Marriage of Cunningham

24CA0668 Marriage of Cunningham 05-01-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0668
Weld County District Court No. 21DR30448
Honorable Kimberly B. Schutt, Judge

In re the Marriage of

Amber Cunningham,

Appellant,

and

Gregory Cunningham,

Appellee.

ORDER AFFIRMED

Division VII
Opinion by JUDGE LIPINSKY
Johnson and Hawthorne*, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced May 1, 2025

Altitude Family Law, P.C., Daniel Zarnowski, Littleton, Colorado, for Appellant

Mark A. Dedrickson, P.C., Mark A. Dedrickson, Greenwood Village, Colorado,
for Appellee

*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 Petitioner, Amber Cunningham (wife), appeals the district

court’s order denying her motion to increase the amount of

maintenance she receives from respondent, Gregory Cunningham

(husband), and her request for attorney fees and costs. We affirm.

I. Background

¶2 Wife filed a petition for dissolution of marriage in August 2021.

The parties, who had been married for fifteen years when wife

commenced the case, have four minor children.

¶3 The parties filed sworn financial statements with the court in

October 2021, pursuant to C.R.C.P. 16.2(e)(6). Husband submitted

the parties’ 2018 through 2020 tax returns together with his

financial statement. The parties had filed their 2020 tax return one

month before making their disclosures. (The parties routinely

obtained extensions for their tax filings.) The parties’ 2020 tax

return was their most recent return at the time of the proceedings,

which concluded in December 2021.

¶4 The parties’ total income of $231,250 in 2020 consisted of

husband’s W-2 income of $124,300 and his K-1 income of

$106,950. Husband was both an employee and a part owner of

Grace Management & Investment Corporation. At the time the

1
court entered the decree for dissolution of the parties’ marriage (the

decree), Grace Management’s only shareholders were husband, his

parents, and his brother.

¶5 Husband later testified that, as of December 2021, he had not

yet received any 2021 tax documents from Grace Management. He

said that he did not know the amount of his pass-through income

for 2021 at the time because Grace Management did not provide

him with his 2021 K-1 “until late into [2022].”

¶6 While the proceedings were pending, the parties, represented

by counsel, negotiated a separation agreement and parenting plan

(the agreement). During the negotiations, wife rejected husband’s

proposal to set $5,000 as her monthly earning potential — a figure

that courts use to calculate maintenance if a spouse is voluntarily

unemployed or underemployed, see § 14-10-114(8)(c)(IV), C.R.S.

2024, and to calculate child support, see § 14-10-115(5)(b)(I),

C.R.S. 2024. Rather, wife asserted that her monthly earning

potential was only $2,917. In addition, wife rejected husband’s

proposal to designate a portion of his shares in Grace Management

as separate property; she took the position that the shares were

marital property. The parties do not dispute that, during the

2
negotiations, wife “had a full opportunity to get a valuation of

[husband’s] stock shares if [she] wanted it.”

¶7 The parties signed the agreement in December 2021. It

provided that wife would receive $365,111.25 — fifty percent of the

marital property — primarily comprised of the marital home, which

was encumbered by a mortgage and included mineral rights and

two debt-free cars. Husband’s Grace Management shares would

comprise the majority of his share of the marital property.

¶8 Under the agreement, husband agreed to pay wife $5,273 per

month in maintenance for ninety months and $300 per month in

child support “until terminated or modified pursuant to Colorado

law.” The parties calculated husband’s child support obligation

based on a Colorado Judicial Branch child support worksheet. See

JDF 1821M, Worksheet B — Child Supp. Obligation: Shared

Physical Care (revised Aug. 2024), https://perma.cc/MWM2-8H4L.

In calculating husband’s $300 obligation under the agreement, they

set wife’s monthly earning potential at $2,917 and husband’s

monthly income at $20,000; provided for an equal amount of

overnight parenting time; and granted husband a $475 monthly

3
credit for paying the children’s health insurance premiums. See

§ 14-10-115(4), (8), (10).

¶9 In January 2022, the court approved the agreement and

entered the decree, which incorporated the agreement.

¶ 10 Husband’s mother died two months later. Upon her death,

husband received an additional six percent ownership interest in

Grace Management and the associated income distributions.

