23CA1095 Marriage of Rios 12-19-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA1095 City and County of Denver District Court No. 19DR30421 Honorable Jill D. Dorancy, Judge
In re the Marriage of
Jennifer Kain Rios,
Appellant and Cross-Appellee,
and
Franklin Rios,
Appellee and Cross-Appellant.
ORDER AFFIRMED, APPEAL DISMISSED IN PART, AND CASE REMANDED WITH DIRECTIONS
Division III Opinion by JUDGE HAWTHORNE* Gomez and Richman*, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced December 19, 2024
Radeff & Hart, P.C., Chris Radeff, Drew Thomas, Golden, Colorado, for Appellant and Cross-Appellee
Sherman & Howard L.L.C., Jordan M. Fox, Natalie R. Whitacre, Denver, Colorado, for Appellee and Cross-Appellant
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2024. ¶1 In this dissolution of marriage proceeding between Jennifer
Kain Rios (wife) and Franklin Rios (husband), wife appeals the
district court’s order terminating husband’s maintenance obligation
for a period of four months. Husband cross-appeals, contending
that the court erred in awarding wife attorney fees as to a prior
appeal. Both parties request appellate attorney fees incurred in
this appeal.
¶2 We conclude that wife’s attempt to challenge the district
court’s order terminating husband’s maintenance obligation for the
four month period is untimely, thus we lack jurisdiction to address
her arguments. We affirm the court’s May 10 Order awarding
attorney fees to wife. And we remand the case to the district court
to determine the parties’ requests for appellate attorney fees in this
appeal under section 14-10-119, C.R.S. 2024.
I. Factual and Procedural History
¶3 In December 2019, the district court entered a dissolution
decree terminating the marriage between wife and husband. In
February 2020, the court entered permanent orders addressing the
parties’ incomes, as well as their assets and debts. The court found
that wife had an annual income of $75,000. Although husband was
1 unemployed at the time the permanent orders were entered, the
court imputed to him an annual income of $525,000 based on his
prior employment.1 Based on these findings, the court ordered
husband to pay wife $8,000 per month maintenance beginning
March 2020 and ending March 2033.
¶4 In April 2020, husband filed a motion asking the district court
to modify maintenance or alternatively to “place [it] in abeyance.”
The court summarily denied the motion. Husband appealed, and a
division of this court reversed the district court’s order and
remanded the case to the district court for a hearing on husband’s
motion and to consider wife’s request for appellate attorney fees. In
re Marriage of Rios, slip op. at ¶ 1 (Colo. App. No. 20CA1198, July
22, 2021) (not published pursuant to C.A.R.(e)).
¶5 The district court held a hearing on husband’s motion and
wife’s request for attorney fees. In an order entered on March 22,
2022 (the March 22 Order), the court ordered that husband’s
1 While husband disputes the manner in which the court
determined his income, another division of this court previously considered — and rejected — his arguments on this issue. In re Marriage of Rios, slip op. at ¶¶ 6-10 (Colo. App. No. 20CA1198, July 22, 2021) (not published pursuant to C.A.R.(e)).
2 maintenance be retroactively held in abeyance from May to August
2020, a period of four months. It also ordered wife to file an
affidavit of attorney fees within fourteen days of the order.
¶6 Wife filed her affidavits of attorney fees several days after the
court’s fourteen-day deadline. But, over husband’s objection, the
court accepted wife’s attorney fees affidavits. On August 10, 2022,
the court held a hearing on wife’s request, and it ordered husband
to pay all of wife’s appellate attorney fees.
¶7 Both parties filed motions seeking post-trial relief. Husband’s
motion asked the court to reconsider its decision awarding attorney
fees to wife, and wife’s motion asked the court to clarify its March
22 Order holding husband’s maintenance payments in abeyance for
the period of May to August 2020. In an order entered on May 10,
2023 (the May 10 Order), the court corrected an error in the
appellate attorney fees award to wife, but otherwise declined to
modify its ruling in the March 22 Order. Afterwards, wife appealed
and husband cross-appealed.
