5 In the Interest of NJC , 2019 COA 153 ( 2019 )

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
October 10, 2019
2019COA153
No. 2018CA915 In the Interest of NJC — Family Law —
Juvenile Court — Uniform Parentage Act — Modification of
Child Support — Deferred Compensation
A division of the court of appeals holds that deferred
compensation in a nonqualified retirement plan is not income for
child support purposes under the Uniform Parentage Act, section
19-4-101 to 130, C.R.S. 2019. Applying the definition of “income”
in section 14-10-115 of the Uniform Dissolution of Marriage Act,
the division concludes that the father’s deferred compensation is
not income because he did not have the ability to use it to pay his
expenses, including child support.
The division also concludes that the magistrate did not abuse
his discretion in determining not to reallocate to father ninety
percent of the costs paid for parental responsibilities evaluations.
In addition, the division affirms the trial court’s decision not to
reconsider mother’s request for attorney fees paid by maternal
grandfather that were incurred in connection with father’s motion
to modify parenting time.
COLORADO COURT OF APPEALS 2019COA153
Court of Appeals No. 18CA0915
Douglas County District Court No. 12JV77
Honorable Natalie T. Chase, Judge
In re the Parental Responsibilities Concerning N.J.C., a Child,
and Concerning N.E.,
Appellant,
and
V.J.C.,
Appellee.
ORDER AFFIRMED IN PART, REVERSED IN PART,
AND CASE REMANDED WITH DIRECTIONS
Division I
Opinion by JUDGE TAUBMAN
Freyre and Pawar, JJ., concur
Announced October 10, 2019
Fairfield and Woods, P.C., Lee Katherine Goldstein, Michael R. McCurdy,
Denver, Colorado, for Appellant
James J. Keil, Jr., Denver, Colorado, for Appellee
¶1 As a matter of first impression, N.E. (mother) urges us to
conclude that deferred compensation in a nonqualified plan 1 is
income for child support purposes if it is being earned during a
period when a parent is obligated to pay child support. We disagree
with her arguments, and therefore affirm the juvenile court’s order
adopting the magistrate’s order modifying mother’s child support
award from V.J.C. (father). We also affirm the juvenile court’s order
denying mother’s request to reallocate costs paid for parental
responsibilities evaluations (PRE).
¶2 However, we reverse the portion of the juvenile court’s order
denying mother’s request for attorney fees, and we remand the case
to the juvenile court for it to determine the amount. We further
remand for the juvenile court to consider mother’s request for
appellate attorney fees under section 19-4-117, C.R.S. 2019.
1 A “nonqualified deferred-compensation plan” is “[a]n unfunded
compensation arrangement, frequently offered to executives, that
defers compensation and the recognition of its accompanying
taxable income to a later date. . . . It is termed ‘nonqualified’
because it does not qualify for favorable tax treatment” under the
Internal Revenue Code. Black’s Law Dictionary 663 (11th ed.
2019).
1
I. Appellate Standard of Review
¶3 This case arises out of the Uniform Parentage Act (UPA),
sections 19-4-101 to -130, C.R.S. 2019. Magistrates may preside
over UPA actions, but parties have the right to seek a judge’s review
of the magistrate’s findings and rulings. § 19-1-108(1), (4)(b), (5.5),
C.R.S. 2019.
¶4 “We defer to the magistrate’s and district courts’ findings of
fact if they are supported by the evidence and we review
conclusions of law de novo.” In re B.J., 242 P.3d 1128, 1132 (Colo.
2010).
II. Father’s Deferred Compensation Plan
A. Relevant Facts
¶5 Mother and father are the unmarried parents of one child,
N.J.C. In 2013, and as part of the initial paternity proceeding in
this case, father’s child support calculation was based on the salary
he earned working as a cardiologist for his own medical practice.
¶6 In 2016, father closed his practice and accepted a job with
Healthy Connections, Inc. (HCI), a health care center providing
medical, dental, and outreach services to impoverished
communities. Believing that father’s income had gone up at his
2
new job, mother moved to increase child support. Father, however,
responded that his income had actually decreased.
¶7 Evidence presented at a hearing on mother’s motion showed
that father’s compensation package with HCI consisted of a
$150,000 annual salary and $200,000 of yearly deferred
compensation in a nonqualified plan. Father, who was then
fifty-two years old, testified that he would only receive the deferred
compensation after he retired from HCI at age sixty-five. HCI’s
CEO, his brother, agreed that father “does not receive — physically
receive $200,000 above his salary,” and he described the deferred
compensation as “an obligation at a future date and time for
[father’s] benefit providing that he meets the criteria after his
retirement.”
