Case Information
*1 The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
July 21, 2022
No. 21CA1006, In re the Marriage of Thorburn — Family Law — Post-Dissolution — Modification of Parenting Time — Motion to Restrict Parenting Time or Parental Contact — Imminent Physical or Emotional Danger
In this post-dissolution of marriage proceeding, a division of the court of appeals addresses, as a matter of first impression, whether a motion under section 14-10-129(4), C.R.S. 2021, requires the moving parent to prove, at the emergency hearing, that the child is in imminent danger. Interpreting the plain language of section 14-10-129(4) — and applying it in harmony with section 14- 10-129(1)(b)(I) — the division concludes that (1) under section 14- 10-129(4), a moving parent need not prove, at the emergency hearing, that the child is in imminent danger; and (2) the district court must apply the endangerment standard under section 14-10- 129(1)(b)(I) to continue any parenting time restriction. The record *2 substantiates that, in assessing mother’s motion to restrict parenting time, the correct legal standard was applied, so the division affirms.
COLORADO COURT OF APPEALS
Jefferson County District Court No. 19DR30372
Honorable Diego G. Hunt, Judge In re the Marriage of
Danielle Jeanette Thorburn,
Appellee,
and
James M. Thorburn,
Appellant. ORDER AFFIRMED AND CASE REMANDED WITH DIRECTIONS Division V
Opinion by JUDGE FOX Gomez, J., concurs Taubman*, J., dissents Announced July 21, 2022 Miller Family Law, LLC, Kate Miller, Jessica Hoyt, Sophie Altman, Denver, Colorado, for Appellee
Thorburn Law Group, LLC, James D. Thorburn, Carolyn M. Schaffer, Greenwood Village, Colorado, for Appellant
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2021. *4
This appeal involves the interplay between subsections (1)(b)(I)
¶ 1 and (4) of section 14-10-129, C.R.S. 2021. Both subsections enable a district court to restrict parenting time so that a child is safe from physical and emotional endangerment. Subsection (1)(b)(I) applies to any order that imposes or continues a parenting time restriction. Subsection (4) allows a district court, on an emergency basis, to restrict parenting time until a hearing can be held within fourteen days. But where they differ is that subsection (1)(b)(I) does not mention imminence while subsection (4) does. The import of that difference is at the center of this appeal. James M. Thorburn (father) challenges a magistrate’s decision
restricting his parenting time. According to him, the magistrate incorrectly defined “imminent” under subsection (4) and, as a result, failed to apply the appropriate legal standard. Danielle Jeanette Thorburn (mother) counters that, even if the
magistrate wrongly defined “imminent,” it does not matter. She argues that a motion to restrict parenting time under subsection (4) is simply a procedural vehicle to get an emergency hearing and an immediate parenting time restriction, nothing more. And at the emergency hearing, she asserts, the general standards under *5 subsection (1)(b)(I) — applicable to all hearings to restrict parenting time — govern. For the reasons discussed below, we agree with mother. We
¶ 4 affirm the district court’s order adopting the magistrate’s decision restricting father’s parenting time. But we remand the case to the district court for further proceedings on mother’s request for appellate attorney fees under section 14-10-119, C.R.S. 2021.
I. Relevant Facts and Procedural History The parties’ marriage ended in February 2020. The
dissolution decree incorporated their parenting plan for their son, J.C.T. Under the plan, J.C.T. would live primarily with mother. The parties also agreed that father would follow a step-up parenting time schedule, beginning with an overnight every week with the goal of equal time in nine months. On February 1, 2021, mother moved to restrict father’s
parenting time under section 14-10-129(1)(b)(I) and (4). She alleged, among other things, that during father’s most recent parenting time, J.C.T., then thirty-two months old, suffered a deep gash on his forehead, requiring eight stitches. Father quickly responded and asserted that J.C.T.’s injury was accidental. *6 The next day, a magistrate deemed mother’s allegations
¶ 7 sufficiently pleaded, scheduled an emergency hearing for February 9, and ordered that father’s parenting time be supervised until then. Following the emergency hearing, at which only the parties
¶ 8 testified, the magistrate issued an oral ruling and directed mother’s attorney to draft a proposed order. For reasons unexplained in the record, both parties submitted
proposed orders, and the magistrate signed father’s order on February 26, 2021. [1] In the written order, the magistrate made the following
findings:
[1]
We appreciate that the magistrate gave both parties the
opportunity to have input into the content of the proposed order.
