Marriage of Stephens

• Court: Colorado Court of Appeals
• Decided: February 6, 2025
• Docket: 24CA0488
• Status: Unpublished

Opinion

24CA0488 Marriage of Stephens 02-06-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0488 El Paso County District Court No. 17DR30157 Honorable Laura N. Findorff, Judge

In re the Marriage of

James Todd Stephens,

Appellant,

and

Elena Zharinkova Stephens,

Appellee.

JUDGMENT AFFIRMED

Division V Opinion by JUDGE SCHOCK Freyre and Sullivan, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced February 6, 2025

The Drexler Law Group LLC, Matthew B. Drexler, Teresa A. Drexler, M. Addison Freebairn, Colorado Springs, Colorado, for Appellant

Brighter Day Law, Elizabeth M. Thomas, Angela C. Jones, Jason D. Hilton, Sydney F. Bierwirth, Anica K. Midthun, Wende J. Rutherford, Stephanie L. Bourn, Colorado Springs, Colorado, for Appellee ¶1 In this post-dissolution of marriage proceeding between James

Todd Stephens (father) and Elena Zharinkova Stephens (mother),

father appeals the district court’s judgment adopting a magistrate’s

order finding father in remedial contempt. We affirm.

I. Background

¶2 In 2017, father petitioned to dissolve the parties’ thirteen-year

marriage. The district court dissolved the marriage and adopted the

parties’ stipulated parenting plan concerning their only child.

¶3 The stipulated parenting plan provided for joint decision-

making responsibilities with respect to areas of major decisions,

including health decisions. The parenting plan provided as follows:

Health. Major issues which require a joint decision include the selection or change of providers, seeking a referral to other providers or specialists from the primary provider, undergoing non-routine treatment/testing, and whether the child attend any form of therapy (including OT, PT, ABA, Speech, etc. . . .), or counseling (individual, family, or group). Non-routine treatment or testing shall be defined as any other treatment or testing outside of 1) yearly physicals or 2) acute illness/injury such as strep- throat/influenza/cold/cuts.

¶4 Several years later, mother filed a motion for contempt against

father asserting, among other things, that father was administering

1 vitamin supplements to the child without first consulting her, and

over her objection, in violation of the parenting plan.

¶5 After a hearing, the magistrate found father in remedial

contempt, concluding that he administered adult vitamins,

including zinc, iron, and vitamin A, to the child without mother’s

agreement and was engaging in “quackery” at the child’s expense.

As a sanction, the magistrate ordered neither party to give the child

vitamins without a recommendation from the child’s doctor.

¶6 Father petitioned the district court for review. The district

court adopted the magistrate’s finding that father was in contempt

by violating the parenting plan. But it rejected the sanction

prohibiting the parties from giving vitamins to the child unless

recommended by a doctor as beyond the magistrate’s jurisdiction.

II. Contempt

¶7 Father contends that the magistrate erred by finding him in

contempt — and the district court erred by adopting that finding —

because there was no evidence that father administered vitamins to

the child as a “non-routine” treatment. We are not persuaded.

2 A. Applicable Law and Standard of Review

¶8 We review an order of contempt for an abuse of discretion. In

re Marriage of Sheehan, 2022 COA 29, ¶ 23. A district court abuses

its discretion when its decision is manifestly arbitrary,

unreasonable, unfair, or based on a misapplication of the law. Id.

¶9 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. C.R.M. 7(a)(9); Sheehan, ¶ 22. Our review of the

district court’s decision is effectively a second layer of appellate

review, and, like the district court, we must accept the magistrate’s

factual findings unless they lack record support. Sheehan, ¶ 22.

B. Analysis

¶ 10 The parenting plan required joint decision-making for, among

other things, “non-routine treatment.” The magistrate found in his

written order that father’s administration of vitamin supplements to

the child was a “non-routine treatment,” and thus, a major decision

requiring joint decision-making. To the extent father asserts that

the magistrate did not make this finding, he is incorrect.

3 ¶ 11 Father attacks this finding, arguing that (1) the administration

of vitamins is not treatment; and (2) even if it was, it is routine. But

the record supports the magistrate’s findings to the contrary.

¶ 12 First, we reject father’s contention that there can be no

treatment in the absence of a diagnosed condition. By father’s

logic, he could submit the child to any number of unorthodox

treatments — even serious and substantial treatments — for

perceived conditions without consulting mother, so long as there

was no underlying diagnosis indicating such treatment. We decline

to interpret the parenting plan in such an irrational manner.

¶ 13 Second, even if giving a child vitamins could be routine, the

record supports the magistrate’s finding that father was giving the

vitamins to the child as a “non-routine treatment.” Mother testified

that the child is “very small for his age” and that the parties had

seen an endocrinologist to “make sure that [the child] is getting

everything that he needs for his growth.” She also explained that

father “made the decision to give [the child] adult vitamins based on

online research that he did for the growth issues the child has.”

The administration of “adult vitamins” to a child for “growth issues”

could reasonably be found to constitute “non-routine treatment.”