¶8 The CEO explained that the deferred compensation plan
allowed HCI to attract and retain qualified medical doctors, like
father, that it could not otherwise afford. He testified that half of
the ten to thirteen medical doctors on HCI’s staff were employed
under the deferred compensation plan. According to the CEO,
while each plan was tailored to the employee, they all had the same
payout structure — the employee had to retire from HCI at a certain
3
age before he or she would receive any deferred funds, which would
then be paid over ten years. As of the hearing date, the CEO said
that the deferred compensation plan was unfunded; in fact, the
CEO stated there was not even an account established with which
to pay deferred compensation.
¶9 Regarding father’s specific deferred compensation plan, the
CEO submitted a letter to father’s counsel (admitted at the hearing
as Exhibit A) detailing that father had no control over the funds or
the plan; the deferred amounts belonged to HCI and were not
protected in case of insolvency or creditor claims; the deferred
amounts were subject to forfeiture if father was fired, quit, or
retired before age sixty-five; father would not be fully vested until he
worked at HCI for five years; and the funds were not taxable until
received by the employee.
¶ 10 Arguing that it was significant that father earned the money,
even if he did not actually receive it, mother asked the magistrate to
include the deferred compensation as income to father. The
magistrate declined to do so, based on the restrictive provisions of
father’s plan described above. The magistrate then modified
4
father’s child support obligation, including in father’s income only
his salary and nominal dividend and interest income.2
¶ 11 The juvenile court judge adopted the magistrate’s decision not
to include the deferred compensation, pointing out the magistrate’s
reasoning that father could not contribute to the plan, had no
control over the funds, and had no guarantee he would ever receive
the money.
B. Deferred Compensation is Not Income
¶ 12 Section 14-10-115, C.R.S. 2019, applies to child support
obligations established or modified under the UPA. § 19-4-129,
C.R.S. 2019. We review child support orders for an abuse of
discretion. In re Marriage of Garrett, 2018 COA 154, ¶ 8, 444 P.3d
812, 815. However, we review de novo the legal standard applied by
the court. In re Marriage of Tooker, 2019 COA 83, ¶ 12, 444 P.3d
856, 859.
2 The magistrate also found that father’s decision to leave his former
employment and work with HCI was a good faith career choice and
was not intended to deprive N.J.C. of child support or unreasonably
reduce the support available to him.
5
¶ 13 A child support calculation begins with a determination of the
parties’ combined gross incomes. See § 14-10-115(1)(b)(I), (5)(a). A
parent’s gross income for child support purposes is “income from
any source[.]” § 14-10-115(5)(a)(I).
¶ 14 The statute, however, neither specifically includes nor
excludes “deferred compensation” as gross income available to a
parent. See id. (nonexclusive list of income included in definition of
gross income); § 14-10-115(5)(a)(II) (excluding certain income from
definition of gross income).
¶ 15 No Colorado case has addressed this specific issue. Thus, we
look to other Colorado appellate decisions addressing whether
financial benefits or contributions not specifically defined by the
statute are income for child support purposes. We then consider
similar decisions from other states.
¶ 16 In re Marriage of Mugge, 66 P.3d 207, 210 (Colo. App. 2003),
addressed whether an employer’s pension contributions, not yet
distributed to the employee, were gross income for child support
purposes. The division decided that such pension contributions
were not because “the employers determined the amounts of their
pension plan contributions and the employees did not have the
6
option of directly receiving the amounts as wages.” Id. at 211.
Until distribution of the funds actually occurred, the division
concluded, the employer contribution was not income. Id.
¶ 17 The division in In re Marriage of Davis, 252 P.3d 530, 534
(Colo. App. 2011), similarly concluded that employer contributions
to a parent’s 401(k) and health insurance plans were not income for
child support purposes. Like Mugge, the division reasoned that
unrealized employer contributions are income only if the employee
has the option to receive the contributions as wages and use them
for general living expenses. Id. at 535.
