     The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                  SUMMARY
                                                            October 10, 2019
                               2019COA153

No. 2018CA915 In the Interest of NJC — Family Law —
Juvenile Court — Uniform Parentage Act — Modification of
Child Support — Deferred Compensation

     A division of the court of appeals holds that deferred

compensation in a nonqualified retirement plan is not income for

child support purposes under the Uniform Parentage Act, section

19-4-101 to 130, C.R.S. 2019. Applying the definition of “income”

in section 14-10-115 of the Uniform Dissolution of Marriage Act,

the division concludes that the father’s deferred compensation is

not income because he did not have the ability to use it to pay his

expenses, including child support.

     The division also concludes that the magistrate did not abuse

his discretion in determining not to reallocate to father ninety

percent of the costs paid for parental responsibilities evaluations.

In addition, the division affirms the trial court’s decision not to
reconsider mother’s request for attorney fees paid by maternal

grandfather that were incurred in connection with father’s motion

to modify parenting time.
COLORADO COURT OF APPEALS                                         2019COA153


Court of Appeals No. 18CA0915
Douglas County District Court No. 12JV77
Honorable Natalie T. Chase, Judge


In re the Parental Responsibilities Concerning N.J.C., a Child,

and Concerning N.E.,

Appellant,

and

V.J.C.,

Appellee.


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

                                   Division I
                         Opinion by JUDGE TAUBMAN
                         Freyre and Pawar, JJ., concur

                         Announced October 10, 2019


Fairfield and Woods, P.C., Lee Katherine Goldstein, Michael R. McCurdy,
Denver, Colorado, for Appellant

James J. Keil, Jr., Denver, Colorado, for Appellee
¶1    As a matter of first impression, N.E. (mother) urges us to

 conclude that deferred compensation in a nonqualified plan 1 is

 income for child support purposes if it is being earned during a

 period when a parent is obligated to pay child support. We disagree

 with her arguments, and therefore affirm the juvenile court’s order

 adopting the magistrate’s order modifying mother’s child support

 award from V.J.C. (father). We also affirm the juvenile court’s order

 denying mother’s request to reallocate costs paid for parental

 responsibilities evaluations (PRE).

¶2    However, we reverse the portion of the juvenile court’s order

 denying mother’s request for attorney fees, and we remand the case

 to the juvenile court for it to determine the amount. We further

 remand for the juvenile court to consider mother’s request for

 appellate attorney fees under section 19-4-117, C.R.S. 2019.




 1 A “nonqualified deferred-compensation plan” is “[a]n unfunded
 compensation arrangement, frequently offered to executives, that
 defers compensation and the recognition of its accompanying
 taxable income to a later date. . . . It is termed ‘nonqualified’
 because it does not qualify for favorable tax treatment” under the
 Internal Revenue Code. Black’s Law Dictionary 663 (11th ed.
 2019).

                                   1
                    I. Appellate Standard of Review

¶3    This case arises out of the Uniform Parentage Act (UPA),

 sections 19-4-101 to -130, C.R.S. 2019. Magistrates may preside

 over UPA actions, but parties have the right to seek a judge’s review

 of the magistrate’s findings and rulings. § 19-1-108(1), (4)(b), (5.5),

 C.R.S. 2019.

¶4    “We defer to the magistrate’s and district courts’ findings of

 fact if they are supported by the evidence and we review

 conclusions of law de novo.” In re B.J., 242 P.3d 1128, 1132 (Colo.

 2010).

                II. Father’s Deferred Compensation Plan

                           A. Relevant Facts

¶5    Mother and father are the unmarried parents of one child,

 N.J.C. In 2013, and as part of the initial paternity proceeding in

 this case, father’s child support calculation was based on the salary

 he earned working as a cardiologist for his own medical practice.

