     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
                                                         September 20, 2018

                               2018COA143

No. 17CA1295, In re Marriage of Durie — Civil Procedure —
Court Facilitated Management of Domestic Relations Cases —
Disclosures

     A division of the court of appeals considers whether the

district court erred in granting husband’s motion to dismiss wife’s

motion to reopen the division of marital property under C.R.C.P.

16.2(e)(10). Following In re Marriage of Runge, 2018 COA 23M, 415

P.3d 884, the division concludes that C.R.C.P. 12(b)(5) and the

“plausibility” standard set forth in Warne v. Hall, 2016 CO 50, 373

P.3d 588, do not apply to a Rule 16.2(e)(10) motion.

     The division also concludes, as matters of first impression,

that a moving party may make allegations on information and belief

in a Rule 16.2(e)(10) motion and that such party may be permitted

to undertake discovery to support his or her motion.
     Accordingly, the division reverses the district court’s order and

remands the case with directions.
COLORADO COURT OF APPEALS                                       2018COA143


Court of Appeals No. 17CA1295
Douglas County District Court No. 14DR30238
Honorable Michael Spear, Judge


In re the Marriage of

Steven R. Durie,

Appellee,

and

Kelly J. Durie, n/k/a Kelly J. Simmerman,

Appellant.


                        ORDER REVERSED AND CASE
                        REMANDED WITH DIRECTIONS

                                    Division I
                         Opinion by JUDGE TAUBMAN
                        Welling and Kapelke*, JJ., concur

                        Announced September 20, 2018


Epstein Patierno, LLP, Steven B. Epstein, Wendy J. Smock, Denver, Colorado,
for Appellee

Stevens, Littman, Biddison, Tharp & Weinberg, LLC, Craig A. Weinberg,
Boulder, Colorado, for Appellant


*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2018.
¶1    What happens when a spouse in a post-dissolution of

 marriage proceeding believes that the other spouse failed to disclose

 facts that materially impacted the valuation of a significant marital

 asset — their business — during negotiations for their separation

 agreement before the entry of the decree? C.R.C.P. 16.2(e)(10)

 provides a mechanism for that spouse to seek to reopen the division

 of marital property if the other spouse made misstatements or

 omissions concerning material assets. However, the rule does not

 address whether such a motion may be countered with a motion to

 dismiss, whether the moving party may make allegations based on

 information and belief, or whether the moving party is entitled to

 undertake limited discovery in support of his or her motion.

¶2    In this case, we follow the division’s opinion in In re Marriage

 of Runge, 2018 COA 23M, 415 P.3d 884, concluding that filing a

 motion to dismiss under C.R.C.P. 12(b)(5) is not proper. We also

 conclude, as matters of first impression, that a moving party may

 make allegations on information and belief and that such party may

 be permitted to undertake discovery to support his or her motion.




                                   1
                              I. Overview

¶3    In this post-dissolution of marriage proceeding between Steven

 R. Durie (husband) and Kelly J. Durie (wife), now known as Kelly J.

 Simmerman, wife appeals the district court’s order dismissing her

 motion to reopen the property division.

¶4    About three years after the district court entered a decree

 incorporating a separation agreement dividing the parties’ marital

 property, wife moved under Rule 16.2(e)(10) to reallocate proceeds

 from husband’s post-decree sale of business assets. In response,

 husband filed a motion to dismiss wife’s motion, which the district

 court granted. Wife appealed.

¶5    Both parties initially focused their arguments on whether the

 district court properly applied Rule 12(b)(5) and the “plausibility”

 standard set forth in Warne v. Hall, 2016 CO 50, 373 P.3d 588.

 After the parties submitted their briefs but before oral argument, a

 division of this court decided Runge, holding that Rule 12(b)(5) and

 the Warne plausibility standard do not apply to a Rule 16.2(e)(10)

 motion.

