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In re Marriage of Turilli.

2021 COA 151. No. 20CA1687.  Post-Dissolution Parenting Time Dispute—CRS § 14-10-129.5(4)—Attorney Fees.

December 16, 2021

The parties entered into a stipulated separation agreement that resolved the allocation of parental responsibilities for their children. The agreement provided for shared decision-making responsibility, gave father weekly parenting time, and provided for advance exchange of travel itineraries seven days before traveling. The court incorporated the separation agreement into its 2015 dissolution decree. The agreement was never modified.

Around midnight on March 25, 2020, the parties texted about mother’s need to fly to California to care for her ailing mother and whether she should take the children. Father supported mother’s travel but did not want her to take the children. Nevertheless, mother took the children with her the next morning. When mother failed to return the children for father’s parenting time later that day, he filed an emergency motion under CRS § 14-10-129(4) asking the court to restrict mother’s parenting time and order her to return the children to Colorado. Father later withdrew his motion after the parties stipulated that mother would return the children to Colorado. Father then filed a CRS § 14-10-129.5 motion requesting makeup parenting time and an award of attorney fees, court costs, and expenses associated with his motions. Following a hearing, the court found that mother had violated the court orders by unilaterally taking the children to California. The court ordered makeup parenting time and awarded father the fees he incurred in connection with his CRS § 14-10-129.5 motion, but it declined to award attorney fees related to the CRS § 14-10-129(4) motion.

On appeal, mother argued that it was error to exclude evidence of father’s alcoholism, his work schedule, and his history of failing to exercise parenting time.  However, evidence that is too remote either in time or logical relation to a matter in dispute should not be admitted. Here, evidence of father’s alcohol issues at the time of the separation agreement six years earlier was remote and would not shed light on whether mother had violated the court order in 2020. Similarly, evidence that father chose not to increase his parenting time was collateral to the dispute before the court. Mother offered no evidence of father’s more recent alcohol issues though the court invited her to do so. Finally, the court considered testimonial evidence of father’s work schedule at the hearing.

Mother also argued that the court failed to consider her significant concerns regarding the COVID-19 pandemic went it gave father makeup parenting time. However, in addition to considering the issues discussed above, the court considered the pandemic’s effects on the situation. Accordingly, the court did not err in awarding father makeup parenting time.

Mother also contended it was error to award attorney fees without holding a hearing on the reasonableness of father’s requested fees. Where, as here, a party requests a hearing on the reasonableness of attorney fees, due process requires that the district court hold such a hearing. Therefore, the district court erred.

On cross-appeal, father argued that he should have been awarded fees under both motions because they were both parenting time disputes. However, the fees father incurred for his CRS § 14-10-129(4) motion were not “associated with an action brought pursuant to” CRS § 14-10-129.5, and CRS § 14-10-129(4) has no provision for fees for a motion filed pursuant to that section.

Lastly, the Court of Appeals granted father’s request for appellate attorney fees under CRS § 14-10-129.5 for defending against mother’s appeal.

The attorney fees award was reversed and the case was remanded for the court to hold a hearing on the reasonableness of father’s requested fees and determine father’s reasonable appellate attorney fees. The order was affirmed in all other respects.

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

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