In re Marriage of Humphries.
2024 COA 92. No. 22CA1327. Post-dissolution of Marriage Proceedings—Disputes Concerning Parenting Time—Modification of Decision-Making Responsibility—Parental Alienation—Civil Fines—Attorney Fees and Costs.
August 15, 2024
The parties agreed to split parenting time equally and share joint decision-making responsibility for their children, and their parenting plan was made part of their dissolution decree in 2012. The district court modified the parenting time schedule in 2019, maintaining equal parenting time but reallocating to mother all decision-making responsibility, except for allowing both parents to schedule family therapy for themselves and the children. In 2020, father filed four motions concerning parenting time disputes under CRS § 14-10-129.5, which alleged that mother had violated the 2019 order by depriving him of parenting time on numerous occasions in 2020. Following a hearing, the court granted the motion. It (1) reallocated sole decision-making responsibility from mother to father based on § 14-10-129.5(2)(b) and (h); (2) imposed a $36,500 civil fine against mother; and (3) ordered mother to pay father’s attorney fees, costs, and expenses incurred in connection with his motions.
On appeal, mother contended that the district court improperly used § 14-10-129.5(2)(b) and (h) to circumvent §§ 14-10-129.5(2)(f) and 14-10-131(2), which govern modification of decision-making responsibility. Section 14-10-129.5 governs parenting time disputes and provides that if the district court, after a hearing, finds that a party failed to comply with a parenting time order, the court may enter certain remedial orders. However, if reallocation of decision-making responsibility is part of a parenting time dispute, § 14-10-129.5(2)(f) requires the court to comply with § 14-10-131, which imposes a heightened standard of proof and requires a district court to make certain findings not required by § 14-10-129.5. Accordingly, the district court erred by modifying the allocation of decision-making authority under § 14-10-129.5(2)(b) and (h).
Mother also argued that the district court erred by admitting expert testimony on parental alienation without making findings on whether (1) the opinion was reasonably reliable; and (2) the theory was relevant, given mother’s allegations of child abuse. Here, before the hearing, mother moved to exclude expert testimony on the theory of parental alienation as unreliable. The court denied the motion, determining that the theory was reasonably reliable under the totality of the circumstances. The court further found that mother’s disagreement with the expert’s theory could be addressed through cross-examination and her presentation of competing expert testimony. Accordingly, the court made sufficient findings on the reliability of the evidence and did not abuse its discretion by admitting it.
Mother further asserted that the district court erred by not considering that there can be no parental alienation when the rejected parent commits child abuse. However, the court found that mother’s claims that father had committed child abuse were unsupported; and the court rejected mother’s experts’ opinions because it determined that mother’s experts had been given limited information about the case. In addition, the court found ample evidence of mother’s alienating behaviors, based on expert and lay witness testimony, and on documentary evidence accumulated over many years. Accordingly, the district court did not err.
Mother further contended that the total amount of the civil fine cannot stand. Section 14-10-129.5(2)(e.5) authorizes the district court to sanction a noncomplying party with a civil fine, which cannot exceed $100 per incident of denied parenting time. Here, the district court did not make sufficiently explicit factual findings to allow the appellate court to understand the basis of the order and to enable the appellate court to determine the grounds for its decision.
Lastly, mother argued that the district court erred by awarding father his attorney fees under § 14-10-129.5(4). Here, the day before mother filed her notice of appeal, she filed an objection to the amount of attorney fees and costs and requesting an evidentiary hearing. The court stayed its ruling pending the appeal. Accordingly, the award is not final, so this portion of the appeal was dismissed.
The court also denied father’s request for his appellate attorney fees and costs because mother prevailed on a substantial aspect of her appeal.
The appeal was dismissed in part, reversed in part, and affirmed in part, and the case was remanded for further proceedings.