     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
                                                            January 30, 2020

                                2020COA16

No. 18CA1143, Marriage of Weekes — Family Law — Post-
dissolution — Modification and Termination of Provisions for
Maintenance, Support, and Property — Change of Physical Care

     Father moved under section 14-10-122(5), C.R.S. 2019, to

retroactively modify child support based on a change in physical

care of the child. The district court denied the motion as untimely,

applying an amendment to the statute that became effective after

the change in physical care but before father filed the motion.

     As a matter of first impression, a division of the court of

appeals concludes that the district court’s retroactive application of

the amended statute was not unconstitutionally retrospective.

However, the division concludes that the district court erred in

analyzing the applicability of the statutory exception. Accordingly,

the division reverses the order and remands for further proceedings.
COLORADO COURT OF APPEALS                                     2020COA16


Court of Appeals No. 18CA1143
Jefferson County District Court No. 01DR1296
Honorable Christopher C. Zenisek, Judge


In re the Marriage of

Michele Dawn Weekes,

Appellee,

and

William Warren Weekes,

Appellant.


                        ORDER REVERSED AND CASE
                        REMANDED WITH DIRECTIONS

                                 Division V
                         Opinion by JUDGE HARRIS
                        Tow and Márquez*, JJ., concur

                         Announced January 30, 2020


James J. Keil, Jr., Denver, Colorado, for Appellee

Paige Mackey Murray, LLC, Paige Mackey Murray, Boulder, Colorado, for
Appellant


*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2019.
¶1    William Warren Weekes (father) appeals the denial of his

 motion to retroactively modify child support.

¶2    Ordinarily, any modification of a child support order applies

 only prospectively. But if a change in physical care of the child

 occurs, section 14-10-122(5), C.R.S. 2019, allows the court to apply

 the modification retroactively, as of the date of the change in

 physical care.

¶3    In 2008, when father alleges that he took over physical care of

 his daughter from Michele Dawn Weekes (mother), section 14-10-

 122(5) did not include any time limitation or deadline. By the time

 he moved to modify his child support obligation in December 2017,

 however, the statute limited retroactive modification to the five

 years prior to the filing of the motion to modify support.

¶4    Applying the amended statute, the magistrate denied father’s

 motion to retroactively modify child support as untimely. The

 statute contains an exception, applicable when enforcement of the

 five-year limitation period would be “substantially inequitable,

 unjust, or inappropriate,” but the magistrate declined to apply it,

 finding that father’s delay in seeking modification was unjustified.




                                   1
 The district court affirmed the magistrate’s order, and father

 appeals.

¶5    We reject father’s argument that application of the amended

 statute to bar his motion violates the constitutional prohibition on

 retrospective legislation. But we agree that the magistrate and

 district court erred in analyzing the applicability of the statutory

 exception. We therefore reverse the order denying father’s motion

 and remand the case for further proceedings.

                           I.    Background

¶6    The parties’ marriage ended in 2001. Father was then living in

 Arizona, and mother resided with their child in Colorado.

 Consistent with the parties’ parenting plan, father was ordered to

 pay mother monthly child support.

¶7    After the child became emancipated in 2011, mother sought

 approximately $85,000 in unpaid child support, over half of which

 represented interest. She mailed her motion for entry of judgment

 to two of father’s former addresses in Arizona. When father failed to

 respond, the district court entered judgment for mother in the

 amount requested.




                                    2
¶8     In 2016, father moved pro se to set aside the judgment. He

  asserted that the judgment was procured by fraud, that the child

  had lived with him for the majority of the time for which mother

  sought child support, that the parties had agreed that no child

  support would be owed while father had custody, and that mother

  knew where father lived yet did not serve him with her motion for

  entry of judgment. He also submitted records of the child’s high

  school attendance in Arizona and a notarized letter from the then-

  twenty-five-year-old child confirming her living arrangements.

¶9     The district court construed father’s motion as a C.R.C.P.

  60(b)(2) motion to set aside the judgment based on fraud and

  denied it as untimely. Additionally, the court noted that “[e]ven if

  the child resided with [f]ather as indicated, there is no indication of

  his child support obligation being altered or vacated for that

  reason.”

