Marriage of Thorburn

• Court: Colorado Court of Appeals
• Decided: July 21, 2022
• Docket: 21CA1006
• 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 July 21, 2022

2022COA80

No. 21CA1006, In re the Marriage of Thorburn — Family Law — Post-Dissolution — Modification of Parenting Time — Motion to Restrict Parenting Time or Parental Contact — Imminent Physical or Emotional Danger

In this post-dissolution of marriage proceeding, a division of

the court of appeals addresses, as a matter of first impression,

whether a motion under section 14-10-129(4), C.R.S. 2021,

requires the moving parent to prove, at the emergency hearing, that

the child is in imminent danger. Interpreting the plain language of

section 14-10-129(4) — and applying it in harmony with section 14-

10-129(1)(b)(I) — the division concludes that (1) under section 14-

10-129(4), a moving parent need not prove, at the emergency

hearing, that the child is in imminent danger; and (2) the district

court must apply the endangerment standard under section 14-10-

129(1)(b)(I) to continue any parenting time restriction. The record substantiates that, in assessing mother’s motion to restrict

parenting time, the correct legal standard was applied, so the

division affirms. COLORADO COURT OF APPEALS 2022COA80

Court of Appeals No. 21CA1006 Jefferson County District Court No. 19DR30372 Honorable Diego G. Hunt, Judge

In re the Marriage of

Danielle Jeanette Thorburn,

Appellee,

and

James M. Thorburn,

Appellant.

ORDER AFFIRMED AND CASE REMANDED WITH DIRECTIONS

Division V Opinion by JUDGE FOX Gomez, J., concurs Taubman*, J., dissents

Announced July 21, 2022

Miller Family Law, LLC, Kate Miller, Jessica Hoyt, Sophie Altman, Denver, Colorado, for Appellee

Thorburn Law Group, LLC, James D. Thorburn, Carolyn M. Schaffer, Greenwood Village, Colorado, for Appellant

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2021. ¶1 This appeal involves the interplay between subsections (1)(b)(I)

and (4) of section 14-10-129, C.R.S. 2021. Both subsections enable

a district court to restrict parenting time so that a child is safe from

physical and emotional endangerment. Subsection (1)(b)(I) applies

to any order that imposes or continues a parenting time restriction.

Subsection (4) allows a district court, on an emergency basis, to

restrict parenting time until a hearing can be held within fourteen

days. But where they differ is that subsection (1)(b)(I) does not

mention imminence while subsection (4) does. The import of that

difference is at the center of this appeal.

¶2 James M. Thorburn (father) challenges a magistrate’s decision

restricting his parenting time. According to him, the magistrate

incorrectly defined “imminent” under subsection (4) and, as a

result, failed to apply the appropriate legal standard.

¶3 Danielle Jeanette Thorburn (mother) counters that, even if the

magistrate wrongly defined “imminent,” it does not matter. She

argues that a motion to restrict parenting time under subsection (4)

is simply a procedural vehicle to get an emergency hearing and an

immediate parenting time restriction, nothing more. And at the

emergency hearing, she asserts, the general standards under

1 subsection (1)(b)(I) — applicable to all hearings to restrict parenting

time — govern.

¶4 For the reasons discussed below, we agree with mother. We

affirm the district court’s order adopting the magistrate’s decision

restricting father’s parenting time. But we remand the case to the

district court for further proceedings on mother’s request for

appellate attorney fees under section 14-10-119, C.R.S. 2021.

I. Relevant Facts and Procedural History

¶5 The parties’ marriage ended in February 2020. The

dissolution decree incorporated their parenting plan for their son,

J.C.T. Under the plan, J.C.T. would live primarily with mother.

The parties also agreed that father would follow a step-up parenting

time schedule, beginning with an overnight every week with the goal

of equal time in nine months.

¶6 On February 1, 2021, mother moved to restrict father’s

parenting time under section 14-10-129(1)(b)(I) and (4). She

alleged, among other things, that during father’s most recent

parenting time, J.C.T., then thirty-two months old, suffered a deep

gash on his forehead, requiring eight stitches. Father quickly

responded and asserted that J.C.T.’s injury was accidental.

2 ¶7 The next day, a magistrate deemed mother’s allegations

sufficiently pleaded, scheduled an emergency hearing for February

9, and ordered that father’s parenting time be supervised until

then.

¶8 Following the emergency hearing, at which only the parties

testified, the magistrate issued an oral ruling and directed mother’s

attorney to draft a proposed order.

¶9 For reasons unexplained in the record, both parties submitted

proposed orders, and the magistrate signed father’s order on

February 26, 2021.1

¶ 10 In the written order, the magistrate made the following

findings:

1 We appreciate that the magistrate gave both parties the opportunity to have input into the content of the proposed order. But after careful scrutiny, we determine that the written order (as proposed by father) is, at times, at odds with the oral ruling. For instance, the written order ignores the fact that the magistrate applied section 14-10-129(1)(b), C.R.S. 2021, in addition to section 14-10-129(4). Even so, we view the oral ruling as supplementing the written order. See Friends of Denver Parks, Inc. v. City & Cnty. of Denver, 2013 COA 177, ¶¶ 34-37 (district court’s oral findings supplement its written order); see also In re Marriage of Cespedes, 895 P.2d 1172, 1176 (Colo. App. 1995) (considering district court’s oral ruling in rejecting contention that its findings and conclusions were inadequate to support its order).

3  Between August 2019 and January 2021, J.C.T.

sustained five injuries while in father’s care.

 Three of the five injuries were “serious concussions,” and

another involved a significant “split lip.”

 Father’s explanations of J.C.T.’s injuries were not

credible.

 J.C.T.’s injuries were “unusual” and would not have

happened had father properly supervised him.

 There was an active investigation by the Jefferson County

Division of Children, Youth and Families regarding

mother’s allegations.

From those findings, the magistrate (1) rejected father’s definition of

“imminent” for purposes of section 14-10-129(4); (2) read

“imminent” to mean a “certainty” at some point in the future,

without “any form of immediacy”; (3) applied that definition and

section 14-10-129(1)(b)(I) and (4); and (4) determined that mother

had proved that J.C.T. was in imminent danger. In the end, the

magistrate continued father’s supervised parenting time and

imposed certain conditions that father must meet before requesting

a modification.

