24CA0013 Marriage of Dyar 02-13-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA0013 La Plata County District Court No. 22DR2130 Honorable Nathaniel Baca, Judge
In re the Marriage of
Joseph Barry Dyar, Jr.,
Appellee,
and
Sharla Lynn Dyar,
Appellant.
JUDGMENT AFFIRMED
Division I Opinion by JUDGE J. JONES Brown and Yun, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced February 13, 2025
The Law Firm of Lisa Ward, LLC, Lisa Ward, Donald Lawrence, Jr., Durango, Colorado, for Appellee
Law Office of Daily & Pratt, LLC, Lisa M. Dailey, Joel M. Pratt, Colorado Springs, Colorado, for Appellant ¶1 Sharla Lynn Dyar (wife) appeals the district court’s judgment
dissolving her marriage with Joseph Barry Dyar, Jr. (husband). We
affirm.
I. Background
¶2 Shortly before their 2011 marriage, the parties executed a
premarital agreement, in which they agreed that each party would
retain their separate property if the marriage was dissolved. The
premarital agreement defined separate property to include
premarital assets, separately titled property, property acquired by
gift during the marriage, property acquired in exchange for separate
property, and any increases in the value of separate property.
¶3 Husband owned a home before the marriage, which we will
refer to as the Ignacio home. Although this home was husband’s
premarital property, the premarital agreement directed husband to
give wife an ownership interest in it under the following terms:
Upon marriage[,] [husband] will gift an undivided 3% ownership interest in the [Ignacio] home property to [wife] . . . . At the anniversary of each year of their marriage[,] [husband] will gift an additional 1% ownership interest in the [Ignacio] home property. [Wife] will not be added to the title of the [Ignacio home] until year 5 of their marriage when she will then own an 8% equity interest in the
1 home property. At the anniversary of year 10[,] . . . [h]usband will gift 37% ownership interest in the [Ignacio home] to [w]ife, bringing her ownership interest in the [Ignacio home] to 50%.
¶4 In 2012, however, husband executed a deed granting wife joint
tenancy in the Ignacio home. In 2016, wife executed another deed
transferring her ownership interest in the Ignacio home to husband.
¶5 In 2022, the parties initiated the dissolution case. They
agreed that the premarital agreement was valid and enforceable and
governed the division of their property. Their only dispute was
whether the premarital agreement entitled wife to a portion of the
Ignacio home as marital property or whether, due to the deeds
executed in 2012 and 2016, the Ignacio home had once again
become husband’s separate property.
¶6 The court began the permanent orders hearing, but after
receiving limited evidence from husband, it continued the hearing
so that the parties could address wife’s motion to exclude parol
evidence relating to the premarital agreement. Husband’s counsel
then indicated that husband wanted to file a C.R.C.P. 56(h) motion
to determine a question of law concerning the characterization of
the Ignacio home as his separate property. The court set a motions
2 hearing, and it reset the permanent orders hearing. The court later
granted husband leave to file his Rule 56(h) motion.
¶7 After the parties fully briefed husband’s Rule 56(h) motion and
wife’s parol evidence motion, they asked the court to vacate the
motions hearing and rule on the written filings. The court granted
their request. It then granted husband’s Rule 56(h) motion and
concluded that the Ignacio home was husband’s separate property.
The court later vacated the rescheduled permanent orders hearing
and entered permanent orders.
II. Rule 56(h) Order
¶8 Wife contends that the district court didn’t provide sufficient
findings or conclusions of law to explain the basis of its Rule 56(h)
order.1 The court’s ruling, though brief, was sufficient, and because
the undisputed facts and the applicable law support its
determination, we won’t disturb it.
1 Wife characterizes the ruling as one for summary judgment under
C.R.C.P. 56(c). But the ruling was only on a question of law under C.R.C.P. 56(h), even though the ruling ultimately led to judgment for husband.
3 A. Governing Legal Standards
¶9 We review de novo a court’s Rule 56(h) order. See Coffman v.
Williamson, 2015 CO 35, ¶ 12. Under Rule 56(h), the court may
determine a question of law when no genuine issues of material fact
exist that impact the court’s determination. See Coffman, ¶ 12.
The court should provide a clear understanding of the basis of its
ruling. See In re Marriage of Gibbs, 2019 COA 104, ¶ 9. But the
court isn’t required to make any specific findings of fact and
conclusions of law. C.R.C.P. 52; accord Leidy’s, Inc. v. H2O Eng’g,
Inc., 811 P.2d 38, 39 (Colo. 1991).
