Marriage of Thorburn ( 2022 )

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
July 21, 2022
2022COA80No. 21CA1006, In re the Marriage of Thorburn — Family Law —
Post-Dissolution — Modification of Parenting Time — Motion to
Restrict Parenting Time or Parental Contact — Imminent
Physical or Emotional Danger
In this post-dissolution of marriage proceeding, a division of
the court of appeals addresses, as a matter of first impression,
whether a motion under section 14-10-129(4), C.R.S. 2021,
requires the moving parent to prove, at the emergency hearing, that
the child is in imminent danger. Interpreting the plain language of
section 14-10-129(4) — and applying it in harmony with section 14-
10-129(1)(b)(I) — the division concludes that (1) under section 14-
10-129(4), a moving parent need not prove, at the emergency
hearing, that the child is in imminent danger; and (2) the district
court must apply the endangerment standard under section 14-10-
129(1)(b)(I) to continue any parenting time restriction. The record
substantiates that, in assessing mother’s motion to restrict
parenting time, the correct legal standard was applied, so the
division affirms.
COLORADO COURT OF APPEALS 2022COA80Court of Appeals No. 21CA1006
Jefferson County District Court No. 19DR30372
Honorable Diego G. Hunt, Judge
In re the Marriage of
Danielle Jeanette Thorburn,
Appellee,
and
James M. Thorburn,
Appellant.
ORDER AFFIRMED AND CASE
REMANDED WITH DIRECTIONS
Division V
Opinion by JUDGE FOX
Gomez, J., concurs
Taubman*, J., dissents
Announced July 21, 2022
Miller Family Law, LLC, Kate Miller, Jessica Hoyt, Sophie Altman, Denver,
Colorado, for Appellee
Thorburn Law Group, LLC, James D. Thorburn, Carolyn M. Schaffer,
Greenwood Village, Colorado, for Appellant
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2021.
¶1 This appeal involves the interplay between subsections (1)(b)(I)
and (4) of section 14-10-129, C.R.S. 2021. Both subsections enable
a district court to restrict parenting time so that a child is safe from
physical and emotional endangerment. Subsection (1)(b)(I) applies
to any order that imposes or continues a parenting time restriction.
Subsection (4) allows a district court, on an emergency basis, to
restrict parenting time until a hearing can be held within fourteen
days. But where they differ is that subsection (1)(b)(I) does not
mention imminence while subsection (4) does. The import of that
difference is at the center of this appeal.
¶2 James M. Thorburn (father) challenges a magistrate’s decision
restricting his parenting time. According to him, the magistrate
incorrectly defined “imminent” under subsection (4) and, as a
result, failed to apply the appropriate legal standard.
¶3 Danielle Jeanette Thorburn (mother) counters that, even if the
magistrate wrongly defined “imminent,” it does not matter. She
argues that a motion to restrict parenting time under subsection (4)
is simply a procedural vehicle to get an emergency hearing and an
immediate parenting time restriction, nothing more. And at the
emergency hearing, she asserts, the general standards under
1
subsection (1)(b)(I) — applicable to all hearings to restrict parenting
time — govern.
¶4 For the reasons discussed below, we agree with mother. We
affirm the district court’s order adopting the magistrate’s decision
restricting father’s parenting time. But we remand the case to the
district court for further proceedings on mother’s request for
appellate attorney fees under section 14-10-119, C.R.S. 2021.
I. Relevant Facts and Procedural History
¶5 The parties’ marriage ended in February 2020. The
dissolution decree incorporated their parenting plan for their son,
J.C.T. Under the plan, J.C.T. would live primarily with mother.
The parties also agreed that father would follow a step-up parenting
time schedule, beginning with an overnight every week with the goal
of equal time in nine months.
¶6 On February 1, 2021, mother moved to restrict father’s
parenting time under section 14-10-129(1)(b)(I) and (4). She
alleged, among other things, that during father’s most recent
parenting time, J.C.T., then thirty-two months old, suffered a deep
gash on his forehead, requiring eight stitches. Father quickly
responded and asserted that J.C.T.’s injury was accidental.
2
¶7 The next day, a magistrate deemed mother’s allegations
sufficiently pleaded, scheduled an emergency hearing for February
9, and ordered that father’s parenting time be supervised until
then.
¶8 Following the emergency hearing, at which only the parties
testified, the magistrate issued an oral ruling and directed mother’s
attorney to draft a proposed order.
¶9 For reasons unexplained in the record, both parties submitted
proposed orders, and the magistrate signed father’s order on
February 26, 2021.1
¶ 10 In the written order, the magistrate made the following
findings:
1 We appreciate that the magistrate gave both parties the
opportunity to have input into the content of the proposed order.
But after careful scrutiny, we determine that the written order (as
proposed by father) is, at times, at odds with the oral ruling. For
instance, the written order ignores the fact that the magistrate
applied section 14-10-129(1)(b), C.R.S. 2021, in addition to section
14-10-129(4). Even so, we view the oral ruling as supplementing
the written order. See Friends of Denver Parks, Inc. v. City & Cnty.
of Denver, 2013 COA 177, ¶¶ 34-37 (district court’s oral findings
supplement its written order); see also In re Marriage of Cespedes,
895 P.2d 1172, 1176 (Colo. App. 1995) (considering district court’s
oral ruling in rejecting contention that its findings and conclusions
were inadequate to support its order).
3
 Between August 2019 and January 2021, J.C.T.
sustained five injuries while in father’s care.
 Three of the five injuries were “serious concussions,” and
another involved a significant “split lip.”
 Father’s explanations of J.C.T.’s injuries were not
credible.
 J.C.T.’s injuries were “unusual” and would not have
happened had father properly supervised him.
 There was an active investigation by the Jefferson County
Division of Children, Youth and Families regarding
mother’s allegations.
From those findings, the magistrate (1) rejected father’s definition of
“imminent” for purposes of section 14-10-129(4); (2) read
“imminent” to mean a “certainty” at some point in the future,
without “any form of immediacy”; (3) applied that definition and
section 14-10-129(1)(b)(I) and (4); and (4) determined that mother
had proved that J.C.T. was in imminent danger. In the end, the
magistrate continued father’s supervised parenting time and
imposed certain conditions that father must meet before requesting
a modification.
