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 January 30, 2020
2020COA16
No. 18CA1143, Marriage of Weekes — Family Law — Post- dissolution — Modification and Termination of Provisions for Maintenance, Support, and Property — Change of Physical Care
Father moved under section 14-10-122(5), C.R.S. 2019, to
retroactively modify child support based on a change in physical
care of the child. The district court denied the motion as untimely,
applying an amendment to the statute that became effective after
the change in physical care but before father filed the motion.
As a matter of first impression, a division of the court of
appeals concludes that the district court’s retroactive application of
the amended statute was not unconstitutionally retrospective.
However, the division concludes that the district court erred in
analyzing the applicability of the statutory exception. Accordingly,
the division reverses the order and remands for further proceedings. COLORADO COURT OF APPEALS 2020COA16
Court of Appeals No. 18CA1143 Jefferson County District Court No. 01DR1296 Honorable Christopher C. Zenisek, Judge
In re the Marriage of
Michele Dawn Weekes,
Appellee,
and
William Warren Weekes,
Appellant.
ORDER REVERSED AND CASE REMANDED WITH DIRECTIONS
Division V Opinion by JUDGE HARRIS Tow and Márquez*, JJ., concur
Announced January 30, 2020
James J. Keil, Jr., Denver, Colorado, for Appellee
Paige Mackey Murray, LLC, Paige Mackey Murray, Boulder, Colorado, for Appellant
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2019. ¶1 William Warren Weekes (father) appeals the denial of his
motion to retroactively modify child support.
¶2 Ordinarily, any modification of a child support order applies
only prospectively. But if a change in physical care of the child
occurs, section 14-10-122(5), C.R.S. 2019, allows the court to apply
the modification retroactively, as of the date of the change in
physical care.
¶3 In 2008, when father alleges that he took over physical care of
his daughter from Michele Dawn Weekes (mother), section 14-10-
122(5) did not include any time limitation or deadline. By the time
he moved to modify his child support obligation in December 2017,
however, the statute limited retroactive modification to the five
years prior to the filing of the motion to modify support.
¶4 Applying the amended statute, the magistrate denied father’s
motion to retroactively modify child support as untimely. The
statute contains an exception, applicable when enforcement of the
five-year limitation period would be “substantially inequitable,
unjust, or inappropriate,” but the magistrate declined to apply it,
finding that father’s delay in seeking modification was unjustified.
1 The district court affirmed the magistrate’s order, and father
appeals.
¶5 We reject father’s argument that application of the amended
statute to bar his motion violates the constitutional prohibition on
retrospective legislation. But we agree that the magistrate and
district court erred in analyzing the applicability of the statutory
exception. We therefore reverse the order denying father’s motion
and remand the case for further proceedings.
I. Background
¶6 The parties’ marriage ended in 2001. Father was then living in
Arizona, and mother resided with their child in Colorado.
Consistent with the parties’ parenting plan, father was ordered to
pay mother monthly child support.
¶7 After the child became emancipated in 2011, mother sought
approximately $85,000 in unpaid child support, over half of which
represented interest. She mailed her motion for entry of judgment
to two of father’s former addresses in Arizona. When father failed to
respond, the district court entered judgment for mother in the
amount requested.
2 ¶8 In 2016, father moved pro se to set aside the judgment. He
asserted that the judgment was procured by fraud, that the child
had lived with him for the majority of the time for which mother
sought child support, that the parties had agreed that no child
support would be owed while father had custody, and that mother
knew where father lived yet did not serve him with her motion for
entry of judgment. He also submitted records of the child’s high
school attendance in Arizona and a notarized letter from the then-
twenty-five-year-old child confirming her living arrangements.
¶9 The district court construed father’s motion as a C.R.C.P.
60(b)(2) motion to set aside the judgment based on fraud and
denied it as untimely. Additionally, the court noted that “[e]ven if
the child resided with [f]ather as indicated, there is no indication of
his child support obligation being altered or vacated for that
reason.”
