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In re Marriage of de Koning

Supreme Court of Colorado

January 11, 2016

In re the Marriage of Kendrik Jon de Koning, Petitioner: and Melissa Christie de Koning, Respondent:

Certiorari to the Colorado Court of Appeals. Court of Appeals Case No. 12CA2334.

SYLLABUS

In this divorce action under the Uniform Dissolution of Marriage Act, § § 14-10-101 to - 133, C.R.S. (2015), the trial court postponed the attorney's fees hearing until months after the permanent orders hearing and issuance of the decree dissolving the marriage. The trial court did not permit the parties to obtain evidence of changed financial circumstances between the issuance of the decree and the attorney's fees hearing. The court of appeals reversed, holding that the trial court must determine the attorney's fees award based on the parties' financial circumstances at the time of the hearing on attorney's fees.

The supreme court now reverses the court of appeals' decision and holds that for the purpose of deciding whether to award attorney's fees under section 14-10-119, a trial court should consider the parties' financial resources as of the date of the issuance of the decree of dissolution or the date of the hearing on disposition of property, if such hearing precedes the date of the decree.

For Petitioner: Robert E. Lanham, Robert E. Lanham, P.C., Boulder, Colorado.

For Respondent: James S. Bailey, Senn Visciano Canges P.C., Denver, Colorado.

OPINION

HOOD, JUSTICE.

[¶1] After a two-day permanent orders hearing in this divorce action, at which the parties presented extensive evidence regarding their finances, the trial court felt it lacked sufficient information to allocate attorney's fees under section 14-10-119, C.R.S. (2015), the provision governing such awards under the Uniform Dissolution of Marriage Act (UDMA). Therefore, the court chose to issue the decree dissolving the marriage--along with permanent orders addressing parental responsibilities, child support, division of marital property, and spousal maintenance--but postponed its determination on attorney's fees. Approximately six months

Page 495

after the original hearing, the court conducted a hearing on fees.

[¶2] During the gap between the original hearing and the fees hearing, Wife's counsel requested additional documents regarding Husband's fluid financial circumstances. Husband objected and requested a protective order, which the trial court issued, thereby confining its consideration of the parties' financial circumstances to the evidence that existed at the time of the original hearing. The court ultimately ordered each party to pay his or her own fees and costs.

[¶3] Wife appealed from this order, and a division of the court of appeals reversed. It reasoned that because the permanent orders proceedings were not complete until entry of the fee award, evidence of the parties' finances should not have been " frozen" as of the date of the decree of dissolution, but instead assessed as of the date of the fees hearing. Thus, the court of appeals concluded the trial court should have permitted additional discovery in order to ensure an equitable determination of attorney's fees.

[¶4] We disagree with the court of appeals' conclusion, and instead hold that for the purpose of deciding whether to award attorney's fees under section 14-10-119, a trial court should consider the parties' financial resources as of the date of the issuance of the decree of dissolution or the date of the hearing on disposition of property, if such hearing precedes the date of the decree. Accordingly, we reverse and remand to the court of appeals to reinstate the trial court's protective order and its order instructing the parties to pay their own attorney's fees.

I. Facts and Procedural History

[¶5] In 2011, after eleven years of marriage and the birth of their three children, Petitioner Kendrik de Koning (Husband) and Respondent Melissa de Koning (Wife) squared off in an acrimonious dissolution proceeding. By the time the dust settled in 2012, the parties had expended $180,000 in attorney's fees and costs--nearly forty percent of the value of their marital estate at the time the decree of dissolution entered. Ultimately, Wife incurred a total of more than $90,000 in attorney's fees and just shy of $9,500 in costs. Husband incurred the balance.

[¶6] After a temporary orders hearing in September 2011, the trial court ordered Husband to pay $20,000 to Wife's attorney to assist her with attorney's fees. The court also ordered Husband to pay Wife $8,500 per month in temporary unallocated family support, " unallocated" meaning the monthly sum was ...


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