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 May 22, 2025
2025COA51
No. 23CA1608, Parental Responsibilities Concerning C.E.S.K. — Family Law — Parental Responsibilities — Permanent Orders — Death of Party Before Entry of Permanent Orders; Courts and Court Procedure — Jurisdiction of Courts — Subject Matter Jurisdiction
Applying case law involving the pre-decree death of one spouse
in a dissolution of marriage proceeding, a division of the court of
appeals holds that, in an allocation of parental responsibilities
proceeding exclusively between two fit parents, the death of one
parent before the entry of permanent orders divests the district
court of jurisdiction and requires dismissal of the case. The
division further concludes that, having lost jurisdiction upon the
death of the parent, a district court may not create a new case or
controversy by subsequently allowing another party to intervene. COLORADO COURT OF APPEALS 2025COA51
Court of Appeals No. 23CA1608 Adams County District Court No. 21DR30037 Honorable Judith L. Labuda, Judge
In re the Parental Responsibilities Concerning C.E.S.K., a Child,
and Concerning Noah Ryan Somma,
Appellant,
and
Diane E. Kanagy,
Intervenor-Appellee.
JUDGMENT VACATED, ORDER REVERSED, AND CASE REMANDED WITH DIRECTIONS
Division V Opinion by JUDGE SCHOCK Freyre and Sullivan, JJ., concur
Announced May 22, 2025
Law Office of Joel M. Pratt, LLC, Joel M. Pratt, Colorado Springs, Colorado, for Appellant
Law Office of Madeline Wilson, Madeline Wilson, Denver, Colorado, for Intervenor-Appellee ¶1 When parties seek an allocation of parental responsibilities
(APR) in a dissolution of marriage proceeding, the pre-decree death
of one spouse immediately abates the action and divests the court
of jurisdiction to enter any further orders in the case, including an
APR order. In re Marriage of Connell, 870 P.2d 632, 633-34 (Colo.
App. 1994); Wood v. Parkerson, 430 P.2d 467, 468-69 (Colo. 1997).
¶2 This case presents a closely analogous scenario: the death of
one parent during a stand-alone APR proceeding between two fit,
unmarried parents. We hold that when no other party has
intervened at the time of the parent’s death, the same rule applies.
Thus, in an APR proceeding exclusively between two fit parents, the
death of one parent before a permanent APR order has been entered
divests the court of jurisdiction and requires dismissal of the case.
¶3 In this case, Noah Ryan Somma (father) petitioned for an APR
as to his daughter, C.E.S.K. (the child), who was then living with
the child’s mother (mother). While the case was pending, mother
died. After her death, the child’s maternal grandmother, Diane E.
Kanagy (maternal grandmother), moved to intervene and sought her
own APR. The district court granted the motion and entered
1 permanent orders allocating majority parenting time and sole
decision-making responsibility to maternal grandmother.
¶4 Father appeals the permanent orders, arguing, among other
things, that the district court lost jurisdiction over the case upon
mother’s death. We agree. We therefore vacate the judgment and
remand the case to the district court to dismiss it. We also reverse
the award of attorney fees in favor of maternal grandmother.
I. Background
¶5 The child was born in 2020 and lived with mother in maternal
grandmother’s home for approximately the first two years of her life.
Maternal grandmother assisted mother in caring for the child.
¶6 In January 2021, father petitioned for an APR, requesting
“50/50 custody” of the child. The petition named mother — and
only mother — as a respondent. Mother responded and requested
that father be limited to supervised parenting time in her home and
that she be awarded sole decision-making responsibility. No one
else entered an appearance or moved to intervene at that time.1
1 Several months later, father’s parents (paternal grandparents) filed
a motion to intervene, which the district court magistrate denied.
2 ¶7 In November 2021, a district court magistrate entered
temporary orders designating mother as the primary residential
parent and awarding father incrementally increasing parenting
time. By February 2022, father had parenting time for a twenty-
four-hour period, including an overnight, each weekend. The
magistrate found no concerns with the safety or sobriety of either
parent. The court set a permanent orders hearing for July 2022.
¶8 Approximately two weeks before the hearing, in late June,
mother tragically died. Mother’s counsel notified the court, and the
magistrate converted the permanent orders hearing into a status
conference. In the meantime, the child began living with father.
