In re Marriage of Cerrone , 2021 COA 116 ( 2021 )

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
August 26, 2021
2021COA116
No. 20CA0816, In re Marriage of Cerrone — Family Law —
Modification and Termination of Provisions for Maintenance,
Support, and Property Disposition — Remarriage
A division of the court of appeals holds that, under
section 14-10-122(2)(a)(III), the inclusion of a nonmodification
clause in a separation agreement, on its own, is insufficient to
continue a maintenance obligation after a recipient spouse’s
remarriage. In reaching this conclusion, the division declines to
follow In re Marriage of Parsons, 30 P.3d 868, 869 (Colo. App. 2001).
COLORADO COURT OF APPEALS 2021COA116
Court of Appeals No. 20CA0816
Jefferson County District Court No. 16DR30029
Honorable Robert Lochary, Judge
In re the Marriage of
Jill Louise Cerrone,
Appellee,
and
Dennis John Cerrone,
Appellant.
ORDER REVERSED AND CASE
REMANDED WITH DIRECTIONS
Division V
Opinion by JUDGE GROVE
J. Jones and Johnson, JJ., concur
Announced August 26, 2021
Ammarell Deasy, LLP, Daniel N. Deasy, Patrick N. Hoover, Greenwood Village,
Colorado, for Appellee
The Burnham Law Firm, P.C., Aaron Belzer, J.P. Prentiss, Boulder, Colorado,
for Appellant
¶1 Dennis John Cerrone (husband) appeals the district court’s
order adopting a magistrate’s ruling denying his motion for a
declaratory judgment that his maintenance obligation to Jill Louise
Cerrone (wife) under the parties’ separation agreement ended
automatically on wife’s remarriage. Because the separation
agreement did not expressly provide that maintenance would
continue after wife remarried, we conclude that husband’s
maintenance obligation terminated by operation of law once she did
so. We therefore reverse the order and remand the case to the
district court with directions to grant husband’s motion and
determine the amount wife must reimburse him for maintenance he
paid after the date of her remarriage.
I. Background
¶2 The parties’ twenty-four-year marriage ended in 2016. The
district court approved their separation agreement and incorporated
it into the decree.
¶3 As relevant here, under a subheading titled “Modification,” the
agreement states,
This Plan shall not be modified except by its
own terms or by operation of law or by written
1
agreement of the Parties with approval by the
Court.
Under “Maintenance,” the agreement provides that
[c]ommencing July 1, 2016, Husband shall pay
the Wife maintenance in the amount of
$2,489.00 per month for a period of 138
months (totaling 11 ½ years). Payments shall
be made directly by Husband to Wife.
Maintenance shall terminate at the end of the
contractual period of 11 ½ years, December
31, 2027.
All maintenance outlined herein is contractual
in nature and shall be non-modifiable for any
reason whatsoever by the Court. The Court
shall not retain jurisdiction to modify the
maintenance either in amount or duration.
¶4 Three years after the court entered the decree, husband moved
for a declaratory judgment that his maintenance obligation had
automatically terminated by operation of law as of wife’s May 25,
2018, remarriage. See § 14-10-122(2)(a)(III), C.R.S. 2020 (“Unless
otherwise agreed in writing or expressly provided in the decree, the
obligation to pay future maintenance is terminated upon . . . [t]he
remarriage of or the establishment of a civil union by the party
receiving maintenance.”).
¶5 A district court magistrate denied husband’s motion,
concluding that, by stating in their separation agreement that
2
maintenance was contractual and nonmodifiable, the parties had
“agreed in writing” that husband’s maintenance obligation would
survive wife’s remarriage.
¶6 Husband petitioned for district court review of the magistrate’s
order. The district court affirmed and adopted the magistrate’s
order.
II. Maintenance After the Recipient Spouse Remarries
¶7 Husband contends that the magistrate and district court erred
by ruling that his obligation to pay wife maintenance continued
after her remarriage rather than automatically terminating under
section 14-10-122(2)(a)(III). He asserts that In re Marriage of
Parsons, 30 P.3d 868, 869 (Colo. App. 2001), which the magistrate
found controlling, was wrongly decided. In the alternative, he
argues that Parsons is distinguishable from the present case based
on the specific language of the parties’ separation agreement.
