Marriage of Valdovinos-Cardenas

21CA1993 Marriage of Valdovinos-Cardenas 11-21-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 21CA1993
Garfield County District Court No. 21DR143
Honorable Denise K. Lynch, Judge

In re the Marriage of

Jose Guadalupe Valdovinos-Cardenas,

Appellant,

and

Flor Francisca Garcia-Gonzalez,

Appellee.

JUDGMENT AFFIRMED

Division I
Opinion by JUDGE LIPINSKY
J. Jones and Sullivan, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced November 21, 2024

Defiance Law Firm, Peter A. Rachesky, Lara L. Horst, Glenwood Springs,
Colorado, for Appellant

No Appearance for Appellee
¶1 Jose Guadalupe Valdovinos-Cardenas appeals the district

court’s order (the dismissal order) granting Flor Francisca Garcia-

Gonzalez’s “forthwith motion to reconsider order on petitioner’s

motion to dismiss dissolution of marriage case” (the motion to

reconsider). (The parties’ last names appear both with and without

hyphens in the appellate record. We hyphenate both last names, as

Valdovinos-Cardenas did in his opening brief.) We affirm.

I. Background and Procedural History

¶2 Garcia-Gonzalez filed a petition for dissolution of her alleged

common law marriage to Valdovinos-Cardenas. In his response,

Valdovinos-Cardenas asserted that the parties “are not now, nor

have ever been, married, either by statute or the common law.” In

addition, Valdovinos-Cardenas asked the court to enter orders

regarding the “status of the marriage” and attorney fees and costs.

¶3 Garcia-Gonzalez filed a “forthwith motion to dismiss

dissolution of marriage case” and, a week later, an amended motion

(the amended dismissal motion). In the amended dismissal motion,

Garcia-Gonzalez explained that she “no longer wishes to pursue

this Dissolution of Marriage case, withdraws all claims associated

with such, and requests that this Court dismiss the action with

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prejudice and vacate all other deadlines in this case.” In support of

her request, she cited C.R.C.P. 41(a)(2), which provides for

voluntary dismissal of a civil action “upon order of the court and

upon such terms and conditions as the court deems proper.”

¶4 Garcia-Gonzalez explained that she was asking the court to

dismiss the case with prejudice in response to Valdovinos-

Cardenas’s concern that she “might allege common law marriage in

a future dissolution of marriage filing” or “as a defense in any

property dispute” regarding Valdovinos-Cardenas’s house, in which

she was living. Garcia-Gonzalez said she was moving to dismiss the

case with prejudice “[i]n order to resolve those concerns.”

¶5 The court denied the amended dismissal motion following a

hearing, saying that Garcia-Gonzalez had not “affirmatively state[d]

that she wants the case dismissed because there is no common law

marriage” and that “[t]here needs to be a judicial determination as

to whether or not there is a common law marriage or [Valdovinos-

Cardenas] will be prejudiced.”

¶6 Garcia-Gonzalez filed the motion to reconsider five days later.

In that motion, she explained that dismissal of the case with

prejudice would “resolve the Court’s concerns” because such a

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dismissal “would likely preclude her from raising common law

marriage as a defense in any property action.”

¶7 Garcia-Gonzalez further asserted in the motion to reconsider

that she was “attempting to end unnecessary litigation by

requesting the Court dismiss a case in which there is no disputed

issue of fact or law.” She noted that Valdovinos-Cardenas “has

stated there is no marriage and [Garcia-Gonzalez] has withdrawn

her claim that a marriage exists and has no objection to a judicial

finding to that effect.”

¶8 In his response to the motion to reconsider, Valdovinos-

Cardenas requested that the court not dismiss the case because the

parties’ ongoing disputes hinged on whether they were common law

spouses, including their dispute concerning whether Valdovinos-

Cardenas could “return to the house and [Garcia-Gonzalez] . . .

[must] live elsewhere.” Valdovinos-Cardenas said he would be

prejudiced if the court dismissed the dissolution of marriage case

because he would “have to initiate one or more separate lawsuits in

order to achieve the same relief he may achieve in this one action.”

¶9 The court granted the motion for reconsideration and entered

the dismissal order. In the dismissal order, the court cited Powers

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v. Professional Rodeo Cowboys Ass’n, 832 P.2d 1099 (Colo. App.

1992), as authority for dismissing the case with prejudice. Unlike

this case, however, Powers concerned a dispute over whether the

case should be dismissed with or without prejudice. But the

division’s holding regarding the standard of review applies here:

granting a motion for voluntary dismissal under C.R.C.P. 41(a) is

“within the sound discretion of the trial court.” Id. at 1102.

¶ 10 In Powers, the division articulated factors a court should

consider when deciding whether dismissal of a case without

prejudice would result in harm to the defendant and whether the

risk of such harm warrants dismissal of the case with prejudice. Id.

at 1102-03. In this dissolution of marriage proceeding, the court

concluded that the Powers factors “favor[] a dismissal of the case

with prejudice.”

¶ 11 Valdovinos-Cardenas appeals the dismissal order.

II. Analysis

¶ 12 C.R.C.P. 41(a) governs voluntary dismissal of a civil case.

Subject to exceptions not at issue in this appeal, a plaintiff may

voluntarily dismiss an action “without order of court” by (1) “filing a

notice of dismissal at any time before filing or service by the adverse

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party of an answer or of a motion for summary judgment, whichever

first occurs”; or (2) “filing a stipulation of dismissal signed by all

parties who have appeared in the action or by their attorneys.”

