Estate of Williams and Perna

COLORADO COURT OF APPEALS 2017COA120

Court of Appeals No. 16CA1577
Arapahoe County District Court No. 96DR611
Honorable Ben L. Leutwyler, Judge

Carl M. Williams, deceased, by Michael Williams, Personal Representative of
the Estate of Carl M. Williams,

Appellant,

and

Roberta-Diane J. Williams, n/k/a Roberta-Diane J. Perna,

Appellee.

ORDER AND JUDGMENTS REVERSED
AND CASE REMANDED WITH DIRECTIONS

Division VII
Opinion by JUDGE RICHMAN
Ashby and Vogt*, JJ., concur

Announced September 7, 2017

Nevin A. Seeger, P.C., Nevin A. Seeger, Loveland, Colorado; The Vasilco Law
Group, P.C., Patrick M. Vasilco, Denver, Colorado, for Appellant

Litvak Litvak Mehrtens and Carlton, P.C., Ronald D. Litvak, Luke S. Abraham,
Denver, Colorado, for Appellee

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2016.
¶1 Michael Williams, Personal Representative of the Estate of Carl

M. Williams (husband), appeals the district court’s order obligating

the estate to continue making monthly maintenance payments to

Roberta-Diane J. Williams, now known as Roberta-Diane J. Perna

(wife), after husband’s death, and the two support judgments

entered thereon. We reverse and remand the case to the district

court to enter an order requiring the wife to refund to the estate the

amount of monthly payments the estate has paid to wife and the

fees it has paid to her attorney, and to determine and award the

estate its reasonable attorney fees incurred in the matter.

I. Background

¶2 Husband and wife married in November 1988, when wife was

forty-two years old and husband was sixty years old. Prior to

entering into the marriage, husband and wife executed a premarital

agreement. The premarital agreement provided at paragraph 4(b)(3)

that “[husband] shall be required to pay to [wife] during her lifetime,

and [wife] shall be entitled to receive from [husband] during her

lifetime, monthly payments” on the filing of a petition for

dissolution, in an amount determined based on the number of years

the parties were married at the time the petition was filed. Also,

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under the premarital agreement, in exchange for the monthly

payments, wife waived maintenance as determined under section

14-10-114, C.R.S. 2016.

¶3 Husband and wife’s eight-year marriage ended in 1996, and

their separation agreement was incorporated into the decree. The

separation agreement provided in relevant part as follows:

In accordance with the provisions of paragraph
4.(b)(3) of the Premarital Agreement, the
Husband shall pay to the Wife monthly
payments in the amount of $4,379,
commencing thirty (30) days after the filing of
this action for dissolution, and continuing
monthly thereafter until the remarriage or
death of the Wife, whichever first occurs. The
Parties agree that the amount of this monthly
payment has been correctly calculated in
accordance with the provisions of the
Premarital Agreement, and that the Premarital
Agreement provides the amount of these
payments shall be nonmodifiable for the period
of time that the Husband is obligated to make
these payments to the Wife.

¶4 The agreement also provided that except as specified in the

agreement, the parties release each other and their estates “from

every right, claim, and demand of whatever kind or nature.” And it

provided that it “is binding upon and shall inure to the benefit of

the heirs, assigns, and personal representatives of the parties.”

2
¶5 After the 1996 dissolution, husband consistently made the

monthly payments to wife under the agreement until his death on

November 27, 2015. Wife received a final payment on December 1,

2015, but no payments thereafter. She then filed a suggestion of

death, a motion to substitute the estate for husband in the

dissolution action, and a verified entry of support judgment,

asserting that the estate was obligated to make the monthly

payments to her and had failed to do so. The estate responded that

the parties had not agreed to continue the monthly payments

beyond husband’s death and therefore the estate had no obligation

to continue making them.

¶6 Both parties filed briefs in the district court on the legal issue

of whether and under what circumstances a monthly maintenance

obligation continues after the death of the obligor spouse. Wife

then filed another verified entry of support judgment, reflecting the

additional payments that had accrued and had not been paid.

¶7 The district court ruled that the premarital and separation

agreements obligated the estate to continue making the monthly

payments to wife until her death or remarriage. The court further

awarded wife her attorney fees and costs under the prevailing party

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attorney fee provisions of both agreements. The parties then

stipulated that the estate would pay wife the amount of the past

due maintenance payments, make ongoing payments as they came

due, and pay her attorney all fees owed to date, but that the estate

could appeal the district court’s orders and seek to recoup all funds

paid in the event its appeal was successful.

II. The Estate’s Obligation to Continue Making the Monthly
Maintenance Payments to Wife After Husband’s Death

¶8 The estate contends that the district court erred in ruling that

husband’s obligation under the premarital and separation

agreements to make monthly payments to wife survived his death

as an obligation of his estate. We agree.