¶6    Therefore, we asked the parties to address this holding of

 Runge during oral argument, as well as whether wife could allege


                                    2
 facts on information and belief in her motion and whether she was

 entitled to conduct discovery on her motion. Wife’s counsel

 asserted at oral argument (1) that he did not agree with the Runge

 division’s holding and (2) that C.R.C.P. 7(b)(1) provided an

 appropriate standard for determining whether to allow a party to

 proceed on a motion under Rule 16.2(e)(10) by requiring that such a

 motion “state with particularity the grounds therefor, and . . . set

 forth the relief or order sought.” For his part, husband’s counsel

 agreed with the Runge division’s holding, but also argued that Rule

 16.2(e)(10) is essentially an anti-fraud provision, and therefore a

 motion under that rule must comply with C.R.C.P. 9(b), which

 requires that in all pleadings “aver[ring] . . . fraud or mistake, the

 circumstances constituting fraud or mistake shall be stated with

 particularity.” Wife maintained that her motion set forth sufficient

 facts under any standard to warrant discovery, while husband

 urged us to affirm the district court’s order under any of the

 asserted standards.

¶7    We now reverse the district court’s order and remand with

 directions for further proceedings.




                                     3
                             II. Background

¶8     Husband filed for divorce in April 2014. At the parties’

  request, the district court incorporated a separation agreement

  dividing the marital estate in a decree of dissolution issued in

  September 2014. Under the separation agreement, husband

  received the parties’ business interests with an equalization

  payment due to wife for half of the value. In the separation

  agreement, the parties agreed that the total business assets were

  valued at $878,589. A joint appraisal expert had valued the

  business assets at $855,000 investment value and $770,000 fair

  market value as of August 2014. Additionally, wife hired an

  independent expert, who valued the business assets at just under

  $920,000.

¶9     In 2017, wife moved under Rule 16.2(e)(10) and under a

  similarly worded provision of the separation agreement to set aside

  or reopen the property division and reallocate the proceeds from

  husband’s post-decree sale of a portion of the business interests.

¶ 10   Wife alleged in her motion that husband had failed to disclose

  facts that materially impacted the value of the parties’ business

  assets. Specifically, she alleged that in October 2015 — just over a


                                    4
  year after the decree was entered — husband sold a portion of the

  business interests that were allocated to him under the separation

  agreement to a Tennessee company for $6,900,000, over 850%

  more than the parties’ joint expert had valued the total business

  interests.

¶ 11   She further alleged, on information and belief, that husband

  had traveled to Tennessee in May 2014 and had “engaged in

  negotiations to sell a portion of the business” interests prior to the

  parties entering into the separation agreement. Wife claimed that,

               [u]pon information and belief, Husband had
               been in negotiations with [the Tennessee
               purchaser] involving a deal or potential deal to
               sell [the business or a portion thereof] prior to
               the time that the joint expert had performed
               his valuation. Upon information and belief,
               Husband failed to disclose and intentionally
               concealed material facts that impacted the
               value of the parties’ business and the
               valuation performed by [the expert] and/or
               failed to update the information to [the expert]
               or Wife once those negotiations commenced.

¶ 12   Husband moved to dismiss wife’s motion, asserting that she

  had not alleged sufficient facts to trigger Rule 16.2(e)(10). Husband

  admitted that he had sold “some” of the business assets in October

  2015 for $6,900,000 to a Tennessee purchaser. He further



                                       5
  admitted that he had travelled to Tennessee in May 2014, but

  denied that the purpose of the trip was to engage in any

  negotiations. Nevertheless, husband argued that there was no

  basis to reopen the property division because the parties had

  retained a joint valuation expert to appraise their businesses before

  entering into the separation agreement.

¶ 13   Wife responded, arguing that, although husband had not set

  forth a standard for evaluating his motion, the court should treat it

  as one under Rule 12(b)(5). Thus, wife argued that Warne’s

  plausibility standard applied. She asserted that she had stated

  plausible grounds for relief. She also requested attorney fees under

  section 13-17-102, C.R.S. 2017, or, alternatively, under section 14-

  10-119, C.R.S. 2017.

