22CA2275 & 23CA0621 Herndon v Clark 09-19-2024
COLORADO COURT OF APPEALS
Court of Appeals Nos. 22CA2275 & 23CA0621 Fremont County District Court No. 21DR30106 Honorable Lynette M. Wenner, Judge
Devon Deyarman Herndon,
Appellant,
v.
Clancy James Clark,
Appellee.
JUDGMENT AFFIRMED, ORDER AFFIRMED IN PART AND REVERSED IN PART, AND CASE REMANDED WITH DIRECTIONS
Division VI Opinion by JUDGE WELLING Yun and Lum, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced September 19, 2024
Family Law Center of the Rockies, Chris McLane, Golden, Colorado, for Appellant
Cordova Law Firm, LLP, Zachary D. Cordova, Salida, Colorado, for Appellee ¶1 Devon Deyarman Herndon appeals the district court’s
judgment concluding that no common law marriage existed between
herself and Clancy James Clark and order awarding Mr. Clark his
attorney fees and costs. We affirm the district court’s judgment,
affirm in part and reverse in part the order, and remand the case
for further proceedings.
I. Background
¶2 In December 2021, Ms. Herndon filed for a divorce, claiming
that she and Mr. Clark had been common law married since
November 6, 2016 — the date the parties moved from New Mexico
to Colorado. In late 2022, following a two-day evidentiary hearing,
the district court found that the parties weren’t common law
married and dismissed the dissolution petition.
¶3 The court then found that her dissolution action was frivolous
and vexatious under section 13-17-102(2), (4), C.R.S. 2024. As a
result, the court awarded Mr. Clark his attorney fees and costs.
¶4 After reviewing Mr. Clark’s affidavit and billing statements, as
well as Ms. Herndon’s objection contesting certain entries, the
district court, in a separate order, directed her to pay $29,718 in
attorney fees and costs.
1 II. Issues Raised on Appeal
¶5 On appeal, Ms. Herndon contends that the district court erred
in four respects: (1) in its disposition of several prehearing motions,
either by failing to rule or denying her relief; (2) by determining that
the parties weren’t common law married; (3) by concluding that her
petition was frivolous and vexatious and awarding Mr. Clark his
attorney fees and costs pursuant to section 13-17-102; and (4) by
failing to rule on her request for an order requiring Mr. Clark to pay
a portion of her attorney fees pursuant to section 14-10-119, C.R.S.
2024, based on the parties’ disparate financial circumstances.
Finally, both parties request an award of their attorney fees
incurred on appeal, Mr. Clark pursuant to section 13-17-102 and
Ms. Herndon pursuant to 14-10-119.
¶6 We reject all of Ms. Herndon contentions of error, except her
challenge to the district court’s award of costs pursuant to section
13-17-102, which we reverse. We also reject Mr. Clark’s request for
an award of appellate attorney fees, but remand Ms. Herndon’s
request for an award of appellate attorney fees pursuant section 14-
10-119 to the district court.
2 III. Prehearing Motions
¶7 Ms. Herndon challenges the district court’s disposition of three
prehearing motions. We address, and reject, each challenge in turn
below.
A. Ms. Herndon’s Motion to Strike
¶8 In response to the dissolution petition, Mr. Clark asked to
dismiss it, arguing that the parties were never married.
¶9 Ms. Herndon later moved to strike Mr. Clark’s request to
dismiss the dissolution petition, stating that he had failed to confer
with her prior to filing it and that his request to dismiss was
improperly included in a responsive pleading.
¶ 10 According to Ms. Herndon, the district court never ruled on
her motion to strike, and as a result, she suffered prejudice because
the court allowed Mr. Clark to proceed on his request to dismiss.
But she doesn’t explain exactly how she was prejudiced by the
court’s inaction or how the result of the proceeding would have
been different had the court ruled on her motion to strike. See
C.A.R. 35(c) (requiring the reviewing court to disregard any errors in
court proceedings that don’t affect the substantial rights of the
parties); C.R.C.P. 61 (same); see also People in Interest of A.C., 170
3 P.3d 844, 845 (Colo. App. 2007) (an alleged error, without an
allegation of prejudice, wasn’t a ground for reversal). In any event,
even if the court had struck the request to dismiss, Mr. Clark’s
response to the dissolution petition asked for the same relief.