¶8 We agree that the magistrate and district court erroneously
concluded that husband’s maintenance obligation continued after
wife’s remarriage. In reaching this conclusion, we decline to follow
Parsons to the extent it holds that the mere presence of a
nonmodification clause is, on its own, sufficient under section
3
14-10-122(2)(a)(III) to continue a maintenance obligation after a
recipient spouse’s remarriage. See Chavez v. Chavez, 2020 COA
70, ¶ 13 (noting that divisions of the court of appeals function
independently and thus “divisions are not bound by the decisions of
other divisions”). We further conclude that the particular
separation agreement language at issue is materially
distinguishable from that in Parsons and is not sufficient to
continue husband’s maintenance obligation after wife’s remarriage.
Therefore, we reverse the district court’s order.
A. Standard of Review
¶9 We review de novo the language of the governing statute and
the parties’ separation agreement. See In re Marriage of Williams,
2017 COA 120M, ¶ 11.
B. Section 14-10-122(2)(a)(III)
¶ 10 Section 14-10-122(2)(a)(III) states, in relevant part, that
“[u]nless otherwise agreed in writing or expressly provided in the
decree, the obligation to pay future maintenance is terminated upon
. . . [t]he remarriage of . . . the party receiving maintenance.”
Accordingly, the issue, as it was in the district court, is whether the
parties “agreed in writing” in their separation agreement that
4
maintenance would continue for the full 138-month term even if
wife remarried. See id.; cf. Williams, ¶ 10 (determining de novo,
based on the separation agreement, whether maintenance survived
the obligor spouse’s death as a continuing obligation of his estate or
was terminated under section 14-10-122(2)(a)(I)).
C. Early Case Law Interpreting the Statute
¶ 11 A division of this court addressed a predecessor version of
section 14-10-122(2)(a)(III) in Spratlen v. Spratlen, 30 Colo. App. 91,
93-94, 491 P.2d 608, 609-10 (1971). That statute provided that
“[t]he remarriage of a party entitled to [maintenance] . . . shall
relieve the other party from further payments of said [maintenance];
but nothing in this section shall preclude the parties from providing
otherwise by written agreement or stipulation.” Id. at 93, 491 P.2d
at 609 (quoting § 46-1-5(5), C.R.S. 1963). The separation
agreement at issue in Spratlen provided that the husband would
pay maintenance to the wife “until the death of his father.” Id. at
92, 491 P.2d at 609. The division held that the statute “require[d]
an express statement that [maintenance] continue after remarriage,
and the failure of the agreement in question to specify this point”
was fatal to the wife’s argument that her maintenance continued
5
until the death of the husband’s father regardless of her remarriage.
Id. at 94, 491 P.2d at 610.
¶ 12 Spratlen relied on In re Estate of Kettering, 151 Colo. 202,
206-07, 376 P.2d 983, 986 (1943), in which the supreme court,
applying common law principles, held that maintenance ends with
an obligor spouse’s death unless the agreement otherwise
“expressly or by clear implication” provides that maintenance
payments continue. Thus, in Kettering, the agreement’s language
— which specified only that maintenance would continue “so long
as the wife may live and remain unmarried” — did not require the
husband’s estate to continue paying the wife maintenance after his
death. Id. at 207, 376 P.2d at 986; see also Williams, ¶¶ 9 n.1,
12-21 (relying in part on Kettering and concluding that similar
language was insufficient under the provision of section 14-10-
122(2)(a) stating that, “[u]nless otherwise agreed in writing or
expressly provided in the decree,” the obligation to pay maintenance
ends on the obligor spouse’s death); cf. Int’l Tr. Co. v. Liebhardt, 111
Colo. 208, 218, 139 P.2d 264, 267 (1943) (An agreement providing
that maintenance would continue “after the death of the husband”
6
was explicit enough to require his estate to continue paying the wife
maintenance.).