3 II. Appealability of the May 10 Order
¶8 As a threshold matter, the parties dispute which district court
order is the subject of this appeal, and whether that order is
properly before this court.
¶9 Wife argues that she is appealing only the May 10 Order. She
contends that the court erred in the May 10 Order by terminating
husband’s maintenance obligation for the four-month period
between May and August 2020. Husband argues that wife’s appeal
is actually attempting to challenge the court’s termination of his
maintenance obligation that was part of the March 22 Order. Thus,
husband asserts that wife’s appeal of the March 22 Order is
untimely.
¶ 10 In response, wife argues that the March 22 Order was not an
appealable final order until the district court issued its May 10
Order. Specifically, she argues that the court merely held
husband’s maintenance in “abeyance” for the four-month period; so
she could not appeal the order suspending husband’s maintenance
obligation until the court issued a “final order” terminating the
obligation in its May 10 Order.
4 ¶ 11 Because we conclude that wife’s appeal directly challenges the
March 22 Order — an order that she did not timely appeal — we
reject her argument. Thus, her attempt to appeal the March 22
Order is untimely and we decline to address her argument’s merits
because we lack jurisdiction to do so.2
A. Additional Facts
¶ 12 In its March 22 Order, the district court ruled on husband’s
motion to modify his maintenance obligation. As relevant here, it
stated:
[T]he Court does find it appropriate to hold the maintenance in abeyance for the time period between May 2020 and August 2020 while [husband] was not employed and collecting unemployment. The Court further finds that holding the maintenance award in abeyance is a reasonable and practical use of the court’s discretion and is warranted for that time period.
The Court finds that [husband] has demonstrated circumstances that warrant a retroactive abeyance of his spousal maintenance obligation. The Court therefore holds [husband’s] spousal maintenance
2 Husband argues that if we conclude that we have appellate
jurisdiction regarding the March 22 Order, we should also address the district court’s initial calculation and award of maintenance. Because we conclude that wife’s appeal of the March 22 Order is not properly before us, we need not reach this issue.
5 obligation in abeyance for the months of May 2020 through August 2020.
¶ 13 Following this ruling, wife did not file a motion for clarification
or an appeal regarding the court’s March 22 Order.
¶ 14 Later, during the August 10, 2022, hearing on wife’s request
for appellate attorney fees, the parties disagreed as to the March 22
Order’s effect on husband’s obligation to pay maintenance. Wife
argued that “abeyance doesn’t mean that [the maintenance] was
vacated, or that he no longer had to pay it.” The court responded
that “during the time period, I’m finding that he did not have the
ability to pay the 8,000. . . . I held it in abeyance, basically
meaning he doesn’t have to pay it for that time period even though
his economic circumstances were not substantial and continuing.”
The court also said that if wife was confused or if she disagreed
with the March 22 Order, she could have filed a motion or appeal.
But the court noted that wife “didn’t ask for clarification, you didn’t
ask for any, anything on it. You just came to me today, on the day
of the hearing, to tell me that that’s how you believe that [the March
22 Order] should be read.”
6 ¶ 15 In early January 2023, the district court issued its order
granting prior appellate attorney fees to wife in the amount of
$30,323. Wife filed a motion for post-trial relief asking the court to
reconsider or hold a hearing concerning its March 22 Order.
Husband also filed a motion for post-trial relief asking the court to
reconsider its award of appellate attorney fees to wife.
¶ 16 In the May 10 Order, the court rejected wife’s post-trial
motion, reiterating that “[a]beyance is simply a temporary
suspension of the payment activity during which time the payments
cannot continue.” It also restated its intent in issuing the order,
stating that the March 22 Order “was meant to be a temporary relief
wherein [husband] did not have to pay for those months but those
payments would resume. The abeyance means that the payments
are completely erased for that time period.” As to husband’s post-
trial motion, the court reduced the attorney fees awarded to
$29,488, but otherwise affirmed its prior order.
