March 6, 2015

Adoption, Domestic Relations Forms Amended in February

In February 2015, the Colorado State Judicial Branch released three amended forms. These forms are the first forms amended in 2015 to date. Forms are available for download here in PDF format and are also available as Word documents on the State Judicial website.

ADOPTION

  • JDF 494 – “Instructions for Access to Adoption Records” (revised 2/15)
  • JDF 532 – “Request for Access to Adoption Records” (revised 2/15)

DOMESTIC RELATIONS

  • JDF 1700 – “Instructions to File for Grandparent or Great-Grandparent Visitation” (revised 2/15)

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

e-Legislative Report: February 17, 2015

legislationCBA Legislative Policy Committee

For followers who are new to CBA legislative activity, the Legislative Policy Committee (“LPC”) is the CBA’s legislative policy making arm during the legislative session. The LPC meets weekly during the legislative session to determine CBA positions from requests from the various sections and committees of the Bar Association.

Meeting held Friday, February 13

SB 15-129 — Preserving Parent-child Relationships
Sponsor: Senator Kevin Lundberg (R)
The LPC voted to oppose this bill in part because of the fundamental way that it changed the presumption of parenting time away from the “best interest of the child” to a different standard more focused on the parents in divorce proceedings. The bill was heard in committee on Wednesday the 11th and was passed on a party line vote after substantial amendments. SB-129 was referred to the Appropriations Committee for consideration of the bill’s fiscal impact.

SB 15-174 — Uniform Substitute Decision Making Documents Act
Sponsor: Senator Patrick Steadman (D)
The LPC voted to oppose this bill. The committee felt that the bill conflicts with existing statute, was unnecessary in many respects and that it potentially created more gaps and questions with existing law than its adoption would solve.

HB 15-1091 — Policies On Juvenile Shackling In Court
Sponsors: Representative Susan Lontine (D), Senator Michael G. Merrifield (D)
The LPC was concerned that while this bill was very well intentioned, it raised significant potential problems with separation of power between the legislative and judicial branches.

At the Capitol: Week of February 9

SB 15-049 — Real Estate Title Vests In Entity Once Formed
Sponsors: Senator Beth Martinez Humenik (R), Representative Jon Keyser (R)
This bill, supported by the Bar, passed through the Senate this past week. It has been assigned to the House Business Affairs and Labor Committee and has not yet been calendared for a hearing.

HB 15-1121 — Wind Energy Generation
Sponsors: Representative Jon Becker (R), Senator Jerry Sonnenberg (R)
The bill, supported by the Bar, also passed through its first chamber (the House) last week. It will next be heard in the Senate, where it has been assigned to the Agriculture, Natural Resources & Energy Committee. It will be heard by that committee on February 19.

SB 15-077 — Parents’ Bill of Rights
Sponsors: Senator Tim Neville (R), Representative Patrick Neville (R)
The bill passed out of the Senate committee hearing on a party line vote, and was debated on the floor. The bill was passed with amendments, and now moves to the House for consideration. It has not been calendared for consideration.

SB 15-042 — Mandatory Reports Of Animal Abuse
Sponsors: Senator Jerry Sonnenberg (R), Representative Jon Becker (R)
This bill was Postponed Indefinitely (killed) in committee. It will not be considered again this year. The CBA was opposed to the legislation.

HB 15-1101 — Public Defender ADC Records Open Records
Sponsors: Representatives Rhonda Fields (D), Polly Lawrence (R)
This bill was Postponed Indefinitely (killed) in committee. It will not be considered again this year. The CBA was opposed to the legislation.

HB 15-1174 — Information Protections Domestic Violence Victims
Sponsors: Representative Terri Carver (R), Senator Laura Woods (R)
The CBA has not taken a position on this bill—though we are working with the sponsors to ensure that the program will work as intended and not harm the real estate transaction process as a result of its adoption or implementation. It is likely that the CBA and its sections will participate in stakeholder groups and work sessions this summer.

New Bills of Interest

Senate

SB 15-177 — HOA Construction Defect Lawsuit Approval Timelines
Sponsors: Brian DelGrosso (R), Mark Scheffel (R), Jonathan Singer (D), Jessie M. Ulibarri (D)
The bill states that when the governing documents of a common interest community require mediation or arbitration of a construction defect claim and the requirement is later amended or removed, mediation or arbitration is still required for a construction defect claim. These provisions are in section 2 of the bill.

