In re Marriage of Durie , 2018 COA 143 ( 2018 )

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
September 20, 2018
2018COA143
No. 17CA1295, In re Marriage of Durie — Civil Procedure —
Court Facilitated Management of Domestic Relations Cases —
Disclosures
A division of the court of appeals considers whether the
district court erred in granting husband’s motion to dismiss wife’s
motion to reopen the division of marital property under C.R.C.P.
16.2(e)(10). Following In re Marriage of Runge, 2018 COA 23M, 415
P.3d 884, the division concludes that C.R.C.P. 12(b)(5) and the
“plausibility” standard set forth in Warne v. Hall, 2016 CO 50, 373
P.3d 588, do not apply to a Rule 16.2(e)(10) motion.
The division also concludes, as matters of first impression,
that a moving party may make allegations on information and belief
in a Rule 16.2(e)(10) motion and that such party may be permitted
to undertake discovery to support his or her motion.
Accordingly, the division reverses the district court’s order and
remands the case with directions.
COLORADO COURT OF APPEALS 2018COA143
Court of Appeals No. 17CA1295
Douglas County District Court No. 14DR30238
Honorable Michael Spear, Judge
In re the Marriage of
Steven R. Durie,
Appellee,
and
Kelly J. Durie, n/k/a Kelly J. Simmerman,
Appellant.
ORDER REVERSED AND CASE
REMANDED WITH DIRECTIONS
Division I
Opinion by JUDGE TAUBMAN
Welling and Kapelke*, JJ., concur
Announced September 20, 2018
Epstein Patierno, LLP, Steven B. Epstein, Wendy J. Smock, Denver, Colorado,
for Appellee
Stevens, Littman, Biddison, Tharp & Weinberg, LLC, Craig A. Weinberg,
Boulder, Colorado, for Appellant
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2018.
¶1 What happens when a spouse in a post-dissolution of
marriage proceeding believes that the other spouse failed to disclose
facts that materially impacted the valuation of a significant marital
asset — their business — during negotiations for their separation
agreement before the entry of the decree? C.R.C.P. 16.2(e)(10)
provides a mechanism for that spouse to seek to reopen the division
of marital property if the other spouse made misstatements or
omissions concerning material assets. However, the rule does not
address whether such a motion may be countered with a motion to
dismiss, whether the moving party may make allegations based on
information and belief, or whether the moving party is entitled to
undertake limited discovery in support of his or her motion.
¶2 In this case, we follow the division’s opinion in In re Marriage
of Runge, 2018 COA 23M, 415 P.3d 884, concluding that filing a
motion to dismiss under C.R.C.P. 12(b)(5) is not proper. We also
conclude, as matters of first impression, that a moving party may
make allegations on information and belief and that such party may
be permitted to undertake discovery to support his or her motion.
1
I. Overview
¶3 In this post-dissolution of marriage proceeding between Steven
R. Durie (husband) and Kelly J. Durie (wife), now known as Kelly J.
Simmerman, wife appeals the district court’s order dismissing her
motion to reopen the property division.
¶4 About three years after the district court entered a decree
incorporating a separation agreement dividing the parties’ marital
property, wife moved under Rule 16.2(e)(10) to reallocate proceeds
from husband’s post-decree sale of business assets. In response,
husband filed a motion to dismiss wife’s motion, which the district
court granted. Wife appealed.
¶5 Both parties initially focused their arguments on whether the
district court properly applied Rule 12(b)(5) and the “plausibility”
standard set forth in Warne v. Hall, 2016 CO 50, 373 P.3d 588.
After the parties submitted their briefs but before oral argument, a
division of this court decided Runge, holding that Rule 12(b)(5) and
the Warne plausibility standard do not apply to a Rule 16.2(e)(10)
motion.
¶6 Therefore, we asked the parties to address this holding of
Runge during oral argument, as well as whether wife could allege
2
facts on information and belief in her motion and whether she was
entitled to conduct discovery on her motion. Wife’s counsel
asserted at oral argument (1) that he did not agree with the Runge
division’s holding and (2) that C.R.C.P. 7(b)(1) provided an
appropriate standard for determining whether to allow a party to
proceed on a motion under Rule 16.2(e)(10) by requiring that such a
motion “state with particularity the grounds therefor, and . . . set
forth the relief or order sought.” For his part, husband’s counsel
agreed with the Runge division’s holding, but also argued that Rule
16.2(e)(10) is essentially an anti-fraud provision, and therefore a
motion under that rule must comply with C.R.C.P. 9(b), which
requires that in all pleadings “aver[ring] . . . fraud or mistake, the
circumstances constituting fraud or mistake shall be stated with
particularity.” Wife maintained that her motion set forth sufficient
facts under any standard to warrant discovery, while husband
urged us to affirm the district court’s order under any of the
asserted standards.
