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In re Marriage of Bochner.

2023 COA 63. No. 22CA0441. Uniform Dissolution of Marriage Act—Modification of Court-Appointed Decision-Maker’s Decision—De Novo Hearing—Attorney Fees.

July 6, 2023

The parties’ marriage was dissolved, and the district court adopted their stipulated parenting plan. Among other things, the stipulation provided that the parties and the children would remain in individual therapy and continue working with a parenting coordinator/decision-maker (PCDM) who had arbitration authority to resolve disputes regarding the reunification therapy of father and the children. The PCDM subsequently found that the parties were not following the therapeutic plan, so the PCDM directed the children to return to individual and reunification therapy and required the therapists to communicate with each another to coordinate the family members’ care. The magistrate adopted the PCDM’s decision. Mother then filed a motion to modify the PCDM’s decision under CRS § 14-10-128.3(4)(a) or, alternatively, for an evidentiary hearing. The magistrate held a 15-minute status conference at which only the parents’ counsel appeared. The magistrate allowed the parents to submit supplemental briefs, and after reviewing those briefs, granted mother’s motion. On father’s request for review, the district court rejected the magistrate’s order and reinstated the PCDM’s decision. Father moved to amend the district court’s order under CRCP 59(a)(4), alleging that the court overlooked his request for attorney fees and costs under CRS § 14-10-128.3(4)(b). The district court denied father’s motion.

On appeal, father argued that the district court erred by denying his CRCP 59(a)(4) motion. He maintained that the court erred by determining that CRS § 14-10-128.3(4)(b) did not apply because his request for attorney fees and costs arose in the context of a petition for review, and that even if CRS § 14-10-128.3(4)(b) applied, an award of attorney fees and costs against mother would be manifestly unjust. Section 14-10-128.3(4)(a) allows parents to move the district court to modify a decision-maker’s decision “pursuant to a de novo hearing.” The district court has discretion to grant a de novo hearing request, but if it grants the request and “substantially upholds” the decision, the parent who requested the hearing must pay the other parent’s attorney fees and costs unless it would be manifestly unjust. Here, mother’s motion resulted in the PCDM’s decision remaining in place, so the decision was “substantially upheld.” However, the magistrate did not conduct an evidentiary hearing. Accordingly, the CRS § 14-10-128.3(4)(b) attorney fee provision was inapplicable, and father is not entitled to attorney fees.

The order was affirmed and the case was remanded for determination of mother’s request for appellate attorney fees.

Official Colorado Court of Appeals proceedings can be found at the Colorado Court of Appeals website.

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