¶9 At the status conference, father’s counsel explained that father
had been “working with maternal grandmother . . . over the past
couple of weeks to transition [the child] into his care,” and he
requested that the child continue to be in his care. Maternal
grandmother was not present or represented at the hearing. But
the magistrate asked mother’s counsel if maternal grandmother was
“planning to enter as a party into the case.” Mother’s counsel said
that she was “not exactly sure” and that “at this point [maternal
grandmother was] just trying to make a transition as best that she
3 can.” The magistrate then set the case for another status
conference “to see if [maternal grandmother] [was] interested in
pursuing grandparent visitation or APR as an intervenor or not.”
¶ 10 Later that month, maternal grandmother moved to intervene
in the ongoing APR proceeding. She asserted that father had been
“disallowing [the child] sufficient overnight/daytime visits with
maternal grandmother” and requested a shared parenting schedule
between herself and father. Father opposed the motion, arguing
that maternal grandmother did not have standing to seek an APR.
¶ 11 The magistrate found that maternal grandmother had
standing because she had physical care of the child for at least six
months before filing her motion, § 14-10-123(1)(c), C.R.S. 2024, and
granted the motion to intervene. The magistrate then ordered that,
to “maintain[] the status quo,” the temporary orders would remain
in effect “except that wherever the order refers to [m]other . . . [it]
shall now refer to [m]aternal [g]randmother.” In other words, the
magistrate granted maternal grandmother the same temporary
parenting time and responsibilities that mother had.
¶ 12 Father petitioned for district court review of the magistrate’s
temporary order. The district court concluded that the magistrate’s
4 findings concerning maternal grandmother’s standing were
insufficient, and it set a further hearing to address that issue.
¶ 13 Father then sought the return of the child to his care through
a petition for writ of habeas corpus, asserting that because
maternal grandmother’s standing had yet to be established, she had
no right to keep the child in her care. The magistrate denied the
petition and awarded maternal grandmother $1,450.79 in attorney
fees under section 13-17-102, C.R.S. 2024.
¶ 14 After a second hearing on standing in December 2022, the
district court made additional findings and concluded that maternal
grandmother had standing to seek an APR. In April 2023, the
district court held a permanent orders hearing and entered
permanent orders designating maternal grandmother as the child’s
primary residential parent, awarding her sole decision-making
responsibility, and granting father parenting time on weekends.
II. Jurisdiction Over APR Proceeding
¶ 15 Father argues that mother’s death — before any other party
had intervened in the case — deprived the district court of
jurisdiction over the case and rendered its subsequent orders void.
Because mother’s death ended the case or controversy as to the
5 parties’ respective parental rights and responsibilities, we agree.
We further hold that, having lost jurisdiction, the court could not
create a new case or controversy by allowing maternal grandmother
to intervene in father’s defunct APR proceeding against mother
rather than initiating a new APR proceeding. We thus vacate the
judgment and direct the district court to dismiss the case. As a
result, we do not address father’s other challenges to the APR order.
A. Subject Matter Jurisdiction
¶ 16 Subject matter jurisdiction concerns a court’s authority to
decide a matter. Dunafon v. Krupa, 2020 COA 149, ¶ 7. With
limited exceptions not relevant in this case, a court’s jurisdiction is
confined to the resolution of live cases or controversies. Davidson v.
Comm. for Gail Schoettler, Inc., 24 P.3d 621, 623 (Colo. 2001).
Thus, when the case or controversy before the court ends, so
generally does the court’s jurisdiction. Id. And a judgment entered
without subject matter jurisdiction is void. Dunafon, ¶ 7; see also
In re Marriage of Stroud, 631 P.2d 168, 170 (Colo. 1981).
¶ 17 We review the district court’s subject matter jurisdiction de
novo. In re Marriage of Roth, 2017 COA 45, ¶ 13. Although father
did not raise this issue in the district court, a challenge to subject
6 matter jurisdiction cannot be waived and may be raised at any time
during the case, including for the first time on appeal. Town of
Carbondale v. GSS Props., LLC, 169 P.3d 675, 681 (Colo. 2007).
B. Abatement Upon Death of Party
¶ 18 Under the common law rule of abatement, all legal actions
died with the parties. Sharon v. SCC Pueblo Belmont Operating Co.,
2019 COA 178, ¶ 12. That rule has been supplanted in most civil
actions by the survival statute, which allows an action to be
continued against the personal representative of the deceased
party. See § 13-20-101, C.R.S. 2024; Sharon, ¶ 12. But the
survival statute generally does not apply to claims for relief that are
“entirely personal” to the deceased party. Sharon, ¶ 19 n.6.
