concurring in part and dissenting in part.
I respectfully dissent from that part of the majority opinion which affirms the trial court's order reopening the permanent: orders and awarding the entire marital portion of Rainer Schelp's (husband's) AMPEX pension to Catherine Schelp (wife).
In this case, the marriage was dissolved and permanent orders were entered in May 2004. Over ten months later, wife filed a motion to reopen permanent orders. On January 18, 2006, the trial court amended the permanent orders. Relying on C.R.C.P. 60(b), husband argues that the trial court erred as a matter of law in reopening the permanent orders more than six months after they were entered.
The majority relies on and adopts the reasoning of a case announced today by another division of this court, In re Marriage of Roberts, 194 P.3d 443, 445, 2008 WL 3090681 (Colo.App. No. 07CA0903, August 7, 2008), which rejected the same argument made by husband here. The majority, in adopting the rationale of the Roberts case, concludes that wife had five years to seek relief based on husband's alleged nondisclosure and the application of C.R.C.P. 16.2(e)(10). I disagree with that conclusion.
Since nothing further is stated by the majority on this issue, I will direct my attention to the Roberts case, and state my views concerning the applicability of C.R.C.P. 16.2(e)(10) to divorcee proceedings filed before January 1, 2005.
The Colorado Supreme Court last repealed and amended C.R.C.P. 16.2 in September 2004. The original version of the rule provided that the amended rule was effective January 1, 2005.
The Supreme Court issued a Second Corrective Order to Rule Change 2004(19). This Order stated that Rules 16.2 and 26.2 are *454repealed and replaced by this Rule 16.2. It further stated:
Repealed, Amended and Adopted by the Court, En Bane, September 830, 2004, effective for Domestic Relations Cases as defined in 16.2(a) filed on or after January 1, 2005 and for post-decree motions filed on or after January 1, 2005.
JUSTICE RICE and JUSTICE COATS would not approve this rule.
(Emphasis added.)
In Roberts, the trial court considered the five-year reach-back provision in C.R.C.P. 16.2(e)(10) and concluded that the reach-back provision is not barred by the six-month time limitation of C.R.C.P. 60 for domestic relations cases filed on or after January 1, 2005. The trial court in Roberts noted that the dissolution case was filed before January 1, 2005; that C.R.C.P. 26.2 was the rule governing disclosure in domestic relations cases and did not contain a reach-back provision; and that a party seeking to set aside a property division on the basis of fraud or misrepresentation had to rely on the six-month time limitation of C.R.C.P. 60(b).
The trial court in Roberts rejected the wife's argument that the five-year reach-back provision of Rule 16.2(e)(10) was applicable because the post-decree motions were filed after January 1, 2005. In conclusion, the trial court stated the structure of this rule indicates that the reach-back provision is intertwined with the affirmative duty to disclose and that "it would be absurd to apply the five year reach back to cases where the affirmative duty to disclose was not also applied." I agree with the trial court's analysis and conclusion.
The Roberts division rejected the trial court's analysis and conclusion and reasoned that C.R.C.P. 16.2 "clearly states that it applies to post-trial motions filed on or after January 1, 2005." It further noted that "under husband's interpretation of C.R.C.P. 16.2 the supreme court's directive that the rule would be effective 'for post-decree motions filed on or after January 1, 2005, would be superfluous."
At this point it is appropriate to again note that the supreme court also stated in the Rule Change 2004(19) that C.R.C.P. 16.2, as amended, would only be applicable to cases "filed on or after January 1, 2005." If this provision is not superfluous, then what is its significance? In my opinion, the five-year reach-back provision applies to domestic relations cases filed on or after January 1, 2005; otherwise why is there the juxtaposition in Rule Change 2004(19) of the words "filed on or after January 1, 2005 and for post-decree motions filed on or after January 1, 2005"?
The Second Corrective Order indicated that the supreme court did not intend for the rule change to affect all cases as of January 1, 2005. Rather, the court limited the application of the amended rule to domestic relations cases filed after January 1, 2005 and to post-decree motions filed after January 1, 2005 related to those cases which were filed after January 1, 2005.
I presume that the Colorado Supreme Court was aware of the well-established rule that absent legislative intent to the contrary, a statute or rule is presumed to operate prospectively. In re Estate of DeWitt, 54 P.3d 849, 854 (Colo.2002); Ficarra v. Dep't of Regulatory Agencies, 849 P.2d 6, 13-14 (Colo.1993). Here, there is no clear intent on the part of the court that the amended C.R.C.P. 16.2 should be applied to cases filed prior to January 1, 2005. Given this lack of clear intent, C.R.C.P. 16.2(e)(10) should not be applied retroactively to permanent orders entered in this case in May 2004.
Since I would hold that the trial court erred as a matter of law in reopening the permanent orders more than six months after they were entered, I see no need to comment on whether C.R.C.P. 16.2 constitutes retrospective legislation and is therefore unconstitutional as discussed in Part ILB of the Roberts opinion.