January 18, 2017

Colorado Supreme Court: District Court Must Take Active Role in Managing Discovery Request of Non-Party in Dissolution Proceeding

The Colorado Supreme Court issued its opinion in In re Marriage of Gromicko on Monday, January 9, 2017.

In 2015, Lisa Dawn Gromicko (Wife) filed a petition for dissolution of marriage, naming Nickifor Nicholas Gromicko (Husband) as respondent. The petition requested equitable division of marital assets and debts. In order to evaluate Husband’s income, Wife requested records from Husband’s employer, InterNACHI, a nonprofit organized as a § 501(c)(6) trade association. Although Husband initially stated he would not object to the production of certain records, he did not provide them, and Wife requested a status conference. Husband’s counsel, who was also InterNACHI’s general counsel, filed a motion in response to Wife’s discovery request, arguing (1) the only InterNACHI relevant to the divorce proceeding were those reflecting Husband’s compensation and expense reimbursements; (2) the court could not consider InterNACHI a marital asset because Wife did not allege grounds in her dissolution petition to pierce the corporate veil; and (3) the court could authorize Wife to serve a subpoena duces tecum on InterNACHI to produce the relevant documents. The court held the status conference but did not rule on the discovery issues.

Wife then served a subpoena duces tecum on InterNACHI requesting (1) Husband’s employment and compensation; (2) the employment by InterNACHI of any person related to Husband; (3) InterNACHI’s bookkeeping, accounting, and tax return or Form 990 preparation; and (4) InterNACHI’s conflict-of-interest policy. InterNACHI moved to quash the subpoena, arguing that many of the requested documents were privileged, confidential, and irrelevant to the dissolution proceeding. InterNACHI also renewed its motion that Wife did not allege any grounds sufficient to claim that InterNACHI was Husband’s alter ego and pierce the corporate veil. The court denied InterNACHI’s motion to quash, and it filed a C.A.R. 21 interlocutory appeal.

On appeal, InterNACHI argued that the district court abused its discretion in refusing to quash or modify Wife’s subpoena because (1) Wife was required to, but did not, plead in her dissolution petition a claim for piercing InterNACHI’s corporate veil and (2) certain of Wife’s discovery requests were irrelevant to her veil-piercing claim and thus were outside the scope of discovery permitted by C.R.C.P. 26. The court first analyzed the discovery requirements in domestic relations cases, which are governed by C.R.C.P. 16.2, and found that Wife was not required to plead in her dissolution petition a claim seeking to pierce InterNACHI’s corporate veil. However, the supreme court concluded the district court did not use the correct standard in evaluating InterNACHI’s objection to the requested discovery.

The court compared C.R.C.P. 16.2 to the discovery requirements in civil cases, governed by C.R.C.P. 26. The court found the two rules analogous. The court found that its holding in DCP Midstream, LP v. Anadarko Petroleum Corp., 2013 CO 36, applied in this case and required the district court to take an active role in managing discovery. The supreme court found that the district court should initially have granted Wife only such discovery as would reasonably have been necessary to allow her to attempt to establish the existence of the alter ego relationship that she claimed. The supreme court noted that if, after receiving limited discovery, Wife could prove that InterNACHI was Husband’s alter ego, she may then be entitled to receive the information in her initial request, but the court must actively monitor discovery pursuant to DCP Midstream.

The supreme court made its rule to show cause absolute and returned the case to the district court for further proceedings.

Colorado Court of Appeals: Posting Bond is Necessary but Insufficient Condition to Stay Dissolution Proceedings

The Colorado Court of Appeals issued its opinion in In re Marriage of Finn on Thursday, December 30, 2016.

Post-Dissolution Marriage Proceeding—Request for Stay—Romero v. City of Fountain.

Husband and wife had entered into a marital agreement. Wife later filed for dissolution of the marriage, and the trial court subsequently issued a detailed order directing husband to make certain payments to wife within 20 days. Husband filed a motion for post-trial relief pursuant to C.R.C.P. 59 and 60, which was denied. Husband appealed and also filed a motion for stay with the trial court and requested approval of his supersedeas bond; both requests were denied.

