2019 COA 87
Colo. Ct. App.2019Background
- After final dissolution orders required parents to share their child's tutoring costs, father refused to pay his share for fifth-grade tutoring.
- Mother moved under C.R.C.P. 107 for remedial contempt seeking (1) father’s unpaid tutoring share and (2) her attorney fees incurred in the contempt proceeding.
- Magistrate found father in remedial contempt and entered a judgment awarding $1,530 for tutoring and $11,630 in attorney fees, allowing father to challenge the fee amount.
- Father timely objected to the reasonableness of the attorney fees; the magistrate had not yet held a fee hearing or ruled on the objection when father appealed the district court’s adoption of the contempt order.
- The Court of Appeals considered whether the contempt order was final and appealable while the attorney-fee amount remained unresolved and whether attorney fees awarded "in connection with" remedial contempt are part of the sanction.
Issues
| Issue | January's Argument | January's (father) Argument | Held |
|---|---|---|---|
| Whether a remedial contempt order is final and appealable when the amount of attorney fees awarded as part of the remedial sanction remains unresolved | Mother: attorney fees are part of the remedial sanction, but the order adopting sanctions is final and appealable | Father: appeal of the district court’s adoption of contempt order is timely despite pending fee-amount determination | Court: Not final; appeal dismissed without prejudice because attorney-fee determination is a component of remedial sanctions and must be resolved before appeal |
| Whether attorney fees awarded "in connection with" a remedial contempt proceeding are a component of the remedial sanction under C.R.C.P. 107(d)(2) | Mother: fees are recoverable as remedial sanctions under Rule 107(d)(2) | Father: does not contest that fees relate to remedial sanction but argues appealable separately | Court: Fees are a component of remedial sanctions; C.R.C.P. 107(f) requires completion of sanctions for finality |
Key Cases Cited
- People v. Shell, 148 P.3d 162 (Colo. 2006) (Rule 107(d)(2) permits assessment of costs and attorneys’ fees with remedial sanctions)
- Aspen Springs Metro. Dist. v. Keno, 369 P.3d 716 (Colo. App. 2015) (remedial sanctions including costs and fees cannot be imposed where contemnor can no longer purge)
- In re Marriage of Webb, 284 P.3d 107 (Colo. App. 2011) (attorney fees can only be awarded as component of remedial sanctions)
- In re Lopez, 109 P.3d 1021 (Colo. App. 2004) (attorney fees permissible for remedial but not punitive contempt)
- Eichhorn v. Kelley, 56 P.3d 124 (Colo. App. 2002) (C.R.C.P. 107(d)(2) specifically allows attorney fees as remedial sanction)
- Sec. Inv’r Prot. Corp. v. First Entm’t Holding Corp., 36 P.3d 175 (Colo. App. 2001) (sanctions incomplete until costs and reasonable fees are resolved)
- In re Marriage of Nussbeck, 949 P.2d 73 (Colo. App. 1997) (a remedial order is the predicate for awarding attorney fees)
- Madison Capital Co. v. Star Acquisition VIII, 214 P.3d 557 (Colo. App. 2009) (contrasting decision that treated contempt order and later fee order as separately appealable; disapproved here)
- Baldwin v. Bright Mortg. Co., 757 P.2d 1072 (Colo. 1988) (discussion of finality: a decision that ends litigation on the merits is appealable)