20CA1525 Parental Resp Conc CRD 11-10-2021
COLORADO COURT OF APPEALS
Court of Appeals Nos. 20CA1525 & 20CA1774
Larimer County District Court Nos. 10JV7 & 19DR275
Honorable Gregory M. Lammons, Judge
In re the Parental Responsibilities Concerning C.R.D., a Child,
and Concerning Christopher Keller,
Appellee,
and
Juliane Dawson,
Appellant.
ORDERS AFFIRMED AND APPEAL
DISMISSED IN PART
Division VII
Opinion by JUDGE GROVE
Navarro and Pawar, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced November 10, 2021
No Appearance for Appellee
Juliane Dawson, Pro Se
1
¶ 1 In this post-decree allocation of parental responsibilities case,
Juliane Dawson (mother) appeals the district court orders that (1)
modified the parties’ payment procedures for extracurricular
activities; (2) imposed a punitive contempt sanction against mother;
and (3) imposed a punitive contempt sanction against Christopher
Keller (father). We affirm the first two orders and, to the extent that
mother requests we review father’s contempt sanction, dismiss that
portion of mother’s appeal.
I. Extracurricular Activities Order
A. Relevant Facts
¶ 2 In 2010, the parties executed an agreement for the allocation
of parental responsibilities concerning their child, C.R.D. As
relevant here, the parties agreed that mother could enroll the child
in two extracurricular activities at a time and that each party would
pay half of the activities’ costs directly to the organization
sponsoring the activity. The district court incorporated the parties’
agreement in its allocation of parental responsibilities order.
¶ 3 In 2015, the parties began fighting over each other’s
compliance with the order on extracurricular activities, including
disputes concerning father’s payment for the child’s extracurricular
2
activities and mother’s notifications about the activities. During
their continuous litigation, the court reaffirmed the parties’
obligation to share the costs for the child’s two extracurricular
activities and required mother to provide father with specific
information concerning the child’s activities, including registration
and payment information for each sponsoring organization. In
2017 and 2018, the court twice found father in contempt for not
paying his share of the extracurricular activities’ expenses, and it
imposed a jail sentence as a punitive sanction.
¶ 4 In 2020, father filed a motion for contempt against mother,
alleging that she had not complied with the notification
requirements under the extracurricular activities order. In addition
to addressing the contempt motion, the court notified the parties
that it was considering a change to the payment and notification
provisions under the extracurricular activities order to reduce the
conflict between them. It invited the parties to present evidence on
how the order should be modified.
¶ 5 After a hearing, the district court denied father’s contempt
motion, but it issued an order that modified the payment and
notification provisions for extracurricular activities. In particular,
3
the court ordered father to pay mother $600 per year for his share
of the costs, and it ordered mother to provide father with
information on when and where the child had activities.
¶ 6 Mother then filed a motion for the court to clarify its authority
to modify the order on extracurricular activities and a motion to
reconsider its ruling. The court denied both motions.
B. Standard of Review
¶ 7 Expenses for extracurricular activities may be included in a
parent’s child support obligation. See In re Marriage of West, 94
P.3d 1248, 1252 (Colo. App. 2004); In re Marriage of Laughlin, 932
P.2d 858, 862 (Colo. App. 1997).
¶ 8 We review orders on child support for an abuse of discretion.
In re Marriage of Davis, 252 P.3d 530, 533 (Colo. App. 2011). A
court abuses its discretion when its decision is manifestly arbitrary,
unfair, or unreasonable, or a misapplication of the law. In re
Marriage of Herold, 2021 COA 16, ¶ 5. We accept the court’s
factual findings unless they are clearly erroneous and review de
novo its application of the law. See In re Marriage of Connerton, 260
P.3d 62, 66 (Colo. App. 2010); In re Marriage of Atencio, 47 P.3d
718, 720 (Colo. App. 2002).
4
C. The District Court’s Authority
¶ 9 Mother contends that the district court lacked the legal
authority to change the parties’ “[s]tipulation” on payments for
extracurricular activities. We disagree.
¶ 10 “It is well established that a court retains continuing
jurisdiction over the support of minor children,” including the
authority to modify its orders for support. In re Marriage of Chalat,
112 P.3d 47, 53 (Colo. 2005); see also In re Marriage of Rivera, 91
P.3d 464, 466 (Colo. App. 2004) (noting that a court has “equitable
authority to set aside or reduce a support judgment in
circumstances that would render its enforcement fundamentally
unfair or unjust”).