4 ¶ 11 On March 3, 2021, mother filed a motion to “set aside,” asking

the magistrate to reconsider the selection of father’s proposed order.

Nine days later, father petitioned for district court review.

¶ 12 Regarding father’s petition for review, the district court

adopted the magistrate’s decision. The court denied mother’s

motion to set aside to the extent that it sought review of the

magistrate’s decision. The court, however, remanded the case to

the magistrate with directions to resolve mother’s motion as it

related to the form of the magistrate’s written order.

¶ 13 Father then filed his notice of appeal. Based on a lack of

jurisdiction given the pending appeal, the magistrate on remand

declined to entertain mother’s motion to set aside.

II. Motion to Restrict Parenting Time Under Section 14-10-129(4)

A. Jurisdiction

1. Subject Matter Jurisdiction

¶ 14 At oral argument and later in his written supplemental

authority, father asserted that the district court order should be

vacated for lack of subject matter jurisdiction. He insisted that the

parties never consented to the magistrate’s jurisdiction. Father is

mistaken.

5 ¶ 15 A district court has subject matter jurisdiction when it has

been “empowered to entertain the type of case before it by the

sovereign from which the court derives its authority.” In re Marriage

of Roth, 2017 COA 45, ¶ 14 (quoting Wood v. People, 255 P.3d 1136,

1140 (Colo. 2011)). The Colorado Constitution vests a district court

with general subject matter jurisdiction in civil cases, which may be

limited by the legislature only when that limitation is explicit. See

Colo. Const. art. VI, § 9; see also Currier v. Sutherland, 215 P.3d

1155, 1159 (Colo. App. 2008), aff’d, 218 P.3d 709 (Colo. 2009).

“[D]omestic relations cases are ‘proceedings of a civil nature.’” In re

Marriage of Wollert, 2020 CO 47, ¶ 26 (quoting In re Marriage of

Durie, 2020 CO 7, ¶ 14).

¶ 16 Because this dissolution proceeding is civil in nature, the

district court (and the magistrate before it) had constitutionally

vested subject matter jurisdiction to hear the action, including

mother’s motion to restrict. See Colo. Const. art. VI, § 9; see also

Wollert, ¶ 26; Roth, ¶ 14.

¶ 17 To the extent father argues that the magistrate lacked

authority to act on mother’s motion to restrict, he is again

mistaken. C.R.M. 6(b)(1)(B) gives a magistrate the power to preside

6 over all motions to modify parental responsibilities without the

parties’ consent. See Evans v. Evans, 2019 COA 179M, ¶ 20; see

also In re Marriage of Roosa, 89 P.3d 524, 527 (Colo. App. 2004);

§ 13-5-201(3), C.R.S. 2021. So, regardless of the parties’ consent,

the magistrate had the authority to preside over mother’s motion to

restrict, which sought to modify the existing parenting time order.

2. Finality

¶ 18 Mother contends that the district court’s order is not final and

appealable because her motion to set aside the magistrate’s

approval of father’s proposed order remains pending before the

magistrate on remand. We disagree.

¶ 19 With limited exceptions not applicable here, our appellate

jurisdiction is limited to review of final judgments or orders. In re

Marriage of Evans, 2021 COA 141, ¶ 11; see also C.A.R. 1(a)(1);

§ 13-4-102(1), C.R.S. 2021.

¶ 20 A magistrate’s decision that fully resolves an issue or claim is

final. C.R.M. 7(a)(3); In re Marriage of January, 2019 COA 87, ¶ 12.

¶ 21 A party may obtain review of a magistrate’s final decision in a

proceeding, like this one, where consent was not necessary, by filing

a timely petition for review with the district court under C.R.M.

7 7(a)(5). Once a district court enters its order on review, a party may

appeal to this court. C.R.M. 7(a)(11); Heotis v. Colo. Dep’t of Educ.,

2016 COA 6, ¶ 15.

¶ 22 Here, father invoked district court review of the magistrate’s

decision to continue his supervised parenting time. After adopting

the decision, the court remanded the case to the magistrate to

resolve any dispute as to the form of the written order.

¶ 23 The district court could not, under C.R.M. 7, remand the issue

to the magistrate and the magistrate would have lacked authority to

act. At oral argument, mother described her motion as one for

reconsideration, which falls under either C.R.C.P. 59 or C.R.C.P.

60(b). A magistrate cannot rule on a motion to reconsider under

C.R.C.P. 59 or for relief under C.R.C.P. 60(b). In re Parental

Responsibilities Concerning M.B.-M., 252 P.3d 506, 510 (Colo. App.

2011); see also C.R.M. 5(a) (magistrate may correct clerical errors

under C.R.C.P. 60(a) but otherwise has no authority to rule on a

motion for rehearing). Because there was no relief the magistrate

could then grant, mother’s motion for reconsideration was

effectively denied.

8 ¶ 24 Therefore, the district court’s order and the underlying

magistrate’s decision are final and appealable, and we have

jurisdiction to consider them.

B. Standard of Review

¶ 25 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 that they have no support in the record. In re Marriage of

Young, 2021 COA 96, ¶ 8.

¶ 26 However, we review de novo questions of law, including

whether the magistrate properly interpreted a statute or applied the

correct legal standard. See Sheehan, ¶ 22; see also Wollert, ¶ 20.

C. Relevant Law

¶ 27 Section 14-10-129(1)(b)(I), commonly referred to as the

endangerment standard, applies to all motions to restrict parenting

time:

The court shall not restrict a parent’s parenting time rights unless it finds that the parenting time would endanger the child’s physical health or significantly impair the child’s emotional development. In addition to

9 a finding that parenting time would endanger the child’s physical health or significantly impair the child’s emotional development, in any order imposing or continuing a parenting time restriction, the court shall enumerate the specific factual findings supporting the restriction.

(Emphasis added.)

¶ 28 Section 14-10-129(4) allows a parent to obtain a parenting

time restriction on an emergency basis:

A motion to restrict parenting time or parental contact with a parent which alleges that the child is in imminent physical or emotional danger due to the parenting time or contact by the parent shall be heard and ruled upon by the court not later than fourteen days after the day of the filing of the motion. Any parenting time which occurs during such fourteen-day period after the filing of such a motion shall be supervised by an unrelated third party deemed suitable by the court or by a licensed mental health professional . . . .