¶ 10   Thereafter, father filed additional pro se motions to vacate the

  judgment, asserting the same grounds. The child also contacted

  the court, reiterating that she had lived with father and attended

  school in Arizona. She alleged that mother had lied to the court

  when mother suggested she did not know father’s current address


                                     3
  for purposes of serving the motion; according to the child, mother

  had sent her mail and visited her at father’s address around the

  time mother obtained the judgment. The district court denied

  father’s additional requests to set aside the judgment.

¶ 11   In December 2017, father retained counsel who moved, under

  section 14-10-122(5), to modify the support order retroactive to the

  child’s 2008 change in residence. Counsel acknowledged that an

  amendment effective January 1, 2017, limited retroactive

  modification to the five-year period preceding a motion to modify.

  He argued, however, that the situation was grossly inequitable,

  unfair, and unjust — insisting that mother had obtained judgment

  against father for years she knew the child had lived with him and

  had thereby obtained a windfall.

¶ 12   Mother denied father’s factual allegations, but argued that, in

  any event, the statute’s five-year limitation provision barred father

  from obtaining relief.

¶ 13   Before the time for filing a reply had expired, see C.R.C.P. 121,

  § 1-15(1)(c), the magistrate denied father’s motion, finding that his

  “gross delay and failure to act simply does not support a finding




                                     4
  that application of the statute would be substantially inequitable,

  unjust or inappropriate.”

¶ 14   Father nonetheless filed a reply, asserting that mother had

  knowingly failed to serve him at his current address, he had

  therefore learned of the judgment only after mother began collection

  efforts in 2015, the court misconstrued his pro se motions as Rule

  60(b) motions rather than timely motions to modify his support

  obligation, and retroactive application of the 2017 amendment was

  both legally impermissible and unjust. And, noting that the parties’

  allegations created a factual dispute concerning the applicability of

  the statutory exception, father requested a hearing.

¶ 15   Father then petitioned for district court review of the

  magistrate’s ruling, reasserting his prior arguments and his request

  for a hearing.

¶ 16   The district court denied the petition. After considering

  father’s arguments, including those raised in the reply, the court

  affirmed the magistrate’s findings. It concluded that father’s delay

  in seeking modification was unjustified: although the alleged

  change in the child’s primary residence had occurred in 2008 and

  the child emancipated in 2011, father “failed to take any action in


                                    5
  the matter until he filed his first Motion to Set Aside the Judgment

  on October 17, 2016.” The court further concluded that the

  magistrate did not abuse her discretion in denying father’s motion

  without a hearing.

   II.   Retroactive Application of Section 14-10-122(5)’s Amendment

¶ 17     Father contends that the district court’s retroactive application

  of section 14-10-122(5)’s five-year limitation period was

  unconstitutionally retrospective. We disagree.

                           A.    Legal Standards

¶ 18     Statutes can be applied prospectively or retroactively. Ficarra

  v. Dep’t of Regulatory Agencies, 849 P.2d 6, 11 (Colo. 1993). A

  statute is applied prospectively when it operates on transactions

  that occur after its effective date, and retroactively when it operates

  on transactions that have already occurred or rights and obligations

  that existed before its effective date. Id.

¶ 19     Although statutes are presumed to operate prospectively, see

  § 2-4-202, C.R.S. 2019, the legislature may override this

  presumption by indicating an intent that the statute operate

  retroactively. City of Golden v. Parker, 138 P.3d 285, 289 (Colo.

  2006). The retroactive application of a civil statute is not


                                      6
  necessarily unconstitutional: “[U]nder our state constitution, some

  retroactively applied civil legislation is constitutional, and some is

  not.” Ficarra, 849 P.2d at 12. Only legislation that is also

  “retrospective” in its application is unconstitutional. Id.

¶ 20   A law is unconstitutionally retrospective if it “takes away or

  impairs vested rights acquired under existing laws, or creates a new

  obligation, imposes a new duty, or attaches a new disability, in

  respect to transactions or considerations already past.” Abromeit v.

