In re the Marriage of Kronbach ( 1988 )

PIERCE, Judge.

Husband, Henry B. Kronbach, appeals a trial court order dismissing his motion for modification of a dissolution decree because of his failure to post a nonresident cost bond. He also appeals the trial court’s award of attorney fees to wife, Linda Foster Kronbach. We affirm.

I.

Husband first contends that the trial court erred in ordering him to post a nonresident cost bond. He does not appeal the issue of the amount of that bond so we do not address that matter. Specifically, he argues that because he was the “defendant” in the dissolution proceeding, he was required improperly to post a bond. We disagree.

Section 13-16-101, C.R.S. (1987 Repl.Vol. 6A) provides, in pertinent part, that:

“[I]n all cases in law and equity where the plaintiff, or the person for whose use an action is to be commenced, is not a resident of this state, the person ... shall file ... [a cost bond].”

Here, the record shows that husband was the person for whose use the action to modify was commenced. As movant, husband sought to have the prior dissolution decree modified in order to terminate wife’s maintenance. There is no question that such action was commenced for husband’s use or benefit. Therefore, because he was a nonresident, the trial court properly required him to post the bond.

II.

Husband also argues that the trial court improperly awarded to wife her attorney fees. Again, we disagree.

The record shows that the trial court’s award was based upon a consideration of both § 14-10-119, C.R.S. (1987 Repl-Vol. 6B) and § 13-17-102(6), C.R.S. (1987 Repl. Vol. 6A). Because the award itself is supported by the application of § 14-10-119, it is not necessary to consider the trial court’s determination of frivolity. See Metropolitan Industrial Bank v. Great Western Products Corp., 158 Colo. 198, 405 P.2d 944 (1965).

The order of the trial court is affirmed. Wife’s request for attorney fees incurred on appeal is hereby granted and the cause is remanded for further proceedings to determine the amount and award it accordingly.

TURSI and PLANK, JJ., concur.