5 In the Interest of NJC

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
October 10, 2019
2019COA153

No. 2018CA915 In the Interest of NJC — Family Law —
Juvenile Court — Uniform Parentage Act — Modification of
Child Support — Deferred Compensation

A division of the court of appeals holds that deferred

compensation in a nonqualified retirement plan is not income for

child support purposes under the Uniform Parentage Act, section

19-4-101 to 130, C.R.S. 2019. Applying the definition of “income”

in section 14-10-115 of the Uniform Dissolution of Marriage Act,

the division concludes that the father’s deferred compensation is

not income because he did not have the ability to use it to pay his

expenses, including child support.

The division also concludes that the magistrate did not abuse

his discretion in determining not to reallocate to father ninety

percent of the costs paid for parental responsibilities evaluations.

In addition, the division affirms the trial court’s decision not to
reconsider mother’s request for attorney fees paid by maternal

grandfather that were incurred in connection with father’s motion

to modify parenting time.
COLORADO COURT OF APPEALS 2019COA153

Court of Appeals No. 18CA0915
Douglas County District Court No. 12JV77
Honorable Natalie T. Chase, Judge

In re the Parental Responsibilities Concerning N.J.C., a Child,

and Concerning N.E.,

Appellant,

and

V.J.C.,

Appellee.

ORDER AFFIRMED IN PART, REVERSED IN PART,
AND CASE REMANDED WITH DIRECTIONS

Division I
Opinion by JUDGE TAUBMAN
Freyre and Pawar, JJ., concur

Announced October 10, 2019

Fairfield and Woods, P.C., Lee Katherine Goldstein, Michael R. McCurdy,
Denver, Colorado, for Appellant

James J. Keil, Jr., Denver, Colorado, for Appellee
¶1 As a matter of first impression, N.E. (mother) urges us to

conclude that deferred compensation in a nonqualified plan 1 is

income for child support purposes if it is being earned during a

period when a parent is obligated to pay child support. We disagree

with her arguments, and therefore affirm the juvenile court’s order

adopting the magistrate’s order modifying mother’s child support

award from V.J.C. (father). We also affirm the juvenile court’s order

denying mother’s request to reallocate costs paid for parental

responsibilities evaluations (PRE).

¶2 However, we reverse the portion of the juvenile court’s order

denying mother’s request for attorney fees, and we remand the case

to the juvenile court for it to determine the amount. We further

remand for the juvenile court to consider mother’s request for

appellate attorney fees under section 19-4-117, C.R.S. 2019.

1 A “nonqualified deferred-compensation plan” is “[a]n unfunded
compensation arrangement, frequently offered to executives, that
defers compensation and the recognition of its accompanying
taxable income to a later date. . . . It is termed ‘nonqualified’
because it does not qualify for favorable tax treatment” under the
Internal Revenue Code. Black’s Law Dictionary 663 (11th ed.
2019).

1
I. Appellate Standard of Review

¶3 This case arises out of the Uniform Parentage Act (UPA),

sections 19-4-101 to -130, C.R.S. 2019. Magistrates may preside

over UPA actions, but parties have the right to seek a judge’s review

of the magistrate’s findings and rulings. § 19-1-108(1), (4)(b), (5.5),

C.R.S. 2019.

¶4 “We defer to the magistrate’s and district courts’ findings of

fact if they are supported by the evidence and we review

conclusions of law de novo.” In re B.J., 242 P.3d 1128, 1132 (Colo.

2010).

II. Father’s Deferred Compensation Plan

A. Relevant Facts

¶5 Mother and father are the unmarried parents of one child,

N.J.C. In 2013, and as part of the initial paternity proceeding in

this case, father’s child support calculation was based on the salary

he earned working as a cardiologist for his own medical practice.

¶6 In 2016, father closed his practice and accepted a job with

Healthy Connections, Inc. (HCI), a health care center providing

medical, dental, and outreach services to impoverished

communities. Believing that father’s income had gone up at his

2
new job, mother moved to increase child support. Father, however,

responded that his income had actually decreased.

¶7 Evidence presented at a hearing on mother’s motion showed

that father’s compensation package with HCI consisted of a

$150,000 annual salary and $200,000 of yearly deferred

compensation in a nonqualified plan. Father, who was then

fifty-two years old, testified that he would only receive the deferred

compensation after he retired from HCI at age sixty-five. HCI’s

CEO, his brother, agreed that father “does not receive — physically

receive $200,000 above his salary,” and he described the deferred

compensation as “an obligation at a future date and time for

[father’s] benefit providing that he meets the criteria after his

retirement.”

