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 marriag e proceeding involving Michael Vogl (father) and Nicole V ogl (mother), father appeals and mother cross-appeals from a dist rict court’s order regarding attorney fees, school choice, and c hild support. We affirm the ord er in part, reverse it in part, and rema nd for further proceedings. I. Relevant Facts ¶ 2 The parties’ marriage ended in 20 15. 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 schedul e where mother was the child’s primary residential parent; (2) sha re joint decision-making responsibility on all major issues, including education; and (3) forgo any child support. ¶ 3 In 2018, father moved to modify p arenting time, decision-making responsibility, and child support. About a year later, father’s counsel was substit uted by his present counsel, who agreed to represent him at a r educed rate. According to their arrangement, father’s new couns el capped his fees at approximat ely $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 i n its written ruling, the court  maintained the current parenting time schedule;  declined to decide whether the child should continue with private education through th e first year of high school (academic year 2020-2021);  determined that father’s child su pport obligation was de minimus and ordered that no sup port be entered;  found that father was receiving mo nthly income in the amount of $12,770, “was taking ad vantage” 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 . . . hi ghly litigated . . . for two years”;  further found that mother’s monthl y 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, I nc. v. City & Cnty. of Denver , 2013 COA 177, ¶¶ 34-37 (district court’s or al findings may supplement its written order). ¶ 5 Father’s appeal and mother’s cros s-appeal followed. II. Father’s Appeal A. Financial Resources Under Sect ion 14-10-119 ¶ 6 Father asserts that the district cou rt erred in its determination of his financial resources under se ction 14-10-119 because it considered his receipt of discount ed legal services. Put simply, h e argues that his receipt of discount ed legal services is not a “financial resource” within the m eaning of section 14-10-119. We are not persuaded. ¶ 7 The award of attorney fees is auth orized pursuant to section 14-10-119, which provides in perti nent part: The court from time to time, after considering the financial resources of both part ies, may order a party to pay a reasonable a mount for [the other party’s] attorney’s fees, including sums for legal services rendered an d costs incurred prior to the commencem ent of the proceeding or after entry of judgme nt. Id. (emphasis added); see In re Ma rriage of Aragon , 2019 COA 76, ¶ 8. 4 ¶ 8 Our supreme court interpreted tha t provision broadly, using “economic circumstances” instea d of “financial resources.” See I n re Marriage of Aldrich , 945 P.2d 13 70, 1377 (Colo. 1997). It added that in evaluating the “relative fina ncial status of each party,” t he district court must consider their “relative incomes, assets, and liabilities.” Id. at 1378. ¶ 9 We first reject father’s restricted d efinition of “financial resources” because the statut e contains no exclusion for pro bono or discounted legal services. Consist ent with the supreme court’s broad interpretation, we will not r ead an exclusion into the statut e where no exclusion exists. See i d. ; see also In re Marriage o f Blaine , 2021 CO 13, ¶ 21 (“We do not ad d words to a statute . . . [w]e only go where the statute takes us.”) (ci tations omitted). ¶ 10 Further, the receipt of legal servic es 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 receip t of discounted legal services increased father’s other financial r esources. 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. 201 1) (the fact that the wife’s living expenses were being paid by h er 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 resource s to include discounted legal services defeats the legislative int ent behind section 14-10-119. However, our interpretation does n ot thwart public policy, nor does it interfere with the statutory purp ose as it accomplishes the goal of equalizing the parties’ financial p ositions. See In re Marria ge of Gutfreund , 148 P.3d 136, 141 (Col o. 2006) (section 14-10-119 empowers the district court to eq uitably apportion costs and fees between parties based on their rela tive ability to pay); see also I n re Marriage of Rubio , 313 P.3d 623, 625 ( Colo. App. 2011) (“[I]n a dissolution of marriage case, a [dis trict] court may level the playing field by requiring one spouse to pa y the other spouse’s attorney fees.”) (emphasis added); In re Ma rriage of Anthony-Guillar , 207 P. 3d 934, 944 (Colo. App. 