In re Marriage of Yates, No. 04CA1310.

Docket NºNo. 04CA1310.
Citation148 P.3d 304
Case DateJune 29, 2006
CourtCourt of Appeals of Colorado
148 P.3d 304
In re the MARRIAGE OF Louise A. YATES, Appellee, and
Dan A. Yates, Appellant.
No. 04CA1310.
Colorado Court of Appeals, Div. III.
June 29, 2006.
Certiorari Denied November 13, 2006.

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COPYRIGHT MATERIAL OMITTED

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Canges, Iwashko, Bethke & Bailey, P.C., Erich L. Bethke, James S. Bailey, Denver, Colorado, for Appellee.

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Dan A. Yates, Pro Se.

ROY, J.


In this dissolution of marriage proceeding, Dan A. Yates (husband) appeals from the trial court's permanent orders relating to the allocation of parental responsibilities, child support, maintenance, the division of marital property, and the issuance of a permanent injunction. We affirm in part, reverse in part, and remand for further proceedings.

Husband and Louise A. Yates (wife) are the parents of one child. During a confrontation which occurred in the presence of the child, wife apparently threatened husband with a knife. As a result of this confrontation, an emergency protection order was entered awarding temporary care and control of the child to husband and ordering wife to have no contact with husband. The next day, a mandatory restraining order to the same effect was entered against wife. Further, as a result of this confrontation, wife was charged and convicted of felony menacing as to husband and misdemeanor child abuse as to the child.

Shortly thereafter, wife filed a petition for dissolution of marriage and requested the entry of temporary orders granting her parental responsibilities for the child, child support, maintenance, and use of the marital home. After a hearing, the trial court appointed a special advocate, ordered both parties to obtain psychological evaluations, and, pending a report by the special advocate, awarded parental responsibilities to husband and granted wife supervised parenting time. Shortly thereafter, the special advocate advised the court that wife did not pose a danger to the child, and wife was granted unsupervised parenting time.

After several subsequent hearings, additional reports by the special advocate, and psychological evaluations of both parties, the court entered temporary orders. The court found that wife did not pose a threat to the physical or emotional welfare of the child, that she had historically been the child's primary caregiver, and that she had provided a beneficial and nurturing environment for him. Based upon these findings and the recommendations of the special advocate, the court ordered that the child should live primarily with wife, and that husband should have a weekly dinner visit with the child as well as visitation every other weekend. In accordance with the parties' agreement, a parental responsibilities evaluation was ordered.

The court received the recommendations of the special advocate and the parental responsibilities evaluator. Both recommended that the child should reside primarily with wife, and that wife should make all major decisions regarding the child. After reviewing the reports of the special advocate and the parental responsibilities evaluator and hearing their testimony as well as that of the parties and other witnesses, and after considering the wishes of the parents, the wishes of the child, and other relevant factors as set forth in § 14-10-124, C.R.S.2005, the trial court determined that it was in the child's best interests to continue the existing parenting time schedule, modified to add additional parenting time for husband. Decision-making responsibility regarding the child's extracurricular activities was allocated to husband, and decision-making responsibility regarding all other issues was allocated to wife. The court also extended the existing mutual restraining order until the child reached the age of nineteen.

The court then imputed to husband a monthly income of $12,845, based upon his earnings in his most recent employment, and ordered him to pay child support in an amount reflecting such earnings. Husband was ordered to continue to pay the mortgage on the marital home until its sale, and thereafter to pay wife $500 per month in maintenance. The court ordered that the marital property should be divided equally, and that each party should be responsible for his or her own debts. Finally, the court ordered that seventy percent of the parties' combined legal fees should be paid by husband, and thirty percent by wife, in proportion to each party's share of the total amount of income earned by them.

Husband now appeals the permanent orders relating to the allocation of parental responsibilities, child support, maintenance,

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the division of marital property, and payment of attorney fees. He also appeals the entry of the mutual restraining order.

