In re Marriage of Cerrone

2021 COA 116

• Court: Colorado Court of Appeals
• Decided: August 31, 2021
• Docket: 20CA0816
• 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 August 26, 2021

2021COA116

No. 20CA0816, In re Marriage of Cerrone — Family Law — Modification and Termination of Provisions for Maintenance, Support, and Property Disposition — Remarriage

A division of the court of appeals holds that, under

section 14-10-122(2)(a)(III), the inclusion of a nonmodification

clause in a separation agreement, on its own, is insufficient to

continue a maintenance obligation after a recipient spouse’s

remarriage. In reaching this conclusion, the division declines to

follow In re Marriage of Parsons, 30 P.3d 868, 869 (Colo. App. 2001). COLORADO COURT OF APPEALS 2021COA116

Court of Appeals No. 20CA0816 Jefferson County District Court No. 16DR30029 Honorable Robert Lochary, Judge

In re the Marriage of

Jill Louise Cerrone,

Appellee,

and

Dennis John Cerrone,

Appellant.

ORDER REVERSED AND CASE REMANDED WITH DIRECTIONS

Division V Opinion by JUDGE GROVE J. Jones and Johnson, JJ., concur

Announced August 26, 2021

Ammarell Deasy, LLP, Daniel N. Deasy, Patrick N. Hoover, Greenwood Village, Colorado, for Appellee

The Burnham Law Firm, P.C., Aaron Belzer, J.P. Prentiss, Boulder, Colorado, for Appellant ¶1 Dennis John Cerrone (husband) appeals the district court’s

order adopting a magistrate’s ruling denying his motion for a

declaratory judgment that his maintenance obligation to Jill Louise

Cerrone (wife) under the parties’ separation agreement ended

automatically on wife’s remarriage. Because the separation

agreement did not expressly provide that maintenance would

continue after wife remarried, we conclude that husband’s

maintenance obligation terminated by operation of law once she did

so. We therefore reverse the order and remand the case to the

district court with directions to grant husband’s motion and

determine the amount wife must reimburse him for maintenance he

paid after the date of her remarriage.

I. Background

¶2 The parties’ twenty-four-year marriage ended in 2016. The

district court approved their separation agreement and incorporated

it into the decree.

¶3 As relevant here, under a subheading titled “Modification,” the

agreement states,

This Plan shall not be modified except by its own terms or by operation of law or by written

1 agreement of the Parties with approval by the Court.

Under “Maintenance,” the agreement provides that

[c]ommencing July 1, 2016, Husband shall pay the Wife maintenance in the amount of $2,489.00 per month for a period of 138 months (totaling 11 ½ years). Payments shall be made directly by Husband to Wife. Maintenance shall terminate at the end of the contractual period of 11 ½ years, December 31, 2027.

All maintenance outlined herein is contractual in nature and shall be non-modifiable for any reason whatsoever by the Court. The Court shall not retain jurisdiction to modify the maintenance either in amount or duration.

¶4 Three years after the court entered the decree, husband moved

for a declaratory judgment that his maintenance obligation had

automatically terminated by operation of law as of wife’s May 25,

2018, remarriage. See § 14-10-122(2)(a)(III), C.R.S. 2020 (“Unless

otherwise agreed in writing or expressly provided in the decree, the

obligation to pay future maintenance is terminated upon . . . [t]he

remarriage of or the establishment of a civil union by the party

receiving maintenance.”).

¶5 A district court magistrate denied husband’s motion,

concluding that, by stating in their separation agreement that

2 maintenance was contractual and nonmodifiable, the parties had

“agreed in writing” that husband’s maintenance obligation would

survive wife’s remarriage.

¶6 Husband petitioned for district court review of the magistrate’s

order. The district court affirmed and adopted the magistrate’s

order.

II. Maintenance After the Recipient Spouse Remarries

¶7 Husband contends that the magistrate and district court erred

by ruling that his obligation to pay wife maintenance continued

after her remarriage rather than automatically terminating under

section 14-10-122(2)(a)(III). He asserts that In re Marriage of

Parsons, 30 P.3d 868, 869 (Colo. App. 2001), which the magistrate

found controlling, was wrongly decided. In the alternative, he

argues that Parsons is distinguishable from the present case based

on the specific language of the parties’ separation agreement.