But after careful scrutiny, we determine that the written order (as
proposed by father) is, at times, at odds with the oral ruling. For
instance, the written order ignores the fact that the magistrate
applied section 14-10-129(1)(b), C.R.S. 2021, in addition to section
14-10-129(4). Even so, we view the oral ruling as supplementing
the written order.
See Friends of Denver Parks, Inc. v. City & Cnty.
of Denver
,
Between August 2019 and January 2021, J.C.T. sustained five injuries while in father’s care.
Three of the five injuries were “serious concussions,” and another involved a significant “split lip.” Father’s explanations of J.C.T.’s injuries were not credible.
J.C.T.’s injuries were “unusual” and would not have happened had father properly supervised him.
There was an active investigation by the Jefferson County Division of Children, Youth and Families regarding mother’s allegations.
From those findings, the magistrate (1) rejected father’s definition of “imminent” for purposes of section 14-10-129(4); (2) read “imminent” to mean a “certainty” at some point in the future, without “any form of immediacy”; (3) applied that definition and section 14-10-129(1)(b)(I) and (4); and (4) determined that mother had proved that J.C.T. was in imminent danger. In the end, the magistrate continued father’s supervised parenting time and imposed certain conditions that father must meet before requesting a modification.
¶ 11 On March 3, 2021, mother filed a motion to “set aside,” asking
the magistrate to reconsider the selection of father’s proposed order. Nine days later, father petitioned for district court review.
¶ 12 Regarding father’s petition for review, the district court
adopted the magistrate’s decision. The court denied mother’s motion to set aside to the extent that it sought review of the magistrate’s decision. The court, however, remanded the case to the magistrate with directions to resolve mother’s motion as it related to the form of the magistrate’s written order. Father then filed his notice of appeal. Based on a lack of
jurisdiction given the pending appeal, the magistrate on remand declined to entertain mother’s motion to set aside.
II. Motion to Restrict Parenting Time Under Section 14-10-129(4)
A. Jurisdiction
1. Subject Matter Jurisdiction At oral argument and later in his written supplemental
authority, father asserted that the district court order should be vacated for lack of subject matter jurisdiction. He insisted that the parties never consented to the magistrate’s jurisdiction. Father is mistaken.
¶ 15 A district court has subject matter jurisdiction when it has
been “empowered to entertain the type of case before it by the
sovereign from which the court derives its authority.”
In re Marriage
of Roth
,
district court (and the magistrate before it) had constitutionally vested subject matter jurisdiction to hear the action, including mother’s motion to restrict. See Colo. Const. art. VI, § 9; see also Wollert , ¶ 26; Roth , ¶ 14. To the extent father argues that the magistrate lacked
authority to act on mother’s motion to restrict, he is again
mistaken. C.R.M. 6(b)(1)(B) gives a magistrate the power to preside
*10
over all motions to modify parental responsibilities without the
parties’ consent.
See Evans v. Evans
,
2. Finality
¶ 18 Mother contends that the district court’s order is not final and
appealable because her motion to set aside the magistrate’s approval of father’s proposed order remains pending before the magistrate on remand. We disagree.
¶ 19 With limited exceptions not applicable here, our appellate
jurisdiction is limited to review of final judgments or orders.
In re
Marriage of Evans
,
final. C.R.M. 7(a)(3);
In re Marriage of January
,
decision to continue his supervised parenting time. After adopting the decision, the court remanded the case to the magistrate to resolve any dispute as to the form of the written order. The district court could not, under C.R.M. 7, remand the issue
to the magistrate and the magistrate would have lacked authority to
act. At oral argument, mother described her motion as one for
reconsideration, which falls under either C.R.C.P. 59 or C.R.C.P.
60(b). A magistrate cannot rule on a motion to reconsider under
C.R.C.P. 59 or for relief under C.R.C.P. 60(b).
In re Parental
Responsibilities Concerning M.B.-M.
,
¶ 24 Therefore, the district court’s order and the underlying
magistrate’s decision are final and appealable, and we have jurisdiction to consider them.
B. Standard of Review
¶ 25 Our review of a district court’s order adopting a magistrate’s
decision is effectively a second layer of appellate review.
In re
Marriage of Sheehan
,
whether the magistrate properly interpreted a statute or applied the correct legal standard. See Sheehan , ¶ 22; see also Wollert , ¶ 20.
C. Relevant Law Section 14-10-129(1)(b)(I), commonly referred to as the
endangerment standard, applies to all motions to restrict parenting time:
The court shall not restrict a parent’s parenting time rights unless it finds that the parenting time would endanger the child’s physical health or significantly impair the child’s emotional development. In addition to *13 a finding that parenting time would endanger the child’s physical health or significantly impair the child’s emotional development, in any order imposing or continuing a parenting time restriction , the court shall enumerate the specific factual findings supporting the restriction.
