     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
                                                            October 31, 2019

                               2019COA164

No. 18CA0720, In Re Marriage of Blaine — Family Law —
Uniform Dissolution of Marriage Act — Disposition of Property
— Uniform Premarital and Marital Agreements Act

     Where a husband voluntarily conveyed real property to his

then-wife in an interspousal transfer deed and testified that he

intended by that conveyance that the property would be the wife’s

separate property, a division of the court of appeals concludes that

the district court did not err in ruling that the property was the

wife’s separate property in their dissolution action, even though the

deed was not a marital agreement under the Uniform Premarital

and Marital Agreements Act, §§ 14-2-301 to -313, C.R.S. 2019. The

division distinguishes this case from In re Marriage of Zander, 2019

COA 149.
     The division further concludes that the district court did not

err by not dividing certain funds that remained in the wife’s bank

account at the time of dissolution.
COLORADO COURT OF APPEALS                                     2019COA164


Court of Appeals No. 18CA0720
Jefferson County District Court No. 16DR31064
Honorable Dennis J. Hall, Judge


In re the Marriage of

Jack Allen Blaine,

Appellant,

and

Qing He,

Appellee.


                           JUDGMENT AFFIRMED

                                   Division V
                           Opinion by JUDGE TERRY
                        J. Jones and Grove, JJ., concur

                         Announced October 31, 2019


Law Offices of Rodger C. Daley, Rodger C. Daley, Denver, Colorado, for
Appellant

GreenLaw International LLC, Ralph J. Strebel, Lakewood, Colorado, for
Appellee

Lass Moses Ramp & Cooper, LLC, Patricia A. Cooper, Marie Avery Moses,
Denver, Colorado, for Amicus Curiae Colorado Chapter of the American
Academy of Matrimonial Lawyers
¶1    Jack Allen Blaine (husband) appeals the permanent orders

 entered on the dissolution of his marriage to Qing He (wife). We

 affirm.

¶2    Because husband voluntarily conveyed real property to wife in

 an interspousal transfer deed, and testified that he intended by that

 conveyance that the property would be wife’s separate property, we

 conclude that the district court did not err in ruling that the

 property was wife’s separate property, even though the deed was

 not a marital agreement under the Uniform Premarital and Marital

 Agreements Act (UPMAA), §§ 14-2-301 to -313, C.R.S. 2019. In so

 holding, we distinguish this case from In re Marriage of Zander,

 2019 COA 149.

¶3    We further conclude that the district court did not err by not

 dividing certain funds that remained in wife’s bank account at the

 time of dissolution.

                            I. Background

¶4    The parties’ two-year marriage ended in 2018. The sole issue

 for permanent orders was husband’s claim that wife had borrowed

 a total of $346,500 from him in various increments over the course

 of the marriage and had used the funds primarily toward the


                                    1
 separate property purchase of a home in California worth

 $1,100,000. Husband argued that wife should be ordered to repay

 the borrowed funds and that it would be unconscionable for her to

 keep the California home without doing so. Wife argued that the

 funds were given to her by husband with no expectation of

 repayment.

¶5    After a hearing, the district court found that the first $50,000

 husband had transferred to wife was a gift for wife’s mother and

 was given according to Chinese custom with no expectation of

 repayment, but that the remainder of the funds were neither loaned

 nor gifted but were funds husband contributed to the marriage.

 However, because after transferring the funds to wife, husband

 signed an “interspousal transfer deed” conveying the California

 home to her “as her sole and separate property,” any marital

 interest husband had in the home based on the funds he provided

 “was extinguished.” Therefore, the court set aside the home as

 wife’s separate property. It found the increase in value of the home

 during the marriage was $82,939, and awarded that amount to

 husband.




                                   2
¶6    The court denied husband’s motion to reconsider the

 permanent orders.

                              II. Analysis

        A. Failure to Set Aside the Interspousal Transfer Deed

¶7    Husband argues that the district court abused its discretion

 by failing to set aside the interspousal transfer deed. We disagree.