¶7 We now reverse the district court’s order and remand with
directions for further proceedings.
3
II. Background
¶8 Husband filed for divorce in April 2014. At the parties’
request, the district court incorporated a separation agreement
dividing the marital estate in a decree of dissolution issued in
September 2014. Under the separation agreement, husband
received the parties’ business interests with an equalization
payment due to wife for half of the value. In the separation
agreement, the parties agreed that the total business assets were
valued at $878,589. A joint appraisal expert had valued the
business assets at $855,000 investment value and $770,000 fair
market value as of August 2014. Additionally, wife hired an
independent expert, who valued the business assets at just under
$920,000.
¶9 In 2017, wife moved under Rule 16.2(e)(10) and under a
similarly worded provision of the separation agreement to set aside
or reopen the property division and reallocate the proceeds from
husband’s post-decree sale of a portion of the business interests.
¶ 10 Wife alleged in her motion that husband had failed to disclose
facts that materially impacted the value of the parties’ business
assets. Specifically, she alleged that in October 2015 — just over a
4
year after the decree was entered — husband sold a portion of the
business interests that were allocated to him under the separation
agreement to a Tennessee company for $6,900,000, over 850%
more than the parties’ joint expert had valued the total business
interests.
¶ 11 She further alleged, on information and belief, that husband
had traveled to Tennessee in May 2014 and had “engaged in
negotiations to sell a portion of the business” interests prior to the
parties entering into the separation agreement. Wife claimed that,
[u]pon information and belief, Husband had
been in negotiations with [the Tennessee
purchaser] involving a deal or potential deal to
sell [the business or a portion thereof] prior to
the time that the joint expert had performed
his valuation. Upon information and belief,
Husband failed to disclose and intentionally
concealed material facts that impacted the
value of the parties’ business and the
valuation performed by [the expert] and/or
failed to update the information to [the expert]
or Wife once those negotiations commenced.
¶ 12 Husband moved to dismiss wife’s motion, asserting that she
had not alleged sufficient facts to trigger Rule 16.2(e)(10). Husband
admitted that he had sold “some” of the business assets in October
2015 for $6,900,000 to a Tennessee purchaser. He further
5
admitted that he had travelled to Tennessee in May 2014, but
denied that the purpose of the trip was to engage in any
negotiations. Nevertheless, husband argued that there was no
basis to reopen the property division because the parties had
retained a joint valuation expert to appraise their businesses before
entering into the separation agreement.
¶ 13 Wife responded, arguing that, although husband had not set
forth a standard for evaluating his motion, the court should treat it
as one under Rule 12(b)(5). Thus, wife argued that Warne’s
plausibility standard applied. She asserted that she had stated
plausible grounds for relief. She also requested attorney fees under
section 13-17-102, C.R.S. 2017, or, alternatively, under section 14-
10-119, C.R.S. 2017.
¶ 14 The district court applied the plausibility standard as
articulated in Warne and Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 554-56 (2007), and held that wife’s allegations were
insufficient “to nudge her claim from conceivable to plausible.” It
therefore granted husband’s motion to dismiss. The district court
did not address wife’s request for attorney fees.
6
¶ 15 We now consider wife’s appeal in light of Runge and the
questions addressed at oral arguments.
III. Rule 16.2
¶ 16 “[T]he purpose of Rule 16.2 [is] to provide a uniform procedure
for resolution of all issues in domestic relations cases that reduces
the negative impact of adversarial litigation wherever possible.”
C.R.C.P. 16.2(a). See generally In re Marriage of Schelp, 228 P.3d
151, 155, 157 (Colo. 2010); In re Marriage of Hunt, 2015 COA 58,
¶ 9, 353 P.3d 911, 913. To that end, the rule imposes an
affirmative duty on parties in domestic relations cases to “disclose
all information that is material to the resolution of the case without
awaiting inquiry from the other party.” C.R.C.P. 16.2(e)(1).
