IN RE the MARRIAGE OF Tiffany Rose JANUARY, Appellee, and Jeffrey Forrest January, Appellant.
Douglas County District Court No. 13DR30291, Honorable Alex
J. Martinez, Judge
Patierno LLP, Courtney J. Allen, Denver, Colorado, for
Locke Law Firm PC, Teresa D. Locke, Denver, Colorado, for
Following the entry of final orders in her dissolution of
marriage case, Tiffany Rose January (mother) sought remedial
sanctions against Jeffrey Forrest January (father) for, among
other things, not paying his share of their daughters
tutoring expenses. The magistrate found father in remedial
contempt and imposed sanctions consisting of the tutoring
expenses and mothers attorney fees incurred in connection
with the contempt proceeding. Father objected to the amount
of attorney fees awarded to mother. The magistrate has yet to
rule on the objection.
The district court agreed with and adopted the magistrates
order awarding the tutoring expenses to mother. Father
appeals the district courts ruling.
In light of the procedural posture of fathers appeal, we
consider whether a contempt order is final and appealable
during the pendency of an objection to the amount of attorney
fees ordered "in connection with" the remedial
contempt sanction. Because we conclude the answer is no, we
dismiss fathers appeal, without prejudice.
In doing so, we respectfully disagree with the holding in
Madison Capital Co. v. Star Acquisition VII I, 214
P.3d 557, 560 (Colo.App. 2009), and side with the line of
authority holding that "reasonable attorneys fees in
connection with the contempt proceeding" are a component
of remedial sanctions under C.R.C.P. 107(d)(2). See
People v. Shell, 148 P.3d 162, 178 (Colo. 2006);
Aspen Springs Metro. Dist. v. Keno, 2015 COA 97, ¶
34, 369 P.3d 716, 724; In re Marriage of Webb, 284
P.3d 107, 109 (Colo.App. 2011); In re Lopez, 109
P.3d 1021, 1024 (Colo.App. 2004); Eichhorn v.
Kelley, 56 P.3d 124, 126 (Colo.App. 2002); Sec.
Invr Prot. Corp. v. First Entmt Holding
Corp., 36 P.3d 175, 178 (Colo.App. 2001); In re
Marriage of Nussbeck, 949 P.2d 73, 75 (Colo.App. 1997),
revd on other grounds, 974 P.2d 493 (Colo. 1999).
The permanent orders, as relevant to this appeal, require the
parties to share the tutoring expenses in proportion to their
incomes. After father refused to pay his share of the
daughters fifth grade tutoring costs, mother moved under
C.R.C.P. 107 for remedial contempt sanctions in the form of
the tutoring expenses and the attorney fees she incurred in
obtaining the sanctions. See C.R.C.P. 107(d)(2)
("In all cases of indirect contempt where remedial
sanctions are sought, the nature of the sanctions and
remedies that may be imposed shall be described in the motion
or citation."). The parties agree that the attorney fees
"are based on the contempt, and [fathers] ability to
pay the purge of the contempt."
Following an evidentiary hearing, the magistrate found father
in contempt. As a remedial sanction, the magistrate entered a
judgment against father in the amount of $ 1,530 for his
unpaid share of the daughters tutoring expenses and $ 11,630
in attorney fees to mother. See C.R.C.P. 107(d)(2)
(providing that a court may assess "[c]osts and
reasonable attorneys fees in connection with [a] contempt
proceeding ... in the discretion of the court"). The
magistrate gave father an opportunity to challenge the
reasonableness of mothers attorney fees.
Father objected to the award of attorney fees and requested a
hearing under C.R.C.P. 121, section 1-22(2)(c). SeeRoberts v. ...