B. Analysis
¶ 17 “The timely filing of a notice of appeal is a jurisdictional
prerequisite to appellate review.” In re Marriage of Buck, 60 P.3d
788, 789 (Colo. App. 2002). A notice of appeal must be filed “within
7 49 days after entry of the judgment, decree, or order being
appealed.” C.A.R. 4(a)(1). If a timely post-trial motion is filed, the
time for filing the notice of appeal generally runs from the date the
district court decides the motion. Buck, 60 P.3d at 789.
¶ 18 The general rule requires an entire case to be decided before
any ruling in that the case may be appealed. Cyr v. Dist. Ct., 685
P.2d 769, 770 (Colo. 1984). “Our jurisdiction is limited to review of
final, appealable judgments or orders.” People in Interest of S.C.,
2020 COA 95, ¶ 6. A judgment is final and therefore appealable
when it disposes of the entire litigation on the merits, leaving
nothing for the court to do except execute the judgment. See In re
Marriage of Nelson, 2012 COA 205, ¶ 10. In an order that ends the
litigation on the merits but leaves the issue of unresolved attorney
fees to be decided, the issue “does not prevent finality if its
resolution will not alter the order or moot or revise decisions
embodied in the order.” Baldwin v. Bright Mortg. Co., 757 P.2d
1072, 1073 (Colo. 1988) (citing Budinich v. Becton Dickinson & Co.,
486 U.S. 196, 199 (1988)).
¶ 19 Although the district court recognized that both parties’ post-
trial motions were timely, neither post-trial motion affects our
8 analysis of wife’s argument on appeal. As relevant here, both post-
trial motions were filed in response to the district court’s order
issued in January 2023 that addressed wife’s request for appellate
attorney fees. Because the post-trial motions were not filed in
response to the March 22 Order, neither motion tolled the time
period for filing an appeal of that order.
¶ 20 Wife argues that, because the district court used the term
“abeyance” in the March 22 Order, it was not an appealable final
order until the court formally terminated husband’s maintenance
obligation in the May 10 Order. For several reasons, we are not
persuaded.
¶ 21 First, despite the court’s choice of words in the March 22
Order, the context in which the term “abeyance” was used revealed
the court’s intent. See Blecker v. Kofoed, 672 P.2d 526, 528 (Colo.
1983) (“When an order is ambiguous, the task of the reviewing
court is to determine what the trial judge intended in issuing the
order. To resolve an ambiguity, it is appropriate to refer to the
entire record and to the circumstances surrounding the order.”)
(citation omitted). We are not persuaded that the court’s using the
term “abeyance” was so unclear as to prevent wife from being
9 placed on notice that the court’s order fully resolved husband’s
maintenance issue.
¶ 22 Read in the context of the record as a whole, the court’s intent
in holding husband’s maintenance payments in “abeyance” was to
eliminate the payments for a limited period of time. Husband’s
initial motion seeking to modify maintenance or alternatively, place
it in abeyance, expressly asked that his “maintenance obligation . . .
be terminated or at least placed in abeyance until such time as he
c[ould] obtain replacement employment.” He explained that this
modification was necessary because — at the time — he had not yet
obtained employment, and his severance payments were ending.
And he asserted that he would no longer have an income to either
pay maintenance or meet his own needs.
¶ 23 Husband also cited In re Marriage of Fernstrum, 820 P.2d 1149
(Colo. App. 1991), to support his request. In Fernstrum, the court
held that the wife was eligible for maintenance; however, the court
directed the husband to pay $1.00 per year towards maintenance
“until such time as there is a positive change in his economic
financial situation so as to permit an increase in payment.” Id. at
1152. The court also noted that the $1.00 per year award was
10 intended to “reflect[] husband’s present poor economic situation,
but it has the effect of permitting an adjustment upward if future
circumstances require.” Id.; see also In re Marriage of Ward, 740
P.2d 18, 20 (Colo. 1987) (holding that maintenance could be
temporarily reduced to accommodate the husband’s present
economic difficulties).
