Matter of Marilyn G Hoye Trust

24CA0534 Matter of Marilyn G Hoye Trust 07-17-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0534
Boulder County District Court No. 23PR30570
Honorable Stephen J. Schapanski, Judge

In the Matter of Marilyn G. Hoye Trust, Settlor,

Timothy Hoye,

Appellant,

v.

Carolyn Enichen and Thomas Hoye,

Appellees.

ORDER AFFIRMED

Division I
Opinion by JUDGE GRAHAM*
Kuhn and Moultrie, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced July 17, 2025

Timothy Hoye, Pro Se

The Law Office of Care Enichen, LLC, Care Enichen, Boulder, Colorado, for
Appellees

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2024.
¶1 In this probate case, respondent, Timothy Hoye, appeals the

trial court’s order modifying the final settlement of the Marilyn G.

Hoye Family Trust (the Trust), as proposed by petitioners, Carolyn

“Care” Enichen and Thomas Hoye, cotrustees of the Trust. We

affirm.

I. Background

¶2 The decedent’s four children — Care, Thomas, Leslie, and

Timothy1 — are equal beneficiaries of the Trust. Upon the

decedent’s death, Care and Thomas became cotrustees.

¶3 After liquidating the Trust’s assets, which primarily consisted

of a house in Boulder, a beach cottage in Michigan, and a Charles

Schwab investment account, the cotrustees made several

expenditures from the Trust and distributed the remaining funds to

the four beneficiaries. Timothy received approximately $80,000 less

than what he otherwise would have received. He was assessed

various deductions for living in the beach cottage after the

decedent’s death, which reduced the amount of his distribution by

1 We refer to the decedent’s children by their first names because

two of them share the same initials. We mean no disrespect in
doing so.

1
$60,344.30. The cotrustees further withheld $20,000 in

anticipated legal fees from his distribution.

¶4 The cotrustees filed a petition to terminate and approve the

final settlement of the Trust. In support of their petition, they

submitted a final accounting listing the Trust’s assets, expenditures

made after the decedent’s death, and distributions to the

beneficiaries.

¶5 Timothy objected to the cotrustees’ petition. Among other

things, he argued that the final accounting did not account for all of

the decedent’s assets. He also requested to be reimbursed the

$60,344.30 in assessed deductions and $20,000 in withheld legal

fees.

¶6 After a two-day hearing, the trial court issued an order

modifying the final settlement of the Trust by increasing Timothy’s

distribution by $29,256.41. The court reasoned that several of the

deductions from Timothy’s distribution were unreasonable, and it

ordered the other beneficiaries to reimburse him this amount. The

court otherwise approved of the final settlement, however, including

the assessment of $20,000 in legal fees against Timothy’s

distributive share of the Trust.

2
¶7 Once the beneficiaries reimbursed Timothy, the court issued a

decree of final discharge and terminated the Trust.

II. Discussion

¶8 Timothy contends that the court erred by (1) approving the

final accounting that listed the Trust’s assets2 and (2) assessing

$20,000 in legal fees against his distributive share of the Trust. We

reject his contentions.3

A. Final Accounting

¶9 Timothy first contends that the court clearly erred by finding

that the final accounting sufficiently accounted for the Trust’s

assets. We disagree.

1. Standard of Review

¶ 10 We review a trial court’s factual findings for clear error. In re

Estate of Schumacher, 253 P.3d 1280, 1282 (Colo. App. 2011). “A

2 We have recognized and conflated both of Timothy’s contentions

on this issue.
3 To the extent Timothy contends that the trial judge demonstrated

bias against him, we decline to address his argument because it is
undeveloped. See Fisher v. State Farm Mut. Auto. Ins. Co., 2015
COA 57, ¶ 18 (Appellate courts do not address “arguments
presented . . . in a conclusory manner that are lacking citations to
any supporting authority.”), aff’d, 2018 CO 39.

3
court’s factual finding is clearly erroneous if there is no support for

it in the record.” In re Marriage of Young, 2021 COA 96, ¶ 8.

2. Analysis

¶ 11 Timothy asserts that the final settlement of the Trust failed to

account for a reverse mortgage on the Boulder house and the

original Charles Schwab investment account. It appears the final

settlement accounted for these assets, however. The final

accounting submitted by the cotrustees identified $45,133.49 in

proceeds from the sale of the Boulder house and a balance of

$118,111.31 in the Charles Schwab investment account. Indeed,

the trial court identified the Boulder house and Charles Schwab

investment account as two of three primary assets of the Trust.

¶ 12 Timothy’s arguments to the contrary are unsupported by the

record before us. He asserts that the reverse mortgage on the

Boulder house had an equity balance of $120,000 but provides no

evidence to support his assertion. See LePage v. People, 2014 CO

13, ¶ 15 (“[A]ppellate courts presume that the trial judge did not

commit error absent affirmative evidence otherwise.”). Additionally,

while he asserts that the Charles Schwab investment account listed

in the final accounting was not the original account, he

4
acknowledges that the original had merged with the newer account,

which the cotrustees had opened to facilitate the handling of the

Trust.

