Marriage of Smith

23CA0837 Marriage of Smith 11-27-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA0837
Boulder County District Court No. 20DR30188
Honorable Thomas F. Mulvahill, Judge

In re the Marriage of

Sarah Bland Smith,

Appellee and Cross-Appellant,

and

James F. Butterworth,

Appellant and Cross-Appellee.

ORDERS AFFIRMED, ORDER REVERSED,
AND CASE REMANDED WITH DIRECTIONS

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

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced November 27, 2024

Caplan and Earnest, LLC, Andrew C. Littman, Craig A. Weinberg, Boulder,
Colorado, for Appellee and Cross-Appellant

Cox Baker Page & Bailey, LLC, James S. Bailey, Lone Tree, Colorado, for
Appellant and Cross-Appellee
¶1 James F. Butterworth (husband) appeals the district court’s

orders entering judgment against him in the amount of $177,873

and denying his motion for a declaratory judgment. Sarah Bland

Smith (wife) cross-appeals the court’s order entering judgment

against her in the amount of $44,524. We affirm the orders that

husband appeals, reverse the order that wife cross-appeals, and

remand the case for further proceedings on wife’s request for an

award of the appellate attorney fees she incurred in challenging the

$44,524 judgment.

I. Relevant Facts and Procedural History

¶2 The parties stipulated to the appointment of former district

court judge William G. Meyer as the private judge in their

dissolution of marriage case, pursuant to section 13-3-111(1),

C.R.S. 2024, and C.R.C.P. 122(a)(1). Judge Meyer presided over the

dissolution proceedings, including the hearing on permanent

orders.

¶3 Approximately five months after the permanent orders

hearing, Judge Meyer dissolved the marriage and entered

permanent orders dividing the parties’ $49.5 million marital estate.

As relevant here, Judge Meyer equally divided (1) a JP Morgan cash

1
and investment account (the JP Morgan account), with a value of

more than $17 million; and (2) the parties’ anticipated 2020 tax

refund, with an estimated value of more than $400,000. Judge

Meyer also allocated to wife (1) a Charles Schwab cash and

investment account (the Schwab account), with a value of nearly

$350,000; and (2) Rhizone Ventures, Ltd. (Rhizone), including

approximately $5 million of the private equity interests held by

Rhizone.

¶4 Husband and wife both moved for post-trial relief under

C.R.C.P. 59 and 60, asking for amendments and corrections to the

permanent orders. Among other issues, husband asserted that,

between the time of the permanent orders hearing and the entry of

the decree, the parties had spent or otherwise transferred to their

individual accounts more than $1 million from the JP Morgan

account and another joint account. He argued that Judge Meyer

should amend the permanent orders to balance their post-hearing

spending and transfers and that, based on his accounting, Judge

Meyer should direct wife to make an equalization payment to

husband in the amount of $44,524. Husband also informed Judge

Meyer that he had received the parties’ 2020 tax refund, in the

2
amount of $355,748, which he had deposited into the JP Morgan

account.

¶5 Husband further asserted that his accounting of the post-

hearing transfers reflected his transfer of $247,107 (including his

half of the 2020 tax refund) from the JP Morgan account to the

Schwab account. Husband said that the $44,524 equalization

payment he was requesting from wife was conditioned on Judge

Meyer’s amendment of the allocation of the Schwab account.

Husband requested that he be permitted to retain the $247,107.

¶6 In October 2022, Judge Meyer issued an order (the October

2022 order) resolving the parties’ C.R.C.P. 59 and 60 motions. In

the October 2022 order, Judge Meyer directed wife to pay husband

$44,524 to balance the parties’ post-hearing spending and

transfers. Judge Meyer also determined that husband was entitled

to $247,107 in the Schwab account and that he could either receive

these funds or use them to offset a portion of the $500,711 he owed

wife to equalize the allocation of the marital estate.

