on is valid. We Hearing H.B. hold, however, upon in this case. See on pro- a valid maintenance lied that agreements of and in the absence fraud that as full disclosure 8. Newman also held subject overreaching, un- against are not to review for property void as to division are neither conscionability. they subject generally, to nor are 731, unconscionability. P.2d at 653 review for Newman, we drew a strict distinc- 733-34. In comparison a We also based our decision on aof marital tion between provisions concerning court-ordered the UDMA’s concerning concerning property and those main- property mainte- distribution and court-ordered Id, Newman, We at ruled that marital tenance. 734-35. P.2d at 735. Section 14— nance. 653 agreements property re- as to division were not prop- a allows court to distribute 10-113 unconscionability because "there is viewable erty property for except that excluded 14-10-113(2)(d), public policy in this state which parties. § no announced ment of the 14-10-114, hand, (2006). at We Id. conclud- voids such contracts.” the other Section on however, provisions, were ed that maintenance a court order maintenance but authorizes to conscionability review because of well- the exception a vides no for marital 10—114(3)—(4), (2006). public policy. at As we 734-35. parties. § established 14— explain today, policy requires legisla- re- the that same as viewed this distinction "evidence preclude for unconsciona- ante- view maintenance not to examination of tive intent bility applies attorney’s agreements nuptial waivers of fees. for consciona- also Newman, Similarly, today, way holding bility.” the in no alters P.2d at 735. Our 653 14-10-119, property provisions between of mari- which authorizes distinction concerning an exclu- mainte- does not contain tal and those sionary prior agreements the regarding provision for fees. Provisions nance and Dechant, division, parties. at long 867 P.2d property entered into after as as 670 Comm, Judiciary, has provision
86-1212
the S.
become unconscionable is
Before
(Mar.
1986).
12,
Legis.2d Reg.
55th
Sess.
at
unenforceable.
653 P.2d
734-
35; Dechant,
(holding
the General EID, specially concurring. Justice long-standing practice of that Colorado’s tecting children dissolution spouses and adopted majori- rationale Under the We stress that this proceedings continues. today, ty a district can conduct holding waivers of is limited to unconscionability provisions review of all agreements, only and should fees marital legislature agreement. Yet has be read as such. “insofar, but in- permitted such review sofar, Attorney’s Request for Fees IV. of spousal ... relate to” determination 14-2-307(2), (2006) requested that we award her Wife has maintenance. C.R.S. added). view, section 14-10-119 for my fees under (emphasis In attor- appeal. “the this We leave determination provision at issue in this fees waiver any attorney amount of entitlement to can case be reviewed on fees” the trial court remand. C.A.R. in marital all because Chalat, 39.5; at 59. review, subjected ment can as be holds, majority effectively “re- but because it
V. Conclusion mainte- lates to” the determination ground, I specially this concur sum, nance. On that a trial court we hold judgment. in mari- review waiver of 114(4)(a), (2006) agreement], ferreting out [marital informa- income, therefore, Clearly, to” property Husband's businesses division "relates about regarding much, litigating issues the children.” as if not the determination of maintenance result, so, do Such a more than adopt briefly why do comment counter to the General As- would mn holding "re- trial court’s language sembly’s plain in the intent reflected "determination, to” late 14-2-304(l)(a)-(c), See CMAA. pur- maintenance” for elimination (2006) (allowing parties property contract 14-2-307(2). Assuming poses ar- subsection rights exception for marital with no broadly guendo to” be read that "relate can *9 public or in violation of that are unconscionable enough encompass an award UDMA, 14-10-113(2)(d) (under policy); cf necessarily open up agree- doing so would by agreement property marital excluded concerning property division to review for ments distribution). parties This not is UDMA, unconscionability. a trial Under the abrogate law es- also the common result would only may after consid- award maintenance though the even tablished in party resources of the “[t]he eration of seeking financial passing maintenance, expressly Assembly not do so when did including property marital party apportioned the CMAA. to each 14-10- 14-2-304(1)©.”
A. enforced under subsection Maj. op. An provision at 668. fee Act, Agreement Marital sec- Colorado such as the one at issue in this does not case (2006) (the -310, tions 14-2-301 to policy, did, public violate because if it then it “CMAA”), permits parties to contract about beginning, would be void from the ab initio. subjects agree- array a broad in a marital Pierce, 123, 129, See Otte v. 118 Colo. 2—304(1)(i) Indeed, al- ment. subsection 14— 331, (1948); see also Benham v. parties “[a]ny lows to contract as to ... Heyde, Colo. matter, including personal rights obli- (1950) (holding that contracts forbidden party,” long gations of either as it is “not so “absolutely state ab statute are void ini- public policy any in violation of statute tio”). depend, majority It would not as the imposing (emphasis penalty.” criminal add- suggests, the unconscionability ed). held, majority We have never and the agreement “at time enforcement.” today, agreements does hold that marital Maj. op. majority at 668. Because the views providing for the waiver of public policy inquiry equivalent per against public policy are se at the time of unconscionability review, it concludes—mis- contracting. takenly my in 14-2- view—that subsections provide, The CMAA does for a 304(l)(i) 14-2-307(2) are in irreconcilable limitation on the enforcement of a marital By id. at choosing conflict. See to en- agreement. Subsection states 14-2-304(l)(i)’s public policy force subsection agreement “otherwise enforceable” language, majority invalidates subsection insofar, “is nevertheless unenforceable but 14-2-307(2) and its limitations on unconscion- insofar, only provisions agree- as ability review. See id. at determination, ... ment relate modifi- cation, or spousal elimination of maintenance majority’s The result decision is that such provisions at unconscionable authority Colorado courts now have provisions.” time aspects review all of marital of enforcement of in Thus a unconscionability. majority While the states agreement might with be consistent holding that its is limited waivers of attor- public policy agreement at the time the agreements, fees in marital id. see made, might but later become unconscionable applies equally its rationale all sub- agreement at the time the is enforced. Sub- jects that could be included in a marital 14-2-307(2) specifically limits this lat- 2—304(1)(i)’s agreement. Subsection ref- 14— provisions ter form of review to marital “re- “public policy” applies erence to “[a]ny lating] to” the determination matter,” simply attorney’s By maintenance. equating unconscionability review with policy, majority opens up any matter 14-2-304 Sections and 14-2-307 can be to such after-the-fact un- harmoniously they read because focus on dif- conscionability proble- review. This result is periods ferent the life of the marital only matic not because it contravenes subsec- ment. Section 14-2-304 allows to con- 14-2-307(2)’s specific limitation on such long any tract about matter as it not in review, but also because it frustrates violation of at the time con- objective, legislature’s captured in the lan- tracting. Section 14-2-307 allows uncon- guage 14-2-304(1)©, permit subsection scionability review of those to a marital to contract that “relate to” the determination of array about broad of matters not in viola- when those have be- Thus, view, public policy. my tion of come unconscionable the time of enforce- majority give fails effect either subsec- ment. tion of the CMAA issue this case. majority oranges apples mixes when it “a holds that waiver of B. is uncon- scionable at time Despite my disagreement majori- of the dissolution vio- with the public lates ty question therefore not be of whether the
673
Lee,
conflict,
(Colo.App.1989).
agree with
ity and would reverse the appeals. court of
Accordingly, I concur in the majority’s judg-
ment.