23CA0837 Marriage of Smith 11-27-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA0837 Boulder County District Court No. 20DR30188 Honorable Thomas F. Mulvahill, Judge
In re the Marriage of
Sarah Bland Smith,
Appellee and Cross-Appellant,
and
James F. Butterworth,
Appellant and Cross-Appellee.
ORDERS AFFIRMED, ORDER REVERSED, AND CASE REMANDED WITH DIRECTIONS
Division I Opinion by JUDGE LIPINSKY J. Jones and Sullivan, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced November 27, 2024
Caplan and Earnest, LLC, Andrew C. Littman, Craig A. Weinberg, Boulder, Colorado, for Appellee and Cross-Appellant
Cox Baker Page & Bailey, LLC, James S. Bailey, Lone Tree, Colorado, for Appellant and Cross-Appellee ¶1 James F. Butterworth (husband) appeals the district court’s
orders entering judgment against him in the amount of $177,873
and denying his motion for a declaratory judgment. Sarah Bland
Smith (wife) cross-appeals the court’s order entering judgment
against her in the amount of $44,524. We affirm the orders that
husband appeals, reverse the order that wife cross-appeals, and
remand the case for further proceedings on wife’s request for an
award of the appellate attorney fees she incurred in challenging the
$44,524 judgment.
I. Relevant Facts and Procedural History
¶2 The parties stipulated to the appointment of former district
court judge William G. Meyer as the private judge in their
dissolution of marriage case, pursuant to section 13-3-111(1),
C.R.S. 2024, and C.R.C.P. 122(a)(1). Judge Meyer presided over the
dissolution proceedings, including the hearing on permanent
orders.
¶3 Approximately five months after the permanent orders
hearing, Judge Meyer dissolved the marriage and entered
permanent orders dividing the parties’ $49.5 million marital estate.
As relevant here, Judge Meyer equally divided (1) a JP Morgan cash
1 and investment account (the JP Morgan account), with a value of
more than $17 million; and (2) the parties’ anticipated 2020 tax
refund, with an estimated value of more than $400,000. Judge
Meyer also allocated to wife (1) a Charles Schwab cash and
investment account (the Schwab account), with a value of nearly
$350,000; and (2) Rhizone Ventures, Ltd. (Rhizone), including
approximately $5 million of the private equity interests held by
Rhizone.
¶4 Husband and wife both moved for post-trial relief under
C.R.C.P. 59 and 60, asking for amendments and corrections to the
permanent orders. Among other issues, husband asserted that,
between the time of the permanent orders hearing and the entry of
the decree, the parties had spent or otherwise transferred to their
individual accounts more than $1 million from the JP Morgan
account and another joint account. He argued that Judge Meyer
should amend the permanent orders to balance their post-hearing
spending and transfers and that, based on his accounting, Judge
Meyer should direct wife to make an equalization payment to
husband in the amount of $44,524. Husband also informed Judge
Meyer that he had received the parties’ 2020 tax refund, in the
2 amount of $355,748, which he had deposited into the JP Morgan
account.
¶5 Husband further asserted that his accounting of the post-
hearing transfers reflected his transfer of $247,107 (including his
half of the 2020 tax refund) from the JP Morgan account to the
Schwab account. Husband said that the $44,524 equalization
payment he was requesting from wife was conditioned on Judge
Meyer’s amendment of the allocation of the Schwab account.
Husband requested that he be permitted to retain the $247,107.
¶6 In October 2022, Judge Meyer issued an order (the October
2022 order) resolving the parties’ C.R.C.P. 59 and 60 motions. In
the October 2022 order, Judge Meyer directed wife to pay husband
$44,524 to balance the parties’ post-hearing spending and
transfers. Judge Meyer also determined that husband was entitled
to $247,107 in the Schwab account and that he could either receive
these funds or use them to offset a portion of the $500,711 he owed
wife to equalize the allocation of the marital estate.
