Sunderman v. Sunderman

24CA1325 Sunderman v Sunderman 08-21-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA1325
Larimer County District Court No. 23CV30772
Honorable Stephen J. Jouard, Judge

Steven Sunderman,

Plaintiff-Appellant,

v.

Pam Sunderman d/b/a Pam Sunderman Design,

Defendant-Appellee.

JUDGMENT AFFIRMED AND CASE
REMANDED WITH DIRECTIONS

Division VI
Opinion by JUDGE YUN
Tow and Sullivan, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced August 21, 2025

Fischer Law Group, P.C., Erik G. Fischer, Ashleigh Bravo, Fort Collins,
Colorado, for Plaintiff-Appellant

Paige Mackey Murray LLC, Paige Mackey Murray, Boulder, Colorado, for
Defendant-Appellee
¶1 In this post-dissolution of marriage case, Steven Sunderman

(husband) appeals the district court’s grant of summary judgment

to Pam Sunderman (wife) on his claim for repayment of loans

executed between the parties during the marriage. Husband

contends that the court erred by determining that his claim was

(1) barred by the doctrine of claim preclusion and (2) released by

the separation agreement incorporated in the final decree of the

parties’ dissolution of marriage. We affirm the judgment and

remand for a determination of wife’s attorney fees incurred in

defending this appeal.

I. Background

¶2 The parties married in 2014. In 2020, husband made five

loans to wife totaling $81,200 for the “[p]urchase, renovation, and

resale” of a property in Loveland, Colorado. The named borrower on

the loan contracts was Pam Sunderman Design, wife’s sole

proprietorship.

¶3 The parties filed for dissolution of marriage in 2021 and, after

mediation, executed a separation agreement that divided their

marital estate. As part of the division of marital property, the

agreement granted wife “all right, title and interest in Pam

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Sunderman Design including all assets and the balance of [two

specified checking accounts] as her sole and separate property free

from all claim thereto by Husband.” It also provided that “[s]o long

as both parties made full disclosure of their assets and the

valuations of said assets are reasonably accurate, both parties

release one another from any and all claims, demands, or causes of

action which arise out of the marital relationship or could be

presumed to have arisen out of the marital relationship, or arising

out of any past contracts or agreements between them, other than

this Agreement.” A magistrate found that the separation agreement

was not unconscionable and incorporated it into the decree

dissolving the parties’ marriage.

¶4 After the dissolution of marriage was finalized, husband filed a

lawsuit against wife, seeking repayment of the $81,200 in loans he

had made to Pam Sunderman Design. Wife moved for summary

judgment, arguing that husband’s claim had been released by the

separation agreement and was barred by the doctrine of claim

preclusion. In response, husband submitted an affidavit stating

that “[t]hese loans were not discussed in [the parties’] mediation”

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and that it was his “belief that the [l]oan [c]ontracts were not

incorporated within the [d]ecree or [s]eparation [a]greement.”

¶5 The district court found that “[t]he material undisputed facts

establish that both parties were aware of the existence of the loan

obligations payable and notwithstanding that fact entered into and

agreed to a release of any and all claims arising out of any past

contracts or agreements between them.” Accordingly, it ruled that

husband’s claim “for repayment of the amounts loaned to Pam

Sunderman Design [was] released under the express terms of the

[s]eparation [a]greement.” The court also determined that claim

preclusion barred husband’s claim, finding that all four elements —

the finality of the judgment, identity of subject matter, identity of

claims for relief, and identity or privity between parties — were

satisfied. The court explained:

[T]he dissolution proceeding resolved all issues
regarding division of marital assets — and
debts, with each party releasing claims against
the other. The injury for which [husband] now
seeks relief is the same resolution that
[husband] sought in the dissolution
proceeding [—] an equitable division of marital
property. The loans which created marital
debt are not wholly independent from or
unconnected to the dissolution proceeding.

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¶6 Husband now appeals.

II. Claim Preclusion

¶7 Husband contends that the district court erred by granting

summary judgment on the basis that his claim against wife for

repayment of the loans to Pam Sunderman Design was barred by

claim preclusion. We disagree.

A. Standard of Review and Governing Law

¶8 We review a grant of summary judgment de novo. Griswold v.