¶8    In the district court, husband did not argue that the

 interspousal transfer deed should be set aside and the $1,100,000

 California home divided as marital property. He instead argued

 only that wife should be ordered to repay the $346,500 he had

 loaned her, less $2500 that he admitted at the hearing he had given

 without expecting repayment. See Valentine v. Mountain States Mut.

 Cas. Co., 252 P.3d 1182, 1188 n.4 (Colo. App. 2011) (“A party’s

 mere opposition to its adversary’s request . . . does not preserve all

 potential avenues for relief on appeal. We review only the specific

 arguments a party pursued before the district court.”); see also

 Melat, Pressman & Higbie, L.L.P. v. Hannon Law Firm, L.L.C., 2012

 CO 61, ¶ 18.

¶9    Husband did, however, assert in the trial management

 certificate and at the hearing, as he does on appeal, that there is a


                                    3
  fiduciary duty between spouses. Relying on California case law,

  husband argues that the interspousal transfer deed creates a

  “presumption of undue influence,” which then requires wife, the

  spouse advantaged by the transaction, to establish that husband,

  the disadvantaged spouse, signed the deed “freely and voluntarily”

  and with full knowledge of the facts and complete understanding of

  the effects of the deed. However, even if this argument could be

  construed as an implied request to set aside the deed because of

  wife’s breach of her fiduciary duty, the record does not support that

  result.

¶ 10   Husband testified that he signed the interspousal transfer

  deed voluntarily. He did not testify that wife induced him to sign

  through physical or emotional abuse, as his reply brief implies. He

  further testified that he had a master’s degree in business, that he

  knew the deed was a legal document, that he had experience

  signing deeds, and that he read and understood the deed and the

  instructions transmitted with it before signing it. He acknowledged

  that the deed made the California home wife’s separate property

  and that he was “okay with” that when he signed the deed. He also

  testified that he had been divorced previously, had entered into a


                                    4
  separation agreement in that earlier divorce, and was familiar with

  the concept of separate property.

¶ 11   Accordingly, even assuming that a fiduciary duty existed in

  relation to the deed, we conclude that the standard husband argues

  for discharge of that duty — that the disadvantaged spouse enter

  into the transaction freely and voluntarily, with full knowledge of

  the facts, and complete understanding of the effect of the

  transaction — was met based on husband’s own testimony.

¶ 12   In sum, we see no basis for reversal of the judgment for failure

  to set aside the deed. Thus, we need not address the parties’

  arguments concerning whether the scope of the fiduciary duty

  between divorcing spouses in Colorado is the same as it is in

  California. See In re Marriage of Dadiotis, 2014 COA 28, ¶ 5

  (affirming district court’s judgment based on different reasoning

  than the court used).

                      B. Enforcement of the Deed

¶ 13   Husband contends that the district court abused its discretion

  by excluding the California home from marital property because the

  interspousal transfer deed was not a “valid agreement” under




                                      5
  section 14-10-113(2)(d), C.R.S. 2019. We conclude that the transfer

  was valid notwithstanding that section.

¶ 14   We requested and received an amicus brief on this issue from

  the Colorado chapter of the American Academy of Matrimonial

  Lawyers. And we agree with the portion of that brief arguing that

  property can be excluded from a marital estate by a deed conveying

  such property from one spouse to the other as separate property,

  provided that there is also evidence of the conveying spouse’s intent

  to exclude the property.

¶ 15   While this case was pending, another division of this court

  concluded in Zander that an oral marital agreement to exclude

  property from a marital estate is unenforceable because marital

  agreements must be in writing and signed by the parties. See

  Zander, ¶ 29 (applying the Colorado Marital Agreements Act

  (CMAA), § 14-2-303, C.R.S. 2007, in effect at the time, which

  required marital agreements to be in writing and signed by the

  parties in order to be enforceable). However, because the property

  at issue here was conveyed by husband to wife as her separate

  property and because husband unequivocally acknowledged at the

  permanent orders hearing that he intended by that conveyance that


                                    6
  the property would be wife’s separate property, this case is unlike

  Zander. We conclude that the district court did not err under these

  circumstances in setting aside the California home as wife’s

  separate property.

