23CA1835 Marriage of Pittman 03-06-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA1835 Boulder County District Court No. 13DR30319 Honorable Thomas F. Mulvahill, Judge
In re the Marriage of
George Stephen Pittman,
Appellee,
and
Judi Beth Pittman n/k/a Judi Beth Atwood,
Appellant.
ORDER REVERSED AND CASE REMANDED WITH DIRECTIONS
Division I Opinion by JUDGE YUN J. Jones and Brown, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced March 6, 2025
Aitken Law, LLC, Sharlene J. Aitken, Denver, Colorado, for Appellee
Wells Family Law, P.C., Chelsea Augelli, Denver, Colorado, for Appellant ¶1 In this post-dissolution of marriage proceeding involving Judi
Beth Pittman, now known as Judi Beth Atwood (mother), and
George Stephen Pittman (father), mother appeals from the district
court’s adoption of the magistrate’s order that resolved (1) her June
2022 motion to modify parenting time and decision-making and
(2) the parties’ respective motions to enforce the court’s parental
responsibilities orders. Specifically, mother challenges the portion
of the magistrate’s order providing that she “cannot grieve any
professional unless granted Court permission to do so.” We reverse
the portion of the order restricting mother’s ability to grieve
professionals and remand the case for further proceedings.
I. Background
¶2 The history of the proceedings between the parties is lengthy
and acrimonious. As part of the 2014 dissolution decree, the
parties agreed that mother would be the primary residential parent
for their two children, while father would have regular parenting
time. The parties also agreed to exercise joint decision-making.
¶3 However, in 2016, father was awarded sole decision-making
responsibility for all medical and educational decisions, and
mother’s parenting time was restricted to supervised visits based on
1 a finding that the children were in imminent emotional danger while
in her care. Specifically, the district court found that mother had
repeatedly and falsely accused father of abusing the children,
causing harm to the children through unnecessary interactions
with law enforcement and an ongoing effort to portray father as an
abuser.
¶4 Subsequent orders maintained the restriction on mother’s
parenting time. In doing so, the district court found that mother
had difficulty working with professionals engaged in the case given
her animosity toward father:
[Mother’s] deteriorating relationships have included prior [parenting coordinator/decision-makers (PC/DMs)], the children’s former therapist, teachers, school administrators, etc. She has filed grievances or complaints against the children’s therapist, the initial [parental responsibilities evaluator (PRE)] in this case, school personnel with the school board, and against police officers with internal affairs. By email communication, she threatened to file a DORA complaint against [the second PRE].
A later stipulation, which the court adopted, prohibited the parties
from sending “excessive or harassing communication [to] any
professional providing care for the minor children.”
2 ¶5 In June 2022, mother filed a motion to lift the restriction on
her parenting time and reestablish joint decision-making. She
concurrently filed a motion to enforce parenting time, alleging that
father had violated the current orders in various ways. Father then
filed his own motion to enforce the court’s orders and sought,
among other sanctions, to hold mother in contempt of court for
sending excessive and harassing communications to professionals
providing care for the children.
¶6 A magistrate appointed a child and family investigator (CFI) to
investigate and make recommendations as to the issues raised by
both parties. The CFI’s report, which was admitted into evidence at
the subsequent hearing on the parties’ motions, summarized the
involvement of numerous professionals in the case, including six
PC/DMs, multiple parenting time supervisors, and two PREs.
¶7 The CFI’s report further explained that mother had a history of
threatening and intimidating the various professionals who were
involved in the case or were providing support to the family. For
example, the report stated that mother had accused the second PRE
of accepting bribes, had accused one of the PC/DMs of having an
affair with father, and had caused another PC/DM to withdraw due
3 to “numerous deleterious statements” that mother made towards
the PC/DM.
¶8 The CFI’s report explained that mother’s intimidation of
professionals extended to the children’s treatment providers,
including threats to grieve and sue the children’s original therapist.
Yet mother had failed to understand how her actions could interfere
with the children’s treatment. According to the CFI, mother’s
conduct towards the children’s treatment providers continued to
the present, as mother had recently filed an unsubstantiated
grievance against the youngest child’s therapist, Ann Norris. At the
hearing, Ms. Norris testified that mother had also sent her
numerous threatening emails, including an email suggesting that
mother had retained a “federal attorney” to take legal action against
her. Ms. Norris explained that she resigned as the child’s therapist
because mother’s actions were affecting the child’s well-being.
¶9 Therefore, the CFI recommended “an order [under] which
[m]other may not grieve any professional in the case — either who
has in the past or is currently or will in the future have a role in
this case — without [m]other first getting permission from this
Court to do so.”