¶ 18 Most recently, the division in Tooker, ¶¶ 1-2, 444 P.3d at 858,
considered whether tuition assistance and a book stipend paid
through a GI Bill were income for child support and maintenance
purposes. The district court concluded that the benefits were not
income, since they were paid directly to the college and the parent
could not use them for daily living or discretionary expenses. Id. at
¶¶ 9-10, 444 P.3d at 859.
¶ 19 In reviewing the district court’s decision, the Tooker division
found Davis and Mugge “instructive”:
7
The principle that emerges from these cases is
that, to be included as gross income for
purposes of maintenance and child support,
benefits received by an individual (if not
otherwise excluded from the definition of gross
income in the maintenance and child support
statutes) must be available for the individual’s
discretionary use or to reduce daily living
expenses.
Tooker, ¶ 18, 444 P.3d at 860.
¶ 20 Following that principle, the division upheld the district
court’s conclusion that the tuition and book stipend benefits were
not income because the parent could not receive the benefits
personally or use them to pay expenses. Id. at ¶¶ 19-21, 444 P.3d
at 860-61.
¶ 21 Last, the supreme court in In re A.M.D., 78 P.3d 741, 745
(Colo. 2003), discussed whether all or only a portion of the principal
of a monetary inheritance should be included in gross income for
child support purposes. The A.M.D. court directed the district court
to examine the recipient’s use of the inheritance to determine how
much should be included as income for child support. Id. at 746.
It held that the principal was income only “[i]f the recipient uses the
principal as a source of income either to meet existing living
expenses or to increase the recipient’s standard of living.” Id.
8
¶ 22 We agree with the principle arising from A.M.D., Tooker, Davis,
and Mugge, and conclude that deferred compensation is income
only if the parent has the ability to use it to pay his or her
expenses, including child support. See A.M.D., 78 P.3d at 746;
Tooker, ¶¶ 18, 20-21, 444 P.3d at 860-61; Davis, 252 P.3d at 535;
Mugge, 66 P.3d at 211.
¶ 23 This decision accords with decisions made in other states.
See, e.g., Severn v. Severn, 567 S.W.3d 246, 262-63 (Mo. Ct. App.
2019) (Deferred compensation is not income because there is “no
discernible way in which the contributions made to the deferred
compensation plan would be available to [the parent] in satisfying
any child support obligation.”); Jordan v. Brackin, 992 P.2d 1096,
1100 (Wyo. 1999) (income does not include mandatory deferred
compensation that is not available until death, termination of
employment, or unforeseeable emergency because it does not
provide the parent with money); cf. Milinovich v. Womack, 343 P.3d
924, 926, 930 (Ariz. Ct. App. 2015) (monies withdrawn from
investment account funded with deferred compensation was income
because the account was established with the specific purpose of
using the deferred compensation to pay day-to-day living expenses).
9
¶ 24 Turning to father’s deferred compensation plan, we conclude
that it is not income. Father does not voluntarily contribute to the
plan and he has no control over the funds or the plan’s
administration. He does not currently receive money from the plan
and may not invade the account, when it is funded, to withdraw
funds as he chooses. Father will receive the deferred compensation
funds only after he retires from HCI at age sixty-five and, even then,
there is no guarantee father will receive any of the funds. Because
father only has a “promise” to receive the deferred compensation
when he turns sixty-five, which in no way assists him in paying his
expenses at the present time, father’s deferred compensation plan is
not income.
¶ 25 We have reviewed the out-of-state authority cited by mother to
support her argument that deferred compensation should be
considered income for child support purposes. However, we find
those cases factually distinguishable, because they involve
employees who voluntarily chose to defer or redirect their receipt of
income. See Jones v. Jones, 883 So. 2d 207, 211-12 (Ala. Civ. App.
2003) (payments parent chose to redirect to health insurance
premiums instead of to his paycheck); Ennis v. Venable, 689 So. 2d
10165, 166 (Ala. Civ. App. 1996) (wages voluntarily deferred to a
retirement account); Bergstrom v. Lindback, 779 P.2d 1235, 1237
(Alaska 1989) (amounts voluntarily deposited into a deferred
income compensation account); Leineweber v. Leineweber, 102 A.3d
827, 833 (Md. Ct. Spec. App. 2014) (same); Marsh v. Fieramusca,
569 N.Y.S.2d 1012, 1014-15 (Fam. Ct. 1991) (amounts voluntarily
deposited in a retirement plan instead of taken as wages); Murray v.