¶7 Husband appealed the permanent orders judgment, and a
division of this court affirmed. See In re Marriage of Smith, 2024
COA 95, ¶¶ 1, 83, ___ P.3d ___, ___. In December 2022, Judge
3 Meyer issued an order (the first December 2022 order) allocating
the right to claim the children as dependents for tax purposes. In
addition, in response to the parties’ emails following the entry of the
October 2022 order, Judge Meyer issued an order (the second
December 2022 order) declining to revisit the permanent orders.
¶8 Wife then filed a C.R.C.P. 70 motion (the C.R.C.P. 70 motion),
arguing that husband had not executed the necessary documents
to assign the Schwab account and Rhizone to her. In February
2023, Judge Meyer entered an order (the February 2023 order)
directing the clerk of court to execute those documents on
husband’s behalf.
¶9 Wife also filed a motion for entry of a judgment against
husband in the amount of $177,873, which represented her share
of the 2020 tax refund that she had not received from husband.
¶ 10 Husband later moved for entry of a declaratory judgment
determining that Judge Meyer’s appointment had ended upon his
resolution of the parties’ post-trial motions and that he lacked
jurisdiction to issue any orders, including orders for “enforcement
remedies,” following the entry of the October 2022 order.
4 ¶ 11 Six days after husband filed his declaratory judgment motion,
Judge Meyer voluntarily resigned from his appointment. An active
judge on the district court then granted wife’s motion for entry of
judgment against husband in the amount of $177,873. The court
also denied husband’s declaratory judgment motion.
¶ 12 Husband filed a motion for post-trial relief from the $177,873
judgment under C.R.C.P. 59, 60, and 121. The court denied the
motion.
¶ 13 Husband also moved for entry of a judgment against wife in
the amount of $44,524, arguing that she owed him that sum under
the October 2022 order. The court granted the motion, and it later
denied wife’s request to alter or amend the judgment.
II. Husband’s Appeal
¶ 14 Husband appeals (1) the $177,873 judgment entered against
him and (2) the denial of his motion for a declaratory judgment
regarding Judge Meyer’s jurisdiction.
A. The $177,873 Judgment Against Husband
¶ 15 Husband contends that the court misinterpreted Judge
Meyer’s amended permanent orders when it entered the $177,873
judgment against him. He specifically argues that, in the October
5 2022 order, Judge Meyer granted his request to balance the parties’
post-hearing spending and transfers, and directed wife to pay
husband $44,524. Husband claims that, by doing so, Judge Meyer
necessarily concluded that the allocation of wife’s share of the tax
refund to her had been satisfied because husband had accounted
for the allocation of the 2020 tax refund when husband determined
that wife owed him $44,524. He argues that Judge Meyer
determined that wife received her share of the tax refund and the
court’s later entry of judgment improperly modified the permanent
orders. Wife responds that husband did not preserve these
arguments for our review. We agree with wife and decline to review
husband’s unpreserved contention.
¶ 16 “Our judicial system depends upon the orderly presentation
and preservation of issues.” Melat, Pressman & Higbie, L.L.P. v.
Hannon Law Firm, L.L.C., 2012 CO 61, ¶ 18, 287 P.3d 842, 847. A
party’s mere opposition to another party’s request does not permit
the party to seek all potential avenues for relief on appeal.
Valentine v. Mountain States Mut. Cas. Co., 252 P.3d 1182, 1188 n.4
(Colo. App. 2011). Rather, the party must have brought the specific
issue to the district court’s attention and provided the court with an
6 opportunity to rule on it. In re Marriage of Pawelec, 2024 COA 107,
¶ 38, ___ P.3d ___, ___. Arguments not raised in or decided by the
district court will not be addressed for the first time on appeal.
Melat, Pressman & Higbie, ¶ 18, 287 P.3d at 847; see also Valentine,
252 P.3d at 1188 n.4 (“We review only the specific arguments a
party pursued before the district court.”).
¶ 17 An appellant’s opening brief must state whether a contention
raised on appeal was preserved in the district court and, if so, give
us “the precise location in the record where the issue was raised
and where the court ruled.” C.A.R. 28(a)(7)(A); see O’Quinn v. Baca,
250 P.3d 629, 631 (Colo. App. 2010). The appellate rules are not
mere technicalities; they are essential to the administration of
justice. O’Quinn, 250 P.3d at 631.
