Marrige of Johnson

24CA0197 Marriage of Johnson 06-26-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0197
El Paso County District Court No. 00DR4379
Honorable Erin Sokol, Judge

In re the Marriage of

Sherry Xan Johnson,

Appellee and Cross-Appellant,

and

Gregory R. Johnson,

Appellant and Cross-Appellee.

JUDGMENT AFFIRMED, ORDER REVERSED,
AND CASE REMANDED WITH DIRECTIONS

Division I
Opinion by JUDGE BERNARD*
Kuhn and Moultrie, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced June 26, 2025

Law Office of Joel M. Pratt, Joel M. Pratt, Colorado Springs, Colorado, for
Appellee and Cross-Appellant

Márquez Law, Jason A. Márquez, Denver, Colorado, for Appellant and Cross-
Appellee

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2024.
¶1 Husband, Gregory R. Johnson, appeals the district court’s

judgment denying his motion to convert a decree of legal separation

from his wife, Sherry X. Johnson, into a decree of dissolution of

marriage. Wife cross-appeals the court’s order denying her request

for attorney fees under section 13-17-102, C.R.S. 2024. We affirm

the judgment, we reverse the attorney fees order, and we remand

this case to the district court for the sole purpose of deciding

whether to award wife attorney fees under section 13-17-102,

including her request for appellate attorney fees.

I. Background

A. The Proceedings Between 2000 and 2009

¶2 Husband and wife married in 1993 and had two children, a

daughter in 1996 and a son in 1998. They separated in 1999, and

they filed a petition for a legal separation in 2000. In 2001, the

parties filed a separation agreement that addressed a parenting

plan, child support, spousal maintenance, and the division of

marital property and debt. The judge who was presiding over the

case issued a decree of legal separation.

¶3 While the decree of separation was in effect, husband and wife

attended marriage counseling, and their relationship improved.

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Husband moved back in with wife some time in 2003 or 2004.

During the time that he lived in the home, husband contributed his

income to the family’s expenses, but he stopped paying wife child

support. They filed their taxes jointly as married, and wife was a

stay-at-home mother.

¶4 Their marital relationship foundered in October 2008, when

husband moved out of the house. He filed three motions: to modify

child support; to appoint a child and family investigator; and to

convert the legal separation decree to a dissolution of marriage

decree. The judge ordered the appointment of a child and family

investigator, but he did not address the other motions.

¶5 Husband and wife went to marriage counseling again, and

their relationship improved. Husband’s attorney filed a status

report in April 2009 indicating that the parties were coordinating

with the child and family investigator and that they had agreed to

be bound by her recommendations.

¶6 As a result of the improvement of the parties’ marital

relationship, husband’s attorney filed a document entitled “Motion

to Dismiss” in May 2009. Among other things, it stated:

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[Husband] filed his [m]otion to [c]onvert
[d]ecree of [l]egal [s]eparation to [d]ecree of
[d]issolution of [m]arriage on October 20,
2008.

Since the filing of said [m]otion, the parties
have been attending marriage counseling and
have reconciled.

For the reasons set forth above, the parties
believe it is in their best interest and the best
interest of the minor children that their action
be dismissed.

Wherefore, [husband] respectfully requests the
relief set forth above, and for such other and
further relief as this [c]ourt deems just and
proper in the premises.

¶7 Weeks later, Judge Kane, a district court judge, granted the

motion, signing the following order that husband had submitted

along with the motion to dismiss:

THIS MATTER, having come before the [c]ourt
on [husband’s] [m]otion to [d]ismiss, and the
[c]ourt having reviewed the same, and the
[c]ourt file, and being otherwise advised in the
premises, DOES HEREBY FIND and ORDER
as follows: [Husband’s] [m]otion to [d]ismiss is
hereby granted.

¶8 Husband did not challenge this order for thirteen years.