Murray, 716 N.E.2d 288, 293-94 (Ohio Ct. App. 1999) (concluding
that unexercised stock options were gross income because the
recipient had complete discretion to exercise the options every
twelve months and realize the income). Unlike in these cases,
father did not receive any income that he could defer.
¶ 26 We are also not persuaded by mother’s argument that
excluding deferred compensation from a parent’s gross income will
encourage a parent to manipulate his or her salary in order to shirk
a child support obligation. While that may occur in some cases, the
magistrate did not conclude that this is what happened here.
¶ 27 True, HCI’s CEO is father’s brother. Even so, the record
shows that HCI’s board of directors decided to hire a qualified
cardiologist at about the same time that changes in the health care
11
system prompted father to shut down his medical practice. Father
was one of at least five medical doctors employed under HCI’s
deferred compensation plan, and there is no indication that he
specifically asked to be part of the plan. Nor is there evidence that
father accepted the deferred compensation plan in lieu of receiving
a higher salary or receiving some other immediately payable benefit
from HCI.
¶ 28 We are also unpersuaded by mother’s argument that any
decision to exclude deferred compensation as income will unfairly
deprive children of the support to which they are entitled. The
legislature has expressed an intention that child support orders be
“subject to the ability of parents to pay[.]” § 14-10-115(1)(b)(I).
Calculating child support based on a source of money that a parent
does not now, and may never, receive would frustrate that
intention.
¶ 29 Accordingly, because father’s deferred compensation is not
income, the magistrate correctly excluded it from father’s gross
income when modifying child support. Because mother does not
raise any other challenges to the child support modification, we
12
affirm that portion of the juvenile court’s order upholding the
magistrate’s child support modification.
III. Attorney Fees and Costs Requested in Connection With the
Parenting Time Modification Hearing
¶ 30 Mother contends that it was an abuse of the magistrate’s
discretion not to reallocate to father 90% of the PRE costs and to
refuse to consider her request for attorney fees arising in
connection with father’s motion to modify parenting time. We
disagree.
A. Background
¶ 31 Father sought to increase his parenting time in 2015. On
mother’s motions, the magistrate ordered a PRE and supplemental
PRE to address the disputed parenting time issues. Before the
parenting time hearing, the magistrate issued the following order:
[T]he parties must file a JOINT Trial
Management Certificate (JTMC) in compliance
with C.R.C.P. 16.2(h), which will include each
party’s position on every issue for which the
parties are seeking a ruling. Failure to include
an issue in the JTMC may preclude that issue
from being heard.
....
The judge will read the JTMC prior to the
hearing and the JTMC will be your Opening
13
Statement. The Court should be able to fully
understand your client’s position on issues by
reading the JTMC.
¶ 32 The parties’ JTMC averred that the only disputed issue was
father’s request to increase parenting time. Under that part of the
JTMC alerting the court to “Other Matters,” the parties wrote
“None.” The parties stated that they did not exchange sworn
financial affidavits because “there are no financial issues presently
before this [c]ourt.”
¶ 33 During the parenting time hearing, the parties and magistrate
decided to postpone issues concerning “all financial matters” to a
future hearing. The magistrate noted in her minute order that she
“retains and reserves jurisdiction to address reallocation of PRE
costs/fees once financial affidavits have been updated.”
¶ 34 After the magistrate issued her parenting time modification
order, mother moved to modify child support (the same motion
referenced in Part II.A, above). In that motion, mother asked the
magistrate to reallocate to father the costs she paid for the PREs
and to award her the attorney fees and costs she “incurred in this
matter.” The magistrate prohibited mother from raising at the child
14
support hearing any attorney fees request relating to the parenting
time hearing.
¶ 35 Mother again raised her requests for fees and costs arising
from the parenting time hearing in the JTMC filed before the child
support hearing. She argued that the parties had unequivocally
agreed during the parenting time hearing to postpone “all” financial
issues, which included her attorney fees and PRE reallocation
requests.
¶ 36 Once more, the magistrate declined to revisit the issue of
attorney fees from the parenting time hearing at the child support
hearing. The magistrate then denied mother’s request to reallocate
the PRE costs to father. The juvenile court upheld these findings
and conclusions on review.
B. The Magistrate Did Not Abuse Her Discretion
¶ 37 We address that part of mother’s argument concerning the
reallocation of PRE costs first.