4
¶ 11 On March 3, 2021, mother filed a motion to “set aside,” asking
the magistrate to reconsider the selection of father’s proposed order.
Nine days later, father petitioned for district court review.
¶ 12 Regarding father’s petition for review, the district court
adopted the magistrate’s decision. The court denied mother’s
motion to set aside to the extent that it sought review of the
magistrate’s decision. The court, however, remanded the case to
the magistrate with directions to resolve mother’s motion as it
related to the form of the magistrate’s written order.
¶ 13 Father then filed his notice of appeal. Based on a lack of
jurisdiction given the pending appeal, the magistrate on remand
declined to entertain mother’s motion to set aside.
II. Motion to Restrict Parenting Time Under Section 14-10-129(4)
A. Jurisdiction
1. Subject Matter Jurisdiction
¶ 14 At oral argument and later in his written supplemental
authority, father asserted that the district court order should be
vacated for lack of subject matter jurisdiction. He insisted that the
parties never consented to the magistrate’s jurisdiction. Father is
mistaken.
5
¶ 15 A district court has subject matter jurisdiction when it has
been “empowered to entertain the type of case before it by the
sovereign from which the court derives its authority.” In re Marriage
of Roth, 2017 COA 45, ¶ 14 (quoting Wood v. People, 255 P.3d 1136,
1140 (Colo. 2011)). The Colorado Constitution vests a district court
with general subject matter jurisdiction in civil cases, which may be
limited by the legislature only when that limitation is explicit. See
Colo. Const. art. VI, § 9; see also Currier v. Sutherland, 215 P.3d
1155, 1159 (Colo. App. 2008), aff’d, 218 P.3d 709 (Colo. 2009).
“[D]omestic relations cases are ‘proceedings of a civil nature.’” In re
Marriage of Wollert, 2020 CO 47, ¶ 26 (quoting In re Marriage of
Durie, 2020 CO 7, ¶ 14).
¶ 16 Because this dissolution proceeding is civil in nature, the
district court (and the magistrate before it) had constitutionally
vested subject matter jurisdiction to hear the action, including
mother’s motion to restrict. See Colo. Const. art. VI, § 9; see also
Wollert, ¶ 26; Roth, ¶ 14.
¶ 17 To the extent father argues that the magistrate lacked
authority to act on mother’s motion to restrict, he is again
mistaken. C.R.M. 6(b)(1)(B) gives a magistrate the power to preside
6
over all motions to modify parental responsibilities without the
parties’ consent. See Evans v. Evans, 2019 COA 179M, ¶ 20; see
also In re Marriage of Roosa, 89 P.3d 524, 527 (Colo. App. 2004);
§ 13-5-201(3), C.R.S. 2021. So, regardless of the parties’ consent,
the magistrate had the authority to preside over mother’s motion to
restrict, which sought to modify the existing parenting time order.
2. Finality
¶ 18 Mother contends that the district court’s order is not final and
appealable because her motion to set aside the magistrate’s
approval of father’s proposed order remains pending before the
magistrate on remand. We disagree.
¶ 19 With limited exceptions not applicable here, our appellate
jurisdiction is limited to review of final judgments or orders. In re
Marriage of Evans, 2021 COA 141, ¶ 11; see also C.A.R. 1(a)(1);
§ 13-4-102(1), C.R.S. 2021.
¶ 20 A magistrate’s decision that fully resolves an issue or claim is
final. C.R.M. 7(a)(3); In re Marriage of January, 2019 COA 87, ¶ 12.
¶ 21 A party may obtain review of a magistrate’s final decision in a
proceeding, like this one, where consent was not necessary, by filing
a timely petition for review with the district court under C.R.M.
7
7(a)(5). Once a district court enters its order on review, a party may
appeal to this court. C.R.M. 7(a)(11); Heotis v. Colo. Dep’t of Educ.,
2016 COA 6, ¶ 15.
¶ 22 Here, father invoked district court review of the magistrate’s
decision to continue his supervised parenting time. After adopting
the decision, the court remanded the case to the magistrate to
resolve any dispute as to the form of the written order.
¶ 23 The district court could not, under C.R.M. 7, remand the issue
to the magistrate and the magistrate would have lacked authority to
act. At oral argument, mother described her motion as one for
reconsideration, which falls under either C.R.C.P. 59 or C.R.C.P.
60(b). A magistrate cannot rule on a motion to reconsider under
C.R.C.P. 59 or for relief under C.R.C.P. 60(b). In re Parental
Responsibilities Concerning M.B.-M., 252 P.3d 506, 510 (Colo. App.
2011); see also C.R.M. 5(a) (magistrate may correct clerical errors
under C.R.C.P. 60(a) but otherwise has no authority to rule on a
motion for rehearing). Because there was no relief the magistrate
could then grant, mother’s motion for reconsideration was
effectively denied.
8
¶ 24 Therefore, the district court’s order and the underlying
magistrate’s decision are final and appealable, and we have
jurisdiction to consider them.
B. Standard of Review
¶ 25 Our review of a district court’s order adopting a magistrate’s
decision is effectively a second layer of appellate review. In re
Marriage of Sheehan, 2022 COA 29, ¶ 22. We must accept the
magistrate’s factual findings unless they are clearly erroneous,
meaning that they have no support in the record. In re Marriage of
Young, 2021 COA 96, ¶ 8.
¶ 26 However, we review de novo questions of law, including
whether the magistrate properly interpreted a statute or applied the
correct legal standard. See Sheehan, ¶ 22; see also Wollert, ¶ 20.
C. Relevant Law
¶ 27 Section 14-10-129(1)(b)(I), commonly referred to as the
endangerment standard, applies to all motions to restrict parenting
time:
The court shall not restrict a parent’s
parenting time rights unless it finds that the
parenting time would endanger the child’s
physical health or significantly impair the
child’s emotional development. In addition to
9
a finding that parenting time would endanger
the child’s physical health or significantly
impair the child’s emotional development, in
any order imposing or continuing a parenting
time restriction, the court shall enumerate the
specific factual findings supporting the
restriction.
(Emphasis added.)
