Marriage Of Kowalik
24CA1539 Marriage of Kowalik 07-24-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA1539
Arapahoe County District Court No. 21DR800
Honorable Michelle Jones, Judge
In re the Marriage of
Anne Patricia Kowalik,
Appellant,
and
Thaddeus Stefan Kowalik,
Appellee.
ORDER AFFIRMED
Division II
Opinion by JUDGE SCHUTZ
Fox and Harris, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced July 24, 2025
Allen Vellone Wolf Helfrich & Factor P.C., James S. Helfrich, Denver, Colorado;
Meyers Family Law, Thomas A. Meyers, III, Littleton, Colorado for Appellant
Anne Whalen Gill L.L.C., Anne Whalen Gill, Castle Rock, Colorado, for Appellee
¶1 In this post-dissolution of marriage case involving Anne
Patricia Kowalik (wife) and Thaddeus Stefan Kowalik (husband),
wife appeals the district court’s attorney fee award in connection
with her motion to enforce the parties’ separation agreement. We
affirm.
I. Relevant Facts
¶2 The parties’ marriage ended in May 2022. The dissolution
decree incorporated their separation agreement. In it, husband
promised to pay wife approximately $375,000. The agreement also
contained a mutual indemnification provision:
Each party shall indemnify the other with
respect to any debt or obligation assigned to
him or her by this Agreement and shall pay
any costs, interest, penalties, and attorney’s
fees to the non-liable party in enforcing or
defending the terms of this Agreement,
whether such enforcement or defense is by
contempt proceedings or otherwise.
¶3 Soon after, husband’s former attorney, Randy Corporon,
believing he was following instructions from wife and her former
attorney, Danielle Demkowicz, wired $374,290 from his Wells Fargo
trust account to a hacker in Hong Kong. The funds were never
recovered.
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¶4 Wife retained another family law attorney, Thomas Meyers III,
to replace Demkowicz. Wife then hired attorney James Helfrich, a
commercial litigator, to investigate and pursue potential claims
against various parties, including Demkowicz, Wells Fargo, and
husband. Under the fee agreement with wife, Helfrich charged a
25% reduced hourly rate, with payment dependent on collecting
money from husband or another party. Through Helfrich’s efforts,
wife eventually received a $94,869 recovery from Demkowicz’s
malpractice carrier, which was the full policy limit minus defense
costs.
¶5 Acting through Meyers and Helfrich, wife thereafter moved to
enforce the separation agreement against husband. The district
court granted the motion, determining that Corporon had acted
within the scope of his agency when he mistakenly wired the funds
to the hacker, and that husband, as principal, was liable for the
resulting loss. Wife sought $74,249 in attorney fees for work
performed by Helfrich’s law firm for both securing the settlement
with Demkowicz’s malpractice carrier and enforcing the separation
agreement against husband.
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¶6 The district court held an evidentiary hearing to determine the
reasonableness of the requested attorney fees. The court first
excluded $6,810 in fees, representing 19.8 hours Helfrich billed for
work related to the malpractice settlement. Regarding the
remaining fees for enforcing the settlement agreement, the court
reduced the number of hours after concluding that the billing was
excessive and duplicative of Myers’s services. The court subtracted
an additional ten hours for legal tasks related to the malpractice
settlement that it concluded were embedded within the enforcement
billing. Ultimately, the court awarded wife $17,491, consisting of:
(1) $15,471 for 51.57 hours of work performed by Helfrich at a rate
of $300 per hour; and (2) $2,020 for 20.20 hours of paralegal or
clerk work at a rate of $100 per hour.
¶7 After the district court denied her motion to reconsider, wife
appealed.
II. Attorney Fees
¶8 Wife contends the district court erred by (1) denying her the
$6,810 in attorney fees incurred to pursue the malpractice
settlement; and (2) removing ten hours from the billing attributed to
the claim against husband because the disputed entries pertained
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to potential claims against other parties. We address her
contentions in turn.
A. Standard of Review and Applicable Law
¶9 All attorney fee awards must be reasonable. Tisch v. Tisch,
2019 COA 41, ¶ 84. Reasonableness is a question of fact for the
district court, Payan v. Nash Finch Co., 2012 COA 135M, ¶ 16, and
we will not overturn its determination unless it is “patently
erroneous and unsupported by the evidence.” Tallitsch v. Child
Support Servs., Inc., 926 P.2d 143, 147 (Colo. App. 1996).
¶ 10 Colorado has adopted the lodestar method for determining
“reasonable” attorney fee awards. In re Marriage of Aragon, 2019
COA 76, ¶ 17; Payan, ¶ 18. To calculate the lodestar amount, the
court first determines “the reasonable number of hours expended
by counsel in working on the case.” Payan, ¶ 21. After deducting
excessive or redundant hours, the court then multiplies the hours
reasonably expended by a reasonable hourly rate. Id. at ¶ 23. This
lodestar calculation carries a strong presumption of
reasonableness. See Aragon, ¶ 17.
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¶ 11 The district court may, in its discretion, make upward or
downward adjustments to the lodestar amount based on the factors
identified in Colo. RPC 1.5(a). Aragon, ¶ 15.
¶ 12 A district court must make sufficient findings supporting its
attorney fee award to allow meaningful appellate review. Weston v.