¶ 18 Husband asserted that he preserved his appellate arguments
challenging the $177,873 judgment by timely objecting to wife’s
request for entry of judgment. To support his preservation claim,
he directed us to a single page in the record — the first page of his
response (the C.R.C.P. 70 response) to wife’s C.R.C.P. 70 motion.
However, in the C.R.C.P. 70 response, husband addressed wife’s
requests concerning the assignment of the Schwab account and
7 Rhizone, but he neither contested wife’s motion for entry of
judgment nor discussed the 2020 tax refund. See C.A.R.
28(a)(7)(A); O’Quinn, 250 P.3d at 631.
¶ 19 After wife pointed out that husband’s citation to the first page
of the C.R.C.P. 70 response did not support husband’s preservation
claim, husband said that his citation to a single page in the record
was an “oversight,” and he directed us to the pages of the record
where he responded to wife’s motion for entry of judgment.
However, a review of this response does not support husband’s
claim of preservation either.
¶ 20 In her motion for entry of judgment, wife asked the court to
enter a judgment in the amount of $177,873 for her share of the
2020 tax refund and an additional judgment in the amount of
$456,187 for the money husband still owed her to equalize the
allocation of the marital estate. In his response to the motion for
entry of judgment, husband argued that wife’s motion was an
improper request to modify the court’s permanent orders and that
husband’s pending appeal of the permanent orders judgment
deprived the court of jurisdiction to modify any aspect of it.
8 ¶ 21 Husband’s argument in the response focused entirely on wife’s
request for the $456,187 judgment related to the unpaid
equalization payment and wife’s corresponding attempt to receive
the funds in the Schwab account as partial payment on that
judgment. He did not argue in his response, as he does now, that
the October 2022 order accounted for wife’s share of the 2020 tax
refund when the court directed wife to pay husband $44,524 to
balance the parties’ post-hearing spending and transfers. Nor did
he argue in the response that the $177,873 judgment was
unwarranted because wife had already received her share of the
2020 tax refund. Thus, husband never alerted the court to these
issues, and he never gave it an opportunity to rule on the issues
before it entered the $177,873 judgment against husband. See
Melat, Pressman & Higbie, ¶ 18, 287 P.3d at 847; Valentine, 252
P.3d at 1188 n.4.
¶ 22 Still, husband argues that, following the court’s entry of the
$177,873 judgment, he raised the “sum and substance” of his
appellate arguments regarding the $177,873 judgment in his
motion for C.R.C.P. 59, 60, and 121 relief, and that this post-trial
motion preserved the issues for appeal. But “[a]rguments made . . .
9 for the first time in a post-trial motion are too late and,
consequently, are deemed waived for purposes of appeal.” Briargate
at Seventeenth Ave. Owners Ass’n v. Nelson, 2021 COA 78M, ¶ 66,
494 P.3d 1149, 1158; see also People v. Schaufele, 2014 CO 43,
¶ 49, 325 P.3d 1060, 1069-70 (Boatright, J., concurring in the
judgment) (“Motions for reconsideration are designed to correct
erroneous court rulings; they are not designed to allow parties to
present new legal arguments for the first time and then appeal their
denial . . . .”). Thus, husband’s post-trial motion did not preserve
his arguments regarding the $177,873 judgment for appellate
review. See Briargate, ¶ 66, 494 P.3d at 1158.
¶ 23 To the extent husband further argues that the court erred by
denying his C.R.C.P. 59, 60, and 121 motion as moot, we may
affirm a court’s ruling on any basis supported by the record. See
Million v. Grasse, 2024 COA 22, ¶ 29, 549 P.3d 1043, 1049. And as
noted, arguments raised for the first time in a post-trial motion are
presented too late to serve as the basis for relief on appeal. See
Briargate, ¶ 66, 494 P.3d at 1158.