¶8 The CEO explained that the deferred compensation plan

allowed HCI to attract and retain qualified medical doctors, like

father, that it could not otherwise afford. He testified that half of

the ten to thirteen medical doctors on HCI’s staff were employed

under the deferred compensation plan. According to the CEO,

while each plan was tailored to the employee, they all had the same

payout structure — the employee had to retire from HCI at a certain

3
age before he or she would receive any deferred funds, which would

then be paid over ten years. As of the hearing date, the CEO said

that the deferred compensation plan was unfunded; in fact, the

CEO stated there was not even an account established with which

to pay deferred compensation.

¶9 Regarding father’s specific deferred compensation plan, the

CEO submitted a letter to father’s counsel (admitted at the hearing

as Exhibit A) detailing that father had no control over the funds or

the plan; the deferred amounts belonged to HCI and were not

protected in case of insolvency or creditor claims; the deferred

amounts were subject to forfeiture if father was fired, quit, or

retired before age sixty-five; father would not be fully vested until he

worked at HCI for five years; and the funds were not taxable until

received by the employee.

¶ 10 Arguing that it was significant that father earned the money,

even if he did not actually receive it, mother asked the magistrate to

include the deferred compensation as income to father. The

magistrate declined to do so, based on the restrictive provisions of

father’s plan described above. The magistrate then modified

4
father’s child support obligation, including in father’s income only

his salary and nominal dividend and interest income.2

¶ 11 The juvenile court judge adopted the magistrate’s decision not

to include the deferred compensation, pointing out the magistrate’s

reasoning that father could not contribute to the plan, had no

control over the funds, and had no guarantee he would ever receive

the money.

B. Deferred Compensation is Not Income

¶ 12 Section 14-10-115, C.R.S. 2019, applies to child support

obligations established or modified under the UPA. § 19-4-129,

C.R.S. 2019. We review child support orders for an abuse of

discretion. In re Marriage of Garrett, 2018 COA 154, ¶ 8, 444 P.3d

812, 815. However, we review de novo the legal standard applied by

the court. In re Marriage of Tooker, 2019 COA 83, ¶ 12, 444 P.3d

856, 859.

2 The magistrate also found that father’s decision to leave his former
employment and work with HCI was a good faith career choice and
was not intended to deprive N.J.C. of child support or unreasonably
reduce the support available to him.

5
¶ 13 A child support calculation begins with a determination of the

parties’ combined gross incomes. See § 14-10-115(1)(b)(I), (5)(a). A

parent’s gross income for child support purposes is “income from

any source[.]” § 14-10-115(5)(a)(I).

¶ 14 The statute, however, neither specifically includes nor

excludes “deferred compensation” as gross income available to a

parent. See id. (nonexclusive list of income included in definition of

gross income); § 14-10-115(5)(a)(II) (excluding certain income from

definition of gross income).

¶ 15 No Colorado case has addressed this specific issue. Thus, we

look to other Colorado appellate decisions addressing whether

financial benefits or contributions not specifically defined by the

statute are income for child support purposes. We then consider

similar decisions from other states.

¶ 16 In re Marriage of Mugge, 66 P.3d 207, 210 (Colo. App. 2003),

addressed whether an employer’s pension contributions, not yet

distributed to the employee, were gross income for child support

purposes. The division decided that such pension contributions

were not because “the employers determined the amounts of their

pension plan contributions and the employees did not have the

6
option of directly receiving the amounts as wages.” Id. at 211.

Until distribution of the funds actually occurred, the division

concluded, the employer contribution was not income. Id.

¶ 17 The division in In re Marriage of Davis, 252 P.3d 530, 534

(Colo. App. 2011), similarly concluded that employer contributions

to a parent’s 401(k) and health insurance plans were not income for

child support purposes. Like Mugge, the division reasoned that

unrealized employer contributions are income only if the employee

has the option to receive the contributions as wages and use them

for general living expenses. Id. at 535.

¶ 18 Most recently, the division in Tooker, ¶¶ 1-2, 444 P.3d at 858,

considered whether tuition assistance and a book stipend paid

through a GI Bill were income for child support and maintenance

purposes. The district court concluded that the benefits were not

income, since they were paid directly to the college and the parent

could not use them for daily living or discretionary expenses. Id. at

¶¶ 9-10, 444 P.3d at 859.