¶ 10 Thereafter, father filed additional pro se motions to vacate the
judgment, asserting the same grounds. The child also contacted
the court, reiterating that she had lived with father and attended
school in Arizona. She alleged that mother had lied to the court
when mother suggested she did not know father’s current address
3 for purposes of serving the motion; according to the child, mother
had sent her mail and visited her at father’s address around the
time mother obtained the judgment. The district court denied
father’s additional requests to set aside the judgment.
¶ 11 In December 2017, father retained counsel who moved, under
section 14-10-122(5), to modify the support order retroactive to the
child’s 2008 change in residence. Counsel acknowledged that an
amendment effective January 1, 2017, limited retroactive
modification to the five-year period preceding a motion to modify.
He argued, however, that the situation was grossly inequitable,
unfair, and unjust — insisting that mother had obtained judgment
against father for years she knew the child had lived with him and
had thereby obtained a windfall.
¶ 12 Mother denied father’s factual allegations, but argued that, in
any event, the statute’s five-year limitation provision barred father
from obtaining relief.
¶ 13 Before the time for filing a reply had expired, see C.R.C.P. 121,
§ 1-15(1)(c), the magistrate denied father’s motion, finding that his
“gross delay and failure to act simply does not support a finding
4 that application of the statute would be substantially inequitable,
unjust or inappropriate.”
¶ 14 Father nonetheless filed a reply, asserting that mother had
knowingly failed to serve him at his current address, he had
therefore learned of the judgment only after mother began collection
efforts in 2015, the court misconstrued his pro se motions as Rule
60(b) motions rather than timely motions to modify his support
obligation, and retroactive application of the 2017 amendment was
both legally impermissible and unjust. And, noting that the parties’
allegations created a factual dispute concerning the applicability of
the statutory exception, father requested a hearing.
¶ 15 Father then petitioned for district court review of the
magistrate’s ruling, reasserting his prior arguments and his request
for a hearing.
¶ 16 The district court denied the petition. After considering
father’s arguments, including those raised in the reply, the court
affirmed the magistrate’s findings. It concluded that father’s delay
in seeking modification was unjustified: although the alleged
change in the child’s primary residence had occurred in 2008 and
the child emancipated in 2011, father “failed to take any action in
5 the matter until he filed his first Motion to Set Aside the Judgment
on October 17, 2016.” The court further concluded that the
magistrate did not abuse her discretion in denying father’s motion
without a hearing.
II. Retroactive Application of Section 14-10-122(5)’s Amendment
¶ 17 Father contends that the district court’s retroactive application
of section 14-10-122(5)’s five-year limitation period was
unconstitutionally retrospective. We disagree.
A. Legal Standards
¶ 18 Statutes can be applied prospectively or retroactively. Ficarra
v. Dep’t of Regulatory Agencies, 849 P.2d 6, 11 (Colo. 1993). A
statute is applied prospectively when it operates on transactions
that occur after its effective date, and retroactively when it operates
on transactions that have already occurred or rights and obligations
that existed before its effective date. Id.
¶ 19 Although statutes are presumed to operate prospectively, see
§ 2-4-202, C.R.S. 2019, the legislature may override this
presumption by indicating an intent that the statute operate
retroactively. City of Golden v. Parker, 138 P.3d 285, 289 (Colo.
2006). The retroactive application of a civil statute is not
6 necessarily unconstitutional: “[U]nder our state constitution, some
retroactively applied civil legislation is constitutional, and some is
not.” Ficarra, 849 P.2d at 12. Only legislation that is also
“retrospective” in its application is unconstitutional. Id.
¶ 20 A law is unconstitutionally retrospective if it “takes away or
impairs vested rights acquired under existing laws, or creates a new
obligation, imposes a new duty, or attaches a new disability, in
respect to transactions or considerations already past.” Abromeit v.
