In Interest of AJF

• Court: Colorado Court of Appeals
• Decided: August 15, 2024
• Docket: 23CA1318
• Status: Unknown

Opinion

23CA1318 In Interest of AJF 08-15-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1318

Archuleta County District Court No. 12JV35

Honorable Jeffrey R. Wilson, Judge

In the Interest of A.J.F., a Child,

and Concerning N.F.,

Appellant,

and

L.L.S,

Appellee.

ORDER AFFIRMED AND CASE

REMANDED WITH DIRECTIONS

Division IV

Opinion by JUDGE JOHNSON

Navarro and Pawar, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced August 15, 2024

Jones Law Firm, P.C., Patrick G. Barkman, John M. Duggan, Centennial,

Colorado for Appellant

The Law Firm of Lisa Ward, LLC, Lisa Ward, Durango, Colorado for Appellee

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¶ 1 N.F. (father) appeals the district court’s child support

enforcement order in favor of L.L.S. (mother). We affirm the order

but remand the case to allow the district court to determine

appellate attorney fees.

I. Background

¶ 2 In 2012, this case began as a paternity action filed in the

district court in Archuleta County, Colorado (the Colorado court).

In 2014, the parties, who were never married, stipulated to a

permanent parenting plan for A.J.F. (the child) that included child

support (the 2014 stipulation). The Colorado court adopted the

2014 stipulation as an order of the court. As relevant here, the

2014 stipulation required father to pay mother $2,535 monthly for

child support. It also stated that “[t]he child’s extraordinary

medical expenses, as defined in [section] 14-10-115(10)(h)(II),

[C.R.S. 2024,] shall be paid by the father.”

¶ 3 At the time of the 2014 stipulation, father “reside[d] part-time

in Pagosa Springs, Colorado, and part-time in Texas.” Father

registered the Colorado order in Texas. Father later became a

resident of Texas. Mother, who moved to California with the child,

registered the Colorado order with a California court and requested

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a modification of child support and parenting time based on the

parents’ relocations. In April 2016, the California court granted

mother sole legal and physical custody of the child but denied her

request to modify child support, finding that “California lacks in

personam jurisdiction over [father].” Mother asserted that a motion

to modify child support was filed in the Colorado court in March

2016.

¶ 4 In the meantime, the Archuleta County Child Support

Enforcement Unit, which had filed a motion to modify child support

in the Colorado court in June 2015, withdrew its motion and

notified that court that it believed Texas had jurisdiction over child

support and that the child support matter should be transferred

there. Father later filed a motion to modify child support in Texas

but was unable to effectuate service on mother, and the case was

subsequently closed.

¶ 5 In 2016, a Colorado magistrate ordered the parties to “submit

briefs on the issue of this court’s continuing jurisdiction, or lack

thereof [and] to hear [mother’s] request for modification of child

support.” The magistrate determined, according to section 14-5-

205(a)(2), C.R.S. 2024, that it could not exercise continuing,

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exclusive jurisdiction to modify its previously entered child support

order. Neither party petitioned for district court review of this

determination.

¶ 6 Five years later, mother filed in this case a motion to enforce

the 2014 stipulation (motion to enforce). The motion to enforce

requested that the court require father to pay for the child’s medical

expenses to include “neurofeedback treatments and somatic

therapy” as well as “therapies which are recommended by

specialists to help control [the child’s] tic disorder such as piano,

singing, swimming and art classes.” Mother also argued that the

child’s disabilities required him to be in private school; she asserted

that the stipulation required father to pay the school’s tuition.

¶ 7 Father moved to dismiss the motion to enforce, arguing that

(1) mother’s motion was not an enforcement but an improper

modification, and (2) the court lacked jurisdiction to modify the

2014 stipulation’s child support order. The magistrate, who

determined that mother’s motion was one to enforce, not to modify,

and that father conceded that the Colorado court has jurisdiction to

enforce, denied father’s motion. While the motion to enforce was

still pending, father filed another motion to dismiss in which he

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alleged that a Texas court should determine mother’s motion to

enforce because mother had allegedly moved to Texas with the

child. Father’s second motion to dismiss was denied.

