IN RE the MARRIAGE OF Penny Brabb TURILLI, and Cross-Appellee, and Steven Daniel Turilli, and
2021 COA 151
Colo. Ct. App.2021Background
- Parties stipulated a 2015 separation agreement (incorporated into the decree) allocating parental responsibilities and prescribing father’s regular parenting time (Thu after school–Sat) and advance travel notices.
- On March 25–26, 2020 mother took the children to California overnight during the COVID-19 pandemic over father’s objection and without the required notice.
- Father filed an emergency motion under § 14-10-129(4) seeking return/restriction of parenting time, later withdrew that motion after a stipulation that the children would return; he then filed a § 14-10-129.5 motion seeking makeup parenting time and attorney fees.
- After a two-day hearing the trial court found mother violated the parenting-time order, awarded father 30 days of makeup parenting time (over nine months) and attorney fees, but limited the fee award to $6,545 for work after the § 14-10-129.5 filing (denying fees for the initial emergency § 14-10-129(4) work).
- Mother appealed (challenging exclusion of certain evidence, the makeup-time remedy, and the fee award without a reasonableness hearing); father cross-appealed the denial of fees for the emergency motion. The Court of Appeals affirmed the merits, reversed the fee award for failure to hold a requested reasonableness hearing, remanded for that hearing, and held that mandatory fees under § 14-10-129.5(4) apply only to actions brought under § 14-10-129.5.
Issues
| Issue | Mother (Penny) — Argument | Father (Steven) — Argument | Held |
|---|---|---|---|
| Exclusion of evidence (father’s past alcoholism, work schedule, history of missed parenting time) | Exclusion prevented her from showing reasons for taking the children; harmed her defense | Evidence was remote or collateral and trial court properly limited scope | No abuse of discretion; court allowed more relevant/closer-in-time evidence and mother failed to offer it |
| Makeup parenting time as remedy | Remedy was inappropriate and not in children’s best interests (esp. COVID concerns) | Makeup time was proper statutory remedy under § 14-10-129.5(2)(d) for deprivation of parenting time | Affirmed: court considered COVID concerns and properly ordered makeup parenting time |
| Awarding attorney fees without hearing on reasonableness | She requested a hearing; due process required a reasonableness hearing before awarding fees | Trial court properly exercised discretion in awarding a portion of fees without further hearing | Reversed in part: because mother requested a hearing, court must hold an evidentiary hearing on fee reasonableness and reconsider amount |
| Whether mandatory fees extend to work on earlier § 14-10-129(4) emergency motion | (Mother) Fees should be limited to work on § 14-10-129.5 motion | (Father) Fees for both the emergency § 14-10-129(4) and later § 14-10-129.5 motions are recoverable as they are substantively associated | Held: statutory text limits mandatory award to fees “associated with an action brought pursuant to this section” (§ 14-10-129.5); fees for the earlier § 14-10-129(4) motion are not mandatorily recoverable under § 14-10-129.5(4); trial court’s allocation affirmed; remand only for fee-reasonableness hearing and determination of appellate fees |
Key Cases Cited
- Roberts v. Adams, 47 P.3d 690 (due-process requires hearing on reasonableness when party requests one for attorney fees)
- In re Marriage of Mockelmann, 944 P.2d 670 (same—right to fee-reasonableness hearing)
- In re Parental Responsibilities Concerning W.F-L., 433 P.3d 168 (discussing appropriateness of hearing on § 14-10-129.5 fees)
- Fletcher v. People, 179 P.3d 969 (evidence remote in time or logic may be excluded)
- People v. More, 668 P.2d 968 (relevance standard)
- People v. Rudnick, 878 P.2d 16 (excluding collateral facts that invite conjecture)
- Harvey v. Cath. Health Initiatives, 495 P.3d 935 (statutory interpretation principles—apply plain meaning)
- Auman v. People, 109 P.3d 647 (importance of what statute does not say)
- Oakwood Holdings, LLC v. Mortg. Invs. Enters. LLC, 410 P.3d 1249 (respect legislature’s chosen language)
- Duhon v. Nelson, 126 P.3d 262 (prevailing-party/fee recovery on appeal when fees awarded below)