In re Fabos
| Docket Number | Court of Appeals No. 20CA1881 |
| Decision Date | 23 June 2022 |
| Parties | IN RE the MARRIAGE OF Jamie R. FABOS, f/k/a Jamie R. Olsen, Appellee, and Justin R. OLSEN, Appellant. |
| Court | Colorado Court of Appeals |
Telios Law PLLC, Theresa Lynn Sidebotham, Joseph B. Brown, Monument, Colorado, for Appellee
Paige Mackey Murray LLC, Paige Mackey Murray, Boulder, Colorado, for Appellant
Opinion by JUDGE BERGER
¶ 1 Jamie R. Fabos (wife), formerly known as Jamie R. Olsen, and Justin R. Olsen (husband) continue to dispute the disposition of their cryogenically frozen pre-embryos after their divorce. This case is before us again on husband's appeal from the district court's judgment on remand after his first appeal, In re Marriage of Fabos , 2019 COA 80, 451 P.3d 1218.
¶ 2 In this second appeal, we review the district court's award of the parties’ pre-embryos to wife based on its application of the multi-factor balancing test from In re Marriage of Rooks , 2018 CO 85, 429 P.3d 579, as well as the remand instructions from Fabos . Rooks resolved a dispute between one spouse who wanted to implant pre-embryos to have children and the other spouse who wanted to destroy the pre-embryos to avoid becoming a genetic parent. Id. at ¶¶ 3, 14. The supreme court recognized that the parties’ constitutionally based interests "in either achieving or avoiding genetic parenthood" formed the underpinnings of the analysis. Id. at ¶ 64. Rooks , however, did not address, as part of its balancing test, the issue of one party's desire to donate the pre-embryos versus the other party's desire to destroy them.
¶ 3 This case centers on a dispute between one spouse who wants to donate the pre-embryos to another couple because of her religious belief that they are human lives and must be preserved and the other spouse who wants to destroy the pre-embryos to avoid procreation. Therefore, this case presents an issue not addressed by Rooks : how to account for one party's religious beliefs as part of the balancing test.
¶ 4 We greatly respect the district court's careful consideration of these extraordinarily difficult legal questions and its extensive order after remand. But, for the reasons explained below, we conclude that the district court erred by misapplying the Rook s factors and by failing to comply with the mandate from Fabos . We reverse the judgment, direct entry of judgment for husband, and remand the case solely for the entry of judgment and any collateral orders necessary to enforce that judgment.
¶ 5 During their marriage, the parties wanted to have children but were unable to conceive naturally. They visited a fertility clinic for in vitro fertilization
(IVF). Two of the resulting pre-embryos were implanted successfully, resulting in wife giving birth to the parties’ twins in October 2011. Two additional pre-embryos were cryogenically frozen and placed in storage.
¶ 6 Before the parties underwent IVF, the fertility clinic presented them with a form agreement entitled "Informed Consent for Assisted Reproduction." The form agreement contained choices for the disposition of the pre-embryos in two scenarios—(1) on their mutual death or incapacity, and (2) when wife reaches age fifty-five. Those choices were:
For both scenarios, the parties each initialed the line next to the third option—to donate the pre-embryos to another couple.
¶ 7 The form agreement did not, however, contain an option regarding the disposition of the pre-embryos in the event of divorce. Instead, the form agreement provided that ownership of the pre-embryos on dissolution of marriage will be "as directed by court decree and/or settlement agreement." The parties signed the form agreement, without altering the form agreement's divorce provision or separately specifying in a different agreement the disposition of the pre-embryos in the event of divorce.
¶ 8 In December 2012, wife petitioned to dissolve the parties’ marriage. The parties disagreed on the disposition of the stored pre-embryos. Wife wanted to donate them to another infertile couple, whereas husband wanted to thaw and discard them.
¶ 9 After an evidentiary hearing, the district court awarded the pre-embryos to wife for donation to another couple. Husband appealed. A division of this court in Fabos reversed and remanded for the district court to reconsider the case, applying the supreme court's balancing of interests framework from Rooks , ¶¶ 65–72, which had been announced after the entry of the district court's first judgment. See Fabos , ¶¶ 9, 16, 57.