(Emphasis added.) ¶ 28 Section 14-10-129(4) allows a parent to obtain a parenting
time restriction on an emergency basis:
A motion to restrict parenting time or parental contact with a parent which alleges that the child is in imminent physical or emotional danger due to the parenting time or contact by the parent shall be heard and ruled upon by the court not later than fourteen days after the day of the filing of the motion. Any parenting time which occurs during such fourteen-day period after the filing of such a motion shall be supervised by an unrelated third party deemed suitable by the court or by a licensed mental health professional . . . . A supervised parenting time requirement is a restriction on
parenting time.
See In re Marriage of Parr
,
D. Discussion For purposes of subsection (4), father defined “imminent” as
“near at hand or impending.” The magistrate rejected his definition:
“Imminent” in this context does not connote any form of immediacy . Rather, it is the certainty of the harm happening whether it is days, weeks, or months in the future. [I]t is not a question of “if” but “when” in this case. It does not matter if the “when” is an unspecific sometime in the future.
(Emphasis added.) Father maintains that because the magistrate used an
inaccurate definition of “imminent,” the magistrate applied an improper legal standard when deciding mother’s motion to restrict under subsection (4). [2] Mother asserts that the “imminent” standard applies only to
the district court’s initial determination as to whether a motion to
restrict parenting time under subsection (4) meets the particularity
requirement under C.R.C.P. 7(b)(1).
See Wollert
, ¶ 27 (particularity
[2]
Mother asserts that by merely citing the magistrate’s decision,
father has not preserved this issue. But the magistrate expressly
denied father’s argument concerning the correct legal standard to
be applied, and father reasserted the same argument in his petition
for district court review. Because the issue was raised before the
magistrate and the district court, it is preserved.
See In re Marriage
of Dean
,
requirement of C.R.C.P. 7(b)(1) applies to all motions to restrict parenting time under section 14-10-129(4), and a hearing is mandatory within fourteen days if the particularity requirement is met). In other words, imminence need not be proved at the emergency hearing, nor is the court required to make a specific finding of imminence for the court to continue a parenting time restriction. Rather, it is only relevant as a threshold determination that entitles the moving party to a hearing. Thus, mother argues, even if “imminent” was wrongly defined, the magistrate properly applied the endangerment standard under subsection (1)(b)(I) when continuing father’s supervised parenting time. We agree with mother. [3] When interpreting a statute, we must find and give effect to
the legislative intent.
Wollert
, ¶ 20. Our starting point is the
language of the statute itself, giving words and phrases their plain
and ordinary meanings.
In re Marriage of Zander
,
the rules of grammar and common usage.”). If the language is clear, we apply the statute as written without resorting to other tools of statutory construction. Wollert , ¶ 20. In interpreting provisions of the Uniform Dissolution of
¶ 35 Marriage Act (UDMA), sections 14-10-101 to -133, C.R.S. 2021, we
do not read the provisions in isolation.
In re Marriage of Schlundt
,
ambiguous or that the two conflict. We, too, see neither ambiguity nor conflict. Looking at the statutory scheme as a whole, we conclude that
subsections (1)(b)(I) and (4) work together to address motions to
restrict parenting time.
See Schlundt
, ¶ 27;
see also Mack
, ¶ 13.
We read the plain language of subsection (1)(b)(I) as applying
to all motions to restrict parenting time, including emergency
*17
motions. Under subsection (1)(b)(I), the district court first must find
endangerment and then must make specific findings supporting its
decision to impose or continue a parenting time restriction.
Subsection (4), on the other hand, concerns extraordinary
situations of an “emergency nature” that pose an imminent risk to
the child’s safety.
Wollert
, ¶¶ 19, 31 (“Section 14-10-129(4)
attempts to accommodate the rights of each parent vis-à-vis
parenting time while prioritizing the rights of children to be safe and
protected from imminent physical or emotional danger.”). To that
end, the legislature, in drafting subsection (4), included the word
“imminent.”
