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In re Marriage of Zander

Court of Appeals of Colorado, First Division

September 26, 2019

In re the Marriage of Denise Zander, Appellee, and John Zander, Appellant.

          Court 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.

          Leigh A. Rosser, Edwards, Colorado, for Appellant

          OPINION

          TAUBMAN, JUDGE.

         ¶ 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 proceedings.

         I. Background

         ¶ 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.

         II. 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 appeal).

         III. 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.[1] 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 ...

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