Marriage of Renninger

20CA1199 Marriage of Renninger 10-21-2021

COLORADO COURT OF APPEALS

Court of Appeals No. 20CA1199

Arapahoe County District Court No. 19DR30890

Honorable Peter F. Michaelson, Judge

In re the Marriage of

Georgia Renninger,

Appellee and Cross-Appellant,

and

Larry Gene Renninger,

Appellant and Cross-Appellee.

ORDER AFFIRMED IN PART AND REVERSED IN PART

Division II

Opinion by JUDGE ROMÁN

Berger and Yun, JJ., concur

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

Announced October 21, 2021

Lass Cooper & Ramp, LLC, Patricia A. Cooper, Katharine Elena Lum, Denver,

Colorado, for Appellee and Cross-Appellant

Kumpf Charsley & Hansen, LLC, Robert E. Wells, Englewood, Colorado, for

Appellant and Cross-Appellee

1

¶ 1

In this legal separation proceeding, Larry Gene Renninger

(husband) appeals and Georgia Renninger (wife) cross-appeals the

district court’s declaratory order that interpreted the terms of their

1991 prenuptial agreement. We affirm in part and reverse in part.

I. Facts

¶ 2

Wife petitioned for a legal separation from husband in 2019.

Along with his response to the petition, husband put wife “on

notice” that he intended to assert the validity of their prenuptial

agreement. Thereafter, the parties submitted a joint motion seeking

declaratory relief of their rights under the agreement and,

specifically, its application to premarital retirement accounts.

¶ 3

The court requested briefing by the parties. After considering

their positions, the court reached the following relevant

conclusions:

2. The Court concludes that the Agreement

states a valid exception to the marital property

rule and, therefore, served a valid purpose.

3. The Court concludes that the exception to

the rule is that in this marriage assets and

appreciation to retirement and benefit

accounts which existed at the time of marriage

are the sole property of each party upon

dissolution.

2

4. The Court further concludes that

contributions during marriage to any and all

retirement accounts, and appreciation related

to those contributions during marriage are

marital property.

5. The Court concludes that benefits such as

pension benefits which created, conferred, or

accrued prior to marriage are separate

property.

6. The Court concludes that different benefits

such as new pension benefits which did not

exist prior to marriage but were created,

conferred, or accrued after marriage are

marital property.

¶ 4

Wife moved under C.R.C.P. 59 for the court to clarify what it

meant by “new pension benefits” and “different benefits.” The court

clarified that the expression “new pension benefits” reflected its

“intention that only new pension plans in which a party enrolls

after a marriage are marital property.” It otherwise denied wife’s

post-trial motion.

¶ 5

The court certified its declaratory order as a final judgment

pursuant to the parties’ joint request under C.R.C.P. 54(b).

II. The Appeals

¶ 6

The parties appeal the district court’s interpretation of the

agreement, but for different reasons. Husband disagrees with the

court’s conclusion that post-marriage contributions to premarital

3

retirement accounts are marital, and wife disagrees with the

conclusion that only those retirement accounts and benefits

established after the date of the marriage are marital. Resolving

these arguments requires us to review the following four relevant

paragraphs of the agreement:

4. The parties agree and stipulate that all

property and assets presently belonging to the

Prospective Wife, including proceeds of sale,

income, earnings and/or interest therefrom

and appreciation thereof, shall remain the

Prospective Wife’s . . . . Furthermore, all such

property and assets shall be considered and

treated as “Separate Property” pursuant to

C.R.S. Section 14-10-113 in the event of

dissolution of the parties’ marriage.

5. The parties agree and stipulate that all

property and assets presently belonging to the

Prospective Husband, including proceeds of

sale, income, earnings and/or interest

therefrom and appreciation thereof, shall

remain the Prospective Husband’s . . . .

Furthermore, all such property and assets

shall be considered and treated as “Separate

Property” pursuant to C.R.S. Section 14-10-

113 in the event of dissolution of the parties’

marriage.

. . .

7. The parties agree and stipulate that all

property and assets acquired by them after the

date of their marriage (other than with the

proceeds of the sale or other disposition of a

4

party’s separate property . . .), including

proceeds of sale, income, earnings and/or

interest thereon or appreciation thereof, shall

be the marital property of the parties.

. . .