See In re Marriage of Bertsch
,
allege — not prove — that the child is in imminent physical or emotional danger due to the parenting time or contact by a parent. Then, the district court determines whether the moving parent has sufficiently pleaded allegations -- including whether the danger is *18 threatening to occur at any moment -- requiring the court to take urgent action by setting an emergency hearing within fourteen days. See Wollert , ¶ 54 (For purposes of section 14-10-129(4), “[i]mminence requires that the alleged harm is threatening to occur at any moment and requires urgent action.”). Upon filing a sufficient section 14-10-129(4) motion, any parenting time occurring in that fourteen-day period must be supervised. And, once a hearing is held on said motion, the court applies subsection (1)(b)(I)’s general endangerment standard. We conclude that the plain language of subsection (4) does not
require the movant to prove, at the emergency hearing, that the child is in imminent danger. Instead, the statute only requires that a motion allege that the child is in imminent danger; it is a means of triggering a hearing within fourteen days and an immediate parenting time restriction pending that hearing. Our interpretation effectuates the legislative intent and gives
harmonious effect to both subsection (4) and subsection (1)(b)(I).
Specifically, this reading of subsection (4) is supported by two
practical reasons. First, at the time of the emergency hearing, the
automatic, temporary parenting time restriction has already been in
*19
place, thereby removing the child from the alleged imminent
danger. An express finding of imminence at that point would be
moot. Second, after the hearing, if the district court finds
endangerment alone (without imminence), father’s interpretation
would force the district court to return the child to the same
dangerous environment. That cannot be what the legislature
intended.
See In re Marriage of Turilli
,
by ambush.” He claims that if the emergency hearing becomes a “standard modification or restriction proceeding” under subsection (1)(b)(I), a responding parent would have to defend against the allegations without the benefit of full discovery under C.R.C.P. 16.2. We are not persuaded. Our reading of subsection (4) does not prevent a responding parent from obtaining discovery before the emergency hearing. Here — where only mother and father testified and both were aware of the circumstances alleged in mother’s motion — father never raised a discovery issue, nor did he seek a continuance. And father cannot say that he was unfairly surprised *20 at the emergency hearing where mother’s motion to restrict referenced subsection (1)(b)(I).
¶ 44 Nor are we persuaded by father’s other assertion that our
interpretation would create a “tool of gamesmanship.” If a motion to restrict parenting time lacks substantial justification, the district court must order the moving parent to pay the reasonable and necessary attorney fees and costs of the other parent. Wollert , ¶ 29; see § 14-10-129(5); C.R.C.P. 11.
¶ 45 We now apply the above principles to the present case.
E. Application After considering father’s response to mother’s motion to
restrict, the magistrate deemed mother’s allegations of imminent danger to be sufficiently pleaded. As a result, the magistrate set an emergency hearing within fourteen days and imposed a supervised parenting time requirement pending the hearing. That approach is consistent with section 14-10-129(4). Following the emergency hearing, the magistrate applied the
endangerment standard under section 14-10-129(1)(b)(I) and made the required factual findings to support the decision to continue father’s supervised parenting time. The evidence established that J.C.T. sustained several head
injuries while in father’s care from August 2019 to January 2021, about a week before mother filed her motion to restrict. Mother testified that none of them were “kid-being-kid” injuries and that each one was worse than the last. The most recent injury resulted in J.C.T. suffering a deep laceration on his forehead, down to the bone, requiring eight stitches. Mother added that father wavered in his explanation as to how the injury happened. He first said that J.C.T. hit the corner of a “bed drawer,” then that he tripped over a dog, and finally that he hit a coffee table. From that evidence, the magistrate found that father’s pattern
of poor supervision endangered J.C.T. The magistrate also found
that father failed to provide reasonable and adequate explanations
for J.C.T.’s injuries. “[C]redibility determinations and the weight,
probative force, and sufficiency of the evidence, as well as the
inferences and conclusions to be drawn therefrom, are matters
within the sole discretion of the [district] court.”
In re Marriage of
Lewis
,
[mother’s] conclusory statements of concussion.” He did not raise
this particular issue in his petition for district court review.
See
People in Interest of K.L-P.
,
that J.C.T. was endangered while in his care, instead of making a specific finding that he actually committed or caused J.C.T.’s injuries. [4] However, the magistrate found, and the record supports, [4] Father also asserts that the magistrate erred because the legislature’s inclusion of “due to the parenting time or contact by the parent” within section 14-10-129(4) required mother, at the emergency hearing, to prove that he actually caused imminent danger to J.C.T. We disagree given our disposition that section 14- 10-129(4) is merely a vehicle to obtain an emergency hearing within fourteen days and a temporary parenting time restriction pending *23 that father’s actions or inactions during his parenting time endangered J.C.T. See § 14-10-129(1)(b)(I). Indeed, the magistrate said that the danger to J.C.T. was a result of father’s failure to exercise a minimum degree of parental supervision. Because the magistrate made the necessary findings under
section 14-10-129(1)(b)(I), supported by the record, that father
endangered J.C.T., we conclude that the magistrate properly
continued father’s parenting time restriction while allowing father to
work on safer parenting skills.
