Marriage of Dyar

24CA0013 Marriage of Dyar 02-13-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0013
La Plata County District Court No. 22DR2130
Honorable Nathaniel Baca, Judge

In re the Marriage of

Joseph Barry Dyar, Jr.,

Appellee,

and

Sharla Lynn Dyar,

Appellant.

JUDGMENT AFFIRMED

Division I
Opinion by JUDGE J. JONES
Brown and Yun, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced February 13, 2025

The Law Firm of Lisa Ward, LLC, Lisa Ward, Donald Lawrence, Jr., Durango,
Colorado, for Appellee

Law Office of Daily & Pratt, LLC, Lisa M. Dailey, Joel M. Pratt, Colorado
Springs, Colorado, for Appellant
¶1 Sharla Lynn Dyar (wife) appeals the district court’s judgment

dissolving her marriage with Joseph Barry Dyar, Jr. (husband). We

affirm.

I. Background

¶2 Shortly before their 2011 marriage, the parties executed a

premarital agreement, in which they agreed that each party would

retain their separate property if the marriage was dissolved. The

premarital agreement defined separate property to include

premarital assets, separately titled property, property acquired by

gift during the marriage, property acquired in exchange for separate

property, and any increases in the value of separate property.

¶3 Husband owned a home before the marriage, which we will

refer to as the Ignacio home. Although this home was husband’s

premarital property, the premarital agreement directed husband to

give wife an ownership interest in it under the following terms:

Upon marriage[,] [husband] will gift an
undivided 3% ownership interest in the
[Ignacio] home property to [wife] . . . . At the
anniversary of each year of their marriage[,]
[husband] will gift an additional 1% ownership
interest in the [Ignacio] home property. [Wife]
will not be added to the title of the [Ignacio
home] until year 5 of their marriage when she
will then own an 8% equity interest in the

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home property. At the anniversary of year
10[,] . . . [h]usband will gift 37% ownership
interest in the [Ignacio home] to [w]ife, bringing
her ownership interest in the [Ignacio home] to
50%.

¶4 In 2012, however, husband executed a deed granting wife joint

tenancy in the Ignacio home. In 2016, wife executed another deed

transferring her ownership interest in the Ignacio home to husband.

¶5 In 2022, the parties initiated the dissolution case. They

agreed that the premarital agreement was valid and enforceable and

governed the division of their property. Their only dispute was

whether the premarital agreement entitled wife to a portion of the

Ignacio home as marital property or whether, due to the deeds

executed in 2012 and 2016, the Ignacio home had once again

become husband’s separate property.

¶6 The court began the permanent orders hearing, but after

receiving limited evidence from husband, it continued the hearing

so that the parties could address wife’s motion to exclude parol

evidence relating to the premarital agreement. Husband’s counsel

then indicated that husband wanted to file a C.R.C.P. 56(h) motion

to determine a question of law concerning the characterization of

the Ignacio home as his separate property. The court set a motions

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hearing, and it reset the permanent orders hearing. The court later

granted husband leave to file his Rule 56(h) motion.

¶7 After the parties fully briefed husband’s Rule 56(h) motion and

wife’s parol evidence motion, they asked the court to vacate the

motions hearing and rule on the written filings. The court granted

their request. It then granted husband’s Rule 56(h) motion and

concluded that the Ignacio home was husband’s separate property.

The court later vacated the rescheduled permanent orders hearing

and entered permanent orders.

II. Rule 56(h) Order

¶8 Wife contends that the district court didn’t provide sufficient

findings or conclusions of law to explain the basis of its Rule 56(h)

order.1 The court’s ruling, though brief, was sufficient, and because

the undisputed facts and the applicable law support its

determination, we won’t disturb it.

1 Wife characterizes the ruling as one for summary judgment under

C.R.C.P. 56(c). But the ruling was only on a question of law under
C.R.C.P. 56(h), even though the ruling ultimately led to judgment
for husband.

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A. Governing Legal Standards

¶9 We review de novo a court’s Rule 56(h) order. See Coffman v.

Williamson, 2015 CO 35, ¶ 12. Under Rule 56(h), the court may

determine a question of law when no genuine issues of material fact

exist that impact the court’s determination. See Coffman, ¶ 12.

The court should provide a clear understanding of the basis of its

ruling. See In re Marriage of Gibbs, 2019 COA 104, ¶ 9. But the

court isn’t required to make any specific findings of fact and

conclusions of law. C.R.C.P. 52; accord Leidy’s, Inc. v. H2O Eng’g,

Inc., 811 P.2d 38, 39 (Colo. 1991).