Section 2 also specifies that the mediation or arbitration must take place in the judicial district in which the community is located and that the arbitrator must:

  • Be a neutral third party;
  • Make certain disclosures before being selected; and
  • Be selected as specified in the common interest community’s governing documents or, if not so specified, in accordance with the uniform arbitration act.

Section 1 adds definitions of key terms. Section 3 requires that before a construction defect claim is filed on behalf of the association:

  • The parties must submit the matter to mediation before a neutral third party; and The board must give advance notice to all unit owners, together with a disclosure of the projected costs, duration, and financial impact of the construction defect claim, and must obtain the written consent of the owners of units to which at least a majority of the votes in the association are allocated.

Section 4 adds to the disclosures required prior to the purchase and sale of property in a common interest community a notice that the community’s governing documents may require binding arbitration of certain disputes.

House

HB 15-1025 — Competency To Proceed Juvenile Justice System
Sponsors: Representative Paul Rosenthal (D), Senator Linda M. Newell (D)
The bill establishes a juvenile-specific definition of “incompetent to proceed” for juveniles involved in the juvenile justice system, as well as specific definitions for “developmental disability”, “intellectual disability”, “mental capacity”, and “mental disability” when used in this context. The bill clarifies the procedures for establishing incompetency, as well as for establishing the restoration of competency.

HB 15-1216 — Basis For Expert Opinion Testimony
Sponsors: Representative Kevin Priola (R), Senator John Cooke (R)
The bill prohibits a person from testifying concerning the person’s expert opinion unless certain conditions are met.

e-Legislative Report: February 10, 2015

legislationCBA Legislative Policy Committee

For followers who are new to CBA legislative activity, the Legislative Policy Committee (“LPC”) is the CBA’s legislative policy making arm during the legislative session. The LPC meets weekly during the legislative session to determine CBA positions from requests from the various sections and committees of the Bar Association.

Meeting held Friday, February 6
The following bills were discussed for action during last Friday’s LPC meeting.  Other bills of interest from that agenda are tracked and updated below.

SB 15-042 – Mandatory Reports Of Animal Abuse
(Senator Sonnenberg & Representative J. Becker)
The intent of the sponsors was to criminalize the recording of undercover videos showing animal cruelty in farming practices.  The Bar sections could not support the bill, or a subsequent “strike below”* amendment, because the language was overly broad, potentially unconstitutional and would lead to unintended consequences.  The LPC voted to oppose this bill at the recommendation of the Animal Law and Agricultural Law Sections.

HB 15-1101 – Public Defender ADC Records Open Records
(Representatives Field and Lawrence)
The LPC voted to oppose this bill as well.  The committee was concerned about the impact of Rule 1.6 and the financial impact of the bill to the State.  There was also concern that this bill would open the door for CORA requests of the Judicial Branch – and the potential impact that would have.  The LPC voted unanimously to oppose this bill.

HB 15-1037 – Freedom of Conscience Higher Ed
(Representative Priola & Senator Neville)
This bill was considered at the request of the Civil Rights Committee who presented that the bill was intended to “protect religious freedom and the right of association.”  After some discussion, the LPC voted to take no position on this bill.

At the Capitol: Week of February 2

HB 15-1135 – Terminally Ill Individuals End-of-life Decisions
(Representatives Court and Ginal & Senator Guzman)
HB 1135 was the big bill last week at the capitol.  Testimony began a little after 9:30am and concluded shortly before 10pm!  The emotional level of testimony was compelling.  There were approximately 120 people that signed up to testify for the bill ranging from all types of organizations and all walks of life. Many made passionate testimony on both sides of the bill which was a true indicator that our group made the correct policy decision to fix the issues and then maintain our neutrality. It is an issue that people either feel at a core level to support or they don’t.  The Committee voted to send the bill to the next committee Appropriations.  That motion failed 8-5.  There was a motion to Postpone the bill indefinitely, (passing 9-4) killing the bill for the remainder of the session.

Many Bar sections weighed in on the bill, its technical merits, and the drafting problems of the bill.  While individual sections had vigorous debates on the policy of “death with dignity” or physician assisted suicide, the LPC took no position on the bill itself.