¶ 19 One such type of action is a dissolution of marriage
proceeding. See Connell, 870 P.2d at 633 (noting that “[a] divorce
action is purely personal in nature”). When a party to a dissolution
proceeding dies before the final decree, the action immediately
abates and the district court is divested of jurisdiction to proceed
further in the case. Id. at 633-34; see also Est. of Burford v.
Burford, 935 P.2d 943, 952 (Colo. 1997). That is because the object
of the action — the termination of the parties’ marriage — is fully
7 realized by the death of one of the parties. Connell, 870 P.2d at
633. The survival statute does not preempt this “long-established
rule of abatement” in dissolution proceedings. Id. at 634.
¶ 20 This rule of abatement extends to an APR within a pending
dissolution of marriage proceeding. See Wood, 430 P.2d at 468. In
Wood, the wife died while the parties’ divorce proceeding was still
pending. Id. Upon the wife’s death, her parents were substituted
as parties to the action and entered into a stipulation with the
husband that gave the husband “sole care and custody” of the
couple’s children and the wife’s parents visitation rights. Id. The
district court entered an order approving the stipulation. Id.
¶ 21 The supreme court vacated the order for lack of jurisdiction.
Id. at 469. It concluded that the district court “had no jurisdiction
to enter any order relating to the custody of the minor children or
any right of visitation in connection therewith” because the action
abated upon the wife’s death. Id. at 468. The court reasoned that a
divorce action is “of a purely personal nature” and that
[t]he power of the court in such an action to . . . make orders relative to the care and custody of the children is merely incidental to the primary object of changing the status or relation of the parties to each other. Such
8 actions, in the absence of a statute providing to the contrary, abate absolutely upon the death of either party before judgment and cannot be revived in the name of or against the representatives of the deceased party.
Id. at 468-69 (citation omitted).
C. Application to APR Proceeding
¶ 22 In light of Connell and Wood, it is clear that if mother and
father had been married and the APR had arisen in the context of a
dissolution proceeding, see § 14-10-123(1)(a)(I), mother’s death
would have divested the district court of jurisdiction. But no
Colorado case addresses the effect of a parent’s death on a stand-
alone APR proceeding outside the dissolution context. Addressing
that question, we conclude that when the APR proceeding is
exclusively between two fit parents, the same rule applies.2
¶ 23 In such an action, both parents are presumed to act in the
best interest of the child and have a “fundamental right and
2 The magistrate found in the temporary orders that there were “no
concerns” regarding the safety or sobriety of either party and that father was “stable, employed, and . . . lives in a home that he owns.” The district court later found in its permanent orders that father is a “fit parent.” We do not address a scenario in which the surviving parent has been found to be an unfit parent. Cf. People in Interest of S.A.G., 2021 CO 38, ¶ 21 (explaining that a district court may make factual findings relevant to subject matter jurisdiction).
9 responsibility for the care, custody, and control of the child.” In re
B.J., 242 P.3d 1128, 1132, 1135 (Colo. 2010); see also Troxel v.
Granville, 530 U.S. 57, 68, 72 (2000); In re Marriage of DePalma,
176 P.3d 829, 832 (Colo. App. 2007). The sole issue is how the
parties will share those rights and responsibilities. See § 14-10-
124(1), (1.5), C.R.S. 2024. Like a spouse’s death in a dissolution
proceeding, a parent’s death during a pending APR proceeding fully
resolves that issue. See Connell, 870 P.2d at 633. With only one
surviving parent (who is fit), there are no longer any parental rights
to “allocate” because there is only one person with any such rights.
¶ 24 Moreover, like a dissolution proceeding, an APR proceeding
between two fit parents is “purely personal in nature.” Id. Because
of the unique rights parents have concerning the care and custody
of their child, no one can step into the deceased parent’s shoes the
way a personal representative can in a civil action for damages. See
§ 13-20-101(1). Indeed, many of the factors a court must consider
when allocating parental responsibilities are inherently personal to
the parties, including the wishes of the parents, the interaction and
interrelationship of the child with the parents, and the ability of the
parties to encourage the sharing of love, affection and contact
10 between the child and the other party. § 14-10-124(1.5)(a). Those
considerations cannot simply be substituted with the interests of a
third party. See In re Adoption of C.A., 137 P.3d 318, 327 (Colo.
