of Wright

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
January 23, 2020
2020COA11
No. 18CA2342, Marriage of Wright — Family Law —
Dissolution — Spousal Maintenance
A division of the court of appeals discusses the specific
findings a district court must make when determining a
maintenance award and concludes that a district court errs by
failing to follow the detailed procedure set forth in section 14-10-
114, C.R.S. 2019.
COLORADO COURT OF APPEALS 2020COA11
Court of Appeals No. 18CA2342
El Paso County District Court No. 18DR2009
Honorable Theresa M. Cisneros, Judge
In re the Marriage of
Wayne Marcus Wright, Jr.,
Appellant,
and
Karen Cadine Wright,
Appellee.
JUDGMENT AFFIRMED IN PART, REVERSED IN PART,
AND CASE REMANDED WITH DIRECTIONS
Division VII
Opinion by JUDGE TOW
J. Jones and Fox, JJ., concur
Announced January 23, 2020
Gwendolyn M. Lawson, Colorado Springs, Colorado, for Appellant
McKinney & Associates P.C., Nathan D. McKinney, Erin Gardner, Amanda C.
Musselwhite, Austin G. Jackson, Colorado Springs, Colorado, for Appellee
¶1 Wayne Marcus Wright, Jr. (husband), appeals from the
property division, maintenance award, and an attorney fees
sanction entered in connection with the dissolution of his marriage
to Karen Cadine Wright (wife). We affirm in part, reverse in part,
and remand for further proceedings. In doing so, we hold that a
district court errs when it fails to make specific findings to support
its maintenance award, and we set forth in detail the step-by-step
procedure the district court must follow when determining
maintenance.
I. Property Division
¶2 Husband contends that the property division is inequitable,
arguing that the court (1) failed to value the personal property; (2)
failed to include wife’s Jamaican property as part of the marital
estate; and (3) ordered him to pay more of the marital debts. We
perceive no abuse of discretion in the property division. See In re
Marriage of Powell, 220 P.3d 952, 954 (Colo. App. 2009).
A. Applicable Law
¶3 The district court shall divide the marital property in such
proportions as it deems just. § 14-10-113(1), C.R.S. 2019. The
property division must be equitable, but not necessarily equal. In re
1
Marriage of Antuna, 8 P.3d 589, 594 (Colo. App. 2000). And an
equitable division depends on the facts and circumstances of each
case. In re Marriage of Balanson, 25 P.3d 28, 35 (Colo. 2001). “The
key to an equitable distribution is fairness, not mathematical
precision.” In re Marriage of Gallo, 752 P.2d 47, 55 (Colo. 1988).
B. Analysis
1. Valuation
¶4 A district court is required to find the approximate current
value of all property owned by the parties. In re Marriage of
Zappanti, 80 P.3d 889, 892 (Colo. App. 2003). But specific findings
as to the value of each asset are not always required. See In re
Marriage of Page, 70 P.3d 579, 582 (Colo. App. 2003). For example,
if the parties’ valuations of an asset conflict, the court may order
that each party should retain the property in his or her possession
without attributing a value. See Antuna, 8 P.3d at 595.
¶5 Wife valued the personal property at $2900, and husband
initially said it was worth $500. But at the hearing, husband
offered unsubstantiated “estimates” of value for particular items,
such as $500 for the bedroom furniture, “somewhere in the range of
2
$600, $700” for lamps, and “several hundred [dollars]” for paintings
and mirrors.
¶6 On this conflicting and imprecise evidence, we do not find an
abuse of discretion in the court’s conclusion that it was “almost an
impossibility” to value the personal property and its finding that it
was equitable for each party to retain the property in his or her
possession. See id.
2. Jamaican Home
¶7 Husband believed that wife and her mother owned a home in
Jamaica. Wife testified that she no longer owned the home after her
mother refinanced it but acknowledged that it was worth $3600.
Even if we assume that wife still owns the home, husband testified
without contradiction that the home was wife’s premarital property.
¶8 Marital property does not include property acquired by one
party before the marriage. See § 14-10-113(4); see also § 14-10-
113(1) (court must set separate property aside to each spouse
before dividing marital property). Save for exceptions not relevant
here, only the increase in value of separate property is marital
property subject to division. See § 14-10-113(1)(d), (4). Yet there
was no evidence at the hearing to show any increase in value for the
3
property in Jamaica and, thus, no marital value for the court to
attribute as part of the property division. See Zappanti, 80 P.3d at
892 (parties must provide evidence sufficient to support their
claims); see also In re Marriage of Krejci, 2013 COA 6, ¶ 23 (a
party’s failure to give the court sufficient information to rule on an
issue does not provide grounds for reversal). We thus perceive no
error in the omission of this property from the property division.