¶ 17 Specifically, parties in dissolution proceedings must provide
certain mandatory financial disclosures, which are specified in the
appendix to the rule, as well as a sworn financial statement with
supporting schedules, if applicable. See C.R.C.P. 16.2(e)(2) & app.
form 35.1. The rule also imposes a general duty on parties “to
provide full disclosure of all material assets and liabilities.”
C.R.C.P. 16.2(e)(10); see also C.R.C.P. 16.2(e)(1) (imposing on
parties in domestic relations cases “a duty of full and honest
7
disclosure of all facts that materially affect their rights and
interests”).
¶ 18 As relevant here, Rule 16.2(e)(10) provides as follows:
If the disclosure contains misstatements or
omissions, the court shall retain jurisdiction
after the entry of a final decree or judgment for
a period of 5 years to allocate material assets
or liabilities, the omission or non-disclosure of
which materially affects the division of assets
and liabilities. The provisions of C.R.C.P. 60
shall not bar a motion by either party to
allocate such assets or liabilities pursuant to
this paragraph. This paragraph shall not limit
other remedies that may be available to a party
by law.
This provision serves the important purpose of providing a remedy
when a party fails to comply with the rigorous disclosure
requirements of Rule 16.2. See David M. Johnson et al., New Rule
16.2: A Brave New World, 34 Colo. Law. 101, 106 (Jan. 2005)
(stating that the provision “gives teeth” to the mandatory disclosure
requirements). Rule 16.2(e)(10) also “gives equitable powers to the
court in cases where a material asset or liability has not been
disclosed.” Id.8
IV. Standard of Review
¶ 19 We review de novo whether the district court applied the
correct legal standard in ruling on the motions. Freedom Colo. Info.,
Inc. v. El Paso Cty. Sheriff’s Dep’t, 196 P.3d 892, 897-98 (Colo.
2008). Similarly, because it raises a question of law, we review de
novo the district court’s interpretation of the rules of civil
procedure. City & Cty. of Broomfield v. Farmers Reservoir &
Irrigation Co., 239 P.3d 1270, 1275 (Colo. 2010).
V. Discussion
¶ 20 Wife contends that the district court erred in dismissing her
Rule 16.2(e)(10) motion to set aside or reopen the property division
and to allocate the post-decree sale proceeds husband received. We
agree.
A. Applicability of Rule 12(b)(5) and Warne
¶ 21 As noted, both parties on appeal addressed whether the
district court misapplied Rule 12(b)(5) and Warne’s plausibility
standard. However, their briefing preceded this court’s decision in
Runge.
¶ 22 As discussed, the majority in Runge “conclude[d] that the
Warne ‘plausibility’ standard does not apply to the dismissal of a
9
motion under C.R.C.P. 16.2(e)(10).” Runge, ¶ 3, 415 P.3d at 886.
The Runge majority reached that conclusion for two reasons. First,
the husband in Runge did not cite Rule 12(b)(5) in his motion to
dismiss, and the district court did not rely on Rule 12(b)(5) as
authority. Id. at ¶ 17, 415 P.3d at 887. Second, and more
importantly, the wife’s motion under Rule 16.2(e)(10) could not be
considered a “pleading” under C.R.C.P. 7(a), and Rule 12(b)(5) “by
its express terms” applies only when a party moves to dismiss a
claim for relief in a pleading. Id. at ¶ 18, 415 P.3d at 887.
¶ 23 Here, as in Runge, husband did not cite Rule 12(b)(5) as
authority in his motion to dismiss. In response, wife “presume[d]”
that husband had relied on Rule 12(b)(5) and argued that her Rule
16.2(e)(10) motion should not be dismissed. Following wife’s lead,
the district court characterized husband’s motion as a motion to
dismiss for failure to state a claim and dismissed wife’s motion. We
agree with the Runge division that Rule 12(b)(5) and the plausibility
standard do not apply in determining wife’s motion under Rule
16.2(e)(10).
¶ 24 We therefore conclude that the district court erred in
dismissing wife’s motion under that standard.
