COLORADO COURT OF APPEALS                                        2017COA120


Court of Appeals No. 16CA1577
Arapahoe County District Court No. 96DR611
Honorable Ben L. Leutwyler, Judge


Carl M. Williams, deceased, by Michael Williams, Personal Representative of
the Estate of Carl M. Williams,

Appellant,

and

Roberta-Diane J. Williams, n/k/a Roberta-Diane J. Perna,

Appellee.


                    ORDER AND JUDGMENTS REVERSED
                  AND CASE REMANDED WITH DIRECTIONS

                                 Division VII
                         Opinion by JUDGE RICHMAN
                         Ashby and Vogt*, JJ., concur

                        Announced September 7, 2017


Nevin A. Seeger, P.C., Nevin A. Seeger, Loveland, Colorado; The Vasilco Law
Group, P.C., Patrick M. Vasilco, Denver, Colorado, for Appellant

Litvak Litvak Mehrtens and Carlton, P.C., Ronald D. Litvak, Luke S. Abraham,
Denver, Colorado, for Appellee


*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2016.
¶1    Michael Williams, Personal Representative of the Estate of Carl

 M. Williams (husband), appeals the district court’s order obligating

 the estate to continue making monthly maintenance payments to

 Roberta-Diane J. Williams, now known as Roberta-Diane J. Perna

 (wife), after husband’s death, and the two support judgments

 entered thereon. We reverse and remand the case to the district

 court to enter an order requiring the wife to refund to the estate the

 amount of monthly payments the estate has paid to wife and the

 fees it has paid to her attorney, and to determine and award the

 estate its reasonable attorney fees incurred in the matter.

                            I. Background

¶2    Husband and wife married in November 1988, when wife was

 forty-two years old and husband was sixty years old. Prior to

 entering into the marriage, husband and wife executed a premarital

 agreement. The premarital agreement provided at paragraph 4(b)(3)

 that “[husband] shall be required to pay to [wife] during her lifetime,

 and [wife] shall be entitled to receive from [husband] during her

 lifetime, monthly payments” on the filing of a petition for

 dissolution, in an amount determined based on the number of years

 the parties were married at the time the petition was filed. Also,


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 under the premarital agreement, in exchange for the monthly

 payments, wife waived maintenance as determined under section

 14-10-114, C.R.S. 2016.

¶3    Husband and wife’s eight-year marriage ended in 1996, and

 their separation agreement was incorporated into the decree. The

 separation agreement provided in relevant part as follows:

           In accordance with the provisions of paragraph
           4.(b)(3) of the Premarital Agreement, the
           Husband shall pay to the Wife monthly
           payments in the amount of $4,379,
           commencing thirty (30) days after the filing of
           this action for dissolution, and continuing
           monthly thereafter until the remarriage or
           death of the Wife, whichever first occurs. The
           Parties agree that the amount of this monthly
           payment has been correctly calculated in
           accordance with the provisions of the
           Premarital Agreement, and that the Premarital
           Agreement provides the amount of these
           payments shall be nonmodifiable for the period
           of time that the Husband is obligated to make
           these payments to the Wife.

¶4    The agreement also provided that except as specified in the

 agreement, the parties release each other and their estates “from

 every right, claim, and demand of whatever kind or nature.” And it

 provided that it “is binding upon and shall inure to the benefit of

 the heirs, assigns, and personal representatives of the parties.”



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¶5    After the 1996 dissolution, husband consistently made the

 monthly payments to wife under the agreement until his death on

 November 27, 2015. Wife received a final payment on December 1,

 2015, but no payments thereafter. She then filed a suggestion of

 death, a motion to substitute the estate for husband in the

 dissolution action, and a verified entry of support judgment,

 asserting that the estate was obligated to make the monthly

 payments to her and had failed to do so. The estate responded that

 the parties had not agreed to continue the monthly payments

 beyond husband’s death and therefore the estate had no obligation

 to continue making them.

