     The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                  SUMMARY
                                                           February 22, 2018

                                2018COA23

No. 16CA1492, In re the Marriage of Runge — Family Law —
Civil Procedure — Court Facilitated Management of Domestic
Relations Cases — Disclosures — Topical subject keywords

     A division of the court of appeals considers whether wife’s

motion under C.R.C.P. 16.2(e)(10), filed one day before expiration of

the five-year period where the court retains jurisdiction to allocate

material assets or liabilities, stated sufficient grounds to trigger

discovery and allocation of assets under the rule. The majority

affirms that the district court had jurisdiction to consider wife’s

motion and concludes that the “plausibility” standard, which was

announced in Warne v. Hall, 2016 CO 50, does not apply to a

motion under C.R.C.P. 16.2(e)(10) and that wife’s motion did not

state sufficient grounds to trigger an allocation of assets under the

rule. The dissent would vacate the district court’s order dismissing
wife’s motion on the basis that the district court lost jurisdiction to

consider the motion.
COLORADO COURT OF APPEALS                                      2018COA23


Court of Appeals No. 16CA1492
Boulder County District Court No. 10DR1467
Honorable Bruce Langer, Judge


In re the Marriage of

Barbara Runge,

Appellant,

and

David Allen Runge,

Appellee.


                             ORDER AFFIRMED

                                  Division I
                         Opinion by JUDGE FURMAN
                        Richman, J., specially concurs
                            Taubman, J., dissents

                        Announced February 22, 2018


Robert E. Lanham, P.C., Robert E. Lanham, Boulder, Colorado, for Appellant

Litvak 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




                                    1
 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. C.R.C.P. 16.2(e)(10).

¶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


                                     2
  concludes that the district court’s jurisdiction to consider the

  motion was lost as soon as the five-year period expired.

                      I. The Separation Agreement

¶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


                                     3
  a sufficient showing under C.R.C.P. 16.2 that husband had failed to

  provide material information.

                             II. C.R.C.P. 16.2

¶ 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


                                      4
  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,

  ¶ 17.

¶ 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, ¶ 17.

                       III. 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.


                                       5
¶ 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 C.R.C.P. 12(b)(5)

  standard to the district court.

¶ 18   Second, by its express terms, C.R.C.P. 12(b)(5) applies to a

  defense “to a claim for relief in any pleading” when that defense

  asserts a “failure to state a claim upon which relief can be granted.”

  (Emphasis added.) “A motion is not a pleading.” People v.

  Anderson, 828 P.2d 228, 231 (Colo. 1992) (quoting Capitol Indus.

  Bank v. Strain, 166 Colo. 55, 58, 442 P.2d 187, 188 (1968)).




                                      6
¶ 19   Indeed, C.R.C.P. 7(a) identifies the pleadings in an action as

  the complaint and answer, a reply to a counterclaim, an answer to

  a cross-claim, a third-party complaint and answer, and a reply to

  an affirmative defense. See In re Estate of Jones, 704 P.2d 845, 847

  (Colo. 1985) (defining pleadings as “the formal allegations by the

  parties of their respective claims and defenses”). The rule

  distinguishes a pleading from a motion, defining a motion as an

  “application to the court for an order.” C.R.C.P. 7(a), (b)(1); see

  Winterhawk Outfitters, Inc. v. Office of Outfitters Registration, 43

  P.3d 745, 747-48 (Colo. App. 2002) (distinguishing under C.R.C.P.

  7 a “motion,” meaning a written or oral request for the court to

  make a particular ruling or order, from a “pleading,” which includes

  the complaint, answer, and reply in a case); see also § 14-10-

  105(1), (3), C.R.S. 2017 (Colorado rules of civil procedure apply to

  dissolution proceedings and the pleadings in such cases shall be

  denominated as provided in those rules except that the initial

  pleading shall be denominated a petition and the responsive

  pleading shall be denominated a response); cf. In re Marriage of

  Plank, 881 P.2d 486, 487 (Colo. App. 1994) (noting that pleadings

  in a dissolution case include the petition and response and,


                                      7
  therefore, spouse’s post-dissolution motion for writ of garnishment

  was not a new “action” but rather a motion ancillary to the original

  dissolution action).

¶ 20   Accordingly, because wife’s motion was not a pleading and

  husband’s motion to dismiss was not pursuant to C.R.C.P. 12(b)(5),

  we conclude that the district court did not err by not applying the

  Warne standard.

                          IV. Wife’s Allegations

¶ 21   We next address whether wife stated sufficient grounds in her

  motion to trigger an allocation of undisclosed or misstated assets

  under C.R.C.P. 16.2(e)(10). We conclude that she did not. Thus,

  we also conclude that further proceedings were not required.

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

  C.R.C.P. 16.2 in determining the sufficiency of wife’s allegations.

  See Hunt, ¶ 10.

