24CA0197 Marriage of Johnson 06-26-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA0197 El Paso County District Court No. 00DR4379 Honorable Erin Sokol, Judge
In re the Marriage of
Sherry Xan Johnson,
Appellee and Cross-Appellant,
and
Gregory R. Johnson,
Appellant and Cross-Appellee.
JUDGMENT AFFIRMED, ORDER REVERSED, AND CASE REMANDED WITH DIRECTIONS
Division I Opinion by JUDGE BERNARD* Kuhn and Moultrie, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced June 26, 2025
Law Office of Joel M. Pratt, Joel M. Pratt, Colorado Springs, Colorado, for Appellee and Cross-Appellant
Márquez Law, Jason A. Márquez, Denver, Colorado, for Appellant and Cross- Appellee
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2024. ¶1 Husband, Gregory R. Johnson, appeals the district court’s
judgment denying his motion to convert a decree of legal separation
from his wife, Sherry X. Johnson, into a decree of dissolution of
marriage. Wife cross-appeals the court’s order denying her request
for attorney fees under section 13-17-102, C.R.S. 2024. We affirm
the judgment, we reverse the attorney fees order, and we remand
this case to the district court for the sole purpose of deciding
whether to award wife attorney fees under section 13-17-102,
including her request for appellate attorney fees.
I. Background
A. The Proceedings Between 2000 and 2009
¶2 Husband and wife married in 1993 and had two children, a
daughter in 1996 and a son in 1998. They separated in 1999, and
they filed a petition for a legal separation in 2000. In 2001, the
parties filed a separation agreement that addressed a parenting
plan, child support, spousal maintenance, and the division of
marital property and debt. The judge who was presiding over the
case issued a decree of legal separation.
¶3 While the decree of separation was in effect, husband and wife
attended marriage counseling, and their relationship improved.
1 Husband moved back in with wife some time in 2003 or 2004.
During the time that he lived in the home, husband contributed his
income to the family’s expenses, but he stopped paying wife child
support. They filed their taxes jointly as married, and wife was a
stay-at-home mother.
¶4 Their marital relationship foundered in October 2008, when
husband moved out of the house. He filed three motions: to modify
child support; to appoint a child and family investigator; and to
convert the legal separation decree to a dissolution of marriage
decree. The judge ordered the appointment of a child and family
investigator, but he did not address the other motions.
¶5 Husband and wife went to marriage counseling again, and
their relationship improved. Husband’s attorney filed a status
report in April 2009 indicating that the parties were coordinating
with the child and family investigator and that they had agreed to
be bound by her recommendations.
¶6 As a result of the improvement of the parties’ marital
relationship, husband’s attorney filed a document entitled “Motion
to Dismiss” in May 2009. Among other things, it stated:
2 [Husband] filed his [m]otion to [c]onvert [d]ecree of [l]egal [s]eparation to [d]ecree of [d]issolution of [m]arriage on October 20, 2008.
Since the filing of said [m]otion, the parties have been attending marriage counseling and have reconciled.
For the reasons set forth above, the parties believe it is in their best interest and the best interest of the minor children that their action be dismissed.
Wherefore, [husband] respectfully requests the relief set forth above, and for such other and further relief as this [c]ourt deems just and proper in the premises.
¶7 Weeks later, Judge Kane, a district court judge, granted the
motion, signing the following order that husband had submitted
along with the motion to dismiss:
THIS MATTER, having come before the [c]ourt on [husband’s] [m]otion to [d]ismiss, and the [c]ourt having reviewed the same, and the [c]ourt file, and being otherwise advised in the premises, DOES HEREBY FIND and ORDER as follows: [Husband’s] [m]otion to [d]ismiss is hereby granted.
¶8 Husband did not challenge this order for thirteen years.
B. The Proceedings from 2022 to the Present
¶9 Husband filed a petition of dissolution of marriage in the same
judicial district in December 2022. (Husband states that he did not
3 want to file a new petition, but the court’s clerks could not find this
case, which was the original one.)
