Marriage of Slancik

23CA1421 Marriage of Slancik 07-11-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1421

El Paso County District Court No. 20DR30379

Honorable Erin Sokol, Judge

In re the Marriage of

Michael Ernest Slancik,

Appellee,

and

Rhonda Lee Slancik n/k/a Rhonda Lee Cavanaugh,

Appellant.

ORDER REVERSED AND CASE

REMANDED WITH DIRECTIONS

Division IV

Opinion by JUDGE NAVARRO

Pawar and Richman*, JJ., concur

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

Announced July 11, 2024

Beltz & West, P.C., Daniel A. West, Colorado Springs, Colorado, for Appellee

The Drexler Law Group, LLC, Matthew B. Drexler, M. Addison Freebairn,

Colorado Springs, Colorado, for Appellant

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.

VI, § 5(3), and § 24-51-1105, C.R.S. 2023.

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¶ 1 In this dissolution of marriage case, Rhonda Lee Slancik, now

known as Rhonda Lee Cavanaugh (wife), appeals the district court’s

post-decree order that addressed the allocation of her Public

Employees’ Retirement Association (PERA) account and entered a

money judgment against her. We reverse the order and remand for

further proceedings on her request for appellate attorney fees.

I. Relevant Facts

¶ 2 In 2021, the district court dissolved wife’s marriage with

Michael Ernest Slancik (husband) and entered permanent orders.

The court found that wife’s PERA account was a marital asset, from

which she received benefits of $3,797 per month. The court

ordered the equal division of the PERA account via the time rule

formula set forth by In re Marriage of Hunt, 909 P.2d 525, 532

(Colo. 1995), and In re Marriage of Gallo, 752 P.2d 47, 55 (Colo.

1988). The court generally noted wife’s “agreement.” The court

directed the parties to use a qualified domestic relations order

(QDRO) to divide the account and pay husband his share.

¶ 3 Wife appealed the district court’s permanent orders, and a

division of this court affirmed. See In re Marriage of Slancik, (Colo.

App. No. 21CA0871, Sept. 15, 2022) (not published pursuant to

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C.A.R. 35(e)) (Slancik I). She did not challenge the court’s allocation

of her PERA account.

¶ 4 During the pendency of that appeal, wife did not sign the

QDRO, and husband filed a motion to have the QDRO executed on

wife’s behalf. The district court granted husband’s request and

ordered wife to execute any other documents necessary to effectuate

the division of her PERA account.

¶ 5 The district court later determined that, by statute, it did not

have jurisdiction to order the division of wife’s PERA account

without her written agreement. The court withdrew its previous

orders to enforce its allocation of the PERA account, including the

execution of the QDRO. The court noted that it could not revisit its

permanent orders while the appeal was pending but, to give effect to

its allocation of the PERA account, it would need to do so when the

mandate was issued.

¶ 6 Following that mandate, husband filed, as relevant here, a

motion for the entry of judgment against wife. He alleged that,

based on his calculation, he was entitled to approximately $1,300

per month from wife’s PERA account benefits and that wife was not

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giving him his share. He requested an entry of judgment for the

approximately $35,000 unpaid to him since permanent orders.

¶ 7 The district court denied his motion. The court explained

that, given its previous determination that it lacked jurisdiction to

divide wife’s PERA account as it had done in its permanent orders,

it must first amend the judgment to implement an alternative

payment mechanism. The court directed husband to file a new

motion clarifying, among other things, how he wished to have the

court amend its permanent orders.

¶ 8 Husband filed a renewed motion and asked the district court

to order wife to pay him monthly for his share of the PERA account

benefits. He also asked the court to enter judgment against her for

the $35,000 that she had not paid since permanent orders.

¶ 9 Relying on C.R.C.P. 60(a), the district court amended its

permanent orders, and it granted husband’s request, ordering wife

to pay him directly his share of the PERA account, nunc pro tunc to

the date of the 2021 judgment. And the court entered a judgment

of approximately $35,000 against wife.

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II. C.R.C.P. 60(a)

¶ 10 Wife contends that the district court erred by substantively

modifying its permanent orders under C.R.C.P. 60(a). We agree.

A. Governing Legal Principles

¶ 11 After a final judgment is entered in a dissolution of marriage

case, the district court may not alter, amend, or vacate its

allocation of the marital estate unless it finds conditions justifying

reopening the judgment under C.R.C.P. 59 or C.R.C.P. 60. See

§ 14-10-122(1)(a), C.R.S. 2023; Koch v. Dist. Ct., 948 P.2d 4, 7

(Colo. 1997).

¶ 12 C.R.C.P. 60(a) allows a district court, at any time, to correct

“[c]lerical mistakes in judgments, orders, or other parts of the

record and errors therein arising from oversight or omission.”

