In re the Marriage of Melissa Christie de Koning, Appellant, and Kendrik Jon de Koning, Appellee
and County of Denver District Court No. 11DR2309. Honorable
J. Eric Elliff, Judge.
Visciano Canges, P.C., James S. Bailey, Denver, Colorado, for
E. Lanham, P.C., Robert E. Lanham, Boulder, Colorado, for
by JUDGE TAUBMAN. Lichtenstein and Miller, JJ., concur.
[¶1] In this dissolution of marriage
proceeding, Melissa Christie de Koning (wife) appeals from
the trial court's order granting Kendrick Jon de Koning
(husband) a protective order regarding production of
documents in connection with wife's request for attorney
fees, and from the portion of the permanent orders denying
her an attorney fee award. We vacate the protective order,
reverse the attorney fee portion of the permanent orders, and
remand for further proceedings.
[¶2] During the highly contested dissolution
of marriage proceedings, wife incurred approximately $90,000
in attorney fees. By court order, husband paid $20,000 of
those fees prior to the permanent orders hearing. At the
permanent orders hearing, wife requested that husband pay her
remaining attorney fees under section 14-10-119, C.R.S. 2013.
[¶3] Following the hearing, the trial court
entered a decree of dissolution, together with a written
order dividing the parties' marital estate, and resolving
the issues of allocation of parental responsibilities, child
support, and maintenance. However, the court deferred ruling
on wife's request for attorney fees and, instead, set a
hearing approximately six months later to determine (1)
whether an award of attorney fees was appropriate and, (2) if
so, the reasonableness and necessity of the requested
attorney fees and costs.
[¶4] Wife then served husband with a request
for production of documents, seeking updated information
relating to his personal and business bank accounts and
credit cards and his business financial reports. Husband
moved for a protective order, arguing that his current
finances were not relevant to the upcoming hearing.
[¶5] The court agreed with husband and
granted the protective order. It found that any attorney fees
awarded must be " based on the parties' respective
financial situation" as of the date of the decree, and
not as of the date of the upcoming attorney fee hearing.
[¶6] Wife testified at the attorney fee
hearing that she had incurred significant personal debt to
meet her attorney fee obligations, which she claimed were
necessary to discover evidence of husband's business
finances. She also alluded to evidence that the assets in the
mutual fund of which husband was part owner had increased in
value by $100 million since the date of the decree. Husband
testified that he could not afford to pay wife's attorney
fees and that he should not be ordered to do so because
" on paper" both spouses had the same amount of
assets. He claimed that wife's assertion regarding his
increased assets was not supported by testimony.
[¶7] Following the hearing, the court found
that the parties' " animosity" and
husband's " complicated" business finances led
to them spending " nearly [forty percent] of the total
net value of the marital estate" on attorney fees. The
court also expressed " sympath[y]" for wife's
inability to pay her fees. Nevertheless, the court denied
wife's request, and ordered each party to pay his or her
own fees and costs. The court found that (1) the parties'
finances were " roughly equal" ; (2) husband lacked
the ability to pay wife's fees; and (3) wife's
attorney fee affidavit lacked specificity to allow it to
" make any reasoned judgment on the necessity and
reasonableness" of the fees incurred.
Attorney Fee Order
[¶8] The central dispute in this appeal is
whether the court had the discretion to consider evidence of
the parties' financial circumstances on the date of the
attorney fee hearing.
[¶9] Wife contends that a court considering
an attorney fee request under section 14-10-119 must consider
the parties' " current" financial resources.
Thus, she argues, the court erred as a matter of law when it
prohibited her from presenting evidence of the parties'