June 17, 2019

Colorado Court of Appeals: District Court Erred in Giving More Weight to Tax Returns Than Other Indicia of Common Law Marriage

The Colorado Court of Appeals issued its opinion in In re Estate of Yudkin on Thursday, February 21, 2019.

Probate—Family Law—Common Law Marriage.

Yudkin, the decedent, died intestate. Yudkin’s ex-wife Shtutman sought informal appointment as the personal representative of his estate. Appellant Dareuskaya objected to Shtutman’s appointment, claiming that she was Yudkin’s common law wife and thus had priority as the personal representative. After an evidentiary hearing, the magistrate, sitting in probate, found that even though Yudkin and Dareuskaya agreed to be married, cohabitated for eight years, and had a reputation in their community as a married couple, no common law marriage existed because they did not file joint tax returns and other indicia of a common law marriage were absent.

On appeal, Dareuskaya argued that the magistrate erred in concluding a common law marriage did not exist despite finding that the couple cohabitated and had a reputation in the community as married. Under People v. Lucero, 747 P.2d 660 (Colo. 1987), if there is an agreement to be married and the parties cohabitate and have a reputation in the community as husband and wife, a common law marriage has been established. Further, any actions taken (or not taken) by the parties after those essential factors are established are legally irrelevant. Here, the magistrate specifically found that Yudkin and Dareuskaya agreed to be husband and wife and that cohabitation and reputation in the community were established. The magistrate’s determination that no common law marriage was proven was an abuse of discretion.

The magistrate’s order rejecting Dareuskaya’s claim of a common law marriage was reversed and the case was remanded.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Maintenance Payor’s Good Faith Decision to Retire Does Not Automatically Require Grant of Motion to Modify

The Colorado Court of Appeals issued its opinion in In re Marriage of Thorstad on Thursday, January 24, 2019.

Post-Dissolution Action—C.R.S. § 14-10-122(2)—Modification of Maintenance upon Retirement—Rebuttable Presumption—C.R.S. § 14-10-114.

The parties were divorced in 2002. They had a separation agreement that required husband to pay wife maintenance and reserved jurisdiction for the court to modify maintenance. Husband retired from his job, in part due to health problems. He requested termination of his maintenance obligation based on C.R.S. § 14-10-122(2)(a), (b), and (c), which establish a rebuttable presumption that a decision to retire was made in good faith when certain conditions are met. These subsections did not exist in their present form when the parties entered into their separation agreement. The magistrate granted the request. Wife sought review in the district court, which denied her petition.

On appeal, wife argued that the trial court erred when it relied on C.R.S. § 14-10-122 instead of C.R.S. § 14-10-114 when granting husband’s motion. C.R.S. § 14-10-122 was the correct statute for the trial court to use. However, if a payor satisfies the retirement provisions in subsections -122(2)(b) and (c) that the decision to retire was made in good faith, the payor’s good faith retirement becomes one of the factors for the court to consider in analyzing whether under subsection -122(1)(a) the payor can show a substantial and continuing change of circumstances that makes the existing maintenance order unfair. In doing so, the court must also consider the factors listed in the 2001 version of C.R.S. § 14-10-114(3) and (4) (the new version of C.R.S. § 14-10-114 is applicable to petitions filed on or after January 1, 2014). Here, the trial court erred because it treated husband’s good faith decision to retire as conclusive in resolving his motion; the order failed to address whether husband’s retirement and declining health were continuing and changed circumstances that rendered his obligation unfair; and the trial court did not consider husband’s and wife’s needs and abilities as required by the 2001 version of C.R.S. § 14-10-114(3) and (4). Further, the separation agreement did not reserve jurisdiction over the question of what effect husband’s retirement would have on his maintenance obligation. Thus, the separation agreement did not require the trial court to use C.R.S. § 14-10-114 to resolve husband’s motion instead of C.R.S. § 14-10-122(1)(a), (2)(a), (2)(b), and (2)(c).

The order was reversed and the case was remanded for the court to (1) determine whether husband’s circumstances have changed in such a substantial and continuing way as to make the existing terms of the maintenance obligation unfair, and (2) consider wife’s request for appellate attorney fees under C.R.S. § 14-10-119.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Former Spouse Not Foreclosed on Standing Grounds from Seeking Reformation of Will

The Colorado Court of Appeals issued its opinion in In re Estate of Little on Thursday, November 29, 2018.

Family LawCommon Law MarriageProbateWillsReformation to Correct Mistakes.

Little’s will devised her estate to her spouse Curry, from whom she later divorced. After her death, Curry claimed that he was entitled to inherit under Little’s will because they had remarried at common law before she died. Alternatively, he sought reformation of the will, contending that Little intended to devise her estate to him regardless of their marital status. The trial court found that Curry failed to show he and Little remarried at common law, and Curry otherwise lacked standing to seek reformation of her will.

