24CA1325 Sunderman v Sunderman 08-21-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA1325 Larimer County District Court No. 23CV30772 Honorable Stephen J. Jouard, Judge
Steven Sunderman,
Plaintiff-Appellant,
v.
Pam Sunderman d/b/a Pam Sunderman Design,
Defendant-Appellee.
JUDGMENT AFFIRMED AND CASE REMANDED WITH DIRECTIONS
Division VI Opinion by JUDGE YUN Tow and Sullivan, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced August 21, 2025
Fischer Law Group, P.C., Erik G. Fischer, Ashleigh Bravo, Fort Collins, Colorado, for Plaintiff-Appellant
Paige Mackey Murray LLC, Paige Mackey Murray, Boulder, Colorado, for Defendant-Appellee ¶1 In this post-dissolution of marriage case, Steven Sunderman
(husband) appeals the district court’s grant of summary judgment
to Pam Sunderman (wife) on his claim for repayment of loans
executed between the parties during the marriage. Husband
contends that the court erred by determining that his claim was
(1) barred by the doctrine of claim preclusion and (2) released by
the separation agreement incorporated in the final decree of the
parties’ dissolution of marriage. We affirm the judgment and
remand for a determination of wife’s attorney fees incurred in
defending this appeal.
I. Background
¶2 The parties married in 2014. In 2020, husband made five
loans to wife totaling $81,200 for the “[p]urchase, renovation, and
resale” of a property in Loveland, Colorado. The named borrower on
the loan contracts was Pam Sunderman Design, wife’s sole
proprietorship.
¶3 The parties filed for dissolution of marriage in 2021 and, after
mediation, executed a separation agreement that divided their
marital estate. As part of the division of marital property, the
agreement granted wife “all right, title and interest in Pam
1 Sunderman Design including all assets and the balance of [two
specified checking accounts] as her sole and separate property free
from all claim thereto by Husband.” It also provided that “[s]o long
as both parties made full disclosure of their assets and the
valuations of said assets are reasonably accurate, both parties
release one another from any and all claims, demands, or causes of
action which arise out of the marital relationship or could be
presumed to have arisen out of the marital relationship, or arising
out of any past contracts or agreements between them, other than
this Agreement.” A magistrate found that the separation agreement
was not unconscionable and incorporated it into the decree
dissolving the parties’ marriage.
¶4 After the dissolution of marriage was finalized, husband filed a
lawsuit against wife, seeking repayment of the $81,200 in loans he
had made to Pam Sunderman Design. Wife moved for summary
judgment, arguing that husband’s claim had been released by the
separation agreement and was barred by the doctrine of claim
preclusion. In response, husband submitted an affidavit stating
that “[t]hese loans were not discussed in [the parties’] mediation”
2 and that it was his “belief that the [l]oan [c]ontracts were not
incorporated within the [d]ecree or [s]eparation [a]greement.”
¶5 The district court found that “[t]he material undisputed facts
establish that both parties were aware of the existence of the loan
obligations payable and notwithstanding that fact entered into and
agreed to a release of any and all claims arising out of any past
contracts or agreements between them.” Accordingly, it ruled that
husband’s claim “for repayment of the amounts loaned to Pam
Sunderman Design [was] released under the express terms of the
[s]eparation [a]greement.” The court also determined that claim
preclusion barred husband’s claim, finding that all four elements —
the finality of the judgment, identity of subject matter, identity of
claims for relief, and identity or privity between parties — were
satisfied. The court explained:
[T]he dissolution proceeding resolved all issues regarding division of marital assets — and debts, with each party releasing claims against the other. The injury for which [husband] now seeks relief is the same resolution that [husband] sought in the dissolution proceeding [—] an equitable division of marital property. The loans which created marital debt are not wholly independent from or unconnected to the dissolution proceeding.
3 ¶6 Husband now appeals.
II. Claim Preclusion
¶7 Husband contends that the district court erred by granting
summary judgment on the basis that his claim against wife for
repayment of the loans to Pam Sunderman Design was barred by
claim preclusion. We disagree.
A. Standard of Review and Governing Law
¶8 We review a grant of summary judgment de novo. Griswold v.