Pursuant to C.A.R. 8, husband sought a stay of the trial court’s orders requiring him to pay wife certain sums of money and to return her artwork and other personal property. Husband presented a redacted copy of a cashier’s check in the amount necessary for a supersedeas bond and represented that his counsel would deposit the check if his motion were granted.

Stays pending appeal are controlled by C.A.R. 8(a). Romero v. City of Fountain adopted a four-part test for determining whether a stay should be issued under CAR 8: (1) whether the moving party has made a strong showing that it is likely to prevail on the merits, (2) whether the moving party will suffer irreparable harm if a stay is not granted, (3) whether other interested parties would be harmed by granting the stay, and (4) whether the public interest will be harmed by granting the stay. Romero involved a motion to stay an order denying an injunction. Husband argued that Romero does not apply here.

A stay is an exercise of judicial discretion and not a matter of right. The Colorado Court of Appeals first concluded that posting a supersedeas bond alone is insufficient to mandate a stay in a family law case. As to both the monetary and nonmonetary orders, the court then determined that a court considering a stay of that part of a judgment involving marital and separate property must consider the first three Romero factors; the fourth factor, harm to the public interest, is ordinarily not relevant in the context of a dissolution of marriage. The court found that (1) husband had not made even a cursory showing as to why his appeal was likely to succeed on the merits; (2) husband’s contention that he faces “clear” irreparable harm if a stay is not granted was unpersuasive; and (3) wife would be harmed by the issuance of a stay, because she would be denied benefits she negotiated in the marital agreement.

The motion for stay was denied.

Summary provided courtesy of The Colorado Lawyer.

Top Ten Programs and Homestudies of 2016: Family Law

The year is drawing to a close, which means that the compliance period is ending for a third of Colorado’s attorneys. Still missing some credits? Don’t worry, CBA-CLE has got you covered.

Today on Legal Connection we are featuring the Top Ten Family Law Programs and Homestudies of 2016. In addition to the programs and homestudies listed below, CBA-CLE offers multiple great books for family law practitioners, and there are many other great programs and homestudies as well. Find out more here – cle.cobar.org/Practice-Area/Family. And now, for our Top Ten Family Law Programs and Homestudies.

10. Confluence of Family Law and Bankruptcy
It is not unusual for family law clients to also be going through bankruptcy. This program explores the intersection of family law and bankruptcy law. It explains bankruptcy law and the interplay with family law. Order the Video OnDemand here and the MP3 here. Available for 2 general credits.

9. The Difficult Client: Annual Advanced Family Law Institute 2014
The directive for the majority of the speakers on this program was to address the problems faced by a lawyer who is (by choice or by chance) representing a difficult client without falling back on the discussions of how to avoid such clients in the future or withdraw from their cases. Professionals who believe they have succeeded in eliminating difficult clients from their practice will also want to attend this program. For every lawyer representing a difficult client there is a lawyer on the other side of the case whose representation is also more challenging as a result and there are experts and judicial officers who are also impacted. Order the Video OnDemand here, the CD homestudy here, and the MP3 here. Available for 8 general credits, including 1.1 ethics credit.

8. Civility, Cultural Competence, and Controversy: Family Law Fall Update 2015
Cultural competence refers to an ability to interact effectively with people of different cultures and socio-economic backgrounds. Get the LGBT and other perspectives and learn about effectively representing families from different cultures and nationalities. Have you ever handled a military divorce? Get an overview of how to handle a military divorce, as well as an update on recent changes in the law. Order the Video OnDemand here, the CD homestudy here, and the MP3 here. Available for 8 general credits, including 1 ethics credit.

7. Unbundled Representation in Family Law Cases
When an attorney provides unbundled legal services, he or she is providing the client only certain components of the full bundle of services during the course of the representation. In most traditional attorney-client relationships, the attorney and client contract for the full bundle of legal services. Unbundled legal services afford the attorney and client the flexibility of addressing the client’s legal needs and financial limitations by contracting for something less than the full bundle of legal services. Unbundled legal services provide another avenue for citizens to gain access to justice to resolve their disputes. Order the Video OnDemand here, the CD homestudy here, and the MP3 here. Available for 4 general credits, including 1 ethics credit.