¶ 28 Section 14-10-129(4) allows a parent to obtain a parenting
time restriction on an emergency basis:
A motion to restrict parenting time or parental
contact with a parent which alleges that the
child is in imminent physical or emotional
danger due to the parenting time or contact by
the parent shall be heard and ruled upon by
the court not later than fourteen days after the
day of the filing of the motion. Any parenting
time which occurs during such fourteen-day
period after the filing of such a motion shall be
supervised by an unrelated third party deemed
suitable by the court or by a licensed mental
health professional . . . .
¶ 29 A supervised parenting time requirement is a restriction on
parenting time. See In re Marriage of Parr, 240 P.3d 509, 512 (Colo.
App. 2010).
D. Discussion
¶ 30 For purposes of subsection (4), father defined “imminent” as
“near at hand or impending.” The magistrate rejected his definition:
10
“Imminent” in this context does not connote
any form of immediacy. Rather, it is the
certainty of the harm happening whether it is
days, weeks, or months in the future. [I]t is
not a question of “if” but “when” in this case.
It does not matter if the “when” is an
unspecific sometime in the future.
(Emphasis added.)
¶ 31 Father maintains that because the magistrate used an
inaccurate definition of “imminent,” the magistrate applied an
improper legal standard when deciding mother’s motion to restrict
under subsection (4).2
¶ 32 Mother asserts that the “imminent” standard applies only to
the district court’s initial determination as to whether a motion to
restrict parenting time under subsection (4) meets the particularity
requirement under C.R.C.P. 7(b)(1). See Wollert, ¶ 27 (particularity
2 Mother asserts that by merely citing the magistrate’s decision,
father has not preserved this issue. But the magistrate expressly
denied father’s argument concerning the correct legal standard to
be applied, and father reasserted the same argument in his petition
for district court review. Because the issue was raised before the
magistrate and the district court, it is preserved. See In re Marriage
of Dean, 2017 COA 51, ¶ 18 (issue was preserved when the mother
raised the issue in her petition for district court review). For the
same reasons, we disagree with the dissent’s expansive discussion
of the perceived procedural issues. Whether mother was required
to prove imminent harm was and continues to be central to the
parents’ dispute.
11
requirement of C.R.C.P. 7(b)(1) applies to all motions to restrict
parenting time under section 14-10-129(4), and a hearing is
mandatory within fourteen days if the particularity requirement is
met). In other words, imminence need not be proved at the
emergency hearing, nor is the court required to make a specific
finding of imminence for the court to continue a parenting time
restriction. Rather, it is only relevant as a threshold determination
that entitles the moving party to a hearing. Thus, mother argues,
even if “imminent” was wrongly defined, the magistrate properly
applied the endangerment standard under subsection (1)(b)(I) when
continuing father’s supervised parenting time.
¶ 33 We agree with mother.3
¶ 34 When interpreting a statute, we must find and give effect to
the legislative intent. Wollert, ¶ 20. Our starting point is the
language of the statute itself, giving words and phrases their plain
and ordinary meanings. In re Marriage of Zander, 2019 COA 149,
¶ 12, aff’d, 2021 CO 12; see also § 2-4-101, C.R.S. 2021 (“Words
and phrases shall be read in context and construed according to
3Given our disposition, we do not opine on the propriety of the
magistrate’s definition of “imminent.”
12
the rules of grammar and common usage.”). If the language is
clear, we apply the statute as written without resorting to other
tools of statutory construction. Wollert, ¶ 20.
¶ 35 In interpreting provisions of the Uniform Dissolution of
Marriage Act (UDMA), sections 14-10-101 to -133, C.R.S. 2021, we
do not read the provisions in isolation. In re Marriage of Schlundt,
2021 COA 58, ¶ 27. Rather, we must read the relevant provisions
of the UDMA together, harmonizing them if possible. See id.; see
also In re Marriage of Mack, 2022 CO 17, ¶ 13 (“[W]e examine ‘the
entire statutory scheme to give consistent, harmonious, and
sensible effect to all parts . . . .’” (quoting Vallagio at Inverness
Residential Condo. Ass’n v. Metro. Homes, Inc., 2017 CO 69, ¶ 16)).
¶ 36 The parties do not argue that either subsection (1)(b)(I) or (4) is
ambiguous or that the two conflict. We, too, see neither ambiguity
nor conflict.
¶ 37 Looking at the statutory scheme as a whole, we conclude that
subsections (1)(b)(I) and (4) work together to address motions to
restrict parenting time. See Schlundt, ¶ 27; see also Mack, ¶ 13.
¶ 38 We read the plain language of subsection (1)(b)(I) as applying
to all motions to restrict parenting time, including emergency
13
motions. Under subsection (1)(b)(I), the district court first must find
endangerment and then must make specific findings supporting its
decision to impose or continue a parenting time restriction.
¶ 39 Subsection (4), on the other hand, concerns extraordinary
situations of an “emergency nature” that pose an imminent risk to
the child’s safety. Wollert, ¶¶ 19, 31 (“Section 14-10-129(4)
attempts to accommodate the rights of each parent vis-à-vis
parenting time while prioritizing the rights of children to be safe and
protected from imminent physical or emotional danger.”). To that
end, the legislature, in drafting subsection (4), included the word
“imminent.” See In re Marriage of Bertsch, 97 P.3d 219, 221 (Colo.
App. 2004) (stating that the legislature is presumed to have acted
intentionally when it includes language in one section of a statute,
but omits it from another (citing United States v. Burch, 202 F.3d
1274, 1277 (10th Cir. 2000))).
¶ 40 Subsection (4) plainly states that the moving parent must
allege — not prove — that the child is in imminent physical or
emotional danger due to the parenting time or contact by a parent.
Then, the district court determines whether the moving parent has
sufficiently pleaded allegations -- including whether the danger is
14
threatening to occur at any moment -- requiring the court to take
urgent action by setting an emergency hearing within fourteen
days. See Wollert, ¶ 54 (For purposes of section 14-10-129(4),
“[i]mminence requires that the alleged harm is threatening to occur
at any moment and requires urgent action.”). Upon filing a
sufficient section 14-10-129(4) motion, any parenting time
occurring in that fourteen-day period must be supervised. And,
once a hearing is held on said motion, the court applies subsection
(1)(b)(I)’s general endangerment standard.