B. Discussion
¶ 10 In its Rule 56(h) order, the court ruled that, based on the
undisputed facts, husband was entitled to judgment as a matter of
law, and it determined that the Ignacio home was his separate
property. Later, the court clarified that its decision was based on
the undisputed facts in the Joint Trial Management Certificate
(JTMC) and the parties’ briefings, and the law set out in husband’s
motion and reply. Although the court didn’t make extensive
findings, its ruling explained that it accepted and adopted
husband’s legal arguments, and that when applying the law to the
4 undisputed facts, husband was entitled to determination as a
matter of law. A review of husband’s motion and reply, therefore,
gives a sufficient understanding of the court’s rationale. See People
ex rel. MacFarlane v. Delaware Corp., 626 P.2d 1144, 1146 (Colo.
App. 1980) (determining that a court’s summary conclusion to
grant relief based on the grounds set forth in a party’s motion was
sufficient).
¶ 11 In his Rule 56(h) motion, husband pointed out that the parties
had agreed in the JTMC that (1) husband executed a joint tenancy
deed to wife for the Ignacio home in 2012; and (2) in 2016, wife
executed a deed giving her ownership interest to husband.
Husband argued that under the merger doctrine and the plain
language of the premarital agreement, these undisputed facts
established that the Ignacio home was his separate property. He
explained that by executing the 2012 joint tenancy deed, he
satisfied his obligation under the premarital agreement to give wife
50% ownership in the Ignacio home and that the joint tenancy deed
extinguished the premarital agreement’s provision concerning the
Ignacio home. He further explained that by executing the 2016
deed, wife gifted husband her ownership in the home, and that,
5 under the terms of the premarital agreement concerning separate
property, the Ignacio home, now titled solely in his name, was his
separate property.
¶ 12 In her response to husband’s motion, wife asserted, without
citing any legal authority, that the authorities on which husband
relied — which concerned contracts to convey property and merger
— don’t apply to premarital agreements.
¶ 13 In his reply, husband reiterated the argument in his motion
and also argued that wife had waived compliance with the
premarital agreement by accepting the deed in 2012 and deeding
the property back to husband in 2016.
¶ 14 The court accepted husband’s arguments, which we take to
mean all of husband’s arguments. And on appeal, wife doesn’t
challenge the merits of them, save perhaps for merger. See IBC
Denver II, LLC v. City of Wheat Ridge, 183 P.3d 714, 717-18 (Colo.
App. 2008) (where the court rules on multiple bases, the appellant’s
failure to challenge all such bases on appeal requires us to affirm).
Nonetheless, we conclude that the district court properly applied
the merger doctrine.
6 ¶ 15 Under the merger doctrine, a party’s acceptance of a deed
tendered in performance of an agreement to transfer property
extinguishes the agreement’s terms concerning title, possession,
quantity, or emblements of the property. Lazy Dog Ranch v.
Telluray Ranch Corp., 923 P.2d 313, 318 (Colo. App. 1996);
Skidmore v. First Bank of Minneapolis, 773 P.2d 587, 589 (Colo.
App. 1988). Even though the terms of the deed may vary somewhat
from the terms of the prior contract, the deed controls the parties’
rights to the property. Reed v. Dudley, 533 P.2d 507, 508 (Colo.
App. 1975); see also Campbell v. Summit Plaza Assocs., 192 P.3d
465, 476 (Colo. App. 2008) (“[T]he rights of the parties are
determined by the covenants in the deed rather than by the
language of the contract.”).
¶ 16 The premarital agreement provided a schedule by which
husband was required to give wife 50% ownership in the Ignacio
home over ten years. The agreement clarified that nothing “limit[ed]
or restrict[ed] in any way” husband’s right to give the property to
wife earlier. Husband decided to execute the joint tenancy deed a
year into the marriage. Through this deed, wife received an equal
undivided ownership interest in the Ignacio home, and as evidenced
7 by wife’s signature on a later home mortgage, she accepted
ownership in the home as a joint tenant. See Com. Factors of
Denver v. Clarke & Waggener, 684 P.2d 261, 263 (Colo. App. 1984)
(“Each of two joint tenants owns an undivided one-half interest in
the property as a whole.”). The premarital agreement’s provision
concerning the Ignacio home thus merged into the deed. See Lazy
Dog Ranch, 923 P.2d at 318; Skidmore, 773 P.2d at 589. This joint
tenancy deed then controlled wife’s rights in the Ignacio home and
extinguished husband’s obligation under the premarital
agreement’s provision. See Reed, 533 P.2d at 508; see also
Campbell, 192 P.3d at 476.