¶ 11 Mother, however, argues that the court’s authority did not
extend to the child’s extracurricular activities because the support
for those activities was initially determined by the parties’ pre-
decree agreement. But the court incorporated that agreement into
its final order on the allocation of parental responsibilities. It
therefore was the allocation of parental responsibilities order, not
the parties’ agreement, that was the enforceable decree. Cf. § 14-
10-112(5), C.R.S. 2021 (recognizing that the terms of a separation
5
agreement incorporated into the decree are enforceable as a
judgment). And the court had the authority to modify that order,
including the provision regarding payments for the child’s
extracurricular activities. See Chalat, 112 P.3d at 53.
¶ 12 Mother also argues that the court failed to give her notice of its
intent to change the amount of father’s payment for the child’s
extracurricular activities. But before the hearing, the court
specifically put mother “on notice” about changing the provisions on
extracurricular activities, informing her that it was considering
“changing the order regarding extracurricular activities, and the
payment and notifications on them.” And at the hearing, the court
directly asked mother about placing a “limit” on the amount of
extracurricular activities’ costs. Thus, the record reveals that the
court made mother aware it was considering a change to father’s
payments for extracurricular activities, and mother directs us to no
authority that the court was required to do more. See Biel v. Alcott,
876 P.2d 60, 64 (Colo. App. 1993) (“An appealing party bears the
burden to provide supporting authority for contentions of error
asserted on appeal, and a failure to do so will result in an
affirmation of the judgment.”).
6
D. The District Court Acted Within Its Discretion
¶ 13 We also reject mother’s argument that the court’s modification
of the provisions for extracurricular activities was an abuse of
discretion.
¶ 14 As the district court recognized, extracurricular activities have
been a continuous source of conflict between the parties over the
course of this highly litigious case. The court thus sought to
minimize the conflict by simplifying the way father paid the
expenses. The court also simplified mother’s notification
requirements.
¶ 15 Given the history of the case, we are not persuaded that the
court’s modification was an abuse of discretion. The modified
procedures streamlined the mechanics for extracurricular activities,
reducing the potential for conflict between the parties. And
lessening the parents’ conflict promotes the child’s best interests.
See § 14-10-124(1.5)(a)(III), (VI), (VII), C.R.S. 2021; People v.
Martinez, 70 P.3d 474, 478 (Colo. 2003) (recognizing that child
support should serve the child’s best interests). While mother
contends that the modification rewards father, focusing on his past
failure to pay his share of the costs, she neglects her role in the
7
disputes that arose, including her history of notifying father of the
activities, which father argued impacted his payments.
¶ 16 Mother also argues that $600 per year for father’s share of the
extracurricular activities costs was unreasonably low. The parties
presented conflicting evidence on this point. Father testified that he
spent “$360” per year. Mother testified that she had spent “$895”
per year and indicated that, since the expenses were increasing,
“$250” per month (or $3,000 per year) was a logical amount for
father’s share. The court found father’s estimated amount
unreasonably low and mother’s requested amount unreasonably
high. It then resolved the conflicting evidence by determining that a
reasonable amount for father’s share of the expenses fell
somewhere in the middle.
¶ 17 While mother points to evidence that could support a higher
amount for father’s share of the expenses, it was the district court’s
role to resolve the conflicts in the evidence, determine the credibility
of witnesses, weigh testimony, and draw inferences from the
conflicting evidence, $600 per year for father’s share of the child’s
extracurricular activities’ costs was not manifestly unreasonable.
8
¶ 18 To the extent mother also suggests that the court erred by
denying her motions for clarification and reconsideration of the
extracurricular activities order, she develops no specific argument
in support of that suggestion beyond the arguments rejected above.
See Biel, 876 P.2d at 64.
¶ 19 The district court therefore did not abuse its discretion by
modifying the payment provisions for the child’s extracurricular
activities.
II. Mother’s Punitive Contempt Sanction
A. Relevant Facts
¶ 20 Beginning early in this case, father alleged that mother was
sending him inappropriate communications. After these early
disputes, the court ordered that “[a]ll communications are to be free
[from] any degrading or inflammatory remarks[, which] includes any
reference to the ability of [a] party to parent the child or the status
of either parties’ mental health.”