See Young
, ¶ 8;
see also In re
Marriage of Hatton
,
assessing mother’s motion to restrict, and the record supports the magistrate’s decision to continue father’s supervised parenting time.
that hearing. In any event, the endangerment standard requires proof of causation. See § 14-10-129(1)(b)(I) (“The court shall not restrict a parent’s parenting time rights unless it finds that the parenting time would endanger the child[] . . . .”).
III. New Evidence Next, father argues that the district court on review erred “as a
matter of law” by not reopening the proceeding under C.R.M. 7(a)(8)
based on new evidence. He points to a child welfare referral
assessment from the Jefferson County Division of Children, Youth
and Families, which concluded that the referral related to father
was unfounded. He relies solely on
Romero v. Colorado Department
of Human Services
,
IV. Appellate Attorney Fees
¶ 56 Asserting that the parties’ financial resources are disparate,
mother asks for an award of her appellate attorney fees under section 14-10-119. In response, father argues that section 14-10-119 is
inapplicable because mother’s “action did not modify the original
decree.” He latches onto the following language in
In re Marriage of
Burns
,
resolve the factual issues concerning the parties’ current financial
*26
circumstances, we remand the issue for its consideration.
See In re
Marriage of Alvis
,
V. Conclusion The order is affirmed. The case is remanded for the district
court to consider mother’s request for appellate attorney fees under section 14-10-119.
JUDGE GOMEZ concurs.
JUDGE TAUBMAN dissents.
JUDGE TAUBMAN, dissenting. I agree with the majority that the principal issue in this case is the interplay between subsections (1) and (4) of section 14-10-129, C.R.S. 2021, concerning what a party must allege and prove at an emergency hearing under the latter subsection. As the majority notes, subsection (1)(b)(I) applies to motions to restrict parenting time, whereas subsection (4) concerns motions to restrict parenting time that allege a child is in “imminent physical or emotional danger” due to the exercise of parenting time. Subsection (4) requires that a motion filed under that subsection must be heard and ruled on by the court no later than fourteen days after the date such a motion is filed, but subsection (1)(b)(I) does not contain any temporal requirements. I disagree with the majority that, when a motion is filed under
subsection (4), a moving party must only allege, rather than prove, imminent harm to a child, and I further disagree that imminent harm was sufficiently alleged in this case. In addition, I think this case raises significant procedural questions, including whether the majority’s statutory analysis was raised before the magistrate and the district court. Accordingly, for the reasons more fully discussed *28 below, I would reverse the district court’s order and the magistrate’s order.
I. Background Because the majority provides a detailed explanation of the
relevant facts and procedural history, I will add to it only briefly. This is a contentious post-dissolution conflict between James M. Thorburn (father) and Danielle Jeanette Thorburn (mother) concerning their young son, born in 2018. The parties agreed that mother would be the child’s primary residential parent and that father would follow a step-up parenting time schedule. Just one year after their dissolution of marriage became final
in February 2020, mother moved for an emergency hearing regarding parenting time under subsection (4) on February 1, 2021. She alleged that she was concerned about five incidents that had occurred during father’s parenting time, including one the weekend before the motion was filed that resulted in a one-and-a-half-inch gash on her son’s forehead and father taking their son to a hospital emergency room to be treated. Mother alleged that “father is neglecting the child at his home and the child is therefore getting injured while father is failing to watch him.” She further asserted *29 that father was not appropriately supervising their son during his parenting time.