¶ 41 We conclude that the plain language of subsection (4) does not
require the movant to prove, at the emergency hearing, that the
child is in imminent danger. Instead, the statute only requires that
a motion allege that the child is in imminent danger; it is a means
of triggering a hearing within fourteen days and an immediate
parenting time restriction pending that hearing.
¶ 42 Our interpretation effectuates the legislative intent and gives
harmonious effect to both subsection (4) and subsection (1)(b)(I).
Specifically, this reading of subsection (4) is supported by two
practical reasons. First, at the time of the emergency hearing, the
automatic, temporary parenting time restriction has already been in
15
place, thereby removing the child from the alleged imminent
danger. An express finding of imminence at that point would be
moot. Second, after the hearing, if the district court finds
endangerment alone (without imminence), father’s interpretation
would force the district court to return the child to the same
dangerous environment. That cannot be what the legislature
intended. See In re Marriage of Turilli, 2021 COA 151, ¶ 38 (courts
must avoid statutory interpretations that would lead to illogical or
absurd results).
¶ 43 Father asserts that our interpretation would encourage “trials
by ambush.” He claims that if the emergency hearing becomes a
“standard modification or restriction proceeding” under subsection
(1)(b)(I), a responding parent would have to defend against the
allegations without the benefit of full discovery under C.R.C.P. 16.2.
We are not persuaded. Our reading of subsection (4) does not
prevent a responding parent from obtaining discovery before the
emergency hearing. Here — where only mother and father testified
and both were aware of the circumstances alleged in mother’s
motion — father never raised a discovery issue, nor did he seek a
continuance. And father cannot say that he was unfairly surprised
16
at the emergency hearing where mother’s motion to restrict
referenced subsection (1)(b)(I).
¶ 44 Nor are we persuaded by father’s other assertion that our
interpretation would create a “tool of gamesmanship.” If a motion
to restrict parenting time lacks substantial justification, the district
court must order the moving parent to pay the reasonable and
necessary attorney fees and costs of the other parent. Wollert, ¶ 29;
see § 14-10-129(5); C.R.C.P. 11.
¶ 45 We now apply the above principles to the present case.
E. Application
¶ 46 After considering father’s response to mother’s motion to
restrict, the magistrate deemed mother’s allegations of imminent
danger to be sufficiently pleaded. As a result, the magistrate set an
emergency hearing within fourteen days and imposed a supervised
parenting time requirement pending the hearing. That approach is
consistent with section 14-10-129(4).
¶ 47 Following the emergency hearing, the magistrate applied the
endangerment standard under section 14-10-129(1)(b)(I) and made
the required factual findings to support the decision to continue
father’s supervised parenting time.
17
¶ 48 The evidence established that J.C.T. sustained several head
injuries while in father’s care from August 2019 to January 2021,
about a week before mother filed her motion to restrict. Mother
testified that none of them were “kid-being-kid” injuries and that
each one was worse than the last. The most recent injury resulted
in J.C.T. suffering a deep laceration on his forehead, down to the
bone, requiring eight stitches. Mother added that father wavered in
his explanation as to how the injury happened. He first said that
J.C.T. hit the corner of a “bed drawer,” then that he tripped over a
dog, and finally that he hit a coffee table.
¶ 49 From that evidence, the magistrate found that father’s pattern
of poor supervision endangered J.C.T. The magistrate also found
that father failed to provide reasonable and adequate explanations
for J.C.T.’s injuries. “[C]redibility determinations and the weight,
probative force, and sufficiency of the evidence, as well as the
inferences and conclusions to be drawn therefrom, are matters
within the sole discretion of the [district] court.” In re Marriage of
Lewis, 66 P.3d 204, 207 (Colo. App. 2003). The record supports the
magistrate’s endangerment finding.
18
¶ 50 Father argues that the magistrate “should not have considered
[mother’s] conclusory statements of concussion.” He did not raise
this particular issue in his petition for district court review. See
People in Interest of K.L-P., 148 P.3d 402, 403 (Colo. App. 2006)
(party appealing a magistrate’s decision must first raise particular
issue in petition for review in district court). But even if it was
preserved, the magistrate found that mother’s evidence was
sufficient, and we see no reason to disturb that determination. See
Lewis, 66 P.3d at 207; see also In re Marriage of Amich, 192 P.3d
422, 424 (Colo. App. 2007) (district court can believe all, part, or
none of a witness’s testimony, even if uncontroverted).
¶ 51 Father also asserts that the magistrate erred by simply finding
that J.C.T. was endangered while in his care, instead of making a
specific finding that he actually committed or caused J.C.T.’s
injuries.4 However, the magistrate found, and the record supports,
4 Father also asserts that the magistrate erred because the
legislature’s inclusion of “due to the parenting time or contact by
the parent” within section 14-10-129(4) required mother, at the
emergency hearing, to prove that he actually caused imminent
danger to J.C.T. We disagree given our disposition that section 14-
10-129(4) is merely a vehicle to obtain an emergency hearing within
fourteen days and a temporary parenting time restriction pending
19
that father’s actions or inactions during his parenting time
endangered J.C.T. See § 14-10-129(1)(b)(I). Indeed, the magistrate
said that the danger to J.C.T. was a result of father’s failure to
exercise a minimum degree of parental supervision.
¶ 52 Because the magistrate made the necessary findings under
section 14-10-129(1)(b)(I), supported by the record, that father
endangered J.C.T., we conclude that the magistrate properly
continued father’s parenting time restriction while allowing father to
work on safer parenting skills. See Young, ¶ 8; see also In re
Marriage of Hatton, 160 P.3d 326, 330 (Colo. App. 2007) (district
court has broad discretion over parenting matters and an appellate
court exercises every presumption in favor of the court’s parenting
time decisions).
¶ 53 In sum, the magistrate applied the correct legal standard in
assessing mother’s motion to restrict, and the record supports the
magistrate’s decision to continue father’s supervised parenting
time.
that hearing. In any event, the endangerment standard requires
proof of causation. See § 14-10-129(1)(b)(I) (“The court shall not
restrict a parent’s parenting time rights unless it finds that the
parenting time would endanger the child[] . . . .”).