¶ 29 A supervised parenting time requirement is a restriction on

parenting time. See In re Marriage of Parr, 240 P.3d 509, 512 (Colo.

App. 2010).

D. Discussion

¶ 30 For purposes of subsection (4), father defined “imminent” as

“near at hand or impending.” The magistrate rejected his definition:

10 “Imminent” in this context does not connote any form of immediacy. Rather, it is the certainty of the harm happening whether it is days, weeks, or months in the future. [I]t is not a question of “if” but “when” in this case. It does not matter if the “when” is an unspecific sometime in the future.

¶ 31 Father maintains that because the magistrate used an

inaccurate definition of “imminent,” the magistrate applied an

improper legal standard when deciding mother’s motion to restrict

under subsection (4).2

¶ 32 Mother asserts that the “imminent” standard applies only to

the district court’s initial determination as to whether a motion to

restrict parenting time under subsection (4) meets the particularity

requirement under C.R.C.P. 7(b)(1). See Wollert, ¶ 27 (particularity

2 Mother asserts that by merely citing the magistrate’s decision, father has not preserved this issue. But the magistrate expressly denied father’s argument concerning the correct legal standard to be applied, and father reasserted the same argument in his petition for district court review. Because the issue was raised before the magistrate and the district court, it is preserved. See In re Marriage of Dean, 2017 COA 51, ¶ 18 (issue was preserved when the mother raised the issue in her petition for district court review). For the same reasons, we disagree with the dissent’s expansive discussion of the perceived procedural issues. Whether mother was required to prove imminent harm was and continues to be central to the parents’ dispute.

11 requirement of C.R.C.P. 7(b)(1) applies to all motions to restrict

parenting time under section 14-10-129(4), and a hearing is

mandatory within fourteen days if the particularity requirement is

met). In other words, imminence need not be proved at the

emergency hearing, nor is the court required to make a specific

finding of imminence for the court to continue a parenting time

restriction. Rather, it is only relevant as a threshold determination

that entitles the moving party to a hearing. Thus, mother argues,

even if “imminent” was wrongly defined, the magistrate properly

applied the endangerment standard under subsection (1)(b)(I) when

continuing father’s supervised parenting time.

¶ 33 We agree with mother.3

¶ 34 When interpreting a statute, we must find and give effect to

the legislative intent. Wollert, ¶ 20. Our starting point is the

language of the statute itself, giving words and phrases their plain

and ordinary meanings. In re Marriage of Zander, 2019 COA 149,

¶ 12, aff’d, 2021 CO 12; see also § 2-4-101, C.R.S. 2021 (“Words

and phrases shall be read in context and construed according to

3Given our disposition, we do not opine on the propriety of the magistrate’s definition of “imminent.”

12 the rules of grammar and common usage.”). If the language is

clear, we apply the statute as written without resorting to other

tools of statutory construction. Wollert, ¶ 20.

¶ 35 In interpreting provisions of the Uniform Dissolution of

Marriage Act (UDMA), sections 14-10-101 to -133, C.R.S. 2021, we

do not read the provisions in isolation. In re Marriage of Schlundt,

2021 COA 58, ¶ 27. Rather, we must read the relevant provisions

of the UDMA together, harmonizing them if possible. See id.; see

also In re Marriage of Mack, 2022 CO 17, ¶ 13 (“[W]e examine ‘the

entire statutory scheme to give consistent, harmonious, and

sensible effect to all parts . . . .’” (quoting Vallagio at Inverness

Residential Condo. Ass’n v. Metro. Homes, Inc., 2017 CO 69, ¶ 16)).

¶ 36 The parties do not argue that either subsection (1)(b)(I) or (4) is

ambiguous or that the two conflict. We, too, see neither ambiguity

nor conflict.

¶ 37 Looking at the statutory scheme as a whole, we conclude that

subsections (1)(b)(I) and (4) work together to address motions to

restrict parenting time. See Schlundt, ¶ 27; see also Mack, ¶ 13.

¶ 38 We read the plain language of subsection (1)(b)(I) as applying

to all motions to restrict parenting time, including emergency

13 motions. Under subsection (1)(b)(I), the district court first must find

endangerment and then must make specific findings supporting its

decision to impose or continue a parenting time restriction.

¶ 39 Subsection (4), on the other hand, concerns extraordinary

situations of an “emergency nature” that pose an imminent risk to

the child’s safety. Wollert, ¶¶ 19, 31 (“Section 14-10-129(4)

attempts to accommodate the rights of each parent vis-à-vis

parenting time while prioritizing the rights of children to be safe and

protected from imminent physical or emotional danger.”). To that

end, the legislature, in drafting subsection (4), included the word

“imminent.” See In re Marriage of Bertsch, 97 P.3d 219, 221 (Colo.

App. 2004) (stating that the legislature is presumed to have acted

intentionally when it includes language in one section of a statute,

but omits it from another (citing United States v. Burch, 202 F.3d

1274, 1277 (10th Cir. 2000))).

¶ 40 Subsection (4) plainly states that the moving parent must

allege — not prove — that the child is in imminent physical or

emotional danger due to the parenting time or contact by a parent.

Then, the district court determines whether the moving parent has

sufficiently pleaded allegations -- including whether the danger is

14 threatening to occur at any moment -- requiring the court to take

urgent action by setting an emergency hearing within fourteen

days. See Wollert, ¶ 54 (For purposes of section 14-10-129(4),

“[i]mminence requires that the alleged harm is threatening to occur

at any moment and requires urgent action.”). Upon filing a

sufficient section 14-10-129(4) motion, any parenting time

occurring in that fourteen-day period must be supervised. And,

once a hearing is held on said motion, the court applies subsection

(1)(b)(I)’s general endangerment standard.

¶ 41 We conclude that the plain language of subsection (4) does not

require the movant to prove, at the emergency hearing, that the

child is in imminent danger. Instead, the statute only requires that

a motion allege that the child is in imminent danger; it is a means

of triggering a hearing within fourteen days and an immediate

parenting time restriction pending that hearing.