¶ 13 Ten years after Spratlen, a division of this court decided In re
Marriage of Hahn, 628 P.2d 175 (Colo. App. 1981), again addressing
whether particular separation language was explicit enough to
continue maintenance payments after the recipient spouse’s
remarriage. The Hahn division interpreted a previous but
materially similar version of section 14-10-122(2)(a)(III), which
provided, “[u]nless otherwise agreed in writing or expressly provided
in the decree, the obligation to pay future maintenance is
terminated upon the death of either party or the remarriage of the
party receiving maintenance.” Id. at 176 (quoting § 14-10-122(2),
C.R.S. 1973).
¶ 14 The separation agreement in Hahn provided that maintenance
payments “will not be subject to modification for any reason except
the death of the wife.” Id. Citing Spratlen, the division noted that
section 14-10-122(2) had been “construed to require an express
provision that alimony continue after marriage.” Id. However, the
division then concluded that
7
the quoted language of the separation
agreement is such an express provision.
Although it does not explicitly provide for
continuation or termination of maintenance in
the event of remarriage, nevertheless, it
indicates that it was the contemplation of the
parties that only the wife’s death would
absolve the husband of liability for payment of
maintenance.
Id.
D. Parsons
¶ 15 This brings us to Parsons, which was decided twenty years
after Hahn. There, a division of this court also cited Spratlen with
approval for the proposition that “[g]enerally, to overcome th[e]
statutory termination upon remarriage, an explicit reference to the
continuation of maintenance after the recipient’s remarriage is
necessary.” Parsons, 30 P.3d at 869. Regarding the agreed
ninety-six months of maintenance, the Parsons separation
agreement stated that
[i]t is expressly understood and agreed that
the maintenance . . . is contractual in nature
and non-modifiable by any court. The
payment of maintenance to [wife] shall not be
subject to increase, or decrease, or
extension due to change of economic
circumstances of either party or for any other
reason.
8
Id. at 868.
¶ 16 The obligor spouse argued that this language was materially
distinguishable from that at issue in Hahn because it did not
reference a specific event, i.e., the wife’s death, as the only ground
on which maintenance could be modified. Id. at 869. The division
rejected this argument and, in doing so, both extended Hahn and
departed from its own description of Spratlen as requiring “an
explicit reference to the continuation of maintenance after the
recipient’s remarriage.” Id. The division held that “express
language concerning termination is preferable,” but even in the
absence of express language, “the presence of a nonmodification
clause is sufficient to overcome the statutory presumption that
maintenance terminates upon the recipient’s remarriage.” Id.¶ 17 As support for its holding, Parsons relied on Hahn and on
Telma v. Telma, 474 N.W.2d 322, 323 (Minn. 1991). Parsons, 30
P.3d at 869-70. In Telma, however, the separation agreement at
issue provided that the obligor spouse waived “any right” to petition
the court for modification under Minnesota’s maintenance
termination statute and “applicable case law.” 474 N.W.2d at 323.
Therefore, the Minnesota court found that maintenance did not
9
terminate under that state’s statute on the wife’s remarriage,
describing the husband’s waiver of the termination on remarriage
provision of the statute as “unequivocal.” Id.
E. Analysis
¶ 18 In our view, the Parsons division diverged from the plain
language of section 14-10-122(2)(a)(III) when it concluded that “the
presence of a nonmodification clause” — standing alone — is
sufficient to overcome the statutory presumption that the obligation
to pay maintenance ends on the recipient spouse’s remarriage. See
Parsons, 30 P.3d at 869. Specifically, the Parsons division’s
statement that a nonmodification clause will overcome the
automatic termination on remarriage provision of the statute went
far beyond both Spratlen and Hahn, where the agreements provided
that only one identified event would serve as a basis for modifying
maintenance. And Parsons’ statement is also inconsistent with that
division’s description of the requirement from Spratlen that “an
explicit reference to the continuation of maintenance after the
recipient’s remarriage is necessary” to overcome the automatic
termination on remarriage provision. Id. (emphasis added).
10
¶ 19 Further, we do not view as talismanic the terms “contractual”
and “nonmodifiable.” To the contrary, the language of the
separation agreement must be read as a whole, and in context, to
determine the meaning of those terms or any others. See In re
Marriage of Rother, 651 P.2d 457, 459 (Colo. App. 1982).