B. Ms. Herndon’s Motions for Contempt
¶ 11 Before the hearing to determine the existence of a common law
marriage, Ms. Herndon filed two separate contempt motions against
two different individuals, alleging their failure to comply with
subpoenas for certain documents. On appeal, Ms. Herndon argues
that because the court didn’t rule on her contempt motions, she
never received the subpoenaed information, which, she contends,
hampered her ability to effectively cross-examine those individuals
at the hearing. Yet again she doesn’t specifically tell us how her
cross-examination was compromised. See C.A.R. 35(c); C.R.C.P. 61;
see also A.C., 170 P.3d at 845. In other words, she doesn’t indicate
what testimony she could have elicited and how that missing
testimony would have affected the outcome.
¶ 12 We decline to address Ms. Herndon’s undeveloped argument
that the district court erred by not ruling on her motion for
contempt against Mr. Clark based on his alleged violation of the
4 automatic temporary injunction. See In re Marriage of Zander, 2019
COA 149, ¶ 27 (appellate court may decline to consider an
argument not supported by legal authority or any meaningful legal
analysis), aff’d, 2021 CO 12; see also Biel v. Alcott, 876 P.2d 60, 64
(Colo. App. 1993) (“An appealing party bears the burden to provide
supporting authority for contentions of error asserted on appeal,
and a failure to do so will result in an affirmation of the
judgment.”). As well, she doesn’t explain how she was prejudiced
by the absence of any relief with respect to the motion for contempt.
See C.A.R. 35(c); C.R.C.P. 61; see also A.C., 170 P.3d at 845.
C. Ms. Herndon’s Motion to Compel Discovery
¶ 13 Ms. Herndon insists that the district court erred by denying
her motion to compel discovery responses from Mr. Clark regarding
his will and estate documents. However, she doesn’t demonstrate,
with any legal analysis, how the court erred in that regard.
Therefore, we decline to address the issue. See Zander, ¶ 27.
IV. Judgment Concluding No Common Law Marriage Existed
¶ 14 Ms. Herndon contends that the district court erred in
determining that the parties weren’t in a common law marriage. We
disagree.
5 A. Legal Principles and Standard of Review
¶ 15 “[A] common law marriage may be established by the mutual
consent or agreement of the couple to enter the legal and social
institution of marriage, followed by conduct manifesting that
mutual agreement.” Hogsett v. Neale, 2021 CO 1, ¶ 70. “The key
inquiry is whether the parties intended to enter a marital
relationship — that is, to share a life together as spouses in a
committed, intimate relationship of mutual support and obligation.”
Id.
¶ 16 In determining whether a common law marriage has been
established, the court should “accord weight to evidence reflecting a
couple’s express agreement to marry.” Id. Evidence of an express
agreement to marry may include, but is not limited to, a marriage
proposal and acceptance, participation in a ceremony in the
presence of friends and family, the exchange of vows and rings, a
celebratory toast, or the completion of a “Certificate of Holy Union.”
LaFleur v. Pyfer, 2021 CO 3, ¶ 54; see Hogsett, ¶ 62; In re Estate of
Yudkin, 2021 CO 2, ¶ 22. However, “the traditions and symbols
that mark marital commitments are not uniform,” so the district
court must consider the parties’ interpretations of the significance
6 of such mores. Hogsett, ¶¶ 47, 62; see LaFleur, ¶ 55 (noting the
importance of examining the range of meanings that parties may
place on ceremonies).
¶ 17 If no evidence of an express agreement to marry exists, then
“the parties’ agreement may be inferred from their conduct.”
Hogsett, ¶ 70. The court must consider all factors that might
manifest the parties’ agreement, or lack of agreement, to be
married. Yudkin, ¶ 18. Relevant factors include the parties’
cohabitation; reputation in the community as spouses;
maintenance of joint banking and credit accounts; purchase and
joint ownership of property; filing of joint tax returns; use of one
spouse’s surname by the other or by children raised by the parties;
evidence of shared financial responsibility, such as leases in both
partners’ names, joint bills, or other payment records; evidence of
joint estate planning, such as wills, powers of attorney, and
beneficiary and emergency contact designations; symbols of
commitment, such as ceremonies, anniversaries, cards, gifts, and
the couple’s references to or labels for one another; and the parties’
sincerely held beliefs regarding the institution of marriage. Hogsett,
¶¶ 55-56. These factors must be assessed in context, and the
7 inferences to be drawn from the parties’ conduct may vary
depending on the circumstances. LaFleur, ¶ 53.