¶ 13 We review a district court’s C.R.C.P. 60(a) decision for an

abuse of discretion. Garcia v. Puerto Vallarta Sports Bar, LLC, 2022

COA 17, ¶ 16. The court abuses its discretion when it misapplies

the law. Id. We review de novo the court’s application of the law.

In re Marriage of Medeiros, 2023 COA 42M, ¶ 28.

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B. Analysis

¶ 14 After the mandate in Slancik I, the district court relied on

C.R.C.P. 60(a) to “correct its judgment.” The court explained that it

always intended to allocate husband an equal share of wife’s PERA

account and that due to “circumstances unforeseen” at the time of

its permanent orders, it must amend the allocation of that account.

To effectuate its division of this asset, the court ordered wife to pay

husband directly his marital share from her monthly PERA account

benefits. The court stated that “implement[ing] the mechanical

correction needed here . . . change[d] nothing about the substance

of the judgment or the ultimate liability of the parties” because the

“the end result remain[ed] unchanged.”

¶ 15 C.R.C.P. 60(a) provides a limited means for a district court to

correct a final judgment at any time. See, e.g., Diamond Back

Servs., Inc. v. Willowbrook Water & Sanitation Dist., 961 P.2d 1134,

1136 (Colo. App. 1997). The rule is intended to function “as a

safety valve” when the court enters “an honestly mistaken

judgment” that does not represent the court and the parties’

understanding and expectation. Reisbeck, LLC v. Levis, 2014 COA

167, ¶ 8. The rule applies to errors or omissions by the court, but

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it is confined “to cases in which the [district] court originally

intended to make the award granted by corrective amendment.”

Diamond Back Servs., 961 P.2d at 1136; see also Jennings v. Ibarra,

921 P.2d 62, 65 (Colo. App. 1996) (concluding that C.R.C.P. 60(a)

did “not authorize [an] amendment of a judgment” when the “court

did not originally intend” to include its amended award).

C.R.C.P. 60(a) thus does not permit an unexpected or substantive

change to the judgment, and it does not permit the court to impose

different or additional liabilities on a party. See Reisbeck, ¶¶ 13-15;

see also In re W. Tex. Mktg. Corp. v. Kellogg, 12 F.3d 497, 504 (5th

Cir. 1994) (“[T]he relevant test for the applicability of Rule 60(a) is

whether the change affects substantive rights of the parties and is

therefore beyond the scope of Rule 60(a) or is instead a clerical

error, a copying or computational mistake, which is correctable

under the Rule.”).

¶ 16 The district court did not use C.R.C.P. 60(a) to merely correct

a clerical mistake or an oversight or omission in its original

judgment. The court amended its permanent orders to change the

manner by which it allocated wife’s PERA account because it

determined that its original allocation was legally impermissible.

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Such an amendment is outside the scope of C.R.C.P. 60(a). See

Weize Co. v. Colo. Reg’l Constr., Inc., 251 P.3d 489, 499 (Colo. App.

2010) (“[T]he trial court’s reliance on C.R.C.P. 60(a) was erroneous

because the correction was based on its statutory interpretation,

not on a clerical mistake.”), superseded by statute on other grounds,

Ch. 279, sec. 1, 2011 Colo. Sess. Laws 1249-50; see also W. Tex.

Mktg. Corp., 12 F.3d at 505 (“Rule 60(a) will not be available to

salvage the government’s blunders. . . . It is only mindless and

mechanistic mistakes, minor shifting of facts, and no new

additional legal perambulations which are reachable through Rule

60(a).”). To put a finer point on it, “Rule 60(a) may not be used to

change something that was deliberately done, . . . even though it

was later discovered to be wrong.” McNickle v. Bankers Life & Cas.

Co., 888 F.2d 678, 682 (10th Cir. 1989) (citation omitted).

¶ 17 In a dissolution of marriage case, the retirement benefits of a

public employee are divisible directly by the retirement plan only

upon the written agreement of the parties. § 14-10-113(6)(a)(I),

C.R.S. 2023; In re Marriage of Tagen, 62 P.3d 1092, 1094 (Colo.

App. 2002). In the absence of an agreement, a court does not have

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jurisdiction to enter an order dividing the public employee

retirement benefit. § 14-10-113(6)(f); Tagen, 62 P.3d at 1094.

¶ 18 The district court initially ordered the parties to divide wife’s

PERA account through a QDRO and have PERA distribute the

portion allocated to husband. When the court issued those

permanent orders, it did not indicate that it had considered any

alternative ways to effectuate the division of wife’s PERA account.

