In Re Marriage of Blaine

2019 COA 164

• Court: Colorado Court of Appeals
• Decided: October 31, 2019
• Docket: 18CA0720
• Status: Published

Opinion

The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.

SUMMARY October 31, 2019

2019COA164

No. 18CA0720, In Re Marriage of Blaine — Family Law — Uniform Dissolution of Marriage Act — Disposition of Property — Uniform Premarital and Marital Agreements Act

Where a husband voluntarily conveyed real property to his

then-wife in an interspousal transfer deed and testified that he

intended by that conveyance that the property would be the wife’s

separate property, a division of the court of appeals concludes that

the district court did not err in ruling that the property was the

wife’s separate property in their dissolution action, even though the

deed was not a marital agreement under the Uniform Premarital

and Marital Agreements Act, §§ 14-2-301 to -313, C.R.S. 2019. The

division distinguishes this case from In re Marriage of Zander, 2019

COA 149. The division further concludes that the district court did not

err by not dividing certain funds that remained in the wife’s bank

account at the time of dissolution. COLORADO COURT OF APPEALS 2019COA164

Court of Appeals No. 18CA0720 Jefferson County District Court No. 16DR31064 Honorable Dennis J. Hall, Judge

In re the Marriage of

Jack Allen Blaine,

Appellant,

and

Qing He,

Appellee.

JUDGMENT AFFIRMED

Division V Opinion by JUDGE TERRY J. Jones and Grove, JJ., concur

Announced October 31, 2019

Law Offices of Rodger C. Daley, Rodger C. Daley, Denver, Colorado, for Appellant

GreenLaw International LLC, Ralph J. Strebel, Lakewood, Colorado, for Appellee

Lass Moses Ramp & Cooper, LLC, Patricia A. Cooper, Marie Avery Moses, Denver, Colorado, for Amicus Curiae Colorado Chapter of the American Academy of Matrimonial Lawyers ¶1 Jack Allen Blaine (husband) appeals the permanent orders

entered on the dissolution of his marriage to Qing He (wife). We

affirm.

¶2 Because husband voluntarily conveyed real property to wife in

an interspousal transfer deed, and testified that he intended by that

conveyance that the property would be wife’s separate property, we

conclude that the district court did not err in ruling that the

property was wife’s separate property, even though the deed was

not a marital agreement under the Uniform Premarital and Marital

Agreements Act (UPMAA), §§ 14-2-301 to -313, C.R.S. 2019. In so

holding, we distinguish this case from In re Marriage of Zander,

2019 COA 149.

¶3 We further conclude that the district court did not err by not

dividing certain funds that remained in wife’s bank account at the

time of dissolution.

I. Background

¶4 The parties’ two-year marriage ended in 2018. The sole issue

for permanent orders was husband’s claim that wife had borrowed

a total of $346,500 from him in various increments over the course

of the marriage and had used the funds primarily toward the

1 separate property purchase of a home in California worth

$1,100,000. Husband argued that wife should be ordered to repay

the borrowed funds and that it would be unconscionable for her to

keep the California home without doing so. Wife argued that the

funds were given to her by husband with no expectation of

repayment.

¶5 After a hearing, the district court found that the first $50,000

husband had transferred to wife was a gift for wife’s mother and

was given according to Chinese custom with no expectation of

repayment, but that the remainder of the funds were neither loaned

nor gifted but were funds husband contributed to the marriage.

However, because after transferring the funds to wife, husband

signed an “interspousal transfer deed” conveying the California

home to her “as her sole and separate property,” any marital

interest husband had in the home based on the funds he provided

“was extinguished.” Therefore, the court set aside the home as

wife’s separate property. It found the increase in value of the home

during the marriage was $82,939, and awarded that amount to

husband.

2 ¶6 The court denied husband’s motion to reconsider the

permanent orders.

II. Analysis

A. Failure to Set Aside the Interspousal Transfer Deed

¶7 Husband argues that the district court abused its discretion

by failing to set aside the interspousal transfer deed. We disagree.

¶8 In the district court, husband did not argue that the

interspousal transfer deed should be set aside and the $1,100,000

California home divided as marital property. He instead argued

only that wife should be ordered to repay the $346,500 he had

loaned her, less $2500 that he admitted at the hearing he had given

without expecting repayment. See Valentine v. Mountain States Mut.

Cas. Co., 252 P.3d 1182, 1188 n.4 (Colo. App. 2011) (“A party’s

mere opposition to its adversary’s request . . . does not preserve all

potential avenues for relief on appeal. We review only the specific

arguments a party pursued before the district court.”); see also

Melat, Pressman & Higbie, L.L.P. v. Hannon Law Firm, L.L.C., 2012

CO 61, ¶ 18.

¶9 Husband did, however, assert in the trial management

certificate and at the hearing, as he does on appeal, that there is a

3 fiduciary duty between spouses. Relying on California case law,

husband argues that the interspousal transfer deed creates a

“presumption of undue influence,” which then requires wife, the

spouse advantaged by the transaction, to establish that husband,

the disadvantaged spouse, signed the deed “freely and voluntarily”

and with full knowledge of the facts and complete understanding of

the effects of the deed. However, even if this argument could be

construed as an implied request to set aside the deed because of

wife’s breach of her fiduciary duty, the record does not support that

result.