¶ 64 Although the motion cited subsections (1)(b)(I) and (4), it did
not allege that the son was in imminent physical or emotional danger. Further, the motion did not explain how mother believed those subsections relate to one another. Following an emergency hearing on February 9, 2021, a
magistrate issued a signed minute order granting mother’s requested relief, requiring father’s parenting time to be supervised, and requiring him to complete parenting classes. The magistrate found that physical harm or injury to the son was imminent while in father’s care due to lack of proper supervision, even though he found that father had not intentionally harmed the son. Although the magistrate cited subsections (1)(b)(I) and (4), he did not address how, if at all, those subsections relate to one another. The order also directed mother’s attorney to draft a proposed order. Seventeen days later, on February 26, the magistrate signed a
more extensive order prepared by father’s attorney. (That the magistrate signed this order, instead of one drafted by mother’s attorney, raises procedural issues that I discuss below.) *30 Significantly, this order did not cite section 14-10-129(1)(b)(I) and concluded that “the moving party [mother] cannot utilize the emergency measures to seek the more generalized grounds of parenting restriction.” It further concluded that mother “did not bring any evidence of specific acts or omissions by [father] that would lead to imminent physical or emotional danger.” The magistrate also found that the son’s five injuries were unusual and would not have occurred if father had properly supervised the son. It also determined that the son experienced “three serious concussions at the hands of” father. Finally, the court rejected father’s assertion that to be
imminent, there must be a showing that the alleged harm is near or impending. This is another subject I discuss below. Nearly three months later, the district court affirmed the
magistrate’s order. It concluded that the magistrate’s February 9 signed minute order “was not a final order or judgment subject to review.” Therefore, the district court reviewed only the magistrate’s February 26 order, finding that the order restricting father’s parenting time was supported by ample evidence. Recognizing the dispute about whether the magistrate had properly signed father’s *31 proposed order, the district court remanded the case to the magistrate to address the parties’ motions concerning the form of the order. Significantly, the district’s order referred only to mother’s
motion under section 14-10-129 to restrict father’s parenting time but did not cite the two subsections at issue here or say how, if at all, they relate to one another.
II. Procedural Issues In my view, three procedural issues militate in favor of
vacating the decisions of the district court and magistrate and remanding the case for further proceedings, if necessary. First, I do not believe the majority’s conclusion that mother properly preserved for appellate review the argument that subsection (1)(b)(I) applies automatically to all motions to restrict parenting time under subsection (4) because this argument was not raised by mother until this appeal. Second, the magistrate’s signing both a minute order and a more comprehensive order raises issues of finality beyond those addressed by the majority. Third, because I believe the magistrate’s oral ruling and written order conflict, I disagree *32 with the majority that we may consider the magistrate’s oral ruling. I discuss each of these issues in turn.
A. Was the Issue of the Relationship Between Subsections (1)(b)(I)
and (4) Preserved for Appeal?
A cardinal rule of appellate procedure is that, subject to a few
exceptions not relevant here, an appellate court will not review an
issue raised for the first time on appeal.
Est. of Stevenson v.
Hollywood Bar & Cafe, Inc.
,
C.R.S. section 14-10-129(4)” cited that subsection and subsection (1), but did not explain how subsection (1)(b)(I) applied, nor did it assert that a party need allege, but not prove, imminent harm under subsection (4). The magistrate’s February 9 minute order cited both subsections, finding that the son was in imminent harm or injury due to father’s lack of supervision. However, it did not address, as the majority does, whether subsection (1)(b)(I) applies to all motions to restrict parenting time, including those filed under subsection (4), and did not address whether a parent must allege, *33 but need not prove, that a child is in imminent physical or emotional harm due to the actions of a parent exercising parenting time. While the magistrate’s oral ruling announced following the February 9 hearing briefly mentioned the applicability of subsection (1)(b)(I), that ruling should not be given any weight because it conflicts with both its February 9 minute order and its February 26 written order, an issue I discuss below. Significantly, the magistrate’s February 26 order (prepared by father) does not cite subsection (1)(b)(I). With respect to subsection (4), that order states that mother “did not bring any evidence of specific acts or omissions by [father] that would lead to imminent physical or emotional danger.” Mother’s response to father’s motion to review the magistrate’s
February 26 decision did not mention subsection (1)(b)(I). Rather, it cited only subsection (4) and focused on the evidence of imminent harm that she had presented to the magistrate. It did not address that the February 26 order did not mention subsection (1)(b)(I). Further, mother’s response contended that the magistrate’s February 9 minute order was a final order under C.R.M. 7. As noted above, the district court’s decision reviewing the magistrate’s *34 February 26 order referred only to father’s motion based on section 14-10-129; it did not mention subsection (1)(b)(I) or (4) or their relation to one another, and it did not assert that a party must allege, but not prove, imminent harm under subsection (4). In short, the two premises of the majority opinion — that
subsection (1)(b)(I) applies automatically to any motion filed under
subsection (4) and that a party must allege, but need not prove,
imminent harm under subsection (4) — were not raised as issues by
mother before the magistrate or the district court. The district
court did not address these issues at all, and, to the extent the
magistrate did, he did so in an oral ruling that is contradicted by
his written decisions. Accordingly, I believe these issues discussed
by the majority were not properly preserved for appeal and,
therefore, should not be addressed.
