In re the Marriage of Morgan

2018 COA 116, 428 P.3d 550

• Court: Colorado Court of Appeals
• Decided: August 9, 2018
• Docket: 16CA1951
• Status: Published

Opinion

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 August 9, 2018

2018COA116

No. 16CA1951 Marriage of Morgan — Family Law — Uniform Dissolution of Marriage Act — Parenting Time

A division of the court of appeals reaffirms the supreme court’s

decision in Spahmer v. Gullette, 113 P.3d 158, 162 (Colo. 2005),

holding that when a parent indicates before permanent orders that

he or she wishes to relocate, the court must allocate parenting time

assuming that the parent will move. Yet many parents admit that

they will not actually relocate if the children are ordered to remain

in Colorado. Often, courts will allocate parenting time based upon

that admission (i.e., as though the parent will not move). The

division reiterates that Spahmer gives no authority to disregard the

parent’s stated intention to relocate, reverses the parenting time order, and remands for the magistrate to enter a new parenting

time order based on mother’s stated intention to relocate. COLORADO COURT OF APPEALS 2018COA116

Court of Appeals No. 16CA1951 Weld County District Court No. 14DR30427 Honorable Ryan L. Kamada, Judge

In re the Marriage of

Carol Crosley Morgan,

Appellant,

and

Carter Edward Morgan,

Appellee.

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

Division III Opinion by JUDGE FOX Webb and Richman, JJ., concur Prior Opinion Announced June 28, 2018 WITHDRAWN

OPINION PREVIOUSLY ANNOUNCED AS “NOT PUBLISHED PURSUANT TO C.A.R. 35(e)” ON June 28, 2018, IS NOW DESIGNATED FOR PUBLICATION

Announced August 9, 2018

Aitken Law, LLC, Sharlene J. Aitken, Denver, Colorado; Ericka J.A. Fowler, Boulder, Colorado, for Appellant

Antolinez Miller LLC, Joseph H. Antolinez, Melissa E. Miller, Centennial, Colorado, for Appellee ¶1 In this dissolution of marriage proceeding, Carol Crosley

Morgan (mother) appeals that portion of the permanent orders

allocating parental responsibilities for her two minor children with

Carter Edward Morgan (father). We reverse the parenting time

order and remand for the magistrate to enter a new parenting time

order based on mother’s stated intention to relocate to California.

In all other respects, we affirm.

I. Background

¶2 Well before the permanent orders hearing, mother notified the

magistrate that she wished to move with the children to California.

She sought orders that would name her the children’s primary

residential parent and decision-maker.

¶3 The parents agreed that Dr. Kevin Albert would conduct a

parental responsibilities evaluation (PRE) to assess the parenting

issues, including mother’s proposed move. Dr. Albert

recommended that the children be allowed to relocate to California

with mother and that she should have sole decision-making

responsibility.

¶4 At father’s request, the magistrate appointed Beth Lieberman

to perform a supplemental PRE. Ms. Lieberman recommended that

1 the children remain in Colorado with father with shared

decision-making responsibilities with mother.

¶5 After a two-day evidentiary hearing, the magistrate ordered the

children to remain in Colorado. He found that their best interests

would be served if the parents exercised equal parenting time, with

mutual decision-making responsibilities.

II. The Magistrate Did Not Follow Spahmer

¶6 When, as here, a parent indicates before permanent orders

that she intends to move, a district court has no statutory authority

to order her to live in a specific location. See Spahmer v. Gullette,

113 P.3d 158, 162 (Colo. 2005). Rather, “in the initial

determination of parental responsibilities . . . a [district] court must

accept the location in which each party intends to live, and allocate

parental responsibilities, including parenting time, accordingly.” Id.

at 164; see also § 14-10-124(1.5)(a)(VIII), C.R.S. 2017 (requiring the

court to consider “[t]he physical proximity of the parties to each

other as this relates to the practical considerations of parenting

time”).