4 ¶ 14 Moreover, mother supported this testimony with an online

article that father had given to her and the child’s pediatrician in

connection with their discussions about the child’s size and his

possible need for vitamins. The article — entitled “‘Functional food’

for acceleration of growth in short children born small for

gestational age” — states that its objective is “[t]o assess the effect

of nutritional supplementation on growth in short children born

small for gestational age (SGA).” Although father had written next

to that sentence, “not [the child] I believe,” he had also circled and

starred the article’s conclusion, which provides that “[s]ix months of

vitamin A, iron and zinc supplementation induces growth

acceleration in short children born SGA with subnormal nutrients

intake similar to growth hormone therapy.” This further supports

the finding that the vitamins were given as “non-routine treatment.”

¶ 15 We acknowledge father’s testimony that his goal in providing

the vitamins was simply to get the child “100 percent of vitamins he

should have in a day.” And on appeal, father reiterates that he was

“not using vitamins to treat any condition.” But even father tied his

administration of the vitamins to the child’s growth, citing the

article for the proposition that if a child does not get the necessary

5 vitamins, “it can stunt [the child’s] growth.” He also explained that

the purpose of the article was to say that “these vitamin[s] can have

an impact on growth.” In any event, it was the magistrate’s role to

resolve conflicting evidence as to father’s purpose in giving the child

the vitamins. See In re Marriage of Evans, 2021 COA 141, ¶ 45.

¶ 16 Father also suggests that we must accept his testimony that

he was not using the vitamins to “treat” any condition because the

magistrate did not find his testimony not credible. But the

magistrate’s comment that father was engaging in “quackery” along

with his finding that father’s administration of the vitamins was a

“non-routine treatment” necessarily indicates that the magistrate

found mother’s evidence on this point more credible than father’s.

¶ 17 Finally, father asserts that the district court erred by saying

that the magistrate found that father was giving the vitamins to the

child to treat the child’s small stature. But while the magistrate did

not say that expressly, we agree with the district court that it was

implicit in the magistrate’s finding that father was engaging in

“quackery” and administering the vitamins as “non-routine

treatment,” without the pediatrician’s recommendation. See In re

6 Marriage of Nelson, 2012 COA 205, ¶ 41 (recognizing that a court’s

findings may be implicit in its ruling).

¶ 18 Thus, the record supports the magistrate’s contempt findings,

including that father violated the parenting plan by administering

“non-routine treatment” without consulting mother. We therefore

will not disturb that finding or the order finding father in contempt.

See Aspen Springs Metro. Dist. v. Keno, 2015 COA 97, ¶ 27; In re

Marriage of Webb, 284 P.3d 107, 108-09 (Colo. App. 2011).

III. Evidentiary Challenge

¶ 19 Father also asserts that the magistrate abused his discretion

by asking father’s counsel why a proffered exhibit was relevant and,

in so doing, acting as an advocate for mother. Because father did

not preserve this issue for appeal, we decline to address it.

¶ 20 First, father’s counsel did not object when the magistrate

questioned the relevancy of the exhibit. To the contrary, she agreed

with the magistrate, acknowledging “I suppose it would not be

[relevant],” and moved on to another question. Because father did

not object to what he now claims was inappropriate advocacy from

the magistrate, he cannot make that argument for the first time on

appeal. See In re Marriage of Crouch, 2021 COA 3, ¶ 13.

7 ¶ 21 Father contends that the issue is preserved because the

magistrate brought the issue to his own attention and ruled on it.

See In re Marriage of Turilli, 2021 COA 151, ¶ 12. But even if the

magistrate’s question could be considered a ruling on the relevancy

of the exhibit, father’s argument is not simply that the exhibit

should have been admitted — an argument father likely waived by

his counsel’s concession. It is that the magistrate acted improperly

by even asking father’s counsel how the exhibit could be relevant.

That argument was never brought to the magistrate’s attention.

¶ 22 Second, even if father had preserved this issue before the

magistrate, he did not present it to the district court in his petition

for review. See In re Marriage of Thorburn, 2022 COA 80, ¶ 50

(noting that party appealing a magistrate’s decision must first raise

particular issue in petition for review in district court). Father

asserts that this issue was encompassed by his argument in the

petition that the magistrate showed bias in other ways — namely,

by admitting a purportedly abandoned exhibit and failing to address

mother’s alleged violation of the parenting plan. But neither of

these arguments addressed the magistrate’s question about the

relevancy of the exhibit, which is the issue father raises on appeal.

8 IV. Attorney Fees

¶ 23 Mother requests an award of her appellate attorney fees and

costs as a sanction under C.A.R. 38(d) on the ground that father’s

appeal was frivolous. We deny this request. Although father did

not prevail, we do not conclude that his appeal was frivolous. See

In re Marriage of Boettcher, 2018 COA 34, ¶ 38 (“Fees should be

awarded only in clear and unequivocal cases when the appellant

presents no rational argument, or the appeal is prosecuted for the

purpose of harassment or delay.”), aff’d, 2019 CO 81.

V. Disposition

¶ 24 The judgment is affirmed.

JUDGE FREYRE and JUDGE SULLIVAN concur.