3. Marital Debt
¶9 The court should not assign marital liabilities
disproportionately to one spouse. In re Marriage of Speirs, 956 P.2d
622, 623 (Colo. App. 1997) (citing In re Marriage of Kiefer, 738 P.2d
54 (Colo. App. 1987)). However, Speirs cannot be read to require a
mathematically equal division of marital debt. For one thing, such
a requirement would be inconsistent with the “equitable, but not
necessarily equal” principle reiterated in Antuna. Moreover, in
Kiefer, on which the Speirs division relied, a division of this court
reversed a property division that had divided a portion of the value
of the marital home between the spouses but had allocated all of
the encumbrance on the home to only one spouse. The division
specifically disavowed any requirement that the court deduct the
4
amount of the encumbrances before dividing the net value of the
home. 738 P.2d at 56. Moreover, it noted that under the
circumstances of that case — where the court had found that the
parties’ contributions to the marriage and the marital estate were
roughly equal — “equity requires that wife share a part of the debt
incurred on the home during the marriage as well as a part of the
increase in the home’s value.” Id. (emphasis added). Thus, Kiefer
and, by extension, Speirs merely stand for the general proposition
acknowledged in Antuna — that the property and debt division
must be equitable.
¶ 10 The court here found that all the parties’ debt was marital,
which husband does not appear to dispute on appeal. Given the
disparity in the parties’ income, the court deemed it fair to divide
the marital debt proportionately to the parties’ incomes, so it
required husband to pay $29,486.90 of the marital debt while wife
would pay the remaining $12,886.47. As the record shows that
husband’s income is more than four times wife’s, the court could
reasonably conclude that husband had the financial means with
which to pay more of the debts. See § 14-10-113(1)(c) (requiring the
court to consider the economic circumstances of each spouse when
5
dividing property); see also In re Marriage of Faulkner, 652 P.2d
572, 574 (Colo. 1982) (“It should appear obvious that a spouse’s
earning capabilities are properly part of the ‘economic
circumstances’ the court must consider in compliance with [the
maintenance statute].”). We thus see no abuse of discretion in the
unequal, but equitable, division of debts.1
4. The Overall Property Division
¶ 11 The parties’ marital estate included their marital debt, the
personal property, and husband’s $4000 401(k). As mentioned, the
court ordered that the parties would keep the personal property in
their possession, and it divided the marital debt in proportion to
income. The court also allocated the 401(k) equally between the
parties. In light of the limited estate, and recognizing that husband
was earning $9583 per month while wife was “living at poverty
level,” this property division is fair and equitable. See § 14-10-
1 In allocating the debts “in proportion to income,” the court used a
“40/60” split, reflecting the relative income figures after adjusting
for the maintenance award. Because property division is supposed
to be completed before maintenance is determined, see In re
Marriage of de Koning, 2016 CO 2, ¶ 21, this procedure may have
been erroneous. However, because neither party challenges this
aspect of the order, we will not disturb the order on that basis.
6
113(1)(c) (property division requires the court to consider the
parties’ economic circumstances).2
II. Maintenance Award
¶ 12 Husband contends that the district court abused its discretion
by awarding wife spousal maintenance without applying the
required statutory factors. We agree, and therefore reverse and
remand the maintenance award for reconsideration.
¶ 13 Section 14-10-114(3), C.R.S. 2019, details a specific process a
district court must follow when considering a maintenance request.
In re Marriage of Vittetoe, 2016 COA 71, ¶¶ 8-9.
¶ 14 First, a court considering a maintenance request
shall make initial written or oral findings
concerning:
(A) The amount of each party’s gross income;
(B) The marital property apportioned to each
party;
(C) The financial resources of each party,
including but not limited to the actual or
2 We have not considered husband’s new assertion that wife failed
to disclose her current finances and provide mandatory disclosures
before the hearing, as he did not raise such challenges in the
district court. See In re Marriage of Wells, 252 P.3d 1212, 1215
(Colo. App. 2011) (reviewing court will not address issues not
presented in the district court).
