In re Marriage of Aragon , 444 P.3d 837 ( 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
May 16, 2019
2019COA76
No. 18CA0500, In re Marriage of Aragon — Family Law —
Uniform Dissolution of Marriage Act — Attorney’s Fees —
Maintenance — Child Support
The division holds that in determining whether to require one
spouse to pay a portion of the other spouse’s attorney fees under
section 14-10-119, C.R.S. 2018, the court should begin by
calculating an appropriate “lodestar” amount. In so holding, the
division disagrees with the majority’s decision in In re Marriage of
Woolley, 25 P.3d 1284 (Colo. App. 2001).
The division also addresses how a court should amortize a
spouse’s lump-sum workers’ compensation payment in calculating
that spouse’s income for maintenance and child support purposes.
Where the payment is for wages lost over a discernable period of
time, the payment should be amortized over that period, absent
exceptional circumstances.
COLORADO COURT OF APPEALS 2019COA76
Court of Appeals No. 18CA0500
Adams County District Court No. 16DR1172
Honorable Roberto Ramírez, Judge
In re the Marriage of
Vanessa Castillo Aragon,
Appellee,
and
Alain Leonardo Aragon,
Appellant.
ORDERS AFFIRMED IN PART, REVERSED IN PART,
VACATED IN PART, AND CASE REMANDED WITH DIRECTIONS
Division V
Opinion by JUDGE J. JONES
Terry and Grove, JJ., concur
Announced May 16, 2019
Thomas Law Group, P.C., Sergei B. Thomas, Denver, Colorado, for Appellee
Leonard A. Martinez & Associates, PC, Leonard A. Martinez, Lakewood,
Colorado, for Appellant
¶1 In this dissolution of marriage case between Vanessa Castillo
Aragon (wife) and Alain Leonardo Aragon (husband), husband
appeals two post-decree orders: a January 28, 2018, order
awarding wife attorney fees, and a March 7, 2018, order awarding
her child support and maintenance. We vacate the attorney fees
order, affirm in part and reverse in part the child support and
maintenance order, and remand the case for further proceedings.
I. Background
¶2 The parties’ thirteen-year marriage ended in 2017. They have
five children. Under the initial February 2017 permanent orders,
the district court ordered husband to pay wife $823 per month in
child support and $1,372 per month in maintenance. Those
calculations were based on husband then receiving $843 per week
in workers’ compensation payments for temporary total disability.
But because husband was awaiting final resolution of a workers’
compensation claim at that time, the court reserved a final decision
on property division, child support, and maintenance until the
claim was resolved.
1
¶3 In July 2017, husband settled his workers’ compensation
claim for a lump-sum payment of $171,563, representing 165.34
weeks of pay at the rate of $887.48 per week.
¶4 Wife later moved to modify child support and maintenance.
She also asked that the issue of attorney fees under section 14-10-
119, C.R.S. 2018, be reopened and that husband be ordered to pay
$28,583.50 of her fees and costs. The court granted wife’s request
to reopen attorney fees and ordered husband to pay 75% of her
requested fees and costs.
¶5 After a hearing, the court determined husband’s income by
taking his workers’ compensation settlement, less the attorney fees
he owed to his workers’ compensation attorney and the amount set
aside for his future medical expenses; prorating that amount over
twelve months beginning April 1, 2018; and adding in his income as
an Uber driver and from an Airbnb rental property. The court
attributed no income to wife and ordered the parties to recalculate
child support and maintenance based on husband’s income, which
resulted in husband owing wife $1,695 per month in child support
and $4,170 per month in maintenance. The court noted that child
support and maintenance would have to be recalculated on or
2
before April 1, 2019 — the end of the proration period for husband’s
settlement — and it denied wife’s request for additional attorney
fees.
II. Attorney Fees
¶6 Husband first contends that the district court erred in
awarding wife attorney fees. He argues that claim preclusion bars
an award of fees wife incurred for the initial February 2017
proceedings. He also argues, and wife concedes, that the court
didn’t make adequate findings to support the award under section
14-10-119. And he argues that the court erred by failing to
conduct a hearing on fees and by failing to determine the
reasonableness of wife’s requested fees using the lodestar method.