¶ 24 Read in context, husband’s motion and the cases cited in it
reflect a request that husband be relieved of his maintenance
obligation until his financial circumstances improved. Indeed, the
Fernstrum court permitted a reduced maintenance payment until
there were positive changes in the payee’s financial situation. 820
P.2d at 1152. So, at a minimum, husband’s motion placed wife on
notice that he sought temporary elimination of his maintenance
obligations until he obtained employment.
¶ 25 Similarly, the court’s intent in using the term “abeyance” is
discernable from the March 22 Order’s text. In the March 22 Order,
the court explained how husband’s inability to find employment,
the end of his severance payments, and the adverse impact of the
COVID-19 pandemic on the economy were sufficient circumstances
to warrant a pause in spousal maintenance. The court, however,
11 limited the scope of its order by pausing the maintenance payments
for only the months of May to August 2020. This suggests that the
court recognized that husband’s inability to meet his own financial
needs necessarily required the court to grant husband a temporary
reprieve from his maintenance obligation. Also, nothing in the
court’s order provided or suggested that husband would be
responsible for paying the maintenance amounts held in abeyance
at a future date. Thus, the March 22 Order’s text itself placed wife
on notice that the order’s purpose was to temporarily eliminate
husband’s maintenance for a limited period of time.
¶ 26 Indeed, the court’s statements in later proceedings indicated
that it intended to eliminate husband’s maintenance obligation for a
period of time by entering the March 22 Order. At the August 10
hearing regarding wife’s request for appellate attorney fees, the
court said that the March 22 Order meant “that h[usband] did not
have the ability to pay the 8,000. . . . I held it in abeyance,
basically meaning that he doesn’t have to pay it for that time
period.” And in the May 10 Order, the court restated that the
March 22 Order’s purpose was to provide husband with temporary
relief from maintenance payments from May to August 2020, but
12 that those payments would resume after that period. The court
also reiterated that the term “abeyance means that the payments
are completely erased for that time period.” Although the court’s
statements occurred after the March 22 Order was issued, they
explain the court’s intent in issuing the order.
¶ 27 Second, even if the court’s use of the term “abeyance” was
unclear, wife had multiple opportunities to seek redress. But she
did not ask the court to clarify its language in the March 22 Order
(until much later), nor did she file a motion seeking clarification or
attempt to appeal the order. See People v. Shifrin, 2014 COA 14,
¶¶ 49-50 (finding no abuse of discretion where the defendant did
not seek clarification of the court’s order); Mailloux v. Bradley, 643
P.2d 797, 799 (Colo. App. 1982) (“The defendant did not object to or
seek clarification of the instruction as given, although he had the
opportunity to do so. Accordingly, since defendant failed to request
a clarifying instruction . . . , he is now in no position to complain.
We leave the defendant in the posture which he accepted and
placed himself.”) (citations omitted). Notably, wife did not seek
clarification of the March 22 Order after it was issued, nor did she
object or raise any concerns with the court indicating her confusion
13 about it. See People v. Cooley, 2020 COA 101, ¶ 20 (noting that
“[t]he purpose of the contemporaneous objection rule is to conserve
judicial resources by alerting the district court to a particular issue
in order to give the court an opportunity to correct any error that
could otherwise jeopardize a defendant’s right to a fair trial”). And,
as noted by the court, wife did not raise any concerns about the use
of “abeyance” in the court’s order until the August 10 hearing,
several months after the order was originally issued. The court also
noted that wife did not file any motions or appeals relating to the
order. So, even assuming that wife was confused about the intent
of the court’s March 22 Order, she did not take any action to place
the court on notice of any alleged error.
¶ 28 We therefore conclude that the March 22 Order constituted a
final appealable order. The order resolved the questions regarding
husband’s maintenance obligations and the only issue that
remained contested was wife’s request for attorney fees. See
Nelson, ¶ 18 (holding that “an order fully resolving a motion to
modify maintenance is a final appealable order, notwithstanding an
unresolved request for attorney fees”). Thus, if wife wished to
challenge the court’s March 22 Order, she was required to file a
14 timely appeal by May 10, 2022. See C.A.R. 4(a)(1) (“[T]he notice of
appeal required by C.A.R. 3 must be filed with the appellate court
with an advisory copy served on the lower court within 49 days
after entry of the judgment, decree, or order being appealed.”)