¶ 38 Other than state that the magistrate should have reallocated
the PRE costs, mother’s opening brief analyzes only the issue of
whether the magistrate erred by refusing to reconsider her attorney
fees request. Absent any discussion concerning the PRE fees
15
reallocation, we deem the argument abandoned and decline to
consider it. See In re Marriage of Marson, 929 P.2d 51, 54 (Colo.
App. 1996); see also People v. Simpson, 93 P.3d 551, 555 (Colo.
App. 2003) (reviewing court will not consider bald legal proposition
presented without argument or development).
¶ 39 Turning to the attorney fees argument, we discern no abuse of
discretion in the magistrate’s refusal at the child support hearing to
consider mother’s request for attorney fees arising in connection
with the parenting time hearing.
¶ 40 The magistrate ordered the parties to comply with C.R.C.P.
16.2(h) and file a JTMC containing “every issue for which the
parties are seeking a ruling.” (Emphasis added.) See C.R.C.P.
16.2(a) (the Rule 16.2 case management procedures applicable to
domestic relations proceedings may govern juvenile or paternity
cases if the court so orders). Mother did not comply with that order
by specifying that she sought an award of attorney fees in
connection with the parenting time hearing. Thus, we see no abuse
of discretion in the magistrate’s refusal to consider the issue at a
later hearing. See In re Marriage of Cardona, 321 P.3d 518, 527
(Colo. App. 2010) (courts have considerable discretion to impose
16
appropriate sanctions for noncompliance with C.R.C.P. 16.2), aff’d
on other grounds, 2014 CO 3.
¶ 41 Mother does not convince us that the parties otherwise agreed
to postpone this issue to a later date. The record on this issue is
limited to a transcript excerpt from the parenting time hearing and
the magistrate’s minute order. To be sure, the magistrate’s written
minute order specified reserving jurisdiction over “PRE costs/fees.”
Read together, they show only a discussion about the PRE fees and
costs and father’s anticipated motion to modify child support.
There is no reference to attorney fees.
IV. Attorney Fees and Costs Incurred in Connection With
the Child Support Hearing
¶ 42 Mother contends that the magistrate abused her discretion by
requiring each party to pay his or her own attorney fees arising in
connection with her motion to modify child support. We disagree.
¶ 43 Under section 19-4-117, the court shall order reasonable fees
of counsel to be paid by the parties in proportions and at times
determined by the court. We will not disturb a court’s attorney fees
determination under this section unless it clearly abuses its
discretion. W.C. in Interest of A.M.K., 907 P.2d 719, 723 (Colo. App.
17
1995). “A juvenile court abuses its discretion ‘when its decision is
manifestly arbitrary, unreasonable, or unfair, or when it misapplies
the law.’” People in Interest of A.N-B., 2019 COA 46, ¶ 9, 440 P.3d
1272, 1276 (citation omitted).
¶ 44 Section 19-4-117 is silent as to what factors the juvenile court
may consider when addressing an attorney fees request under this
section. Cf. § 14-10-119, C.R.S. 2019 (requiring court to consider
“the financial resources of both parties”). However, the parties’
finances, the protracted nature of litigation, and the high costs of
fees resulting from their “ceaseless arguments” may be relevant
considerations. See In Interest of D.R.V., 885 P.2d 351, 354 (Colo.
App. 1994); see also S.F.E. in Interest of T.I.E., 981 P.2d 642, 650
(Colo. App. 1998).
¶ 45 The magistrate here looked at these factors. She made
findings about the parties’ financial circumstances, including
father’s higher income but also mother’s (1) failure to “make any
reasonable effort to obtain full time gainful employment”; (2) ability
to earn at least a $3000 monthly income; (3) receipt of $2184
monthly in cash gifts, interest and dividends, and rental income;
and (4) being “voluntarily support[ed]” by her father (maternal
18
grandfather) “to the extent that she cannot or will not meet her own
financial needs.” As to this last factor, the magistrate further found
that maternal grandfather had paid $16,000 toward mother’s credit
card bills and more than $512,000 of her attorney fees. The
magistrate also found that both parties had “over litigated and
under resolved the post decree issues in this case and have
incurred excessive amounts of attorney’s fees and costs in doing
so.”
¶ 46 These findings sufficiently support the magistrate’s decision
for both parties to bear their own fees. The order is not manifestly
arbitrary, unreasonable, or unfair, and, therefore, we affirm it on
review. See W.C., 907 P.2d at 723.