¶ 11 In June 2022, wife filed a motion to modify spousal

maintenance and child support (the motion to increase). In the

motion to increase, wife asked the court to increase husband’s

monthly child support and maintenance payments because,

following his mother’s death, husband’s “income ha[d] significantly

increased as a result of his substantial increase” in Grace

Management shares. Wife did not request an award of attorney fees

and costs in the motion to increase.

¶ 12 The court entered a case management order and set a hearing

on the motion to increase in October 2023 (the October hearing).

¶ 13 In advance of the October hearing, the parties filed a joint trial

management certificate (the certificate), in which wife requested an

award of attorney fees and costs pursuant to section 14-10-119,

4
C.R.S. 2024. In addition, in the certificate, wife did not challenge

the validity or enforceability of the agreement or ask the court to

vacate it.

¶ 14 One month before the October hearing, husband filed a motion

to restrict wife’s parenting time based on the children’s reports that

mother was abusing alcohol and exhibiting signs of mental illness.

The court entered an order restricting wife’s parenting time (the

restriction order) based on its finding that husband had met his

“burden of proof in relation to [wife]’s use of alcohol and mental

health issues.” The court said the restriction order provided wife

with “a temporary time-out . . . to address her mental health issues

and get therapy.”

¶ 15 Wife testified at the October hearing and called husband’s

father as a witness. Husband also testified and called Gail Pickett,

a vocational consultant, and his brother as witnesses.

¶ 16 The court entered its order on the motion to increase (the

modification order) in February 2024. In the modification order, the

court granted wife’s request for an increase in husband’s monthly

child support payments, ordering husband to pay $1,400 per

month in child support until October 2024, when he would owe

5
$1,150 monthly. However, the court denied wife’s request for an

increase in husband’s monthly maintenance payments and denied

wife’s request for attorney fees and costs.

¶ 17 Wife appeals the court’s denial of her request to increase

husband’s monthly maintenance payments and her request for an

award of attorney fees and costs.

II. Analysis

A. The Court Did Not Err in Deciding that Wife Was
Not Entitled to Increased Maintenance Payments

1. The Court Properly Considered Unfairness

¶ 18 We review the court’s “evidentiary factual findings” following a

bench trial for an abuse of discretion. In re Marriage of Morales,

2024 COA 2, ¶ 11, 546 P.3d 639, 642 (quoting State Farm Mut.

Auto. Ins. Co. v. Johnson, 2017 CO 68, ¶ 12, 396 P.3d 651, 654).

“We defer to the district court’s factual findings if they are

supported by the record.” In re Marriage of Garrett, 2018 COA 154,

¶ 9, 444 P.3d 812, 815. “We review the district court’s application

of legal standards and legal conclusions de novo.” Id.

a. Substantive Law

¶ 19 Before July 1, 1993, section 14-10-122(1)(a) of the Colorado

Revised Statutes provided that a court could modify a maintenance

6
award “only upon a showing of changed circumstances so

substantial and continuing as to make the terms [of the decree]

unconscionable.” After the General Assembly’s amendment,

“[e]ffective July 1, 1993, the term ‘unfair’ was substituted for

‘unconscionable.’” In re Marriage of Swing, 194 P.3d 498, 499

(Colo. App. 2008) (quoting Ch. 270, sec. 2, § 14-10-122(1)(a), 1993

Colo. Sess. Laws 1557).

¶ 20 In 1981 — years before the 1993 amendment — a division of

the court of appeals considered the definition of “unconscionable” in

section 14‑10‑122(1)(a), C.R.S. 1973, then in effect. See In re

Marriage of Anderson, 638 P.2d 826, 827 (Colo. App. 1981). The

division defined “unconscionable” as “not ‘fair, reasonable, and

just.’” Id. (quoting In re Marriage of Carney, 631 P.2d 1173, 1175

(Colo. App. 1981)). It held that, in analyzing a maintenance

modification request,

[t]he issue is not whether, based on the
current financial circumstances of the parties,
the court would have awarded the same
amount of . . . support as that incorporated in
the original decree. Instead, the question on a
motion to modify is different: Have the terms of
the original award become unfair, i.e.,
unconscionable.

