August 20, 2014

Colorado Court of Appeals: Wife’s Failure to Disclose Financial Records Not Fraud or Misconduct Under Rule 16.2(b)(2)

The Colorado Court of Appeals issued its opinion in In re Marriage of Roddy and Betherum on Thursday, July 31, 2014.

Modification of Child Support—Abuse of Discretion—Financial Disclosures—CRCP 16.2(e)(10)—CRCP 60(b)(2) and (5).

When the parties’ 2003 decree of dissolution was entered, the court adopted their stipulation that wife would be the primary residential parent for the parties’ minor child and husband would pay her $3,000 in monthly child support. Eight years later, husband moved to modify child support on the bases that his parenting time had increased and his income had decreased since the order. After a hearing, the district court increased husband’s child support obligation to $4,604 per month.

On appeal, husband contended that the district court erred in its child support calculation. Because husband’s appeal from the child support order was untimely, this part of husband’s appeal was dismissed.

Husband also argued that the district court abused its discretion when it denied his motion for post-trial relief after he established that wife had withheld financial information. The plain language of CRCP 16.2(e)(10) does not allow a court to re-determine a child support award. Further, although husband’s post-hearing evidence demonstrated that wife was “inconsistent” insofar as her finances were concerned, the court already made a finding at the child support hearing that wife’s testimony in that regard was “inconsistent” and “incredible.” Additionally, the parties did not dispute that their combined gross incomes exceed the uppermost guideline limits. Therefore, an exact income for wife was not required, because the court had discretion to deviate from the guidelines and enter an appropriate support order. As a result, the district court did not err by denying husband’s motion for relief.

Husband further argued that the court should have granted relief under CRCP 60(b)(5). Because husband alleged that wife either fraudulently failed to disclose or misrepresented her income, his motion fell squarely under CRCP 60(b)(2). In such cases, the residual provision of CRCP 60(b)(5) is not applicable. The appeal from the child support order was dismissed and the post-decree order was affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Chief Justice Directives 04-04 and 04-05 Amended by Colorado Supreme Court

On Friday, July 25, 2014, the Colorado Supreme Court announced revisions to Chief Justice Directive 04-04, “Advisory Counsel Appointments,” and 04-05, “Appointment and Payment Procedures for CAC, GALs, CFIs, and CVs.” For both of these Chief Justice Directives, the changes were effective July 1, 2014.

The changes reflect rate changes to the payment of court-appointed attorneys and investigators and related services. They affect both civil and criminal cases. The changes to CJD 04-04 are reflected in Attachment D, and the changes to CJD 04-05 appear on pages 7 to 8.

For all of the Colorado Supreme Court’s Chief Justice Directives, click here.

Tenth Circuit: Oklahoma’s Same-Sex Marriage Ban Ruled Unconstitutional

The Tenth Circuit Court of Appeals issued its opinion in Bishop v. Smith on Friday, July 18, 2014.

Sally Smith, the County Clerk for Tulsa County, Oklahoma, appealed the district court’s decision that Oklahoma’s same-sex marriage ban is unconstitutional. Smith also challenged the standing of the plaintiffs to bring the action, and whether the Oklahoma court clerk is a proper defendant as to Oklahoma’s non-recognition provision concerning same-sex marriages performed in another state. The Tenth Circuit determined that the plaintiffs had standing, affirmed the district court’s decision, and determined that the Oklahoma court clerk was an improper party regarding the non-recognition provision. In affirming, the Tenth Circuit applied its ruling in Kitchen v. Herbert, the Utah same-sex marriage case, in which it held that plaintiffs who wish to marry a partner of the same sex seek to exercise a fundamental right and state justifications for banning such marriages that hinge on the procreative potential of opposite sex marriage do not satisfy a narrow tailoring test applicable to laws that impinge upon fundamental liberties.

Mary Bishop and Sharon Baldwin are Oklahomans who are in a long-term relationship and wish to marry. They sought a marriage license from the Tulsa County Court Clerk in 2009 but were denied because they are both women. They have suffered harms from the denial, including incurring legal fees to prepare estate planning documents to confer upon each other the same rights they would have in marriage. Susan Barton and Gay Phillips were married in Canada in 2005 and again in California in 2008. They have suffered adverse tax consequences as a result of Oklahoma’s refusal to recognize their marriage, and say that Oklahoma treats them as inferior to their opposite-sex counterparts.

