23CA1944 Marriage of Smith 11-21-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA1944 El Paso County District Court No. 22DR30140 Honorable David Prince, Judge
In re the Marriage of
Remington Smith,
Appellant,
and
Cassaundra Alexa Smith, n/k/a Cassaundra Alexa Iler,
Appellee.
JUDGMENT AFFIRMED IN PART AND REVERSED IN PART, AND CASE REMANDED WITH DIRECTIONS
Division I Opinion by JUDGE SULLIVAN J. Jones and Lipinsky, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced November 21, 2024
Travis Law Group, PLLC, Richard M. Travis, Colorado Springs, Colorado, for Appellant
Cassaundra Alexa Smith, n/k/a Cassaundra Alexa Iler, Pro Se ¶1 In this dissolution of marriage proceeding, Remington Smith
(husband) appeals the district court’s order allocating an increased
share of the marital home’s equity to Cassaundra Alexa Smith,
n/k/a Cassaundra Alexa Iler (wife), and awarding her attorney fees.
We affirm in part and reverse in part, and remand the case for
further proceedings consistent with this opinion.
I. Background
¶2 Husband initiated dissolution proceedings in January 2022.
During the final orders hearing in November 2022, both parties
testified regarding their separate and marital property, including
their opinions of the marital home’s value.
¶3 In its decree of dissolution, the court ordered that the marital
home be sold and the proceeds divided between the parties, with
70% going to wife and 30% to husband. The court said that, if the
parties couldn’t agree on a certain aspect of marketing or selling the
home (for example, the listing price or whether to accept an offer),
then the parties were to follow the real estate agent’s
recommendation. The court instructed the parties to either agree
on a real estate agent or submit nominations for the court to
appoint one. After both parties submitted nominations, the court
1 appointed Bre Rinkema, one of wife’s recommended real estate
agents, in January 2023.
¶4 In violation of the court’s order and unbeknownst to either
wife or the court, however, husband had already entered into a
listing agreement with his preferred real estate agent, Chelsea
Tisdale, with whom he had a romantic relationship, and placed the
home under contract. Concerned that husband’s unauthorized sale
might reduce her share of the proceeds, wife recorded a notice of lis
pendens and filed a separate fraudulent transfer action to stop the
pending sale.
¶5 In April 2023, the parties stipulated to (1) dismiss the
fraudulent transfer action and (2) appoint a different real estate
agent, Gytha Hinkle, to list the marital home for sale. The
stipulation explicitly said that it didn’t affect the court’s prior orders
regarding the home’s sale.
¶6 After Hinkle listed the home for sale at $495,000, husband
received an offer for the listing price from the same buyers with
whom he previously contracted. Without consulting wife, and
against Hinkle’s recommendation, husband immediately accepted
the offer. The sale closed in May 2023.
2 ¶7 Based on husband’s disregard for the court’s orders, wife filed
several C.R.C.P. 60(b) motions in which she asked the court to
reopen its division of the marital home’s equity and increase wife’s
allocation. After holding a hearing in September, the court issued a
detailed order chronicling husband’s repeated misconduct.
Although the court didn’t value the marital home or the parties’
mortgage debt, it estimated the parties’ equity in the home at
$110,000 and ordered that wife’s share be increased from 70% to
80%, resulting in husband having to make an equalization payment
to wife of $88,000 (80% of $110,000). The court also awarded wife
a portion of her requested attorney fees.
¶8 Husband now appeals. He contends that the court (1) lacked
authority under C.R.C.P. 60(b) to grant wife affirmative relief and
violated his right to due process; (2) erred by making unsupported
findings regarding the parties’ equity in the marital home; and (3)
abused its discretion by awarding wife a portion of her attorney
fees. We address each contention in turn.
