The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
August 9, 2018
2018COA116
No. 16CA1951 Marriage of Morgan — Family Law — Uniform
Dissolution of Marriage Act — Parenting Time
A division of the court of appeals reaffirms the supreme court’s
decision in Spahmer v. Gullette, 113 P.3d 158, 162 (Colo. 2005),
holding that when a parent indicates before permanent orders that
he or she wishes to relocate, the court must allocate parenting time
assuming that the parent will move. Yet many parents admit that
they will not actually relocate if the children are ordered to remain
in Colorado. Often, courts will allocate parenting time based upon
that admission (i.e., as though the parent will not move). The
division reiterates that Spahmer gives no authority to disregard the
parent’s stated intention to relocate, reverses the parenting time
order, and remands for the magistrate to enter a new parenting
time order based on mother’s stated intention to relocate.
COLORADO COURT OF APPEALS 2018COA116
Court of Appeals No. 16CA1951
Weld County District Court No. 14DR30427
Honorable Ryan L. Kamada, Judge
In re the Marriage of
Carol Crosley Morgan,
Appellant,
and
Carter Edward Morgan,
Appellee.
JUDGMENT AFFIRMED IN PART, REVERSED IN PART,
AND CASE REMANDED WITH DIRECTIONS
Division III
Opinion by JUDGE FOX
Webb and Richman, JJ., concur
Prior Opinion Announced June 28, 2018 WITHDRAWN
OPINION PREVIOUSLY ANNOUNCED AS “NOT PUBLISHED PURSUANT TO
C.A.R. 35(e)” ON June 28, 2018, IS NOW DESIGNATED FOR PUBLICATION
Announced August 9, 2018
Aitken Law, LLC, Sharlene J. Aitken, Denver, Colorado; Ericka J.A. Fowler,
Boulder, Colorado, for Appellant
Antolinez Miller LLC, Joseph H. Antolinez, Melissa E. Miller, Centennial,
Colorado, for Appellee
¶1 In this dissolution of marriage proceeding, Carol Crosley
Morgan (mother) appeals that portion of the permanent orders
allocating parental responsibilities for her two minor children with
Carter Edward Morgan (father). We reverse the parenting time
order and remand for the magistrate to enter a new parenting time
order based on mother’s stated intention to relocate to California.
In all other respects, we affirm.
I. Background
¶2 Well before the permanent orders hearing, mother notified the
magistrate 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.
¶3 The parents agreed that Dr. Kevin Albert would conduct a
parental responsibilities evaluation (PRE) to assess the parenting
issues, including mother’s proposed move. Dr. Albert
recommended that the children be allowed to relocate to California
with mother and that she should have sole decision-making
responsibility.
¶4 At father’s request, the magistrate appointed Beth Lieberman
to perform a supplemental PRE. Ms. Lieberman recommended that
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the children remain in Colorado with father with shared
decision-making responsibilities with mother.
¶5 After a two-day evidentiary hearing, the magistrate ordered the
children to remain in Colorado. He found that their best interests
would be served if the parents exercised equal parenting time, with
mutual decision-making responsibilities.
II. The Magistrate Did Not Follow Spahmer
¶6 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. See Spahmer v. Gullette,
113 P.3d 158, 162 (Colo. 2005). Rather, “in the initial
determination of parental responsibilities . . . a [district] court must
accept the location in which each party intends to live, and allocate
parental responsibilities, including parenting time, accordingly.” Id.
at 164; see also § 14-10-124(1.5)(a)(VIII), C.R.S. 2017 (requiring the
court to consider “[t]he physical proximity of the parties to each
other as this relates to the practical considerations of parenting
time”).
¶7 Mother contends that the magistrate failed to follow this
principle by entering a parenting time order requiring her to remain
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in Colorado. We review de novo whether the magistrate applied the
proper legal standard, see In re Parental Responsibilities of Reese,
227 P.3d 900, 902 (Colo. App. 2010), and agree.
¶8 Mother never wavered from her stated position that she
intended to move to California after the divorce was completed. She
informed the magistrate of her intention in a written notice of intent
to relocate, at the temporary orders hearing, via two parental
evaluators, in the joint trial management certificate, and at the
permanent orders hearing. The magistrate confirmed that mother
“very clearly” stated her wish to move to California and
acknowledged that, under Spahmer, his parenting time orders must
assume she would move.
¶9 But the magistrate did not then adhere to the Spahmer
analysis and enter parenting time orders that assumed mother
would live in California. Instead, the magistrate ordered the
children to remain in Colorado and issued a year-round 5-2-2-5
parenting time schedule, the terms of which required the parties to
exchange the children on Monday, Wednesday, and every other
Friday. This order is impractical to implement if mother lives in
California. See, e.g., Jacob A. v. C.H., 127 Cal. Rptr. 3d 611, 617,
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620 (Cal. Ct. App. 2011) (holding that a 5-2-2-5 parenting plan is
not an option when the parents plan to live in different states).
Moreover, the order implicitly requires mother to live in a specific
location (Colorado). Cf. Spahmer, 113 P.3d at 162.