10
B. Applicability of Rule 9(b)
¶ 25 We also reject husband’s contention, raised during oral
argument in response to our questions, that C.R.C.P. 9(b) applies in
this context. Rule 9(b) requires that pleadings asserting fraud or
mistake must allege the circumstances with particularity.1 Rule
16.2(e)(10) does not refer to fraud, but permits reallocation of
marital property not disclosed due to “misstatements or omissions.”
A party could unintentionally misstate or omit a material marital
asset or liability and, in such a situation, would not engage in
fraud. See Johnson et al., 34 Colo. Law. at 106 (“Sometimes a
nondisclosure will be innocent; other times it may be purposeful.
In either event, the innocent spouse will have the right in the
domestic relations case to seek the proper remedy within the
five-year period after the entry of a final decree or judgment.”).
¶ 26 Here, wife alleged intentional nondisclosure on husband’s
part. In other cases, parties may allege unintentional
nondisclosure. Thus, contrary to husband’s contention at oral
argument, not all motions under Rule 16.2(e)(10) will “sound[] in
1The reference to mistake in C.R.C.P. 9(b) is inapplicable here
because there is no allegation of mistake.
11
fraud.” See State Farm Mut. Auto. Ins. Co. v. Parrish, 899 P.2d 285,
289 (Colo. App. 1994) (construing Rule 9(b) to apply to claims of
civil conspiracy, intentional misrepresentation, unjust enrichment,
and theft by deception). While some claims not denominated as
fraud may be subject to the pleading requirements of Rule 9(b), id.,that conclusion does not apply, for the reasons stated, to motions
filed under Rule 16.2(e)(10). As a result, we conclude that the
particularity requirement of Rule 9(b) does not apply to motions
under Rule 16.2(e)(10).
C. Allegations Based on Information and Belief
¶ 27 The parties disagree as to whether a movant under Rule
16.2(e)(10) can make allegations based on information and belief.
C.R.C.P. 8(e)(1) states that “[e]ach averment of a pleading shall be
simple, concise, and direct. When a pleader is without direct
knowledge, allegations may be made upon information and belief.”
Although a motion under Rule 16.2(e)(10) is not a pleading, Runge,
¶ 18, 415 P.3d at 887, Rule 8(e)(1) nevertheless states that “[n]o
technical forms of pleading or motions are required.” (Emphasis
added.) Thus, we conclude that the specific provision of that rule
allows a party to make allegations based on information and belief
12
in motions as well as pleadings, at least in the context of a Rule
16.2(e)(10) motion.2
¶ 28 That conclusion is bolstered by the plain language of Rule
16.2(e)(10), which allows the reopening of the property division
provisions of the permanent orders where there has been a failure
to disclose “material assets or liabilities” or when a spouse’s
disclosures regarding an asset contained “misstatements or
omissions.” A moving party may make allegations based on
“information and belief,” Rule 16.2(e)(7), because he or she may not
have complete information about the circumstances of an alleged
misstatement or omission. Cf. Gray v. Univ. of Colo. Hosp. Auth.,
2012 COA 113, ¶ 46, 284 P.3d 191, 200 (holding that pleadings
based on information and belief are permissible, “especially in cases
in which the information is more accessible to the defendant”
(quoting Johnson v. Johnson, 385 F.3d 503, 531 n.19 (5th Cir.
2004))).
2 We express no opinion as to whether a motion under C.R.C.P.
16.2(e)(10) containing factual allegations based solely on
information and belief would be sufficient to satisfy the rule’s
requirements.
13
¶ 29 Thus, we conclude that wife properly included allegations
based on information and belief in her motion.
D. Standard for Consideration of Rule 16.2(e)(10) Motion
¶ 30 Rule 16.2(e)(10) provides no applicable standard for
determining a motion under the rule. In Runge, the majority did
not articulate a precise standard, but concluded that the wife’s
“vague assertions [we]re not sufficient to trigger an allocation of
omitted or misstated assets under C.R.C.P. 16.2(e)(10).” ¶ 27, 415
P.3d at 889 (describing wife’s assertions as “suspicions and
speculations”).
¶ 31 In the absence of any express standard, we conclude that a
district court must decide whether a former spouse moving under
Rule 16.2(e)(10) is entitled to relief under the preponderance of the
evidence standard. See generally § 13-25-127(1), C.R.S. 2017
(“[T]he burden of proof in any civil action shall be by a
preponderance of the evidence.”). The moving party bears the
burden of proof.