¶6    In 2016, father closed his practice and accepted a job with

 Healthy Connections, Inc. (HCI), a health care center providing

 medical, dental, and outreach services to impoverished

 communities. Believing that father’s income had gone up at his


                                    2
 new job, mother moved to increase child support. Father, however,

 responded that his income had actually decreased.

¶7    Evidence presented at a hearing on mother’s motion showed

 that father’s compensation package with HCI consisted of a

 $150,000 annual salary and $200,000 of yearly deferred

 compensation in a nonqualified plan. Father, who was then

 fifty-two years old, testified that he would only receive the deferred

 compensation after he retired from HCI at age sixty-five. HCI’s

 CEO, his brother, agreed that father “does not receive — physically

 receive $200,000 above his salary,” and he described the deferred

 compensation as “an obligation at a future date and time for

 [father’s] benefit providing that he meets the criteria after his

 retirement.”

¶8    The CEO explained that the deferred compensation plan

 allowed HCI to attract and retain qualified medical doctors, like

 father, that it could not otherwise afford. He testified that half of

 the ten to thirteen medical doctors on HCI’s staff were employed

 under the deferred compensation plan. According to the CEO,

 while each plan was tailored to the employee, they all had the same

 payout structure — the employee had to retire from HCI at a certain


                                    3
  age before he or she would receive any deferred funds, which would

  then be paid over ten years. As of the hearing date, the CEO said

  that the deferred compensation plan was unfunded; in fact, the

  CEO stated there was not even an account established with which

  to pay deferred compensation.

¶9     Regarding father’s specific deferred compensation plan, the

  CEO submitted a letter to father’s counsel (admitted at the hearing

  as Exhibit A) detailing that father had no control over the funds or

  the plan; the deferred amounts belonged to HCI and were not

  protected in case of insolvency or creditor claims; the deferred

  amounts were subject to forfeiture if father was fired, quit, or

  retired before age sixty-five; father would not be fully vested until he

  worked at HCI for five years; and the funds were not taxable until

  received by the employee.

¶ 10   Arguing that it was significant that father earned the money,

  even if he did not actually receive it, mother asked the magistrate to

  include the deferred compensation as income to father. The

  magistrate declined to do so, based on the restrictive provisions of

  father’s plan described above. The magistrate then modified




                                     4
  father’s child support obligation, including in father’s income only

  his salary and nominal dividend and interest income.2

¶ 11   The juvenile court judge adopted the magistrate’s decision not

  to include the deferred compensation, pointing out the magistrate’s

  reasoning that father could not contribute to the plan, had no

  control over the funds, and had no guarantee he would ever receive

  the money.

               B. Deferred Compensation is Not Income

¶ 12   Section 14-10-115, C.R.S. 2019, applies to child support

  obligations established or modified under the UPA. § 19-4-129,

  C.R.S. 2019. We review child support orders for an abuse of

  discretion. In re Marriage of Garrett, 2018 COA 154, ¶ 8, 444 P.3d

  812, 815. However, we review de novo the legal standard applied by

  the court. In re Marriage of Tooker, 2019 COA 83, ¶ 12, 444 P.3d

  856, 859.




  2 The magistrate also found that father’s decision to leave his former
  employment and work with HCI was a good faith career choice and
  was not intended to deprive N.J.C. of child support or unreasonably
  reduce the support available to him.

                                    5
¶ 13   A child support calculation begins with a determination of the

  parties’ combined gross incomes. See § 14-10-115(1)(b)(I), (5)(a). A

  parent’s gross income for child support purposes is “income from

  any source[.]” § 14-10-115(5)(a)(I).

¶ 14   The statute, however, neither specifically includes nor

  excludes “deferred compensation” as gross income available to a

  parent. See id. (nonexclusive list of income included in definition of

  gross income); § 14-10-115(5)(a)(II) (excluding certain income from

  definition of gross income).

¶ 15   No Colorado case has addressed this specific issue. Thus, we

  look to other Colorado appellate decisions addressing whether

  financial benefits or contributions not specifically defined by the

  statute are income for child support purposes. We then consider

  similar decisions from other states.

