2006-07 Family Law Update2006-07 Family Law Update

Presented by Ron Litvak and Tim Mehrtens

Litvak Litvak Mehrtens and Epstein, P.C.

CHILD SUPPORT CHILD SUPPORT DETERMINATION/DETERMINATION/

MODIFICATIONMODIFICATION

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IRM Salby, (CA, Oct. 6, 2005) IRM Salby, (CA, Oct. 6, 2005) (cert. denied Oct. 2, 2006)(cert. denied Oct. 2, 2006)

Finality of judgments. Finality of judgments. Must appeal financial part of Must appeal financial part of Temporary Orders when issued.Temporary Orders when issued.

Marital Agreement or Separation Agreement? Marital Agreement or Separation Agreement? Contemplation of DivorceContemplation of Divorce. See, e.g., . See, e.g., Marriage of Marriage of LafayeLafaye, 89 P.3d 455 (Colo.App. 2003)., 89 P.3d 455 (Colo.App. 2003).

Trial Court needed to make Trial Court needed to make sufficient findingssufficient findings to to know how conflicts in valuation were resolved.know how conflicts in valuation were resolved.

Voluntarily underemployment. Initial inquiry based on Voluntarily underemployment. Initial inquiry based on the the “shirking” standard“shirking” standard..

When should income from a second job be included When should income from a second job be included in support calculations? in support calculations? Intertwined jobs standard.Intertwined jobs standard.

IRM RoseIRM Rose(CA, Mar. 9, 2006)(CA, Mar. 9, 2006)

Husband appeals order requiring him to Husband appeals order requiring him to pay temporary maintenance and to pay temporary maintenance and to advance attorney fees and costs. advance attorney fees and costs.

Appellate court found that trial court had Appellate court found that trial court had appropriately determined Wife met the appropriately determined Wife met the threshold for an award of maintenance. threshold for an award of maintenance.

Appellate court approved procedure for Appellate court approved procedure for advancing prospective fees and costsadvancing prospective fees and costs. .

PARENTAL AUTHORITY AND PARENTAL AUTHORITY AND ITS LIMITSITS LIMITS

The New Open Window The New Open Window CourthouseCourthouse

IRM McSoudIRM McSoud(CA, Feb. 9, 2006)(CA, Feb. 9, 2006)

Deficiencies in a record are not basis for Deficiencies in a record are not basis for new trial unless effort has been new trial unless effort has been undertaken by counsel to reconstruct the undertaken by counsel to reconstruct the record. record.

Court had authority to divest a parent of Court had authority to divest a parent of decision making authority. decision making authority.

Court violated Mom’s constitutional rights Court violated Mom’s constitutional rights by restricting her from educating the child by restricting her from educating the child in her chosen religious beliefs. in her chosen religious beliefs.

Interest of DG, MG, AND SG Interest of DG, MG, AND SG (CA. May 18, 2006)(CA. May 18, 2006)

Court may not delegate determination of Court may not delegate determination of visitation to caseworkers, therapists, or visitation to caseworkers, therapists, or others.others.

Third Party VisitationThird Party Visitation

See Adoption of C.A. See Adoption of C.A. C.R.C.C.R.C. K.L.OVK.L.OV

Adoption of CA Adoption of CA (S.Ct. June 26, 2006)(S.Ct. June 26, 2006)

Dad dies when child’s 2; mom dies when child’s Dad dies when child’s 2; mom dies when child’s five. five.

Paternal GPs conditionally object to aunt and Paternal GPs conditionally object to aunt and uncle’s adoption, wanting visitation.uncle’s adoption, wanting visitation.

Magistrate grants visitation; district court agrees. Magistrate grants visitation; district court agrees.

In Appellate Court, holding is that, giving In Appellate Court, holding is that, giving appropriate weight to appropriate weight to Troxel v. Granville, Troxel v. Granville, court court needs to find needs to find endangermentendangerment..

Case proceeds to the Colorado Supreme Court.Case proceeds to the Colorado Supreme Court.

Adoption of CA (continued)Adoption of CA (continued)

Majority holds that:Majority holds that: 1. Court must make presumption in favor of 1. Court must make presumption in favor of

parents’ determinationparents’ determination 2. Burden is on GPs to establish, by clear and 2. Burden is on GPs to establish, by clear and

convincing evidence, that parents’ convincing evidence, that parents’ determination is not in best interests, and determination is not in best interests, and

2. Burden is on GPs to establish, by clear and 2. Burden is on GPs to establish, by clear and convincing evidence, that their schedule is in convincing evidence, that their schedule is in best interests.best interests.