2009) (The pri mary purpose for awarding attorney fees under section 14-1 0-119 “is to equalize the parties’ 6 financial positions.”). And we not e, as the district court observed, that this case did not involve a trul y indigent client. To the contrary, the court emphasized tha t father, who had an income of nearly $13,000 per month, was “t aking 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 o f Appeals to reach a different result. We are not bound by an un published, out-of-state decision. Patterson v. James , 2018 COA 173, ¶ 40 (unpublished opinions have no precedential value); see Cast le Rock Bank v. Team Transit , LLC , 2012 COA 125, ¶ 66 (out-of- state decisions are not binding). ¶ 13 In all, the district court properly c onsidered father’s discounted legal services as a fina ncial resource when determining whether to award attorney fees un der 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 ass ertion that the district court erred when it awarded moth er, who had a “far superior economic position,” attorney fees. 7 ¶ 15 The district court has broad discr etion in granting attorney fees under section 14-10-119, and , absent an abuse of that discretion, we will not disturb its d ecision on appeal. See In re Marriage of Rodrick , 176 P.3d 806, 815-16 (Colo. App. 2007). Th e court abuses its discretion if it s decision is manifestly arbitrary, unreasonable, or unfair, or if it is based on a misapplication of th e law. In re Marriage of Young , 2021 COA 96 , ¶ 7. ¶ 16 The district court found that fat her’s income was $12,770 per month; mother’s income was $16,2 60 per month; father’s legal expenses were capped at $14,000; mother incurred $93,000 in attorney fees, of which $60,000 r emained outstanding; and both parties were highly litigious. Th e court then ordered father to pay $30,000 to mother, which in additi on to his attorney fees, equaled 41% of the total amount of attorn ey fees while mother was responsible for a total of $63,000 o r 59%. Moreover, the court’s division proportionally reflected th e percentages of the parties’ combined income, meaning that fat her’s income was approximately 44% of the parties’ total income an d mother’s income was 56%. See In re Marriage of Yates , 148 P.3d 3 04, 316 (Colo. App. 2006) (no abuse of discretion by the district court in awarding attorney fees 8 that were roughly proportional to t he parties’ income); see also I n re Marriage of Laughlin , 932 P.2d 85 8, 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.3 d at 815-16. III. Mother’s Cross-Appeal A. Selection of High School ¶ 18 Citing Griffin v. Griffin , 699 P.2d 4 07, 408 (Colo. 1985), mother contends that the district court erred by not allowing her, the “custodial parent,” to decide wher e the child should attend high school. We disagree. ¶ 19 A division of this court recently r ejected that very same argument in In re Marriage o f Thomas , 2021 COA 123 , a case decided after the district court’s r uling. In that case, the father argued that under Griffin he had t he ultimate authority over school choice because he was the child’s “primary residential custodian.” Thomas , ¶ 11. When the suprem e 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 hi s education . . . .” Griffin , 9 699 P.2d at 409. However, Thom as recognized that since Gri ffin , the legislature changed the statut ory terminology from “custody” to “parental responsibilities,” and the statute was amended to provid e that “the person or persons with responsibility for decision-making may determine the child’s upbringi ng, including his or her education . . . .” Thomas , ¶ 33. Thus, the current statute “no longer leads to the same outcome i t did in Griffin ” as “there is no longer a single statutory default d ecision-maker.” Id. at ¶ 34. When the parents “reach[] an imp asse in making a major decision they [are] obligated to make togeth er,” the district court has the authority to break “a parental dea dlock 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 contentio n that the district court erred by not allowing her to decide where th e child attends high school wh en 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. Speci fically, the district court ruled: 10 The bigger issue now is going forw ard where does this child go to school. Th ey have joint decision-making and I don’t think — I know you’re both encouraging me or som ebody’s encouraging me to pick what sch ool that she should go to and I’m — I’m declini ng to do that. I’m not going to tell you what school to go to. She — you folks have to g et together, you have joint decision-making, yo u can decide what school she goes to. Whatever school she goes to, then that’s th e school that she’ll end up going to. Although we recognize that