In re Marriage of Fickling, No. 03CA1644.
| Decision Date | 26 August 2004 |
| Docket Number | No. 03CA1644. |
| Citation | 100 P.3d 571 |
| Parties | In re the MARRIAGE OF Leslie A. FICKLING, Appellee, and Nicholas T. Fickling, Appellant. |
| Court | Colorado Court of Appeals |
Elaine G. Edinburg, P.C., Elaine G. Edinburg, Edwards, Colorado, for Appellee.
Goodman and Wallace, L.L.P., Kerry H. Wallace, Kristin McKnight, Edwards, Colorado, for Appellant.
Opinion by Judge GRAHAM.
In this dissolution of marriage proceeding, Nicholas T. Fickling (father) appeals from the trial court's permanent orders that substantially reduced his parenting time from the amount awarded in a stipulation and temporary orders. We affirm.
Father and Leslie A. Fickling (mother) were married in 1988 and are the parents of one child. A petition for the dissolution of the parties' marriage was filed in October 2001.
In December 2001, the parties entered into a stipulation for the temporary allocation of parenting time, and it was approved by the court. The stipulation provided that the child would move from one parent's residence to the other on a weekly basis, with additional provisions for vacations and other special occasions.
In September 2002, mother moved for the appointment of a special advocate to assist the parties in developing a permanent parenting plan. As one of the grounds for this motion, mother stated that she no longer believed that the existing parenting plan was in the child's best interests. A special advocate was appointed. In February 2003, the special advocate submitted her initial report, recommending that the existing parenting schedule be continued. On March 6, 2003, she submitted an addendum, recommending a completely different schedule. She advised the court that upon learning of her original recommendations, the child had expressed dissatisfaction with them and had suggested that she could do better in school if she could reside primarily with her mother during the school year. After further discussions with the child, the special advocate recommended that the child spend weekdays with mother and most weekends with father during the school year, with the schedule reversed during the summer.
On March 10, 2003, the special advocate further revised her report, recommending that the child return to mother's residence on Sunday evenings during the school year, rather than remaining with her father until Monday morning. The result of the suggested changes was a reduction in father's parenting time from 182 overnights per year to 100.
In April 2003, the court entered permanent orders that essentially adopted the special advocate's recommendations, granting mother parenting time during the school week and granting father parenting time three of four weekends per month during the school year, with the schedule to be reversed during the summer months. Acknowledging that father's parenting time under the new schedule would be "eroded" compared to the status quo, the court also awarded father parenting time during the child's spring vacation every year.
I.
Father first contends that the trial court erred as a matter of law by applying the best interests of the child standard in substantially reducing his parenting time instead of the endangerment standard set forth in § 14-10-129(1)(b)(I), C.R.S.2003. We disagree.
Whether the court has applied the correct legal standard in making its findings is a question of law that we review de novo. People in Interest of J.R.T., 55 P.3d 217 (Colo.App.2002), aff'd, 70 P.3d 474 (Colo.2003).
In allocating parental responsibilities, including parenting time, the court is required to apply the best interests of the child standard, giving "paramount consideration to the physical, mental, and emotional conditions and needs of the child." Section 14-10-124(1.5), C.R.S.2003.
However, a parent's "parenting time rights" cannot be "restricted" unless the court finds that the parenting time "would endanger the child's physical health or significantly impair the child's emotional development." Section 14-10-129(1)(b)(I). The statute specifically gives the trial court authority to modify "an order granting or denying parenting time rights." Section 14-10-129(1)(a)(I), C.R.S.2003.
The term "parenting time rights" is not defined. This term introduces the concept of "rights," which is not present in the provisions that allow the trial court to allocate parenting time. The distinction is an important one because we are called upon to determine whether the modification of temporary orders granting parenting time is subject to the higher endangerment standard imposed by § 14-10-129(1)(b)(I). Father thus contends that if the trial court's permanent orders substantially reduce the amount of parenting time originally specified in the temporary orders, the permanent orders are subject to the endangerment standard, not the best interests of the child standard. We are not persuaded.