3 II. Discussion
A. “Affirmative Relief” Under C.R.C.P. 60(b) and Due Process
¶9 Relying on Affordable Country Homes, LLC v. Smith, 194 P.3d
511, 513-16 (Colo. App. 2008), husband first contends that the
court abused its discretion by granting wife “affirmative relief” that
isn’t authorized by C.R.C.P. 60(b). He also argues that, assuming
affirmative relief was available, the court violated his right to due
process by failing to notify him that wife could receive both an
increased equity allocation in the marital home and an award of
attorney fees. We conclude that husband failed to preserve these
arguments for appellate review.
1. Additional Background
¶ 10 In her C.R.C.P. 60(b) motion and two amended motions, wife
requested that the court apportion to her a larger share of the
proceeds from the home’s sale as a consequence of husband’s
misconduct. She requested, in the alternative, that the court award
her the attorney fees and costs that she had incurred due to
husband’s misconduct, “in addition to her [original 70%] share of
the proceeds from the sale of the marital home.”
4 ¶ 11 Husband opposed wife’s motions by arguing that wife hadn’t
shown fraud, misrepresentation, or other misconduct that might
justify relief under C.R.C.P. 60(b)(2), nor had she shown any other
reason justifying relief under C.R.C.P. 60(b)(5). Husband also
asserted that wife hadn’t alleged sufficient facts to justify revisiting
the court’s property division and that she improperly sought
attorney fees for matters that were either unnecessary, dismissed,
or already decided.
¶ 12 At the September 2023 hearing on wife’s motions, wife asked
the court to award her “100% of the remaining proceeds” from the
home’s sale and “$70,000 of lawyer fees” that she had incurred due
to husband’s misconduct.
2. Analysis
¶ 13 We conclude that husband failed to preserve for appellate
review his argument that C.R.C.P. 60(b) doesn’t authorize
“affirmative relief.” To preserve an issue for appellate review, a
party must make a timely objection that is specific enough to
provide the trial court with a meaningful opportunity to correct the
alleged error. See Berra v. Springer & Steinberg, P.C., 251 P.3d 567,
570 (Colo. App. 2010). Husband’s counsel never argued to the
5 court, either in his written responses to wife’s C.R.C.P. 60(b)
motions or at the hearing, that “affirmative relief” wasn’t available
under C.R.C.P. 60(b), nor did counsel mention Affordable Country
Homes. As a result, the court wasn’t afforded a meaningful
opportunity to correct the error that husband now alleges on appeal
regarding affirmative relief being unavailable under C.R.C.P. 60(b).1
¶ 14 To the extent husband argues that the court’s decision
granting wife “affirmative relief” under C.R.C.P. 60(b) created a
jurisdictional defect that he can raise at any time, we disagree. If a
trial court erroneously grants a C.R.C.P. 60(b) motion that doesn’t
allege sufficient grounds for relief from a prior judgment, the order
may be “vulnerable to reversal upon appeal” for simple “legal error,”
but the order isn’t “void” for lack of subject matter jurisdiction. In
re Marriage of Stroud, 631 P.2d 168, 172 (Colo. 1981) (“[I]t is not a
prerequisite to the court’s subject matter jurisdiction under
C.R.C.P. 60(b) that the grounds asserted in the motion to set aside
a judgment be legally adequate.”).
1 Because husband failed to preserve this issue, we express no
opinion on whether the court properly invoked C.R.C.P. 60 to modify the parties’ property division.
6 ¶ 15 We similarly conclude that husband didn’t preserve his due
process argument. See In re S.O., 795 P.2d 254, 257 (Colo. 1990) (a
party’s right to notice and an opportunity to be heard can be
waived); see also Zavala v. City & Cnty. of Denver, 759 P.2d 664,
668 (Colo. 1988) (“[B]y fully participating in the hearing and failing
to object to any notice provisions, the appellants waived any right to
later claim these defects constituted a violation of their due process
rights.”). Although husband fully participated in, and was
represented by counsel at, the September 2023 hearing, husband
never argued to the court that he lacked notice of the different
forms of relief that wife sought.
