In re Dean

• Decision Date: 20 April 2017
• Docket Number: Court of Appeals No. 15CA0878
• Parties: IN RE the MARRIAGE OF Sylvia DEAN, f/k/a Sylvia Cook, Appellant, and Andre L. Cook, Appellee.
• Court: Colorado Court of Appeals

413 P.3d 246

IN RE the MARRIAGE OF Sylvia DEAN, f/k/a Sylvia Cook, Appellant, and Andre L. Cook, Appellee.

Court of Appeals No. 15CA0878

Colorado Court of Appeals, Div. VII.

Announced April 20, 2017

Sylvia Dean, Pro Se

Beltz & West, P.C., Daniel A. West, Colorado Springs, Colorado, for Appellee

Opinion by JUDGE BOORAS

¶ 1 In this post-decree dissolution of marriage proceeding, Sylvia Cook (mother), now known as Sylvia Dean, appeals the district court's adoption of the magistrate's finding of contempt and award of attorney fees in favor of Andre L. Cook (father). We affirm in part, reverse in part, and remand for further proceedings.

I. Background

¶ 2 Mother and father divorced in 2006. At that time, the court named mother the primary residential parent for the parties' two children but allowed the parties to determine their own "liberal parenting time" schedule.

¶ 3 Six years later, mother moved to stop father's parenting time, asserting that he had not seen the children in more than two years and had no interest in seeing them. Father responded that mother had denied him parenting time, and he requested a more formal parenting time schedule.

¶ 4 Eventually the parties stipulated to, and the court adopted, a parenting time arrangement. As now relevant, the parties agreed that father (1) would have parenting time every Wednesday from after school until 7:00 p.m. and (2) "shall be entitled to have Thanksgiving this year [2013] with the children from 10:00 a.m. on Thursday until taking the children to school on the following Monday morning."

¶ 5 Father later filed a verified motion and affidavit for contempt, requesting remedial contempt sanctions for mother's noncompliance with the two above-mentioned portions of their stipulation.

The following reflects how the contempt motion proceeded:

• The advisement hearing occurred on March 3, 2014.

• The parties appeared for the contempt hearing on May 19, 2014, but agreed to set it over until September 22, 2014, so that they could participate in a settlement meeting. The parties also agreed that mother would contact a therapist, and the court ordered her to start therapy within thirty days.

• On September 22, the contempt hearing was set over to October 6, 2014.

• The magistrate began the contempt hearing on October 6 and finished it on November 3, 2014, when she found mother in remedial contempt and ordered her to pay father's attorney fees. The magistrate further ordered that mother could purge the contempt by allowing father to have the children during their 2014 Thanksgiving break.

• Sentencing occurred on January 28, 2015, at which time the court ordered mother to pay father's $4926.25 in attorney fees.

¶ 6 Mother timely filed a C.R.M. 7 petition challenging the magistrate's orders. The district court adopted the magistrate's orders on review.

II. Applicable Legal Principles

¶ 7 C.R.C.P. 107 provides the authority under which courts are to conduct contempt proceedings. See In re Marriage of Nussbeck , 974 P.2d 493, 498 (Colo. 1999). Remedial sanctions for contempt must be supported by findings of fact establishing that the contemnor (1) did not comply with a lawful order of the court; (2) knew of the order; and (3) had the present ability to comply with the order. In re Marriage of Cyr , 186 P.3d 88, 92 (Colo. App. 2008).

¶ 8 Like the district court, we must accept the magistrate's factual determinations as to contempt unless there is no support in the record for those findings or the findings are clearly erroneous. See C.R.M. 7(a) ; In re Marriage of Webb , 284 P.3d 107, 108-09 (Colo. App. 2011) ; see also In re Parental Responsibilities Concerning G.E.R. , 264 P.3d 637, 638-39 (Colo. App. 2011) (reviewing court engages in a second layer of appellate review of the magistrate's order, and must accept the magistrate's findings unless they are clearly erroneous). "A court's factual findings are clearly erroneous only if there is no support for them in the record." Van Gundy v. Van Gundy , 2012 COA 194, ¶ 12, 292 P.3d 1201.

III. Sua Sponte Reconsideration of Sanctions

¶ 9 Mother first contends that the magistrate improperly reconsidered the May 19 order when, on November 3, she changed the nature of the sanctions imposed. We reject this contention because no sanctions were imposed until November 3, when the magistrate found mother guilty of remedial contempt. See Wright v. Dist. Court , 192 Colo. 553, 555, 561 P.2d 15, 17 (1977) (finding of contempt must precede imposition of sanctions).