¶ 18 A common law marriage finding depends on the totality of the
circumstances; no single factor is dispositive. Yudkin, ¶¶ 18-19;
see also Hogsett, ¶ 59 (noting that the significance of a given factor
will depend on the individual, the relationship, and the broader
circumstances, including cultural differences). Thus, the
determination of whether a common law marriage exists turns on
issues of fact and credibility, which are within the district court’s
purview. LaFleur, ¶ 50; see Hogsett, ¶ 50 (The existence of a
common law marriage calls for “a flexible inquiry into the totality of
the circumstances that relies on the factfinder’s credibility
determinations and weighing of the evidence.”).
¶ 19 We review the district court’s factual findings for clear error
and its common law marriage determination based on those
findings for an abuse of discretion. LaFleur, ¶ 50. A court’s factual
finding is clearly erroneous if there is no support for it in the record.
In re Marriage of Young, 2021 COA 96, ¶ 8. And a court abuses its
discretion when it misconstrues or misapplies the law, or makes a
decision that is manifestly arbitrary, unreasonable, or unfair. In re
8 Marriage of Kann, 2017 COA 94, ¶ 56. With these principles in
mind, we turn to the record that was before the district court and
its findings.
B. Additional Facts and District Court’s Findings
¶ 20 The record supports the following factual findings made by the
district court:
• The parties’ dating relationship began in 2008.
• There was testimony that “the parties discussed marriage
early in the relationship and they both agreed they did
not want to get married.”
• About a year later, the parties moved to New Mexico and
began living together.
• In 2015, Mr. Clark bought land in Colorado, with title
solely in his name. Using separate funds, he eventually
built a residence there.
• On November 6, 2016, the parties moved to Colorado
where common law marriages are recognized. For that
reason, Ms. Herndon argued that they had entered into a
common law marriage. But the district court found that
the “mere act of moving to Colorado from New Mexico is
9 not sufficient to constitute mutual consent for marriage
and there is no legal justification for such an
assumption.” And Ms. Herndon “acknowledged that at
no time did the parties enter into an agreement to be
married prior to or after November 2016.”
¶ 21 The district court also found that “the parties’ conduct after
moving to Colorado did not follow a mutual and open assumption of
a marital relationship.” In support of this finding, the district court
made the following subsidiary findings:
• “It [was] undisputed that no marriage proposal was
made, no marriage ceremony occurred, and no marriage
license was obtained by the parties before or after
November 6, 2016.”
• Mr. Clark hired a ghostwriter to write a self-help book for
him. To establish a common law marriage, Ms. Herndon
relied on the ghostwriter’s use of the word “wife.” But the
ghostwriter explained that it “was an easier shorthand”
and “not meant to describe or to be [Ms. Herndon].” The
ghostwriter testified that “in no way was he told by [Mr.
Clark] to use that word in reference to [Ms.] Herndon.”
10 The ghostwriter added that the book “was not a memoir
or a personal narrative of [Mr. Clark’s] life” and contained
“fictional characters and fictional stories.” The only
portion of the book written by Mr. Clark was the foreword
wherein he didn’t refer to Ms. Herndon as his wife, but
instead as his “beloved.”
• Ms. Herndon’s expert reviewed the book and opined that
the word “wife” wasn’t social shorthand.
• With some help from the previous ghostwriter, Mr. Clark
wrote a second self-help book, which was an extension of
the first book. It was released after Ms. Herndon had
petitioned for dissolution. He testified that in “writing
and editing the book, he maintained the same names of
the fictional characters and created fictional stories in his
second book as well.”
• Mr. Clark’s expert testified that there were fictional
stories and characters in both books and that the “wife”
character was a “small insignificant presence.” The
expert said that the books didn’t convey that Mr. Clark
was married to Ms. Herndon.
11 • To show the existence of a common law marriage, Ms.
Herndon also relied on social media posts about the
books. Yet the posts were largely controlled by a
company in charge of marketing. And two witnesses,
both of whom worked for the company, testified that after
discussing the parties’ relationship, Mr. Clark “was clear
that he was not married and did not desire to be
married.”
• “[T]he books and social media posts [were] circumstantial
evidence at best” and did “not lend any credibility . . . of
an intent by [Mr.] Clark to be married.”