2006) (holding that a parent and a nonparent are not on equal
footing with respect to the best interests of the child).
¶ 25 This conclusion is crystallized when, as in this case, no one
has intervened in the APR proceeding at the time of the parent’s
death. When mother died, the only parties to the proceeding were
mother and father. There was thus no one to challenge or rebut
father’s presumed right to care for his own child. See DePalma, 176
P.3d at 832 (“Colorado courts recognize a presumption that a
biological parent has a first and prior right to the custody of his or
her child.”); see also 3A Stephen A. Hess, Colorado Practice Series,
Methods of Practice § 101:4, Westlaw (6th ed. database updated May
2024) (noting that no judicial proceeding is necessary to establish
parents as guardians of their own unemancipated minor children).
The dispute was limited to how to allocate the parental
responsibilities between mother and father. Mother’s death ended
that dispute, leaving the court with no live case or controversy over
which to exercise jurisdiction. See Davidson, 24 P.3d at 623.
11 ¶ 26 We recognize that there is a potential distinction between a
dissolution proceeding — which, by its nature, is an action between
the parties — and a stand-alone APR proceeding — which is
centered on the best interests of the child. See §§ 14-10-124(1.5),
14-10-123.4, C.R.S. 2024 (recognizing rights of children in
determination of parental responsibilities). But mother’s death —
coupled with the absence of any other party contesting father’s
parenting rights — ended any live case or controversy concerning
the best interests of the child as well. At that point, father was left
with the unrebutted presumption that his care and custody of the
child were in the child’s best interests. See B.J., 242 P.3d at 1133.
¶ 27 We are not persuaded that Abrams v. Connolly, 781 P.2d 651,
657 (Colo. 1989), is to the contrary. In Abrams, the mother died
several years after a final dissolution decree awarded her sole
custody of the parties’ children. Id. at 653. Upon her death, one of
the children remained in the physical custody of a third party whom
mother had designated as the child’s guardian in her will. Id. In
rejecting father’s argument that he immediately became vested with
custody of the child, the supreme court held that “[u]pon the death
of a divorced custodial parent . . . the district court retains
12 authority to enter further orders on legal custody of the minor child,
even if the surviving parent has assumed physical custody of the
child subsequent to the death of the custodial parent.” Id. at 658.
¶ 28 But the critical distinction between Abrams and this case is
that, in Abrams, there had already been a final order designating
the mother as the sole “custodial parent” — i.e., allocating parental
responsibilities to her. See § 14-10-124(1.5), C.R.S. 1988 (providing
that a court may order sole custody after making a finding as to the
child’s best interests); Wood, 430 P.2d at 469 (distinguishing a case
where a custodial parent dies after the divorce decree is entered
from one where the parent dies before the decree); see also § 14-10-
103(4), C.R.S. 2024 (explaining that as of February 1, 1999, “the
term ‘custody’ and related terms such as ‘custodial’ and ‘custodian’
have been changed to ‘parental responsibilities’”). The district court
therefore retained continuing jurisdiction to enforce and modify its
custody order. See In re Marriage of Wells, 780 P.2d 62, 63 (Colo.
App. 1989) (noting that district court has continuing jurisdiction in
dissolution case to modify custody order after it has been entered).
¶ 29 In contrast, at the time of mother’s death, there was no
“custodial parent,” as that term was used in Abrams, because the
13 district court had not entered permanent orders. Although it had
entered temporary orders, such orders do not determine or
“prejudice the rights of the parties or the child which are to be
adjudicated at subsequent hearings in the proceeding.” § 14-10-
108(5)(a), C.R.S. 2024. Thus, when mother died, the district court
had not yet made any determination as to which parent was to be
allocated parental responsibilities. See In re Marriage of Fickling,
100 P.3d 571, 574 (Colo. App. 2004) (holding that temporary orders
do not grant “parenting time rights”); In re Marriage of Monteil, 960
P.2d 717, 719 (Colo. App. 1998) (noting that a “custodial parent” is
determined in permanent orders and holding that a temporary
order does not make the residential parent a “custodial parent”).