20
III. New Evidence
¶ 54 Next, father argues that the district court on review erred “as a
matter of law” by not reopening the proceeding under C.R.M. 7(a)(8)
based on new evidence. He points to a child welfare referral
assessment from the Jefferson County Division of Children, Youth
and Families, which concluded that the referral related to father
was unfounded. He relies solely on Romero v. Colorado Department
of Human Services, 2018 COA 2, ¶ 60, for the proposition that the
district court was required to “defer to an agency’s decision
involving factual and evidentiary matters within an agency’s
specialized or technical expertise.” That reliance is misplaced.
¶ 55 Romero involved an appeal from a district court’s review of a
final agency action. Id. at ¶ 25. The division said that it must defer
to an agency’s decision involving factual and evidentiary matters
within an agency’s specialized or technical expertise. Id. at ¶ 60.
However, the district court here was reviewing a magistrate’s
decision restricting parenting time, and, in that context, it was not
required, as a matter of law, to necessarily defer to an independent
child welfare referral assessment in conducting that review.
21
IV. Appellate Attorney Fees
¶ 56 Asserting that the parties’ financial resources are disparate,
mother asks for an award of her appellate attorney fees under
section 14-10-119.
¶ 57 In response, father argues that section 14-10-119 is
inapplicable because mother’s “action did not modify the original
decree.” He latches onto the following language in In re Marriage of
Burns, 717 P.2d 991, 993 (Colo. App. 1985): “[B]ecause the original
decree remained in force, there were no proceedings to which
[section] 14-10-119 . . . would be applicable.” Yet, when read in
context, the division in Burns concluded that the wife could not
recover any attorney fees under section 14-10-119 because her
C.R.C.P. 60(b) motion was outside the UDMA and did not result in
reopening the dissolution decree. Here, mother’s motion to restrict
was a proceeding under the UDMA, so section 14-10-119 applies.
See § 14-10-119 (court “from time to time” can order fees for
defending “any proceeding” brought under the UDMA).
¶ 58 That said, because the district court is better equipped to
resolve the factual issues concerning the parties’ current financial
22
circumstances, we remand the issue for its consideration. See In re
Marriage of Alvis, 2019 COA 97, ¶ 30; C.A.R. 39.1.
V. Conclusion
¶ 59 The order is affirmed. The case is remanded for the district
court to consider mother’s request for appellate attorney fees under
section 14-10-119.
JUDGE GOMEZ concurs.
JUDGE TAUBMAN dissents.
23
JUDGE TAUBMAN, dissenting.
¶ 60 I agree with the majority that the principal issue in this case is
the interplay between subsections (1) and (4) of section 14-10-129,
C.R.S. 2021, concerning what a party must allege and prove at an
emergency hearing under the latter subsection. As the majority
notes, subsection (1)(b)(I) applies to motions to restrict parenting
time, whereas subsection (4) concerns motions to restrict parenting
time that allege a child is in “imminent physical or emotional
danger” due to the exercise of parenting time. Subsection (4)
requires that a motion filed under that subsection must be heard
and ruled on by the court no later than fourteen days after the date
such a motion is filed, but subsection (1)(b)(I) does not contain any
temporal requirements.
¶ 61 I disagree with the majority that, when a motion is filed under
subsection (4), a moving party must only allege, rather than prove,
imminent harm to a child, and I further disagree that imminent
harm was sufficiently alleged in this case. In addition, I think this
case raises significant procedural questions, including whether the
majority’s statutory analysis was raised before the magistrate and
the district court. Accordingly, for the reasons more fully discussed
24
below, I would reverse the district court’s order and the magistrate’s
order.
I. Background
¶ 62 Because the majority provides a detailed explanation of the
relevant facts and procedural history, I will add to it only briefly.
This is a contentious post-dissolution conflict between James M.
Thorburn (father) and Danielle Jeanette Thorburn (mother)
concerning their young son, born in 2018. The parties agreed that
mother would be the child’s primary residential parent and that
father would follow a step-up parenting time schedule.
¶ 63 Just one year after their dissolution of marriage became final
in February 2020, mother moved for an emergency hearing
regarding parenting time under subsection (4) on February 1, 2021.
She alleged that she was concerned about five incidents that had
occurred during father’s parenting time, including one the weekend
before the motion was filed that resulted in a one-and-a-half-inch
gash on her son’s forehead and father taking their son to a hospital
emergency room to be treated. Mother alleged that “father is
neglecting the child at his home and the child is therefore getting
injured while father is failing to watch him.” She further asserted
25
that father was not appropriately supervising their son during his
parenting time.
¶ 64 Although the motion cited subsections (1)(b)(I) and (4), it did
not allege that the son was in imminent physical or emotional
danger. Further, the motion did not explain how mother believed
those subsections relate to one another.
¶ 65 Following an emergency hearing on February 9, 2021, a
magistrate issued a signed minute order granting mother’s
requested relief, requiring father’s parenting time to be supervised,
and requiring him to complete parenting classes. The magistrate
found that physical harm or injury to the son was imminent while
in father’s care due to lack of proper supervision, even though he
found that father had not intentionally harmed the son. Although
the magistrate cited subsections (1)(b)(I) and (4), he did not address
how, if at all, those subsections relate to one another. The order
also directed mother’s attorney to draft a proposed order.
¶ 66 Seventeen days later, on February 26, the magistrate signed a
more extensive order prepared by father’s attorney. (That the
magistrate signed this order, instead of one drafted by mother’s
attorney, raises procedural issues that I discuss below.)
26
Significantly, this order did not cite section 14-10-129(1)(b)(I) and
concluded that “the moving party [mother] cannot utilize the
emergency measures to seek the more generalized grounds of
parenting restriction.” It further concluded that mother “did not
bring any evidence of specific acts or omissions by [father] that
would lead to imminent physical or emotional danger.” The
magistrate also found that the son’s five injuries were unusual and
would not have occurred if father had properly supervised the son.
It also determined that the son experienced “three serious
concussions at the hands of” father.
¶ 67 Finally, the court rejected father’s assertion that to be
imminent, there must be a showing that the alleged harm is near or
impending. This is another subject I discuss below.
¶ 68 Nearly three months later, the district court affirmed the
magistrate’s order. It concluded that the magistrate’s February 9
signed minute order “was not a final order or judgment subject to
review.” Therefore, the district court reviewed only the magistrate’s
February 26 order, finding that the order restricting father’s
parenting time was supported by ample evidence. Recognizing the
dispute about whether the magistrate had properly signed father’s
27
proposed order, the district court remanded the case to the
magistrate to address the parties’ motions concerning the form of
the order.