7
potential income from separate or marital
property;
(D) Reasonable financial need as established
during the marriage; and
(E) Whether maintenance awarded pursuant to
this section would be deductible for federal
income tax purposes by the payor and taxable
income to the recipient.
§ 14-10-114(3)(a)(I); see also People in Interest of C.N., 2018 COA
165, ¶ 35 (the word “shall” in a statute has a mandatory
connotation).
¶ 15 Next, the court
shall determine the amount and term of the
maintenance award, if any, that is fair and
equitable to both parties after considering:
(A) The guideline amount and term of
maintenance set forth in paragraph (b) of
subsection (3), if applicable, based upon the
duration of the marriage and the combined
gross incomes of the parties;
(B) The factors relating to the amount and
term of maintenance set forth in paragraph (c)
of this subsection (3); and
(C) Whether the party seeking maintenance
has met the requirement for a maintenance
award pursuant to paragraph (d) of this
subsection (3).
8
§ 14-10-114(3)(a)(II). The section 14-10-114(3)(b) guidelines do not
create a presumptive amount or term of maintenance. § 14-10-
114(3)(e). Moreover, the factors set forth in section 14-10-114(3)(c)
are not exclusive, as the final factor is “[a]ny other factor that the
court deems relevant.” § 14-10-114(3)(c)(XIII). Thus, “[t]he court
has discretion to determine the award of maintenance that is fair
and equitable to both parties based upon the totality of the
circumstances.” § 14-10-114(3)(e).
¶ 16 Finally, the court must consider whether the party seeking
maintenance has met the requirement for a maintenance award
under section 14-10-114(3)(d). § 14-10-114(3)(a)(II)(C). The statute
makes clear, however, that the court is to consider this issue only
“[a]fter considering the provisions of this section and making the
required findings of fact.” § 14-10-114(3)(d). Under this section,
the court shall award maintenance
only if it finds that the spouse seeking
maintenance lacks sufficient property,
including marital property apportioned to him
or her, to provide for his or her reasonable
needs and is unable to support himself or
herself through appropriate employment or is
the custodian of a child whose condition or
circumstances make it inappropriate for the
9
spouse to be required to seek employment
outside the home.
In other words, although the legislature has instructed the trial
court to consider this arguably threshold inquiry last, it is
nevertheless an essential finding before maintenance may be
awarded.
¶ 17 Whether the court grants or denies a maintenance request, it
“shall make specific written or oral findings in support of” its
decision. § 14-10-114(3)(e).
¶ 18 The following is the court’s maintenance order:
3. The Court Orders that Mr. Wright pay
spousal maintenance to Mrs. Wright.
a. The Court finds that Mrs. Wright has a need
for spousal maintenance and that Mr. Wright
has the ability to pay.
b. The Court Orders that Mr. Wright pay
$2,585 per month in spousal maintenance for
6 years and 4 months. The Court calculates
that amount based on a finding that the
parties were married for 12 years and 8
months, that Mrs. Wright earns $2,080 per
month and Mr. Wright earns $9,583 per
month. The Court finds that under C.R.S. §
14-10-114, the Court is able to find that the
guideline amount is the proper amount.
c. The Court generated a Spousal Maintenance
and [a] Child Support worksheet to reflect
these calculations which have been filed
10
contemporaneously with this Order and are
hereby incorporated as a part of the Order.
¶ 19 These findings are insufficient under the statute, since they
lack most of the required findings under subsections (3)(a)(I) and
(3)(d) and do not demonstrate consideration of any of the thirteen
factors within subsection (3)(c). The first step requires specific
findings, either written or oral. The district court did not make any
findings regarding the parties’ reasonable needs as established
during the marriage, or whether the maintenance would be
deductible for federal income tax purposes.
¶ 20 The second step does not require explicit findings. However,
while a district court has no obligation to make specific factual
findings on every factor listed in section 14-10-114(3)(c), it must
“make sufficiently explicit findings of fact to give the appellate court
a clear understanding of the basis of its order.” In re Marriage of
Gibbs, 2019 COA 104, ¶ 9. We are not convinced by wife’s
argument that it is enough for the court to have made a
“generalized statement” that it looked at the statutory factors. See
id. Although the district court alluded to “the additional criteria set
11
out in [section] 14-10-114,” there is no other indication in the
court’s findings that those criteria were meaningfully considered.