B. Discussion

¶ 10 In its Rule 56(h) order, the court ruled that, based on the

undisputed facts, husband was entitled to judgment as a matter of

law, and it determined that the Ignacio home was his separate

property. Later, the court clarified that its decision was based on

the undisputed facts in the Joint Trial Management Certificate

(JTMC) and the parties’ briefings, and the law set out in husband’s

motion and reply. Although the court didn’t make extensive

findings, its ruling explained that it accepted and adopted

husband’s legal arguments, and that when applying the law to the

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undisputed facts, husband was entitled to determination as a

matter of law. A review of husband’s motion and reply, therefore,

gives a sufficient understanding of the court’s rationale. See People

ex rel. MacFarlane v. Delaware Corp., 626 P.2d 1144, 1146 (Colo.

App. 1980) (determining that a court’s summary conclusion to

grant relief based on the grounds set forth in a party’s motion was

sufficient).

¶ 11 In his Rule 56(h) motion, husband pointed out that the parties

had agreed in the JTMC that (1) husband executed a joint tenancy

deed to wife for the Ignacio home in 2012; and (2) in 2016, wife

executed a deed giving her ownership interest to husband.

Husband argued that under the merger doctrine and the plain

language of the premarital agreement, these undisputed facts

established that the Ignacio home was his separate property. He

explained that by executing the 2012 joint tenancy deed, he

satisfied his obligation under the premarital agreement to give wife

50% ownership in the Ignacio home and that the joint tenancy deed

extinguished the premarital agreement’s provision concerning the

Ignacio home. He further explained that by executing the 2016

deed, wife gifted husband her ownership in the home, and that,

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under the terms of the premarital agreement concerning separate

property, the Ignacio home, now titled solely in his name, was his

separate property.

¶ 12 In her response to husband’s motion, wife asserted, without

citing any legal authority, that the authorities on which husband

relied — which concerned contracts to convey property and merger

— don’t apply to premarital agreements.

¶ 13 In his reply, husband reiterated the argument in his motion

and also argued that wife had waived compliance with the

premarital agreement by accepting the deed in 2012 and deeding

the property back to husband in 2016.

¶ 14 The court accepted husband’s arguments, which we take to

mean all of husband’s arguments. And on appeal, wife doesn’t

challenge the merits of them, save perhaps for merger. See IBC

Denver II, LLC v. City of Wheat Ridge, 183 P.3d 714, 717-18 (Colo.

App. 2008) (where the court rules on multiple bases, the appellant’s

failure to challenge all such bases on appeal requires us to affirm).

Nonetheless, we conclude that the district court properly applied

the merger doctrine.

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¶ 15 Under the merger doctrine, a party’s acceptance of a deed

tendered in performance of an agreement to transfer property

extinguishes the agreement’s terms concerning title, possession,

quantity, or emblements of the property. Lazy Dog Ranch v.

Telluray Ranch Corp., 923 P.2d 313, 318 (Colo. App. 1996);

Skidmore v. First Bank of Minneapolis, 773 P.2d 587, 589 (Colo.

App. 1988). Even though the terms of the deed may vary somewhat

from the terms of the prior contract, the deed controls the parties’

rights to the property. Reed v. Dudley, 533 P.2d 507, 508 (Colo.

App. 1975); see also Campbell v. Summit Plaza Assocs., 192 P.3d

465, 476 (Colo. App. 2008) (“[T]he rights of the parties are

determined by the covenants in the deed rather than by the

language of the contract.”).

¶ 16 The premarital agreement provided a schedule by which

husband was required to give wife 50% ownership in the Ignacio

home over ten years. The agreement clarified that nothing “limit[ed]

or restrict[ed] in any way” husband’s right to give the property to

wife earlier. Husband decided to execute the joint tenancy deed a

year into the marriage. Through this deed, wife received an equal

undivided ownership interest in the Ignacio home, and as evidenced

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by wife’s signature on a later home mortgage, she accepted

ownership in the home as a joint tenant. See Com. Factors of

Denver v. Clarke & Waggener, 684 P.2d 261, 263 (Colo. App. 1984)

(“Each of two joint tenants owns an undivided one-half interest in

the property as a whole.”). The premarital agreement’s provision

concerning the Ignacio home thus merged into the deed. See Lazy

Dog Ranch, 923 P.2d at 318; Skidmore, 773 P.2d at 589. This joint

tenancy deed then controlled wife’s rights in the Ignacio home and

extinguished husband’s obligation under the premarital

agreement’s provision. See Reed, 533 P.2d at 508; see also

Campbell, 192 P.3d at 476.