• Ms. Herndon presented, as evidence of a common law
marriage, a name badge from a class reunion plus two
pieces of mail showing her last name as Clark. But there
“was no evidence that either party had requested the
Clark name be used.”
• Ms. Herndon never adopted the Clark surname.
• Ms. Herndon called one witness who testified that on one
occasion Mr. Clark called Ms. Herndon his wife. She also
called another witness who testified that on a separate
12 occasion she called Mr. Clark her husband. Her other
witnesses testified that they “assumed” that the parties
were married. The court found all their testimony
unpersuasive.
• The parties shared a business asset from the United
States Patent and Trademark Office (USPTO).
• Mr. Clark presented numerous witnesses who were
“longtime acquaintances of both parties.” They testified
persuasively that Mr. Clark never wore a ring and never
referred to Ms. Herndon as his wife.
• Moreover, the parties didn’t
o have any jointly titled bank accounts;
o have any joint credit accounts;
o purchase or own property together;
o have children together;
o have shared financial responsibilities, like joint
loans;
o share any lease agreements; or
o have joint bills or expenses.
13 • “[T]he parties filed separate individual tax returns with a
filing status of ‘single’ (not married) for all years they
were in a relationship, and they both declared so under
penalty of perjury.”
• Ms. Herndon’s application for life insurance “noted that
she had no spouse or noted that [Mr. Clark] was her
‘friend’ and not a husband or spouse.”
• “[T]he [c]ourt finds the parties did not buy or exchange
rings as a symbol of a marriage. [Ms.] Herndon testified
that she bought herself a ring to wear on her wedding
finger, which [Mr.] Clark had no knowledge of, but the
only evidence of this she could provide was one picture.
The [c]ourt finds this evidence not to be credible.”
• The parties didn’t celebrate any wedding anniversaries.
• Ms. Herndon executed a trust agreement about five
months after she alleged that a marriage was entered
into. In it, she affirmed that she was “not married nor a
partner in a civil union.”
14 ¶ 22 From those findings, the district court determined that Ms.
Herndon failed to carry the burden necessary to establish a
common law marriage.
C. Analysis
¶ 23 To begin, Ms. Herndon challenges the district court’s finding
that she “acknowledged that at no time did the parties enter into an
agreement to be married prior to or after November 2016.” She
relies solely on her testimony that Mr. Clark was incorrect when he
testified that there was no agreement to be married. But this
argument essentially asks us to reweigh the evidence, which we
can’t do. See In re Marriage of Thorburn, 2022 COA 80, ¶ 49 (it’s for
the district court to determine witness credibility and the weight,
probative force, and sufficiency of the evidence, as well as the
inferences and conclusions to be drawn therefrom); see also In re
Marriage of Amich, 192 P.3d 422, 424 (Colo. App. 2007) (the district
court can believe all, part, or none of a witness’s testimony, even if
uncontroverted).
¶ 24 Ms. Herndon also takes issue with the district court’s finding
that her expert only reviewed the first book. While we agree that
her expert testified that she reviewed both books, Ms. Herndon
15 doesn’t explain on appeal how this mistake prejudiced her. See
C.A.R. 35(c); C.R.C.P. 61; see also A.C., 170 P.3d at 845.
¶ 25 Ms. Herndon maintains that the record contradicts the district
court’s factual finding that Mr. Clark’s witnesses were long-time
acquaintances of both parties. Again, she doesn’t explain how she
was prejudiced by this allegedly erroneous finding. See C.A.R.
35(c); C.R.C.P. 61; see also A.C., 170 P.3d at 845.
¶ 26 Next, Ms. Herndon argues that the district court did not take
her testimony into account. She testified that Mr. Clark
commented that he would be “nice” to her when moving to Colorado
because common law marriage is recognized there and that the
parties shared an automobile insurance policy. But we may
presume that the court considered all the evidence before it, even if
it didn’t make express findings regarding that evidence. See In re
Marriage of Udis, 780 P.2d 499, 504 (Colo. 1989).
¶ 27 We reject Ms. Herndon’s contention that the district court
failed to consider that Mr. Clark referred to her as his “beloved” in
the foreword of his first book and a jointly owned trademark,
registered by the USPTO in January 2017. The court explicitly
considered those facts, particularly acknowledging that the word
16 “beloved” wasn’t the same as “wife” and that the trademark was the
only asset the parties jointly owned.