Only upon learning that the court could not effectuate its division of

wife’s PERA account through a QDRO did the court revisit its

permanent orders and amend the manner by which it allocated this

account.

¶ 19 The district court thus amended wife’s liability to conform with

the statutory limitations. Cf. Tagen, 62 P.3d at 1094-95

(determining that, in the absence of the parties’ written agreement,

the court could order the husband to pay the wife a portion of his

PERA benefits as he received his retirement checks). This

amendment required her to take on the additional responsibility of

paying husband directly. See Reisbeck, ¶¶ 13-15. Nothing in the

record indicated that the court ever had the original intent to

implement such a requirement. See Diamond Back Servs., 961 P.2d

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at 1136; Jennings, 921 P.2d at 65. Thus, even if the court intended

to equally divide the marital portion of wife’s PERA account,

C.R.C.P. 60(a) did not authorize it to change its permanent orders

and direct an entirely different mechanism when its initial ruling

was contrary to the governing law. See Weize, 251 P.3d at 499; see

also W. Tex. Mktg. Corp., 12 F.3d at 505; McNickle, 888 F.2d at 682.

¶ 20 Husband attempts to salvage the district court’s ruling by

arguing that the court had the inherent authority to enforce its

judgment. While a court may use any method prescribed by statute

to enforce its judgment, see § 14-10-118(2), C.R.S. 2023; In re

Marriage of Collins, 2023 COA 116M, ¶ 64, the court is confined to

C.R.C.P. 59 or C.R.C.P. 60 when it seeks to modify a final

dissolution judgment, see § 14-10-122(1)(a); Koch, 948 P.2d at 7.

As discussed above, the court’s order improperly modified its

permanent orders; it did not merely enforce the judgment. We thus

reject this alternative basis. See Mulei v. Jet Courier Serv., Inc., 860

P.2d 569, 571 (Colo. App. 1993) (concluding that the court could

issue an order to enforce its prior decree when that order did not

affect the parties’ substantive rights under the prior judgment).

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¶ 21 Accordingly, we reverse the district court’s post-decree order

that modified the court’s allocation of wife’s PERA account.

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III. Entry of Judgment

¶ 22 Wife also contends that the district court erred by entering the

judgment against her for the unpaid PERA account benefits. The

court’s determination to enter the money judgment against wife

stemmed from its C.R.C.P. 60(a) ruling that amended the

permanent orders. The parties acknowledge that the resolution of

this issue rests on the validity of the court’s C.R.C.P. 60(a) ruling.

Having reversed that C.R.C.P. 60(a) ruling, we also reverse the

court’s entry of judgment. See Prairie Mountain Publ’g Co. v.

Regents of Univ. of Colo., 2021 COA 26, ¶ 36 (recognizing that when

an underlying judgment is reversed, an award that is dependent on

that judgment for its validity is also reversed); Sharon v. SCC Pueblo

Belmont Operating Co., 2019 COA 178, ¶ 17 (stating that when a

judgment is reversed, the parties return to the same position they

were in before the judgment was rendered).

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Because we address only whether the district court’s order was

authorized under C.R.C.P. 60(a), we express no opinion as to

whether husband may seek a remedy under any other avenue

available to him.

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IV. PERA Account’s Value

¶ 23 Given our reversal of the district court’s post-decree order, we

need not address wife’s additional contention that the court clearly

erred by finding that her PERA account was valued at $710,563.

¶ 24 To the extent wife attempts to challenge the district court’s

previous rulings that have referenced that value, wife did not timely

appeal those rulings, and we therefore lack jurisdiction to review

them. See C.A.R. 4(a)(1) (requiring a party to file a notice of appeal

within forty-nine days of the entry of judgment); In re Marriage of

James, 2023 COA 51, ¶ 8 (“The timely filing of a notice of appeal is

a jurisdictional prerequisite for appellate review.”).

V. Appellate Attorney Fees

¶ 25 Wife requests an award of attorney fees incurred on appeal

under section 14-10-119, C.R.S. 2023, due to a purported disparity

in the parties’ financial circumstances. Because the district court

is better equipped to determine the factual issues regarding their

current financial resources, we remand this issue to the district

court. See C.A.R. 39.1; Collins, ¶ 86.

¶ 26 Husband also requests an award of appellate attorney fees.

He argues that wife’s appeal lacks substantial justification and that

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he is entitled to attorney fees under section 13-17-102, C.R.S.

2023. Given our disposition, we deny husband’s request. See

Collins, ¶ 87.

VI. Conclusion

¶ 27 The post-decree order amending the district court’s permanent

orders and entering judgment against wife is reversed. The case is

remanded for further proceedings on wife’s request for appellate

attorney fees under section 14-10-119.

JUDGE PAWAR and JUDGE RICHMAN concur.