Marriage of Puckett

Opinion

25CA1033 Marriage of Puckett 08-27-2026 COLORADO COURT OF APPEALS

Court of Appeals No. 25CA1033 Douglas County District Court No. 21DR30509 Honorable Robert Lung, Judge Honorable Daniel Warhola, Judge

In re the Marriage of Rachel Puckett, Appellant, and Jeremiah Puckett, Appellee.

JUDGMENT AFFIRMED IN PART AND REVERSED IN PART, AND CASE REMANDED WITH DIRECTIONS

Division III

Opinion by JUDGE JOHNSON

Freyre and Kuhn, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced August 27, 2026

Márquez Law, Jason A. Márquez, Denver, Colorado, for Appellant Aitken Law, LLC, Sharlene J. Aitken, Denver, Colorado, for Appellee

¶1 In this dissolution of marriage case, Rachel Puckett (wife) appeals various aspects of the district court’s permanent orders, its order denying her motion for continuance, and its order requiring her to pay some of Jeremiah Puckett’s (husband) attorney fees.

¶2 Specific to the permanent orders, wife contends that the district court erred by (1) allocating the marital home when the court lacked jurisdiction over the property; (2) allocating her military retirement pension without considering whether the property was separate; (3) allocating certain personal property to husband; and (4) awarding maintenance to husband. We disagree that the district court’s denial of wife’s request for a continuance was error. We also disagree with wife that the court lacked jurisdiction over the marital home. And we decline to address wife’s other arguments related to permanent orders because they were not preserved. As for wife’s contentions relating to the court’s attorney fees award, we discern no abuse of discretion, except with respect to the attorney fees involving the permanent protection order hearing. Therefore, we reverse that portion of the attorney fees order. Otherwise, we affirm the district court’s judgment and orders.

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I. Background

¶3 Wife and husband filed for divorce in July 2021. They have one minor child born during the marriage. After a year and half of litigation between the parties, the court scheduled a permanent orders hearing via Webex (the court’s online platform) on February 6, 2023.

¶4 Wife filed a motion to continue that hearing in December 2022, which the court denied in a written order the following month. A few hours before the permanent orders hearing commenced, wife self-admitted to the emergency room. Because wife was not present online for the hearing, and her attorney was not authorized to proceed without her, he moved for a continuance on her behalf. Husband opposed; the court reviewed the record and denied the request. Wife’s attorney then signed off of Webex, and the hearing proceeded without any involvement from wife.

¶5 After hearing testimony from husband and his witnesses, the district court issued its permanent orders. Wife sought post-trial relief under C.R.C.P. 59 and 60, which the district court denied. Almost two years later, the court held a hearing on husband’s request for attorney fees. The court awarded husband most of his

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requested attorney fees under sections 14-10-119, C.R.S. 2025, and 13-17-102, C.R.S. 2025. Wife now appeals these orders.

II. Motion to Continue

¶6 Wife contends that the district court abused its discretion by denying her motion to continue. We disagree.

A. Standard of Review and Applicable Law

¶7 We review a district court’s ruling on a motion to continue for an abuse of discretion. Kallas v. Spinozzi, 2014 COA 164, ¶ 41. A court abuses its discretion if its decision is manifestly arbitrary, unreasonable, or unfair, or if it misapplies the law. In re Marriage of Young, 2021 COA 96, ¶ 7.

¶8 In determining whether to grant a continuance, a district court should consider the circumstances of the case, weighing the right of the party requesting the continuance to a fair hearing against the prejudice that might result from delay. Butler v. Farner, 704 P.2d 853, 858 (Colo. 1985).

B. Additional Facts

¶9 In wife’s motion to continue the permanent orders hearing, she alleged that (1) she had lost confidence in her attorney and, thus, retained new counsel on a limited basis to file the motion;

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(2) she objected to the Court Family Investigator’s (CFI) Report because the CFI had not interviewed her, the child, or taken into consideration relevant information from her tribal members or mental health experts; and (3) husband had a “pending criminal case” against him arising from the alleged possession and distribution of child pornography.

