January 2, 2014
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'
financial circumstances as they existed at the time of the
attorney fee hearing.
[¶10] Husband maintains that the court must
consider only the parties' respective financial positions
as of the date of the decree, because an award of attorney
fees is considered with the property division and maintenance
award. Thus, he argues, even if a hearing on attorney fees is
held subsequent to the decree, a court " cannot consider
the financial circumstances at that later date."
[¶11] Both parties assume that there were
two separate hearings in this case -- a complete permanent
orders hearing followed by an attorney fee hearing. We reject
[¶12] Instead, we conclude that the attorney
fee hearing was an extension of the permanent orders hearing,
and that therefore the permanent orders were not fully
resolved until the attorney fee order was entered.
Consequently, evidence of the parties' financial
resources when the attorney fee hearing occurred was not only
relevant but was necessary for the court to determine whether
wife was entitled to fees under section 14-10-119.
Accordingly, we agree with wife that the court erred by
prohibiting evidence of the parties' financial resources
as of the date of the attorney fee hearing.
Standard of Review
[¶13] We review the trial court's
decision to award attorney fees and costs for an abuse of
discretion, but we review the legal conclusions forming the
basis for that decision de novo. In re Marriage of
Gallegos, 251 P.3d 1086, 1087 (Colo.App. 2010).
" Current Financial Resources"
[¶14] Under section 14-10-119, a court may,
" from time to time, after considering the financial
resources of both parties, . . . order a party to pay a
reasonable amount for the cost to the other party of
maintaining . . . any proceeding under this article and for
[¶15] Wife argues that this statute is
supported by " long-established case law" holding
that " [t]he purpose of an award of attorney fees . . .
is to apportion the costs of dissolution equitably based on
the current financial resources of the parties." In
re Marriage of Lewis, 66 P.3d 204, 207 (Colo.App. 2003);
see also In re Marriage of Woolley, 25 P.3d
1284, 1289 (Colo.App. 2001); In re Marriage of
Weibel, 965 P.2d 126, 130 (Colo.App. 1998); In re
Marriage of Foottit, 903 P.2d 1209, 1214 (Colo.App.
1995); In re Marriage of Renier, 854 P.2d 1382, 1386
(Colo.App. 1993). We agree with wife's reading of these
[¶16] However, in all these cases, the
division considered the request for attorney fees
simultaneously with the other issues before it. None of the
decisions addresses the situation we have here, where the
court considered the attorney fee request nearly six months
after determining the other issues. Thus, while they provide
guidance, these cases are not determinative.
[¶17] Instead, to determine whether the
court erred when it prohibited evidence of the parties'
financial resources at the attorney fee hearing, we must
determine whether the permanent orders were complete after
the first hearing. We conclude they were not.
[¶18] A permanent orders proceeding requires
the court to make findings and enter orders on several
intertwined issues, including parental responsibilities,
child support, spousal support, disposition of property, and
attorney fees. See In re Marriage of Hill,
166 P.3d 269, 272 (Colo.App. 2007). " These are not
separate claims; they are issues that are part and parcel of
dissolving the marriage." Id. Thus, until a
court enters findings and orders on each of these "
inextricably intertwined" issues, permanent orders are
not yet complete. Id.
[¶19] Here, when it entered the decree, the
trial court entered orders for property division, parental
responsibilities, maintenance, and child support. However, it
did not determine whether wife was entitled to an award of
attorney fees until nearly six months later. Until the court
determined that final issue, the permanent orders proceedings
were not complete.
[¶20] Thus, evidence of the parties'
finances should not have been " frozen" as of the
date of the decree. Rather, as a matter of equity, the court
should have considered the parties' financial
circumstances at the time of the attorney fee hearing.
Without such updated evidence, the court could not determine
whether an attorney fee award was required to meet the "
equitable purposes" of section 14-10-119: (1) to
equalize the parties' status and (2) to ensure that
neither party suffers undue economic hardship as a result of
the proceedings. See In re Marriage of
Yates, 148 P.3d 304, 315 (Colo.App. 2006); cf.
In re Marriage of Wells, 850 P.2d 694, 698 (Colo.
1993) (it is impossible for a trial court to weigh the
equities involved in the division of marital property if the
court is unable to consider the changed circumstances of the
parties during the pendency of the litigation).
[¶21] Indeed, a trial court reconsidering an
attorney fee award on remand must consider evidence of the
parties' then-current resources to determine whether an
award of attorney fees is equitable. See, e.g.,
Renier, 854 P.2d at 1386.