SB 15-077 – Parents’ Bill of Rights
(Senator Neville & Representative Neville)
This Senate Bill sponsored by the father-son legislative team from Jefferson County was heard and passed out of the Senate committee last week.  The bill is set for its key second reading on Wednesday. Senate Bill 77, the so-called “Parents’ Bill of Rights” sponsored by Sen. Tim Neville and Rep. Patrick Neville, would give parents certain rights over the health care, education and mental health care of minor children.  The Bar Association voted to oppose this legislation at its LPC meeting on January 30.

SB 15-049 – Real Estate Title Vests In Entity Once Formed
(Senator Martinez Humenik & Representative Keyser)
This bill – supported by the bar – continues through the legislature on a straightforward course. It has now passed the Senate and will be heard in the Hose Business Affairs and Labor Committee, where Rep. Keyser will be the key sponsor.

HB 15-1121 – Wind Energy Generation
(Representative J. Becker & Senator Sonnenberg)
This Bar supported bill is also progressing through the legislative process.  Representative Becker has successfully completed the House process, and the bill passes to Senator Sonnenberg for the final leg of its legislative journey.

New Bills of Interest

Senate

SB 15-129 – Preserving Parent-child Relationships
(Senator Lundberg)
The bill amends provisions relating to best interests of a child in domestic relations actions and certain other actions in the juvenile code. With respect to such actions, the bill:

Amends the legislative declaration to emphasize the fundamental liberty interest of both parents and children in maintaining the parent-child relationship;

With respect to temporary orders hearings, if there has been a temporary or permanent protection order entered against one or both parties either prior to or in conjunction with the domestic relations action, requires the court to grant an expedited hearing at the request of either party for purposes of modifying provisions in the protection order relating to parenting time, communication, and access to a child. The court shall order substantially equal parenting time and access to the child unless it finds that such orders are clearly not in the child’s best interest. The court shall also enter any orders necessary for the safety of the protected party relating to the restrained party’s parenting time with the child.

Changes the nature of an investigation by a court-appointed child and family investigator (CFI) from evaluation and recommendations to investigation and fact-finding. CFIs will conduct an objective investigation of issues as specifically directed by the court and will provide written factual findings to the court that are supported by credible evidence. A CFI’s report will not make recommendations regarding the allocation of parental responsibilities but will provide the court with the factual findings the court deems necessary to make such determinations.

Amends language in the legislative declaration regarding the allocation of parental rights and responsibilities relating to the best interests of the child. Also, the bill requires the court to allocate substantially equal parenting time unless the court finds that doing so would endanger a child’s physical health or significantly impair the child’s emotional development. In addition, the court shall award mutual decision-making responsibilities with respect to the child unless the court finds that such an order is clearly not in the child’s best interest.

For purposes of temporary orders in a domestic relations action, requires the court to award substantially equal parenting time to the parties unless the court finds that doing so would endanger a child’s physical health or significantly impair the child’s emotional development. In addition, the court shall order mutual decision-making responsibilities unless mutual decision-making is clearly not in the child’s best interest.

Changes the nature of an evaluation by a court-appointed parental responsibilities evaluator to an investigation by a mental health professional. The mental health investigation is limited to mental health diagnoses, assessments of relevant addictions, or other mental health-related issues that are relevant to the court’s allocation of parental responsibilities for the child. The investigator’s report shall contain findings of fact but shall not contain conclusions or recommendations relating to the allocation of parental rights and responsibilities.

Clarifies that the 2-year restriction on filing motions that request a substantial change in parenting time and that also change the party with whom the child resides the majority of the time do not apply to moderate changes to parenting time when the existing parenting time order awarded substantially equal parenting time to the parties; and

Amends the provisions relating to modification of decision-making responsibility for a child from requiring the court to retain the prior decision-maker unless certain criteria are met to permitting the court to change the decision-maker after considering certain criteria, including whether an award of mutual decision-making responsibilities is now in the child’s best interest.

SB 15-174 – Uniform Substitute Decision Making Documents Act
(Senator Steadman)
Colorado Commission on Uniform State Laws. The bill adopts, with amendments, the “Uniform Substitute Decision-making Documents Act” as Colorado law. The bill establishes the circumstances under which a substitute decision-making document (document) executed outside this state is valid in this state. A person may assume in good faith that a document is genuine, valid, and still in effect and that the decision-maker’s authority is genuine, valid, and still in effect. A person who is asked to accept a document shall do so within a reasonable amount of time. The person may not require an additional or different form of document for authority granted in the document presented. A person who refuses to accept a substitute document is subject to:  A court order mandating acceptance of the document; and Liability for reasonable attorney’s fees and costs incurred in an action or proceeding that mandates acceptance of the document. A person is not required to accept a substitute document under certain described conditions.

