Marriage of Sunderman
Marriage of Sunderman
Marriage of Sunderman
Opinion
23CA1237 Marriage of Sunderman 07-03-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA1237
Larimer County District Court No. 21DR1024
Honorable Susan Blanco, Judge
In re the Marriage of
Pamela Sunderman,
Appellee,
and
Steven Sunderman,
Appellant.
JUDGMENT AFFIRMED AND CASE
REMANDED WITH DIRECTIONS
Division I
Opinion by JUDGE WELLING
Schock and Berger*, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced July 3, 2024
Paige Mackey Murray LLC, Paige Mackey Murray, Boulder, Colorado, for
Appellee
Fischer Law Group, P.C., Erik G. Fischer, Ashleigh Bravo, Fort Collins,
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. 2023.
1
¶ 1 In this post-dissolution of marriage case, Steven Sunderman
(husband) appeals the district court’s order adopting a magistrate’s
judgment that imposed remedial contempt sanctions. We affirm the
judgment and remand the case for further proceedings on wife’s
request for appellate attorney fees.
I. Background
¶ 2 Husband and Pamela Sunderman (wife) executed a separation
agreement that, as relevant here, divided their marital estate. They
submitted their agreement to the court, and, a few months later, a
magistrate incorporated it into the decree dissolving their marriage.
¶ 3 Concerning their investment accounts, the separation
agreement identified a J.P. Morgan account and a Charles Schwab
account that husband had acquired before the marriage. The
parties agreed that “as of October 31, 2021,” the value of the J.P.
Morgan account was “$337,472” and that it had appreciated
“$165,441” during the marriage. For the Schwab investment
account, the parties agreed that “[t]he value of the account as of
October 31, 2021[,] [was] $2,298,108” and that it had appreciated
“$959,679” during the marriage. The separation agreement then
2
directed the following allocation from the Schwab investment
account:
The marital appreciation of $959,679 shall be
divided equally between the parties. Wife shall
receive an additional $82,721 which is one-
half of the marital appreciation from [the] J.P.
Morgan Chase Brokerage account . . . . In
addition, [h]usband owes [w]ife $32,238 [which
represented a portion of his equalization
payment] . . . . In order to equitably divide the
account, [h]usband shall transfer securities to
[w]ife in similar proportion to those held in the
entire account on October 31, 2021.
¶ 4 The separation agreement also identified multiple retirement
and pension accounts. It provided that “[i]n order to equitably
divide the marital portion of the party’s retirement/pension
accounts, [w]ife shall receive as a sum certain the amount of
$1,049,544 from [h]usband’s Charles Schwab Rollover IRA” and
that he “shall transfer an additional $21,492 to [w]ife as a sum
certain,” which represented the remaining balance of his
equalization payment.
¶ 5 About nine months after the decree, wife filed a motion for
remedial contempt. She alleged that, under her interpretation of
the separation agreement, she was entitled to $594,798 from
husband’s Schwab investment account and $1,071,036 from his
3
Schwab IRA but that he transferred her only $480,132 from the
Schwab investment account and $827,467 from the Schwab IRA.
At the contempt hearing, husband disagreed with wife’s
interpretation. He explained that the parties intended to equally
divide the accounts’ gains or losses after they executed the
separation agreement and that the amount he transferred to wife in
September 2022 adjusted wife’s allocation for the losses in the
accounts up to that date.
¶ 6 The magistrate agreed with wife’s interpretation of the
separation agreement and concluded that husband was obligated to
transfer a specific value of assets from the Schwab investment
account ($594,798) and the Schwab IRA ($1,071,036). The
magistrate determined that husband undisputedly violated this
obligation and found him in contempt. As a remedial sanction, the
magistrate directed husband to transfer to wife the additional
$114,666 from the Schwab investment account and $243,568 from
the Schwab IRA. The magistrate also awarded wife $3,274 for the
attorney fees she incurred in connection with the contempt
proceeding.
4
¶ 7 Husband petitioned the district court to review the
magistrate’s contempt judgment, and the court adopted the
magistrate’s ruling.
