July 24, 2017

Archives for October 27, 2016

Colorado Court of Appeals: Distribution of Cryopreserved Embryos in Dissolution Proceeding Subject to Contract and Balancing Approaches

The Colorado Court of Appeals issued its opinion in In re Marriage of Rooks on Thursday, October 20, 2016.

Dissolution of Marriage—Possession of Cryogenically Frozen Embryos.

The parties had three children together, and it was undisputed that wife used her last eggs to create embryos. The parties’ storage agreement with the fertility clinic provided that in the event of a dissolution of marriage, unless they could agree on who would get the embryos, the trial court would award the embryos. In their dissolution of marriage proceeding, wife argued that the embryos should remain frozen so that she could have another child in the future, and husband argued they should be discarded. The trial court entered a lengthy, detailed, and carefully reasoned decision awarding the embryos to husband. Wife appealed.

This appeal presented an issue of first impression in Colorado: how to determine the disposition of a couple’s cryogenically frozen embryos on their dissolution of marriage. Because there is not case law in Colorado on this issue, the Colorado Court of Appeals reviewed the three different approaches adopted by other jurisdictions for determining the disposition of divorcing spouses’ cryopreserved embryos: (1) the contract approach, which enforces a valid agreement entered into between the parties as to disposition of the embryos; (2) the balancing of interests approach, which the court applies when there is no such agreement between the parties; and (3) the contemporaneous mutual consent approach, under which the court will not allocate the embryos in the absence of an agreement between the parties (the embryos are left in storage indefinitely until the parties can agree to their disposition). The trial court had applied the contract and balancing of interests approaches in awarding the embryos to husband.

On appeal, wife argued that the trial court erred in interpreting the written storage agreement. The court agreed, but concluded that the storage agreement left it to the dissolution court to decide which party should receive the embryos in the event of dissolution of their marriage. Because the contract gave no guidance for this decision, the court construed it to require the trial court to exercise its inherent equitable powers if the parties could not agree. Because the trial court had to apply its equitable discretion, it necessarily had to use the balancing of interests approach.

Wife also argued that some factors the trial court applied in its balancing approach were legally erroneous and others violated her constitutional rights. Based on its review of the record, the court found the trial court’s conclusion that husband’s interest in not producing additional offspring prevailed over wife’s interest in having a fourth child to be reasonable.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Photos May Be Considered “Erotic Nudity” if Recipient Uses Them for Sexual Satisfaction

The Colorado Court of Appeals issued its opinion in People in Interest of T.B. on Thursday, October 20, 2016.

Juvenile Sexual Exploitation of a Child—Delinquency Adjudication.

T.B. used his cell phone to solicit, receive, and store nude photographs of teenage girls who were 15 and 17 years old. He also texted them photographs of his erect penis. Among other offenses, the prosecution charged T.B. with sexual exploitation of a child. The sexual exploitation counts were severed. A jury acquitted him of the remaining counts.

After a bench trial on the sexual exploitation counts, the court adjudicated T.B. delinquent, sentenced him to sex offender probation, and required him to register as a sex offender.

On appeal, T.B. asserted that the evidence was insufficient to support his delinquency adjudication. He argued that because the girls did not take the photos for their own sexual satisfaction, the photos did not depict “erotic nudity,” a necessary component of the crime of sexual exploitation of a child. He also contended that the statutory reference to “persons involved” in the definition of erotic nudity necessarily means that the people displayed in the photograph must be sexually stimulated. The Colorado Court of Appeals disagreed, citing the Colorado Supreme Court’s rejection of the contention that the focus of the overt sexual gratification component of the definition of erotic nudity could only be the persons depicted in the photograph. The court of appeals concluded that the statutory requirement was met.

T.B. also argued that the chain of custody was insufficient to show that he knew that he possessed the nude photos on his cell phone. He contended that the chain of custody linking his cell phone and the photographs was insufficient because it did not show that the photographs were accurate copies of the photographs that were on his phone. The court found that the photos were found by the police on the T.B.’s cell phone, they were identified by the girls as photos they had taken of themselves and texted to him, and T.B. had complimented one of them on the photos. A digital forensic officer testified that the data in T.B.’s phone had not been tampered with, and the photographs had been opened and viewed. Accordingly, there was sufficient evidence to prove that T.B. knowingly possessed the nude photos.

T.B. also argued that because there was no “sexual abuse of a child” in the photos, the evidence was insufficient to support a conviction. The court found that the clear and unambiguous language of the statute does not contain such a requirement.

T.B. further argued that the statute does not cover “teen sexting.” The court found nothing in the language of the statute to support such an argument.

T.B. also contended that the trial court abused its discretion when it denied his request for a jury trial. The court concluded that the trial court did not abuse its discretion because its decision fell within a range of reasonable options.

Finally, T.B. argued that he was being selectively prosecuted because he was a male and the trial court should have dismissed the sexual exploitation charges. The court found that the prosecution was not motivated by a discriminatory purpose and concluded that the trial court’s decision was not manifestly arbitrary, unreasonable, or unfair.

The delinquency adjudication was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: CCIOA Requires Substantial, not Strict, Compliance when Subdividing Units

The Colorado Court of Appeals issued its opinion in Perfect Place v. Semler on Thursday, October 20, 2016.

Colorado Common Interest Ownership Act—Strict or Substantial Compliance—Quiet Title—Unclean Hands—Fraudulent Conveyance—Attorney Fees.