7
Id. (emphasis added). The court’s “use of ‘i.e.’ signal[ed] an intent to

define the word to which it refers,” Edwards Lifesciences LLC v.

Cook Inc., 582 F.3d 1322, 1334 (Fed. Cir. 2009), indicating that the

Anderson division intended to define “unconscionable” to mean

“unfair.”

¶ 21 After the 1993 amendment, Colorado courts continued to rely

on Anderson’s interpretation of section 14‑10‑122(1)(a), C.R.S.

1973, when determining whether to modify maintenance

obligations, treating “unconscionable” and “unfair” as synonyms.

See, e.g., In re Marriage of Weibel, 965 P.2d 126, 129 (Colo. App.

1998) (citing Anderson and noting that, in reviewing a motion for

modification of maintenance, the question is whether “the terms of

the original award [have] become unfair, i.e., unconscionable”

(quoting Aldinger v. Aldinger, 813 P.2d 836, 840 (Colo. App. 1991)));

In re Marriage of Aldrich, 945 P.2d 1370, 1375 (Colo. 1997)

(applying the same standard applied in Anderson to a request to

modify child support); In re Marriage of Bowles, 916 P.2d 615, 618

(Colo. App. 1995) (citing Anderson for the proposition that “the

dispositive determination” in considering a maintenance

modification request is “whether, looking at all the circumstances

8
presently before the court, the terms of an original award have

become unconscionable” and explaining that “mere increases or

decreases in earnings do not require the conclusion that the

amount of maintenance has become unconscionable”); In re

Marriage of Trout, 897 P.2d 838, 840 (Colo. App. 1994) (“Whether a

change is so substantial and continuing as to render the prior order

unconscionable requires examination of the totality of the

circumstances.”).

b. “Unfair” and “Unconscionable”

¶ 22 In the modification order, the court noted that the pre-1993

versions of section 14-10-122(1)(a) “used the term ‘unconscionable’

as the standard for modification” of maintenance awards and that

“[t]he statute ha[d] since been amended to use the term ‘unfair.’”

But the court concluded that the “terms [we]re considered

synonymous.”

¶ 23 Wife disputes the court’s assertion, contending that

“unconscionable” and “unfair” are not synonymous. She argues,

based on the definition of the former in Black’s Law Dictionary, that

“unconscionable can be read as shockingly unfair, a much higher

standard than just unfair.” (Emphasis added.) See Black’s Law

9
Dictionary 1841 (12th ed. 2024) (“[U]nconscionable” means

“[s]hockingly unjust or unfair.”). She asserts that, had the court

viewed the motion to increase “through the lens” of “unfairness”

rather than unconscionability, it would have increased the amount

of husband’s maintenance payments. We disagree.

¶ 24 Wife does not provide any support for her assertion that the

General Assembly’s substitution of “unconscionable” for “unfair” in

section 14-10-122(1)(a), C.R.S. 2024, effected a change in the legal

standard that courts apply in deciding whether to modify a

maintenance obligation. We conclude otherwise. “Unconscionable”

meant “not ‘fair, reasonable, and just’” in 1981, Anderson, 638 P.2d

at 827 (quoting Carney, 631 P.2d at 1175), and it had the same

meaning after the General Assembly amended section

14‑10‑122(1)(a) in 1993. Nothing in wife’s briefs suggests that the

General Assembly sought to change the definition of

“unconscionable” when it enacted the 1993 amendment.

¶ 25 In Swing, a division of this court expressly addressed the 1993

amendment’s substitution of “unfair” for “unconscionable.” 194

P.3d at 499-500. In that case, the appellant presented the opposite

argument that wife asserts here; the appellant in Swing contended

10
that, despite the amendment, the test for modifying maintenance

obligations — whether changed circumstances were so substantial

and continuing as to make the terms unconscionable — remained

the same. Id. In Swing, the appellant argued that the magistrate

“applied the wrong standard when determining whether

maintenance should be modified” because it was “misled by a

change in the wording of [section 14-10-122(1)(a), C.R.S. 2007],”

when it reduced her husband’s maintenance obligation based on its

finding that the original maintenance order had become “unfair.”