¶ 21 For example, the district court made no mention of husband’s
claim that wife was underemployed. 3 Moreover, the district court
did not mention, and it is unclear whether it considered, the impact
of the disproportionate allocation of marital debts on either wife’s
needs or husband’s ability to pay.
¶ 22 Here, the district court first considered whether wife qualified
for maintenance, which pursuant to statute is supposed to be the
last thing considered. Next, the district court calculated the
amount and term pursuant to the statutory guideline, incorporating
the first of the required written findings under section 14-10-
3 Husband’s opening brief includes a variety of factual assertions
regarding the income potential of someone who holds a
phlebotomist license. We cannot consider those assertions, as they
rely on factual material not provided to the district court. Nor do
we express any opinion as to whether wife is voluntarily
underemployed. That decision is for the district court to make after
considering the relevant evidence and case law. See, e.g., People v.
Martinez, 70 P.3d 474, 475 (Colo. 2003) (“The income imputation
inquiry must start with whether the parent is shirking a child
support obligation.”). Though Martinez was a child support case,
the analysis of voluntary underemployment is the same in a
maintenance case. See In re Marriage of Tooker, 2019 COA 83,
¶¶ 25-27.
12
114(3)(a)(I). Finally, the court observed in its oral order that the
evidence “as well as the additional criteria set out in [section] 14-
10-114 cause the court to be able to find that the guideline amount
is the proper amount for spousal maintenance.” In other words, it
appears that the court gave the guideline amount presumptive
effect, then looked for but did not find any reason to deviate from
that amount. This is not the process required by statute.
¶ 23 Accordingly, we reverse the maintenance award and remand
for the district court to follow the procedure specified by section 14-
10-114(3), making findings where required and addressing the
factors relevant to its maintenance determination. The findings
entered on remand must be sufficient for us to determine the basis
for the maintenance award. See Gibbs, ¶ 9.
¶ 24 Because maintenance is based on the parties’ financial
circumstances at the time the order is entered, the district court
should consider the parties’ current circumstances on remand. See
In re Marriage of Kann, 2017 COA 94, ¶ 79. For that reason, we
need not consider husband’s argument that the court improperly
calculated wife’s income.
13
III. Attorney Fees Sanction
¶ 25 Wife moved to compel husband’s disclosure of bank
statements, credit card statements, and additional income
documentation. Her motion sought sanctions under C.R.C.P.
16.2(e) and attorney fees under C.R.C.P. 37. A few days after filing
her motion, wife submitted a trial management certificate on her
own behalf. Wife later submitted an attorney fee affidavit showing
that “[t]o date,” she had incurred $6681.47 in attorney fees.
¶ 26 After the permanent orders hearing, the court ordered
husband to pay wife $2500 of attorney fees “for causing [wife] to
have to file a [m]otion to [c]ompel by providing incomplete
disclosures and for his failure to participate in the drafting of the
[t]rial [m]anagement [c]ertificate.” Husband contends that this
order is an abuse of discretion. We disagree.
¶ 27 Under C.R.C.P. 16.2(e), parties must disclose all information
material to the resolution of the case, including mandatory
disclosures such as sworn financial affidavits, personal bank
statements, and income documentation. Under C.R.C.P. 16.2(h)(2),
if at least one party is represented by counsel the parties shall
prepare and file a joint trial management certificate (TMC). The
14
district court has considerable discretion to impose appropriate
sanctions if a party fails to comply with the provisions of C.R.C.P.
16.2. See C.R.C.P. 16.2(e), (j); In re Marriage of Cardona, 321 P.3d
518, 527 (Colo. App. 2010), aff’d on other grounds, 2014 CO 3.
¶ 28 Under C.R.C.P. 37, a party may move for an order compelling
disclosure and imposing sanctions. C.R.C.P. 37(a)(4)(A) allows the
district court to require the party whose conduct necessitated the
motion to pay to the moving party the reasonable expenses incurred
in making the motion, including attorney fees.
¶ 29 We will not disturb the district court’s imposition of sanctions
absent an abuse of discretion. See Cardona, 321 P.3d at 527(C.R.C.P. 16.2); Antolovich v. Brown Grp. Retail, Inc., 183 P.3d 582,
598 (Colo. App. 2007) (C.R.C.P. 37).