¶ 14   The district court applied the plausibility standard as

  articulated in Warne and Bell Atlantic Corp. v. Twombly, 550 U.S.

  544, 554-56 (2007), and held that wife’s allegations were

  insufficient “to nudge her claim from conceivable to plausible.” It

  therefore granted husband’s motion to dismiss. The district court

  did not address wife’s request for attorney fees.




                                    6
¶ 15   We now consider wife’s appeal in light of Runge and the

  questions addressed at oral arguments.

                               III. Rule 16.2

¶ 16   “[T]he purpose of Rule 16.2 [is] to provide a uniform procedure

  for resolution of all issues in domestic relations cases that reduces

  the negative impact of adversarial litigation wherever possible.”

  C.R.C.P. 16.2(a). See generally In re Marriage of Schelp, 228 P.3d

  151, 155, 157 (Colo. 2010); In re Marriage of Hunt, 2015 COA 58,

  ¶ 9, 353 P.3d 911, 913. To that end, the rule imposes an

  affirmative duty on parties in domestic relations cases to “disclose

  all information that is material to the resolution of the case without

  awaiting inquiry from the other party.” C.R.C.P. 16.2(e)(1).

¶ 17   Specifically, parties in dissolution proceedings must provide

  certain mandatory financial disclosures, which are specified in the

  appendix to the rule, as well as a sworn financial statement with

  supporting schedules, if applicable. See C.R.C.P. 16.2(e)(2) & app.

  form 35.1. The rule also imposes a general duty on parties “to

  provide full disclosure of all material assets and liabilities.”

  C.R.C.P. 16.2(e)(10); see also C.R.C.P. 16.2(e)(1) (imposing on

  parties in domestic relations cases “a duty of full and honest


                                      7
  disclosure of all facts that materially affect their rights and

  interests”).

¶ 18   As relevant here, Rule 16.2(e)(10) provides as follows:

             If the disclosure contains misstatements or
             omissions, the court shall retain jurisdiction
             after the entry of a final decree or judgment for
             a period of 5 years to allocate material assets
             or liabilities, the omission or non-disclosure of
             which materially affects the division of assets
             and liabilities. The provisions of C.R.C.P. 60
             shall not bar a motion by either party to
             allocate such assets or liabilities pursuant to
             this paragraph. This paragraph shall not limit
             other remedies that may be available to a party
             by law.

  This provision serves the important purpose of providing a remedy

  when a party fails to comply with the rigorous disclosure

  requirements of Rule 16.2. See David M. Johnson et al., New Rule

  16.2: A Brave New World, 34 Colo. Law. 101, 106 (Jan. 2005)

  (stating that the provision “gives teeth” to the mandatory disclosure

  requirements). Rule 16.2(e)(10) also “gives equitable powers to the

  court in cases where a material asset or liability has not been

  disclosed.” Id.




                                      8
                          IV. Standard of Review

¶ 19   We review de novo whether the district court applied the

  correct legal standard in ruling on the motions. Freedom Colo. Info.,

  Inc. v. El Paso Cty. Sheriff’s Dep’t, 196 P.3d 892, 897-98 (Colo.

  2008). Similarly, because it raises a question of law, we review de

  novo the district court’s interpretation of the rules of civil

  procedure. City & Cty. of Broomfield v. Farmers Reservoir &

  Irrigation Co., 239 P.3d 1270, 1275 (Colo. 2010).

                               V. Discussion

¶ 20   Wife contends that the district court erred in dismissing her

  Rule 16.2(e)(10) motion to set aside or reopen the property division

  and to allocate the post-decree sale proceeds husband received. We

  agree.