¶ 30 That brings us back to where we began. At the time of
mother’s death, the APR proceeding was still pending, with mother
and father as the sole parties. The “object sought to be attained” by
father’s petition — an allocation of the parties’ respective parental
rights and responsibilities — was therefore fully realized by
mother’s death. Connell, 870 P.2d at 633 (citation omitted). Mother
could not exercise any rights, and no one else claimed any, leaving
no live case or controversy. Thus, as in Wood, the APR proceeding
14 “abated upon the death of [mother] and . . . thereafter the [district]
court had no jurisdiction to enter any order relating to the [parental
responsibilities for] the minor child[].” Wood, 430 P.2d at 468.
D. Maternal Grandmother’s Motion to Intervene
¶ 31 We next consider whether maternal grandmother’s motion to
intervene — filed one month after mother’s death and granted five
months later — could revive the district court’s jurisdiction over the
APR proceeding initiated by father. We conclude that it could not.
¶ 32 In an APR proceeding commenced by a parent, the respondent
is the child’s other parent, guardian, custodian, or person allocated
parental responsibilities. § 14-10-123(2). Maternal grandmother
was none of those, and she was not named as a respondent in the
case. And although “other interested parties” may be permitted to
intervene in an APR proceeding upon a showing of good cause, id.,
maternal grandmother had not done that by the time of mother’s
death either. See People in Interest of J.G., 2021 COA 47, ¶ 14
(“Generally, intervenors are granted the same rights as all other
parties.”). Thus, at the point that the district court lost jurisdiction
15 over the case, maternal grandmother was not a party and had not
sought any parental rights or responsibilities as to the child.3
¶ 33 It was only one month after mother’s death that maternal
grandmother moved to intervene, seeking for the first time a
“shared parenting schedule” with father. But by then, there was no
longer a live APR proceeding for maternal grandmother to intervene
in because the underlying dispute — between father and mother —
had been extinguished. See Adams v. Langdon, 826 S.E.2d 236,
240 (N.C. Ct. App. 2019) (“[W]here one parent dies in the midst of a
custody action, but before the grandparent seeks to intervene, there
was no ongoing custody action in which the grandparent could
intervene . . . .”); McDuffie v. Mitchell, 573 S.E.2d 606, 608 (N.C. Ct.
App. 2002). Intervention necessarily presupposes the existence of
an ongoing APR proceeding between the petitioner and the
respondent. And in any event, having lost jurisdiction, the district
3 We do not address a situation in which a grandparent (or other
interested party) moves to intervene in the APR proceeding before the death of the parent. See Alexander v. Alexander, 856 S.E.2d 136, 151-52 (N.C. Ct. App. 2021) (holding that where grandparents have intervened in a custody proceeding before the parent dies, the district court retains jurisdiction over the grandparents’ request).
16 court lacked the authority to enter an order allowing maternal
grandmother to intervene. See Connell, 870 P.2d at 633-34.
¶ 34 The personal nature of the parental rights and responsibilities
at issue distinguishes this case from a situation in which a party
sues a deceased (or nonexistent) defendant and later amends the
complaint to name a proper party. See Currier v. Sutherland, 218
P.3d 709, 713 (Colo. 2009) (holding that a court has subject matter
jurisdiction over a case involving a deceased defendant). In such a
case, the underlying case or controversy persists, but the deceased
party simply lacks the capacity to litigate it. See id. In contrast, in
an APR proceeding, the death of one parent, with one fit parent
surviving — like the death of a spouse in a dissolution proceeding
— ends the underlying dispute. See Connell, 870 P.2d at 633-34;
Wood, 430 P.2d at 468. Unlike a deceased defendant’s estate,
maternal grandmother could not take the place of mother in that
dispute. Instead, her claim presented an entirely different dispute.
¶ 35 None of this means that maternal grandmother was without a
remedy. If maternal grandmother could establish her standing, she
could commence her own APR proceeding to establish her parental
responsibilities. § 14-10-123(1)(c). But absent an ongoing live case
17 or controversy, she could not piggyback on husband’s petition to do
so. See § 14-10-123(1), (2) (authorizing any interested party to
intervene in an APR proceeding but limiting the commencement of a
proceeding to parties who meet specific statutory requirements).
¶ 36 We recognize that the district court effectively treated maternal
grandmother’s motion to intervene as a new APR petition by
requiring her to satisfy section 14-10-123(1)(c). And we further
acknowledge the inefficiencies of dismissing the case and starting
over in a new one seventeen months after father’s petition was filed.