¶ 17 Wife argues, however, that the merger doctrine shouldn’t apply
to the premarital agreement because the cases applying that
doctrine didn’t arise in a domestic relations context and were
decided before the “General Assembly adopted the Uniform
Premarital and Marital Agreements Act” (UPMAA). See §§ 14-2-301
to -313, C.R.S. 2024. But wife overlooks that the UPMAA doesn’t
apply to an agreement executed in 2011. See § 14-2-303(1), (2),
C.R.S. 2024 (limiting the application of the UPMAA to agreements
signed on or after July 1, 2014). In any event, we reject wife’s
8 suggestion that the merger doctrine doesn’t apply to the parties’
premarital agreement. The premarital agreement directed husband
to add wife to the title and give her 50% ownership in the Ignacio
home. Therefore, the provision concerned the title and possession
to the home, and the execution of the joint tenancy deed effectuated
that transfer. See Lazy Dog Ranch, 923 P.2d at 318; Skidmore, 773
P.2d at 589. Wife doesn’t point us to any legal authority creating
an exception for a premarital agreement. See In re Marriage of
Drexler, 2013 COA 43, ¶ 27 (the appealing party bears the burden
of providing authority to support a contention of error).
¶ 18 Still, wife argues that the premarital agreement governed more
than just the transfer of ownership in the Ignacio home. Be that as
it may, provisions in an agreement “that are not intended by the
parties to be incorporated in the deed, or that are not necessarily
satisfied by the execution and delivery of the deed, are collateral
agreements and are preserved from merger.” Coe v. Crady Davis
Corp., 60 P.3d 794, 796 (Colo. App. 2002); accord Bedard v. Martin,
100 P.3d 584, 593 (Colo. App. 2004). The 2012 joint tenancy deed,
therefore, extinguished only husband’s obligation to transfer to wife
title and ownership in the Ignacio home. The other provisions of
9 the premarital agreement survived the 2012 deed, which, as
relevant in this case, included the provision directing that each
party retains any separate property.
¶ 19 After wife received her full ownership interest in the Ignacio
home, she executed the 2016 deed, which transferred her
ownership interest to husband. Husband then became the 100%
owner of the Ignacio home, and the home was titled solely in his
name. Under the separate property provision in the premarital
agreement, separate property included all “separately titled
property” and “any property acquired by gift” during the marriage.
Applying these plain terms, the Ignacio home was husband’s
separate property following the 2016 deed, and it wasn’t subject to
the court’s division in the dissolution case. See § 14-10-113(1),
(2)(d), C.R.S. 2024; see also Ad Two, Inc. v. City & Cnty. of Denver, 9
P.3d 373, 376 (Colo. 2000) (construing the terms of an agreement in
accordance with their plain and generally accepted meanings).
And, contrary to wife’s claim, husband did not raise this plain
language argument for the first time in his reply. He included it in
the Rule 56(h) motion, wife had an opportunity to respond to it, and
it was proper for the court’s consideration.
10 ¶ 20 Wife also argues that husband argued for the first time in his
reply to the Rule 56(h) motion that he was entitled to a
determination as a matter of law because she had waived her right
to seek performance of the Ignacio home provision and that the
court may have improperly relied on this additional argument. But,
in requesting the court to vacate the hearing on the parties’
motions, wife “agree[d] that the Court [could] rule based upon the
briefing submitted by the parties.” She didn’t object to any new
argument in the reply brief or ask for the opportunity to respond to
any such argument. Regardless, given our conclusion that the
court properly determined that the Ignacio home was husband’s
separate property under the merger doctrine, a plain reading of the
premarital agreement, and the undisputed facts concerning the
transfer of the Ignacio home’s title, we don’t need to address
whether the court erred by apparently accepting the alternative
waiver argument. Cf. Whiting-Turner Contracting Co. v. Guarantee
Co. of N. Am. USA, 2019 COA 44, ¶¶ 32-33 (declining to address one
basis for the court’s ruling when the court properly entered
judgment on an alternative basis).
11 ¶ 21 In sum, we conclude that the court made sufficient findings to
explain its Rule 56(h) order and did not err by concluding that the
Ignacio home was husband’s separate property.
III. Due Process
¶ 22 Wife next contends that the district court violated her due
process rights. We consider and reject her contentions.
A. Governing Legal Standards
¶ 23 Due process requires a party to be provided with a meaningful
opportunity to be heard. In re Marriage of Hatton, 160 P.3d 326,
329 (Colo. App. 2007). The essence of due process is fundamental
fairness. Van Sickle v. Boyes, 797 P.2d 1267, 1273 (Colo. 1990). It
therefore “is flexible and calls for such procedural protections as the
particular situation demands.” Morrissey v. Brewer, 408 U.S. 471,
481 (1972); accord Van Sickle, 797 P.2d at 1273.