A. Legal Standards

¶9 Under the version of the applicable statute in effect at the time

of the premarital agreement, “[u]nless otherwise agreed in writing or

expressly provided in the decree, the obligation to pay future

maintenance is terminated upon the death of either party or the

remarriage of the party receiving maintenance.” § 14-10-122(2),

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C.R.S. 1988;1 see In re Marriage of Piper, 820 P.2d 1198, 1199-1200

(Colo. App. 1991) (“In the absence of an agreement or court order to

the contrary, the obligation to pay maintenance is purely personal

and does not survive the death of the obligor spouse.”).2

¶ 10 Accordingly, the issue on appeal, as it was in the district

court, is whether husband and wife “otherwise agreed in writing” in

their agreements, or expressly provided in their decree, that the

monthly payments to wife would survive husband’s death as a

continuing obligation of his estate. There are no post-Uniform

1 The current version of the statute, § 14-10-122(2)(a), C.R.S. 2016,
is similar:
Unless otherwise agreed in writing or expressly
provided in the decree, the obligation to pay
future maintenance is terminated upon the
earlier of:
(I) The death of either party;
(II) The end of the maintenance term . . . ;
(III) The remarriage of or the establishment of
a civil union by the party receiving
maintenance; or
(IV) A court order terminating maintenance.

2 To the extent wife suggested for the first time at oral argument
that the payments were not maintenance and could be enforced
against the estate merely on a contractual basis, we will not
address that argument because it was not raised in the district
court or in the answer brief. See People v. Becker, 2014 COA 36,
¶ 23 (declining to consider argument raised for the first time at oral
argument).

5
Dissolution of Marriage Act cases delineating what the statute

requires to constitute an agreement to continue the obligation to

pay maintenance after the death of the obligor spouse. Thus, we

are called upon to interpret this statutory language.

¶ 11 We review de novo the district court’s interpretation of the

statute, see In re Marriage of Gross, 2016 COA 36, ¶ 8, and of the

premarital and separation agreements, see In re Marriage of

Crowder, 77 P.3d 858, 860 (Colo. App. 2003). In doing so, we need

not defer to the district court’s interpretation. Id.; cf. In re Estate of

Houston, 521 P.2d 182, 183 (Colo. App. 1974) (not published

pursuant to C.A.R. 35(f)) (appellate court was not bound by trial

court’s interpretation of settlement agreement regarding whether

maintenance payments would continue beyond obligor spouse’s

death).

B. Analysis

¶ 12 The district court found that the premarital and separation

agreement provisions for monthly payments to wife “during her

lifetime” and “until the remarriage or death of the Wife” “express[ed]

a clear intent that Wife would receive these payments even after

Husband’s death.” We do not agree with this interpretation.

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Whereas these payment provisions reflect clear agreement regarding

the duration of the monthly payments relative to the life or marital

status of the wife, they say nothing about what would happen on

husband’s death.

¶ 13 Although there is no published Colorado case applying section

14-10-122(2) and addressing agreement language like that used

here, two cases predating the statute and applying similar common

law principles are instructive — In re Estate of Kettering, 151 Colo.

202, 376 P.2d 983 (1962), and International Trust Co. v. Liebhardt,

111 Colo. 208, 139 P.2d 264 (1943).

¶ 14 Under the common law, as under section 14-10-122(2), the

obligation to pay spousal maintenance “[o]rdinarily” ended with the

obligor’s death, but the obligor could agree that payments would

continue thereafter and be payable from the obligor’s estate.

Kettering, 151 Colo. at 206, 376 P.2d at 986. Such an agreement

was enforceable “if it expressly or by clear implication provid[ed]

that the payments shall continue” after the obligor’s death. Id. at

206-07, 376 P.2d at 986; see Houston, 521 P.2d at 183-84 (citing

Kettering and finding agreement provisions “insufficient to overcome

the presumption” that alimony payments end with the obligor

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spouse’s death); Young v. Young, 475 P.2d 350, 351 (Colo. App.

1970) (not published pursuant to C.A.R. 35(f)) (relying on Kettering

and finding no “clear indication” under the separation agreement

that the obligor spouse’s estate was obligated to continue making

the monthly maintenance payments).