¶ 16   In re Marriage of Mugge, 66 P.3d 207, 210 (Colo. App. 2003),

  addressed whether an employer’s pension contributions, not yet

  distributed to the employee, were gross income for child support

  purposes. The division decided that such pension contributions

  were not because “the employers determined the amounts of their

  pension plan contributions and the employees did not have the


                                     6
  option of directly receiving the amounts as wages.” Id. at 211.

  Until distribution of the funds actually occurred, the division

  concluded, the employer contribution was not income. Id.

¶ 17   The division in In re Marriage of Davis, 252 P.3d 530, 534

  (Colo. App. 2011), similarly concluded that employer contributions

  to a parent’s 401(k) and health insurance plans were not income for

  child support purposes. Like Mugge, the division reasoned that

  unrealized employer contributions are income only if the employee

  has the option to receive the contributions as wages and use them

  for general living expenses. Id. at 535.

¶ 18   Most recently, the division in Tooker, ¶¶ 1-2, 444 P.3d at 858,

  considered whether tuition assistance and a book stipend paid

  through a GI Bill were income for child support and maintenance

  purposes. The district court concluded that the benefits were not

  income, since they were paid directly to the college and the parent

  could not use them for daily living or discretionary expenses. Id. at

  ¶¶ 9-10, 444 P.3d at 859.

¶ 19   In reviewing the district court’s decision, the Tooker division

  found Davis and Mugge “instructive”:




                                    7
               The principle that emerges from these cases is
               that, to be included as gross income for
               purposes of maintenance and child support,
               benefits received by an individual (if not
               otherwise excluded from the definition of gross
               income in the maintenance and child support
               statutes) must be available for the individual’s
               discretionary use or to reduce daily living
               expenses.

  Tooker, ¶ 18, 444 P.3d at 860.

¶ 20   Following that principle, the division upheld the district

  court’s conclusion that the tuition and book stipend benefits were

  not income because the parent could not receive the benefits

  personally or use them to pay expenses. Id. at ¶¶ 19-21, 444 P.3d

  at 860-61.

¶ 21   Last, the supreme court in In re A.M.D., 78 P.3d 741, 745

  (Colo. 2003), discussed whether all or only a portion of the principal

  of a monetary inheritance should be included in gross income for

  child support purposes. The A.M.D. court directed the district court

  to examine the recipient’s use of the inheritance to determine how

  much should be included as income for child support. Id. at 746.

  It held that the principal was income only “[i]f the recipient uses the

  principal as a source of income either to meet existing living

  expenses or to increase the recipient’s standard of living.” Id.


                                      8
¶ 22   We agree with the principle arising from A.M.D., Tooker, Davis,

  and Mugge, and conclude that deferred compensation is income

  only if the parent has the ability to use it to pay his or her

  expenses, including child support. See A.M.D., 78 P.3d at 746;

  Tooker, ¶¶ 18, 20-21, 444 P.3d at 860-61; Davis, 252 P.3d at 535;

  Mugge, 66 P.3d at 211.

¶ 23   This decision accords with decisions made in other states.

  See, e.g., Severn v. Severn, 567 S.W.3d 246, 262-63 (Mo. Ct. App.

  2019) (Deferred compensation is not income because there is “no

  discernible way in which the contributions made to the deferred

  compensation plan would be available to [the parent] in satisfying

  any child support obligation.”); Jordan v. Brackin, 992 P.2d 1096,

  1100 (Wyo. 1999) (income does not include mandatory deferred

  compensation that is not available until death, termination of

  employment, or unforeseeable emergency because it does not

  provide the parent with money); cf. Milinovich v. Womack, 343 P.3d

  924, 926, 930 (Ariz. Ct. App. 2015) (monies withdrawn from

  investment account funded with deferred compensation was income

  because the account was established with the specific purpose of

  using the deferred compensation to pay day-to-day living expenses).