¶ 28 Ms. Herndon says that the evidence — namely, both experts’
testimony on Mr. Clark’s books, Mr. Clark’s testimony on his social
media posts, and other witnesses’ testimony that they either saw
Mr. Clark wear a wedding ring or heard Mr. Clark call Ms. Herndon
“wife” — requires the conclusion that the parties were common law
married. Once again, we decline her invitation to reweigh the
evidence and substitute our judgment for that of the district court.
See Thorburn, ¶ 49; see also Kann, ¶ 36 (“[O]ur supreme court
has . . . expressed unbridled confidence in [district] courts to weigh
conflicting evidence.”); Amich, 192 P.3d at 424.
¶ 29 Last, Ms. Herndon asserts that the district court should have
given more weight to her witnesses as they were “local,” unlike Mr.
Clark’s witnesses who were from “all over the world.” She cites no
authority, and we are aware of none, that supports her proposition.
Thus, we decline to address the issue. See Zander, ¶ 27; see also
Biel, 876 P.2d at 64.
¶ 30 In sum, we discern no error in the district court’s factual
findings or in the legal standards it applied. Nor can we say that
17 the court’s resolution of this dispute was manifestly arbitrary,
unreasonable, or unfair. Thus, the court’s determination that no
common law marriage existed wasn’t an abuse of discretion. See
LaFleur, ¶ 50. Accordingly, we won’t disturb it.
V. Attorney Fees and Costs Pursuant to Section 13-17-102
¶ 31 Ms. Herndon next contends that the district court erred by
awarding Mr. Clark his attorney fees and costs under section 13-
17-102. To get there, she says that her dissolution action was
neither frivolous nor vexatious. For the reasons discussed below,
we affirm the award of attorney fees, but reverse the award of costs.
A. Legal Principles and Standard of Review
¶ 32 Section 13-17-102(2) and (4) provide for the recovery of
attorney fees when a district court finds that an action is
substantially frivolous or vexatious.
¶ 33 An action is substantially frivolous if “the proponent can
present no rational argument based on the evidence or law in
support of [it].” City of Aurora v. Colo. State Eng’r, 105 P.3d 595,
620 (Colo. 2005).
¶ 34 An action is substantially vexatious if it is “brought or
maintained in bad faith to annoy or harass another.” In re Parental
18 Responsibilities Concerning I.M., 2013 COA 107, ¶ 29.
“[V]exatiousness includes conduct that is arbitrary, abusive,
stubbornly litigious, or disrespectful of the truth.” Id.
¶ 35 Section 13-17-102 works in conjunction with section 13-17-
103, C.R.S. 2024, which provides that “[w]hen granting an award of
attorney fees . . . , the court shall specifically set forth the reasons
for the award.” § 13-17-103(1). The court must consider all
relevant factors in determining whether to assess attorney fees, like
“[t]he extent of any effort made to determine the validity of any
action or claim before said action or claim was asserted” and
“[w]hether or not the action was prosecuted or defended, in whole or
in part, in bad faith.” § 13-17-103(1)(a), (e); see In re Marriage of
Aldrich, 945 P.2d 1370, 1379 (Colo. 1997) (district court need only
address the relevant statutory factors). Our supreme court has
held that this statute requires specific findings regarding the
statutory factors whenever a district court grants an attorney fee
request. Munoz v. Measner, 247 P.3d 1031, 1035 (Colo. 2011).
¶ 36 We review a district court’s award of attorney fees for an abuse
of discretion. In re Parental Responsibilities Concerning D.P.G., 2020
COA 115, ¶ 32. A court abuses its discretion when its decision is
19 manifestly arbitrary, unreasonable, or unfair, or misapplies the law.
¶ 37 We review de novo, however, whether the district court applied
the correct legal standard. In re Parental Responsibilities
Concerning B.R.D., 2012 COA 63, ¶ 15.
B. Analysis
1. Award of Attorney Fees
¶ 38 As discussed at length above, Ms. Herndon, as the petitioner,
bore the burden to prove the existence of the common law marriage
by a preponderance of the evidence. See Hogsett, ¶ 13. In order to
carry that burden, the party seeking to prove the existence of a
marriage generally must introduce some objective evidence of the
existence of the common law marriage in order to guard against
fraudulent assertions of marriage. See id. at ¶ 51; see also People v.
