of Weekes

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.

SUMMARY
January 30, 2020

2020COA16

No. 18CA1143, Marriage of Weekes — Family Law — Post-
dissolution — Modification and Termination of Provisions for
Maintenance, Support, and Property — Change of Physical Care

Father moved under section 14-10-122(5), C.R.S. 2019, to

retroactively modify child support based on a change in physical

care of the child. The district court denied the motion as untimely,

applying an amendment to the statute that became effective after

the change in physical care but before father filed the motion.

As a matter of first impression, a division of the court of

appeals concludes that the district court’s retroactive application of

the amended statute was not unconstitutionally retrospective.

However, the division concludes that the district court erred in

analyzing the applicability of the statutory exception. Accordingly,

the division reverses the order and remands for further proceedings.
COLORADO COURT OF APPEALS 2020COA16

Court of Appeals No. 18CA1143
Jefferson County District Court No. 01DR1296
Honorable Christopher C. Zenisek, Judge

In re the Marriage of

Michele Dawn Weekes,

Appellee,

and

William Warren Weekes,

Appellant.

ORDER REVERSED AND CASE
REMANDED WITH DIRECTIONS

Division V
Opinion by JUDGE HARRIS
Tow and Márquez*, JJ., concur

Announced January 30, 2020

James J. Keil, Jr., Denver, Colorado, for Appellee

Paige Mackey Murray, LLC, Paige Mackey Murray, Boulder, Colorado, for
Appellant

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2019.
¶1 William Warren Weekes (father) appeals the denial of his

motion to retroactively modify child support.

¶2 Ordinarily, any modification of a child support order applies

only prospectively. But if a change in physical care of the child

occurs, section 14-10-122(5), C.R.S. 2019, allows the court to apply

the modification retroactively, as of the date of the change in

physical care.

¶3 In 2008, when father alleges that he took over physical care of

his daughter from Michele Dawn Weekes (mother), section 14-10-

122(5) did not include any time limitation or deadline. By the time

he moved to modify his child support obligation in December 2017,

however, the statute limited retroactive modification to the five

years prior to the filing of the motion to modify support.

¶4 Applying the amended statute, the magistrate denied father’s

motion to retroactively modify child support as untimely. The

statute contains an exception, applicable when enforcement of the

five-year limitation period would be “substantially inequitable,

unjust, or inappropriate,” but the magistrate declined to apply it,

finding that father’s delay in seeking modification was unjustified.

1
The district court affirmed the magistrate’s order, and father

appeals.

¶5 We reject father’s argument that application of the amended

statute to bar his motion violates the constitutional prohibition on

retrospective legislation. But we agree that the magistrate and

district court erred in analyzing the applicability of the statutory

exception. We therefore reverse the order denying father’s motion

and remand the case for further proceedings.

I. Background

¶6 The parties’ marriage ended in 2001. Father was then living in

Arizona, and mother resided with their child in Colorado.

Consistent with the parties’ parenting plan, father was ordered to

pay mother monthly child support.

¶7 After the child became emancipated in 2011, mother sought

approximately $85,000 in unpaid child support, over half of which

represented interest. She mailed her motion for entry of judgment

to two of father’s former addresses in Arizona. When father failed to

respond, the district court entered judgment for mother in the

amount requested.

2
¶8 In 2016, father moved pro se to set aside the judgment. He

asserted that the judgment was procured by fraud, that the child

had lived with him for the majority of the time for which mother

sought child support, that the parties had agreed that no child

support would be owed while father had custody, and that mother

knew where father lived yet did not serve him with her motion for

entry of judgment. He also submitted records of the child’s high

school attendance in Arizona and a notarized letter from the then-

twenty-five-year-old child confirming her living arrangements.

¶9 The district court construed father’s motion as a C.R.C.P.

60(b)(2) motion to set aside the judgment based on fraud and

denied it as untimely. Additionally, the court noted that “[e]ven if

the child resided with [f]ather as indicated, there is no indication of

his child support obligation being altered or vacated for that

reason.”

