Marriage of Keith

• Court: Colorado Court of Appeals
• Decided: January 15, 2026
• Docket: 24CA2240
• Status: Unpublished

Opinion

24CA2240 Marriage of Keith 01-15-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA2240 El Paso County District Court No. 22DR1967 Honorable Marcus S. Henson, Judge

In re the Marriage of

Katlyn Gallardo,

Appellant,

and

Casey Wayne Keith,

Appellee.

JUDGMENT AFFIRMED

Division III Opinion by JUDGE KUHN Dunn and Lipinsky, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced January 15, 2026

The Law Office of Andrew Bryant, LLC, Catherine H. Ford, Colorado Springs, Colorado, for Appellant

No Appearance for Appellee ¶1 In this dissolution of marriage proceeding between Katlyn

Gallardo (wife) and Casey Wayne Keith (husband), wife appeals the

district court’s amendment of the permanent orders to deny her

attorney fees and costs. We affirm.

I. Background

¶2 In 2024, the court dissolved the parties’ marriage of

approximately four and a half years. In the resulting permanent

orders, the district court divided the marital property and awarded

wife maintenance and child support.

¶3 The court also ordered husband to pay wife’s attorney fees and

costs associated with a September 2023 motion to compel

husband’s compliance with his financial disclosure obligations.

Additionally, the court ordered husband to pay, under section

14-10-119, C.R.S. 2025, half of wife’s attorney fees for the entire

proceeding, in addition to the fees associated with the motion to

compel. The court directed wife to file an affidavit of attorney fees

within fourteen days.

¶4 Husband objected to wife’s affidavit of attorney fees, and

following the district court’s issuance of a written version of the

permanent orders, husband filed a motion for reconsideration

1 under C.R.C.P. 59. In that motion, husband asked the court to

reconsider its award of attorney fees to wife. Husband argued that

wife did not present any evidence at the permanent orders hearing

as to the reasonableness or necessity of her attorney fees in the

form of an attorney fees affidavit, attorney fee agreement, or other

evidence of the amount and nature of the attorney fees.

¶5 The district court granted husband’s motion in part and set a

hearing in September 2024 for the “parties to fully address the

issue of attorney fees,” including the fees related to wife’s motion to

compel and her “attorney fees more generally.” At that hearing, wife

was prepared to have a third-party attorney testify about the

reasonableness of her attorney fees. But husband objected,

asserting that wife had not disclosed the witness as an expert

before the hearing.

¶6 After reviewing the electronic court file, wife’s attorney

conceded that the witness had not been disclosed because her

paralegal had mistakenly filed an amended exhibit list instead of

the witness disclosure. The district court accordingly barred the

witness from testifying. Wife’s counsel told the court that she could

not prove the reasonableness and necessity of the attorney fees

2 without the expert witness. So she asked the court to continue the

hearing.

¶7 Instead, after reweighing the legal authority cited in husband’s

motion for reconsideration, such as C.R.C.P. 121, section 1-22, and

In re Marriage of Connerton, 260 P.3d 62, 67 (Colo. App. 2010), the

court concluded that it had likely erred when issuing the

permanent orders by not having required wife to present concurrent

evidence of the reasonableness of her attorney fees. Citing both

that conclusion and wife’s failure to disclose her expert witness, the

court rescinded the award of attorney fees to wife under section

14-10-119 and the award of attorney fees associated with the

motion to compel. The court also refused to continue the hearing.

¶8 Wife asked for leave to file a post-decree motion for attorney

fees, which the district court similarly denied. Lastly, the court

declined wife’s request that it reconsider the marital property

division in light of its revised attorney fees ruling.

II. Analysis

¶9 On appeal, wife argues that the district court erred by

(1) precluding her from moving for attorney fees after it entered the

judgment; (2) not revisiting the marital property division; and

3 (3) rescinding its prior award of attorney fees. We address each

contention in turn.