¶ 69 Significantly, the district’s order referred only to mother’s
motion under section 14-10-129 to restrict father’s parenting time
but did not cite the two subsections at issue here or say how, if at
all, they relate to one another.
II. Procedural Issues
¶ 70 In my view, three procedural issues militate in favor of
vacating the decisions of the district court and magistrate and
remanding the case for further proceedings, if necessary. First, I do
not believe the majority’s conclusion that mother properly preserved
for appellate review the argument that subsection (1)(b)(I) applies
automatically to all motions to restrict parenting time under
subsection (4) because this argument was not raised by mother
until this appeal. Second, the magistrate’s signing both a minute
order and a more comprehensive order raises issues of finality
beyond those addressed by the majority. Third, because I believe
the magistrate’s oral ruling and written order conflict, I disagree
28
with the majority that we may consider the magistrate’s oral ruling.
I discuss each of these issues in turn.
A. Was the Issue of the Relationship Between Subsections (1)(b)(I)
and (4) Preserved for Appeal?
¶ 71 A cardinal rule of appellate procedure is that, subject to a few
exceptions not relevant here, an appellate court will not review an
issue raised for the first time on appeal. Est. of Stevenson v.
Hollywood Bar & Cafe, Inc., 832 P.2d 718, 721 n.5 (Colo. 1992);
Gravina Siding & Windows Co. v. Gravina, 2022 COA 50, ¶ 85, ___
P.3d ___, ___.
¶ 72 Here, mother’s motion to restrict parenting time “pursuant to
C.R.S. section 14-10-129(4)” cited that subsection and subsection
(1), but did not explain how subsection (1)(b)(I) applied, nor did it
assert that a party need allege, but not prove, imminent harm
under subsection (4). The magistrate’s February 9 minute order
cited both subsections, finding that the son was in imminent harm
or injury due to father’s lack of supervision. However, it did not
address, as the majority does, whether subsection (1)(b)(I) applies to
all motions to restrict parenting time, including those filed under
subsection (4), and did not address whether a parent must allege,
29
but need not prove, that a child is in imminent physical or
emotional harm due to the actions of a parent exercising parenting
time. While the magistrate’s oral ruling announced following the
February 9 hearing briefly mentioned the applicability of subsection
(1)(b)(I), that ruling should not be given any weight because it
conflicts with both its February 9 minute order and its February 26
written order, an issue I discuss below. Significantly, the
magistrate’s February 26 order (prepared by father) does not cite
subsection (1)(b)(I). With respect to subsection (4), that order states
that mother “did not bring any evidence of specific acts or
omissions by [father] that would lead to imminent physical or
emotional danger.”
¶ 73 Mother’s response to father’s motion to review the magistrate’s
February 26 decision did not mention subsection (1)(b)(I). Rather, it
cited only subsection (4) and focused on the evidence of imminent
harm that she had presented to the magistrate. It did not address
that the February 26 order did not mention subsection (1)(b)(I).
Further, mother’s response contended that the magistrate’s
February 9 minute order was a final order under C.R.M. 7. As
noted above, the district court’s decision reviewing the magistrate’s
30
February 26 order referred only to father’s motion based on section
14-10-129; it did not mention subsection (1)(b)(I) or (4) or their
relation to one another, and it did not assert that a party must
allege, but not prove, imminent harm under subsection (4).
¶ 74 In short, the two premises of the majority opinion — that
subsection (1)(b)(I) applies automatically to any motion filed under
subsection (4) and that a party must allege, but need not prove,
imminent harm under subsection (4) — were not raised as issues by
mother before the magistrate or the district court. The district
court did not address these issues at all, and, to the extent the
magistrate did, he did so in an oral ruling that is contradicted by
his written decisions. Accordingly, I believe these issues discussed
by the majority were not properly preserved for appeal and,
therefore, should not be addressed. See Est. of Stevenson, 832 P.2d
at 721 n.5.
B. Is There a Final, Appealable Order?
¶ 75 The majority rejects mother’s contention that the district
court’s order is not final and appealable because the district court
remanded the case to the magistrate to determine whether father’s
31
or mother’s proposed order should have been signed. It concludes
that the magistrate’s February 26 order was final and appealable
because the district court lacked authority under C.R.M. 7 to
remand the case to the magistrate to answer this question. I agree
with mother, albeit for different reasons.
¶ 76 The majority properly notes that, generally, our appellate
jurisdiction is limited to review of final judgments or orders. See In
re Marriage of Evans, 2021 COA 141, ¶ 11, 504 P.3d 988, ___.
¶ 77 Subsection (4) states, as relevant here, that a motion filed
under that subsection “shall be heard and ruled upon by the court
not later than fourteen days after the day of the filing of the
motion.” § 14-10-129(4). The district court concluded that the
magistrate’s signed minute order was arguably a final order subject
to review under C.R.M. 7(a)(3). It was heard and ruled on within
fourteen days of the filing of the February 1 motion. However, the
district court concluded that the signed minute order “was not a
final order or judgment subject to review.” In my view, the signed
minute order was not final and appealable because it contemplated
the preparation of an order prepared by mother’s attorney. In any
event, the February 9 order was not appealed.
32
¶ 78 Instead, the February 26 order appealed from was ruled on
twenty-five days after mother’s motion was filed, making it untimely
under subsection (4). Although the parties did not raise this
timeliness issue before the magistrate, I conclude it constitutes
reversible error. In People in Interest of Clinton, 762 P.2d 1381(Colo. 1988), the supreme court concluded that failure to comply
with a statutory requirement for appointing counsel forthwith in a
mental health civil commitment proceeding did not deprive the
court of subject matter jurisdiction. Nevertheless, the court
concluded that failure to comply with “an essential statutory
condition” may constitute reversible error. Id. at 1389. The court
explained that this requires an evaluation of the deviation from
statutory provisions and whether such deviation resulted in
prejudice to a party. Id. In In re Marriage of Slowinski, 199 P.3d 48,
52-53 (Colo. App. 2008), overruled on other grounds by In re
Marriage of Wollert, 2020 CO 47, ¶ 4, 464 P.3d 703, 706, a division
of the court of appeals held that the then seven-day limitation (now
fourteen days) to hold a hearing and issue a ruling under section
14-10-129(4) was an essential condition of the statute. It further
held that not abiding by the limitation in that case had prejudiced
33
the father, who had to experience several months of supervised
visitation. Id. I conclude that the magistrate’s February 26 order
did not comply with an essential condition of the statute — ruling
on a motion under section 14-10-129(4) within fourteen days. I
further conclude that this constitutes reversible error because it
limited father’s constitutional right to the care, custody, and control
of his son while he was limited to supervised visitation.