9. The parties agree and stipulate that any and

all retirement accounts and benefits by

whatever name or designation which either one

owns when they get married, together with all

appreciation and earnings thereafter, shall

remain the sole and separate property of the

party who owned it when they married. Any

and all retirement accounts and similar

benefits which are created, conferred or

accrued after the parties get married, together

with all contributions to any retirement

accounts and all appreciation and earnings on

any sums contributed after they get married

shall be marital property, as defined elsewhere

in this agreement. It is the intent of this

paragraph that all sums currently in the

parties’ existing retirement accounts, including

appreciation or internal earnings thereon after

the date of marriage, shall be the separate

property of the party owning same on the date

of their marriage.

A. Relevant Law

¶ 7

A marital agreement is a contract between the parties to a

marriage prior to its incorporation into a dissolution decree. In re

C.G.G., 946 P.2d 603, 606 (Colo. App. 1997). We construe marital

agreements in the same manner as other contracts, In re Estate of

Gadash, 2017 COA 54, ¶ 40, meaning that we consider the contract

5

as a whole and give effect to every provision, if possible, Vallagio at

Inverness Residential Condo. Ass’n v. Metro. Homes, Inc., 2015 COA

65, ¶ 19, aff’d, 2017 CO 69.

¶ 8

We interpret contracts based on the plain and generally

accepted meaning of the words employed. Gadash, ¶ 40. The

parties’ disagreement as to the meaning of the terms of a contract

does not create an ambiguity. See also People ex rel. Rein v. Jacobs,

2020 CO 50, ¶ 44. Where the contract’s terms are unambiguous,

we determine the parties’ intent from the language of the

instrument itself. Id. Complete, clear, and unambiguous contracts

will be enforced as written. In re Marriage of Christen, 899 P.2d

339, 344 (Colo. App. 1995).

¶ 9

Interpreting a written contract and determining whether it is

unambiguous are questions of law on which we need not defer to

the district court. In re Marriage of Crowder, 77 P.3d 858, 860

(Colo. App. 2003).

B. Husband’s Appeal

¶ 10

Husband contends that the agreement unambiguously

provides that all increases in value of a retirement account owned

on the date of the marriage, no matter the source of the increase,

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are separate property. He thus argues that the court erred by

concluding that “contributions during marriage to any and all

retirement accounts, and appreciation related to those

contributions during marriage are marital property.” We disagree.

¶ 11

This argument turns on the interpretation of the second half of

the second sentence of Paragraph 9 in the parties’ agreement: “[A]ll

contributions to any retirement accounts and all appreciation and

earnings on any sums contributed after they get married shall be

marital property, as defined elsewhere in this agreement.”

¶ 12

The word “any” generally means “all.” Stamp v. Vail Corp., 172

P.3d 437, 447 (Colo. 2007). In turn, the word “all” “means the

whole of, the whole number or sum of, or every member or

individual component of, and is synonymous with ‘every’ and

‘each.’” Hudgeons v. Tenneco Oil Co., 796 P.2d 21, 23 (Colo. App.

1990). These are unambiguous words.

¶ 13

Hence, Paragraph 9 unambiguously states that each and every

contribution made to each and every retirement account after the

date of the marriage, and the whole of the appreciation and

earnings on those contributions, is marital property. Put another

way, this sentence signifies the parties’ intent that post-marriage

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contributions to their premarital retirement accounts would be

considered as marital property.

¶ 14

Husband stresses that (1) Paragraphs 4 and 5 clearly state

that assets and property owned on the date of the marriage and all

related increases in value are separate; and (2) Paragraph 7 clearly

states that assets and property acquired after the date of the

marriage and related increases are marital. He thus argues that

the agreement as a whole shows that the retirement accounts and

related appreciation are either separate or marital based on their

date of acquisition, but they cannot be both. We disagree.

¶ 15

While Paragraphs 4, 5, and 7 define and distinguish separate

property from marital property depending on whether property was

owned before or after the date of the marriage, Paragraph 9 is

specific to the parties’ retirement accounts and similar benefits. “In

resolving conflict between terms of an agreement, specific

provisions prevail over general provisions.” Crowder, 77 P.3d at

861. The inclusion of Paragraph 9 demonstrates that the parties

had different intentions when it came to the characterization of

their premarital retirement accounts. Thus, Paragraph 9 prevails

8

over Paragraphs 4 and 5 as it concerns retirement accounts and

related increases.