This action concerns title to three parking spaces. In 2000, Blake Street Condominium (Blake Street) bought a mixed use residential and commercial building and recorded a written declaration subjecting the property to the provisions of the Colorado Common Interest Ownership Act (CCIOA). A majority interest in the building was sold to Quail Street Company, LLC (Quail Street). Quail Street’s sole shareholder was Watson. Watson made multiple changes to the building, including subdividing the garage into three individual parking spaces (C, D, and E) by painting yellow dividing lines on the garage wall. Spaces C and D were normal sized, and E was able to accommodate only a motorcycle or very small car.

Watson sold the individual parking spaces, as part of condominium units, to different buyers who subsequently sold or mortgaged them. The City and County of Denver taxed each space individually, the Blake Street homeowners association (association) separately assessed dues for each space, and title insurance separately insured the spaces.

Semler claimed title to space C from a 2007 foreclosure proceeding and space D through a different foreclosure proceeding. In 2010, the association’s attorney notified Semler and Perfect Place, LLC (Perfect Place) of clouded title concerning spaces D and E. Semler paid for a quitclaim deed from the former record owner of space D and recorded that in 2012. He claimed title to space E from a different deed in lieu of foreclosure.

Perfect Place is a member of the association. Perfect Place claimed title to all three spaces from a 2011 quitclaim deed it received and recorded from Watson. Watson issued a correction deed in 2013 (correction deed). It also claimed title to spaces D and E from a series of conveyances originating from a wild deed.

Perfect Place sued to quiet title to the three parking spaces in the Blake Street property. The trial court found that Watson subdivided the garage into three parking spaces and that Perfect Place procured the 2011 deed by fraud, concealment, and unclean hands. The court concluded that Semler owned spaces C and D. Title to space E was resolved in favor of Perfect Place by agreement of the parties. The court ordered Semler to draft a proposed amendment to the Blake Street declaration memorializing the decision.

Semler submitted a proposed map allotting space C 132 square feet, space D 132 square feet, and space E 90 feet. Semler relied on the historical boundaries of spaces C and D and the dimensions of space E set forth in a recorded parking space agreement. Perfect Place objected, a hearing was held, and the court allotted space C 129 square feet, space D 114 square feet, and space E 122 square feet. Perfect Place appealed the trial court’s finding that Semler owned parking spaces C and D. Perfect Place argued that the absence of a formal application to the association’s board describing reapportionment of the common elements, as well as the absence of an amended declaration or condominium map that strictly complies with CCIOA, violates C.R.S. § 38-33.3-213. Semler argued that Watson substantially complied with CCIOA when he subdivided the garage into three spaces.

The Colorado Court of Appeals looked at the plain language of C.R.S. § 38-33.3-213 and the purposes of CCIOA as a whole to find that substantial rather than strict compliance with the provision was required. In particular, it noted that statutory interpretation of CCIOA should give way to flexibility where strict adherence to provisions that create uniformity would render title unmarketable. Here, because Watson was the majority owner and board member of the homeowners association, any application that he would have submitted would have been submitted to himself. The declaration also gave him the authority, as the first purchaser from the grantor, to subdivide the garage. Moreover, a map identifying the spaces (though not their dimensions) was recorded. All of this amounted to substantial compliance.

Both parties asserted that the trial court abused its discretion in crafting equitable relief. Perfect Place contended that the court abused its discretion in (1) reforming the deeds of Watson and Quail Street to validly convey property and (2) voiding the 2011 quitclaim deed from Watson to Perfect Place by declaring it a fraudulent conveyance. Semler argued that it was an abuse of discretion for the trial court to increase the size of space E at the expense of space D, thereby benefitting Perfect Place, a party it had found to have unclean hands. The trial court’s reformation of deeds from Quail Street to grantees (that should originally have been from Watson to grantees) was not an abuse of discretion based on the finding that any conveyance errors by the grantors was inadvertent. The trial court also did not abuse its discretion in finding the 2011 quitclaim deed from Watson to Perfect Place was a fraudulent conveyance. Watson believed he was merely correcting a technical defect in title and Perfect Place’s attorney fostered that belief (which was false). Thus the record supported the finding that the quitclaim deed was obtained by “fraud in the factum” and was therefore void. But the court of appeals held that the award of additional area to space E and Perfect Place was an abuse of discretion because this equitable remedy benefitted a party with unclean hands.

Semler also sought attorney fees under the CCIOA. The court found the trial court erred in denying Semler’s request for attorney fees because he was required to defend his title under the provisions of CCIOA.

The judgment quieting title to spaces C and D in Semler was affirmed. The judgment adjusting the boundaries of spaces D and E was reversed. The case was remanded for the trial court to return the boundaries of spaces D and E to their historical dimensions and to determine and award Semler attorney fees.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Announcement Sheet, 10/27/2016

On Thursday, October 27, 2016, the Colorado Court of Appeals issued no published opinion and 44 unpublished opinions.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions. The case announcement sheet is available here.

Tenth Circuit: Unpublished Opinions, 10/26/2016

On Wednesday, October 26, 2016, the Tenth Circuit Court of Appeals issued no published opinion and three unpublished opinions.

United States v. Pena-Marquez

Rusk v. State of Utah

Moore v. McCollum

Case summaries are not provided for unpublished opinions. However, some published opinions are summarized and provided by Legal Connection.