Herndon v. Clark

22CA2275 & 23CA0621 Herndon v Clark 09-19-2024

COLORADO COURT OF APPEALS

Court of Appeals Nos. 22CA2275 & 23CA0621
Fremont County District Court No. 21DR30106
Honorable Lynette M. Wenner, Judge

Devon Deyarman Herndon,

Appellant,

v.

Clancy James Clark,

Appellee.

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

Division VI
Opinion by JUDGE WELLING
Yun and Lum, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced September 19, 2024

Family Law Center of the Rockies, Chris McLane, Golden, Colorado, for
Appellant

Cordova Law Firm, LLP, Zachary D. Cordova, Salida, Colorado, for Appellee
¶1 Devon Deyarman Herndon appeals the district court’s

judgment concluding that no common law marriage existed between

herself and Clancy James Clark and order awarding Mr. Clark his

attorney fees and costs. We affirm the district court’s judgment,

affirm in part and reverse in part the order, and remand the case

for further proceedings.

I. Background

¶2 In December 2021, Ms. Herndon filed for a divorce, claiming

that she and Mr. Clark had been common law married since

November 6, 2016 — the date the parties moved from New Mexico

to Colorado. In late 2022, following a two-day evidentiary hearing,

the district court found that the parties weren’t common law

married and dismissed the dissolution petition.

¶3 The court then found that her dissolution action was frivolous

and vexatious under section 13-17-102(2), (4), C.R.S. 2024. As a

result, the court awarded Mr. Clark his attorney fees and costs.

¶4 After reviewing Mr. Clark’s affidavit and billing statements, as

well as Ms. Herndon’s objection contesting certain entries, the

district court, in a separate order, directed her to pay $29,718 in

attorney fees and costs.

1
II. Issues Raised on Appeal

¶5 On appeal, Ms. Herndon contends that the district court erred

in four respects: (1) in its disposition of several prehearing motions,

either by failing to rule or denying her relief; (2) by determining that

the parties weren’t common law married; (3) by concluding that her

petition was frivolous and vexatious and awarding Mr. Clark his

attorney fees and costs pursuant to section 13-17-102; and (4) by

failing to rule on her request for an order requiring Mr. Clark to pay

a portion of her attorney fees pursuant to section 14-10-119, C.R.S.

2024, based on the parties’ disparate financial circumstances.

Finally, both parties request an award of their attorney fees

incurred on appeal, Mr. Clark pursuant to section 13-17-102 and

Ms. Herndon pursuant to 14-10-119.

¶6 We reject all of Ms. Herndon contentions of error, except her

challenge to the district court’s award of costs pursuant to section

13-17-102, which we reverse. We also reject Mr. Clark’s request for

an award of appellate attorney fees, but remand Ms. Herndon’s

request for an award of appellate attorney fees pursuant section 14-

10-119 to the district court.

2
III. Prehearing Motions

¶7 Ms. Herndon challenges the district court’s disposition of three

prehearing motions. We address, and reject, each challenge in turn

below.

A. Ms. Herndon’s Motion to Strike

¶8 In response to the dissolution petition, Mr. Clark asked to

dismiss it, arguing that the parties were never married.

¶9 Ms. Herndon later moved to strike Mr. Clark’s request to

dismiss the dissolution petition, stating that he had failed to confer

with her prior to filing it and that his request to dismiss was

improperly included in a responsive pleading.

¶ 10 According to Ms. Herndon, the district court never ruled on

her motion to strike, and as a result, she suffered prejudice because

the court allowed Mr. Clark to proceed on his request to dismiss.

But she doesn’t explain exactly how she was prejudiced by the

court’s inaction or how the result of the proceeding would have

been different had the court ruled on her motion to strike. See

C.A.R. 35(c) (requiring the reviewing court to disregard any errors in

court proceedings that don’t affect the substantial rights of the

parties); C.R.C.P. 61 (same); see also People in Interest of A.C., 170

3
P.3d 844, 845 (Colo. App. 2007) (an alleged error, without an

allegation of prejudice, wasn’t a ground for reversal). In any event,

even if the court had struck the request to dismiss, Mr. Clark’s

response to the dissolution petition asked for the same relief.