On appeal, Curry contended that the provisions in Little’s will devising her estate to him were revived by their common law remarriage under C.R.S. § 15-11-804(5). There was substantial evidence in the record to support the trial court’s findings that Curry and Little were not common law married after their divorce.

Alternatively, Curry contended that the trial court erroneously found he lacked standing to seek reformation of Little’s will under C.R.S. § 15-11-806 because when Little executed her will, she intended for him to inherit her estate regardless of their marital status. The court of appeals reviewed the statutory scheme and found no indication that the General Assembly intended to exclude a former spouse from pursuing reformation under C.R.S. § 15-11-806, or that it intended C.R.S. § 15-11-804(5) to be an ex-spouse’s sole and exclusive remedy for avoiding a statutory revocation due to a divorce. Accordingly, Curry had standing to pursue his reformation claim.

The order determining that Little and Curry were not common law remarried was affirmed. The dismissal of Curry’s reformation claim was reversed and the case was remanded.

Summary provided courtesy of Colorado Lawyer.

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 4, 2018. These charities, and many, many others, greatly appreciate your donations of time and money.

Metro 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. Checks may be made out to Denver Bar Foundation. For more information or to donate, contact Tammy Ely via email or by calling (303) 824-5376. You can also submit an online application to volunteer.

Colorado Gives: Legal Aid Foundation Promotes Justice for All

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 4, 2018. These charities, and many, many others, greatly appreciate your donations of time and money.

Civil Legal Aid helps low-income Coloradans solve serious legal problems that threaten their most basic needs. You can make a difference for some of the least fortunate and most vulnerable members of our community by making a Colorado Gives Day donation to the Legal Aid Foundation here.

Contributions to the Legal Aid Foundation support Colorado Legal Services (CLS), which is the only agency in the state that provides free legal services to over 10,000 Coloradans every year, giving priority to the poor, elderly and disabled in the greatest economic and social need. Unfortunately, for every person served by CLS, at least one income-eligible person is turned away because of inadequate resources.

As lawyers, we know first-hand the value and necessity of quality legal representation when faced with a potentially life-changing legal problem.  This is especially true of low-income families, whose basic survival may depend on being able to stay in their home, protect themselves from abuse or exploitation, or secure food and necessary health care.

Making a Colorado Gives Day donation is a quick and easy, and all donations receive a proportional “boost” from a $1 Million Incentive Fund.  Please join lawyers from around the state today to move Colorado closer to fulfilling the American promise of justice for all.

To learn more about the Legal Aid Foundation, please visit www.legalaidfoundation.org.

Colorado Gives: Rocky Mountain Children’s Law Center Compassionately Transforms the Lives of Children who Experience Abuse, Neglect or Trauma

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 4, 2018. These charities, and many, many others, greatly appreciate your donations of time and money.

For more than thirty-six years, the Rocky Mountain Children’s Law Center has improved the lives of more than 25,000 abused, neglected, and at-risk children and youth through compassionate legal advocacy, clinical services, education, and public policy reform.  Using a team of lawyers and social workers, the Children’s Law Center advocates for children in the courtroom, in the community, and at the Capitol.

The Children’s Law Center works to improve the child welfare and foster systems through policy advocacy, 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. Most recently, they launched Colorado’s first Baby Court in Pueblo – a specialty court providing wraparound services for children ages 0-3 and families involved in Dependency and Neglect cases. They also 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.

Here’s how their programs improve kids’ lives:

  • They help children with special education needs thrive in their appropriate school settings.
  • They help children heal and thrive with caregivers when parents are unable to care for their basic needs and wellbeing.
  • Their attorneys and social workers represent children who have experienced domestic violence.
  • They help young adults, most of whom have experienced foster care, obtain basic documentation such as social security cards and birth certificates.
  • Current and former foster youth in their Project Foster Power program advocate to improve the child welfare and foster care systems through policy advocacy.
  • Their Trauma-informed Bloom Yoga program helps kids process and heal from their trauma.

The Children’s Law Center relies heavily on donations to continue providing compassionate legal advocacy to children who have experienced abuse, neglect or trauma. Their annual operating expenses total over one million dollars per year. Please make a gift to the Children’s Law Center on Colorado Gives Day by clicking here or any day by filling out the form on this webpage.

Colorado Court of Appeals: District Court Had Jurisdiction Under UCCJEA to Enforce Parenting Time Orders Issued by Georgia Court

The Colorado Court of Appeals issued its opinion in In re Parental Responsibilities of W.F.-L. on Thursday, November 15, 2018.