Lucero, 747 P.2d 660, 664-65 (Colo. 1987) (“objective evidence” is
any evidence of “open marital cohabitation” or “any form of evidence
that openly manifests the intention of the parties that their
relationship is that” of a married couple) (citation omitted),
abrogated by Hogsett, ¶¶ 1-5. In dismissing Ms. Herndon’s petition
and rejecting her claim that the parties were common law married,
20 the district court didn’t simply find her evidence unpersuasive, it
found that “the objective in this matter is overwhelming, clear, and
largely undisputed that a marriage never existed.” Based on this,
the court found that Ms. Herndon’s petition “lacked substantial
justification and was a frivolous and vexatious filing,” warranting an
award of attorney fees pursuant to section 13-17-102.
¶ 39 In support of this conclusion, the district court found that the
corroborated and undisputed objective evidence was so
overwhelmingly clear that Ms. Herndon’s “own conduct, sworn
statements, and admissions showed she intended to keep her life
separate and not married.” See Hogsett, ¶ 51. The court added
that her evidence showed that she was “either perjuring herself in
all her sworn statements to the IRS, insurance providers, banks,
and her own trust documents or she knew or should have known
she was filing fraudulent claims.”
¶ 40 The record supports the district court’s findings, including its
credibility determinations. See Lucero, 747 P.2d at 665 (whether a
common law marriage exists involves issues of fact and credibility,
which are within the district court’s discretion); see also Thorburn,
¶ 49 (it is for the district court to determine witness credibility and
21 the weight, probative force, and sufficiency of the evidence, as well
as the inferences and conclusions to be drawn therefrom); Amich,
192 P.3d at 424 (district court is entitled to believe or disbelieve all
or part of a witness's testimony, even if uncontroverted).
¶ 41 The record reflects that the parties didn’t have any jointly
titled bank or credit card accounts; the parties did not have joint
bills or expenses; the parties filed separate tax returns identifying
themselves, under penalty of perjury, as “single”; Ms. Herndon
executed a trust agreement, signed five months after she claimed
the parties had entered into a common law marriage, wherein she
wrote that she “was not married nor a partner in a civil union”; and
Ms. Herndon filled out a USAA life insurance application in
November 2017, making a “true” statement that Mr. Clark was a
“friend”; Ms. Herndon completed a AAA life insurance application in
22 December 2017, referring to Mr. Clark as a “significant other”;1 the
parties did not have a marriage ceremony; and the parties never
celebrated any anniversaries.
¶ 42 To the extent that Ms. Herndon contends that the district
court didn’t make the required findings under section 13-17-103,
we disagree. The court specifically found that she initiated and
continued the action against Mr. Clark notwithstanding the fact
that most of her evidence contradicted her allegation that the
parties entered into a common law marriage when they moved to
Colorado in November 2016. See § 13-17-103(1)(a), (e).
¶ 43 In all, we can’t say that the district court abused its broad
discretion by granting Mr. Clark’s request for attorney fees under
section 13-17-102(2), (4). See D.P.G., ¶ 32.
1 We recognize that, in some circumstances, the failure of parties to
represent themselves as “married” on government, tax, insurance, banking, or other official documentation isn’t necessarily dispositive — or even strongly corroborative — of the parties’ intent. For example, same-sex couples may not have had the opportunity to label themselves as “married” on such documentation, or a couple may have mutually chosen to represent themselves as unmarried to gain a financial advantage. However, no one points to any evidence in this case that the parties’ marital-status designation on the various government documents admitted at the hearing was somehow or for some reason inconsistent with their intent.
23 2. Costs Under Section 13-17-102
¶ 44 We agree with Ms. Herndon, however, that costs aren’t
recoverable under section 13-17-102. See D.P.G., ¶ 37 n.1 (sections
13-17-101 and 13-17-102, C.R.S. 2024, provide only for an award
of attorney fees, not costs). We therefore reverse this portion of the
court’s order.
VI. Ms. Herndon’s Request for Attorney Fees in the District Court Pursuant to Section 14-10-119
¶ 45 Ms. Herndon asserts that the district court erred by denying
her request for attorney fees under section 14-10-119. Under
section 14-10-119,
[t]he court from time to time, after considering the financial resources of both parties, may order a party to pay a reasonable amount for the cost to the other party of maintaining or defending any proceeding [under title 14] and for attorney fees . . . , including sums for legal services rendered and costs incurred prior to the commencement of the proceeding or after entry of judgment.
