COLORADO COURT OF APPEALS 2017COA120
Court of Appeals No. 16CA1577 Arapahoe County District Court No. 96DR611 Honorable Ben L. Leutwyler, Judge
Carl M. Williams, deceased, by Michael Williams, Personal Representative of the Estate of Carl M. Williams,
Appellant,
and
Roberta-Diane J. Williams, n/k/a Roberta-Diane J. Perna,
Appellee.
ORDER AND JUDGMENTS REVERSED AND CASE REMANDED WITH DIRECTIONS
Division VII Opinion by JUDGE RICHMAN Ashby and Vogt*, JJ., concur
Announced September 7, 2017
Nevin A. Seeger, P.C., Nevin A. Seeger, Loveland, Colorado; The Vasilco Law Group, P.C., Patrick M. Vasilco, Denver, Colorado, for Appellant
Litvak Litvak Mehrtens and Carlton, P.C., Ronald D. Litvak, Luke S. Abraham, Denver, Colorado, for Appellee
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2016. ¶1 Michael Williams, Personal Representative of the Estate of Carl
M. Williams (husband), appeals the district court’s order obligating
the estate to continue making monthly maintenance payments to
Roberta-Diane J. Williams, now known as Roberta-Diane J. Perna
(wife), after husband’s death, and the two support judgments
entered thereon. We reverse and remand the case to the district
court to enter an order requiring the wife to refund to the estate the
amount of monthly payments the estate has paid to wife and the
fees it has paid to her attorney, and to determine and award the
estate its reasonable attorney fees incurred in the matter.
I. Background
¶2 Husband and wife married in November 1988, when wife was
forty-two years old and husband was sixty years old. Prior to
entering into the marriage, husband and wife executed a premarital
agreement. The premarital agreement provided at paragraph 4(b)(3)
that “[husband] shall be required to pay to [wife] during her lifetime,
and [wife] shall be entitled to receive from [husband] during her
lifetime, monthly payments” on the filing of a petition for
dissolution, in an amount determined based on the number of years
the parties were married at the time the petition was filed. Also,
1 under the premarital agreement, in exchange for the monthly
payments, wife waived maintenance as determined under section
14-10-114, C.R.S. 2016.
¶3 Husband and wife’s eight-year marriage ended in 1996, and
their separation agreement was incorporated into the decree. The
separation agreement provided in relevant part as follows:
In accordance with the provisions of paragraph 4.(b)(3) of the Premarital Agreement, the Husband shall pay to the Wife monthly payments in the amount of $4,379, commencing thirty (30) days after the filing of this action for dissolution, and continuing monthly thereafter until the remarriage or death of the Wife, whichever first occurs. The Parties agree that the amount of this monthly payment has been correctly calculated in accordance with the provisions of the Premarital Agreement, and that the Premarital Agreement provides the amount of these payments shall be nonmodifiable for the period of time that the Husband is obligated to make these payments to the Wife.
¶4 The agreement also provided that except as specified in the
agreement, the parties release each other and their estates “from
every right, claim, and demand of whatever kind or nature.” And it
provided that it “is binding upon and shall inure to the benefit of
the heirs, assigns, and personal representatives of the parties.”
2 ¶5 After the 1996 dissolution, husband consistently made the
monthly payments to wife under the agreement until his death on
November 27, 2015. Wife received a final payment on December 1,
2015, but no payments thereafter. She then filed a suggestion of
death, a motion to substitute the estate for husband in the
dissolution action, and a verified entry of support judgment,
asserting that the estate was obligated to make the monthly
payments to her and had failed to do so. The estate responded that
the parties had not agreed to continue the monthly payments
beyond husband’s death and therefore the estate had no obligation
to continue making them.
¶6 Both parties filed briefs in the district court on the legal issue
of whether and under what circumstances a monthly maintenance
obligation continues after the death of the obligor spouse. Wife
then filed another verified entry of support judgment, reflecting the
additional payments that had accrued and had not been paid.
¶7 The district court ruled that the premarital and separation
agreements obligated the estate to continue making the monthly
payments to wife until her death or remarriage. The court further
awarded wife her attorney fees and costs under the prevailing party
3 attorney fee provisions of both agreements. The parties then
stipulated that the estate would pay wife the amount of the past
due maintenance payments, make ongoing payments as they came
due, and pay her attorney all fees owed to date, but that the estate
could appeal the district court’s orders and seek to recoup all funds
paid in the event its appeal was successful.
II. The Estate’s Obligation to Continue Making the Monthly Maintenance Payments to Wife After Husband’s Death
¶8 The estate contends that the district court erred in ruling that
husband’s obligation under the premarital and separation
agreements to make monthly payments to wife survived his death
as an obligation of his estate. We agree.
