Marriage of Vogl

20CA1730 Marriage of Vogl 10-21-2021

COLORADO COURT OF APPEALS

Court of Appeals No. 20CA1730

Jefferson County District Court No. 15DR270

Honorable Christie A. Bachmeyer, Judge

In re the Marriage of

Nicole Vogl,

Appellee and Cross-Appellant,

and

Michael Vogl,

Appellant and Cross-Appellee.

ORDER AFFIRMED IN PART, REVERSED IN PART,

AND CASE REMANDED WITH DIRECTIONS

Division II

Opinion by JUDGE YUN

Román and Berger, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced October 21, 2021

Samuel J. Stoorman & Associates, P.C., Samuel J. Stoorman, Jeremy D.

Monckton, William A. Haeberle, Denver, Colorado, for Appellee and

Cross-Appellant

LeRoux Law LLC, L. Paul LeRoux II, Westminster, Colorado, for Appellant and

Cross-Appellee

1

¶ 1

In this post-dissolution of marriage proceeding involving

Michael Vogl (father) and Nicole Vogl (mother), father appeals and

mother cross-appeals from a district court’s order regarding

attorney fees, school choice, and child support. We affirm the order

in part, reverse it in part, and remand for further proceedings.

I. Relevant Facts

¶ 2

The parties’ marriage ended in 2015. The district court

approved their parenting plan for their then-eight-year-old child

and incorporated it into the decree. Under the plan, they agreed to

(1) follow a parenting time schedule where mother was the child’s

primary residential parent; (2) share joint decision-making

responsibility on all major issues, including education; and (3) forgo

any child support.

¶ 3

In 2018, father moved to modify parenting time,

decision-making responsibility, and child support. About a year

later, father’s counsel was substituted by his present counsel, who

agreed to represent him at a reduced rate. According to their

arrangement, father’s new counsel capped his fees at approximately

$14,000.

2

¶ 4

In August 2020, the district court held an evidentiary hearing

on father’s modification requests. In its oral findings and

conclusions of law, later adopted in its written ruling, the court

 maintained the current parenting time schedule;

 declined to decide whether the child should continue

with private education through the first year of high

school (academic year 2020-2021);

 determined that father’s child support obligation was de

minimus and ordered that no support be entered;

 found that father was receiving monthly income in the

amount of $12,770, “was taking advantage” of the

discounted legal services, and had “negotiated a good

deal” with his counsel at $14,000, especially given that

“this [case] ha[d] been . . . highly litigated . . . for two

years”;

 further found that mother’s monthly income was

$16,260; and

 directed father to pay a portion of mother’s attorney fees

in the amount of $30,000 under section 14-10-119,

C.R.S. 2020.

3

See Friends of Denver Parks, Inc. v. City & Cnty. of Denver, 2013

COA 177, ¶¶ 34-37 (district court’s oral findings may supplement

its written order).

¶ 5

Father’s appeal and mother’s cross-appeal followed.

II. Father’s Appeal

A. Financial Resources Under Section 14-10-119

¶ 6

Father asserts that the district court erred in its determination

of his financial resources under section 14-10-119 because it

considered his receipt of discounted legal services. Put simply, he

argues that his receipt of discounted legal services is not a

“financial resource” within the meaning of section 14-10-119. We

are not persuaded.

¶ 7

The award of attorney fees is authorized pursuant to section

14-10-119, which provides in pertinent part:

The court from time to time, after considering

the financial resources of both parties, may

order a party to pay a reasonable amount for

[the other party’s] attorney’s fees, including

sums for legal services rendered and costs

incurred prior to the commencement of the

proceeding or after entry of judgment.

Id. (emphasis added); see In re Marriage of Aragon, 2019 COA 76,

¶ 8.

4

¶ 8

Our supreme court interpreted that provision broadly, using

“economic circumstances” instead of “financial resources.” See In

re Marriage of Aldrich, 945 P.2d 1370, 1377 (Colo. 1997). It added

that in evaluating the “relative financial status of each party,” the

district court must consider their “relative incomes, assets, and

liabilities.” Id. at 1378.

¶ 9

We first reject father’s restricted definition of “financial

resources” because the statute contains no exclusion for pro bono

or discounted legal services. Consistent with the supreme court’s

broad interpretation, we will not read an exclusion into the statute

where no exclusion exists. See id.; see also In re Marriage of Blaine,

2021 CO 13, ¶ 21 (“We do not add words to a statute . . . [w]e only

go where the statute takes us.”) (citations omitted).

¶ 10

Further, the receipt of legal services at a reduced rate is an

asset in the sense that a party receives a financial or economic

benefit, which frees up money for other uses. See Aldrich, 945 P.2d

at 1378. In other words, the receipt of discounted legal services

increased father’s other financial resources. And the court can

consider discounted legal services in the parties’ overall economic

circumstances when determining attorney fees under section

5

14-10-119. See id. at 1377; see also In re Marriage of Davis,

252 P.3d 530, 538 (Colo. App. 2011) (the fact that the wife’s living

expenses were being paid by her current husband was an

appropriate factor when evaluating her overall economic

circumstances under section 14-10-119).