¶ 10 This case turned up in February 2023, and husband filed, for
a second time, a motion to convert the separation decree to a
dissolution decree. Wife objected.
¶ 11 After reviewing this motion, the court — with a new judge
presiding over the case — decided that husband’s 2009 motion to
dismiss applied to all of this case, that Judge Kane had dismissed
all of it, and that husband was therefore barred from proceeding
with it.
¶ 12 Husband filed a motion asking for post-trial relief under
C.R.C.P. 59 and 60. The court set aside its order barring husband
from proceeding with this case and set a hearing.
¶ 13 At the hearing, husband, wife, and their son testified. The
court found that the testimony of wife and the son was credible but
that husband’s testimony was often not credible. The court issued
a written ruling on December 17, 2023. That order focused on
three things.
¶ 14 First, the court concluded that the “plain language” of
husband’s motion to dismiss, which was filed on behalf of “both
4 parties,” stated that dismissing the case was “in the parties’ and the
children’s best interests” and that “the parties had reconciled and
attended marriage counseling.” The court added that “[w]ife
testified credibly (while [h]usband’s testimony was incredible) . . .
[and] that the parties understood that the entire case was to be
dismissed.” After the case was dismissed in 2009, “[h]usband
behaved entirely as one would if one had dismissed their action in
its entirety.” The court concluded that (1) the motion to dismiss
was a written agreement to “modify/extinguish” the separation
agreement; (2) Judge Kane “nullified” the separation agreement
when he granted the motion; and therefore, (3) the separation
decree was “vacated,” and “the case was dismissed in its entirety.”
¶ 15 Second, the court concluded that the parties “did not follow
the material terms” of the separation agreement “from 2003 to
present.” According to the court, case law indicated that parties
could abrogate a separation agreement “by failing or choosing not to
follow the terms of the agreement.” The court decided that the
parties in this case did just that.
¶ 16 Third, the court concluded that the doctrine of judicial
estoppel applied. In reaching this conclusion, the court determined
5 that (1) husband had taken two different positions in the same
proceeding, one in 2009 and one in 2023; (2) Judge Kane had
dismissed the entire case in 2009 at husband’s request; and
(3) husband attempted to mislead the court in 2023 about what had
happened between 2009 and 2022.
¶ 17 Two days after the court issued the 2023 order, wife filed an
amended affidavit asking for attorney fees. The court denied that
request, and wife appeals that decision.
II. Husband’s Contentions
¶ 18 Husband offers four reasons why we should reverse the 2023
dismissal order. He contends that the court erred when it
(1) did not enforce the separation decree because the
separation agreement required “a stipulation signed by
both parties to modify” the agreement or set it aside;
(2) decided that Judge Kane’s 2009 order granting
husband’s motion to dismiss had dismissed “the entire
case”;
(3) denied husband’s motion to convert the separation
decree to a dissolution decree; and
6 (4) decided that husband’s motion to convert the separation
decree to a dissolution decree was “precluded by judicial
estoppel.”
¶ 19 As we read the record and husband’s opening brief, it appears
that the first two of these contentions are analytically intertwined.
We therefore resolve them together. In doing so, we conclude that
the court did not err when it decided that Judge Kane had
dismissed the entire case in 2009, including the separation decree
and the separation agreement. This conclusion means the
separation agreement and the separation decree no longer exist.
¶ 20 We therefore do not need to address husband’s third and
fourth contentions because (1) there was no separation decree to
convert into a dissolution decree in 2023, and (2) resolving the
judicial estoppel contention would add nothing to or detract
anything from the conclusions that we reach concerning the first
two contentions.