B. Ms. Herndon’s Motions for Contempt

¶ 11 Before the hearing to determine the existence of a common law

marriage, Ms. Herndon filed two separate contempt motions against

two different individuals, alleging their failure to comply with

subpoenas for certain documents. On appeal, Ms. Herndon argues

that because the court didn’t rule on her contempt motions, she

never received the subpoenaed information, which, she contends,

hampered her ability to effectively cross-examine those individuals

at the hearing. Yet again she doesn’t specifically tell us how her

cross-examination was compromised. See C.A.R. 35(c); C.R.C.P. 61;

see also A.C., 170 P.3d at 845. In other words, she doesn’t indicate

what testimony she could have elicited and how that missing

testimony would have affected the outcome.

¶ 12 We decline to address Ms. Herndon’s undeveloped argument

that the district court erred by not ruling on her motion for

contempt against Mr. Clark based on his alleged violation of the

4
automatic temporary injunction. See In re Marriage of Zander, 2019

COA 149, ¶ 27 (appellate court may decline to consider an

argument not supported by legal authority or any meaningful legal

analysis), aff’d, 2021 CO 12; see also Biel v. Alcott, 876 P.2d 60, 64

(Colo. App. 1993) (“An appealing party bears the burden to provide

supporting authority for contentions of error asserted on appeal,

and a failure to do so will result in an affirmation of the

judgment.”). As well, she doesn’t explain how she was prejudiced

by the absence of any relief with respect to the motion for contempt.

See C.A.R. 35(c); C.R.C.P. 61; see also A.C., 170 P.3d at 845.

C. Ms. Herndon’s Motion to Compel Discovery

¶ 13 Ms. Herndon insists that the district court erred by denying

her motion to compel discovery responses from Mr. Clark regarding

his will and estate documents. However, she doesn’t demonstrate,

with any legal analysis, how the court erred in that regard.

Therefore, we decline to address the issue. See Zander, ¶ 27.

IV. Judgment Concluding No Common Law Marriage Existed

¶ 14 Ms. Herndon contends that the district court erred in

determining that the parties weren’t in a common law marriage. We

disagree.

5
A. Legal Principles and Standard of Review

¶ 15 “[A] common law marriage may be established by the mutual

consent or agreement of the couple to enter the legal and social

institution of marriage, followed by conduct manifesting that

mutual agreement.” Hogsett v. Neale, 2021 CO 1, ¶ 70. “The key

inquiry is whether the parties intended to enter a marital

relationship — that is, to share a life together as spouses in a

committed, intimate relationship of mutual support and obligation.”

Id.

¶ 16 In determining whether a common law marriage has been

established, the court should “accord weight to evidence reflecting a

couple’s express agreement to marry.” Id. Evidence of an express

agreement to marry may include, but is not limited to, a marriage

proposal and acceptance, participation in a ceremony in the

presence of friends and family, the exchange of vows and rings, a

celebratory toast, or the completion of a “Certificate of Holy Union.”

LaFleur v. Pyfer, 2021 CO 3, ¶ 54; see Hogsett, ¶ 62; In re Estate of

Yudkin, 2021 CO 2, ¶ 22. However, “the traditions and symbols

that mark marital commitments are not uniform,” so the district

court must consider the parties’ interpretations of the significance

6
of such mores. Hogsett, ¶¶ 47, 62; see LaFleur, ¶ 55 (noting the

importance of examining the range of meanings that parties may

place on ceremonies).

¶ 17 If no evidence of an express agreement to marry exists, then

“the parties’ agreement may be inferred from their conduct.”

Hogsett, ¶ 70. The court must consider all factors that might

manifest the parties’ agreement, or lack of agreement, to be

married. Yudkin, ¶ 18. Relevant factors include the parties’

cohabitation; reputation in the community as spouses;

maintenance of joint banking and credit accounts; purchase and

joint ownership of property; filing of joint tax returns; use of one

spouse’s surname by the other or by children raised by the parties;

evidence of shared financial responsibility, such as leases in both

partners’ names, joint bills, or other payment records; evidence of

joint estate planning, such as wills, powers of attorney, and

beneficiary and emergency contact designations; symbols of

commitment, such as ceremonies, anniversaries, cards, gifts, and

the couple’s references to or labels for one another; and the parties’

sincerely held beliefs regarding the institution of marriage. Hogsett,

¶¶ 55-56. These factors must be assessed in context, and the

7
inferences to be drawn from the parties’ conduct may vary

depending on the circumstances. LaFleur, ¶ 53.