¶ 10 Husband testified that he signed the interspousal transfer

deed voluntarily. He did not testify that wife induced him to sign

through physical or emotional abuse, as his reply brief implies. He

further testified that he had a master’s degree in business, that he

knew the deed was a legal document, that he had experience

signing deeds, and that he read and understood the deed and the

instructions transmitted with it before signing it. He acknowledged

that the deed made the California home wife’s separate property

and that he was “okay with” that when he signed the deed. He also

testified that he had been divorced previously, had entered into a

4 separation agreement in that earlier divorce, and was familiar with

the concept of separate property.

¶ 11 Accordingly, even assuming that a fiduciary duty existed in

relation to the deed, we conclude that the standard husband argues

for discharge of that duty — that the disadvantaged spouse enter

into the transaction freely and voluntarily, with full knowledge of

the facts, and complete understanding of the effect of the

transaction — was met based on husband’s own testimony.

¶ 12 In sum, we see no basis for reversal of the judgment for failure

to set aside the deed. Thus, we need not address the parties’

arguments concerning whether the scope of the fiduciary duty

between divorcing spouses in Colorado is the same as it is in

California. See In re Marriage of Dadiotis, 2014 COA 28, ¶ 5

(affirming district court’s judgment based on different reasoning

than the court used).

B. Enforcement of the Deed

¶ 13 Husband contends that the district court abused its discretion

by excluding the California home from marital property because the

interspousal transfer deed was not a “valid agreement” under

5 section 14-10-113(2)(d), C.R.S. 2019. We conclude that the transfer

was valid notwithstanding that section.

¶ 14 We requested and received an amicus brief on this issue from

the Colorado chapter of the American Academy of Matrimonial

Lawyers. And we agree with the portion of that brief arguing that

property can be excluded from a marital estate by a deed conveying

such property from one spouse to the other as separate property,

provided that there is also evidence of the conveying spouse’s intent

to exclude the property.

¶ 15 While this case was pending, another division of this court

concluded in Zander that an oral marital agreement to exclude

property from a marital estate is unenforceable because marital

agreements must be in writing and signed by the parties. See

Zander, ¶ 29 (applying the Colorado Marital Agreements Act

(CMAA), § 14-2-303, C.R.S. 2007, in effect at the time, which

required marital agreements to be in writing and signed by the

parties in order to be enforceable). However, because the property

at issue here was conveyed by husband to wife as her separate

property and because husband unequivocally acknowledged at the

permanent orders hearing that he intended by that conveyance that

6 the property would be wife’s separate property, this case is unlike

Zander. We conclude that the district court did not err under these

circumstances in setting aside the California home as wife’s

separate property.

¶ 16 Marital property means all property acquired by either spouse

during the marriage. § 14-10-113(2). Property acquired during

marriage is presumed marital regardless of whether title is held

individually or jointly. § 14-10-113(3). This presumption is

overcome, however, by a showing that such property was acquired

by a method described in the exceptions to section 14-10-113(2),

including property that is acquired by gift and property that is

excluded by valid agreement of the parties. § 14-10-113(2)(a), (d),

(3); see In re Marriage of Balanson, 25 P.3d 28, 36 (Colo. 2001).

Whether the parties intended to exclude property from their marital

estate on these bases hinges on their intent and actions, and is a

factual issue for the district court to determine. In re Marriage of

Bartolo, 971 P.2d 699, 700-01 (Colo. App. 1998).

¶ 17 Wife, through her real estate agent, sent the interspousal

transfer deed to husband. The district court found that husband

signed it to facilitate wife’s purchase of the California home, and

7 that the deed operated to exclude the home from marital property

under section 14-10-113(2)(d). The court also found, however, that

the deed did not constitute a “marital agreement” under the UPMAA

because it was not signed by both parties. See § 14-2-306, C.R.S.

2019. The court did not err under the circumstances of this case —

where husband signed a deed conveying the California home to wife

as her separate property and testified unequivocally that it was his

understanding and intent in doing so that the home would be wife’s

¶ 18 Unlike in Zander, neither party here alleged an “agreement”

that the California home would be wife’s separate property.

Instead, husband conveyed the property to wife as her sole

property, admitting that this was his intent. See Zander, ¶ 29. A

conveyance is not an agreement, marital or otherwise. See § 14-2-

302(2), C.R.S. 2019 (defining a “[m]arital agreement” as “an

agreement between spouses”); see also Platt v. Aspenwood Condo.

Ass’n, 214 P.3d 1060, 1066 (Colo. App. 2009) (noting that “[a]

conveyance is a transfer of title to property by deed” and

distinguishing a conveyance from an agreement to convey). As a

result, to be effective to preclude husband’s interest in the property,

8 the interspousal transfer deed did not have to meet the

requirements and formalities of the UPMAA, namely signature by

both parties; access by both parties to independent legal

representation, or an express notice in the agreement of their

waiver of specific rights; and adequate financial disclosure by both

parties. See § 14-2-309, C.R.S. 2019.