¶ 42 Our interpretation effectuates the legislative intent and gives

harmonious effect to both subsection (4) and subsection (1)(b)(I).

Specifically, this reading of subsection (4) is supported by two

practical reasons. First, at the time of the emergency hearing, the

automatic, temporary parenting time restriction has already been in

15 place, thereby removing the child from the alleged imminent

danger. An express finding of imminence at that point would be

moot. Second, after the hearing, if the district court finds

endangerment alone (without imminence), father’s interpretation

would force the district court to return the child to the same

dangerous environment. That cannot be what the legislature

intended. See In re Marriage of Turilli, 2021 COA 151, ¶ 38 (courts

must avoid statutory interpretations that would lead to illogical or

absurd results).

¶ 43 Father asserts that our interpretation would encourage “trials

by ambush.” He claims that if the emergency hearing becomes a

“standard modification or restriction proceeding” under subsection

(1)(b)(I), a responding parent would have to defend against the

allegations without the benefit of full discovery under C.R.C.P. 16.2.

We are not persuaded. Our reading of subsection (4) does not

prevent a responding parent from obtaining discovery before the

emergency hearing. Here — where only mother and father testified

and both were aware of the circumstances alleged in mother’s

motion — father never raised a discovery issue, nor did he seek a

continuance. And father cannot say that he was unfairly surprised

16 at the emergency hearing where mother’s motion to restrict

referenced subsection (1)(b)(I).

¶ 44 Nor are we persuaded by father’s other assertion that our

interpretation would create a “tool of gamesmanship.” If a motion

to restrict parenting time lacks substantial justification, the district

court must order the moving parent to pay the reasonable and

necessary attorney fees and costs of the other parent. Wollert, ¶ 29;

see § 14-10-129(5); C.R.C.P. 11.

¶ 45 We now apply the above principles to the present case.

E. Application

¶ 46 After considering father’s response to mother’s motion to

restrict, the magistrate deemed mother’s allegations of imminent

danger to be sufficiently pleaded. As a result, the magistrate set an

emergency hearing within fourteen days and imposed a supervised

parenting time requirement pending the hearing. That approach is

consistent with section 14-10-129(4).

¶ 47 Following the emergency hearing, the magistrate applied the

endangerment standard under section 14-10-129(1)(b)(I) and made

the required factual findings to support the decision to continue

father’s supervised parenting time.

17 ¶ 48 The evidence established that J.C.T. sustained several head

injuries while in father’s care from August 2019 to January 2021,

about a week before mother filed her motion to restrict. Mother

testified that none of them were “kid-being-kid” injuries and that

each one was worse than the last. The most recent injury resulted

in J.C.T. suffering a deep laceration on his forehead, down to the

bone, requiring eight stitches. Mother added that father wavered in

his explanation as to how the injury happened. He first said that

J.C.T. hit the corner of a “bed drawer,” then that he tripped over a

dog, and finally that he hit a coffee table.

¶ 49 From that evidence, the magistrate found that father’s pattern

of poor supervision endangered J.C.T. The magistrate also found

that father failed to provide reasonable and adequate explanations

for J.C.T.’s injuries. “[C]redibility determinations and the weight,

probative force, and sufficiency of the evidence, as well as the

inferences and conclusions to be drawn therefrom, are matters

within the sole discretion of the [district] court.” In re Marriage of

Lewis, 66 P.3d 204, 207 (Colo. App. 2003). The record supports the

magistrate’s endangerment finding.

18 ¶ 50 Father argues that the magistrate “should not have considered

[mother’s] conclusory statements of concussion.” He did not raise

this particular issue in his petition for district court review. See

People in Interest of K.L-P., 148 P.3d 402, 403 (Colo. App. 2006)

(party appealing a magistrate’s decision must first raise particular

issue in petition for review in district court). But even if it was

preserved, the magistrate found that mother’s evidence was

sufficient, and we see no reason to disturb that determination. See

Lewis, 66 P.3d at 207; see also In re Marriage of Amich, 192 P.3d

422, 424 (Colo. App. 2007) (district court can believe all, part, or

none of a witness’s testimony, even if uncontroverted).

¶ 51 Father also asserts that the magistrate erred by simply finding

that J.C.T. was endangered while in his care, instead of making a

specific finding that he actually committed or caused J.C.T.’s

injuries.4 However, the magistrate found, and the record supports,

4 Father also asserts that the magistrate erred because the legislature’s inclusion of “due to the parenting time or contact by the parent” within section 14-10-129(4) required mother, at the emergency hearing, to prove that he actually caused imminent danger to J.C.T. We disagree given our disposition that section 14- 10-129(4) is merely a vehicle to obtain an emergency hearing within fourteen days and a temporary parenting time restriction pending

19 that father’s actions or inactions during his parenting time

endangered J.C.T. See § 14-10-129(1)(b)(I). Indeed, the magistrate

said that the danger to J.C.T. was a result of father’s failure to

exercise a minimum degree of parental supervision.

¶ 52 Because the magistrate made the necessary findings under

section 14-10-129(1)(b)(I), supported by the record, that father

endangered J.C.T., we conclude that the magistrate properly

continued father’s parenting time restriction while allowing father to

work on safer parenting skills. See Young, ¶ 8; see also In re

Marriage of Hatton, 160 P.3d 326, 330 (Colo. App. 2007) (district

court has broad discretion over parenting matters and an appellate

court exercises every presumption in favor of the court’s parenting

time decisions).

¶ 53 In sum, the magistrate applied the correct legal standard in

assessing mother’s motion to restrict, and the record supports the

magistrate’s decision to continue father’s supervised parenting

time.

that hearing. In any event, the endangerment standard requires proof of causation. See § 14-10-129(1)(b)(I) (“The court shall not restrict a parent’s parenting time rights unless it finds that the parenting time would endanger the child[] . . . .”).

20 III. New Evidence

¶ 54 Next, father argues that the district court on review erred “as a

matter of law” by not reopening the proceeding under C.R.M. 7(a)(8)

based on new evidence. He points to a child welfare referral

assessment from the Jefferson County Division of Children, Youth

and Families, which concluded that the referral related to father

was unfounded. He relies solely on Romero v. Colorado Department

of Human Services, 2018 COA 2, ¶ 60, for the proposition that the

district court was required to “defer to an agency’s decision

involving factual and evidentiary matters within an agency’s

specialized or technical expertise.” That reliance is misplaced.

