Marriage of Renninger

20CA1199 Marriage of Renninger 10-21-2021 COLORADO COURT OF APPEALS Court of Appeals No. 20CA1199 Arapahoe County District Court No. 19DR30890 Honorable Peter F. Michaelson, Judge In re the Marriage of Georgia Renninger, Appellee and Cross-Appellant, and Larry Gene Renninger, Appellant and Cross-Appellee. ORDER AFFIRMED IN PART AND REVERSED IN PART Division II Opinion by JUDGE ROMÁN Berger and Yun, JJ., concur NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced October 21, 2021 Lass Cooper & Ramp, LLC, Patricia A. Cooper, Katharine Elena Lum, Denver, Colorado, for Appellee and Cross-Appellant Kumpf Charsley & Hansen, LLC, Robert E. Wells, Englewood, Colorado, for Appellant and Cross-Appellee 1 ¶ 1 In this legal separation proceeding, Larry Gene Renninger (husband) appeals and Georgia R enninger (wife) cross-appeals the district court’s declaratory order th at interpreted the terms of their 1991 prenuptial agreement. We af firm in part and reverse in part. I. Facts ¶ 2 Wife petitioned for a legal separati on from husband in 2019. Along with his response to the petit ion, husband put wife “on notice” that he intended to assert t he validity of their prenuptial agreement. Thereafter, the parti es submitted a joint motion seeking declaratory relief of their rights und er the agreement and, specifically, its application to pr emarital retirement accounts. ¶ 3 The court requested briefing by th e parties. After considering their positions, the court reached t he following relevant conclusions: 2. The Court concludes that the Ag reement states a valid exception to the mari tal property rule and, therefore, served a valid purpose. 3. The Court concludes that the exception to the rule is that in this marriage ass ets and appreciation to retirement and ben efit accounts which existed at the tim e of marriage are the sole property of each part y upon dissolution. 2 4. The Court further concludes that contributions during marriage to a ny and all retirement accounts, and apprecia tion related to those contributions during marr iage are marital property. 5. The Court concludes that benefit s such as pension benefits which created, co nferred, or accrued prior to marriage are sepa rate property. 6. The Court concludes that differ ent benefits such as new pension benefits whic h did not exist prior to marriage but were cr eated, conferred, or accrued after marriag e are marital property. ¶ 4 Wife moved under C.R.C.P. 59 for t he court to clarify what it meant by “new pension benefits” a nd “different benefits.” The court clarified that the expression “new pension benefits” reflected its “intention that only new pension pl ans in which a party enrolls after a marriage are marital propert y.” It otherwise denied wife’s post-trial motion. ¶ 5 The court certified its declaratory ord er as a final judgment pursuant to the parties’ joint requ est under C.R.C.P. 54(b). II. The Appeals ¶ 6 The parties appeal the district co urt’s interpretation of the agreement, but for different reason s. Husband disagrees with the court’s conclusion that post-marri age contributions to premarital 3 retirement accounts are marital, a nd wife disagrees with the conclusion that only those retir ement accounts and benefits established after the date of the m arriage are marital. Resolving these arguments requires us to r eview the following four relevant paragraphs of the agreement: 4. The parties agree and stipulat e that all property and assets presently belon ging to the Prospective Wife, including proc eeds of sale, income, earnings and/or interest ther efrom and appreciation thereof, shall r emain the Prospective Wife’s . . . . Furthermor e, all such property and assets shall be consi dered and treated as “Separate Property” pursuan t to C.R.S. Section 14-10-113 in the ev ent of dissolution of the parties’ marriag e. 5. The parties agree and stipulat e that all property and assets presently belon ging to the Prospective Husband, including pr oceeds of sale, income, earnings and/or in terest therefrom and appreciation ther eof, shall remain the Prospective Husband’s . . . . Furthermore, all such property and assets shall be considered and treated as “Separate Property” pursuant to C.R.S. Section 14-10- 113 in the event of dissolution of the parties’ marriage. . . . 7. The parties agree and stipulat e that all property and assets acquired by th em after the date of their marriage (other than with the proceeds of the sale or other disp osition of a 4 party’s separate property . . . ), including proceeds of sale, income, earnings and/or interest thereon or appreciation t hereof, shall be the marital property of the part ies. . . . 