In construing the standard set forth in § 14-10-129(1)(b)(I), we must ascertain and effectuate the underlying legislative intent from the plain and ordinary meaning of the statutory language. See People v. Longoria, 862 P.2d 266 (Colo.1993)
. Constructions that defeat the obvious legislative intent should be avoided so as to give consistent and sensible effect to all parts of a statutory scheme. People v. Dist. Court, 713 P.2d 918 (Colo.1986). We decline to follow a statutory construction that leads to an unreasonable or absurd result. People v. Woellhaf, 87 P.3d 142 (Colo.App.2003)(cert. granted Mar. 22, 2004). Each word in a statute should be considered in the interpretation. City of Florence v. Bd. of Waterworks, 793 P.2d 148 (Colo.1990).
The General Assembly has declared that it is in the best interest of all parties to encourage frequent and continuing parenting time between each parent and the minor children of the marriage after separation or dissolution. Section 14-10-124(1), C.R.S. 2003. The court's discretion with respect to allocation of parenting time must be exercised consistently with this policy. In re Marriage of Velasquez, 773 P.2d 635 (Colo. App.1989).
Parties frequently allocate parenting time pursuant to a stipulated separation agreement. See § 14-10-112(1), C.R.S.2003. Such an agreement is not binding on the court. Section 14-10-112(2), C.R.S.2003. However, the court may enter a temporary order allocating temporary parental responsibilities, including temporary parenting time and temporary decision-making responsibility. Section 14-10-125, C.R.S.2003.
Temporary orders regarding parenting time and decision-making responsibility are intended to determine those matters pending final orders. Temporary orders are not determinative of the permanent orders regarding allocation of parental responsibility or other matters. In re Marriage of Lawson, 44 Colo.App. 105, 608 P.2d 378 (1980)(an agreement for temporary custody is not res judicata as to the permanent order for custody).
We conclude that temporary orders do not grant "parenting time rights" as that term is specified in § 14-10-129(1)(b)(I), but simply provide for parenting time pending a final determination at permanent orders. While temporary orders are enforceable, we do not view them in the same way we view permanent orders, which establish rights in connection with the decree of dissolution that stay in effect until one party establishes a change in circumstances. We do not address whether parenting time could be restricted in temporary orders, such as by supervised visitation. See In re Marriage of West, 94 P.3d 1248 (Colo.App.2004)
.
Only permanent orders grant "parenting time rights." Therefore, the question whether a restriction has occurred in parenting time need be answered only when permanent, not temporary, orders are modified. To hold otherwise would undermine the role that stipulations and temporary orders play in family law.
Our review of the Uniform Dissolution of Marriage Act (UDMA) confirms this analysis. The UDMA encourages trial courts to issue temporary orders...
To continue reading
Request your trial
-
In re C.T.G.
...to determine those matters pending final orders, and they do not carry res judicata (claim preclusion) effect. In re Marriage of Fickling, 100 P.3d 571 (Colo.App.2004). In Fickling, supra, 100 P.3d at 572-73, the parents entered into a stipulated parenting plan which provided that the child......
-
Lawry v. Palm
...defendant. We decline to follow a statutory construction that leads to such an unreasonable or absurd result. See In re Marriage of Fickling, 100 P.3d 571, 573 (Colo.App.2004). We discern nothing in the statute that permits one to condition an offer of settlement upon dismissal of claims ag......
-
In re Marriage of Ebel
...P.2d 776 (Colo.1996)(citing commissioner's comment to uniform act in interpreting child custody provisions of UMDA); In re Marriage of Fickling, 100 P.3d 571 (Colo.App.2004)(citing official comment to UMDA in analyzing weight given to temporary Section 308(a) of the UMDA is similar to § 14-......
-
Spahmer v. Gullette, 03SC751.
...such orders merely allocate parental responsibilities pending a hearing pursuant to subsection 14-10-124(1.5). In re Marriage of Fickling, 100 P.3d 571, 574 (Colo.App.2004); In re Marriage of Lawson, 44 Colo.App. 105, 107-08, 608 P.2d 378, 380 (1980). Accordingly, allocation of parental res......
-
Family Law and Juvenile Delinquency - October 2008
...7. Montoya v. Bebensee, 761 P.2d 285 (Colo.App. 1988). 8. Id. at 288. 9. CRS § 14-10-108(1.5). 10. See In re the Marriage of Fickling, 100 P.3d 571 (Colo.App. 2004). 11. CRS § 19-2-511(1). See People v. J.D., 989 P.2d 762 (Colo. 1999). 12. CRS § 19-2-506. 13. CRS § 19-2-513(2). 14. CRS § 19......