¶ 23   Wife contends that husband omitted certain business entities

  and interests from his sworn financial statements and the

  separation agreement. She also contends that he misrepresented

  (1) the value of his primary business interest, Tax Law Solutions, by

  stating that the value was “unknown”; and (2) the amount of


                                    8
  mortgage debt on the marital residence, which he asserted was $1.4

  million.

¶ 24   But, the record reflects that before the parties entered into the

  separation agreement, husband advanced funds for wife to hire an

  accounting expert to investigate their financial circumstances; he

  gave the accountant and wife, through her attorney, voluminous

  documents, including personal and business bank statements,

  trust documents, records concerning his offshore interests, and his

  own accounting expert’s report; and he and his expert testified and

  were cross-examined at length at the temporary orders hearing.

¶ 25   Nothing in C.R.C.P. 16.2(e) limits a court’s consideration of the

  parties’ sworn financial statements or their separation agreement

  when determining the adequacy of financial disclosures. To the

  contrary, the rule requires specific financial disclosures, with which

  husband certified compliance, and imposes a general duty to

  disclose “all facts that materially affect” the parties’ rights and

  interests and “all material assets and liabilities.” C.R.C.P.

  16.2(e)(1)-(2), (10). Hence, as the district court did, we consider all

  forms of husband’s pre-decree disclosure, including his retaining

  accounting experts, the documentation provided to wife and her


                                      9
  expert, and the information testified to at the 2011 temporary

  orders hearing.

¶ 26   In doing so, we conclude that Hunt, on which wife relies, is

  materially distinguishable from the present case. In Hunt, it was

  undisputed that the husband had failed to disclose certain specific

  items that are listed for mandatory disclosure in the appendix to

  C.R.C.P. 16.2 — three years of personal and business financial

  statements, loan applications and agreements, and appraisals —

  before the parties entered into their memorandum of understanding

  (MOU) to resolve their dissolution case. See Hunt, ¶¶ 13-15; see

  also C.R.C.P. 16.2(e)(2) & app. form 35.1. A division of this court

  held that because the husband admittedly did not disclose the

  required items, the district court had erred in not granting the

  wife’s C.R.C.P. 16.2(e)(10) motion to reopen the MOU’s property

  division. Hunt, ¶¶ 15-18. But, the division further noted that but

  for the husband having violated the disclosure requirements of the

  rule, the wife “would have been bound by her decision to enter into

  the MOU, acknowledging the uncertain value” of his business

  interest. Id. at ¶ 19; see also id. at ¶¶ 31-36 (Jones, J., specially

  concurring) (emphasizing the narrowness of Hunt’s holding).


                                     10
¶ 27   Wife does not allege that husband failed to disclose any

  specific item mandated under the rule, and husband certified, as

  the rule requires, that he had provided all such items. See C.R.C.P.

  16.2(e)(2), (7). Instead, as the district court noted, wife asserts her

  suspicions and speculations that husband “likely” failed to disclose

  and misrepresented material assets. For example, she argues in

  her opening brief that “[i]t is at least plausible, if not very likely,

  that Husband failed to provide . . . information that would

  presumably have given [her] the opportunity to make a more

  informed decision” when entering into the separation agreement.

  And, she describes the affidavits she obtained from husband’s

  colleagues as “rais[ing] significant concerns” regarding his “assets

  and business practices.” Such vague assertions are not sufficient

  to trigger an allocation of omitted or misstated assets under

  C.R.C.P. 16.2(e)(10) in light of the information wife had pre-decree.

¶ 28   For example, at the February 14, 2011, temporary orders

  hearing, wife’s attorney admitted while cross-examining husband

  that they had received “an awful lot of documents” from him, as had

  their accounting expert. Wife further described two boxes of




                                      11
  documents that had been produced at a meeting at husband’s

  accounting expert’s office with wife and her expert.

¶ 29   And, at the same 2011 hearing, wife’s attorney acknowledged

  in opening statement that the parties’ dissolution case was going to

  be complicated because there were between thirty and fifty entities

  that husband owns or in which he has an interest. The attorney

  further stated that he planned to schedule “a couple of depositions”

  in order to “look into [husband’s offshore] trust in much greater

  detail,” acknowledging that “I do have copies” of the trust

  documents. The attorney also stated, looking at husband’s exhibit

  showing that Tax Law Solutions generated over $2 million in

  revenue in 2009 and $1.6 to $1.8 million in 2010, “[t]hat [it] is

  going to take a lot of time to value.” He also noted that the exhibit

  listed fifty-six other entities to which husband had some

  connection, that this was “not a simple case,” and that the case was

  “going to take a lot of time.”