¶ 47 Insofar as mother argues it, nothing in section 19-4-117
prohibited the magistrate from considering maternal grandfather’s
financial contributions. Cf. Davis, 252 P.3d at 538 (allowing court
to consider wife’s new husband’s financial contributions to wife’s
living expenses when assessing her economic circumstances under
section 14-10-119).
¶ 48 Accordingly, we reject mother’s argument that the magistrate
issued her order “in the complete absence of any information about
19
[maternal grand]father’s ability to pay these amounts.” Any fault in
this regard lay at mother’s feet.
¶ 49 Despite the apportionment of fees being a disputed issue for
the child support hearing, and knowing that father specifically
objected to paying mother’s fees because maternal grandfather had
already paid them, mother chose not to call maternal grandfather
as a witness at the hearing. If mother wanted the magistrate to
consider maternal grandfather’s financial ability to pay her attorney
fees, she should have presented such evidence to the magistrate.
See In re Marriage of Krejci, 2013 COA 6, ¶ 23 (parties must present
relevant evidence to the court, and their failure to do so does not
provide grounds for reversal); see also In re Marriage of Eisenhuth,
976 P.2d 896, 901 (Colo. App. 1999) (the court is required to
consider the evidence presented to it; it does not act as a surrogate
attorney).
¶ 50 We reject mother’s argument that by failing to make father pay
for her attorney fees, the magistrate was perpetuating the parties’
financial disparity. Section 19-4-117 is not intended to equalize the
parties’ financial status. Cf. In re Marriage of Anthony-Guillar, 207
P.3d 934, 944 (Colo. App. 2009) (the intention of an attorney fees
20
award under section 14-10-119 is to equalize the parties’ financial
status). Rather, the section provides that “The court shall order
reasonable fees of counsel . . . and other costs of the action . . . to
be paid by the parties in proportions and at times determined by
the court.” § 19-4-117. In awarding attorney fees, the court may
consider the existing factual circumstances, like the parties’
finances, the protracted nature of litigation, and the high cost of
fees. See In Interest of D.R.V., 885 P.2d 351, 354 (Colo. App. 1994).
¶ 51 Yet even if the intent of the section was to equalize the parties’
financial status, an award of attorney fees payable from father to
maternal grandfather in no way fosters the objective of ensuring
financial equality between father and mother, especially given
mother’s testimony that she did not intend to repay maternal
grandfather for his payment of attorney fees on her behalf. See In
re Marriage of Benjamin, 740 P.2d 532, 533 (Colo. App. 1987)
(awarding attorney fees to deceased wife’s attorney does not
equalize the parties’ status).
¶ 52 Thus, we conclude that under section 19-4-117, mother is
entitled to attorney fees, and we remand to the trial court to
determine the amount.
21
¶ 53 Finally, we decline to consider the argument raised in a
footnote in the reply brief that the magistrate erred by failing to
reallocate the PRE costs based on the parties’ assets. See Simpson,
93 P.3d at 555 (declining to consider arguments not raised until the
reply brief). We are unpersuaded by mother’s statement (also in the
footnote) that she “cover[ed]” this argument in the opening brief,
because nothing in the opening brief supports this statement. The
argument summary, the argument heading, and the argument itself
discuss only the apportionment of attorney fees following the child
support hearing. See id. (refusing to consider contention presented
in a footnote that was not set forth in the summary of argument or
as an issue on appeal in the opening brief as required by C.A.R.
28(a)). In contrast, mother’s prior argument (Part III, above) raised
both the attorney fees and PRE issues arising from the parenting
time hearing (even if we ultimately deemed the PRE argument
abandoned).
V. Appellate Attorney Fees
¶ 54 Mother requests an award of her appellate attorney fees under
section 19-4-117. Although we recognize father’s objection that
mother will continue to litigate as long as she is “bankrolled” by
22
maternal grandfather, we conclude that mother is entitled to
appellate attorney fees and remand to the juvenile court to
determine the amount, if any. See C.A.R. 39.1; § 19-4-117.
However, we note that she is entitled only to those attorney fees
that she paid. Thus, on remand, the juvenile court should consider
whether mother’s appellate attorney fees have been or will be paid
by maternal grandfather or any other third party.
VI. Conclusion
¶ 55 The order is affirmed, and the case is remanded to the juvenile
court for consideration of mother’s appellate attorney fees request.
JUDGE FREYRE and JUDGE PAWAR concur.
23