¶ 16   Marital property means all property acquired by either spouse

  during the marriage. § 14-10-113(2). Property acquired during

  marriage is presumed marital regardless of whether title is held

  individually or jointly. § 14-10-113(3). This presumption is

  overcome, however, by a showing that such property was acquired

  by a method described in the exceptions to section 14-10-113(2),

  including property that is acquired by gift and property that is

  excluded by valid agreement of the parties. § 14-10-113(2)(a), (d),

  (3); see In re Marriage of Balanson, 25 P.3d 28, 36 (Colo. 2001).

  Whether the parties intended to exclude property from their marital

  estate on these bases hinges on their intent and actions, and is a

  factual issue for the district court to determine. In re Marriage of

  Bartolo, 971 P.2d 699, 700-01 (Colo. App. 1998).

¶ 17   Wife, through her real estate agent, sent the interspousal

  transfer deed to husband. The district court found that husband

  signed it to facilitate wife’s purchase of the California home, and


                                     7
  that the deed operated to exclude the home from marital property

  under section 14-10-113(2)(d). The court also found, however, that

  the deed did not constitute a “marital agreement” under the UPMAA

  because it was not signed by both parties. See § 14-2-306, C.R.S.

  2019. The court did not err under the circumstances of this case —

  where husband signed a deed conveying the California home to wife

  as her separate property and testified unequivocally that it was his

  understanding and intent in doing so that the home would be wife’s

  separate property.

¶ 18   Unlike in Zander, neither party here alleged an “agreement”

  that the California home would be wife’s separate property.

  Instead, husband conveyed the property to wife as her sole

  property, admitting that this was his intent. See Zander, ¶ 29. A

  conveyance is not an agreement, marital or otherwise. See § 14-2-

  302(2), C.R.S. 2019 (defining a “[m]arital agreement” as “an

  agreement between spouses”); see also Platt v. Aspenwood Condo.

  Ass’n, 214 P.3d 1060, 1066 (Colo. App. 2009) (noting that “[a]

  conveyance is a transfer of title to property by deed” and

  distinguishing a conveyance from an agreement to convey). As a

  result, to be effective to preclude husband’s interest in the property,


                                     8
  the interspousal transfer deed did not have to meet the

  requirements and formalities of the UPMAA, namely signature by

  both parties; access by both parties to independent legal

  representation, or an express notice in the agreement of their

  waiver of specific rights; and adequate financial disclosure by both

  parties. See § 14-2-309, C.R.S. 2019.

¶ 19   Although it was not an agreement, the interspousal transfer

  deed was nonetheless effective to convey the California home to wife

  as her separate property. The present case is similar to Bartolo.

  There, a residence that had been owned before the marriage by the

  wife and her mother was conveyed to the spouses jointly after they

  married. Bartolo, 971 P.2d at 699. When the parties began having

  marital difficulties, the husband executed a quitclaim deed at the

  wife’s request, conveying the residence to her alone. Id. at 699-700.

  A division of this court upheld the district court’s determination

  that the residence was the wife’s separate property under section

  14-10-113(2)(a) and (d) because the husband had executed a lawful

  conveyance totally divesting himself of the property and, on

  recording of the deed by the wife, placing the property completely

  beyond his control. Id. at 700; see also In re Marriage of Vickers,


                                    9
  686 P.2d 1370, 1371 (Colo. App. 1984) (similarly excluding property

  from a marital estate when it was conveyed from one spouse to the

  other and the conveying spouse testified that he knew the effect of

  the deed would be to transfer any interest he had in the property to

  the other spouse).