House

HB 15-1043 – Felony Offense For Repeat DUI Offenders
(Senators Cooke and Johnson & Representatives McCann and Saine)
Under current law, a DUI, DUI per se, or DWAI is a misdemeanor offense. The bill makes such an offense a class 4 felony if the violation occurred: (1) After 3 or more prior convictions for DUI, DUI per se, or DWAI; vehicular homicide; vehicular assault; or any combination thereof; or (2) not more than 7 years after the first of 2 prior convictions for DUI, DUI per se, or DWAI; vehicular homicide; vehicular assault; or any combination thereof, if the violation included at least one of the following circumstances: One or more persons less than 18 years of age were present in the person’s vehicle at the time of the violation;  In committing the violation, the person caused damage or injury to any property or persons;  After committing the violation, the person fled the scene; or At the time of the violation, or within 2 hours after the violation, the person’s BAC was 0.15 or higher. Under current law, aggravated driving with a revoked license is a class 6 felony. The bill changes the penalty to a class 1 misdemeanor but requires a sentencing court to ensure that an offender spends a minimum of 60 days in the custody of a county jail. Under current law, a person whose privilege to drive was revoked for multiple convictions for any combination of a DUI, DUI per se, or DWAI must hold an interlock-restricted license for at least one year following reinstatement prior to being eligible to obtain any other driver’s license. The bill expands this period to a minimum of 2 years and a maximum of 5 years. The bill repeals provisions relating to the crime of aggravated driving with a revoked license when the offender also commits DUI, DUI per se, or DWAI as part of the same criminal episode. The bill makes conforming amendments.

HB 15-1161 – Public Accommodation First Amendment Rights
(Representative Klingenschmitt)
The bill specifies that neither the civil rights division, the civil rights commission, nor a court with jurisdiction to hear civil actions brought under the public accommodations laws may compel involuntary speech or acts of involuntary artistic expression or involuntary religious expression by a person when such speech or acts of artistic or religious expression would lead to that person directly or indirectly participating in, directly or indirectly supporting, or endorsing or impliedly endorsing an ideology, ceremony, creed, behavior, or practice with which the person does not agree.

HB 15-1189 – Uniform Fiduciary Access to Digital Assets Act
(Representative Keyser & Senator Steadman)
Colorado Commission on Uniform State Laws. The bill enacts the “Uniform Fiduciary Access to Digital Assets Act”, as amended, as Colorado law. The bill sets forth the conditions under which certain fiduciaries may access: The content of an electronic communication of a principal or decedent; A catalog of electronic communications sent or received by a decedent or principal; and  Any other digital asset in which a principal has a right or interest or in which a decedent had a right or interest at death. As to tangible personal property capable of receiving, storing, processing, or sending a digital asset, a fiduciary with authority over the property of a decedent, protected person, principal, or settlor may access the property and any digital asset stored in it and is an authorized user for purposes of computer fraud and unauthorized computer access laws.

“Fiduciary” means a personal representative, a conservator, an agent, or a trustee. A custodian and its officers, employees, and agents are immune from liability for an act or omission done in good-faith compliance with the provisions of the bill.

HB 15-1203 – Concerning earned time for certain offenders serving life sentences as habitual offenders
(Representative Rosenthal & Senator Steadman)
Under current law, an offender who was sentenced to a habitual offender 40-calendar-year life sentence before July 1, 1993, is not accruing earned time. The bill permits those sentenced under those circumstances to accrue earned time.

HB 15-1212 – Authority To Sell State Trust Lands To Local Gov
(Representative KC Becker & Senator Kerr)
In 2010, a law was enacted that allowed the state board of land commissioners (board) to convey land to units of local government if the conveyance would add value to adjoining or nearby state trust property, benefit board operations, or comply with local land use regulations. When enacted, the authority was set to repeal on July 1, 2015. The bill repeals that automatic repeal and makes the board’s authority permanent.

 

*a “Strike Below” amendment essentially replaces the entire bill below the title with an entirely different bill.  In practice this changes almost everything about the bill – but addresses the same topic, allowing for the sponsor to retain his/her bill and to continue working on the topic.  It is generally used when interested parties and stakeholders need a complete rewrite of the bill as originally introduced in ordrr to try and reach consensus.

