25CA0978 Marriage of Nash 05-07-2026
COLORADO COURT OF APPEALS
Court of Appeals No. 25CA0978 Larimer County District Court No. 19DR30162 Honorable Susan Blanco, Judge
In re the Marriage of
Anne Dixon McKay Nash n/k/a Anne Dixon McKay,
Appellee,
and
Benjamin Clarke Nash,
Appellant.
APPEAL DISMISSED IN PART, ORDER AFFIRMED, AND CASE REMANDED WITH DIRECTIONS
Division VI Opinion by JUDGE GROVE Yun and Schock, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced May 7, 2026
Rice Law Office, P.C., Jennifer L. Rice, Fort Collins, Colorado, for Appellee
Benjamin Clarke Nash, Pro Se ¶1 Benjamin Clarke Nash (father) appeals the district court’s
orders affirming a contempt ruling entered by a district court
magistrate and awarding attorney fees to Anne Dixon Nash n/k/a
Anne Dixon McKay (mother). We dismiss the appeal in part as
untimely filed and otherwise affirm. We also award mother her
attorney fees and costs on appeal under C.A.R. 39.1 and 39(c)(1)
and remand the case to the district court for the calculation of that
award.
I. Background
¶2 Mother and father married in 2013. Mother is a former art
teacher who has not worked full-time since having the couple’s two
minor children. Father is a licensed Georgia attorney currently
pursuing a different career. Mother filed for dissolution of the
marriage in May 2019.
¶3 During the dissolution proceedings, a district court magistrate
entered temporary orders dividing the couple’s financial obligations.
Among other things, the magistrate ordered father to pay “property
taxes on all real property,” including the jointly owned marital
home.
1 ¶4 In June 2021, the district court entered permanent orders on
the petition for dissolution of the marriage. As relevant here, the
court (1) awarded mother the marital home; (2) ordered father to
maintain a life insurance policy with both children named as
beneficiaries and to provide mother proof of the policy within thirty
days; and (3) ordered father to pay back taxes owed to the State of
Georgia within thirty days.
¶5 Two years later, mother moved for remedial contempt
sanctions. In part, she alleged that father had failed to: (1) pay the
2020 property taxes on the marital home as had been required by
the court’s temporary orders; (2) provide proof of the life insurance
policy; and (3) pay the Georgia back taxes. In a written order
issued on March 20, 2024, a magistrate held father in contempt of
court orders based on all three of mother’s claims. The magistrate
granted mother’s request for attorney fees and costs in connection
with the contempt proceedings.
¶6 What followed was a lengthy series of motions and petitions for
review filed by father that repeatedly challenged the magistrate’s
contempt sanctions; a May 14, 2024, district court order upholding
those contempt sanctions; and various resulting awards of attorney
2 fees to mother. As described in more detail below, the district court
affirmed the contempt sanctions numerous times and subsequently
affirmed or granted multiple awards of attorney fees to mother
related to each of father’s challenges.
¶7 Father now appeals, arguing the district court erred when it
upheld (1) the contempt sanctions and (2) awarded attorney fees to
mother. Before turning to the merits of father’s arguments,
however, we must first consider whether we have jurisdiction to
address all of father’s appellate contentions.
II. Timeliness of Appeal
¶8 In his opening brief, father challenges the merits of both the
March 20, 2024, magistrate order issuing contempt sanctions and
the subsequent May 14, 2024, district court order upholding the
magistrate order. Father also challenges three separate attorney fee
awards that stem from that contempt order: (1) $5,690.13 awarded
by the magistrate and affirmed by the district court on March 10,
2025; (2) $2,923.32 awarded by the district court on January 7,
2025; and (3) another $1,665 awarded by the district court on April
14, 2025.
3 ¶9 We are unable to address father’s merits claims and his
challenge to the first two attorney fee awards because father did not
timely appeal those orders.
A. Applicable Law and Standard of Review
¶ 10 In civil cases, appellate jurisdiction is limited by several rules,
two of which are relevant to our analysis. First, a final judgment or
order is a prerequisite to appellate review. C.A.R. 1(a)(1); L.H.M.
Corp., TCD v. Martinez, 2021 CO 78, ¶ 14. Second, the notice of
appeal must be timely; here, the applicable rule required filing
“within 49 days after entry of the judgment, decree, or order being
appealed.” C.A.R. 4(a)(1); Stone Grp. Holdings LLC v. Ellison, 2024
COA 10, ¶ 16.
¶ 11 An order is final when it ends the action at issue and leaves
nothing further for the court pronouncing the order to do to
determine the parties’ rights. Camp Bird Colo., Inc. v. Bd. of Cnty.