¶ 20   Husband did the same thing here and, similar to the spouse in

  Vickers, he acknowledged that he read and understood the

  interspousal transfer deed before signing it, he knew the deed

  would make the California home wife’s separate property, he was

  “okay with” that result, and he understood — from his involvement

  in a prior divorce — the concept of separate versus marital property

  in the context of a divorce. Accordingly, the district court did not

  err in declining to characterize the conveyance as a marital

  agreement that must comply with the UPMAA. Cf. Bartolo, 971

  P.2d at 700 (setting aside property deeded from one spouse to the

  other as separate property without addressing the CMAA). But cf. In

  re Marriage of Bisque, 31 P.3d 175, 180 (Colo. App. 2001)

  (conveyances were set aside when they were made pursuant to an

  underlying separation agreement that was determined to be invalid

  under the CMAA).


                                    10
¶ 21   Our disposition would likely be different had husband not so

  clearly expressed his understanding and intent that the

  interspousal transfer deed would render the California home wife’s

  separate property. We agree with amicus that the mere fact of a

  conveyance of property between spouses is not enough to render

  such property separate on dissolution without additional evidence

  that the conveying spouse intended that result. Because the record

  in this case unequivocally reflects husband’s intent that the

  California home would be wife’s separate property, we affirm.

              C. Undivided Funds in Wife’s Bank Account

¶ 22   Husband also contends that the district court abused its

  discretion under section 14-10-113(1) by failing to divide $73,000 of

  the borrowed funds that remained in wife’s bank account at

  dissolution. We disagree.

¶ 23   As the district court noted, husband made this argument for

  the first time in his post-trial motion. He did not argue at the

  hearing that $73,000 of the borrowed funds remained in wife’s bank

  account and needed to be divided by the court. To the contrary, he

  consistently asserted that wife had used $326,000 of the $346,500

  he had loaned her to purchase the California home. He asked the


                                    11
  court to order wife to repay the borrowed funds, and did not ask the

  court to divide wife’s bank account. Indeed, as wife points out, the

  parties stipulated that each of them would receive all of the funds in

  their respective bank accounts, and the court adopted their

  stipulation.

¶ 24   “‘Stipulations are a form of judicial admission,’ and ‘are

  binding on the party who makes them.’” Maloney v. Brassfield, 251

  P.3d 1097, 1108 (Colo. App. 2010) (citation omitted). A party may

  be relieved of a stipulation “upon timely application” and only “if

  there is a sound reason in law or equity for avoiding or repudiating”

  the stipulation. Id. (citation omitted).

¶ 25   Because husband did not request that the district court relieve

  him from the stipulation, we do not address that issue. See Melat,

  ¶ 18 (“It is axiomatic that issues not raised in or decided by a lower

  court will not be addressed for the first time on appeal.”). Nor do we

  address husband’s argument concerning the $73,000. See Fid.

  Nat’l Title Co. v. First Am. Title Ins. Co., 2013 COA 80, ¶ 51

  (“Where . . . a defense is raised for the first time in a post-trial

  motion, it is not preserved for appellate review.”). And we do not

  address husband’s argument — raised for the first time in his reply


                                      12
  brief — acknowledging that the $73,000 was not in wife’s bank

  account at the time of the hearing but arguing that the funds

  should still be divided because wife dissipated them. See In re

  Marriage of Drexler, 2013 COA 43, ¶ 24 (appellate courts do not

  address arguments raised for the first time in a party’s reply brief).

        III. Wife’s Request to Strike Portions of Husband’s Brief

¶ 26   Finally, we deny wife’s request to strike portions of husband’s

  brief for failure to cite legal authority. Husband relies on section

  14-10-113 and parts of the record for his contention that the

  district court omitted assets from the marital property distribution

  as well as for his contention concerning enforcement of the deed,

  and he also relies on the UPMAA, §§ 14-2-301 to -313. We

  conclude that his brief complies with C.A.R. 28(a)(7)(B) and that

  striking any part of it is not warranted.

                             IV. Conclusion

¶ 27   The judgment is affirmed.

       JUDGE J. JONES and JUDGE GROVE concur.




                                    13
