Marshall v. Marshall

183 P.3d 699, 2008 Colo. App. LEXIS 540, 2008 WL 879734

• Court: Colorado Court of Appeals
• Decided: April 3, 2008
• Docket: 07CA0418
• Status: Published

Opinions

Opinion by

Judge RUSSELL.

Plaintiff, Kirk A. Marshall (father), appeals from the trial court's judgment in favor of defendant, Karen W. Marshall (mother). We affirm in part, reverse in part, and remand with directions.

Father sued mother for damages, alleging that she had breached contracts and committed torts during a dispute over parenting time that arose from the dissolution of their marriage. Acting sua sponte, the trial court dismissed father's action under C.R.C.P. 12(b)(1). The court ruled that the dissolution court had exclusive jurisdiction over the subject matter of father's complaint.

Father contends that the trial court erred in dismissing his action. He argues that the court overlooked section 14-10-129.5(4), C.R.98.2007, which allows a party to bring an independent tort action for damages sustained in a dispute over parenting time. We agree in part.

Section 14-10-129.5(4) provides:

[The court shall order a parent who has failed to provide court-ordered parenting time or to exercise court-ordered parenting time to pay to the aggrieved party, attorney's fees, court costs, and expenses that are associated with an action brought pursuant to this section. In the event the parent responding to an action brought pursuant to this section is found not to be in violation of the parenting time order or schedule, the court may order the petitioning parent to pay the court costs, attorney fees, and expenses incurred by such responding parent. Nothing in this section shall preclude a party's right to a separate and independent legal action in tort.

(Emphasis added.)

Because the statutory language is plain and clear, we apply it as written. In re 2000-2001 Dist. Grand Jury, 97 P.3d 921, 924 (Colo.2004). This plain language supports three observations:

1. Section 14-10-129.5(4) does not create a new cause of action. It merely ree-ognizes that parenting time disputes may involve conduct that constitutes a statutory or common law tort. Seq, eg., § 19-3-304(4)(b), C.R.S.2007 (a person who willfully makes a false report of child abuse or neglect "shall be liable for damages proximately caused thereby"); see also D & D Fuller CATV Constr., Inc. v. Pace, 780 P.2d 520, 523-24 (Colo.1989) (recognizing tort of interference with the parent-child relationship).

2. If a parenting time dispute gives rise to a tort claim for damages, that claim must be brought, not in the dissolution court (which is authorized to award only attorney fees, court costs, and expenses), but in a court that has jurisdiction over the parties and subject matter. Cf. Simmons v. Simmons, 773 P.2d 602, 605 (Colo.App.1988) ("policy considerations preclude either permissive or compulsory joinder of interspousal tort claims, or non-related contract claims, with dissolution of marriage proceedings").

3. Section 14-10-129.5(4) does not suggest that breach of contract claims may be based on a parent's failure to comply with a parenting time agreement or order. The dissolution court retains exclusive jurisdiction over that subject matter. Cf. Mockelmann v. Mockelmann, 121 P.3d 337, 339 (Colo.App.2005) (claims concerning property that was the subject of a dissolution action must be brought in the dissolution court).

In light of these observations, we conclude that the trial court properly dismissed father's claims for breach of contract. Because those claims are based on allegations that mother failed to comply with parenting time agreements and orders, any relief could be granted only by the dissolution court.

We further conclude, however, that the court erred in dismissing father's tort claims under C.R.C.P. 12(b)(1). The court had subject matter jurisdiction over those claims, even though the claims arose from a dispute over parenting time. See § 14-10-129.5(4); Minto v. Lambert, 870 P.2d 572, 575 (Colo.App.1993) ("[Slubject matter jurisdiction concerns the court's authority to deal with the class of cases in which it renders judgment."). We express no opinion about the potential viability of father's tort claims under C.R.C.P. 12(b)(5), see Allen v. Evans, 193 Colo. 61, 63, 562 P.2d 752, 753-54 (1977), but remand the case so that the trial court may evaluate those claims and conduct further proceedings as necessary.

The portion of the judgment that concerns father's claims for breach of contract is affirmed. The judgment is otherwise reversed, and the case is remanded for further proceedings on father's tort claims.

Judge ROMAN concurs. Judge MARQUEZ * specially concurs.