In re Marriage of Hatton, No. 05CA0469.

• Docket Nº: No. 05CA0469.
• Citation: 160 P.3d 326
• Case Date: March 08, 2007
• Court: Court of Appeals of Colorado

160 P.3d 326 In re the MARRIAGE OF Carl E. HATTON, Jr., Appellee, and
Julie A. Hatton, Appellant. No. 05CA0469. Colorado Court of Appeals, Div. II. March 8, 2007.

[160 P.3d 328]

Anderson & Travis, P.C., Wayne E. Anderson, Colorado Springs, Colorado, for Appellee.

Julie A. Hatton, Pro Se.

Roberta Earley for Appellant, on the briefs.

Opinion by Judge TAUBMAN.

In this post-dissolution of marriage proceeding, Julie A. Hatton (mother) appeals from the December 14, 2004, order awarding all parenting time and decisionmaking responsibility for the parties' three children to Carl E. Hatton, Jr. (father) and allowing her no contact with the children except with father's written permission. We affirm in part, reverse in part, and remand for further proceedings.

A petition for the dissolution of the parties' marriage was filed in August 1998. Initially, mother was designated as the primary residential parent. Subsequently, parenting time was divided equally.

Several parenting time evaluations were conducted in response to problems perceived by the parties. In September 2001, after an updated evaluation was completed, a new parenting time order was entered. Under the terms of that order, father was given sole decision-making responsibility and was designated the primary residential parent. The court found that contact with mother would significantly impair the children's emotional well-being, and for that reason, mother was denied all contact with the children for a period of thirty days. Thereafter, mother was allowed only supervised therapeutic contact with the children until the family therapist in conjunction with the children's guardian ad litem determined that additional parenting time should be permitted. This order was affirmed on appeal in November 2002. In re Marriage of Hatton, (Colo.App. No. 01 CA2012, Nov. 7, 2002) (not published pursuant to C.A.R. 35(f)).

In July 2002, with the concurrence of the therapist and the guardian ad litem, the parties reached an agreement regarding increased parenting time for mother. However, disputes regarding parenting time continued, and in September 2003, mother moved for modification of both parenting time and decision-making responsibility. In response, father requested that mother's parenting time be reduced and supervised.

A new parental evaluation was ordered. In December 2004, after reviewing the report of the parental evaluator and considering the testimony offered by the evaluator, the parties, and others during hearings held in October and November 2004, the court found that the existing parenting time arrangements were detrimental to the children and their emotional development was being impaired. The court allocated sole parenting time and decision-making responsibility to father and ordered that mother should not "have any contact whatsoever with the children in any form, including but not limited to phone, letter, e-mail and cell phone, at any time or place unless she has signed written permission from [father] that is specific with regard to the child or children and date, time and place." The court also ordered father to arrange to send the oldest child to an out-of-town boarding school as soon as practicable so that she would be removed from the conflict and her younger siblings. The court stated that it would consider some regular structured contact between mother and the two younger children after the oldest child had entered an appropriate boarding school. Mother's motion for posttrial relief was denied, and she now appeals.

I. Fairness of Hearing

Mother contends that the trial court erred in limiting or not considering evidence and testimony, including rebuttal witnesses, thereby accepting the evaluator's recommendations without correlating them to the facts. We are not persuaded.

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A. Due Process

Mother argues that the court improperly denied her the right to call a number of witnesses who could have rebutted the findings of the parental evaluator. We construe this argument as a claim that she was denied due process, and as such, we reject it.

The opportunity to be heard is an inherent element of due process and must be granted at a meaningful time and in a meaningful manner. The trial court must balance its obligation to accord each party due process against its need to regulate its calendar and efficiently manage the case before it. However, a court's interest in administrative efficiency may not be given precedence over a party's right to due process. In re Marriage of Goellner, 770 P.2d 1387 (Colo.App. 1989).

Under § 14-10-127(3), C.R.S.2006, any party to a proceeding concerning the allocation of parental responsibilities in which a parental evaluator has been appointed may call the evaluator and "any person with whom the evaluator has consulted" for cross-examination.