II. Standard of Review
¶ 8 Our review of a district court’s order reviewing a magistrate’s
ruling is effectively a second layer of appellate review. In re
Marriage of Sheehan, 2022 COA 29, ¶ 22. We review de novo issues
of law and, like the district court, must accept the magistrate’s
factual findings unless they are clearly erroneous. Id.
III. Interpretation of the Separation Agreement
¶ 9 Husband contends that the district court erred by adopting
the magistrate’s interpretation of the separation agreement. He
argues that the magistrate’s interpretation was contrary to the
language of the agreement and improperly considered wife’s parol
evidence. We disagree.
A. Governing Legal Standards
¶ 10 A court’s interpretation of a separation agreement is a
question of law that we review de novo. See In re Marriage of
Crowder, 77 P.3d 858, 860 (Colo. App. 2003).
5
¶ 11 The primary goal when interpreting an agreement is to
determine and give effect to the parties’ intent based primarily on
the language of the agreement. Ad Two, Inc. v. City & Cnty. of
Denver, 9 P.3d 373, 376 (Colo. 2000); Crowder, 77 P.3d at 860-61.
We construe the agreement’s terms in accordance with their plain
an ambiguity, a court may “not look beyond the four corners of the
B. The Separation Agreement’s Plain Language
¶ 12 The magistrate determined that the plain language of the
separation agreement entitled wife to “specific value[s]” from the
Schwab investment account and the Schwab IRA. He explained
that the parties identified the marital value of their assets on
October 31, 2021, and set forth an exact value from the accounts to
which wife was entitled. And the magistrate observed that the
parties even clarified that wife shall receive a “sum certain” from the
Schwab IRA. The magistrate further explained that the parties
could have included language in the agreement for “a different
transfer arrangement, such as allocating gains or losses from
October 31, 2021[,] forward or awarding a percentage of the
6
account as of the transfer date, as [husband] now” argues, “but
they did not.” The magistrate also determined that although they
agreed that “[i]n order to equitably divide the [Schwab investment]
account, [h]usband shall transfer securities to [w]ife in similar
proportion to those held in the entire account on October 31, 2021,”
this language did “not speak to the value of securities to be
transferred, but rather the type of security” and the manner by
which he must transfer those securities to wife. The magistrate
noted that his interpretation was consistent with husband’s
testimony that the parties “drew a line on October 31, [2021],” and
that the value of wife’s marital property was “defined on that date.”
¶ 13 Upon our review of the separation agreement, we agree with
the magistrate and conclude that its plain and unambiguous
language entitled wife to $594,798 from the Schwab investment
account and $1,071,036 from the Schwab IRA. The agreement
defined a specific value that wife would receive from each of these
accounts, which included a set value (1) for the marital appreciation
of the investment accounts; (2) for her share of the retirement and
pension accounts; and (3) “to equalize the division of the” entire
marital estate. And even though the agreement acknowledged that
7
the date on which husband could transfer the assets may be
delayed, nothing within the plain language of the agreement
adjusted wife’s allocation for a later change to the value of the
Schwab investment account or the Schwab IRA. (Indeed, the
agreement directed that “the initiation of the division of all accounts
shall be done within 14 days after the issuance of the [d]ecree.”)
¶ 14 Husband disputes this interpretation, arguing that because
they agreed that he must transfer the securities from the Schwab
investment account “in similar proportion to those held in the entire
account on October 31, 2021,” the parties intended to adjust wife’s
allocation in accordance with the gains or losses until the date of
his transfer. But as the magistrate observed, this sentence
addresses the types of “securities,” not the value of wife’s allocation.
Moreover, wife testified that the type of securities transferred to her
could have significant tax implications. She explained that if
husband directed Schwab to transfer assets on a “first in, first out”
basis she “would receive the shares that most likely [had] the
highest capital gains” because they would be the shares held the
longest in the account. But if husband transferred securities in
proportion to the entire account’s holding (a “pro rata” transfer), the
8
later tax obligation would be shared proportionately. Husband
didn’t dispute this representation, and the record reveals that he
directed a “PRO RAT[A]” transfer to wife in September 2022.