Adoption of CA (continued)Adoption of CA (continued)

Justice Coats writes dissent: Justice Coats writes dissent: Agrees that the App Court went too far, but Agrees that the App Court went too far, but

believe the Majority did, too. believe the Majority did, too. Colorado’s GP statute is narrow, unlike Colorado’s GP statute is narrow, unlike

Washington statute in Troxel: Washington statute in Troxel: 1. Only GPs1. Only GPs 2. Only when custody has been disrupted. 2. Only when custody has been disrupted.

Magistrate gave special weight to desires of Magistrate gave special weight to desires of parents.parents.

Interest of C.R.C. Interest of C.R.C. (CA. Oct. 19, 2006)(CA. Oct. 19, 2006)

Great-Uncle seeks allocation of parental Great-Uncle seeks allocation of parental responsibilities responsibilities

C.R.S. §14-10-123(1) provides standing to seek C.R.S. §14-10-123(1) provides standing to seek allocation of parental responsibilities to 4 groupsallocation of parental responsibilities to 4 groups

Standing of non-parent must be narrowly Standing of non-parent must be narrowly construedconstrued

Court should consider: How did the child come Court should consider: How did the child come into care of the non-parent?into care of the non-parent?

Non-parent has burden to prove that parent Non-parent has burden to prove that parent voluntarily permitted non-parent to care for childvoluntarily permitted non-parent to care for child

Interest of K.L.OV, Interest of K.L.OV, (CA. Nov. 16, 2006)(CA. Nov. 16, 2006)

C.R.S. §19-1-117 allows grandparents to seek C.R.S. §19-1-117 allows grandparents to seek visitation in certain cases, including paternity.visitation in certain cases, including paternity.

Here, Grandmother does not meet C.R.C.P. 24 Here, Grandmother does not meet C.R.C.P. 24 requirements, which permit intervention when:requirements, which permit intervention when: A statute confers an unconditional right to intervene A statute confers an unconditional right to intervene

(C.R.C.P. 24(a)(1))(C.R.C.P. 24(a)(1)) Intervenor shows that her interest will be impaired or Intervenor shows that her interest will be impaired or

impeded by disposition of the action and her interest impeded by disposition of the action and her interest is not represented. is not represented. (C.R.C.P. 24(a)(2))(C.R.C.P. 24(a)(2))

Intervenor’s claim and the main action have a Intervenor’s claim and the main action have a question of law or fact in common. question of law or fact in common. (C.R.C.P. 24(b)(2))(C.R.C.P. 24(b)(2))

IRM Dauwe, IRM Dauwe, (CA. Jun. 1, 2006)(CA. Jun. 1, 2006)

Father appealed, seeking: Father appealed, seeking: 1.1. Equal parenting timeEqual parenting time

2.2. Joint decision making as to therapyJoint decision making as to therapy

3.3. Terminating SA and appointing PCTerminating SA and appointing PC

4.4. Releasing SA’s file for review. Releasing SA’s file for review.

Dauwe, ContinuedDauwe, Continued

1. Parenting time - resolved in discretion of trial 1. Parenting time - resolved in discretion of trial courtcourt

2. Therapy - record supported children’s need 2. Therapy - record supported children’s need for a forum for their issues and trial court was for a forum for their issues and trial court was simply resolving a long-standing dispute simply resolving a long-standing dispute between the parents.between the parents.

3. Court refuses to address SA/PC issue on 3. Court refuses to address SA/PC issue on appellate principle of mootnessappellate principle of mootness

4. SA file - At time, Chief Justice directive 4. SA file - At time, Chief Justice directive mandated file release, mandated file release, unless it would endanger unless it would endanger and person’s welfareand person’s welfare. .