6. Counselor’s Focus on the Child, Client, and the Court: Family Law Spring Update 2016
Your Program Co-Chairs, Steve Epstein and Bill King, have done it again: they have put together a Family Law Spring Update that you simply cannot miss! Whether you attend for the Case Law or Legislative Update, or whether you register to hear about fee collection or to get the many ethics credits offered, here is your chance to stay up to date on all the latest developments in Colorado family law matters. There will also be topics on special needs children, neurobiology, accounting and tax issues for the non-accountant, and an opportunity to ask Judges your most pressing questions. Order the Video OnDemand here, the CD homestudy here, and the MP3 here. Available for 8 general credits, including 2.6 ethics credits.

5. Continuing Issues in Family Law
Start your day with The Ethics Game Show! Test your knowledge of our Rules of Professional Conduct. Then get a refresher on the interplay of issues between criminal and family law Cases, including the 5th Amendment, among others. Next, we have all learned never to ask a question in trial to which we don’t know the answer. With all respect to Professor Younger, you’ll hear a different approach: how to ask cross examination questions you don’t know the answers to. Over lunch, learn the critical differences between a Title 14 paternity action, and a Title 19 allocation of parental responsibilities action. Order the Video OnDemand here, the CD homestudy here, and the MP3 here. Available for 7 general credits, including 1.6 ethics credits.

4. Evidence: Getting Beyond He Said/She Said
Evidence in family law and protection order cases is often reduced to “He said/She said.”  This seminar explores evidence, such as digital evidence, child hearsay, and evidence of power and control. But evidence is not helpful, if your client is unable to assist in the case because of trauma. A practicing lawyer explains how to deal with the client who is traumatized and how to keep that client engaged in their case. Order the Video OnDemand here, the CD homestudy here, and the MP3 here. Available for 3 general credits.

3. Annual Advanced Family Law Conference 2016
Each year, CBA-CLE presents an Advanced Family Law Conference. The 2016 conference contained interesting discussions regarding guardians ad litem and the intersection of Title 15 with family law cases, whether consideration of the best interest standard constitutes representation of children, defining competency from a psychologist’s point of view, the family law practitioner’s guide to social security benefits, and a tax law update for family law practitioners. Order the Video OnDemand here, the CD homestudy here, and the MP3 here. Available for 7 general credits, including 1 ethics credit.

2. Family Law Basic Skills 2016
Why should you attend Family Law Basic Skills? Because nowhere else will you get the comprehensive toolkit you need to take on family law cases. In two days, some of the most experienced and knowledgeable family law practitioners and experts in Colorado will gather to bring you every step you need to handle a family law case from start to finish. Don’t miss your chance to build a foundation upon which you will build your successful family law practice! Order the Video OnDemand here, the CD homestudy here, and the MP3 here. Available for 17 general credits, including 2 ethics credits.

1. Annual Family Law Institute
Each year, CBA-CLE spends a weekend in the mountains with Colorado’s family law practitioners at the annual Family Law Institute. This live-only program provides comprehensive discussions of family law practice. The 2016 Institute offered such topics as Vicarious Trauma and Being Trauma-Resistant, Intake and Triage Assessment, CFI vs. PRE: What’s the Difference and What Do I Need – When Do I Need It?, the Indian Child Welfare Act, Income Issues on Support and Maintenance, and more. Save the date! The 2017 Annual Family Law Institute will take place August 18-20, 2016, at the Vail Marriott Resort & Spa. Find out more information at FamilyLawInstitute.org.

Colorado Gives: Rocky Mountain Children’s Law Center Transforms the Lives of Abused and Neglected Children Through Compassion

Colorado Gives: CBA CLE Legal Connection will be focusing on several Colorado legal charities in the next few days to prepare for Colorado Gives Day, December 6, 2016. These charities, and many, many others, greatly appreciate your donations of time and money.

childrens-law-center-logo-gFor over thirty years, the Rocky Mountain Children’s Law Center has provided compassionate legal advocacy and clinical services to children who have been abused or neglected. Through a team of legal professionals and social workers, the Children’s Law Center serves at-risk children and considers the whole child with each recommendation regarding the child’s best interest.

