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Fritsche v. Thoreson

Court of Appeals of Colorado, Seventh Division

November 5, 2015

Robert D. Fritsche, Plaintiff-Appellant,
v.
Elizabeth Fritsche Thoreson, Defendant-Appellee.

Jefferson County District Court No. 14CV306 Honorable Margie L. Enquist, Judge

Robert D. Fritsche, Pro Se

Gary P. Johnson, Denver, Colorado, for Defendant-Appellee

ASHBY JUDGE

¶ 1 Robert D. Fritsche (husband) appeals from the district court's order dismissing his complaint, which asserted fraud, theft, and conversion claims against Elizabeth Fritsche Thoreson (wife). We affirm.

I. Background

¶ 2 Husband and wife filed for divorce in 2006. The final decree was issued in April 2007 and incorporated the parties' negotiated allocation of marital assets. In January 2013, wife allegedly disclosed, for the first time, income of $69, 399 that she had earned in 2011 from an employment-related lawsuit. In July 2013, wife filed sworn financial statements that allegedly disclosed, for the first time, a pension from IBM in the amount of $111, 575.94. In the parties' original memorandum of understanding, wife stated that she did not then hold retirement benefits with IBM.

¶ 3 In November 2013, husband filed with the domestic relations court a motion to modify the final decree under C.R.C.P. 16.2. Through this motion, husband sought to reopen the settlement agreement for a determination of the appropriate allocation of these previously undisclosed assets. The court did not rule on the motion within the sixty-three day period required by C.R.C.P. 59(j) and, thus, it was deemed denied in January 2014.

¶ 4 In June 2014, husband filed a motion for relief from judgment under C.R.C.P. 60(a) and (b) in the district court. In August 2014, the district court denied the motion, ruling that because, under C.R.C.P. 16.2(e)(10), the domestic relations court lost jurisdiction over the case five years after the final decree was issued, husband's motion, which was filed about six and one-half years later, was untimely. Husband then filed an independent equitable action in district court, asserting fraud, theft, and conversion claims against wife.

¶ 5 In October 2014, wife moved to dismiss husband's complaint under C.R.C.P. 12(b)(5), 16.2(e)(10), and 60. The district court granted wife's motion, ruling that

[the] case is dismissed pursuant to the holding in In re Marriage of Schelp, 228 P.3d 151 (Colo. 2010). [Husband's] sole avenue for relief is (was) the domestic relations case, but any such claims are barred by the five-year statute of limitations. [Husband] has failed to state a claim upon which relief could be granted under any theory of law.

II. Discussion

¶ 6 Husband has raised numerous issues in his opening brief; however, many overlap or are repetitive. Thus, we reduce his contentions of error into two basic questions: (1) Did the district court err by concluding that it lacked jurisdiction to entertain husband's claim because his only recourse was in the domestic relations court, which lost jurisdiction five years after the entry of final orders; and (2) did the district court err by concluding that husband had failed to state a claim upon which relief could be granted? We answer both questions "no."

¶ 7 We review the district court's dismissal of husband's complaint de novo, accepting all allegations of material fact in the complaint as true. Bristol Co. v. Osman, 190 P.3d 752, 754-55 (Colo.App. 2007); Wilson v. Meyer, 126 P.3d 276, 279 (Colo.App. 2005). "Dismissal is proper only if, based on the allegations, ...


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