¶7 Mother contends that the magistrate failed to follow this

principle by entering a parenting time order requiring her to remain

2 in Colorado. We review de novo whether the magistrate applied the

proper legal standard, see In re Parental Responsibilities of Reese,

227 P.3d 900, 902 (Colo. App. 2010), and agree.

¶8 Mother never wavered from her stated position that she

intended to move to California after the divorce was completed. She

informed the magistrate of her intention in a written notice of intent

to relocate, at the temporary orders hearing, via two parental

evaluators, in the joint trial management certificate, and at the

permanent orders hearing. The magistrate confirmed that mother

“very clearly” stated her wish to move to California and

acknowledged that, under Spahmer, his parenting time orders must

assume she would move.

¶9 But the magistrate did not then adhere to the Spahmer

analysis and enter parenting time orders that assumed mother

would live in California. Instead, the magistrate ordered the

children to remain in Colorado and issued a year-round 5-2-2-5

parenting time schedule, the terms of which required the parties to

exchange the children on Monday, Wednesday, and every other

Friday. This order is impractical to implement if mother lives in

California. See, e.g., Jacob A. v. C.H., 127 Cal. Rptr. 3d 611, 617,

3 620 (Cal. Ct. App. 2011) (holding that a 5-2-2-5 parenting plan is

not an option when the parents plan to live in different states).

Moreover, the order implicitly requires mother to live in a specific

location (Colorado). Cf. Spahmer, 113 P.3d at 162.

¶ 10 In Spahmer, the supreme court reversed a parenting time

order that required the child’s mother to remain in Colorado, in

close proximity to the child’s father, over her stated intent to

relocate to Arizona. Id. at 164. The court noted that mother’s plans

were unambiguous — she had testified that she wanted to live in

Arizona to have family support and to pursue job opportunities and

had premised her proposed parenting time schedule on her living in

Arizona. Id. Accordingly, the district court should have allocated

parenting time with the understanding that mother was intending

to live in Arizona and father in Colorado. Id. By failing to do so, the

court did not properly take into account the parties’ physical

proximity to each other, thereby abusing its discretion and

exceeding its statutory authority. Id.; see also

§ 14-10-124(1.5)(a)(VIII).

¶ 11 Similarly here, mother’s request was neither ambiguous nor

uncertain. Mother stated her intention at least five times during

4 the proceedings and submitted a proposed parenting plan premised

on her relocation. Additionally, she testified that she wanted to

move because she had an “incredible” family support system in

California; she grew up there, and the area was familiar and

comfortable; she and the children could “get away from a lot of the

negativity that has developed” in Colorado; and she and father

would better be able to work together to be good parents. She also

testified that she had “endless” job opportunities in California, had

inquired about therapy for herself and the children, had “a

pediatrician lined up,” knew which schools the children would

attend, and had looked into sports programs for the children.

¶ 12 True, mother admitted that she would not move without her

children if they were ordered to remain in Colorado with father.

Father asserts that this admission makes mother’s request

“ambiguous.” Considering the evidence showing the number of

times mother stated her intention to move and her reasons for

relocating, we disagree.

¶ 13 Father also asserts that when a parent admits he or she will

not move without the children, Spahmer does not require the

“[district] court to participate in ‘make believe’ and pretend that

5 [m]other will live in California when analyzing what the best

interests of the children would look like if it were to place the

children with [f]ather in Colorado.”

¶ 14 Yet this is exactly what Spahmer requires. Mother said in no

uncertain terms that she wanted to move to California — that is the

premise from which the legal analysis must begin. See Spahmer,

113 P.3d at 164; see also Jacob A., 127 Cal. Rptr. 3d at 617 (stating

that the court must treat a parent’s plan to move “as a serious one

and must decide the custody issues based upon that premise”

(quoting Ruisi v. Thieriot, 62 Cal. Rptr. 2d 766, 771 (Cal. Ct. App.