A. Standard of Review and General Legal Principles
¶ 21 When we interpret a trial court’s order and any writing, such
as husband’s 2009 motion to dismiss, we do so de novo, applying
principles of contract interpretation. See Blecker v. Kofoed, 672
7 P.2d 526, 528 (Colo. 1983). Our primary goal is to determine the
intent of the drafter of a motion and of the court that granted the
order. See Sch. Dist. No. 1 v. Denver Classroom Tchrs. Ass’n, 2019
CO 5, ¶ 12.
¶ 22 We determine intent primarily from the document’s language.
Id. We focus on the words used in the motion and in the order. See
Cheyenne Mountain Sch. Dist. No. 12 v. Thompson, 861 P.2d 711,
715 (Colo. 1993). We construe them “in harmony with th[eir] plain
and generally accepted meaning . . . and by reference to” all the
document’s provisions and the nature of the case that “forms its
subject matter.” Id. (citation omitted). We may consult recognized
dictionaries to give words their “plain and ordinary meaning[s].”
Renfandt v. N.Y. Life Ins. Co., 2018 CO 49, ¶ 18.
¶ 23 If, after construing the language of a motion and the order
granting it, we decide that the motion and the order are not
ambiguous, then we will enforce them as written. See Sch. Dist. No.
1, ¶ 13. But, if they are “fairly susceptible to more than one
interpretation,” they are ambiguous, and their meaning is “generally
an issue of fact to be determined in the same manner as other
8 disputed factual issues.” Id. (quoting Dorman v. Petrol Aspen, Inc.,
914 P.2d 909, 912 (Colo. 1996)).
B. Analysis
¶ 24 Looking at the plain language of the 2009 motion to dismiss
and of the order granting it, we conclude, for the following reasons,
that these two documents are not ambiguous and that the record
supports the court’s decision to enforce them as written. See id.
¶ 25 The words that the 2009 motion to dismiss and the order
granting it used are categorical.
¶ 26 The word “dismiss” means, “to terminate (an action or claim)
without further hearing.” Black’s Law Dictionary 589 (12th ed.
2024).
¶ 27 An “action” is a “civil or criminal judicial proceeding”; an
“‘[a]ction’ in the sense of a judicial proceeding includes . . . any
other proceeding in which rights are determined.” Id. at 36. “An
‘action’ refers to the whole of the lawsuit.” Brownback v. King, 592
U.S. 209, 220 (2021)(Sotomayor, J., concurring). The concept that
an “action” means the entire case is supported by the Colorado
Rules of Civil Procedure. See, e.g., C.R.C.P. 2 (“There shall be one
form of action to be known as ‘civil action.’”); C.R.C.P. 3(a)(“A civil
9 action is commenced . . . by filing a complaint with the court . . . .”);
C.R.C.P. 41 (entitled “Dismissal of Actions”); see also Chirinos-
Raudales v. People, 2023 CO 33, ¶ 19 (applying the definition of
“action” found in Black’s Law Dictionary).
¶ 28 The 2009 motion to dismiss and the court’s order granting it
are clear. Putting the words “dismiss” and “action” together, the
motion to dismiss asked the court to terminate the judicial
proceeding, the whole of the lawsuit. The order granted that
request.
¶ 29 Husband submits that “action,” a word that his motion to
dismiss used, only meant that he was asking the court to dismiss
the three motions that he had previously filed and that were
pending. He adds that neither the parties nor the judges dealing
with the case in 2009 referred to it as an “action”; rather, they used
words such as “case” and “matter.”
¶ 30 But husband’s submission is a red herring. As we have
demonstrated, the word “action” is broad and all-encompassing
when it comes to the entirety of a case. And it appears in context
with language that supports such a broad definition. For example,
the motion stated that the parties had “attend[ed] marriage
10 counseling and ha[d] reconciled.” It was, therefore, in their best
interests, and in the best interests of their children, that “their
action be dismissed.” In other words, the benefits of the parties’
reconciliation provided a reason to end the whole lawsuit. If
husband had merely wanted the court to defer a court decision on
the three motions that he had filed in 2009, he could have said so.
