The Colorado Supreme Court announced this week that it will evaluate whether divorcing spouses must explicitly agree that alimony payments from one partner to the other will continue after one person remarries, or whether a “clear implication” will suffice.

The purpose of alimony, known in Colorado as “spousal maintenance,” is to assist spouses who cannot be financially self-sufficient immediately after their divorce — for example, if one partner earns significantly more than the other. Colorado law allows judges to order spousal maintenance, which can terminate under certain circumstances like death or remarriage.

The law cautions that the termination of payments upon the receiving partner’s remarriage can be overridden if the spouses have “otherwise agreed in writing.” However, the state’s Court of Appeals has shifted the standard repeatedly for what an agreement in writing requires.

Christopher Clay Clark and Jessica Kay Clark divorced in 2022. Representing themselves in court, they signed an agreement indicating Christopher Clark would pay Jessica Clark $108,000 in spousal maintenance over six years. They checked a box indicating the terms “are contractual in nature and shall not be modified in the future.” They also handwrote a stipulation that the spousal maintenance “may not be modified or terminated.”

A year later, Jessica Clark remarried. Christopher Clark allegedly stopped making payments as a result. Jessica Clark sought to hold him in contempt, which he countered with a motion to terminate the monthly payments.

Mesa County District Court Judge Craig P. Henderson described a back-and-forth in the case law over how specific a separation agreement must be to override the legal provision that spousal maintenance terminates upon remarriage. In 1971, the Court of Appeals believed an “express statement” was necessary for payments to continue. In 1981, a different appellate panel concluded an explicit reference was not necessary. In 2001, a panel determined the “presence of a nonmodification clause” was enough to keep payments going even after remarriage.

Then, with the 2021 decision of In the Marriage of Cerrone, an appellate panel concluded a separation agreement needs to have “express” language allowing payments to continue. Otherwise, state law will automatically terminate the paying spouse’s obligation.

Henderson believed the Clarks’ agreement satisfied that standard, and ordered Christopher Clark’s payments to continue.

A three-judge Court of Appeals panel agreed with that outcome, but retreated to the earlier standard that required agreements to provide for post-remarriage alimony “expressly or by clear implication.”

Judge Grant T. Sullivan wrote separately to ask the Supreme Court to set a standard once and for all, especially for the three-quarters of domestic relations litigants who are unrepresented.

“As this case illustrates,” he wrote, the appellate court’s “divergent interpretations will inevitably lead to inconsistent outcomes in similar cases, contrary to the General Assembly’s stated intent.”

The Supreme Court will decide how specific an agreement must be to override the default termination upon remarriage.

The case is In the Marriage of Clark.

Who is a ‘landowner?’

The Supreme Court also narrowly turned down another Court of Appeals decision about the scope of the term “landowner.”

A contractor was repairing the roof of a Colorado Springs Walgreens store when the manager reported a smell inside. The roofing crew responded by turning off two HVAC units. Later, the manager again reported smelling exhaust in the store. The roofing crew shut down the remaining HVAC units and stopped using their generator.

Five Walgreens employees sought medical attention for carbon monoxide poisoning due to elevated gas levels in the store. Three of them sued the roofing contractor and subcontractor for negligence.

A trial judge sided with the defendants, finding the plaintiffs’ claims were governed instead by the Premises Liability Act, which applies to landowners. A landowner is someone who is “legally responsible for the condition of real property or for the activities conducted or circumstances existing on real property.” The plaintiffs disputed that conclusion, arguing the roofing company had no responsibility for the interior of the store, where the injuries happened.

A Court of Appeals panel agreed that the roofing company was a “landowner” by virtue of the contracts to repair the roof.

There is “nothing in the statute that imposes a physical proximity requirement,” wrote Sullivan.

The plaintiffs turned to the Supreme Court, arguing the decision conflicted with the court’s own precedent. Further, any premises liability claim was very similar to a negligence claim, and they should have been allowed to amend their complaint accordingly.

The Colorado Trial Lawyers Association also urged the Supreme Court to hear the case, noting the Court of Appeals’ logic meant that contractors working on the top floor of a skyscraper would be a “landowner” for the whole building, or contractors repairing a barn on a 100-acre property would be a “landowner” for the entire parcel.

The court rejected the appeal on April 6. Justices William W. Hood III and Carlos A. Samour Jr. would have taken the case, falling one vote short of the threshold to hear the appeal.

The case is Macomber et al. v. Nations Roof LLC et al.

The missed deadline

Finally, the Supreme Court intervened in an ongoing Denver civil case.

Javier De Leon Cabral sued the Chan Law Firm, which he had previously hired for an immigration case. He alleged his lawyers missed a filing deadline and he received a deportation order as a result. If not for their negligence, De Leon Cabral alleged that he would have received a work authorization and would not have suffered damages.

In March, the defendants’ lawyers moved to block De Leon Cabral’s claim for lost wages, plus his experts’ testimony. His expert disclosures were due by Feb. 9, but De Leon Cabral’s lawyers blew past that deadline. They acknowledged they “miscalendared” the date, and had even cited the wrong date in court with no correction from the judge or the defense attorneys.

During an April 16 hearing, District Court Judge Erick F.H. Englert acknowledged the defense was not responsible for overseeing the plaintiff’s compliance.

But “when a party brings this kind of motion to my attention, my question is, well, you know, did you lie in wait, waiting for the other side to kind of screw up? Did you reach out and say, ‘Hey, by the way, it seems like you missed this deadline?'” she said. “It doesn’t put you in good light in this courtroom when you’re then asking for such dramatic relief.”

Nonetheless, Englert granted the request to block De Leon Cabral’s pursuit of lost wages and his experts’ testimony. She believed she had “very limited options in terms of remedies,” and declined to postpone the trial.

De Leon Cabral appealed to the Supreme Court, arguing Englert should have considered less-drastic alternatives before changing the scope of his case in a major way.

On May 20, the Supreme Court ordered Englert and the defendants to respond.

The case is De Leon Cabral v. Chan Law Firm PC et al.