 

Tenth Circuit: District Court Must Find Compelling Reason for Restricting Fundamental Liberty Interest

The Tenth Circuit Court of Appeals issued its opinion in United States v. Burns on Tuesday, December 30, 2014.

James Burns was convicted of possession and attempted possession of child pornography, and was sentenced to 63 months in prison followed by 5 years of supervised release. As a condition of his release, the probation department was required to approve of any contact Burns had with minors, including his youngest daughter, S.B. Burns appealed. He did not object to the imposition of the restrictions at trial, so the Tenth Circuit reviewed for plain error.

The Tenth Circuit found that the district court restricted Mr. Burns’ contact with a family member without making constitutionally required findings. When a court imposes a restriction that invades a fundamental right or liberty interest, it must find compelling circumstances to do so. The district court made no findings of compelling circumstances for restricting Mr. Burns’ fundamental interest in parenting his child. The Tenth Circuit found a reasonable probability that the court would not have restricted Mr. Burns’ contact with S.B., since there was no evidence that Mr. Burns abused or sexually molested children and he had a good relationship with his other four children. The error seriously affected the fairness of the proceedings because there was a substantial likelihood the district court would have softened the restrictions.

The Tenth Circuit reversed and remanded for reconsideration of the supervised release condition.

SB 15-016: Clarifying Changes to Civil Unions When Same-Sex Marriage Becomes Legal

On January 7, 2015, Sen. Pat Steadman introduced SB 15-016 — Concerning Marriages by Individuals who are Parties to a Civil Union, and, in Connection Therewith, Prohibiting Marriages in Circumstances in which One of the Parties is Already in a Civil Union with Another Individual, Addressing the Legal Effect of Parties to a Civil Union Marrying Each Other, Clarifying the Dissolution Process when Parties to a Civil Union Marry, and Amending the Bigamy Statute to Include Parties to a Civil Union. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill addresses issues that have arisen in Colorado regarding marriages by individuals who are in a civil union or who will enter into a civil union after recent court decisions have declared same-sex marriage bans, such as section 31 of article II of the state constitution, unconstitutional. The bill amends the statute on prohibited marriages to disallow a marriage entered into prior to the dissolution of an earlier civil union of one of the parties, except a currently valid civil union between the same 2 parties. The executive director of the department of public health and environment is directed to revise the marriage license application to include questions regarding prior civil unions. The bill states that the “Colorado Civil Union Act” (act) does not affect a marriage legally entered into in another jurisdiction between 2 individuals who are the same sex. The construction statute for the act is amended to clarify that it must not be construed to create a marriage, including a common law marriage, between the parties to a civil union. Two parties who have entered into a civil union may subsequently enter into a legally recognized marriage with each other by obtaining a marriage license from a county clerk and recorder in this state and by having the marriage solemnized and registered as a marriage with a county clerk and recorder. The bill states that the effect of marrying in that circumstance is to merge the civil union into a marriage by operation of law. A separate dissolution of a civil union is not required when a civil union is merged into a marriage by operation of law. If one or both of the parties to the marriage subsequently desire to dissolve the marriage, legally separate, or have the marriage declared invalid, one or both of the parties must file proceedings in accordance with the procedures specified in the “Uniform Dissolution of Marriage Act”. Any dissolution, legal separation, or declaration of invalidity of the marriage must be in accordance with the “Uniform Dissolution of Marriage Act”. If a civil union is merged into marriage by operation of law, any calculation of the duration of the marriage includes the time period during which the parties were in a civil union. The criminal statute on bigamy is amended, effective July 1, 2015, to include a person who, while married, marries, enters into a civil union, or cohabits in this state with another person and to include a person who, while still legally in a civil union, marries, enters into a civil union, or cohabits in this state with another person.

The bill was assigned to the Senate State, Veterans, & Military Affairs Committee, where it was postponed indefinitely on January 21, 2015.

Colorado Court of Appeals: Jury Instructions Erroneously Failed to Consider Parent’s Actions; Error Not Harmless

The Colorado Court of Appeals issued its opinion in People in Interest of J.G. on Wednesday, December 31, 2014.

Dependency and Neglect—Proof as to Each Parent.