¶ 10 After briefing, the court denied the motion. In its order, the court reasoned that the request was done at the “11th hour.” And it found that, by wife’s own admission, she was having problems with her attorney for “at least the last six months” but waited until forty-seven days before the permanent order hearings to file the motion. It continued that wife had alleged husband was subject to criminal charges relating to child pornography, but no charges had been filed, so the court “question[ed] [wife’s] motivation.” And it acknowledged that, while wife’s allegation about the CFI was “a concern,” wife had not raised any of these issues in the eight months after the CFI filed her report. The court noted that the case and the parties’ child needed “finality, not delay,” and that the court’s docket would not allow for another permanent orders hearing until “November 2023 at the earliest.”

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¶ 11 The morning of the hearing, wife’s new attorney appeared on Webex and requested a continuance, representing that wife was in the hospital complaining of chest pain and an irregular heartbeat. He represented that he was not authorized to proceed without her if the court denied the continuance. The district court also denied this request, highlighting again, in part, the length of the case and wife’s actions throughout the litigation. It reasoned that, even though wife had established good cause for a continuance, after weighing the prejudice to wife due to her absence against the prejudice husband would suffer if a continuance was granted, the court determined it must deny the request. It stated,

[I]n light of the litigious nature of [wife], [and]

in light of the multiple times that she has made efforts to sidetrack or derail this case, I am going to deny the motion to continue. . . .

The prejudice against [husband], the prejudice against the child, and the litigious nature and the — all of the motions that she’s filed have been denied, although they all caused [husband] and really cost the child in those times, both the motion to restrict and the protection order, there’s too much damage to overlook in this case to say that the prejudice doesn’t outweigh the good cause claim today. I honestly don’t doubt that she’s in the hospital and she’s experiencing anxiety attacks and anxiety attacks feel like heart attacks. But this child deserves some sense of permanency.

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This case is 579 days old. And [because husband’s counsel went on] record that she cannot continue to represent this client and that [he] would have to go pro se [were the continuance granted], the prejudice [outweighs] the good cause allegation.

And it reasoned that granting the continuance would have resulted in a “nine-month delay,” which it found “unfair and inappropriate.”

¶ 12 Wife’s attorney signed off from Webex following the ruling, and the court proceeded with the permanent orders hearing without any evidence presented by wife. In the permanent orders, the court reaffirmed its belief that wife was “attempting to manipulate the system and unnecessarily expand[ing] this matter and prevent[ing] finality for this child” when it also denied her post-trial motions.

C. Analysis

¶ 13 We agree with the district court that wife established good cause for a continuance. Nonetheless, the district court did not abuse its discretion by denying the request when it concluded that the existence of good cause did not outweigh the prejudice that would have resulted to husband were it to grant the motion.

¶ 14 On appeal, wife contends that the district court abused its discretion because (1) she proved that she had a medical illness

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which caused her absence from the hearing, constituting good cause and, therefore, the court improperly relied on inaccurate facts or other circumstances from the course of litigation to base its ruling; (2) this was wife’s first request for a continuance; and (3) the court erred in the merits of the permanent orders. We address, and reject, each argument in turn.

¶ 15 First, it is true — as the district court found — that a litigant or attorney’s illness constitutes good cause to grant a continuance. See Todd v. Bear Valley Vill. Apartments, 980 P.2d 973, 977 (Colo. 1993) (holding that a movant’s medical condition constituted good cause as an unforeseen or exceptional circumstance under C.R.C.P. 121, § 1-11); see also Valley Nat’l Bank of Cortez v. Chaffin, 718 P.2d 259, 261 (Colo. App. 1986) (holding that a district court abused its discretion by denying the defendant’s motion to continue where the defendant was hospitalized the day before trial and a continuance would not have prejudiced the plaintiff).

¶ 16 But illness is just one factor. Wife has not cited any authority that a district court, when determining whether to grant a continuance, is limited to considering only the circumstances at the time of the request instead of looking to the overall record. Rather,

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the contrary is true. The supreme court has emphasized that “[t]he totality of the circumstances is relevant when determining whether the trial court committed an abuse of discretion by denying a continuance.” People In Interest of E.B., 2022 CO 55, ¶ 14 (quoting People in Interest of D.J.P., 785 P.2d 129, 131 (Colo. 1990)). Therefore, even if good cause exists, the court must look at the resulting prejudice, if any, to both parties. See D.J.P., 785 P.2d at 132.

