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In re Marriage of de Koning

Court of Appeals of Colorado, First Division

January 2, 2014

In re the Marriage of Melissa Christie de Koning, Appellant, and Kendrik Jon de Koning, Appellee

         City and County of Denver District Court No. 11DR2309. Honorable J. Eric Elliff, Judge.

         Senn Visciano Canges, P.C., James S. Bailey, Denver, Colorado, for Appellant.

         Robert E. Lanham, P.C., Robert E. Lanham, Boulder, Colorado, for Appellee.

         Opinion by JUDGE TAUBMAN. Lichtenstein and Miller, JJ., concur.

          OPINION

         TAUBMAN, JUDGE.

          [¶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.

         I. Pertinent Background

          [¶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.

         II. 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' ...


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