In re Marriage of Dezalia, 05CA2455.
| Decision Date | 30 November 2006 |
| Docket Number | No. 05CA2455.,05CA2455. |
| Citation | 151 P.3d 647 |
| Parties | In re the MARRIAGE OF Michelle DEZALIA, Appellee, v. Brandon DeZalia, Appellant. |
| Court | Colorado Court of Appeals |
M. Patricia Marrison, P.C., Donna Ellis, M. Patricia Marrison, Jennifer G.H. Cox, Kenneth R. Hodges, Colorado Springs, Colorado, for Appellee.
Guy M. McCready, Colorado Springs, Colorado, for Appellant.
Opinion by Judge MÁRQUEZ.
In this post-dissolution of marriage proceeding, Brandon DeZalia (father) appeals from the order allowing Michelle DeZalia (mother) to relocate to another state with the parties' children. We affirm.
Father and mother are the parents of twin children born in 2002. In February 2004, they entered into a separation agreement that provided that they would share parenting time and decision-making. In addition, the agreement specified the circumstances in which mother would be permitted to relocate with the children to Florida, as she wished to do.
In July 2004, mother moved pursuant to C.R.C.P. 60(b) to set aside the separation agreement on grounds of fraud, mistake, and excusable neglect. In the alternative, she moved for modification of parental responsibilities, alleging, among other things, that she wished to move to Florida, her home state, and that her mental health practitioner had advised her to do so. The court denied her motion and ordered a custody evaluation.
In August 2005, mother again sought permission to remove the children to Florida. In September, the parenting coordinator submitted her report. After reviewing all the statutory factors set forth in §§ 14-10-124(1.5)(a) and 14-10-129(2)(c), C.R.S. 2006, she recommended that mother be permitted to relocate.
After hearing the testimony of both parties and the parenting coordinator at trial, the court determined that mother should be permitted to move. Father was granted two weeks of parenting time every two months.
Father contends that the trial court erred in allowing mother to file a motion to remove the children from Colorado pursuant to § 14-10-129(1)(a)(II), C.R.S. 2006. He argues that because the children did not reside with either parent a majority of the time § 14-10-129(1)(a)(II) does not apply, and thus, the court should have employed the endangerment standard of § 14-10-129(1)(b)(I), C.R.S.2006, rather than the best interests standard, when deciding whether mother should be permitted to relocate with the children. We do not agree.
Section 14-10-129, C.R.S.2006, sets forth two standards for modification of parenting time rights. Generally, the court may make or modify an order granting or denying parenting time rights whenever such order or modification would serve the best interests of the child. Section 14-10-129(1)(a)(I), C.R.S. 2006. Special provision has been made for modification of parenting time rights in the event that the party with whom the child resides a majority of the time seeks to relocate with the child. As pertinent to this appeal, § 14-10-129(1)(a)(II) provides:
In those cases in which a party with whom the child resides a majority of the time is seeking to relocate with the child to a residence that substantially changes the geographical ties between the child and the other party, the court, in determining whether the modification of parenting time is in the best interests of the child, shall take into account all relevant factors, including those enumerated in paragraph (c) of subsection (2) of this section.
The relevant factors to be considered include all factors enumerated in § 14-10-124(1.5)(a) and nine additional factors set forth in § 14-10-129(2)(c).
However, § 14-10-129(1)(b)(I) provides that the court may 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.
Although the relocation of one parent with the child may substantially reduce the other parent's parenting time, § 14-10-129(1)(b)(II) provides that the provisions of § 14-10-129(1)(b)(I) "shall not apply in those cases in which a party with whom the child resides a majority of the time is intending to relocate with the child to a residence that substantially changes the geographical ties between the child and the other party." Thus, a reduction in parenting time resulting from the other parent's relocation with the child is not to be construed as a restriction requiring the court to apply the endangerment standard set forth in § 14-10-129(1)(b)(I).
In addition, although modification of a prior order concerning parenting time in a manner that substantially changes the parenting time as well as changes the party with whom the child resides a majority of the time is generally discouraged under § 14-10-129(2), C.R.S.2006, the proposed relocation of a majority time parent with the child is one of the circumstances in which the court may order such a modification. Section 14-10-129(2)(c).
Interpretation of a statute is a question of law that we review de novo. In construing a statute, we must strive to give effect to the intent of the legislature and adopt the statutory construction that best effectuates the purposes of the legislative scheme, looking first to the plain language of the statute. In re Marriage of Ciesluk, 113 P.3d 135 (Colo. 2005).
Section 14-10-129(1)(a)(II) is the only portion of the statute that addresses relocation, but it refers only to the circumstances of a party with whom the child resides the majority of the time.
To determine the standard applicable to situations where, as here, the parents share parenting time, we look to the history of the question of relocation.
Before § 14-10-129 was amended to set forth a new procedure for determining whether it would be in a child's best interests to modify parenting time to accommodate a majority time parent's desire to relocate with the child, the procedure for determining whether relocation was in a child's best interests was that set forth in In re Marriage of Francis, 919 P.2d 776 (Colo.1996). Francis established a three-part test. The custodial parent was required to present a prima facie case showing that there was a sensible reason for the move. If the custodial parent presented such a case, a presumption in favor of allowing the child to move with the custodial parent arose. The burden then shifted to the noncustodial parent to show that the move was not in the child's best interests.
The Francis test applied when a sole residential custodian proposed to relocate with a child. The Francis court noted that the presumption in favor of the residential custodian was "necessarily weakened to the extent parents share both residential and legal custody," but the court declined to resolve the issue of how a parent's desire to relocate with a child should be evaluated when both parents shared residential custody. In re Marriage of Francis, supra, 919 P.2d at 785.
In 2001, § 14-10-129 was amended to set forth a new procedure for determining whether relocation was in a child's best interests. As explained in In re Marriage of Ciesluk, supra, § 14-10-129 was amended in response to dissatisfaction with the Francis test. It was...
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...226 P.3d 1255, 1259 (Colo.App.2010). Interpretation of a statute is a question of law that we also review de novo. In re Marriage of DeZalia, 151 P.3d 647, 648 (Colo.App.2006). When we interpret a statute, our goal is to give effect to the intent of the General Assembly. We first look to th......