December 13, 2018

Archives for November 9, 2018

Colorado Court of Appeals: Child Sexual Assault Victim Cannot Legally Consent to Use of Force During Assault

The Colorado Court of Appeals issued its opinion in People v. Hodge on Thursday, November 1, 2018.

Criminal Law—Sexual Assault—Child—Use of Force Aggravator—Consent.

The prosecution charged Hodge with three counts of sexual assault on a child and alleged that he used force against the victim to accomplish the sexual contact. The use of force aggravator made each charge a class 3 felony under C.R.S. § 18-3-405(1) and (2)(a). The district court dismissed the force aggravators based on its finding that because the 14-year-old victim had consented to the force used (restraints), the prosecution did not establish probable cause for the use of force at the preliminary hearing.

On appeal, the prosecution argued that the district court erred in dismissing the use of force aggravators. A child sexual assault victim cannot legally consent to the use of force during an unlawful sexual act. Therefore, the district court erred in finding that the victim’s agreement to the use of restraints did not constitute the use of force.

The order dismissing the use of force aggravator was reversed, and the case was remanded for reinstatement of the original charges as class 3 felony sexual assault on a child.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: When Voluntary Parenting Time Change Occurs, District Court May Order Retroactive Child Support

The Colorado Court of Appeals issued its opinion in In re Marriage of Garrett and Heine on Thursday, November 1, 2018.

Family LawPost-DissolutionModification of Child SupportRetroactive Child SupportParenting Time.

In this post-dissolution of marriage proceeding, both parents moved to modify parenting time. The district court entered a week on, week off parenting schedule and modified child support accordingly. In June 2015 the parents mutually agreed to modify this schedule so father would be the primary residential parent and mother would have parenting time every other weekend and one evening per week. Accordingly, father began paying mother a reduced amount of child support and then moved to modify child support in July 2016. The parties again agreed to change parenting time in February 2017, with mother the primary residential parent of one child and father the primary residential parent of the other child. The district court found that mother owed retroactive child support based on the substantial changes in parenting time beginning in June 2015, and it offset that amount against father’s current child support obligation.

On appeal, mother contended that the district court erred when it imputed income to her without finding she was voluntarily underemployed. If a parent is voluntarily underemployed, child support must be calculated based on the parent’s income. Here, the court did not explicitly find that mother was voluntarily underemployed and shirking her child support obligation and the record does not support such findings. Nor did the court make any findings concerning the reasonableness of mother’s efforts to secure a full-time position at her previous salary. Thus, the case was remanded to the district court for additional findings, reconsideration of mother’s income, and recalculation of child support accordingly.

Mother further contended that the district court erred in applying C.R.S. § 14-10-122(5) and ordering her to pay retroactive child support back to June 2015. When a voluntary change in parenting time occurs, a court may retroactively enter a child support order against either parent without regard to the parent’s status as obligor or obligee under the existing child support order. However, the record is not clear on whether the district court imposed the retroactive child support obligation as an act of discretion or imposed it under the mistaken view that it was required to do so. On remand, the district court must set forth the factors it considers in determining whether to impose such an obligation.

The order retroactively establishing a child support obligation for mother was affirmed. The portion of the order determining mother’s income was reversed and the case was remanded for further proceedings.

Summary provided courtesy of Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 11/8/2018

On Thursday, November 8, 2018, the Tenth Circuit Court of Appeals issued no published opinion and five unpublished opinions.

Lomax v. Raemisch

Jones v. Jones

Ombe v. State of New Mexico

United States v. Reyes-Espinoza

Adkins v. Koduri

Case summaries are not provided for unpublished opinions. However, some published opinions are summarized and provided by Legal Connection.