23CA1518 Marriage of Weathers 07-03-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA1518
Mesa County District Court No. 21DR210
Honorable Gretchen B. Larson, Judge
In re the Marriage of
Elizabeth Eileen Weathers, n/k/a Elizabeth Eileen Kruger,
Appellee,
and
Dusten Ray Weathers,
Appellant.
ORDER REVERSED AND CASE
REMANDED WITH DIRECTIONS
Division III
Opinion by JUDGE YUN
Dunn and Moultrie, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced July 3, 2024
Elizabeth Eileen Weathers, n/k/a Elizabeth Eileen Kruger, Pro Se
Knies, Helland & McPherson Law, Kelly J. McPherson, Colorado Springs,
Colorado, for Appellant
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¶ 1 In this post-dissolution of marriage proceeding involving
Dusten Ray Weathers (father) and Elizabeth Eileen Weathers, now
known as Elizabeth Eileen Kruger (mother), father appeals the
district court’s affirmance of a magistrate’s parenting time
restriction order. The order suspended all parenting time between
father and his three children while he attended individual therapy
and provided for a graduated parenting plan moving forward. He
contends that the court (1) unreasonably limited his parenting time
and (2) impermissibly delegated parenting time decisions. Because
we agree that the delegation of parenting time decisions was
improper, we reverse the order and remand the case to the district
court for further proceedings.
I. Background
¶ 2 In 2017, a court in Alabama dissolved the parties’ marriage.
Under a settlement agreement, mother had primary physical
custody of the parties’ three children and the parties agreed that
mother and the children would move to Colorado at the end of the
school year. Father exercised parenting time at his home on the
east coast during alternating spring breaks and holidays and each
summer.
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¶ 3 In 2021, mother moved to restrict father’s parenting time,
asserting that the children were experiencing extreme anxiety about
visiting father for the summer based on experiences they had while
in his custody. The district court denied mother’s motion, finding
no imminent emotional danger to the children if father had
parenting time. However, it noted that the older children were
credible in their account about a 2019 incident where father lost
emotional control and found that the parenting plan may not be in
the children’s best interests until father was better able to meet the
children’s needs.
¶ 4 Mother then moved to modify parenting time. The district
court appointed a child family investigator (CFI) under section
14-10-116.5, C.R.S. 2023. In the meantime, father relocated to
Colorado and the parties agreed to a graduated parenting plan over
the course of three months, culminating in 50-50 parenting time.
About a week before the scheduled hearing on mother’s motion to
modify parenting time, she again moved to restrict father’s
parenting time, alleging that the children were experiencing panic
attacks and suicidal ideation at the thought of returning to father’s
care. The court granted the motion to restrict on an emergency
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basis. After a three-day hearing, a magistrate granted mother’s
motion to modify and restrict parenting time and entered her
proposed parenting plan, modeled closely on the CFI’s
recommendations, which stopped visits for a time and provided for
gradual increases of parenting time as certain milestones were met.
¶ 5 Specifically, the parenting plan required that father engage in
mental health treatment weekly for a minimum of six months before
the commencement of any parenting time or contact with the
children. Following the completion of six months of individual
therapy, the parenting plan required “therapeutic parenting
time/family therapy” with all three children for a minimum of three
months. Then, father could resume parenting time in five gradual
“phases” starting with one mid-week evening visit every other week
and culminating in a week-on/week-off, equal parenting time
arrangement. The plan required that mother and father agree to
move to the next phase after consultation with father’s individual
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therapist,
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the children’s individual therapist, and a family
therapist.
¶ 6 Further, the parenting plan provided that the oldest child, who
was fifteen at the time of the order, should not be expected to
progress past Phase 2, which allowed for one mid-week visit per
month and one weekend visit per month. And it allowed the oldest
child to “decide for herself how much, if any, involvement she
wants” with father after she turns sixteen. Similarly, the parenting
plan provided that the middle child, who was nearly thirteen at the
time of the order, should not be pushed to advance past Phase 4,
which allowed extended weekend visits with father every other
week. And, once she reached sixteen, she could decide to reduce
time with father to Phase 3, which allowed for weekend visits every
other week.
¶ 7 Father petitioned the district court for review of the
magistrate’s decision. The district court affirmed the magistrate’s
order.
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The CFI recommended that father engage in individual therapy
with a clinician who specializes in “[domestic violence], child abuse,
empathy training and emotional regulation.”
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II. Law and Standard of Review
¶ 8 Reasonable parenting time is mandated, and parenting time
rights may not be unduly restricted unless the district court finds
that exercising these rights would endanger the children’s physical
health or significantly impair their emotional development. See
§ 14-10-124(1.5)(a), C.R.S. 2023; see also § 14-10-129(1)(b)(I),
2002). And “in any order imposing or continuing a parenting time
restriction, the court shall enumerate the specific factual findings
supporting the restriction . . . .” § 14-10-124(1.5)(a); see
§ 14-10-129(1)((b)(I).