¶ 16 Even if husband had preserved his due process argument, the
record reveals that husband received adequate notice that wife
sought both an increased share of the proceeds from the home’s
sale and an award of her attorney fees. Specifically, all three of
wife’s C.R.C.P. 60(b) motions alerted husband that she sought both
forms of relief, enabling husband to prepare defenses to both before
the hearing. See, e.g., Fueston v. City of Colorado Springs, 713 P.2d
1323, 1326 (Colo. App. 1985) (purpose of notice component of due
7 process is to “convey[] enough information to allow preparation for a
hearing”).
¶ 17 Although wife, in her motions, framed her requests as
alternative forms of relief, wife clarified at the hearing that she
sought both 100% of the proceeds from the home’s sale and
attorney fees totaling $70,000. The court ultimately declined to
grant wife everything she requested, awarding her 80% of the
home’s estimated equity and attorney fees totaling $30,212.40.
Husband cites no authority, and we are aware of none, prohibiting
a court from awarding a party portions of multiple alternative forms
of requested relief.
B. Equity Valuation of the Marital Home
¶ 18 Husband argues that the court erred by (1) failing to value the
marital home and the parties’ mortgage debt and (2) making an
unsupported factual finding that the parties’ equity in the marital
home totaled $110,000. According to husband, the court should
have used the home’s May 2023 sale price of $495,000 when
determining its value. We conclude that a remand is necessary for
additional factual findings.
1. Standard of Review and Applicable Law
8 ¶ 19 “The court has great latitude to equitably divide the marital
estate based on the facts and circumstances of the case, and we
won’t disturb its decision absent a showing of an abuse of
discretion.” In re Marriage of Medeiros, 2023 COA 42M, ¶ 28. A
court abuses its discretion when its decision is manifestly arbitrary,
unreasonable, or unfair, or is based on a misapplication of the
law. In re Marriage of Bergeson-Flanders, 2022 COA 18, ¶ 10.
¶ 20 To achieve an equitable property division, the court must
consider all relevant factors, including (a) the contribution of each
spouse to the acquisition of the marital property; (b) the value of the
property set apart to each spouse; (c) the economic circumstances
of each spouse at the time the division of property becomes
effective; and (d) any change in a spouse’s separate property during
the marriage or the depletion of separate property for marital
purposes. § 14-10-113(1), C.R.S. 2024; see In re Marriage of Powell,
220 P.3d 952, 959 (Colo. App. 2009). Although the court has broad
discretion when valuing the parties’ property, it must classify the
property as marital or separate, value the marital property, and
equitably distribute the marital property after considering the
9 statutory factors. See § 14-10-113(1), (5); LaFleur v. Pyfer, 2021 CO
3, ¶ 63.
¶ 21 The same “principle[s] appl[y] to marital debt, which must be
valued in the same way [that] marital property is valued.” In re
Marriage of Jorgenson, 143 P.3d 1169, 1172 (Colo. App. 2006).
¶ 22 When valuing property, the court may select the valuation of
one party over that of the other party or make its own valuation. In
re Marriage of Krejci, 2013 COA 6, ¶ 23. The court’s decision
valuing the property will be upheld on appeal unless clearly
erroneous. Id. However, the court’s order “must contain findings of
fact and conclusions of law sufficiently explicit to give an appellate
court a clear understanding of the basis of its order and to enable
the appellate court to determine the grounds upon which it
rendered its decision.” In re Marriage of Rozzi, 190 P.3d 815, 822
(Colo. App. 2008).
2. Additional Background
¶ 23 At the November 2022 final orders hearing, husband testified
that the marital home was worth approximately $505,000, while
wife testified that its value fell between $505,000 and $515,000.
10 ¶ 24 In its dissolution decree, the court estimated the remaining
balance on home’s mortgage at $410,000 and valued the home’s
equity at approximately $100,000. The court ordered that the
marital home be sold and apportioned 70% of the net proceeds to
wife and 30% to husband. The court also ordered the parties to
follow the appointed real estate agent’s recommendation if husband
and wife couldn’t agree “on an aspect of marketing or selling the
house (e.g., listing price, whether to accept an offer).”