¶ 30   Yet, with the extensive documentation husband provided in

  hand and armed with her own accounting expert to analyze that

  extensive documentation, wife nonetheless chose to enter into the

  separation agreement only a month after the temporary orders


                                    12
  hearing. She presumably did not wait to (1) value Tax Law

  Solutions as her attorney intended to do; (2) allow her expert to

  review husband’s trust documents, which her attorney confirmed

  they received; or (3) investigate husband’s other business entities or

  interests, including those offshore, which they knew existed and

  concerning which husband testified they had documents. She

  chose instead to sign the separation agreement that allocated the

  marital residence debt free plus $1,100,000 in cash to her and

  allocated all of husband’s business interests to him.

¶ 31   We acknowledge that C.R.C.P. 16.2(e)(1)-(2) does not impose a

  duty on wife to conduct discovery to obtain required financial

  information from husband. See Schelp, 228 P.3d at 156; Hunt,

  ¶ 14. But, wife’s own attorney stated at the hearing that a lot of

  documentation had been produced; that he planned to look into

  that information in greater detail, conduct discovery, and obtain a

  valuation of husband’s primary business interest; and that the case

  was complicated and was going to take a lot of time to litigate.

  Nonetheless, wife instead chose to enter into the separation

  agreement shortly thereafter. We do not interpret C.R.C.P.




                                    13
  16.2(e)(10) as permitting a reallocation of assets under these

  circumstances.

¶ 32   Essentially, in her “motion regarding undisclosed assets,” wife

  requested to conduct the discovery into and analysis of husband’s

  financial and business interests that her attorney had planned to

  do and the analysis that could have been done by her attorney and

  accounting expert in 2011 before the separation agreement was

  signed. We agree with the district court that C.R.C.P. 16.2(e)(10)

  was not intended to create a right for an ex-spouse to conduct

  discovery into the other spouse’s assets post-decree. Nothing in the

  plain language of the rule indicates such a result, which would

  contravene established public policy in family law cases. See

  Mockelmann v. Mockelmann, 121 P.3d 337, 340 (Colo. App. 2005)

  (noting that allowing divorced parties “to perpetuate disputes long

  after the entry of permanent orders” is “counter to the strong public

  policy favoring the finality of judgments” in family law actions). Nor

  does the rule permit a spouse to revalue assets that were disclosed

  pre-decree. See Hunt, ¶ 19.

¶ 33   We must interpret the rules of civil procedure consistent with

  principles of statutory construction, according to the plain and


                                    14
  ordinary meanings of the words used. See § 2-4-101, C.R.S. 2017;

  Hiner v. Johnson, 2012 COA 164, ¶ 13. Hence, we may not

  “judicially legislate” by reading the rule “to accomplish something

  the plain language does not suggest, warrant or mandate.”

  Scoggins v. Unigard Ins. Co., 869 P.2d 202, 205 (Colo. 1994).

¶ 34   The remedy created by the C.R.C.P. 16.2(e)(10) is

  extraordinary and also very narrow. Under the rule, the court

  retains jurisdiction for a period of five years after a dissolution

  decree is entered “to allocate material assets or liabilities, the

  omission or non-disclosure of which materially affects the division

  of assets and liabilities.” C.R.C.P. 16.2(e)(10). The rule says

  nothing about “reopening” a case for the purpose of allowing

  discovery, as wife requested in her motion. Thus, in our view,

  neither the language of the rule nor Hunt rescues wife from the

  consequences of her own decision to settle her dissolution case

  without fully evaluating the information that husband had provided

  to her pre-decree.

¶ 35   We are not persuaded by wife’s arguments that husband’s

  pre-decree disclosures of the value of Tax Law Solutions as

  “unknown” and of $1.4 million in mortgage debt on the marital


                                     15
  home were misleading. Regarding the value of Tax Law Solutions,

  the rule requires disclosure of material “facts,” “information,” and

  “assets and liabilities.” See C.R.C.P. 16.2(e)(1), (10). It does not

  mandate that husband provide his opinion of the value of a

  disclosed asset. See Shirley v. Merritt, 147 Colo. 301, 307, 364 P.2d

  192, 196 (1961) (“Value is, of course, a matter of opinion and not of

  fact . . . .”).

¶ 36     Again, the present situation is unlike that in Hunt, where the

  spouse had failed to disclose existing pre-decree appraisals of his

  business and loan applications stating a value for his interest in the

  business. See Hunt, ¶¶ 12-15. Wife instead merely speculates here

  that husband “likely” misrepresented the value of Tax Law

  Solutions because an appraisal done two years after the decree

  indicated that the business was worth nearly $5 million.

¶ 37     C.R.C.P. 16.2 addresses pre-decree disclosures, omissions,

  and misrepresentations. Obviously, husband could not have

  disclosed or omitted a valuation opinion that did not exist pre-

  decree. Nor could he have misrepresented value based on such an

  opinion. A 2013 valuation is not relevant to determining the value

  of Tax Law Solutions for purposes of the 2011 dissolution. See §


                                     16
  14-10-113(5), C.R.S. 2017 (property shall be valued for purposes of

  disposition on dissolution at the time of the decree or the hearing

  on disposition, whichever is earlier); see also In re Marriage of

  Nevarez, 170 P.3d 808, 813 (Colo. App. 2007).