A. Standards of Review and Applicable Law

¶ 10 We review for an abuse of discretion a district court’s

determination regarding attorney fees, including attorney fees

under section 14-10-119 and fees awarded as a sanction under

C.R.C.P. 37. See In re Marriage of Rodrick, 176 P.3d 806, 815-16

(Colo. App. 2007) (“The trial court has broad discretion in awarding

attorney fees under [section] 14-10-119, and absent an abuse of

such discretion, the court’s award will not be disturbed on

appeal.”); DA Mountain Rentals, LLC v. The Lodge at Lionshead

Phase III Condo. Ass’n, 2016 COA 141, ¶ 49 (recognizing that courts

are given “wide flexibility in determining whether to impose

sanctions” for discovery and disclosure violations). “A district court

abuses its discretion when it acts in a manifestly arbitrary, unfair,

or unreasonable manner, or when it misapplies the law.” In re

Marriage of Herold, 2021 COA 16, ¶ 5.

¶ 11 Section 14-10-119 permits the district court to equitably

apportion attorney fees and costs in a dissolution proceeding based

on a disparity in the parties’ financial resources. But when

4 awarding attorney fees under section 14-10-119, the district court

must consider both the reasonableness of the hourly rate and the

necessity of the hours billed. Connerton, 260 P.3d at 67. Generally,

a party requesting attorney fees under section 14-10-119 must

present evidence of their reasonableness at the time of the

proceeding for which the fees are sought. See C.R.C.P. 121,

§ 1-22(2) cmt. 2 (“Unless otherwise ordered by the court, [a request

for] attorney fees under [section] 14-10-119 should be heard at the

time of the hearing on the motion or proceeding for which they are

requested.”); Connerton, 260 P.3d at 67-68 (holding that district

court did not err by denying the wife’s request for attorney fees

where she failed to present evidence as to the reasonableness of her

fees at the corresponding hearing on child support modification).

B. Attorney Fees Under Section 14-10-119

¶ 12 We first consider and reject wife’s contention that, after

reversing course on awarding her attorney fees under section

14-10-119, the district court erred by denying her leave to file a

motion for post-judgment attorney fees under that section.

¶ 13 In support of her request, wife cited In re Marriage of

Williamson, 205 P.3d 538, 543 (Colo. App. 2009), but the district

5 court concluded that Williamson was not applicable to the parties’

procedural posture.

¶ 14 We agree with the district court. In Williamson, another

division of this court held that section 14-10-119 did not bar a

party from seeking an award of appellate attorney fees even though

he had not requested attorney fees in the district court. Williamson,

205 P.3d at 543. But the party in Williamson had only requested

his attorney fees incurred during that appeal, and nowhere in that

proceeding did he seek or receive an award of attorney fees that he

had previously incurred in the district court. Id. Consequently,

nothing in Williamson suggests that a party may move for and

receive post-judgment section 14-10-119 attorney fees, contrary to

Rule 121, section 1-22(2) comment 2, and Connerton, 260 P.3d at

67, which provide that a district court should address attorney fees

under section 14-10-119 at the time of the hearing on the motion or

proceeding for which a party has requested the fees.1

1 As noted above, though a request for attorney fees should

generally be addressed at the time of the hearing on the motion or proceeding for which they are requested, the district court retains discretion to make orders to the contrary. See C.R.C.P. 121, § 1-22(2) cmt. 2.

6 C. Reallocation of Marital Property

¶ 15 We next consider and reject wife’s contention that, because

the district court reversed course on awarding her section

14-10-119 attorney fees, it was required to revisit the marital

property division.

¶ 16 Citing In re Marriage of Hill, 166 P.3d 269, 272 (Colo. App.

2007), wife argues that because a marital property division and

attorney fees under section 14-10-119 are interrelated, the district

court was obliged to reconsider the marital property division once it

rescinded her award of section 14-10-119 fees. And it’s true that in

Hill — for purposes of determining whether a permanent orders

judgment is a final, appealable order — another division of this

court explained that the marital property division, maintenance,

and any award of section 14-10-119 attorney fees are “inextricably

intertwined.” Hill, 166 P.3d at 272 (quoting In re Marriage of

Antuna, 8 P.3d 589, 595 (Colo. App. 2000)). Thus, Hill

acknowledged that when a property division is reversed, the district

court must also reconsider maintenance and attorney fees. Id.