¶ 10 Thereafter, father filed additional pro se motions to vacate the

judgment, asserting the same grounds. The child also contacted

the court, reiterating that she had lived with father and attended

school in Arizona. She alleged that mother had lied to the court

when mother suggested she did not know father’s current address

3
for purposes of serving the motion; according to the child, mother

had sent her mail and visited her at father’s address around the

time mother obtained the judgment. The district court denied

father’s additional requests to set aside the judgment.

¶ 11 In December 2017, father retained counsel who moved, under

section 14-10-122(5), to modify the support order retroactive to the

child’s 2008 change in residence. Counsel acknowledged that an

amendment effective January 1, 2017, limited retroactive

modification to the five-year period preceding a motion to modify.

He argued, however, that the situation was grossly inequitable,

unfair, and unjust — insisting that mother had obtained judgment

against father for years she knew the child had lived with him and

had thereby obtained a windfall.

¶ 12 Mother denied father’s factual allegations, but argued that, in

any event, the statute’s five-year limitation provision barred father

from obtaining relief.

¶ 13 Before the time for filing a reply had expired, see C.R.C.P. 121,

§ 1-15(1)(c), the magistrate denied father’s motion, finding that his

“gross delay and failure to act simply does not support a finding

4
that application of the statute would be substantially inequitable,

unjust or inappropriate.”

¶ 14 Father nonetheless filed a reply, asserting that mother had

knowingly failed to serve him at his current address, he had

therefore learned of the judgment only after mother began collection

efforts in 2015, the court misconstrued his pro se motions as Rule

60(b) motions rather than timely motions to modify his support

obligation, and retroactive application of the 2017 amendment was

both legally impermissible and unjust. And, noting that the parties’

allegations created a factual dispute concerning the applicability of

the statutory exception, father requested a hearing.

¶ 15 Father then petitioned for district court review of the

magistrate’s ruling, reasserting his prior arguments and his request

for a hearing.

¶ 16 The district court denied the petition. After considering

father’s arguments, including those raised in the reply, the court

affirmed the magistrate’s findings. It concluded that father’s delay

in seeking modification was unjustified: although the alleged

change in the child’s primary residence had occurred in 2008 and

the child emancipated in 2011, father “failed to take any action in

5
the matter until he filed his first Motion to Set Aside the Judgment

on October 17, 2016.” The court further concluded that the

magistrate did not abuse her discretion in denying father’s motion

without a hearing.

II. Retroactive Application of Section 14-10-122(5)’s Amendment

¶ 17 Father contends that the district court’s retroactive application

of section 14-10-122(5)’s five-year limitation period was

unconstitutionally retrospective. We disagree.

A. Legal Standards

¶ 18 Statutes can be applied prospectively or retroactively. Ficarra

v. Dep’t of Regulatory Agencies, 849 P.2d 6, 11 (Colo. 1993). A

statute is applied prospectively when it operates on transactions

that occur after its effective date, and retroactively when it operates

on transactions that have already occurred or rights and obligations

that existed before its effective date. Id.

¶ 19 Although statutes are presumed to operate prospectively, see

§ 2-4-202, C.R.S. 2019, the legislature may override this

presumption by indicating an intent that the statute operate

retroactively. City of Golden v. Parker, 138 P.3d 285, 289 (Colo.

2006). The retroactive application of a civil statute is not

6
necessarily unconstitutional: “[U]nder our state constitution, some

retroactively applied civil legislation is constitutional, and some is

not.” Ficarra, 849 P.2d at 12. Only legislation that is also

“retrospective” in its application is unconstitutional. Id.

¶ 20 A law is unconstitutionally retrospective if it “takes away or

impairs vested rights acquired under existing laws, or creates a new

obligation, imposes a new duty, or attaches a new disability, in

respect to transactions or considerations already past.” Abromeit v.

