In re Marriage of Durie

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.

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 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

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 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.

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 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

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 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.

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¶ 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

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 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.

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 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.

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 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

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 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.

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¶ 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.

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