¶ 18 A common law marriage finding depends on the totality of the

circumstances; no single factor is dispositive. Yudkin, ¶¶ 18-19;

see also Hogsett, ¶ 59 (noting that the significance of a given factor

will depend on the individual, the relationship, and the broader

circumstances, including cultural differences). Thus, the

determination of whether a common law marriage exists turns on

issues of fact and credibility, which are within the district court’s

purview. LaFleur, ¶ 50; see Hogsett, ¶ 50 (The existence of a

common law marriage calls for “a flexible inquiry into the totality of

the circumstances that relies on the factfinder’s credibility

determinations and weighing of the evidence.”).

¶ 19 We review the district court’s factual findings for clear error

and its common law marriage determination based on those

findings for an abuse of discretion. LaFleur, ¶ 50. A court’s factual

finding is clearly erroneous if there is no support for it in the record.

In re Marriage of Young, 2021 COA 96, ¶ 8. And a court abuses its

discretion when it misconstrues or misapplies the law, or makes a

decision that is manifestly arbitrary, unreasonable, or unfair. In re

8
Marriage of Kann, 2017 COA 94, ¶ 56. With these principles in

mind, we turn to the record that was before the district court and

its findings.

B. Additional Facts and District Court’s Findings

¶ 20 The record supports the following factual findings made by the

district court:

• The parties’ dating relationship began in 2008.

• There was testimony that “the parties discussed marriage

early in the relationship and they both agreed they did

not want to get married.”

• About a year later, the parties moved to New Mexico and

began living together.

• In 2015, Mr. Clark bought land in Colorado, with title

solely in his name. Using separate funds, he eventually

built a residence there.

• On November 6, 2016, the parties moved to Colorado

where common law marriages are recognized. For that

reason, Ms. Herndon argued that they had entered into a

common law marriage. But the district court found that

the “mere act of moving to Colorado from New Mexico is

9
not sufficient to constitute mutual consent for marriage

and there is no legal justification for such an

assumption.” And Ms. Herndon “acknowledged that at

no time did the parties enter into an agreement to be

married prior to or after November 2016.”

¶ 21 The district court also found that “the parties’ conduct after

moving to Colorado did not follow a mutual and open assumption of

a marital relationship.” In support of this finding, the district court

made the following subsidiary findings:

• “It [was] undisputed that no marriage proposal was

made, no marriage ceremony occurred, and no marriage

license was obtained by the parties before or after

November 6, 2016.”

• Mr. Clark hired a ghostwriter to write a self-help book for

him. To establish a common law marriage, Ms. Herndon

relied on the ghostwriter’s use of the word “wife.” But the

ghostwriter explained that it “was an easier shorthand”

and “not meant to describe or to be [Ms. Herndon].” The

ghostwriter testified that “in no way was he told by [Mr.

Clark] to use that word in reference to [Ms.] Herndon.”

10
The ghostwriter added that the book “was not a memoir

or a personal narrative of [Mr. Clark’s] life” and contained

“fictional characters and fictional stories.” The only

portion of the book written by Mr. Clark was the foreword

wherein he didn’t refer to Ms. Herndon as his wife, but

instead as his “beloved.”

• Ms. Herndon’s expert reviewed the book and opined that

the word “wife” wasn’t social shorthand.

• With some help from the previous ghostwriter, Mr. Clark

wrote a second self-help book, which was an extension of

the first book. It was released after Ms. Herndon had

petitioned for dissolution. He testified that in “writing

and editing the book, he maintained the same names of

the fictional characters and created fictional stories in his

second book as well.”

• Mr. Clark’s expert testified that there were fictional

stories and characters in both books and that the “wife”

character was a “small insignificant presence.” The

expert said that the books didn’t convey that Mr. Clark

was married to Ms. Herndon.

11
• To show the existence of a common law marriage, Ms.

Herndon also relied on social media posts about the

books. Yet the posts were largely controlled by a

company in charge of marketing. And two witnesses,

both of whom worked for the company, testified that after

discussing the parties’ relationship, Mr. Clark “was clear

that he was not married and did not desire to be

married.”

• “[T]he books and social media posts [were] circumstantial

evidence at best” and did “not lend any credibility . . . of

an intent by [Mr.] Clark to be married.”

• Ms. Herndon presented, as evidence of a common law

marriage, a name badge from a class reunion plus two

pieces of mail showing her last name as Clark. But there

“was no evidence that either party had requested the

Clark name be used.”