1997))); In re Marriage of Hall, 241 P.3d 540, 543 (Colo. 2010)

(holding that the potential relocation of a parent is a fundamental

part of a parenting time determination). Mother’s admission that

she would not “abandon” her children and move without them did

not relieve the magistrate of his obligation to make the difficult

decision to allocate parenting time with mother in California and

father in Colorado. See In re Marriage of Ciesluk, 113 P.3d 135, 147

(Colo. 2005) (“Child parenting disputes present agonizing decisions

for [district] court judges.”).

6 ¶ 15 Accordingly, we reverse the parenting time order. On remand,

the magistrate must accept the location in which each party intends

to live (father in Colorado, mother in California) and allocate

parenting time accordingly. The magistrate has no authority on

remand to issue an order that effectively coerces mother into

abandoning her plans to relocate to California. See Jacob A., 127

Cal. Rptr. 3d at 620 (holding that the decision to move a child away

from one of his or her parents “cannot be avoided by coercing the

moving parent into staying or prohibiting her from moving”).

III. Other Parenting Time Considerations

¶ 16 Because it may arise on remand, we briefly address mother’s

contention that the magistrate ignored section 14-10-124(4) when

fashioning parenting time.

¶ 17 A district court must allocate parenting time in accordance

with the best interests of the child, applying the factors in section

14-10-124(1.5)(a) and giving paramount consideration to the

physical, mental, and emotional conditions and needs of the child.

See Spahmer, 113 P.3d at 159, 162.

7 ¶ 18 However, if domestic violence is an issue in the case, the court

must also consider the factors in section 14-10-124(4). See

§ 14-10-124(1.5)(a). As relevant here:

(d) When the court finds by a preponderance of the evidence that one of the parties has committed child abuse or neglect, domestic violence, or sexual assault resulting in the conception of the child, the court shall consider, as the primary concern, the safety and well-being of the child and the abused party.

(e) When the court finds by a preponderance of the evidence that one of the parties has committed child abuse or neglect, domestic violence, or sexual assault resulting in the conception of the child, in formulating or approving a parenting plan, the court shall consider conditions on parenting time that ensure the safety of the child and of the abused party.

§ 14-10-124(4).

¶ 19 The magistrate found that father had committed domestic

violence and that a permanent protection order (PPO) had been

issued against him. Hence, these sections are relevant to the

magistrate’s parenting time consideration and he must consider

them on remand. See id.

8 IV. Decision-Making Responsibilities

¶ 20 Mother contends that the magistrate erred in ordering mutual

decision-making responsibilities over her objection and in the

absence of credible evidence that the parents could work together.

We disagree.

¶ 21 An allocation of decision-making responsibility requires the

district court to consider the nine parenting time factors in section

14-10-124(1.5)(a) and three decision-making factors in paragraph

(b) of the same subsection. This analysis occurs even in cases

involving domestic violence: “The court shall consider the additional

factors set forth in paragraphs (a) and (b) of subsection (1.5) of this

section in light of any finding of child abuse or neglect, domestic

violence, or sexual assault resulting in the conception of a child

pursuant to this subsection (4).” § 14-10-124(4)(b).

¶ 22 When, as here, the court finds by a preponderance of the

evidence that one of the parties has committed domestic violence,

[i]t shall not be in the best interests of the child to allocate mutual decision-making responsibility over the objection of the other party . . . unless the court finds that there is credible evidence of the ability of the parties to make decisions cooperatively in the best

9 interest of the child in a manner that is safe for the abused party and the child.

§ 14-10-124(4)(a)(II)(A).

¶ 23 The allocation of decision-making responsibilities is within the

sound discretion of the district court. See Reese, 227 P.3d at 902.

¶ 24 Relying on section 14-10-124(4)(a)(II)(A), the magistrate found

that mother objected to mutual decision-making and, therefore, he

presumed that such an order was not in the children’s best

interests. Supporting her position on this issue, mother presented

Exhibit M, a 614-page record of the parents’ communications on

Talking Parents. Mother asserted that Exhibit M demonstrated that

the parties had “little success” resolving child-related issues.

