In Re Marriage, Kniskern v. Kniskern

80 P.3d 939, 2003 Colo. App. LEXIS 1644, 2003 WL 22413893
CourtColorado Court of Appeals
DecidedOctober 23, 2003
DocketNo. 02CA2374
StatusPublished
Cited by2 cases

This text of 80 P.3d 939 (In Re Marriage, Kniskern v. Kniskern) is published on Counsel Stack Legal Research, covering Colorado Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Marriage, Kniskern v. Kniskern, 80 P.3d 939, 2003 Colo. App. LEXIS 1644, 2003 WL 22413893 (Colo. Ct. App. 2003).

Opinion

Opinion by

Judge NEY.

In this post-dissolution proceeding, Christine Kniskern, now known as Christine Dewitt (mother), appeals the trial court order that the parties’ two children are to reside primarily with Duane Kniskern (father). We affirm.

The 2001 permanent orders incorporated a separation agreement. The parenting plan in the separation agreement provided for joint decision-making responsibility and the adoption of the evaluator’s recommendations concerning parenting time, and the plan specified that this provision was in the children’s best interests.

The evaluator concluded that because of the “severe parental alienation” that had occurred in the past, alienation was a primary factor to consider in determining parenting time. She recommended that the children reside with mother in Colorado, provided that, inter alia, “mother cease alienating the children from their father and from his significant other.” The evaluator recommended that if mother continued the alienation, the children were to reside with father in New York. The evaluator noted that a parenting coordinator should be appointed to make recommendations as to mother’s compliance with this condition.

Upon father’s motion, a parenting coordinator was appointed in 2002 “with all the powers and responsibilities of an arbitrator pursuant to ... [§ ] 14-10-128.5 [C.R.S. 2002,] and with the specific duties contemplated by [the evaluator’s recommendation].” The parenting coordinator, to determine whether mother had met the alienation condition, proceeded to interview the parties and their significant others, the children, and the therapists for mother and the children.

Based on his observations and responses from the participants, the parenting coordinator determined that “it is clear that [mother] has not complied with the [evaluator’s] recommendation to cease alienating the children from their father.” Therefore, the parenting coordinator recommended that the children reside with father. Relying on this report, father filed a motion requesting that the court change the children’s residence.

The trial court found that mother continued to engage in parental alienation. Accordingly, the court determined that pursuant to the parties’ court-approved agreement, the children were to reside with father in New York.

I.

Based on the premise that father was attempting to modify parenting time and residential placement of the children, mother contends that the trial court erred in failing to apply the best interests and endangerment standard in determining father’s motion. We perceive no error.

[941]*941We agree with mother’s general proposition that determinations of parental responsibilities are based upon the best interests of the child. In re Marriage of Martin, 42 P.3d 75 (Colo.App.2002). Mother is also correct that the best interests or endangerment standard applies to various modifications of parental responsibilities. In re Marriage of Stewart, 43 P.3d 740 (Colo.App.2002)(endangerment standard applies to modifications affecting both parenting time and the party with whom the child resides a majority of the time, and to modifications of custody or decision-making responsibilities; best interests standard applies to modification of parenting time, including geographic relocations of the parent).

However, father did not request a modification of parental responsibilities. The separation agreement already addressed the consequences of mother’s continued alienation of the children from father. Thus, father’s motion was in the nature of enforcement, rather than modification. See In re Marriage of Sinkovich, 830 P.2d 1101 (Colo.App.1992)(enforcement of dissolution decree is separate and distinct from a modification of decree); In re Marriage of Meisner, 807 P.2d 1205 (Colo.App.1990)(enforcement of provision in separation agreement incorporated into decree does not constitute retroactive modification of decree).

The trial court recognized this distinction. Noting that the scope of the hearing was limited to the “factual decision about whether there has been compliance” with the evaluator’s alienation condition, the court found that this case did not involve a request for modification or change of parenting time. Instead, the court treated the proceeding as one for the enforcement of a court-approved separation agreement providing for the automatic change in residence in the event of mother’s alienation.

Given that there was no modification, the court correctly ruled that the endangerment or removal standard was inapplicable. And, as the court noted, the parenting plan in the decree had already been reviewed under the best interests standard. Indeed, the parties explicitly stated in the separation agreement that the evaluator’s recommendation for conditional residential placement with mother was in the children’s best interests.

Furthermore, because there was no modification, we reject mother’s related contention that the trial court erroneously failed to require father to file an affidavit in support of the motion. See In re D.R.V-A., 976 P.2d 881 (Colo.App.1999)(under § 14-10-132, C.R.S.2002, party seeking modification of parenting time must file affidavit setting forth factual basis for same).

II.

Next, mother contends that because the parenting coordinator was appointed to act as an arbitrator, the trial court erred in failing to grant her a trial de novo pursuant to arbitration procedures. We disagree.

Section 14-10-128.5 authorizes the court to appoint an arbitrator to resolve disputes between the parties regarding their minor or dependent children. In re Marriage of Eggert, 53 P.3d 794 (Colo.App.2002). When arbitration occurs under this statute, the trial court retains jurisdiction to decide all issues relating to the children de novo upon the request of either party. In re Marriage of Popack, 998 P.2d 464 (Colo.App.2000).

Here, however, even though the order of appointment clothed the parenting coordinator with arbitration power, the court found no arbitration occurred. Thus, because there was no arbitration award issued pursuant to § 14-10-128.5, mother was not entitled to a trial de novo under this statute. And, contrary to mother’s argument, the parenting coordinator’s failure to arbitrate did not constitute an impermissible exercise of authority that exceeded the scope of his appointment. Instead, he merely completed his task of making a recommendation without exercising all the powers afforded him.

Nor are we convinced that mother was denied due process because she had inadequate time to prepare for the hearing. Few areas of the law require more expeditious resolution than those involving the residential custody of a minor child, and therefore [942]*942shortened timeframes for the resolution of such post-decree matters are allowed. In re Marriage of Woolley,

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Bluebook (online)
80 P.3d 939, 2003 Colo. App. LEXIS 1644, 2003 WL 22413893, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marriage-kniskern-v-kniskern-coloctapp-2003.