Thoma s was decided after the district court’s ruling, the court does hav e the authority to be the tiebreaker when the parents are at an impass e. Thomas , ¶ 38 (district court has impasse-breaking authority on choice of school issue between two parents with joint decision-ma king responsibility); see also I n re Marriage of Dauwe , 148 P.3d 282, 285 (Colo. App. 2006) (upholding the district court’s order granting the mother the authority to obtai n therapy for the children because it resolved a long-standing dispute). Thus, we reverse that p ortion of the order and remand for the district court to reconsider this decision-making issue. The court may rely on the record from t he modification hearing, or, in its discretion, conduct further pro ceedings and take additional evidence as it deems necessary. See In re Marriage of Salby , 11 126 P.3d 291, 301 (Colo. App. 200 5) (allowing the parties to present all relevant evidence affecting the i ssues on remand). B. Child Support ¶ 22 Next, mother contends that the dis trict court erred in determining that it was foreclosed f rom considering the child’s private school tuition costs when c alculating child support. We agree. ¶ 23 We review a district court’s child s upport order for an abuse of discretion. In re Marriage o f 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 attendi ng a private elementary school “to meet the particular education al needs of the child” shall be allocated between the parents in pr oportion to their adjusted gross incomes. See Wells , 252 P.3d at 1215 . ¶ 25 In denying mother’s request to in clude the child’s private school tuition costs on the child su pport worksheet, the court said the following: What I can’t do under [section 1 4-10-115], I cannot order that [m]other will have an extraordinary adjustment in her chi ld support 12 when it’s an expense for attending any special or private elementary or secondary school to meet the particular educational n eeds of the child. I usually do that when we h ave a child on a[n] [individualized education program] or a special plan, they’ve got special n eeds, they’re autistic, they have to go to a board ing school, they’ve got behavior problems, thos e are the times when they get to have that d eduction. Here I find this child is incredibly bright and smart; and she probably will be th e 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 ruli ng, the “particular educational needs” of the child ar e not to be construed narrowly as only encompassing learning disa bilities or special educational needs. Instead, child support may include an amount to allow a child to attend a private school if circumstances warrant. See I n re Marriage of Elmer , 936 P.2d 617 , 6 22 (Colo. App. 1997) (the “particular educational needs” of a child are not limited to provi ding private schooling only when a child has a learning disability or otherwise qualifies for a program of special education); see als o In re Marriage of Eaton , 894 P.2d 56, 59 (Colo. App. 1995) (same); I n re Marriage of Payan , 890 P.2d 264, 265 (Colo. App. 1995) (the district 13 court erred in determining that, b ecause the children did not have a learning disability or special educ ational needs, the cost of privat e school would not be included in the c alculation of child support). Also, the fact that the child was cur rently attending private school may be considered by the court in determining whether the continued enrollment meets th e child’s particular educational needs. Payan , 890 P.2d at 265 . ¶ 27 The district court therefore err ed in saying that it was barred from considering the child’s privat e school tuition costs as an extraordinary adjustment when cal culating child support. See Wells , 252 P.3d at 1213 . But th e parents have not agreed, and th e court has not decided, whether pri vate 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 adjust ment to the child support amount under section 14-10-115(11)(a)( I). IV. Appellate Attorney Fees ¶ 28 Asserting that their financial resour ces are disparate, both parties ask for appellate attorney f ees under section 14-10-119. 14 ¶ 29 Because the district court is bett er equipped than an appellate court to resolve factual issues regar ding the parties’ current financial circumstances, it must a ddress the parties’ requests on remand. See C.A.R. 39.1; see a lso In re Marriage of Martin , 2021 COA 101, ¶ 42. V. Conclusion ¶ 30 We reverse those portions of the ord er concerning school choice and child support, and the case is remanded for the district court to reconsider those issues a nd to determine the parties’ requests for appellate attorney f ees under section 14-10-119. Otherwise, the rest of the order is affirmed. JUDGE ROMÁN and JUDGE BERGER concur.