Nat’l Fed’n of Indep. Bus., 2019 CO 79, ¶ 22. Summary judgment is

appropriate only when the pleadings, affidavits, depositions, or

admissions establish that there is no genuine issue of material fact

and that the moving party is entitled to judgment as a matter of

law. Id. at ¶ 23; C.R.C.P. 56(c). In evaluating a motion for

summary judgment, all doubts must be resolved against the moving

party, and the nonmoving party is entitled to the benefit of all

favorable inferences that may be reasonably drawn from the

undisputed facts. Griswold, ¶ 24.

¶9 We also review de novo a judgment entered on the basis of

claim preclusion. Foster v. Plock, 2017 CO 39, ¶ 10. Claim

preclusion prevents “the relitigation of matters that have already

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been decided as well as matters that could have been raised in a

prior proceeding but were not.” Argus Real Est., Inc. v. E-470 Pub.

Highway Auth., 109 P.3d 604, 608 (Colo. 2005). The doctrine

serves the dual purpose of shielding “litigants from the burden of

relitigating an identical issue with the same party or his privy and

of promoting judicial economy by preventing needless litigation.”

Id. (quoting Lobato v. Taylor, 70 P.3d 1152, 1165-66 (Colo. 2003)).

“For a claim in a second judicial proceeding to be precluded by a

previous judgment, there must exist: (1) finality of the first

judgment, (2) identity of subject matter, (3) identity of claims for

relief, and (4) identity or privity between parties to the actions.” Id.

B. Discussion

¶ 10 Husband argues that the district court lacked sufficient basis

to find three of the four elements of claim preclusion: (1) identity or

privity between parties; (2) identity of subject matter; and

(3) identity of claims for relief. He also argues that claim preclusion

should not be applied because it would be inequitable or contrary to

public policy. We consider and reject each argument in turn.

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1. Identity or Privity of Parties

¶ 11 Husband argues that there is no identity or privity of parties

because the loans were not made to wife but to her sole

proprietorship, Pam Sunderman Design. But husband sued only

wife for repayment of the loans made to Pam Sunderman Design; he

did not sue Pam Sunderman Design itself because, as explained in

his complaint, Pam Sunderman Design is a “trade name only” and

not a separate corporate entity. Under Colorado law, an individual

and a sole proprietorship are treated the same. See Allstate Ins.

Co. v. Willison, 885 P.2d 342, 344 (Colo. App. 1994) (“[T]he

distinguishing characteristic of the sole proprietorship is that it is

owned and managed by one person, and thereby exists as an

extension of the personal life of that person.” (quoting J. Moye, The

Law of Business Organizations § 1.01 (2d ed. 1982))).

Consequently, there is an identity of parties in both the dissolution

of marriage case and this case, as both husband and wife are the

only parties in both matters.

2. Identity of Subject Matter

¶ 12 Husband next asserts that “there is no ‘identity of subject

matter’ between the dissolution proceeding, which involved marital

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property division, and the current action, which centers on the

recovery of funds loaned for [wife’s] business.” In determining

whether a prior case involved the same subject matter as the

present case, courts examine “whether the same evidence would be

used to prove the claims, even if the actions are different.” Foster,

¶ 28. If the same evidence would sustain the judgment in both the

first and second cases, then identity of subject matter is satisfied.

Id.

¶ 13 To determine whether the subject matter in both cases is

identical, we examine whether interspousal loans are considered

marital property. When dividing a marital estate, the district court

must account for all the parties’ marital assets and debts.

§ 14-10-113(1), C.R.S. 2024; see also In re Marriage of Jorgenson,

143 P.3d 1169, 1172 (Colo. App. 2006). In doing so, the court must

determine whether an asset or debt is marital or separate. In re

Marriage of Capparelli, 2024 COA 103M, ¶ 9. “[A]fter setting aside

any separate property, the court must divide the marital property in

such proportion as it deems just, ensuring an equitable, but not

necessarily equal, division of the estate.” Id.

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¶ 14 Contrary to husband’s argument, the parties’ interspousal

loans made during their marriage qualify as both marital debts and

assets. “[A]ny debt or liability incurred subsequent to the marriage,

or prior to a decree of legal separation, is presumed to be marital,

regardless of whether the debt/liability is held ‘individually, or by

the spouses in some form.’” 19 Frank L. McGuane, Jr. &

Kathleen A. Hogan, Colorado Practice Series, Family Law & Practice

§ 22:17, Westlaw (2d ed. database updated July 2025) (quoting

§ 14-10-113(3)). Thus, the debt incurred by wife during the

marriage is presumed to be marital debt. See Jorgenson, 143 P.3d

at 1172 (marital liabilities include all debts that are acquired and

incurred during the marriage).