¶7 We agree with both parties that additional findings are
necessary concerning attorney fees and remand the case for that
purpose, and we agree with husband that the court should apply
the lodestar method when determining reasonable attorney fees.
But we reject husband’s arguments that claim preclusion bars wife
from receiving fees she incurred for the initial permanent orders
proceedings and that he was entitled to a hearing on wife’s request.
3
A. Legal Standards
¶8 Under section 14-10-119, “[t]he court from time to time, after
considering the financial resources of both parties, may order a
party to pay a reasonable amount” for the other party’s costs,
including attorney fees, of maintaining dissolution proceedings.
See In re Marriage of Gutfreund, 148 P.3d 136, 141 (Colo. 2006)
(The statute empowers courts to “equitably apportion costs and fees
between parties based on relative ability to pay.”). The decision
whether to award fees under the statute is discretionary; we won’t
disturb such a decision absent a showing of an abuse of that
discretion. In re Marriage of Davis, 252 P.3d 530, 538 (Colo. App.
2011); see Gutfreund, 148 P.3d at 141 (noting district court’s “great
latitude to craft [attorney fee] orders appropriate to the
circumstances of a given case”).
¶9 In awarding fees, a court must make findings concerning the
parties’ relative incomes, assets, and liabilities; and it must
apportion fees based on the statute’s equitable purpose, explaining
how and why it arrived at the specific amount of the award. In re
Marriage of Aldrich, 945 P.2d 1370, 1378 (Colo. 1997); see also In
Interest of K.M.B., 80 P.3d 914, 917-18 (Colo. App. 2003) (“When
4
awarding attorney fees, the trial court must specifically set forth the
reasons for the award . . . .”). The court must also consider the
reasonableness of the hourly rate and the necessity for the hours
billed. In re Marriage of Connerton, 260 P.3d 62, 67 (Colo. App.
2010); In re Marriage of Mockelmann, 944 P.2d 670, 672 (Colo. App.
1997); In re Marriage of Rieger, 827 P.2d 625, 625 (Colo. App.
1992); see also In re Marriage of Newell, 192 P.3d 529, 537 (Colo.
App. 2008) (presuming magistrate considered attorney’s fee affidavit
and was satisfied that fees were reasonably incurred).
B. Analysis
1. Additional Findings Are Necessary Regarding Attorney Fees
¶ 10 As wife concedes, although her motion and the court’s
attorney fees order are captioned “pursuant to” section 14-10-119,
the court didn’t make any findings regarding the basis for awarding
fees under the statute. Though the court attached wife’s motion to
its order, the motion asserts only that wife incurred substantial
fees, most of which were “due to [husband’s] actions, lack of action,
and/or purposely hiding compensation and employment funds.”
These factors aren’t a proper basis for awarding fees under section
14-10-119. See In re Marriage of Woolley, 25 P.3d 1284, 1288-89
5
(Colo. App. 2001) (section 14-10-119 award is primarily intended to
apportion fees based on the parties’ financial circumstances); see
also In re Marriage of Trout, 897 P.2d 838, 840 (Colo. App. 1994).
¶ 11 Without more specific findings under the statutory standard,
we aren’t able to meaningfully review the attorney fees order. See In
re Marriage of Rozzi, 190 P.3d 815, 822 (Colo. App. 2008). Thus, we
vacate the order and remand the case for additional findings. See
Aldrich, 945 P.2d at 1380; K.M.B., 80 P.3d at 917.
¶ 12 But the court need not hold a hearing on remand. As wife
points out, the parties stipulated that the court would rule on her
motion without a hearing. See In re Marriage of Ensminger, 209
P.3d 1163, 1167 (Colo. App. 2008) (court doesn’t have an obligation
to hold a hearing sua sponte on a spouse’s request for attorney
fees); see also Maloney v. Brassfield, 251 P.3d 1097, 1108 (Colo.
App. 2010) (“Stipulations are a form of judicial admission” and “are
binding on the party who makes them.”) (citation omitted).