¶ 10 In Spahmer, the supreme court reversed a parenting time
order that required the child’s mother to remain in Colorado, in
close proximity to the child’s father, over her stated intent to
relocate to Arizona. Id. at 164. The court noted that mother’s plans
were unambiguous — she had testified that she wanted to live in
Arizona to have family support and to pursue job opportunities and
had premised her proposed parenting time schedule on her living in
Arizona. Id. Accordingly, the district court should have allocated
parenting time with the understanding that mother was intending
to live in Arizona and father in Colorado. Id. By failing to do so, the
court did not properly take into account the parties’ physical
proximity to each other, thereby abusing its discretion and
exceeding its statutory authority. Id.; see also
§ 14-10-124(1.5)(a)(VIII).
¶ 11 Similarly here, mother’s request was neither ambiguous nor
uncertain. Mother stated her intention at least five times during
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the proceedings and submitted a proposed parenting plan premised
on her relocation. Additionally, she testified that she wanted to
move because she had an “incredible” family support system in
California; she grew up there, and the area was familiar and
comfortable; she and the children could “get away from a lot of the
negativity that has developed” in Colorado; and she and father
would better be able to work together to be good parents. She also
testified that she had “endless” job opportunities in California, had
inquired about therapy for herself and the children, had “a
pediatrician lined up,” knew which schools the children would
attend, and had looked into sports programs for the children.
¶ 12 True, mother admitted that she would not move without her
children if they were ordered to remain in Colorado with father.
Father asserts that this admission makes mother’s request
“ambiguous.” Considering the evidence showing the number of
times mother stated her intention to move and her reasons for
relocating, we disagree.
¶ 13 Father also asserts that when a parent admits he or she will
not move without the children, Spahmer does not require the
“[district] court to participate in ‘make believe’ and pretend that
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[m]other will live in California when analyzing what the best
interests of the children would look like if it were to place the
children with [f]ather in Colorado.”
¶ 14 Yet this is exactly what Spahmer requires. Mother said in no
uncertain terms that she wanted to move to California — that is the
premise from which the legal analysis must begin. See Spahmer,
113 P.3d at 164; see also Jacob A., 127 Cal. Rptr. 3d at 617 (stating
that the court must treat a parent’s plan to move “as a serious one
and must decide the custody issues based upon that premise”
(quoting Ruisi v. Thieriot, 62 Cal. Rptr. 2d 766, 771 (Cal. Ct. App.
1997))); In re Marriage of Hall, 241 P.3d 540, 543 (Colo. 2010)
(holding that the potential relocation of a parent is a fundamental
part of a parenting time determination). 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. See In re Marriage of Ciesluk, 113 P.3d 135, 147
(Colo. 2005) (“Child parenting disputes present agonizing decisions
for [district] court judges.”).
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¶ 15 Accordingly, we reverse the parenting time order. On remand,
the magistrate must accept the location in which each party intends
to live (father in Colorado, mother in California) and allocate
parenting time accordingly. The magistrate has no authority on
remand to issue an order that effectively coerces mother into
abandoning her plans to relocate to California. See Jacob A., 127
Cal. Rptr. 3d at 620 (holding that the decision to move a child away
from one of his or her parents “cannot be avoided by coercing the
moving parent into staying or prohibiting her from moving”).
III. Other Parenting Time Considerations
¶ 16 Because it may arise on remand, we briefly address mother’s
contention that the magistrate ignored section 14-10-124(4) when
fashioning parenting time.
¶ 17 A district court must allocate parenting time in accordance
with the best interests of the child, applying the factors in section
14-10-124(1.5)(a) and giving paramount consideration to the
physical, mental, and emotional conditions and needs of the child.
See Spahmer, 113 P.3d at 159, 162.
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¶ 18 However, if domestic violence is an issue in the case, the court
must also consider the factors in section 14-10-124(4). See
§ 14-10-124(1.5)(a). As relevant here:
(d) When the court finds by a preponderance of
the evidence that one of the parties has
committed child abuse or neglect, domestic
violence, or sexual assault resulting in the
conception of the child, the court shall
consider, as the primary concern, the safety
and well-being of the child and the abused
party.
(e) When the court finds by a preponderance of
the evidence that one of the parties has
committed child abuse or neglect, domestic
violence, or sexual assault resulting in the
conception of the child, in formulating or
approving a parenting plan, the court shall
consider conditions on parenting time that
ensure the safety of the child and of the
abused party.
§ 14-10-124(4).
¶ 19 The magistrate found that father had committed domestic
violence and that a permanent protection order (PPO) had been
issued against him. Hence, these sections are relevant to the
magistrate’s parenting time consideration and he must consider
them on remand. See id.
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IV. Decision-Making Responsibilities
¶ 20 Mother contends 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.
We disagree.