¶ 31 Next, husband asserts that, to dismiss the entire case,
C.R.C.P. 41 required him and wife to file a signed stipulation. But
C.R.C.P. 41(a)(1), which addresses voluntary dismissals, simply
states that such stipulations are one way, among several, to
dismiss a case. It also makes clear that such dismissals are
“without order of court.” Id.
¶ 32 It appears to us that, contrary to husband’s assertion, the
2009 dismissal order occurred under C.R.C.P. 41(a)(2). This
subsection of the Rule reads that “an action shall not be dismissed
at the plaintiff’s instance save upon order of the court and upon
such terms and conditions as the court deems proper.”
¶ 33 Relatedly, husband contends that the 2009 dismissal order
could not dismiss the separation decree or the separation
agreement because the decree did not provide for such a possibility.
11 Husband points to the separation agreement, which states that it is
not “modifiable except by its own terms, or by operation of law, or
by written [a]greement of the parties with approval of the [c]ourt.”
He adds that none of those things happened.
¶ 34 But at least one of them did.
¶ 35 The court determined that the 2009 motion to dismiss was a
written agreement of the parties that was approved by a judge. The
language of the motion supports that interpretation. For example,
it states that “the parties believe it is in their best interest and the
best interest of the minor children that their action be dismissed.”
(Emphasis added.) And, while neither husband nor wife signed the
motion, it was signed and filed by husband’s attorney on husband’s
behalf, thus announcing husband’s desire to dismiss the case.
¶ 36 Husband adds that “the dismissal could not be granted under
C.R.C.P. 41(a)(2)” because Judge Kane could not “set aside” the
separation agreement or the separation decree “without determining
that such terms and conditions were proper at that time.” But
Judge Kane made such a determination. The motion to dismiss
informed him that the parties had reconciled and that “the parties
believe[d] it [wa]s in their best interest and the best interest of the
12 minor children that their action be dismissed.” The motion
therefore indicated that the parties thought, when the motion was
filed, that the separation agreement and the separation decree
should no longer apply to their relationship.
¶ 37 In his answer-reply brief, husband contends, for the first time,
that, once the separation decree was entered as a “final judgment”
in 2001, “the entire case could not be dismissed” and that Judge
Kane could not “set aside [the] decree.” He adds that the separation
decree was a “final judgment” because “[n]either party appealed” it.
We do not consider contentions raised for the first time in a reply
brief. Meadow Homes Dev. Corp. v. Bowens, 211 P.3d 743, 748
(Colo. App. 2009).
¶ 38 Even if we assume, for purposes of discussion, that the 2009
motion to dismiss and the order dismissing it are ambiguous on the
issue of whether the order dismissed the separation agreement and
the separation decree, we conclude that the record supports the
court’s determination that the parties’ conduct abrogated the
agreement and the decree.
¶ 39 “The rule is that, upon reconciliation, agreements pertaining to
separation and support are abrogated, provided the reconciliation is
13 intended to be permanent,” with the general exception that
“reconciliation does not automatically terminate property settlement
agreements.” Larson v. Goodman, 475 P.2d 712, 713 (Colo. App.
1970). “The logic of this concept is compelling.” Weiner v. Weiner,
293 A.2d 229, 231 (N.J. Super Ct. Ch. Div. 1972), aff’d, 313 A.2d
222 (N.J. Super Ct. App. Div. 1974). “Public policy favors
preservation of the marriage. Terminating future obligations under
a separation agreement upon reconciliation helps to restore the
previous relationship of the parties . . . .” Id. “Thus, normal
cohabitation, as a matter of public policy[,] will terminate any future
obligation contained in a separation agreement.” Id.
¶ 40 “The question of whether or not reconciliation affects a
property settlement agreement is a question of fact to be determined
by the evidence.” Larson, 475 P.2d at 713.