¶ 38   And, wife knew that the 2011 value of Tax Law Solutions was

  presented as “unknown” when she signed the separation

  agreement. At the temporary orders hearing just one month earlier,

  wife’s own attorney had emphasized on the record the need to value

  that particular asset and the time it would take to do so. Thus,

  unlike the spouse in Hunt, wife is bound by her decision to enter

  into the separation agreement without ever obtaining a pre-decree

  valuation for husband’s primary business. See Hunt, ¶ 19.

¶ 39   Regarding the mortgage on the marital home, the record

  reflects that wife was well aware before entering into the separation

  agreement that this mortgage was not an arm’s length transaction

  because husband had an ownership interest in the mortgage

  company, Meridian Trust. Wife testified at the 2011 hearing that

  husband had told her that they “needed a mortgage deduction” so

  he had set up a trust to loan money to them. She described the

  mortgage as “not a real mortgage” because husband effectively


                                    17
  makes the payments to himself. The circumstances of this

  mortgage were not undisclosed or misrepresented. Rather,

  according to wife’s own testimony, husband told her about them.

  Thus, wife’s allegations regarding these circumstances are not

  sufficient to trigger the undisclosed asset allocation remedy under

  C.R.C.P. 16.2(e)(10).

                                V. Conclusion

¶ 40   The district court correctly determined that wife did not allege

  a sufficient basis for it to allocate misstated or omitted assets under

  C.R.C.P. 16.2(e)(10). The rule was not intended to protect a party

  from choosing, perhaps unwisely, to settle a dissolution case after

  acknowledging the complexity of and before fully evaluating the

  information provided by the other party. Nor does it provide for

  post-decree discovery into an ex-spouse’s assets. We will not

  extend the plain language of the rule or the disposition in Hunt to

  permit such discovery or to compel an allocation of assets under the

  circumstances here.

¶ 41   The order is affirmed.

       JUDGE RICHMAN specially concurs.

       JUDGE TAUBMAN dissents.


                                     18
       JUDGE RICHMAN, specially concurring.

¶ 42   I concur with Judge Furman that wife’s request to reopen the

  dissolution proceeding was correctly denied by the court. However,

  unlike Judge Furman, I believe we must consider husband’s

  argument that the court lost subject matter jurisdiction under

  C.R.C.P. 16.2(e)(10). See In re Estate of Hossack, 2013 COA 64, ¶

  11 (if a court lacks subject matter jurisdiction, any judgment it

  renders is void). Because I disagree with husband’s position that

  the court lost jurisdiction to consider wife’s motion five years after

  the date of the decree, I conclude that the order is valid and vote to

  affirm the district court’s order.

¶ 43   As noted by Judge Furman, wife filed her request to reopen

  four years and 364 days after the permanent orders were entered.

  Husband contends that the court lost jurisdiction when five years

  passed — the day after the motion was filed.

¶ 44   Husband’s argument relies on the particular language of the

  retention provision, specifically that “the court shall retain

  jurisdiction” for a five-year period after the decree. C.R.C.P.

  16.2(e)(10). According to husband, under the plain language of the

  provision, the court’s jurisdiction to reallocate assets immediately

                                       19
  ended when this five-year period expired, regardless of wife’s

  pending motion at the time. He argues that had the supreme court

  intended jurisdiction to extend beyond five years upon the filing of a

  motion within that period, it would have so stated, as other statutes

  of limitation do. See, e.g., §§ 13-80-101(1), -102(1), C.R.S. 2017

  (providing that certain types of civil actions must “be commenced

  within” the particular limitations period). I am not persuaded.

¶ 45   We review de novo the legal issue of whether the district court

  had subject matter jurisdiction to consider wife’s motion. See

  Egelhoff v. Taylor, 2013 COA 137, ¶ 23.

¶ 46   “A court’s acquisition of subject matter jurisdiction depends

  on the facts existing at the time jurisdiction is invoked, and a court

  ordinarily does not lose jurisdiction by the occurrence of

  subsequent events, even if those events would have prevented

  acquiring jurisdiction in the first place.” Thomas v. Fed. Deposit

  Ins. Corp., 255 P.3d 1073, 1081 (Colo. 2011); see Secrest v. Simonet,

  708 P.2d 803, 807 (Colo. 1985) (jurisdiction once acquired over a

  defendant was not then lost after he was removed from the

  territory). But cf. People in Interest of M.C.S., 2014 COA 46, ¶¶ 14-

  17 (holding that because juvenile court jurisdiction is limited by

                                    20
  statute — both at the time a dependency and neglect petition is

  filed and at the time a child is adjudicated — to children under the

  age of eighteen, the court lost its jurisdiction to adjudicate when the

  child turned eighteen after the petition was filed but before

  adjudication).