Nat’l Fed’n of Indep. Bus., 2019 CO 79, ¶ 22. Summary judgment is
appropriate only when the pleadings, affidavits, depositions, or
admissions establish that there is no genuine issue of material fact
and that the moving party is entitled to judgment as a matter of
law. Id. at ¶ 23; C.R.C.P. 56(c). In evaluating a motion for
summary judgment, all doubts must be resolved against the moving
party, and the nonmoving party is entitled to the benefit of all
favorable inferences that may be reasonably drawn from the
undisputed facts. Griswold, ¶ 24.
¶9 We also review de novo a judgment entered on the basis of
claim preclusion. Foster v. Plock, 2017 CO 39, ¶ 10. Claim
preclusion prevents “the relitigation of matters that have already
4 been decided as well as matters that could have been raised in a
prior proceeding but were not.” Argus Real Est., Inc. v. E-470 Pub.
Highway Auth., 109 P.3d 604, 608 (Colo. 2005). The doctrine
serves the dual purpose of shielding “litigants from the burden of
relitigating an identical issue with the same party or his privy and
of promoting judicial economy by preventing needless litigation.”
Id. (quoting Lobato v. Taylor, 70 P.3d 1152, 1165-66 (Colo. 2003)).
“For a claim in a second judicial proceeding to be precluded by a
previous judgment, there must exist: (1) finality of the first
judgment, (2) identity of subject matter, (3) identity of claims for
relief, and (4) identity or privity between parties to the actions.” Id.
B. Discussion
¶ 10 Husband argues that the district court lacked sufficient basis
to find three of the four elements of claim preclusion: (1) identity or
privity between parties; (2) identity of subject matter; and
(3) identity of claims for relief. He also argues that claim preclusion
should not be applied because it would be inequitable or contrary to
public policy. We consider and reject each argument in turn.
5 1. Identity or Privity of Parties
¶ 11 Husband argues that there is no identity or privity of parties
because the loans were not made to wife but to her sole
proprietorship, Pam Sunderman Design. But husband sued only
wife for repayment of the loans made to Pam Sunderman Design; he
did not sue Pam Sunderman Design itself because, as explained in
his complaint, Pam Sunderman Design is a “trade name only” and
not a separate corporate entity. Under Colorado law, an individual
and a sole proprietorship are treated the same. See Allstate Ins.
Co. v. Willison, 885 P.2d 342, 344 (Colo. App. 1994) (“[T]he
distinguishing characteristic of the sole proprietorship is that it is
owned and managed by one person, and thereby exists as an
extension of the personal life of that person.” (quoting J. Moye, The
Law of Business Organizations § 1.01 (2d ed. 1982))).
Consequently, there is an identity of parties in both the dissolution
of marriage case and this case, as both husband and wife are the
only parties in both matters.
2. Identity of Subject Matter
¶ 12 Husband next asserts that “there is no ‘identity of subject
matter’ between the dissolution proceeding, which involved marital
6 property division, and the current action, which centers on the
recovery of funds loaned for [wife’s] business.” In determining
whether a prior case involved the same subject matter as the
present case, courts examine “whether the same evidence would be
used to prove the claims, even if the actions are different.” Foster,
¶ 28. If the same evidence would sustain the judgment in both the
first and second cases, then identity of subject matter is satisfied.
Id.
¶ 13 To determine whether the subject matter in both cases is
identical, we examine whether interspousal loans are considered
marital property. When dividing a marital estate, the district court
must account for all the parties’ marital assets and debts.
§ 14-10-113(1), C.R.S. 2024; see also In re Marriage of Jorgenson,
143 P.3d 1169, 1172 (Colo. App. 2006). In doing so, the court must
determine whether an asset or debt is marital or separate. In re
Marriage of Capparelli, 2024 COA 103M, ¶ 9. “[A]fter setting aside
any separate property, the court must divide the marital property in
such proportion as it deems just, ensuring an equitable, but not
necessarily equal, division of the estate.” Id.
7 ¶ 14 Contrary to husband’s argument, the parties’ interspousal
loans made during their marriage qualify as both marital debts and
assets. “[A]ny debt or liability incurred subsequent to the marriage,
or prior to a decree of legal separation, is presumed to be marital,
regardless of whether the debt/liability is held ‘individually, or by
the spouses in some form.’” 19 Frank L. McGuane, Jr. &
Kathleen A. Hogan, Colorado Practice Series, Family Law & Practice
§ 22:17, Westlaw (2d ed. database updated July 2025) (quoting
§ 14-10-113(3)). Thus, the debt incurred by wife during the
marriage is presumed to be marital debt. See Jorgenson, 143 P.3d
at 1172 (marital liabilities include all debts that are acquired and
incurred during the marriage).