¶ 41 After reviewing the evidence, the court decided that, once
Judge Kane granted the 2009 motion to dismiss, husband’s and
wife’s conduct showed that they had reconciled and that they had
abandoned the separation agreement and the separation decree. In
reaching that decision, the court repeatedly found that wife was
credible and that husband was not credible.
14 ¶ 42 The court pointed to a variety of factors occurring over the
thirteen years between 2009 and 2022 indicating that husband and
wife intended their reconciliation to be permanent. See id. For
example, husband moved back into the family home, he had his
name added to the home’s title, and he kept his personal property
there. He received the tax benefits accruing to a married couple,
and he “shared finances” with wife. He lived in a “marital
relationship” in which he had sexual relations with wife. He used
the family car. He did not have to pay child support for his
children. The family went on vacations. Husband and wife
celebrated anniversaries. They held themselves out to the public as
being married, including wearing wedding rings. Husband wanted
to be involved in his children’s lives, and he and wife acted as
parents to the children. Indeed, the court found that the parties’
son testified credibly that husband, wife, and the children lived and
acted as an intact family, not as a separated one.
¶ 43 Evidence in the record supports all these factual findings. We
therefore cannot disturb them. See Schempp v. Lucre Mgmt. Grp.,
LLC, 75 P.3d 1157, 1161-62 (Colo. App. 2003).
15 III. Wife’s Cross-Appeal
¶ 44 Wife asserts in her cross-appeal that the court erred when it
denied her request for attorney fees under section 13-17-102. We
agree.
A. Additional Background
¶ 45 In her joint trial management certificate, wife argued that she
was entitled to attorney fees under sections 14-10-119, C.R.S.
2024, and 13-17-102. She stated that the latter statute supported
her request because husband’s attempt to convert the dismissed
separation decree into a dissolution decree was “substantially
frivolous, substantially groundless, or substantially vexatious.”
§ 13-17-102(6).
¶ 46 Wife did not address her request for attorney fees during the
November 2023 hearing. The court issued its written order on
December 17, 2023. Two days later, wife filed an amended affidavit
of attorney fees and costs, which was accompanied by exhibits. The
court denied wife’s attorney fee request on December 24, 2023,
stating that
both parties noted that they would be seeking an award of attorney fees in the [joint trial management certificate] but neither party
16 presented arguments or evidence during the hearing in support of that request. The time to advance that request and present arguments and evidence in support of that request has passed as this case has been concluded and closed. To the extent that it was not made clear earlier, the [c]ourt denies any request for attorney fees.
B. Standard of Review and Applicable Law
¶ 47 “We review the district court’s decision to award attorney
fees . . . for an abuse of discretion, but we review the legal
conclusions forming the basis for that decision de novo.” In re
Marriage of Turilli, 2021 COA 151, ¶ 36 (citing In re Marriage of
Gallegos, 251 P.3d 1086, 1087 (Colo. App. 2010)). “A court abuses
its discretion when its decision is manifestly arbitrary,
unreasonable, or unfair, or when it misconstrues or misapplies the
law.” In re Marriage of Fabos, 2022 COA 66, ¶ 16.
¶ 48 Because marriage dissolution proceedings are civil cases, the
court may award attorney fees under section 14-10-119, under
section 13-17-102, or under both statutes. In re Marriage of de
Koning, 2016 CO 2, ¶ 18 n.2.
¶ 49 Section 14-10-119 requires that parties present evidence of
the reasonableness of attorney fees at the time of the hearing on the
17 motion or the proceeding for which they are requested. C.R.C.P.
121, § 1-22(2) cmt. 2; see In re Marriage of Connerton, 260 P.3d 62,
67 (Colo. App. 2010).
¶ 50 Conversely, section 13-17-102 has no such requirement. It
provides, as is relevant to our analysis, that a “court shall award,
by way of judgment or separate order, reasonable attorney fees
against any attorney or party who has brought or defended a civil
action, either in whole or in part, that the court determines lacked
substantial justification.” § 13-17-102(2). And a party must “file
and serve a motion for attorney fees within [twenty-one] days of
entry of judgment or such greater time as the court may allow.”