¶ 25 Instead of following the court’s order, husband unilaterally
retained his own real estate agent, Tisdale. Tisdale listed the home
for sale at $474,900, well below the estimates both husband and
wife gave at the November 2022 hearing. In January 2023,
husband placed the home under contract for $483,900. Wife asked
the court to stop the pending sale, arguing that she would lose
money if it proceeded. The court, however, explained that it didn’t
have authority to halt the sale.
¶ 26 Wife then recorded a notice of lis pendens and filed a separate
fraudulent transfer action to stop the sale. Wife eventually agreed
to voluntarily dismiss the fraudulent transfer action and release the
lis pendens when the parties entered into a stipulation to appoint
11 Hinkle as the real estate agent to list the marital home for sale. The
stipulation didn’t modify the court’s prior order requiring the
parties to either (1) reach consensus on how the home would be
marketed and sold or (2) follow the appointed real estate agent’s
recommendations.
¶ 27 Hinkle listed the home for sale for $495,000. The same buyers
who previously contracted with husband to buy the home for a
lower price again tendered an offer, this time for the listing price of
$495,000 but with $10,000 in seller concessions. Hinkle forwarded
the offer to husband and reminded him that the parties had to
reach a consensus before moving forward. Hinkle also
recommended against accepting the offer “as is.”
¶ 28 Despite Hinkle’s recommendation, husband accepted the offer
the same day. After husband accepted the offer, Hinkle emailed
husband saying that she was “surprised” at husband’s quick
acceptance and that she had intended to reach out to other real
estate agents to solicit competing offers. The sale closed in May
2023, with closing costs exceeding $60,000, including a disputed
“holdover” commission going to Tisdale.
12 ¶ 29 At the September 2023 hearing on wife’s C.R.C.P. 60(b)
motions, husband admitted that he had fabricated multiple invoices
for work to prepare the home for sale.
¶ 30 In its ruling on wife’s motions, the court determined that its
original equity estimate of $100,000 had been “undermined” by
husband’s misconduct, including his manipulation of financial
records. The court also determined that the home’s sale price of
$495,000 wasn’t a reliable indicator of its value because (1)
husband’s misconduct over the life of the case delayed the sale to a
less favorable market; (2) husband’s sale to the “insiders” who
previously attempted to purchase the home wasn’t an arm’s-length
transaction; and (3) husband’s quick acceptance of the insiders’
$495,000 offer, without consulting wife, didn’t reflect adequate
market exposure to achieve a maximum price. However, the court
didn’t assign an alternative value to the home but instead estimated
the parties’ equity at $110,000, or $10,000 more than its prior
estimate. The court then increased wife’s share of the home’s
equity from 70% to 80% and ordered husband to make an $88,000
equalization payment to wife.
3. Analysis
13 ¶ 31 At the outset, we commend the court on its extensive efforts to
arrive at an equitable property division after husband’s admitted
misconduct came to light. The court’s detailed orders reflect its
diligence in attempting to reach a “just” property division under
challenging circumstances. § 14-10-113(1).
¶ 32 Turning to the evidence before the court, we disagree with
husband that the court abused its discretion by rejecting the
home’s $495,000 sale price as its value. The court found that
husband’s actions rendered the sale “too tainted” to give a plausible
indication of the home’s market value. The record supports the
court’s finding. Hinkle testified that, although she listed the home
for sale at $495,000, she hoped that the competitive listing price
would entice other buyers to make competing offers that would
drive the price up. Hinkle explained that she recommended against
husband accepting the first offer and that she intended to solicit
competing offers from other agents who had previously expressed
interest. Husband’s immediate acceptance of the $495,000 offer
from the “insiders,” however, prevented Hinkle from seeking higher
offers.
