October 23, 2017

JDF Instruction Forms, Motion to Seal Criminal Records, and More Amended in September

The Colorado State Judicial Branch revised 19 JDF forms in September 2017. Most of the revised forms are instructions, but there were a few additional forms amended as well. PDFs of the revised forms are available here, and Word versions of the non-instruction forms are available on the State Judicial forms page.

DOMESTIC RELATIONS

  • JDF 1099 – “Instructions to File for a Dissolution of Marriage or Legal Separation if There Are No Children of This Marriage or the Children are Emancipated” (revised 9/17)
  • JDF 1100 – “Instructions to File Dissolution of Marriage or Legal Separation with Children of This Marriage” (revised 9/17)
  • JDF 1266 – “Instructions to File for a Dissolution or Legal Separation of Civil Union if There Are No Children of the Civil Union or the Children are Emancipated” (revised 9/17)
  • JDF 1267 – “Instructions to File for a Dissolution or Legal Separation of Civil Union with Children of This Civil Union” (revised 9/17)
  • JDF 1268 – “Instructions to File for a Declaration of Invalidity of Civil Union (Annulment)” (revised 9/17)
  • JDF 1399 – “Instructions to File a Motion or Stipulation to Modify or Terminate Maintenace (Spousal/Partner Support)” (revised 9/17)
  • JDF 1400 – “Instructions to File a Motion or Stipulation to Relocate Minor Children” (revised 9/17)
  • JDF 1403I – “Instructions to File a Motion or Stipulation to Modify Child Support” (revised 9/17)
  • JDF 1406I – “Instructions to File a Motion/Stipulation to Modify/Restrict Parenting Time” (revised 9/17)
  • JDF 1411 – “Instructions to File a Motion or Stipulation to Modify Custody or Decision-Making Responsibility” (revised 9/17)
  • JDF 1413 – “Petition for Allocation of Parental Responsibilities” (revised 9/17)
  • JDF 1413I – “Instructions for Allocation of Parental Responsibilities” (revised 9/17)
  • JDF 1524 – “Instructions to File a Motion to Modify or Set Aside Parentage” (revised 9/17)
  • JDF 1600 – “Instructions to File for a Declaration of Invalidity of Marriage (Annulment)” (revised 9/17)
  • JDF 1800 – “Instructions/Options to Enforce Orders” (revised 9/17)

CRIMINAL

  • JDF 476 – “Instructions to Discontinue Sex Offender Registration for a Colorado and Non-Colorado Juvenile Adjudication or Disposition” (revised 9/17)
  • JDF 477 – “Motion to Seal Criminal Justice Records Pursuant to § 24-72-702.5, C.R.S.” (revised 9/17)
  • JDF 478 – “Order to Seal Criminal Justice Records Pursuant to § 24-72-702.5, C.R.S.” (revised 9/17)
  • JDF 611 – “Instructions to File a Petition to Seal Criminal Conviction Records Involving Controlled Substances and Petty Offenses and Municipal Violations” (revised 9/17)

For all of State Judicial’s JDF forms, click here.

Celebrate the 35th Anniversary of the Rocky Mountain Children’s Law Center on October 20

On Friday, October 20, 2017, the Rocky Mountain Children’s Law Center will host a celebratory gala in honor of its 35th anniversary. The Legacy Gala will feature a presentation by former Denver Broncos running back Reggie Rivers. There will also be an awards ceremony, a live auction, and a silent auction, in addition to dinner and cocktails. Sponsorship opportunities are available for the Legacy Gala, and the Rocky Mountain Children’s Law Center is accepting donations for the silent auction as well. To register for the event or to learn more about sponsorship, click here.

Colorado Court of Appeals: Payment Obligation Under Marital Agreement Terminates at Death of Either Party

The Colorado Court of Appeals issued its opinion in In re Estate of Williams on Thursday, September 7, 2017.

Dissolution of Marriage—Premarital Agreement—Separation Agreement—Maintenance—Estate.

