Clementi v. Watson

Opinion

25CA1957 Clementi v Watson 07-30-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 25CA1957 El Paso County District Court No. 25CV30994 Honorable Laura N. Findorff, Judge

Christina Clementi, as Personal Representative of the Estate of Tammy Lee Clementi, deceased,

Plaintiff-Appellant,

v.

Kevin Watson,

Defendant-Appellee.

JUDGMENT REVERSED AND CASE REMANDED WITH DIRECTIONS

Division VII Opinion by JUDGE SULLIVAN Pawar and Hawthorne*, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced July 30, 2026

McFarland Litigation Partners, LLC, Gabe McFarland, Golden, Colorado, for Plaintiff-Appellant

Sparks Willson, P.C., Matthew A. Niznik, Colorado Springs, Colorado, for Defendant-Appellee

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2025. ¶1 Plaintiff, Christina Clementi (Clementi), in her capacity as

personal representative of the estate of Tammy Lee Clementi

(decedent), appeals the district court’s order granting the

C.R.C.P. 12(b)(5) motion to dismiss filed by defendant, Kevin

Watson. We reverse and remand the case to the district court.

I. Factual Background

¶2 We take the following facts from the allegations in Clementi’s

complaint.

¶3 Decedent married Watson in 1995. She designated Watson as

the beneficiary of her two retirement accounts administered by the

Colorado Public Employees’ Retirement Association (PERA).

¶4 Decedent and Watson divorced in 2012. The couple’s

separation agreement, which was incorporated into a divorce decree

issued by the El Paso County District Court, allocated the PERA

accounts to decedent. But while decedent removed Watson as the

designated beneficiary from one of her PERA accounts, she

inadvertently neglected to remove him as beneficiary from the

second.

¶5 In 2023, decedent died of cancer. The next year, PERA paid

Watson benefits totaling approximately $400,000 from decedent’s

1 PERA account that still listed him as a beneficiary. Clementi, as

the personal representative of decedent’s estate, requested that

Watson return the benefits, arguing they had been paid to him in

error. Watson refused.

II. Procedural History

¶6 In 2025, Clementi sued Watson on behalf of decedent’s estate,

asserting claims for unjust enrichment, conversion, and contempt

based on Watson’s alleged violation of the divorce decree. She

asserted that section 15-11-804(2)(a)(i), C.R.S. 2025, automatically

revoked decedent’s designation of Watson as the beneficiary of the

PERA account upon the couple’s divorce in 2012. As relief, she

requested that the court direct Watson to transfer the PERA

benefits to decedent’s estate and impose remedial contempt

sanctions.

¶7 Watson moved to dismiss the complaint for failure to state a

claim under Rule 12(b)(5). He argued that section 15-11-804(2)(a)(i)

didn’t revoke his status as a beneficiary of decedent’s PERA account

because an administrative rule governing PERA benefits, PERA Rule

2.98, rendered the statute inapplicable. See Pub. Emps.’ Ret. Bd.

Rule 2.98, 8 Code Colo. Regs. 1502-1. Referencing documents that

2 he attached to his motion, Watson also argued that the beneficiary

designation form filled out by decedent constituted a “governing

instrument” that qualified as an exception to section

15-11-804(2)(a)(i)’s automatic revocation provision. See

§ 15-11-804(2) (automatic revocation provision applies “[e]xcept as

provided by the express terms of a governing instrument, a court

order, or a contract”).

¶8 The district court granted Watson’s request to dismiss the

complaint, albeit on grounds different than those urged in his

motion. The court first determined that PERA Rule 2.98 (not the

beneficiary designation form) constituted a governing instrument

that precluded applying section 15-11-804(2)(a)(i)’s automatic

revocation provision to remove Watson as a beneficiary. In support,

the court analogized to appellate decisions holding that federal

statutes governing employee retirement plans preempt section

15-11-804(2)(a)(i)’s automatic revocation provision. According to

the court, because Watson remained a beneficiary, Clementi hadn’t

plausibly alleged claims for unjust enrichment or conversion. As to

Clementi’s contempt claim, the court concluded that she hadn’t

3 stated a plausible claim because Watson didn’t willfully and

knowingly violate the divorce decree.

¶9 Clementi moved for reconsideration, arguing that PERA Rule

2.98 didn’t qualify as a governing instrument under section

15-11-804(2). She also noted that the court hadn’t addressed her

alternative request for leave to amend the complaint to add claims

for reformation in the event the court was inclined to grant

Watson’s motion to dismiss.