               A. Applicability of Rule 12(b)(5) and Warne

¶ 21   As noted, both parties on appeal addressed whether the

  district court misapplied Rule 12(b)(5) and Warne’s plausibility

  standard. However, their briefing preceded this court’s decision in

  Runge.

¶ 22   As discussed, the majority in Runge “conclude[d] that the

  Warne ‘plausibility’ standard does not apply to the dismissal of a


                                      9
  motion under C.R.C.P. 16.2(e)(10).” Runge, ¶ 3, 415 P.3d at 886.

  The Runge majority reached that conclusion for two reasons. First,

  the husband in Runge did not cite Rule 12(b)(5) in his motion to

  dismiss, and the district court did not rely on Rule 12(b)(5) as

  authority. Id. at ¶ 17, 415 P.3d at 887. Second, and more

  importantly, the wife’s motion under Rule 16.2(e)(10) could not be

  considered a “pleading” under C.R.C.P. 7(a), and Rule 12(b)(5) “by

  its express terms” applies only when a party moves to dismiss a

  claim for relief in a pleading. Id. at ¶ 18, 415 P.3d at 887.

¶ 23   Here, as in Runge, husband did not cite Rule 12(b)(5) as

  authority in his motion to dismiss. In response, wife “presume[d]”

  that husband had relied on Rule 12(b)(5) and argued that her Rule

  16.2(e)(10) motion should not be dismissed. Following wife’s lead,

  the district court characterized husband’s motion as a motion to

  dismiss for failure to state a claim and dismissed wife’s motion. We

  agree with the Runge division that Rule 12(b)(5) and the plausibility

  standard do not apply in determining wife’s motion under Rule

  16.2(e)(10).

¶ 24   We therefore conclude that the district court erred in

  dismissing wife’s motion under that standard.


                                    10
                       B. Applicability of Rule 9(b)

¶ 25   We also reject husband’s contention, raised during oral

  argument in response to our questions, that C.R.C.P. 9(b) applies in

  this context. Rule 9(b) requires that pleadings asserting fraud or

  mistake must allege the circumstances with particularity.1 Rule

  16.2(e)(10) does not refer to fraud, but permits reallocation of

  marital property not disclosed due to “misstatements or omissions.”

  A party could unintentionally misstate or omit a material marital

  asset or liability and, in such a situation, would not engage in

  fraud. See Johnson et al., 34 Colo. Law. at 106 (“Sometimes a

  nondisclosure will be innocent; other times it may be purposeful.

  In either event, the innocent spouse will have the right in the

  domestic relations case to seek the proper remedy within the

  five-year period after the entry of a final decree or judgment.”).

¶ 26   Here, wife alleged intentional nondisclosure on husband’s

  part. In other cases, parties may allege unintentional

  nondisclosure. Thus, contrary to husband’s contention at oral

  argument, not all motions under Rule 16.2(e)(10) will “sound[] in


  1The reference to mistake in C.R.C.P. 9(b) is inapplicable here
  because there is no allegation of mistake.

                                     11
  fraud.” See State Farm Mut. Auto. Ins. Co. v. Parrish, 899 P.2d 285,

  289 (Colo. App. 1994) (construing Rule 9(b) to apply to claims of

  civil conspiracy, intentional misrepresentation, unjust enrichment,

  and theft by deception). While some claims not denominated as

  fraud may be subject to the pleading requirements of Rule 9(b), id.,

  that conclusion does not apply, for the reasons stated, to motions

  filed under Rule 16.2(e)(10). As a result, we conclude that the

  particularity requirement of Rule 9(b) does not apply to motions

  under Rule 16.2(e)(10).

            C. Allegations Based on Information and Belief

¶ 27   The parties disagree as to whether a movant under Rule

  16.2(e)(10) can make allegations based on information and belief.

  C.R.C.P. 8(e)(1) states that “[e]ach averment of a pleading shall be

  simple, concise, and direct. When a pleader is without direct

  knowledge, allegations may be made upon information and belief.”