¶ 24 We review de novo whether a party was accorded sufficient
due process. See People in Interest of R.J.B., 2021 COA 4, ¶ 26.
B. Husband’s Reply to the Rule 56(h) Motion
¶ 25 In addition to her arguments above, wife contends that she
was denied due process because the “court may have relied on new
12 arguments in [h]usband’s reply without allowing [her] the chance to
respond.” We disagree.
1. Applicable Law
¶ 26 A court generally should not base its ruling on an argument to
which the opposing party wasn’t given the opportunity to respond.
See Krol v. CF & I Steel, 2013 COA 32, ¶ 36; Wallman v. Kelley, 976
P.2d 330, 334 (Colo. App. 1998).
2. Plain Language Argument
¶ 27 As mentioned above, wife claims that husband first made his
argument that the plain language of the premarital agreement
established that the Ignacio home was his separate property in his
reply in support of his Rule 56(h) motion. Although husband
placed this plain language argument under a separate heading for
the first time in his reply, he first raised it in his Rule 56(h) motion.
Wife therefore had a meaningful opportunity to address this
argument, but she chose not to. See In re Marriage of Yates, 148
P.3d 304, 310 (Colo. App. 2006) (a spouse wasn’t denied due
process when the spouse’s inability to fully present their case was
attributable to their attorney’s choices).
13 3. Waiver Argument
¶ 28 Wife also claims that she wasn’t given an opportunity to
respond to husband’s argument that she had waived her right to
seek performance of the premarital agreement’s provision on the
Ignacio home by executing the 2016 deed. This was so because, in
wife’s view, husband raised it for the first time in his reply to the
Rule 56(h) motion. However, that wasn’t the first time husband
asserted the argument.
¶ 29 The parties briefed the Rule 56(h) motion simultaneously with
wife’s motion to exclude parol evidence related to the premarital
agreement. In husband’s response to the parol evidence motion,
which he filed before wife responded to the Rule 56(h) motion, he
argued that wife’s actions demonstrated “her waiver of any claims
regarding” the terms of the agreement relating to the Ignacio home.
In making that argument, he referred to his Rule 56(h) motion.
Given the overlap in the parties’ motions, wife had notice of the
argument and could have responded to it in her response to the
Rule 56(h) motion. She also could have addressed it in her reply to
her parol evidence motion, but she didn’t. Moreover, as noted
above, wife agreed that the court could decide the Rule 56(h) motion
14 “based upon the briefing submitted by the parties,” and she had
another opportunity to address this issue at the scheduled hearing,
but she instead agreed to have the court vacate that hearing. See
Yates, 148 P.3d at 310.
¶ 30 But even if wife wasn’t afforded a full opportunity to respond,
she does not make an adequate showing of prejudice to warrant
reversal. As explained above, the court properly entered the ruling
in husband’s favor on the alternative basis for relief, and wife had a
full opportunity to respond to those arguments. See People in
Interest of J.A.S., 160 P.3d 257, 262 (Colo. App. 2007) (a party
generally may not obtain relief on a due process claim absent a
showing of harm or prejudice).
¶ 31 We therefore disagree with wife that her due process rights
were violated by the court’s possible consideration of arguments
purportedly raised for the first time in husband’s reply to the Rule
56(h) motion.
C. Wife’s Opportunity to File Responses to Motions
¶ 32 Wife next contends that the court reversibly erred by ruling on
two of husband’s motions without affording her adequate time to
respond. We disagree.
15 1. Applicable Law
¶ 33 Unless otherwise ordered, a district court must give a
nonmoving party twenty-one days to file a response or objection to a
motion, or if the motion is filed within forty-two days of the trial, the
nonmoving party shall be given fourteen days to respond to the
motion. C.R.C.P. 121 § 1-15(1)(b).
2. Motion Seeking Permission to File the Rule 56(h) Motion
¶ 34 At the permanent orders hearing, husband’s counsel informed
the court that, given the continuation of the hearing, husband
intended to file a Rule 56(h) motion concerning the characterization
of the Ignacio home. Wife’s counsel objected and argued that
husband needed the court’s permission to file that motion. See
C.R.C.P. 16.2(c)(4)(B). Counsel also told the court that if husband
filed a request, wife did not “need more than seven days” to
respond. After the hearing, husband filed his request, and the
court granted it nine days later.