¶ 47   The district court’s jurisdiction to reallocate the parties’ assets

  under C.R.C.P. 16.2(e)(10) was properly invoked when wife moved

  for that relief within five years from the date of the decree. And,

  having been properly invoked, the court’s jurisdiction was not then

  lost when the court did not rule on the motion until after the

  five-year period had expired. See Secrest, 708 P.2d at 807; cf.

  Nickerson v. State, 178 So. 3d 538, 538-39 (Fla. Dist. Ct. App. 2015)

  (finding subject matter jurisdiction to order restitution under

  similarly worded Florida statute — providing that a court retains

  jurisdiction for purposes of ordering restitution for up to five years

  from a defendant’s release — when the court’s jurisdiction was

  invoked within the five-year period even though it did not act within

  that period).

¶ 48   In support of this conclusion, I note that in Schelp, the

  supreme court commented that the jurisdiction retention provision

                                    21
  supplanted the application of “C.R.C.P. 60(b)’s six-month window,

  which formerly operated as a bar for such retained jurisdiction.” In

  re Marriage of Schelp, 228 P.3d 151, 156 (Colo. 2010). C.R.C.P.

  60(b) expressly sets a period of 182 days from the date of the filing

  of the motion, and does not require a decision on the motion within

  six months as husband argues.

¶ 49   Husband’s proposed interpretation of C.R.C.P. 16.2(e)(10)

  would produce uncertain and absurd results and frustrate the

  rule’s stated purpose to create uniformity in domestic relations

  cases. See C.R.C.P. 16.2(a). Under his interpretation, the deadline

  for a party to move for relief under the rule would be uncertain and

  would necessarily depend on the state of the docket in the

  particular jurisdiction. It would be impossible for a party to predict

  when a realistic filing deadline for such a motion might be. I would

  not adopt such an interpretation. See § 2-4-201(1)(c), C.R.S. 2017

  (statute is presumed to intend a just and reasonable result); In re

  Marriage of Hunt, 2015 COA 58, ¶¶ 22-23 (refusing to interpret

  C.R.C.P. 16.2 in a manner requiring an absurd or unreasonable

  result or frustrating one of its stated goals); see also Schwankl v.

  Davis, 85 P.3d 512, 516-17 (Colo. 2004).

                                    22
¶ 50   Finally, I question the efficacy of the suggestion in Judge

  Taubman’s dissent that a nunc pro tunc order could be employed in

  a case where the district court was not given sufficient time to

  address a motion to reopen. In Dill v. County Court, 37 Colo. App.

  75, 77, 541 P.2d 1272, 1273 (1975), a division of the court of

  appeals concluded that a nunc pro tunc judgment may not be used

  “to circumvent the time requirements of the rules of procedure” and

  resurrect an appeal that was untimely filed. In Mark v. Mark, 697

  P.2d 799, 801 (Colo. App. 1985), overruled by Robbins v. A.B.

  Goldberg, 185 P.3d 794 (Colo. 2008), our court cited Dill for the

  proposition that “a trial court may not regain jurisdiction, once it

  has been lost, by purporting to act in the past” through a nunc pro

  tunc judgment.

¶ 51   Although Goldberg, the case cited by Judge Taubman to

  support the use of a nunc pro tunc judgment, overruled Mark, it did

  not address Dill. And in People v. Sherrod, 204 P.3d 466, 469 (Colo.

  2009), the supreme court cited Dill in discussing “whether nunc pro

  tunc orders can cure jurisdictional defects,” but ultimately did not

  decide that question.



                                    23
¶ 52   I thus question whether use of a nunc pro tunc judgment

  could would allow a district court to decide a motion to reopen after

  the five-year jurisdictional period has run, as suggested by Judge

  Taubman.




                                   24
       JUDGE TAUBMAN, dissenting.

¶ 53   In my view, the threshold ― and dispositive ― question in this

  case is whether the trial court had subject matter jurisdiction under

  C.R.C.P. 16.2(e)(10) to consider the motion of Barbara Runge (wife)

  to reopen the marital property division entered four years and 364

  days earlier in her dissolution of marriage action. Because I believe

  that rule provides the trial court with subject matter jurisdiction to

  consider such motions for up to five years from the date of

  permanent orders, I disagree with Judge Furman and Judge

  Richman rejecting the argument of David Allen Runge (husband)

  that the trial court had lost subject matter jurisdiction to consider

  wife’s motion. I also disagree with Judge Richman’s conclusion that

  the trial court had jurisdiction to rule on wife’s motion.

¶ 54   Barbara and David Allen Runge divorced in 2011. The decree

  of dissolution was entered on April 22, 2011. One day shy of five

  years later, on April 21, 2016, wife filed a motion to reopen the

  property portions of the dissolution decree under C.R.C.P.