• Ms. Herndon never adopted the Clark surname.

• Ms. Herndon called one witness who testified that on one

occasion Mr. Clark called Ms. Herndon his wife. She also

called another witness who testified that on a separate

12
occasion she called Mr. Clark her husband. Her other

witnesses testified that they “assumed” that the parties

were married. The court found all their testimony

unpersuasive.

• The parties shared a business asset from the United

States Patent and Trademark Office (USPTO).

• Mr. Clark presented numerous witnesses who were

“longtime acquaintances of both parties.” They testified

persuasively that Mr. Clark never wore a ring and never

referred to Ms. Herndon as his wife.

• Moreover, the parties didn’t

o have any jointly titled bank accounts;

o have any joint credit accounts;

o purchase or own property together;

o have children together;

o have shared financial responsibilities, like joint

loans;

o share any lease agreements; or

o have joint bills or expenses.

13
• “[T]he parties filed separate individual tax returns with a

filing status of ‘single’ (not married) for all years they

were in a relationship, and they both declared so under

penalty of perjury.”

• Ms. Herndon’s application for life insurance “noted that

she had no spouse or noted that [Mr. Clark] was her

‘friend’ and not a husband or spouse.”

• “[T]he [c]ourt finds the parties did not buy or exchange

rings as a symbol of a marriage. [Ms.] Herndon testified

that she bought herself a ring to wear on her wedding

finger, which [Mr.] Clark had no knowledge of, but the

only evidence of this she could provide was one picture.

The [c]ourt finds this evidence not to be credible.”

• The parties didn’t celebrate any wedding anniversaries.

• Ms. Herndon executed a trust agreement about five

months after she alleged that a marriage was entered

into. In it, she affirmed that she was “not married nor a

partner in a civil union.”

14
¶ 22 From those findings, the district court determined that Ms.

Herndon failed to carry the burden necessary to establish a

common law marriage.

C. Analysis

¶ 23 To begin, Ms. Herndon challenges the district court’s finding

that she “acknowledged that at no time did the parties enter into an

agreement to be married prior to or after November 2016.” She

relies solely on her testimony that Mr. Clark was incorrect when he

testified that there was no agreement to be married. But this

argument essentially asks us to reweigh the evidence, which we

can’t do. See In re Marriage of Thorburn, 2022 COA 80, ¶ 49 (it’s for

the district court to determine witness credibility and the weight,

probative force, and sufficiency of the evidence, as well as the

inferences and conclusions to be drawn therefrom); see also In re

Marriage of Amich, 192 P.3d 422, 424 (Colo. App. 2007) (the district

court can believe all, part, or none of a witness’s testimony, even if

uncontroverted).

¶ 24 Ms. Herndon also takes issue with the district court’s finding

that her expert only reviewed the first book. While we agree that

her expert testified that she reviewed both books, Ms. Herndon

15
doesn’t explain on appeal how this mistake prejudiced her. See

C.A.R. 35(c); C.R.C.P. 61; see also A.C., 170 P.3d at 845.

¶ 25 Ms. Herndon maintains that the record contradicts the district

court’s factual finding that Mr. Clark’s witnesses were long-time

acquaintances of both parties. Again, she doesn’t explain how she

was prejudiced by this allegedly erroneous finding. See C.A.R.

35(c); C.R.C.P. 61; see also A.C., 170 P.3d at 845.

¶ 26 Next, Ms. Herndon argues that the district court did not take

her testimony into account. She testified that Mr. Clark

commented that he would be “nice” to her when moving to Colorado

because common law marriage is recognized there and that the

parties shared an automobile insurance policy. But we may

presume that the court considered all the evidence before it, even if

it didn’t make express findings regarding that evidence. See In re

Marriage of Udis, 780 P.2d 499, 504 (Colo. 1989).

¶ 27 We reject Ms. Herndon’s contention that the district court

failed to consider that Mr. Clark referred to her as his “beloved” in

the foreword of his first book and a jointly owned trademark,

registered by the USPTO in January 2017. The court explicitly

considered those facts, particularly acknowledging that the word

16
“beloved” wasn’t the same as “wife” and that the trademark was the

only asset the parties jointly owned.