  Although a motion under Rule 16.2(e)(10) is not a pleading, Runge,

  ¶ 18, 415 P.3d at 887, Rule 8(e)(1) nevertheless states that “[n]o

  technical forms of pleading or motions are required.” (Emphasis

  added.) Thus, we conclude that the specific provision of that rule

  allows a party to make allegations based on information and belief


                                    12
  in motions as well as pleadings, at least in the context of a Rule

  16.2(e)(10) motion.2

¶ 28   That conclusion is bolstered by the plain language of Rule

  16.2(e)(10), which allows the reopening of the property division

  provisions of the permanent orders where there has been a failure

  to disclose “material assets or liabilities” or when a spouse’s

  disclosures regarding an asset contained “misstatements or

  omissions.” A moving party may make allegations based on

  “information and belief,” Rule 16.2(e)(7), because he or she may not

  have complete information about the circumstances of an alleged

  misstatement or omission. Cf. Gray v. Univ. of Colo. Hosp. Auth.,

  2012 COA 113, ¶ 46, 284 P.3d 191, 200 (holding that pleadings

  based on information and belief are permissible, “especially in cases

  in which the information is more accessible to the defendant”

  (quoting Johnson v. Johnson, 385 F.3d 503, 531 n.19 (5th Cir.

  2004))).




  2 We express no opinion as to whether a motion under C.R.C.P.
  16.2(e)(10) containing factual allegations based solely on
  information and belief would be sufficient to satisfy the rule’s
  requirements.

                                    13
¶ 29   Thus, we conclude that wife properly included allegations

  based on information and belief in her motion.

       D. Standard for Consideration of Rule 16.2(e)(10) Motion

¶ 30   Rule 16.2(e)(10) provides no applicable standard for

  determining a motion under the rule. In Runge, the majority did

  not articulate a precise standard, but concluded that the wife’s

  “vague assertions [we]re not sufficient to trigger an allocation of

  omitted or misstated assets under C.R.C.P. 16.2(e)(10).” ¶ 27, 415

  P.3d at 889 (describing wife’s assertions as “suspicions and

  speculations”).

¶ 31   In the absence of any express standard, we conclude that a

  district court must decide whether a former spouse moving under

  Rule 16.2(e)(10) is entitled to relief under the preponderance of the

  evidence standard. See generally § 13-25-127(1), C.R.S. 2017

  (“[T]he burden of proof in any civil action shall be by a

  preponderance of the evidence.”). The moving party bears the

  burden of proof.

¶ 32   In some cases, a moving party’s motion may not allege facts

  sufficient to warrant even limited discovery, a topic we discuss

  below, and the district court in those cases could deny a party’s


                                    14
  motion as insufficient on its face. See C.R.C.P. 121, § 1-15(5)

  (providing that district court can deny motion without a hearing).

  In this circumstance, some motions may be patently insufficient

  and thus warrant no discovery. Cf. § 14-10-122(1)(b), C.R.S. 2017

  (requiring that a court deny a motion for modification of a child

  support order if applying the guidelines would result in “less than a

  ten percent change in the amount of support due per month”); In re

  Balanson, 25 P.3d 28, 36 (Colo. 2001) (concluding that a district

  court’s error in dividing marital property will be deemed harmless if,

  “viewed in the aggregate,” it does not affect a large percentage of the

  marital estate).

¶ 33   We conclude that wife’s allegations here did not enable the

  district court to conclude that her motion was insufficient on its

  face. Wife alleged that husband sold marital property — part of the

  parties’ business — for 850% of its appraised value a little over a

  year after the entry of permanent orders. She further alleged on

  information and belief that husband had begun negotiations to sell

  this part of the business before the entry of permanent orders and

  had failed to disclose such negotiations and possible sale during the




                                    15
  negotiations over their separation agreement. These allegations

  were sufficient to warrant further proceedings on wife’s motion.