¶ 21 Following this communication order, father filed numerous
contempt motions, alleging that mother had sent him degrading
and inflammatory emails. The court denied some of these contempt
motions, but, in 2018, it concluded that three of mother’s emails
9
were inflammatory and in willful violation of the communication
order. The court explained that mother’s comments in these emails
degraded father’s parenting abilities, were unnecessarily
accusatory, and were made to incite conflict. The court imposed a
punitive sanction of two days in jail for each email that it found
violated its order.
¶ 22 In 2020, father again sought contempt sanctions against
mother, alleging that she had sent him over two dozen degrading
and inflammatory emails from September 2019 to February 2020.
¶ 23 After a hearing, the district court found that mother willfully
violated the communication order in eleven of the emails by making
comments that were accusatory and demeaning of father’s ability to
parent the child. Specifically, the court found that mother’s
comments unnecessarily accused father of committing crimes,
stealing money from her, manipulating the court, lying under oath,
lying to the child, engaging in conduct that harmed the child,
sabotaging the child’s activities, and neglecting the child’s needs.
The court imposed a punitive sanction of fifteen days in jail.
10
B. Governing Legal Standards
¶ 24 A court may hold a party in contempt for “disobedience or
resistance” to a lawful court order. C.R.C.P. 107(a)(1); see Davis,
252 P.3d at 537. The court may impose punitive sanctions for a
party’s contempt. In re Marriage of Cyr, 186 P.3d 88, 91-92 (Colo.
App. 2008). Punitive sanctions are criminal in nature and are
designed to punish the contemnor for conduct offensive to the
authority and dignity of the court. Id. at 91.
¶ 25 Punitive sanctions must be supported by proof beyond a
reasonable doubt that (1) a lawful court order existed; (2) the
contemnor knew of the order; (3) the contemnor had the ability to
comply with the order; and (4) the contemnor willfully refused to
comply with the order. In re Marriage of Nussbeck, 974 P.2d 493,
497 (Colo. 1999).
¶ 26 “The decision whether to find a party in contempt is within the
sound discretion of the [district] court and will not be reversed on
appeal absent an abuse of discretion.” Davis, 252 P.3d at 537. We
must accept the district court’s factual determinations as to
contempt unless they have no record support. In re Marriage of
Webb, 284 P.3d 107, 108-09 (Colo. App. 2011).
11
C. Inflammatory Emails
¶ 27 Mother contends that the court’s finding of punitive contempt
cannot stand because the communication order was vague and,
historically, the court had not found emails that she claims are
similar to those at issue here to be inflammatory. She argues that,
as a result, (1) the communication order was not lawful; (2) she did
not have the ability to comply with the order; and (3) she did not
willfully refuse to comply with the order. We discern no error.
1. Lawful Court Order and Mother’s Ability to Comply
¶ 28 We first decline to address mother’s arguments, raised for the
first time on appeal, that a lawful court order did not exist and that
she did not have the ability to comply with the order. Mother never
argued to the district court that the communication order was
unlawful or that she lacked the ability to comply with it. Rather, in
her closing argument, conceding that the court had already found
that there was a lawful order, that mother knew of it, and that
mother had the “ability to comply with the order,” mother’s attorney
argued only the question of “[w]hether the respondent willfully
refused to comply with the order.” Mother thus waived her
opportunity to challenge these issues now. See In re Marriage of
12
Ensminger, 209 P.3d 1163, 1167 (Colo. App. 2008) (“Arguments not
presented at trial cannot be raised for the first time on appeal.”);
see also People in Interest of R.L., 961 P.2d 606, 608 (Colo. App.
1998) (recognizing that the parties may not take a position on
appeal contrary to their position to the trial court).
2. Willful Refusal to Comply
¶ 29 We next reject mother’s argument that she did not willfully
refuse to comply with the order because she had no reasonable way
to know what communication would be considered inflammatory.
¶ 30 An act is willful when it is done “voluntarily, knowingly, and
with conscious regard for the consequences of [one’s] conduct.”
Nussbeck, 974 P.2d at 499.
¶ 31 The communication order fairly described the communications
that mother could not send. See Z.J. Gifts D-2, L.L.C. v. City of
Aurora, 93 P.3d 633, 639 (Colo. App. 2004) (providing that a court
order must be sufficiently precise to enable the parties subject to
the order to conform their conduct to it); cf. People v. Shell, 148
P.3d 162, 172 (Colo. 2006) (recognizing that a law is not vague
when it fairly describes the forbidden conduct, and persons of
common intelligence readily understand its meaning). Specifically,
13
it required that all communications were to be free of “any
degrading or inflammatory remarks[, which] includes any reference
to the ability of [a] party to parent the child or the status of either
parties’ mental health.”