¶ 15 Husband also argues that interpreting the agreement to
require that he pay wife $594,798 from the Schwab investment
account and $1,071,036 from the Schwab IRA established “a new
valuation date.” Not so. The parties determined an exact value of
marital assets allocated to wife from the Schwab investment
account and Schwab IRA as of October 31, 2021, and husband was
obligated to give wife that exact amount. This valuation date was
also consistent with the valuation and allocation of their other
marital assets, which they used to determine husband’s
equalization payment. It, instead, is husband’s purported
interpretation that attempts to create a new valuation date based
on the value of the accounts at the time he completed the transfer.
¶ 16 Still, husband argues that the parties intended to “equitably
divide” their marital assets and that it is inequitable to have him
bear the losses sustained in the accounts after October 31, 2021.
But the agreement’s plain language didn’t adjust the value of wife’s
allocation for any subsequent losses, and husband still agreed that
9
the terms of their agreement were “equitable” when he executed it.
Moreover, any losses realized after the dissolution decree wouldn’t
have been part of the equitable allocation of the marital estate. Cf.
In re Marriage of Hiner, 710 P.2d 488, 492 (Colo. 1985) (“[T]he
appreciation in value of each party’s [marital] equity . . . realized
after entry of the . . . decree should not have been treated as part of
a disposition of marital property . . . .”); In re Marriage of Collins,
2023 COA 116M, ¶ 26 (upholding a court’s decision that declined to
allocate losses in an investment account sustained after the
dissolution).
¶ 17 Husband further argues that the provision on the Schwab IRA
had language different than that used for the Schwab investment
account and interpreting both to require a specific amount from
husband renders certain language in the agreement meaningless.
See Moeller v. Ferrari Energy, LLC, 2020 COA 113, ¶ 25 (“We avoid
an interpretation of an agreement that would nullify any of its terms
or provisions.”). Specifically, he highlights that wife was entitled to
“a sum certain” from the Schwab IRA but that phrase was missing
from the Schwab investment account provision. However, we must
“give effect to the general purposes of a contract,” and in doing so,
10
“make due allowance for a common human failing . . . of being
careless in choosing words.” Ad Two, 9 P.3d at 377 (quoting
Hutchinson v. Elder, 140 Colo. 379, 383, 344 P.2d 1090, 1092
(1959)). Both provisions set forth wife’s entitlement to a specific
value from the accounts, and while the parties included the phrase
“a sum certain” when discussing the Schwab IRA, we don’t agree
that the absence of that phrase for the Schwab investment account
“defeat[s] the evident intentions of the parties” — that wife receive a
Colo. at 383, 344 P.2d at 1092).
¶ 18 Husband also complains that wife didn’t adhere to the
agreement when she unreasonably refused a previous attempt to
transfer the funds to her. However, he doesn’t explain how that
purported conduct alters our or the magistrate’s interpretation of
the parties’ intent when executing the separation agreement. See
Hefley Ranch, Inc. v. Stewart, 764 P.2d 415, 416 (Colo. App. 1988)
(“The interpretation of a contract requires the court to ascertain the
parties’ intent at the time the document was executed . . . .”). To
the extent he is suggesting that wife’s conduct excused his
noncompliance, the magistrate found, albeit implicitly, no reason to
11
do so, and the record supports that finding. See In re Parental
Responsibilities Concerning S.Z.S., 2022 COA 105, ¶ 23 (recognizing
that a court’s finding may be implicit in its ruling).
¶ 19 And although husband generally notes that the magistrate
denied wife’s previous contempt motion, he doesn’t develop any
legal or factual argument to explain why that ruling has any
bearing on the magistrate’s decision or our interpretation of the
separation agreement. See id. at ¶ 29 (declining to address a
party’s undeveloped argument).
¶ 20 The district court therefore didn’t err by adopting the
magistrate’s interpretation of the separation agreement.