¶ 20 Accordingly, we decline to follow Parsons to the extent it holds
that a nonmodification clause in a separation agreement is alone
sufficient to evince the parties’ agreement that the maintenance
obligation will survive the recipient spouse’s remarriage. Instead, to
avoid termination of maintenance by operation of law under section
14-10-122(2)(a)(III), a separation agreement or decree must include
an “express provision” that maintenance will continue even if the
recipient spouse remarries. See Hahn, 628 P.2d at 176. And the
parties must make it unmistakably clear in such a provision that
they have “otherwise agreed” under the statute, meaning that they
agree the automatic termination on remarriage provision will not
apply to their maintenance award. See § 14-10-122(2)(a)(III); see
also Palmer v. Palmer, 170 P.3d 676, 680 (Ariz. Ct. App. 2007)
(holding that parties seeking to avoid a similar Arizona statute
“must make their intention unmistakably clear”) (emphasis omitted)
11
(citation omitted); Cortese v. Cortese, 176 P.3d 1064, 1066-67
(Mont. 2008) (holding under similar Montana statute that
maintenance terminates by operation of law on the remarriage of
the recipient party, even if the separation agreement contains a
nonmodification clause, because an express provision that
maintenance will not terminate is required); cf. Williams, ¶¶ 12-21
(requiring that separation agreement language “expressly or by
clear implication provide that the payments will continue after the
death of the obligor”).
¶ 21 We further conclude that the particular separation agreement
language used by the parties here is insufficiently clear, even under
Parsons, to require husband to continue paying wife maintenance
after her remarriage. In Parsons, the agreement stated that
maintenance was nonmodifiable “by any court,” but went on to
state that “[t]he payment of maintenance to [wife] shall not be
subject to increase, or decrease, or extension due to change of
economic circumstances of either party or for any other reason.” 30
P.3d at 868 (emphasis added). In contrast, the maintenance
section of the agreement in this case provides that maintenance “is
contractual in nature and shall be non-modifiable for any reason
12
whatsoever by the Court.” But the second phrase that appeared in
the Parsons agreement — providing that the maintenance cannot be
modified based on a change in economic circumstances “or for any
other reason” — is absent.
¶ 22 This omission is crucial to our analysis because, under the
statute, husband’s obligation to pay wife maintenance
automatically terminates on her remarriage without any action by
the court — that is, by operation of law. See § 14-10-122(2)(a)(III);
Spratlen, 30 Colo. App. at 94, 491 P.2d at 610. The qualifier “by
the court” suggests that the parties intended that maintenance
would not be subject to a motion to modify under section 14-10-
122(1)(a) based on substantial and continuing changed
circumstances. But it does not follow that the automatic
terminating events in section 14-10-122(2)(a) — which require no
action by the court — are inapplicable.
¶ 23 Wife argues, however, that the “miscellaneous” section of the
agreement suggests otherwise. This section states that if there is
any fraud, misstatement, or omission in the parties’ financial
affidavits, the innocent party will have the right to return to court
for amended orders concerning all agreement provisions “except for
13
the maintenance provisions which are expressly non-modifiable.”
However, any modification based on fraud or nondisclosure by a
party would not be automatic, or “by operation of law,” as under
section 14-10-122(2)(a) but rather would require action “by the
court.” See C.R.C.P. 60(b)(1). Thus, prohibiting any such
modifications is consistent with the agreement’s maintenance and
modification provisions and also with applying section 14-10-
122(a)(III) on wife’s remarriage.
¶ 24 In sum, we conclude that the magistrate and district court
erred by interpreting the parties’ separation agreement to require
husband to continue paying wife maintenance after her remarriage
despite the automatic termination on remarriage provision of
section 14-10-122(2)(a)(III).
III. Conclusion
¶ 25 The order is reversed, and the case is remanded to the district
court with instructions to declare that husband’s obligation to pay
wife maintenance terminated on her remarriage pursuant to section
14-10-122(2)(a)(III) and to determine the amount she must
reimburse him accordingly.
JUDGE J. JONES and JUDGE JOHNSON concur.
14