2022 COA 80
Colo. Ct. App.2022Background
- Parties divorced in 2020; parenting plan gave primary residence to mother and step-up visitation to father for their son (born 2018).
- Mother moved on Feb. 1, 2021 under § 14-10-129(4) (and cited § 14-10-129(1)(b)(I)) after multiple injuries allegedly occurring in father’s care, including a deep forehead laceration requiring eight stitches.
- A magistrate set an emergency hearing within 14 days and ordered supervised visitation pending the hearing; after the hearing the magistrate continued supervised parenting time and imposed conditions.
- Father appealed, arguing the magistrate misdefined “imminent” and therefore applied the wrong legal standard under § 14-10-129(4); mother argued subsection (4) is only a procedural vehicle to trigger an expedited hearing and the endangerment standard in subsection (1)(b)(I) governs at the hearing.
- The district court affirmed the magistrate; the Court of Appeals addressed whether a movant must prove imminent danger at the emergency hearing and whether the endangerment standard governs continuation of a restriction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does § 14-10-129(4) require proof of "imminent" danger at the emergency hearing? | Mother: No — subsection (4) requires only an allegation of imminence to trigger a 14‑day emergency hearing. | Father: Yes — the movant must prove imminence at the emergency hearing; “imminent” means near or impending. | Court: No — § 14-10-129(4) requires an allegation (to trigger the expedited hearing and temporary restriction); proof of endangerment is addressed under (1)(b)(I). |
| What standard governs continuation of a parenting-time restriction after the emergency hearing? | Mother: The endangerment standard in § 14-10-129(1)(b)(I) applies at the hearing to impose or continue restrictions. | Father: The emergency hearing should be governed by the imminence requirement of § 14-10-129(4). | Court: The endangerment standard of § 14-10-129(1)(b)(I) must be applied to impose or continue restrictions; subsection (4) is a mechanism to obtain expedited relief. |
| Were there jurisdiction, finality, or new‑evidence errors requiring reversal? | Mother: Magistrate and district court had jurisdiction; order final and appealable; appellate fees available under § 14-10-119. | Father: Lack of magistrate consent, untimely ruling beyond 14 days, and later agency finding undermine the restriction. | Court: Magistrate had authority and subject‑matter jurisdiction; district order was final and appealable; record supports endangerment finding. Court remanded limited issue of appellate attorney fees to district court. |
Key Cases Cited
- In re Marriage of Wollert, 464 P.3d 703 (Colo. 2020) (addresses § 14-10-129(4) particularity and when expedited hearing is required)
- In re Marriage of Slowinski, 199 P.3d 48 (Colo. App. 2008) (discusses consequences of failing to meet statutory time limits for § 14-10-129(4))
- People in Interest of Clinton, 762 P.2d 1381 (Colo. 1988) (statutory noncompliance may be reversible error depending on prejudice)
- In re Marriage of Parr, 240 P.3d 509 (Colo. App. 2010) (supervised parenting time is a restriction)
- In re Marriage of Bertsch, 97 P.3d 219 (Colo. App. 2004) (legislative inclusion/omission of language indicates intent)
- In re Marriage of Lewis, 66 P.3d 204 (Colo. App. 2003) (credibility and weight of evidence are for the trial court)
- United States v. Burch, 202 F.3d 1274 (10th Cir. 2000) (legislative omission/inclusion evidentiary presumption)