14 ¶ 33 The court also found that husband accepted the first offer, in
part, to ensure that his unauthorized real estate agent, Tisdale,
would receive an “unequivocally improper commission.” This
finding, too, is supported by the record. Hinkle testified that
husband’s quick acceptance of the first offer allowed the sale to
close within Tisdale’s sixty-day “holdover period,” thus entitling her
to receive a significant commission. Given Hinkle’s testimony,
which the court was free to credit, and the broad discretion afforded
to the court in determining an asset’s value, we can’t say that the
court abused its discretion by finding that the $495,000 sale price
was too tainted to serve as a reliable indicator of the home’s value.
See In re Marriage of Mohrlang, 85 P.3d 561, 563 (Colo. App. 2003)
(“[C]redibility determinations lie within the sole discretion of the
trial court.”); see also Krejci, ¶ 23 (trial court may “make its own
valuation”).
¶ 34 We agree with husband, however, that the court didn’t make
adequate findings to support its decision regarding the value of the
marital home’s equity. After valuing the home’s equity at $110,000,
the court increased wife’s apportionment from 70% to 80%,
resulting in an $88,000 equalization payment owed by husband to
15 wife. But the court didn’t say what evidence it relied on to reach its
revised equity valuation. See Rozzi, 190 P.3d at 822 (court’s
findings must provide “a clear understanding of the basis of its
order” to “enable the appellate court to determine the grounds upon
which it rendered its decision”); cf. In re Marriage of Farr, 228 P.3d
267, 270 (Colo. App. 2010) (“some evidence in the record” must
support the court’s findings). Nor did the court separately
determine the marital home’s market value and the parties’
mortgage debt in a way that would allow us to discern how it
reached its equity valuation. See Jorgenson, 143 P.3d at 1172 (both
marital property and marital debt must be valued).
¶ 35 It appears that the court may have credited wife’s testimony
that the home was worth $515,000 on the high side, and then
subtracted the outstanding mortgage balance of $406,748.50 that
appeared on the settlement statement that wife admitted into
evidence. The resulting equity of $108,251.50 is remarkably close
to $110,000. But we can’t be certain that these calculations
accurately reflect the evidence on which the court relied. Even if we
could be certain, such calculations don’t account for the
approximate $60,000 in closing costs that also appeared on wife’s
16 settlement statement. See In re Marriage of Burford, 950 P.2d 682,
685 (Colo. App. 1997) (remanding for further findings where trial
court’s property division failed to account for husband’s surrender
of a $90,000 note).
¶ 36 Accordingly, we reverse the portion of the court’s order
awarding wife an equalization payment and remand for further
proceedings. On remand, the court must (1) make findings
separately valuing the marital home and its debt as of the earlier of
the date of the decree or the date of the hearing on the disposition
of property, see § 14-10-113(5), including any closing costs
associated with the home’s sale, and (2) equitably apportion the
resulting equity in the marital home between husband and wife
under section 14-10-113(1). The court’s findings shall explicitly
state the evidence on which it relied to enable a later reviewing
court to determine the grounds upon which it rendered its decision.
See Rozzi, 190 P.3d at 822.
¶ 37 To the extent necessary based on its new equity
determination, the court may in its discretion reconsider the overall
property and debt division to achieve an equitable result. See In re
Marriage of Vittetoe, 2016 COA 71, ¶ 38 (“If any new division
17 impacts the fairness of the overall property and debt division, on
remand, the court may revisit its entire property and debt division,
but it need do so only if reconsideration is necessary to achieve an
equitable result.”).
C. Attorney Fees
¶ 38 Husband also contends that the court abused its discretion by
awarding wife attorney fees (1) that she incurred in her separate
fraudulent transfer action; (2) under section 13-17-102, C.R.S.
2024,2 without first finding that husband knew or should have
known that his conduct lacked substantial justification; and (3)
without making findings regarding the parties’ relative incomes,
assets, and liabilities, contrary to In re Marriage of Aragon, 2019
COA 76, ¶ 9. We perceive no abuse of discretion.