¶ 19 In reviewing the district court’s decision, the Tooker division

found Davis and Mugge “instructive”:

7
The principle that emerges from these cases is
that, to be included as gross income for
purposes of maintenance and child support,
benefits received by an individual (if not
otherwise excluded from the definition of gross
income in the maintenance and child support
statutes) must be available for the individual’s
discretionary use or to reduce daily living
expenses.

Tooker, ¶ 18, 444 P.3d at 860.

¶ 20 Following that principle, the division upheld the district

court’s conclusion that the tuition and book stipend benefits were

not income because the parent could not receive the benefits

personally or use them to pay expenses. Id. at ¶¶ 19-21, 444 P.3d

at 860-61.

¶ 21 Last, the supreme court in In re A.M.D., 78 P.3d 741, 745

(Colo. 2003), discussed whether all or only a portion of the principal

of a monetary inheritance should be included in gross income for

child support purposes. The A.M.D. court directed the district court

to examine the recipient’s use of the inheritance to determine how

much should be included as income for child support. Id. at 746.

It held that the principal was income only “[i]f the recipient uses the

principal as a source of income either to meet existing living

expenses or to increase the recipient’s standard of living.” Id.

8
¶ 22 We agree with the principle arising from A.M.D., Tooker, Davis,

and Mugge, and conclude that deferred compensation is income

only if the parent has the ability to use it to pay his or her

expenses, including child support. See A.M.D., 78 P.3d at 746;

Tooker, ¶¶ 18, 20-21, 444 P.3d at 860-61; Davis, 252 P.3d at 535;

Mugge, 66 P.3d at 211.

¶ 23 This decision accords with decisions made in other states.

See, e.g., Severn v. Severn, 567 S.W.3d 246, 262-63 (Mo. Ct. App.

2019) (Deferred compensation is not income because there is “no

discernible way in which the contributions made to the deferred

compensation plan would be available to [the parent] in satisfying

any child support obligation.”); Jordan v. Brackin, 992 P.2d 1096,

1100 (Wyo. 1999) (income does not include mandatory deferred

compensation that is not available until death, termination of

employment, or unforeseeable emergency because it does not

provide the parent with money); cf. Milinovich v. Womack, 343 P.3d

924, 926, 930 (Ariz. Ct. App. 2015) (monies withdrawn from

investment account funded with deferred compensation was income

because the account was established with the specific purpose of

using the deferred compensation to pay day-to-day living expenses).

9
¶ 24 Turning to father’s deferred compensation plan, we conclude

that it is not income. Father does not voluntarily contribute to the

plan and he has no control over the funds or the plan’s

administration. He does not currently receive money from the plan

and may not invade the account, when it is funded, to withdraw

funds as he chooses. Father will receive the deferred compensation

funds only after he retires from HCI at age sixty-five and, even then,

there is no guarantee father will receive any of the funds. Because

father only has a “promise” to receive the deferred compensation

when he turns sixty-five, which in no way assists him in paying his

expenses at the present time, father’s deferred compensation plan is

not income.

¶ 25 We have reviewed the out-of-state authority cited by mother to

support her argument that deferred compensation should be

considered income for child support purposes. However, we find

those cases factually distinguishable, because they involve

employees who voluntarily chose to defer or redirect their receipt of

income. See Jones v. Jones, 883 So. 2d 207, 211-12 (Ala. Civ. App.

2003) (payments parent chose to redirect to health insurance

premiums instead of to his paycheck); Ennis v. Venable, 689 So. 2d

10
165, 166 (Ala. Civ. App. 1996) (wages voluntarily deferred to a

retirement account); Bergstrom v. Lindback, 779 P.2d 1235, 1237

(Alaska 1989) (amounts voluntarily deposited into a deferred

income compensation account); Leineweber v. Leineweber, 102 A.3d

827, 833 (Md. Ct. Spec. App. 2014) (same); Marsh v. Fieramusca,

569 N.Y.S.2d 1012, 1014-15 (Fam. Ct. 1991) (amounts voluntarily

deposited in a retirement plan instead of taken as wages); Murray v.