Denver Career Serv. Bd., 140 P.3d 44, 51 (Colo. App. 2005). Subject

to some limited exceptions, retroactive application of a substantive

law — one that “create[s], eliminate[s,] or modif[ies] vested rights or

liabilities,” People v. D.K.B., 843 P.2d 1326, 1331 (Colo. 1993) — is

ordinarily unconstitutional, Taylor Morrison of Colo., Inc. v. Bemas

Constr., Inc., 2014 COA 10, ¶ 19. But as a general matter, statutes

that are procedural or remedial in nature may be applied

retroactively without violating the constitutional prohibition against

retrospective legislation. Id.

¶ 21 We review de novo whether a statute has been applied in

violation of retroactivity principles. Id. at ¶ 16.

7
B. Application

¶ 22 Prior to January 2017, section 14-10-122(5) “place[d] no time

limit on the obligor’s ability to seek, or the court’s authority to

grant, retroactive modification of child support” based on a change

in care. In re Marriage of Green, 93 P.3d 614, 616 (Colo. App.

2004). As of January 1, 2017, however, the statute now provides

that “[t]he court shall not modify child support [retroactively] for

any time more than five years prior to the filing of the motion to

modify child support, unless the court finds that its application

would be substantially inequitable, unjust, or inappropriate.” § 14-

10-112(5); see Ch. 157, secs. 8, 11, § 14-10-122(5), 2016 Colo.

Sess. Laws 496-97.

¶ 23 Father contends that the five-year limitation provision is not

intended to apply where the change in care occurred prior to the

amendment’s effective date. And, he argues, if the legislature did

intend that the amendment apply retroactively, the statute is

unconstitutionally retrospective.

¶ 24 We first address whether the statute is intended to apply

retroactively.

8
¶ 25 Father says that because the statute does not include express

retroactivity language, we must presume the legislature intended it

to operate prospectively only — meaning that the limitation on

retroactive modification of child support would not apply unless the

change of care occurred after January 2017.

¶ 26 But express retroactivity language is unnecessary. City of

Golden, 138 P.3d at 290; see Ficarra, 849 P.2d at 13-14. Rather, an

intent that a statute operate retroactively may be implied. See

Ficarra, 849 P.2d at 13-14.

¶ 27 The amendment to section 14-10-122(5) ties the limitation on

child support modifications to the filing of the motion to modify, not

the underlying change in physical care. In this way, the

amendment is similar to the statutory provision at issue in Ficarra.

There, the amended statute automatically disqualified persons

convicted of a felony within the last ten years from receiving a bail

bondsman license. 849 P.2d at 9. The supreme court concluded

that the legislature intended the amendment to apply to the

plaintiffs, who had applied for licenses after the amendment’s

effective date, but whose felony convictions predated the

amendment. According to the court, “[t]he intent . . . of the General

9
Assembly to exclude from the ranks of professional bail bondsmen

anyone who has been convicted of a felony . . . within ten years from

the date of his application for renewal is plain.” Id. at 13 (emphasis

added).

¶ 28 Similarly, the 2017 amendment to section 14-10-122(5)

prohibits the district court, as of the amendment’s January 1,

2017, effective date, from modifying child support for any time

before the five years preceding the filing of a motion to modify,

regardless of when the change of care occurred.

¶ 29 Accordingly, we conclude that the amendment was intended

by its plain language to operate on motions filed after its effective

date, even if the change in physical care predated the amendment.

See Ficarra, 849 P.2d at 13-14; see also Shell W. E&P, Inc. v.

Dolores Cty. Bd. of Comm’rs, 948 P.2d 1002, 1011-12 (Colo. 1997)

(A statute providing that interest on taxes levied on lands previously

omitted from a tax list because of the taxpayer’s failure to disclose

shall be calculated from the date the taxes were due “plainly evinces

an intention to change the calculation of interest on tax obligations

that arose in the past.”); Abromeit, 140 P.3d at 47-50 (concluding

that personnel rule amendment eliminating appeal right for

10
classification decisions was intended to apply retroactively to claims

that were pending on its effective date).

¶ 30 Next, we must determine whether retroactive application of the

amendment’s limitation period constitutes unconstitutional

retrospective legislation.