Parenting TimeUniform Child Custody Jurisdiction and Enforcement ActMootness—C.R.S. § 14-13-205.

Father and mother have a child together but were never married. A Georgia court entered a final order in 2011 and a modified parenting plan in 2012 concerning the child. In 2014, mother and the child relocated to Colorado. In 2016, father petitioned to register the 2012 parenting plan in Colorado under C.R.S. § 14-13-305. Mother responded that both the parenting plan and the 2011 final order needed to be registered in Colorado and co-petitioned to register both orders.

Father then filed a verified motion under C.R.S. § 14-10-129.5 alleging that mother was not permitting him to exercise his parenting time or to contact the child. Mother opposed and moved to modify parenting time. At the final orders hearing, the district court entered an order registering the Georgia orders in Colorado and adopting the parties’ stipulations for future parenting time. It found that it lacked jurisdiction to grant father the enforcement remedies he sought and denied his C.R.S. § 14-10-129.5 motion.

The court of appeals first rejected mother’s argument that father’s appeal of the denial of his enforcement motion was moot because the district court adopted the parties’ stipulations to modify the Georgia parenting time order. Father’s requests were not mooted by the modification order, as they remain undecided and could have been ordered in addition to modification.

Father argued that the district court erred in finding that it lacked subject matter jurisdiction and therefore denying his C.R.S. § 14-10-129.5 motion. The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) governs a Colorado court’s enforcement of parental responsibilities orders entered in other states. Under C.R.S. § 14-13-305(1), a parental responsibilities determination issued by a court of another state may be registered in Colorado and a Colorado court may then “grant any relief normally available under” Colorado law to enforce the registered parental responsibilities determination. On registering the Georgia orders, father was entitled to seek the same remedies as if those orders had been entered in Colorado, including C.R.S. § 14-10-129.5’s backward-looking remedies, and the district court was empowered to grant any enforcement relief normally available under Colorado law as to those orders. Accordingly, the district court erred in denying father’s motion.

The order was reversed and the case was remanded for the district court to address father’s C.R.S. § 14-10-129.5 motion.

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.

Colorado Supreme Court: Balancing Test Appropriate when Deciding Competing Interests of Potential Parents in IVF Divorce Case

The Colorado Supreme Court issued its opinion in In re Marriage of Rooks on Monday, October 29, 2018.

Divorce—Assisted Reproduction—Embryos.

In this dissolution of marriage proceeding, the supreme court reviewed how courts should resolve disagreements over the disposition of a couple’s cryogenically preserved pre-embryos when that couple divorces. The court held that because the underlying interests at stake are the equivalently important, yet competing, right to procreate and right to avoid procreation, courts should strive, where possible, to honor both parties’ interests in procreational autonomy. Thus, courts should look first to any existing agreement expressing the spouses’ intent regarding disposition of the couple’s remaining pre-embryos in the event of divorce. In the absence of such an agreement, courts should seek to balance the parties’ respective interests in receipt of the pre-embryos. In balancing those interests, courts should consider the intended use of the party seeking to preserve the pre-embryos; a party’s demonstrated ability, or inability, to become a genetic parent through means other than use of the disputed pre-embryos; the parties’ reasons for undertaking in vitro fertilization in the first place; the emotional, financial, or logistical hardship for the person seeking to avoid becoming a genetic parent; any demonstrated bad faith or attempt to use the pre-embryos as unfair leverage in the divorce process; and other considerations relevant to the parties’ specific situation. However, courts should not consider whether the party seeking to become a genetic parent using the pre-embryos can afford a child. Nor shall the sheer number of a party’s existing children, standing alone, be a reason to preclude preservation or use of the pre-embryos. Finally, courts should not consider whether the party seeking to become a genetic parent using the pre-embryos could instead adopt a child or otherwise parent non-biological children. The court reversed the judgment of the court of appeals and remanded the case with directions to return the matter to the trial court to apply the announced balancing framework.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: C.R.C.P. 12(b)(5) and “Plausibility” Standard Do Not Apply to C.R.C.P. 16.2 Motions

The Colorado Court of Appeals issued its opinion in In re Marriage of Durie on Thursday, September 20, 2018.

Division of Marital Property—C.R.C.P. 16.2(e)(10)Post-Dissolution Proceeding—C.R.C.P. 12(b)(5).

Three years after a decree was entered incorporating a separation agreement dividing the parties’ marital property, wife moved under C.R.C.P. 16.2(e)(10) to reallocate proceeds from husband’s post-decree sale of business assets. She alleged that husband had failed to disclose facts that materially impacted the value of the parties’ business assets. In response, husband filed a motion to dismiss wife’s motion. The district court applied the plausibility standard in Warne and Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 554–56 (2007), and granted husband’s motion to dismiss. Wife moved for attorney fees, but the district court did not rule on her request.