2. The Court Should Start by Determining a Lodestar Amount
¶ 13 We further conclude that, on remand, the district court should
determine a lodestar amount as the starting point when evaluating
the reasonableness and necessity of wife’s attorney fees. In so
6
concluding, we reject the majority’s decision in Woolley, 25 P.3d at
1289, to the contrary. We instead agree with the dissenting judge
in that case, who would have required calculation of a lodestar
figure in determining fees under section 14-10-119. See 25 P.3d at
1289-91 (Taubman, J., concurring in part and dissenting in part);
see also Visible Voices, Inc. v. Indus. Claim Appeals Office, 2014
COA 63, ¶ 25 (declining to follow the decision of another division of
the court of appeals, and noting that one division of the court isn’t
bound by another division’s decision). We do so for the following
reasons.
¶ 14 The language of the statute clearly limits an award to those
fees that are “reasonable.” Though the statute requires the court to
consider “the financial resources of both parties,” that consideration
goes to each spouse’s respective obligation — that is, the portion of
the “reasonable” fees each spouse should bear. It doesn’t speak to
the reasonableness of the fees incurred in the first instance. So
some standard is needed to guide courts in making that threshold
determination. One possible such standard is the “lodestar”
approach.
7
¶ 15 Under the lodestar approach, the court first calculates a
lodestar amount, which represents the number of hours reasonably
expended on the case multiplied by a reasonable hourly rate. S.
Colo. Orthopaedic Clinic Sports Med. & Arthritis Surgeons, P.C. v.
Weinstein, 2014 COA 171, ¶ 23. After calculating a lodestar
amount, the court then has the discretion to make upward or
downward adjustments to that amount after considering the
relevant factors in Colo. RPC 1.5(a) for determining the
reasonableness of attorney fees. S. Colo. Orthopaedic Clinic Sports
Med. & Arthritis Surgeons, ¶ 24. These factors include the following:
(1) the time and labor required, the novelty
and difficulty of the questions involved, and
the skill requisite to perform the legal
service properly;
(2) the likelihood, if apparent to the client, that
the acceptance of the particular
employment will preclude other
employment by the lawyer;
(3) the fee customarily charged in the locality
for similar legal services;
(4) the amount involved and the results
obtained;
(5) the time limitations imposed by the client
or by the circumstances;
8
(6) the nature and length of the professional
relationship with the client;
(7) the experience, reputation, and ability of
the lawyer or lawyers performing the
services; and
(8) whether the fee is fixed or contingent.
Colo. RPC 1.5(a). 1
¶ 16 The lodestar approach is therefore consistent with case law
requiring a court considering whether to award fees under section
14-10-119 to determine a reasonable hourly rate and a reasonable
number of hours billed. Connerton, 260 P.3d at 67; Mockelmann,
944 P.2d at 672; Rieger, 827 P.2d at 625. And it is consistent with
the equitable purpose of the statute in that it requires adjustments
to the lodestar figure for relevant circumstances specific to each
case.
¶ 17 On top of that, the lodestar method is tried and true. Indeed,
because a lodestar amount “carries with it a strong presumption of
reasonableness,” Payan v. Nash Finch Co., 2012 COA 135M, ¶ 18,
1As discussed below, we modify application of these factors
somewhat to account for the nature of proceedings under the
Uniform Dissolution of Marriage Act and the purpose of section 14-
10-119, C.R.S. 2018.
9
Colorado appellate courts have adopted the lodestar method for
determining attorney fees awards in many other contexts in which,
like under section 14-10-119, a party is entitled to recover
“reasonable” attorney fees. See, e.g., Am. Water Dev., Inc. v. City of
Alamosa, 874 P.2d 352, 386-87 (Colo. 1994) (on party’s voluntary
dismissal of claim under C.R.C.P. 41(a)(2)); Blooming Terrace No. 1,
LLC v. KH Blake Street, LLC, 2017 COA 72, ¶ 34 (contractual fee-
shifting provision) (cert. granted Apr. 9, 2018); Payan, ¶ 10 (for
successful claim under the Colorado Consumer Protection Act);
Catlin v. Tormey Bewley Corp., 219 P.3d 407, 410-11 (Colo. App.