¶ 24 Husband therefore did not adequately preserve his arguments
concerning the $177,873 judgment, and we will not address them
10 for the first time on appeal. See Melat, Pressman & Higbie, ¶ 18,
287 P.3d at 847; Valentine, 252 P.3d at 1188 n.4. (Husband
further asserts in his opening brief that wife’s motion for entry of
judgment did not include any rule or case law supporting wife’s
request for relief. Although husband raised a similar argument in
his response to the motion for entry of judgment, we do not address
the argument on appeal because husband does not support it with
any meaningful legal analysis. See In re Marriage of Zander, 2019
COA 149, ¶ 27, 486 P.3d 352, 357, aff'd, 2021 CO 12, ¶ 27, 480
P.3d 676.)
B. Judge Meyer’s Authority
¶ 25 Husband next contends that the court incorrectly denied his
motion for a declaratory judgment. He argues that, under the plain
language of the parties’ stipulation, Judge Meyer’s appointment did
not extend beyond his ruling on the parties’ C.R.C.P. 59 and 60
motions concerning the permanent orders. Thus, he argues that
the court erred by not concluding that Judge Meyer’s orders entered
after October 2022 were void. We discern no error.
11 1. Standard of Review
¶ 26 We review for an abuse of discretion a court’s ruling on a
request for entry of a declaratory judgment. See Nash v. Mikesell,
2024 COA 68, ¶ 15, 557 P.3d 369, 374. However, when the court’s
decision relies on its interpretation of an agreement or concerns a
judge’s authority to preside over a proceeding, we review the court’s
determination de novo. See Markwell v. Cooke, 2021 CO 17, ¶ 22,
482 P.3d 422, 426; Egelhoff v. Taylor, 2013 COA 137, ¶ 27, 312
P.3d 270, 274.
2. Discussion
¶ 27 Upon the parties’ agreement, the chief justice may appoint a
retired judge to preside over a dissolution case. § 13-3-111(1);
C.R.C.P. 122(a)(1). The appointed judge “shall preside over all
matters throughout the duration of the appointment.” C.R.C.P.
122(j). The judge’s “appointment shall last for so long as the parties
specify in the motion and order of appointment.” C.R.C.P. 122(d).
¶ 28 Husband and wife agreed that Judge Meyer would “preside
over the issues in [their] dissolution of marriage action, through
and including the permanent orders hearing, and all issues
inherent therein, both procedural and substantive.” They further
12 agreed that the “duration of Judge Meyer’s appointment shall be
until the entry of [p]ermanent [o]rders and a [d]ecree of [d]issolution
of [m]arriage, including ruling on any post-trial motions, if any,
related to the [p]ermanent [o]rders.” (Emphasis added.)
¶ 29 The court concluded that, under the terms of the appointment,
Judge Meyer had jurisdiction over all matters inherent in the
implementation of the permanent orders. It determined that Judge
Meyer’s post-October 2022 orders were rulings on post-trial
motions related to the permanent orders and, for that reason, they
fell within Judge Meyer’s jurisdiction.
¶ 30 According to husband, the court interpretated the phrase “any
post-trial motions . . . related to the [p]ermanent [o]rders” too
broadly. He acknowledges that the parties’ agreement did not
define this phrase, but he argues that, under “a more reasoned”
interpretation, Judge Meyer’s jurisdiction was limited to rulings on
C.R.C.P. 59 and 60 motions related to the permanent orders.
¶ 31 The primary goal when interpreting an agreement is to
determine and give effect to the parties’ intent based primarily on
the plain and ordinary language of the agreement. Ad Two, Inc. v.
City & Cnty. of Denver, 9 P.3d 373, 376 (Colo. 2000). If
13 unambiguous, the court does not look beyond the terms of the
agreement. Id. at 376-77. But the court may consider extrinsic
evidence to determine the parties’ intent if the language is
ambiguous. Id. at 376.