¶ 17 Wife argues, however, that the merger doctrine shouldn’t apply

to the premarital agreement because the cases applying that

doctrine didn’t arise in a domestic relations context and were

decided before the “General Assembly adopted the Uniform

Premarital and Marital Agreements Act” (UPMAA). See §§ 14-2-301

to -313, C.R.S. 2024. But wife overlooks that the UPMAA doesn’t

apply to an agreement executed in 2011. See § 14-2-303(1), (2),

C.R.S. 2024 (limiting the application of the UPMAA to agreements

signed on or after July 1, 2014). In any event, we reject wife’s

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suggestion that the merger doctrine doesn’t apply to the parties’

premarital agreement. The premarital agreement directed husband

to add wife to the title and give her 50% ownership in the Ignacio

home. Therefore, the provision concerned the title and possession

to the home, and the execution of the joint tenancy deed effectuated

that transfer. See Lazy Dog Ranch, 923 P.2d at 318; Skidmore, 773

P.2d at 589. Wife doesn’t point us to any legal authority creating

an exception for a premarital agreement. See In re Marriage of

Drexler, 2013 COA 43, ¶ 27 (the appealing party bears the burden

of providing authority to support a contention of error).

¶ 18 Still, wife argues that the premarital agreement governed more

than just the transfer of ownership in the Ignacio home. Be that as

it may, provisions in an agreement “that are not intended by the

parties to be incorporated in the deed, or that are not necessarily

satisfied by the execution and delivery of the deed, are collateral

agreements and are preserved from merger.” Coe v. Crady Davis

Corp., 60 P.3d 794, 796 (Colo. App. 2002); accord Bedard v. Martin,

100 P.3d 584, 593 (Colo. App. 2004). The 2012 joint tenancy deed,

therefore, extinguished only husband’s obligation to transfer to wife

title and ownership in the Ignacio home. The other provisions of

9
the premarital agreement survived the 2012 deed, which, as

relevant in this case, included the provision directing that each

party retains any separate property.

¶ 19 After wife received her full ownership interest in the Ignacio

home, she executed the 2016 deed, which transferred her

ownership interest to husband. Husband then became the 100%

owner of the Ignacio home, and the home was titled solely in his

name. Under the separate property provision in the premarital

agreement, separate property included all “separately titled

property” and “any property acquired by gift” during the marriage.

Applying these plain terms, the Ignacio home was husband’s

separate property following the 2016 deed, and it wasn’t subject to

the court’s division in the dissolution case. See § 14-10-113(1),

(2)(d), C.R.S. 2024; see also Ad Two, Inc. v. City & Cnty. of Denver, 9

P.3d 373, 376 (Colo. 2000) (construing the terms of an agreement in

accordance with their plain and generally accepted meanings).

And, contrary to wife’s claim, husband did not raise this plain

language argument for the first time in his reply. He included it in

the Rule 56(h) motion, wife had an opportunity to respond to it, and

it was proper for the court’s consideration.

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¶ 20 Wife also argues that husband argued for the first time in his

reply to the Rule 56(h) motion that he was entitled to a

determination as a matter of law because she had waived her right

to seek performance of the Ignacio home provision and that the

court may have improperly relied on this additional argument. But,

in requesting the court to vacate the hearing on the parties’

motions, wife “agree[d] that the Court [could] rule based upon the

briefing submitted by the parties.” She didn’t object to any new

argument in the reply brief or ask for the opportunity to respond to

any such argument. Regardless, given our conclusion that the

court properly determined that the Ignacio home was husband’s

separate property under the merger doctrine, a plain reading of the

premarital agreement, and the undisputed facts concerning the

transfer of the Ignacio home’s title, we don’t need to address

whether the court erred by apparently accepting the alternative

waiver argument. Cf. Whiting-Turner Contracting Co. v. Guarantee

Co. of N. Am. USA, 2019 COA 44, ¶¶ 32-33 (declining to address one

basis for the court’s ruling when the court properly entered

judgment on an alternative basis).

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¶ 21 In sum, we conclude that the court made sufficient findings to

explain its Rule 56(h) order and did not err by concluding that the

Ignacio home was husband’s separate property.

III. Due Process

¶ 22 Wife next contends that the district court violated her due

process rights. We consider and reject her contentions.

A. Governing Legal Standards

¶ 23 Due process requires a party to be provided with a meaningful

opportunity to be heard. In re Marriage of Hatton, 160 P.3d 326,

329 (Colo. App. 2007). The essence of due process is fundamental

fairness. Van Sickle v. Boyes, 797 P.2d 1267, 1273 (Colo. 1990). It

therefore “is flexible and calls for such procedural protections as the

particular situation demands.” Morrissey v. Brewer, 408 U.S. 471,

481 (1972); accord Van Sickle, 797 P.2d at 1273.