2009) (to prevailing party under the federal Fair Labor Standards
Act); Double Oak Constr., L.L.C. v. Cornerstone Dev. Int’l, L.L.C., 97
P.3d 140, 151-52 (Colo. App. 2003) (under section 13-17-102,
C.R.S. 2018, for bringing a frivolous claim or defense); Dahl v.
Young, 862 P.2d 969, 973 (Colo. App. 1993) (under section 38-35-
109(3), C.R.S. 2018, for filing a fraudulent lien).
¶ 18 The only Colorado case we could find that questions the use of
the lodestar method in any context, other than Woolley, is Brody v.
Hellman, 167 P.3d 192 (Colo. App. 2007). In that case, a division of
this court noted the “recent trend” among federal courts in
10
“common fund cases” — class action lawsuits resulting in the
recovery of a fund to benefit the class — to use a percentage of the
fund method to calculate attorney fees instead of the lodestar
method, which the division noted is generally used in “statutory fee-
shifting cases.” Id. at 198, 201, 204. But the division also noted
that these courts “crosscheck the adequacy” of the fee calculated
using the percentage method “by applying the lodestar method.” Id.
at 201. And the division upheld the trial court’s calculation of
attorney fees under the percentage method and then also under the
lodestar method as a “crosscheck” of the percentage method. Id. at
201-02.
¶ 19 Brody recognized that common fund cases are different from
cases in which attorneys expect to be paid by the hour.
Specifically, common fund cases are like contingency fee cases
because of the risk “that attorneys will realize no return for their
investment of time and expenses in cases they lose.” Id. The fees
awarded in such cases should therefore compensate attorneys “both
for services rendered and for the risk of loss or nonpayment
assumed by following through with the case.” Id.11
¶ 20 This rationale for treating the lodestar method only as a
“crosscheck” on fees calculated using some other basis doesn’t
apply to section 14-10-119. Fees incurred in Uniform Dissolution
of Marriage Act cases are for services rendered: there is no risk
component as in common fund and contingency fee cases.
¶ 21 The majority in Woolley rejected the lodestar method
summarily. In light of the foregoing considerations, however, we
conclude that there is a great deal of merit to applying that method
in this context. Doing so will not only provide courts with a tested
and approved method of determining “reasonable” fees, it will
incentivize counsel to carefully consider, in advance, their time
spent on every aspect of the case.
¶ 22 Accordingly, we hold that a district court should apply the
lodestar method when determining reasonable attorney fees in the
domestic relations context under section 14-10-119. See Rosen v.
Rosen, 696 So. 2d 697, 699-701 (Fla. 1997) (adopting the lodestar
method for determining reasonable attorney fees to award under
Florida statute similar to section 14-10-119); see also Nagl v.
Navarro, 187 So. 3d 359, 361 (Fla. Dist. Ct. App. 2016) (“The
lodestar method is an appropriate starting point in domestic
12
relations cases.”). But we do so with the following caveat: the court
shouldn’t apply the Colo. RPC 1.5(a) factors rigidly, but instead
should carefully consider the extent to which those factors apply in
a given situation and the extent to which other factors may need to
be applied to achieve an equitable result. See Rosen, 696 So. 2d at
700.
3. Claim Preclusion Doesn’t Bar Wife’s Request for Fees for the
Permanent Orders Proceedings
¶ 23 Husband’s argument that the doctrine of claim preclusion
(sometimes referred to as res judicata) bars the court from awarding
wife fees incurred for the February 2017 permanent orders
proceedings is unpersuasive. Claim preclusion bars a party from
relitigating a matter that has already been decided or that could
have been raised in a previous proceeding. Argus Real Estate, Inc.
v. E-470 Pub. Highway Auth., 109 P.3d 604, 608 (Colo. 2005). Its
purpose is to prevent needless litigation. Id. A claim is precluded,
however, only when the court entered a final judgment in the first
proceeding. Id.¶ 24 In this case, the district court didn’t specifically address wife’s
section 14-10-119 attorney fees request in the February 2017
13
permanent orders and didn’t award fees. However, the court also
reserved the financial issues — the potential division of husband’s
workers’ compensation settlement as marital property, as well as
child support and maintenance — for later determination after
husband’s workers’ compensation claim was resolved. Then, after
husband received his settlement, the court granted wife’s request to
reopen the issue of attorney fees. The record doesn’t show that
husband objected to wife’s request to reopen the fee issue. Rather,
he raised his claim preclusion argument in his objection to wife’s
later fee affidavit.