9. The parties agree and stipulat e that any and all retirement accounts and ben efits by whatever name or designation whic h either one owns when they get married, tog ether with all appreciation and earnings thereaf ter, shall remain the sole and separate propert y of the party who owned it when they m arried. Any and all retirement accounts and si milar benefits which are created, conf erred or accrued after the parties get marr ied, together with all contributions to any r etirement accounts and all appreciation and earnings on any sums contributed after they g et married shall be marital property, as defin ed elsewhere in this agreement. It is the intent of this paragraph that all sums currently in the parties’ existing retirement account s, including appreciation or internal earnings t hereon after the date of marriage, shall be the separate property of the party owning sam e on the date of their marriage. A. Relevant Law ¶ 7 A marital agreement is a contract between the parties to a marriage prior to its incorporation into a dissolution decree. I n re C.G.G. , 946 P.2d 603, 606 (Colo. A pp. 1997). We construe marital agreements in the same manner a s other contracts, In re Estat e of Gadash , 2017 COA 54, ¶ 40 , m eaning that we consider the contract 5 as a whole and give effect to ev ery provision, if possible, Valla gio at Inverness Residential Condo. Ass ’n v. Metro. Homes, Inc. , 2015 COA 65, ¶ 19, aff’d , 2017 CO 69 . ¶ 8 We interpret contracts based on the plain and generally accepted meaning of the words em ployed. Gadash , ¶ 40. The parties’ disagreement as to the m eaning of the terms of a contract does not create an ambiguity. See also People ex rel. Rein v. Ja cobs , 2020 CO 50, ¶ 44 . Where the cont ract’s terms are unambiguous, we determine the parties’ intent f rom the language of the instrument itself. Id. Complete, cl ear, and unambiguous contracts will be enforced as written. I n re Marriage of Christen , 899 P.2d 339, 344 (Colo. App. 1995). ¶ 9 Interpreting a written contract an d determining whether it is unambiguous are questions of law on which we need not defer to the district court. In re Marria ge of Crowder , 77 P.3d 858, 860 (Colo. App. 2003). B. Husband’s Appeal ¶ 10 Husband contends that the agreem ent unambiguously provides that all increases in valu e of a retirement account own ed on the date of the marriage, no m atter the source of the increase, 6 are separate property. He thus arg ues that the court erred by concluding that “contributions dur ing marriage to any and all retirement accounts, and appr eciation related to those contributions during marriage ar e marital property.” We disagree. ¶ 11 This argument turns on the int erpretation of the second half of the second sentence of Paragraph 9 in the parties’ agreement: “[A]ll contributions to any retirement acc ounts and all appreciation and earnings on any sums contribut ed after they get married shall be marital property, as defined elsew here in this agreement.” ¶ 12 The word “any” generally means “a ll.” Stamp v. Vail Corp. , 172 P.3d 437, 447 (Colo. 2007). In turn , the word “all” “means the whole of, the whole number or su m of, or every member or individual component of, and is sy nonymous with ‘every’ and ‘each.’” Hudgeons v. Tenneco Oil Co. , 796 P.2d 21, 23 (Colo. App. 1990). These are unambiguous w ords. ¶ 13 Hence, Paragraph 9 unambiguousl y states that each and every contribution made to each and every retirement account after the date of the marriage, and the whol e of the appreciation and earnings on those contributions, is marital property. Put another way, this sentence signifies the par ties’ intent that post-marriag e 7 contributions to their premarital retirement accounts would be considered as marital property. ¶ 14 Husband stresses that (1) Paragrap hs 4 and 5 clearly state that assets and property owned on the date of the marriage and all related increases in value are separ ate; and (2) Paragraph 7 clearly states that assets and property acq uired after the date of the marriage and related increases ar e marital. He thus argues that the agreement as a whole shows t hat the retirement accounts and related appreciation are eit her separate or marital based on their date of acquisition, but they cann ot be both. We disagree. ¶ 15 While Paragraphs 4, 5, and 7 defin e and distinguish separate property from marital property d epending on whether property was owned before or after the date of the marriage, Paragraph 9 is specific to the parties’ retirement accounts and similar benefits. “ In resolving conflict between terms of an agreement, specific provisions prevail over general pr ovisions.” Crowder , 77 P.3d at 861. The inclusion of Paragraph 9 demonstrates that the parties had different intentions when it cam e to the characterization of their premarital retirement accoun ts. Thus, Paragraph 9 prevails 8 over Paragraphs 4 and 5 as it conc erns retirement accounts and related increases. ¶ 16 Recognizing that Paragraph 9 specif ically pertains to and treats retirement accounts differen tly than other assets or property does not render Paragraphs 4, 5, or 7 meaningless. See Rein , ¶ 43 (we interpret the contract in its ent irety, seeking to harmonize and give effect to all of its provisions so t hat none