¶ 39 We review a trial court’s decision awarding attorney fees for an
abuse of discretion, whether they were awarded under section 13-
17-102 or the court’s inherent authority. See, e.g., Laleh v.
2 We cite the current version of the statute. Although the General Assembly amended the statute after the court entered its attorney fee award in November 2023, see Ch. 131, § 5, 2024 Colo. Sess. Laws 466-67, those amendments don’t affect our analysis.
18 Johnson, 2016 COA 4, ¶ 33; In re Marriage of Tognoni, 313 P.3d
655, 660-61 (Colo. App. 2011).
¶ 40 As relevant here, a court may award attorney fees under
section 13-17-102(4) when it finds that a party brought or defended
an action that lacked substantial justification, was interposed for
delay or harassment, or unnecessarily expanded the proceeding by
other improper conduct. A claim or defense lacks substantial
justification when it’s substantially frivolous, substantially
groundless, or substantially vexatious. § 13-17-102(9)(a); Mitchell v.
Ryder, 104 P.3d 316, 321 (Colo. App. 2004). “A vexatious claim is
one brought or maintained in bad faith to annoy or harass. It may
include conduct that is arbitrary, abusive, stubbornly litigious, or
disrespectful of truth.” Bockar v. Patterson, 899 P.2d 233, 235
(Colo. App. 1994).
¶ 41 Under section 13-17-102(6), before a court may impose
attorney fees against an unrepresented party, the court must find
that the party “clearly knew or reasonably should have known” that
the party’s conduct was substantially frivolous, substantially
groundless, or substantially vexatious. See Bockar, 899 P.2d at
235.
19 ¶ 42 A court may also award attorney fees under its inherent
authority “to administer justice fairly.” Johnston v. Dist. Ct., 580
P.2d 798, 799 (Colo. 1978). A court may levy attorney fees, for
example, to curb “abusive litigation practices,” Roadway Express,
Inc. v. Piper, 447 U.S. 752, 765 (1980), or in response to a party’s
“bad faith action” that resulted in another litigant incurring
unnecessary attorney fees, Johnston, 580 P.2d at 799.
¶ 43 Based on the evidence presented at the September 2023
hearing, the court found that husband engaged in “a multi-month
scheme to subvert the process created to yield a plausibly
reasonable value” for the marital home. Husband’s scheme, the
court found, threatened to deprive wife of an equitable share of the
marital estate.
¶ 44 After removing entries for time that wife’s attorneys spent on
wife’s separate contempt motion, the court awarded wife
$30,212.40 in attorney fees, citing both section 13-17-102 and its
inherent authority as supporting legal authority.
a. Attorney Fees for Fraudulent Transfer Action
20 ¶ 45 Relying on In re Marriage of Burns, 717 P.2d 991 (Colo. App.
1985), husband contends that the court abused its discretion by
awarding wife her attorney fees incurred in her separate fraudulent
transfer action. In Burns, the trial court awarded the wife attorney
fees under the fee-shifting provision of the Uniform Dissolution of
Marriage Act (the Act) in effect at the time, § 14-10-119, C.R.S.
1985, even though wife brought the subject claim in an
independent equitable action. See id. at 993. A division of this
court reversed, explaining that the wife’s fees weren’t recoverable
under the Act in an independent equitable action, especially as the
parties’ dissolution decree had never been reopened. See id.
¶ 46 Unlike in Burns, however, the court in this case awarded wife
attorney fees under section 13-17-102 and its inherent authority,
not under the Act. Contrary to husband’s argument, the Burns
division didn’t examine whether a party’s attorney fees incurred in a
separate action are awardable under either section 13-17-102 or
the court’s inherent authority as a sanction for an opponent’s
litigation misconduct. As a result, Burns doesn’t help husband.