¶6    Both parties filed briefs in the district court on the legal issue

 of whether and under what circumstances a monthly maintenance

 obligation continues after the death of the obligor spouse. Wife

 then filed another verified entry of support judgment, reflecting the

 additional payments that had accrued and had not been paid.

¶7    The district court ruled that the premarital and separation

 agreements obligated the estate to continue making the monthly

 payments to wife until her death or remarriage. The court further

 awarded wife her attorney fees and costs under the prevailing party


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 attorney fee provisions of both agreements. The parties then

 stipulated that the estate would pay wife the amount of the past

 due maintenance payments, make ongoing payments as they came

 due, and pay her attorney all fees owed to date, but that the estate

 could appeal the district court’s orders and seek to recoup all funds

 paid in the event its appeal was successful.

     II. The Estate’s Obligation to Continue Making the Monthly
         Maintenance Payments to Wife After Husband’s Death

¶8    The estate contends that the district court erred in ruling that

 husband’s obligation under the premarital and separation

 agreements to make monthly payments to wife survived his death

 as an obligation of his estate. We agree.

                         A. Legal Standards

¶9    Under the version of the applicable statute in effect at the time

 of the premarital agreement, “[u]nless otherwise agreed in writing or

 expressly provided in the decree, the obligation to pay future

 maintenance is terminated upon the death of either party or the

 remarriage of the party receiving maintenance.” § 14-10-122(2),




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  C.R.S. 1988;1 see In re Marriage of Piper, 820 P.2d 1198, 1199-1200

  (Colo. App. 1991) (“In the absence of an agreement or court order to

  the contrary, the obligation to pay maintenance is purely personal

  and does not survive the death of the obligor spouse.”).2

¶ 10   Accordingly, the issue on appeal, as it was in the district

  court, is whether husband and wife “otherwise agreed in writing” in

  their agreements, or expressly provided in their decree, that the

  monthly payments to wife would survive husband’s death as a

  continuing obligation of his estate. There are no post-Uniform


  1 The current version of the statute, § 14-10-122(2)(a), C.R.S. 2016,
  is similar:
              Unless otherwise agreed in writing or expressly
              provided in the decree, the obligation to pay
              future maintenance is terminated upon the
              earlier of:
              (I)   The death of either party;
              (II) The end of the maintenance term . . . ;
              (III) The remarriage of or the establishment of
              a civil union by the party receiving
              maintenance; or
              (IV) A court order terminating maintenance.

  2 To the extent wife suggested for the first time at oral argument
  that the payments were not maintenance and could be enforced
  against the estate merely on a contractual basis, we will not
  address that argument because it was not raised in the district
  court or in the answer brief. See People v. Becker, 2014 COA 36,
  ¶ 23 (declining to consider argument raised for the first time at oral
  argument).

                                    5
  Dissolution of Marriage Act cases delineating what the statute

  requires to constitute an agreement to continue the obligation to

  pay maintenance after the death of the obligor spouse. Thus, we

  are called upon to interpret this statutory language.

¶ 11   We review de novo the district court’s interpretation of the

  statute, see In re Marriage of Gross, 2016 COA 36, ¶ 8, and of the

  premarital and separation agreements, see In re Marriage of

  Crowder, 77 P.3d 858, 860 (Colo. App. 2003). In doing so, we need

  not defer to the district court’s interpretation. Id.; cf. In re Estate of

  Houston, 521 P.2d 182, 183 (Colo. App. 1974) (not published

  pursuant to C.A.R. 35(f)) (appellate court was not bound by trial

  court’s interpretation of settlement agreement regarding whether

  maintenance payments would continue beyond obligor spouse’s

  death).

                                 B. Analysis

¶ 12   The district court found that the premarital and separation

  agreement provisions for monthly payments to wife “during her

  lifetime” and “until the remarriage or death of the Wife” “express[ed]

  a clear intent that Wife would receive these payments even after

  Husband’s death.” We do not agree with this interpretation.