C. Parol Evidence
¶ 21 Husband next contends that the magistrate improperly
considered parol evidence of the parties’ intent when the magistrate
allowed wife to testify that before executing the separation
agreement, she and husband agreed that her allocation from the
Schwab investment account and the Schwab IRA wouldn’t be
subject to an adjustment for the accounts’ subsequent gains or
losses. We discern no reversible error.
12
¶ 22 A court may not consider extraneous evidence of the parties’
intent to interpret an agreement unless the terms of the agreement
are ambiguous. Crowder, 77 P.3d at 861. However, a court may
consider extrinsic evidence to determine whether an agreement is
ambiguous. Bledsoe Land Co. LLLP v. Forest Oil Corp., 277 P.3d
838, 843 (Colo. App. 2011).
¶ 23 When wife testified, the magistrate had not yet determined
whether the separation agreement was unambiguous. Thus, the
magistrate’s admission of the testimony at that time appeared to be
within his discretion. See In re Parental Responsibilities Concerning
A.M., 251 P.3d 1119, 1124 (Colo. App. 2010) (reviewing an
evidentiary ruling for an abuse of discretion).
¶ 24 But even if we were to assume that the court erred, we
disregard an error that doesn’t affect the parties’ substantial rights.
In re Parental Responsibilities Concerning E.E.L-T., 2024 COA 12, ¶
30; see C.A.R. 35(c). An error affects a party’s “substantial right
only if it substantially influenced the outcome of the case or
impaired the basic fairness of the trial.” E.E.L-T., ¶ 30.
¶ 25 The magistrate neither mentioned nor indicated that he
considered wife’s testimony when interpreting the separation
13
agreement. And as discussed above, the plain, unambiguous
language of the separation agreement established that the parties
intended to allocate wife a specific value of assets from the Schwab
investment account and the Schwab IRA. We thus aren’t
persuaded that any improper admission of wife’s testimony
(Colo. App. 2000), rev’d on other grounds, 54 P.3d 849 (Colo. 2002)
(concluding that when the parties’ intent may be determined from
the face of the separation agreement, the court’s consideration of
extrinsic evidence was harmless).
IV. Remedial Contempt
¶ 26 We also reject husband’s contention that the evidence was
insufficient to support the judgment of remedial contempt.
¶ 27 Whether a party is in contempt lies within the court’s sound
discretion, and we won’t disturb the court’s decision absent a
showing that it acted in a manifestly arbitrary, unreasonable, or
unfair manner, or it misapplied the law. Sheehan, ¶ 23.
¶ 28 A court may hold a party in contempt for “disobedience or
resistance” to a lawful court order. C.R.C.P. 107(a)(1); see Sheehan,
14
App. 1990) (explaining that a separation agreement incorporated
into a dissolution decree is an enforceable judgment). To impose
remedial sanctions, the court must find that the contemnor failed to
comply with the order, knew of the order, and has the present
ability to comply. In re Parental Responsibilities Concerning A.C.B.,
2022 COA 3, ¶ 24. The court must also specify the means by which
the contemnor may purge the contempt and find that the
contemnor has the present ability to satisfy that purge clause. In re
107(d)(2).
¶ 29 Husband asserts that under his interpretation of the
separation agreement, he didn’t violate the order. But as explained
above, the agreement required him to transfer wife $594,798 from
the Schwab investment account and $1,071,036 from the Schwab
IRA. And the undisputed evidence showed that he didn’t comply
with his obligation. See Elliott, 993 P.2d at 479 (noting that a
court’s factual findings in support of contempt are binding on
review unless they are clearly erroneous).
¶ 30 Husband also asserts that there was no indication he was
aware that he would be subject to wife’s interpretation of the
15
agreement. Even if husband interpreted the agreement differently,
that doesn’t negate his knowledge of the order for purposes of
remedial contempt. See In re Marriage of Cyr, 186 P.3d 88, 94
(Colo. App. 2008). And the magistrate found, with record support,
that husband did “not dispute the existence of [a] lawful order[]” or
his “knowledge of the order.” See Elliott, 993 P.2d at 479.