¶ 21 An allocation of decision-making responsibility requires the
district court to consider the nine parenting time factors in section
14-10-124(1.5)(a) and three decision-making factors in paragraph
(b) of the same subsection. This analysis occurs even in cases
involving domestic violence: “The court shall consider the additional
factors set forth in paragraphs (a) and (b) of subsection (1.5) of this
section in light of any finding of child abuse or neglect, domestic
violence, or sexual assault resulting in the conception of a child
pursuant to this subsection (4).” § 14-10-124(4)(b).
¶ 22 When, as here, the court finds by a preponderance of the
evidence that one of the parties has committed domestic violence,
[i]t shall not be in the best interests of the
child to allocate mutual decision-making
responsibility over the objection of the other
party . . . unless the court finds that there is
credible evidence of the ability of the parties to
make decisions cooperatively in the best
9
interest of the child in a manner that is safe
for the abused party and the child.
§ 14-10-124(4)(a)(II)(A).
¶ 23 The allocation of decision-making responsibilities is within the
sound discretion of the district court. See Reese, 227 P.3d at 902.
¶ 24 Relying on section 14-10-124(4)(a)(II)(A), the magistrate found
that mother objected to mutual decision-making and, therefore, he
presumed that such an order was not in the children’s best
interests. Supporting her position on this issue, mother presented
Exhibit M, a 614-page record of the parents’ communications on
Talking Parents. Mother asserted that Exhibit M demonstrated that
the parties had “little success” resolving child-related issues.
¶ 25 The magistrate found differently, and concluded that the
evidence rebutted the presumption that mutual decision-making
was not in the children’s best interests. He found that “[i]f you can
get through that Exhibit M, the results are [the parties] were
making decisions.” And he found that “[e]ven during this hotly
contested case, the parties were able to make joint decisions like
choosing a therapist, scheduling dental appointments, adjusting
exchange times, discussing illnesses, [and] discussing activities,
10
[and] schedules.” He agreed with the statements of both PREs that
the parties had the capacity to work together and make decisions in
the children’s best interests.
¶ 26 These findings, which enjoy record support, reflect the
magistrate’s consideration of the domestic violence issue and the
children’s best interests. See § 14-10-124(1.5)(a), (4). We discern
no abuse of discretion in the order for mutual decision-making
responsibility. See Reese, 227 P.3d at 902.
¶ 27 Insofar as mother argues that the magistrate entered the order
without concern for her safety, we disagree. See § 14-10-124(4)(d).
When fashioning a parenting plan that ensures the safety of the
child and the abused party, the district court may enter “[a]n order
limiting contact between the parties to contact that the court deems
is safe and that minimizes unnecessary communication between
the parties.” § 14-10-124(4)(e)(I).
¶ 28 The crux of mother’s “safety” argument is that father harassed
her and violated the PPO through Talking Parents, a website that
allows parties to discuss matters relating to their children.
However, at mother’s request, the parties agreed to stop using
Talking Parents after permanent orders and start using Civil
11
Communicator, which she described as a “structured form of
communication where messages are reviewed for appropriateness.”
¶ 29 In adopting this agreement and ordering the use of Civil
Communicator, we may presume that the magistrate impliedly
found that its use would alleviate mother’s concerns and provide a
safe way for her to communicate with father regarding the children.
See id.; see also In re Marriage of Nelson, 2012 COA 205, ¶ 41
(upholding district court’s decision based on its implied findings,
which were sufficient).
V. Exhibit T
¶ 30 Mother contends that the magistrate erred in reviewing an
irrelevant exhibit, Exhibit T, when allocating parenting time.
Exhibit T is a district court order from an unrelated domestic
relations case that father submitted as “authority from another
court in Adams County on [its] interpretation of the Spahmer case.”
The mother in that case intended to move to Washington but stated
that she would remain in Colorado if she could not move with one
or both of the children. Relying on her statement, the Adams
County court disregarded Spahmer and issued its parenting time
orders by assuming that mother would remain in Colorado. Mother
12
argues that Exhibit T improperly influenced the magistrate’s
decision here.
¶ 31 In light of our disposition that the magistrate must allocate
parenting time assuming mother will move to California, this issue
is moot. See Anderson v. Applewood Water Ass’n, 2016 COA 162,
¶ 31 (“A claim is moot when prospective relief is unnecessary to
remedy an existing controversy or prevent its reoccurrence.”).
VI. Mother’s Request for Appellate Attorney Fees
¶ 32 Asserting she is at a financial disadvantage, mother requests
an award of her attorney fees under section 14-10-119, C.R.S.
2017. She may raise this issue to the district court on remand.
See In re Marriage of Rivera, 2013 COA 21, ¶ 25.
VII. Conclusion
¶ 33 That part of the judgment allocating parenting time is
reversed, and the case is remanded with directions to enter a new
parenting time plan in accordance with Spahmer. Because the
magistrate’s order was entered more than one year ago, the
magistrate should take additional evidence on the children’s
current circumstances on remand. See In re Parental
Responsibilities Concerning M.W., 2012 COA 162, ¶ 27. The existing
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allocation of parental responsibilities shall remain in place pending
new orders on remand. See id.
¶ 34 In all other respects, the judgment is affirmed.
JUDGE WEBB and JUDGE RICHMAN concur.
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