In re Marriage of January

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
June 13, 2019

2019COA87

No. 17CA2416, In re Marriage of January — Civil Procedure —
Remedial and Punitive Sanctions for Contempt; Attorney Fees;
Appeals — Final Appealable Order

The case addresses whether an order imposing remedial

sanctions is final and, therefore, appealable if the lower court has

not yet determined the amount of attorney fees awardable as part of

the sanction. A division of the court of appeals concludes that such

an order is not final, siding with the line of authority holding that

“reasonable attorney’s fees in connection with the contempt

proceeding” are a component of remedial sanctions under C.R.C.P.

107(d)(2). In reaching this conclusion, the division respectfully

disagrees with Madison Capital Co. v. Star Acquisition VIII, 214 P.3d

557 (Colo. App. 2009).
COLORADO COURT OF APPEALS 2019COA87

Court of Appeals No. 17CA2416
Douglas County District Court No. 13DR30291
Honorable Alex J. Martinez, Judge

In re the Marriage of

Tiffany Rose January,

Appellee,

and

Jeffrey Forrest January,

Appellant.

APPEAL DISMISSED

Division IV
Opinion by JUDGE LIPINSKY
Román and J. Jones, JJ., concur

Announced June 13, 2019

Epstein Patierno LLP, Courtney J. Allen, Denver, Colorado, for Appellee

The Locke Law Firm PC, Teresa D. Locke, Denver, Colorado, for Appellant
¶1 Following the entry of final orders in her dissolution of

marriage case, Tiffany Rose January (mother) sought remedial

sanctions against Jeffrey Forrest January (father) for, among other

things, not paying his share of their daughter’s tutoring expenses.

The magistrate found father in remedial contempt and imposed

sanctions consisting of the tutoring expenses and mother’s attorney

fees incurred in connection with the contempt proceeding. Father

objected to the amount of attorney fees awarded to mother. The

magistrate has yet to rule on the objection.

¶2 The district court agreed with and adopted the magistrate’s

order awarding the tutoring expenses to mother. Father appeals

the district court’s ruling.

¶3 In light of the procedural posture of father’s appeal, we

consider whether a contempt order is final and appealable during

the pendency of an objection to the amount of attorney fees ordered

“in connection with” the remedial contempt sanction. Because we

conclude the answer is no, we dismiss father’s appeal, without

prejudice.

¶4 In doing so, we respectfully disagree with the holding in

Madison Capital Co. v. Star Acquisition VIII, 214 P.3d 557, 560 (Colo.

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 App. 2009), and side with the line of authority holding that

“reasonable attorney’s fees in connection with the contempt

proceeding” are a component of remedial sanctions under C.R.C.P.

107(d)(2). See People v. Shell, 148 P.3d 162, 178 (Colo. 2006);

Aspen Springs Metro. Dist. v. Keno, 2015 COA 97, ¶ 34, 369 P.3d

716, 724; In re Marriage of Webb, 284 P.3d 107, 109 (Colo. App.

2011); In re Lopez, 109 P.3d 1021, 1024 (Colo. App. 2004); Eichhorn

v. Kelley, 56 P.3d 124, 126 (Colo. App. 2002); Sec. Inv’r Prot. Corp.

v. First Entm’t Holding Corp., 36 P.3d 175, 178 (Colo. App. 2001); In

re Marriage of Nussbeck, 949 P.2d 73, 75 (Colo. App. 1997), rev’d on

other grounds, 974 P.2d 493 (Colo. 1999).

I. Background

¶5 The permanent orders, as relevant to this appeal, require the

parties to share the tutoring expenses in proportion to their

incomes. After father refused to pay his share of the daughter’s

fifth grade tutoring costs, mother moved under C.R.C.P. 107 for

remedial contempt sanctions in the form of the tutoring expenses

and the attorney fees she incurred in obtaining the sanctions. See

C.R.C.P. 107(d)(2) (“In all cases of indirect contempt where remedial

sanctions are sought, the nature of the sanctions and remedies that

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 may be imposed shall be described in the motion or citation.”). The

parties agree that the attorney fees “are based on the contempt, and

[father’s] ability to pay the purge of the contempt.”

¶6 Following an evidentiary hearing, the magistrate found father

in contempt. As a remedial sanction, the magistrate entered a

judgment against father in the amount of $1,530 for his unpaid

share of the daughter’s tutoring expenses and $11,630 in attorney

fees to mother. See C.R.C.P. 107(d)(2) (providing that a court may

assess “[c]osts and reasonable attorney’s fees in connection with [a]

contempt proceeding . . . in the discretion of the court”). The

magistrate gave father an opportunity to challenge the

reasonableness of mother’s attorney fees.

¶7 Father objected to the award of attorney fees and requested a

hearing under C.R.C.P. 121, section 1-22(2)(c). See Roberts v.

Adams, 47 P.3d 690, 700 (Colo. App. 2001) (notwithstanding the

discretionary language in C.R.C.P. 121, section 1-22(2)(c), a party

who requests a timely hearing on the reasonableness of attorney

fees is entitled to a hearing). The magistrate has not yet set a

hearing or ruled on father’s objection.

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¶8 Meanwhile, father petitioned for district court review of the

magistrate’s contempt order. The district court adopted the

magistrate’s order awarding the tutoring expenses to mother.

Father appeals the district court’s decision.

¶9 While this appeal was pending, a motions division of this court

directed the parties to show cause why father’s appeal should not

be dismissed, without prejudice, for lack of a final, appealable

judgment, given that the magistrate has yet to rule on father’s

objection. After the parties responded, the division deferred ruling

to the merits division.