Swing, 194 P.3d at 499-500. She further argued that, although the

General Assembly had replaced “unconscionable” with “unfair” in

section 14‑10‑122(1)(a), C.R.S. 2007, the magistrate erred by

applying an “unfair” standard because the “unconscionable”

standard still applied. Swing, 194 P.3d at 499-500.

¶ 26 The division rejected her argument. Id. It held that “the

magistrate applied the correct standard” under section

14‑10‑122(1)(a), C.R.S. 2007, because Colorado courts understood

that the use of “unconscionable” in the pre-1993 statute imposed a

“‘fair, reasonable, and just’ standard,” and, therefore, the General

Assembly’s word change did not alter the legal standard for

11
modification of maintenance obligations. Swing, 194 P.3d at 499-

500 (quoting In re Marriage of Dixon, 683 P.2d 803, 804 (Colo. App.

1983)).

¶ 27 In sum, Colorado case law does not support wife’s argument

that there is a material distinction between “unfair” and

“unconscionable” for purposes of applying section 14‑10‑122(1)(a),

C.R.S. 2024, and that the General Assembly’s word substitution

requires courts to apply a lower legal standard than

“unconscionability” when considering requests to modify

maintenance. Although wife may be technically correct that the two

words do not have identical dictionary definitions, she fails to tell us

why, following the statutory amendment, the words’ different, but

substantially similar, definitions require courts to reject the pre-

1993 legal standard for determining whether “the terms of [an]

original [maintenance] award [have] become unfair, i.e.,

unconscionable.” Weibel, 965 P.2d at 129 (quoting Aldinger, 813

P.2d at 840). Moreover, wife does not shed any light on why the

General Assembly substituted “unfair” for “unconscionable” in

section 14‑10‑122(1)(a), C.R.S. 2024, or whether it intended,

12
through the amendment, to effect a material change in the standard

for modifying maintenance awards.

¶ 28 Accordingly, the court did not err by concluding that the

General Assembly’s substitution of “unfair” for “unconscionable” in

section 14‑10‑122(1)(a), C.R.S. 2024, did not affect the test for

whether a spouse is entitled to modification of a maintenance

award.

2. The Court Conducted a Reasoned Analysis of
the Statutory Maintenance Factors and Properly Declined to
Increase Husband’s Maintenance Payments

a. Standard of Review

¶ 29 “An award of maintenance is within the sound discretion of

the trial court and will not be reversed absent an abuse of

discretion.” In re Marriage of Yates, 148 P.3d 304, 313 (Colo. App.

2006). In addition,

[t]he determination whether circumstances
have changed is within the sound discretion of
the district court based on the facts presented
and, absent an abuse of that discretion, the
court’s ruling will not be disturbed on review.
Further, on appeal, we must construe the
evidence in the light most favorable to the
prevailing party.

In re Marriage of Nelson, 2012 COA 205, ¶ 27, 292 P.3d 1214, 1219.

13
¶ 30 “[T]he determination of the credibility of witnesses and the

weight, probative force and sufficiency of the evidence and the

inferences and conclusions to be drawn therefrom are matters

within the sole discretion of the trial court.” In re Marriage of Elmer,

936 P.2d 617, 621 (Colo. App. 1997). “The trial court’s factual

findings may not be disturbed on appeal unless they are clearly

erroneous and unsupported by the record.” In re Marriage of Salby,

126 P.3d 291, 298 (Colo. App. 2005). “[A]n appellate court must

view the evidence in the light most favorable to the trial court’s

order.” In re Marriage of Plesich, 881 P.2d 379, 381 (Colo. App.

1994).

b. The Court’s Analysis of the Statutory Factors and
Changed Circumstances

¶ 31 Wife contends that the court erred by ignoring “any analysis

regarding whether there [was] a substantial and continuing change

in circumstances” and by not “meaningfully review[ing] pertinent

factors related to” a modification of maintenance. We disagree.