C.R.C.P. 121, § 1-22(2)(b).
C. Analysis
¶ 51 Wife does not contest the court’s decision to deny her request
for attorney fees under section 14-10-119; her focus is on her
request under section 13-17-102.
¶ 52 The court’s order denied her request under section 13-17-102
because “[t]he time to advance [it] and present arguments and
evidence in support of [it] ha[d] passed.” But, under C.R.C.P. 121,
section 1-22(2), wife’s request for attorney fees fell within the
18 twenty-one-day timeframe to ask for attorney fees relying on section
13-17-102. We therefore conclude that the court misapplied the
law, see Fabos, ¶ 16, when it denied wife’s request under section
13-17-102.
¶ 53 Husband contends that there are four reasons why the court
did not abuse its discretion when it denied wife’s request for
attorney fees under section 13-17-102. We disagree with all of
them.
¶ 54 First, he asserts that wife did not preserve her attorney fees
request under section 13-17-102 because she did not ask for them
at the November 2023 hearing. But she asked for them in the joint
trial management certificate and in the motion she filed two days
after the court issued its order on December 17.
¶ 55 Second, husband submits that wife should have filed her
attorney fees motion under section 13-17-102 within twenty-one
days of February 2, 2024. But he does not explain why this date,
as opposed to December 17, 2023 — the date that the court issued
the order husband appeals — should govern the filing of wife’s
attorney fees motion. We therefore will not consider this
submission. See Vallagio at Inverness Residential Condo. Ass’n v.
19 Metro. Homes, Inc., 2017 CO 69, ¶ 40 (declining to consider an issue
when a party offers no argument or authority to support it).
¶ 56 Third, husband asserts that wife did not file a motion for
attorney fees; rather, she filed an affidavit of fees and costs. But
the court did not rule that the form of the request was invalid;
instead, it rejected wife’s request only because it was untimely.
When we look at the joint trial management certificate and the
documents that wife filed two days after the court’s December 17,
2023, order, we see that wife asked for attorney fees partly relying
on section 13-17-102.
¶ 57 Last, husband contends that wife did not file a timely notice of
appeal from the court’s order denying her request for attorney fees.
But wife filed her notice of cross-appeal on the attorney fees issue
on February 9, 2024, which was forty-seven days after the court’s
order of December 24, 2023, that denied her request for attorney
fees. This was within the forty-nine-day limit for filing a notice of
appeal established by C.A.R. 4(a)(1), and, because husband filed his
notice of appeal on February 2, 2024, it was within the fourteen-day
limit for filing a cross-appeal under C.A.R. 4(a)(2).
20 ¶ 58 We reverse the court’s order denying wife’s request for attorney
fees under section 13-17-102, and we remand this case to the court
to resolve that issue on its merits. We take no position on what
that resolution should be.
¶ 59 Wife asserts in her opening-answer brief that we “should . . .
award fees for this appeal” because “this appeal represents a
continuation of [h]usband’s attempt to mislead the court”; because
“this appeal is substantially unjustified and interposed for delay”;
and because “[h]usband has more resources than [w]ife, so equity
also demands a fee award.” These assertions couple wife’s request
for appellate attorney fees with her request for attorney fees in the
district court, particularly the assertion that this appeal is “a
continuation of [h]usband’s attempt to mislead the court.” This
means that resolving wife’s request requires evaluating husband’s
appellate contentions in the context of his contentions in the
district court. On remand, the court shall decide whether wife is
entitled to appellate attorney fees under section 13-17-102.
IV. Disposition
¶ 60 The court’s judgment is affirmed. The court’s order denying
wife’s request for attorney fees is reversed, and we remand the case
21 to the court to resolve wife’s motion for attorney fees under section
13-17-102, including her request for appellate attorney fees.
JUDGE KUHN and JUDGE MOULTRIE concur.