C.R.C.P. 41(a)(1). Such voluntary dismissals are without prejudice

unless otherwise stated in the notice of dismissal or the stipulation.

Id.

¶ 13 In cases like this one, to which C.R.C.P. 41(a)(1) does not

apply because the adverse party filed the equivalent of an answer,

“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.” C.R.C.P. 41(a)(2). “[A] request for dismissal

under C.R.C.P. 41(a)(2) generally should be granted unless a

dismissal would result in legal prejudice to the defendant.” Powers,

832 P.2d at 1102. A court’s grant of a voluntary motion to dismiss

is without prejudice unless “otherwise specified in the order.”

C.R.C.P. 41(a)(2).

¶ 14 The decision to grant a motion for voluntary dismissal of a

case without prejudice is “within the sound discretion of the trial

court.” Powers, 832 P.2d at 1102. We see no reason why the abuse

of discretion standard of review should not also apply when the

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moving party seeks the dismissal of her case with prejudice. See

C.R.C.P. 41(a)(2) (allowing a court, “upon such terms and

conditions as [it] deems proper,” to “otherwise specif[y] in the order”

that a dismissal is with prejudice). “A court abuses its discretion if

its decision is manifestly arbitrary, unreasonable, or unfair, or

misapplies the law.” In re Marriage of Bergeson-Flanders, 2022 COA

18, ¶ 10, 509 P.3d 1083, 1085.

¶ 15 In Powers, the division said that, when determining whether a

dismissal without prejudice would result in harm to the defendant,

the court should consider

(1) the duplicative expense of a second
litigation

(2) the extent to which the current suit has
progressed, including the effort and expenses
incurred by defendant in preparing for trial

(3) the adequacy of plaintiff’s explanation for
the need to dismiss

(4) the plaintiff’s diligence in bringing the
motion to dismiss

(5) any “undue vexatiousness” on plaintiff’s
part.

832 P.2d at 1102-03 (quoting 9 C. Wright & A. Miller, Federal

Practice & Procedure § 2364 (1971)).

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¶ 16 The court in this case concluded that the Powers factors

favored dismissal of the case with prejudice. A dismissal with

prejudice “ends the case and leaves nothing further to be resolved

concerning the dispute between the parties.” Foothills Meadow v.

Myers, 832 P.2d 1097, 1098 (Colo. App. 1992).

¶ 17 We perceive no abuse of discretion in the court’s decision to

dismiss the case with prejudice. Unlike the plaintiff in Powers,

Garcia-Gonzalez asked the court to dismiss her claims with

prejudice, even though such an adjudication could impact her

ability to file another dissolution of marriage case or to claim in a

future case that she and Valdovinos-Cardenas were common law

spouses. As the court noted in considering the Powers factors,

• dismissing the case with prejudice would “alleviate any

risk of a second litigation”;

• the case had made little progress;

• no hearing had been set;

• Garcia-Gonzalez had been diligent in bringing the motion

to dismiss;

• there was no evidence of “undue vexatiousness” on

Garcia-Gonzalez’s part;

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• Valdovinos-Cardenas could commence an eviction action

if he wished to remove Garcia-Gonzalez from the house;

and

• Valdovinos-Cardenas would “get faster relief” in removing

Garcia-Gonzalez from the house if he filed an eviction

action against her.

See Powers, 832 P.2d at 1102-03.

¶ 18 Further, dismissal of this case with prejudice would not result

in the type of harm that the defendant in Powers sought to avoid.

In that case, the defendant argued that the “plaintiff knew [he]

would lose [his] case on the merits and merely was seeking to start

over again in another forum.” Id. at 1101 (alteration in original).

Unlike the plaintiff in Powers, Garcia-Gonzalez disavowed any

intent to “start over again in another forum” and confirmed that

intent by seeking a dismissal with prejudice. (We offer no opinion

as to whether, despite these representations, Garcia-Gonzalez could

allege in a future case that she and Valdovinos-Cardenas were

married.)

¶ 19 Valdovinos-Cardenas does not focus on whether

Garcia-Gonzalez could file a new dissolution of marriage case.

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Rather, he argues that the entry of the dismissal order prejudiced

him because it precludes him from obtaining a ruling in this case

that he and Garcia-Gonzalez are not common law spouses and,

therefore, would force him to file a separate lawsuit to obtain the

adjudication he said he needed to evict her from his house. But

Valdovinos-Cardenas does not explain why he had the right to

obtain an adjudication of the status of his relationship with Garcia-

Gonzalez in a dissolution of marriage case in which, upon Garcia-

Gonzalez’s withdrawal of her petition, neither party alleged the

existence of a marriage nor sought the dissolution of a marriage.

¶ 20 The purpose of a dissolution of marriage case is to dissolve a

marriage. While Valdovinos-Cardenas and Garcia-Gonzalez had

ongoing disagreements at the time the court entered the dismissal

order, those disagreements did not include a dispute regarding

whether a marriage between them should be dissolved.

¶ 21 Therefore, once Garcia-Gonzalez withdrew her allegation that

the parties were common law spouses and her claim for dissolution

of marriage, the court did not abuse its discretion by dismissing the

case with prejudice.

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III. Disposition

¶ 22 The judgment is affirmed.

JUDGE J. JONES and JUDGE SULLIVAN concur.

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