¶ 13 Further, because Timothy failed to include transcripts of the

hearing in the appellate record, we must assume that the evidence

presented at the hearing supports the trial court’s conclusion that

the final accounting accurately depicted the values of the Boulder

house sale proceeds and Charles Schwab investment account

balance. See Hock v. N.Y. Life Ins. Co., 876 P.2d 1242, 1252 (Colo.

1994) (“It is incumbent upon the moving party to designate all those

portions of the record necessary for the appeal. An appellate court

must presume that the trial court’s findings and conclusions are

supported by the evidence when the appellant has failed to provide

a complete record.”) (citation omitted); In re Marriage of Dean, 2017

COA 51, ¶ 13 (“If an appellant argues ‘that a finding or conclusion

is unsupported by the evidence or is contrary to the evidence, the

appellant shall include in the record a transcript of all evidence

relevant to such finding or conclusion.’” (quoting C.A.R. 10(b))).

¶ 14 Timothy also asserts that the final settlement failed to account

for much of the decedent’s tangible personal property — namely,

5
numerous antiques allegedly discovered in the Boulder house. The

court found, however, that “there was no evidence presented of any

other significant assets of the trust. To the extent there may have

been some personal property it was minimal and any disposition of

[the] same was appropriate and require[d] no further accounting.”

And Timothy provides no pictures, receipts, affidavits, or any other

evidence showing the property’s existence or value. Although he

claims to have testified about the antiques before the trial court,

again, he failed to include transcripts in the record on appeal. We

reject his assertion that “[y]ou don’t need a [t]ranscript to

understand that this assertion is true.” See Hock, 876 P.2d at

1252; Dean, ¶ 13.

¶ 15 In sum, because the record contains no evidence to support

Timothy’s arguments that the final settlement failed to account for

the reverse mortgage, the Charles Schwab investment account, and

the decedent’s tangible personal property, we conclude that the

court did not clearly err by finding that the final settlement properly

accounted for the Trust’s assets.

6
B. The Trial Court’s Assessment of Legal Fees

¶ 16 Next, Timothy contends that the trial court abused its

discretion by assessing $20,000 in legal fees against his distributive

share of the Trust. We conclude that the court did not abuse its

discretion.

1. Applicable Law and Standard of Review

¶ 17 Generally, attorney fees cannot be recovered absent an

express statute, court rule, or private contract providing for them.

Hawes v. Colo. Div. of Ins., 65 P.3d 1008, 1015 (Colo. 2003). As

relevant in this case, however, attorney fees may be awarded under

sections 13-17-102 and 15-10-605, C.R.S. 2024. The first statute

allows the trial court to assess attorney fees against a pro se litigant

if it finds that the litigant “clearly knew or reasonably should have

known that [his] action or defense, or any part [thereof], was

substantially frivolous, substantially groundless, or substantially

vexatious.” § 13-17-102(6). The second allows the court to award

attorney fees and costs to a party responding to probate

proceedings “brought, defended, or filed in bad faith.” § 15-10-

605(1).

7
¶ 18 We review a court’s decision to award attorney fees for an

abuse of discretion. Lyons v. Teamsters Loc. Union No. 961, 903

P.2d 1214, 1221 (Colo. App. 1995); see § 13-17-103(1), C.R.S.

2024. A court abuses its discretion if its order is manifestly

arbitrary, unreasonable, or unfair or if its order is based on a

misapplication or misunderstanding of the law. Credit Serv. Co. v.

Skivington, 2020 COA 60M, ¶ 24. “If a trial court’s award of

attorney fees is supported by the evidence, it will not be disturbed

on review.” Lyons, 903 P.2d at 1221 (citing Weber v. Wallace, 789

P.2d 427, 429 (Colo. App. 1989)).

2. Analysis

¶ 19 The trial court denied Timothy’s request for reimbursement of

the $20,000 in withheld legal fees, reasoning that the cotrustees

had already exhausted $20,000 in litigation expenses by the time of

the hearing and that Timothy should be responsible for paying

those fees.

¶ 20 Timothy argues that the court’s ruling was improper because

he litigated this case pro se. Under section 13-17-102(6), however,

the court may assess attorney fees against a pro se litigant if it

finds that the litigant “clearly knew or reasonably should have

8
known that [his] action or defense, or any part [thereof], was

substantially frivolous, substantially groundless, or substantially

vexatious.” Additionally, section 15-10-605(1) allows the court to

assess attorney fees in probate proceedings “brought, defended, or

filed in bad faith.”

¶ 21 We acknowledge that the court did not explicitly find, at least

in its final written order, that Timothy knew or reasonably should

have known that his claims were substantially frivolous,

groundless, or vexatious, or that he acted in bad faith.4 Based on

the court’s findings, however, it appears the court’s decision to

award fees comports with these statutes. The court found that the

cotrustees had incurred at least $30,000 in legal fees as a direct

result of Timothy’s “inappropriate response and actions when he

was presented with the proposed Final Settlement, which then

necessitated the filing of the Petition, as well as his

unsubstantiated . . . positions taken in this action.” It further

4 In its final order, the court noted that it had “made extensive and

detailed oral findings of fact and conclusions of law on the record,
which are incorporated herein as if set forth verbatim.” Because
Timothy did not order a transcript of the hearing, we cannot assess
whether the court made additional findings on this topic at the
hearing.