¶ 24 We review de novo whether a party was accorded sufficient

due process. See People in Interest of R.J.B., 2021 COA 4, ¶ 26.

B. Husband’s Reply to the Rule 56(h) Motion

¶ 25 In addition to her arguments above, wife contends that she

was denied due process because the “court may have relied on new

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arguments in [h]usband’s reply without allowing [her] the chance to

respond.” We disagree.

1. Applicable Law

¶ 26 A court generally should not base its ruling on an argument to

which the opposing party wasn’t given the opportunity to respond.

See Krol v. CF & I Steel, 2013 COA 32, ¶ 36; Wallman v. Kelley, 976

P.2d 330, 334 (Colo. App. 1998).

2. Plain Language Argument

¶ 27 As mentioned above, wife claims that husband first made his

argument that the plain language of the premarital agreement

established that the Ignacio home was his separate property in his

reply in support of his Rule 56(h) motion. Although husband

placed this plain language argument under a separate heading for

the first time in his reply, he first raised it in his Rule 56(h) motion.

Wife therefore had a meaningful opportunity to address this

argument, but she chose not to. See In re Marriage of Yates, 148

P.3d 304, 310 (Colo. App. 2006) (a spouse wasn’t denied due

process when the spouse’s inability to fully present their case was

attributable to their attorney’s choices).

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3. Waiver Argument

¶ 28 Wife also claims that she wasn’t given an opportunity to

respond to husband’s argument that she had waived her right to

seek performance of the premarital agreement’s provision on the

Ignacio home by executing the 2016 deed. This was so because, in

wife’s view, husband raised it for the first time in his reply to the

Rule 56(h) motion. However, that wasn’t the first time husband

asserted the argument.

¶ 29 The parties briefed the Rule 56(h) motion simultaneously with

wife’s motion to exclude parol evidence related to the premarital

agreement. In husband’s response to the parol evidence motion,

which he filed before wife responded to the Rule 56(h) motion, he

argued that wife’s actions demonstrated “her waiver of any claims

regarding” the terms of the agreement relating to the Ignacio home.

In making that argument, he referred to his Rule 56(h) motion.

Given the overlap in the parties’ motions, wife had notice of the

argument and could have responded to it in her response to the

Rule 56(h) motion. She also could have addressed it in her reply to

her parol evidence motion, but she didn’t. Moreover, as noted

above, wife agreed that the court could decide the Rule 56(h) motion

14
“based upon the briefing submitted by the parties,” and she had

another opportunity to address this issue at the scheduled hearing,

but she instead agreed to have the court vacate that hearing. See

Yates, 148 P.3d at 310.

¶ 30 But even if wife wasn’t afforded a full opportunity to respond,

she does not make an adequate showing of prejudice to warrant

reversal. As explained above, the court properly entered the ruling

in husband’s favor on the alternative basis for relief, and wife had a

full opportunity to respond to those arguments. See People in

Interest of J.A.S., 160 P.3d 257, 262 (Colo. App. 2007) (a party

generally may not obtain relief on a due process claim absent a

showing of harm or prejudice).

¶ 31 We therefore disagree with wife that her due process rights

were violated by the court’s possible consideration of arguments

purportedly raised for the first time in husband’s reply to the Rule

56(h) motion.

C. Wife’s Opportunity to File Responses to Motions

¶ 32 Wife next contends that the court reversibly erred by ruling on

two of husband’s motions without affording her adequate time to

respond. We disagree.

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1. Applicable Law

¶ 33 Unless otherwise ordered, a district court must give a

nonmoving party twenty-one days to file a response or objection to a

motion, or if the motion is filed within forty-two days of the trial, the

nonmoving party shall be given fourteen days to respond to the

motion. C.R.C.P. 121 § 1-15(1)(b).

2. Motion Seeking Permission to File the Rule 56(h) Motion

¶ 34 At the permanent orders hearing, husband’s counsel informed

the court that, given the continuation of the hearing, husband

intended to file a Rule 56(h) motion concerning the characterization

of the Ignacio home. Wife’s counsel objected and argued that

husband needed the court’s permission to file that motion. See

C.R.C.P. 16.2(c)(4)(B). Counsel also told the court that if husband

filed a request, wife did not “need more than seven days” to

respond. After the hearing, husband filed his request, and the

court granted it nine days later.