¶8 We agree that the magistrate and district court erroneously

concluded that husband’s maintenance obligation continued after

wife’s remarriage. In reaching this conclusion, we decline to follow

Parsons to the extent it holds that the mere presence of a

nonmodification clause is, on its own, sufficient under section

3 14-10-122(2)(a)(III) to continue a maintenance obligation after a

recipient spouse’s remarriage. See Chavez v. Chavez, 2020 COA

70, ¶ 13 (noting that divisions of the court of appeals function

independently and thus “divisions are not bound by the decisions of

other divisions”). We further conclude that the particular

separation agreement language at issue is materially

distinguishable from that in Parsons and is not sufficient to

continue husband’s maintenance obligation after wife’s remarriage.

Therefore, we reverse the district court’s order.

A. Standard of Review

¶9 We review de novo the language of the governing statute and

the parties’ separation agreement. See In re Marriage of Williams,

2017 COA 120M, ¶ 11.

B. Section 14-10-122(2)(a)(III)

¶ 10 Section 14-10-122(2)(a)(III) states, in relevant part, that

“[u]nless otherwise agreed in writing or expressly provided in the

decree, the obligation to pay future maintenance is terminated upon

. . . [t]he remarriage of . . . the party receiving maintenance.”

Accordingly, the issue, as it was in the district court, is whether the

parties “agreed in writing” in their separation agreement that

4 maintenance would continue for the full 138-month term even if

wife remarried. See id.; cf. Williams, ¶ 10 (determining de novo,

based on the separation agreement, whether maintenance survived

the obligor spouse’s death as a continuing obligation of his estate or

was terminated under section 14-10-122(2)(a)(I)).

C. Early Case Law Interpreting the Statute

¶ 11 A division of this court addressed a predecessor version of

section 14-10-122(2)(a)(III) in Spratlen v. Spratlen, 30 Colo. App. 91,

93-94, 491 P.2d 608, 609-10 (1971). That statute provided that

“[t]he remarriage of a party entitled to [maintenance] . . . shall

relieve the other party from further payments of said [maintenance];

but nothing in this section shall preclude the parties from providing

otherwise by written agreement or stipulation.” Id. at 93, 491 P.2d

at 609 (quoting § 46-1-5(5), C.R.S. 1963). The separation

agreement at issue in Spratlen provided that the husband would

pay maintenance to the wife “until the death of his father.” Id. at

92, 491 P.2d at 609. The division held that the statute “require[d]

an express statement that [maintenance] continue after remarriage,

and the failure of the agreement in question to specify this point”

was fatal to the wife’s argument that her maintenance continued

5 until the death of the husband’s father regardless of her remarriage.

Id. at 94, 491 P.2d at 610.

¶ 12 Spratlen relied on In re Estate of Kettering, 151 Colo. 202,

206-07, 376 P.2d 983, 986 (1943), in which the supreme court,

applying common law principles, held that maintenance ends with

an obligor spouse’s death unless the agreement otherwise

“expressly or by clear implication” provides that maintenance

payments continue. Thus, in Kettering, the agreement’s language

— which specified only that maintenance would continue “so long

as the wife may live and remain unmarried” — did not require the

husband’s estate to continue paying the wife maintenance after his

death. Id. at 207, 376 P.2d at 986; see also Williams, ¶¶ 9 n.1,

12-21 (relying in part on Kettering and concluding that similar

language was insufficient under the provision of section 14-10-

122(2)(a) stating that, “[u]nless otherwise agreed in writing or

expressly provided in the decree,” the obligation to pay maintenance

ends on the obligor spouse’s death); cf. Int’l Tr. Co. v. Liebhardt, 111

Colo. 208, 218, 139 P.2d 264, 267 (1943) (An agreement providing

that maintenance would continue “after the death of the husband”

6 was explicit enough to require his estate to continue paying the wife

maintenance.).