¶ 55 Romero involved an appeal from a district court’s review of a

final agency action. Id. at ¶ 25. The division said that it must defer

to an agency’s decision involving factual and evidentiary matters

within an agency’s specialized or technical expertise. Id. at ¶ 60.

However, the district court here was reviewing a magistrate’s

decision restricting parenting time, and, in that context, it was not

required, as a matter of law, to necessarily defer to an independent

child welfare referral assessment in conducting that review.

21 IV. Appellate Attorney Fees

¶ 56 Asserting that the parties’ financial resources are disparate,

mother asks for an award of her appellate attorney fees under

section 14-10-119.

¶ 57 In response, father argues that section 14-10-119 is

inapplicable because mother’s “action did not modify the original

decree.” He latches onto the following language in In re Marriage of

Burns, 717 P.2d 991, 993 (Colo. App. 1985): “[B]ecause the original

decree remained in force, there were no proceedings to which

[section] 14-10-119 . . . would be applicable.” Yet, when read in

context, the division in Burns concluded that the wife could not

recover any attorney fees under section 14-10-119 because her

C.R.C.P. 60(b) motion was outside the UDMA and did not result in

reopening the dissolution decree. Here, mother’s motion to restrict

was a proceeding under the UDMA, so section 14-10-119 applies.

See § 14-10-119 (court “from time to time” can order fees for

defending “any proceeding” brought under the UDMA).

¶ 58 That said, because the district court is better equipped to

resolve the factual issues concerning the parties’ current financial

22 circumstances, we remand the issue for its consideration. See In re

Marriage of Alvis, 2019 COA 97, ¶ 30; C.A.R. 39.1.

V. Conclusion

¶ 59 The order is affirmed. The case is remanded for the district

court to consider mother’s request for appellate attorney fees under

JUDGE GOMEZ concurs.

JUDGE TAUBMAN dissents.

23 JUDGE TAUBMAN, dissenting.

¶ 60 I agree with the majority that the principal issue in this case is

the interplay between subsections (1) and (4) of section 14-10-129,

C.R.S. 2021, concerning what a party must allege and prove at an

emergency hearing under the latter subsection. As the majority

notes, subsection (1)(b)(I) applies to motions to restrict parenting

time, whereas subsection (4) concerns motions to restrict parenting

time that allege a child is in “imminent physical or emotional

danger” due to the exercise of parenting time. Subsection (4)

requires that a motion filed under that subsection must be heard

and ruled on by the court no later than fourteen days after the date

such a motion is filed, but subsection (1)(b)(I) does not contain any

temporal requirements.

¶ 61 I disagree with the majority that, when a motion is filed under

subsection (4), a moving party must only allege, rather than prove,

imminent harm to a child, and I further disagree that imminent

harm was sufficiently alleged in this case. In addition, I think this

case raises significant procedural questions, including whether the

majority’s statutory analysis was raised before the magistrate and

the district court. Accordingly, for the reasons more fully discussed

24 below, I would reverse the district court’s order and the magistrate’s

order.

I. Background

¶ 62 Because the majority provides a detailed explanation of the

relevant facts and procedural history, I will add to it only briefly.

This is a contentious post-dissolution conflict between James M.

Thorburn (father) and Danielle Jeanette Thorburn (mother)

concerning their young son, born in 2018. The parties agreed that

mother would be the child’s primary residential parent and that

father would follow a step-up parenting time schedule.

¶ 63 Just one year after their dissolution of marriage became final

in February 2020, mother moved for an emergency hearing

regarding parenting time under subsection (4) on February 1, 2021.

She alleged that she was concerned about five incidents that had

occurred during father’s parenting time, including one the weekend

before the motion was filed that resulted in a one-and-a-half-inch

gash on her son’s forehead and father taking their son to a hospital

emergency room to be treated. Mother alleged that “father is

neglecting the child at his home and the child is therefore getting

injured while father is failing to watch him.” She further asserted

25 that father was not appropriately supervising their son during his

parenting time.

¶ 64 Although the motion cited subsections (1)(b)(I) and (4), it did

not allege that the son was in imminent physical or emotional

danger. Further, the motion did not explain how mother believed

those subsections relate to one another.

¶ 65 Following an emergency hearing on February 9, 2021, a

magistrate issued a signed minute order granting mother’s

requested relief, requiring father’s parenting time to be supervised,

and requiring him to complete parenting classes. The magistrate

found that physical harm or injury to the son was imminent while

in father’s care due to lack of proper supervision, even though he

found that father had not intentionally harmed the son. Although

the magistrate cited subsections (1)(b)(I) and (4), he did not address

how, if at all, those subsections relate to one another. The order

also directed mother’s attorney to draft a proposed order.

¶ 66 Seventeen days later, on February 26, the magistrate signed a

more extensive order prepared by father’s attorney. (That the

magistrate signed this order, instead of one drafted by mother’s

attorney, raises procedural issues that I discuss below.)

26 Significantly, this order did not cite section 14-10-129(1)(b)(I) and

concluded that “the moving party [mother] cannot utilize the

emergency measures to seek the more generalized grounds of

parenting restriction.” It further concluded that mother “did not

bring any evidence of specific acts or omissions by [father] that

would lead to imminent physical or emotional danger.” The

magistrate also found that the son’s five injuries were unusual and

would not have occurred if father had properly supervised the son.

It also determined that the son experienced “three serious

concussions at the hands of” father.

¶ 67 Finally, the court rejected father’s assertion that to be

imminent, there must be a showing that the alleged harm is near or

impending. This is another subject I discuss below.

¶ 68 Nearly three months later, the district court affirmed the

magistrate’s order. It concluded that the magistrate’s February 9

signed minute order “was not a final order or judgment subject to

review.” Therefore, the district court reviewed only the magistrate’s

February 26 order, finding that the order restricting father’s

parenting time was supported by ample evidence. Recognizing the

dispute about whether the magistrate had properly signed father’s

27 proposed order, the district court remanded the case to the

magistrate to address the parties’ motions concerning the form of

the order.