¶ 19 Although it was not an agreement, the interspousal transfer

deed was nonetheless effective to convey the California home to wife

as her separate property. The present case is similar to Bartolo.

There, a residence that had been owned before the marriage by the

wife and her mother was conveyed to the spouses jointly after they

married. Bartolo, 971 P.2d at 699. When the parties began having

marital difficulties, the husband executed a quitclaim deed at the

wife’s request, conveying the residence to her alone. Id. at 699-700.

A division of this court upheld the district court’s determination

that the residence was the wife’s separate property under section

14-10-113(2)(a) and (d) because the husband had executed a lawful

conveyance totally divesting himself of the property and, on

recording of the deed by the wife, placing the property completely

beyond his control. Id. at 700; see also In re Marriage of Vickers,

9 686 P.2d 1370, 1371 (Colo. App. 1984) (similarly excluding property

from a marital estate when it was conveyed from one spouse to the

other and the conveying spouse testified that he knew the effect of

the deed would be to transfer any interest he had in the property to

the other spouse).

¶ 20 Husband did the same thing here and, similar to the spouse in

Vickers, he acknowledged that he read and understood the

interspousal transfer deed before signing it, he knew the deed

would make the California home wife’s separate property, he was

“okay with” that result, and he understood — from his involvement

in a prior divorce — the concept of separate versus marital property

in the context of a divorce. Accordingly, the district court did not

err in declining to characterize the conveyance as a marital

agreement that must comply with the UPMAA. Cf. Bartolo, 971

P.2d at 700 (setting aside property deeded from one spouse to the

other as separate property without addressing the CMAA). But cf. In

re Marriage of Bisque, 31 P.3d 175, 180 (Colo. App. 2001)

(conveyances were set aside when they were made pursuant to an

underlying separation agreement that was determined to be invalid

under the CMAA).

10 ¶ 21 Our disposition would likely be different had husband not so

clearly expressed his understanding and intent that the

interspousal transfer deed would render the California home wife’s

separate property. We agree with amicus that the mere fact of a

conveyance of property between spouses is not enough to render

such property separate on dissolution without additional evidence

that the conveying spouse intended that result. Because the record

in this case unequivocally reflects husband’s intent that the

California home would be wife’s separate property, we affirm.

C. Undivided Funds in Wife’s Bank Account

¶ 22 Husband also contends that the district court abused its

discretion under section 14-10-113(1) by failing to divide $73,000 of

the borrowed funds that remained in wife’s bank account at

dissolution. We disagree.

¶ 23 As the district court noted, husband made this argument for

the first time in his post-trial motion. He did not argue at the

hearing that $73,000 of the borrowed funds remained in wife’s bank

account and needed to be divided by the court. To the contrary, he

consistently asserted that wife had used $326,000 of the $346,500

he had loaned her to purchase the California home. He asked the

11 court to order wife to repay the borrowed funds, and did not ask the

court to divide wife’s bank account. Indeed, as wife points out, the

parties stipulated that each of them would receive all of the funds in

their respective bank accounts, and the court adopted their

stipulation.

¶ 24 “‘Stipulations are a form of judicial admission,’ and ‘are

binding on the party who makes them.’” Maloney v. Brassfield, 251

P.3d 1097, 1108 (Colo. App. 2010) (citation omitted). A party may

be relieved of a stipulation “upon timely application” and only “if

there is a sound reason in law or equity for avoiding or repudiating”

the stipulation. Id. (citation omitted).

¶ 25 Because husband did not request that the district court relieve

him from the stipulation, we do not address that issue. See Melat,

¶ 18 (“It is axiomatic that issues not raised in or decided by a lower

court will not be addressed for the first time on appeal.”). Nor do we

address husband’s argument concerning the $73,000. See Fid.

Nat’l Title Co. v. First Am. Title Ins. Co., 2013 COA 80, ¶ 51

(“Where . . . a defense is raised for the first time in a post-trial

motion, it is not preserved for appellate review.”). And we do not

address husband’s argument — raised for the first time in his reply

12 brief — acknowledging that the $73,000 was not in wife’s bank

account at the time of the hearing but arguing that the funds

should still be divided because wife dissipated them. See In re

Marriage of Drexler, 2013 COA 43, ¶ 24 (appellate courts do not

address arguments raised for the first time in a party’s reply brief).

III. Wife’s Request to Strike Portions of Husband’s Brief

¶ 26 Finally, we deny wife’s request to strike portions of husband’s

brief for failure to cite legal authority. Husband relies on section

14-10-113 and parts of the record for his contention that the

district court omitted assets from the marital property distribution

as well as for his contention concerning enforcement of the deed,

and he also relies on the UPMAA, §§ 14-2-301 to -313. We

conclude that his brief complies with C.A.R. 28(a)(7)(B) and that

striking any part of it is not warranted.

IV. Conclusion

¶ 27 The judgment is affirmed.

JUDGE J. JONES and JUDGE GROVE concur.