¶ 15 Likewise, “all property acquired by either spouse subsequent

to the marriage and prior to a decree of legal separation is

presumed to be marital property, regardless of whether title is held

individually or by the spouses in some form of coownership.”

§ 14-10-113(3); see also Capparelli, ¶ 10. However, this

presumption may be overcome by evidence that the property was

(1) acquired by gift, bequest, devise, or descent; (2) acquired in

exchange for property acquired prior to the marriage or in exchange

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for property acquired by gift, bequest, devise, or descent;

(3) acquired after a decree of legal separation; or (4) excluded by

valid agreement of the parties. Capparelli, ¶ 10; see also

§ 14-10-113(2).

¶ 16 Here, husband has provided no evidence to rebut the

presumption that the loans were both marital assets and debts. He

offered no evidence of an agreement to treat the loans as non-

marital property, see In re Marriage of McCadam, 910 P.2d 98, 100

(Colo. App. 1995) (where “there [was] no language in the promissory

note indicating that the parties agreed the interest would be treated

as wife’s separate property,” the interest would be treated as marital

property), and no evidence that funds used for the loans came from

husband’s separate property identified in section 14-10-113(2).

¶ 17 Given that the loans are considered marital property, both the

dissolution of marriage case and this case involve an identical

subject matter. In the present case, husband seeks to recover a

marital debt, specifically the repayment of loans made to wife’s

business during their marriage. And in the dissolution of marriage

case, the parties divided all marital assets and liabilities, including

wife’s interest in Pam Sunderman Design. Accordingly, both cases

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involve an identical subject matter and would have relied on the

same evidence — the existence and value of the loans — even

though the actions are different. Foster, ¶ 28; see also Argus,

109 P.3d at 608-09 (holding that identity of subject matter existed

in two actions involving the same parcel of land and the same

agreement).

3. Identity of Claims

¶ 18 Husband further argues there is no identity of claims in the

dissolution of marriage action and the current action because the

loans were never explicitly referenced in the separation agreement

or included in the financial disclosures.1 Thus, husband argues

that the debt incurred by wife’s business was separate and distinct

from the dissolution proceeding.

¶ 19 To determine whether there is identity of claims, the court

must assess “whether the claim at issue in the second proceeding is

the same claim that was (or could have been) brought in the first

proceeding.” Foster, ¶ 29. Colorado has adopted the approach of

1 As the district court noted, neither party had submitted the

financial statements filed in the dissolution proceedings at the
summary judgment stage.

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the Restatement (Second) of Judgments, which states that a

judgment “extinguishes the plaintiff’s claim . . . includ[ing] all rights

of the plaintiff to remedies against the defendant with respect to all

or any part of the transaction, or series of connected transactions,

out of which the action arose.” Argus, 109 P.3d at 609 (alterations

in original) (quoting Restatement (Second) of Judgments § 24

(1982)). Claims arise out of the same transaction “when they ‘seek

redress for essentially the same basic wrong, and rest on the same

or a substantially similar factual basis.’” Foster, ¶ 29 (citation

omitted). It is the underlying injury, not the proffered legal theory,

that determines whether the identity of claims element is met. Id.

¶ 20 Here, husband’s claim pertains to the same series of

transactions (his loans to wife’s business during their marriage) and

seeks redress for the same alleged injury (repayment of loans). The

separation agreement divided the marital property by granting wife

“all rights, title, and interest in Pam Sunderman Design including

all assets and the balance of [two specified checking accounts] as

her sole and separate property free from all claim thereto by

Husband.” (Emphasis added.) It also stated that the “parties

release one another from any and all claims, demands, or causes of

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action . . . arising out of any past contracts or agreements between

them.” Because the separation agreement addressed husband’s

claim against wife’s interest in Pam Sunderman Design, there is an

identity of claims in the two actions.

¶ 21 Moreover, even if we assume that the separation agreement

did not address husband’s loans to Pam Sunderman Design, he

could have raised his claim in the dissolution of marriage

proceeding. See Lucky Brand Dungarees, Inc. v. Marcel Fashions

Grp., Inc., 590 U.S. 405, 412 (2020) (“[C]laim preclusion prevents

parties from raising issues that could have been raised and decided

in a prior action — even if they were not actually litigated.”). As

previously discussed, these loans are considered a marital debt.