¶ 8 The Colorado court ruled on the motion to enforce in January

2023. It concluded that (1) father was not liable for some of the

child’s extraordinary medical expenses, including neurofeedback,

because mother did not comply with notice, insurance, and

reasonable necessity rules in the 2014 stipulation; and (2) father

must pay for the child’s piano, swimming, art, and singing lessons

and private school tuition.

II. Jurisdiction

¶ 9 Father asserts that the Colorado court should not have

exercised jurisdiction over mother’s motion to enforce. He asserts

that Texas should have had jurisdiction. We disagree.

A. Mother’s Threshold Contentions

1. Preservation

¶ 10 Mother states that father did not cite the record indicating

where his argument was preserved. Nor could he, she argues,

because he did not preserve this argument. We disagree.

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¶ 11 True, father did not cite the record to support his claim. And

C.A.R. 28(a)(7)(B) requires that an argument section contain

appellant’s contentions and reasoning with citations to legal

authorities and the record. Vallagio at Inverness Residential Condo.

Ass’n v. Metro. Homes, Inc., 2017 CO 69, ¶ 40. A noncompliant

brief may be stricken and the appeal dismissed. See C.A.R. 38(a).

Nonetheless, even when an appellant’s brief fails to satisfy the

requirements of C.A.R. 28, we may exercise our discretion to

consider the appeal on the merits as long as we are able to discern

the issues presented for review. See Barr Lake Vill. Metro. Dist. v.

Colo. Water Quality Control Comm’n, 835 P.2d 613, 615 (Colo. App.

1992). Although father did not cite the record, because we can

discern the issue presented, we will consider the merits of his

appeal.

¶ 12 Regardless, father’s argument implicates the Colorado court’s

subject matter jurisdiction; therefore, it can be raised at any stage

in the proceedings. See People in Interest of C.L.T., 2017 COA 119,

¶ 13.

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2. Waiver

¶ 13 Mother also argues that father waived his issue on appeal

when “he affirmatively asked the [Colorado] trial court to appoint a

parenting time coordinator, clearly invoking the court’s

jurisdiction.” But a challenge to subject matter jurisdiction cannot

be waived. Town of Carbondale v. GSS Props., LLC, 169 P.3d 675,

681 (Colo. 2007).

B. Father’s Threshold Contentions

1. Uniform Child-Custody Jurisdiction and Enforcement Act

(UCCJEA)

¶ 14 Relying on People in Interest of M.C., 94 P.3d 1220, 1223 (Colo.

App. 2004), father contends that a Colorado court must satisfy the

requirements of the UCCJEA, specifically, section 14-13-206(2),

C.R.S. 2024, before it determines whether it has jurisdiction and

that the court here failed to do so. The court did not err.

¶ 15 In M.C., another division of this court applied the UCCJEA and

decided that a Colorado magistrate erred when it entered child-

custody orders without first communicating with a Texas court that

had already commenced a child-custody proceeding. 94 P.3d at

1223. Father does not explain how the court’s holding in M.C. or

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the UCCJEA apply to this case because the issues raised do not

involve custody of the child. We therefore see no need to require

the application of the UCCJEA, including section 14-13-206(2), in

this matter. See In re Marriage of Zinke, 967 P.2d 210, 211-12

(Colo. App. 1998) (provisions of an earlier version of the UCCJEA do

not apply in a case related solely to child support).

2. Enforcement or Modification of the 2014 Stipulation’s Child

Support Order

¶ 16 Father admits that Colorado “retains jurisdiction for

enforcement [of the 2014 stipulation].” He asserts that, instead of

enforcing its prior order, though, the Colorado court improperly

modified the child support portion of the magistrate’s order without

jurisdiction. But father did not preserve the argument that the

motion to enforce was a motion to modify. Although he initially

raised this argument, he did not seek review of it before the district

court. Thus, we will not address it. See Madalena v. Zurich Am.

Ins. Co., 2023 COA 32, ¶ 50 (issues not raised before the trial court

will not be addressed on appeal).

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C. Standard of Review and Applicable Law

¶ 17 Colorado enacted the Uniform Interstate Family Support Act

(UIFSA) in 1995. See In Interest of R.L.H., 942 P.2d 1386, 1387

(Colo. App. 1997).