Under former C.R.C.P. 26.2(a)(2) and (3), in effect at the time of these proceedings, a party was required to disclose expert and nonexpert testimony at least sixty days before the date set for the commencement of the hearing, and rebuttal testimony within twenty days after the disclosure made by the other party. Cf. C.R.C.P. 16.2(e)-(g) (rules for disclosure, discovery, and use of experts, effective Mar. 1, 2006).

Here, mother filed a trial management certificate on October 18, 2004, two days before trial. In it, she named more than forty witnesses, including three identified as expert witnesses. Father objected to all the witnesses, except four previously identified by mother, on the ground that mother's disclosure was untimely under C.R.C.P. 26.2. He also objected to two of the three witnesses identified as experts on the ground that one had been dismissed from the case in 2000 because the court found that she had become an advocate for mother and another had admitted to the parental evaluator that he was biased toward mother. He questioned the "legal relevance" of the testimony of the third, who had been retained by mother to review the parental evaluator's data and report, because she had only one day to interview the children and review the parental evaluator's fifty-two-page report.

The dispute was resolved at a status conference held on October 19, 2004, one day before trial. The court ruled that mother would be allowed to call her recently retained expert and "three other people" in addition to the witnesses previously identified. Mother argued that under § 14-10-127(3), she had the right to call as a witness anyone whom the evaluator had contacted. The court was not persuaded that mother could do so without giving notice to father.

Assuming, without deciding, that § 14-10-127(3) authorized mother to call as a witness any person contacted by the evaluator, we conclude that neither § 14-10-127(3) nor former C.R.C.P. 26.2 suggests that she could do so without providing prior notice to father. Thus, the trial court did not err in refusing to allow mother to call all the witnesses named in her trial management certificate. We note that despite the lack of notice, mother was permitted to call three rebuttal witnesses from her list, the expert that she had retained to review the evaluator's report, and the witnesses listed earlier. We note further that the court afforded the parties four half-day sessions for the hearing, thus providing sufficient time to hear the most relevant testimony. We conclude that the trial court properly balanced its obligation to accord mother due process against its need efficiently to manage the case before it.

B. Bias

Mother argues that the trial court was biased against her, and that it demonstrated its bias by limiting or not considering evidence that would have been favorable to her and by summarily accepting the report of the parental evaluator, who was himself biased against her. We are not persuaded.

We may presume that the trial court considered the evidence before it. See In re Marriage of Udis, 780 P.2d 499 (Colo.1989) (where both parties presented evidence of

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their income and expenses at the hearing, the trial court could be presumed to have considered their expenses in arriving at its decision regarding maintenance).

It is the responsibility of the trial court as the trier of fact to determine the credibility of the witnesses and the sufficiency, probative effect, and weight of the evidence. In re Marriage of McNamara, 962 P.2d 330 (Colo.App.1998).

Adverse rulings, standing alone, do not constitute grounds for claiming bias or prejudice. In re Marriage of Johnson, 40 Colo.App. 250, 576 P.2d 188 (1977).

At trial, the court heard the evaluator's testimony in favor of father as well as the testimony of witnesses more favorable to mother. In its order, the court stated that it had "reviewed and considered the testimony of the parties, professionals and other witnesses ... as well as the numerous exhibits submitted by the parties, documents in the court file and the written arguments of counsel." The court found the evaluator's report persuasive, and found some of the testimony presented by mother's witnesses less persuasive. Based on its evaluation of the evidence, the court allocated all parenting time and sole decision-making responsibility to father.

While mother points to several statements by the trial court that she maintains reflect bias, we conclude that those statements were isolated and insufficient to establish the judge's lack of impartiality as a matter of law. See Smith v. Dist. Court, 629 P.2d 1055, 1056 (Colo.1981) ("Unless a reasonable person could infer that the judge would in all probability be prejudiced against the petitioner, the judge's duty is to sit on the case.").

We are satisfied that the court considered and weighed the evidence before it and that its ruling is amply supported by that evidence, except to the extent we conclude in part III below that the trial court must reconsider that part of its order prohibiting any contact between mother and her...