I. Parenting Time and Decision-Making

Husband first contends that the trial court erred in awarding primary parenting time to wife, with a subsequent transition to equal parenting time, and in awarding sole decision-making to her, in view of her conviction on charges of domestic violence and misdemeanor child abuse. Husband argues that such an award exposes the child to abuse and contravenes § 14-10-124(1.5), C.R.S.2005. We perceive no error here.

Pursuant to § 14-10-124(1.5)(a)(IX) and (X), C.R.S.2005, in determining the allocation of parenting time, the court must consider whether one of the parties has been a perpetrator of child abuse or spousal abuse. The court must also consider such factors in allocating decision-making responsibilities pursuant to § 14-10-124(1.5)(b)(IV) and (V), C.R.S.2005.

A finding that a parent has been a perpetrator of child abuse or spousal abuse does not bar an award of parenting time or decision-making responsibility to that parent. Such factors are but two, albeit important, factors in assessing the best interests of the child. See In re Marriage of Bertsch, 97 P.3d 219 (Colo.App.2004)(trial court did not abuse its discretion in allocating primary parental responsibility and all decision-making responsibility to husband who had been charged with child abuse after striking eight-year-old son in the face; husband had worked on pertinent issues with a parenting coordinator and his own therapist, and two parenting time evaluators, the guardian ad litem, and the children's therapist all recommended that husband should be the primary residential parent and that he should have all decision-making authority).

The determination of the weight, probative force, and sufficiency of the evidence, as well as the inferences and conclusions to be drawn therefrom, are matters within the sole discretion of the trial court. In re Marriage of Lewis, 66 P.3d 204 (Colo.App.2003).

Here, it was not disputed that wife had been convicted of menacing husband with a knife, and that because this occurred in the child's presence, she had also been convicted of misdemeanor child abuse. However, both the special advocate and the parental responsibilities evaluator recommended that the child should reside with wife and that she should be the primary decision-maker. In support of this recommendation, the special advocate advised the court that wife had received counseling and was continuing to receive counseling; that she appeared to be benefiting from the therapy; and that there had been no further incidents in the two years since the incident that had led to wife's arrest. The special advocate also stated that in her opinion the child's primary attachment was to wife, the attachment was healthy, and wife was the parent who was more able to put the child's needs first.

At the hearing on permanent orders, wife testified that she had been the victim of verbal abuse escalating to physical abuse by husband. Both the special advocate and the parental responsibilities evaluator expressed the opinion that husband likely had been a perpetrator of spousal abuse during the marriage.

In addition, the special advocate reported that husband was very angry toward wife and that it appeared that husband's anger had increased rather than diminished over time. She noted that husband's anger frightened the child. The parental responsibilities evaluator agreed that husband's anger disturbed the child, and found that because of his anger toward wife, husband would not be able to encourage the sharing of love, affection, and contact between wife and the child. The evaluator found that wife was less angry and would be able to encourage the sharing of love, affection, and contact between husband and the child.

The trial court reviewed and made findings regarding the factors set forth in § 14-10-124. The court found that both parties had engaged in spousal abuse and that such abuse had occurred in front of the child and thus constituted abuse of him as well. However, the court also found that wife had been present for the child "most of the time," and

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that the relationship between wife and the child was "very positive." Husband's continuing anger and contempt toward wife were noted, as well as the concerns of the special advocate and the evaluator that husband had limited ability to encourage the sharing of love, affection, and contact between wife and the child.

The court ultimately concluded, based primarily on the "historical parenting relationship" between the parties and the child, that the existing parenting time schedule should be continued until the end of the school year, and that thereafter the child should spend one week with one parent and the next week with the other. Because there was no credible evidence that the parties could make decisions jointly, the court declined to order shared decision-making, and ordered instead that husband should make decisions regarding the child's extracurricular activities, and wife should have responsibility for all other decisions.