Murray, 716 N.E.2d 288, 293-94 (Ohio Ct. App. 1999) (concluding

that unexercised stock options were gross income because the

recipient had complete discretion to exercise the options every

twelve months and realize the income). Unlike in these cases,

father did not receive any income that he could defer.

¶ 26 We are also not persuaded by mother’s argument that

excluding deferred compensation from a parent’s gross income will

encourage a parent to manipulate his or her salary in order to shirk

a child support obligation. While that may occur in some cases, the

magistrate did not conclude that this is what happened here.

¶ 27 True, HCI’s CEO is father’s brother. Even so, the record

shows that HCI’s board of directors decided to hire a qualified

cardiologist at about the same time that changes in the health care

11
system prompted father to shut down his medical practice. Father

was one of at least five medical doctors employed under HCI’s

deferred compensation plan, and there is no indication that he

specifically asked to be part of the plan. Nor is there evidence that

father accepted the deferred compensation plan in lieu of receiving

a higher salary or receiving some other immediately payable benefit

from HCI.

¶ 28 We are also unpersuaded by mother’s argument that any

decision to exclude deferred compensation as income will unfairly

deprive children of the support to which they are entitled. The

legislature has expressed an intention that child support orders be

“subject to the ability of parents to pay[.]” § 14-10-115(1)(b)(I).

Calculating child support based on a source of money that a parent

does not now, and may never, receive would frustrate that

intention.

¶ 29 Accordingly, because father’s deferred compensation is not

income, the magistrate correctly excluded it from father’s gross

income when modifying child support. Because mother does not

raise any other challenges to the child support modification, we

12
affirm that portion of the juvenile court’s order upholding the

magistrate’s child support modification.

III. Attorney Fees and Costs Requested in Connection With the
Parenting Time Modification Hearing

¶ 30 Mother contends that it was an abuse of the magistrate’s

discretion not to reallocate to father 90% of the PRE costs and to

refuse to consider her request for attorney fees arising in

connection with father’s motion to modify parenting time. We

disagree.

A. Background

¶ 31 Father sought to increase his parenting time in 2015. On

mother’s motions, the magistrate ordered a PRE and supplemental

PRE to address the disputed parenting time issues. Before the

parenting time hearing, the magistrate issued the following order:

[T]he parties must file a JOINT Trial
Management Certificate (JTMC) in compliance
with C.R.C.P. 16.2(h), which will include each
party’s position on every issue for which the
parties are seeking a ruling. Failure to include
an issue in the JTMC may preclude that issue
from being heard.

....

The judge will read the JTMC prior to the
hearing and the JTMC will be your Opening

13
Statement. The Court should be able to fully
understand your client’s position on issues by
reading the JTMC.

¶ 32 The parties’ JTMC averred that the only disputed issue was

father’s request to increase parenting time. Under that part of the

JTMC alerting the court to “Other Matters,” the parties wrote

“None.” The parties stated that they did not exchange sworn

financial affidavits because “there are no financial issues presently

before this [c]ourt.”

¶ 33 During the parenting time hearing, the parties and magistrate

decided to postpone issues concerning “all financial matters” to a

future hearing. The magistrate noted in her minute order that she

“retains and reserves jurisdiction to address reallocation of PRE

costs/fees once financial affidavits have been updated.”

¶ 34 After the magistrate issued her parenting time modification

order, mother moved to modify child support (the same motion

referenced in Part II.A, above). In that motion, mother asked the

magistrate to reallocate to father the costs she paid for the PREs

and to award her the attorney fees and costs she “incurred in this

matter.” The magistrate prohibited mother from raising at the child

14
support hearing any attorney fees request relating to the parenting

time hearing.

¶ 35 Mother again raised her requests for fees and costs arising

from the parenting time hearing in the JTMC filed before the child

support hearing. She argued that the parties had unequivocally

agreed during the parenting time hearing to postpone “all” financial

issues, which included her attorney fees and PRE reallocation

requests.

¶ 36 Once more, the magistrate declined to revisit the issue of

attorney fees from the parenting time hearing at the child support

hearing. The magistrate then denied mother’s request to reallocate

the PRE costs to father. The juvenile court upheld these findings

and conclusions on review.

B. The Magistrate Did Not Abuse Her Discretion

¶ 37 We address that part of mother’s argument concerning the

reallocation of PRE costs first.