In November 2004, Bishop, Baldwin, Barton, and Phillips filed suit against the Oklahoma governor and  attorney general, challenging Oklahoma’s state constitutional ban on same-sex marriage. The governor and attorney general filed a motion to dismiss in 2006, which was denied, and appealed that denial to the Tenth Circuit. A panel of the Tenth Circuit determined in 2009 that plaintiffs failed to name a defendant having a causal connection to their injury, such as a court clerk. On remand, the district court allowed plaintiffs to amend their complaint to add Smith in her official capacity as Tulsa County Court Clerk, and to add challenges to §§ 2 and 3 of DOMA against the United States ex rel. Eric Holder. In 2011, the United States notified the district court that it would no longer defend § 3 of DOMA on the merits, and the Bipartisan Legal Advisory Group was allowed to intervene to defend the law. The case proceeded to summary judgment, and Smith submitted an affidavit that she had no authority to recognize out-of-state marriages, be they of same-sex or opposite-sex couples.

After the U.S. Supreme Court’s decision in United States v. Windsor, the district court entered an opinion and order disposing of the defendants’ motion to dismiss and the cross-motions for summary judgment. The district court ordered that Phillips and Barton lacked standing to challenge DOMA because state law resulted in the non-recognition of their marriage; any challenge to DOMA was moot in light of the Windsor decision; Phillips and Barton lacked standing to challenge Oklahoma’s non-recognition provision because Smith is not involved in recognition; and Oklahoma’s ban on same-sex marriage (Part A of SQ 711) violates the Equal Protection Clause. Smith appealed the decision regarding Part A and Barton and Phillips cross-appealed the conclusion that they lacked standing. The DOMA issues were not challenged.

Smith first contends that plaintiffs lack standing to challenge Part A of SQ 711 because they do not simultaneously contest a state statute to the same effect. However, the Tenth Circuit determined that a constitutional amendment would have the effect of superseding all previous statutes. The statute is not enforceable independent of SQ 711.

In addressing the merits of Smith’s appeal regarding Part A, the Tenth Circuit applied its reasoning from the Kitchen case. The Tenth Circuit opined that the Supreme Court’s dismissal in Baker v. Nelson is not controlling, plaintiffs seek to exercise a fundamental right to marry, and state justifications against same-sex marriage based on procreation fail to satisfy a strict scrutiny test. The Tenth Circuit first rejected Smith’s Baker arguments that lower courts are not free to reject summary dismissals, stating that her argument is undermined by the explicit language of the case creating the rule. Next, the Tenth Circuit evaluated her contention that children have an interest in being raised by their biological parents. The Tenth Circuit ruled that this contention is contradicted by statutes allowing adoption, egg and sperm donation, and other non-biological means for child-rearing. The Tenth Circuit noted that the state failed to raise arguments why same-sex marriage proposes a greater threat than other non-biological child-raising scenarios. Further, the Tenth Circuit stated that Oklahoma’s ban sweeps too broadly, because not all opposite-sex couples are able to procreate or are interested in procreation, and they are not denied the ability to marry.

As to the challenge to the non-recognition provision, the Tenth Circuit determined that Phillips and Barton lacked standing in this area because Smith is not a proper party. Smith submitted an affidavit to the effect that she is not able to recognize any marriages in her official capacity, and the affidavit is sufficient to establish that Smith is not a proper party regarding non-recognition. The Tenth Circuit sympathized with the plaintiffs, who have been litigating the issue for ten years, but suggested instead that if they attempted to file a joint tax return and were denied, they would be able to sue the Tax Commission regarding the denial.

The judgment of the district court was affirmed.

Probate, Domestic, Foreclosure, and Transcript Request Forms Revised

In June and July 2014, the Colorado State Judicial Branch issued several revised JDF forms. The Transcript Request Form, JDF 4, was revised in July and crosses many categories, including appeals, criminal, and miscellaneous. Other categories with revised forms include domestic relations, probate, and foreclosure. The revised forms are available here in PDF format, and are available for download as Word documents from the State Judicial forms pages.

DOMESTIC

  • JDF 1700 – “Instructions to File for Grandparent or Great-Grandparent Visitation” (revised 6/14)
  • JDF 1701 – “Verified Pleading Affidavit for Grandparent/Great-Grandparent Visitation” (revised 6/14)
  • JDF 1702 – “Order re: Pleading Affidavit for Grandparent/Great-Grandparent Visitation” (revised 6/14)
  • JDF 1704 – “Motion to Intervene” (revised 6/14)
  • JDF 1705 – “Order to Intervene” (revised 6/14)

EVICTIONS AND FORECLOSURES

  • JDF 618 – “Notice of Hearing for Expedited Residential Foreclosure Sale” (revised 6/14)

PROBATE

  • JDF 800 – “Acknowledgment of Responsibilities Conservator and/or Guardian” (revised 7/14)
  • JDF 841 – “Petition for Appointment of Guardian for Adult” (revised 6/14)
  • JDF 850 – “Guardian’s Report – Adult” (revised 6/14)

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

Fostering Success Legal Clinic — Why MVL is Addressing the Needs of Foster Kids!