will be rendered meaningless). Those paragraphs st ill apply to other forms of ass ets and property, such as those list ed in the exhibits attached to the agreement. Further, Paragraph 9 is consistent with Paragraphs 4 and 5 by verifying that premarital r etirement accounts and related increases are separate, like oth er forms of property. The only difference is that Paragraph 9 carv es out an exception to the characterization of post-marriage contributions to premarital retirement accounts. ¶ 17 Husband also argues that post-ma rriage contributions must be considered separate becaus e Paragraphs 4 and 5 declare that “all” forms of increase in separate assets and property are separate. Yet Paragraph 9 specifically discu sses the characterization of retirement accounts and related in creases and prevails over the 9 more general Paragraphs 4 and 5 in this regard. See Crowder , 77 P.3d at 861. Therefore, we concl ude that the parties did not intend for “all” forms of increase to pr emarital retirement accounts, regardless of their source, to be consi dered as separate property. ¶ 18 Finally, husband points out that t he first and third sentences of Paragraph 9 confirm that premarital retirement accounts, the sums in those accounts on the dat e of the marriage, and related appreciation or earnings on thos e accounts are separate. However, we find the inclusion of the second sentence of Paragraph 9 significant, because it plainly expr esses the parties’ intent that retirement accounts owned befor e the date of the marriage are separate but the parties’ contrib ution to those accounts made after the date of the marriage is marital. Once more, this sentence makes clear that the parties intend ed to treat post-marriage contributions to retirement accoun ts differently. ¶ 19 Accordingly, we conclude that th e agreement unambiguously states that post-marriage contributions to the parties’ premarital retirement accounts, and related a ppreciation and earnings, are marital property. 10 III. Wife’s Appeal ¶ 20 Wife contends that the court err ed by concluding that “new pension plans in which a party enr olls after a marriage are marital property.” She argues that the w ord “accrued” as used in Paragraph 9 means that the part ies intended to treat as marital those premarital pension benefits t hat increased in value during th e marriage. We agree that the court erred and therefore reverse its conclusion. ¶ 21 Once more, this argument turns on the second sentence of Paragraph 9. This time, we look t o the meaning of the words “created,” “conferred,” and “accru ed.” Because the agreement does not define these words, we may l ook to the dictionary for guidance in determining their plain and ordi nary meanings. See Weit z Co. v. Mid-Century Ins. Co. , 181 P.3d 309, 312 (Colo. App. 2007) (“Dictionaries may be used to assis t in the determination of the plain and ordinary meaning of wor ds.”). ¶ 22 The word “accrued” means “to com e into existence as an enforceable claim: vest as a right, ” and the word “create” means “to bring into existence: make out of not hing for the first time.” Webster’s Third New International Dictionary 13, 532 (2002). Th e 11 word “confer” means “to grant (som ething) as a gift, benefit or honor; bestow.” Black’s Law Dicti onary 371 (11th ed.). ¶ 23 The three words are joined by th e word “or.” See Bledsoe Land Co. v. Forest Oil Corp. , 277 P.3d 83 8, 846 (Colo. App. 2011) (we give effect to every word of a contract and render none superfluous). Generally, we presume the disjunc tive use of the word “or” marks distinctive categories. See Lomba rd v. Colo. Outdoor Educ. Ctr., I nc. , 187 P.3d 565, 571 (Colo. 2008). ¶ 24 The word “or” as used in the secon d sentence of Paragraph 9 indicates that “conferred,” “creat ed,” and “accrued” convey three different things. The words are no t, as husband argues, synonymous with one another. Th e sentence clearly states that retirement accounts or similar b enefits that are brought into existence for the first time (“creat ed”), granted or bestowed (“conferred”), or vest as an enforc eable right (“accrued”) after the date of the marriage are marital. ¶ 25 Of course, the premarital retireme nt accounts themselves, as well as any appreciation and accr ued interest on those accounts, will remain separate property per P aragraphs 4, 5 and 9. But new contributions to the premarital r etirement accounts that postdat e 12 the marriage and all appreciation on those contributions are marit al property. ¶ 26 Therefore, we reverse the court’s c onclusions that only “new pension plans” not in existence at the time of the marriage, or thos e plans in which a party enrolls aft er a marriage, are marital property. Under Paragraph 9, r etirement benefits owned befor e the date of the marriage may be consi dered marital to the extent they “accrued” after the date of the mar riage. IV. Conclusion ¶ 27 The order is affirmed in part and reversed in part. JUDGE BERGER and JUDGE YU N concur.