In re the Marriage of Denise Zander, Appellee, and John Zander, Appellant.
of Appeals No. 18CA1209 Grand County District Court No.
16DR30001 Honorable Mary C. Hoak, Judge.
Anthony J. DiCola, Heather A. Stein, Hot Sulphur Springs,
Colorado, for Appellee.
A. Rosser, Edwards, Colorado, for Appellant
1 John Zander (husband) appeals the property division entered
in connection with the dissolution of his marriage to Denise
Zander (wife). We reverse and remand for additional
2 In 2018, the district court dissolved the parties'
seventeen-year marriage and divided the marital estate
equally. In doing so, the court determined that an oral
agreement entered into by the parties during the marriage was
valid and enforceable. The court also awarded wife monthly
spousal maintenance of $1 until further court order.
3 The district court denied husband's C.R.C.P. 59 motion,
and this appeal followed.
Husband's Appeal of the Property Division is Not Barred
4 To begin, we address wife's argument, as we understand
it, that husband's appeal of the property division is
barred because he failed to appeal the maintenance award and
used marital funds during the dissolution proceeding to pay
certain marital debts. We disagree.
5 Wife asks us to follow the general rule that a party who
accepts the benefits of a judgment may not seek reversal of
that judgment on appeal. In re Marriage of Jones,
627 P.2d 248, 251 (Colo. 1981); DiFrancesco v. Particle
Interconnect Corp., 39 P.3d 1243, 1246 (Colo.App. 2001)
(Ordinarily, a party's right to appeal a judgment is
waived by the party's acceptance of the benefits of that
judgment "when the appeal may result in a determination
that the party is not entitled to what has been
accepted."). However, that rule is not strictly applied
in dissolution of marriage cases, and it does not apply here.
See In re Marriage of Powell, 220 P.3d 952, 954
(Colo.App. 2009); In re Marriage of Burford, 950
P.2d 682, 684 (Colo.App. 1997). Husband's acceptance of
the maintenance award and his use of marital funds during the
dissolution action are not inconsistent with the basis of his
appeal and do not deprive him of his right to seek review of
the court's property division. See Powell, 220
P.3d at 954; see also In re Marriage of Antuna, 8
P.3d 589, 592 (Colo.App. 2000) (husband's acceptance of a
court-ordered payment did not constitute a waiver of his
right to appeal); In re Marriage of Lee, 781 P.2d
102, 105 (Colo.App. 1989) (wife's acceptance of
maintenance payments did not waive her right to appeal
because public policy prohibits requiring a former spouse to
choose between the necessities of life and the right to
The Parties' Oral Marital Agreement is Unenforceable
6 Husband contends that the district court erred in finding
that the alleged oral marital agreement was valid and
enforceable. We agree.
7 The record reflects that the parties entered the marriage
with separate retirement accounts and received inheritances
from their parents during the marriage. Wife testified that
in 2007 the parties orally agreed to keep their retirement
accounts and inheritances as their separate
property. Also in 2007, the parties
executed a revocable living trust, which was amended to
exclude their retirement accounts. Wife offered, and the
district court admitted, Exhibit 41, a 2014 email from
husband to his adult son from a prior marriage, arguably
supporting the validity of the alleged oral agreement:
• "I am setting up an investment account with
Ameriprise with money from grandma's estate. You are the