¶ 38 Other than state that the magistrate should have reallocated

the PRE costs, mother’s opening brief analyzes only the issue of

whether the magistrate erred by refusing to reconsider her attorney

fees request. Absent any discussion concerning the PRE fees

15
reallocation, we deem the argument abandoned and decline to

consider it. See In re Marriage of Marson, 929 P.2d 51, 54 (Colo.

App. 1996); see also People v. Simpson, 93 P.3d 551, 555 (Colo.

App. 2003) (reviewing court will not consider bald legal proposition

presented without argument or development).

¶ 39 Turning to the attorney fees argument, we discern no abuse of

discretion in the magistrate’s refusal at the child support hearing to

consider mother’s request for attorney fees arising in connection

with the parenting time hearing.

¶ 40 The magistrate ordered the parties to comply with C.R.C.P.

16.2(h) and file a JTMC containing “every issue for which the

parties are seeking a ruling.” (Emphasis added.) See C.R.C.P.

16.2(a) (the Rule 16.2 case management procedures applicable to

domestic relations proceedings may govern juvenile or paternity

cases if the court so orders). Mother did not comply with that order

by specifying that she sought an award of attorney fees in

connection with the parenting time hearing. Thus, we see no abuse

of discretion in the magistrate’s refusal to consider the issue at a

later hearing. See In re Marriage of Cardona, 321 P.3d 518, 527

(Colo. App. 2010) (courts have considerable discretion to impose

16
appropriate sanctions for noncompliance with C.R.C.P. 16.2), aff’d

on other grounds, 2014 CO 3.

¶ 41 Mother does not convince us that the parties otherwise agreed

to postpone this issue to a later date. The record on this issue is

limited to a transcript excerpt from the parenting time hearing and

the magistrate’s minute order. To be sure, the magistrate’s written

minute order specified reserving jurisdiction over “PRE costs/fees.”

Read together, they show only a discussion about the PRE fees and

costs and father’s anticipated motion to modify child support.

There is no reference to attorney fees.

IV. Attorney Fees and Costs Incurred in Connection With
the Child Support Hearing

¶ 42 Mother contends that the magistrate abused her discretion by

requiring each party to pay his or her own attorney fees arising in

connection with her motion to modify child support. We disagree.

¶ 43 Under section 19-4-117, the court shall order reasonable fees

of counsel to be paid by the parties in proportions and at times

determined by the court. We will not disturb a court’s attorney fees

determination under this section unless it clearly abuses its

discretion. W.C. in Interest of A.M.K., 907 P.2d 719, 723 (Colo. App.

17
1995). “A juvenile court abuses its discretion ‘when its decision is

manifestly arbitrary, unreasonable, or unfair, or when it misapplies

the law.’” People in Interest of A.N-B., 2019 COA 46, ¶ 9, 440 P.3d

1272, 1276 (citation omitted).

¶ 44 Section 19-4-117 is silent as to what factors the juvenile court

may consider when addressing an attorney fees request under this

section. Cf. § 14-10-119, C.R.S. 2019 (requiring court to consider

“the financial resources of both parties”). However, the parties’

finances, the protracted nature of litigation, and the high costs of

fees resulting from their “ceaseless arguments” may be relevant

considerations. See In Interest of D.R.V., 885 P.2d 351, 354 (Colo.

App. 1994); see also S.F.E. in Interest of T.I.E., 981 P.2d 642, 650

(Colo. App. 1998).

¶ 45 The magistrate here looked at these factors. She made

findings about the parties’ financial circumstances, including

father’s higher income but also mother’s (1) failure to “make any

reasonable effort to obtain full time gainful employment”; (2) ability

to earn at least a $3000 monthly income; (3) receipt of $2184

monthly in cash gifts, interest and dividends, and rental income;

and (4) being “voluntarily support[ed]” by her father (maternal

18
grandfather) “to the extent that she cannot or will not meet her own

financial needs.” As to this last factor, the magistrate further found

that maternal grandfather had paid $16,000 toward mother’s credit

card bills and more than $512,000 of her attorney fees. The

magistrate also found that both parties had “over litigated and

under resolved the post decree issues in this case and have

incurred excessive amounts of attorney’s fees and costs in doing

so.”

¶ 46 These findings sufficiently support the magistrate’s decision

for both parties to bear their own fees. The order is not manifestly

arbitrary, unreasonable, or unfair, and, therefore, we affirm it on

review. See W.C., 907 P.2d at 723.