  16.2(e)(10). In her motion, wife made general allegations that

  husband had either hidden or undervalued assets. The record

  provides no explanation for wife’s decision to file her motion one day

                                       25
  shy of the five-year jurisdictional provision of that rule. The district

  court ruled that it had jurisdiction to consider wife’s motion, but

  ultimately dismissed her motion after concluding that wife “ha[d]

  not made a sufficient showing” that husband failed to provide

  material financial information.

¶ 55   “[S]ubject matter jurisdiction concerns the court’s authority to

  deal with the class of cases in which it renders judgment, not its

  authority to enter a particular judgment in that class.” Minto v.

  Lambert, 870 P.2d 572, 575 (Colo. App. 1993). “Whether a court

  possesses . . . jurisdiction is generally only dependent on the nature

  of the claim and the relief sought.” Trans Shuttle, Inc. v. Pub. Utils.

  Comm’n, 58 P.3d 47, 50 (Colo. 2002). “[I]n determining whether a

  court has subject matter jurisdiction, it is important to distinguish

  between cases in which a court is devoid of power and those in

  which a court may have inappropriately exercised its power.” SR

  Condos., LLC v. K.C. Constr., Inc., 176 P.3d 866, 869-70 (Colo. App.

  2007). If a court acted when it was devoid of power, it acted

  without jurisdiction and any judgment rendered is void. In re

  Marriage of Stroud, 631 P.2d 168, 170 (Colo. 1981).



                                        26
¶ 56    Rule 16.2(e)(10) requires that, at the outset of a dissolution of

  marriage action, the parties must “provide full disclosure of all

  material assets and liabilities.” If such financial disclosures contain

  “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.”

¶ 57    Rule 16.2 was promulgated in 2005 in an effort to reform the

  “procedure for the resolution of all issues in domestic relations

  cases.” C.R.C.P. 16.2(a); see also In re Marriage of Schelp, 228 P.3d

  151, 155 (Colo. 2010). Rule 16.2 sets forth comprehensive

  disclosure and discovery requirements and allows for tailored case

  management. See generally C.R.C.P. 16.2(a). The rule was “the

  culmination of five years of pilot projects statewide and two years of

  drafting by a subcommittee of the Supreme Court Standing

  Committee on Family Issues.” David M. Johnson et al., New Rule

  16.2: A Brave New World, 34 Colo. Law. 101, 101 (Jan. 2005). It

  was drafted with significant input from “the Bench and Bar.” Id.



                                        27
¶ 58   As Judge Richman notes, the Schelp court stated that Rule

  16.2(e)(10) “renders inactive” C.R.C.P. 60(b), “which formerly

  operated as a bar” to retained jurisdiction by requiring that parties

  in most circumstances file a post-decree challenge within six

  months. Schelp, 228 P.3d at 156. Thus, Rule 16.2(e)(10)

  supplanted Rule 60(b) in the context of post-decree challenges

  based on nondisclosure of material assets or liabilities. See id.

  Significantly, Rule 60(b) set a filing deadline whereas Rule

  16.2(e)(10) states that the court “shall retain jurisdiction” for five

  years after the entry of a final decree or judgment. Compare

  C.R.C.P. 60(b), with C.R.C.P. 16.2(e)(10).

¶ 59   On appeal, husband asserts that Rule 16.2(e)(10) strips a

  court of jurisdiction to consider a post-decree challenge based on

  financial nondisclosure five years after the date of the decree. That

  is, husband contends the rule imposes a limit on a district court’s

  jurisdiction. In response, wife contends that the rule imposes a

  mere filing deadline, and does not require the court to act within

  the five-year window. In other words, wife views the rule as a

  claims processing provision. I agree with husband’s reading of Rule



                                        28
  16.2(e)(10) and would therefore conclude that the district court lost

  jurisdiction to consider wife’s motion the day after she filed it.

¶ 60   Rules of statutory construction apply to the interpretation of

  rules of civil procedure. Watson v. Fenney, 800 P.2d 1373, 1375

  (Colo. App. 1990). Thus, the primary task in construing a rule is to

  ascertain and to give effect to the intent of the adopting body. Id.

  To discern that intent, a court should look first to the language of

  the rule, giving words and phrases their plain and ordinary

  meanings. See People v. Dist. Court, 713 P.2d 918, 921 (Colo.

  1986). If the language of a rule is clear, there is no need to resort to

  other rules of construction. Watson, 800 P.2d at 1375.