(emphasis added). Because wife did not timely appeal the March 22
Order, we lack jurisdiction to address her arguments.
¶ 29 Wife also contends that the district court’s March 22 Order
was not final for purposes of determining husband’s maintenance
obligation because the court did not conduct an accounting and
enter an order as to how much maintenance was over- or underpaid
to wife. However, this argument is unpersuasive because a
disagreement about whether a party has actually paid maintenance
does not affect the finality of the court’s order. Despite the parties’
disagreement as to the exact amount of maintenance paid, the
district court’s order detailed the precise amount and duration of
the maintenance. Thus, the court’s order was final.
III. Wife’s Request for Attorney Fees
¶ 30 On cross-appeal, husband argues that the district court erred
in granting wife’s request for appellate attorney fees she incurred in
the parties’ earlier appeal. We disagree.
15 A. Additional Facts
¶ 31 In its March 22 Order, the court ordered wife’s counsel to file
her affidavits of attorney fees within fourteen days. The court also
ordered that husband would have fourteen days after the affidavits
were submitted to object and request a hearing. Wife, however, did
not submit her affidavits regarding attorney fees until April 11,
2022, six days after the court’s fourteen-day deadline had passed.
Husband objected, arguing that the court should deny wife’s
request for attorney fees because she had not requested an
extension of time to file her affidavits and that she had missed the
court’s deadline. The court permitted wife to file her affidavits and
set the matter for a hearing.
¶ 32 On August 10, 2022, the court heard testimony and argument
regarding wife’s attorney fees request. In January 2023, the court
ordered husband to pay all of wife’s appellate attorney fees. The
court found that the rates charged were reasonable given the
attorneys’ specialized experience, the necessity of that specialized
experience in the case, and the prevailing market rates for similar
attorneys in the Denver area. Based on this information, the court
16 calculated the lodestar amount for wife’s appellate attorney fees to
be $30,323.
¶ 33 The court also considered the factors listed in C.A.R. 1.5 to
determine if an upward or downward adjustment to the lodestar
amount was necessary. Based on its review, it concluded that no
adjustment was necessary.
¶ 34 To ensure that a party does not suffer undue economic
hardship from the proceedings in a dissolution of marriage case, a
court may order a party to pay a reasonable amount for the other
party’s attorney fees and costs based on the parties’ relative
economic circumstances. § 14-10-119; In re Marriage of Gutfreund,
148 P.3d 136, 141 (Colo. 2006). To achieve this equitable purpose,
the trial court must consider the relative financial status of each
party. In re Marriage of Aldrich, 945 P.2d 1370, 1378 (Colo. 1997).
When assessing the reasonableness of the attorney fees a party
seeks to recover, the court must generally calculate a lodestar
amount, which represents the number of hours reasonably
expended on the case multiplied by a reasonable hourly rate. In re
Marriage of Aragon, 2019 COA 76, ¶¶ 9, 15. The lodestar amount is
17 a starting point, and it carries with it a presumption of
reasonableness. Id. at ¶¶ 15, 17. However, the court may adjust
the lodestar amount based on various factors. Id. at ¶ 15; see also
C.R.C.P. 1.5(a).
¶ 35 We review a trial court’s decision to award attorney fees and
costs for an abuse of discretion. In re Parental Responsibilities
Concerning M.E.R-L., 2020 COA 173, ¶ 33. A trial court abuses its
discretion when the court’s decision is manifestly arbitrary,
unreasonable, unfair, or based on a misapplication of law. In re
Marriage of Young, 2021 COA 96, ¶ 7. We may not disturb the
amount of fees awarded unless it is patently erroneous and
unsupported by the evidence. See Yaekle v. Andrews, 169 P.3d
196, 201 (Colo. App. 2007), aff’d on other grounds, 195 P.3d 1101
(Colo. 2008).