T & T, LLC, 271 P.3d 552, 561 (Colo. App. 2011). We review those
factual findings for clear error or an abuse of discretion. In re
Marriage of Young, 2016 CO 2, ¶ 17. We review de novo whether
the court correctly applied the law. See In re Marriage of Gallegos,
251 P.3d 1086, 1087 (Colo. App. 2010).
B. Attorney Fees Incurred in the Malpractice Settlement
¶ 13 Wife argues that the district court erred as a matter of law by
excluding $6,810 in attorney fees billed in connection with her
malpractice settlement. She contends that those fees were
“consequential damages” that mitigated husband’s harm from the
fraudulent transfer and are thus recoverable. We disagree.
¶ 14 Colorado follows the American Rule regarding the payment of
attorney fees. In re Estate of Klarner, 113 P.3d 150, 157 (Colo.
2005). Under the American Rule, “the parties in a lawsuit must
bear their own legal expenses, absent statutory authority, a court
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rule, or an express contractual provision to the contrary.” In
Interest of Delluomo v. Cedarblade, 2014 COA 43, ¶ 9. Parties can
opt out of the American Rule by including a fee-shifting provision in
their separation agreement, as the parties did here.
¶ 15 Their separation agreement allows recovery of “costs, interest,
penalties, and attorney fees” incurred “in enforcing or defending the
terms of [the] [separation] [a]greement, whether such enforcement
or defense is by contempt proceedings or otherwise.” Pursuant to
that provision, wife requested $6,810 in attorney fees, submitting
Helfrich’s invoices showing 19.8 hours of legal work related to
obtaining the malpractice settlement, billed at rates ranging from
$338 to $356 per hour. The district court denied the request,
determining that “the time spent on asserting a malpractice claim
against [Demkowicz], and then obtaining a settlement of that claim
should not be charged against [husband].”
¶ 16 We conclude that the district court properly exercised its
discretion by excluding the $6,810 from the attorney fee award.
The separation agreement does not authorize the recovery of
attorney fees incurred in pursuing third-party litigation. Wife’s
malpractice action against Demkowicz was a separate legal matter
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not tied to husband’s performance under the separation agreement.
Her decision to pursue multiple avenues of relief does not mean
that husband must bear fees unrelated to the enforcement of the
separation agreement.
¶ 17 Wife nevertheless asserts that the district court misapplied the
law by failing to treat the attorney fees as “consequential damages”
that mitigated the harm caused by Corporon’s improper transfer of
the funds. She relies on Double Oak Const., L.L.C. v. Cornerstone
Dev. Int’l, L.L.C., 97 P.3d 140, 150 (Colo. App. 2003). But that case
does not help her. It has been overruled by L.H.M. Corp., TCD v.
Martinez, 2021 CO 78. But even if some portion of Double Oak
remains good law, the case does not stand for the proposition that
attorney fees from a separate action against a different party qualify
as consequential damages merely because the subject matter of the
litigation is related. Attorney fees in Double Oak were only allowed
as damages because the fees were directly attributable to the tort
claims being litigated. Double Oak Const., 97 P.3d at 150 (“[T]he
[district] court awarded attorney fees as actual damages under the
theory that, but for defendants’ obdurate conduct, plaintiff would
not have incurred attorney fees in pursuing its judgment.”)
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(emphasis added). That is not the case here. The malpractice
settlement fees arose from separate litigation against a different
party, Demkowicz, not husband. And husband was not alleged to
have engaged in any wrongdoing in the malpractice litigation.
¶ 18 Because the district court applied the correct legal standard,
made the necessary findings, and those findings have record
support, we discern no error.
C. Deduction of Ten Hours Related to the Settlement
¶ 19 Wife also argues that the district court erred by deducting ten
hours from Helfrich’s enforcement billing on the basis that those
hours were improperly attributed to work on the malpractice
settlement. Again, we disagree.
¶ 20 The district court found that, beyond the 19.8 hours that
Helfrich had already billed separately, some of the billing entries for
the action against husband also included notes reflecting work on
third-party litigation, including the malpractice settlement. For
example, the court noted that the billing entries included:
• On June 27, 2022, assessing “potential claims against
Wells Fargo.”
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• On August 18, 2022, reviewing wife’s “standing for
possible claims” against Wells Fargo.
• On November 8, 2022, calculating “damages for a
settlement offer.”
• On November 21, 2022, participating in “settlement
discussions.”
• On December 5 and 13, 2022, communicating about a
third party settlement rejection.
Instead of combing through the seven pages of billing records, each
containing dense and ambiguous notes, the court deducted ten
hours as a fair estimate of the overlap.
¶ 21 A district court is not required to analyze every disputed
billing entry in detail. See Payan, ¶ 35 (“[W]e note that it is not the
court’s burden ‘to justify each dollar or hour deducted from the
total submitted by counsel. It remains counsel’s burden to prove
and establish the reasonableness of each dollar, each hour, above
zero.’” (quoting Mares v. Credit Bureau of Raton, 801 F.2d 1197,
1210 (10th Cir. 1986))).
¶ 22 Given wife’s failure to substantiate the reasonableness of her
fees through the billing records and in light of the broad discretion
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afforded to district courts in these matters, we conclude that the
district court did not abuse its discretion by imposing the ten-hour
deduction to the claimed fees. See Payan, ¶ 35; see also Tallitsch,
926 P.2d at 147.
III. Appellate Attorney Fees
¶ 23 Wife makes a request for an award of attorney fees incurred on
appeal but does not identify any statutory or legal authority to
support her request. So, we deny it. See C.A.R. 39.1 (“If attorney
fees are recoverable for the appeal, the principal brief of the party
claiming attorney fees must include a specific request, . . . and
must explain the legal and factual basis for an award of attorney
fees.”).
IV. Disposition
¶ 24 The order is affirmed.
JUDGE FOX and JUDGE HARRIS concur.
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