                                      6
  Whereas these payment provisions reflect clear agreement regarding

  the duration of the monthly payments relative to the life or marital

  status of the wife, they say nothing about what would happen on

  husband’s death.

¶ 13   Although there is no published Colorado case applying section

  14-10-122(2) and addressing agreement language like that used

  here, two cases predating the statute and applying similar common

  law principles are instructive — In re Estate of Kettering, 151 Colo.

  202, 376 P.2d 983 (1962), and International Trust Co. v. Liebhardt,

  111 Colo. 208, 139 P.2d 264 (1943).

¶ 14   Under the common law, as under section 14-10-122(2), the

  obligation to pay spousal maintenance “[o]rdinarily” ended with the

  obligor’s death, but the obligor could agree that payments would

  continue thereafter and be payable from the obligor’s estate.

  Kettering, 151 Colo. at 206, 376 P.2d at 986. Such an agreement

  was enforceable “if it expressly or by clear implication provid[ed]

  that the payments shall continue” after the obligor’s death. Id. at

  206-07, 376 P.2d at 986; see Houston, 521 P.2d at 183-84 (citing

  Kettering and finding agreement provisions “insufficient to overcome

  the presumption” that alimony payments end with the obligor


                                     7
  spouse’s death); Young v. Young, 475 P.2d 350, 351 (Colo. App.

  1970) (not published pursuant to C.A.R. 35(f)) (relying on Kettering

  and finding no “clear indication” under the separation agreement

  that the obligor spouse’s estate was obligated to continue making

  the monthly maintenance payments).

¶ 15   In Kettering, the parties’ agreement provided that the monthly

  support payments would continue “so long as the wife may live and

  remain unmarried.” 151 Colo. at 204, 376 P.2d at 984-85. The

  supreme court held that “the phrase ‘so long as the wife may live’

  did not evidence clear and express intent that the payments be a

  charge upon the [husband’s] estate” after his death. Id. at 207, 376

  P.2d at 986. In Houston, 521 P.2d at 183, and Young, 475 P.2d at

  351, divisions of this court similarly ruled that agreement

  provisions for monthly alimony payments until the wife’s death or

  remarriage were not sufficient to obligate the husband’s estate after

  his death. And, in International Trust, the supreme court held that

  the husband’s estate was liable for monthly payments to the wife

  when the separation agreement expressly required such payments

  “after the death of the husband.” 111 Colo. at 217-19, 139 P.2d at

  268-69.


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¶ 16   Citing to In re Marriage of Koktavy, 44 Colo. App. 305, 612

  P.2d 1161 (1980), wife argues that the statute supersedes the

  common law rule. But even assuming that is correct, we still find

  the holdings of the pre-statute cases instructive in delineating what

  type of writing would be required under the statute to continue the

  payment of maintenance after the death of the obligor. Wife argues

  that any writing suffices, and the words in the premarital

  agreement and separation agreement are sufficient. But this

  approach would undermine the purpose of the statute, which is to

  require a writing that expressly specifies the parties’ agreement.

  Instead we conclude, as did the common law cases, that the writing

  must expressly or by clear implication provide that the payments

  will continue after the death of the obligor. As noted, in those

  cases, nearly identical language to that used here was found

  insufficient to expressly and clearly provide for continuance of

  maintenance after the death of the obligor.

¶ 17   And, our decision is reinforced by decisions from other

  jurisdictions concluding that such language is not effective to

  continue maintenance posthumously. See Herbst v. Herbst, 153

  So. 3d 290, 293 (Fla. Dist. Ct. App. 2014) (“[L]anguage providing


                                    9
that the husband shall pay alimony ‘until wife becomes remarried

or deceased’ does not indicate an intent to bind the husband’s

estate to continue to pay alimony after his death.”); Findley v.