¶ 47 Insofar as mother argues it, nothing in section 19-4-117

prohibited the magistrate from considering maternal grandfather’s

financial contributions. Cf. Davis, 252 P.3d at 538 (allowing court

to consider wife’s new husband’s financial contributions to wife’s

living expenses when assessing her economic circumstances under

section 14-10-119).

¶ 48 Accordingly, we reject mother’s argument that the magistrate

issued her order “in the complete absence of any information about

19
[maternal grand]father’s ability to pay these amounts.” Any fault in

this regard lay at mother’s feet.

¶ 49 Despite the apportionment of fees being a disputed issue for

the child support hearing, and knowing that father specifically

objected to paying mother’s fees because maternal grandfather had

already paid them, mother chose not to call maternal grandfather

as a witness at the hearing. If mother wanted the magistrate to

consider maternal grandfather’s financial ability to pay her attorney

fees, she should have presented such evidence to the magistrate.

See In re Marriage of Krejci, 2013 COA 6, ¶ 23 (parties must present

relevant evidence to the court, and their failure to do so does not

provide grounds for reversal); see also In re Marriage of Eisenhuth,

976 P.2d 896, 901 (Colo. App. 1999) (the court is required to

consider the evidence presented to it; it does not act as a surrogate

attorney).

¶ 50 We reject mother’s argument that by failing to make father pay

for her attorney fees, the magistrate was perpetuating the parties’

financial disparity. Section 19-4-117 is not intended to equalize the

parties’ financial status. Cf. In re Marriage of Anthony-Guillar, 207

P.3d 934, 944 (Colo. App. 2009) (the intention of an attorney fees

20
award under section 14-10-119 is to equalize the parties’ financial

status). Rather, the section provides that “The court shall order

reasonable fees of counsel . . . and other costs of the action . . . to

be paid by the parties in proportions and at times determined by

the court.” § 19-4-117. In awarding attorney fees, the court may

consider the existing factual circumstances, like the parties’

finances, the protracted nature of litigation, and the high cost of

fees. See In Interest of D.R.V., 885 P.2d 351, 354 (Colo. App. 1994).

¶ 51 Yet even if the intent of the section was to equalize the parties’

financial status, an award of attorney fees payable from father to

maternal grandfather in no way fosters the objective of ensuring

financial equality between father and mother, especially given

mother’s testimony that she did not intend to repay maternal

grandfather for his payment of attorney fees on her behalf. See In

re Marriage of Benjamin, 740 P.2d 532, 533 (Colo. App. 1987)

(awarding attorney fees to deceased wife’s attorney does not

equalize the parties’ status).

¶ 52 Thus, we conclude that under section 19-4-117, mother is

entitled to attorney fees, and we remand to the trial court to

determine the amount.

21
¶ 53 Finally, we decline to consider the argument raised in a

footnote in the reply brief that the magistrate erred by failing to

reallocate the PRE costs based on the parties’ assets. See Simpson,

93 P.3d at 555 (declining to consider arguments not raised until the

reply brief). We are unpersuaded by mother’s statement (also in the

footnote) that she “cover[ed]” this argument in the opening brief,

because nothing in the opening brief supports this statement. The

argument summary, the argument heading, and the argument itself

discuss only the apportionment of attorney fees following the child

support hearing. See id. (refusing to consider contention presented

in a footnote that was not set forth in the summary of argument or

as an issue on appeal in the opening brief as required by C.A.R.

28(a)). In contrast, mother’s prior argument (Part III, above) raised

both the attorney fees and PRE issues arising from the parenting

time hearing (even if we ultimately deemed the PRE argument

abandoned).

V. Appellate Attorney Fees

¶ 54 Mother requests an award of her appellate attorney fees under

section 19-4-117. Although we recognize father’s objection that

mother will continue to litigate as long as she is “bankrolled” by

22
maternal grandfather, we conclude that mother is entitled to

appellate attorney fees and remand to the juvenile court to

determine the amount, if any. See C.A.R. 39.1; § 19-4-117.

However, we note that she is entitled only to those attorney fees

that she paid. Thus, on remand, the juvenile court should consider

whether mother’s appellate attorney fees have been or will be paid

by maternal grandfather or any other third party.

VI. Conclusion

¶ 55 The order is affirmed, and the case is remanded to the juvenile

court for consideration of mother’s appellate attorney fees request.

JUDGE FREYRE and JUDGE PAWAR concur.

23