¶ 32 In some cases, a moving party’s motion may not allege facts
sufficient to warrant even limited discovery, a topic we discuss
below, and the district court in those cases could deny a party’s
14
motion as insufficient on its face. See C.R.C.P. 121, § 1-15(5)
(providing that district court can deny motion without a hearing).
In this circumstance, some motions may be patently insufficient
and thus warrant no discovery. Cf. § 14-10-122(1)(b), C.R.S. 2017
(requiring that a court deny a motion for modification of a child
support order if applying the guidelines would result in “less than a
ten percent change in the amount of support due per month”); In re
Balanson, 25 P.3d 28, 36 (Colo. 2001) (concluding that a district
court’s error in dividing marital property will be deemed harmless if,
“viewed in the aggregate,” it does not affect a large percentage of the
marital estate).
¶ 33 We conclude that wife’s allegations here did not enable the
district court to conclude that her motion was insufficient on its
face. Wife alleged that husband sold marital property — part of the
parties’ business — for 850% of its appraised value a little over a
year after the entry of permanent orders. She further alleged on
information and belief that husband had begun negotiations to sell
this part of the business before the entry of permanent orders and
had failed to disclose such negotiations and possible sale during the
15
negotiations over their separation agreement. These allegations
were sufficient to warrant further proceedings on wife’s motion.
¶ 34 Thus, on remand, the district court must determine whether
wife can prove by a preponderance of the evidence that husband
omitted facts material to the valuation of their business interests
during the negotiations for their separation agreement and before
the entry of the permanent orders. See C.R.C.P. 16.2(e)(1).
E. Discovery
¶ 35 We now turn to whether, on remand, wife is entitled to
undertake discovery in support of her motion. We conclude that
she is.
¶ 36 Rule 16.2(e)(10) does not expressly permit a party to
undertake discovery. However, other provisions of Rule 16.2
indicate that discovery is appropriate in these circumstances.
¶ 37 First, Rule 16.2(a) expressly “govern[s] case management
in . . . post decree matters.” The rule also “contemplates
management and facilitation of the case by the court, with the
disclosure requirements, discovery and hearings tailored to the
needs of the case.” Similarly, Rule 16.2(b) provides that “[t]he
parties, counsel and the court shall evaluate each case at all stages
16
to determine the scheduling of that individual case, as well as the
resources, disclosures/discovery, and experts necessary to prepare
the case for resolution or hearing.” (Emphasis added.) Finally,
Rule 16.2(f)(4) provides that “[t]he court shall grant all reasonable
requests for additional discovery for good cause as defined in
C.R.C.P. 26(b)(2)(F).” Thus, Rule 16.2 authorizes discovery where
appropriate, including in post-decree matters such as proceedings
initiated under Rule 16.2(e)(10).
¶ 38 In addition, Rule 26(b)(1) provides that generally parties may
obtain discovery regarding any matter that is not privileged and is
relevant to the claim or defense of any party and proportional to the
needs of the case. Therefore, the notion of proportionality allows
the district court to regulate discovery so it is not burdensome or
undertaken as part of a fishing expedition. See In re Marriage of
Gromicko, 2017 CO 1, ¶¶ 27-41, 387 P.3d 58, 62-64 (discussing
importance of tailoring discovery in domestic relations cases); see
also C.R.C.P. 16.2(a) (noting that the district court can “tailor[]
[discovery] to the needs of the case”). Specifically, the Gromicko
court held that the district court must take an active role in
managing discovery and “should, at a minimum, consider the
17
cost-benefit and proportionality factors set forth in C.R.C.P.
26(b)(2)(F).” ¶ 30, 387 P.3d at 63.
¶ 39 Finally, we note that the supreme court in other contexts has
expressed the importance of liberal interpretation of discovery rules
to effectuate their truth-seeking purpose. See Antero Res. Corp. v.
Strudley, 2015 CO 26, ¶ 26, 347 P.3d 149, 157 (concluding that the
Colorado Rules of Civil Procedure do not “authorize a trial court to
condition discovery upon the plaintiff establishing a prima facie
case”).
¶ 40 We consider discovery especially important in the context of
Rule 16.2(e)(10), where the movant spouse is unlikely to possess
relevant information precisely because he or she is claiming that
the other party failed to disclose material assets or liabilities. See
Runge, ¶ 64, 415 P.3d at 894 (Taubman, J., dissenting) (noting
that, in most cases, “discovery may be necessary to establish
whether an initial disclosure of assets and liabilities contained
material misstatements or omissions”).
