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In re the Marriage of Burke
Citations: 39 P.3d 1226; 2001 WL 1477913Docket: No. 01CA0231
Court: Colorado Court of Appeals; November 22, 2001; Colorado; State Appellate Court
Michael B. Burke (husband) contested the trial court's affirmation of the magistrate's ruling that a separation agreement precluded the court from modifying maintenance payments to Brigitte Burke (wife). The court reversed the magistrate's decision, asserting that the separation agreement, incorporated into the dissolution decree, did not divest the court of jurisdiction. The husband had previously agreed to a maintenance payment structure: $190 per month during child support and $280 per month for three years after the child turned nineteen, after which maintenance would be waived permanently. The husband later sought modification due to a significant decrease in income, asserting that circumstances had changed since the original agreement. The magistrate ruled that the agreement's language indicated a clear intent to limit the court's authority to modify maintenance, labeling it as "contractual" for three years and concluding that jurisdiction was lost thereafter. The trial court concurred with this interpretation. However, the appellate court found that the decree retained jurisdiction "as provided by law," and the term "contractual maintenance" did not explicitly prevent modification under statutory provisions, which allow for changes based on substantial and continuing circumstances. The court emphasized that any limitation on modification authority must be clearly articulated in the agreement. The ruling clarifies that the statutory right to modify maintenance applies to all decrees unless explicitly limited. An agreement that permits modification only through mutual consent limits a court's authority, as established in *In re Marriage of Thompson*. If an agreement does not address modification or explicitly grants that power to the court, a district court can modify maintenance provisions in a separation agreement included in a dissolution decree, as noted in *In re Marriage of Udis*. In this case, the parties' oral agreement was not documented, restricting review to the provisions recorded during the decree's entry. While the parties waived maintenance after three years post-emancipation of their son, they did not specify modification conditions for the maintenance owed during that time. The trial court affirmed it retained jurisdiction to modify maintenance as permitted by law. Previous cases, such as *In re Marriage of Aldinger*, illustrate that requirements for written modifications do not inherently prevent court modifications. The husband's maintenance obligation can thus be altered based on significant and ongoing changes in circumstances. The trial court was not stripped of jurisdiction to modify maintenance within the three-year post-emancipation period, leading to the rejection of the wife's claim for attorney fees due to a groundless appeal. The order is reversed, and the case is remanded for the district court to refer the husband's motion to modify maintenance to the magistrate. Judges Rothenberg and Nieto concur.