¶ 47 While we are unaware of any authority specifically addressing
whether a party’s attorney fees incurred in a separate action are
21 awardable as a sanction for an opponent’s litigation misconduct
under section 13-17-102, we conclude that the court could award
such fees under its “well-acknowledged” inherent authority to
remedy “abusive litigation practices.”3 Roadway Express, 447 U.S.
at 765 (quoting Link v. Wabash R. Co., 370 U.S. 626, 632 (1962));
accord Johnston, 580 P.2d at 799 (upholding award of attorney fees
based on court’s inherent authority where the defendant’s bad faith
was “directly responsible” for the plaintiff’s expenditure of attorney
fees).
¶ 48 To the extent husband argues that the court’s inherent
authority to fashion appropriate sanctions for litigation misconduct
doesn’t extend to awarding a party its attorney fees incurred in a
3 In Roberts v. Bruce, 2018 CO 58, the supreme court addressed the
related question of whether section 13-17-102, C.R.S. 2024, authorizes a trial court to award a party its attorney fees for having to respond to a frivolous lawsuit in another state. Rather than restrict the trial court to awarding fees incurred only in the case before it, the supreme court held that the statute imposes a geographic limit, authorizing courts to award fees only for conduct occurring “in Colorado courts.” Id. at ¶ 20. Thus, the supreme court’s analysis appears to embrace, or at least leaves open the possibility, that a court can use section 13-17-102 to award a party attorney fees incurred in a separate Colorado lawsuit as a sanction for an opponent’s litigation misconduct. We need not resolve this question, however, because we conclude that the court’s inherent authority provided a sufficient basis for its fee award.
22 separate lawsuit, we disagree. See Lauren Corp. v. Century
Geophysical Corp., 953 P.2d 200, 204 (Colo. App. 1998) (discussing
courts’ inherent authority to award attorney fees, including when a
party’s wrongful act has proximately caused the wronged party to
become engaged in other litigation); see also Bernhard v. Farmers
Ins. Exch., 915 P.2d 1285, 1287 n.3 (Colo. 1996) (collecting cases
illustrating the same).
b. Section 13-17-102(6)
¶ 49 We also disagree with husband that the court abused its
discretion by awarding wife attorney fees under section 13-17-102
without first finding under subsection 102(6) that husband, while
proceeding pro se, knew or reasonably should have known that his
conduct was substantially frivolous, substantially groundless, or
substantially vexatious.4
¶ 50 The court found both that (1) husband’s conduct was
substantially vexatious and unnecessarily expanded the
4 Although husband was represented by an attorney at both the
November 2022 and September 2023 hearings, the court found that husband wasn’t represented by counsel during the “bulk” of the case. Based on this finding, we will assume without deciding that section 13-17-102(6) applies to husband.
23 proceedings and (2) husband acted knowingly and willfully when he
violated the court’s orders. The court’s findings, which enjoy record
support, satisfy the requirements for an attorney fee award under
subsection 102(6). See Bockar, 899 P.2d at 235.
c. In re Marriage of Aragon
¶ 51 Finally, we aren’t persuaded by husband’s argument that the
court ran afoul of Marriage of Aragon, ¶ 9, by failing to make
findings regarding the parties’ relative incomes, assets, and
liabilities. Aragon’s requirement that the court make findings
regarding the parties’ relative incomes, assets, and liabilities applies
when the court awards attorney fees under section 14-10-119. See
Aragon, ¶¶ 8-9. But as already discussed, the court in this case
didn’t award wife attorney fees under section 14-10-119.
¶ 52 Husband also argues that (1) wife didn’t substantiate her
request for attorney fees with an affidavit and (2) wife should have
pursued her attorney fees through a contempt proceeding under
C.R.C.P. 107. But husband fails to cite the point in the record
where he preserved these arguments. See C.A.R. 28(a)(7)(A). We
therefore decline to address them. See Shiplet v. Colo. Dep’t of
Revenue, 266 P.3d 408, 412 (Colo. App. 2011).
24 III. Disposition
¶ 53 We affirm the judgment in part and reverse it in part, and we
remand the case for further proceedings consistent with this
opinion.
JUDGE J. JONES and JUDGE LIPINSKY concur.