¶ 15 Likewise, “all property acquired by either spouse subsequent
to the marriage and prior to a decree of legal separation is
presumed to be marital property, regardless of whether title is held
individually or by the spouses in some form of coownership.”
§ 14-10-113(3); see also Capparelli, ¶ 10. However, this
presumption may be overcome by evidence that the property was
(1) acquired by gift, bequest, devise, or descent; (2) acquired in
exchange for property acquired prior to the marriage or in exchange
8 for property acquired by gift, bequest, devise, or descent;
(3) acquired after a decree of legal separation; or (4) excluded by
valid agreement of the parties. Capparelli, ¶ 10; see also
§ 14-10-113(2).
¶ 16 Here, husband has provided no evidence to rebut the
presumption that the loans were both marital assets and debts. He
offered no evidence of an agreement to treat the loans as non-
marital property, see In re Marriage of McCadam, 910 P.2d 98, 100
(Colo. App. 1995) (where “there [was] no language in the promissory
note indicating that the parties agreed the interest would be treated
as wife’s separate property,” the interest would be treated as marital
property), and no evidence that funds used for the loans came from
husband’s separate property identified in section 14-10-113(2).
¶ 17 Given that the loans are considered marital property, both the
dissolution of marriage case and this case involve an identical
subject matter. In the present case, husband seeks to recover a
marital debt, specifically the repayment of loans made to wife’s
business during their marriage. And in the dissolution of marriage
case, the parties divided all marital assets and liabilities, including
wife’s interest in Pam Sunderman Design. Accordingly, both cases
9 involve an identical subject matter and would have relied on the
same evidence — the existence and value of the loans — even
though the actions are different. Foster, ¶ 28; see also Argus,
109 P.3d at 608-09 (holding that identity of subject matter existed
in two actions involving the same parcel of land and the same
agreement).
3. Identity of Claims
¶ 18 Husband further argues there is no identity of claims in the
dissolution of marriage action and the current action because the
loans were never explicitly referenced in the separation agreement
or included in the financial disclosures.1 Thus, husband argues
that the debt incurred by wife’s business was separate and distinct
from the dissolution proceeding.
¶ 19 To determine whether there is identity of claims, the court
must assess “whether the claim at issue in the second proceeding is
the same claim that was (or could have been) brought in the first
proceeding.” Foster, ¶ 29. Colorado has adopted the approach of
1 As the district court noted, neither party had submitted the
financial statements filed in the dissolution proceedings at the summary judgment stage.
10 the Restatement (Second) of Judgments, which states that a
judgment “extinguishes the plaintiff’s claim . . . includ[ing] all rights
of the plaintiff to remedies against the defendant with respect to all
or any part of the transaction, or series of connected transactions,
out of which the action arose.” Argus, 109 P.3d at 609 (alterations
in original) (quoting Restatement (Second) of Judgments § 24
(1982)). Claims arise out of the same transaction “when they ‘seek
redress for essentially the same basic wrong, and rest on the same
or a substantially similar factual basis.’” Foster, ¶ 29 (citation
omitted). It is the underlying injury, not the proffered legal theory,
that determines whether the identity of claims element is met. Id.
¶ 20 Here, husband’s claim pertains to the same series of
transactions (his loans to wife’s business during their marriage) and
seeks redress for the same alleged injury (repayment of loans). The
separation agreement divided the marital property by granting wife
“all rights, title, and interest in Pam Sunderman Design including
all assets and the balance of [two specified checking accounts] as
her sole and separate property free from all claim thereto by
Husband.” (Emphasis added.) It also stated that the “parties
release one another from any and all claims, demands, or causes of
11 action . . . arising out of any past contracts or agreements between
them.” Because the separation agreement addressed husband’s
claim against wife’s interest in Pam Sunderman Design, there is an
identity of claims in the two actions.
¶ 21 Moreover, even if we assume that the separation agreement
did not address husband’s loans to Pam Sunderman Design, he
could have raised his claim in the dissolution of marriage
proceeding. See Lucky Brand Dungarees, Inc. v. Marcel Fashions
Grp., Inc., 590 U.S. 405, 412 (2020) (“[C]laim preclusion prevents
parties from raising issues that could have been raised and decided
in a prior action — even if they were not actually litigated.”). As
previously discussed, these loans are considered a marital debt.