¶ 32 While mother asserts that she did not know what language
would be considered inflammatory, in the context here,
“inflammatory” plainly means language that tends to anger or
upset. See Webster’s Third New International Dictionary 1159
(2002) (defining inflammatory as “tending to excite anger,
animosity, disorder, or tumult”); Black’s Law Dictionary 931 (11th
ed. 2019) (defining inflammatory as “[t]ending to cause strong
feelings of anger, indignation, or other type of upset; tending to stir
the passions.”); see also Owners Ins. Co. v. Dakota Station II Condo.
Ass’n, 2019 CO 65, ¶ 32 (recognizing that we may consider the
dictionary definition when determining the plain and ordinary
meaning of a word). The order further clarified that any comments
about father’s ability to parent the child were not allowed.
¶ 33 In violation of this plain directive, mother sent multiple emails
to father in which she made unnecessary comments that degraded
his parenting and made inflammatory accusations that he had
14
committed crimes against her and the court, repeatedly lied to the
child, and was sabotaging the child. What is more, mother’s other
comments in the emails suggest that she knew her remarks could
be viewed as inflammatory because she attempted to disclaim any
violation of the communication order by stating that she was “not
trying to inflame anything,” not saying anything “inflammatory or
derogatory,” and not commenting on father’s “ABILITY to parent”
the child.
¶ 34 Nor are we persuaded by mother’s argument that “the history
of conflicting” orders concerning her previous emails prevented her
from knowing what type of communications were inflammatory.
Before the current contempt hearing, father had filed numerous
contempt motions based on mother’s inflammatory emails.
Although the court found some of these past communications were
not inflammatory, it did not deny all of father’s contempt motions.
By holding mother in contempt in 2018, the court directly informed
her that comments that were accusatory and demeaning of father’s
ability to parent the child were inflammatory and not allowed under
the communication order. Despite this notice, mother’s emails to
father continued to include such inappropriate comments. Indeed,
15
similar to the emails from the 2018 contempt, mother’s present
emails included unnecessary accusations and critiques of father’s
parenting abilities. In addition, even after father filed the present
contempt motions, which notified mother that he believed her
present communications were inflammatory, mother persisted with
her inappropriate comments.
¶ 35 To be sure, mother argues that her comments were benign
and justified. But the district court rejected her characterization,
and it was for the district court to resolve that factual conflict. See
Owens, ¶ 22. Moreover, the court rejected mother’s claim that she
could not discern when her communications were inflammatory.
The court found that mother lacked credibility, and we must defer
to that finding. See In re Parental Responsibilities Concerning D.T.,
2012 COA 142, ¶ 17.
¶ 36 The record therefore supports the court’s finding that mother
knew her communications were inflammatory and that she willfully
refused to comply with the communication order. See Webb, 284
P.3d at 108-09.
¶ 37 To the extent mother also asserts that father did not properly
serve her with the contempt citation, she did not raise this issue to
16
the district court and develops no argument in support of her
assertion now. See Ensminger, 209 P.3d at1167; Biel, 876 P.2d at
64. Therefore, we do not further consider her assertion.
D. Jail Sentence
¶ 38 Mother contends that the district court “showed extreme bias”
in sentencing her to fifteen days in jail as a punitive contempt
sanction, arguing that her sentence was excessive when compared
to the punitive sanction imposed against father for his contempt a
few months later. We disagree.
¶ 39 “Punishment imposed for contempt should be reasonable or
reasonably commensurate with the offense committed.” People v.
Mulberry, 919 P.2d 835, 837 (Colo. App. 1995). In determining the
punishment to be imposed, the court should take into consideration
the surrounding facts and circumstances. See Shotkin v. Atchison,
T. & S. F. R. Co., 124 Colo. 141, 146, 235 P.2d 990, 993 (1951).
¶ 40 At mother’s sentencing hearing, the court found that this case
was “truly an outlier in its litigiousness, and the unreasonable
behavior that’s gone on.” It continued that mother “clearly . . .
intended to be inflammatory over and over and over again” but she
took “zero responsibility for her actions, absolutely none.” The
17
court noted further that even though mother had previously been
found in contempt for the exact same conduct — and briefly jailed
as a consequence — her contemptuous conduct did not stop. Given
this history, the court determined that a more substantial punitive
sanction was warranted.