¶ 10 Ninety-one days later, the district court reversed course and

attempted to grant Clementi’s reconsideration motion, explaining

that discovery would be necessary to ascertain whether an “actual

governing instrument” might trigger the exception to section

15-11-804(2)(a)(i)’s automatic revocation provision. Because the

court ruled on Clementi’s reconsideration motion more than

sixty-three days after it was filed, however, the motion had already

been deemed denied by operation of law. See C.R.C.P. 59(j) (“Any

post-trial motion that has not been decided within the 63-day

determination period shall, without further action by the court, be

deemed denied . . . .”); Cuevas v. Pub. Serv. Co. of Colo., 2023 COA

64M, ¶ 14, aff’d in part and vacated in part on other grounds sub

4 nom., Pub. Serv. Co. of Colo. v. Outdoor Design Landscaping LLC,

2026 CO 6.

¶ 11 While Clementi’s reconsideration motion was pending, she

appealed the district court’s dismissal order to this court.

III. Discussion

¶ 12 Clementi contends that the district court committed multiple

errors by granting Watson’s motion to dismiss. We agree that the

court erred by (1) concluding that PERA Rule 2.98 doomed

Clementi’s unjust enrichment and conversion claims and

(2) misapplying remedial contempt law. We therefore reverse the

district court’s judgment.

A. Standard of Review

¶ 13 We review an order granting a defendant’s Rule 12(b)(5)

motion to dismiss de novo. Woodall v. Godfrey, 2024 COA 42, ¶ 6.

The purpose of a Rule 12(b)(5) motion is to test the complaint’s

“legal sufficiency.” Nesjan v. J & A Distrib., Inc., 2025 COA 81, ¶ 8.

To survive such a motion, a plaintiff’s complaint must state “a

plausible claim for relief.” Warne v. Hall, 2016 CO 50, ¶ 9 (quoting

Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)). Stated differently, the

complaint’s factual allegations must be “enough to raise a right to

5 relief ‘above the speculative level.’” Id. (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555 (2007)).

¶ 14 In evaluating whether a complaint meets this standard, we

accept the complaint’s factual allegations as true “and view them in

the light most favorable to the plaintiff.” Woodall, ¶ 8. But we

aren’t required to accept as true legal conclusions disguised as

factual allegations or bare, conclusory assertions unsupported by

factual allegations. Id.

¶ 15 Our review requires us to interpret statutes and administrative

rules, which we also review de novo. Barry v. Bally Gaming, Inc.,

2013 COA 176, ¶ 9. In doing so, we look to the language of the

statute or regulation and give words and phrases their plain and

ordinary meanings. Id.

B. Legal Framework

¶ 16 Section 15-11-804(2)(a)(i) provides that “the divorce or

annulment of a marriage . . . [r]evokes any revocable . . . disposition

or appointment of property made by a divorced individual to the

divorced individual’s former spouse in a governing instrument.”

The statute carves out an exception, however, for the “express

terms of a governing instrument, a court order, or a contract

6 relating to the division of the marital estate.” § 15-11-804(2). A

“governing instrument” is an “instrument executed by the divorced

individual before the divorce or annulment of the marriage to the

divorced individual’s former spouse.” § 15-11-804(1)(d).

¶ 17 PERA Rule 2.98, which became effective in 2022, purports to

remove beneficiary designations for certain PERA accounts from the

reach of section 15-11-804(2)(a)(i)’s automatic revocation provision.

The rule states that “[t]he designation of a beneficiary under the

defined contribution plan, 401(k) plan, 457 plan, or life insurance

program, or of a cobeneficiary, co-annuitant, or named beneficiary

under the defined benefit plan, is not subject to revocation

pursuant to [section] 15-11-804, C.R.S., as amended.” Pub. Emps.’

Ret. Bd. Rule 2.98, 8 Code Colo. Regs. 1502-1.

C. Unjust Enrichment and Conversion Claims

¶ 18 Clementi argues that the district court erred by concluding

that PERA Rule 2.98 constituted a governing instrument under

section 15-11-804(2)’s exception to the automatic revocation

provision. We agree.

¶ 19 Because decedent never “executed” PERA Rule 2.98 before her

divorce, the rule didn’t qualify as a governing instrument under the

7 statutory definition. § 15-11-804(1)(d). Thus, the court erred by

concluding that the rule precluded applying 15-11-804(2)(a)(i)’s

automatic revocation provision to decedent’s designation of Watson

as a beneficiary of the PERA account.

¶ 20 Watson nonetheless argues that PERA Rule 2.98 governs

because PERA properly enacted the rule under its statutory

authority. But even assuming that the rule was properly

promulgated, we fail to see how it applies in this case.