¶ 41 We acknowledge that the majority in Runge stated that Rule
16.2(e)(10) “does [not] provide for post-decree discovery into an
ex-spouse’s assets.” ¶ 40, 415 P.3d at 891. In our view, that
18
language is dicta because the Runge majority determined that the
wife’s motion in that case was insufficient to trigger the rule, and,
therefore, the majority’s position on discovery was not essential to
its determination. In any event, to the extent the Runge majority
looked only to Rule 16.2(e)(10), we conclude that the other
provisions of Rule 16.2 noted above support the right of a movant
under Rule 16.2(e)(10) to conduct discovery in a manner regulated
by the district court so that it is not burdensome.
¶ 42 Here, wife alleged and husband admitted that he sold part of
the business for $6.9 million, about 850% of its valuation at the
time of the decree. Wife also alleged on information and belief that
husband had begun negotiations to sell the business —
unbeknownst to her, the joint appraisal expert, or her independent
expert — prior to the entry of permanent orders.
¶ 43 In keeping with the principle of proportionality expressed in
Rules 16.2 and 26, the district court may, on remand, appropriately
limit wife’s discovery to the issue of whether husband engaged in
negotiations to sell the business assets before the parties entered
into the separation agreement. Thus, contrary to husband’s
19
arguments, allowing wife to engage in limited discovery should not
be burdensome for husband.
¶ 44 Accordingly, we conclude that wife made sufficient allegations
to warrant discovery on the specific issue of whether husband
engaged in negotiations to sell business assets prior to the entry of
permanent orders. We express no opinion as to whether wife will
establish facts supporting her motion via discovery. However, we
conclude that she should be afforded the opportunity to do so.
VI. Attorney Fees
¶ 45 Wife sought attorney fees in the district court under section
13-17-102 for responding to husband’s motion to dismiss, and
prospectively under section 14-10-119 in order to litigate her Rule
16.2(e)(10) motion. Based on its dismissal of wife’s motion, the
district court did not rule on her request for attorney fees under
either provision.
¶ 46 We conclude that wife is entitled to seek attorney fees under
section 14-10-119 on remand. Section 14-10-119 provides that,
“after considering the financial resources of both parties,” a court
may order one party “to pay a reasonable amount for the cost to the
other party of maintaining or defending any proceeding” under
20
Article 14, including proceedings after entry of judgment under
Article 14. A motion filed under Rule 16.2(e)(10) is a proceeding
under Article 14. Thus, regardless of the district court’s ruling on
the merits of wife’s motion, wife is entitled to seek attorney fees
under this statute based on the district court’s consideration of the
parties’ financial resources. Similarly, wife may seek prospective
attorney fees under section 14-10-119 and In re Marriage of Rose,
134 P.3d 559, 562-63 (Colo. App. 2006). The determination of
prospective attorney fees under that section lies within “the sound
exercise” of the district court’s discretion on remand. Rose, 134
P.3d at 562.
¶ 47 However, we conclude that wife is not entitled to attorney fees
under section 13-17-102. Even though she has prevailed on
appeal, this case has presented issues of first impression. Thus,
husband’s motion to dismiss did not lack substantial justification.
VII. Appellate Attorney Fees and Costs
¶ 48 Both parties request appellate attorney fees and costs. As she
did in the district court, wife requests her fees under sections 13-
17-102 and 14-10-119. Husband requests his fees under section
21
13-17-102, arguing that wife abused process in bringing this
appeal.
¶ 49 We deny both parties’ requests under section 13-17-102. As
noted above, this appeal has raised novel issues of law in Colorado,
and we therefore cannot say that either party brought or defended
an action that “lacked substantial justification.” § 13-17-102(2).
¶ 50 As for wife’s claim under section 14-10-119, we conclude that
she is entitled to seek her appellate attorney fees on remand. Based
on the district court’s assessment of the financial resources of both
parties, it may elect in its discretion to award wife appellate
attorney fees on the basis of section 14-10-119.
VIII. Conclusion
¶ 51 Accordingly, the order is reversed and the case is remanded
for further proceedings consistent with this opinion.
JUDGE WELLING and JUDGE KAPELKE concur.
22