See Est. of Stevenson
,
B. Is There a Final, Appealable Order? The majority rejects mother’s contention that the district
court’s order is not final and appealable because the district court remanded the case to the magistrate to determine whether father’s *35 or mother’s proposed order should have been signed. It concludes that the magistrate’s February 26 order was final and appealable because the district court lacked authority under C.R.M. 7 to remand the case to the magistrate to answer this question. I agree with mother, albeit for different reasons. The majority properly notes that, generally, our appellate
jurisdiction is limited to review of final judgments or orders.
See In
re Marriage of Evans
,
twenty-five days after mother’s motion was filed, making it untimely
under subsection (4). Although the parties did not raise this
timeliness issue before the magistrate, I conclude it constitutes
reversible error. In
People in Interest of Clinton,
automatically to any motion filed under subsection (4), the time
limitation in subsection (4) does not apply. Reaching this
conclusion, however, requires rendering the time limit in subsection
(4) a nullity; under the majority’s rationale, the time limit in
subsection (4) would never apply.
See Slowinski
,
this appeal is from the magistrate’s untimely February 26 decision. *38 I would similarly vacate the magistrate’s February 26 order for the reasons discussed above. Further, I would also vacate the magistrate’s February 9 order because I agree with the district court that it was not a final, appealable order. By its terms, it directed mother’s attorney to draft a proposed order, and a further order was not signed until February 26, well beyond the fourteen days required by section 14-10-129(4).
C. May We Consider the Magistrate’s Oral Ruling? I respectfully disagree with the majority’s conclusion that we may view the magistrate’s oral ruling as supplementing his written minute order. There are two problems with this conclusion. First, this appeal concerns the magistrate’s February 26 decision, not his February 9 minute order or the oral ruling accompanying it. Second, the magistrate’s February 26 ruling does not supplement his February 9 oral ruling; it conflicts with it. As noted, the February 9 oral ruling briefly discusses the applicability of subsection (1)(b)(I), but the February 26 written decision does not cite that subsection, much less discuss it. This issue is significant because the majority relies on the
magistrate’s oral ruling to explain its analysis that mother’s motion *39 embraced both subsections (1)(b)(I) and (4). However, if the magistrate’s oral ruling is not considered, we are reviewing only the magistrate’s February 26 written decision, which does not mention subsection (1)(b)(I), and the district court’s decision, which only cites generally to section 14-10-129. Generally, a written order prevails over a conflicting oral
ruling.
People in Interest of S.R.N.J-S.
,
that the magistrate’s oral ruling supplements the written order is
distinguishable. In
Friends of Denver Parks, Inc. v. City & County of
Denver
,
¶ 85 Accordingly, I would conclude that we should not consider the
magistrate’s oral ruling.
III. The Merits
¶ 86 Even if I assume that these procedural issues do not warrant
vacating the district court’s decision or dismissing this appeal, I disagree with the majority’s statutory interpretation. Specifically, I do not agree with the majority’s conclusions that (1) when a motion is filed under subsection (4), the movant must allege but need not prove imminent harm to a child; and (2) if a motion sufficiently alleges imminent harm, the court applies subsection (1)(b)(I)’s general endangerment standard. After setting forth the standard of review and applicable law, I will discuss each issue in turn.
A. Standard of Review and Applicable Law I agree with the majority that we must accept the magistrate’s
factual findings unless they are clearly erroneous.
In re Marriage of
Young
,
we review de novo.
In re Marriage of Wollert
, ¶ 20,
10-129, which provides in relevant part as follows:
A motion to restrict parenting time or parental contact with a parent which alleges that the child is in imminent physical or emotional danger due to the parenting time or contact by the parent shall be heard and ruled upon by the court not later than fourteen days after the day of the filing of the motion. Subsection (1)(b)(I), referred to as the endangerment standard,
states,
The court shall not restrict a parent’s parenting time rights unless it finds that the parenting time would endanger the child’s physical health or significantly impair the child’s emotional development. In addition to *42 a finding that parenting time would endanger the child’s physical health or significantly impair the child’s emotional development, in any order imposing or continuing a parenting time restriction, the court shall enumerate the specific factual findings supporting the restriction.
