Jan 31, 2023 - Joint Expert Order
The court records indicate an order for one joint expert, Jeremy Harkness, and the submission of one report. No other expert witnesses, including Jay Freedberg, are permitted without prior leave of the Court, as stated in C.R.C.P. 16.2(e)(10); Order dated 1/31/23.
Mar 28, 2023 - Authorized Joint Expert Report Filed
The Harkness report verifies the Petitioner’s income at $115,620, representing the only court-approved expert valuation found in the forensic files of the case. (Exhibits GG, NN)
May 17, 2023 - Unauthorized “Second Offer” Introduced
An income figure of $145,000 emerges without expert disclosure or leave of the Court, constituting a violation of C.R.C.P. 26(a)(2) and the January 31 Order.
June 13–16, 2023 - Counsel Transition and False Disclosure
During the transition of the Petitioner’s counsel, opposing counsel files a witness disclosure that falsely names Jay Freedberg as the Petitioner’s rebuttal expert without consent or knowledge. (Exh 1; Freedberg Disclosure 6/16/23)
July 6, 2023 — Deposition Deception
At deposition, Milfeld queries the Petitioner about his understanding of a “rebuttal expert,” revealing an awareness of the false designation and testing whether it had been discovered. (Exh QQQ, p.77-80)
July 12–17, 2023 — Mortgage-Driven Fabrication Window
Following the Petitioner’s production of mortgage-assumption proof, counsel, Freedberg, and Six Consulting manipulated income data to fabricate an annual income of $197,196. Work logs indicate directives like “revise report” and “prepare version for filing.” Reports were served on July 17 and filed on Aug 14, both untimely. (Exh III-UR; Exh JJ; Exh OO)
July 14, 2023 — Counteroffer Back-Dated
A document labeled “Confidential Financial Settlement Offer – July 14, 2023” was not sent until July 25. Under the Restatement (Second) of Contracts §§ 24, 39–40, the document was not a legitimate counteroffer on July 14. Its delayed service created a misleading impression of ongoing good-faith negotiation while the falsified reports were being prepared. (Exh 51; Exh RR)
Aug 23–Oct 6, 2023 - Permanent Orders Hearing and Ruling
The Court proceeded as if two experts existed, contradicting its own order from Jan 31. Freedberg was treated as a “regular witness,” yet his figures were adopted as expert findings. (Exh AA; Permanent Orders 8/22/23)
Aug 25, 2023 - Post-Trial Transfer
A withdrawal of $10,000 from Tool Studios to Alyson Varvel occurred immediately after the trial, indicating potential misuse of company funds to settle undisclosed litigation costs. (Exh 16; Exh 51)
2024–2025 - Post-Remand Reliance on Falsified Record
Subsequent proceedings in Divisions M and 14 continued to rely on the same unauthorized reports and income figures, despite an appellate reversal of the $15,000 fee award due to lack of evidence. (Order 10/2/25; Exh DD; 24CA0141)
Legal Basis
C.R.C.P. 60(b) (final paragraph): Fraud upon the court is non-waivable and not subject to a time-bar.
C.R.C.P. 16.2(e): Mandates a continuous duty of full and honest disclosure in domestic proceedings.
Controlling Cases:
First Nat’l Bank of Telluride v. Fleisher, 2 P.3d 706, 714 (Colo. 2000)
Montoya v. Connolly’s Towing, Inc., 216 P.3d 98, 104 (Colo. App. 2008)
Buckley Powder Co. v. State, 70 P.3d 547, 554 (Colo. App. 2002)
Fraud upon the court is not an accusation lightly made. It refers to intentional deception aimed at the tribunal itself where an officer of the court, such as an attorney or expert, uses false documents, concealment, or manipulation to mislead a judge into issuing an order that would not have been entered had the truth been known.
This doctrine is distinct from ordinary fraud between parties. It exists to protect the judicial process itself. Once such misconduct is verified, the Court no longer has discretion; it must act.
Colorado law is unambiguous on this point:
Taken together, these authorities confirm that Rule 60(b)’s final paragraph is not about re-litigation or delay. It is about protecting the Court from having its own process compromised.
When applied to this case, that distinction matters. The record shows repeated acts of misrepresentation—such as the June 16, 2023 false expert disclosure and the later introduction of Exhibit III—that were directed at the Court itself, not merely at an opposing party. Those acts fall squarely within the scope of Rule 60(b)’s final paragraph and require judicial correction, not discretionary review.