  Denver Career Serv. Bd., 140 P.3d 44, 51 (Colo. App. 2005). Subject

  to some limited exceptions, retroactive application of a substantive

  law — one that “create[s], eliminate[s,] or modif[ies] vested rights or

  liabilities,” People v. D.K.B., 843 P.2d 1326, 1331 (Colo. 1993) — is

  ordinarily unconstitutional, Taylor Morrison of Colo., Inc. v. Bemas

  Constr., Inc., 2014 COA 10, ¶ 19. But as a general matter, statutes

  that are procedural or remedial in nature may be applied

  retroactively without violating the constitutional prohibition against

  retrospective legislation. Id.

¶ 21   We review de novo whether a statute has been applied in

  violation of retroactivity principles. Id. at ¶ 16.




                                      7
                             B.    Application

¶ 22   Prior to January 2017, section 14-10-122(5) “place[d] no time

  limit on the obligor’s ability to seek, or the court’s authority to

  grant, retroactive modification of child support” based on a change

  in care. In re Marriage of Green, 93 P.3d 614, 616 (Colo. App.

  2004). As of January 1, 2017, however, the statute now provides

  that “[t]he court shall not modify child support [retroactively] for

  any time more than five years prior to the filing of the motion to

  modify child support, unless the court finds that its application

  would be substantially inequitable, unjust, or inappropriate.” § 14-

  10-112(5); see Ch. 157, secs. 8, 11, § 14-10-122(5), 2016 Colo.

  Sess. Laws 496-97.

¶ 23   Father contends that the five-year limitation provision is not

  intended to apply where the change in care occurred prior to the

  amendment’s effective date. And, he argues, if the legislature did

  intend that the amendment apply retroactively, the statute is

  unconstitutionally retrospective.

¶ 24   We first address whether the statute is intended to apply

  retroactively.




                                      8
¶ 25   Father says that because the statute does not include express

  retroactivity language, we must presume the legislature intended it

  to operate prospectively only — meaning that the limitation on

  retroactive modification of child support would not apply unless the

  change of care occurred after January 2017.

¶ 26   But express retroactivity language is unnecessary. City of

  Golden, 138 P.3d at 290; see Ficarra, 849 P.2d at 13-14. Rather, an

  intent that a statute operate retroactively may be implied. See

  Ficarra, 849 P.2d at 13-14.

¶ 27   The amendment to section 14-10-122(5) ties the limitation on

  child support modifications to the filing of the motion to modify, not

  the underlying change in physical care. In this way, the

  amendment is similar to the statutory provision at issue in Ficarra.

  There, the amended statute automatically disqualified persons

  convicted of a felony within the last ten years from receiving a bail

  bondsman license. 849 P.2d at 9. The supreme court concluded

  that the legislature intended the amendment to apply to the

  plaintiffs, who had applied for licenses after the amendment’s

  effective date, but whose felony convictions predated the

  amendment. According to the court, “[t]he intent . . . of the General


                                     9
  Assembly to exclude from the ranks of professional bail bondsmen

  anyone who has been convicted of a felony . . . within ten years from

  the date of his application for renewal is plain.” Id. at 13 (emphasis

  added).

¶ 28   Similarly, the 2017 amendment to section 14-10-122(5)

  prohibits the district court, as of the amendment’s January 1,

  2017, effective date, from modifying child support for any time

  before the five years preceding the filing of a motion to modify,

  regardless of when the change of care occurred.

¶ 29   Accordingly, we conclude that the amendment was intended

  by its plain language to operate on motions filed after its effective

  date, even if the change in physical care predated the amendment.

  See Ficarra, 849 P.2d at 13-14; see also Shell W. E&P, Inc. v.

  Dolores Cty. Bd. of Comm’rs, 948 P.2d 1002, 1011-12 (Colo. 1997)

  (A statute providing that interest on taxes levied on lands previously

  omitted from a tax list because of the taxpayer’s failure to disclose

  shall be calculated from the date the taxes were due “plainly evinces

  an intention to change the calculation of interest on tax obligations

  that arose in the past.”); Abromeit, 140 P.3d at 47-50 (concluding

  that personnel rule amendment eliminating appeal right for


                                     10
  classification decisions was intended to apply retroactively to claims

  that were pending on its effective date).

¶ 30   Next, we must determine whether retroactive application of the

  amendment’s limitation period constitutes unconstitutional

  retrospective legislation.

