Marriage of Vogl
Marriage of Vogl
Marriage of Vogl
Opinion
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.
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