¶ 30 Despite husband’s cursory statement that he complied with
disclosures, the record shows that he provided wife with limited
financial information, which prompted wife’s motion to compel. In
addition, husband did not cooperate in drafting the TMC, which the
court concluded resulted in needlessly incurred expenses. Based
on this record, we cannot conclude that the district court abused its
discretion by imposing a sanction.
15
¶ 31 Nor did husband ever challenge the reasonableness of the fee
award or request a hearing in the district court to test that
reasonableness. In fact, when submitting his objections to the form
of the written order, he challenged only the decision to order fees,
not the amount ordered.4 Thus, any challenge to the
reasonableness of the fees ordered is not before us. See Metro Nat’l
Bank v. Roe, 675 P.2d 331, 333 (Colo. App. 1983) (where the
question of reasonableness of the attorney fees was not raised at
the trial or hearing, it was not properly an issue on appeal).
¶ 32 Similarly, because it was first raised in the reply brief, we do
not consider husband’s argument that section 13-17-102(6), C.R.S.
2019, prohibited the court from entering the sanction because he
was pro se at the hearing. See In re Marriage of Drexler, 2013 COA
43, ¶ 24 (reviewing court will not consider issues not raised until
the reply brief).
4 Husband’s version of the written order asserted that he had to pay
his own attorney fees and that both parties should be responsible
for their own fees. Husband’s argument appears to misunderstand
the nature of the fee order. Fees were not ordered pursuant to
section 14-10-119, C.R.S. 2019, which provides for a balancing of
the parties’ respective financial resources; rather, the fee award was
a sanction for husband’s misconduct in pretrial disclosures.
16
¶ 33 In any event, husband’s pro se status does not excuse his
noncompliance with C.R.C.P. 16.2. See Prefer v. PharmNetRx, LLC,
18 P.3d 844, 850 (Colo. App. 2000) (acting pro se does not excuse a
party’s noncompliance with discovery rules); see also Rosenberg v.
Grady, 843 P.2d 25, 26 (Colo. App. 1992) (“A pro se litigant who
chooses to rely upon his own understanding of legal principles and
procedures is required to follow the same procedural rules as those
who are qualified to practice law and must be prepared to accept
the consequences of his mistakes and errors.”). To be sure,
C.R.C.P. 16.2 is drafted in a way that requires the parties, not just
parties with counsel, to comply with its provisions. See, e.g.,
C.R.C.P. 16.2(b) (requiring the parties, counsel, and the court to
evaluate the case at all stages); C.R.C.P. 16.2(c)(1)(B) (parties and
counsel, if any, shall attend the initial status conference); C.R.C.P.
16.2(h)(1) (unrepresented parties shall file a brief statement
identifying the disputed issues, witnesses, and exhibits).
IV. Bias or Prejudice
¶ 34 Husband contends that the permanent orders must be
reversed because the district court’s bias and prejudice against men
and his religion are evident in its rulings. While we disapprove of
17
some of the court’s commentary, we disagree that it requires
reversal.
¶ 35 At the hearing, wife testified that she volunteered at the
parties’ church during the marriage. However, when wife accepted
a job offer that would prevent her from continuing to volunteer with
the church, husband told her not to come back to the church. A
few days later, husband packed up his belongings from the parties’
shared apartment and sent a text to wife saying that she had to
move out by the end of the week. Thereafter, wife testified that
husband stopped giving her financial assistance, which required
her to obtain food stamps, stay with friends until she could obtain
Section 8 housing, and rely on state-paid day care facilities. Wife
also testified that husband changed his phone number and
cancelled their child’s health insurance without telling her. Finally,
wife testified that husband stopped asking about the parties’ child.
¶ 36 Peppered in among the court’s factual findings and legal
conclusions were the following comments:
• “The Court is disappointed with Mr. Wright. And quite
frankly, I’m glad I don’t attend the church that he goes
to.”
18
• “Mr. Wright caused his child to be without a home
when he was upset at Ms. Wright, when he took steps
to have the home given back to whoever owned the
home. That caused Ms. Wright and that child to have
to go – I think the kids call it couch surfing. And I just
think that’s unconscionable. I just think that’s
unconscionable. I’m disappointed that Mr. Wright, as
a churchgoing man, would do that to his little girl.”
• “The Court’s position is is [sic] that dads who are
putting their children’s needs first make sure that the
other parent has accurate health insurance
information. And the fact that Mr. Wright chose to
withhold that is very offensive to the Court, especially
when he comes in and he’s shedding some tears,
wanting me to believe that he’s putting his child first,
when that fact – that’s the second fact that shows that
he didn’t put the child’s needs first.”