¶ 11

On several public policy grounds, father also argues that an

interpretation of financial resources to include discounted legal

services defeats the legislative intent behind section 14-10-119.

However, our interpretation does not thwart public policy, nor does

it interfere with the statutory purpose as it accomplishes the goal of

equalizing the parties’ financial positions. See In re Marriage of

Gutfreund, 148 P.3d 136, 141 (Colo. 2006) (section 14-10-119

empowers the district court to equitably apportion costs and fees

between parties based on their relative ability to pay); see also In re

Marriage of Rubio, 313 P.3d 623, 625 (Colo. App. 2011) (“[I]n a

dissolution of marriage case, a [district] court may level the playing

field by requiring one spouse to pay the other spouse’s attorney

fees.”) (emphasis added); In re Marriage of Anthony-Guillar, 207 P.3d

934, 944 (Colo. App. 2009) (The primary purpose for awarding

attorney fees under section 14-10-119 “is to equalize the parties’

6

financial positions.”). And we note, as the district court observed,

that this case did not involve a truly indigent client. To the

contrary, the court emphasized that father, who had an income of

nearly $13,000 per month, was “taking advantage” of the

discounted legal services and had “negotiated a good deal” with

counsel.

¶ 12

Last, we decline father’s invitation to rely on an unpublished

opinion from the Kentucky Court of Appeals to reach a different

result. We are not bound by an unpublished, out-of-state decision.

Patterson v. James, 2018 COA 173, ¶ 40 (unpublished opinions

have no precedential value); see Castle Rock Bank v. Team Transit,

LLC, 2012 COA 125, ¶ 66 (out-of-state decisions are not binding).

¶ 13

In all, the district court properly considered father’s

discounted legal services as a financial resource when determining

whether to award attorney fees under section 14-10-119.

B. The District Court Did Not Abuse Its Discretion by Awarding

Attorney Fees

¶ 14

Nor are we persuaded by father’s assertion that the district

court erred when it awarded mother, who had a “far superior

economic position,” attorney fees.

7

¶ 15

The district court has broad discretion in granting attorney

fees under section 14-10-119, and, absent an abuse of that

discretion, we will not disturb its decision on appeal. See In re

Marriage of Rodrick, 176 P.3d 806, 815-16 (Colo. App. 2007). The

court abuses its discretion if its decision is manifestly arbitrary,

unreasonable, or unfair, or if it is based on a misapplication of the

law. In re Marriage of Young, 2021COA 96, ¶ 7.

¶ 16

The district court found that father’s income was $12,770 per

month; mother’s income was $16,260 per month; father’s legal

expenses were capped at $14,000; mother incurred $93,000 in

attorney fees, of which $60,000 remained outstanding; and both

parties were highly litigious. The court then ordered father to pay

$30,000 to mother, which in addition to his attorney fees, equaled

41% of the total amount of attorney fees while mother was

responsible for a total of $63,000 or 59%. Moreover, the court’s

division proportionally reflected the percentages of the parties’

combined income, meaning that father’s income was approximately

44% of the parties’ total income and mother’s income was 56%. See

In re Marriage of Yates, 148 P.3d 304, 316 (Colo. App. 2006) (no

abuse of discretion by the district court in awarding attorney fees

8

that were roughly proportional to the parties’ income); see also In re

Marriage of Laughlin, 932 P.2d 858, 863 (Colo. App. 1997) (same).

¶ 17

We discern no abuse of the district court’s broad discretion in

this regard as its order is in accord with the purpose of section

14-10-119. See Rodrick, 176 P.3d at 815-16.

III. Mother’s Cross-Appeal

A. Selection of High School

¶ 18

Citing Griffin v. Griffin, 699 P.2d 407, 408 (Colo. 1985), mother

contends that the district court erred by not allowing her, the

“custodial parent,” to decide where the child should attend high

school. We disagree.

¶ 19

A division of this court recently rejected that very same

argument in In re Marriage of Thomas, 2021 COA 123, a case

decided after the district court’s ruling. In that case, the father

argued that under Griffin he had the ultimate authority over school

choice because he was the child’s “primary residential custodian.”

Thomas, ¶ 11. When the supreme court decided Griffin, it relied on

the prior version of section 14-10-130(1), C.R.S. 1973, which

included the following language: “[T]he custodian may determine

the child’s upbringing, including his education . . . .” Griffin,

9

699 P.2d at 409. However, Thomas recognized that since Griffin,

the legislature changed the statutory terminology from “custody” to

“parental responsibilities,” and the statute was amended to provide

that “the person or persons with responsibility for decision-making

may determine the child’s upbringing, including his or her

education . . . .” Thomas, ¶ 33. Thus, the current statute “no

longer leads to the same outcome it did in Griffin” as “there is no

longer a single statutory default decision-maker.” Id. at ¶ 34.

When the parents “reach[] an impasse in making a major decision

they [are] obligated to make together,” the district court has the

authority to break “a parental deadlock between joint

decision-makers.” Id. at ¶¶ 38, 36.

¶ 20

We see no reason to depart from the holding in Thomas. We

therefore reject mother’s contention that the district court erred by

not allowing her to decide where the child attends high school when

the parents cannot agree.