¶ 25 Under these circumstances, assuming without deciding that
this argument is preserved, we conclude that claim preclusion
doesn’t bar wife’s fee request. The court contemplated in entering
permanent orders initially that husband’s pending settlement would
change his financial circumstances, and it therefore reserved a final
decision on financial issues until the settlement was completed.
Claim preclusion doesn’t bar the reopened fee determination based
on these reserved financial issues because the court hadn’t entered
a final judgment. See Argus, 109 P.3d at 608 (claim preclusion
bars subsequent claims only after final judgment).
14
III. Income for Maintenance and Child Support Purposes
A. Husband’s Income
¶ 26 Husband also contends that the district court erred by
determining his income from his workers’ compensation settlement
by allocating the amount, less attorney fees and medical expenses,
over twelve months beginning April 1, 2018. We agree.
¶ 27 We initially reject wife’s argument that husband didn’t
preserve this contention. Wife argued in her motion to modify that
husband’s workers’ compensation settlement should be allocated
over twelve months, but she didn’t provide a specific date that the
allocation period should begin. Husband objected in his response,
contending that the settlement should instead be allocated
consistently with the parties’ stipulation and that wife’s calculation
was “off base.” In doing so, husband preserved his argument
concerning the allocation of the settlement. See Berra v. Springer &
Steinberg, P.C., 251 P.3d 567, 570 (Colo. App. 2010) (an issue is
preserved when brought to the court’s attention, so that the court
has an opportunity to rule on it).
¶ 28 Income for the purposes of child support and maintenance
includes workers’ compensation benefits. § 14-10-114(8)(c)(I)(Q),
15
C.R.S. 2018; § 14-10-115(5)(a)(I)(Q), C.R.S. 2018; see In re Marriage
of Smith, 817 P.2d 641, 644 (Colo. App. 1991). Husband cites no
authority, and we aren’t aware of any in Colorado, concerning how
a court should include workers’ compensation benefits received in a
one-time, lump-sum payment in a party’s income for purposes of
child support and maintenance.
¶ 29 We note initially that husband’s reliance on In re Marriage of
Breckenridge, 973 P.2d 1290 (Colo. App. 1999), is misplaced. That
case addressed only the classification of workers’ compensation
benefits, part of which were paid in a lump sum, as marital or
separate property of the receiving spouse. Id. at 1290-91. It didn’t
address how to include the payment as income for purposes of
maintenance or child support. Accordingly, it isn’t relevant to the
issue before us.
¶ 30 Husband’s workers’ compensation settlement, which was
based on a “whole person impairment” rating of 52%, represented
165.34 weeks of lost wages. Consistent with these terms, the
parties stipulated in connection with wife’s initial motion to modify
child support that the settlement amount would be allocated over a
165.34-week period to determine husband’s income. The district
16
court approved the parties’ stipulation the day before wife moved
again to modify both maintenance and child support, requesting for
the first time that the settlement amount instead be allocated over a
twelve-month period to determine husband’s income.
¶ 31 The district court granted wife’s request without explaining
why it was departing from the terms of husband’s workers’
compensation settlement and the parties’ stipulation. 2 We conclude
that it abused its discretion in doing so.
¶ 32 As wife points out, other one-time payments are sometimes
included in the recipient’s gross income for the year in which they
were received. See In Interest of A.M.D., 78 P.3d 741, 746 (Colo.
2003) (inheritance); In re Marriage of Bohn, 8 P.3d 539, 541 (Colo.
