In re Marriage of January , 446 P.3d 954 ( 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
June 13, 2019
2019COA87
No. 17CA2416, In re Marriage of January — Civil Procedure —
Remedial and Punitive Sanctions for Contempt; Attorney Fees;
Appeals — Final Appealable Order
The case addresses whether an order imposing remedial
sanctions is final and, therefore, appealable if the lower court has
not yet determined the amount of attorney fees awardable as part of
the sanction. A division of the court of appeals concludes that such
an order is not final, siding 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). In reaching this conclusion, the division respectfully
disagrees with Madison Capital Co. v. Star Acquisition VIII, 214 P.3d
557 (Colo. App. 2009).
COLORADO COURT OF APPEALS 2019COA87
Court of Appeals No. 17CA2416
Douglas County District Court No. 13DR30291
Honorable Alex J. Martinez, Judge
In re the Marriage of
Tiffany Rose January,
Appellee,
and
Jeffrey Forrest January,
Appellant.
APPEAL DISMISSED
Division IV
Opinion by JUDGE LIPINSKY
Román and J. Jones, JJ., concur
Announced June 13, 2019
Epstein Patierno LLP, Courtney J. Allen, Denver, Colorado, for Appellee
The Locke Law Firm PC, Teresa D. Locke, Denver, Colorado, for Appellant
¶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.
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Ohio 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
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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.
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¶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. After the parties responded, the division deferred ruling
to the merits division.
II. Finality
¶ 10 We address whether the district court’s order adopting the
magistrate’s contempt order is final and appealable, even though
the magistrate has yet to rule on father’s objection to the amount of
attorney fees awarded to mother. See Allison v. Engel, 2017 COA
43, ¶ 22, 395 P.3d 1217, 1222 (“We must determine independently
our jurisdiction over an appeal, nostra sponte if necessary.”).
¶ 11 “A ‘final decision’ generally is one which ends the litigation on
the merits and leaves nothing for the court to do but execute the
judgment.” Baldwin v. Bright Mortg. Co., 757 P.2d 1072, 1073
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(Colo. 1988) (quoting Budinich v. Becton Dickinson & Co., 486 U.S.
196, 199 (1988)) (determining that district court order dismissing
defendants’ third-party claim and awarding attorney fees against
them for bringing a frivolous action under section 13-17-102,
C.R.S. 2018, was final and appealable even though the district
court had reserved the amount of attorney fees for later
determination). But see Axtell v. Park Sch. Dist. R-3, 962 P.2d 319,
321 (Colo. App. 1998) (deciding that district court order granting
attorney fees under section 13-17-102 was not final and appealable
because the attorney fee amount had not yet been determined).
¶ 12 Under C.R.M. 7(a)(3), only a final magistrate’s order is
reviewable. “For the purposes of appeal, an order deciding the
issue of contempt and sanctions shall be final.” C.R.C.P. 107(f).
Thus, a contempt order is final once the district court adjudicates
the contempt issue and imposes a “complete” sanction. See Sec.
Inv’r Prot. Corp., 36 P.3d at 178 (By its plain language, C.R.C.P.
107(f) “requires that, to constitute a final order, the determination
of sanctions must be completed.”).
¶ 13 As father points out, the holding in Madison Capital is almost
directly on point. There, the division held that a contempt order
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and a later attorney fee order “in connection with [the] violation of
the Order” were separately appealable. Madison Capital, 214 P.3d
at 559-60. Relying on Baldwin, the division reasoned that “[a] final
judgment on the merits is appealable regardless of any unresolved
issue of attorney fees.” Id. at 560. The division dismissed as
untimely the portion of the appeal concerning the underlying
contempt order, but considered the appeal of the later attorney fee
order. See id. We note that, unlike the present case, the contemnor
in Madison Capital did not challenge the reasonableness of the
attorney fee award. See id. at 559.
¶ 14 We disagree with the division’s holding in Madison Capital.
See People v. Abu-Nantambu-El, 2017 COA 154, ¶ 88, ___ P.3d ___,
___ (“[O]ne division of the court of appeals is not bound by a
decision of another division.”) (cert. granted Oct. 15, 2018).
¶ 15 As other divisions of this court have concluded, reasonable
attorney fees are a component of remedial sanctions under C.R.C.P.
107(d)(2). See Webb, 284 P.3d at 109 (“We first conclude that
attorney fees can be awarded only as a component of remedial
sanctions.”); Eichhorn, 56 P.3d at 126 (“C.R.C.P. 107(d)(2)
specifically allows an award of attorney fees as a remedial
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sanction . . . .”); see also Aspen Springs Metro. Dist., ¶ 34, 369 P.3d
at 724 (holding that remedial sanctions, such as the assessment of
costs and attorney fees, cannot be imposed against a defendant
whose violation of a court order had occurred in the past and,
therefore, he could no longer purge his contempt); Lopez, 109 P.3d
at 1024 (“Although attorney fees may be awarded in connection
with remedial contempt, they may not be imposed as part of a
punitive contempt sanction.”); Sec. Inv’r Prot. Corp., 36 P.3d at 178
(“[O]ther than costs and reasonable attorney fees, [under] C.R.C.P.
107(d)(2), a trial court is without authority to require, as a remedial
sanction, . . . payments . . . that do not force compliance with or
performance of a court order.”); Nussbeck, 949 P.2d at 75 (a
remedial order is “the predicate for the award of attorney fees”); cf.
Shell, 148 P.3d at 178 (“Rule 107(d)(2) permits the assessment of
costs and attorneys’ fees where remedial sanctions are imposed
against a contemnor.”).
¶ 16 We agree with those cases’ conclusion that C.R.C.P. 107(d)(2)
allows a district court to award reasonable attorney fees as a
remedial sanction. (Father does not contest that the attorney fee
award is part of the remedial sanction.) Therefore, a contempt
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order is not final until the attorney fees portion of the remedial
sanction has been completely resolved. See C.R.C.P. 107(f).
¶ 17 In sum, father appealed too soon because the magistrate has
not completed imposing remedial contempt sanctions against him.
Accordingly, we must dismiss his appeal, without prejudice, for lack
of a final order. See C.R.C.P. 107(f); Sec. Inv’r Prot. Corp., 36 P.3d at
178.
III. Appellate Attorney Fees
¶ 18 Given our conclusion that we lack jurisdiction to consider
father’s appeal, we need not address mother’s request for recovery
of her appellate attorney fees and costs under C.A.R. 39.1 and
section 13-17-102. See In re Marriage of Barnes, 907 P.2d 679, 685
(Colo. App. 1995) (remanding for further proceedings where the
record was insufficient to allow appellate court to determine
whether the court erred in denying the husband’s section 13-17-
102 attorney fees request). (Mother’s answer brief cites to the
previous number of the rule, C.A.R. 39.5, which pre-dates her
request for appellate attorney fees.) Mother’s attorney fees request
under C.A.R. 39.1 and section 13-17-102 will be ripe for
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adjudication once the district court enters a final, appealable order
setting the full amount of the remedial sanction.
IV. Conclusion
¶ 19 We dismiss the appeal, without prejudice, for lack of a final
order.
JUDGE ROMÁN and JUDGE J. JONES concur.
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