                                     9
¶ 24   Turning to father’s deferred compensation plan, we conclude

  that it is not income. Father does not voluntarily contribute to the

  plan and he has no control over the funds or the plan’s

  administration. He does not currently receive money from the plan

  and may not invade the account, when it is funded, to withdraw

  funds as he chooses. Father will receive the deferred compensation

  funds only after he retires from HCI at age sixty-five and, even then,

  there is no guarantee father will receive any of the funds. Because

  father only has a “promise” to receive the deferred compensation

  when he turns sixty-five, which in no way assists him in paying his

  expenses at the present time, father’s deferred compensation plan is

  not income.

¶ 25   We have reviewed the out-of-state authority cited by mother to

  support her argument that deferred compensation should be

  considered income for child support purposes. However, we find

  those cases factually distinguishable, because they involve

  employees who voluntarily chose to defer or redirect their receipt of

  income. See Jones v. Jones, 883 So. 2d 207, 211-12 (Ala. Civ. App.

  2003) (payments parent chose to redirect to health insurance

  premiums instead of to his paycheck); Ennis v. Venable, 689 So. 2d


                                    10
  165, 166 (Ala. Civ. App. 1996) (wages voluntarily deferred to a

  retirement account); Bergstrom v. Lindback, 779 P.2d 1235, 1237

  (Alaska 1989) (amounts voluntarily deposited into a deferred

  income compensation account); Leineweber v. Leineweber, 102 A.3d

  827, 833 (Md. Ct. Spec. App. 2014) (same); Marsh v. Fieramusca,

  569 N.Y.S.2d 1012, 1014-15 (Fam. Ct. 1991) (amounts voluntarily

  deposited in a retirement plan instead of taken as wages); Murray v.

  Murray, 716 N.E.2d 288, 293-94 (Ohio Ct. App. 1999) (concluding

  that unexercised stock options were gross income because the

  recipient had complete discretion to exercise the options every

  twelve months and realize the income). Unlike in these cases,

  father did not receive any income that he could defer.

¶ 26   We are also not persuaded by mother’s argument that

  excluding deferred compensation from a parent’s gross income will

  encourage a parent to manipulate his or her salary in order to shirk

  a child support obligation. While that may occur in some cases, the

  magistrate did not conclude that this is what happened here.

¶ 27   True, HCI’s CEO is father’s brother. Even so, the record

  shows that HCI’s board of directors decided to hire a qualified

  cardiologist at about the same time that changes in the health care


                                   11
  system prompted father to shut down his medical practice. Father

  was one of at least five medical doctors employed under HCI’s

  deferred compensation plan, and there is no indication that he

  specifically asked to be part of the plan. Nor is there evidence that

  father accepted the deferred compensation plan in lieu of receiving

  a higher salary or receiving some other immediately payable benefit

  from HCI.

¶ 28   We are also unpersuaded by mother’s argument that any

  decision to exclude deferred compensation as income will unfairly

  deprive children of the support to which they are entitled. The

  legislature has expressed an intention that child support orders be

  “subject to the ability of parents to pay[.]” § 14-10-115(1)(b)(I).

  Calculating child support based on a source of money that a parent

  does not now, and may never, receive would frustrate that

  intention.

¶ 29   Accordingly, because father’s deferred compensation is not

  income, the magistrate correctly excluded it from father’s gross

  income when modifying child support. Because mother does not

  raise any other challenges to the child support modification, we




                                     12
  affirm that portion of the juvenile court’s order upholding the

  magistrate’s child support modification.

       III. Attorney Fees and Costs Requested in Connection With the
                     Parenting Time Modification Hearing

¶ 30     Mother contends that it was an abuse of the magistrate’s

  discretion not to reallocate to father 90% of the PRE costs and to

  refuse to consider her request for attorney fees arising in

  connection with father’s motion to modify parenting time. We

  disagree.