App. 2000) (lottery prize); In re Marriage of Zisch, 967 P.2d 199, 202
(Colo. App. 1998) (capital gain). But, unlike those other types of
payments, a workers’ compensation settlement is intended as
future wage replacement for the injured employee/spouse. See
2 Stipulations “are admissions binding on the parties.” Cherokee
Metro. Dist. v. Upper Black Squirrel Creek Designated Ground Water
Mgmt. Dist., 247 P.3d 567, 573 (Colo. 2011). Wife didn’t argue any
reason in the district court for disregarding her stipulation; she
merely made a request inconsistent with that stipulation.
17
Loofbourrow v. Indus. Claims Office, 321 P.3d 548, 554-55 (Colo.
App. 2011) (“The overall purpose of the statutory scheme is to
calculate ‘a fair approximation of the claimant’s wage loss and
diminished earning capacity.’”) (citation omitted), aff’d sub nom.
Harman-Bergstedt, Inc. v. Loofbourrow, 2014 CO 5; Emp’rs Fire Ins.
Co. v. Lumbermens Mut. Cas. Co., 964 P.2d 591, 594 (Colo. App.
1998) (“[U]nder the Workers’ Compensation Act, an injured
employee is entitled to receive wage replacement benefits . . . .”); see
also In re Marriage of Swan, 526 N.W.2d 320, 325 (Iowa 1995)
(“Workers’ compensation benefits are not a windfall. They are
directly related to the worker’s former earnings and his or her
ability to earn income in the future.”). And the amount of benefits
is computed based on the injured employee’s average weekly wage.
See § 8-42-102(1), C.R.S. 2018; Benchmark/Elite, Inc. v. Simpson,
232 P.3d 777, 779 (Colo. 2010).
¶ 33 Because husband’s workers’ compensation settlement
represents a replacement for his lost wages due to his injury and
was calculated based on his average weekly wage over 165.34
weeks, we conclude that the settlement amount should be allocated
consistently with these terms in determining husband’s income for
18
child support and maintenance purposes. See Swan, 526 N.W.2d
at 325-26 (apportioning workers’ compensation award over 126
weeks, consistent with its terms, when calculating the recipient
parent’s income for child support purposes). The court’s decision to
instead use a twelve-month allocation period — inexplicably
beginning nine months after the date husband received the
settlement — not only deviates from the parties’ stipulation, it
effectively penalizes husband for suffering a compensable work-
related injury. It does so by taking wages that, had husband not
been injured, would have been earned over a period of 165.34
weeks, and would have been treated as being earned over that
period for purposes of calculating husband’s income, and instead
treating them as if they had been earned over a period of fifty-two
weeks, merely because husband received them in one lump-sum
payment due to his injury. This seems the very definition of
arbitrary and thus can’t stand. See In re Marriage of Gromicko,
2017 CO 1, ¶ 18 (“A district court abuses its discretion when its
decision is manifestly arbitrary, unreasonable, or unfair.”).
¶ 34 We recognize that other courts have used different methods to
apportion a workers’ compensation settlement. See, e.g., Mayfield
19
v. Mayfield, 989 N.E.2d 601, 607-08 (Ill. 2013) (ordering lump-sum
child support payment of 20% of settlement amount); Becker v.
Becker, 573 N.W.2d 485, 491 (Neb. Ct. App. 1997) (apportioning
settlement amount over remaining period until the youngest child
emancipated); In re State, 904 A.2d 619, 626 (N.H. 2006)
(apportioning settlement amount over recipient’s life expectancy).
But absent “unique facts” not apparent in the record, we conclude
that the preferable method is to apportion such a settlement
consistent with its terms, meaning over the number of weeks of lost
wages that the lump-sum settlement represents. But cf. In re
Marriage of Sullivan, 853 P.2d 1194, 1198-99 (Mont. 1993)
(including settlement amount in recipient’s income for the year it
was received when the evidence was that the recipient spent the
entire $50,000 settlement within that year).
¶ 35 On remand, the court should recalculate husband’s income
consistently with the terms of his workers’ compensation settlement
and redetermine maintenance and child support accordingly.
¶ 36 Because wife didn’t file a cross-appeal, we don’t address her
argument that the court erred by reducing husband’s workers’
compensation settlement amount to account for the attorney fees
20
he incurred in obtaining it and his future medical expenses. See
Koinis v. Colo. Dep’t of Pub. Safety, 97 P.3d 193, 197 (Colo. App.