¶ 10 We acknowledge that the magistrate entered an order on May 19 requiring mother to engage in therapy. However, the record reveals that the magistrate simply adopted the parties' stipulation concerning the same; the order was not imposed to force mother's compliance with the parenting time stipulation. See C.R.C.P. 107(a)(5) (defining remedial sanctions).

IV. Evidence and Findings

¶ 11 Mother's second, third, and fifth contentions challenge the evidence presented at the contempt and sentencing hearings, the weight placed on that evidence by the magistrate, and the findings and inferences the magistrate made in her orders. We do not disturb the orders.

¶ 12 A party seeking review of a magistrate's order has the burden to provide the reviewing court with a record justifying the rejection or modification of that order. In re Marriage of Rivera , 91 P.3d 464, 466 (Colo. App. 2004) ; see also Yadon v. Southward , 64 P.3d 909, 912 (Colo. App. 2002) (pro se litigants must adhere to the same rules of procedure applicable to attorneys).

¶ 13 If an appellant argues "that a finding or conclusion is unsupported by the evidence or is contrary to the evidence, the appellant shall include in the record a transcript of all evidence relevant to such finding or conclusion." C.A.R. 10(b). Where the appellant fails to provide such a transcript, the reviewing court must presume that the record supports the judgment. See C.R.M. 7(a)(9) ; In re Marriage of Beatty , 2012 COA 71, ¶ 10, 279 P.3d 1225.

¶ 14 Here, the transcripts from the contempt and sentencing hearings are in the appellate record. However, mother did not provide them to the district court when she sought review of the magistrate's orders under C.R.M. 7(a). Consequently, we confine our review of mother's arguments to the record considered by the district court, which did not include any transcripts. See Rivera , 91 P.3d at 466.

¶ 15 Without reviewing the transcripts, we are unable to evaluate the evidence to determine whether it sufficiently supports the magistrate's orders. See C.R.M. 7(a)(9) ; G.E.R. , 264 P.3d at 639. To the contrary, we must presume that the record supports the magistrate's orders that mother failed to comply with the parties' stipulation and was, therefore, in remedial contempt. See C.R.M. 7(a)(9) ; Beatty , ¶ 10 ; see also People v. Wells , 776 P.2d 386, 390 (Colo. 1989) (reviewing court cannot conclude that district court's judgment is erroneous when the record is insufficient).

¶ 16 Mother's related argument that she cannot be held in contempt because she did not "willfully" violate the order is misplaced. Willfulness is not a requirement for finding remedial contempt. See Cyr , 186 P.3d at 91-92.

V. Order as to Compliance with Parenting Time

¶ 17 We agree with mother's fourth contention that the magistrate exceeded her authority when she ordered mother

to remove all privileges for up to a month for the children if they do not comply with her instruction to go to [father]'s home. This means no TV, no cable, no music, no friends, no cell phone, no I-pads, no computers, unless the parenting time is exercised with the [father]. Each violation of failure to attend parenting time will result in a one month restriction of these items for the children by [m]other.

We therefore strike these three sentences from paragraph 9 of the magistrate's order.

¶ 18 Contrary to father's assertion, mother properly preserved this claim in her petition for district court review. Hence, we may consider the issue on appeal. See People in Interest of K.L-P. , 148 P.3d 402, 403 (Colo. App. 2006).

¶ 19 To resolve disputes concerning parenting time, courts have broad authority to make or modify parenting time orders that are in the best interests of the children. See §§ 14-10-129(1)(a), - 129.5(2)(h), C.R.S. 2016. But there is a presumption that fit parents act in the best interests of their children. Troxel v. Granville , 530 U.S. 57, 58, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) ; In Interest of Baby A , 2015 CO 72, ¶ 23, 363 P.3d 193.

¶ 20 However, the magistrate's order disregards that presumption by concluding that mother should be disciplining her children if they choose not to visit with father and specifying the disciplinary actions that mother must take.¹ See Troxel , 530 U.S. at 73-74, 120 S.Ct. 2054 (noting that a court cannot interfere with a fit parent's decisions simply because it believes a "better" decision could be made). We do not suggest that mother may violate the parenting time order by allowing her children to refuse to visit with father. We simply conclude that by specifying the methods that she must employ in order to obtain the children's compliance, the order improperly ignores the fit parent presumption. Accordingly, we conclude that the magistrate exceeded her authority in entering paragraph 9 of her order, and we therefore strike it. Insofar as the district court adopted that portion of the magistrate's order, we reverse the district court's order.

¶ 21 The dissent contends that the district court was precluded from requiring mother to take even unspecified measures to require the children to submit to the parenting time order, and that it had no authority to impose contempt sanctions absent mother taking actions that would "thwart" enforcement of the parenting time order. However, a district court has inherent authority to enforce obedience to its orders through contempt sanctions. People v. McGlotten , 134 P.3d 487, 489-90 (Colo....