Comm’rs, 215 P.3d 1277, 1281 (Colo. App. 2009); People in Interest
of M.R.M., 2021 COA 22, ¶ 13; see also People v. Maes, 2024 CO 15,
¶ 13 (explaining that a magistrate’s order becomes final when it
fully resolves an issue or claim).
4 ¶ 12 An award of attorney fees, however, is separate from a final
order on the merits. Kennedy v. Gillam Dev. Corp., 80 P.3d 927,
929 (Colo. App. 2003); see also L.H.M. Corp., TCD, ¶ 2 (“A judgment
on the merits is final for purposes of appeal notwithstanding an
unresolved issue of attorney fees.”). Moreover, where the district
court has granted attorney fees in its order on the merits but has
deferred ruling on the amount of the award, the issue related to
attorney fees is final after the award is reduced to a sum certain.
See In re Marriage of Nelson, 2012 COA 205, ¶¶ 10-18; Stone Grp., ¶
18 (“To be considered final, a judgment or order must address both
liability and damages and damages must be reduced to a sum
certain.” (citations omitted)).
¶ 13 We review jurisdictional questions de novo. Springer v. City &
County of Denver, 13 P.3d 794, 798 (Colo. 2000). If an appeal is
untimely, we lack jurisdiction to hear it. People in Interest of A.J.,
143 P.3d 1143, 1146 (Colo. App. 2006).
B. Father’s Untimely Contentions
¶ 14 The following timeline covers the proceedings relevant to
father’s challenge to the merits of the contempt order and the
5 district court order, as well as his contention that the magistrate
erred by awarding $5,690.13 in attorney fees to mother.
(1) On March 20, 2024, the magistrate ordered contempt
sanctions against father and granted mother her
associated attorney fees.
(2) On May 14, 2024, the district court denied father’s
petition for review of the magistrate’s order and affirmed
the magistrate’s order.
(3) On February 12, 2025, the magistrate reduced its
attorney fee award to a sum certain, determining that
father owed mother $5,690.13 in attorney fees related to
the contempt sanctions.
(4) On February 14, 2025, father filed a second petition for
review that challenged, in part, the merits of the
magistrate’s order and its award of attorney fees.
(5) On March 10, 2025, the district court denied father’s
second petition for review.
(6) Father filed his notice of appeal on May 28, 2025.
¶ 15 Father’s claims concerning the merits of the March 20, 2024,
magistrate order and the May 14, 2024, district court order, along
6 with the magistrate’s $5,690.13 award of attorney fees all became
final on March 10, 2025, when the district court denied father’s
second petition for review. At that point, nothing remained for the
district court to do with respect to the orders and associated
attorney fee award. See Camp Bird Colo., Inc., 215 P.3d at 1281.
Father’s deadline to file an appeal on these claims was consequently
April 28, 2025. See C.A.R. 4(a)(1). Because father filed his appeal a
month after that — on May 28, 2025 — his appeal is untimely and
we lack the jurisdiction to hear it.
¶ 16 The following timeline covers the proceedings relevant to
father’s challenge to the district court’s $2,923.32 attorney fee
(1) On May 14, 2024, the district court denied father’s
petition for review of the magistrate’s order, affirmed the
magistrate’s order, and awarded its own associated
attorney fees to mother.
(2) On January 7, 2025, the district court reduced its award
of attorney fees granted in the May 14, 2024, order to a
sum certain, determining that father owed mother
$2,923.32.
7 (3) On February 14, 2025, father filed a second petition for
review that challenged, at least implicitly, the merits of
the contempt findings that ultimately led to the
$2,923.32 fee award. (As discussed above, father’s
second petition also challenged the attorney fee award
entered by the magistrate in connection with the
contempt proceeding).
(4) On March 10, 2025, the district court denied father’s
second petition for review and, later, awarded $1,665 in
separate, associated attorney fees to mother under
section 13-17-102, C.R.S. 2025.1
1 We recognize that when attorney fees are awarded as a remedial
contempt sanction under C.R.C.P. 107(d)(2), the “contempt order is not final until the attorney fees portion of the remedial sanction has been completely resolved.” In re Marriage of January, 2019 COA 87, ¶ 16. But in this case, the district court awarded fees against father pursuant to section 13-17-102, C.R.S. 2025, because it determined that father’s arguments in his petition for review and motion for reconsideration of the order denying father’s request to toll the appeal deadline were substantially frivolous, groundless, or vexatious. Thus, the magistrate’s contempt order was final and appealable on March 10, 2025, and the outstanding issue of attorney fees awarded under section 13-17-102 did not prevent that finality.