                              A. Background

¶ 31     Father sought to increase his parenting time in 2015. On

  mother’s motions, the magistrate ordered a PRE and supplemental

  PRE to address the disputed parenting time issues. Before the

  parenting time hearing, the magistrate issued the following order:

              [T]he parties must file a JOINT Trial
              Management Certificate (JTMC) in compliance
              with C.R.C.P. 16.2(h), which will include each
              party’s position on every issue for which the
              parties are seeking a ruling. Failure to include
              an issue in the JTMC may preclude that issue
              from being heard.

              ....

              The judge will read the JTMC prior to the
              hearing and the JTMC will be your Opening


                                     13
             Statement. The Court should be able to fully
             understand your client’s position on issues by
             reading the JTMC.

¶ 32   The parties’ JTMC averred that the only disputed issue was

  father’s request to increase parenting time. Under that part of the

  JTMC alerting the court to “Other Matters,” the parties wrote

  “None.” The parties stated that they did not exchange sworn

  financial affidavits because “there are no financial issues presently

  before this [c]ourt.”

¶ 33   During the parenting time hearing, the parties and magistrate

  decided to postpone issues concerning “all financial matters” to a

  future hearing. The magistrate noted in her minute order that she

  “retains and reserves jurisdiction to address reallocation of PRE

  costs/fees once financial affidavits have been updated.”

¶ 34   After the magistrate issued her parenting time modification

  order, mother moved to modify child support (the same motion

  referenced in Part II.A, above). In that motion, mother asked the

  magistrate to reallocate to father the costs she paid for the PREs

  and to award her the attorney fees and costs she “incurred in this

  matter.” The magistrate prohibited mother from raising at the child




                                    14
  support hearing any attorney fees request relating to the parenting

  time hearing.

¶ 35   Mother again raised her requests for fees and costs arising

  from the parenting time hearing in the JTMC filed before the child

  support hearing. She argued that the parties had unequivocally

  agreed during the parenting time hearing to postpone “all” financial

  issues, which included her attorney fees and PRE reallocation

  requests.

¶ 36   Once more, the magistrate declined to revisit the issue of

  attorney fees from the parenting time hearing at the child support

  hearing. The magistrate then denied mother’s request to reallocate

  the PRE costs to father. The juvenile court upheld these findings

  and conclusions on review.

              B. The Magistrate Did Not Abuse Her Discretion

¶ 37   We address that part of mother’s argument concerning the

  reallocation of PRE costs first.

¶ 38   Other than state that the magistrate should have reallocated

  the PRE costs, mother’s opening brief analyzes only the issue of

  whether the magistrate erred by refusing to reconsider her attorney

  fees request. Absent any discussion concerning the PRE fees


                                     15
  reallocation, we deem the argument abandoned and decline to

  consider it. See In re Marriage of Marson, 929 P.2d 51, 54 (Colo.

  App. 1996); see also People v. Simpson, 93 P.3d 551, 555 (Colo.

  App. 2003) (reviewing court will not consider bald legal proposition

  presented without argument or development).

¶ 39   Turning to the attorney fees argument, we discern no abuse of

  discretion in the magistrate’s refusal at the child support hearing to

  consider mother’s request for attorney fees arising in connection

  with the parenting time hearing.

¶ 40   The magistrate ordered the parties to comply with C.R.C.P.

  16.2(h) and file a JTMC containing “every issue for which the

  parties are seeking a ruling.” (Emphasis added.) See C.R.C.P.

  16.2(a) (the Rule 16.2 case management procedures applicable to

  domestic relations proceedings may govern juvenile or paternity

  cases if the court so orders). Mother did not comply with that order

  by specifying that she sought an award of attorney fees in

  connection with the parenting time hearing. Thus, we see no abuse

  of discretion in the magistrate’s refusal to consider the issue at a

  later hearing. See In re Marriage of Cardona, 321 P.3d 518, 527

  (Colo. App. 2010) (courts have considerable discretion to impose


                                     16
  appropriate sanctions for noncompliance with C.R.C.P. 16.2), aff’d

  on other grounds, 2014 CO 3.