B. Is Proof of Imminent Harm Necessary? ¶ 91 Father contends that the magistrate used an incorrect
definition of “imminent” when restricting his parenting time under subsection (4). I agree. Imminent has been defined as “threatening to occur
¶ 92 immediately” or “[a]bout to take place.” Black’s Law Dictionary 898 (11th ed. 2019). Similarly, that dictionary defines “immediate” as “[o]ccurring without delay; instant.” Id. at 897. In contrast, the magistrate applied a definition of imminent
that is contrary to the word’s plain meaning. He explained,
“Imminent” in this context does not connote any form of immediacy. Rather, it is the certainty of the harm happening whether it is days, weeks, or months in the future. It is not a question of “if” but “when” in this case. It does not matter if the “when” is an unspecific sometime in the future. By defining “imminent” without any notion of immediacy, the
magistrate paraphrased the definition of “endanger,” the term used *43 in subsection (1)(b)(I). Endanger means “to bring into danger or peril” or “to create a dangerous situation.” Merriam-Webster Dictionary, https://perma.cc/AK8Z-RZUS. Merriam-Webster’s examples illustrate the difference between “endanger” and “imminent.” One example states, “[p]arents feared that the dog could endanger their children.” Id. The other example says, “[t]he severe drought has endangered crops throughout the area.” Id. Both examples illustrate situations where potential danger exists but is not likely to occur immediately. Consequently, a situation that endangers reasonably causes
concern, but it does not involve a danger expected to occur instantly. Because the magistrate used an incorrect definition of “imminent harm,” I conclude that he improperly restricted father’s parenting time.
C. The Relationship Between Subsections (1)(b)(1) and (4) This difference in terms is crucial to understanding the relationship between subsections (1)(b)(I) and (4) for several reasons. First, to the extent the majority is correct in asserting that a movant must allege, but need not prove, that a child is in imminent danger in a motion brought under subsection (4), *44 employing an incorrect definition of “imminent” necessarily results in a flawed conclusion regarding the sufficiency of the motion’s allegations. Here, for example, mother alleged that the son had been subject to several head injuries during an eighteen-month period. She did not allege that the son was in imminent physical danger. Second, subsection (4) presumes that a court must find that
an existing parenting time order would place a child in imminent physical or emotional danger. Otherwise, any parent, especially one involved in a longstanding, post-dissolution of marriage conflict, could easily curtail the other parent’s parenting time by simply alleging imminent harm. The requirement that a court must impose attorney fees and costs under subsection (5) against a parent who files a frivolous motion to restrict parenting time would not necessarily discourage this practice because contentious, post- dissolution disputes seldom involve black-and-white issues. Third, subsection (4) makes no reference to subsection (1)(b)(I), and that section makes no reference to subsection (4). If the General Assembly had intended all motions filed under subsection (4) with sufficient particularity to automatically trigger the *45 application of subsection (1)(b)(I), it would have said so. Instead, the language in subsection (1)(b)(I) requiring the court to enumerate its specific factual findings “in any order imposing or continuing a parenting time restriction” must be construed together with the first part of that sentence, which applies “[i]n addition to a finding that parenting time would endanger the child’s physical health or significantly impair the child’s emotional development.” § 14-10- 129(1)(b)(I). The latter phrase, of course, is the standard applicable to motions brought under subsection (1)(b)(I), not those under subsection (4). I do not agree that an express finding of imminence would be
moot when the court holds a hearing under subsection (4) because a temporary parenting time restriction has already been in place. If a court were to conclude that the moving parent had not established imminent harm, an express finding of lack of imminence would not be moot but would result in the denial of the motion. Contrary to the majority’s concern that a court’s finding of
endangerment without imminence would force the court to return a child to a dangerous situation, that circumstance would not occur *46 under my reading of the statutory scheme. Rather, at a hearing on a motion filed under subsection (4), the court would only determine whether a child is subject to “imminent physical or emotional danger.” If this standard is not met, the court could determine whether the endangerment standard had been met under a previously or subsequently filed motion. The latter motion would not need to be heard and ruled on within fourteen days of the date of its filing, and it would allow the parties to undertake discovery and call more witnesses than would be possible when an emergency hearing is scheduled under subsection (4). Here, for example, father presented in his petition for review to the district court a Department of Human Services report concluding that mother’s allegations were unfounded. Because this report was not issued until nine days after the emergency hearing, father could not present it then, and, subsequently, the district court declined to consider it. Had mother filed a motion under subsection (1)(b)(I), father could have called the author of the report and sought to refute any allegations of endangerment proffered by mother. The supreme court’s recent decision in In re Marriage of
Wollert
does not require a contrary conclusion. There, the supreme
*47
court addressed when a motion to restrict parenting time under
subsection (4) requires a hearing to be held within fourteen days of
the filing of the motion.
In re Marriage of Wollert
, ¶ 2, 464 P.3d at
706. Overruling
Slowinski
,
IV. Conclusion For both the procedural and substantive reasons stated above,
I would reverse the district court’s order.