In re Marriage of Aragon

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.

24