8 ¶ 17 Thus, father’s challenge to the district court’s award of
$2,923.32 in attorney fees related to its May 14, 2024, order was
final — at the latest — on March 10, 2025, when the district court
denied father’s second petition for review.2 Nothing then remained
for the district court to do. See Camp Bird Colo., Inc., 215 P.3d at
1281. Father’s deadline to file an appeal on these claims was
consequently April 28, 2025. See C.A.R. 4(a)(1). Because father
filed his appeal a month later — on May 28, 2025 — it is untimely
and we lack the jurisdiction to hear it.
III. Father’s Timely Contention
¶ 18 We turn next to father’s challenge to the district court’s April
14, 2025, award of attorney fees.
A. Timeline
¶ 19 The following timeline covers applicable proceedings related to
father’s challenge to the $1,665 award of attorney fees reduced to a
sum certain on April 14, 2025.
2 Mother asserts in her answer brief that the district court’s award
of $2,923.32, entered on January 7, 2025, was final and appealable when it was entered. That is certainly possible, but we need not address the issue further because, even if the attorney fee award became final on March 10, 2025, father’s appeal was untimely in any event.
9 (1) On June 18, 2024, father filed a notice of appeal of the
district court’s denial of his first petition for review,
including a claim disputing awards of attorney fees. This
court dismissed the appeal because not all fee awards
had been reduced to a sum certain and therefore father’s
appeal was not final.
of attorney fees granted in its May 14, 2024, order to a
sum certain, determining father owed mother $2,923.32.
At this point, the magistrate had not yet reduced the
award for the contempt proceeding to a sum certain.
(3) On February 3, 2025, father filed a motion in the district
court seeking to “toll the 49-day period to file a Notice of
Appeal,” noting that the magistrate had not yet
calculated a sum certain amount for the contempt fee
award and stating that he intended to challenge both the
merits and amount of that award on appeal. Tolling was
warranted, father argued, to avoid duplicative
proceedings.
10 (4) On February 12, 2025, the district court, citing Farm
Deals, LLLP v. State, Dep’t of Revenue, 300 P.3d 921,
923-24 (Colo. App. 2012), denied father’s tolling motion,
explaining that it “does not have authority to toll or
extend [appellate] deadlines.”
(5) That same day, the magistrate reduced its award of
attorney fees arising from the contempt proceeding to a
sum certain, ordering father to pay mother $5,690.13 in
attorney fees related to the contempt sanctions.
(6) On February 14, 2025, father filed a second petition to
review the magistrate’s award of attorney fees and a
motion for reconsideration of the district court’s order
declining to toll or extend his appellate deadline. Mother
opposed both filings and requested an award of attorney
fees as a sanction.
(7) On March 10, 2025, the district court denied father’s
second petition for review and motion for reconsideration
of the tolling order.
11 (8) In a separate order issued on March 13, 2025, the court
granted mother’s request for fees under section 13-17-
102.
(9) On April 14, 2025, the district court reduced its award to
a sum certain of $1,665 in attorney fees to mother in
connection with the March 10, 2025, order.
¶ 20 Because the sum certain was not calculated until April 14,
2025, father’s deadline to appeal was June 2, 2025. See C.A.R.
4(a)(1). Father filed his notice of appeal on May 28, 2025, making it
timely. We therefore address his claim below.
B. $1,665 Award of Attorney Fees
¶ 21 Father contends that the district court erred by awarding
$1,665 in attorney fees to mother based on its March 10, 2025,
order denying father’s second petition for review and accompanying
motion to toll appellate deadlines. We disagree.
1. Applicable Law and Standard of Review
¶ 22 A district court may award “reasonable attorney fees against
any attorney or party who has brought or defended a civil action,
either in whole or in part, that the court determines lacked
substantial justification.” § 13-17-102(2). A claim “lacks
12 substantial justification,” as the basis for an award of attorney fees,
when it is substantially frivolous, groundless, or vexatious. In re
Marriage of Roddy, 2014 COA 96, ¶ 34. A claim is frivolous if its
proponent can present no rational argument based on evidence or
law. W. United Realty, Inc. v. Isaacs, 679 P.2d 1063, 1069 (Colo.
1984). It is groundless if the argument is not supported by credible
evidence. Id. And it is vexatious if it is brought or maintained in
bad faith to annoy or harass another. Colo. Ethics Watch v. Senate
Majority Fund, LLC, 275 P.3d 674, 686 (Colo. App. 2010), aff’d,
2012 CO 12.
¶ 23 When awarding fees, the court “shall specifically set forth the
reasons for the award” and must consider a set of enumerated
factors, including “[w]hether or not the action was prosecuted or
defended, in whole or in part, in bad faith.” § 13-17-103(1)(e),
C.R.S. 2025. Bad faith may include conduct that is arbitrary,
abusive, stubbornly litigious, or disrespectful of the truth. City of
Black Hawk v. Ficke, 215 P.3d 1129, 1132 (Colo. App. 2008).