¶ 32 The agreement said that maintenance “shall be subject to

modification and/or termination in the event the statutory

requirements under Colorado law are met for such a modification or

14
termination.” Thus, “[t]he threshold question is whether [wife] has

demonstrated ‘changed circumstances so substantial and

continuing as to make the existing terms unfair.’” In re Marriage of

Young, 2021 COA 96, ¶ 12, 497 P.3d 524, 528 (quoting

§ 14-10-122(1)(a), C.R.S. 2020).

¶ 33 To determine whether the terms of a maintenance award are

unfair, a “court may consider the guideline amount and term of

maintenance and the statutory factors set forth in subsection (3) of

this section,” § 14-10-114(5) (emphasis added), including the

following:

• the “amount of each party’s gross income,”

§ 14-10-114(3)(a)(I)(A);

• the marital property distributed to each party,

§ 14-10-114(3)(a)(I)(B), (3)(c)(IV);

• “[r]easonable financial need as established during the

marriage,” § 14-10-114(3)(a)(I)(D);

• the “financial resources of the recipient spouse . . . and

the ability of the recipient spouse to meet [her] needs

independently,” § 14-10-114(3)(c)(I);

15
• the “financial resources of the payor spouse . . . and the

ability of the payor spouse to meet [his] reasonable needs

while paying maintenance,” § 14-10-114(3)(c)(II);

• “[b]oth parties’ income, employment, and employability,

obtainable through reasonable diligence and additional

training or education,” § 14-10-114(3)(c)(V);

• the “age and health of the parties,” § 14-10-114(3)(c)(IX);

• “[s]ignificant economic or noneconomic contribution to

the marriage or to the economic, educational, or

occupational advancement of a party,”

§ 14-10-114(3)(c)(X); and

• “[w]hether the maintenance is deductible for federal

income tax purposes by the payor and taxable income to

the recipient,” § 14-10-114(3)(c)(XII).

i. The Parties’ Employment and Financial Resources

¶ 34 It was “undisputed that [husband’s] income ha[d] increased

substantially” since the court entered the decree “due to [his]

greater number of shares in [Grace Management].”

¶ 35 Wife testified that she did not “go get a job” after she filed the

petition for dissolution of marriage or after she “negotiated the

16
[agreement] with [husband,] and [she] recognized how much [she]

would be getting in spousal maintenance and child support.”

¶ 36 The court heard testimony at the October hearing that, by

August 2022, wife had spent the entire $75,000 equalization

payment that husband had made to her in January 2022. In

addition, the evidence showed that wife had incurred tens of

thousands of dollars in credit card charges during the first four

months of 2022.

¶ 37 Wife testified that she was “[w]orking towards” finding a job

between August 2022 and September 2023. She provided, as

examples, her pursuit of a “personal trainer endeavor” and her

interest in “medical coding” and “a nutritional program” after the

court entered the decree. But she either did not complete the

necessary training to work in those positions or did not “earn any

income” from them.

¶ 38 The court concluded that “the testimony and other evidence

regarding [wife’s] expenses and income,” which the court discussed

in the child support portion of the modification order,

“undermine[d] [wife’s] argument that she [was] unable to meet her

reasonable needs based upon the maintenance award ordered as

17
part of the [agreement].” See Trout, 897 P.2d at 840 (“The fact that

a spouse enjoys increased income does not necessarily require the

conclusion that an initial award of maintenance has been rendered

unconscionable.”).

ii. Distribution of Marital Property

¶ 39 In the modification order, the court observed that wife received

“the marital home and all of its $256,000 of equity, some mineral

rights, as well as two vehicles which were not encumbered by any

loans.” The court also noted that wife “received little debt” under

the agreement. Husband “primarily received the value of his shares

in [Grace Management], his vehicle with an encumbrance,” and the

majority of the marital debt, and he was also required to make the

$75,000 equalization payment to wife.

¶ 40 The court found credible husband’s testimony that the

agreement “was the result of back-and-forth negotiations with both

parties represented by counsel” and that it was “precisely the type

of global settlement contemplated by the Supreme Court of

Colorado.” The property and debt division spreadsheet the parties

filed together with the agreement supports the court’s findings

regarding the agreement.

