May 24, 2017

Colorado Court of Appeals: Court Overrides Presumption of Fit Parent by Specifying Methods to be Used for Punishment

The Colorado Court of Appeals issued its opinion in In re Marriage of Dean and Cook on Thursday, April 20, 2017.

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Dean (mother) and Cook (father) divorced in 2006. Father filed a contempt motion on the basis that mother denied his parenting time. On May 19, 2014, the court set the contempt hearing over and ordered mother to engage in therapy. On November 3, 2014, the court found mother in contempt of court, ordered that she could purge the contempt by allowing father to have the children during their 2014 Thanksgiving break, and ordered her to pay father’s attorney fees. Sentencing occurred on January 8, 2015, at which time the court ordered mother to pay father’s attorney fees.

On appeal, mother first contended that the magistrate improperly reconsidered the May 19 order when, on November 3, she changed the nature of the sanctions imposed. On May 19, the magistrate simply adopted the parties’ stipulation for mother to engage in therapy; the order was not imposed to force mother to comply with the parenting time stipulation. No sanctions were imposed until November 3, when the magistrate found mother guilty of remedial contempt.

Mother also challenged the evidence presented at the contempt and sentencing hearings, the weight the magistrate placed on that evidence, and the findings and inferences the magistrate made in her orders. Mother failed to provide a copy of the transcripts from the contempt and sentencing hearings to the district court when she sought review of the magistrate’s orders under C.R.M. 7(a). Therefore, it is presumed that the record supports the magistrate’s orders that mother failed to comply with the parties’ stipulation and was thus in remedial contempt.

Mother also contended that the magistrate exceeded her authority when she ordered mother to restrict the children’s privileges if they did not comply with her instructions to go to father’s home for parenting time. By specifying the methods mother must employ to obtain the children’s compliance, the magistrate’s order improperly disregards the presumption that fit parents act in the best interests of their children. Therefore, that portion of the order was stricken.

Mother further argued that the magistrate demonstrated bias against her and should have been disqualified. Mother’s allegations were based only on the magistrate’s legal rulings and the resolution of conflicting evidence, which are not bases for disqualification. Further, mother did not seek to have the magistrate disqualified under C.R.C.P. 97.

Lastly, mother argued that the magistrate should have held a hearing on the reasonableness of father’s attorney fee affidavit. Mother objected to father’s fee affidavit on the basis that it was ambiguous and lacked clarity, and she requested a hearing on the issue of reasonableness. Once she raised these assertions, the magistrate should have held a hearing on this issue.

The judgment was affirmed in part and reversed in part, and the case was remanded with directions.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Unique Circumstances Doctrine Disfavored; Appeal Dismissed as Untimely

The Colorado Court of Appeals issued its opinion in Heotis v. Colorado Department of Education on Thursday, January 14, 2016.

In this appeal after remand, Heotis was a teacher who had criminal charges filed against her and entered into a plea agreement with a deferred judgment. In 2011, after fulfilling the conditions of her plea agreement, the court allowed Heotis to withdraw her guilty plea and dismissed the criminal case. Heotis sought to renew her teaching license in 2012 and discovered the Department had revoked her license based on her involvement in the criminal case. Heotis sought reinstatement of her teaching license.

In mid-January 2013, Heotis filed a motion in district court to seal the records in her criminal case, which was referred to a magistrate. The magistrate recommended against sealing the records, and the district court adopted the magistrate’s recommendations. Heotis appealed, and a panel of the court of appeals remanded with instructions for the magistrate to consider four factors in its review, adding that Heotis could appeal the magistrate’s decision to the district court and then the court of appeals.

On remand, the magistrate again recommended against sealing the records, and Heotis appealed to the district court within 14 days. The district court ruled on her motion 33 days later, and Heotis filed her appeal with the court of appeals 49 days after that. The court of appeals dismissed Heotis’ appeal as untimely, ruling that because her case was governed by C.R.M. 7(b), she should have immediately appealed to the court of appeals and had a 49-day deadline in which to do so. Even providing for excusable neglect, Heotis must have filed her appeal within 84 days, which she did not. The court refused to apply the unique circumstances doctrine based on the first panel’s incorrect statement about Heotis’ appeal rights, noting that the doctrine was disfavored by the U.S. Supreme Court.

Heotis’ appeal was dismissed.

Changes to Colorado Rules of Civil Procedure, Rules for Magistrates, and County Court Civil Procedure Announced

On Wednesday, January 8, 2014, the Colorado State Judicial Branch announced the final rules changes of 2013, Rule Change 2013(17) and Rule Change 2013(18), amended and adopted by the supreme court on December 31, 2013.

Rule Change 2013(17) amends § 1-26 of C.R.C.P. 121 and Rule 305.5 of the Colorado Rules of County Court Civil Procedure. The changes outline amended procedures for use of the state’s electronic filing system, ICCES, by pro hac vice or other out-of-state attorneys. The Comments to these rules have also been amended to reflect that ICCES is now the official e-filing system for Colorado.

Rule Change 2013(18) amends § 1-15 of C.R.C.P. 121 and Rule 7 of the Colorado Rules for Magistrates. The changes to C.R.C.P. 121 amend the time in which affidavits may be filed in support of motions. The changes to C.R.M. 7 specify that an order that effectively ends a case shall be subject to de novo review.

For the complete list of the Colorado Supreme Court’s rules changes, click here.