¶ 28 Ms. Herndon says that the evidence — namely, both experts’

testimony on Mr. Clark’s books, Mr. Clark’s testimony on his social

media posts, and other witnesses’ testimony that they either saw

Mr. Clark wear a wedding ring or heard Mr. Clark call Ms. Herndon

“wife” — requires the conclusion that the parties were common law

married. Once again, we decline her invitation to reweigh the

evidence and substitute our judgment for that of the district court.

See Thorburn, ¶ 49; see also Kann, ¶ 36 (“[O]ur supreme court

has . . . expressed unbridled confidence in [district] courts to weigh

conflicting evidence.”); Amich, 192 P.3d at 424.

¶ 29 Last, Ms. Herndon asserts that the district court should have

given more weight to her witnesses as they were “local,” unlike Mr.

Clark’s witnesses who were from “all over the world.” She cites no

authority, and we are aware of none, that supports her proposition.

Thus, we decline to address the issue. See Zander, ¶ 27; see also

Biel, 876 P.2d at 64.

¶ 30 In sum, we discern no error in the district court’s factual

findings or in the legal standards it applied. Nor can we say that

17
the court’s resolution of this dispute was manifestly arbitrary,

unreasonable, or unfair. Thus, the court’s determination that no

common law marriage existed wasn’t an abuse of discretion. See

LaFleur, ¶ 50. Accordingly, we won’t disturb it.

V. Attorney Fees and Costs Pursuant to Section 13-17-102

¶ 31 Ms. Herndon next contends that the district court erred by

awarding Mr. Clark his attorney fees and costs under section 13-

17-102. To get there, she says that her dissolution action was

neither frivolous nor vexatious. For the reasons discussed below,

we affirm the award of attorney fees, but reverse the award of costs.

A. Legal Principles and Standard of Review

¶ 32 Section 13-17-102(2) and (4) provide for the recovery of

attorney fees when a district court finds that an action is

substantially frivolous or vexatious.

¶ 33 An action is substantially frivolous if “the proponent can

present no rational argument based on the evidence or law in

support of [it].” City of Aurora v. Colo. State Eng’r, 105 P.3d 595,

620 (Colo. 2005).

¶ 34 An action is substantially vexatious if it is “brought or

maintained in bad faith to annoy or harass another.” In re Parental

18
Responsibilities Concerning I.M., 2013 COA 107, ¶ 29.

“[V]exatiousness includes conduct that is arbitrary, abusive,

stubbornly litigious, or disrespectful of the truth.” Id.

¶ 35 Section 13-17-102 works in conjunction with section 13-17-

103, C.R.S. 2024, which provides that “[w]hen granting an award of

attorney fees . . . , the court shall specifically set forth the reasons

for the award.” § 13-17-103(1). The court must consider all

relevant factors in determining whether to assess attorney fees, like

“[t]he extent of any effort made to determine the validity of any

action or claim before said action or claim was asserted” and

“[w]hether or not the action was prosecuted or defended, in whole or

in part, in bad faith.” § 13-17-103(1)(a), (e); see In re Marriage of

Aldrich, 945 P.2d 1370, 1379 (Colo. 1997) (district court need only

address the relevant statutory factors). Our supreme court has

held that this statute requires specific findings regarding the

statutory factors whenever a district court grants an attorney fee

request. Munoz v. Measner, 247 P.3d 1031, 1035 (Colo. 2011).

¶ 36 We review a district court’s award of attorney fees for an abuse

of discretion. In re Parental Responsibilities Concerning D.P.G., 2020

COA 115, ¶ 32. A court abuses its discretion when its decision is

19
manifestly arbitrary, unreasonable, or unfair, or misapplies the law.

Id.

¶ 37 We review de novo, however, whether the district court applied

the correct legal standard. In re Parental Responsibilities

Concerning B.R.D., 2012 COA 63, ¶ 15.

B. Analysis

1. Award of Attorney Fees

¶ 38 As discussed at length above, Ms. Herndon, as the petitioner,

bore the burden to prove the existence of the common law marriage

by a preponderance of the evidence. See Hogsett, ¶ 13. In order to

carry that burden, the party seeking to prove the existence of a

marriage generally must introduce some objective evidence of the

existence of the common law marriage in order to guard against

fraudulent assertions of marriage. See id. at ¶ 51; see also People v.