B. The Proceedings from 2022 to the Present

¶9 Husband filed a petition of dissolution of marriage in the same

judicial district in December 2022. (Husband states that he did not

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want to file a new petition, but the court’s clerks could not find this

case, which was the original one.)

¶ 10 This case turned up in February 2023, and husband filed, for

a second time, a motion to convert the separation decree to a

dissolution decree. Wife objected.

¶ 11 After reviewing this motion, the court — with a new judge

presiding over the case — decided that husband’s 2009 motion to

dismiss applied to all of this case, that Judge Kane had dismissed

all of it, and that husband was therefore barred from proceeding

with it.

¶ 12 Husband filed a motion asking for post-trial relief under

C.R.C.P. 59 and 60. The court set aside its order barring husband

from proceeding with this case and set a hearing.

¶ 13 At the hearing, husband, wife, and their son testified. The

court found that the testimony of wife and the son was credible but

that husband’s testimony was often not credible. The court issued

a written ruling on December 17, 2023. That order focused on

three things.

¶ 14 First, the court concluded that the “plain language” of

husband’s motion to dismiss, which was filed on behalf of “both

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parties,” stated that dismissing the case was “in the parties’ and the

children’s best interests” and that “the parties had reconciled and

attended marriage counseling.” The court added that “[w]ife

testified credibly (while [h]usband’s testimony was incredible) . . .

[and] that the parties understood that the entire case was to be

dismissed.” After the case was dismissed in 2009, “[h]usband

behaved entirely as one would if one had dismissed their action in

its entirety.” The court concluded that (1) the motion to dismiss

was a written agreement to “modify/extinguish” the separation

agreement; (2) Judge Kane “nullified” the separation agreement

when he granted the motion; and therefore, (3) the separation

decree was “vacated,” and “the case was dismissed in its entirety.”

¶ 15 Second, the court concluded that the parties “did not follow

the material terms” of the separation agreement “from 2003 to

present.” According to the court, case law indicated that parties

could abrogate a separation agreement “by failing or choosing not to

follow the terms of the agreement.” The court decided that the

parties in this case did just that.

¶ 16 Third, the court concluded that the doctrine of judicial

estoppel applied. In reaching this conclusion, the court determined

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that (1) husband had taken two different positions in the same

proceeding, one in 2009 and one in 2023; (2) Judge Kane had

dismissed the entire case in 2009 at husband’s request; and

(3) husband attempted to mislead the court in 2023 about what had

happened between 2009 and 2022.

¶ 17 Two days after the court issued the 2023 order, wife filed an

amended affidavit asking for attorney fees. The court denied that

request, and wife appeals that decision.

II. Husband’s Contentions

¶ 18 Husband offers four reasons why we should reverse the 2023

dismissal order. He contends that the court erred when it

(1) did not enforce the separation decree because the

separation agreement required “a stipulation signed by

both parties to modify” the agreement or set it aside;

(2) decided that Judge Kane’s 2009 order granting

husband’s motion to dismiss had dismissed “the entire

case”;

(3) denied husband’s motion to convert the separation

decree to a dissolution decree; and

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(4) decided that husband’s motion to convert the separation

decree to a dissolution decree was “precluded by judicial

estoppel.”

¶ 19 As we read the record and husband’s opening brief, it appears

that the first two of these contentions are analytically intertwined.

We therefore resolve them together. In doing so, we conclude that

the court did not err when it decided that Judge Kane had

dismissed the entire case in 2009, including the separation decree

and the separation agreement. This conclusion means the

separation agreement and the separation decree no longer exist.

¶ 20 We therefore do not need to address husband’s third and

fourth contentions because (1) there was no separation decree to

convert into a dissolution decree in 2023, and (2) resolving the

judicial estoppel contention would add nothing to or detract

anything from the conclusions that we reach concerning the first

two contentions.