A. Legal Standards
¶9 Under the version of the applicable statute in effect at the time
of the premarital agreement, “[u]nless otherwise agreed in writing or
expressly provided in the decree, the obligation to pay future
maintenance is terminated upon the death of either party or the
remarriage of the party receiving maintenance.” § 14-10-122(2),
4 C.R.S. 1988;1 see In re Marriage of Piper, 820 P.2d 1198, 1199-1200
(Colo. App. 1991) (“In the absence of an agreement or court order to
the contrary, the obligation to pay maintenance is purely personal
and does not survive the death of the obligor spouse.”).2
¶ 10 Accordingly, the issue on appeal, as it was in the district
court, is whether husband and wife “otherwise agreed in writing” in
their agreements, or expressly provided in their decree, that the
monthly payments to wife would survive husband’s death as a
continuing obligation of his estate. There are no post-Uniform
1 The current version of the statute, § 14-10-122(2)(a), C.R.S. 2016, is similar: Unless otherwise agreed in writing or expressly provided in the decree, the obligation to pay future maintenance is terminated upon the earlier of: (I) The death of either party; (II) The end of the maintenance term . . . ; (III) The remarriage of or the establishment of a civil union by the party receiving maintenance; or (IV) A court order terminating maintenance.
2 To the extent wife suggested for the first time at oral argument that the payments were not maintenance and could be enforced against the estate merely on a contractual basis, we will not address that argument because it was not raised in the district court or in the answer brief. See People v. Becker, 2014 COA 36, ¶ 23 (declining to consider argument raised for the first time at oral argument).
5 Dissolution of Marriage Act cases delineating what the statute
requires to constitute an agreement to continue the obligation to
pay maintenance after the death of the obligor spouse. Thus, we
are called upon to interpret this statutory language.
¶ 11 We review de novo the district court’s interpretation of the
statute, see In re Marriage of Gross, 2016 COA 36, ¶ 8, and of the
premarital and separation agreements, see In re Marriage of
Crowder, 77 P.3d 858, 860 (Colo. App. 2003). In doing so, we need
not defer to the district court’s interpretation. Id.; cf. In re Estate of
Houston, 521 P.2d 182, 183 (Colo. App. 1974) (not published
pursuant to C.A.R. 35(f)) (appellate court was not bound by trial
court’s interpretation of settlement agreement regarding whether
maintenance payments would continue beyond obligor spouse’s
death).
B. Analysis
¶ 12 The district court found that the premarital and separation
agreement provisions for monthly payments to wife “during her
lifetime” and “until the remarriage or death of the Wife” “express[ed]
a clear intent that Wife would receive these payments even after
Husband’s death.” We do not agree with this interpretation.
6 Whereas these payment provisions reflect clear agreement regarding
the duration of the monthly payments relative to the life or marital
status of the wife, they say nothing about what would happen on
husband’s death.
¶ 13 Although there is no published Colorado case applying section
14-10-122(2) and addressing agreement language like that used
here, two cases predating the statute and applying similar common
law principles are instructive — In re Estate of Kettering, 151 Colo.
202, 376 P.2d 983 (1962), and International Trust Co. v. Liebhardt,
111 Colo. 208, 139 P.2d 264 (1943).
¶ 14 Under the common law, as under section 14-10-122(2), the
obligation to pay spousal maintenance “[o]rdinarily” ended with the
obligor’s death, but the obligor could agree that payments would
continue thereafter and be payable from the obligor’s estate.
Kettering, 151 Colo. at 206, 376 P.2d at 986. Such an agreement
was enforceable “if it expressly or by clear implication provid[ed]
that the payments shall continue” after the obligor’s death. Id. at
206-07, 376 P.2d at 986; see Houston, 521 P.2d at 183-84 (citing
Kettering and finding agreement provisions “insufficient to overcome
the presumption” that alimony payments end with the obligor
7 spouse’s death); Young v. Young, 475 P.2d 350, 351 (Colo. App.
1970) (not published pursuant to C.A.R. 35(f)) (relying on Kettering
and finding no “clear indication” under the separation agreement
that the obligor spouse’s estate was obligated to continue making
the monthly maintenance payments).
¶ 15 In Kettering, the parties’ agreement provided that the monthly
support payments would continue “so long as the wife may live and
remain unmarried.” 151 Colo. at 204, 376 P.2d at 984-85. The
supreme court held that “the phrase ‘so long as the wife may live’
did not evidence clear and express intent that the payments be a
charge upon the [husband’s] estate” after his death. Id. at 207, 376
P.2d at 986. In Houston, 521 P.2d at 183, and Young, 475 P.2d at
351, divisions of this court similarly ruled that agreement
provisions for monthly alimony payments until the wife’s death or
remarriage were not sufficient to obligate the husband’s estate after
his death. And, in International Trust, the supreme court held that
the husband’s estate was liable for monthly payments to the wife
when the separation agreement expressly required such payments
“after the death of the husband.” 111 Colo. at 217-19, 139 P.2d at
268-69.