¶ 41   Mother does not convince us that the parties otherwise agreed

  to postpone this issue to a later date. The record on this issue is

  limited to a transcript excerpt from the parenting time hearing and

  the magistrate’s minute order. To be sure, the magistrate’s written

  minute order specified reserving jurisdiction over “PRE costs/fees.”

  Read together, they show only a discussion about the PRE fees and

  costs and father’s anticipated motion to modify child support.

  There is no reference to attorney fees.

       IV. Attorney Fees and Costs Incurred in Connection With
                      the Child Support Hearing

¶ 42   Mother contends that the magistrate abused her discretion by

  requiring each party to pay his or her own attorney fees arising in

  connection with her motion to modify child support. We disagree.

¶ 43   Under section 19-4-117, the court shall order reasonable fees

  of counsel to be paid by the parties in proportions and at times

  determined by the court. We will not disturb a court’s attorney fees

  determination under this section unless it clearly abuses its

  discretion. W.C. in Interest of A.M.K., 907 P.2d 719, 723 (Colo. App.



                                    17
  1995). “A juvenile court abuses its discretion ‘when its decision is

  manifestly arbitrary, unreasonable, or unfair, or when it misapplies

  the law.’” People in Interest of A.N-B., 2019 COA 46, ¶ 9, 440 P.3d

  1272, 1276 (citation omitted).

¶ 44   Section 19-4-117 is silent as to what factors the juvenile court

  may consider when addressing an attorney fees request under this

  section. Cf. § 14-10-119, C.R.S. 2019 (requiring court to consider

  “the financial resources of both parties”). However, the parties’

  finances, the protracted nature of litigation, and the high costs of

  fees resulting from their “ceaseless arguments” may be relevant

  considerations. See In Interest of D.R.V., 885 P.2d 351, 354 (Colo.

  App. 1994); see also S.F.E. in Interest of T.I.E., 981 P.2d 642, 650

  (Colo. App. 1998).

¶ 45   The magistrate here looked at these factors. She made

  findings about the parties’ financial circumstances, including

  father’s higher income but also mother’s (1) failure to “make any

  reasonable effort to obtain full time gainful employment”; (2) ability

  to earn at least a $3000 monthly income; (3) receipt of $2184

  monthly in cash gifts, interest and dividends, and rental income;

  and (4) being “voluntarily support[ed]” by her father (maternal


                                    18
  grandfather) “to the extent that she cannot or will not meet her own

  financial needs.” As to this last factor, the magistrate further found

  that maternal grandfather had paid $16,000 toward mother’s credit

  card bills and more than $512,000 of her attorney fees. The

  magistrate also found that both parties had “over litigated and

  under resolved the post decree issues in this case and have

  incurred excessive amounts of attorney’s fees and costs in doing

  so.”

¶ 46     These findings sufficiently support the magistrate’s decision

  for both parties to bear their own fees. The order is not manifestly

  arbitrary, unreasonable, or unfair, and, therefore, we affirm it on

  review. See W.C., 907 P.2d at 723.

¶ 47     Insofar as mother argues it, nothing in section 19-4-117

  prohibited the magistrate from considering maternal grandfather’s

  financial contributions. Cf. Davis, 252 P.3d at 538 (allowing court

  to consider wife’s new husband’s financial contributions to wife’s

  living expenses when assessing her economic circumstances under

  section 14-10-119).

¶ 48     Accordingly, we reject mother’s argument that the magistrate

  issued her order “in the complete absence of any information about


                                     19
  [maternal grand]father’s ability to pay these amounts.” Any fault in

  this regard lay at mother’s feet.