A. Standard of Review and General Legal Principles

¶ 21 When we interpret a trial court’s order and any writing, such

as husband’s 2009 motion to dismiss, we do so de novo, applying

principles of contract interpretation. See Blecker v. Kofoed, 672

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P.2d 526, 528 (Colo. 1983). Our primary goal is to determine the

intent of the drafter of a motion and of the court that granted the

order. See Sch. Dist. No. 1 v. Denver Classroom Tchrs. Ass’n, 2019

CO 5, ¶ 12.

¶ 22 We determine intent primarily from the document’s language.

Id. We focus on the words used in the motion and in the order. See

Cheyenne Mountain Sch. Dist. No. 12 v. Thompson, 861 P.2d 711,

715 (Colo. 1993). We construe them “in harmony with th[eir] plain

and generally accepted meaning . . . and by reference to” all the

document’s provisions and the nature of the case that “forms its

subject matter.” Id. (citation omitted). We may consult recognized

dictionaries to give words their “plain and ordinary meaning[s].”

Renfandt v. N.Y. Life Ins. Co., 2018 CO 49, ¶ 18.

¶ 23 If, after construing the language of a motion and the order

granting it, we decide that the motion and the order are not

ambiguous, then we will enforce them as written. See Sch. Dist. No.

1, ¶ 13. But, if they are “fairly susceptible to more than one

interpretation,” they are ambiguous, and their meaning is “generally

an issue of fact to be determined in the same manner as other

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disputed factual issues.” Id. (quoting Dorman v. Petrol Aspen, Inc.,

914 P.2d 909, 912 (Colo. 1996)).

B. Analysis

¶ 24 Looking at the plain language of the 2009 motion to dismiss

and of the order granting it, we conclude, for the following reasons,

that these two documents are not ambiguous and that the record

supports the court’s decision to enforce them as written. See id.

¶ 25 The words that the 2009 motion to dismiss and the order

granting it used are categorical.

¶ 26 The word “dismiss” means, “to terminate (an action or claim)

without further hearing.” Black’s Law Dictionary 589 (12th ed.

2024).

¶ 27 An “action” is a “civil or criminal judicial proceeding”; an

“‘[a]ction’ in the sense of a judicial proceeding includes . . . any

other proceeding in which rights are determined.” Id. at 36. “An

‘action’ refers to the whole of the lawsuit.” Brownback v. King, 592

U.S. 209, 220 (2021)(Sotomayor, J., concurring). The concept that

an “action” means the entire case is supported by the Colorado

Rules of Civil Procedure. See, e.g., C.R.C.P. 2 (“There shall be one

form of action to be known as ‘civil action.’”); C.R.C.P. 3(a)(“A civil

9
action is commenced . . . by filing a complaint with the court . . . .”);

C.R.C.P. 41 (entitled “Dismissal of Actions”); see also Chirinos-

Raudales v. People, 2023 CO 33, ¶ 19 (applying the definition of

“action” found in Black’s Law Dictionary).

¶ 28 The 2009 motion to dismiss and the court’s order granting it

are clear. Putting the words “dismiss” and “action” together, the

motion to dismiss asked the court to terminate the judicial

proceeding, the whole of the lawsuit. The order granted that

request.

¶ 29 Husband submits that “action,” a word that his motion to

dismiss used, only meant that he was asking the court to dismiss

the three motions that he had previously filed and that were

pending. He adds that neither the parties nor the judges dealing

with the case in 2009 referred to it as an “action”; rather, they used

words such as “case” and “matter.”

¶ 30 But husband’s submission is a red herring. As we have

demonstrated, the word “action” is broad and all-encompassing

when it comes to the entirety of a case. And it appears in context

with language that supports such a broad definition. For example,

the motion stated that the parties had “attend[ed] marriage

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counseling and ha[d] reconciled.” It was, therefore, in their best

interests, and in the best interests of their children, that “their

action be dismissed.” In other words, the benefits of the parties’

reconciliation provided a reason to end the whole lawsuit. If

husband had merely wanted the court to defer a court decision on

the three motions that he had filed in 2009, he could have said so.