¶ 31   As we have noted, retroactive application of a statute is

  unconstitutionally retrospective if it affects vested rights. Taylor

  Morrison of Colo., ¶ 19. A right is vested only “when the right to

  assert it does not depend on the common law or the statute under

  which it was acquired, but rather has an independent existence.”

  Id. at ¶ 20.

¶ 32   There is no vested right in remedies. Shell W. E&P, 948 P.2d

  at 1012. “The abolition of an old remedy, or the substitution of a

  new one, does not constitute the impairment of a vested right.”

  Woodmoor Improvement Ass’n v. Prop. Tax Adm’r, 895 P.2d 1087,

  1089 (Colo. App. 1994).

¶ 33   Section 14-10-122(5) provides a remedy for a parent who has

  effectively overpaid child support due to a change in care of the

  child. Father says this right to reimbursement is a vested right

  because each accrued child support payment became a judgment


                                    11
  that could have been modified retroactively under the prior version

  of the statute. We disagree.

¶ 34   A judgment arises under section 14-10-122(1)(c) for each child

  support payment ordered as soon as the payment becomes due and

  is unpaid. See In re Marriage of Schutte, 721 P.2d 160, 162 (Colo.

  App. 1986). Father’s right to retroactively modify his previously

  ordered child support payments to the date of the change in the

  child’s physical care, however, exists only by operation of section

  14-10-122(5). See Green, 93 P.3d at 616-17. Because the remedy

  does not exist independent of the statute, there is no vested right in

  its operation, and therefore it can be abolished or changed.

  Woodmoor Improvement Ass’n, 895 P.2d at 1089.

¶ 35   Section 14-10-122(5) is remedial in nature and its limitation

  provision is simply a limitation on the remedy — regardless of when

  the change in custody occurred, relief is limited to the five years

  preceding the filing of the motion. The application of a limitation on

  a remedy to an existing claim for relief does not violate the

  prohibition against retroactive legislation. Id.; see also Shell W.

  E&P, 948 P.2d at 1012; Vetten v. Indus. Claim Appeals Office, 986

  P.2d 983, 986 (Colo. App. 1999).


                                     12
¶ 36    Woodmoor Improvement Ass’n, which presents a similar

  scenario, is instructive. In 1992, the plaintiff homeowners’

  association filed a petition for abatement and refund of property

  taxes for tax years 1986-1991. At the time the association paid

  most of the taxes, the refund statute contained a six-year statute of

  repose. But in 1991, the statute was amended and precluded

  refunds “unless a petition for abatement or refund is filed within

  two years” of the year taxes were levied. Id. The association argued

  that the application of the two-year limitation provision was

  unconstitutionally retrospective because it “remov[ed] its vested

  right in a six-year repose period.” Id. The division disagreed,

  concluding that the limitation provision “can appropriately bar a

  claim which arises from events that occurred prior to its adoption.”

  Id.

¶ 37    Father had no vested right in the child support modification

  remedy as it was defined under section 14-10-122(5). Thus, the

  district court did not err in applying the January 1, 2017,

  amendment to father’s motion filed after that date. See Shell W.

  E&P, 948 P.2d at 1012; Vetten, 986 P.2d at 986; Woodmoor

  Improvement Ass’n, 895 P.2d at 1089.


                                   13
¶ 38   We are not persuaded otherwise by the authorities on which

  father relies. True, in United Bank of Denver National Ass’n v.

  Wright, 660 P.2d 510 (Colo. App. 1983), the division determined

  that an amended statute of limitations should not apply

  retroactively to a claim that had accrued prior to the date of the

  amendment. Id. at 511. But it also determined that the legislature

  had not intended the tolling provision at issue to apply retroactively

  in the first place. Id. (“The amended statute contains no language

  indicating a legislative intent that this amendment receive

  retroactive application”; accordingly, “it became effective on the date

  of its approval.”). Thus, the analysis regarding the effect of applying

  the statute retroactively appears to be dicta.

¶ 39   In any event, since Wright, the supreme court has

  unequivocally instructed that “application of a statute to a

  subsisting claim for relief does not violate the prohibition of

  retrospective legislation where the statute effects a change that is

  only procedural or remedial in nature.” Shell W. E&P, 948 P.2d at

  1012. We are bound by decisions of our supreme court. See People

  v. Allen, 111 P.3d 518, 520 (Colo. App. 2004).