¶ 17 In In re Marriage of de Koning, 2016 CO 2, ¶ 26, the supreme

court elaborated that “awards of spousal maintenance and [section

7 14-10-119] attorney’s fees flow from the property distribution,

which is typically the linchpin of financial permanent orders.” Like

Hill, de Koning held that when a district court “revisit[s] a property

division, it must also reevaluate maintenance and attorney’s fees

awards in light of the updated property division, because the issues

are interdependent.” Id. Critically, the de Koning court also

clarified that “we have never indicated that the need for

reevaluation works in both directions — to the contrary, we have

suggested that when a trial court reconsiders an attorney’s fees

award on remand, it need not reexamine the parties’ financial

resources.” Id.

¶ 18 Accordingly, applying de Koning, ¶ 26, we conclude that, even

though the district court rescinded the section 14-10-119 award of

attorney fees to wife, it did not err when it refused to reopen the

marital property division.

D. Attorney Fees Associated with Wife’s Motion to Compel

¶ 19 For multiple reasons, wife asserts that the district court also

abused its discretion by rescinding its prior award of attorney fees

associated with her motion to compel. We are not persuaded.

8 ¶ 20 To start, wife contends that the district court erred by applying

Rule 121, section 1-22(2) comment 2, and Connerton, 260 P.3d at

67, to the fees associated with her motion to compel, which were a

sanction for husband’s failure to comply with his financial

disclosure obligations and not an award under section 14-10-119.

But even if we assume, without deciding, that the court so erred, we

nevertheless affirm because wife failed to provide the required

disclosures regarding her attorney fee expert witness in advance of

the September 2024 hearing.

¶ 21 Wife next contends that the district court improperly excluded

her witness from testifying at that hearing. We again disagree.

¶ 22 C.R.C.P. 26(a)(2) governs the disclosure of expert witnesses. If

a party fails to disclose information required by Rule 26(a) without

substantial justification, the party “shall not be permitted to

present any evidence not so disclosed at trial . . . unless such

failure has not caused and will not cause significant harm, or such

preclusion is disproportionate to that harm.” C.R.C.P. 37(c)(1); see

also C.R.C.P. 16.2(e)(3) (providing that the expert disclosure

requirements of Rule 26(a)(2)(B) apply in dissolution of marriage

proceedings).

9 ¶ 23 A district court has substantial discretion when imposing

sanctions for nondisclosure. See In re Marriage of Davis, 252 P.3d

530, 537 (Colo. App. 2011). But the supreme court has explained

that under C.R.C.P. 37(c)(1), exclusion of an undisclosed witness or

evidence is not automatic. Cath. Health Initiatives Colo. v. Earl

Swensson Assocs., 2017 CO 94, ¶¶ 12-15. Instead, the district

court must undertake a harm and proportionality analysis that

examines the harm caused by the nondisclosure and weighs the

proportionality of any sanction to be imposed. Id. The harm

inquiry examines whether the failure to disclose the evidence or

witness “in a timely fashion will prejudice the opposing party by

denying that party an adequate opportunity to defend against the

evidence” or witness. Todd v. Bear Valley Vill. Apartments, 980 P.2d

973, 978-79 (Colo. 1999) (listing additional factors that the court

may consider such as the importance of the witness’s testimony,

the explanation for the nondisclosure, the prejudice or surprise to

the opposing party, the ability of the party to cure the prejudice,

and the availability of a continuance).

¶ 24 Here, we are satisfied that the district court’s decision to

exclude wife’s expert witness was based on proper considerations

10 and not disproportionate to the nondisclosure. The court expressed

concern that husband had not received any advance notice as to

the identity of wife’s witness, who the court recognized would be

testifying as an expert on the topic of attorney fees. Likewise, the

court found that husband had not received a written report

containing, at a minimum, a description of the expert witness’s

opinions and a summary of the witness’s qualifications — all of

which would have afforded husband an opportunity to defend

against the witness. See C.R.C.P. 26(a)(2)(B); Todd, 980 P.2d at

978-79.

