Volume 456 — Pacific Reporter, Third Series

In this domestic relations case, the Supreme Court considered the standards and procedures that govern a CRCP 16.2(e)(10) post-decree motion to allocate material assets or liabilities allegedly misstated or omitted in pre-decree disclosures. The Court held that CRCP 12(b)(5) and the plausibility standard in Warne v. Hall, 2016 CO 50, 373 P.3d 588, do not apply to Rule 16.2(e)(10) motions. Rule 12(b)(5) and the plausibility standard apply to motions to dismiss a claim for relief in a pleading, and a Rule 16.2(e)(10) motion is not a pleading. Instead, the Court held that, consistent with CRCP 7(b), which controls motions practice in civil cases, a Rule 16.2(e)(10) motion must "state with particularity" the grounds on which it is premised (i.e., the reasons why relief is warranted). But the Court held that this does not preclude allegations that are based on information and belief when the moving party lacks direct knowledge about those allegations. So long as the motion satisfies the particularity requirement in Rule 7(b)(1), it may include such allegations. Lastly, the Court held that a party is not automatically entitled to conduct discovery to support his or her Rule 16.2(e)(10) motion. Rather, the district court, in its discretion, may allow discovery or schedule a hearing (or both) if it concludes that the facts asserted in the motion are sufficient to justify doing so. In making this determination, the district court should be mindful that the moving party must satisfy Rule 7(b)(1)'s particularity requirement and ultimately bears the burden of demonstrating by a preponderance of the evidence that he or she is entitled to relief. In the event the district court finds that the facts asserted in the motion are not sufficient to justify a hearing or even discovery, it may deny the motion outright. The division's judgment was affirmed, albeit on other grounds, and the case was remanded with instructions to return the case to the district court for additional proceedings. On remand, the district court should allow wife to conduct whatever discovery it deems appropriate and then determine whether to hold a hearing.