¶ 34   Thus, on remand, the district court must determine whether

  wife can prove by a preponderance of the evidence that husband

  omitted facts material to the valuation of their business interests

  during the negotiations for their separation agreement and before

  the entry of the permanent orders. See C.R.C.P. 16.2(e)(1).

                              E. Discovery

¶ 35   We now turn to whether, on remand, wife is entitled to

  undertake discovery in support of her motion. We conclude that

  she is.

¶ 36   Rule 16.2(e)(10) does not expressly permit a party to

  undertake discovery. However, other provisions of Rule 16.2

  indicate that discovery is appropriate in these circumstances.

¶ 37   First, Rule 16.2(a) expressly “govern[s] case management

  in . . . post decree matters.” The rule also “contemplates

  management and facilitation of the case by the court, with the

  disclosure requirements, discovery and hearings tailored to the

  needs of the case.” Similarly, Rule 16.2(b) provides that “[t]he

  parties, counsel and the court shall evaluate each case at all stages


                                    16
  to determine the scheduling of that individual case, as well as the

  resources, disclosures/discovery, and experts necessary to prepare

  the case for resolution or hearing.” (Emphasis added.) Finally,

  Rule 16.2(f)(4) provides that “[t]he court shall grant all reasonable

  requests for additional discovery for good cause as defined in

  C.R.C.P. 26(b)(2)(F).” Thus, Rule 16.2 authorizes discovery where

  appropriate, including in post-decree matters such as proceedings

  initiated under Rule 16.2(e)(10).

¶ 38   In addition, Rule 26(b)(1) provides that generally parties may

  obtain discovery regarding any matter that is not privileged and is

  relevant to the claim or defense of any party and proportional to the

  needs of the case. Therefore, the notion of proportionality allows

  the district court to regulate discovery so it is not burdensome or

  undertaken as part of a fishing expedition. See In re Marriage of

  Gromicko, 2017 CO 1, ¶¶ 27-41, 387 P.3d 58, 62-64 (discussing

  importance of tailoring discovery in domestic relations cases); see

  also C.R.C.P. 16.2(a) (noting that the district court can “tailor[]

  [discovery] to the needs of the case”). Specifically, the Gromicko

  court held that the district court must take an active role in

  managing discovery and “should, at a minimum, consider the


                                      17
  cost-benefit and proportionality factors set forth in C.R.C.P.

  26(b)(2)(F).” ¶ 30, 387 P.3d at 63.

¶ 39   Finally, we note that the supreme court in other contexts has

  expressed the importance of liberal interpretation of discovery rules

  to effectuate their truth-seeking purpose. See Antero Res. Corp. v.

  Strudley, 2015 CO 26, ¶ 26, 347 P.3d 149, 157 (concluding that the

  Colorado Rules of Civil Procedure do not “authorize a trial court to

  condition discovery upon the plaintiff establishing a prima facie

  case”).

¶ 40   We consider discovery especially important in the context of

  Rule 16.2(e)(10), where the movant spouse is unlikely to possess

  relevant information precisely because he or she is claiming that

  the other party failed to disclose material assets or liabilities. See

  Runge, ¶ 64, 415 P.3d at 894 (Taubman, J., dissenting) (noting

  that, in most cases, “discovery may be necessary to establish

  whether an initial disclosure of assets and liabilities contained

  material misstatements or omissions”).

¶ 41   We acknowledge that the majority in Runge stated that Rule

  16.2(e)(10) “does [not] provide for post-decree discovery into an

  ex-spouse’s assets.” ¶ 40, 415 P.3d at 891. In our view, that


                                     18
  language is dicta because the Runge majority determined that the

  wife’s motion in that case was insufficient to trigger the rule, and,

  therefore, the majority’s position on discovery was not essential to

  its determination. In any event, to the extent the Runge majority

  looked only to Rule 16.2(e)(10), we conclude that the other

  provisions of Rule 16.2 noted above support the right of a movant

  under Rule 16.2(e)(10) to conduct discovery in a manner regulated

  by the district court so that it is not burdensome.