The Children’s Law Center also works for public policy change, working to make children a political priority at the local, state, and national levels. The Children’s Law Center has made great progress in this area. They created the first Colorado Child Protection Ombudsman Program, promoted a 2013 Senate Bill to reduce the number of child abuse fatalities in the state, promoted a 2013 House Bill to streamline the process to report child abuse, and much more.

The Children’s Law Center has several programs devoted to legal advocacy for children. The Education Program promotes the adoption of policies and procedures in the schools and legislature to recognize the impact of trauma on children’s learning behaviors, reduce school transfers for children in the child protection system, and redirect children in the school disciplinary system from the school-to-prison pipeline. The Children’s Law Center also has a caregiver advocacy program, a domestic violence program, a trauma-informed yoga program, and a therapeutic garden.

The Children’s Law Center relies on donations to continue providing compassionate legal advocacy to abused, neglected, and at-risk children. Their annual operating expenses total over one million dollars per year. Donate on Colorado Gives Day by clicking here or any day by filling out the form on this webpage.

Colorado Gives: Disability Law Colorado Recognizes the Inherent Value of All People and Embraces Empowerment

Colorado Gives: CBA CLE Legal Connection will be focusing on several Colorado legal charities in the next few days to prepare for Colorado Gives Day, December 6, 2016. These charities, and many, many others, greatly appreciate your donations of time and money.

dlc-630x160Disability Law Colorado (formerly known as The Legal Center for People with Disabilities and Older People) was created in 1976 out of the dream of a small group of parents who came together to secure equal rights for their children with developmental disabilities who were living in state institutions. These parents wanted a better life for their children and believed that all people with disabilities deserved the right to live full and rewarding lives. Disability Law Colorado’s early successes included requiring school districts to pay for children’s education in public schools, allowing children with severe disabilities to attend school for the first time. Disability Law Colorado also succeeded in preventing sterilization of people with developmental disabilities and preventing workplace discrimination against people with disabilities.

In 1977, the governor designated Disability Law Colorado to be Colorado’s Protection and Advocacy (P&A) System for people with developmental disabilities. Today, Disability Law Colorado is recognized as a leader in the National Disability Rights Network made up of Protection and Advocacy programs from all the states and territories.

For Colorado Gives Day, Disability Law Colorado has a $15,000 fundraising goal. By donating through Colorado Gives, your gift will go further thanks to a $1 million dollar incentive fund. Click here to donate.

Colorado Gives: Metro Volunteer Lawyers Provides Representation to Low-income Coloradans

Colorado Gives: CBA CLE Legal Connection will be focusing on several Colorado legal charities in the next few days to prepare for Colorado Gives Day, December 6, 2016. These charities, and many, many others, greatly appreciate your donations of time and money.

MVL-50-Year-Logo (png) SmallerMetro Volunteer Lawyers (MVL) is a program of the Denver Bar Association and is co-sponsored by the Adams/Broomfield, Arapahoe, Douglas/Elbert, and First Judicial District Bar Associations. MVL is committed to bridging the gap of access to justice by providing pro bono legal services to people who could not otherwise afford legal assistance.

MVL offers pro bono opportunities to attorneys, especially in the areas of estate planning, guardianships and conservatorships, family law, and consumer law. By volunteering with MVL, attorneys can receive valuable experience while assisting Colorado’s most vulnerable populations with their legal needs. Under C.R.C.P. 260.8, Colorado attorneys providing uncompensated pro bono legal representation may apply for 1 general CLE credit for every 5 billable-equivalent hours of representation, up to a maximum of 9 credits in each 3 year compliance period.

Give your expertise, as well as supporting MVL with a cash donation. Click here to donate and/or submit an online application to volunteer.

When Your Client’s Kid Needs Help — Advising Clients Whose Children are in Trouble

On Thursday, November 17, 2016, the Colorado Court of Appeals issued its opinion in People in Interest in R.C. When R.C. was 14 years old, he took a picture of his friend, L.P., during class one day. R.C. used Snapchat to draw a picture of a penis ejaculating near L.P.’s face. R.C. showed the picture to L.P. and three other friends, giggling. One other friend laughed, but L.P. felt bad. The class ended and the boys went to lunch. In the cafeteria, R.C. showed the altered pic to a few more people. L.P.’s friends could tell he was upset and asked R.C. to apologize, which he tried to do, but L.P. pushed him away. After lunch, L.P. and his friends reported the incident to the school’s principal.