By Peggy Hoyt-Hock, MVL Board Member

Foster Children. . . What comes to mind when you read this term? When I think of foster children, I tend to visualize something out of Oliver Twist . . . a group of young kids, hanging together, with little supervision. Then of course, I think of Jane Eyre, Annie or Harry Potter. Upon further reflection, I recall a few friends and acquaintances,who have on occasion mentioned that when young, they were fostered until perhaps being adopted or otherwise growing into successful, professional adults.

Then, consider this statistic: In the US, just over 30 percent of typical kids obtain a bachelor’s degree by age 25. When compared to children from the foster care system this number drops to two percent! Until writing this blog, I was unaware of the gap; honestly never giving the topic much thought. This difference presents just one example of the significant challenges children who age-out of the foster system must face.

The phone call came out of the blue. A professional young attorney, in fact an MVL Rovira Scholar introduced herself. “I am calling to ask you to serve as a volunteer for the first MVL Fostering Success Legal Clinic in July.” I asked her to tell me more about it. In the course of our conversation, I confirmed my commitment and discovered that Leeah Lechuga had direct personal experience with the foster care system.

If time would allow, we would both place individual calls to each good hearted attorney we know asking them to volunteer for this new Fostering Success Legal Clinic. Since neither of us have time, we are publishing this blog.

MVL has been fortunate to have had our recent Rovira Scholar, Leeah Lechuga. She reached out to share some of the challenges faced by an individual who ages-out of the foster care system. Leeah is a young and dynamic Colorado attorney, who recently left MVL for a Clerkship in the 18th Judicial District. If you happen to see her there, please join us in thanking her for arranging to have MVL partner with others to establish the new MVL“Fostering Success Legal Clinic.”

Snippets of the interview follow:

Peg, Q: You have personal experience with having to navigate the system. Can you share what it was like?

Leeah, A: My experience with my only out-of-home placement was wonderful. My foster parents made my experience with the system transformative.

It was the other systems that were difficult, after I aged out — student financial aid, finding an apartment, buying a car — I felt lost and incompetent constantly. I also felt lost in other ways, particularly recognizing the value in healthy relationships and building a healthy community. That is so important, but it took me a long time to get here.

Peg, Q: What can you tell the attorneys who read this blog, and may consider volunteering for this clinic — particularly those who may not have volunteered with MVL before — with regard to specific knowledge, skills, or experience they need?

Leeah, A: Attorneys, your willingness to be there is the biggest thing.

It is followed closely by a willingness to be an open book. Most of the legal issues won’t be complex. But you never know what seemingly trivial answer will unlock a whole new level of understanding and way of thinking for these young people. Something you say may connect with something that was said or overheard in a previous encounter. You can be transformative.

If you have not signed up to help with this clinic yet, please do so now. Let’s see how many lives the “Fostering Success Legal Clinic” can help transform over time! If you are interested, please contact diannev@denbar.org.

This article originally appeared on the MVL blog on July 3, 2014.

Colorado Supreme Court: Case-by-Case Evaluation of Summary Judgment Appropriateness Needed in Prospective Harm Cases

The Colorado Supreme Court issued its opinion in People in Interest of S.N. on Monday, June 30, 2014.

Dependency and Neglect Adjudication—Prospective Harm—Summary Judgment.

The Supreme Court granted certiorari to consider whether summary judgment is ever appropriate in a dependency and neglect adjudication involving prospective harm. The Court held that courts must evaluate whether summary judgment is appropriate in such instances on a case-by-case basis. Accordingly, the Court reversed the judgment of the court of appeals and remanded the case to that court for proceedings consistent with this opinion.

Summary and full case available here.

Volunteers Needed for Denver Public Schools Adult Self-Sufficiency Programs

The Mile High United Way, Denver Public Schools, and the Denver Bar Association are collaborating to implement Adult Self-Sufficiency service programs for the Denver Public School community. DPS has chosen to implement the Adult Self-Sufficiency programs to ensure that families receive the services they need to be economically self-sufficient and support their children’s learning. Each program site is picked based on high-need neighborhoods where a greater-than-average percentage of families qualify for free- and reduced-price lunch. Studies have shown that parental or guardian financial instability and family mobility because of financial instability often make it difficult for students to stay on track academically.

The first program site will be College View Elementary at 2675 South Decatur Street in Denver.  We are looking for family law attorneys to provide a 20 minute phone consultation on domestic issues to parents at College View Elementary. For more information, contact Meghan Bush at (303) 824-5303 or mbush@cobar.org.

Volunteers Needed for Clinic on Collecting Child Support

The DBA Access to Justice Committee will be providing a training for the presenters of the newly created “How to Collect Child Support” public clinic. This clinic is a great way to get involved with the Denver community, gather information, and teach basic techniques for collecting support. The child support collections training will be on June 13 from 8:30 a.m. to 10 a.m. at the CBA offices, 1900 Grant St., 9th floor. One CLE credit available. Contact Meghan Bush to register.