¶7 Husband appealed the permanent orders judgment, and a

division of this court affirmed. See In re Marriage of Smith, 2024

COA 95, ¶¶ 1, 83, ___ P.3d ___, ___. In December 2022, Judge

3
Meyer issued an order (the first December 2022 order) allocating

the right to claim the children as dependents for tax purposes. In

addition, in response to the parties’ emails following the entry of the

October 2022 order, Judge Meyer issued an order (the second

December 2022 order) declining to revisit the permanent orders.

¶8 Wife then filed a C.R.C.P. 70 motion (the C.R.C.P. 70 motion),

arguing that husband had not executed the necessary documents

to assign the Schwab account and Rhizone to her. In February

2023, Judge Meyer entered an order (the February 2023 order)

directing the clerk of court to execute those documents on

husband’s behalf.

¶9 Wife also filed a motion for entry of a judgment against

husband in the amount of $177,873, which represented her share

of the 2020 tax refund that she had not received from husband.

¶ 10 Husband later moved for entry of a declaratory judgment

determining that Judge Meyer’s appointment had ended upon his

resolution of the parties’ post-trial motions and that he lacked

jurisdiction to issue any orders, including orders for “enforcement

remedies,” following the entry of the October 2022 order.

4
¶ 11 Six days after husband filed his declaratory judgment motion,

Judge Meyer voluntarily resigned from his appointment. An active

judge on the district court then granted wife’s motion for entry of

judgment against husband in the amount of $177,873. The court

also denied husband’s declaratory judgment motion.

¶ 12 Husband filed a motion for post-trial relief from the $177,873

judgment under C.R.C.P. 59, 60, and 121. The court denied the

motion.

¶ 13 Husband also moved for entry of a judgment against wife in

the amount of $44,524, arguing that she owed him that sum under

the October 2022 order. The court granted the motion, and it later

denied wife’s request to alter or amend the judgment.

II. Husband’s Appeal

¶ 14 Husband appeals (1) the $177,873 judgment entered against

him and (2) the denial of his motion for a declaratory judgment

regarding Judge Meyer’s jurisdiction.

A. The $177,873 Judgment Against Husband

¶ 15 Husband contends that the court misinterpreted Judge

Meyer’s amended permanent orders when it entered the $177,873

judgment against him. He specifically argues that, in the October

5
2022 order, Judge Meyer granted his request to balance the parties’

post-hearing spending and transfers, and directed wife to pay

husband $44,524. Husband claims that, by doing so, Judge Meyer

necessarily concluded that the allocation of wife’s share of the tax

refund to her had been satisfied because husband had accounted

for the allocation of the 2020 tax refund when husband determined

that wife owed him $44,524. He argues that Judge Meyer

determined that wife received her share of the tax refund and the

court’s later entry of judgment improperly modified the permanent

orders. Wife responds that husband did not preserve these

arguments for our review. We agree with wife and decline to review

husband’s unpreserved contention.

¶ 16 “Our judicial system depends upon the orderly presentation

and preservation of issues.” Melat, Pressman & Higbie, L.L.P. v.

Hannon Law Firm, L.L.C., 2012 CO 61, ¶ 18, 287 P.3d 842, 847. A

party’s mere opposition to another party’s request does not permit

the party to seek all potential avenues for relief on appeal.

Valentine v. Mountain States Mut. Cas. Co., 252 P.3d 1182, 1188 n.4

(Colo. App. 2011). Rather, the party must have brought the specific

issue to the district court’s attention and provided the court with an

6
opportunity to rule on it. In re Marriage of Pawelec, 2024 COA 107,

¶ 38, ___ P.3d ___, ___. Arguments not raised in or decided by the

district court will not be addressed for the first time on appeal.

Melat, Pressman & Higbie, ¶ 18, 287 P.3d at 847; see also Valentine,

252 P.3d at 1188 n.4 (“We review only the specific arguments a

party pursued before the district court.”).

¶ 17 An appellant’s opening brief must state whether a contention

raised on appeal was preserved in the district court and, if so, give

us “the precise location in the record where the issue was raised

and where the court ruled.” C.A.R. 28(a)(7)(A); see O’Quinn v. Baca,

250 P.3d 629, 631 (Colo. App. 2010). The appellate rules are not

mere technicalities; they are essential to the administration of

justice. O’Quinn, 250 P.3d at 631.