R.C. was charged with disorderly conduct, and, after a trial, the court found that R.C. had committed disorderly conduct and sentenced him to three months’ probation, therapy, and eight hours of work crew.

R.C. appealed, arguing the prosecution failed to prove every element of disorderly conduct and that his drawing was protected speech under the First Amendment, because only “fighting words” were banned and the altered photo did not qualify as “fighting words.” The Colorado Court of Appeals noted that “fighting words” are words that by their very utterance tend to provoke retaliatory conduct in others. The court remarked that the Colorado statute does not prohibit utterances or displays that inflict injury, but only those that tend to incite an immediate breach of the peace.

The court found that the cartoon-like drawing on the photo was not enough to constitute “fighting words.” The court noted that the district court had apparently found the picture to be “fighting words” because it implied that L.P. was gay, and disagreed with this reasoning. The court found no evidence that R.C. intended to imply L.P. was gay, and even if he did, the court remarked, “We disagree with the district court, and the dissent, that the suggestion of homosexuality or homosexual conduct is so shameful and humiliating that it should be expected to provoke a violent reaction from an ordinary person.” The court determined that the average person, even the average 14-year-old, would not be expected to fly into a violent rage by seeing a picture of himself with a penis drawn on it.

The court of appeals agreed with R.C. that his photo did not amount to fighting words, and therefore found that the government failed to prove an element of the offense. The court of appeals reversed the conviction.


It is no surprise that adolescents make bad decisions. Many 14-year-old boys have joked about their friends inappropriately. R.C. did just that. But for R.C., the bad decision had severe consequences. His immature and inappropriate decision to draw a picture of a penis ejaculating near his friend’s face caused him far more than a phone call home from the principal. He faced years of legal troubles. He was charged with a criminal offense, went to trial, and was convicted. Although his conviction was reversed on appeal, he spent many years fighting it.

R.C. could have been any kid who made an immature decision. R.C.’s parents could have been any of us. But what happens when R.C.’s parents happen to be your clients for a business transaction, or estate planning, or even for a domestic dispute? The parents, your clients, are naturally going to call you for advice.

All too often attorneys are contacted by a current client that has a kid accused of wrongdoing. Federal and state laws have increased the number of suspensions, expulsions, probation, and criminal allegations against high school and college students. Educate yourself about how the laws work in Colorado.

On December 12, Lara E. Baker of Foster Graham Milstein & Calisher, LLP will present a one-hour seminar, “When Your Client’s Kid Needs Help,” to discuss the pitfalls young students face in Colorado with attorneys who have routinely handled these kinds of matters. Learn how to guide these children to avoid mistakes that can have lifelong consequences.

  • Avoiding pitfalls in the juvenile justice system, focusing on the perils of social media
  • Drugs and alcohol
  • Sex and the laws of consent
  • School disciplinary consequences
  • Law enforcement interaction with juveniles

This is a program no parent can afford to miss. And if you represent parents of teenagers, you should attend, too. Register by calling (303) 860-0608 or clicking the links below.

 

CLELogo

CLE Program: When Your Client’s Kid Needs Help

This CLE presentation will occur on December 12, 2016, at the CBA-CLE offices (1900 Grant Street, Third Floor), from 8:30 a.m. to 9:30 a.m. Register for the live program here or register for the webcast here. You may also call (303) 860-0608 to register.

Can’t make the live program? Order the homestudy here: MP3Video OnDemand.

Colorado Courts Celebrate National Adoption Day Throughout November

Each November, National Adoption Day is celebrated to recognize and raise awareness of the over 100,000 children in foster care awaiting permanent families. Since its inception, National Adoption Day has made the dreams of thousands of children come true through the cooperative work of courts, judges, attorneys, adoption professionals, child welfare agencies and advocates to finalize adoptions and find permanent, loving homes for children in foster care. In Colorado, the adoptions of 132 children will be finalized this month. Currently, 283 Colorado children await permanent families.