¶ 79 Some may conclude that because subsection (1)(b)(I) applies
automatically to any motion filed under subsection (4), the time
limitation in subsection (4) does not apply. Reaching this
conclusion, however, requires rendering the time limit in subsection
(4) a nullity; under the majority’s rationale, the time limit in
subsection (4) would never apply. See Slowinski, 199 P.3d at 53(“[W]e are not persuaded that father waived his objection to the
court’s failure to rule within seven days [under the previous version
of subsection (4)] by participating in the hearings on mother’s
motion because the trial court indicated that it was proceeding
under both” subsections (1)(b)(I) and (4).).
¶ 80 Accordingly, I would reverse the district court’s order because
this appeal is from the magistrate’s untimely February 26 decision.
34
I would similarly vacate the magistrate’s February 26 order for the
reasons discussed above. Further, I would also vacate the
magistrate’s February 9 order because I agree with the district court
that it was not a final, appealable order. By its terms, it directed
mother’s attorney to draft a proposed order, and a further order was
not signed until February 26, well beyond the fourteen days
required by section 14-10-129(4).
C. May We Consider the Magistrate’s Oral Ruling?
¶ 81 I respectfully disagree with the majority’s conclusion that we
may view the magistrate’s oral ruling as supplementing his written
minute order. There are two problems with this conclusion. First,
this appeal concerns the magistrate’s February 26 decision, not his
February 9 minute order or the oral ruling accompanying it.
Second, the magistrate’s February 26 ruling does not supplement
his February 9 oral ruling; it conflicts with it. As noted, the
February 9 oral ruling briefly discusses the applicability of
subsection (1)(b)(I), but the February 26 written decision does not
cite that subsection, much less discuss it.
¶ 82 This issue is significant because the majority relies on the
magistrate’s oral ruling to explain its analysis that mother’s motion
35
embraced both subsections (1)(b)(I) and (4). However, if the
magistrate’s oral ruling is not considered, we are reviewing only the
magistrate’s February 26 written decision, which does not mention
subsection (1)(b)(I), and the district court’s decision, which only
cites generally to section 14-10-129.
¶ 83 Generally, a written order prevails over a conflicting oral
ruling. People in Interest of S.R.N.J-S., 2020 COA 12, ¶ 16, 486 P.3d
1201, 1205; Thyssenkrupp Safway, Inc. v. Hyland Hills Parks &
Recreation Dist., 271 P.3d 587, 589 (Colo. App. 2011). Thus, the
magistrate’s February 26 written ruling is what we are reviewing on
appeal in part, not the magistrate’s February 9 written minute order
or his oral ruling accompanying it.
¶ 84 Further, the case on which the majority relies in concluding
that the magistrate’s oral ruling supplements the written order is
distinguishable. In Friends of Denver Parks, Inc. v. City & County of
Denver, 2013 COA 177, ¶¶ 34-37, 327 P.3d 311, 316, a division of
this court concluded that a district court’s oral ruling on a
preliminary injunction satisfactorily supplemented the court’s
written ruling. However, the division did not address the rule that a
36
written order generally prevails over a conflicting oral ruling, and,
thus, the division’s holding is inapplicable here.
¶ 85 Accordingly, I would conclude that we should not consider the
magistrate’s oral ruling.
III. The Merits
¶ 86 Even if I assume that these procedural issues do not warrant
vacating the district court’s decision or dismissing this appeal, I
disagree with the majority’s statutory interpretation. Specifically, I
do not agree with the majority’s conclusions that (1) when a motion
is filed under subsection (4), the movant must allege but need not
prove imminent harm to a child; and (2) if a motion sufficiently
alleges imminent harm, the court applies subsection (1)(b)(I)’s
general endangerment standard. After setting forth the standard of
review and applicable law, I will discuss each issue in turn.
A. Standard of Review and Applicable Law
¶ 87 I agree with the majority that we must accept the magistrate’s
factual findings unless they are clearly erroneous. In re Marriage of
Young, 2021 COA 96, ¶ 8, 497 P.3d 524, 528.
¶ 88 However, the interpretation of a statute is an issue of law that
we review de novo. In re Marriage of Wollert, ¶ 20, 464 P.3d at 709.
37
When interpreting a statute, we must find and give effect to the
legislative intent. Id. To ascertain the legislative intent, we look
first to the language of the statute, giving words and phrases their
plain and ordinary meanings. Id.; § 2-4-101, C.R.S. 2021 (“Words
and phrase shall be read in context and construed according to the
rules of grammar and common usage.”). If the language is clear, we
apply the statute as written without resorting to other tools of
statutory construction. In re Marriage of Wollert, ¶ 20, 464 P.3d at
709.
¶ 89 Mother’s motion was filed under subsection (4) of section 14-
10-129, which provides in relevant part as follows:
A motion to restrict parenting time or parental
contact with a parent which alleges that the
child is in imminent physical or emotional
danger due to the parenting time or contact by
the parent shall be heard and ruled upon by
the court not later than fourteen days after the
day of the filing of the motion.
¶ 90 Subsection (1)(b)(I), referred to as the endangerment standard,
states,
The court shall not restrict a parent’s
parenting time rights unless it finds that the
parenting time would endanger the child’s
physical health or significantly impair the
child’s emotional development. In addition to
38
a finding that parenting time would endanger
the child’s physical health or significantly
impair the child’s emotional development, in
any order imposing or continuing a parenting
time restriction, the court shall enumerate the
specific factual findings supporting the
restriction.
B. Is Proof of Imminent Harm Necessary?
¶ 91 Father contends that the magistrate used an incorrect
definition of “imminent” when restricting his parenting time under
subsection (4). I agree.