¶ 32 The plain language of the parties’ stipulation broadly extended
Judge Meyer’s appointment to “any post-trial motions . . . related to
[p]ermanent [o]rders.” A post-trial motion generally means a
“motion made after judgment is entered.” Black’s Law Dictionary
1213, 1414 (12th ed. 2024); see also Renfandt v. N.Y. Life Ins. Co.,
2018 CO 49, ¶ 18, 419 P.3d 576, 580 (“When determining the plain
and ordinary meaning of words, we may consider definitions in a
recognized dictionary.”). Moreover, “any” is an inclusive term
commonly understood to mean “without limitation or restriction.”
See Nat’l Farmers Union Prop. & Cas. Co. v. Estate of Mosher, 22
P.3d 531, 534 (Colo. App. 2000). And “related to” encompasses all
issues surrounding the underlying subject. In re Estate of Gattis,
2013 COA 145, ¶ 40, 318 P.3d 549, 558. Thus, the ordinary
meaning of “any post-trial motions . . . related to [p]ermanent
[o]rders” is any motion filed after the entry of judgment that
encompass issues surrounding the permanent orders. Had the
14 parties intended to limit the meaning of this phrase to C.R.C.P. 59
and 60 motions, they could have said so in their stipulation. But
they did not do so.
¶ 33 Husband suggests that such a broad interpretation means
that Judge Meyer’s appointment could last indefinitely and that
such an interpretation is contrary to the “clearly contemplated . . .
finite end” to a judge’s appointment under C.R.C.P. 122. But
contrary to his suggestion, C.R.C.P. 122 imposes no direct
requirement that a judicial appointment under that rule must end.
Rather, it permits the appointment to “last for so long as the parties
specify.” C.R.C.P. 122(d). Only in the absence of the parties’
specification does the rule address the end of the appointment. Id.
¶ 34 Given the broad language in the stipulated appointment, we
agree with the court that Judge Meyer had jurisdiction to enter the
first December 2022 order. Wife filed her motion to allocate the
right to claim the children as dependents for income tax purposes
after the entry of permanent orders, and her request related to an
issue surrounding the permanent orders — the determination of
child support. See § 14-10-115(12), C.R.S. 2024.
15 ¶ 35 We also agree with the court that Judge Meyer had jurisdiction
to issue the February 2023 order. Husband argues that the
C.R.C.P. 70 motion concerned an enforcement remedy that fell
outside Judge Meyer’s jurisdiction. But wife’s request to have
certain documents executed on husband’s behalf sought to
effectuate Judge Meyer’s allocation of marital assets. A court’s
authority to render a judgment includes the inherent power to
enforce it. See Mulei v. Jet Courier Serv., Inc., 860 P.2d 569, 571
(Colo. App. 1993); In re Marriage of Collins, 2023 COA 116M, ¶ 64,
544 P.3d 1258, 1273 (“The district court is vested with the
authority to enforce its orders concerning the dissolution of a
marriage”). Thus, the C.R.C.P. 70 motion, filed after the entry of
permanent orders, was within Judge Meyer’s broad authority to
rule on “any post-trial motions . . . related to [p]ermanent [o]rders.”
Cf. In re Marriage of Dauwe, 97 P.3d 369, 370 (Colo. App. 2004)
(recognizing that C.R.C.P. 70 allows a court to enforce a prior court
order); Schnier v. Dist. Ct., 696 P.2d 264, 267 (Colo. 1985)
(suggesting that a C.R.C.P. 70 motion can be considered a post-trial
motion).
16 ¶ 36 To the extent husband challenges the second December 2022
order, which Judge Meyer entered in response to the parties’ emails
concerning the October 2022 order and in which he declined to
revisit the amended permanent orders, we again agree with the
court that such ruling fell within Judge Meyer’s broad authority.
Even husband acknowledges that this order “could be construed as
an order on post-trial motions.” But even if we were to assume that
the terms of the stipulated appointment were ambiguous,
husband’s conduct after the entry of the permanent orders also
supports the court’s conclusion that the parties intended Judge
Meyer’s appointment to continue past entry of the October 2022
order. See Blecker v. Kofoed, 672 P.2d 526, 528 (Colo. 1983) (“One
of the most reliable indications of the true intent of the parties to a
contract is their behavior and interpretation of the contract before a
controversy arises.”). Indeed, he (along with wife) directly asked for
further relief from Judge Meyer following entry of the October 2022
order. That further relief included husband’s request for an order
allocating the tax credits or exemptions for the children.