¶ 41 After imposing mother’s contempt sanction, the court found
that father had violated (1) the order for extracurricular activities
(prior to the court’s modification) by not paying his share of the
expenses and (2) the parenting time order by not taking the child to
two extracurricular activities. For father’s contempt, the court
imposed a punitive sanction that required him to pay a fine of $350
and complete ten hours of useful public service.
¶ 42 Although father’s sanction was less severe, we are not
persuaded that mother’s sanction of fifteen days in jail was
excessive or an abuse of the court’s discretion. The court
considered mother’s continued and persistent conduct in violation
of the communication order, the previous punitive sanction for her
past inflammatory emails that had not deterred her inappropriate
communications, and her refusal to now take responsibility for her
18
addition, the court found that, unlike mother, father had partially
mitigated his contempt by paying his outstanding extracurricular
activities’ costs before his sentencing. And the court considered
this mitigation when imposing father’s sanction.
¶ 43 While mother argues that the court did not offer her an
opportunity to mitigate her contempt, we do not agree. The court
allowed her to submit a mitigation statement, and provided her, as
well as her attorney, an opportunity to supplement that statement
at the sentencing hearing. See C.R.C.P. 107(d)(1). The fact that the
court found that she had not mitigated her conduct does not mean
she was denied an opportunity to do so.
¶ 44 Still, mother contends that the district court judge was biased
against her. To support her contention, mother relies on the
disparity in the parties’ sentences and other adverse rulings.
However, the court’s sentences were based on the facts and
circumstances of each party’s contempt, and the court’s rulings
against mother, without more, do not establish judicial bias. See In
re Marriage of McSoud, 131 P.3d 1208, 1223 (Colo. App. 2006); cf.
People in Interest of S.G., 91 P.3d 443, 447 (Colo. App. 2004) (“[A]
judge’s opinion formed against a party from evidence before the
19
court in a judicial proceeding . . . is generally not a basis for
disqualification.”). To the extent mother generally asserts that the
court used a hostile tone toward her during the contempt hearing,
she did not raise that contention before the district court, and we
find nothing in the record supporting her assertion. See In re
Marriage of Zebedee, 778 P.2d 694, 699 (Colo. App. 1988) (declining
to consider allegations of judicial bias not raised to the district
court).
¶ 45 The district court’s punitive contempt sanction against
mother, therefore, was not an abuse of discretion.
III. Father’s Punitive Contempt Sanction
¶ 46 Mother also appears to appeal the district court’s order that
imposed ten hours of useful public service as a punitive contempt
sanction against father for not taking the child to his
extracurricular activities. She argues that the court erred because
C.R.C.P. 107(d)(1) does not authorize the court to impose public
service as a punitive sanction. We conclude that mother lacks
standing to appeal father’s punitive sanction and dismiss this
portion of her appeal.
20
¶ 47 Standing is a threshold issue involving the court’s subject
matter jurisdiction. Owens, ¶ 8. A party’s standing to pursue an
action “requires that [the] individual ‘maintain a “personal stake” in
the outcome of the litigation throughout its course.’” In Interest of
C.T.G., 179 P.3d 213, 215 (Colo. App. 2007) (quoting Gollust v.
Mendell, 501 U.S. 115, 126 (1991)).
¶ 48 A punitive sanction punishes the contemnor for conduct
offensive to the authority and dignity of the court. Nussbeck, 974
P.2d at 499; see also C.R.C.P. 107(a)(4), (d)(1). Unlike a remedial
contempt sanction, a punitive contempt sanction is not designed to
benefit the interests of a third party. Nussbeck, 974 P.2d at 499.
Thus, “a punitive contempt proceeding is a matter between the
court and the offending party.” Id.; see also In re Pechnick, 128
Colo. 177, 182, 261 P.2d 504, 507 (1953).
¶ 49 Mother sought, and the court imposed, punitive sanctions
against father. Those sanctions do not implicate mother’s rights,
and, thus, she lacks standing to appeal that order. See C.T.G., 179
P.3d at 215. We dismiss this portion of her appeal.
21
IV. Conclusion
¶ 50 We affirm the district court’s orders that modified the payment
arrangements for the child’s extracurricular activities and imposed
a punitive contempt sanction against mother. We dismiss the
portion of mother’s appeal challenging father’s punitive contempt
sanction.
JUDGE NAVARRO and JUDGE PAWAR concur.