[¶22] Husband argues that In re Marriage
of Rieger, 827 P.2d 625, 626 (Colo.App. 1992), compels a
different conclusion. In Rieger, the trial court
found that the wife was entitled to an award of attorney fees
based on its review of the parties' financial resources.
However, because the order failed to reference section
14-10-119, a division of this court remanded the issue of
attorney fees for further findings. Because the trial court
had previously engaged in a " thorough review of the
parties' financial resources," the division directed
the trial court not to reopen that issue on remand. See
[¶23] Rieger, however, is
distinguishable. Unlike the court in Rieger, the
trial court here had neither determined that wife was
entitled to fees nor considered the parties' financial
resources relative to her fee request at the time of the
initial permanent orders hearing. Thus, it was required to
address those issues at the fee hearing.
[¶24] Nor are we persuaded by husband's
other argument that a court may consider evidence of the
parties' finances subsequent to the decree only under two
limited situations: (1) when a remand order directing the
trial court to reconsider a property division also requires
reconsideration of attorney fees, see
Wells, 850 P.2d at 698; and (2) when a party
requests attorney fees as part of a post-decree motion to
modify maintenance, see In re Marriage of Nelson,
292 P.3d 1214, 2012 COA 205, ¶ 16. Rather, here, by
delaying its decision on section 14-10-119 attorney fees
until a later date, the court effectively left the permanent
orders open and unresolved until the attorney fee hearing,
and thus should have considered the parties' financial
circumstances at the time of that hearing.
[¶25] Accordingly, we reverse that part of
the judgment pertaining to the attorney fees award, and
remand the case for the court to reconsider the issue based
on the parties' financial circumstances at the time of
the hearing on remand. See Renier, 854 P.2d
at 1386. Except to the extent wife reports updated fees
incurred since the attorney fee hearing, any award of fees
shall be based on wife's existing fee affidavit (Exhibit
3-A). The court may, in its discretion, decide whether any
award of attorney fees should be discounted based on her
" highly general" attorney fee affidavit.
Attorney Fee Affidavit
[¶26] We reject husband's alternative
argument that the fee order can be upheld because the trial
court found that wife's attorney fee affidavit lacked
specificity. The court's dissatisfaction with the fee
affidavit pertained only to its inability to determine
whether certain of the fees requested were reasonable and
necessary. This finding is only part of the court's
analysis, and is not akin to a determination that wife is not
entitled to fees based on the parties' financial
resources. See Woolley, 25 P.3d at 1289
(Taubman, J., concurring in part and dissenting in part) ( an
award of fees under section 14-10-119 requires a two-part
inquiry: first, the court must determine the amount of a
reasonable attorney fee, and, second, the court must
apportion that amount based on the parties' relative
[¶27] Moreover, the court found that the
effort of wife's attorney was not "
unreasonable," was necessary for the court to "
fully understand" the business valuations, and was
" understandable in context" of the difficult
litigation. The court also noted that the hours spent by both
husband's and wife's attorneys were similar. These
findings do not support the alternative conclusion husband
urges us to reach.
[¶28] Because the trial court is directed to
reconsider on remand its attorney fee ruling based on the
parties' financial circumstances at the time of a hearing
on remand, the parties are entitled to discover any relevant
information on that issue. See C.R.C.P. 26(b)(1) (
parties may obtain discovery regarding any matter, not
privileged, that is relevant to the claim or defense of any
party; relevant information need not be admissible at the
trial if the discovery appears reasonably calculated to lead
to the discovery of admissible evidence); see also
C.R.C.P. 16.2(f)(4) ( unless otherwise provided elsewhere in
Rule 16.2, parties in domestic relations cases follow the
discovery provisions of C.R.C.P. 26).
[¶29] We thus vacate the protective order.
Appellate Attorney Fees
[¶30] Wife requests her attorney fees on
appeal under section 14-10-119. Because the trial court is
better situated to address the necessary factual
determinations related to her request, we exercise our
discretion under C.A.R. 39.5 and direct the trial court to
address on remand whether wife is entitled to an award of
such fees and, if so, in what amount. See
Yates, 148 P.3d at 318.
[¶31] Given our resolution, we deny
husband's request for fees on appeal under section
13-17-102, C.R.S. 2013.
[¶32] The protective order is vacated. That
part of the judgment pertaining to attorney fees is reversed,
and the case is remanded to the trial court to reconsider the
attorney fee award and to consider wife's request for
appellate attorney fees.
LICHTENSTEIN and JUDGE MILLER concur.
We believe the court's intent in
continuing the hearing until another date was to give the
parties a full opportunity to argue the attorney fee issue.
Yet, this kind of extended proceeding may engender further
litigation between parties to a dissolution, as has been the