¶ 31 Next, husband asserts that, to dismiss the entire case,

C.R.C.P. 41 required him and wife to file a signed stipulation. But

C.R.C.P. 41(a)(1), which addresses voluntary dismissals, simply

states that such stipulations are one way, among several, to

dismiss a case. It also makes clear that such dismissals are

“without order of court.” Id.

¶ 32 It appears to us that, contrary to husband’s assertion, the

2009 dismissal order occurred under C.R.C.P. 41(a)(2). This

subsection of the Rule reads that “an action shall not be dismissed

at the plaintiff’s instance save upon order of the court and upon

such terms and conditions as the court deems proper.”

¶ 33 Relatedly, husband contends that the 2009 dismissal order

could not dismiss the separation decree or the separation

agreement because the decree did not provide for such a possibility.

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Husband points to the separation agreement, which states that it is

not “modifiable except by its own terms, or by operation of law, or

by written [a]greement of the parties with approval of the [c]ourt.”

He adds that none of those things happened.

¶ 34 But at least one of them did.

¶ 35 The court determined that the 2009 motion to dismiss was a

written agreement of the parties that was approved by a judge. The

language of the motion supports that interpretation. For example,

it states that “the parties believe it is in their best interest and the

best interest of the minor children that their action be dismissed.”

(Emphasis added.) And, while neither husband nor wife signed the

motion, it was signed and filed by husband’s attorney on husband’s

behalf, thus announcing husband’s desire to dismiss the case.

¶ 36 Husband adds that “the dismissal could not be granted under

C.R.C.P. 41(a)(2)” because Judge Kane could not “set aside” the

separation agreement or the separation decree “without determining

that such terms and conditions were proper at that time.” But

Judge Kane made such a determination. The motion to dismiss

informed him that the parties had reconciled and that “the parties

believe[d] it [wa]s in their best interest and the best interest of the

12
minor children that their action be dismissed.” The motion

therefore indicated that the parties thought, when the motion was

filed, that the separation agreement and the separation decree

should no longer apply to their relationship.

¶ 37 In his answer-reply brief, husband contends, for the first time,

that, once the separation decree was entered as a “final judgment”

in 2001, “the entire case could not be dismissed” and that Judge

Kane could not “set aside [the] decree.” He adds that the separation

decree was a “final judgment” because “[n]either party appealed” it.

We do not consider contentions raised for the first time in a reply

brief. Meadow Homes Dev. Corp. v. Bowens, 211 P.3d 743, 748

(Colo. App. 2009).

¶ 38 Even if we assume, for purposes of discussion, that the 2009

motion to dismiss and the order dismissing it are ambiguous on the

issue of whether the order dismissed the separation agreement and

the separation decree, we conclude that the record supports the

court’s determination that the parties’ conduct abrogated the

agreement and the decree.

¶ 39 “The rule is that, upon reconciliation, agreements pertaining to

separation and support are abrogated, provided the reconciliation is

13
intended to be permanent,” with the general exception that

“reconciliation does not automatically terminate property settlement

agreements.” Larson v. Goodman, 475 P.2d 712, 713 (Colo. App.

1970). “The logic of this concept is compelling.” Weiner v. Weiner,

293 A.2d 229, 231 (N.J. Super Ct. Ch. Div. 1972), aff’d, 313 A.2d

222 (N.J. Super Ct. App. Div. 1974). “Public policy favors

preservation of the marriage. Terminating future obligations under

a separation agreement upon reconciliation helps to restore the

previous relationship of the parties . . . .” Id. “Thus, normal

cohabitation, as a matter of public policy[,] will terminate any future

obligation contained in a separation agreement.” Id.

¶ 40 “The question of whether or not reconciliation affects a

property settlement agreement is a question of fact to be determined

by the evidence.” Larson, 475 P.2d at 713.

