Norton v. Ruebel, 2024 COA 107

Background:

Parties married in 2017 and have one minor child; they executed a separation agreement and consented to arbitrate unresolved parenting, child support, and maintenance issues.
Arbitrator awarded joint decision-making and designated father as primary residential parent when he planned to relocate to North Carolina; arbitrator also set child‑support and maintenance matters.
Mother moved for a de novo hearing under § 14-10-128.5(2), alleging a pattern of abuse that caused her to withhold information from the arbitrator; the court granted a one‑day de novo hearing.
After the hearing the trial court entered orders largely matching the arbitrator’s result (father primary residential parent; parenting time schedule) and denied mother’s reconsideration.
The trial court awarded father attorney fees under § 14-10-128.5(2) (finding the court had substantially upheld the arbitrator) and later signed written orders including child support and a decree; mother appealed.

Issues:

Issue	Mother’s Argument	Father’s Argument	Held
Meaning of “substantially upholds” the arbitrator	Court must compare reasoning; differing reasoning means not substantially upheld	Substantial equivalence of outcome suffices even if reasoning differs	Court: "substantially upholds" is met when the court reaches a substantially similar outcome regardless of different reasoning — fee statute triggers on similar result
Scope of recoverable “fees and costs … incurred in responding to” the de novo motion	Fees before mother filed the motion should be excluded; fees for hearing prep/attendance not recoverable	Fees incurred preparing for and attending the de novo hearing are recoverable once motion is granted	Fees incurred before the motion was filed are not recoverable; fees incurred preparing for and attending the de novo hearing after the motion is granted are recoverable
Procedural due process: one‑day time limit at de novo hearing	One day was inadequate; denial of additional time prejudiced mother	Time limits were agreed/known and mother’s counsel made strategic choices; no unfair surprise	No due process violation: one‑day limit adequate, mother and counsel had notice, failed to preserve/identify excluded evidence, and counsel made tactical choices
Parenting‑time: best‑interests analysis re father’s relocation and domestic‑violence allegations	Court should have weighed harm of move vs advantage; should have found domestic violence and imposed protective conditions	Court considered the best‑interests factors, found no credible domestic‑violence proof, and credited father’s primary‑caregiver role	No abuse of discretion: court considered relevant best‑interest factors for initial APR, found father primary caregiver, and even if physical incident occurred, mother failed to show prejudice from absence of a domestic‑violence finding
Child support calculation	Court adopted father’s proposed support without evidentiary basis for overnight count and expenses	Father relied on his unsworn worksheet and figures submitted with proposed order	Reversed and remanded: trial court’s child support findings (overnights and expenses) lacked evidentiary support; remand to recalculate/support with evidence
Jurisdiction over October 2023 written orders while appeal pending	Mother argued trial court lost jurisdiction because appeal pending	Father argued mother’s earlier appeal was premature because judgment not final	Court: mother’s initial notice of appeal was premature; trial court retained jurisdiction and the later written orders rendered the judgment final, so appellate jurisdiction proper to review those orders

Key Cases Cited

Molitor v. Anderson, 795 P.2d 266 (Colo. 1990) (trial court generally divested of jurisdiction on appeal from final judgment)
Musick v. Woznicki, 136 P.3d 244 (Colo. 2006) (premature notice of appeal from nonfinal judgment does not divest trial court of jurisdiction)
In re Marriage of Salby, 126 P.3d 291 (Colo. App. 2005) (parenting‑time order not appealable until decree and permanent financial orders rendered)
Maloney v. Brassfield, 251 P.3d 1097 (Colo. App. 2010) (trial court may set and enforce time limits; consider fairness and flexibility when time limits implicate due process)
In re Marriage of Yates, 148 P.3d 304 (Colo. App. 2006) (best‑interests analysis and sufficiency of trial time when parties agree to limits)
In re Marriage of Garst, 955 P.2d 1056 (Colo. App. 1998) (distinguishes initial APR allocations from modification standard requiring harm‑vs‑advantage analysis)
In re Marriage of Ciesluk, 113 P.3d 135 (Colo. 2005) (statutory construction: give effect to legislature’s plain language)
In re Marriage of Rozzi, 190 P.3d 815 (Colo. App. 2008) (trial court must make sufficient findings to permit appellate review of fee awards)
Wells v. Wells, 850 P.2d 694 (Colo. 1993) (courts should consider parties’ economic circumstances when awarding fees)
Levy‑Wegrzyn v. Ediger, 899 P.2d 230 (Colo. App. 1994) (party awarded fees pre‑appeal is entitled to reasonable appellate fees to defend that award)
Berra v. Springer & Steinberg, P.C., 251 P.3d 567 (Colo. App. 2010) (issues not raised in the trial court are generally unpreserved on appeal)