In Re the Marriage of Ebel

116 P.3d 1254, 2005 Colo. App. LEXIS 345, 2005 WL 550450
CourtColorado Court of Appeals
DecidedMarch 10, 2005
Docket03CA2090
StatusPublished
Cited by4 cases

This text of 116 P.3d 1254 (In Re the Marriage of Ebel) is published on Counsel Stack Legal Research, covering Colorado Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re the Marriage of Ebel, 116 P.3d 1254, 2005 Colo. App. LEXIS 345, 2005 WL 550450 (Colo. Ct. App. 2005).

Opinions

TAUBMAN, J.

In this post-dissolution proceeding, Clarence J. Ebel, Jr. (husband) appeals the district court’s order concluding it lacked jurisdiction to determine his request for maintenance from Lois J. Ebel (wife). We affirm.

As noted in a prior appeal, this case has had a “long and tortuous journey through multiple state and federal courts.” In re Marriage of Ebel, 2002 WL 1773338 (Colo.App. No. 00CA0170, Feb. 14, 2002)(not published pursuant to C.A.R. 35(f))(Taubman, J., dissenting)(F6ei II). Because the background of this case is sufficiently set forth in two prior decisions, In re Marriage of Ebel, 874 P.2d 406 (Colo.App.1993)(Ebel I), and Ebel II, supra, we need not repeat the entire procedural history of the case here.

However, as pertinent to this appeal, the court held a hearing on permanent orders in 1999. As part of its permanent orders, the trial court awarded wife the entire marital estate, which was estimated by the court at $1.6 million as of the August 1986 decree of dissolution. Neither party sought maintenance as part of the permanent orders proceeding, and the decree and order were silent as to maintenance. Husband appealed the permanent orders to this court, including the issue of whether the trial court erred by not awarding him maintenance. In Ebel II, a majority of the division affirmed the trial court’s property distribution and concluded that husband had waived maintenance by failing to list it as an issue on his trial management certificate.

Husband filed a petition for certiorari, which was denied by the supreme court in January 2003. In April 2003, husband filed a motion to modify maintenance. Thereafter, he filed a motion to determine maintenance under § 14-10-114, C.R.S.2004, requesting that the court grant him temporary maintenance until a permanent orders hearing on maintenance could be held.

The magistrate found that the court lacked jurisdiction to consider husband’s motion be[1256]*1256cause the trial court had not retained jurisdiction over maintenance when permanent orders were entered in 1999. Husband moved for review of the magistrate’s order, which was affirmed by the district court. The district court concluded that § 14-10-114 “simply allows the court at the time of permanent orders and after the marriage is dissolved, to determine maintenance.”

I. Maintenance

Husband contends the district court erred in finding it lacked jurisdiction to consider his request for maintenance after permanent orders had been entered. He asserts that he had no reason to request maintenance at the time of the 1999 permanent orders hearing because he expected to receive a reasonable share of the $1.6 million marital estate, which had more than doubled in value by 1999. Husband contends that § 14-10-114(3), C.R.S.2004, allows a party to request maintenance after the entry of permanent orders, even when the court has not expressly reserved jurisdiction to determine maintenance at a later date. Although we agree that the district court lacked jurisdiction to consider husband’s motion for maintenance, we reach that conclusion under a different analysis.

A. Effect of Prior Decision

We first address wife’s contention that our decision in Ebel II precludes us from considering husband’s argument. We agree in part.

To the extent husband argues here that he did not waive maintenance at the time of permanent orders, we conclude that issue has already been determined in Ebel II and is the law of the case. See People v. Roybal, 672 P.2d 1003 (Colo.1983)(the pronouncement of an appellate court on an issue in a case presented to it becomes the law of the case).

However, to the extent husband’s claim is based on his interpretation of § 14r-10-114(3), we conclude that the division’s determination in Ebel II that husband waived maintenance in the initial proceeding is not res judicata or the law of the ease on the issue of whether § 14-10-114(3) allows a party to make a new request for maintenance after the entry of permanent orders.

As wife recognizes, the doctrine of res judicata or claim preclusion does not precisely apply here because husband’s present request for maintenance is not a proceeding independent of the dissolution case. Further, In re Marriage of Mallon, 956 P.2d 642 (Colo.App.1998), on which wife relies, is distinguishable. There, a division of this court applied the principles of res judicata and collateral estoppel to preclude the wife in an action for dissolution of marriage from attacking the subject matter jurisdiction of the court nineteen months after the court entered its permanent orders. Here, in contrast, husband does not seek to set aside a prior final determination of the trial court. Rather, he contends that he has a statutory right to request maintenance following the issuance of permanent orders.

Similarly, husband’s statutory argument is not barred by the law of the case doctrine because he raises an issue not previously decided. Thus, we turn to the interpretation of § 14-10-114(3).

B. New Maintenance Request

Initially, we reject husband’s contention that the prior version of the statute applies here. Rather, the current version of § 14-10-114(3), in effect when husband filed his motion for maintenance in April 2003, applies. That statute states, in pertinent part:

In a proceeding for dissolution of marriage or legal separation or a proceeding for maintenance following dissolution of marriage by a court, the court may grant a temporary maintenance order ... or a maintenance order at the time of permanent orders for either spouse only if it finds that the spouse seeking maintenance [meets certain conditions].

(Emphasis added.) Thus, the statute appears to contemplate three scenarios in which the court may make an award of maintenance: (1) a proceeding for dissolution; (2) a legal separation; and (3) a proceeding following dissolution.

Husband argues that the third scenario allows a party to request maintenance after [1257]*1257the conclusion of permanent orders, particularly where, as here, he did not believe he would need maintenance until the trial court awarded all the marital property to wife.

In addition to the plain language of the statute, husband relies on a Colorado family law treatise, which discusses nominal awards of maintenance, and states:

[T]he statute and case law strongly suggest that the Court always has jurisdiction to enter a post decree order awarding or modifying maintenance, regardless of whether it expressly reserved jurisdiction to do so and regardless of whether it ordered nominal maintenance at the time of entering the decree.

F. McGuane, K. Hogan & B. Storey, 19 Colorado Practice § 25.14 (1999). As authority for this proposition, the treatise cites In re Marriage of Lee, 781 P.2d 102 (Colo.App.1989), a case involving the modification of maintenance.

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Cite This Page — Counsel Stack

Bluebook (online)
116 P.3d 1254, 2005 Colo. App. LEXIS 345, 2005 WL 550450, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-ebel-coloctapp-2005.