¶ 9 Further, the parental responsibilities statutes “require[] that
the trial court itself make decisions regarding parenting time, and
[the court] may not delegate this function..” In re D.R.V-A.,
976 P.2d 881, 884 (Colo. App. 1999) (reversing delegation to
guardian ad litem and family therapist); see § 14-10-124(1.5)(a); see
also In re Marriage of Elmer, 936 P.2d 617, 621 (Colo. App. 1997)
(concluding that a court has no authority to delegate to the child’s
psychiatrist the decision when overnight parenting time visits can
occur); In re Marriage of Hatton, 160 P.3d 326, 334 (Colo. App.
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2007) (reversing order delegating to a parent decisions regarding the
other parent’s parenting time).
¶ 10 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. The determination of
parenting time is a matter within the district court’s sound
discretion, taking into consideration the children’s best interests
and the policy of encouraging the parent-child relationship. Hatton,
160 P.3d at 330. A district court abuses its discretion when it acts
in a manifestly arbitrary, unfair, or unreasonable manner. Id.
III. Restricting Father’s Parenting Time
¶ 11 Father first argues that the magistrate abused its discretion by
restricting his parenting time. He asserts that ample evidence
established that his parenting time did not significantly impair the
children’s emotional development. Because this issue is not
properly preserved, we may not consider it for the first time on
appeal.
¶ 12 A party appealing from a magistrate’s order must present a
particular issue in his petition for review in the district court and
give that court an opportunity to correct any error before the issue
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403 (Colo. App. 2006); see also C.R.M. 7(a)(7) (a petition for review
shall state with particularity the alleged errors in the magistrate’s
order).
¶ 13 Father’s petition for review raised only one issue — whether
the magistrate improperly delegated parenting time decisions to
mother, the children’s therapist, and the children themselves. He
did not challenge the magistrate’s finding that parenting time with
him impaired the children’s emotional development or argue that
the magistrate abused his discretion by reducing his parenting
time. Accordingly, we cannot review this contention on appeal. See
Estate of Stevenson v. Hollywood Bar & Café, Inc., 832 P.2d 718
(Colo. 1992) (arguments never presented to, considered by, or ruled
upon by a trial court may not be raised for the first time on appeal).
IV. Delegating Parenting Time Decisions
¶ 14 Father also argues that the magistrate’s order impermissibly
delegated parenting time decisions to the children’s therapist,
mother, and the children themselves. Although the parenting order
requires only consultation with the therapists for father, the
children, and the family — not their agreement — the parenting
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time order must be reversed because it improperly delegates
parenting time decisions to mother and, in certain circumstances,
to the children themselves. See In re Parental Responsibilities
Concerning B.J., 242 P.3d 1128, 1133 (Colo. 2010) (“Only the court
has the authority to allocate parenting time . . . .”).
¶ 15 Mother argues on appeal that the delegation was permissible
because nothing in the record indicated that she would
unreasonably withhold her permission to move on to the next
phase. The district court also noted that the record did not support
an assumption that mother would never agree to move from one
phase to another. While that may be true, mother provides no
authority, nor are we aware of any, that permits the court to
delegate parenting time decisions to another parent even if that
parent appears reasonable.
¶ 16 Nor are we convinced by mother’s argument that the court was
required to delegate decision making to the children because it had
to consider their wishes under the best interests standard of section
14-10-124(1.5)(a)(II). We agree that the children’s wishes — if the
children are sufficiently mature to express reasoned and
independent preferences — are a factor for the court to consider.
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But nothing allows, let alone requires, a court to acquiesce to a
child’s preference to discontinue or reduce parenting time entirely.
¶ 17 We acknowledge the dilemma that the court faces if the
children are unwilling to participate in parenting time with father.
However, the court must craft a parenting time order that does not
delegate the parenting time decisions to mother or the children.
See Hatton, 160 P.3d at 333-34. The court must consider
alternatives, other than giving the children discretion to refuse or
reduce parenting time, that will preserve parenting time rights for
father while also recognizing that the children are approaching
adulthood. See id.
¶ 18 Because it may occur again on remand, we also consider
father’s challenge to the parenting time provision that states that,
“[t]o eliminate any concerns about emotional safety, no child should
begin a new parenting phase without at least one other sibling
present in Phases 1-3.” Father argues that this provision
unreasonably restricts his parenting time with the youngest child,
who did not have the same anxiety and negative reaction to
parenting time with father. We agree that the order does not
sufficiently explain why this provision was necessary to ensure the
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emotional safety of all the children and, on remand, this provision
should be reconsidered. If it is retained, the court must make
specific findings supported by the record explaining why.
¶ 19 Accordingly, we remand the matter to the district court for
further proceedings. On remand, the court should give the parties
an opportunity to present any new evidence concerning the current
circumstances of the parties and the children. See In re Parental
Responsibilities Concerning B.R.D., 2012 COA 63, ¶ 43.
V. Disposition
¶ 20 The order is reversed and the case remanded for further
proceedings.
JUDGE DUNN and JUDGE MOULTRIE concur.