¶ 17 Wife conflates her good cause argument with her contention that the district court relied on erroneous facts or irrelevant information. But the court’s findings, if not explicitly made, implicitly supported its consideration of prejudice. The district court found that husband would lose his attorney if the continuance was granted. There is evidence in the record that husband’s counsel indicated that husband could no longer afford representation if the permanent orders hearing was continued.

¶ 18 Second, wife’s claim that this was her first continuance is contrary to the record, as she filed a previous motion to continue in December 2023. Regardless, the court looked at the overall pattern of wife’s behavior throughout the case, including several of her

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motions which the court determined were an effort to sidetrack or derail the case. It looked at her various motions, such as trying to restrict husband’s parenting time, in part, based on allegations that “never came to fruition.” The court noted that wife “continue[d] to allege things that [were] completely false,” pointing to wife’s statement through her new attorney that “there [were] still pending criminal investigations involving [husband],” which was not true. Given this background, the court “strongly fear[ed] what [would] happen if [wife] [was] given even more time.”

¶ 19 We are not concluding that the court was correct to deny the various motions filed by wife attempting to restrict husband’s parenting time or other pretrial issues raised, which wife has not challenged on appeal. Rather, we cannot say the court abused its discretion by looking at wife’s litigious behavior to conclude that her illness — though demonstrating good cause — was insufficient to overcome the prejudice to husband if the continuance was granted. While wife may disagree with the court’s characterization of her actions or motivations, it is for the district court to assess credibility and weigh the evidence before it. In re Marriage of Thorburn, 2022 COA 80, ¶ 49.

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¶ 20 Third and finally, we reject wife’s claim that she suffered actual prejudice, proof of which must be established to prevail on a due process challenge. Wife raised this argument for the first time in her reply brief and, thus, we decline to address it on the merits. In re Marriage of Drexler, 2013 COA 43, ¶ 24; see also E.B., ¶ 17 (holding that when a defendant argues that the denial of a continuance violated their due process rights, “Colorado decisions have consistently recognized that a party may not obtain relief on an as-applied due process challenge absent a showing of harm or prejudice”) (quoting People in Interest of N.A.T., 134 P.3d 535, 539 (Colo. App. 2006)).

¶ 21 Wife’s attorney arguably raised a due process challenge to the continuance before the district court by referring to her Fourteenth Amendment right to present at the hearing. And while wife’s opening brief refers to her attorney’s argument below, she does not substantively address this point on appeal. Instead, she argued that she had proved good cause; that she, not husband was prejudiced; and that the court made erroneous findings. Therefore, we conclude that wife did not sufficiently raise a due process

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challenge in her opening brief to argue it on appeal, and as a result, we decline to address the argument further. See Drexler, ¶ 24.

¶ 22 When reviewing whether a court abused its discretion, the question presented to us is not whether we would have reached a different result. Rather, we must decide whether the district court’s decision was “based on credible evidence and that it did not ‘exceed[] the bounds of the rationally available choices.’” Churchill v. Univ. of Colo., 2012 CO 54, ¶ 74 (quoting Big Sky Network Canada, Ltd. v. Sichuan Provincial Gov’t, 533 F.3d 1183, 1183 (10th Cir. 2008)). Despite the court acknowledging wife’s illness as constituting good cause, we cannot say that it exceeded the bounds of the rational choices it was presented at the time when it denied the continuance after balancing the prejudice to both parties.

III. Allocation of Marital Property

¶ 23 Wife asserts that the district court erred in its property division because (1) it was without subject matter jurisdiction to allocate the marital home, as the parties agreed to submit disagreements over the home to binding arbitration; (2) an allocation of the marital home to husband was precluded by the law of the case and judicial estoppel; (3) it did not set aside her separate

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property — her military pension; (4) its findings allocating related personal property were contrary to the arbitration agreement; and (5) it did not make a finding of dissipation when it allocated the value of a checking account prior to withdrawals she made, rather than the value at the time of the permanent orders.