¶ 36 Husband contends that the district court lacked jurisdiction
over wife’s request for attorney fees because she failed to submit her
affidavits within the court’s stated deadline. He also argues that
the court erred under C.R.C.P. 6(b) by enlarging wife’s time to file
her affidavits without finding excusable neglect. We are not
18 ¶ 37 As relevant here, Rule 6(b) provides:
When . . . by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may, at any time in its discretion (1) with or without motion or notice, order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order or (2) upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect.
C.R.C.P. 6(b).
¶ 38 Husband argues that under Rule 6(b), “time may only be
extended after the expiration of the specified period ‘where the
failure to act was the result of excusable neglect.’” So, according to
husband, because wife did not raise and the court did not find
excusable neglect as justifying wife’s late filing of her affidavits, the
court was without discretionary authority to consider her request
for attorney fees.
¶ 39 This argument is misplaced because C.R.C.P. 121, section 1-
22 specifically addresses “requests for attorney fees made at the
conclusion of the action.” C.R.C.P. 121, § 1-22(2)(a).
19 ¶ 40 C.R.C.P. 121, section 1-22(2)(b) provides that “[a] party
seeking attorney fees under this practice standard shall file and
serve a motion for attorney fees within 21 days of entry of judgment
or such greater time as the court may allow.” (Emphasis added.)3
And another division of this court has considered and rejected the
argument that a trial court lacked authority to consider a late-filed
request for attorney fees. See In re Marriage of Wright, 841 P.2d
358, 361 (Colo. App. 1992) (holding that, even though the wife filed
her affidavit after the deadline established by C.R.C.P. 121, section
1-22, the rule permitted requests to be filed “within such greater
time as the court may allow”). Also, contrary to husband’s
assertion, a party’s failure to request an extension of time does not
preclude a court from considering a request for an award of costs
and fees which has been filed beyond the stated deadline. See
Parry v. Kuhlmann, 169 P.3d 188, 190 (Colo. App. 2007) (noting
3 While the district court set a fourteen day deadline for wife to file
her affidavits, C.R.C.P. 121, section 1-22(2)(b) permits a party to file their motion “within 21 days of judgment.” Here the relevant order was issued on March 22, 2022, and wife filed her affidavits on April 11, 2022 — twenty days after the order was issued. Thus, while not compliant with the text of the court’s order, she filed her affidavits within the twenty-one day deadline set by Rule 121.
20 that C.R.C.P. 121, section 1-22 “does not require a court to
determine that a filing made outside the [filing] period was
attributable to excusable neglect or to make any other findings such
as those required by C.R.C.P. 6(b)”); see also Koontz v. Rosener, 787
P.2d 192, 199 (Colo. App. 1989).
¶ 41 Husband’s reliance on Moyer v. Empire Lodge Homeowners’
Ass’n, 78 P.3d 313 (Colo. 2003), is also misplaced. That case
recognizes that a court does not necessarily abuse its discretion
when it denies an untimely bill of costs after the expiration of a
court-imposed deadline when the filing party did not request an
extension or demonstrate excusable neglect under C.R.C.P. 6(b).
Moyer, 78 P.3d at 315-16. Notably, Moyer does not require a court
to apply C.R.C.P. 6 when determining whether to accept requests
for attorney fees filed outside of the period imposed under C.R.C.P.
121, section 1-22.
¶ 42 We are also not persuaded by husband’s argument that the
district court abused its discretion in awarding appellate attorney
fees to wife.
¶ 43 As noted previously, the court considered wife’s affidavits and
the witnesses’ testimony during the August 10 hearing on attorney
21 fees. And it found that the attorney fees incurred by wife were both
necessary and reasonable, and that the fees were appropriate given
the litigation’s scope and complexity. In declining to depart from
the lodestar amount, the court considered and made specific
findings regarding each C.R.C.P. 1.5 factor. So we cannot conclude
that the district court abused its discretion in awarding wife’s
attorney fees request because its decision was not manifestly
arbitrary, unreasonable, or unfair, or based on misapplication of
the law.