9
found that while Timothy had “prevailed on a portion of his claims,

they were less than half of what he objected to.” See § 13-17-

103(e), (g) (“In determining whether to assess attorney fees” against

an offending party, the court shall consider “[w]hether or not the

action was prosecuted or defended, in whole or in part, in bad faith”

and “[t]he extent to which the party prevailed with respect to the

amount of and number of claims in controversy.”).

¶ 22 Thus, the record supports a conclusion that Timothy acted in

bad faith, making the assessment of attorney fees against his

distributive share of the Trust warranted under sections 13-17-

102(6) and 15-10-605(1). See In re Estate of Leslie, 886 P.2d 284,

286-88 (Colo. App. 1994) (affirming the trial court’s assessment of

attorney fees against a party’s distributive share of the estate

because, “by inference, the trial court . . . implicitly f[ound] that his

numerous actions ha[d] been frivolous,” thereby warranting a fees

award under section 13-17-102); see also Bockar v. Patterson, 899

P.2d 233, 235 (Colo. App. 1994) (arbitrary, vexatious, abusive, or

stubbornly litigious conduct or a claim brought or maintained in

bad faith by a pro se litigant may warrant an award of attorney fees

10
under section 13-17-102(6) even though the action itself is not

frivolous or groundless).

¶ 23 From our review of the record, we cannot say that the court’s

decision to assess attorney fees against Timothy is unsupported by

the evidence or an abuse of its discretion. The cotrustees

submitted exhibits pertaining to Timothy’s holdover occupancy of

the Michigan beach cottage, including eviction notices and

Timothy’s alleged lease agreement he had relied upon to continue

occupying the cottage. The trial court deemed the lease invalid and

found that Timothy had wrongfully possessed the property. The

cotrustees assert that a substantial portion of their litigation

expenses resulted from Timothy’s actions in this regard, and they

presented supporting evidence showing the breakdown of litigation

expenses incurred by the law firm that represented them in the trial

court proceedings. Therefore, we will not disturb the court’s

decision to assess attorney fees. See Lyons, 903 P.2d at 1221.

Moreover, in the absence of a record transcript we must assume

that the missing portions of the record support the court’s decision.

See Hock, 876 P.2d at 1252; Dean, ¶ 13; see also People v. Wells,

776 P.2d 386, 390 (Colo. 1989) (an appellate court cannot conclude

11
that a district court’s judgment is erroneous when the record is

insufficient).

III. Appellate Attorney Fees

¶ 24 The cotrustees request an award of attorney fees incurred on

appeal under C.A.R. 38(b). We deny their request because, while

we disagree with Timothy’s contentions, we are not persuaded that

his appeal is so lacking in substance as to be frivolous. See In re

Estate of Shimizu, 2016 COA 163, ¶ 34. Additionally, the cotrustees

are represented on appeal by none other than Care herself. While

we recognize that a court may award attorney fees to a pro se

attorney, see Wimmershoff v. Finger, 74 P.3d 529, 530-31 (Colo.

App. 2003), we question the propriety of such an award when, as

here, the pro se attorney has a clear conflict of interest. As a

cotrustee, Care must act in the best interests of Timothy and

herself because they are both beneficiaries of the Trust and the final

settlement, about which they heavily disagree. This disagreement

forms the basis of this appeal that Care requests an award of

12
attorney fees for defending.5 See In re Life Ins. Tr. Agreement of

Julius F. Seeman, Dated Apr. 19, 1962, 841 P.2d 403, 405 (Colo.

App. 1992) (affirming the trial court’s denial of attorney fees for

services a cotrustee performed related to estate matters because of

the cotrustee’s conflict of interest); see also People v. Cozier, 74 P.3d

531, 534 (Colo. O.P.D.J. 2003) (highlighting the ethical

considerations and potential conflicts of interest created by an

attorney’s dual service as a fiduciary of an estate and representative

of the heirs to that estate in their individual capacities).

¶ 25 Timothy also requests an award of legal fees incurred on

appeal, but he does not specify the legal basis for his request, and

he made his request for the first time in his reply brief.

Accordingly, we deny his request. See C.A.R. 39.1 (“[T]he principal

brief of the party claiming attorney fees must include a specific

request . . . and must explain the legal and factual basis for an

award of attorney fees.”); Dean, ¶ 31 (appellate courts do not

consider arguments made for the first time in a reply brief).

5 The trial court’s award of attorney fees does not appear to pose the

same conflict of interest with respect to Care and Timothy because
the cotrustees were represented by outside counsel in the
proceedings below.

13
IV. Disposition

¶ 26 The order is affirmed.

JUDGE KUHN and JUDGE MOULTRIE concur.

14