4 ¶ 10 The magistrate found mother in contempt of court and
maintained the restriction on her parenting time. The magistrate
also ordered that “[m]other cannot grieve any professional unless
granted Court permission to do so.” After mother petitioned for
review, the district court adopted the magistrate’s order.
II. Review of Magistrate Orders
¶ 11 Our review of a district court’s order adopting a magistrate’s
decision is effectively a second layer of appellate review. In re
Marriage of Sheehan, 2022 COA 29, ¶ 22. We must accept the
magistrate’s factual findings unless they are clearly erroneous,
meaning they have no support in the record. In re Marriage of
Young, 2021 COA 96, ¶ 8. However, we review de novo questions of
law. See Sheehan, ¶ 22; Young, ¶¶ 8-9.
¶ 12 Because we act as a second layer of appellate review, we
decline to address mother’s contention that the reviewing district
court judge failed to make sufficient findings of fact and
conclusions of law when adopting the magistrate’s order.1 Instead,
1 In its order adopting the magistrate’s ruling, the district court
stated that mother “continues to harm her children by scaring away all of their treatment providers” and that “[r]equiring prior court approval prior to [mother] grieving a professional will provide a layer
5 our review focuses on the magistrate’s order, and we give no
deference to the district court’s determinations.
III. Prior Restraint on Mother’s Speech
¶ 13 Mother asserts that the portion of the magistrate’s order
barring her from grieving “any professional” without first obtaining
court permission violates her right to free speech under both the
United States and Colorado Constitutions. Because that provision
of the magistrate’s order is not supported by sufficient findings
under In re Marriage of Newell, 192 P.3d 529, 535-36 (Colo. App.
2008), and is overly restrictive, we conclude that further
proceedings are required. Since we remand for further proceedings
regarding mother’s free speech argument, we need not address her
argument regarding her fundamental right to make decisions
of protection for the children so their treatment providers may continue to assist them without fear of irrational, baseless grievances from [mother].” However, the magistrate did not make these findings, and it is unclear whether the record supports them. See In re Marriage of Stephens, 2022 COA 29, ¶ 22 (“A district court reviewing a magistrate’s decision under C.R.M. 7(a) may not alter the magistrate’s factual findings unless they are clearly erroneous.”). Because we act as a second layer of appellate review of the magistrate’s order, we decline to consider these findings that appear to differ from the magistrate’s.
6 concerning the care, custody, and control of the children under
Troxel v. Granville, 530 U.S. 57 (2000).
A. Applicable Law
¶ 14 Freedom of speech is protected under the First Amendment to
the United States Constitution and article II, section 10 of the
Colorado Constitution. Although the Colorado Constitution
provides greater free speech protection than the First Amendment,
where, as here, neither party provides us with a framework different
from a First Amendment analysis, our analysis may proceed solely
under the First Amendment. See Newell, 192 P.3d at 535.
¶ 15 “Under the First Amendment, the government may regulate
the content of constitutionally protected speech in order to promote
a compelling interest as long as it chooses the least restrictive
means to further that interest.” Id. In the context of an order
allocating or modifying parental responsibilities, a “showing that
[the restricted parent’s] exercise of [their] free speech rights
threatened the child[ren] with physical or emotional harm, or had
actually caused such harm” may constitute a compelling state
interest sufficient to justify a restriction on a parent’s First
Amendment free speech rights. Id. at 536.
7 ¶ 16 However, “[t]his is a demanding standard when properly
applied.” Id. “[N]ot every type or degree of actual or threatened
physical or emotional harm will suffice; to constitute a compelling
state interest the harm must be ‘substantial.’” Id. (quoting In re
Marriage of McSoud, 131 P.3d 1208, 1216 (Colo. App. 2006)).
Moreover, “harm to the child . . . should not be simply assumed or
surmised; it must be demonstrated in detail.” Id. (quoting McSoud,
131 P.3d at 1216).
¶ 17 Finally, “[i]n order to survive strict scrutiny, any restriction on
[a parent’s] speech must be the least restrictive alternative that
would achieve the legitimate goal of avoiding actual or threatened
substantial harm to the child[ren].” Id. An order that “‘effectively
suppresses a large amount of speech . . .’ is ‘unacceptable if less
restrictive alternatives would be at least as effective.’” Id. (quoting
Reno v. Am. Civ. Liberties Union, 521 U.S. 844, 874 (1997)).