(Emphasis added.)
¶ 46 The statute doesn’t prohibit a prospective fee award. See In re
Marriage of Rose, 134 P.3d 559, 562-63 (Colo. App. 2006). But the
advancement of prospective fees “should be made cautiously and
24 [is] to be based upon some viable evidentiary basis.” Id. at 563
(citation omitted).
¶ 47 The district court has broad discretion in deciding whether to
award fees under section 14-10-119, and its decision won’t be
disturbed on appeal absent an abuse of discretion. In re Marriage of
Aragon, 2019 COA 76, ¶ 8.
¶ 48 In August 2022, Ms. Herndon moved for a temporary order
requiring Mr. Clark to pay her $20,000 for “retrospective and
prospective attorney fees” under section 14-10-119. The district
court delayed ruling on the motion until after a “decision is made as
to the existence of a marriage.” During the hearing, Ms. Herndon
reiterated her request for section 14-10-119 attorney fees and
testified that the parties’ financial circumstances were disparate.
The court again reserved the issue.
¶ 49 Contrary to Ms. Herndon’s view, her motion for section 14-10-
119 attorney fees was denied, either by implication, see Bd. of Cnty.
Comm’rs v. Kobobel, 74 P.3d 401, 404 (Colo. App. 2002) (when a
district court doesn’t rule on a motion, it may be considered
implicitly denied), or as part of the court’s express dismissal of her
dissolution petition.
25 ¶ 50 To be sure, in deciding a request for section 14-10-119
attorney fees, specific findings are necessary so that we may
ascertain the basis for the ruling. See In re Marriage of McNamara,
962 P.2d 330, 334 (Colo. App. 1998) (remanding for lack of written
findings of fact with respect to denial of attorney fees under section
14-10-119); In re Marriage of Pilcher, 628 P.2d 126, 128 (Colo. App.
1980) (same). But here we aren’t left searching for a rationale for
the court’s denial of Ms. Herndon’s request; in awarding Mr. Clark
his fees pursuant to section 13-17-102, the court implicitly found
that by initiating and maintaining a substantially frivolous and
vexatious action, the attorney fees she sought to recover pursuant
to section 14-10-119 were necessarily unreasonable. That implicit
finding is amply supported by the record for the reasons discussed
in Part V.B.1 above. Thus, it wasn’t an abuse of discretion for the
court to decline to award Ms. Herndon any portion of her attorney
fees pursuant to section 14-10-119. Accordingly, we won’t disturb
the district court’s refusal to award Ms. Herndon any attorney fees
for the proceedings in the district court.
26 VII. Appellate Attorney Fees
¶ 51 Finally, both parties request an award of their attorney fees
incurred on appeal, albeit on different grounds.
¶ 52 Mr. Clark argues that he is entitled to an award of his
appellate attorney fees on the grounds that Ms. Herndon’s appeal is
frivolous. We aren’t persuaded. First, Ms. Herndon did prevail on
one issue — the district court’s award of costs pursuant section 13-
17-102. Second, although we weren’t persuaded by the vast
majority of the contentions Ms. Herndon advanced on appeal, we
also aren’t persuaded that her appeal is frivolous. See In re Estate
of Shimizu, 2016 COA 163, ¶ 34 (declining to award appellate
attorney fees to a party who successfully defended a section 13-17-
102 attorneys fee award because the contentions on appeal weren’t
“so lacking in substance as to be frivolous”).
¶ 53 Ms. Herndon seeks an award of her appellate attorney fees
under section 14-10-119 based on the parties’ disparate financial
circumstances. Just because we affirmed a denial of those fees in
the district court doesn’t foreclose the prospect that they may be
warranted on appeal. But because the district court is in a superior
position to consider her request (including evaluating the parties’
27 relative financial circumstances), we direct the district court on
remand to consider her request applying the standard required by
section 14-10-119. See C.A.R. 39.1.
VIII. Disposition
¶ 54 We affirm the district court’s judgment dismissing the petition
and its finding that a common law marriage didn’t exist. With
respect to the district court’s order awarding Mr. Clark his attorney
fees and costs pursuant to section 13-17-102, we affirm the court’s
award of attorney fees but reverse the award of costs. On remand,
the district court is to consider Ms. Herndon’s section 14-10-119
appellate attorney fees request.
JUDGE YUN and JUDGE LUM concur.