¶ 31 As we have noted, retroactive application of a statute is

unconstitutionally retrospective if it affects vested rights. Taylor

Morrison of Colo., ¶ 19. A right is vested only “when the right to

assert it does not depend on the common law or the statute under

which it was acquired, but rather has an independent existence.”

Id. at ¶ 20.

¶ 32 There is no vested right in remedies. Shell W. E&P, 948 P.2d

at 1012. “The abolition of an old remedy, or the substitution of a

new one, does not constitute the impairment of a vested right.”

Woodmoor Improvement Ass’n v. Prop. Tax Adm’r, 895 P.2d 1087,

1089 (Colo. App. 1994).

¶ 33 Section 14-10-122(5) provides a remedy for a parent who has

effectively overpaid child support due to a change in care of the

child. Father says this right to reimbursement is a vested right

because each accrued child support payment became a judgment

11
that could have been modified retroactively under the prior version

of the statute. We disagree.

¶ 34 A judgment arises under section 14-10-122(1)(c) for each child

support payment ordered as soon as the payment becomes due and

is unpaid. See In re Marriage of Schutte, 721 P.2d 160, 162 (Colo.

App. 1986). Father’s right to retroactively modify his previously

ordered child support payments to the date of the change in the

child’s physical care, however, exists only by operation of section

14-10-122(5). See Green, 93 P.3d at 616-17. Because the remedy

does not exist independent of the statute, there is no vested right in

its operation, and therefore it can be abolished or changed.

Woodmoor Improvement Ass’n, 895 P.2d at 1089.

¶ 35 Section 14-10-122(5) is remedial in nature and its limitation

provision is simply a limitation on the remedy — regardless of when

the change in custody occurred, relief is limited to the five years

preceding the filing of the motion. The application of a limitation on

a remedy to an existing claim for relief does not violate the

prohibition against retroactive legislation. Id.; see also Shell W.

E&P, 948 P.2d at 1012; Vetten v. Indus. Claim Appeals Office, 986

P.2d 983, 986 (Colo. App. 1999).

12
¶ 36 Woodmoor Improvement Ass’n, which presents a similar

scenario, is instructive. In 1992, the plaintiff homeowners’

association filed a petition for abatement and refund of property

taxes for tax years 1986-1991. At the time the association paid

most of the taxes, the refund statute contained a six-year statute of

repose. But in 1991, the statute was amended and precluded

refunds “unless a petition for abatement or refund is filed within

two years” of the year taxes were levied. Id. The association argued

that the application of the two-year limitation provision was

unconstitutionally retrospective because it “remov[ed] its vested

right in a six-year repose period.” Id. The division disagreed,

concluding that the limitation provision “can appropriately bar a

claim which arises from events that occurred prior to its adoption.”

Id.

¶ 37 Father had no vested right in the child support modification

remedy as it was defined under section 14-10-122(5). Thus, the

district court did not err in applying the January 1, 2017,

amendment to father’s motion filed after that date. See Shell W.

E&P, 948 P.2d at 1012; Vetten, 986 P.2d at 986; Woodmoor

Improvement Ass’n, 895 P.2d at 1089.

13
¶ 38 We are not persuaded otherwise by the authorities on which

father relies. True, in United Bank of Denver National Ass’n v.

Wright, 660 P.2d 510 (Colo. App. 1983), the division determined

that an amended statute of limitations should not apply

retroactively to a claim that had accrued prior to the date of the

amendment. Id. at 511. But it also determined that the legislature

had not intended the tolling provision at issue to apply retroactively

in the first place. Id. (“The amended statute contains no language

indicating a legislative intent that this amendment receive

retroactive application”; accordingly, “it became effective on the date

of its approval.”). Thus, the analysis regarding the effect of applying

the statute retroactively appears to be dicta.

¶ 39 In any event, since Wright, the supreme court has

unequivocally instructed that “application of a statute to a

subsisting claim for relief does not violate the prohibition of

retrospective legislation where the statute effects a change that is

only procedural or remedial in nature.” Shell W. E&P, 948 P.2d at

1012. We are bound by decisions of our supreme court. See People

v. Allen, 111 P.3d 518, 520 (Colo. App. 2004).