¶ 13 Ten years after Spratlen, a division of this court decided In re

Marriage of Hahn, 628 P.2d 175 (Colo. App. 1981), again addressing

whether particular separation language was explicit enough to

continue maintenance payments after the recipient spouse’s

remarriage. The Hahn division interpreted a previous but

materially similar version of section 14-10-122(2)(a)(III), which

provided, “[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.” Id. at 176 (quoting § 14-10-122(2),

C.R.S. 1973).

¶ 14 The separation agreement in Hahn provided that maintenance

payments “will not be subject to modification for any reason except

the death of the wife.” Id. Citing Spratlen, the division noted that

section 14-10-122(2) had been “construed to require an express

provision that alimony continue after marriage.” Id. However, the

division then concluded that

7 the quoted language of the separation agreement is such an express provision. Although it does not explicitly provide for continuation or termination of maintenance in the event of remarriage, nevertheless, it indicates that it was the contemplation of the parties that only the wife’s death would absolve the husband of liability for payment of maintenance.

Id.

D. Parsons

¶ 15 This brings us to Parsons, which was decided twenty years

after Hahn. There, a division of this court also cited Spratlen with

approval for the proposition that “[g]enerally, to overcome th[e]

statutory termination upon remarriage, an explicit reference to the

continuation of maintenance after the recipient’s remarriage is

necessary.” Parsons, 30 P.3d at 869. Regarding the agreed

ninety-six months of maintenance, the Parsons separation

agreement stated that

[i]t is expressly understood and agreed that the maintenance . . . is contractual in nature and non-modifiable by any court. The payment of maintenance to [wife] shall not be subject to increase, or decrease, or extension due to change of economic circumstances of either party or for any other reason.

8 Id. at 868.

¶ 16 The obligor spouse argued that this language was materially

distinguishable from that at issue in Hahn because it did not

reference a specific event, i.e., the wife’s death, as the only ground

on which maintenance could be modified. Id. at 869. The division

rejected this argument and, in doing so, both extended Hahn and

departed from its own description of Spratlen as requiring “an

explicit reference to the continuation of maintenance after the

recipient’s remarriage.” Id. The division held that “express

language concerning termination is preferable,” but even in the

absence of express language, “the presence of a nonmodification

clause is sufficient to overcome the statutory presumption that

maintenance terminates upon the recipient’s remarriage.” Id.

¶ 17 As support for its holding, Parsons relied on Hahn and on

Telma v. Telma, 474 N.W.2d 322, 323 (Minn. 1991). Parsons, 30

P.3d at 869-70. In Telma, however, the separation agreement at

issue provided that the obligor spouse waived “any right” to petition

the court for modification under Minnesota’s maintenance

termination statute and “applicable case law.” 474 N.W.2d at 323.

Therefore, the Minnesota court found that maintenance did not

9 terminate under that state’s statute on the wife’s remarriage,

describing the husband’s waiver of the termination on remarriage

provision of the statute as “unequivocal.” Id.

E. Analysis

¶ 18 In our view, the Parsons division diverged from the plain

language of section 14-10-122(2)(a)(III) when it concluded that “the

presence of a nonmodification clause” — standing alone — is

sufficient to overcome the statutory presumption that the obligation

to pay maintenance ends on the recipient spouse’s remarriage. See

Parsons, 30 P.3d at 869. Specifically, the Parsons division’s

statement that a nonmodification clause will overcome the

automatic termination on remarriage provision of the statute went

far beyond both Spratlen and Hahn, where the agreements provided

that only one identified event would serve as a basis for modifying

maintenance. And Parsons’ statement is also inconsistent with that

division’s description of the requirement from Spratlen that “an

explicit reference to the continuation of maintenance after the

recipient’s remarriage is necessary” to overcome the automatic

termination on remarriage provision. Id. (emphasis added).

10 ¶ 19 Further, we do not view as talismanic the terms “contractual”

and “nonmodifiable.” To the contrary, the language of the

separation agreement must be read as a whole, and in context, to

determine the meaning of those terms or any others. See In re

Marriage of Rother, 651 P.2d 457, 459 (Colo. App. 1982).