II. Finality

¶ 10 We address whether the district court’s order adopting the

magistrate’s contempt order is final and appealable, even though

the magistrate has yet to rule on father’s objection to the amount of

attorney fees awarded to mother. See Allison v. Engel, 2017 COA

43, ¶ 22, 395 P.3d 1217, 1222 (“We must determine independently

our jurisdiction over an appeal, nostra sponte if necessary.”).

¶ 11 “A ‘final decision’ generally is one which ends the litigation on

the merits and leaves nothing for the court to do but execute the

judgment.” Baldwin v. Bright Mortg. Co., 757 P.2d 1072, 1073

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 (Colo. 1988) (quoting Budinich v. Becton Dickinson & Co., 486 U.S.

196, 199 (1988)) (determining that district court order dismissing

defendants’ third-party claim and awarding attorney fees against

them for bringing a frivolous action under section 13-17-102,

C.R.S. 2018, was final and appealable even though the district

court had reserved the amount of attorney fees for later

determination). But see Axtell v. Park Sch. Dist. R-3, 962 P.2d 319,

321 (Colo. App. 1998) (deciding that district court order granting

attorney fees under section 13-17-102 was not final and appealable

because the attorney fee amount had not yet been determined).

¶ 12 Under C.R.M. 7(a)(3), only a final magistrate’s order is

reviewable. “For the purposes of appeal, an order deciding the

issue of contempt and sanctions shall be final.” C.R.C.P. 107(f).

Thus, a contempt order is final once the district court adjudicates

the contempt issue and imposes a “complete” sanction. See Sec.

Inv’r Prot. Corp., 36 P.3d at 178 (By its plain language, C.R.C.P.

107(f) “requires that, to constitute a final order, the determination

of sanctions must be completed.”).

¶ 13 As father points out, the holding in Madison Capital is almost

directly on point. There, the division held that a contempt order

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 and a later attorney fee order “in connection with [the] violation of

the Order” were separately appealable. Madison Capital, 214 P.3d

at 559-60. Relying on Baldwin, the division reasoned that “[a] final

judgment on the merits is appealable regardless of any unresolved

issue of attorney fees.” Id. at 560. The division dismissed as

untimely the portion of the appeal concerning the underlying

contempt order, but considered the appeal of the later attorney fee

order. See id. We note that, unlike the present case, the contemnor

in Madison Capital did not challenge the reasonableness of the

attorney fee award. See id. at 559.

¶ 14 We disagree with the division’s holding in Madison Capital.

See People v. Abu-Nantambu-El, 2017 COA 154, ¶ 88, ___ P.3d ___,

___ (“[O]ne division of the court of appeals is not bound by a

decision of another division.”) (cert. granted Oct. 15, 2018).

¶ 15 As other divisions of this court have concluded, reasonable

attorney fees are a component of remedial sanctions under C.R.C.P.

107(d)(2). See Webb, 284 P.3d at 109 (“We first conclude that

attorney fees can be awarded only as a component of remedial

sanctions.”); Eichhorn, 56 P.3d at 126 (“C.R.C.P. 107(d)(2)

specifically allows an award of attorney fees as a remedial

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 sanction . . . .”); see also Aspen Springs Metro. Dist., ¶ 34, 369 P.3d

at 724 (holding that remedial sanctions, such as the assessment of

costs and attorney fees, cannot be imposed against a defendant

whose violation of a court order had occurred in the past and,

therefore, he could no longer purge his contempt); Lopez, 109 P.3d

at 1024 (“Although attorney fees may be awarded in connection

with remedial contempt, they may not be imposed as part of a

punitive contempt sanction.”); Sec. Inv’r Prot. Corp., 36 P.3d at 178

(“[O]ther than costs and reasonable attorney fees, [under] C.R.C.P.

107(d)(2), a trial court is without authority to require, as a remedial

sanction, . . . payments . . . that do not force compliance with or

performance of a court order.”); Nussbeck, 949 P.2d at 75 (a

remedial order is “the predicate for the award of attorney fees”); cf.

Shell, 148 P.3d at 178 (“Rule 107(d)(2) permits the assessment of

costs and attorneys’ fees where remedial sanctions are imposed

against a contemnor.”).

¶ 16 We agree with those cases’ conclusion that C.R.C.P. 107(d)(2)

allows a district court to award reasonable attorney fees as a

remedial sanction. (Father does not contest that the attorney fee

award is part of the remedial sanction.) Therefore, a contempt

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 order is not final until the attorney fees portion of the remedial

sanction has been completely resolved. See C.R.C.P. 107(f).

¶ 17 In sum, father appealed too soon because the magistrate has

not completed imposing remedial contempt sanctions against him.

Accordingly, we must dismiss his appeal, without prejudice, for lack

of a final order. See C.R.C.P. 107(f); Sec. Inv’r Prot. Corp., 36 P.3d at

178.

III. Appellate Attorney Fees

¶ 18 Given our conclusion that we lack jurisdiction to consider

father’s appeal, we need not address mother’s request for recovery

of her appellate attorney fees and costs under C.A.R. 39.1 and

section 13-17-102. See In re Marriage of Barnes, 907 P.2d 679, 685

(Colo. App. 1995) (remanding for further proceedings where the

record was insufficient to allow appellate court to determine

whether the court erred in denying the husband’s section 13-17-

102 attorney fees request). (Mother’s answer brief cites to the

previous number of the rule, C.A.R. 39.5, which pre-dates her

request for appellate attorney fees.) Mother’s attorney fees request

under C.A.R. 39.1 and section 13-17-102 will be ripe for

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 adjudication once the district court enters a final, appealable order

setting the full amount of the remedial sanction.

IV. Conclusion

¶ 19 We dismiss the appeal, without prejudice, for lack of a final

order.

JUDGE ROMÁN and JUDGE J. JONES concur.

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