¶ 69 Significantly, the district’s order referred only to mother’s

motion under section 14-10-129 to restrict father’s parenting time

but did not cite the two subsections at issue here or say how, if at

all, they relate to one another.

II. Procedural Issues

¶ 70 In my view, three procedural issues militate in favor of

vacating the decisions of the district court and magistrate and

remanding the case for further proceedings, if necessary. First, I do

not believe the majority’s conclusion that mother properly preserved

for appellate review the argument that subsection (1)(b)(I) applies

automatically to all motions to restrict parenting time under

subsection (4) because this argument was not raised by mother

until this appeal. Second, the magistrate’s signing both a minute

order and a more comprehensive order raises issues of finality

beyond those addressed by the majority. Third, because I believe

the magistrate’s oral ruling and written order conflict, I disagree

28 with the majority that we may consider the magistrate’s oral ruling.

I discuss each of these issues in turn.

A. Was the Issue of the Relationship Between Subsections (1)(b)(I) and (4) Preserved for Appeal?

¶ 71 A cardinal rule of appellate procedure is that, subject to a few

exceptions not relevant here, an appellate court will not review an

issue raised for the first time on appeal. Est. of Stevenson v.

Hollywood Bar & Cafe, Inc., 832 P.2d 718, 721 n.5 (Colo. 1992);

Gravina Siding & Windows Co. v. Gravina, 2022 COA 50, ¶ 85, ___

P.3d ___, ___.

¶ 72 Here, mother’s motion to restrict parenting time “pursuant to

C.R.S. section 14-10-129(4)” cited that subsection and subsection

(1), but did not explain how subsection (1)(b)(I) applied, nor did it

assert that a party need allege, but not prove, imminent harm

under subsection (4). The magistrate’s February 9 minute order

cited both subsections, finding that the son was in imminent harm

or injury due to father’s lack of supervision. However, it did not

address, as the majority does, whether subsection (1)(b)(I) applies to

all motions to restrict parenting time, including those filed under

subsection (4), and did not address whether a parent must allege,

29 but need not prove, that a child is in imminent physical or

emotional harm due to the actions of a parent exercising parenting

time. While the magistrate’s oral ruling announced following the

February 9 hearing briefly mentioned the applicability of subsection

(1)(b)(I), that ruling should not be given any weight because it

conflicts with both its February 9 minute order and its February 26

written order, an issue I discuss below. Significantly, the

magistrate’s February 26 order (prepared by father) does not cite

subsection (1)(b)(I). With respect to subsection (4), that order states

that mother “did not bring any evidence of specific acts or

omissions by [father] that would lead to imminent physical or

emotional danger.”

¶ 73 Mother’s response to father’s motion to review the magistrate’s

February 26 decision did not mention subsection (1)(b)(I). Rather, it

cited only subsection (4) and focused on the evidence of imminent

harm that she had presented to the magistrate. It did not address

that the February 26 order did not mention subsection (1)(b)(I).

Further, mother’s response contended that the magistrate’s

February 9 minute order was a final order under C.R.M. 7. As

noted above, the district court’s decision reviewing the magistrate’s

30 February 26 order referred only to father’s motion based on section

14-10-129; it did not mention subsection (1)(b)(I) or (4) or their

relation to one another, and it did not assert that a party must

allege, but not prove, imminent harm under subsection (4).

¶ 74 In short, the two premises of the majority opinion — that

subsection (1)(b)(I) applies automatically to any motion filed under

subsection (4) and that a party must allege, but need not prove,

imminent harm under subsection (4) — were not raised as issues by

mother before the magistrate or the district court. The district

court did not address these issues at all, and, to the extent the

magistrate did, he did so in an oral ruling that is contradicted by

his written decisions. Accordingly, I believe these issues discussed

by the majority were not properly preserved for appeal and,

therefore, should not be addressed. See Est. of Stevenson, 832 P.2d

at 721 n.5.

B. Is There a Final, Appealable Order?

¶ 75 The majority rejects mother’s contention that the district

court’s order is not final and appealable because the district court

remanded the case to the magistrate to determine whether father’s

31 or mother’s proposed order should have been signed. It concludes

that the magistrate’s February 26 order was final and appealable

because the district court lacked authority under C.R.M. 7 to

remand the case to the magistrate to answer this question. I agree

with mother, albeit for different reasons.

¶ 76 The majority properly notes that, generally, our appellate

jurisdiction is limited to review of final judgments or orders. See In

re Marriage of Evans, 2021 COA 141, ¶ 11, 504 P.3d 988, ___.

¶ 77 Subsection (4) states, as relevant here, that a motion filed

under that subsection “shall be heard and ruled upon by the court

not later than fourteen days after the day of the filing of the

motion.” § 14-10-129(4). The district court concluded that the

magistrate’s signed minute order was arguably a final order subject

to review under C.R.M. 7(a)(3). It was heard and ruled on within

fourteen days of the filing of the February 1 motion. However, the

district court concluded that the signed minute order “was not a

final order or judgment subject to review.” In my view, the signed

minute order was not final and appealable because it contemplated

the preparation of an order prepared by mother’s attorney. In any

event, the February 9 order was not appealed.

32 ¶ 78 Instead, the February 26 order appealed from was ruled on

twenty-five days after mother’s motion was filed, making it untimely

under subsection (4). Although the parties did not raise this

timeliness issue before the magistrate, I conclude it constitutes

reversible error. In People in Interest of Clinton, 762 P.2d 1381

(Colo. 1988), the supreme court concluded that failure to comply

with a statutory requirement for appointing counsel forthwith in a

mental health civil commitment proceeding did not deprive the

court of subject matter jurisdiction. Nevertheless, the court

concluded that failure to comply with “an essential statutory

condition” may constitute reversible error. Id. at 1389. The court

explained that this requires an evaluation of the deviation from

statutory provisions and whether such deviation resulted in

prejudice to a party. Id. In In re Marriage of Slowinski, 199 P.3d 48,

52-53 (Colo. App. 2008), overruled on other grounds by In re

Marriage of Wollert, 2020 CO 47, ¶ 4, 464 P.3d 703, 706, a division

of the court of appeals held that the then seven-day limitation (now

fourteen days) to hold a hearing and issue a ruling under section

14-10-129(4) was an essential condition of the statute. It further

held that not abiding by the limitation in that case had prejudiced

33 the father, who had to experience several months of supervised

visitation. Id. I conclude that the magistrate’s February 26 order

did not comply with an essential condition of the statute — ruling

on a motion under section 14-10-129(4) within fourteen days. I

further conclude that this constitutes reversible error because it

limited father’s constitutional right to the care, custody, and control

of his son while he was limited to supervised visitation.