Therefore, husband could have included the loans as part of the

division of marital property. And even if, as husband argues, the

loans were “undisclosed” or were not addressed in the separation

agreement, he could have raised them in a C.R.C.P. 16.2(e)(10)

motion to reopen the dissolution or a C.R.C.P. 60 motion.

Accordingly, there is an identity of claims because husband’s

request for repayment of the loans could have been raised in the

dissolution of marriage case.

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4. Public Policy

¶ 22 Finally, husband argues that “a court may decline to apply . . .

claim preclusion if its application would yield a result that is either

inequitable or contrary to public policy.” In making this argument,

husband relies on In re Marriage of Lewis, 66 P.3d 204 (Colo. App.

2003), and Simmons v. Simmons, 773 P.2d 602 (Colo. App. 1988).

Like the district court, we find these cases distinguishable from the

present case.

¶ 23 In Lewis, the husband executed demand promissory notes to

the wife for parts of her inheritance that were not considered

marital property. Lewis, 66 P.3d at 205. The dissolution court

allowed the wife’s contract claims to be joined in the divorce

proceeding. Id. at 206. A division of this court reversed, concluding

that it was against public policy for an equity court to decide civil

contract claims involving nonmarital property. Id. Here, unlike in

Lewis, husband did not provide any evidence that the funds loaned

to wife’s business originated from his separate property. Therefore,

the loans and the resulting debt are both marital and fall within the

jurisdiction of the dissolution court.

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¶ 24 Similarly, husband’s reliance on Simmons is misplaced. In

Simmons, the division held that it was against public policy to allow

the wife’s claim for assault against the husband to be joined in the

dissolution of marriage case. Simmons, 773 P.2d at 605-06. As the

district court noted, the tort claim in Simmons was separate from

and wholly independent of the issues in the dissolution proceeding.

See Gavrilis v. Gavrilis, 116 P.3d 1272, 1275 (Colo. App. 2005)

(noting that the damages sought in Simmons and Lewis were “based

on acts wholly independent from, and unassociated with the issues

in, the dissolution proceeding”). In contrast, here, as the district

court found, husband’s loans to wife “via her sole proprietorship

during the term[] of the marriage created marital debt” that was

part of the property division in the dissolution proceeding.

¶ 25 For all these reasons, we agree with the district court that

husband’s claim for repayment of the loans was barred by claim

preclusion. Because we affirm the district court’s summary

judgment on this basis, we do not need to address the court’s

additional ruling that the express terms of the separation

agreement barred husband’s claim.

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III. Appellate Attorney Fees

¶ 26 In her principal brief, wife requested her appellate attorney

fees pursuant to a provision of the separation agreement and under

section 13-17-102, C.R.S. 2024. While this appeal was pending, the

district court awarded wife her attorney fees incurred in the

underlying case. Husband did not timely appeal the fee award.

Wife thus asks us to take judicial notice of the district court’s

decision and to award her attorney fees for successfully defending

the appeal.

¶ 27 “Under CRE 201(b), a court may judicially notice facts not

subject to reasonable dispute because they are ‘capable of accurate

and ready determination by resort to sources whose accuracy

cannot reasonably be questioned.’ This includes ‘the contents of

court records in a related proceeding.’” People in Interest of I.S.,

2017 COA 155, ¶ 7 (quoting People v. Sa’ra, 117 P.3d 51, 56 (Colo.

App. 2004)). The district court’s decision to award wife her attorney

fees falls into this category. Taking judicial notice of that decision,

we agree with wife that she is entitled to her appellate attorney fees.

See Kennedy v. King Soopers Inc., 148 P.3d 385, 390 (Colo. App.

2006) (“When a party is awarded attorney fees for a prior stage of

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the proceedings, it may recover reasonable attorney fees and costs

for successfully defending the appeal.”). Therefore, on remand, we

direct the district court to determine and award wife’s reasonable

attorney fees incurred in this appeal.

IV. Disposition

¶ 28 The judgment is affirmed, and the case is remanded to the

district court to determine and award wife’s reasonable appellate

attorney fees.

JUDGE TOW and JUDGE SULLIVAN concur.

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