¶ 24 We disagree with wife that the court lacked jurisdiction to allocate the marital home to husband because she implicitly waived her right to arbitration. Even if wife had not preserved this argument, a party may challenge the court’s subject matter jurisdiction at any course of the proceeding, even on appeal. Tarco, Inc. v. Conifer Metro. Dist., 2013 COA 60, ¶ 14 (holding that an argument that the court lacked subject matter jurisdiction may be raised at any point, even on appeal for the first time). Therefore, we address this issue.

A. Marital Home

1. Standard of Review and Applicable Law

¶ 25 We review de novo whether a dispute falls within the scope of an arbitration clause. Taubman Cherry Creek Shopping Ctr., LLC v. Neiman-Marcus Grp., Inc., 251 P.3d 1091, 1093 (Colo. App. 2010). But whether a party’s conduct manifested an intent to waive an

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arbitration clause is a factual determination to be made by the district court. Norden v. E.F. Hutton & Co., Inc., 739 P.2d 914, 915 (Colo. App. 1987). And if there is support in the record for a district court’s factual determination, we will not disturb it on appeal. Id.

¶ 26 If an arbitration agreement is not waived and found to be valid and enforceable, it “divests a court of [subject matter] jurisdiction over all issues within the scope of the agreement.” Rains v. Found. Health Sys. Life & Health, 23 P.3d 1249, 1252 (Colo. App. 2001). Broad, unrestricted clauses mandating arbitration make the “strong presumption favoring arbitration [apply] with even greater force.” City & County of Denver v. Dist. Ct., 939 P.2d 1353, 1364 (Colo. 1997) (quoting 1 M. Domke, The Law of Practice on Commercial Arbitration § 12.05 (rev. ed. supp. 1993)). But, like any contractual right, a party may waive that right by taking actions that are inconsistent with an arbitration provision and that will prejudice the other party. In re Marriage of Popack, 998 P.2d 464, 467 (Colo. App. 2000).

2. Additional Facts

¶ 27 The parties signed a memorandum of understanding (MOU) in June 2022. The district court adopted it “as an Order of the Court”

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the following month. Relevant here, the MOU provided that the parties’ marital home was to be listed for sale within forty-five days after the agreement was signed, both parties were to timely sign a listing agreement, and that any disputes involving any aspect of the sale of the home, other than the disposition of proceeds from the sale, needed to be submitted to binding arbitration with an agreed- upon arbitrator.

¶ 28 At the permanent orders hearing, the district court accepted husband’s testimony that the marital home was valued at $670,000 and allocated it to him. The district court acknowledged the existence of the MOU but found that the parties “did not comply” with it “as evidenced by [husband]’s testimony” at the hearing. Husband testified that wife requested to use three people she knew to sell the home and that those individuals either backed out or failed to follow through. As part of wife’s post-trial motion, she raised the argument that the court lacked jurisdiction over the martial home because of the MOU. The court disagreed, finding that it had “no other option than to find that [the MOU] was abandoned and waived.” As a result, the district court held that it retained jurisdiction to allocate the marital home to husband.

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3. Analysis

¶ 29 It is not in dispute that the MOU was a valid, enforceable agreement adopted by the district court, which contained a mandatory arbitration provision concerning all disputes relating to a potential sale of the marital home. Therefore, unless wife waived her arbitration rights through her conduct during the litigation (as she never expressly waived her right to mandatory arbitration regarding the sale of the home), the district court may have been without subject matter jurisdiction to allocate the home to husband. Rains, 23 P.3d at 1252; Popack, 998 P.2d at 467.

¶ 30 Initially, we note that wife makes no argument on appeal to rebut the court’s finding that she implicitly waived the MOU by not complying with its terms. Nonetheless, we must assure ourselves that the district court had subject matter jurisdiction to allocate the marital home. See Horton v. Suthers, 43 P.3d 611, 615 (Colo. 2002) (“Jurisdiction is not conferred or taken away from a court based on the position of a party regarding the court’s jurisdiction; instead, jurisdiction concerns the court’s authority to decide the class of cases in which it renders judgment and is determined as a matter of law.”) (quoting Winslow Constr. Co. v. City & County of Denver, 960

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P.2d 685, 690 (Colo. 1998)). We conclude that the district court’s factual findings are supported by the record for four reasons.