In January 2014, the Fremont County Department of Human Services (FCDHS) learned that 5-year-old S.L. had told her parents that her half-brother, 11-year-old Jo.G., had touched her inappropriately while she was trying to sleep. Mother and Father immediately reported the incident to police. Investigation found that Jo.G. had also inappropriately touched his 8-year-old sister. Jo.G was criminally charged and moved to an offense-specific foster home.

FCDHS then filed a petition in dependency and neglect, alleging that all five of the children living in the home were dependent and neglected because the environment in which Jo.G. was able to sexually act out against his sisters was injurious to all of the children. Mother admitted that Jo.G was dependent and neglected, but denied the allegation as to the other four children, and requested a jury trial on the issue of their adjudication.

The jury found that although none of the children lacked proper parental care and none were homeless, each child’s environment was injurious to his or her welfare. Accordingly, the court adjudicated all as dependent and neglected.

On appeal, the Court of Appeals found that the court erred by providing jury instructions and a special verdict form that allowed the jury to determine the status of each child without considering each parent’s actions, availability, ability, andwillingness to provide reasonable parental care. The Court further concluded that the trial court’s errors were prejudicial to mother, and therefore constituted grounds for reversal. As instructed, the jury was permitted to find that a child’s dependent status in relation to any respondent parent was sufficient to find that the child was dependent and neglected as to all respondent parents. If properly instructed to separately examine the children’s status in relation to each parent, the jury might have concluded that the children’s environment was notinjurious to their welfare, because mother was available, willing, and able to provide reasonable parental care. Had the jury made such a determination, the children could not have been adjudicated as dependent and neglected.

Accordingly, the order was reversed and the case was remanded for a new adjudicatory trial. If FCDHS does not pursue adjudication, the order and decree of adjudication must be vacated and the petition dismissed.

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

JDF Forms Amended in Several Categories in November and December

The Colorado State Judicial Branch revised several forms and instructions in November and December 2014. Many categories were affected, including toll ticket appeals, juvenile delinquency, domestic relations, probate, forcible entry and detainer, and sealing cases. Amended forms are available here in PDF format, and are available for download as Word documents on State Judicial’s forms page.

APPEALS

  • JDF 234 – “Notice of Appeal and Designation of Record – E-470 Case” (revised 11/14)
  • JDF 235 – “Notice of Record Certified to County Court – E-470 Case” (revised 11/14)

CRIMINAL

  • JDF 219 – “Juvenile Delinquency Application for Public Defender” (revised 11/14)

DOMESTIC

  • JDF 1101 – “Petition for: Dissolution of Marriage/Legal Separation” (revised 12/14)
  • JDF 1201 – “Affidavit for Decree Without Appearance of the Parties (Marriage)” (revised 12/14)
  • JDF 1601 – “Petition for Declaration of Invalidity of Marriage” (revised 12/14)

EVICTIONS

  • JDF 100 – “Instructions for Forcible Entry and Detainer (FED)/Eviction” (revised 11/14)
  • JDF 140 – “Instructions for Mobile Home FED” (revised 11/14)

MISCELLANEOUS

  • JDF 450 – “Order re: Appointment of Counsel at State Expense Other Than the Public Defender in a Criminal or Juvenile Delinquency Proceeding” (revised 11/14)

PROBATE

  • JDF 730 – “Decree of Final Discharge” (revised 12/14)
  • JDF 810 – “Court Visitor’s Report” (revised 12/14)
  • JDF 824 – “Petition for Appointment of Guardian for Minor” (revised 12/14)
  • JDF 834 – “Guardian’s Report – Minor” (revised 12/14)
  • JDF 841 – “Petition for Appointment of Guardian for Adult” (revised 12/14)
  • JDF 850 – “Guardian’s Report – Adult” (revised 12/14)
  • JDF 861 – “Petition for Appointment of Conservator for Minor” (revised 12/14)
  • JDF 876 – “Petition for Appointment of Conservator for Adult” (revised 12/14)
  • JDF 878 – “Order Appointing Conservator for Adult” (revised 12/14)
  • JDF 885 – “Conservator’s Report” (revised 12/14)

SEAL MY CASE

  • JDF 301 – “Instructions to File an Expungement Juvenile “JV” Case, Criminal “CR” Case, or Municipal Case” (revised 12/14)

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

Colorado Court of Appeals: Default Judgment Improper Sanction for Nonappearance at Trial Where Attorney Present

The Colorado Court of Appeals issued its opinion in People in Interest of K.J.B. on Thursday, December 4, 2014.

