Marriage of Derengowski

23CA0997 Marriage of Derengowski 07-03-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA0997

El Paso County District Court No. 17DR3699

Honorable Monica J. Gomez, Judge

In re the Marriage of

Tracy Lynn Brookham

Appellee,

and

William Lawrence Derengowski,

Appellant.

APPEAL DISMISSED IN PART

AND ORDER AFFIRMED

Division I

Opinion by JUDGE WELLING

J. Jones and Schock, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced July 3, 2024

No Appearance for Appellee

William Lawrence Derengowski, Pro Se

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¶ 1 In this post-dissolution of marriage proceeding between

William Lawrence Derengowski (husband) and Tracy Lynn

Brookham (wife), husband appeals the district court’s order denying

his motion for half of the tax refund from a 2017 joint return. We

dismiss the appeal of the magistrate’s order and affirm the district

court’s order.

I. Background

¶ 2 The decree and permanent orders ending the marriage

between husband and wife were entered in 2018. The lengthy

record accumulated since that time reveals dozens of motions from

husband, most of which concern a motor home awarded to wife and

the marital joint tax filing for tax year 2017. At least eight motions

sought sanctions against wife for (1) failing to prove that she had

removed his name from any liens on the motor home and/or

(2) failing to file an amended “married filing separately” 2017 tax

return. He failed to achieve his desired relief.

¶ 3 On March 31, 2023, husband filed two additional motions. In

the first motion, he asked for wife to be found in contempt because

her evidence of the motor home lien cancellation was incomplete. A

magistrate denied this motion. In the second motion, husband

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requested one half of the 2017 tax refund in lieu of wife filing an

amended return. The district court denied the request, warning

that it wouldn’t entertain any further motions on the matter.

Husband appeals the district court order, but he also argues that

the court erred by accepting wife’s proof of lien cancellation.

II. Motor Home Issue

¶ 4 The district court’s order is the only order properly on appeal.

To the extent husband also attempts to appeal the magistrate’s

order regarding wife’s proof of the motor home lien cancellation,

that order isn’t properly before us. When, as here, a magistrate

rules on a matter where consent isn’t necessary, a party may not

appeal the magistrate’s order to this court unless the party first files

a timely petition for review to the district court and the district

court rules on the petition. C.R.M. 7(a)(11), (12). Because husband

didn’t petition for district court review of the magistrate’s order, we

don’t have jurisdiction to review it. See In re Marriage of Stockman,

251 P.3d 541, 543 (Colo. App. 2010). Accordingly, we dismiss the

appeal as to the motor home issue.

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III. 2017 Tax Issue

¶ 5 In the June 2018 permanent orders, a magistrate ordered the

parties to “file married filing separately for the 2017 tax year.” But

the April tax filing deadline had already passed, and wife had

already filed a joint return for 2017. She had reported only her

income and received a federal refund of $8,186 and a state refund

of $628 — though she alleges that the latter was “confiscated” and

applied to husband’s overdue restitution.

¶ 6 In 2019, the district court “amended” the final orders as

follows: “The parties shall file separate tax returns for tax year

2017. [Husband] may proceed with filing his own tax return.” Wife

later alleged, with supporting evidence, that the IRS wouldn’t allow

her to amend her return to file separately. See

https://perma.cc/A6TJ-4SMP at 8. And she alleged that husband

had no income in 2017. In his 2023 motion, husband didn’t

dispute either allegation, and he didn’t allege that he would have

been entitled to a refund had he been permitted to file a separate

return. Rather, he alleged that because the parties were still

married when the return was filed, he was entitled to half of the

refund “under Colorado law.”

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¶ 7 We interpret husband’s motion for half of the 2017 tax refund

as a motion to modify the property disposition provisions of the

dissolution decree, and we review de novo whether the district court

has jurisdiction to do so. Cf. In re Marriage of Roth, 2017 COA 45,

¶ 13.

¶ 8 The property disposition provisions of a dissolution decree

may not be modified unless the movant asserts, and the court

finds, conditions that justify reopening a judgment under

C.R.C.P. 59 or C.R.C.P. 60. § 14-10-122(1)(a), C.R.S. 2023; see In

re Marriage of McKendry, 735 P.2d 908, 909 (Colo. App. 1986); see

also In re Marriage of Anderson, 711 P.2d 699, 701 (Colo. App.

1985) (courts may not modify property division terms when the

movant made no attempt to establish the existence of conditions

justifying reopening of the judgment). Husband didn’t cite either

C.R.C.P. 59 or C.R.C.P. 60 — or any other legal authority — as a

basis for his motion. And the district court didn’t apply either rule

or find conditions that justify reopening the final orders, as

mandated by section 14-10-122(1)(a). See In re Marriage of Connell,

831 P.2d 913, 916 (Colo. App. 1992) (court erred by modifying

provision allocating home sale proceeds without first finding

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conditions that justified reopening the judgment). Moreover,

husband’s request to amend the permanent orders was filed well

beyond the 182-day deadline for requesting such relief for mistake,

inadvertence, surprise, or excusable neglect under C.R.C.P. 60(b).

¶ 9 For these reasons, we conclude that the district court lacked

jurisdiction to grant husband’s request and properly denied it. See

Koch v. Dist. Ct., 948 P.2d 4, 7-8 (Colo. 1997); see also In re

Marriage of Mattson, 694 P.2d 1285, 1286 (Colo. App. 1984) (court

had no authority to modify property disposition without making

findings under C.R.C.P. 60(b)).

IV. Disposition

¶ 10 To the extent husband appeals the motor home issue, the

appeal is dismissed. The district court’s order addressing the tax

issue is affirmed.

JUDGE J. JONES and JUDGE SCHOCK concur.