                                     14
¶ 40   As for Wood Bros. Homes, Inc. v. Howard, 862 P.2d 925 (Colo.

  1993), the plaintiffs in that case brought their action while the

  original statute of limitations was in effect and the successor

  statute expressly provided that it “shall apply to claims for relief

  arising on or after” its effective date. Id. at 931. Thus, like the

  division in Wright, the Howard court concluded that the successor

  statute was not intended to apply retroactively. Id. at 930-31.

¶ 41   In sum, we conclude that the district court’s application of the

  January 2017 amended statute did not violate the constitutional

  prohibition on retrospective laws.

               III.   Application of the Statutory Exception

¶ 42   Alternatively, father contends that even if the five-year

  limitation provision applies to his motion, the district court erred in

  analyzing the applicability of the statutory exception. The exception

  applies where imposing the limitation provision would be

  “substantially inequitable, unjust, or inappropriate.” § 14-10-

  122(5). At a minimum, father says, the court should have held a

  hearing before determining that the exception did not apply. We

  agree that the court erred.




                                     15
¶ 43   In determining that the exception did not apply, the magistrate

  found that father’s motion was filed “well outside the 5-year mark”

  and that his “gross delay and failure to act” did not support a

  finding that application of the statute would be substantially

  inequitable, unjust, or inappropriate. On review, the district court

  concluded that the magistrate’s findings were supported by the

  record, as father had failed to take any action until 2016, five years

  after the child became emancipated. However, neither the

  magistrate nor the district court appeared to consider father’s

  various arguments that might have supported application of the

  statutory exception.

       • Father asserted that he did not learn of the judgment until

          2015 because mother had mailed her motion to what she

          knew was his former, not then current, address. The child’s

          letters and affidavit, if credited by the court, corroborate

          father’s allegations.

       • Father argued that the court should have construed his pro

          se motion to set aside the judgment as a timely motion to

          retroactively modify child support based on a change in

          care. Though the motion was not designated as such, the


                                    16
          basis of his request to set aside the judgment was that a

          change in care had occurred. See Estates in Eagle Ridge,

          LLLP v. Valley Bank & Tr., 141 P.3d 838, 843 (Colo. App.

          2005) (the substance of a pleading controls over its form or

          caption); see also Cornelius v. River Ridge Ranch

          Landowners Ass’n, 202 P.3d 564, 572 (Colo. 2009) (court

          may take into account the fact that a party is appearing pro

          se, notwithstanding that pro se parties are bound by rules

          of civil procedure).

       • Father asserted that the parties had agreed that he would

          not pay child support after physical care of the child was

          transferred to him.

¶ 44   Contrary to the district court’s implicit determination, we

  conclude that whether to apply the statutory exception involves a

  fact-intensive inquiry. And, as mother conceded at oral argument,

  the material facts here are hotly contested. (For example, did

  mother purposefully serve the motion at the wrong address? Did

  mother’s conduct justify father’s delay in filing his motion to set

  aside the judgment? Did father stop paying child support in

  reliance on an agreement concerning change in care and, if so, was


                                    17
  that reliance reasonable?) Thus, the district court could not make

  the necessary findings without an evidentiary hearing. See Green,

  93 P.3d at 617 (remanding case for a hearing on child support

  when “numerous issues of fact were disputed”).

¶ 45   We reject mother’s argument that father was not entitled to a

  hearing because he did not request one until his reply brief. Mother

  cites no authority prohibiting a hearing when one is requested for

  the first time in a reply brief. See, e.g., C.R.C.P. 121, § 1-22(2)(c)

  (party affected by a motion for attorney fees may request a hearing

  “within the time permitted to file a reply”). In any case, the district

  court may, in its discretion, set a hearing on any motion. C.R.C.P.

  121, § 1-15(4).

                             IV.   Conclusion

¶ 46   The order is reversed, and the case is remanded for the district

  court to conduct an evidentiary hearing to determine whether it

  would be substantially inequitable, unjust, or inappropriate to

  apply section 14-10-122(5)’s five-year limit to bar father’s motion to

  retroactively modify child support.

       JUDGE TOW and JUDGE MÁRQUEZ concur.




                                     18