Findley, 629 S.E.2d 222, 224-29 (Ga. 2006) (settlement agreement

provision for alimony until the wife dies or remarries did not

establish clear intent that such payments would continue after the

husband’s death); In re Estate of Lundahl, 773 N.E.2d 756, 762 (Ill.

App. Ct. 2002) (agreement that the wife shall receive monthly

payments for “the balance of her natural life” was not sufficient to

bind the husband’s estate); In re Estate of Jones, 434 N.W.2d 130,

131-32 (Iowa Ct. App. 1988) (decree providing for alimony payments

“until such time as [the wife] dies or remarries” did not express

clear intent to hold the husband’s estate liable); Witt v. Witt, 350

N.W.2d 380, 382 (Minn. Ct. App. 1984) (“We hold an expression

such as ‘so long as obligee shall live’ does not, without more,

expressly provide for maintenance after the obligor’s death.”); Bird

v. Henke, 395 P.2d 751, 753 (Wash. 1964) (the phrase “so long as

[the wife] shall live” did not, standing alone, constitute a clear

expression of intent that alimony be a continuing obligation of the

husband’s estate “in derogation of his testamentary rights”); but see


                                   10
  In re Last Will & Testament of Sheppard, 757 So. 2d 173, 174-76

  (Miss. 2000) (construing agreement provision for alimony payments

  terminating on the wife’s death or remarriage, with no mention of

  the husband’s death, as imposing the obligation on his estate after

  his death).

¶ 18   The district court specifically noted, as support for its

  interpretation, the premarital agreement’s language specifying not

  only that husband was required to pay but also that wife was

  entitled to receive the monthly payments during her lifetime.

  However, the premarital agreement entitled wife to receive the

  monthly payments specifically “from Carl,” not also from his estate

  after he had died. Likewise, the separation agreement expressly

  provides that “Husband shall pay to the Wife” the monthly

  payments. Neither agreement said anything about the estate

  making the payments after husband’s death. See also Bird, 395

  P.2d at 753 (if phrase in agreement providing for alimony “so long

  as [the wife] shall live” was to be interpreted literally to apply even

  after the husband’s death, “then justice requires an equally literal

  meaning be attached to the preceding phrase, ‘to be paid by the

  [husband]’”).


                                     11
¶ 19   In addition, the separation agreement provided at its outset

  that husband and wife “each release[] the other and the other’s

  estate from every right, claim, and demand of whatever kind or

  nature which he or she now has or may have in the future against

  the other or the other’s estate, whether as surviving spouse, heir-at-

  law, or otherwise.” (Emphasis added.) To be sure, this section is

  introduced by the phrase “[e]xcept as hereinafter specified,” but the

  later provision for maintenance, did not specify that the estate

  would be liable for the obligation after the death of husband.

¶ 20   The district court also relied on the general provision at the

  end of both agreements providing that the agreements are binding

  on and inure to the benefit of the parties’ heirs, assigns, and

  personal representatives. We conclude that such a general

  provision does not bind the estate to continue the maintenance

  payments to wife, without a clear indication in the maintenance

  provision of the agreement that such payments are intended to

  continue after husband’s death. See Houston, 521 P.2d at 183-84

  (interpreting agreement as a whole as not intending to obligate the

  husband’s estate to pay alimony after his death, despite general

  provision that agreement’s terms were binding on the parties’ legal


                                    12
  representatives); see also Kettering, 151 Colo. at 206, 209, 376 P.2d

  at 986-87 (interpreting general clause of agreement binding heirs,

  executors, and administrators “so far as appropriate” as insufficient

  to obligate spouse’s estate to continue alimony payments). And

  although this general provision stated that the agreement shall

  “inure to the benefit of the estate,” the agreement also released the

  parties’ estates as set forth above.

¶ 21   Therefore, we conclude that husband’s personal obligation to

  pay ended when he died, absent a clear indication to the contrary,

  which, in our view, neither the premarital nor separation agreement

  provided. See § 14-10-122(2), C.R.S. 1988; Piper, 820 P.2d at

  1199-1200.