¶ 18 A provision and comment from the UIFSA, though not obvious

on their face, are helpful here. Pursuant to the UIFSA, “[a] tribunal

of this state that has issued a child support order consistent with

the law of this state has and shall exercise continuing, exclusive

jurisdiction [(CEJ)] to modify its child support order if the order is

the controlling order,” and “at the time of the filing of a request for

modification, this state is the residence of the obligor, the individual

obligee, or the child for whose benefit the support order is issued.”

§ 14-5-205(a)(1). Similarly, pursuant to section 14-5-205(a)(2),

when Colorado issues a child support order it has CEJ to modify

that order, even when no party resides in Colorado, if “the parties

[so] consent in . . . open court.” As we discuss below, sections 14-

5-205(a)(1) and (2) are inapplicable in this case.

¶ 19 Because Colorado’s statutory language for section 14-5-205 is

identical to that contained in section 205 of the Model UIFSA, in

construing its meaning, we are guided by the comments of the

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National Conference of Commissioners on Uniform State Laws. See

In re Marriage of Hillstrom, 126 P.3d 315, 320 (Colo. App. 2005)

(using the comments from this conference to inform interpretation

of a different statute). The comment to section 205 of the Model

UIFSA acknowledges the retention of jurisdiction for enforcement of

a previous order: “Even if the parties and the child no longer reside

in the issuing state, the support order continues in existence and is

fully enforceable unless and until a modification takes place . . . .”

Unif. Interstate Fam. Support Act § 205 cmt. (Unif. L. Comm’n

2008).

¶ 20 This reasoning is consistent with Colorado case law. Courts

have the inherent power to enforce their own orders. Vogan v. Cnty.

of San Diego, 193 P.3d 336, 338 (Colo. App. 2008). We

acknowledge that, under some circumstances, Colorado has

declined jurisdiction when an out-of-state court could determine a

child support issue more easily and efficiently. See In re Marriage of

Mowrer, 817 P.2d 612, 614 (Colo. App. 1991) (court declined

jurisdiction over motion to modify child support when the initial

order entered in Arkansas had been registered in the Colorado

court, but a proceeding regarding visitation was pending in

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Arkansas); see also In re C.G.G., 946 P.2d 603, 605 (Colo. App.

1997) (court declined to determine child support issue for parents

residing in Colorado when initial order entered in Sweden, and the

parties had an opportunity to resolve the issue there).

¶ 21 Section 14-5-204, C.R.S. 2024, incorporates Model UIFSA

section 204’s acknowledgement that, in order to avoid competing

support orders, courts are “expected to take an active role in

seeking out information about support proceedings in another

state . . . concerning the same child” and, depending on the

circumstances, “should decide to defer to the other.” Unif.

Interstate Fam. Support Act § 204 cmt. (Unif. L. Comm’n 2008).

¶ 22 Because the Colorado court has discretion to accept

jurisdiction in this matter, we review that determination for an

abuse of discretion. See Mowrer, 817 P.2d at 614. A district court

abuses its discretion when it acts in a manifestly arbitrary,

unreasonable, or unfair manner or when it misapplies the law. In

re Marriage of Bergeson-Flanders, 2022 COA 18, ¶ 10.

D. Analysis

¶ 23 Father argues that the Colorado court should not have

exercised jurisdiction over mother’s motion to enforce because (1)

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neither party nor the child reside in Colorado; (2) father did not

consent to Colorado’s jurisdiction; and (3) the court’s order created

a “paradox by denying jurisdiction over child support but retaining

jurisdiction over issues that directly impact child support . . . .”

¶ 24 Mother does not contest father’s assertion that he did not

consent to Colorado’s CEJ over child support. Because (1) neither

party nor the child lived in Colorado at the time mother filed her

motion to enforce, and (2) mother does not contest father’s claim

that he did not consent to Colorado CEJ, Colorado would have been

required to decline jurisdiction had mother’s motion to enforce been

one seeking modification. See § 14-5-205(a)(1)-(2). But mother

sought to enforce, not to modify, the child support order contained

in the 2014 stipulation. According to the Model UIFSA, then, the

2014 stipulation’s child support order remains enforceable unless

and until a court modifies the child support. See Unif. Interstate

Fam. Support Act § 205 cmt. No such modification was requested

by mother in the Colorado court, nor has father successfully

obtained modification in the case he filed in the Texas court.