¶ 10 The division further instructed the district court not to weight "wife's subjective belief that the pre-embryos should be protected as human life more heavily than husband's interest in not procreating using the pre-embryos." Id. at ¶ 57. And, critical to our disposition, the Fabos division held that "ordinarily a party not wanting to procreate should prevail when the other party wants to donate the pre-embryos instead of using them to have a child of his or her own." Id. at ¶ 45 (emphasis in original).
¶ 11 On remand, the district court held another evidentiary hearing. At the second hearing, wife claimed that her firmly held religious beliefs and corresponding constitutional right to freedom of religion under the First Amendment to the United States Constitution compelled a decision in her favor.
¶ 12 In a comprehensive order, the district court again awarded the pre-embryos to wife for donation to third parties.1 Husband again appealed. The district court stayed the judgment pending the issuance of the mandate of this court.
¶ 13 Husband contends that the district court erred by awarding the pre-embryos to wife based on the subjective importance of her religious belief that the pre-embryos are human lives. He argues that the court violated Fabos and Rooks by again weighting wife's religious beliefs more heavily than his interest in avoiding procreation.
¶ 14 We agree that the district court's judgment cannot stand. The court misapplied the Rooks factors and did not follow the mandate from Fabos to avoid "weighting wife's subjective belief that the pre-embryos should be protected as human life more heavily than husband's interest in not procreating using the pre-embryos." Fabos , ¶ 57. We conclude, as a matter of law based on a proper application of the Rooks factors and the Fabos mandate, that the present case is not one of the rare circumstances where a party wanting to donate the pre-embryos to third parties can prevail over the other party who opposes procreating with the pre-embryos. See Rooks , ¶ 32 ; Fabos , ¶¶ 34, 38, 45.
¶ 15 Whether a district court applied the correct legal standard is an issue we review de novo. See LaFond v. Sweeney , 2015 CO 3, ¶ 12, 343 P.3d 939. We also review de novo whether the district court complied with this court's mandate in Fabos . See Thompson v. Catlin Ins. Co. (UK) , 2018 CO 95, ¶ 20, 431 P.3d 224.
¶ 16 Because pre-embryos are marital property (albeit of a "special character," Rooks , ¶ 57 ) we apply an abuse of discretion standard to the court's award of the pre-embryos to one of the parties, Fabos , ¶ 21. A court abuses its discretion when its decision is manifestly arbitrary, unreasonable, or unfair, or when it misconstrues or misapplies the law. In re Marriage of Evans , 2021 COA 141, ¶ 25, 504 P.3d 988.
¶ 17 As noted, Rooks similarly involved a divorcing couple's dispute over the disposition of their cryogenically frozen pre-embryos when their IVF agreement did not specify the disposition of the pre-embryos on divorce but provided only that the dissolution court would decide the issue. See Rooks , ¶¶ 2–3, 13. Like the parties here, the couple in Rooks had successfully implanted some of their pre-embryos, resulting in the births of their children, and they had frozen and stored the remaining pre-embryos. Id. at ¶¶ 3, 7, 12.
¶ 18 Because the parties’ agreement in Rooks did not address the disposition of the pre-embryos on divorce, the district court in that case applied a balancing of the interests test and awarded the pre-embryos to the husband, who wanted to thaw and discard them, finding that, under the circumstances, his right "not to be forced to become a genetic parent" outweighed the wife's right to use the pre-embryos to have more children. Id. at ¶¶ 18–22. The wife appealed, and a division of this court affirmed the district court's ruling. Id. at ¶¶ 23–30.
¶ 19 The supreme court granted certiorari review. After finding no controlling Colorado authority, it examined the various approaches courts in other states have taken to resolve disputes between divorcing spouses over the disposition of stored pre-embryos. Id. at ¶¶ 31–32, 40–48. It held that Colorado courts must resolve such disputes by first looking to any agreement between the parties concerning the disposition of the pre-embryos on divorce. Id. at ¶¶ 59–63. If the parties agreed to a disposition on divorce, that agreement must be enforced. Id. In the absence of an agreement, however, courts "should balance the parties’ respective interests and award the pre-embryos accordingly." Id. at ¶ 64 ; see also id. at ¶¶ 33–34. The supreme court provided the following "non-exhaustive list" of factors that courts should weigh in determining whose wishes concerning marital pre-embryos should prevail:
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