Dependency and Neglect—Right to a Jury Trial—Appearance by Counsel but not Defendant.

The Park County Department of Human Services (department) took the subject child into protective custody, placed the child with her father, and filed a petition in dependency and neglect. Mother denied the allegations in the petition and requested a trial to the court. Shortly thereafter, mother filed two written demands for a jury trial. The court denied mother’s requests.

Until that point in the proceedings, mother had participated by telephone; however, she was ordered to personally appear for the adjudicatory trial. She failed to appear, but her counsel appeared on her behalf. The department requested that a default judgment be entered against mother for failing to personally appear. Without hearing evidence, the court sustained the department’s allegations under multiple provisions of CRS §19-3-102(1) and adjudicated the child dependent and neglected by default judgment. It also adopted a treatment plan for mother. Mother appealed the adjudicatory order.

Nonappearance at trial does not constitute a failure “to plead or otherwise defend,” and is not a reason on which entry of a default can be predicated. The court could have received evidence in mother’s absence and then rendered judgment. Because the trial court did not state the legal authority it relied on to enter default judgment against mother for failing to appear, the Court of Appeals inferred that the judgment was entered as a sanction against mother. Although the court has contempt powers under CRCP 107, the rule does not authorize default judgment as a sanction for contempt. The Court therefore held that the trial court exceeded its authority in entering the default judgment. The order was reversed and the case was remanded for a trial.

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

Various JDF Forms Amended in October and November

The Colorado State Judicial Branch continued amending JDF forms in October and November 2014, with updated forms released in the criminal, domestic relations, FED, probate, and miscellaneous categories. Forms are available for download here in PDF format, and are available in Word or PDF from the State Judicial forms page.

CRIMINAL

  • JDF 219 – “Juvenile Delinquency – Application for a Public Defender” (issued 11/14)

DOMESTIC RELATIONS

  • JDF 211 – “Request to Reduce Payment for ODR Services and Supporting Affidavit” (revised 10/14)

FORCIBLE ENTRY & DETAINER (FED)

  • JDF 100 – “Instructions for Forcible Entry and Detainer (FED)/Eviction” (revised 11/14)
  • JDF 140 – “Instructions for Forcible Entry and Detainer (FED)/Eviction for Owner Occupied Mobile Home” (revised 11/14)

MISCELLANEOUS

  • JDF 450 - “Order re: Appointment of Counsel at State Expense Other Than the Public Defender in a Criminal or Juvenile Delinquency Proceeding” (revised 11/14)

PROBATE

  • JDF 906 – “Instructions for Probate With a Will” (revised 10/14)
  • JDF 907 – “Instructions for Probate Without a Will” (revised 10/14)

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

Colorado Rules of Civil Procedure and Colorado Rules of Juvenile Procedure Amended

The Colorado Supreme Court announced Rule Change 2014(14), effective October 30, 2014, and 2014(15), effective November 1, 2014. Rule Change 2014(14) amends Rule 47, “Jurors,” of the Colorado Rules of Civil Procedure. Rule Change 2014(15) amends Rule 2.2, “Summons — Content and Service,” Rule 3, “Advisement,” and Rule 3.7, “Detention,” of the Colorado Rules of Juvenile Procedure, and it adds a new Rule 3.9, “Counsel.” The changes to the Rules of Juvenile Procedure coordinate with changes to the Colorado Revised Statutes pursuant to HB 14-1032.

C.R.C.P. 47(u), “Juror Questions,” was amended to clarify that juror questions will be reviewed with counsel for the parties outside the hearing of the jury, to permit jurors to ask follow up questions in writing, and to prohibit jurors from orally questioning any witness. The amendments specify that the court retains discretion to address juror questions or permit follow up questions. Click here for a redline of the changes to Rule 47.

The changes to the Rules of Juvenile Procedure are extensive. Rule 2.2 was amended to subdivide different types of juvenile proceedings and specify summons procedures for each type of proceeding. The changes to Rule 3 were relatively minor, adding language to clarify timing for the juvenile’s advisement and changing some wording. The changes to Rule 3.7 were much more extensive, detailing procedures for juvenile detention and court oversight of the detainer. New Rule 3.9, “Counsel,” deals with appointed counsel in juvenile delinquency proceedings, and includes provisions for appointment of counsel, waiver of counsel, and withdrawal of counsel. Click here for a redline of the changes to the Rules of Juvenile Procedure.