¶ 31 First, although we acknowledge that husband’s testimony on this topic was thin, there is record support that the house was not listed by the parties within the time period required by the agreement, and nothing in the record suggests that wife took any steps to enforce her arbitration rights when a realtor had not been engaged, the house had not been listed, or a sale had not proceeded. Husband testified about three people — who his wife knew — contacting him, and that he signed a listing agreement with one of them, but then never heard from the agent again. Because a court may accept all, some, or none of a witness’s testimony, see In re Marriage of Salby, 126 P.3d 291, 298 (Colo. App. 2005), and there is record support that the parties did not seek to enforce their rights under the MOU, we cannot disturb this court’s finding on appeal. Norden, 739 P.2d at 915.

¶ 32 Second, wife did not raise any of her concerns about husband’s lack of compliance with the MOU to the district court in her motion to continue filed in December 2022. Acting consistently with her right to arbitrate would have involved informing the court

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that husband had not complied with the MOU, despite her efforts to engage a realtor, and taking her disputes, if any, to the arbitrator. Wife did not take these actions.

¶ 33 Third, wife and husband filed a joint trial management certificate just days before the permanent orders hearing on January 30, 2023. In it, she asserted that the “parties own a marital home valued at about $785,000.” She requested 50% of the equity allocated to her. At no time before trial did she inform the court that the house had not been sold — which she certainly would have known just days before the permanent orders hearing. Nor did she inform the court that she was seeking to enforce her rights under the MOU for the house to be sold so that a portion of the equity could be allocated to her, or that she had taken any issue with husband’s unwillingness to sell the home through arbitration.

¶ 34 In short, by not actively submitting any issues about the sale of the marital home to arbitration or notifying the court about those issues, wife’s conduct demonstrated that she was acting inconsistent with the MOU such that her right to mandatory arbitration was waived. Popack, 998 P.2d at 467.

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¶ 35 Fourth and finally, as it relates to prejudice to the other party, wife asserts that husband lived in the house and therefore had exclusive access to prepare it for sale. In other words, wife appears to argue that husband prevented the sale of the home by not cooperating with the real estate agents such that she, not husband, was prejudiced. But again, she could have raised these concerns by taking them to arbitration. And she offered no evidence in her post-trial motion or on appeal that she took any dispute to arbitration. The court implicitly found, by awarding husband the home, that husband would be prejudiced by selling the home because the child continued to reside there, despite the parties’ purported agreement to sell it. Therefore, we conclude the court did not err by finding that the parties had waived their rights under the MOU and that the court had subject matter jurisdiction to allocate the marital home by awarding it to husband.

B. Remaining Contentions

¶ 36 Because we affirmed the district court’s denial of wife’s request for a continuance, we would usually proceed to address her other arguments. But we also conclude that wife did not sufficiently preserve her arguments on the other issues she raises related to the

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division of marital property. Therefore, we decline to address them. In re Marriage of Atencio, 47 P.3d 718, 722 (Colo. App. 2002) (concluding that we do not address contentions which are raised for the first time on appeal and, thus, are unpreserved).

IV. Maintenance

¶ 37 Wife contends that the district court erred by ordering her to pay husband $1,292 per month in spousal maintenance. Wife only noted in the joint trial management order that she is “reserving the issue of maintenance.” Because this did not sufficiently preserve any argument opposing the award of maintenance to husband, we decline to address it. Id. at 722.

V. Attorney Fees

¶ 38 Wife contends that the district court erred by awarding attorney fees to husband because (1) husband had not adequately preserved the issue in the joint trial management certificate; (2) the court had already awarded husband attorney fees through the division of property, as husband listed his attorney fees as debts; (3) the court’s finding of financial disparity was in error; and (4) the court’s findings that wife engaged in groundless and frivolous

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litigation were inaccurate and unsupported by the record. We address each argument in turn.

A. Standard of Review

¶ 39 We review attorney fees awards for an abuse of discretion. Davis v. GuideOne Mut. Ins. Co., 2012 COA 70M, ¶ 85. A court abuses its discretion if its decision is manifestly arbitrary, unreasonable, or unfair, or if it misapplies the law. Young, ¶ 7.