¶ 92 Imminent has been defined as “threatening to occur
immediately” or “[a]bout to take place.” Black’s Law Dictionary 898
(11th ed. 2019). Similarly, that dictionary defines “immediate” as
“[o]ccurring without delay; instant.” Id. at 897.
¶ 93 In contrast, the magistrate applied a definition of imminent
that is contrary to the word’s plain meaning. He explained,
“Imminent” in this context does not connote
any form of immediacy. Rather, it is the
certainty of the harm happening whether it is
days, weeks, or months in the future. It is not
a question of “if” but “when” in this case. It
does not matter if the “when” is an unspecific
sometime in the future.
¶ 94 By defining “imminent” without any notion of immediacy, the
magistrate paraphrased the definition of “endanger,” the term used
39
in subsection (1)(b)(I). Endanger means “to bring into danger or
peril” or “to create a dangerous situation.” Merriam-Webster
Dictionary, https://perma.cc/AK8Z-RZUS. Merriam-Webster’s
examples illustrate the difference between “endanger” and
“imminent.” One example states, “[p]arents feared that the dog
could endanger their children.” Id. The other example says, “[t]he
severe drought has endangered crops throughout the area.” Id.
Both examples illustrate situations where potential danger exists
but is not likely to occur immediately.
¶ 95 Consequently, a situation that endangers reasonably causes
concern, but it does not involve a danger expected to occur
instantly. Because the magistrate used an incorrect definition of
“imminent harm,” I conclude that he improperly restricted father’s
parenting time.
C. The Relationship Between Subsections (1)(b)(1) and (4)
¶ 96 This difference in terms is crucial to understanding the
relationship between subsections (1)(b)(I) and (4) for several
reasons. First, to the extent the majority is correct in asserting that
a movant must allege, but need not prove, that a child is in
imminent danger in a motion brought under subsection (4),
40
employing an incorrect definition of “imminent” necessarily results
in a flawed conclusion regarding the sufficiency of the motion’s
allegations. Here, for example, mother alleged that the son had
been subject to several head injuries during an eighteen-month
period. She did not allege that the son was in imminent physical
danger.
¶ 97 Second, subsection (4) presumes that a court must find that
an existing parenting time order would place a child in imminent
physical or emotional danger. Otherwise, any parent, especially one
involved in a longstanding, post-dissolution of marriage conflict,
could easily curtail the other parent’s parenting time by simply
alleging imminent harm. The requirement that a court must
impose attorney fees and costs under subsection (5) against a
parent who files a frivolous motion to restrict parenting time would
not necessarily discourage this practice because contentious, post-
dissolution disputes seldom involve black-and-white issues.
¶ 98 Third, subsection (4) makes no reference to subsection (1)(b)(I),
and that section makes no reference to subsection (4). If the
General Assembly had intended all motions filed under subsection
(4) with sufficient particularity to automatically trigger the
41
application of subsection (1)(b)(I), it would have said so. Instead,
the language in subsection (1)(b)(I) requiring the court to enumerate
its specific factual findings “in any order imposing or continuing a
parenting time restriction” must be construed together with the first
part of that sentence, which applies “[i]n addition to a finding that
parenting time would endanger the child’s physical health or
significantly impair the child’s emotional development.” § 14-10-
129(1)(b)(I). The latter phrase, of course, is the standard applicable
to motions brought under subsection (1)(b)(I), not those under
subsection (4).
¶ 99 I do not agree that an express finding of imminence would be
moot when the court holds a hearing under subsection (4) because
a temporary parenting time restriction has already been in place. If
a court were to conclude that the moving parent had not
established imminent harm, an express finding of lack of
imminence would not be moot but would result in the denial of the
motion.
¶ 100 Contrary to the majority’s concern that a court’s finding of
endangerment without imminence would force the court to return a
child to a dangerous situation, that circumstance would not occur
42
under my reading of the statutory scheme. Rather, at a hearing on
a motion filed under subsection (4), the court would only determine
whether a child is subject to “imminent physical or emotional
danger.” If this standard is not met, the court could determine
whether the endangerment standard had been met under a
previously or subsequently filed motion. The latter motion would
not need to be heard and ruled on within fourteen days of the date
of its filing, and it would allow the parties to undertake discovery
and call more witnesses than would be possible when an emergency
hearing is scheduled under subsection (4). Here, for example,
father presented in his petition for review to the district court a
Department of Human Services report concluding that mother’s
allegations were unfounded. Because this report was not issued
until nine days after the emergency hearing, father could not
present it then, and, subsequently, the district court declined to
consider it. Had mother filed a motion under subsection (1)(b)(I),
father could have called the author of the report and sought to
refute any allegations of endangerment proffered by mother.
¶ 101 The supreme court’s recent decision in In re Marriage of
Wollert does not require a contrary conclusion. There, the supreme
43
court addressed when a motion to restrict parenting time under
subsection (4) requires a hearing to be held within fourteen days of
the filing of the motion. In re Marriage of Wollert, ¶ 2, 464 P.3d at
706. Overruling Slowinski, 199 P.3d 48, in part, the court held that
the particularity requirement of C.R.C.P. 7(b)(1) is the proper
standard to review a motion under subsection (4). Id. at ¶ 4, 464
P.3d at 706. Although In re Marriage of Wollert concerned a
disputatious dissolution of marriage case that had been active for
fourteen years, the supreme court nevertheless concluded that the
allegations of the subsection (4) motion were sufficient, relying on
an allegation in the motion that a therapist had opined that the
child there was in “imminent psychological and emotional danger.”
Id. at ¶ 35, 464 P.3d at 712. Here, in contrast, mother’s motion
contained no allegation of imminent physical or emotional danger.
¶ 102 While the supreme court stated that subsection (4) “requires a
party to allege, not prove, imminent physical or emotional danger,”
id. at ¶ 36, 464 P.3d at 712, that statement is clearly dicta because
the supreme court only ruled on the standard needed to trigger a
hearing under subsection (4). See People v. Stellabotte, 2018 CO
4466, ¶ 28, 421 P.3d 174, 179-80 (statements that are dicta do not
govern in a subsequent case).
IV. Conclusion
¶ 103 For both the procedural and substantive reasons stated above,
I would reverse the district court’s order.
45