Lucero, 747 P.2d 660, 664-65 (Colo. 1987) (“objective evidence” is

any evidence of “open marital cohabitation” or “any form of evidence

that openly manifests the intention of the parties that their

relationship is that” of a married couple) (citation omitted),

abrogated by Hogsett, ¶¶ 1-5. In dismissing Ms. Herndon’s petition

and rejecting her claim that the parties were common law married,

20
the district court didn’t simply find her evidence unpersuasive, it

found that “the objective in this matter is overwhelming, clear, and

largely undisputed that a marriage never existed.” Based on this,

the court found that Ms. Herndon’s petition “lacked substantial

justification and was a frivolous and vexatious filing,” warranting an

award of attorney fees pursuant to section 13-17-102.

¶ 39 In support of this conclusion, the district court found that the

corroborated and undisputed objective evidence was so

overwhelmingly clear that Ms. Herndon’s “own conduct, sworn

statements, and admissions showed she intended to keep her life

separate and not married.” See Hogsett, ¶ 51. The court added

that her evidence showed that she was “either perjuring herself in

all her sworn statements to the IRS, insurance providers, banks,

and her own trust documents or she knew or should have known

she was filing fraudulent claims.”

¶ 40 The record supports the district court’s findings, including its

credibility determinations. See Lucero, 747 P.2d at 665 (whether a

common law marriage exists involves issues of fact and credibility,

which are within the district court’s discretion); see also Thorburn,

¶ 49 (it is for the district court to determine witness credibility and

21
the weight, probative force, and sufficiency of the evidence, as well

as the inferences and conclusions to be drawn therefrom); Amich,

192 P.3d at 424 (district court is entitled to believe or disbelieve all

or part of a witness's testimony, even if uncontroverted).

¶ 41 The record reflects that the parties didn’t have any jointly

titled bank or credit card accounts; the parties did not have joint

bills or expenses; the parties filed separate tax returns identifying

themselves, under penalty of perjury, as “single”; Ms. Herndon

executed a trust agreement, signed five months after she claimed

the parties had entered into a common law marriage, wherein she

wrote that she “was not married nor a partner in a civil union”; and

Ms. Herndon filled out a USAA life insurance application in

November 2017, making a “true” statement that Mr. Clark was a

“friend”; Ms. Herndon completed a AAA life insurance application in

22
December 2017, referring to Mr. Clark as a “significant other”;1 the

parties did not have a marriage ceremony; and the parties never

celebrated any anniversaries.

¶ 42 To the extent that Ms. Herndon contends that the district

court didn’t make the required findings under section 13-17-103,

we disagree. The court specifically found that she initiated and

continued the action against Mr. Clark notwithstanding the fact

that most of her evidence contradicted her allegation that the

parties entered into a common law marriage when they moved to

Colorado in November 2016. See § 13-17-103(1)(a), (e).

¶ 43 In all, we can’t say that the district court abused its broad

discretion by granting Mr. Clark’s request for attorney fees under

section 13-17-102(2), (4). See D.P.G., ¶ 32.

1 We recognize that, in some circumstances, the failure of parties to

represent themselves as “married” on government, tax, insurance,
banking, or other official documentation isn’t necessarily dispositive
— or even strongly corroborative — of the parties’ intent. For
example, same-sex couples may not have had the opportunity to
label themselves as “married” on such documentation, or a couple
may have mutually chosen to represent themselves as unmarried to
gain a financial advantage. However, no one points to any evidence
in this case that the parties’ marital-status designation on the
various government documents admitted at the hearing was
somehow or for some reason inconsistent with their intent.

23
2. Costs Under Section 13-17-102

¶ 44 We agree with Ms. Herndon, however, that costs aren’t

recoverable under section 13-17-102. See D.P.G., ¶ 37 n.1 (sections

13-17-101 and 13-17-102, C.R.S. 2024, provide only for an award

of attorney fees, not costs). We therefore reverse this portion of the

court’s order.

VI. Ms. Herndon’s Request for Attorney Fees in the District Court
Pursuant to Section 14-10-119

¶ 45 Ms. Herndon asserts that the district court erred by denying

her request for attorney fees under section 14-10-119. Under

section 14-10-119,

[t]he court from time to time, after considering
the financial resources of both parties, may
order a party to pay a reasonable amount for
the cost to the other party of maintaining or
defending any proceeding [under title 14] and
for attorney fees . . . , including sums for legal
services rendered and costs incurred prior to
the commencement of the proceeding or after
entry of judgment.