¶ 16

Recognizing that Paragraph 9 specifically pertains to and

treats retirement accounts differently than other assets or property

does not render Paragraphs 4, 5, or 7 meaningless. See Rein, ¶ 43

(we interpret the contract in its entirety, seeking to harmonize and

give effect to all of its provisions so that none will be rendered

meaningless). Those paragraphs still apply to other forms of assets

and property, such as those listed in the exhibits attached to the

agreement. Further, Paragraph 9 is consistent with Paragraphs 4

and 5 by verifying that premarital retirement accounts and related

increases are separate, like other forms of property. The only

difference is that Paragraph 9 carves out an exception to the

characterization of post-marriage contributions to premarital

retirement accounts.

¶ 17

Husband also argues that post-marriage contributions must

be considered separate because Paragraphs 4 and 5 declare that

“all” forms of increase in separate assets and property are separate.

Yet Paragraph 9 specifically discusses the characterization of

retirement accounts and related increases and prevails over the

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more general Paragraphs 4 and 5 in this regard. See Crowder, 77

P.3d at 861. Therefore, we conclude that the parties did not intend

for “all” forms of increase to premarital retirement accounts,

regardless of their source, to be considered as separate property.

¶ 18

Finally, husband points out that the first and third sentences

of Paragraph 9 confirm that premarital retirement accounts, the

sums in those accounts on the date of the marriage, and related

appreciation or earnings on those accounts are separate. However,

we find the inclusion of the second sentence of Paragraph 9

significant, because it plainly expresses the parties’ intent that

retirement accounts owned before the date of the marriage are

separate but the parties’ contribution to those accounts made after

the date of the marriage is marital. Once more, this sentence

makes clear that the parties intended to treat post-marriage

contributions to retirement accounts differently.

¶ 19

Accordingly, we conclude that the agreement unambiguously

states that post-marriage contributions to the parties’ premarital

retirement accounts, and related appreciation and earnings, are

marital property.

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III. Wife’s Appeal

¶ 20

Wife contends that the court erred by concluding that “new

pension plans in which a party enrolls after a marriage are marital

property.” She argues that the word “accrued” as used in

Paragraph 9 means that the parties intended to treat as marital

those premarital pension benefits that increased in value during the

marriage. We agree that the court erred and therefore reverse its

conclusion.

¶ 21

Once more, this argument turns on the second sentence of

Paragraph 9. This time, we look to the meaning of the words

“created,” “conferred,” and “accrued.” Because the agreement does

not define these words, we may look to the dictionary for guidance

in determining their plain and ordinary meanings. See Weitz Co. v.

Mid-Century Ins. Co., 181 P.3d 309, 312 (Colo. App. 2007)

(“Dictionaries may be used to assist in the determination of the

plain and ordinary meaning of words.”).

¶ 22

The word “accrued” means “to come into existence as an

enforceable claim: vest as a right,” and the word “create” means “to

bring into existence: make out of nothing for the first time.”

Webster’s Third New International Dictionary 13, 532 (2002). The

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word “confer” means “to grant (something) as a gift, benefit or

honor; bestow.” Black’s Law Dictionary 371 (11th ed.).

¶ 23

The three words are joined by the word “or.” See Bledsoe Land

Co. v. Forest Oil Corp., 277 P.3d 838, 846 (Colo. App. 2011) (we give

effect to every word of a contract and render none superfluous).

Generally, we presume the disjunctive use of the word “or” marks

distinctive categories. See Lombard v. Colo. Outdoor Educ. Ctr., Inc.,

187 P.3d 565, 571 (Colo. 2008).

¶ 24

The word “or” as used in the second sentence of Paragraph 9

indicates that “conferred,” “created,” and “accrued” convey three

different things. The words are not, as husband argues,

synonymous with one another. The sentence clearly states that

retirement accounts or similar benefits that are brought into

existence for the first time (“created”), granted or bestowed

(“conferred”), or vest as an enforceable right (“accrued”) after the

date of the marriage are marital.

¶ 25

Of course, the premarital retirement accounts themselves, as

well as any appreciation and accrued interest on those accounts,

will remain separate property per Paragraphs 4, 5 and 9. But new

contributions to the premarital retirement accounts that postdate

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the marriage and all appreciation on those contributions are marital

property.

¶ 26

Therefore, we reverse the court’s conclusions that only “new

pension plans” not in existence at the time of the marriage, or those

plans in which a party enrolls after a marriage, are marital

property. Under Paragraph 9, retirement benefits owned before the

date of the marriage may be considered marital to the extent they

“accrued” after the date of the marriage.

IV. Conclusion

¶ 27

The order is affirmed in part and reversed in part.

JUDGE BERGER and JUDGE YUN concur.