¶ 42   Here, wife alleged and husband admitted that he sold part of

  the business for $6.9 million, about 850% of its valuation at the

  time of the decree. Wife also alleged on information and belief that

  husband had begun negotiations to sell the business —

  unbeknownst to her, the joint appraisal expert, or her independent

  expert — prior to the entry of permanent orders.

¶ 43   In keeping with the principle of proportionality expressed in

  Rules 16.2 and 26, the district court may, on remand, appropriately

  limit wife’s discovery to the issue of whether husband engaged in

  negotiations to sell the business assets before the parties entered

  into the separation agreement. Thus, contrary to husband’s




                                    19
  arguments, allowing wife to engage in limited discovery should not

  be burdensome for husband.

¶ 44   Accordingly, we conclude that wife made sufficient allegations

  to warrant discovery on the specific issue of whether husband

  engaged in negotiations to sell business assets prior to the entry of

  permanent orders. We express no opinion as to whether wife will

  establish facts supporting her motion via discovery. However, we

  conclude that she should be afforded the opportunity to do so.

                            VI. Attorney Fees

¶ 45   Wife sought attorney fees in the district court under section

  13-17-102 for responding to husband’s motion to dismiss, and

  prospectively under section 14-10-119 in order to litigate her Rule

  16.2(e)(10) motion. Based on its dismissal of wife’s motion, the

  district court did not rule on her request for attorney fees under

  either provision.

¶ 46   We conclude that wife is entitled to seek attorney fees under

  section 14-10-119 on remand. Section 14-10-119 provides that,

  “after considering the financial resources of both parties,” a court

  may order one party “to pay a reasonable amount for the cost to the

  other party of maintaining or defending any proceeding” under


                                    20
  Article 14, including proceedings after entry of judgment under

  Article 14. A motion filed under Rule 16.2(e)(10) is a proceeding

  under Article 14. Thus, regardless of the district court’s ruling on

  the merits of wife’s motion, wife is entitled to seek attorney fees

  under this statute based on the district court’s consideration of the

  parties’ financial resources. Similarly, wife may seek prospective

  attorney fees under section 14-10-119 and In re Marriage of Rose,

  134 P.3d 559, 562-63 (Colo. App. 2006). The determination of

  prospective attorney fees under that section lies within “the sound

  exercise” of the district court’s discretion on remand. Rose, 134

  P.3d at 562.

¶ 47   However, we conclude that wife is not entitled to attorney fees

  under section 13-17-102. Even though she has prevailed on

  appeal, this case has presented issues of first impression. Thus,

  husband’s motion to dismiss did not lack substantial justification.

                 VII. Appellate Attorney Fees and Costs

¶ 48   Both parties request appellate attorney fees and costs. As she

  did in the district court, wife requests her fees under sections 13-

  17-102 and 14-10-119. Husband requests his fees under section




                                     21
  13-17-102, arguing that wife abused process in bringing this

  appeal.

¶ 49   We deny both parties’ requests under section 13-17-102. As

  noted above, this appeal has raised novel issues of law in Colorado,

  and we therefore cannot say that either party brought or defended

  an action that “lacked substantial justification.” § 13-17-102(2).

¶ 50   As for wife’s claim under section 14-10-119, we conclude that

  she is entitled to seek her appellate attorney fees on remand. Based

  on the district court’s assessment of the financial resources of both

  parties, it may elect in its discretion to award wife appellate

  attorney fees on the basis of section 14-10-119.

                             VIII. Conclusion

¶ 51   Accordingly, the order is reversed and the case is remanded

  for further proceedings consistent with this opinion.

       JUDGE WELLING and JUDGE KAPELKE concur.




                                     22