IRM Yates, (CA. Jun. 29, 2006)IRM Yates, (CA. Jun. 29, 2006) This year’s omnibus case. Issues: This year’s omnibus case. Issues:

Parenting time and decision making in spouse abuse Parenting time and decision making in spouse abuse and child abuse context and child abuse context

Due Process Issues re time to present case Due Process Issues re time to present case Imputed IncomeImputed Income Allowing Special Advocates to questions witnessesAllowing Special Advocates to questions witnesses Maintenance - “reasonable needs” Maintenance - “reasonable needs” Standing to contest property division after bankruptcyStanding to contest property division after bankruptcy Standing to contest atty fees after bankruptcyStanding to contest atty fees after bankruptcy Permanent Injunction Permanent Injunction Authority to Order CounselingAuthority to Order Counseling

IRM DeZalia, IRM DeZalia, (CA. Nov. 30, 2006).(CA. Nov. 30, 2006).

C.R.S. §14-10-129(1)(a)(II) permits C.R.S. §14-10-129(1)(a)(II) permits the parent with the the parent with the majoritymajority of the of the parenting time to seek modification in parenting time to seek modification in order to relocate. order to relocate.

Courts interpretation of C.R.S. §14-Courts interpretation of C.R.S. §14-10-129: Parent with the 10-129: Parent with the majoritymajority of of parenting time should include parenting time should include parents who parents who shareshare parenting time parenting time equally.equally.

Guardians, Special Guardians, Special Advocates, Child Advocates, Child

Representatives, Child Representatives, Child and Family and Family

Investigators, and so Investigators, and so on and so forthon and so forth

DIVISION OF PROPERTYDIVISION OF PROPERTY

IRM Campbell, IRM Campbell, (CA. May 18, 2006)(CA. May 18, 2006)

Wife appeals POs as to Wife appeals POs as to Value of Interest in Husband’s law firmValue of Interest in Husband’s law firm Husband’s Income and Claimed UnderemploymentHusband’s Income and Claimed Underemployment Bankruptcy discharge of extraordinary medical expenses Bankruptcy discharge of extraordinary medical expenses

and attorney fee awardand attorney fee award Husband files Chapter 7 during divorce.Husband files Chapter 7 during divorce. Ct of Appeals remands: Ct of Appeals remands:

if dissipation exists, value asset as of last date it existed. if dissipation exists, value asset as of last date it existed. Concurrent jurisdiction; medical expense not Concurrent jurisdiction; medical expense not

discargeable.discargeable. Underemployment - no findings on issue, remanded to Underemployment - no findings on issue, remanded to

consider. consider.

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IRM Jorgensen, IRM Jorgensen, (CA. Aug. 10, 2006)(CA. Aug. 10, 2006)

Parties owned business, Husband stopped Parties owned business, Husband stopped paying lease, sold the business assets. paying lease, sold the business assets. Landlord sues on lease. Wife is guarantor.Landlord sues on lease. Wife is guarantor.

Economic fault, as a factor in dividing Economic fault, as a factor in dividing assets, needs to be confined so as not to assets, needs to be confined so as not to include marital fault. include marital fault.

Quantification case - how to value this Quantification case - how to value this contingent liability. contingent liability.

Wilson v. Prentiss, Wilson v. Prentiss, (CA. May 18, 2006)(CA. May 18, 2006)

In 1998 divorce, the parties indicated there In 1998 divorce, the parties indicated there were no assets. were no assets.

Former wife files partition action to divide Former wife files partition action to divide their real estate that hadn’t been disclosed their real estate that hadn’t been disclosed by either party. by either party.

Trial Court refuses to do so. Trial Court refuses to do so. Appellate court tells trial court to partition, Appellate court tells trial court to partition,

so long as it doesn’t contravene the so long as it doesn’t contravene the divorce decree. divorce decree.

IRM of Warkocz, (CA. Apr. 6, 2006)

Separation agreement granted wife a portion of Separation agreement granted wife a portion of husband’s military retirement, based on a “time husband’s military retirement, based on a “time rule” formula. rule” formula.

Trial Court denied wife’s motion to enforce this Trial Court denied wife’s motion to enforce this provision of the separation agreement.provision of the separation agreement.

Appellate Court held that The Uniformed Appellate Court held that The Uniformed Services Former Spouses’ Protection Act Services Former Spouses’ Protection Act (“USFSPA”) does not limit the equitable authority (“USFSPA”) does not limit the equitable authority of a state court to grant relief to the non-of a state court to grant relief to the non-employee spouse when military retirement pay is employee spouse when military retirement pay is converted to disability pay. converted to disability pay.