But neither we nor the district court may ignore a jurisdictional
defect for the sake of expediency. See People in Interest of J.W. v.
C.O., 2017 CO 105, ¶ 21 (“‘[J]urisdiction’ is the court’s authority to
hear and determine a matter; it is the court’s power to decide.”).
¶ 37 Because the district court lacked jurisdiction to proceed in the
case once mother died, the permanent orders are void and the case
should be dismissed.4 See Dunafon, ¶ 7; Connell, 870 P.2d at 634.
4 Because the APR proceeding must be dismissed, the temporary
order must also be vacated. § 14-10-125(3), C.R.S. 2024.
18 III. Award of Attorney Fees for Habeas Petition
¶ 38 Father also challenges the district court’s award of attorney
fees to maternal grandmother under section 13-17-102 in
connection with his unsuccessful petition for writ of habeas corpus.
We agree that the attorney fee award must be reversed.5
A. Jurisdiction, Timeliness of Appeal, and Preservation
¶ 39 We first note that our conclusion that the district court lacked
jurisdiction to adjudicate the merits of the APR proceeding does not
mean it lacked jurisdiction to enter the fee award. Because section
13-17-102 involves the collateral issue of whether a party has
abused the judicial process, such sanctions “may be imposed
despite a court’s lack of subject matter jurisdiction to adjudicate
the underlying merits of the action.” Consumer Crusade, Inc. v.
Clarion Mortg. Cap., Inc., 197 P.3d 285, 289 (Colo. App. 2008).
¶ 40 We also reject maternal grandmother’s conclusory assertion
that father’s appeal of the attorney fee award was untimely. An
5 Although the attorney fee award arises out of a petition for writ of
habeas corpus, father’s appeal concerns only the award of attorney fees and not the denial of the habeas petition. See § 13-14- 102(1)(e), C.R.S. 2024 (providing that the court of appeals does not have jurisdiction over appeals from writs of habeas corpus).
19 award of fees under section 13-17-102 is not appealable until a
judgment has been entered on the merits of the underlying action.
State Farm Fire & Cas. Co. v. Bellino, 976 P.2d 342, 343-44 (Colo.
App. 1998); see also State ex rel. Suthers v. CB Servs. Corp., 252
P.3d 7, 13 (Colo. App. 2010) (holding that C.R.C.P. 11 sanctions
were not final, appealable orders). Thus, by timely appealing the
permanent orders, father timely appealed the attorney fee award.
¶ 41 Finally, we reject maternal grandmother’s contention that
father somehow failed to preserve the issue by failing to argue it in
the district court. Father specifically contested the award of
attorney fees in his petition for review of the magistrate’s order.
B. Standard of Review and Applicable Law
¶ 42 Our review of a district court order adopting a magistrate’s
decision is effectively a second layer of appellate review. In re
Marriage of Sheehan, 2022 COA 29, ¶ 22. We review an award of
attorney fees under section 13-17-102 for an abuse of discretion. In
re Marriage of Tognoni, 313 P.3d 655, 660-61 (Colo. App. 2011).
¶ 43 A court may award attorney fees if it finds that a party brought
an action, or any part of an action, that lacked substantial
justification. § 13-17-102(4). An action lacks substantial
20 justification if it is “substantially frivolous, substantially
groundless, or substantially vexatious.” § 13-17-102(9)(a). A claim
is frivolous if the party “can present no rational argument based on
the evidence or law in support of that claim.” Stepanek v. Delta
County, 940 P.2d 364, 369 (Colo. 1997). The purpose of the statute
is to deter egregious conduct. Id. A claim is not frivolous simply
because the court does not grant the requested relief. Remote
Switch Sys., Inc. v. Delangis, 126 P.3d 269, 275 (Colo. App. 2005).
¶ 44 In determining whether to award attorney fees under section
13-17-102 and the amount of such award, the court must consider
the relevant factors in section 13-17-103(1), C.R.S. 2024, and
explain how those factors justify a fee award. Tognoni, 313 P.3d at
661. Conclusory statements that a claim is frivolous, groundless,
or vexatious do not satisfy the statutory requirement of specificity.
In re Marriage of Aldrich, 945 P.2d 1370, 1379 (Colo. 1997).
