In Re the Marriage of Barker
2010 WL 4791951
Colo. Ct. App.2010Background
- Dissolution of marriage in 2006; one child; mother is primary residential parent per parenting plan.
- Plan allowed mediation if issues arose regarding child; if relocation occurred, parties would modify parenting time.
- In 2009, father relocated to Wyoming and sought modification of parenting time.
- Parties mediated; reached on-record agreement: father to have holiday time in Wyoming and one Colorado weekend monthly; not reduced to writing.
- Trial court adopted the mediation terms as an order; mother moved to set aside, citing § 13-22-308 requiring a written, signed mediation agreement.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does § 13-22-308 apply to modify parenting time via mediation? | Mother: mediation agreement must be reduced to writing and signed. | Father: UDMA allows modification when in child’s best interests; need not be writing. | UDMA controls; court affirmed modification despite no written signed mediation. |
| Whether the trial court’s adoption of the on-record agreement complies with best interests standard for parenting time | Mother contends order violates mediation-writing requirement. | Father contends best interests standard supports modification. | Court held modification in child’s best interests; no abuse of discretion. |
| Role of UDMA over Dispute Resolution Act in dissolution cases | Mother argues DRA controls writing/signing requirement. | UDMA precedence governs parenting-time modifications. | UDMA governs; exceptions permit modification when parties agree, not requiring writing. |
Key Cases Cited
- In re Marriage of Rodrick, 176 P.3d 806 (Colo.App.2007) (appellate affirmance on alternative reasoning)
- In re Marriage of Elmer, 936 P.2d 617 (Colo.App.1997) (best interests governs parenting-time orders)
- Griffin v. Griffin, 699 P.2d 407 (Colo.1985) (custody determinations must serve child's welfare)
- In re Marriage of Lawson, 44 Colo.App. 105, 608 P.2d 378 (Colo.App.1980) (parental rights subordinate to child's interests)
- In re Marriage of Dureno, 854 P.2d 1352 (Colo.App.1992) (child's best interests control custody/visitation changes)
- In re Marriage of Hatton, 160 P.3d 326 (Colo.App.2007) (trial court discretion in modification of parenting time)
- Mockelmann v. Mockelmann, 121 P.3d 337 (Colo.App.2005) (finality and amicable resolution policies in dissolution actions)
- In re Marriage of Burke, 39 P.3d 1226 (Colo.App.2001) (oral agreements considered for order; writing not always required)
- In re Marriage of Chambers, 657 P.2d 458 (Colo.App.1982) (oral separation agreement approved by trial court)
- In re Marriage of Popack, 998 P.2d 464 (Colo.App.2000) (UDMA governs separation agreement enforceability)
- In re Marriage of Lafaye, 89 P.3d 455 (Colo.App.2003) (UDMA policies prevail over general contract law in dissolution)
- In re Marriage of Plesich, 881 P.2d 379 (Colo.App.1994) (hold harmless provisions interpreted with UDMA)