In re Marriage of Pawelec.
2024 COA 107. No. 23CA0792 & 23CA2021. Dissolution of Marriage—Arbitration—De Novo Hearing—Appellate Jurisdiction—Child Support—Domestic Violence—Fees and Costs.
October 3, 2024
Father petitioned for dissolution of marriage. The parties entered into a separation agreement regarding property division and agreed to arbitrate the remaining unresolved issues of parenting time, decision-making, child support, and spousal maintenance. During the arbitration, mother did not raise any allegations of domestic violence. The arbitrator awarded the parties joint decision-making and named father, who planned to move to North Carolina following the dissolution, as the primary residential parent of S.P. The arbitrator also entered orders concerning child support and spousal maintenance. Mother moved for a de novo hearing to modify the arbitrator’s award as to parenting time, alleging abuse. Following a de novo hearing, the trial court orally awarded the parties joint decision-making, based on their agreement to that at the hearing, and found that it was in the child’s best interests to reside primarily with father when he relocated to North Carolina. Mother moved for reconsideration, which the court denied. The court then granted father’s motion for attorney fees and costs under CRS § 14-10-128.5(2). Mother appealed the oral parenting time order, the denial of the motion to reconsider, and the attorney fees order in Case No. 23CA0792. Several months later, father filed proposed written orders concerning parental responsibilities, child support, and spousal maintenance, along with a transcript of the oral parenting time order and a proposed decree of dissolution of marriage. The trial court signed father’s proposed orders between October 5 and October 9, 2023 (October 2023 orders), and mother separately appealed those orders in Case No. 23CA2021. The court of appeals consolidated the appeals.
As a threshold matter, mother argued that the trial court lacked jurisdiction to enter the October 2023 orders because her first appeal was pending at that time. However, when mother filed her first appeal, the trial court hadn’t entered a written parenting time order, orders regarding child support, or a decree of dissolution of marriage. Therefore, mother’s first notice of appeal was premature because the judgment wasn’t final when she filed it, and the trial court had jurisdiction to enter the October 2023 orders.
Mother also contended that the trial court violated her procedural due process rights at the de novo hearing by not allowing her to present additional evidence beyond her allotted time. Here, the parties were aware of the time constraints before the hearing, and mother and her counsel were responsible for presenting evidence within her allotted time frame. The trial court also allowed mother’s witnesses some extended time. Further, mother did not adequately identify the evidence that was in danger of being excluded if the trial court didn’t grant her more time. Therefore, the court did not err by denying mother’s request for additional time.
Mother further asserted that the trial court erred by not considering whether the harm S.P. would suffer from moving to North Carolina with father was outweighed by the advantage of the move. However, a court is not required to consider this factor in an initial allocation of parental responsibilities. And the court’s conclusion that S.P.’s best interests were served by moving with father to North Carolina were based on findings supported by the record. Accordingly, the court did not abuse its discretion in considering and resolving the best interests factors.
Mother also contended that the trial court erred by not finding that father committed domestic violence and, accordingly, by not addressing other required domestic violence considerations. Here, the trial court awarded primary parenting time to father despite its findings and concerns about an incident in which father grabbed mother’s arms, and yelled and swore at her, causing her to lose her balance and fall down the stairs. Even assuming that the court erred by not characterizing an incident as domestic violence, such error did not affect mother’s substantial rights because mother (1) failed to explain how a finding that this incident constituted domestic violence would have overcome the trial court’s other findings that it was in S.P.’s best interests to live primarily with father, and (2) mother did not identify any statutorily enumerated condition that she requested but the court declined to impose because it didn’t find domestic violence.
Mother also argued that the trial court erred by ignoring evidence she presented of incidents of nonphysical domestic abuse. However, the record shows that the trial court considered this evidence and found that mother’s claims that father controlled her financially and controlled her physical movements, and attempted to isolate himself, mother, and S.P. from friends and family weren’t credible and were contradicted by other evidence.
Mother further asserted that the trial court erred by granting father attorney fees under CRS § 14-10-128.5 because the arbitrator’s reasoning was different from the court’s reasoning. Section 14-10-128.5(2) provides that when a court grants a party’s motion for a de novo hearing and substantially upholds the arbitrator’s decision, the party that requested the de novo hearing must be ordered to pay the other party’s fees and costs and the fees of the arbitrator incurred in responding to the motion, unless the court finds that it would be manifestly unjust. The court of appeals held that a court “substantially upholds” the arbitrator’s decision if it reaches a substantially similar outcome, regardless of whether the court’s reasoning is different from the arbitrator’s. Further, while “fees and costs . . . incurred in responding to” the motion for a de novo hearing do not include fees and costs incurred before the motion is filed, they do include fees and costs incurred in preparing for and attending the de novo hearing after the motion is granted. Here, the fact that the trial court’s reasoning for allocating parenting time primarily to father differed from the arbitrator’s reasoning is immaterial. But the trial court erred by awarding father fees and costs incurred before mother filed her motion for a de novo hearing.
Mother also argued that the trial court should have denied the mandatory fee award as manifestly unjust, given the disparity between her income and father’s income. The court of appeals was unable to determine the basis of the trial court’s decision on this issue because the order granting father his requested fees did not address mother’s contention that awarding fees would be manifestly unjust.
Mother also contended that the court erred by entering father’s proposed child support order without evidence about the number of overnights S.P. would have with each parent and father’s expenses for health insurance and work-related childcare. Here, the court erred by implicitly adopting father’s overnight and expense figures as its factual findings without record support.
Lastly, mother maintained that the trial court erred by (1) checking a box on the dissolution of marriage decree indicating that mother was represented by counsel, even though her counsel withdrew shortly after the de novo hearing; and (2) not notifying mother of the October 2023 orders. However, mother did not explain how these purported errors prejudiced her, so any such errors aren’t reversible because they didn’t affect mother’s substantial rights.
The judgment was affirmed in part and reversed in part, and the case was remanded for further proceedings, including both parties’ appellate fee requests.