In re the Marriage of Barbara Runge, Appellant, and David Allen Runge, Appellee.
County District Court No. 10DR1467 Honorable Bruce Langer,
Announced February 22, 2018 Robert E. Lanham, P.C., Robert E.
Lanham, Boulder, Colorado, for Appellant
Litvak Mehrtens and Carlton, P.C., Ronald D. Litvak, John C.
Haas, Colorado Springs, Colorado, for Appellee
1 In this post-dissolution of marriage dispute between
Barbara Runge (wife) and David Allen Runge (husband), wife
moved under C.R.C.P. 16.2(e)(10) to discover and allocate
assets that she alleged husband did not disclose or
misrepresented in the proceedings surrounding their 2011
separation agreement. Husband moved to dismiss wife's
motion. In a written order, the district court granted
husband's motion to dismiss, ruling that wife's
motion did not state sufficient grounds to trigger discovery
and allocation of assets under the rule.
2 On appeal, wife challenges the district court's order.
She contends that the district court erred by (1) not
applying the "plausibility" standard, which was
announced in Warne v. Hall, 2016 CO 50, when
granting husband's motion to dismiss; and (2) ruling that
she did not state sufficient grounds in her motion. She also
contends that the court should have at least allowed her to
conduct discovery to prove her allegations.
3 We conclude that the Warne
"plausibility" standard does not apply to the
dismissal of a motion under C.R.C.P. 16.2(e)(10). We also
agree with the district court that wife's motion did not
state sufficient grounds to trigger an allocation of assets
or discovery under the rule. Accordingly, we affirm the
district court's order.
4 As an initial matter, husband contends that the district
court lacked subject matter jurisdiction under C.R.C.P.
16.2(e)(10) because the five-year period during which it may
reallocate assets expired the day after wife moved for such
relief. We disagree.
5 C.R.C.P. 16.2(e)(10) establishes a five-year period where
the court retains jurisdiction to "allocate"
material assets or liabilities that were not allocated as
part of the original decree. It does not, however, limit the
court's jurisdiction to rule on timely motions if the
five-year period expires before the ruling. Therefore, the
majority concludes that the district court had jurisdiction
to rule on the motion because wife's motion was timely -
it was filed within the five-year period under the rule.
6 Because we affirm the court's dismissal of wife's
motion, this opinion does not decide whether the court would
have had jurisdiction to allocate assets if it had granted
wife's motion. The separate concurring opinion of Judge
Richman concludes that the district court retained
jurisdiction to both rule on the motion and allocate assets
if necessary. The dissent of Judge Taubman concludes that the
district court's jurisdiction to consider the motion was
lost as soon as the five-year period expired.
7 The parties, with assistance of counsel, entered into a
separation agreement in 2011 to end their twenty-seven-year
marriage. They requested that the district court find the
agreement to be fair and not unconscionable, and incorporate
it into the dissolution decree. The court did so.
8 Four years and 364 days later, wife moved to reopen the
property division provisions of the agreement under C.R.C.P.
16.2(e)(10), contending that husband did not disclose and had
misrepresented assets during the dissolution case.
9 In response, husband moved to dismiss wife's request,
arguing that she had not sufficiently alleged facts showing
either material omissions or misrepresentations. He also
argued in his reply that the district court lacked subject
matter jurisdiction under the rule because the five-year
period during which it may reallocate assets expired the day
after wife moved for such relief.
10 The district court rejected husband's jurisdictional
argument, but it granted his motion to dismiss, ruling that
wife had not made a sufficient showing under C.R.C.P. 16.2
that husband had failed to provide material information.
11 The purpose of C.R.C.P. 16.2 is to provide uniform case
management procedures and to reduce the negative impact of
adversarial litigation in domestic relations cases.
See C.R.C.P. 16.2(a); In re Marriage of
Schelp, 228 P.3d 151, 155, 157 (Colo. 2010); In re
Marriage of Hunt, 2015 COA 58, ¶ 9. The rule
imposes heightened affirmative disclosure requirements for
divorcing spouses and allows dissolution courts to reallocate
assets in the event that material misstatements or omissions
were made by a spouse. See Schelp, 228 P.3d at 155;
Hunt, ¶ 9; see also C.R.C.P. 16.2(e).
12 Regarding disclosure, the rule imposes a special duty of
candor on divorcing spouses, which includes "full and
honest disclosure of all facts that materially affect their
rights and interests." C.R.C.P. 16.2(e)(1); see
Schelp, 228 P.3d at 156. In discharging this duty,
"a party must affirmatively disclose all information
that is material to the resolution of the case without
awaiting inquiry from the other party." C.R.C.P.
16.2(e)(1); see Schelp, 228 P.3d at 156. The rule
requires certain mandatory financial disclosures, which are
specified in the appendix to the rule, and a sworn financial
statement with supporting schedules. See C.R.C.P.
16.2(e)(2) & app. form 35.1; Hunt, ¶¶
13-15. It further imposes a general duty on the parties
"to provide full disclosure of all material assets and
liabilities." C.R.C.P. 16.2(e)(10); see Hunt,
13 And, as relevant here, C.R.C.P. 16.2(e)(10) provides that,
[i]f the disclosure contains misstatements or omissions, the
court shall retain jurisdiction after the entry of a final
decree or judgment for a period of 5 years to allocate
material assets or liabilities, the omission or
non-disclosure of which materially affects the division of
assets and liabilities.
See Schelp, 228 P.3d at 156; Hunt, ¶
Warne Plausibility Standard
14 We first address wife's contention that the district
court erred by not applying the "plausibility"
standard, which was announced in Warne v. Hall, 2016
CO 50, when granting husband's motion to dismiss. We
conclude that the Warne plausibility standard
governing motions to dismiss under C.R.C.P. 12(b)(5) does not
apply to wife's motion under C.R.C.P. 16.2.
15 We review de novo whether the district court applied the
correct standard in dismissing wife's motion. See
Ledroit Law v. Kim, 2015 COA 114, ¶ 47.
16 Under the "plausibility" standard from
Warne, a complaint must "state a claim for
relief that is plausible on its face" to avoid dismissal
under C.R.C.P. 12(b)(5) for failure to state a claim.
Warne, ¶¶ 1, 5 (quoting Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2007)). But, we conclude that
C.R.C.P. 12(b)(5) does not apply here, and, thus, neither
does the Warne standard. We reach this conclusion
for two reasons.
17 First, husband did not cite C.R.C.P. 12(b)(5) as authority
for his motion to dismiss, nor did the parties argue a