¶ 49   Despite the apportionment of fees being a disputed issue for

  the child support hearing, and knowing that father specifically

  objected to paying mother’s fees because maternal grandfather had

  already paid them, mother chose not to call maternal grandfather

  as a witness at the hearing. If mother wanted the magistrate to

  consider maternal grandfather’s financial ability to pay her attorney

  fees, she should have presented such evidence to the magistrate.

  See In re Marriage of Krejci, 2013 COA 6, ¶ 23 (parties must present

  relevant evidence to the court, and their failure to do so does not

  provide grounds for reversal); see also In re Marriage of Eisenhuth,

  976 P.2d 896, 901 (Colo. App. 1999) (the court is required to

  consider the evidence presented to it; it does not act as a surrogate

  attorney).

¶ 50   We reject mother’s argument that by failing to make father pay

  for her attorney fees, the magistrate was perpetuating the parties’

  financial disparity. Section 19-4-117 is not intended to equalize the

  parties’ financial status. Cf. In re Marriage of Anthony-Guillar, 207

  P.3d 934, 944 (Colo. App. 2009) (the intention of an attorney fees


                                      20
  award under section 14-10-119 is to equalize the parties’ financial

  status). Rather, the section provides that “The court shall order

  reasonable fees of counsel . . . and other costs of the action . . . to

  be paid by the parties in proportions and at times determined by

  the court.” § 19-4-117. In awarding attorney fees, the court may

  consider the existing factual circumstances, like the parties’

  finances, the protracted nature of litigation, and the high cost of

  fees. See In Interest of D.R.V., 885 P.2d 351, 354 (Colo. App. 1994).

¶ 51   Yet even if the intent of the section was to equalize the parties’

  financial status, an award of attorney fees payable from father to

  maternal grandfather in no way fosters the objective of ensuring

  financial equality between father and mother, especially given

  mother’s testimony that she did not intend to repay maternal

  grandfather for his payment of attorney fees on her behalf. See In

  re Marriage of Benjamin, 740 P.2d 532, 533 (Colo. App. 1987)

  (awarding attorney fees to deceased wife’s attorney does not

  equalize the parties’ status).

¶ 52   Thus, we conclude that under section 19-4-117, mother is

  entitled to attorney fees, and we remand to the trial court to

  determine the amount.


                                     21
¶ 53   Finally, we decline to consider the argument raised in a

  footnote in the reply brief that the magistrate erred by failing to

  reallocate the PRE costs based on the parties’ assets. See Simpson,

  93 P.3d at 555 (declining to consider arguments not raised until the

  reply brief). We are unpersuaded by mother’s statement (also in the

  footnote) that she “cover[ed]” this argument in the opening brief,

  because nothing in the opening brief supports this statement. The

  argument summary, the argument heading, and the argument itself

  discuss only the apportionment of attorney fees following the child

  support hearing. See id. (refusing to consider contention presented

  in a footnote that was not set forth in the summary of argument or

  as an issue on appeal in the opening brief as required by C.A.R.

  28(a)). In contrast, mother’s prior argument (Part III, above) raised

  both the attorney fees and PRE issues arising from the parenting

  time hearing (even if we ultimately deemed the PRE argument

  abandoned).

                       V. Appellate Attorney Fees

¶ 54   Mother requests an award of her appellate attorney fees under

  section 19-4-117. Although we recognize father’s objection that

  mother will continue to litigate as long as she is “bankrolled” by


                                    22
  maternal grandfather, we conclude that mother is entitled to

  appellate attorney fees and remand to the juvenile court to

  determine the amount, if any. See C.A.R. 39.1; § 19-4-117.

  However, we note that she is entitled only to those attorney fees

  that she paid. Thus, on remand, the juvenile court should consider

  whether mother’s appellate attorney fees have been or will be paid

  by maternal grandfather or any other third party.

                             VI. Conclusion

¶ 55   The order is affirmed, and the case is remanded to the juvenile

  court for consideration of mother’s appellate attorney fees request.

       JUDGE FREYRE and JUDGE PAWAR concur.




                                   23