¶ 15 In Kettering, the parties’ agreement provided that the monthly

support payments would continue “so long as the wife may live and

remain unmarried.” 151 Colo. at 204, 376 P.2d at 984-85. The

supreme court held that “the phrase ‘so long as the wife may live’

did not evidence clear and express intent that the payments be a

charge upon the [husband’s] estate” after his death. Id. at 207, 376

P.2d at 986. In Houston, 521 P.2d at 183, and Young, 475 P.2d at

351, divisions of this court similarly ruled that agreement

provisions for monthly alimony payments until the wife’s death or

remarriage were not sufficient to obligate the husband’s estate after

his death. And, in International Trust, the supreme court held that

the husband’s estate was liable for monthly payments to the wife

when the separation agreement expressly required such payments

“after the death of the husband.” 111 Colo. at 217-19, 139 P.2d at

268-69.

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¶ 16 Citing to In re Marriage of Koktavy, 44 Colo. App. 305, 612

P.2d 1161 (1980), wife argues that the statute supersedes the

common law rule. But even assuming that is correct, we still find

the holdings of the pre-statute cases instructive in delineating what

type of writing would be required under the statute to continue the

payment of maintenance after the death of the obligor. Wife argues

that any writing suffices, and the words in the premarital

agreement and separation agreement are sufficient. But this

approach would undermine the purpose of the statute, which is to

require a writing that expressly specifies the parties’ agreement.

Instead we conclude, as did the common law cases, that the writing

must expressly or by clear implication provide that the payments

will continue after the death of the obligor. As noted, in those

cases, nearly identical language to that used here was found

insufficient to expressly and clearly provide for continuance of

maintenance after the death of the obligor.

¶ 17 And, our decision is reinforced by decisions from other

jurisdictions concluding that such language is not effective to

continue maintenance posthumously. See Herbst v. Herbst, 153

So. 3d 290, 293 (Fla. Dist. Ct. App. 2014) (“[L]anguage providing

9
that the husband shall pay alimony ‘until wife becomes remarried

or deceased’ does not indicate an intent to bind the husband’s

estate to continue to pay alimony after his death.”); Findley v.

Findley, 629 S.E.2d 222, 224-29 (Ga. 2006) (settlement agreement

provision for alimony until the wife dies or remarries did not

establish clear intent that such payments would continue after the

husband’s death); In re Estate of Lundahl, 773 N.E.2d 756, 762 (Ill.

App. Ct. 2002) (agreement that the wife shall receive monthly

payments for “the balance of her natural life” was not sufficient to

bind the husband’s estate); In re Estate of Jones, 434 N.W.2d 130,

131-32 (Iowa Ct. App. 1988) (decree providing for alimony payments

“until such time as [the wife] dies or remarries” did not express

clear intent to hold the husband’s estate liable); Witt v. Witt, 350

N.W.2d 380, 382 (Minn. Ct. App. 1984) (“We hold an expression

such as ‘so long as obligee shall live’ does not, without more,

expressly provide for maintenance after the obligor’s death.”); Bird

v. Henke, 395 P.2d 751, 753 (Wash. 1964) (the phrase “so long as

[the wife] shall live” did not, standing alone, constitute a clear

expression of intent that alimony be a continuing obligation of the

husband’s estate “in derogation of his testamentary rights”); but see

10
In re Last Will & Testament of Sheppard, 757 So. 2d 173, 174-76

(Miss. 2000) (construing agreement provision for alimony payments

terminating on the wife’s death or remarriage, with no mention of

the husband’s death, as imposing the obligation on his estate after

his death).

¶ 18 The district court specifically noted, as support for its

interpretation, the premarital agreement’s language specifying not

only that husband was required to pay but also that wife was

entitled to receive the monthly payments during her lifetime.

However, the premarital agreement entitled wife to receive the

monthly payments specifically “from Carl,” not also from his estate

after he had died. Likewise, the separation agreement expressly

provides that “Husband shall pay to the Wife” the monthly

payments. Neither agreement said anything about the estate

making the payments after husband’s death. See also Bird, 395

P.2d at 753 (if phrase in agreement providing for alimony “so long

as [the wife] shall live” was to be interpreted literally to apply even

after the husband’s death, “then justice requires an equally literal

meaning be attached to the preceding phrase, ‘to be paid by the

[husband]’”).

11
¶ 19 In addition, the separation agreement provided at its outset

that husband and wife “each release[] the other and the other’s

estate from every right, claim, and demand of whatever kind or

nature which he or she now has or may have in the future against

the other or the other’s estate, whether as surviving spouse, heir-at-

law, or otherwise.” (Emphasis added.) To be sure, this section is

introduced by the phrase “[e]xcept as hereinafter specified,” but the

later provision for maintenance, did not specify that the estate

would be liable for the obligation after the death of husband.