Denver Career Serv. Bd., 140 P.3d 44, 51 (Colo. App. 2005). Subject
to some limited exceptions, retroactive application of a substantive
law — one that “create[s], eliminate[s,] or modif[ies] vested rights or
liabilities,” People v. D.K.B., 843 P.2d 1326, 1331 (Colo. 1993) — is
ordinarily unconstitutional, Taylor Morrison of Colo., Inc. v. Bemas
Constr., Inc., 2014 COA 10, ¶ 19. But as a general matter, statutes
that are procedural or remedial in nature may be applied
retroactively without violating the constitutional prohibition against
retrospective legislation. Id.
¶ 21 We review de novo whether a statute has been applied in
violation of retroactivity principles. Id. at ¶ 16.
7 B. Application
¶ 22 Prior to January 2017, section 14-10-122(5) “place[d] no time
limit on the obligor’s ability to seek, or the court’s authority to
grant, retroactive modification of child support” based on a change
in care. In re Marriage of Green, 93 P.3d 614, 616 (Colo. App.
2004). As of January 1, 2017, however, the statute now provides
that “[t]he court shall not modify child support [retroactively] for
any time more than five years prior to the filing of the motion to
modify child support, unless the court finds that its application
would be substantially inequitable, unjust, or inappropriate.” § 14-
10-112(5); see Ch. 157, secs. 8, 11, § 14-10-122(5), 2016 Colo.
Sess. Laws 496-97.
¶ 23 Father contends that the five-year limitation provision is not
intended to apply where the change in care occurred prior to the
amendment’s effective date. And, he argues, if the legislature did
intend that the amendment apply retroactively, the statute is
unconstitutionally retrospective.
¶ 24 We first address whether the statute is intended to apply
retroactively.
8 ¶ 25 Father says that because the statute does not include express
retroactivity language, we must presume the legislature intended it
to operate prospectively only — meaning that the limitation on
retroactive modification of child support would not apply unless the
change of care occurred after January 2017.
¶ 26 But express retroactivity language is unnecessary. City of
Golden, 138 P.3d at 290; see Ficarra, 849 P.2d at 13-14. Rather, an
intent that a statute operate retroactively may be implied. See
Ficarra, 849 P.2d at 13-14.
¶ 27 The amendment to section 14-10-122(5) ties the limitation on
child support modifications to the filing of the motion to modify, not
the underlying change in physical care. In this way, the
amendment is similar to the statutory provision at issue in Ficarra.
There, the amended statute automatically disqualified persons
convicted of a felony within the last ten years from receiving a bail
bondsman license. 849 P.2d at 9. The supreme court concluded
that the legislature intended the amendment to apply to the
plaintiffs, who had applied for licenses after the amendment’s
effective date, but whose felony convictions predated the
amendment. According to the court, “[t]he intent . . . of the General
9 Assembly to exclude from the ranks of professional bail bondsmen
anyone who has been convicted of a felony . . . within ten years from
the date of his application for renewal is plain.” Id. at 13 (emphasis
added).
¶ 28 Similarly, the 2017 amendment to section 14-10-122(5)
prohibits the district court, as of the amendment’s January 1,
2017, effective date, from modifying child support for any time
before the five years preceding the filing of a motion to modify,
regardless of when the change of care occurred.
¶ 29 Accordingly, we conclude that the amendment was intended
by its plain language to operate on motions filed after its effective
date, even if the change in physical care predated the amendment.
See Ficarra, 849 P.2d at 13-14; see also Shell W. E&P, Inc. v.
Dolores Cty. Bd. of Comm’rs, 948 P.2d 1002, 1011-12 (Colo. 1997)
(A statute providing that interest on taxes levied on lands previously
omitted from a tax list because of the taxpayer’s failure to disclose
shall be calculated from the date the taxes were due “plainly evinces
an intention to change the calculation of interest on tax obligations
that arose in the past.”); Abromeit, 140 P.3d at 47-50 (concluding
that personnel rule amendment eliminating appeal right for
10 classification decisions was intended to apply retroactively to claims
that were pending on its effective date).
¶ 30 Next, we must determine whether retroactive application of the
amendment’s limitation period constitutes unconstitutional
retrospective legislation.