¶ 61   I consider the meaning of Rule 16.2(e)(10) plain: a district

  court retains jurisdiction to reopen a dissolution decree for five

  years after the decree’s entry. Once five years have passed since

  the date of permanent orders, the court loses jurisdiction under

  Rule 16.2(e)(10) to consider a motion to reopen a property division

  in a dissolution of marriage case. No Colorado case law contradicts

  this reading of the rule, and in fact some cases support my

  interpretation. See generally Schelp, 228 P.3d at 156 (“The five-year

  retention provision states that for any disclosures made under the

                                        29
  new [Rule 16.2], the court shall retain jurisdiction for a period of five

  years after the entry a decree to reallocate assets and liabilities.”)

  (emphasis added).

¶ 62   Although Judge Furman appears to apply a plain meaning

  interpretation of Rule 16.2(e)(10), I disagree with his construction of

  the rule. In his interpretation, a trial court may consider a motion

  to reallocate marital assets or liabilities whenever it is filed, but only

  retains jurisdiction for five years from the date of permanent orders

  if it intends to grant the motion. This novel interpretation was not

  argued by the parties or addressed by the trial court. Further, I am

  not aware of any decision considering a trial court’s subject matter

  jurisdiction which has held that a jurisdictional limit applies to the

  granting of a motion, but not to its denial.

¶ 63   I have three concerns about Judge Furman’s interpretation.

  First, it does not alert litigants that the five-year period in Rule

  16.2(e)(10) applies only when a court intends to grant a motion to

  reallocate marital assets and liabilities. Second, it does not account

  for other language in this rule that the five-year provision does not

  limit other remedies that may be available to a party. Thus, a

  litigant filing a motion to reallocate marital assets more than five

                                        30
  years after the date of permanent orders would not know whether to

  pursue such motion under Rule 16.2(e)(10) or pursue some other

  remedy. Indeed, my guess is that after the five-year period has

  elapsed, a litigant would never file a motion under this rule.

¶ 64   Third, Judge Furman’s construction of Rule 16.2(e)(10) rests

  on the assumption that a trial court will be able to decide a motion

  under that rule without affording the moving party an opportunity

  to conduct discovery. Here, wife moved for discovery to assist her

  in proving the allegations contained in her motion. In this case, as

  in many others, discovery may be necessary to establish whether an

  initial disclosure of assets and liabilities contained material

  misstatements or omissions. While a trial court may be able to rule

  in some cases that a motion to reallocate assets and liabilities is

  insufficient on its face, in my view most cases will require that some

  discovery be undertaken.

¶ 65   While Judge Richman concludes that the district court had

  jurisdiction because wife filed her motion within five years of the

  date of the decree, I disagree with that interpretation as well, for

  several reasons. First, as I have already noted, the plain language

  of Rule 16.2(e)(10) is phrased in terms of the district court’s

                                       31
  jurisdiction and makes no mention of a date by which a party must

  file a motion to reopen. I would give effect to the rule’s plain

  language.

¶ 66   Second, when we consider the meaning of rules, “inclusion of

  certain items implies the exclusion of others.” Beeghly v. Mack, 20

  P.3d 610, 613 (Colo. 2001). I would conclude that the express

  inclusion of the word “jurisdiction” in Rule 16.2(e)(10) implies that

  the supreme court rejected phrasing the rule as imposing a filing

  deadline. In contrast, other procedural rules require that a party

  file a motion within a certain window. See C.A.R. 4(a) (requiring

  that parties file notice of appeal “within 49 days of the date of the

  entry of the judgment, decree, or order from which the party

  appeals”); C.R.C.P. 59(a) (“Within 14 days of entry of judgment as

  provided in C.R.C.P. 58 or such greater time as the court may allow,

  a party may move for post-trial relief.”); C.R.C.P. 60(b) (requiring

  that motion for relief from a judgment or order “shall be made

  within a reasonable time, and for [certain enumerated claims] not

  more than 182 days after the judgment, order, or proceeding was

  entered or taken”); see also §§ 13-80-101(1), -102(1), C.R.S. 2017

  (requiring that civil actions be “commenced within” certain statutes

                                       32
  of limitations periods); cf. In re Fisher, 202 P.3d 1186, 1198 (Colo.

  2009) (concluding that C.R.C.P. 251.19(a), which requires that

  attorney discipline hearing board “shall prepare” an opinion within

  fifty-six days of a hearing, does not state that the board “loses

  jurisdiction to rule on a matter if the opinion is not issued within”

  that timeframe). Thus, where the Colorado Supreme Court has

  intended to create a filing deadline, it has done so. It did not do so

  here.

¶ 67      Third, I believe that reading Rule 16.2(e)(10) as creating a

  five-year jurisdictional window is in keeping with the intent of

  revised Rule 16.2 as a whole. See Dist. Court, 713 P.2d at 921 (“To

  reasonably effectuate the legislative intent, a statute must be read

  and considered as a whole.”). In light of the rule’s rigorous

  mandatory disclosure scheme, see generally C.R.C.P. 16.2(e); see

  also C.R.C.P. 16.2 app. form 35.1, I believe that the supreme court

  envisioned less frequent post-decree challenges to property

  divisions in permanent orders. Thus, a five-year cap on a district

  court’s jurisdiction to reopen decrees strikes me as a sensible

  limitation, as well as a significant expansion of the prior limitations

  of Rule 60(b).

