2006-07 Family Law Update

1. Presented by Ron Litvak and Tim Mehrtens Litvak Litvak Mehrtens and Epstein, P.C. 2006-07 Family Law Update

2. CHILD SUPPORT DETERMINATION/MODIFICATION

3. IRM Salby, (CA, Oct. 6, 2005) (cert. denied Oct. 2, 2006) • Finality of judgments. Must appeal financial part of Temporary Orders when issued. • Marital Agreement or Separation Agreement? Contemplation of Divorce. See, e.g., Marriage of Lafaye, 89 P.3d 455 (Colo.App. 2003). • Trial Court needed to make sufficient findings to know how conflicts in valuation were resolved. • Voluntarily underemployment. Initial inquiry based on the “shirking” standard. • When should income from a second job be included in support calculations? Intertwined jobs standard.

4. IRM Rose(CA, Mar. 9, 2006) • Husband appeals order requiring him to pay temporary maintenance and to advance attorney fees and costs. • Appellate court found that trial court had appropriately determined Wife met the threshold for an award of maintenance. • Appellate court approved procedure for advancing prospective fees and costs.

5. PARENTAL AUTHORITY AND ITS LIMITS

6. The New Open Window Courthouse Drive Thru Divorce Window

7. IRM McSoud(CA, Feb. 9, 2006) • Deficiencies in a record are not basis for new trial unless effort has been undertaken by counsel to reconstruct the record. • Court had authority to divest a parent of decision making authority. • Court violated Mom’s constitutional rights by restricting her from educating the child in her chosen religious beliefs.

8. Interest of DG, MG, AND SG (CA. May 18, 2006) • Court may not delegate determination of visitation to caseworkers, therapists, or others.

9. Third Party Visitation • See Adoption of C.A. • C.R.C. • K.L.OV

10. Adoption of CA (S.Ct. June 26, 2006) • Dad dies when child’s 2; mom dies when child’s five. • Paternal GPs conditionally object to aunt and uncle’s adoption, wanting visitation. • Magistrate grants visitation; district court agrees. In Appellate Court, holding is that, giving appropriate weight to Troxel v. Granville, court needs to find endangerment. • Case proceeds to the Colorado Supreme Court.

11. Adoption of CA (continued) • Majority holds that: • 1. Court must make presumption in favor of parents’ determination • 2. Burden is on GPs to establish, by clear and convincing evidence, that parents’ determination is not in best interests, and • 2. Burden is on GPs to establish, by clear and convincing evidence, that their schedule is in best interests.

12. Adoption of CA (continued) • Justice Coats writes dissent: • Agrees that the App Court went too far, but believe the Majority did, too. • Colorado’s GP statute is narrow, unlike Washington statute in Troxel: • 1. Only GPs • 2. Only when custody has been disrupted. • Magistrate gave special weight to desires of parents.

13. Interest of C.R.C. (CA. Oct. 19, 2006) • Great-Uncle seeks allocation of parental responsibilities • C.R.S. §14-10-123(1) provides standing to seek allocation of parental responsibilities to 4 groups • Standing of non-parent must be narrowly construed • Court should consider: How did the child come into care of the non-parent? • Non-parent has burden to prove that parent voluntarily permitted non-parent to care for child

14. Interest of K.L.OV, (CA. Nov. 16, 2006) • C.R.S. §19-1-117 allows grandparents to seek visitation in certain cases, including paternity. • Here, Grandmother does not meet C.R.C.P. 24 requirements, which permit intervention when: • A statute confers an unconditional right to intervene (C.R.C.P. 24(a)(1)) • Intervenor shows that her interest will be impaired or impeded by disposition of the action and her interest is not represented. (C.R.C.P. 24(a)(2)) • Intervenor’s claim and the main action have a question of law or fact in common. (C.R.C.P. 24(b)(2))

15. IRM Dauwe, (CA. Jun. 1, 2006) • Father appealed, seeking: • Equal parenting time • Joint decision making as to therapy • Terminating SA and appointing PC • Releasing SA’s file for review.

16. Dauwe, Continued • 1. Parenting time - resolved in discretion of trial court • 2. Therapy - record supported children’s need for a forum for their issues and trial court was simply resolving a long-standing dispute between the parents. • 3. Court refuses to address SA/PC issue on appellate principle of mootness • 4. SA file - At time, Chief Justice directive mandated file release, unless it would endanger and person’s welfare.

17. IRM Yates, (CA. Jun. 29, 2006) • This year’s omnibus case. Issues: • Parenting time and decision making in spouse abuse and child abuse context • Due Process Issues re time to present case • Imputed Income • Allowing Special Advocates to questions witnesses • Maintenance - “reasonable needs” • Standing to contest property division after bankruptcy • Standing to contest atty fees after bankruptcy • Permanent Injunction • Authority to Order Counseling

18. C.R.S. §14-10-129(1)(a)(II) permits the parent with the majority of the parenting time to seek modification in order to relocate. Courts interpretation of C.R.S. §14-10-129: Parent with the majority of parenting time should include parents who share parenting time equally. IRM DeZalia, (CA. Nov. 30, 2006).

19. Guardians, Special Advocates, Child Representatives, Child and Family Investigators, and so on and so forth

20. DIVISION OF PROPERTY

21. IRM Campbell, (CA. May 18, 2006) • Wife appeals POs as to • Value of Interest in Husband’s law firm • Husband’s Income and Claimed Underemployment • Bankruptcy discharge of extraordinary medical expenses and attorney fee award • Husband files Chapter 7 during divorce. • Ct of Appeals remands: • if dissipation exists, value asset as of last date it existed. • Concurrent jurisdiction; medical expense not discargeable. • Underemployment - no findings on issue, remanded to consider.

