IN RE the MARRIAGE OF Vanessa Castillo ARAGON, Appellee and Alain Leonardo Aragon, Appellant.
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Adams
County District Court No. 16DR1172, Honorable Roberto
Ramírez, Judge
Thomas
Law Group, P.C., Sergei B. Thomas, Denver, Colorado, for
Appellee
Leonard
A. Martinez & Associates, PC, Leonard A. Martinez, Lakewood,
Colorado, for Appellant
OPINION
J.
JONES, JUDGE.
[¶1]
In this dissolution of marriage case between Vanessa Castillo
Aragon (wife) and Alain Leonardo Aragon (husband), husband
appeals two post-decree orders: a January 28, 2018, order
awarding wife attorney fees, and a March 7, 2018, order
awarding her child support and maintenance. We vacate the
attorney fees order, affirm in part and reverse in part the
child support and maintenance order, and remand the case for
further proceedings.
I.
Background
[¶2]
The parties thirteen-year marriage ended in 2017. They have
five children. Under the initial February 2017 permanent
orders, the district court ordered husband to pay wife $ 823
per month in child support and $ 1,372 per month in
maintenance. Those calculations were based on husband then
receiving $ 843 per week in workers compensation payments
for temporary total disability. But because husband was
awaiting final resolution of a workers compensation claim at
that time, the court reserved a final decision on property
division, child support, and maintenance until the claim was
resolved.
[¶3]
In July 2017, husband settled his workers compensation claim
for a lump-sum payment of $ 171,563, representing 165.34
weeks of pay at the rate of $ 887.48 per week.
[¶4]
Wife later moved to modify child support and maintenance. She
also asked that the issue of attorney fees under section
14-10-119, C.R.S. 2018, be reopened and that husband be
ordered to pay $ 28,583.50 of her fees and costs. The court
granted wifes request to reopen attorney fees and ordered
husband to pay 75% of her requested fees and costs.
[¶5]
After a hearing, the court determined husbands income by
taking his workers compensation settlement, less the
attorney fees he owed to his workers compensation attorney
and the amount set aside for his future medical expenses;
prorating that amount over twelve months beginning April 1,
2018; and adding in his income as an Uber driver and from an
Airbnb rental property. The court attributed no income to
wife and ordered the parties to recalculate child support and
maintenance based on husbands income, which resulted in
husband owing wife $ 1,695 per month in child support and $
4,170 per month in maintenance. The court noted that child
support and maintenance would have to be recalculated on or
before April 1, 2019 — the end of the proration period
for husbands settlement — and it denied wifes request
for additional attorney fees.
II.
Attorney Fees
[¶6]
Husband first contends that the district court erred in
awarding wife attorney fees. He argues that claim preclusion
bars an award of fees wife incurred for the initial February
2017 proceedings. He also argues, and wife concedes, that the
court didnt make adequate findings to support the award
under section 14-10-119. And he argues that the court erred
by failing to conduct a hearing on fees and by failing to
determine the reasonableness of wifes requested fees using
the lodestar method.
[¶7]
We agree with both parties that additional findings are
necessary concerning attorney fees and remand the case for
that purpose, and we agree with husband that the court should
apply the lodestar method when determining reasonable
attorney fees. But
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we reject husbands arguments that claim preclusion bars wife
from receiving fees she incurred for the initial permanent
orders proceedings and that he was entitled to a hearing on
wifes request.
A.
Legal Standards
[¶8]
Under section 14-10-119, "[t]he court from time to time,
after considering the financial resources of both parties,
may order a party to pay a reasonable amount" for the
other partys costs, including attorney fees, of maintaining
dissolution proceedings. See In re Marriage of
Gutfreund, 148 P.3d 136, 141 (Colo. 2006) (The statute
empowers courts to "equitably apportion costs and fees
between parties based on relative ability to pay."). The
decision whether to award fees under the statute is
discretionary; we wont disturb such a decision absent a
showing of an abuse of that discretion. In re Marriage of
Davis, 252 P.3d 530, 538 (Colo.App. 2011); see
Gutfreund, 148 P.3d at 141 (noting district courts
"great latitude to craft [attorney fee] orders
appropriate to the circumstances of a given case").
[¶9]
In awarding fees, a court must make findings concerning the
parties relative incomes, assets, and liabilities; and it
must apportion fees based on the statutes equitable purpose,
explaining how and why it arrived at the specific amount of
the award. In re Marriage of Aldrich, 945 P.2d 1370,
1378 (Colo. 1997); see also In Interest of
K.M.B., 80 P.3d 914, 917-18 (Colo.App. 2003) ("When
awarding attorney fees, the trial court must specifically set
forth the reasons for the award...."). The court must
also consider the reasonableness of the hourly rate and the
necessity for the hours billed. In re Marriage of
Connerton, 260 P.3d 62, 67 (Colo.App. 2010); In re
Marriage of Mockelmann, 944 P.2d 670, 672 (Colo.App.
1997); In re Marriage of Rieger, 827 P.2d 625, 625
(Colo.App. 1992); see also In re Marriage of
Newell, 192 P.3d 529, 537 (Colo.App. 2008) (presuming
magistrate considered attorneys fee affidavit and was
satisfied that fees were reasonably incurred).
B.
Analysis
1.
Additional Findings Are Necessary Regarding Attorney Fees
[¶10]
As wife concedes, although her motion and the courts
attorney fees order are captioned "pursuant to"
section 14-10-119, the court didnt make any findings
regarding the basis for awarding fees under the statute.
Though the court attached wifes motion to its order, the
motion asserts only that wife incurred substantial fees, most
of which were "due to [husbands] actions, lack of
action, and/or purposely hiding compensation and employment
funds." These factors arent a proper basis for awarding
fees under section 14-10-119. SeeIn re Marriage
of Woolley, 25 P.3d 1284, 1288-89 (Colo.App. 2001)
(section 14-10-119 award is ...