¶ 18 “First Amendment questions of ‘constitutional fact’ require de
novo appellate review.” Id. at 535 (quoting Kuhn v. Tribune-
Republican Publ’g Co., 637 P.2d 315, 318 (Colo. 1981)).
Accordingly, we must independently review the record to ensure
8 that the order issued by the magistrate and adopted by the district
court does not intrude on mother’s right to free speech. Id.
B. Discussion
¶ 19 We agree with mother that the magistrate did not make
sufficient findings required by Newell, 192 P.3d at 535-36, before
restricting her speech by prohibiting her from grieving professionals
without court permission.
¶ 20 In holding mother in contempt, the magistrate found that she
had filed an unfounded professional grievance against Ms. Norris
and had sent threatening emails to Ms. Norris and one of the
previous parenting time supervisors. Moreover, the magistrate
found that restoring joint decision-making was not feasible due to
mother’s “behavior towards [father] and other professionals involved
in [the children’s] care.” And in ordering that mother’s parenting
time remain supervised, the magistrate found that her “insistence
on her beliefs and resultant conduct toward the [children] continues
to endanger them.”
¶ 21 We conclude that the magistrate’s findings are insufficient to
justify the restriction on mother’s speech given the demanding
standard imposed by Newell, 192 P.3d at 536. Specifically, the
9 restriction preventing mother from grieving professionals without
court permission was not supported by sufficient findings
demonstrating that her grievances would threaten the children with
substantial physical or emotional harm, or had actually caused
such harm. See id.
¶ 22 Father asks us to imply findings in support of the restriction
on mother’s speech based on the record. While we acknowledge
mother’s lengthy history of intimidating the professionals involved
with the family, we decline to make our own findings in support of
the restriction on mother’s speech given that the missing findings
involve questions of “constitutional fact.” Id. at 535.
¶ 23 On remand, the district court should direct the magistrate to
reconsider whether a restriction on mother’s right to grieve
professionals is constitutionally warranted. If any restriction is
deemed necessary, the magistrate must make additional, discrete
findings regarding the “type and degree of harm that the child[ren]
ha[ve] suffered or may suffer because of the speech that is to be
restricted.” Id. The magistrate should also identify the specific
evidence relied upon so that the reviewing court may determine
whether the harm justifying the restriction has been “demonstrated
10 in detail.” Id. The magistrate may, at her discretion, schedule
additional hearings if additional evidence is needed. Id.
¶ 24 Moreover, we agree with mother that the order preventing her
from grieving any professional without court permission does not
represent the “least restrictive alternative that would achieve the
legitimate goal of avoiding actual or threatened substantial harm to
the child[ren].” Id. at 536. Indeed, a plain reading of the restriction
even prevents mother from grieving her own medical doctor,
therapist, or lawyer, who are professionals that do not otherwise
treat the children or assist the parties in implementing the
parenting orders. And while father suggests that the present order,
in fact, allows mother to grieve her own professionals, we do not see
any such exception in the text of either the magistrate’s order or the
reviewing district court judge’s order.
¶ 25 Therefore, the district court should direct the magistrate to
consider less restrictive alternative measures, and mother’s speech
should be restricted only to the extent necessary to protect the
children. See id. at 536-37. The court should direct the magistrate
to describe any alternative measures that were considered and, if a
restriction on mother’s speech is deemed necessary, state the
11 reasons why the alternative measures were rejected. Id. Any
restriction that is imposed should be as narrowly tailored as
possible. Id.
¶ 26 Because we reverse and remand the portion of the order
restricting mother from grieving professionals for the magistrate’s
reconsideration and further findings, we decline to address mother’s
additional contentions that the restriction was otherwise
impermissibly vague and overbroad.
IV. Separation of Powers
¶ 27 We next address mother’s separation of powers argument
because the issue is likely to arise on remand. Mother specifically
argues that the magistrate could not issue an order requiring her to
obtain court permission before filing professional grievances
because such an order violates Article 3 of the Colorado
Constitution by interfering with the power of the Department of
Regulatory Agencies (DORA), which is part of the executive branch,
to regulate professionals. See § 24-1-122, C.R.S. 2024. We are not
persuaded.
¶ 28 Article 3 of the Colorado Constitution provides that “no person
or collection of persons charged with the exercise of powers properly
12 belonging to one [branch of the state government] shall exercise any
power properly belonging to either of the others.” “The province of
the Executive Branch is to see that the laws are faithfully executed,”
and “in order to be separate from the other two branches of
government, [the Executive Branch] must function independently
within its sphere of operation.” McDonnell v. Juv. Ct., 864 P.2d 565,
567 (Colo. 1993). Therefore, courts generally do “not have the right
to interfere with the Executive Branch of government in
performance of its statutory duties.” Id.