¶ 31 As we have noted, retroactive application of a statute is
unconstitutionally retrospective if it affects vested rights. Taylor
Morrison of Colo., ¶ 19. A right is vested only “when the right to
assert it does not depend on the common law or the statute under
which it was acquired, but rather has an independent existence.”
Id. at ¶ 20.
¶ 32 There is no vested right in remedies. Shell W. E&P, 948 P.2d
at 1012. “The abolition of an old remedy, or the substitution of a
new one, does not constitute the impairment of a vested right.”
Woodmoor Improvement Ass’n v. Prop. Tax Adm’r, 895 P.2d 1087,
1089 (Colo. App. 1994).
¶ 33 Section 14-10-122(5) provides a remedy for a parent who has
effectively overpaid child support due to a change in care of the
child. Father says this right to reimbursement is a vested right
because each accrued child support payment became a judgment
11 that could have been modified retroactively under the prior version
of the statute. We disagree.
¶ 34 A judgment arises under section 14-10-122(1)(c) for each child
support payment ordered as soon as the payment becomes due and
is unpaid. See In re Marriage of Schutte, 721 P.2d 160, 162 (Colo.
App. 1986). Father’s right to retroactively modify his previously
ordered child support payments to the date of the change in the
child’s physical care, however, exists only by operation of section
14-10-122(5). See Green, 93 P.3d at 616-17. Because the remedy
does not exist independent of the statute, there is no vested right in
its operation, and therefore it can be abolished or changed.
Woodmoor Improvement Ass’n, 895 P.2d at 1089.
¶ 35 Section 14-10-122(5) is remedial in nature and its limitation
provision is simply a limitation on the remedy — regardless of when
the change in custody occurred, relief is limited to the five years
preceding the filing of the motion. The application of a limitation on
a remedy to an existing claim for relief does not violate the
prohibition against retroactive legislation. Id.; see also Shell W.
E&P, 948 P.2d at 1012; Vetten v. Indus. Claim Appeals Office, 986
P.2d 983, 986 (Colo. App. 1999).
12 ¶ 36 Woodmoor Improvement Ass’n, which presents a similar
scenario, is instructive. In 1992, the plaintiff homeowners’
association filed a petition for abatement and refund of property
taxes for tax years 1986-1991. At the time the association paid
most of the taxes, the refund statute contained a six-year statute of
repose. But in 1991, the statute was amended and precluded
refunds “unless a petition for abatement or refund is filed within
two years” of the year taxes were levied. Id. The association argued
that the application of the two-year limitation provision was
unconstitutionally retrospective because it “remov[ed] its vested
right in a six-year repose period.” Id. The division disagreed,
concluding that the limitation provision “can appropriately bar a
claim which arises from events that occurred prior to its adoption.”
Id.
¶ 37 Father had no vested right in the child support modification
remedy as it was defined under section 14-10-122(5). Thus, the
district court did not err in applying the January 1, 2017,
amendment to father’s motion filed after that date. See Shell W.
E&P, 948 P.2d at 1012; Vetten, 986 P.2d at 986; Woodmoor
Improvement Ass’n, 895 P.2d at 1089.
13 ¶ 38 We are not persuaded otherwise by the authorities on which
father relies. True, in United Bank of Denver National Ass’n v.
Wright, 660 P.2d 510 (Colo. App. 1983), the division determined
that an amended statute of limitations should not apply
retroactively to a claim that had accrued prior to the date of the
amendment. Id. at 511. But it also determined that the legislature
had not intended the tolling provision at issue to apply retroactively
in the first place. Id. (“The amended statute contains no language
indicating a legislative intent that this amendment receive
retroactive application”; accordingly, “it became effective on the date
of its approval.”). Thus, the analysis regarding the effect of applying
the statute retroactively appears to be dicta.
¶ 39 In any event, since Wright, the supreme court has
unequivocally instructed that “application of a statute to a
subsisting claim for relief does not violate the prohibition of
retrospective legislation where the statute effects a change that is
only procedural or remedial in nature.” Shell W. E&P, 948 P.2d at
1012. We are bound by decisions of our supreme court. See People
v. Allen, 111 P.3d 518, 520 (Colo. App. 2004).