In 2006, for the first time, National Adoption Day was celebrated in all 50 states, the District of Columbia and Puerto Rico. This year, events will be held throughout the country to finalize the adoptions of more than 4,500 children in foster care, and to celebrate all families who adopt. Since 2000, more than 50,000 children have had their adoptions finalized on National Adoption Day.

Throughout the state, courts will be celebrating Adoption Day this month. Some of the events are listed here:

  • First Judicial District (Jefferson and Gilpin counties): On Thursday, November 17, 2016, from 1 to 5 pm at the Jefferson County Courthouse, Magistrates Andrew Fitzgerald and Margaret Tims will preside over adoptions for 15 families. On Saturday, November 19, 2016, from 8:30 am to noon, Judges Margie Enquist, Gail Meinster and Tamara Russell, and Magistrate Jamin Alabiso will preside over 24 adoptions for 18 families. Cameras are welcome; contact Mallory Hyatt at (303) 271-4389 for more information.
  • Second Judicial District (Denver County): On Thursday, November 10, 2016, the Denver County Court held its National Adoption Day celebration. Forty-six children were united with 31 families. Contact Barbara Bosley, Family Court Facilitator, Denver Juvenile Court, (720) 337-0584 or (303) 638-5098 for more information.
  • Third Judicial District (Huerfano and Las Animas counties): On Tuesday, November 29, 2016, at 2 pm, Judge Leslie J. Gerbracht will preside over the adoptions of three children into two families. All families who have adopted children in the Third Judicial District are invited to attend, and cameras are welcome with the families’ permission. Contact Joanne A. Montero at (719) 497-8208 for more information.
  • Tenth Judicial District (Pueblo County): On Friday, November 18, 2016, District Court Judge David W. Crockenberg will preside over six adoptions. Expanded media coverage has been granted; contact Amanda Ledbetter at (719) 583-4716 for more information.
  • Twelfth Judicial District (Alamosa, Conejos, Castillo, Mineral, Rio Grande, and Saguache counties): On Tuesday, November 1, 2016, the Twelfth Judicial District held a reception to honor the 27 children who were adopted into 18 families last year. Members of the public, the courts, Departments of Human Services, county attorneys, and county commissioners were in attendance. Chief Judge Pattie Swift addressed the group and discussed the important role of adoptive families in the justice system and thanked DHS staff and attorneys for the work that they do.
  • Seventeenth Judicial District (Adams and Broomfield counties): On Saturday, November 19, 2016, from 9 am to noon, nine children will be united with eight families. District Court Judges John Popovich and Jill-Ellyn Straus, as well as Magistrate Fran Simonet, will preside over the adoptions. Cameras will be allowed in the courtroom with the permission of the families. For more information, contact Simone Jones, Court Programs Coordinator, at (303) 654-3230.
  • Eighteenth Judicial District (Arapahoe, Douglas, Elbert, and Lincoln counties): On Friday, November 18, 2016, Adoption Day hearings will be held at both the Arapahoe County Courthouse and the Douglas County Courthouse. Judge Theresa Slade will preside over the adoptions of 13 children in Arapahoe County from 8:30 am to 4 pm. Magistrate Rebecca Moss will preside over eight adoptions in Douglas County from 2 to 4 pm. Cameras will be permitted in both courts with written permission of the families. For more information, contact Shaun Clark, Deputy District Administrator, at (303) 649-6382.
  • Twentieth Judicial District (Boulder County): On Friday, November 18, 2016, from 10:30 am to noon, Boulder County will host a celebration for all children adopted in Boulder County this past year. County Court Judge Elizabeth Brodsky and District Court Magistrate Monica Haenselman will be in attendance to celebrate with the families. There will be a reception, a short presentation, and crafts and games for the children. The celebration is open to the public; contact Erika Skufca at erika.skufca@judicial.state.co.us or (303) 441-4921 or Raina Lesser at raina.lesser@judicial.state.co.us or (303) 441-3744 for more information.
  • Twenty-first Judicial District (Mesa County): On Friday, November 18, 2016, from 9 am to 1 pm, District Court Judge Valerie Robison will preside over eight adoptions. An additional celebration will be held in the jury assembly room at 3 p.m. for all adopted on November 18 and in the past. Cameras will be allowed in the courtroom with permission of the families. For more information, contact Angeline Roles, Mesa County Department of Human Services, at (970) 248-2453 or angeline.roles@mesacounty.us.