Husband and wife executed a premarital agreement providing that husband would pay wife “during her lifetime” and wife would be entitled to receive from husband “during her lifetime” monthly payments on the filing of a petition for dissolution. In exchange for the monthly payments, wife waived maintenance. Husband and wife’s marriage ended in 1996, and husband consistently made monthly payments to wife under their separation agreement until his death. When husband’s estate refused to continue making the payments, wife filed the underlying action. The district court ruled that the premarital and separation agreements obligated the estate to continue making the monthly payments to wife until her death or remarriage. The court also awarded wife attorney fees and costs under the prevailing party provisions of the agreements.

On appeal, the estate contended that the district court erred in ruling that husband’s obligation under the premarital and separation agreements to make monthly payments to wife survived his death as an obligation of his estate. The premarital and separation agreements reflect agreement regarding the duration of the monthly payments relative to the life or marital status of the wife, but say nothing about what would happen on husband’s death. The separation agreement also released the parties and their estates from claims and demands. Therefore, husband’s personal obligation to pay ended when he died, absent a clear indication to the contrary, which neither the premarital nor separation agreement provided.

The estate also contended that the district court erroneously awarded wife attorney fees and costs and that it should have been awarded its own attorney fees under the prevailing party provisions of the agreements. The Colorado Court of Appeals agreed.

The order and judgments were reversed and the case was remanded with directions.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: UCCJEA Required Trial Court to Conduct Further Inquiries Before Assuming Jurisdiction

The Colorado Court of Appeals issued its opinion in People in Interest of C.L.T. on Thursday, September 7, 2017.

Termination of Parental Rights—Dependency and Neglect—Jurisdiction—Uniform Child Custody Jurisdiction and Enforcement Act—Emergency Jurisdiction.

C.L.T., a child, was adjudicated dependent and neglected. Thereafter, the Denver Department of Health and Human Services moved to terminate the parental rights of mother and father, alleging that they had not complied with their treatment plans and that both of them were unfit parents. The trial court found that although reasonable efforts had been made to rehabilitate mother, her treatment plan had not been successful, she was not fit to parent the child, and she was not likely to become fit within a reasonable period of time. The court made similar findings regarding father. Then it terminated the parental rights of both mother and father.

On appeal, mother contended that the trial court lacked jurisdiction to terminate her parental rights because it failed to comply with the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). She argued that because a child welfare case remained open in Texas when the Colorado case was filed, the Colorado court could exercise only emergency jurisdiction unless and until it acquired ongoing jurisdiction under the UCCJEA. The information in the record, which was limited but contained at least some indication that the court may not have had the requisite jurisdiction, was insufficient to establish whether the trial court had jurisdiction to enter any order beyond the temporary emergency order.

The judgment was vacated, and the case was remanded for the trial court to undertake further inquiries about proceedings concerning the child in other states, confer with courts in other states as appropriate, and make express findings about its UCCJEA jurisdiction.

Summary provided courtesy of Colorado Lawyer.

Lawyers Run for Kids on October 1, 2017

Run for a good cause! The 2017 Hot Chocolate 5K/15K will take place on October 1, 2017. You can support the Rocky Mountain Children’s Law Center while you run — the Children’s Law Center arranged with Hot Chocolate to invite you, your business, and its clients to run in a fun and chocolate-filled race against other businesses in the Denver metro area. Join Lawyers Run for Kids with employees or clients to race against other businesses for bragging rights, all while making a difference in a child’s life.

The Children’s Law Center Lawyers Run for Kids lets you:

  • Create teams with your colleagues and build office camaraderie (we encourage professionals in all work
    sectors and industries to participate!)
  • Invite your clients to join you for a fun, relationship-building event
  • Race against other businesses for fabulous prizes – there’s more than one way to win!
  • Run with your friends and make a tax-deductible donation through your sponsorship to help the kids we serve!

Perks for you:

  • Every runner will receive a Lawyers Run for Kids tech t-shirt, with all teams business logos on back of shirt
  • Hot Chocolate Swag including a soft, tech-fabric pullover, goodie bag, chocolate medal and finish line hot chocolate fondue and dippers
  • Children’s Law Center prizes for fastest (and slowest) male, female and coed teams as well as an elite prize for the firm with the most teams
  • Prominent recognition via: Law week Colorado post-race color ad, Children’s Law Center social media platforms, website, & quarterly newsletter
  • Special rates for government employees, non-profit employees, and CLC Junior Board members!