We begin our analysis by rejecting husband's contention that the trial court erred in relying on In re Marriage of Bertsch, supra, and in concluding that § 14-10-124 does not prohibit an...

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17 practice notes
  • Mackall v. JPMorgan Chase Bank, N.A., Court of Appeals No. 13CA1427
    • United States
    • Colorado Court of Appeals of Colorado
    • September 11, 2014
    ...and the creditors were not impaired by, the bankruptcy proceedings or the dismissal).¶ 17 We recognize that in In re Marriage of Yates, 148 P.3d 304 (Colo.App.2006), another division of this court held that a debtor who appealed the division of marital property lost standing to pursue that ......
  • In re C.T.G., No. 05CA0783.
    • United States
    • Colorado Court of Appeals of Colorado
    • August 9, 2007
    ...States Parole Comm'n v. Geraghty, 445 U.S. 388, 395-97, 100 S.Ct. 1202, 1208-09, 63 L.Ed.2d 479 (1980)); see In re Marriage of Yates, 148 P.3d 304, 314 (Colo.App.2006)("[W]hile husband had standing to litigate the division of marital property in the trial court, he lost standing to pursue t......
  • In re Kane, No. 09-4254
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • December 21, 2010
    ...Corp., 950 F.2d 524 (8th Cir.1991); In re DiGeronimo, 354 B.R. 625 (Bankr.E.D.N.Y.2006);628 F.3d 642In re Marriage of Yates and Yates, 148 P.3d 304 (Colo.App.2006). However, none of these cases are on all fours with the precise situation before us, nor does any one take into account princip......
  • Mackall v. Jpmorgan Chase Bank, N.A., Court of Appeals No. 13CA1427
    • United States
    • Colorado Court of Appeals of Colorado
    • September 11, 2014
    ...and the creditors were not impaired by, the bankruptcy proceedings or the dismissal). ¶17 We recognize that in In re Marriage of Yates, 148 P.3d 304 (Colo. App. 2006), another division of this court held that a debtor who appealed the division of marital property lost standing to pursue tha......
  • Request a trial to view additional results
17 cases
  • Mackall v. JPMorgan Chase Bank, N.A., Court of Appeals No. 13CA1427
    • United States
    • Colorado Court of Appeals of Colorado
    • September 11, 2014
    ...and the creditors were not impaired by, the bankruptcy proceedings or the dismissal).¶ 17 We recognize that in In re Marriage of Yates, 148 P.3d 304 (Colo.App.2006), another division of this court held that a debtor who appealed the division of marital property lost standing to pursue that ......
  • In re C.T.G., No. 05CA0783.
    • United States
    • Colorado Court of Appeals of Colorado
    • August 9, 2007
    ...States Parole Comm'n v. Geraghty, 445 U.S. 388, 395-97, 100 S.Ct. 1202, 1208-09, 63 L.Ed.2d 479 (1980)); see In re Marriage of Yates, 148 P.3d 304, 314 (Colo.App.2006)("[W]hile husband had standing to litigate the division of marital property in the trial court, he lost standing to pur......
  • In re Kane, No. 09-4254
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • December 21, 2010
    ...Corp., 950 F.2d 524 (8th Cir.1991); In re DiGeronimo, 354 B.R. 625 (Bankr.E.D.N.Y.2006);628 F.3d 642In re Marriage of Yates and Yates, 148 P.3d 304 (Colo.App.2006). However, none of these cases are on all fours with the precise situation before us, nor does any one take into account princip......
  • Mackall v. Jpmorgan Chase Bank, N.A., Court of Appeals No. 13CA1427
    • United States
    • Colorado Court of Appeals of Colorado
    • September 11, 2014
    ...and the creditors were not impaired by, the bankruptcy proceedings or the dismissal). ¶17 We recognize that in In re Marriage of Yates, 148 P.3d 304 (Colo. App. 2006), another division of this court held that a debtor who appealed the division of marital property lost standing to pursue tha......
  • Request a trial to view additional results

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