C. Additional Background
¶ 45 After the magistrate’s temporary order substituting maternal
grandmother for mother, thereby making maternal grandmother the
child’s primary residential parent, the district court partially
granted father’s petition for review of that order. It concluded that
21 the magistrate’s findings regarding maternal grandmother’s
standing were insufficient and set a further hearing on that issue.
¶ 46 Two weeks later, before the subsequent hearing had been
held, father sought the return of the child to his care under section
13-45-102, C.R.S. 2024, which governs habeas corpus petitions in
civil cases. Father argued that, given the district court’s “rejection”
of the magistrate’s order, maternal grandmother was unlawfully
confining and restraining the child without any right to do so.
¶ 47 The magistrate denied father’s petition on the ground that the
temporary order awarding temporary care and control of the child
to maternal grandmother “remained in full force and effect.”
Without further explanation, the magistrate also found that father’s
petition was “groundless and frivolous,” and it awarded attorney
fees to maternal grandmother under section 13-17-102. The
magistrate later determined the amount of the award to be
$1,450.79. Father petitioned for district court review of the award,
and the district court initially adopted the magistrate’s order.
¶ 48 Father filed a motion for postjudgment relief, arguing that the
district court had erroneously applied the statute governing habeas
petitions in criminal cases, section 13-45-101, C.R.S. 2024, and
22 concluded that a writ of habeas corpus only applies to state action.
The district court agreed. But it nevertheless left the fee award in
place, finding that maternal grandmother had not illegally detained
the child because its order setting a hearing on the standing issue
did not vacate, modify, or reject the magistrate’s temporary orders.
D. Analysis
¶ 49 We agree with father that his habeas petition did not lack
substantial justification and that the award of attorney fees under
section 13-17-102 was therefore an abuse of discretion.
¶ 50 Section 13-45-102 authorizes a habeas petition in a civil case
when a person is “confined or restrained of his liberty under any
color or pretense,” including “by virtue of any judicial process or
order.” It may be “an available remedy to adjudicate custody of
children under certain circumstances,” such as when a third party
retains a child in violation of the petitioner’s “right to custody” of
the child. Lopez v. Smith, 360 P.2d 967, 969 (Colo. 1961); see also
People in Interest of A.J.C., 88 P.3d 599, 602-03 (Colo. 2004)
(describing writ of habeas corpus commanding the parties with
whom the child was living to return the child to the mother);
Fackerell v. Dist. Ct., 295 P.2d 682, 685 (Colo. 1956) (holding that
23 habeas corpus was a “proper remedy” for the child’s mother to seek
custody of her child who was adopted without notice to the mother).
¶ 51 As noted above, father had a fundamental right to the care
and custody of his child. B.J., 242 P.3d at 1135. On the other
hand, the sole legal basis for maternal grandmother’s retention of
the child was the magistrate’s temporary order. Although the
district court did not expressly vacate or reject that order, its
conclusion that the magistrate’s findings were insufficient and its
setting of a new hearing meant that the issue of maternal
grandmother’s standing had not yet been resolved. And until
maternal grandmother had established her standing, father’s right
to the care and custody of the child was superior to hers. See id.
¶ 52 Under these circumstances, father’s habeas petition for the
return of the child did not lack substantial justification. To the
contrary, father presented a rational argument based on the facts
and the law that the temporary order allocating primary parenting
time to maternal grandmother could not remain in effect while her
standing was undetermined. See Stepanek, 940 P.2d at 369; see
also Ainscough v. Owens, 90 P.3d 851, 855 (Colo. 2004) (“Standing
is a threshold issue that must be satisfied in order to decide a case
24 on the merits.”). The district court’s rejection of that argument did
not make it frivolous. See Remote Switch Sys., 126 P.3d at 275.
¶ 53 We therefore reverse the award of attorney fees to maternal
grandmother. See In re E.K., 2022 CO 34, ¶ 32.
IV. Appellate Attorney Fees
¶ 54 Maternal grandmother requests an award of her appellate
attorney fees under section 13-17-102 and C.A.R. 38 on the ground
that father’s appeal is frivolous. Because we have ruled in father’s
favor on the jurisdictional issue, we deny this request.
V. Disposition
¶ 55 The judgment is vacated, and the case is remanded to the
district court to dismiss the proceeding. The order awarding
attorney fees to maternal grandmother is reversed.
JUDGE FREYRE and JUDGE SULLIVAN concur.