Registration information is available here. Register individuals and teams by September 13 in order to have your logo printed on the Lawyers Run for Kids shirt. Click here to register, and use coupon code MTQJYBFMQP to have your registration completed by the Children’s Law Center.

JDF Forms in All Categories Amended by State Judicial

The Colorado State Judicial Branch has been amending its JDF forms in August. To date, there are 246 forms with an August revision date, including forms in every major category.

The JDF forms are being revised to include the following language:

□ By checking this box, I am acknowledging I am filling in the blanks and not changing anything else on the form.
□ By checking this box, I am acknowledging that I have made a change to the original content of this form.
(Checking this box requires you to remove JDF number and copyright at the bottom of the form.)

For a complete list of the Colorado State Judicial Branch’s JDF forms, including those with August 2017 revision dates, click here.

Discovering Discovery: Building Your Case, Deposition Tips, Expert Witnesses, and More

“Reduced to its essence, discovery is the process of identifying, collecting, producing and/or receiving relevant, nonprivileged materials in connection with pending or reasonably foreseeable litigation. With the advent of notice pleading, civil discovery provides access to the relevant information that litigants and their counsel require to make informed decisions about the merits of their case and the potential for settlement.” -Magistrate Judge Craig B. Shaffer

Discovery is a crucial component of every litigation case. In the last 10 years, civil litigation has changed significantly. The proliferation of electronic data and new rules on both the state and federal level create increasingly difficult challenges for preserving, managing, and producing electronically stored information. Conducting discovery outside Colorado has become mainstream as civil litigation has become more national—even global.

This Friday, CBA-CLE will debut the newest title in our litigation library, Discovery in Colorado, at a full-day program, “Discovering Discovery.” Discovery in Colorado is a practical guide to discovery that brings to life the application of the Colorado and Federal Rules of Civil Procedure governing the discovery process. Discovery in Colorado was written by a variety of different practitioners, overseen by Magistrate Judge Nina Y. Wang and Natalie Hanlon Leh, Esq. Attorneys and judges with backgrounds in private, in-house, and government practice authored individual chapters.

Learn different approaches to discovery and hear distinct perspectives from some of the most experienced trial attorneys and judges in Colorado. Each class attendee receives Discovery in Colorado, 1st Edition, as course materials. Explore the ever-changing state of discovery through this valuable course and companion book. Register using the links below, or call (303) 860-0608.

 

CLELogo

CLE Program: Discovering Discovery

This CLE presentation will occur on Friday, July 28, 2017, at the CLE Large Classroom (1900 Grant St., 3rd Floor) from 8:30 a.m. to 4:45 p.m. Register for the live program here and the webcast here. You may also call (303) 860-0608 to register.

Can’t make the live program? Order the homestudy here — Video OnDemandMP3 Audio

Colorado Court of Appeals: Laches is Available as Defense to Long-Overdue Maintenance Award

The Colorado Court of Appeals issued its opinion in In re Marriage of Kann on Thursday, July 13, 2017.

Post-Dissolution of Marriage—Laches as a Defense to Collection of Spousal Maintenance Arrearages and Interest—Implied Waiver and Estoppel.

A decree of dissolution of marriage between husband and wife was entered in 1989. Husband agreed to pay wife lifetime maintenance of no less than $1,200 per month. In the event of breach, the prevailing party would be entitled to recover costs, expenses, and reasonable attorney fees. For the next 26 years, husband never paid maintenance and wife never asked him to do so.

In 2015, wife retained counsel and sought entry of judgment for $520,636.32—$289,200 in unpaid maintenance and $231,436.32 in interest. She also requested a maintenance modification if the court did not award her the full judgment. Husband raised the affirmative defenses of waiver, estoppel, and laches. He also requested that the court terminate his maintenance obligation if it awarded wife the full judgment. The trial court (1) concluded that husband was required to pay maintenance under the decree; (2) held that Colorado law does not recognize the laches defense; (3) found that husband had failed to meet his burden of proof on the waiver and estoppel defenses; and (4) enforced the full judgment against him. The court also decreased the maintenance going forward to $800 per month and awarded wife attorney fees as the prevailing party under the separation agreement.