In addition to the rules changes, two Chief Justice Directives were amended to comply with HB 14-1032. The Colorado Supreme Court amended CJD 04-04 and added new CJD 14-01CJD 04-04 was amended to eliminate specified procedures related to the appointment of counsel in juvenile delinquency proceedings. CJD 14-01 was added to adopt new procedures for the appointment of defense counsel in juvenile delinquency proceedings. Both CJDs are effective November 1, 2014.

Colorado Court of Appeals: Separate Property Remained Separate Despite Use to Pay Marital Debts

The Colorado Court of Appeals issued its opinion in In re Marriage of Corak on Thursday, October 23, 2014.

Marital Property—Marital Debt Allocations.

Husband and wife entered into a prenuptial agreement identifying separate property that each had acquired before the marriage. This separate property included a parcel of husband’s property (Shoshone property). The agreement stated that all separate property would remain as such.

Shortly after marrying, husband and wife jointly bought a piece of property (Pinyon property). Husband pledged the Shoshone property as collateral for a home equity line of credit for the down payment on the Pinyon property and the funds to remodel it. Husband and wife agreed to apply $16,000 from the credit line to retire one of wife’s premarital credit card debts. Husband and wife agreed that wife would make payments toward the line of credit.

Wife testified at the permanent orders hearing that she had made all of the payments on the credit line during the marriage, even beyond the amount she had used to retire her separate debt. She also testified that she had paid down some of her other premarital debts. Husband testified he paid down his separate debt during his marriage and admitted he had not disclosed the debt in the prenuptial agreement.

The district court ruled that husband’s act of pledging the Shoshone property as collateral for the line of credit turned a portion of it into marital property. The Court of Appeals found this to be an issue of first impression in Colorado. In looking to other jurisdictions, the Court found cases concluding that using separate property to secure a loan does not change the pledged property into marital property. The case was remanded for the trial court to determine the division of marital property and marital debt after setting aside all of the Shoshone property as husband’s separate property.

The Court agreed with husband that he had initially asked the trial court to restore the marital funds wife had spent to retire her separate premarital debt to the marital estate and credit them to her. However, after review of the record, the Court concluded that husband had intentionally abandoned this argument. Because the Court found husband had abandoned his claim to have these funds allocated differently, the Court will not disturb the trial court’s findings on appeal.

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

Colorado Court of Appeals: Laches Does Not Apply to Actions to Recover Past-Due Child Support

The Colorado Court of Appeals issued its opinion in In re Marriage of Johnson on Thursday, October 23, 2014.

Child Support Arrearages.

Father’s marriage to mother ended in 1983. He was ordered to pay $400 in monthly child support for their two children. In September 2012, mother requested that judgment enter for $893,285 in child support arrearages and interest. Father objected, asserting that under the applicable twenty-year statute of limitations, mother could collect arrearages accruing only after September 1992. He requested a hearing to make that determination. The magistrate entered judgment for mother for the full amount requested, without addressing father’s contention or his hearing request.

Father petitioned for district court review of the order. The court ruled that the twenty-year statute of limitations applied, vacated the magistrate’s order, and remanded the matter for an evidentiary hearing. After the hearing, the magistrate rejected father’s argument that child support had terminated when their last child turned 19 in July 1995 and that lachesbarred mother’s right to collect interest. The magistrate entered judgment for $23,260 for arrearages between September 1992 and July 1997, when the parties’ last child turned 21, plus interest, resulting in a judgment of $155,000. The district court adopted the order.

On appeal, father argued that child support automatically terminated on July 17, 1995 and that the finding of $23,260 in arrearages lacked record support. At the time of the dissolution, child support was owed until a child emancipated, which presumptively was at age 21. In 1991, the applicable statute was amended to provide that emancipation occurs and child support terminates when a child turns 19. The amendment applied to all child support obligations established before July 1, 1991. Therefore, father’s child support obligation terminated on July 17, 1995, when the last child turned 19.

Father also argued that it was error to hold that laches did not apply as to the right to collect interest. Under CRS § 14-14-106, interest is specified on arrearages in child support and it is not discretionary. The Court of Appeals has previously held that laches does not apply “to actions for the recovery of past due child support.” At the hearing, father had acknowledged that he owed $4,800 in arrearages for the period between July 1994 and July 1995. On remand, the court was ordered to calculate interest under CRS § 14-14-106 on the $4,800 and enter judgment for mother accordingly.

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