¶ 21

Nonetheless, we conclude, in light of Thomas, that the district

court erred in finding that it did not have a role to play in resolving

the choice of school impasse. Specifically, the district court ruled:

10

The bigger issue now is going forward where

does this child go to school. They have joint

decision-making and I don’t think — I know

you’re both encouraging me or somebody’s

encouraging me to pick what school that she

should go to and I’m — I’m declining to do

that. I’m not going to tell you what school to

go to. She — you folks have to get together,

you have joint decision-making, you can

decide what school she goes to. Whatever

school she goes to, then that’s the school that

she’ll end up going to.

Although we recognize that Thomas was decided after the district

court’s ruling, the court does have the authority to be the tiebreaker

when the parents are at an impasse. Thomas, ¶ 38 (district court

has impasse-breaking authority on choice of school issue between

two parents with joint decision-making responsibility); see also In re

Marriage of Dauwe, 148 P.3d 282, 285 (Colo. App. 2006) (upholding

the district court’s order granting the mother the authority to obtain

therapy for the children because it resolved a long-standing

dispute). Thus, we reverse that portion of the order and remand for

the district court to reconsider this decision-making issue. The

court may rely on the record from the modification hearing, or, in

its discretion, conduct further proceedings and take additional

evidence as it deems necessary. See In re Marriage of Salby,

11

126 P.3d 291, 301 (Colo. App. 2005) (allowing the parties to present

all relevant evidence affecting the issues on remand).

B. Child Support

¶ 22

Next, mother contends that the district court erred in

determining that it was foreclosed from considering the child’s

private school tuition costs when calculating child support. We

agree.

¶ 23

We review a district court’s child support order for an abuse of

discretion. In re Marriage of Wells, 252 P.3d 1212, 1213 (Colo. App.

2011).

¶ 24

Under section 14-10-115(11)(a)(I), C.R.S. 2020, reasonable

and necessary expenses for attending a private elementary school

“to meet the particular educational needs of the child” shall be

allocated between the parents in proportion to their adjusted gross

incomes. See Wells, 252 P.3d at 1215.

¶ 25

In denying mother’s request to include the child’s private

school tuition costs on the child support worksheet, the court said

the following:

What I can’t do under [section 14-10-115], I

cannot order that [m]other will have an

extraordinary adjustment in her child support

12

when it’s an expense for attending any special

or private elementary or secondary school to

meet the particular educational needs of the

child. I usually do that when we have a child

on a[n] [individualized education program] or a

special plan, they’ve got special needs, they’re

autistic, they have to go to a boarding school,

they’ve got behavior problems, those are the

times when they get to have that deduction.

Here I find this child is incredibly bright and

smart; and she probably will be the next

president of the United States if we play our

cards right. And . . . I think . . . if you folks

want to put her in school, I think you should

make the decision jointly . . . but . . . no one’s

going to get . . . a credit for it.

¶ 26

Contrary to the district court’s ruling, the “particular

educational needs” of the child are not to be construed narrowly as

only encompassing learning disabilities or special educational

needs. Instead, child support may include an amount to allow a

child to attend a private school if circumstances warrant. See In re

Marriage of Elmer, 936 P.2d 617, 622 (Colo. App. 1997) (the

“particular educational needs” of a child are not limited to providing

private schooling only when a child has a learning disability or

otherwise qualifies for a program of special education); see also In re

Marriage of Eaton, 894 P.2d 56, 59 (Colo. App. 1995) (same); In re

Marriage of Payan, 890 P.2d 264, 265 (Colo. App. 1995) (the district

13

court erred in determining that, because the children did not have a

learning disability or special educational needs, the cost of private

school would not be included in the calculation of child support).

Also, the fact that the child was currently attending private school

may be considered by the court in determining whether the

continued enrollment meets the child’s particular educational

needs. Payan, 890 P.2d at 265.

¶ 27

The district court therefore erred in saying that it was barred

from considering the child’s private school tuition costs as an

extraordinary adjustment when calculating child support. See

Wells, 252 P.3d at 1213. But the parents have not agreed, and the

court has not decided, whether private school is appropriate for the

child. So, on remand, if the court decides (or the parties agree) that

private school is appropriate, it should reconsider whether the costs

of private school permit an adjustment to the child support amount

under section 14-10-115(11)(a)(I).

IV. Appellate Attorney Fees

¶ 28

Asserting that their financial resources are disparate, both

parties ask for appellate attorney fees under section 14-10-119.

14

¶ 29

Because the district court is better equipped than an appellate

court to resolve factual issues regarding the parties’ current

financial circumstances, it must address the parties’ requests on

remand. See C.A.R. 39.1; see also In re Marriage of Martin, 2021

COA 101, ¶ 42.

V. Conclusion

¶ 30

We reverse those portions of the order concerning school

choice and child support, and the case is remanded for the district

court to reconsider those issues and to determine the parties’

requests for appellate attorney fees under section 14-10-119.

Otherwise, the rest of the order is affirmed.

JUDGE ROMÁN and JUDGE BERGER concur.