On appeal, husband argued that he should have been able to raise laches as a defense. While a novel issue in Colorado, courts have addressed the issue as to child support and child support combined with maintenance. Based on these cases, the court of appeals concluded that laches is available as an affirmative defense when a party seeks maintenance arrearages as well as the interest on those arrearages. The court remanded for the trial court to reconsider the full scope of the laches defense on the existing record.

Husband also challenged the rejection of his implied waiver and estoppel defenses. The record supports the trial court’s rejection of husband’s waiver argument. As to estoppel, husband asserted that he proved all four elements. The trial court rejected this defense, finding that (1) husband understood his obligation to pay maintenance; (2) wife never told him that he did not have to pay; and (3) husband did not detrimentally rely on wife’s assertion that she would not collect maintenance. The court found no basis on which to disturb the trial court’s rejection of the estoppel defense.

Husband further argued that it was error to modify rather than terminate his maintenance obligation. The court could not resolve this issue because the propriety of the trial court’s order will depend whether it awards the wife none, part, or all of her request for maintenance arrearages plus interest.

The portions of the trial court’s order rejecting husband’s laches defense, awarding attorney fees to wife as the prevailing party, and modifying husband’s maintenance obligation were reversed. The case was remanded for the court to consider whether laches bars wife’s entitlement to maintenance interest or arrearages and, based on this determination, to then reconsider the maintenance and attorney fee awards as well as wife’s claim for appellate attorney fees. In all other respects the order was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Adoption Instruction Forms, Change of Name Instructions Amended in July

The Colorado State Judicial Branch released five JDF forms with a July 2017 revision date. The forms amended in July are four instruction forms in the adoption category and one instruction form for a change of name for a minor. These forms are available in PDF format here or in Word format on the State Judicial website. Additionally, one form was amended in June and several were amended in May. They are also available here.

ADOPTION

  • JDF 495 – “Instructions for Second Parent Adoption (Without Civil Union)” (Revised 7/17)
  • JDF 497 – “Instructions for Validation of Foreign Adoption” (Revised 5/17)
  • JDF 498 – “Instructions for Kinship Adoption” (Revised 7/17)
  • JDF 499 – “Instructions for Custodial Adoption” (Revised 7/17)
  • JDF 500 – “Instructions for Stepparent Adoption” (Revised 7/17)

DOMESTIC RELATIONS

  • JDF 1413I – “Instructions for Allocation of Parental Responsibilities” (Revised 6/17)

GENERAL/MISCELLANEOUS

  • JDF 76 – “General Motion” (Revised 5/17)
  • JDF 88 – “Notice of Change of Address or New Name” (Revised 5/17)
  • JDF 97 – “Notice to Quit” (Revised 5/17)

NAME CHANGE

  • JDF 420 – “Instructions for Filing for a Change of Name (Minor)” (Revised 7/17)
  • JDF 424 – “Request to Publish Notice to Non-custodial Parent of Change of Minor’s Name and Publication Order” (Revised 5/17)
  • JDF 425 – “Notice to Non-custodial Parent by Publication” (Revised 5/17)

For all of State Judicial’s JDF forms, click here.

Colorado Court of Appeals: Obvious Instructional Error Did Not Fundamentally Undermine Defendant’s Rights

The Colorado Court of Appeals issued its opinion in People v. Hoggard on Thursday, June 29, 2017.

Custody—Child and Family Investigator—Second Degree Forgery—Attempt to Influence a Public Servant—Invited Error—Waiver—Constructive Amendment—Lesser Included Offense—Jury Instructions—Mens Rea.

During a child custody dispute, Hoggard forwarded to the court-appointed child and family investigator a chain of emails between her and her ex-husband. Hoggard allegedly falsified that email chain by adding five sentences that made it appear that her ex-husband had threatened her. As a result of that alleged falsification, Hoggard was convicted of second degree forgery and attempt to influence a public servant.