8 ¶ 16 Citing to In re Marriage of Koktavy, 44 Colo. App. 305, 612
P.2d 1161 (1980), wife argues that the statute supersedes the
common law rule. But even assuming that is correct, we still find
the holdings of the pre-statute cases instructive in delineating what
type of writing would be required under the statute to continue the
payment of maintenance after the death of the obligor. Wife argues
that any writing suffices, and the words in the premarital
agreement and separation agreement are sufficient. But this
approach would undermine the purpose of the statute, which is to
require a writing that expressly specifies the parties’ agreement.
Instead we conclude, as did the common law cases, that the writing
must expressly or by clear implication provide that the payments
will continue after the death of the obligor. As noted, in those
cases, nearly identical language to that used here was found
insufficient to expressly and clearly provide for continuance of
maintenance after the death of the obligor.
¶ 17 And, our decision is reinforced by decisions from other
jurisdictions concluding that such language is not effective to
continue maintenance posthumously. See Herbst v. Herbst, 153
So. 3d 290, 293 (Fla. Dist. Ct. App. 2014) (“[L]anguage providing
9 that the husband shall pay alimony ‘until wife becomes remarried
or deceased’ does not indicate an intent to bind the husband’s
estate to continue to pay alimony after his death.”); Findley v.
Findley, 629 S.E.2d 222, 224-29 (Ga. 2006) (settlement agreement
provision for alimony until the wife dies or remarries did not
establish clear intent that such payments would continue after the
husband’s death); In re Estate of Lundahl, 773 N.E.2d 756, 762 (Ill.
App. Ct. 2002) (agreement that the wife shall receive monthly
payments for “the balance of her natural life” was not sufficient to
bind the husband’s estate); In re Estate of Jones, 434 N.W.2d 130,
131-32 (Iowa Ct. App. 1988) (decree providing for alimony payments
“until such time as [the wife] dies or remarries” did not express
clear intent to hold the husband’s estate liable); Witt v. Witt, 350
N.W.2d 380, 382 (Minn. Ct. App. 1984) (“We hold an expression
such as ‘so long as obligee shall live’ does not, without more,
expressly provide for maintenance after the obligor’s death.”); Bird
v. Henke, 395 P.2d 751, 753 (Wash. 1964) (the phrase “so long as
[the wife] shall live” did not, standing alone, constitute a clear
expression of intent that alimony be a continuing obligation of the
husband’s estate “in derogation of his testamentary rights”); but see
10 In re Last Will & Testament of Sheppard, 757 So. 2d 173, 174-76
(Miss. 2000) (construing agreement provision for alimony payments
terminating on the wife’s death or remarriage, with no mention of
the husband’s death, as imposing the obligation on his estate after
his death).
¶ 18 The district court specifically noted, as support for its
interpretation, the premarital agreement’s language specifying not
only that husband was required to pay but also that wife was
entitled to receive the monthly payments during her lifetime.
However, the premarital agreement entitled wife to receive the
monthly payments specifically “from Carl,” not also from his estate
after he had died. Likewise, the separation agreement expressly
provides that “Husband shall pay to the Wife” the monthly
payments. Neither agreement said anything about the estate
making the payments after husband’s death. See also Bird, 395
P.2d at 753 (if phrase in agreement providing for alimony “so long
as [the wife] shall live” was to be interpreted literally to apply even
after the husband’s death, “then justice requires an equally literal
meaning be attached to the preceding phrase, ‘to be paid by the
[husband]’”).
11 ¶ 19 In addition, the separation agreement provided at its outset
that husband and wife “each release[] the other and the other’s
estate from every right, claim, and demand of whatever kind or
nature which he or she now has or may have in the future against
the other or the other’s estate, whether as surviving spouse, heir-at-
law, or otherwise.” (Emphasis added.) To be sure, this section is
introduced by the phrase “[e]xcept as hereinafter specified,” but the
later provision for maintenance, did not specify that the estate
would be liable for the obligation after the death of husband.