On appeal, wife contended that the district court erred in dismissing her motion. After briefing, but before argument, a division of the court of appeals decided In re Marriage of Runge, 415 P.3d 884 (Colo.App. 2018), concluding that Rule 12(b)(5) and the Warne plausibility standard do not apply to a Rule 16.2(e)(10) motion. The court agreed with Runge and concluded that the district court erred in dismissing wife’s motion under that standard.

The court also rejected husband’s argument that C.R.C.P. 9(b), which requires that pleadings asserting fraud or mistake must allege the circumstances with particularity, applied in this context. Rule 16(e)(10) does not refer to fraud, but to misstatements or omissions. While some claims not denominated as fraud may be subject to the Rule 9(b) pleading requirements, the Rule 9(b) particularity requirement does not apply to Rule 16.2(e)(10) motions.

The parties also disagreed as to whether a movant under Rule 16.2(e)(10) can make allegations based on information and belief. The court concluded that Rule 8(e)(1) allows allegations based on information and belief in the context of a Rule 16.2(e)(10) motion, and wife properly included allegations based on information and belief in her motion.

However, wife’s allegations here did not enable the district court to conclude that her motion was sufficient on its face. The court instructed that (1) given Rule 16.2(e)(10)’s lack of applicable standard for determining a motion under the rule, a preponderance of the evidence standard should apply and the moving party bears the burden of proof; and (2) wife is entitled to undertake discovery in support of her motion.

The court further concluded that wife is entitled to seek attorney fees under C.R.S. § 14-10-119 on remand, but is not entitled to attorney fees under C.R.S. § 13-17-102. The district court may also award wife appellate attorney fees in its discretion under C.R.S. § 14-10-119.

The order was reversed and the case was remanded.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Where Parent Indicates Desire to Relocate with Minor Children, Magistrate Has No Authority to Order Shared Parenting Time in Colorado

The Colorado Court of Appeals issued its opinion in In re Marriage of Morgan on Thursday, August 8, 2018.

Dissolution of Marriage—Relocation—Parenting Time.

In this dissolution of marriage proceeding, mother notified the magistrate well before the permanent orders hearing that she wished to move with the children to California. She sought orders that would name her the children’s primary residential parent and decision-maker. Dr. Albert was appointed as an expert to conduct a parental responsibilities evaluation (PRE). He recommended that the children be allowed to relocate to California with mother and that she should have sole decision-making responsibility. At father’s request, the magistrate appointed Lieberman to perform a supplemental PRE. Lieberman recommended that the children remain in Colorado with father with shared decision-making responsibilities with mother. After a two-day evidentiary hearing, the magistrate ordered the children to remain in Colorado, finding that their best interests would be served if the parents exercised equal parenting time with mutual decision-making responsibilities.

On appeal, mother contended that the magistrate erred by entering a parenting time order requiring her to remain in Colorado. When, as here, a parent indicates before permanent orders that she intends to move, a district court has no statutory authority to order her to live in a specific location. Mother’s admission that she would not “abandon” her children and move without them did not relieve the magistrate of his obligation to make the difficult decision to allocate parenting time with mother in California and father in Colorado.

Mother also contended that the magistrate erred in ordering mutual decision-making responsibilities over her objection and in the absence of credible evidence that the parents could work together. However, the magistrate reviewed the evidence and did not abuse his discretion in finding that the parties could make joint decisions and in ordering joint decision making.

The part of the judgment allocating parenting time was reversed and the case was remanded with directions. The judgment was otherwise affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Appeal of Parenting Time Order Mooted When Subject Child Turns 18

The Colorado Court of Appeals issued its opinion in In re Marriage of Tibbetts on Thursday, August 8, 2018.

Dissolution of Marriage—Post-Decree—Parenting Time—18 Years of Age.

In this post-dissolution of marriage action father moved to have the parenting plan terminated to allow the parties’ 16–year-old child to determine her own parenting time schedule.  A district court magistrate denied father’s request, and while the appeal was pending, the child turned 18 years of age. On father’s petition for review to the district court, the court adopted the order.

Father filed his opening brief the day before the child turned 18. Mother moved to dismiss the appeal, contending that because the child is now an adult, the parenting time issues father raises on appeal cannot be resolved. Once the parties’ child turned 18, she attained the right to make her own decisions, including whether to visit her parents, rendering the issues father raises on appeal moot.

The appeal was dismissed.

Summary provided courtesy of Colorado Lawyer.