B. Additional Facts

¶ 40 In the parties’ joint trial management certificate filed before the permanent orders hearing, husband requested $50,000 in attorney fees based on the expanded litigation including the need to litigate child prevention abduction procedures, defend against a protection order, and defend against allegations of possession of child pornography. Although husband alleged wife’s actions were groundless and frivolous, he did not specifically request fees under section 13-17-102.

¶ 41 At the permanent orders hearing, husband testified about the attorney fees he incurred in connection with this case. He discussed how he went from having zero debt, besides his car and

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mortgage, in the beginning of the case to over $100,000, which accounted for having to defend against the expanded litigation.

¶ 42 While the court awarded husband attorney fees, it noted that it did not have an affidavit detailing the amounts. At the request of the court, husband’s counsel prepared an attorney fees affidavit.

¶ 43 Following failed mediation on the issue of attorney fees, the court scheduled a hearing. The parties filed a second joint trial management certificate in which wife alleged husband had not preserved the issue of fees because he had not complied with the court order by detailing the fees incurred at the permanent orders hearing and had not provided notice to wife that he would seek fees under section 13-17-102. The court issued an oral ruling and later a written order incorporating its oral ruling.

¶ 44 The district court awarded husband attorney fees totaling $82,926.66 under sections 13-17-102 and 14-10-119. Of the total, the court awarded $67,113.16 based on its consideration of the financial resources of the parties and husband’s attorney fees incurred during the permanent orders hearing under section 14-10- 119. The remainder of the award was based on its conclusion that some of wife’s litigation conduct was frivolous, groundless, and

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vexatious under section 13-17-102. Specifically, the court found that wife’s post-trial motion, a permanent protection order she sought, and a criminal allegation she brought against husband were all frivolous, groundless, and vexatious. And the district court also awarded husband attorney fees he incurred after his counsel drafted an attorney fees affidavit and exhibits in response to the court’s request after the permanent orders hearing.

C. Preservation

¶ 45 Wife argues that the court “made erroneous findings that attorney’s fees were adequately addressed in the joint trial management certificate [filed before permanent orders] and that sufficient grounds existed to award [h]usband fees.” At the attorney fees hearing, wife’s counsel contended that husband never specified whether he sought fees under section 13-17-102.

¶ 46 “An issue is preserved for appeal when it is brought to the court’s attention and the court ruled on it.” In re Marriage of Turilli, 2021 COA 151, ¶ 12.

¶ 47 Section 14-10-119 authorizes a district court to award attorney fees after considering the parties’ financial resources. Section 13-17-102(2) authorizes a court to award attorney fees

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against a party who has brought or defended an action that the court determines lacked substantial justification. An action lacks substantial justification if it is frivolous, groundless, or vexatious. § 13-17-102(4). A claim is groundless if not supported by any credible evidence, frivolous if the proponent can present no rational argument based on the evidence or law in support of the claim, and vexatious if brought or maintained in bad faith to annoy or harass another. Bd. of Comm’rs v. Eason, 976 P.2d 271, 273 (Colo. App. 1998); Consumer Crusade, Inc. v. Clarion Mortg. Capital, Inc., 197 P.3d 285, 289 (Colo. App. 2008).

¶ 48 At the permanent orders hearing, the court acknowledged that husband requested attorney fees in the joint trial management certificate and that it heard husband’s testimony at the permanent orders hearing, reserving ruling on an amount until it received an affidavit.

¶ 49 At the attorney fees hearing, the court ruled that the joint trial management certificate before the permanent orders hearing included a request for attorney fees. The court further ruled that, because the court at the permanent orders hearing did not limit its award of attorney fees under title 14, both section 14-10-119 and

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section 13-17-102 were “at play in this case and in this hearing [] today.”

¶ 50 We conclude that the court’s ruling is not an abuse of discretion. At the permanent orders hearing when addressing attorney fees, the court specifically noted the award of fees under section 14-10-119. Although it did not specifically reference section 13-17-102, it made statements implying that it considered that some of the attorney fees may fall under that statutory provision. It discussed wife’s motion to restrict parenting time and said it could not remember whether it made findings regarding it being substantially frivolous, substantially groundless or substantially vexatious, which is the mandatory language under 14-10-129(5), suggesting that the court might be considering fees under section 13-17-102.