• “You’re not so different from a lot of other dads I’ve
seen that come into court and claim that they love
their child and, ‘Oh, the child is the end all and the be
19
all and I would do anything for the child.’ I don’t
believe them any more than I believe you. Because
good dads don’t do to their child what you did to your
child.”
• “I don’t know what to make of this church. I’m just
glad I don’t go there. Most churches I know support
family units and support kids and support dads
involved in kids. And what has been described to me
today just makes me glad I don’t go to your church.
And I’d be willing to bet God is disappointed with you,
too.”
• “Mr. Wright, I am disappointed in you. I’m
disappointed in you. Your child will not be well served
by your behavior. And truthfully, I would expect better
of a churchgoing man.”
• “Mr. Wright, I am so disappointed in you. I’m just
disappointed. I just hope you don’t continue to behave
like this. That would not be good for your daughter,
honestly. And I happen to believe everything you said
about the importance of dads in kids[’] lives. I know
20
that’s a fact. But not when you’re behaving like a
knucklehead.”
¶ 37 A judge must be free of all taint of bias and partiality. Watson
v. Cal-Three, LLC, 254 P.3d 1189, 1192 (Colo. App. 2011); see also
C.J.C. 2.3(B) (a judge shall not manifest bias or prejudice). But
prejudice is distinguishable from the sort of personal opinions that
as a matter of course arise during a judge’s hearing of a cause. See
Smith v. Dist. Court, 629 P.2d 1055, 1057 (Colo. 1981). Thus,
“judicial remarks during the course of a trial that are critical or
disapproving of, or even hostile to, counsel, the parties, or their
cases, ordinarily do not support a bias or partiality challenge.”
Liteky v. Unites States, 510 U.S. 540, 555-56 (1994); see also People
v. Roehrs, 2019 COA 31, ¶ 33 (a judge ordinarily cannot be
disqualified on the basis of opinions, attitudes, and knowledge
gained during her participation in judicial proceedings).
¶ 38 We disapprove of the court’s comments about husband’s
church. However, when read in context with the evidence
presented at the hearing, the comments do not reflect a bias or
prejudice about husband’s gender or religion. Instead, the
comments reflect the court’s opinion, based on the evidence, that
21
husband made poor decisions to withhold money, parenting time,
and proper living quarters from the child “[a]ll because he’s upset
with the mom.” While the tone of these comments and the
expression of the court’s opinion about husband’s church were ill
advised, they were based on the evidence the court heard in the
course of the proceedings and thus do not show an unreasonable or
unfair bias against husband.
V. Appellate Attorney Fees Request
¶ 39 We deny husband’s request for appellate attorney fees because
he has failed to cite any legal authority for the request. See C.A.R.
39.1 (party claiming attorney fees must explain the legal and factual
basis for an award). Citing the appellate fee rule as the sole legal
basis for an attorney fees request is not sufficient. See In re
Marriage of Roddy, 2014 COA 96, ¶ 32. (“A request which merely
identifies the statute under which fees are requested, without
stating specific grounds that justify an award of fees, does not
adequately comply with [Rule 39.1].”).
¶ 40 Husband does not assert that wife’s defense of the appeal
lacked substantial justification, see section 13-17-102, or that the
parties’ respective financial resources warrant an award of fees, see
22
section 14-10-119, C.R.S. 2019. He merely contends that he is
entitled to fees due to his “having to file an appeal to address the
abuse of discretion and reversal of spousal support decision, for fair
and equitable property divisions, debts and bias.” Rule 39.1
provides the procedural mechanism for this court to award fees “[i]f
attorney fees are recoverable for the appeal.” The rule does not, by
itself, provide a substantive entitlement to fees.
¶ 41 We also deny wife’s request for appellate attorney fees under
C.A.R. 39.1 and section 13-17-102, for what she calls an appeal
filed without “any good faith legal basis.” Given our disposition, we
disagree that the appeal is frivolous, groundless, or vexatious.
VI. Conclusion
¶ 42 The portion of the judgment regarding maintenance is
reversed, and the case is remanded for further proceedings
consistent with this opinion. In all other respects, the judgment is
affirmed.
JUDGE J. JONES and JUDGE FOX concur.
23