For more information about Adoption Day events, click here.

Colorado Court of Appeals: C.R.C.P. 106 Action Inappropriate for Challenge to Temporary Protection Order

The Colorado Court of Appeals issued its opinion in Martin v. Arapahoe County Court on Thursday, October 20, 2016.

C.R.C.P. 106(a)(4)—Temporary Civil Protection Order—Subject Matter Jurisdiction.

The county court entered a temporary civil protection order pursuant to C.R.S. § 13-14-104.5 against Martin based on L.O.’s complaint. Martin filed a motion to vacate the temporary order and dismiss L.O.’s complaint. The motion was denied, but the hearing on the permanent order was continued to allow briefing from the Attorney General’s office on the constitutionality of the statutes. Before the rescheduled hearing, Martin filed this action in district court, naming as defendants the Arapahoe County Court and magistrates of that court and seeking review of the temporary protection order under C.R.C.P. 106(a)(4).

The county court defendants moved to dismiss the C.R.C.P. 106 action for lack of subject matter jurisdiction, arguing that (1) the temporary order was not a final decision reviewable under C.R.C.P. 106 and (2) Martin had other adequate remedies because he could challenge the temporary order at the permanent order hearing and appeal the permanent order if one was issued. The motion to dismiss was granted.

On appeal, Martin argued it was error for the trial court to find it lacked subject matter jurisdiction. The Colorado Court of Appeals disagreed, ruling on this as an issue of first impression. The court found that a temporary protection order issued under C.R.S. § 13-14-104.5 is not the county court’s final decision on a plaintiff’s request for a civil protection order and is therefore not subject to review in a C.R.C.P. 106 action. It also found that the permanent order hearing and ordinary appellate review procedures provide adequate alternative remedies for challenging a temporary restraining order.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

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.

CJD 05-01, “Directive Concerning Access to Court Records,” Amended by Colorado Supreme Court

On Tuesday, October 18, 2016, the Colorado Supreme Court adopted changes to Chief Justice Directive 05-01, “Directive Concerning Access to Court Records.” The changes to this Chief Justice Directive were proposed by the Public Access Committee, and they replace previous public access policies. The changes include clarification of wording that was causing confusion, a mandate that court records involving a child victim be redacted before being released to the public, inclusion of applications for public defenders, court-appointed counsel, or guardians ad litem as not accessible to the public, and changes to Appendix C for consistency purposes. The full Chief Justice Directive is available here.

Colorado Court of Appeals: Children’s Code Does Not Restrict DA’s Prosecution for Mandatory Reporter Violations

The Colorado Court of Appeals issued its opinion in Berges v. County Court of Douglas County on Thursday, October 6, 2016.

The Children’s Code—Authority of District Attorneys to Prosecute Mandatory Reporters.

Plaintiffs are medical doctors, clinical social workers, and healthcare professionals charged with violating C.R.S. § 19-3-304, under which they are “mandatory reporters” required to report suspected child abuse or neglect. Plaintiffs moved to dismiss the charges, arguing that the district attorney lacked authority to prosecute under C.R.S. § 19-3-206. The county court denied the motions. Plaintiffs filed a complaint under C.R.C.P. 106(a)(4) seeking review of the county court’s orders. The district court denied all relief and upheld the county court’s determination.

On appeal, plaintiffs contended that C.R.S. § 19-3-206 of the Children’s Code vests county attorneys with exclusive authority to prosecute mandatory reporters for criminal violations of C.R.S. § 19-3-304 because such prosecutions are “proceedings” brought under article 3 of the Children’s Code. The Colorado Court of Appeals concluded that C.R.S. § 19-3-206 does not preclude district attorneys from prosecuting mandatory reporters because C.R.S. § 19-3-304 does not set forth a proceeding under article 3, but simply defines an offense. Criminal prosecutions of that offense do not constitute article 3 proceedings.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.