¶ 51 The permanent orders court also noted a contested civil protection order filed by wife and denied by the court, in which it specifically noted, “I am mindful that [section] 14-10-119 doesn’t regard a punitive award of attorney’s fees.” It also found that it was wife, not husband, “who protracted the litigation in this case.” The court finished by “awarding attorney’s fees in favor of [h]usband

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against [w]ife in light of the litigation in this case, [and] the [financial] disparity.” Therefore, the permanent orders court was apportioning out wife’s litigious and unwarranted behavior separately from attempting to equalize the financial positions of the parties. See In re Marriage of Anthony-Guillar, 207 P.3d 934, 944- 45 (Colo. App. 2009) (noting that under section 14-10-119, a district court “may consider a party’s actions in initiating unwarranted proceedings when determining whether to award attorney fees. However, the award should be primarily based upon the purpose of apportioning the costs and fees of an action equitably between the parties and not as a means of punishing a party.”) (quoting In re Marriage of Trout, 897 P.2d 838, 840 (Colo. App. 1994)).

D. Attorney Fees Awarded as Part of Division of Property

¶ 52 Next, wife asserts that the court essentially awarded husband his attorney fees twice, as husband testified that his fees were debt that he had accumulated throughout the litigation and the court, at the permanent orders hearing, reimbursed him his fees through the division of property. We disagree.

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¶ 53 At permanent orders, the court reviewed both parties’ proposed division of property spreadsheets and excluded certain family loans and debts that suggested payment of attorney fees. Wife contends that husband’s $60,241 in credit card debt identified by the court represented payment of his attorney fees, and by ordering wife to transfer $50,000 from her Thrift Savings Plan (TSP) to husband, she was paying his attorney fees twice. At the attorney fees hearing, wife had an attorney qualified as an expert in attorney fees issues. The expert opined that wife was double paying husband based on the $50,000 TSP transfer. When asked if wife felt she was paying husband’s attorney fees based on the division of debt, she responded, “definitely” and noted that she was paying nearly “3,000 a month.”

¶ 54 When delineating its award of attorney fees, the attorney fees court indicated that it was awarding $67,113.16 to husband for his attorney’s representation in the permanent orders hearing. The court explained that it arrived at the number by taking $111,071.16 — the total amount husband requested through the permanent orders hearing — and “subtract[ing] all the other expenses related to representing [husband] that were not the permanent orders

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hearing.” The court further found that it awarded this amount under section 14-10-119 based on the financial disparity between the parties. The court referred to the finding at permanent orders that wife made 61% of the income and husband 39%.

¶ 55 The attorney fees court never made a specific finding rejecting wife’s argument that she was paying double for husband’s attorney fees because of the $50,000 TSP transfer. And counsel for wife never asked for clarification on how the court arrived at the $67,113.16 number, even though it did ask clarifying questions about the figure based on other grounds.

¶ 56 Although the court did not make specific findings rejecting this argument, we conclude that by awarding the $67,113.16, it implicitly adopted the permanent orders court’s findings that the division of property excluded any attorney fee costs. See Foster v. Phillips, 6 P.3d 791, 796 (Colo. App. 1999) (holding that while “it is the better practice to make express findings, they may be implicit in a court’s ruling”). Specifically, the permanent orders court found that “Husband [was] carrying a massive amount more debt than he had previously as a result, certainly, of this litigation, and becoming the sole supporter of the minor child in recent months.” This

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suggests that the permanent orders court recognized that there were two buckets of debt — living expenses and attorney fees — and the attorney fees court viewed the evidence in that light.

E. Financial Disparity

¶ 57 We discern no abuse of discretion in the attorney fees court finding the parties’ financial disparity justified its award of attorney fees for $67,113.16 to husband. As discussed above, the court found that wife made the majority of the income during the marriage. Wife asserts that any financial disparity between the parties was equalized by the court’s division of property and award of maintenance and child support. Specifically, she argued that, when considering the tax on her TSP withdrawal and the fact that her military pension was not considered separate property, she received only 15% of the marital estate.

¶ 58 But although the attorney fees hearing was held almost a year and a half later, the court must consider the financial circumstances of the parties at the time the decree entered when awarding fees under section 14-10-119. See In re Marriage of Martin, 2021 COA 101, ¶¶ 38-39. Because the court awarded the $67,113.16 for attorney fees for pretrial and permanent orders

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matters, the court did not err by considering the financial circumstances of the parties at the time of the decree. Id.