¶ 18 Husband asserted that he preserved his appellate arguments

challenging the $177,873 judgment by timely objecting to wife’s

request for entry of judgment. To support his preservation claim,

he directed us to a single page in the record — the first page of his

response (the C.R.C.P. 70 response) to wife’s C.R.C.P. 70 motion.

However, in the C.R.C.P. 70 response, husband addressed wife’s

requests concerning the assignment of the Schwab account and

7
Rhizone, but he neither contested wife’s motion for entry of

judgment nor discussed the 2020 tax refund. See C.A.R.

28(a)(7)(A); O’Quinn, 250 P.3d at 631.

¶ 19 After wife pointed out that husband’s citation to the first page

of the C.R.C.P. 70 response did not support husband’s preservation

claim, husband said that his citation to a single page in the record

was an “oversight,” and he directed us to the pages of the record

where he responded to wife’s motion for entry of judgment.

However, a review of this response does not support husband’s

claim of preservation either.

¶ 20 In her motion for entry of judgment, wife asked the court to

enter a judgment in the amount of $177,873 for her share of the

2020 tax refund and an additional judgment in the amount of

$456,187 for the money husband still owed her to equalize the

allocation of the marital estate. In his response to the motion for

entry of judgment, husband argued that wife’s motion was an

improper request to modify the court’s permanent orders and that

husband’s pending appeal of the permanent orders judgment

deprived the court of jurisdiction to modify any aspect of it.

8
¶ 21 Husband’s argument in the response focused entirely on wife’s

request for the $456,187 judgment related to the unpaid

equalization payment and wife’s corresponding attempt to receive

the funds in the Schwab account as partial payment on that

judgment. He did not argue in his response, as he does now, that

the October 2022 order accounted for wife’s share of the 2020 tax

refund when the court directed wife to pay husband $44,524 to

balance the parties’ post-hearing spending and transfers. Nor did

he argue in the response that the $177,873 judgment was

unwarranted because wife had already received her share of the

2020 tax refund. Thus, husband never alerted the court to these

issues, and he never gave it an opportunity to rule on the issues

before it entered the $177,873 judgment against husband. See

Melat, Pressman & Higbie, ¶ 18, 287 P.3d at 847; Valentine, 252

P.3d at 1188 n.4.

¶ 22 Still, husband argues that, following the court’s entry of the

$177,873 judgment, he raised the “sum and substance” of his

appellate arguments regarding the $177,873 judgment in his

motion for C.R.C.P. 59, 60, and 121 relief, and that this post-trial

motion preserved the issues for appeal. But “[a]rguments made . . .

9
for the first time in a post-trial motion are too late and,

consequently, are deemed waived for purposes of appeal.” Briargate

at Seventeenth Ave. Owners Ass’n v. Nelson, 2021 COA 78M, ¶ 66,

494 P.3d 1149, 1158; see also People v. Schaufele, 2014 CO 43,

¶ 49, 325 P.3d 1060, 1069-70 (Boatright, J., concurring in the

judgment) (“Motions for reconsideration are designed to correct

erroneous court rulings; they are not designed to allow parties to

present new legal arguments for the first time and then appeal their

denial . . . .”). Thus, husband’s post-trial motion did not preserve

his arguments regarding the $177,873 judgment for appellate

review. See Briargate, ¶ 66, 494 P.3d at 1158.

¶ 23 To the extent husband further argues that the court erred by

denying his C.R.C.P. 59, 60, and 121 motion as moot, we may

affirm a court’s ruling on any basis supported by the record. See

Million v. Grasse, 2024 COA 22, ¶ 29, 549 P.3d 1043, 1049. And as

noted, arguments raised for the first time in a post-trial motion are

presented too late to serve as the basis for relief on appeal. See

Briargate, ¶ 66, 494 P.3d at 1158.