¶ 44 As to husband’s other assertions of error, we are not
persuaded. Husband argues that the court erred by refusing to
adjust the lodestar amount when wife’s counsel admitted to making
errors in calculating her fee. But, in a later order, the court
corrected any error caused by the miscalculation.
¶ 45 Husband also argues that the court failed to make proper
lodestar analysis findings because the “affidavits provided were
heavily redacted, which prevented the Court and counsel from being
able to property [sic] determine if the fees were in fact reasonable.”
But husband had the opportunity to cross-examine wife and her
attorneys regarding the redactions. And the court did not question
22 the affidavits’ adequacy or indicate that it was unable to analyze the
information in them. Also, the court commented, “I wouldn’t
consider [the affidavits] heavily redacted.”
¶ 46 Finally, husband contends that attorney fees incurred by wife
were “unreasonable because the appeal was entirely unnecessary,”
appearing to argue that, because he prevailed on his prior appeal, it
would be inequitable to require him to pay his and wife’s attorney
fees. But section 14-10-119 contains no provisions limiting an
award of attorney fees to prevailing parties. See id. The purpose of
section 14-10-119 attorney fees awards is to equalize the parties
and ensure that neither party suffers undue economic hardship as
a result of the dissolution proceedings. See Aldrich, 945 P.2d at
1377. And the court expressly recognized the parties’ income
disparity as the basis for awarding wife her appellate attorney fees.
¶ 47 Again, we conclude that the district court’s decisions were not
manifestly arbitrary, unreasonable, or unfair, or based on
misapplication of the law, and thus, it did not abuse its discretion
in awarding wife her appellate attorney fees.
23 IV. Appellate Attorney Fees Requests
¶ 48 Wife asks us to award her attorney fees incurred in this appeal
under section 14-10-119. Husband also asks us to award his
attorney fees incurred in this appeal under section 13-17-102,
C.R.S. 2024, arguing that wife used the court system to harass him
by refusing to engage in good faith negotiations and by filing
“vexatious” claims.4
¶ 49 We reject husband’s request to award attorney fees to him
based on section 13-17-102. Though we have concluded that we
lack jurisdiction over wife’s appeal, her claims are neither frivolous
nor vexatious. See Western United Realty, Inc. v. Isaacs, 679 P.2d
1063, 1069 (Colo. 1984) (defining a frivolous claim as one that
presents no rational argument based on the evidence or law);
Bockar v. Patterson, 899 P.2d 233, 235 (Colo. App. 1994) (defining a
vexatious claim as one brought or maintained in bad faith). Wife’s
4 Wife contends that we should deny husband’s request for attorney
fees because he failed to adequately state the legal and factual basis for his opposition as required by C.A.R. 39.1. We reject this contention. While true that husband’s opening-answer brief could have more clearly contested the basis for wife’s request for attorney fees, husband’s competing request for attorney fees is itself a direct response to wife’s request.
24 appeal raises reasonable arguments about the use of the term
“abeyance” in the district court’s order, and we are unpersuaded by
husband’s arguments that she engaged in this appeal in bad faith.
¶ 50 Because the district court is better equipped to determine the
factual issues regarding the parties’ current financial resources, we
remand their remaining requests to the district court. See C.A.R.
39.1; In re Marriage of Alvis, 2019 COA 97, ¶ 30.
V. Conclusion
¶ 51 We affirm the district court’s May 10, 2023, Order Regarding
Cross-Motions for Post-Trial Relief Pursuant to C.R.C.P. 59, we
dismiss husband’s request for attorney fees based on section 13-17-
102, and we remand the case to the district court to determine the
parties’ respective requests for appellate attorney fees in this appeal
under section 14-10-119.
JUDGE GOMEZ and JUDGE RICHMAN concur.