¶ 35 Although wife complains that she wasn’t given the full twenty-
one days to respond to husband’s request to file a Rule 56(h)
motion, her attorney told the court that wife would file such a
response within seven days. After those seven days passed without
16 a response from wife, the court granted husband’s request. See In
re Marriage of Evans, 2021 COA 141, ¶ 24 (“Waiver is the
intentional relinquishment of a known right; it may be express, as
when a party states its intent to abandon an existing right, or
implied, as when a party engages in conduct which manifests an
intent to relinquish the right or acts inconsistently with its
assertion.”).
¶ 36 At any rate, we disregard an error or defect in the proceeding
that doesn’t affect the parties’ substantial rights. See C.A.R. 35(c);
see also J.A.S., 160 P.3d at 262. “A party’s substantial right is one
that relates to the subject matter and not to a matter of procedure
or form.” Union Ins. Co. v. Hottenstein, 83 P.3d 1196, 1199 (Colo.
App. 2003). Even if wife wasn’t given the full time to respond to
husband’s request, the court’s ruling merely granted husband
permission to file his Rule 56(h) motion. Wife still had the
opportunity to respond to the merits of husband’s Rule 56(h)
motion, and the court considered her response to that motion when
it rendered its Rule 56(h) order. Thus, even if we assume, without
deciding, that the court erred, we aren’t persuaded that the error
warrants reversal.
17 3. Motion to Vacate the Permanent Orders Hearing
¶ 37 After the court issued its Rule 56(h) order, husband filed an
expedited motion to vacate the rescheduled permanent orders
hearing. Husband explained that the sole disputed issue for the
court to resolve at the previously scheduled permanent orders
hearing was whether the Ignacio home was his separate property,
the Rule 56(h) order had since resolved that issue, and no disputed
issues remained for the court at the rescheduled permanent orders
hearing. Fourteen days later, the court granted the motion.
¶ 38 Even if the court vacated the hearing before affording wife the
full time to respond, nothing remained for the court to decide at the
permanent orders hearing following its Rule 56(h) order and the
parties’ previous agreements on the limited scope of the dissolution
proceeding. Still, wife suggests that the court had not yet resolved
“the merits of the case” until it ruled on the motion to vacate and
that she could have presented additional arguments to contest the
Rule 56(h) order at the rescheduled hearing. While the court
expanded on its explanation for the Rule 56(h) order when it
vacated the rescheduled permanent orders hearing, nothing in the
record shows that it was still considering the merits of that issue.
18 The court merely clarified that it had accepted the legal arguments
presented by husband. And wife doesn’t explain why the
permanent orders hearing was necessary for her to contest the
court’s Rule 56(h) order.
¶ 39 Thus, any error in the court’s premature ruling on the motion
to vacate permanent orders doesn’t require reversal. See C.A.R.
35(c); Union Ins. Co., 83 P.3d at 1199; see also J.A.S., 160 P.3d at
262.
D. Presentation of Evidence
¶ 40 Husband testified at the initial permanent orders hearing, and
the court admitted a few of his exhibits. Wife argues that husband
then used those exhibits and an excerpt of wife’s deposition in
support of his Rule 56(h) motion, but that she was not afforded the
same opportunity to present evidence because the court continued
the hearing before she could cross-examine husband or present her
own testimony and exhibits. She claims that this procedure denied
her an opportunity to be heard on the Rule 56(h) motion and
violated her due process rights. We aren’t persuaded.
¶ 41 While husband provided limited testimony and the court
admitted some exhibits, the evidence husband relied on in support
19 of his Rule 56(h) motion concerned matters of fact that were
generally undisputed. Indeed, the exhibits attached to his motion
included evidence on the provisions of the premarital agreement
and the transfer of title on the Ignacio home. In any event, if wife
wanted to present any additional evidence with her response to
husband’s Rule 56(h) motion, she could have done so. Cf. C.R.C.P.
56(h) (noting the availability of an affidavit to support a motion for a
determination of law). Her decision not to present evidence in
support of her response to the Rule 56(h) motion doesn’t mean she
was denied due process. See Yates, 148 P.3d at 310.
IV. Appellate Attorney Fees
¶ 42 Husband requests an award of appellate attorney fees under
section 13-17-102, C.R.S. 2024, arguing that wife’s appeal was
“stubbornly litigious.” Attorney fees under section 13-17-102
“should be awarded only in clear and unequivocal cases when the
appellant presents no rational argument, or the appeal is
prosecuted for the purpose of harassment or delay.” In re Marriage
of Boettcher, 2018 COA 34, ¶ 38, aff’d, 2019 CO 81. While wife’s
appeal was unsuccessful, we don’t agree with husband that it
20 warrants an award of attorney fees. We therefore deny husband’s
request.
V. Disposition
¶ 43 The judgment is affirmed.
JUDGE BROWN and JUDGE YUN concur.