In re Marriage of January

          Douglas County District Court No. 13DR30291 Honorable Alex J. Martinez, Judge

          Epstein Patierno LLP, Courtney J. Allen, Denver, Colorado, for Appellee

          The Locke Law Firm PC, Teresa D. Locke, Denver, Colorado, for Appellant

          OPINION

          LIPINSKY JUDGE

         ¶ 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 (Colo. 1999).

         I. Background

         ¶ 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 attorney fees.

         ¶ 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 decision.

         ¶ 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. ...