In Re the Marriage of Ikeler

Chief Judge DAVIDSON

specially concurring.

I concur in Parts I, II, III, and V of the majority opinion. I also concur in the majority’s conclusion in Part IV that the plain language of § 14-2-307(2), C.R.S.2005, of the Colorado Marital Agreement Act provides that the only provision in a marital agreement that may be reviewed for unconsciona-bility is maintenance. Thus, I agree that § 14-2-307(2) does not state that a marital agreement in which each party has agreed to pay his or her own attorney fees may be reviewed for unconscionability. I write separately to raise the question whether the General Assembly intended that the Act be applied to prohibit an award of at least some attorney fees in permanent orders disputes, such as here, when there has been significant litigation relating to the parties’ children.

Generally, under principles of freedom of contract, a marital agreement may contain a waiver of attorney fees. See, e.g., In re Marriage of Christen, 899 P.2d 339 (Colo.App.1995)(enforcing provision of marital agreement awarding attorney fees to prevailing party). The Act sets forth what the parties may contract about in a marital agreement, such as .property division and maintenance. The Act makes no mention of attorney fees. Courts in other states that have enacted versions of the Act generally agree, however, that waivers of attorney fees in prenuptial agreements are generally enforceable. See, e.g., Hardee v. Hardee, 355 S.C. 382, 585 S.E.2d 501 (App.2002).

The General Assembly has also provided in a different section of the Act that a marital agreement “may not adversely affect the right of a child to child support.” Section 14-2-304(3), C.R.S.2005. That part of the Act means, for example, that any agreement of the parties as to child support to be awarded in the event of dissolution would be unenforceable to the extent it adversely affected the child’s rights. That also necessarily prohibits any agreed upon restriction of either party’s right to seek child support, or to litigate related issues such as parenting time or parenting responsibilities. See In re Marriage of Chalat, 112 P.3d 47, 53 (Colo.2005) (“[T]he law and policy of this state [is] *355that the needs of the children are of paramount importance.”) (quoting In re Marriage of Miller, 790 P.2d 890, 892 (Colo.App.1990)); In re Marriage of Micaletti, 796 P.2d 54 (Colo.App.1990) (parents may not, by agreement, adversely affect their children’s best interests).

The General Assembly has also explicitly recognized that attorney fees are a necessary component of litigation in dissolution proceedings. See § 14-10-119, C.R.S.2005 (allowing the dissolution court from time to time during the litigation to award attorney fees to enable a party to afford the expenses of litigation); In re Marriage of Rose, 134 P.3d 559 (Colo.App.2006) (award of attorney fees mitigates the potential harm to the parties’ children caused by the dissolution of marriage); see also In re Marriage of Aldrich, 945 P.2d 1370 (Colo.1997) (attorney fee awards ensure that neither party to a dissolution action suffers undue economic hardship as a result of the proceedings); In re Marriage of Mitchell, 195 Colo. 399, 579 P.2d 613 (1978) (same), disapproved on other grounds by In re Marriage of Grubb, 745 P.2d 661 (Colo.1987); In re Marriage of Page, 70 P.3d 579 (Colo.App.2003) (same).

Conversely, the absence of an award of attorney fees or even the possibility of an award can inhibit the ability of one spouse to litigate in a dissolution action issues relating to child support and other issues concerning the parties’ children. See In re Marriage of Rose, supra, 134 P.3d at 562 (interpreting § 14-10-119 to conclude that courts have authority to advance prospective attorney fees and costs during dissolution proceedings); In re Marriage of Mockelmann, 944 P.2d 670 (Colo.App.1997) (award of attorney fees at temporary orders necessary to continue litigation); In re Marriage of Lee, 781 P.2d 102 (Colo.App.1989) (advance of litigation costs allowed spouse to maintain litigation).

This body of law reflects consistently and clearly expressed legislative policy enacted by the General Assembly and applied by the courts to protect the rights of children in dissolution cases. I find it difficult, then, to reconcile these unambiguous statements of public policy with the equally unambiguous language of § 14-2-307(2), which, by negative implication, prohibits review of a waiver of attorney fees in a marital agreement even as it relates to litigation of the needs of the parties’ children.

Nevertheless, I agree with the majority that, because it is plain, we are bound by the statutory language. If the General Assembly means to allow courts to award attorney fees in dissolution proceedings when children’s issues are involved regardless of a prior waiver of fees in a marital agreement, it is for that body, not this court, expressly to say so. See Kallenberger v. Buchanan, 649 P.2d 314 (Colo.1982) (courts do not approve or disapprove of the wisdom of legislative decisions or the desirability of legislative acts); cf. In re Marriage of Burke, 96 Wash.App. 474, 980 P.2d 265 (1999) (contractual right of parties to waive attorney fees in marital agreement must yield to special rules formulated by the legislature and the courts to protect the children’s needs in dissolution proceedings).