¶ 31 Husband further argues that it wasn’t established that he had
the then-present ability to purge the contempt. The magistrate
ordered husband to transfer wife an additional $114,666 from the
Schwab investment account and $243,568 from the Schwab IRA to
purge his contempt. The magistrate determined that husband had
“the present ability to comply, he maintain[ed] sufficient securities
in the account[s] and indicated at the hearing that he could and
would comply with” the magistrate’s interpretation of the separation
agreement. The record supports the magistrate’s findings. See id.
And husband doesn’t otherwise explain how the magistrate’s
findings didn’t establish his ability to purge the contempt.
¶ 32 Additionally, husband asserts that “there is no indication that
the funds remaining after the transfer would be sufficient to
support equitability.” The magistrate wasn’t required to make a
16
finding of “equitability” to impose remedial contempt sanctions, and
husband doesn’t further develop this argument. See S.Z.S., ¶ 29.
¶ 33 The record thus supports the magistrate’s imposition of
remedial contempt sanctions.
V. Attorney Fees Award
¶ 34 Husband argues that the magistrate erred by awarding wife
her reasonable attorney fees because her motion for contempt
asserted no legal authority for such a request. But he neither
raised this issue to the magistrate in opposition of wife’s request for
attorney fees nor to the district court in his petition for review. We
therefore won’t address the issue for the first time on appeal. See
People in Interest of K.L-P., 148 P.3d 402, 403 (Colo. App. 2006)
(holding that an issue not raised in a petition for district court
review may not be raised for the first time on appeal); cf. 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.”).
¶ 35 But even if we were to assume that husband preserved this
argument, the magistrate didn’t abuse his discretion by awarding
fees. See Collins, ¶ 51 (reviewing award of attorney fees for an
17
abuse of discretion). A court “may” deny a motion if the moving
party fails to include legal authority in the motion, but nothing
requires it to do so. C.R.C.P. 121, § 1-15(3); see A.S. v. People,
2013 CO 63, ¶ 21 (The “use of the term ‘may’ is generally indicative
of a grant of discretion or choice among alternatives.”). Thus, even
though wife’s motion for remedial contempt didn’t include legal
authority in support of her attorney fees request, the magistrate
reasonably determined that C.R.C.P. 107(d)(2) permitted him to
award wife the fees she incurred in connection with the remedial
contempt proceeding.
¶ 36 Husband additionally argues that because the magistrate
erred by entering the remedial contempt judgment, we must also
reverse the award of attorney fees. But because we have rejected
his contentions of error, we necessarily reject this argument.
¶ 37 The district court therefore didn’t err by upholding the
magistrate’s attorney fees award.
VI. Appellate Attorney Fees and Costs
¶ 38 Wife requests an award of her appellate attorney fees pursuant
to C.R.C.P. 107(d)(2) because she incurred these fees in connection
with the contempt proceeding. Such an award of fees may be
18
assessed within the court’s discretion, and we, therefore, remand
this issue to the district court to determine wife’s entitlement to and
Marriage of Dean, 2017 COA 51, ¶ 33; Madison Cap. Co., LLC v. Star
Acquisition VIII, 214 P.3d 557, 562 (Colo. App. 2009).
¶ 39 Wife also requests attorney fees under section 13-17-102,
C.R.S. 2023. Though a close call, we don’t agree that husband’s
appeal lacked substantial justification and, thus, deny this request.
See Glover v. Serratoga Falls LLC, 2021 CO 77, ¶ 70 (recognizing
that an award of attorney fees under section 13-17-102 is
appropriate only in clear and unequivocal cases of egregious
conduct where no rational argument is presented).
¶ 40 Costs are taxed in accordance with C.A.R. 39(a)(2).
VII. Disposition
¶ 41 The judgment is affirmed. The case is remanded to the district
court to consider wife’s request for C.R.C.P. 107(d)(2) attorney fees.
JUDGE SCHOCK and JUDGE BERGER concur.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.