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In re Marriage of Wenciker and Bolen.

2022 COA 74. No. 20CA1669. Post-Dissolution of Marriage Proceeding—Motion to Modify—Emergency Motion—Endangerment.

July 14, 2022

Father moved post-dissolution of marriage to modify parenting time and to change decision-making from joint decision-making to sole decision-making by him. His motion rested in large part on allegations of endangerment that he had asserted and failed to prove in connection with an emergency motion to restrict parenting time that the court previously denied. Following a two-day hearing, the court granted the motion to modify.

On appeal, mother argued that the court’s denial of father’s emergency motion to restrict parenting time barred the court from relying on the same facts to grant the motion to modify. As an initial matter, the Court of Appeals determined that the parties’ older child turned 18 while this appeal was pending, so mother’s appeal as to the older child is moot. On the merits, the plain language of the relevant statutes doesn’t bar a court from considering allegations contained in a previously denied emergency motion to restrict parenting time. Thus, proven allegations of endangerment that are the same as those raised in a failed emergency motion to restrict parenting time can support a subsequent motion to substantially change parenting time or modify decision-making. Therefore, the court did not err.

Mother also argued that even if father could rely on allegations predating the denial of his emergency motion to restrict parenting time, the court’s findings aren’t supported by the record. The trial court has broad discretion when modifying parental responsibilities. Here, the court’s findings that mother and stepfather physically and emotionally abused the children and that the children were endangered in their care were supported by the record, including testimony from a child and family investigator and the children’s therapist.

The appeal was dismissed as to the parties’ older child. The order was affirmed as it relates to the younger child.

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

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