Therefore, husband could have included the loans as part of the
division of marital property. And even if, as husband argues, the
loans were “undisclosed” or were not addressed in the separation
agreement, he could have raised them in a C.R.C.P. 16.2(e)(10)
motion to reopen the dissolution or a C.R.C.P. 60 motion.
Accordingly, there is an identity of claims because husband’s
request for repayment of the loans could have been raised in the
dissolution of marriage case.
12 4. Public Policy
¶ 22 Finally, husband argues that “a court may decline to apply . . .
claim preclusion if its application would yield a result that is either
inequitable or contrary to public policy.” In making this argument,
husband relies on In re Marriage of Lewis, 66 P.3d 204 (Colo. App.
2003), and Simmons v. Simmons, 773 P.2d 602 (Colo. App. 1988).
Like the district court, we find these cases distinguishable from the
present case.
¶ 23 In Lewis, the husband executed demand promissory notes to
the wife for parts of her inheritance that were not considered
marital property. Lewis, 66 P.3d at 205. The dissolution court
allowed the wife’s contract claims to be joined in the divorce
proceeding. Id. at 206. A division of this court reversed, concluding
that it was against public policy for an equity court to decide civil
contract claims involving nonmarital property. Id. Here, unlike in
Lewis, husband did not provide any evidence that the funds loaned
to wife’s business originated from his separate property. Therefore,
the loans and the resulting debt are both marital and fall within the
jurisdiction of the dissolution court.
13 ¶ 24 Similarly, husband’s reliance on Simmons is misplaced. In
Simmons, the division held that it was against public policy to allow
the wife’s claim for assault against the husband to be joined in the
dissolution of marriage case. Simmons, 773 P.2d at 605-06. As the
district court noted, the tort claim in Simmons was separate from
and wholly independent of the issues in the dissolution proceeding.
See Gavrilis v. Gavrilis, 116 P.3d 1272, 1275 (Colo. App. 2005)
(noting that the damages sought in Simmons and Lewis were “based
on acts wholly independent from, and unassociated with the issues
in, the dissolution proceeding”). In contrast, here, as the district
court found, husband’s loans to wife “via her sole proprietorship
during the term[] of the marriage created marital debt” that was
part of the property division in the dissolution proceeding.
¶ 25 For all these reasons, we agree with the district court that
husband’s claim for repayment of the loans was barred by claim
preclusion. Because we affirm the district court’s summary
judgment on this basis, we do not need to address the court’s
additional ruling that the express terms of the separation
agreement barred husband’s claim.
14 III. Appellate Attorney Fees
¶ 26 In her principal brief, wife requested her appellate attorney
fees pursuant to a provision of the separation agreement and under
section 13-17-102, C.R.S. 2024. While this appeal was pending, the
district court awarded wife her attorney fees incurred in the
underlying case. Husband did not timely appeal the fee award.
Wife thus asks us to take judicial notice of the district court’s
decision and to award her attorney fees for successfully defending
the appeal.
¶ 27 “Under CRE 201(b), a court may judicially notice facts not
subject to reasonable dispute because they are ‘capable of accurate
and ready determination by resort to sources whose accuracy
cannot reasonably be questioned.’ This includes ‘the contents of
court records in a related proceeding.’” People in Interest of I.S.,
2017 COA 155, ¶ 7 (quoting People v. Sa’ra, 117 P.3d 51, 56 (Colo.
App. 2004)). The district court’s decision to award wife her attorney
fees falls into this category. Taking judicial notice of that decision,
we agree with wife that she is entitled to her appellate attorney fees.
See Kennedy v. King Soopers Inc., 148 P.3d 385, 390 (Colo. App.
2006) (“When a party is awarded attorney fees for a prior stage of
15 the proceedings, it may recover reasonable attorney fees and costs
for successfully defending the appeal.”). Therefore, on remand, we
direct the district court to determine and award wife’s reasonable
attorney fees incurred in this appeal.
IV. Disposition
¶ 28 The judgment is affirmed, and the case is remanded to the
district court to determine and award wife’s reasonable appellate
attorney fees.
JUDGE TOW and JUDGE SULLIVAN concur.