In re the Marriage of Tiffany Rose January, Appellee, and Jeffrey Forrest January, Appellant.
Douglas County District Court No. 13DR30291 Honorable Alex J.
Epstein Patierno LLP, Courtney J. Allen, Denver, Colorado,
Locke Law Firm PC, Teresa D. Locke, Denver, Colorado, for
1 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 daughter's
tutoring expenses. The magistrate found father in remedial
contempt and imposed sanctions consisting of the tutoring
expenses and mother's 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.
2 The district court agreed with and adopted the
magistrate's order awarding the tutoring expenses to
mother. Father appeals the district court's ruling.
3 In light of the procedural posture of father's 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 father's appeal, without prejudice.
4 In doing so, we respectfully disagree with the holding in
Madison Capital Co. v. Star Acquisition VIII, 214
P.3d 557, 560 (Colo.App. 2009), and side with the line of
authority holding that "reasonable attorney's 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. Inv'r Prot. Corp. v. First Entm't
Holding Corp., 36 P.3d 175, 178 (Colo.App. 2001); In
re Marriage of Nussbeck, 949 P.2d 73, 75 (Colo.App.
1997), rev'd on other grounds, 974 P.2d 493
5 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
daughter's 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 [father's] ability
to pay the purge of the contempt."
6 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 daughter's 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 attorney's fees in
connection with [a] contempt proceeding . . . in the
discretion of the court"). The magistrate gave father an
opportunity to challenge the reasonableness of mother's
7 Father objected to the award of attorney fees and requested
a hearing under C.R.C.P. 121, section 1-22(2)(c). See
Roberts v. Adams, 47 P.3d 690, 700 (Colo.App. 2001)
(notwithstanding the discretionary language in C.R.C.P. 121,
section 1-22(2)(c), a party who requests a timely hearing on
the reasonableness of attorney fees is entitled to a
hearing). The magistrate has not yet set a hearing or ruled
on father's objection.
8 Meanwhile, father petitioned for district court review of
the magistrate's contempt order. The district court
adopted the magistrate's order awarding the tutoring
expenses to mother. Father appeals the district court's
9 While this appeal was pending, a motions division of this
court directed the parties to show cause why father's
appeal should not be dismissed, without prejudice, for lack
of a final, appealable judgment, given that the magistrate
has yet to rule on father's objection. ...