IRM Warkocz (continued)

The USFSPA and Supreme Court The USFSPA and Supreme Court decisions allow trial court to consider decisions allow trial court to consider economic consequences of a military economic consequences of a military retiree’s decision to waive retirement pay retiree’s decision to waive retirement pay in order to collect disability pay. in order to collect disability pay.

Trial Court not precluded from equitably Trial Court not precluded from equitably enforcing the parties’ agreement. enforcing the parties’ agreement.

Procedural and Evidentiary Procedural and Evidentiary MattersMatters

Taylor, (CA. Mar. 23, 2006)Taylor, (CA. Mar. 23, 2006)

Father’s rights terminated in favor of stepfather. Father’s rights terminated in favor of stepfather. Father claims insufficient notice, because there Father claims insufficient notice, because there

was no summons. (Held to be a technical defect was no summons. (Held to be a technical defect that was cured; no prejudice to him.)that was cured; no prejudice to him.)

Father claims he appeared at the courtroom Father claims he appeared at the courtroom door, but it was locked. (No Affidavit filed with door, but it was locked. (No Affidavit filed with his CRCP Rule 59 Motion.) his CRCP Rule 59 Motion.)

IRM Gutfreund and Hughes, IRM Gutfreund and Hughes, (S.Ct. Nov. 20, 2006)(S.Ct. Nov. 20, 2006)

Husband placed funds to cover disparities in Husband placed funds to cover disparities in Wife’s property division plus 1 year worth of Wife’s property division plus 1 year worth of interest, and Wife’s attorney’s fees without interest, and Wife’s attorney’s fees without interest, into the court registry. Wife did not have interest, into the court registry. Wife did not have access to the funds.access to the funds.

Post judgment interest must be paid whenever a Post judgment interest must be paid whenever a debtor party appeals a money judgment and the debtor party appeals a money judgment and the award is affirmed; interest must be paid from award is affirmed; interest must be paid from date of entry of judgment until judgment is date of entry of judgment until judgment is satisfied. C.R.S. 5-12-106(1)(a).satisfied. C.R.S. 5-12-106(1)(a).

IRM Cooprider, IRM Cooprider, (CA. May 18, 2006)(CA. May 18, 2006)

Father appeals ruling that his filing of a Father appeals ruling that his filing of a Motion for Review was UntimelyMotion for Review was Untimely

Apparently, granting a motion to extend Apparently, granting a motion to extend time to file a motion to under Rule 59 also time to file a motion to under Rule 59 also acts to extend the time to file a motion for acts to extend the time to file a motion for review. review.

Interest of F.A.G., Interest of F.A.G., (CA. Sept. 7, 2006)(CA. Sept. 7, 2006)

Father registers Texas decree under § 14-11-Father registers Texas decree under § 14-11-101. 101.

Files motion to modify parental responsibility and Files motion to modify parental responsibility and timetime

Registering and filing are within 2 years of entry Registering and filing are within 2 years of entry of Texas decree. Wife urges bar of 14-10-129 of Texas decree. Wife urges bar of 14-10-129 (1.5) and 14-10-131 (1). (1.5) and 14-10-131 (1).

Court holds that the two-year bar only applies to Court holds that the two-year bar only applies to a MOTION filed after entry of decree. a MOTION filed after entry of decree.

Matter of R.M.S., Matter of R.M.S., (S.Ct. Feb 13, 2006)(S.Ct. Feb 13, 2006)

Trial Court granted guardianship to Trial Court granted guardianship to paternal grandparents (who had paternal grandparents (who had testamentary preference) rather than testamentary preference) rather than maternal aunt and uncle (who claimed maternal aunt and uncle (who claimed best interests of child.) best interests of child.)

Aunt and uncle seek to vacate order. Aunt and uncle seek to vacate order.

IRM J.M.H. and Rouse, IRM J.M.H. and Rouse, (CA. Jun. 15, 2006)(CA. Jun. 15, 2006)

Adams County issues a marriage license to Rouse and 15 Adams County issues a marriage license to Rouse and 15 year old girl. (J.M.H.’s mother, approved of the marriage.)year old girl. (J.M.H.’s mother, approved of the marriage.)

Department of Human Services files petition to declare the Department of Human Services files petition to declare the marriage invalid.marriage invalid.