¶ 41 After reviewing the evidence, the court decided that, once

Judge Kane granted the 2009 motion to dismiss, husband’s and

wife’s conduct showed that they had reconciled and that they had

abandoned the separation agreement and the separation decree. In

reaching that decision, the court repeatedly found that wife was

credible and that husband was not credible.

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¶ 42 The court pointed to a variety of factors occurring over the

thirteen years between 2009 and 2022 indicating that husband and

wife intended their reconciliation to be permanent. See id. For

example, husband moved back into the family home, he had his

name added to the home’s title, and he kept his personal property

there. He received the tax benefits accruing to a married couple,

and he “shared finances” with wife. He lived in a “marital

relationship” in which he had sexual relations with wife. He used

the family car. He did not have to pay child support for his

children. The family went on vacations. Husband and wife

celebrated anniversaries. They held themselves out to the public as

being married, including wearing wedding rings. Husband wanted

to be involved in his children’s lives, and he and wife acted as

parents to the children. Indeed, the court found that the parties’

son testified credibly that husband, wife, and the children lived and

acted as an intact family, not as a separated one.

¶ 43 Evidence in the record supports all these factual findings. We

therefore cannot disturb them. See Schempp v. Lucre Mgmt. Grp.,

LLC, 75 P.3d 1157, 1161-62 (Colo. App. 2003).

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III. Wife’s Cross-Appeal

¶ 44 Wife asserts in her cross-appeal that the court erred when it

denied her request for attorney fees under section 13-17-102. We

agree.

A. Additional Background

¶ 45 In her joint trial management certificate, wife argued that she

was entitled to attorney fees under sections 14-10-119, C.R.S.

2024, and 13-17-102. She stated that the latter statute supported

her request because husband’s attempt to convert the dismissed

separation decree into a dissolution decree was “substantially

frivolous, substantially groundless, or substantially vexatious.”

§ 13-17-102(6).

¶ 46 Wife did not address her request for attorney fees during the

November 2023 hearing. The court issued its written order on

December 17, 2023. Two days later, wife filed an amended affidavit

of attorney fees and costs, which was accompanied by exhibits. The

court denied wife’s attorney fee request on December 24, 2023,

stating that

both parties noted that they would be seeking
an award of attorney fees in the [joint trial
management certificate] but neither party

16
presented arguments or evidence during the
hearing in support of that request. The time to
advance that request and present arguments
and evidence in support of that request has
passed as this case has been concluded and
closed. To the extent that it was not made
clear earlier, the [c]ourt denies any request for
attorney fees.

B. Standard of Review and Applicable Law

¶ 47 “We review the district court’s decision to award attorney

fees . . . for an abuse of discretion, but we review the legal

conclusions forming the basis for that decision de novo.” In re

Marriage of Turilli, 2021 COA 151, ¶ 36 (citing In re Marriage of

Gallegos, 251 P.3d 1086, 1087 (Colo. App. 2010)). “A court abuses

its discretion when its decision is manifestly arbitrary,

unreasonable, or unfair, or when it misconstrues or misapplies the

law.” In re Marriage of Fabos, 2022 COA 66, ¶ 16.

¶ 48 Because marriage dissolution proceedings are civil cases, the

court may award attorney fees under section 14-10-119, under

section 13-17-102, or under both statutes. In re Marriage of de

Koning, 2016 CO 2, ¶ 18 n.2.

¶ 49 Section 14-10-119 requires that parties present evidence of

the reasonableness of attorney fees at the time of the hearing on the

17
motion or the proceeding for which they are requested. C.R.C.P.

121, § 1-22(2) cmt. 2; see In re Marriage of Connerton, 260 P.3d 62,

67 (Colo. App. 2010).

¶ 50 Conversely, section 13-17-102 has no such requirement. It

provides, as is relevant to our analysis, that a “court shall award,

by way of judgment or separate order, reasonable attorney fees

against any attorney or party who has brought or defended a civil

action, either in whole or in part, that the court determines lacked

substantial justification.” § 13-17-102(2). And a party must “file

and serve a motion for attorney fees within [twenty-one] days of

entry of judgment or such greater time as the court may allow.”