¶ 20 The district court also relied on the general provision at the

end of both agreements providing that the agreements are binding

on and inure to the benefit of the parties’ heirs, assigns, and

personal representatives. We conclude that such a general

provision does not bind the estate to continue the maintenance

payments to wife, without a clear indication in the maintenance

provision of the agreement that such payments are intended to

continue after husband’s death. See Houston, 521 P.2d at 183-84

(interpreting agreement as a whole as not intending to obligate the

husband’s estate to pay alimony after his death, despite general

provision that agreement’s terms were binding on the parties’ legal

12
representatives); see also Kettering, 151 Colo. at 206, 209, 376 P.2d

at 986-87 (interpreting general clause of agreement binding heirs,

executors, and administrators “so far as appropriate” as insufficient

to obligate spouse’s estate to continue alimony payments). And

although this general provision stated that the agreement shall

“inure to the benefit of the estate,” the agreement also released the

parties’ estates as set forth above.

¶ 21 Therefore, we conclude that husband’s personal obligation to

pay ended when he died, absent a clear indication to the contrary,

which, in our view, neither the premarital nor separation agreement

provided. See § 14-10-122(2), C.R.S. 1988; Piper, 820 P.2d at

1199-1200.

¶ 22 In support of the district court’s order, wife analogizes to cases

involving a spouse’s remarriage where the inclusion of an

unequivocal nonmodification clause was ruled sufficient to continue

a maintenance obligation after the recipient spouse’s remarriage.

However, these cases are materially distinguishable from the

present case. In In re Marriage of Parsons, 30 P.3d 868, 868-70

(Colo. App. 2001), the agreement provided that maintenance was

“contractual in nature and non-modifiable by any court,” and a

13
division of this court held that such language was sufficiently

unequivocal to overcome the presumption that maintenance would

end on the recipient spouse’s remarriage. Similarly, in In re

Marriage of Hahn, 628 P.2d 175, 176 (Colo. App. 1981), the non-

modification clause provided that “payments will not be subject to

modification for any reason except the death of the wife,” and the

division found such language sufficient to continue the obligation

after the wife’s remarriage.

¶ 23 In contrast, the separation agreement here provided only that

the amount of wife’s monthly payments was nonmodifiable for the

period that husband was obligated to make the payments.

Accordingly, without a clear expression of intent to continue the

payment obligation beyond husband’s lifetime, the period that

husband was obligated to pay, during which the amount of the

payments was nonmodifiable, ended with his death.

¶ 24 Because we reverse the order obligating the estate to continue

paying maintenance, we also reverse the two support judgments

entered after husband’s death. We reject wife’s argument that the

estate did not preserve the issue of the judgments because it did

not list the issue in its statement of the issues in the notice of

14
appeal. The listing of issues in the notice of appeal is advisory only

and does not restrict the appellant from arguing additional issues in

the opening brief, see C.A.R. 3(a), (d)(3); Casserly v. State, 844 P.2d

1275, 1282 (Colo. App. 1992), assuming such issues were raised in

the district court, as they were here through the estate’s argument

that it was not obligated to continue making the monthly payments

to wife after husband’s death.

III. Attorney Fees and Costs

¶ 25 The estate also contends that the district court erroneously

awarded wife attorney fees under the prevailing party provisions of

the premarital and separation agreements. Based on our

disposition, we agree that the award of attorney fees and costs to

wife must be reversed. In addition, the estate contends that it

should have been awarded its own attorney fees under the

prevailing party provisions of the agreements, and again, based on

the disposition, we agree.

¶ 26 Both the premarital and separation agreements provide for

attorney fees and costs to the prevailing party in any enforcement

action thereunder. The district court awarded attorney fees and

costs to wife under these provisions. It did not address her

15
alternative request for fees and costs under section 14-10-119,

C.R.S. 2016. Because of our disposition to reverse the district

court’s order that the estate is obligated to continue paying wife

maintenance after husband’s death, we must also reverse the award

of fees and costs that was predicated on that order. And we remand

the case for the court to order any such fees that have already been

paid refunded to the estate, and to instead award attorney fees and

costs, including appellate fees and costs, to the estate under the

agreements.

¶ 27 Also based on the disposition, we deny wife’s request for

appellate fees under the agreements. To the extent that she

alternatively requests appellate fees under section 14-10-119, we

also deny that request. Under the premarital agreement, wife

waived her right to receive fees under section 14-10-119. And,

under both agreements, attorney fees incurred for enforcing the

agreements’ terms are to be awarded to the prevailing party — here,

the estate, which was substituted for husband in the dissolution

action.

IV. Conclusion

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¶ 28 The order and judgments are reversed, and the case is

remanded for an order requiring the wife to refund to the estate the

amount of the payments the estate has made to wife and the

attorney fees it has paid to her attorney, and to determine and

award the estate its reasonable attorney fees and costs incurred in

the matter.

JUDGE ASHBY and JUDGE VOGT concur

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