¶ 22   In support of the district court’s order, wife analogizes to cases

  involving a spouse’s remarriage where the inclusion of an

  unequivocal nonmodification clause was ruled sufficient to continue

  a maintenance obligation after the recipient spouse’s remarriage.

  However, these cases are materially distinguishable from the

  present case. In In re Marriage of Parsons, 30 P.3d 868, 868-70

  (Colo. App. 2001), the agreement provided that maintenance was

  “contractual in nature and non-modifiable by any court,” and a


                                     13
  division of this court held that such language was sufficiently

  unequivocal to overcome the presumption that maintenance would

  end on the recipient spouse’s remarriage. Similarly, in In re

  Marriage of Hahn, 628 P.2d 175, 176 (Colo. App. 1981), the non-

  modification clause provided that “payments will not be subject to

  modification for any reason except the death of the wife,” and the

  division found such language sufficient to continue the obligation

  after the wife’s remarriage.

¶ 23   In contrast, the separation agreement here provided only that

  the amount of wife’s monthly payments was nonmodifiable for the

  period that husband was obligated to make the payments.

  Accordingly, without a clear expression of intent to continue the

  payment obligation beyond husband’s lifetime, the period that

  husband was obligated to pay, during which the amount of the

  payments was nonmodifiable, ended with his death.

¶ 24   Because we reverse the order obligating the estate to continue

  paying maintenance, we also reverse the two support judgments

  entered after husband’s death. We reject wife’s argument that the

  estate did not preserve the issue of the judgments because it did

  not list the issue in its statement of the issues in the notice of


                                     14
  appeal. The listing of issues in the notice of appeal is advisory only

  and does not restrict the appellant from arguing additional issues in

  the opening brief, see C.A.R. 3(a), (d)(3); Casserly v. State, 844 P.2d

  1275, 1282 (Colo. App. 1992), assuming such issues were raised in

  the district court, as they were here through the estate’s argument

  that it was not obligated to continue making the monthly payments

  to wife after husband’s death.

                       III. Attorney Fees and Costs

¶ 25   The estate also contends that the district court erroneously

  awarded wife attorney fees under the prevailing party provisions of

  the premarital and separation agreements. Based on our

  disposition, we agree that the award of attorney fees and costs to

  wife must be reversed. In addition, the estate contends that it

  should have been awarded its own attorney fees under the

  prevailing party provisions of the agreements, and again, based on

  the disposition, we agree.

¶ 26   Both the premarital and separation agreements provide for

  attorney fees and costs to the prevailing party in any enforcement

  action thereunder. The district court awarded attorney fees and

  costs to wife under these provisions. It did not address her


                                    15
  alternative request for fees and costs under section 14-10-119,

  C.R.S. 2016. Because of our disposition to reverse the district

  court’s order that the estate is obligated to continue paying wife

  maintenance after husband’s death, we must also reverse the award

  of fees and costs that was predicated on that order. And we remand

  the case for the court to order any such fees that have already been

  paid refunded to the estate, and to instead award attorney fees and

  costs, including appellate fees and costs, to the estate under the

  agreements.

¶ 27   Also based on the disposition, we deny wife’s request for

  appellate fees under the agreements. To the extent that she

  alternatively requests appellate fees under section 14-10-119, we

  also deny that request. Under the premarital agreement, wife

  waived her right to receive fees under section 14-10-119. And,

  under both agreements, attorney fees incurred for enforcing the

  agreements’ terms are to be awarded to the prevailing party — here,

  the estate, which was substituted for husband in the dissolution

  action.

                             IV. Conclusion




                                    16
¶ 28   The order and judgments are reversed, and the case is

  remanded for an order requiring the wife to refund to the estate the

  amount of the payments the estate has made to wife and the

  attorney fees it has paid to her attorney, and to determine and

  award the estate its reasonable attorney fees and costs incurred in

  the matter.

       JUDGE ASHBY and JUDGE VOGT concur




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