                                         33
¶ 68   Fourth, I do not think that my interpretation of Rule

  16.2(e)(10) would lead to the “uncertain and absurd results” that

  Judge Richman envisions. He concludes that, if the rule’s plain

  meaning were given effect, parties would be forced to predict an

  appropriate date to file a motion to reopen based on a district

  court’s ability to decide such motion within the five-year

  jurisdictional period. However, I do not believe reading Rule

  16.2(e)(10) as imposing a jurisdictional limit would engender such

  uncertainty.1 In the event that parties discover grounds for

  reopening a decree when the five-year window has almost run, they

  can file motions requesting a district court to decide the matter

  during the five-year period it retains jurisdiction.

¶ 69   Moreover, in my view, the supreme court has set forth an

  appropriate remedy for situations in which a district court does not

  decide a matter within the jurisdictional window despite being given

  sufficient time to do so. In Robbins v. A.B. Goldberg, the supreme


  1 On the contrary, Rule 16.2(e)(10) should encourage parties to file
  motions to reopen a property division sufficiently in advance of the
  jurisdictional deadline to permit the district court to timely rule.
  Further, as in Robbins v. A.B. Goldberg, 185 P.3d 794 (Colo. 2008),
  the parties can advise the court as necessary of the impending
  jurisdictional deadline.
                                        34
  court stated that C.R.C.P. 54(h)’s requirement that “[a] revived

  judgment must be entered within twenty years after entry of the

  original judgment” “was not intended to deprive litigants of a

  judgment simply because of court delays.” 185 P.3d 794, 795-96

  (Colo. 2008). Thus, the Robbins court held that, if court delay

  caused the court to lose jurisdiction, the appropriate remedy was

  an entry of judgment nunc pro tunc as of a date within Rule 54(h)’s

  twenty-year window. Id. at 797; see also Perdew v. Perdew, 99

  Colo. 544, 547, 64 P.2d 602, 604 (1937) (providing that a judgment

  nunc pro tunc may be entered “where the cause was ripe for

  judgment and one could have been entered at the date to which it is

  to relate back, provided [any] failure is not the fault of the moving

  party”).

¶ 70   Rule 16.2(e)(10) does “not limit other remedies that may be

  available to a party by law.” Thus, in the event a party files a

  motion under Rule 16.2(e)(10) but “court congestion or other

  administrative delays prevent a court from considering [the] matter

  before [the] legal deadline,” a judgment nunc pro tunc as of a date




                                       35
  within the five-year window would be appropriate.2 Robbins, 185

  P.3d at 796. However, that remedy is not appropriate here, where

  wife does not offer any reason for filing her motion only one day

  before the jurisdictional deadline and where wife did not alert the

  court to its imminent loss of jurisdiction.

¶ 71   Finally, I disagree with wife’s contention, made during oral

  argument, that the use of the term “jurisdiction” in Rule 16.2(e)(10)

  was “an example of poor drafting” by the Supreme Court Civil Rules

  Committee. As I have stated, I find the meaning of the rule plain,

  and the extensive drafting process that led to its enactment

  suggests that some forethought led to the use of the word

  “jurisdiction” in Rule 16.2(e)(10). See generally Johnson et al., 34

  Colo. Law. at 101. Even if interpreting Rule 16.2(e)(10) according to


  2 Although absence of jurisdiction typically acts as an absolute
  restriction on a court’s power to hear a matter, there are exceptions
  to that seemingly hard and fast rule. Exhaustion of administrative
  remedies is a jurisdictional prerequisite to bringing a suit
  challenging an administrative action, but there are several
  exceptions to that jurisdictional bar. City & Cty. of Denver v. United
  Air Lines, Inc., 8 P.3d 1206, 1213 & n.11 (Colo. 2000) (summarizing
  exceptions, including futility and waiver by the agency). Similarly,
  timely filing of a notice of appeal is ordinarily a jurisdictional
  prerequisite to appellate review, but certain exceptions allow for
  appellate review even in the case of untimely filing. See generally In
  re C.A.B.L., 221 P.3d 433, 438-40 (Colo. App. 2009).
                                       36
  its plain meaning would lead to a result not intended by the

  supreme court, “we are not a board of editors” tasked with rewriting

  the Rules of Civil Procedure when their meaning is clear. McGihon

  v. Cave, 2016 COA 78, ¶ 11, ___ P.3d ___, ___.

¶ 72   Accordingly, I would vacate the district court’s order

  dismissing wife’s motion on the basis that the district court lacked

  jurisdiction to consider the motion. Because I would vacate the

  order rather than affirm on the merits, I respectfully dissent.




                                       37