¶ 20 Accordingly, we decline to follow Parsons to the extent it holds

that a nonmodification clause in a separation agreement is alone

sufficient to evince the parties’ agreement that the maintenance

obligation will survive the recipient spouse’s remarriage. Instead, to

avoid termination of maintenance by operation of law under section

14-10-122(2)(a)(III), a separation agreement or decree must include

an “express provision” that maintenance will continue even if the

recipient spouse remarries. See Hahn, 628 P.2d at 176. And the

parties must make it unmistakably clear in such a provision that

they have “otherwise agreed” under the statute, meaning that they

agree the automatic termination on remarriage provision will not

apply to their maintenance award. See § 14-10-122(2)(a)(III); see

also Palmer v. Palmer, 170 P.3d 676, 680 (Ariz. Ct. App. 2007)

(holding that parties seeking to avoid a similar Arizona statute

“must make their intention unmistakably clear”) (emphasis omitted)

11 (citation omitted); Cortese v. Cortese, 176 P.3d 1064, 1066-67

(Mont. 2008) (holding under similar Montana statute that

maintenance terminates by operation of law on the remarriage of

the recipient party, even if the separation agreement contains a

nonmodification clause, because an express provision that

maintenance will not terminate is required); cf. Williams, ¶¶ 12-21

(requiring that separation agreement language “expressly or by

clear implication provide that the payments will continue after the

death of the obligor”).

¶ 21 We further conclude that the particular separation agreement

language used by the parties here is insufficiently clear, even under

Parsons, to require husband to continue paying wife maintenance

after her remarriage. In Parsons, the agreement stated that

maintenance was nonmodifiable “by any court,” but went on to

state that “[t]he payment of maintenance to [wife] shall not be

subject to increase, or decrease, or extension due to change of

economic circumstances of either party or for any other reason.” 30

P.3d at 868 (emphasis added). In contrast, the maintenance

section of the agreement in this case provides that maintenance “is

contractual in nature and shall be non-modifiable for any reason

12 whatsoever by the Court.” But the second phrase that appeared in

the Parsons agreement — providing that the maintenance cannot be

modified based on a change in economic circumstances “or for any

other reason” — is absent.

¶ 22 This omission is crucial to our analysis because, under the

statute, husband’s obligation to pay wife maintenance

automatically terminates on her remarriage without any action by

the court — that is, by operation of law. See § 14-10-122(2)(a)(III);

Spratlen, 30 Colo. App. at 94, 491 P.2d at 610. The qualifier “by

the court” suggests that the parties intended that maintenance

would not be subject to a motion to modify under section 14-10-

122(1)(a) based on substantial and continuing changed

circumstances. But it does not follow that the automatic

terminating events in section 14-10-122(2)(a) — which require no

action by the court — are inapplicable.

¶ 23 Wife argues, however, that the “miscellaneous” section of the

agreement suggests otherwise. This section states that if there is

any fraud, misstatement, or omission in the parties’ financial

affidavits, the innocent party will have the right to return to court

for amended orders concerning all agreement provisions “except for

13 the maintenance provisions which are expressly non-modifiable.”

However, any modification based on fraud or nondisclosure by a

party would not be automatic, or “by operation of law,” as under

section 14-10-122(2)(a) but rather would require action “by the

court.” See C.R.C.P. 60(b)(1). Thus, prohibiting any such

modifications is consistent with the agreement’s maintenance and

modification provisions and also with applying section 14-10-

122(a)(III) on wife’s remarriage.

¶ 24 In sum, we conclude that the magistrate and district court

erred by interpreting the parties’ separation agreement to require

husband to continue paying wife maintenance after her remarriage

despite the automatic termination on remarriage provision of

section 14-10-122(2)(a)(III).

III. Conclusion

¶ 25 The order is reversed, and the case is remanded to the district

court with instructions to declare that husband’s obligation to pay

wife maintenance terminated on her remarriage pursuant to section

14-10-122(2)(a)(III) and to determine the amount she must

reimburse him accordingly.

JUDGE J. JONES and JUDGE JOHNSON concur.