F. Fees under Section 13-17-102

¶ 59 The attorney fees court addressed the fees under wife’s specific challenges and found that husband was entitled to fees under section 13-17-102 based on the following categories: (1) post-trial motion ($4,515.50); (2) the permanent protection order ($6,578); (3) the allegations of criminal conduct ($920); and (4) other associated expenses of litigation, such as the attorney fee affidavit with the abduction hearing ($3,800).

¶ 60 Wife failed to develop any substantive argument challenging the award of attorney fees under section 13-17-102, except for the court’s award relating to the permanent protection order. We address that issue but decline to address the remainder of her contentions. See Woodbridge Condo. Ass’n v. Lo Viento Blanco, LLC, 2020 COA 34, ¶ 41 n. 12 (holding that we do not consider arguments that are unsupported or undeveloped).

¶ 61 The judge who presided over the permanent protection order hearing determined that, after hearing from wife, husband, and wife’s mother, he could find no basis to convert the temporary

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protection order into a permanent one. The court further found that the allegations were all based on he said-she said and that, although allegations of threats were supposedly made by husband to wife, the court could not find under the preponderance of the evidence that “you are done” was a threat sufficient to enter a permanent protection order. In denying the grant of a permanent protection order, the court noted that it would reserve ruling on a request for attorney fees at the permanent orders hearing.

¶ 62 The attorney fees court indicated that it had reviewed the permanent protection order hearing transcript and adopted the finding that, because the court did not find sufficient evidence to warrant a protection order, wife’s request had been frivolous and groundless. We reach the opposite conclusion.

¶ 63 We acknowledge that both the permanent orders court and attorney fees court looked at wife’s conduct throughout the litigation for many of their findings. But our read of the court’s transcript denying the permanent protection order does not contain any suggestion that the permanent orders court was contemplating an award of fees under section 13-17-102. True, it had reserved any request for attorney fees to the permanent orders hearing. But

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unlike other indications in the record where the court made findings to suggest it was considering section 13-17-102 as the basis of a future award, none exist in the permanent protection order transcript.

¶ 64 Indeed, the permanent protection order court made extensive findings that it was able to observe the parties while testifying on Webex, that the parties were not “obstructive or avoiding examination,” and that the court did not think “either of them were trying to pull a fast one.” In our view, simply denying the request for a permanent protection order because a party failed to meet its burden of proof is critically different from making a finding that a party engaged in conduct warranting attorney fees under section 13-17-102. Therefore, even though wife’s conduct might have been found to be frivolous, groundless, or vexatious during certain aspects of the litigation, the record contains no such finding — implicit or otherwise — supporting fees under that statutory provision for this particular hearing. As a result, we reverse the attorney fees order in the amount of $6,578. But we affirm the remainder of the court’s attorney fees order.

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VI. Husband’s Request for Appellate Attorney Fees

¶ 65 Husband requests his appellate attorney fees under both section 13-17-102 and 14-10-119.

¶ 66 Husband asserts that wife’s appeal is frivolous and groundless because wife (1) misstates or mischaracterizes the record; (2) did not comply with the appellate rules, adding more work for husband’s attorney; (3) filed a premature notice of appeal, necessitating further attorney fees; and (4) engaged in frivolous and groundless conduct throughout the litigation. Even though wife did not prevail in her appeal and her arguments were, at times, difficult to discern, we cannot say her appeal was groundless or frivolous. As a result, we deny husband’s request for an award of his appellate attorney fees under section 13-17-102.

¶ 67 As to his request for attorney fees under section 14-10-119, we are not in a position to know the parties’ current financial circumstances and whether a disparity between them still exists. Therefore, we remand the case to the district court to determine the parties’ relative financial circumstances at that time. See Martin,

¶ 42.

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VII. Conclusion

¶ 68 The district court’s judgment is affirmed. The attorney fees order is reversed in the amount of $6,578 but is affirmed in all other respects. We remand the case to the district court to consider husband’s request for his appellate attorney fees under section 14- 10-119.

JUDGE FREYRE and JUDGE KUHN concur.