As an initial matter, the People argued that the doctrines of invited error and waiver preclude appellate review of Hoggard’s instructional error claims. Although Hoggard’s counsel approved the disputed jury instructions, it was an oversight, not a strategy, and therefore not invited error. Further, the failure to object to the jury instructions was not a waiver under the circumstances of this case.

Hoggard contended on appeal that the trial court constructively amended the second degree forgery charge by instructing the jury on the uncharged and more serious offense of felony forgery. Although the trial court’s forgery instruction was erroneous, instructing the jury on felony forgery was not a constructive amendment because Hoggard was both charged with and convicted of second degree forgery, a lesser included offense of felony forgery. Further, there is no reasonable likelihood that the instructional error affected the outcome of the trial.

Hoggard next argued that her conviction for attempt to influence a public servant must be reversed because the trial court did not instruct the jury on the required mens rea for each element of the offense, thereby violating her constitutional due process rights. Although the trial court’s instruction on the charge tracked the statute, it did not expressly require the jury to find that Hoggard acted with intent as to the third and fourth elements of the crime: that she intended to attempt to influence a public servant and that she intended to do so by means of deceit. Nor did the instruction set off the mens rea requirement as a separate element. Accordingly, the trial court’s instruction on attempt to influence a public servant was erroneous and the error was obvious at the time of trial. However, because there was no reasonable probability that the trial court’s instructional error contributed to Hoggard’s conviction, it was therefore not plain error.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Post-Decree Modifications of Parental Responsibilities — Best Interests, Endangerment, and More

Sometimes, after a decree of dissolution is entered, parents seek to modify their allocation of parental responsibilities. The standard for modification of decision-making is found in C.R.S. § 14-10-129(2)(a) through (d). Subsection (a) allows for modification when the parties agree, but in practice this rarely or never happens. Subsection (b) allows modification when the child has been integrated into the family of the moving party with the consent of the other party — this, too, rarely happens. Subsection (c) addresses relocation and lists specific criteria for modification. The “meat” of the statute, however, is in subsection (d).

Subsection (d) allows modification of decision-making when “The child’s present environment endangers the child’s physical health or significantly impairs the child’s emotional development and the harm likely to be caused by a change of environment is outweighed by the advantage of a change to the child.” Many cases have interpreted “endangerment” as it relates to the modification of decision-making; it is where attorneys get creative with their arguments. Typically, though, “endangerment” is when the parent fails to make decisions or when the parents cannot agree on even the most minor of decisions and it harms the child.

The standard to modify parenting time is the best interest of the child standard, which is slightly less onerous to meet than the endangerment standard. Learn more about the interplay of the two standards and practical applications of the standards in case law from Marie Moses, a partner at Lass Moses Ramp, LLP. Ms. Moses presented a program, “Mastering Post-Decree Modification Standards: Best Interests Versus Endangerment,” which is available here:

Ms. Moses discusses the difference between the best interests and the endangerment standards, and how courts apply the two in practical situations.

The materials and homestudy are available for purchase here.

CJD 16-02 Regarding Office of Respondent Parents’ Counsel Amended by Colorado Supreme Court

On Tuesday, June 13, 2017, the Colorado State Judicial Branch announced amendments to CJD 16-02, “Court Appointments Through the Office of Respondent Parents’ Counsel.” The changes include minor additions and changes to various sections, as well as:

  • Giving ORPC the authority to select attorneys for specific cases upon notice to the court;
  • Prohibiting the same attorney from representing multiple parents in the same case;
  • Clarifying the appellate appointment policy;
  • Removing billing policies from the CJD that were contained in the ORPC billing policies;
  • Allowing Judges and Magistrates to appoint RPC prior to the filing of a petition for good cause; and
  • Clarifying appointment protocols.

The changes to CJD 16-02 were adopted June 13, 2017, and are effective July 1, 2017. For the full text of CJD 16-02, click here. For all of the Colorado Supreme Court’s Chief Justice Directives, click here.