¶ 37 The court therefore did not err by denying husband’s motion
for declaratory judgment.
17 III. Wife’s Cross-Appeal
¶ 38 In her cross-appeal, wife contends that the court erred by
entering the $44,524 judgment against her. (The court’s judgment
against wife included other sums that Judge Meyer awarded to
husband. We do not address the portions of the judgment
awarding those other sums because wife does not challenge them in
this appeal.)
¶ 39 She argues that, in the October 2022 order, Judge Meyer
resolved her obligation to pay the $44,524 to husband by crediting
this amount to him in determining the amount of money husband
owed her to equalize the allocation of the marital estate. Thus, she
argues that the court’s entry of judgment allowed husband to
recover this sum twice.
¶ 40 In response, husband concedes, and we agree, that, in light of
the October 2022 order, the court erred by entering this judgment
against wife. We therefore reverse the court’s entry of the $44,524
judgment against wife and remand for the court to vacate it.
¶ 41 Wife also asks for an award of the attorney fees and costs she
incurred in litigating her cross-appeal. She asserts that husband
obtained the $44,524 judgment against her even though, in the
18 October 2022 order, Judge Meyer undeniably credited this sum to
husband. Wife argues that husband’s defense of the $44,524
judgment in the court and on appeal was frivolous, groundless, and
vexatious, and forced her to incur the expenses associated with her
cross-appeal. She notes, and husband does not dispute, that
husband conceded — only after wife had briefed the issue on cross-
appeal — that the court erred by entering the $44,524 judgment.
¶ 42 A court “shall assess attorney fees” upon a finding that an
attorney or a party “brought or defended an action, or any part of
an action, that lacked substantial justification” or “was interposed
for delay or harassment.” § 13-17-102(4), C.R.S. 2024. An action
lacked substantial justification if it was “substantially frivolous,
substantially groundless, or substantially vexatious.” § 13-17-
102(9)(a).
¶ 43 After the court entered the $177,873 judgment against
husband, he sought the $44,524 judgment against wife. Wife
objected and explained that Judge Meyer had already accounted for
the $44,524 by crediting it against husband’s equalization payment.
Despite her explanation, husband continued to pursue the
judgment, and the court granted his request. Wife sought relief
19 under C.R.C.P. 59 and 60, again explaining that husband had
already received this money in the form of a credit, as specified in
the October 2022 order. Husband said he disagreed, and the court
denied wife relief.
¶ 44 But in response to wife’s cross-appeal, husband changed his
position and says he now agrees that the $44,524 judgment entered
against wife should be set aside. Husband neither explained the
reason for this late concession nor contested wife’s request for an
award of the attorney fees she incurred in challenging the
judgment.
¶ 45 Under these circumstances, we award wife the attorney fees
she incurred in connection with her cross-appeal because
husband’s litigious conduct unjustifiably forced wife to file the
cross-appeal. See Front Range Home Enhancements, Inc. v. Stowell,
172 P.3d 973, 976 (Colo. App. 2007) (“A vexatious claim or defense
is one brought or maintained in bad faith, which includes conduct
that is arbitrary, abusive, stubbornly litigious, aimed at
unwarranted delay, or disrespectful of truth and accuracy.”). We
remand the issue to the court to determine the reasonable amount
20 of the attorney fees to be awarded to wife in connection with her
cross-appeal. See C.A.R. 39.1.
¶ 46 Costs are taxed in accordance with C.A.R. 39(a).
IV. Disposition
¶ 47 We affirm the $177,873 judgment entered against husband
and the court’s order denying husband’s motion for a declaratory
judgment. We reverse the $44,524 judgment entered against wife.
The case is remanded to the court to vacate the $44,524 judgment
and to determine the amount of the attorney fees to be awarded to
wife consistent with this opinion.
JUDGE J. JONES and JUDGE SULLIVAN concur.