(Emphasis added.)

¶ 46 The statute doesn’t prohibit a prospective fee award. See In re

Marriage of Rose, 134 P.3d 559, 562-63 (Colo. App. 2006). But the

advancement of prospective fees “should be made cautiously and

24
[is] to be based upon some viable evidentiary basis.” Id. at 563

(citation omitted).

¶ 47 The district court has broad discretion in deciding whether to

award fees under section 14-10-119, and its decision won’t be

disturbed on appeal absent an abuse of discretion. In re Marriage of

Aragon, 2019 COA 76, ¶ 8.

¶ 48 In August 2022, Ms. Herndon moved for a temporary order

requiring Mr. Clark to pay her $20,000 for “retrospective and

prospective attorney fees” under section 14-10-119. The district

court delayed ruling on the motion until after a “decision is made as

to the existence of a marriage.” During the hearing, Ms. Herndon

reiterated her request for section 14-10-119 attorney fees and

testified that the parties’ financial circumstances were disparate.

The court again reserved the issue.

¶ 49 Contrary to Ms. Herndon’s view, her motion for section 14-10-

119 attorney fees was denied, either by implication, see Bd. of Cnty.

Comm’rs v. Kobobel, 74 P.3d 401, 404 (Colo. App. 2002) (when a

district court doesn’t rule on a motion, it may be considered

implicitly denied), or as part of the court’s express dismissal of her

dissolution petition.

25
¶ 50 To be sure, in deciding a request for section 14-10-119

attorney fees, specific findings are necessary so that we may

ascertain the basis for the ruling. See In re Marriage of McNamara,

962 P.2d 330, 334 (Colo. App. 1998) (remanding for lack of written

findings of fact with respect to denial of attorney fees under section

14-10-119); In re Marriage of Pilcher, 628 P.2d 126, 128 (Colo. App.

1980) (same). But here we aren’t left searching for a rationale for

the court’s denial of Ms. Herndon’s request; in awarding Mr. Clark

his fees pursuant to section 13-17-102, the court implicitly found

that by initiating and maintaining a substantially frivolous and

vexatious action, the attorney fees she sought to recover pursuant

to section 14-10-119 were necessarily unreasonable. That implicit

finding is amply supported by the record for the reasons discussed

in Part V.B.1 above. Thus, it wasn’t an abuse of discretion for the

court to decline to award Ms. Herndon any portion of her attorney

fees pursuant to section 14-10-119. Accordingly, we won’t disturb

the district court’s refusal to award Ms. Herndon any attorney fees

for the proceedings in the district court.

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VII. Appellate Attorney Fees

¶ 51 Finally, both parties request an award of their attorney fees

incurred on appeal, albeit on different grounds.

¶ 52 Mr. Clark argues that he is entitled to an award of his

appellate attorney fees on the grounds that Ms. Herndon’s appeal is

frivolous. We aren’t persuaded. First, Ms. Herndon did prevail on

one issue — the district court’s award of costs pursuant section 13-

17-102. Second, although we weren’t persuaded by the vast

majority of the contentions Ms. Herndon advanced on appeal, we

also aren’t persuaded that her appeal is frivolous. See In re Estate

of Shimizu, 2016 COA 163, ¶ 34 (declining to award appellate

attorney fees to a party who successfully defended a section 13-17-

102 attorneys fee award because the contentions on appeal weren’t

“so lacking in substance as to be frivolous”).

¶ 53 Ms. Herndon seeks an award of her appellate attorney fees

under section 14-10-119 based on the parties’ disparate financial

circumstances. Just because we affirmed a denial of those fees in

the district court doesn’t foreclose the prospect that they may be

warranted on appeal. But because the district court is in a superior

position to consider her request (including evaluating the parties’

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relative financial circumstances), we direct the district court on

remand to consider her request applying the standard required by

section 14-10-119. See C.A.R. 39.1.

VIII. Disposition

¶ 54 We affirm the district court’s judgment dismissing the petition

and its finding that a common law marriage didn’t exist. With

respect to the district court’s order awarding Mr. Clark his attorney

fees and costs pursuant to section 13-17-102, we affirm the court’s

award of attorney fees but reverse the award of costs. On remand,

the district court is to consider Ms. Herndon’s section 14-10-119

appellate attorney fees request.

JUDGE YUN and JUDGE LUM concur.

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