2003) (“An appellee must file a cross-appeal in order to raise a
contention that, if successful, would increase its rights under the
judgment or order being reviewed.”).
B. Wife’s Income
¶ 37 Last, husband contends that the court abused its discretion
by failing to impute income to wife. We disagree.
¶ 38 “[B]oth parents have a duty to support their children.” People
v. Martinez, 70 P.3d 474, 477 (Colo. 2003). So if a parent is
voluntarily unemployed or underemployed, the court must calculate
child support based on the parent’s potential income. § 14-10-
115(5)(b)(I); see Martinez, 70 P.3d at 477. The court must similarly
calculate maintenance based on a spouse’s potential income if the
spouse is voluntarily underemployed or unemployed. § 14-10-
114(8)(c)(IV).
¶ 39 Whether potential income should be imputed is a question of
fact that depends on the circumstances of the case. So we defer to
the district court’s findings if they are supported by the record.
Martinez, 70 P.3d at 480-81.
21
¶ 40 We conclude that the district court’s decision not to impute
potential income to wife has record support.
¶ 41 Husband testified that he knew wife earned money by cutting
hair at the parties’ home, but that he didn’t know how much she
got paid. Wife admitted that she did this for close friends and
received “tips.” When the court asked husband’s attorney how
much income he believed should be imputed to wife for cutting hair,
the attorney responded, “[w]e know she has cut hair,” but didn’t
provide an amount. The court then declined to impute income to
wife, finding that her work from home was “sporadic at best” and
her earnings “de minim[i]s.”
¶ 42 The record further reflects that the parties have five children,
who, at the time of the income hearing, ranged in age from two to
sixteen. The youngest child had attained thirty months only four
months before the February 2018 income hearing. See §§ 14-10-
114(8)(c)(IV), 14-10-115(5)(b)(I) (income shall not be imputed to a
parent who is caring for a child under the age of thirty months).
Also, wife testified that one of the children had been diagnosed with
autism and ADHD and that she couldn’t work and care for the
child, who had three weekly therapy appointments. Additionally,
22
wife is from Honduras and doesn’t have a work permit to allow her
to work legally in this country.
¶ 43 Under these circumstances, we won’t disturb the district
court’s decision not to impute income to wife. Cf. In re Marriage of
Foss, 30 P.3d 850, 852 (Colo. App. 2001) (finding an abuse of
discretion when district court imputed full-time income to mother
who was caring for one disabled child, including taking the child to
two therapy appointments a week).
¶ 44 Last, to the extent husband argues that the district court
didn’t make the necessary section 14-10-122(1)(a), C.R.S. 2018,
findings to modify maintenance, we note that the court reserved
jurisdiction to make a final maintenance decision after husband’s
workers’ compensation claim was resolved. Thus, the court’s
findings, including those in the February 2017 permanent orders,
are sufficient to support awarding wife the statutory guideline
amount of maintenance. See § 14-10-114(3)(a)-(e), (g); see also In re
Marriage of Thorstad, 2019 COA 13, ¶ 29 (noting that “[a] court can,
in specified circumstances, reserve jurisdiction over a maintenance
order” and then later resolve the issue under section 14-10-114
instead of section 14-10-122).
23
IV. Appellate Attorney Fees
¶ 45 Wife requests attorney fees on appeal, citing sections 13-17-
102 and 14-10-119. Because she hasn’t articulated a factual basis
for the request, however, we deny it. See C.A.R. 39.1 (providing
that fee claimant must “explain the legal and factual basis” for an
award); In re Marriage of Roddy, 2014 COA 96, ¶ 32 (merely citing
statute under which fees are requested is insufficient).
V. Conclusion
¶ 46 The January 28, 2018, order awarding wife attorney fees is
vacated, and the case is remanded for additional attorney fees
findings as provided herein. The March 7, 2018, order determining
child support and maintenance is affirmed as to wife’s income and
reversed as to husband’s income, and the case is remanded for the
district court to recalculate husband’s income as instructed herein
and to redetermine child support and maintenance accordingly.
JUDGE TERRY and JUDGE GROVE concur.
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