¶ 24 We review an award of attorney fees under section 13-17-102
for an abuse of discretion. In re Marriage of Ensminger, 209 P.3d
1163, 1165 (Colo. App. 2008). A court abuses its discretion where
13 its decision rests on a misunderstanding or misapplication of the
law, Genova v. Longs Peak Emergency Physicians, P.C., 72 P.3d 454,
458 (Colo. App. 2003), or is manifestly arbitrary, unreasonable, or
unfair, E-470 Pub. Highway Auth. v. Revenig, 140 P.3d 227, 230
(Colo. App. 2006).
2. Analysis
¶ 25 From what we can discern, father claims the court’s $1,665
award is unmerited because his arguments were supported by some
legal authority and therefore were not substantially frivolous or
groundless.
¶ 26 We conclude that the district court’s award of fees was an
appropriate exercise of its discretion. First and foremost, in the
district court, father pointed to no legitimate authority for his
repeated claims that the district court could toll appellate
deadlines. Father did not cite any law in his first such request but
instead simply asserted that “good faith” and “judicial economy”
merited the extension. In its first order denying the tolling request,
the court explained it lacked the “authority to toll or extend
deadlines for the Colorado Court of Appeals” pursuant to C.A.R. 4(a)
and directed father to binding appellate precedent supporting that
14 proposition. See Farm Deals, 300 P.3d at 924 (holding that there is
no mechanism for a trial court to extend a deadline for the
certification of an interlocutory appeal specified under the Colorado
Appellate Rules). In his motion for reconsideration, father
countered that C.A.R. 4(a)(4) “explicitly allows the [d]istrict [c]ourt to
extend the notice of appeal deadline upon a showing of excusable
neglect.” However, the rule actually states that “[u]pon a showing of
excusable neglect, the appellate court may extend the time to file the
notice of appeal.” Id. (emphasis added). And regardless, as the
district court explained in its first order denying father’s tolling
request, even if it did have the authority to toll the appellate
deadline, father “would have [had] to make a showing of excusable
neglect[,] . . . something he . . . also failed to do.”
¶ 27 The rest of father’s arguments regarding tolling were an
attempt to distinguish the holding in Farm Deals. But even here,
father’s analysis failed to show that the district court had authority
to toll appellate deadlines. Indeed, he cited additional cases that,
as the district court noted, “either [did] not exist, [did] not conclude
what [father] states, or [were] not relevant to the issue regarding
whether a [d]istrict [c]ourt can toll an appellate deadline.” Having
15 reviewed father’s motion to reconsider and the cases cited therein,
we agree that that even those citations that were legitimate3 were
not remotely supportive of his legal arguments.
¶ 28 As for father’s request that the district court reconsider its
earlier decision affirming the magistrate’s contempt order, his
second petition reiterated the arguments in his first petition nearly
verbatim. Because he presented no new arguments in his second
petition, we agree that the district court had already “addressed and
resolved” the issue and that there was no need to revisit it.
¶ 29 Given this context, combined with the history of the case, we
concur with the district court’s conclusion that father’s motions
“lacked substantial justification” and appeared to be part of a
vexatious “pattern of behavior where [father] asks for
reconsideration of any decision he does not agree with, despite legal
precedent.” We therefore affirm the district court’s April 14, 2025,
award of attorney fees against father in the amount of $1,665.
3 Although there is perhaps another explanation for father’s
citations of nonexistent cases, we observe that they bear many of the hallmarks of “hallucinations” that are a well-publicized problem associated with generative artificial intelligence large language models. See, e.g., Al-Hamim v. Star Hearthstone, LLC, 2024 COA 128, ¶¶ 25-35.
16 IV. Appellate Attorney Fees
¶ 30 Mother requests attorney fees on appeal. Because she
successfully defended the fee awards, we grant her request. See
Kennedy v. King Soopers Inc., 148 P.3d 385, 390 (Colo. App. 2006)
(“When a party is awarded attorney fees for a prior stage of the
proceedings, it may recover reasonable attorney fees and costs for
successfully defending the appeal.”); see also 1046 Munras Props.,
L.P. v. Kabod Coffee, 2025 COA 71, ¶ 39. We remand this matter to
the district court to determine and award mother her reasonable
appellate attorney fees and costs under C.A.R. 39.1 and C.A.R.
39(c)(1).
V. Disposition
¶ 31 We dismiss as untimely the portion of this appeal related to
the magistrate’s and district court’s orders issued on and before
March 10, 2025. We affirm the district court’s April 14, 2025,
award of $1,665 in attorney fees against father. We remand the
case for the district court to further calculate and award mother her
attorney fees and costs under C.A.R. 39.1 and 39(c)(1).
JUDGE YUN and JUDGE SCHOCK concur.