¶ 24 Husband therefore did not adequately preserve his arguments

concerning the $177,873 judgment, and we will not address them

10
for the first time on appeal. See Melat, Pressman & Higbie, ¶ 18,

287 P.3d at 847; Valentine, 252 P.3d at 1188 n.4. (Husband

further asserts in his opening brief that wife’s motion for entry of

judgment did not include any rule or case law supporting wife’s

request for relief. Although husband raised a similar argument in

his response to the motion for entry of judgment, we do not address

the argument on appeal because husband does not support it with

any meaningful legal analysis. See In re Marriage of Zander, 2019

COA 149, ¶ 27, 486 P.3d 352, 357, aff'd, 2021 CO 12, ¶ 27, 480

P.3d 676.)

B. Judge Meyer’s Authority

¶ 25 Husband next contends that the court incorrectly denied his

motion for a declaratory judgment. He argues that, under the plain

language of the parties’ stipulation, Judge Meyer’s appointment did

not extend beyond his ruling on the parties’ C.R.C.P. 59 and 60

motions concerning the permanent orders. Thus, he argues that

the court erred by not concluding that Judge Meyer’s orders entered

after October 2022 were void. We discern no error.

11
1. Standard of Review

¶ 26 We review for an abuse of discretion a court’s ruling on a

request for entry of a declaratory judgment. See Nash v. Mikesell,

2024 COA 68, ¶ 15, 557 P.3d 369, 374. However, when the court’s

decision relies on its interpretation of an agreement or concerns a

judge’s authority to preside over a proceeding, we review the court’s

determination de novo. See Markwell v. Cooke, 2021 CO 17, ¶ 22,

482 P.3d 422, 426; Egelhoff v. Taylor, 2013 COA 137, ¶ 27, 312

P.3d 270, 274.

2. Discussion

¶ 27 Upon the parties’ agreement, the chief justice may appoint a

retired judge to preside over a dissolution case. § 13-3-111(1);

C.R.C.P. 122(a)(1). The appointed judge “shall preside over all

matters throughout the duration of the appointment.” C.R.C.P.

122(j). The judge’s “appointment shall last for so long as the parties

specify in the motion and order of appointment.” C.R.C.P. 122(d).

¶ 28 Husband and wife agreed that Judge Meyer would “preside

over the issues in [their] dissolution of marriage action, through

and including the permanent orders hearing, and all issues

inherent therein, both procedural and substantive.” They further

12
agreed that the “duration of Judge Meyer’s appointment shall be

until the entry of [p]ermanent [o]rders and a [d]ecree of [d]issolution

of [m]arriage, including ruling on any post-trial motions, if any,

related to the [p]ermanent [o]rders.” (Emphasis added.)

¶ 29 The court concluded that, under the terms of the appointment,

Judge Meyer had jurisdiction over all matters inherent in the

implementation of the permanent orders. It determined that Judge

Meyer’s post-October 2022 orders were rulings on post-trial

motions related to the permanent orders and, for that reason, they

fell within Judge Meyer’s jurisdiction.

¶ 30 According to husband, the court interpretated the phrase “any

post-trial motions . . . related to the [p]ermanent [o]rders” too

broadly. He acknowledges that the parties’ agreement did not

define this phrase, but he argues that, under “a more reasoned”

interpretation, Judge Meyer’s jurisdiction was limited to rulings on

C.R.C.P. 59 and 60 motions related to the permanent orders.

¶ 31 The primary goal when interpreting an agreement is to

determine and give effect to the parties’ intent based primarily on

the plain and ordinary language of the agreement. Ad Two, Inc. v.

City & Cnty. of Denver, 9 P.3d 373, 376 (Colo. 2000). If

13
unambiguous, the court does not look beyond the terms of the

agreement. Id. at 376-77. But the court may consider extrinsic

evidence to determine the parties’ intent if the language is

ambiguous. Id. at 376.