¶ 79 Some may conclude that because subsection (1)(b)(I) applies

automatically to any motion filed under subsection (4), the time

limitation in subsection (4) does not apply. Reaching this

conclusion, however, requires rendering the time limit in subsection

(4) a nullity; under the majority’s rationale, the time limit in

subsection (4) would never apply. See Slowinski, 199 P.3d at 53

(“[W]e are not persuaded that father waived his objection to the

court’s failure to rule within seven days [under the previous version

of subsection (4)] by participating in the hearings on mother’s

motion because the trial court indicated that it was proceeding

under both” subsections (1)(b)(I) and (4).).

¶ 80 Accordingly, I would reverse the district court’s order because

this appeal is from the magistrate’s untimely February 26 decision.

34 I would similarly vacate the magistrate’s February 26 order for the

reasons discussed above. Further, I would also vacate the

magistrate’s February 9 order because I agree with the district court

that it was not a final, appealable order. By its terms, it directed

mother’s attorney to draft a proposed order, and a further order was

not signed until February 26, well beyond the fourteen days

required by section 14-10-129(4).

C. May We Consider the Magistrate’s Oral Ruling?

¶ 81 I respectfully disagree with the majority’s conclusion that we

may view the magistrate’s oral ruling as supplementing his written

minute order. There are two problems with this conclusion. First,

this appeal concerns the magistrate’s February 26 decision, not his

February 9 minute order or the oral ruling accompanying it.

Second, the magistrate’s February 26 ruling does not supplement

his February 9 oral ruling; it conflicts with it. As noted, the

February 9 oral ruling briefly discusses the applicability of

subsection (1)(b)(I), but the February 26 written decision does not

cite that subsection, much less discuss it.

¶ 82 This issue is significant because the majority relies on the

magistrate’s oral ruling to explain its analysis that mother’s motion

35 embraced both subsections (1)(b)(I) and (4). However, if the

magistrate’s oral ruling is not considered, we are reviewing only the

magistrate’s February 26 written decision, which does not mention

subsection (1)(b)(I), and the district court’s decision, which only

cites generally to section 14-10-129.

¶ 83 Generally, a written order prevails over a conflicting oral

ruling. People in Interest of S.R.N.J-S., 2020 COA 12, ¶ 16, 486 P.3d

1201, 1205; Thyssenkrupp Safway, Inc. v. Hyland Hills Parks &

Recreation Dist., 271 P.3d 587, 589 (Colo. App. 2011). Thus, the

magistrate’s February 26 written ruling is what we are reviewing on

appeal in part, not the magistrate’s February 9 written minute order

or his oral ruling accompanying it.

¶ 84 Further, the case on which the majority relies in concluding

that the magistrate’s oral ruling supplements the written order is

distinguishable. In Friends of Denver Parks, Inc. v. City & County of

Denver, 2013 COA 177, ¶¶ 34-37, 327 P.3d 311, 316, a division of

this court concluded that a district court’s oral ruling on a

preliminary injunction satisfactorily supplemented the court’s

written ruling. However, the division did not address the rule that a

36 written order generally prevails over a conflicting oral ruling, and,

thus, the division’s holding is inapplicable here.

¶ 85 Accordingly, I would conclude that we should not consider the

magistrate’s oral ruling.

III. The Merits

¶ 86 Even if I assume that these procedural issues do not warrant

vacating the district court’s decision or dismissing this appeal, I

disagree with the majority’s statutory interpretation. Specifically, I

do not agree with the majority’s conclusions that (1) when a motion

is filed under subsection (4), the movant must allege but need not

prove imminent harm to a child; and (2) if a motion sufficiently

alleges imminent harm, the court applies subsection (1)(b)(I)’s

general endangerment standard. After setting forth the standard of

review and applicable law, I will discuss each issue in turn.

A. Standard of Review and Applicable Law

¶ 87 I agree with the majority that we must accept the magistrate’s

factual findings unless they are clearly erroneous. In re Marriage of

Young, 2021 COA 96, ¶ 8, 497 P.3d 524, 528.

¶ 88 However, the interpretation of a statute is an issue of law that

we review de novo. In re Marriage of Wollert, ¶ 20, 464 P.3d at 709.

37 When interpreting a statute, we must find and give effect to the

legislative intent. Id. To ascertain the legislative intent, we look

first to the language of the statute, giving words and phrases their

plain and ordinary meanings. Id.; § 2-4-101, C.R.S. 2021 (“Words

and phrase shall be read in context and construed according to the

rules of grammar and common usage.”). If the language is clear, we

apply the statute as written without resorting to other tools of

statutory construction. In re Marriage of Wollert, ¶ 20, 464 P.3d at

709.

¶ 89 Mother’s motion was filed under subsection (4) of section 14-

10-129, which provides in relevant part as follows:

A motion to restrict parenting time or parental contact with a parent which alleges that the child is in imminent physical or emotional danger due to the parenting time or contact by the parent shall be heard and ruled upon by the court not later than fourteen days after the day of the filing of the motion.

¶ 90 Subsection (1)(b)(I), referred to as the endangerment standard,

states,

The court shall not restrict a parent’s parenting time rights unless it finds that the parenting time would endanger the child’s physical health or significantly impair the child’s emotional development. In addition to

38 a finding that parenting time would endanger the child’s physical health or significantly impair the child’s emotional development, in any order imposing or continuing a parenting time restriction, the court shall enumerate the specific factual findings supporting the restriction.

B. Is Proof of Imminent Harm Necessary?

¶ 91 Father contends that the magistrate used an incorrect

definition of “imminent” when restricting his parenting time under

subsection (4). I agree.