¶ 25 Father then asserts that the Colorado court should not have

retained jurisdiction over the child’s expenses because doing so

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“offends the very purpose behind UIFSA.” He alleges that the

court’s order “created at least two, and possibly three states with

enforceable or potentially enforceable orders: California, for child

custody and parenting time, Colorado for child expenses only, and

possibly Texas for modification and enforcement of child support.”

This argument, too, is unavailing for three reasons.

¶ 26 First, in making this argument, father cites Hillstrom, 126 P.3d

at 318, in which a division of this court stated that the “UIFSA

allows for only one enforceable order in a case at any time. This is

accomplished by limiting jurisdiction to modify the original order.”

Again, mother seeks to enforce — not to modify — the original

support order.

¶ 27 Second, in addition to subject matter jurisdiction, a court

must have personal jurisdiction over the parties in a UIFSA

proceeding. Colorado is the only court with jurisdiction over

mother’s motion to enforce because it is the only state with personal

jurisdiction over both parties. See id. at 322 (“[A] custodial parent

may . . . enforce a child support action . . . under [the] UIFSA,

provided that personal service can be obtained over the obligor.”);

cf. In re Marriage of Haddad, 93 P.3d 617, 619 (Colo. App. 2004) (a

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court’s adoption of the UIFSA confers subject matter jurisdiction,

and a responsive pleading can confer personal jurisdiction in a case

where child support overpayments triggered potential modification).

As previously discussed, father could not effectuate service on

mother in Texas, and the California court concluded that it did not

have personal jurisdiction over father in the case mother had filed

there.

¶ 28 Third, the Colorado court’s order does not create multiple

enforceable orders. Father does not deny in this appeal that,

according to the 2014 stipulation, mother is entitled to the payment

she seeks for the child’s expenses. Instead, father argues that his

payment of these expenses would entitle him to a modification of

child support — a modification, which he cannot now seek in

Colorado because of the magistrate’s 2016 determination that it

could not exercise CEJ over a motion to modify child support. But

father filing a motion to modify in another jurisdiction would not

create the multiple enforceable orders scenario that the UIFSA

seeks to avoid. Based on the comment to section 205 of the Model

UIFSA, we understand section 14-5-205(a) to mean that, in a case

where no parties reside in Colorado, the support order is

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enforceable unless and until a modification takes place. Unif.

Interstate Fam. Support Act § 205 cmt. When a modification takes

place, therefore, the modified child support order becomes the

“enforceable order.”

¶ 29 Because the Colorado court properly assumed jurisdiction

over mother’s motion to enforce, the court did not abuse its

discretion when it heard and ruled on the motion.

III. Attorney Fees

¶ 30 Mother asserts that father’s appeal lacked substantial

justification and requests attorney fees pursuant to section 13-17-

102(4), C.R.S. 2024. Father disputes mother’s assertion that his

claims were frivolous and irrelevant. Father’s appeal was

unsuccessful, but that does not mean it was not supported by

rational or plausible argument. See Mission Denver Co. v. Pierson,

674 P.2d 363, 366 (Colo. 1984). Accordingly, we deny mother’s

request for attorney fees under title 13.

¶ 31 Mother also requests appellate attorney fees under section 19-

4-117, C.R.S. 2024 (In paternity matters, “[t]he court shall order

reasonable fees of counsel . . . to be paid by the parties in

proportions and at times determined by the court.”), and section

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14-10-119, C.R.S. 2024 (“[A]fter considering the financial resources

of both parties,” the court “may order a party to pay a reasonable

amount” in attorney fees for proceedings after the entry of

judgment.). Mother includes a factual and legal basis for her

request for fees as required. See Marriage of Schlundt, 2021 COA

58, ¶ 53. Because the district court is better equipped to determine

factual issues regarding the parties’ current financial resources, we

remand the case to the district court to address mother’s attorney

fees request under sections 19-4-117 and 14-10-119. See C.A.R.

39.1; Schlundt, ¶ 54.

IV. Conclusion

¶ 32 The order is affirmed, and the case is remanded to the district

court for further proceedings consistent with this opinion.

JUDGE NAVARRO and JUDGE PAWAR concur.