¶ 32 The plain language of the parties’ stipulation broadly extended

Judge Meyer’s appointment to “any post-trial motions . . . related to

[p]ermanent [o]rders.” A post-trial motion generally means a

“motion made after judgment is entered.” Black’s Law Dictionary

1213, 1414 (12th ed. 2024); see also Renfandt v. N.Y. Life Ins. Co.,

2018 CO 49, ¶ 18, 419 P.3d 576, 580 (“When determining the plain

and ordinary meaning of words, we may consider definitions in a

recognized dictionary.”). Moreover, “any” is an inclusive term

commonly understood to mean “without limitation or restriction.”

See Nat’l Farmers Union Prop. & Cas. Co. v. Estate of Mosher, 22

P.3d 531, 534 (Colo. App. 2000). And “related to” encompasses all

issues surrounding the underlying subject. In re Estate of Gattis,

2013 COA 145, ¶ 40, 318 P.3d 549, 558. Thus, the ordinary

meaning of “any post-trial motions . . . related to [p]ermanent

[o]rders” is any motion filed after the entry of judgment that

encompass issues surrounding the permanent orders. Had the

14
parties intended to limit the meaning of this phrase to C.R.C.P. 59

and 60 motions, they could have said so in their stipulation. But

they did not do so.

¶ 33 Husband suggests that such a broad interpretation means

that Judge Meyer’s appointment could last indefinitely and that

such an interpretation is contrary to the “clearly contemplated . . .

finite end” to a judge’s appointment under C.R.C.P. 122. But

contrary to his suggestion, C.R.C.P. 122 imposes no direct

requirement that a judicial appointment under that rule must end.

Rather, it permits the appointment to “last for so long as the parties

specify.” C.R.C.P. 122(d). Only in the absence of the parties’

specification does the rule address the end of the appointment. Id.

¶ 34 Given the broad language in the stipulated appointment, we

agree with the court that Judge Meyer had jurisdiction to enter the

first December 2022 order. Wife filed her motion to allocate the

right to claim the children as dependents for income tax purposes

after the entry of permanent orders, and her request related to an

issue surrounding the permanent orders — the determination of

child support. See § 14-10-115(12), C.R.S. 2024.

15
¶ 35 We also agree with the court that Judge Meyer had jurisdiction

to issue the February 2023 order. Husband argues that the

C.R.C.P. 70 motion concerned an enforcement remedy that fell

outside Judge Meyer’s jurisdiction. But wife’s request to have

certain documents executed on husband’s behalf sought to

effectuate Judge Meyer’s allocation of marital assets. A court’s

authority to render a judgment includes the inherent power to

enforce it. See Mulei v. Jet Courier Serv., Inc., 860 P.2d 569, 571

(Colo. App. 1993); In re Marriage of Collins, 2023 COA 116M, ¶ 64,

544 P.3d 1258, 1273 (“The district court is vested with the

authority to enforce its orders concerning the dissolution of a

marriage”). Thus, the C.R.C.P. 70 motion, filed after the entry of

permanent orders, was within Judge Meyer’s broad authority to

rule on “any post-trial motions . . . related to [p]ermanent [o]rders.”

Cf. In re Marriage of Dauwe, 97 P.3d 369, 370 (Colo. App. 2004)

(recognizing that C.R.C.P. 70 allows a court to enforce a prior court

order); Schnier v. Dist. Ct., 696 P.2d 264, 267 (Colo. 1985)

(suggesting that a C.R.C.P. 70 motion can be considered a post-trial

motion).

16
¶ 36 To the extent husband challenges the second December 2022

order, which Judge Meyer entered in response to the parties’ emails

concerning the October 2022 order and in which he declined to

revisit the amended permanent orders, we again agree with the

court that such ruling fell within Judge Meyer’s broad authority.

Even husband acknowledges that this order “could be construed as

an order on post-trial motions.” But even if we were to assume that

the terms of the stipulated appointment were ambiguous,

husband’s conduct after the entry of the permanent orders also

supports the court’s conclusion that the parties intended Judge

Meyer’s appointment to continue past entry of the October 2022

order. See Blecker v. Kofoed, 672 P.2d 526, 528 (Colo. 1983) (“One

of the most reliable indications of the true intent of the parties to a

contract is their behavior and interpretation of the contract before a

controversy arises.”). Indeed, he (along with wife) directly asked for

further relief from Judge Meyer following entry of the October 2022

order. That further relief included husband’s request for an order

allocating the tax credits or exemptions for the children.