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¶ 41 Wife failed to persuade the court that husband “pressured her

into the [agreement] with misrepresentations that he was going to

lose all of his shares in [Grace Management] if they did not settle

the property division by the end of [2021].” The court found that

husband’s father and brother “testified credibly that they fully

intended to buy back [h]usband’s shares [in Grace Management] to

avoid having the shares be subject to division in the parties’

dissolution proceedings.” It also rejected wife’s assertion that such

a buyback would result “in the parties being destitute,” finding that

“the company would have had to pay [h]usband for the value of his

shares.” Husband’s testimony that he would have received

“$600,000 of a payout for [his] shares” supports the court’s finding.

iii. Significant Economic or Noneconomic Contribution to
the Marriage or the Advancement of a Party

¶ 42 The court considered whether wife’s efforts during the

marriage contributed to husband’s increased income. It found that

the primary cause of the increase was the “acquisition of the

additional shares” following husband’s mother’s death; thus, the

increase was “something that happened based on a family

circumstance.” The court said that it “would likely view” husband’s

19
increase in income differently had it “come about due to a

promotion or a career change that occurred shortly after the

[agreement’s execution] and was in part due to the contribution and

support of [w]ife during the marriage.”

¶ 43 Wife’s testimony that, during the marriage, she and husband

“frequently” discussed husband’s mother’s illness, “that she was

going to die, [and that] he was going to receive more shares and his

income was going to go up” upon her death is consistent with the

court’s finding.

iv. Guideline Amount and Taxability of Maintenance

¶ 44 In her position statement in the certificate and in her exhibits,

wife presented the court with the statutory guideline amount and

term for husband’s maintenance obligation to her — $9,854.70 per

month for seven years and eleven months. The court “considered

the exhibits and testimony of the witnesses” in concluding that the

original maintenance award had not become unfair.

¶ 45 The court did not examine the taxability of wife’s maintenance

under section 14-10-114(3)(c)(XII) because maintenance is no

longer taxable income for the recipient or deductible by the payor.

See Tax Cuts and Jobs Act of 2017, Pub. L. No. 115-97, § 11051,

20
131 Stat. 2054, 2089 (repealing 26 U.S.C. § 215) (making

maintenance neither taxable nor deductible).

c. Summary

¶ 46 The court correctly said in the modification order that, “[i]n

making the determination of ‘unfairness’ with regard to a

modification of maintenance, [it] must examine the circumstances

pertinent to initially awarding maintenance under [section

14-10-114(3)], including the relevant circumstances of both

parties.” See Young, ¶ 12, 497 P.3d at 528. In addition, the court

made findings on the credibility of the witnesses who testified at the

October hearing. See Bowles, 916 P.2d at 617 (“The trial court as a

finder of fact can believe all, part, or none of a witness’ testimony,

even if uncontroverted.”). The court also said that, after

“consider[ing] the exhibits and testimony of the witnesses, and

weighing the credibility of the evidence,” it could not “conclude that

the original maintenance award [was] now unfair.”

¶ 47 The record supports the court’s conclusion. When a “court’s

order is supported by competent evidence, it should not be

disturbed on review.” In re Marriage of Udis, 780 P.2d 499, 504

(Colo. 1989). Accordingly, the court did not abuse its discretion by

21
considering the parties’ relevant circumstances under section

14-10-114(3) and concluding that those circumstances did not

support an increase in the amount of husband’s maintenance

obligation.

B. The Court Did Not Err by Denying Wife’s Request for
Attorney Fees and Costs

1. Standard of Review and Substantive Law

¶ 48 “The allowance of attorney fees [in a dissolution of marriage

action] is a matter within the discretion of the trial court and will

not be reversed absent an abuse of that discretion.” In re Marriage

of Fernstrum, 820 P.2d 1149, 1152 (Colo. App. 1991); see also

Bowles, 916 P.2d at 618-19.

¶ 49 “The purpose of an award of attorney fees under [section

14-10-119] is to apportion costs of dissolution equitably based on

the parties’ current financial resources.” Weibel, 965 P.2d at 130.

“The award is discretionary, and will not be disturbed on appeal if

supported by the evidence.” Id. If there is a “disparity of income”

between the parties but both have “considerable assets,” then a

court does not abuse its discretion by “requiring each party to pay

his or her own fees.” Id.