Domestic Relations Forms and Instructions, Bond Form, and Seal My Case Form Amended

In April and May 2014, several of State Judicial’s JDF forms and instructions were amended, mostly in the Domestic Relations category. Forms are available for download here in PDF format, and are available in Word and Word Template formats from the State Judicial forms pages.

Bonds

  • JDF 231 – “Waiver of Extradition as a Condition of Bail Bond” (revised 4/14)

Domestic Relations

  • JDF 1266 – “Instructions to File for a Dissolution or Legal Separation of Civil Union if There Are No Children of this Civil Union or the Children are Emancipated” (revised 5/14)
  • JDF 1267 – “Instructions to File for a Dissolution or Legal Separation of Civil Union with Children of this Civil Union” (revised 5/14)
  • JDF 1406i – “Instructions to File a Motion/Stipulation to Modify/Restrict Parenting Time” (revised 5/14)
  • JDF 1411 – “Instructions to File a Motion or Stipulation to Modify Custody or Decision-Making Responsibility (revised 5/14)
  • JDF 1413i – “Instructions for Allocation of Parental Responsibilities” (revised 5/14)
  • JDF 1113 – “Parenting Plan” (revised 5/14)
  • JDF 1257 – “Decree of Dissolution of Civil Union or Legal Separation of Civil Union” (revised 5/14)
  • JDF 1258 – “Affidavit for Decree without Appearance of the Parties (Civil Union)” (revised 5/14)
  • JDF 1273 – “Parenting Plan (Civil Union)” (revised 5/14)

Seal My Case

  • JDF 419 – “Order and Notice of Hearing (Sealing of Records)” (revised 4/14)

 

Click here to access all of State Judicial’s forms.

Tenth Circuit: Willful Underemployment Not Defense to Failure to Pay Child Support

The Tenth Circuit Court of Appeals issued its opinion in United States v. Fuller on Tuesday, May 13, 2014.

Fuller is the father of three children raised by Dolores Jones. When Jones and Fuller divorced, Fuller was ordered to pay $347 per month in child support. However, Fuller almost never fulfilled his child support obligation, and eventually was brought to trial in district court under the Child Support Recovery Act for $54,478.36 owed in child support. Fuller moved for acquittal after the government’s case-in-chief and at the close of all evidence, but the court reserved ruling on the motions. Several weeks after the verdict issued, the district court denied both of Fuller’s motions. Fuller appealed the denial of his first motion to acquit on two grounds: (1) the court erred by relying on an unconstitutional statutory presumption of his “ability to pay” child support, and (2) without the presumption, the government’s evidence was insufficient to prove that he “willfully” failed to pay.

The Tenth Circuit evaluated the district court’s denial and determined that the court did not rely on the presumption of Fuller’s “ability to pay.” Indeed, the district court noted that his income was insufficient to pay the child support obligation, but this was due to Fuller’s willful underemployment. Both of Fuller’s arguments failed and the Tenth Circuit affirmed the judgment of the district court.

HB 14-1379: Clarifying the Applicability of Prior Statute in Claims for Spousal Maintenance Filed Before January 1, 2014

On April 15, 2014, Rep. Beth McCann and Sen. Andy Kerr introduced HB 14-1379 - Concerning Clarifying the Application of Spousal Maintenance Statutes. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill clarifies that the spousal maintenance statute as it existed prior to January 1, 2014, governs claims for maintenance in dissolution of marriage and other actions filed prior to January 1, 2014.

The bill clarifies that, in addition to remarriage, maintenance also terminates upon the establishment of a civil union by the party receiving maintenance.

The bill was approved by the House on April 28. The Senate Judiciary Committee approved the bill on April 30, and on May 2 the bill was approved on 2nd Reading in the Senate.

Since this summary, the bill passed 3rd Reading in the Senate, unamended, and will go next to the governor’s desk.

SB 14-203: Creating the Office of the Respondent Parents’ Counsel to Provide Representation in Dependency and Neglect Proceedings

On April 16, 2014, Sen. Kent Lambert introduced SB 14-203 – Concerning the Office of the Respondent Parents’ Counsel in Cases of Alleged Child Abuse or Neglect. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill establishes the office of the respondent parents’ counsel in the state judicial department, effective July 1, 2015, to provide high-quality legal representation to parents involved in dependency and neglect proceedings and who lack the financial means to obtain legal representation.

On April 23 the Judiciary Committee amended the bill and sent it to the Appropriations Committee. On April 25, the Appropriations Committee approved the bill and sent it to the full Senate for consideration on 2nd Reading.