Marriage of Athow
23CA2163
Colo. Ct. App.Mar 20, 2025Background
- Kenneth Athow (father) and Darci Athow (mother) divorced in 2019; father was ordered to pay child support and maintenance and to transfer a vehicle to mother, with refinancing conditions.
- Father alleged mother failed to refinance the vehicle and abandoned it, and that he was making the loan payments and deducting them from his maintenance obligation.
- The parties later agreed to terminate father's remaining maintenance obligation, and father accepted liability for the vehicle loan.
- El Paso County Child Support Services Unit (CSS) intervened for child support matters, and a dispute over arrearages arose when CSS did not credit father for the vehicle payments.
- After court proceedings, father received the offset credit for loan payments, but he sought attorney fees from CSS under section 13-17-102, claiming CSS unnecessarily expanded the litigation.
- The district court denied the attorney fees request, finding CSS’s conduct occurred outside judicial proceedings and did not meet statutory criteria.
Issues
| Issue | Plaintiff’s Argument | Defendant’s Argument | Held |
|---|---|---|---|
| Jurisdiction to award attorney fees if father did not exhaust administrative remedies | Court had authority to award fees | Court did not have authority w/o exhaustion | Not addressed; resolved on alternative grounds |
| Applicability of section 13-17-102 to CSS’s actions | CSS’s conduct expanded proceedings and should allow fee recovery | Actions outside judicial proceedings, not actionable under statute | Section 13-17-102 did not apply to conduct outside court proceedings |
| Appropriateness of denying discovery and evidentiary hearing on fee issue | Denial of discovery prejudiced father | Discovery irrelevant, conduct outside proceedings | No prejudice; discovery and hearing unnecessary |
| Entitlement to appellate attorney fees | Father entitled to appellate fees | No entitlement; insufficient basis | Appellate fees denied |
Key Cases Cited
- In re Estate of Fritzler, 2017 COA 4 (Colo. Ct. App. 2017) (exception to American rule on attorney fees under Colorado law)
- Roberts v. Bruce, 2018 CO 58 (Colo. 2018) (clarification of attorney fee authority under section 13-17-102)
- Bd. of Cnty. Comm’rs v. Kraft Bldg. Contractors, 122 P.3d 1019 (Colo. App. 2005) (no attorney fees for activity not related to court proceedings)
- In re Parental Responsibilities Concerning D.P.G., 2020 COA 115 (Colo. Ct. App. 2020) (standard of review for attorney fees decisions)