Trial court invalidates, holding person under 16 must Trial court invalidates, holding person under 16 must obtain judicial approval for a valid ceremonial or common obtain judicial approval for a valid ceremonial or common law marriage. law marriage.

Appellate court reverses. Common law marriage makes Appellate court reverses. Common law marriage makes references to the common law of England when it was references to the common law of England when it was adopted in Colorado. So, age of 14 for male; 12 for a adopted in Colorado. So, age of 14 for male; 12 for a female.female.

Subsequent statute has amended this English common Subsequent statute has amended this English common law. law.

IRM Ikeler, IRM Ikeler, (CA. Aug. 24, 2006)(CA. Aug. 24, 2006)

Use of separate property vehicle of Husband could Use of separate property vehicle of Husband could not be awarded to Wife unless waived or not be awarded to Wife unless waived or relinquished his right to the property. relinquished his right to the property.

Here, such a waiver occurred, but Court exceeded Here, such a waiver occurred, but Court exceeded the extent of the waiver.the extent of the waiver.

Caring for triplets: specific findings needed as to Caring for triplets: specific findings needed as to whether this constitutes an extraordinary situation whether this constitutes an extraordinary situation justifying babysitter expense for a non-employed justifying babysitter expense for a non-employed caregiving parent.caregiving parent.

Attorney fee waiver in a Marital Agreement is Attorney fee waiver in a Marital Agreement is enforceable, and not subject to conscionability enforceable, and not subject to conscionability review, like a waiver of maintenance.review, like a waiver of maintenance.

IRM Ikeler IRM Ikeler (cert.granted Dec. 18, 2006) (cert.granted Dec. 18, 2006)

Whether adoption of CO Marital Agreement Act Whether adoption of CO Marital Agreement Act C.R.S. §§14-2-301 to -310, eliminated the C.R.S. §§14-2-301 to -310, eliminated the common law review of unconscionability for a common law review of unconscionability for a waiver of attorney fees in a marital agreementwaiver of attorney fees in a marital agreement

Whether strict enforcement of waiver of attorney Whether strict enforcement of waiver of attorney fees in a martial agreement affects a child’s right fees in a martial agreement affects a child’s right to child support, when child support is at issue.to child support, when child support is at issue.

Whether waiver of attorney fees in a marital Whether waiver of attorney fees in a marital agreement is void as against public policy when agreement is void as against public policy when spousal maintenance, child support, and spousal maintenance, child support, and allocation of parental responsibilities are at issue. allocation of parental responsibilities are at issue.

Combs v. Tibbitts, Combs v. Tibbitts, (CA. Oct.5, 2006)(CA. Oct.5, 2006)

Putative spouses, those with a Putative spouses, those with a good faith belief good faith belief that they are marriedthat they are married, acquire the rights of a , acquire the rights of a legal spouse. C.R.S. §14-2-111legal spouse. C.R.S. §14-2-111

Enforceable Separation Agreements are those Enforceable Separation Agreements are those between “parties to a between “parties to a marriagemarriage attendant upon attendant upon their separation or the dissolution of their their separation or the dissolution of their marriage.” C.R.S. §14-10-112.marriage.” C.R.S. §14-10-112.

Even if the Separation Agreement is Even if the Separation Agreement is unenforceable, there is a rebuttable presumption unenforceable, there is a rebuttable presumption for child support for children for whom paternity for child support for children for whom paternity can be determined. C.R.S. §14-10-115(3)(a).can be determined. C.R.S. §14-10-115(3)(a).

IRM Sanchez-Vigil v. Rael, IRM Sanchez-Vigil v. Rael, (CA. Nov. 16, 2006)(CA. Nov. 16, 2006)

C.R.C.P. 107 permits attorney fees for C.R.C.P. 107 permits attorney fees for remedialremedial contempt, but not for contempt, but not for punitivepunitive contempt. contempt.

Parties’ Separation Agreement permitted Parties’ Separation Agreement permitted attorney fees for the prevailing party. attorney fees for the prevailing party.

Here, the Court granted attorney fees to Wife Here, the Court granted attorney fees to Wife according to their agreement, even though according to their agreement, even though Husband received punitive sanctions in the Husband received punitive sanctions in the criminal contempt hearing. criminal contempt hearing.

The EndThe End

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