C.R.C.P. 121, § 1-22(2)(b).

C. Analysis

¶ 51 Wife does not contest the court’s decision to deny her request

for attorney fees under section 14-10-119; her focus is on her

request under section 13-17-102.

¶ 52 The court’s order denied her request under section 13-17-102

because “[t]he time to advance [it] and present arguments and

evidence in support of [it] ha[d] passed.” But, under C.R.C.P. 121,

section 1-22(2), wife’s request for attorney fees fell within the

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twenty-one-day timeframe to ask for attorney fees relying on section

13-17-102. We therefore conclude that the court misapplied the

law, see Fabos, ¶ 16, when it denied wife’s request under section

13-17-102.

¶ 53 Husband contends that there are four reasons why the court

did not abuse its discretion when it denied wife’s request for

attorney fees under section 13-17-102. We disagree with all of

them.

¶ 54 First, he asserts that wife did not preserve her attorney fees

request under section 13-17-102 because she did not ask for them

at the November 2023 hearing. But she asked for them in the joint

trial management certificate and in the motion she filed two days

after the court issued its order on December 17.

¶ 55 Second, husband submits that wife should have filed her

attorney fees motion under section 13-17-102 within twenty-one

days of February 2, 2024. But he does not explain why this date,

as opposed to December 17, 2023 — the date that the court issued

the order husband appeals — should govern the filing of wife’s

attorney fees motion. We therefore will not consider this

submission. See Vallagio at Inverness Residential Condo. Ass’n v.

19
Metro. Homes, Inc., 2017 CO 69, ¶ 40 (declining to consider an issue

when a party offers no argument or authority to support it).

¶ 56 Third, husband asserts that wife did not file a motion for

attorney fees; rather, she filed an affidavit of fees and costs. But

the court did not rule that the form of the request was invalid;

instead, it rejected wife’s request only because it was untimely.

When we look at the joint trial management certificate and the

documents that wife filed two days after the court’s December 17,

2023, order, we see that wife asked for attorney fees partly relying

on section 13-17-102.

¶ 57 Last, husband contends that wife did not file a timely notice of

appeal from the court’s order denying her request for attorney fees.

But wife filed her notice of cross-appeal on the attorney fees issue

on February 9, 2024, which was forty-seven days after the court’s

order of December 24, 2023, that denied her request for attorney

fees. This was within the forty-nine-day limit for filing a notice of

appeal established by C.A.R. 4(a)(1), and, because husband filed his

notice of appeal on February 2, 2024, it was within the fourteen-day

limit for filing a cross-appeal under C.A.R. 4(a)(2).

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¶ 58 We reverse the court’s order denying wife’s request for attorney

fees under section 13-17-102, and we remand this case to the court

to resolve that issue on its merits. We take no position on what

that resolution should be.

¶ 59 Wife asserts in her opening-answer brief that we “should . . .

award fees for this appeal” because “this appeal represents a

continuation of [h]usband’s attempt to mislead the court”; because

“this appeal is substantially unjustified and interposed for delay”;

and because “[h]usband has more resources than [w]ife, so equity

also demands a fee award.” These assertions couple wife’s request

for appellate attorney fees with her request for attorney fees in the

district court, particularly the assertion that this appeal is “a

continuation of [h]usband’s attempt to mislead the court.” This

means that resolving wife’s request requires evaluating husband’s

appellate contentions in the context of his contentions in the

district court. On remand, the court shall decide whether wife is

entitled to appellate attorney fees under section 13-17-102.

IV. Disposition

¶ 60 The court’s judgment is affirmed. The court’s order denying

wife’s request for attorney fees is reversed, and we remand the case

21
to the court to resolve wife’s motion for attorney fees under section

13-17-102, including her request for appellate attorney fees.

JUDGE KUHN and JUDGE MOULTRIE concur.

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