¶ 92 Imminent has been defined as “threatening to occur

immediately” or “[a]bout to take place.” Black’s Law Dictionary 898

(11th ed. 2019). Similarly, that dictionary defines “immediate” as

“[o]ccurring without delay; instant.” Id. at 897.

¶ 93 In contrast, the magistrate applied a definition of imminent

that is contrary to the word’s plain meaning. He explained,

“Imminent” in this context does not connote any form of immediacy. Rather, it is the certainty of the harm happening whether it is days, weeks, or months in the future. It is not a question of “if” but “when” in this case. It does not matter if the “when” is an unspecific sometime in the future.

¶ 94 By defining “imminent” without any notion of immediacy, the

magistrate paraphrased the definition of “endanger,” the term used

39 in subsection (1)(b)(I). Endanger means “to bring into danger or

peril” or “to create a dangerous situation.” Merriam-Webster

Dictionary, https://perma.cc/AK8Z-RZUS. Merriam-Webster’s

examples illustrate the difference between “endanger” and

“imminent.” One example states, “[p]arents feared that the dog

could endanger their children.” Id. The other example says, “[t]he

severe drought has endangered crops throughout the area.” Id.

Both examples illustrate situations where potential danger exists

but is not likely to occur immediately.

¶ 95 Consequently, a situation that endangers reasonably causes

concern, but it does not involve a danger expected to occur

instantly. Because the magistrate used an incorrect definition of

“imminent harm,” I conclude that he improperly restricted father’s

C. The Relationship Between Subsections (1)(b)(1) and (4)

¶ 96 This difference in terms is crucial to understanding the

relationship between subsections (1)(b)(I) and (4) for several

reasons. First, to the extent the majority is correct in asserting that

a movant must allege, but need not prove, that a child is in

imminent danger in a motion brought under subsection (4),

40 employing an incorrect definition of “imminent” necessarily results

in a flawed conclusion regarding the sufficiency of the motion’s

allegations. Here, for example, mother alleged that the son had

been subject to several head injuries during an eighteen-month

period. She did not allege that the son was in imminent physical

danger.

¶ 97 Second, subsection (4) presumes that a court must find that

an existing parenting time order would place a child in imminent

physical or emotional danger. Otherwise, any parent, especially one

involved in a longstanding, post-dissolution of marriage conflict,

could easily curtail the other parent’s parenting time by simply

alleging imminent harm. The requirement that a court must

impose attorney fees and costs under subsection (5) against a

parent who files a frivolous motion to restrict parenting time would

not necessarily discourage this practice because contentious, post-

dissolution disputes seldom involve black-and-white issues.

¶ 98 Third, subsection (4) makes no reference to subsection (1)(b)(I),

and that section makes no reference to subsection (4). If the

General Assembly had intended all motions filed under subsection

(4) with sufficient particularity to automatically trigger the

41 application of subsection (1)(b)(I), it would have said so. Instead,

the language in subsection (1)(b)(I) requiring the court to enumerate

its specific factual findings “in any order imposing or continuing a

parenting time restriction” must be construed together with the first

part of that sentence, which applies “[i]n addition to a finding that

parenting time would endanger the child’s physical health or

significantly impair the child’s emotional development.” § 14-10-

129(1)(b)(I). The latter phrase, of course, is the standard applicable

to motions brought under subsection (1)(b)(I), not those under

subsection (4).

¶ 99 I do not agree that an express finding of imminence would be

moot when the court holds a hearing under subsection (4) because

a temporary parenting time restriction has already been in place. If

a court were to conclude that the moving parent had not

established imminent harm, an express finding of lack of

imminence would not be moot but would result in the denial of the

motion.

¶ 100 Contrary to the majority’s concern that a court’s finding of

endangerment without imminence would force the court to return a

child to a dangerous situation, that circumstance would not occur

42 under my reading of the statutory scheme. Rather, at a hearing on

a motion filed under subsection (4), the court would only determine

whether a child is subject to “imminent physical or emotional

danger.” If this standard is not met, the court could determine

whether the endangerment standard had been met under a

previously or subsequently filed motion. The latter motion would

not need to be heard and ruled on within fourteen days of the date

of its filing, and it would allow the parties to undertake discovery

and call more witnesses than would be possible when an emergency

hearing is scheduled under subsection (4). Here, for example,

father presented in his petition for review to the district court a

Department of Human Services report concluding that mother’s

allegations were unfounded. Because this report was not issued

until nine days after the emergency hearing, father could not

present it then, and, subsequently, the district court declined to

consider it. Had mother filed a motion under subsection (1)(b)(I),

father could have called the author of the report and sought to

refute any allegations of endangerment proffered by mother.

¶ 101 The supreme court’s recent decision in In re Marriage of

Wollert does not require a contrary conclusion. There, the supreme

43 court addressed when a motion to restrict parenting time under

subsection (4) requires a hearing to be held within fourteen days of

the filing of the motion. In re Marriage of Wollert, ¶ 2, 464 P.3d at

706. Overruling Slowinski, 199 P.3d 48, in part, the court held that

the particularity requirement of C.R.C.P. 7(b)(1) is the proper

standard to review a motion under subsection (4). Id. at ¶ 4, 464

P.3d at 706. Although In re Marriage of Wollert concerned a

disputatious dissolution of marriage case that had been active for

fourteen years, the supreme court nevertheless concluded that the

allegations of the subsection (4) motion were sufficient, relying on

an allegation in the motion that a therapist had opined that the

child there was in “imminent psychological and emotional danger.”

Id. at ¶ 35, 464 P.3d at 712. Here, in contrast, mother’s motion

contained no allegation of imminent physical or emotional danger.

¶ 102 While the supreme court stated that subsection (4) “requires a

party to allege, not prove, imminent physical or emotional danger,”

id. at ¶ 36, 464 P.3d at 712, that statement is clearly dicta because

the supreme court only ruled on the standard needed to trigger a

hearing under subsection (4). See People v. Stellabotte, 2018 CO

44 66, ¶ 28, 421 P.3d 174, 179-80 (statements that are dicta do not

govern in a subsequent case).

IV. Conclusion

¶ 103 For both the procedural and substantive reasons stated above,

I would reverse the district court’s order.