¶ 25 Next, wife argues that although she had failed to disclose her

expert witness, the district court should have continued the

hearing. She asserts she had good cause for obtaining a

continuance and should have received another opportunity to

present the expert’s testimony.

¶ 26 A “[m]otion for [a] continuance[] of a hearing . . . shall be

granted only for good cause.” C.R.C.P. 121 § 1-11. Whether “to

grant or deny a request for a continuance is left to the sound

discretion of the trial court.” Todd, 980 P.2d at 976. When

evaluating good cause, a “trial court should consider ‘the

11 circumstances of the particular case, weighing the right of the party

requesting the continuance to a fair hearing against the prejudice

that may result from delay.’” Cherry Creek Sch. Dist. No. 5 v.

Voelker, 859 P.2d 805, 809 (Colo. 1993) (quoting Butler v. Farner,

704 P.2d 853, 858-59 (Colo. 1985)).

¶ 27 During the attorney fee hearing, wife’s counsel argued that

“making . . . an administrative mistake is good cause” for the

requested continuance. And on appeal, she argues that the filing

error constituted good cause for the continuance because “[t]he

attorney was unaware of the error until the day of [the hearing] and

thus could not have corrected it.” We disagree.

¶ 28 Errors in document filing are foreseeable, even if they only

happen rarely. And while wife’s counsel blames her paralegal for

the filing error — a practice of which we do not approve —

ultimately, it was counsel’s responsibility to ensure the correct

document was filed. See Goodman Assocs., LLC v. WP Mountain

Props., LLC, 222 P.3d 310, 319 (Colo. 2010) (noting that not having

an office system to ensure documents are processed correctly does

not constitute excusable neglect); Riggs Oil & Gas Corp. v. Jonah

12 Energy LLC, 2024 COA 57, ¶ 64 (addressing attorney’s misplaced

blame for a filing error on an assistant).

¶ 29 Regardless, the court did consider the circumstances of the

case and weigh the resulting prejudice from a continuance to each

party. The district court acknowledged that wife’s nondisclosure of

the witness appeared unintentional and acknowledged that wife

was requesting to continue the hearing based on the prejudice that

would result from excluding her sole witness. But the court also

recounted the history of the case, including that the permanent

orders hearing had been held “some time ago.” And it concluded

that, notwithstanding wife’s unintentional nondisclosure, it would

be inappropriate to allow additional time for a new hearing on

attorney fees.2

2 The court also expressed concern that it should not have

permitted a later hearing on the amount of attorney fees under section 14-10-119, C.R.S. 2025, citing C.R.C.P. 121, section 1-22 comment 2, and In re Marriage of Connerton, 260 P.3d 62, 67 (Colo. App. 2010). But both the comment and Connerton contemplate that a court can “order that the issue of attorney fees w[ill] be heard after the hearing.” Connerton, 260 P.3d at 67; C.R.C.P. 121, § 1-22(2) cmt. 2 (noting that a court can “otherwise order[]” that attorney fees be heard at a different time). Nonetheless, wife doesn’t claim that the court abused its discretion on this basis, so we don’t address it further. See Galvan v. People, 2020 CO 82, ¶ 45 (discussing party presentation principle).

13 ¶ 30 Although the district court did not fully detail the reasons for

its prejudice findings, we perceive no abuse of the court’s discretion

given that it examined the harm to husband arising from wife’s

complete nondisclosure, while also balancing the harm to wife

arising from denial of a continuance against setting a new attorney

fees hearing. See Cath. Health Initiatives Colo., ¶¶ 12-15; see also

Trattler v. Citron, 182 P.3d 674, 681 (Colo. 2008) (recognizing that

the complete failure to identify and disclose an expert witness may

justify precluding that witness from testifying (citing Todd, 980 P.2d

at 978)); People in Interest of C.L.T., 2017 COA 119, ¶ 36

(recognizing that the court’s findings may be implicit in its ruling).

We therefore cannot say that the district court abused its discretion

by denying wife’s requested continuance.

III. Disposition

¶ 31 The judgment is affirmed.

JUDGE DUNN and JUDGE LIPINSKY concur.