23. IRM Jorgensen, (CA. Aug. 10, 2006) • Parties owned business, Husband stopped paying lease, sold the business assets. Landlord sues on lease. Wife is guarantor. • Economic fault, as a factor in dividing assets, needs to be confined so as not to include marital fault. • Quantification case - how to value this contingent liability.

24. Wilson v. Prentiss, (CA. May 18, 2006) • In 1998 divorce, the parties indicated there were no assets. • Former wife files partition action to divide their real estate that hadn’t been disclosed by either party. • Trial Court refuses to do so. • Appellate court tells trial court to partition, so long as it doesn’t contravene the divorce decree.

25. Separation agreement granted wife a portion of husband’s military retirement, based on a “time rule” formula. Trial Court denied wife’s motion to enforce this provision of the separation agreement. Appellate Court held that The Uniformed Services Former Spouses’ Protection Act (“USFSPA”) does not limit the equitable authority of a state court to grant relief to the non-employee spouse when military retirement pay is converted to disability pay. IRM of Warkocz, (CA. Apr. 6, 2006)

26. IRM Warkocz (continued) • The USFSPA and Supreme Court decisions allow trial court to consider economic consequences of a military retiree’s decision to waive retirement pay in order to collect disability pay. • Trial Court not precluded from equitably enforcing the parties’ agreement.

27. Procedural and Evidentiary Matters

28. Taylor, (CA. Mar. 23, 2006) • Father’s rights terminated in favor of stepfather. • Father claims insufficient notice, because there was no summons. (Held to be a technical defect that was cured; no prejudice to him.) • Father claims he appeared at the courtroom door, but it was locked. (No Affidavit filed with his CRCP Rule 59 Motion.)

29. IRM Gutfreund and Hughes, (S.Ct. Nov. 20, 2006) • Husband placed funds to cover disparities in Wife’s property division plus 1 year worth of interest, and Wife’s attorney’s fees without interest, into the court registry. Wife did not have access to the funds. • Post judgment interest must be paid whenever a debtor party appeals a money judgment and the award is affirmed; interest must be paid from date of entry of judgment until judgment is satisfied. C.R.S. 5-12-106(1)(a).

30. IRM Cooprider, (CA. May 18, 2006) • Father appeals ruling that his filing of a Motion for Review was Untimely • Apparently, granting a motion to extend time to file a motion to under Rule 59 also acts to extend the time to file a motion for review.

31. Interest of F.A.G., (CA. Sept. 7, 2006) • Father registers Texas decree under § 14-11-101. • Files motion to modify parental responsibility and time • Registering and filing are within 2 years of entry of Texas decree. Wife urges bar of 14-10-129 (1.5) and 14-10-131 (1). • Court holds that the two-year bar only applies to a MOTION filed after entry of decree.

32. Matter of R.M.S., (S.Ct. Feb 13, 2006) • Trial Court granted guardianship to paternal grandparents (who had testamentary preference) rather than maternal aunt and uncle (who claimed best interests of child.) • Aunt and uncle seek to vacate order.

33. IRM J.M.H. and Rouse, (CA. Jun. 15, 2006) • Adams County issues a marriage license to Rouse and 15 year old girl. (J.M.H.’s mother, approved of the marriage.) • Department of Human Services files petition to declare the marriage invalid. • Trial court invalidates, holding person under 16 must obtain judicial approval for a valid ceremonial or common law marriage. • Appellate court reverses. Common law marriage makes references to the common law of England when it was adopted in Colorado. So, age of 14 for male; 12 for a female. • Subsequent statute has amended this English common law.

34. IRM Ikeler, (CA. Aug. 24, 2006) • Use of separate property vehicle of Husband could not be awarded to Wife unless waived or relinquished his right to the property. • Here, such a waiver occurred, but Court exceeded the extent of the waiver. • Caring for triplets: specific findings needed as to whether this constitutes an extraordinary situation justifying babysitter expense for a non-employed caregiving parent. • Attorney fee waiver in a Marital Agreement is enforceable, and not subject to conscionability review, like a waiver of maintenance.

35. IRM Ikeler (cert.granted Dec. 18, 2006) • Whether adoption of CO Marital Agreement Act C.R.S. §§14-2-301 to -310, eliminated the common law review of unconscionability for a waiver of attorney fees in a marital agreement • Whether strict enforcement of waiver of attorney fees in a martial agreement affects a child’s right to child support, when child support is at issue. • Whether waiver of attorney fees in a marital agreement is void as against public policy when spousal maintenance, child support, and allocation of parental responsibilities are at issue.

36. Combs v. Tibbitts, (CA. Oct.5, 2006) • Putative spouses, those with a good faith belief that they are married, acquire the rights of a legal spouse. C.R.S. §14-2-111 • Enforceable Separation Agreements are those between “parties to a marriage attendant upon their separation or the dissolution of their marriage.” C.R.S. §14-10-112. • Even if the Separation Agreement is unenforceable, there is a rebuttable presumption for child support for children for whom paternity can be determined. C.R.S. §14-10-115(3)(a).

37. IRM Sanchez-Vigil v. Rael, (CA. Nov. 16, 2006) • C.R.C.P. 107 permits attorney fees for remedial contempt, but not for punitive contempt. • Parties’ Separation Agreement permitted attorney fees for the prevailing party. • Here, the Court granted attorney fees to Wife according to their agreement, even though Husband received punitive sanctions in the criminal contempt hearing.

38. The End