¶ 25 The magistrate found differently, and concluded that the

evidence rebutted the presumption that mutual decision-making

was not in the children’s best interests. He found that “[i]f you can

get through that Exhibit M, the results are [the parties] were

making decisions.” And he found that “[e]ven during this hotly

contested case, the parties were able to make joint decisions like

choosing a therapist, scheduling dental appointments, adjusting

exchange times, discussing illnesses, [and] discussing activities,

10 [and] schedules.” He agreed with the statements of both PREs that

the parties had the capacity to work together and make decisions in

the children’s best interests.

¶ 26 These findings, which enjoy record support, reflect the

magistrate’s consideration of the domestic violence issue and the

children’s best interests. See § 14-10-124(1.5)(a), (4). We discern

no abuse of discretion in the order for mutual decision-making

responsibility. See Reese, 227 P.3d at 902.

¶ 27 Insofar as mother argues that the magistrate entered the order

without concern for her safety, we disagree. See § 14-10-124(4)(d).

When fashioning a parenting plan that ensures the safety of the

child and the abused party, the district court may enter “[a]n order

limiting contact between the parties to contact that the court deems

is safe and that minimizes unnecessary communication between

the parties.” § 14-10-124(4)(e)(I).

¶ 28 The crux of mother’s “safety” argument is that father harassed

her and violated the PPO through Talking Parents, a website that

allows parties to discuss matters relating to their children.

However, at mother’s request, the parties agreed to stop using

Talking Parents after permanent orders and start using Civil

11 Communicator, which she described as a “structured form of

communication where messages are reviewed for appropriateness.”

¶ 29 In adopting this agreement and ordering the use of Civil

Communicator, we may presume that the magistrate impliedly

found that its use would alleviate mother’s concerns and provide a

safe way for her to communicate with father regarding the children.

See id.; see also In re Marriage of Nelson, 2012 COA 205, ¶ 41

(upholding district court’s decision based on its implied findings,

which were sufficient).

V. Exhibit T

¶ 30 Mother contends that the magistrate erred in reviewing an

irrelevant exhibit, Exhibit T, when allocating parenting time.

Exhibit T is a district court order from an unrelated domestic

relations case that father submitted as “authority from another

court in Adams County on [its] interpretation of the Spahmer case.”

The mother in that case intended to move to Washington but stated

that she would remain in Colorado if she could not move with one

or both of the children. Relying on her statement, the Adams

County court disregarded Spahmer and issued its parenting time

orders by assuming that mother would remain in Colorado. Mother

12 argues that Exhibit T improperly influenced the magistrate’s

decision here.

¶ 31 In light of our disposition that the magistrate must allocate

parenting time assuming mother will move to California, this issue

is moot. See Anderson v. Applewood Water Ass’n, 2016 COA 162,

¶ 31 (“A claim is moot when prospective relief is unnecessary to

remedy an existing controversy or prevent its reoccurrence.”).

VI. Mother’s Request for Appellate Attorney Fees

¶ 32 Asserting she is at a financial disadvantage, mother requests

an award of her attorney fees under section 14-10-119, C.R.S.

2017. She may raise this issue to the district court on remand.

See In re Marriage of Rivera, 2013 COA 21, ¶ 25.

VII. Conclusion

¶ 33 That part of the judgment allocating parenting time is

reversed, and the case is remanded with directions to enter a new

parenting time plan in accordance with Spahmer. Because the

magistrate’s order was entered more than one year ago, the

magistrate should take additional evidence on the children’s

current circumstances on remand. See In re Parental

Responsibilities Concerning M.W., 2012 COA 162, ¶ 27. The existing

13 allocation of parental responsibilities shall remain in place pending

new orders on remand. See id.

¶ 34 In all other respects, the judgment is affirmed.

JUDGE WEBB and JUDGE RICHMAN concur.