¶ 29 However, it is well-established that “[t]he separation of powers
doctrine does not require a complete division of authority among
the three branches . . . , and the powers exercised by different
branches of government necessarily overlap.” Dee Enters. v. Indus.
Claim Appeals Off., 89 P.3d 430, 433 (Colo. App. 2003); see also
People in Interest of R.W.V., 942 P.2d 1317, 1320 (Colo. App. 1997)
(“[A]bsolute separation of government functions among the co-equal
branches is neither required nor desirable to achieve the
constitution’s ultimate goal of effective and efficient government.”).
“Indeed, the fundamental purpose of the doctrine is not to create
three mutually exclusive departments of government, but to prevent
13 one department from exercising power that is essential to another
department’s exercise of its constitutionally defined functions.” Dee
Enters., 89 P.3d at 433.
¶ 30 “Determining whether a court has intruded into the sphere of
the Executive Branch requires a case-by-case evaluation,”
McDonnell, 864 P.2d at 567, and we conduct such a review de novo,
Hickerson v. Vessels, 2014 CO 2, ¶ 10.
¶ 31 We do not perceive an order restricting mother’s ability to
grieve certain professionals, including those regulated by DORA, as
violating the constitutional separation of powers. Section
14-10-124(1.5), C.R.S. 2024, affords courts the authority to issue
orders allocating parental responsibilities in the best interests of the
children. See also § 14-10-129.5(2)(h), C.R.S. 2024 (providing that
in resolving disputes between parents, a court may issue “[a]ny
other order that may promote the best interests of the child or
children involved”). And while the authority to regulate
professionals such as doctors, therapists, and counselors is vested
in DORA, see § 24-1-122(3)(m)(I), (jj)-(mm), the courts are vested
with the authority to ensure that a parent who lacks medical
decision-making responsibility, like mother, does not interfere with
14 the children’s relationship with the professionals selected by the
other parent. § 14-10-124(1.5); § 14-10-129.5(2)(h); see also
§ 14-10-130(1), C.R.S. 2024 (providing that a parent “with
responsibility for decision-making may determine the child’s
upbringing, including his or her education, health care, and
religious training”).
¶ 32 Accordingly, the magistrate’s order does not constrain DORA’s
power to regulate professionals at all. Rather, it restricts mother
from grieving professionals without first obtaining court permission
and has an incidental or indirect impact on DORA’s statutory
duties. Thus, to the extent that such an order can be perceived as
interfering with the statutory duties of the Executive Branch, we
hold that such an order falls within the necessary and permissible
overlap between the branches of government. See Dee, 89 P.3d at
433; McDonnell, 864 P.2d at 567.
¶ 33 We are not otherwise persuaded by mother’s contention that
an order preventing her from grieving certain professionals without
court permission lacks an applicable legal standard by which to
assess a proposed grievance. Section § 14-10-124(1.5) provides
that the children’s best interests guide the court in an allocation of
15 parental responsibilities proceeding, and we conclude that the
magistrate can determine whether a grievance was proposed in
good faith by mother in furtherance of the children’s best interests.
V. Attorney Fees
¶ 34 Mother requests her appellate attorney fees under section
14-10-119, C.R.S. 2024, due to the alleged disparities between the
parties’ respective economic circumstances. Because the district
court is better equipped to determine the factual issues regarding
the parties’ current financial resources, we direct it to address this
request on remand. See C.A.R. 39.1; In re Marriage of Schlundt,
2021 COA 58, ¶ 54.
¶ 35 Father requests his appellate attorney fees on the ground that
mother’s appeal was substantially groundless and frivolous. See
§ 13-17-102(4), (9)(a), C.R.S. 2024. Given our disposition, we deny
this request. See In re Marriage of Martin, 2021 COA 101, ¶ 42.
Father also requests attorney fees under section 14-10-129.5(4),
but that section authorizes an award of fees only against a parent
who has failed to provide or exercise court-ordered parenting time,
which is not at issue in mother’s appeal. Thus, we also deny
father’s request for attorney fees on that basis.
16 VI. Disposition
¶ 36 We reverse the portions of the order providing that mother
“cannot grieve any professional unless granted Court permission to
do so.” We remand the case for further proceedings consistent with
this opinion and direct the court to follow the remand instructions
set forth in part III(B) above. Those portions of the order not
challenged on appeal remain undisturbed.
JUDGE J. JONES and JUDGE BROWN concur.