¶ 35 Although wife complains that she wasn’t given the full twenty-

one days to respond to husband’s request to file a Rule 56(h)

motion, her attorney told the court that wife would file such a

response within seven days. After those seven days passed without

16
a response from wife, the court granted husband’s request. See In

re Marriage of Evans, 2021 COA 141, ¶ 24 (“Waiver is the

intentional relinquishment of a known right; it may be express, as

when a party states its intent to abandon an existing right, or

implied, as when a party engages in conduct which manifests an

intent to relinquish the right or acts inconsistently with its

assertion.”).

¶ 36 At any rate, we disregard an error or defect in the proceeding

that doesn’t affect the parties’ substantial rights. See C.A.R. 35(c);

see also J.A.S., 160 P.3d at 262. “A party’s substantial right is one

that relates to the subject matter and not to a matter of procedure

or form.” Union Ins. Co. v. Hottenstein, 83 P.3d 1196, 1199 (Colo.

App. 2003). Even if wife wasn’t given the full time to respond to

husband’s request, the court’s ruling merely granted husband

permission to file his Rule 56(h) motion. Wife still had the

opportunity to respond to the merits of husband’s Rule 56(h)

motion, and the court considered her response to that motion when

it rendered its Rule 56(h) order. Thus, even if we assume, without

deciding, that the court erred, we aren’t persuaded that the error

warrants reversal.

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3. Motion to Vacate the Permanent Orders Hearing

¶ 37 After the court issued its Rule 56(h) order, husband filed an

expedited motion to vacate the rescheduled permanent orders

hearing. Husband explained that the sole disputed issue for the

court to resolve at the previously scheduled permanent orders

hearing was whether the Ignacio home was his separate property,

the Rule 56(h) order had since resolved that issue, and no disputed

issues remained for the court at the rescheduled permanent orders

hearing. Fourteen days later, the court granted the motion.

¶ 38 Even if the court vacated the hearing before affording wife the

full time to respond, nothing remained for the court to decide at the

permanent orders hearing following its Rule 56(h) order and the

parties’ previous agreements on the limited scope of the dissolution

proceeding. Still, wife suggests that the court had not yet resolved

“the merits of the case” until it ruled on the motion to vacate and

that she could have presented additional arguments to contest the

Rule 56(h) order at the rescheduled hearing. While the court

expanded on its explanation for the Rule 56(h) order when it

vacated the rescheduled permanent orders hearing, nothing in the

record shows that it was still considering the merits of that issue.

18
The court merely clarified that it had accepted the legal arguments

presented by husband. And wife doesn’t explain why the

permanent orders hearing was necessary for her to contest the

court’s Rule 56(h) order.

¶ 39 Thus, any error in the court’s premature ruling on the motion

to vacate permanent orders doesn’t require reversal. See C.A.R.

35(c); Union Ins. Co., 83 P.3d at 1199; see also J.A.S., 160 P.3d at

262.

D. Presentation of Evidence

¶ 40 Husband testified at the initial permanent orders hearing, and

the court admitted a few of his exhibits. Wife argues that husband

then used those exhibits and an excerpt of wife’s deposition in

support of his Rule 56(h) motion, but that she was not afforded the

same opportunity to present evidence because the court continued

the hearing before she could cross-examine husband or present her

own testimony and exhibits. She claims that this procedure denied

her an opportunity to be heard on the Rule 56(h) motion and

violated her due process rights. We aren’t persuaded.

¶ 41 While husband provided limited testimony and the court

admitted some exhibits, the evidence husband relied on in support

19
of his Rule 56(h) motion concerned matters of fact that were

generally undisputed. Indeed, the exhibits attached to his motion

included evidence on the provisions of the premarital agreement

and the transfer of title on the Ignacio home. In any event, if wife

wanted to present any additional evidence with her response to

husband’s Rule 56(h) motion, she could have done so. Cf. C.R.C.P.

56(h) (noting the availability of an affidavit to support a motion for a

determination of law). Her decision not to present evidence in

support of her response to the Rule 56(h) motion doesn’t mean she

was denied due process. See Yates, 148 P.3d at 310.

IV. Appellate Attorney Fees

¶ 42 Husband requests an award of appellate attorney fees under

section 13-17-102, C.R.S. 2024, arguing that wife’s appeal was

“stubbornly litigious.” Attorney fees under section 13-17-102

“should be awarded only in clear and unequivocal cases when the

appellant presents no rational argument, or the appeal is

prosecuted for the purpose of harassment or delay.” In re Marriage

of Boettcher, 2018 COA 34, ¶ 38, aff’d, 2019 CO 81. While wife’s

appeal was unsuccessful, we don’t agree with husband that it

20
warrants an award of attorney fees. We therefore deny husband’s

request.

V. Disposition

¶ 43 The judgment is affirmed.

JUDGE BROWN and JUDGE YUN concur.

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