22
¶ 50 “[A]s a predicate to an award of [attorney] fees there must be

proof of reasonableness premised upon considerations of the

amount of the fees charged, the time spent by the attorney, the

services rendered, and the prevailing rates in the community.” In re

Marriage of Sarvis, 695 P.2d 772, 774 (Colo. App. 1984); see also

Trout, 897 P.2d at 840. “Unless otherwise ordered by the court,

attorney fees under [section] 14-10-119 should be heard at the time

of the hearing on the motion or proceeding for which they are

requested.” C.R.C.P. 121, § 1-22 cmt. 2.

2. Additional Facts

¶ 51 In denying wife’s request for attorney fees and costs, the court

first found that wife had not made such a request in the motion to

increase. The record supports this finding. Second, the court

observed that it had “denied [w]ife’s request for a modification of

maintenance, which was made just five months” after the court

entered the decree.

¶ 52 Third, the court explained that wife had “her own income plus

$5,273 in maintenance from which she can pay her own attorney[]

fees” and had received the assets allocated to her under the

agreement. As noted above, those assets included “the marital

23
home and all of its $256,000 of equity, some mineral rights, [and]

two vehicles which were not encumbered by any loans.” In

addition, husband made the $75,000 equalization payment to wife.

¶ 53 Finally, the court reasoned that denying wife’s request for

attorney fees and costs was appropriate because “both parties ha[d]

incurred attorney[] fees litigating these issues, plus [h]usband

incurred the costs of the vocational evaluation.”

3. The Court Did Not Abuse Its Discretion by
Denying Wife’s Request for Attorney Fees and Costs

¶ 54 Wife contends that the court “erred by not ordering [h]usband

to pay [w]ife’s attorney fees given [h]usband was earning over

$30,000 more per month than [w]ife.” But section 14-10-119 does

not reference gross income; rather, it requires a court to consider

the “financial resources of both parties.” The court properly

examined the parties’ financial resources.

¶ 55 Husband testified that his income includes “passthrough

income that [he] never receive[s]” and that is taxed “just under 30

percent.” Accordingly, husband says, he was required to subtract

from his gross income thirty percent for income taxes; $5,273 per

month for maintenance; $1,400 per month for child support until

24
October 2024; and $1,150 per month for child support beginning

that month.

¶ 56 Husband’s maintenance and child support payments are not

taxable income for wife, and she is in a low tax bracket given the

amount of her employment income. As the court found, wife’s total

income is not insignificant, and she received a considerable amount

of assets under the agreement.

¶ 57 Further, wife did not present sufficient evidence at the October

hearing to allow the court to adequately assess the amount and

reasonableness of her attorney fee and cost request. Wife first

requested an award of fees and costs in her position statement in

the certificate, but the request failed to specify the amount of fees

and costs she was seeking. Nor did wife file an affidavit indicating

the amount of fees and costs she was requesting or any exhibits

supporting her request.

¶ 58 The court said it would “allow [wife] to testify generally” to her

attorney fee and cost request at the October hearing. The court

noted it would then decide whether there was “sufficient evidence to

support [wife’s] request” and whether the request was

“procedurally . . . brought before the court properly.”

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¶ 59 The only evidence wife provided to support her attorney fee

and cost request consisted of credit card and bank statements

showing charges for and payments to her attorney’s law firm. Wife

testified that none of the charges and payments included attorney

fees relating to husband’s motion to restrict wife’s parenting time.

But she did not provide any exhibits to support her testimony.

¶ 60 Most significantly, wife did not provide the court with her

attorney’s billing records or her engagement letter with the attorney.

Accordingly, the court had no basis for considering the

reasonableness of the fees that wife’s attorney billed to her.

¶ 61 Because wife did not meet her burden of proof, the court did

not err by denying her attorney fee and cost request. See In re

Marriage of Connerton, 260 P.3d 62, 67 (Colo. App. 2010) (Mother’s

attorney fee request was properly denied because “there was no

evidence of the number of hours billed by her attorney nor the

reasonableness and necessity of those hours, such as billing

records, time records, or other documentary evidence.”).

III. Disposition

¶ 62 The order is affirmed.

JUDGE JOHNSON and JUDGE HAWTHORNE concur.

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