¶ 20 The district court also relied on the general provision at the
end of both agreements providing that the agreements are binding
on and inure to the benefit of the parties’ heirs, assigns, and
personal representatives. We conclude that such a general
provision does not bind the estate to continue the maintenance
payments to wife, without a clear indication in the maintenance
provision of the agreement that such payments are intended to
continue after husband’s death. See Houston, 521 P.2d at 183-84
(interpreting agreement as a whole as not intending to obligate the
husband’s estate to pay alimony after his death, despite general
provision that agreement’s terms were binding on the parties’ legal
12 representatives); see also Kettering, 151 Colo. at 206, 209, 376 P.2d
at 986-87 (interpreting general clause of agreement binding heirs,
executors, and administrators “so far as appropriate” as insufficient
to obligate spouse’s estate to continue alimony payments). And
although this general provision stated that the agreement shall
“inure to the benefit of the estate,” the agreement also released the
parties’ estates as set forth above.
¶ 21 Therefore, we conclude that husband’s personal obligation to
pay ended when he died, absent a clear indication to the contrary,
which, in our view, neither the premarital nor separation agreement
provided. See § 14-10-122(2), C.R.S. 1988; Piper, 820 P.2d at
1199-1200.
¶ 22 In support of the district court’s order, wife analogizes to cases
involving a spouse’s remarriage where the inclusion of an
unequivocal nonmodification clause was ruled sufficient to continue
a maintenance obligation after the recipient spouse’s remarriage.
However, these cases are materially distinguishable from the
present case. In In re Marriage of Parsons, 30 P.3d 868, 868-70
(Colo. App. 2001), the agreement provided that maintenance was
“contractual in nature and non-modifiable by any court,” and a
13 division of this court held that such language was sufficiently
unequivocal to overcome the presumption that maintenance would
end on the recipient spouse’s remarriage. Similarly, in In re
Marriage of Hahn, 628 P.2d 175, 176 (Colo. App. 1981), the non-
modification clause provided that “payments will not be subject to
modification for any reason except the death of the wife,” and the
division found such language sufficient to continue the obligation
after the wife’s remarriage.
¶ 23 In contrast, the separation agreement here provided only that
the amount of wife’s monthly payments was nonmodifiable for the
period that husband was obligated to make the payments.
Accordingly, without a clear expression of intent to continue the
payment obligation beyond husband’s lifetime, the period that
husband was obligated to pay, during which the amount of the
payments was nonmodifiable, ended with his death.
¶ 24 Because we reverse the order obligating the estate to continue
paying maintenance, we also reverse the two support judgments
entered after husband’s death. We reject wife’s argument that the
estate did not preserve the issue of the judgments because it did
not list the issue in its statement of the issues in the notice of
14 appeal. The listing of issues in the notice of appeal is advisory only
and does not restrict the appellant from arguing additional issues in
the opening brief, see C.A.R. 3(a), (d)(3); Casserly v. State, 844 P.2d
1275, 1282 (Colo. App. 1992), assuming such issues were raised in
the district court, as they were here through the estate’s argument
that it was not obligated to continue making the monthly payments
to wife after husband’s death.
III. Attorney Fees and Costs
¶ 25 The estate also contends that the district court erroneously
awarded wife attorney fees under the prevailing party provisions of
the premarital and separation agreements. Based on our
disposition, we agree that the award of attorney fees and costs to
wife must be reversed. In addition, the estate contends that it
should have been awarded its own attorney fees under the
prevailing party provisions of the agreements, and again, based on
the disposition, we agree.
¶ 26 Both the premarital and separation agreements provide for
attorney fees and costs to the prevailing party in any enforcement
action thereunder. The district court awarded attorney fees and
costs to wife under these provisions. It did not address her
15 alternative request for fees and costs under section 14-10-119,
C.R.S. 2016. Because of our disposition to reverse the district
court’s order that the estate is obligated to continue paying wife
maintenance after husband’s death, we must also reverse the award
of fees and costs that was predicated on that order. And we remand
the case for the court to order any such fees that have already been
paid refunded to the estate, and to instead award attorney fees and
costs, including appellate fees and costs, to the estate under the
agreements.
¶ 27 Also based on the disposition, we deny wife’s request for
appellate fees under the agreements. To the extent that she
alternatively requests appellate fees under section 14-10-119, we
also deny that request. Under the premarital agreement, wife
waived her right to receive fees under section 14-10-119. And,
under both agreements, attorney fees incurred for enforcing the
agreements’ terms are to be awarded to the prevailing party — here,
the estate, which was substituted for husband in the dissolution
action.
IV. Conclusion
16 ¶ 28 The order and judgments are reversed, and the case is
remanded for an order requiring the wife to refund to the estate the
amount of the payments the estate has made to wife and the
attorney fees it has paid to her attorney, and to determine and
award the estate its reasonable attorney fees and costs incurred in
the matter.
JUDGE ASHBY and JUDGE VOGT concur