14
¶ 40 As for Wood Bros. Homes, Inc. v. Howard, 862 P.2d 925 (Colo.

1993), the plaintiffs in that case brought their action while the

original statute of limitations was in effect and the successor

statute expressly provided that it “shall apply to claims for relief

arising on or after” its effective date. Id. at 931. Thus, like the

division in Wright, the Howard court concluded that the successor

statute was not intended to apply retroactively. Id. at 930-31.

¶ 41 In sum, we conclude that the district court’s application of the

January 2017 amended statute did not violate the constitutional

prohibition on retrospective laws.

III. Application of the Statutory Exception

¶ 42 Alternatively, father contends that even if the five-year

limitation provision applies to his motion, the district court erred in

analyzing the applicability of the statutory exception. The exception

applies where imposing the limitation provision would be

“substantially inequitable, unjust, or inappropriate.” § 14-10-

122(5). At a minimum, father says, the court should have held a

hearing before determining that the exception did not apply. We

agree that the court erred.

15
¶ 43 In determining that the exception did not apply, the magistrate

found that father’s motion was filed “well outside the 5-year mark”

and that his “gross delay and failure to act” did not support a

finding that application of the statute would be substantially

inequitable, unjust, or inappropriate. On review, the district court

concluded that the magistrate’s findings were supported by the

record, as father had failed to take any action until 2016, five years

after the child became emancipated. However, neither the

magistrate nor the district court appeared to consider father’s

various arguments that might have supported application of the

statutory exception.

• Father asserted that he did not learn of the judgment until

2015 because mother had mailed her motion to what she

knew was his former, not then current, address. The child’s

letters and affidavit, if credited by the court, corroborate

father’s allegations.

• Father argued that the court should have construed his pro

se motion to set aside the judgment as a timely motion to

retroactively modify child support based on a change in

care. Though the motion was not designated as such, the

16
basis of his request to set aside the judgment was that a

change in care had occurred. See Estates in Eagle Ridge,

LLLP v. Valley Bank & Tr., 141 P.3d 838, 843 (Colo. App.

2005) (the substance of a pleading controls over its form or

caption); see also Cornelius v. River Ridge Ranch

Landowners Ass’n, 202 P.3d 564, 572 (Colo. 2009) (court

may take into account the fact that a party is appearing pro

se, notwithstanding that pro se parties are bound by rules

of civil procedure).

• Father asserted that the parties had agreed that he would

not pay child support after physical care of the child was

transferred to him.

¶ 44 Contrary to the district court’s implicit determination, we

conclude that whether to apply the statutory exception involves a

fact-intensive inquiry. And, as mother conceded at oral argument,

the material facts here are hotly contested. (For example, did

mother purposefully serve the motion at the wrong address? Did

mother’s conduct justify father’s delay in filing his motion to set

aside the judgment? Did father stop paying child support in

reliance on an agreement concerning change in care and, if so, was

17
that reliance reasonable?) Thus, the district court could not make

the necessary findings without an evidentiary hearing. See Green,

93 P.3d at 617 (remanding case for a hearing on child support

when “numerous issues of fact were disputed”).

¶ 45 We reject mother’s argument that father was not entitled to a

hearing because he did not request one until his reply brief. Mother

cites no authority prohibiting a hearing when one is requested for

the first time in a reply brief. See, e.g., C.R.C.P. 121, § 1-22(2)(c)

(party affected by a motion for attorney fees may request a hearing

“within the time permitted to file a reply”). In any case, the district

court may, in its discretion, set a hearing on any motion. C.R.C.P.

121, § 1-15(4).

IV. Conclusion

¶ 46 The order is reversed, and the case is remanded for the district

court to conduct an evidentiary hearing to determine whether it

would be substantially inequitable, unjust, or inappropriate to

apply section 14-10-122(5)’s five-year limit to bar father’s motion to

retroactively modify child support.

JUDGE TOW and JUDGE MÁRQUEZ concur.

18