14 ¶ 40 As for Wood Bros. Homes, Inc. v. Howard, 862 P.2d 925 (Colo.
1993), the plaintiffs in that case brought their action while the
original statute of limitations was in effect and the successor
statute expressly provided that it “shall apply to claims for relief
arising on or after” its effective date. Id. at 931. Thus, like the
division in Wright, the Howard court concluded that the successor
statute was not intended to apply retroactively. Id. at 930-31.
¶ 41 In sum, we conclude that the district court’s application of the
January 2017 amended statute did not violate the constitutional
prohibition on retrospective laws.
III. Application of the Statutory Exception
¶ 42 Alternatively, father contends that even if the five-year
limitation provision applies to his motion, the district court erred in
analyzing the applicability of the statutory exception. The exception
applies where imposing the limitation provision would be
“substantially inequitable, unjust, or inappropriate.” § 14-10-
122(5). At a minimum, father says, the court should have held a
hearing before determining that the exception did not apply. We
agree that the court erred.
15 ¶ 43 In determining that the exception did not apply, the magistrate
found that father’s motion was filed “well outside the 5-year mark”
and that his “gross delay and failure to act” did not support a
finding that application of the statute would be substantially
inequitable, unjust, or inappropriate. On review, the district court
concluded that the magistrate’s findings were supported by the
record, as father had failed to take any action until 2016, five years
after the child became emancipated. However, neither the
magistrate nor the district court appeared to consider father’s
various arguments that might have supported application of the
statutory exception.
• Father asserted that he did not learn of the judgment until
2015 because mother had mailed her motion to what she
knew was his former, not then current, address. The child’s
letters and affidavit, if credited by the court, corroborate
father’s allegations.
• Father argued that the court should have construed his pro
se motion to set aside the judgment as a timely motion to
retroactively modify child support based on a change in
care. Though the motion was not designated as such, the
16 basis of his request to set aside the judgment was that a
change in care had occurred. See Estates in Eagle Ridge,
LLLP v. Valley Bank & Tr., 141 P.3d 838, 843 (Colo. App.
2005) (the substance of a pleading controls over its form or
caption); see also Cornelius v. River Ridge Ranch
Landowners Ass’n, 202 P.3d 564, 572 (Colo. 2009) (court
may take into account the fact that a party is appearing pro
se, notwithstanding that pro se parties are bound by rules
of civil procedure).
• Father asserted that the parties had agreed that he would
not pay child support after physical care of the child was
transferred to him.
¶ 44 Contrary to the district court’s implicit determination, we
conclude that whether to apply the statutory exception involves a
fact-intensive inquiry. And, as mother conceded at oral argument,
the material facts here are hotly contested. (For example, did
mother purposefully serve the motion at the wrong address? Did
mother’s conduct justify father’s delay in filing his motion to set
aside the judgment? Did father stop paying child support in
reliance on an agreement concerning change in care and, if so, was
17 that reliance reasonable?) Thus, the district court could not make
the necessary findings without an evidentiary hearing. See Green,
93 P.3d at 617 (remanding case for a hearing on child support
when “numerous issues of fact were disputed”).
¶ 45 We reject mother’s argument that father was not entitled to a
hearing because he did not request one until his reply brief. Mother
cites no authority prohibiting a hearing when one is requested for
the first time in a reply brief. See, e.g., C.R.C.P. 121, § 1-22(2)(c)
(party affected by a motion for attorney fees may request a hearing
“within the time permitted to file a reply”). In any case, the district
court may, in its discretion, set a hearing on any motion. C.R.C.P.
121, § 1-15(4).
IV. Conclusion
¶ 46 The order is reversed, and the case is remanded for the district
court to conduct an evidentiary hearing to determine whether it
would be substantially inequitable, unjust, or inappropriate to
apply section 14-10-122(5)’s five-year limit to bar father’s motion to
retroactively modify child support.
JUDGE TOW and JUDGE MÁRQUEZ concur.