¶ 21 Section 15-11-804(2)(a)(i) “causes, as a matter of procedure,

the automatic revocation of a beneficiary designation of a former

spouse upon divorce.” In re Estate of DeWitt, 54 P.3d 849, 857

(Colo. 2002) (emphasis added); accord In re Estate of Johnson, 2012

COA 209, ¶¶ 7, 22. Therefore, based on the complaint allegations

before us, which we must accept as true, the statute automatically

removed Watson as the designated beneficiary of decedent’s PERA

account upon their divorce in 2012. When PERA Rule 2.98 became

effective a decade later, Watson no longer held any interest as a

beneficiary of the account. See Johnson, ¶ 7. This conclusion is

supported by the language of the rule itself — nothing in PERA Rule

2.98 suggests that it applies retroactively to nullify past revocations

8 under section 15-11-804(2)(a)(i). See Bowen v. Georgetown Univ.

Hosp., 488 U.S. 204, 208 (1988) (“[A]dministrative rules will not be

construed to have retroactive effect unless their language requires

this result.”).

¶ 22 We also aren’t convinced by Watson’s arguments that “PERA’s

rules are the governing instrument for PERA plans,” and that

decedent “expressly agreed to be bound by PERA’s rules” when she

signed PERA’s enrollment paperwork. Even putting aside PERA

Rule 2.98’s prospective application, our review at this Rule 12(b)(5)

stage is confined to the allegations in the complaint. See Barnett v.

Denv. Publ’g Co., 36 P.3d 145, 147 (Colo. App. 2001). Clementi’s

complaint never alleged that decedent signed PERA’s enrollment

paperwork or agreed to be bound by PERA’s rules, let alone rules

that became effective long after her initial enrollment in PERA.

¶ 23 Accordingly, because the district court misapplied the

exception to section 15-11-804(2)(a)(i)’s automatic revocation

provision, we reverse the district court’s order dismissing Clementi’s

claims for unjust enrichment and conversion.

9 D. Remedial Contempt Claim

¶ 24 Clementi also contends that the district court erred by

dismissing her remedial contempt claim. Again, we agree.

¶ 25 Clementi alleged that Watson was in contempt of court by

retaining the PERA benefits in violation of the divorce decree. She

requested only remedial contempt sanctions. The district court

dismissed her contempt claim, reasoning that Watson didn’t

willfully violate the divorce decree.

¶ 26 To issue remedial contempt sanctions, the trial court must

find that the contemnor (1) didn’t comply with a lawful court order;

(2) knew about the order; and (3) could comply with the order. In re

Marriage of Cyr, 186 P.3d 88, 92 (Colo. App. 2008).

¶ 27 Notably, the contemnor’s willful violation of a court order isn’t

a necessary element of remedial contempt. See id. (“[P]roof of

willfulness is not required before a court may impose remedial

contempt sanctions.”). The court therefore erred by dismissing

Clementi’s contempt claim on that basis.

¶ 28 We aren’t persuaded otherwise by Watson’s argument that

decedent’s beneficiary designation, rather than the divorce decree,

governed how the PERA benefits would be distributed. This

10 argument essentially repackages Watson’s assertions that we’ve

already rejected — namely, that PERA Rule 2.98 kept decedent’s

designation of him as a beneficiary intact. As discussed above, we

see nothing in the complaint allegations or PERA Rule 2.98 that

renders section 15-11-804(2)(a)(i)’s automatic revocation provision

inapplicable in this case. See supra Part III.C.

¶ 29 Accordingly, we reverse the district court’s order dismissing

Clementi’s contempt claim.1

E. Attorney Fees

¶ 30 Pointing to the district court’s Rule 12(b)(5) dismissal, Watson

requests that we award him attorney fees under section

13-17-201(1), C.R.S. 2025. See Gagne v. Gagne, 2014 COA 127,

¶ 74 (“Under [section 13-17-201], an award of attorney fees is

mandatory when a trial court dismisses a tort action under C.R.C.P.

12(b).”). Because we’ve reversed the district court’s order

1 Because our disposition reinstates each of Clementi’s three

claims, we need not address her contentions that the district court also erred by (1) relying on federal preemption principles; (2) considering matters outside the pleadings; and (3) failing to address her alternative request for leave to amend the complaint. And although we reverse the district court’s dismissal order, we express no opinion on the ultimate merits of Clementi’s claims.

11 dismissing Clementi’s complaint, we conclude Watson isn’t entitled

to attorney fees under section 13-17-201(1). See Grear v. Mulvihill,

207 P.3d 918, 923 (Colo. App. 2009).

IV. Disposition

¶ 31 We reverse the district court’s judgment granting Watson’s

motion to dismiss and remand the case to the district court for

further proceedings.

JUDGE PAWAR and JUDGE HAWTHORNE concur.