¶ 37 The court therefore did not err by denying husband’s motion

for declaratory judgment.

17
III. Wife’s Cross-Appeal

¶ 38 In her cross-appeal, wife contends that the court erred by

entering the $44,524 judgment against her. (The court’s judgment

against wife included other sums that Judge Meyer awarded to

husband. We do not address the portions of the judgment

awarding those other sums because wife does not challenge them in

this appeal.)

¶ 39 She argues that, in the October 2022 order, Judge Meyer

resolved her obligation to pay the $44,524 to husband by crediting

this amount to him in determining the amount of money husband

owed her to equalize the allocation of the marital estate. Thus, she

argues that the court’s entry of judgment allowed husband to

recover this sum twice.

¶ 40 In response, husband concedes, and we agree, that, in light of

the October 2022 order, the court erred by entering this judgment

against wife. We therefore reverse the court’s entry of the $44,524

judgment against wife and remand for the court to vacate it.

¶ 41 Wife also asks for an award of the attorney fees and costs she

incurred in litigating her cross-appeal. She asserts that husband

obtained the $44,524 judgment against her even though, in the

18
October 2022 order, Judge Meyer undeniably credited this sum to

husband. Wife argues that husband’s defense of the $44,524

judgment in the court and on appeal was frivolous, groundless, and

vexatious, and forced her to incur the expenses associated with her

cross-appeal. She notes, and husband does not dispute, that

husband conceded — only after wife had briefed the issue on cross-

appeal — that the court erred by entering the $44,524 judgment.

¶ 42 A court “shall assess attorney fees” upon a finding that an

attorney or a party “brought or defended an action, or any part of

an action, that lacked substantial justification” or “was interposed

for delay or harassment.” § 13-17-102(4), C.R.S. 2024. An action

lacked substantial justification if it was “substantially frivolous,

substantially groundless, or substantially vexatious.” § 13-17-

102(9)(a).

¶ 43 After the court entered the $177,873 judgment against

husband, he sought the $44,524 judgment against wife. Wife

objected and explained that Judge Meyer had already accounted for

the $44,524 by crediting it against husband’s equalization payment.

Despite her explanation, husband continued to pursue the

judgment, and the court granted his request. Wife sought relief

19
under C.R.C.P. 59 and 60, again explaining that husband had

already received this money in the form of a credit, as specified in

the October 2022 order. Husband said he disagreed, and the court

denied wife relief.

¶ 44 But in response to wife’s cross-appeal, husband changed his

position and says he now agrees that the $44,524 judgment entered

against wife should be set aside. Husband neither explained the

reason for this late concession nor contested wife’s request for an

award of the attorney fees she incurred in challenging the

judgment.

¶ 45 Under these circumstances, we award wife the attorney fees

she incurred in connection with her cross-appeal because

husband’s litigious conduct unjustifiably forced wife to file the

cross-appeal. See Front Range Home Enhancements, Inc. v. Stowell,

172 P.3d 973, 976 (Colo. App. 2007) (“A vexatious claim or defense

is one brought or maintained in bad faith, which includes conduct

that is arbitrary, abusive, stubbornly litigious, aimed at

unwarranted delay, or disrespectful of truth and accuracy.”). We

remand the issue to the court to determine the reasonable amount

20
of the attorney fees to be awarded to wife in connection with her

cross-appeal. See C.A.R. 39.1.

¶ 46 Costs are taxed in accordance with C.A.R. 39(a).

IV. Disposition

¶ 47 We affirm the $177,873 judgment entered against husband

and the court’s order denying husband’s motion for a declaratory

judgment. We reverse the $44,524 judgment entered against wife.

The case is remanded to the court to vacate the $44,524 judgment

and to determine the amount of the attorney fees to be awarded to

wife consistent with this opinion.

JUDGE J. JONES and JUDGE SULLIVAN concur.

21