In re Marriage of Bertsch, No. 02CA0888.

• Docket Nº: No. 02CA0888.
• Citation: 97 P.3d 219
• Case Date: January 15, 2004
• Court: Court of Appeals of Colorado

97 P.3d 219

In re the MARRIAGE OF Greg BERTSCH, Appellee, and
Julie Bertsch, Appellant

No. 02CA0888.

Colorado Court of Appeals, Div. I.

January 15, 2004.

As Modified on Denial of Rehearing February 12, 2004.

Certiorari Denied August 16, 2004.¹

97 P.3d 220

Alpern, Myers, Stuart, Scheuerman & Hickey, LLC, Elizabeth Tormoen Hickey, Colorado Springs, Colorado, for Appellee

M. Patricia Marrison, P.C., M. Patricia Marrison, Shasta R. Smith, Colorado Springs, Colorado, for Appellant.

Gerald A. Kimble, Jr., Guardian Ad Litem.

Opinion by Judge DAILEY.

Julie Bertsch (wife) appeals from the permanent orders allocating parental responsibilities of the parties' two sons to Greg Bertsch (husband). We affirm.

I.

Wife contends that the trial court abused its discretion in allocating primary parental responsibility and all decision-making responsibility to husband, contrary to the provisions of § 14-10-124(1.5)(b)(IV)-(V), C.R.S.2003. We disagree.

Section 14-10-124(1.5), C.R.S.2003, provides that a court is to determine the allocation of parental responsibilities, including parenting time and decision-making responsibilities, in accordance with the best interests of the child. In determining parenting time

97 P.3d 221

and decision-making responsibility, the court is to consider a number of factors, including whether one of the parties has been shown "by credible evidence" to be a perpetrator of child abuse or spouse abuse. Section 14-10-124(1.5)(a)(IX)-(X), (b)(IV)-(V), C.R.S.2003; see In re Marriage of McCaulley-Elfert, 70 P.3d 590, 593 (Colo.App.2003)(in this context, "by credible evidence" means no more than by a preponderance of the evidence)

With respect to decision-making responsibility, if the court makes a finding "that one of the parties has been a perpetrator of child abuse or neglect, then it shall not be in the best interests of the child to allocate mutual decision-making with respect to any issue over the objection of the other party or the representative of the child." Section 14-10-124(1.5)(b)(IV). Similarly, under § 14-10-124(1.5)(b)(V), if the court makes a finding:

that one of the parties has been a perpetrator of spouse abuse, then it shall not be in the best interests of the child to allocate mutual decision-making responsibility over the objection of the other party or the representative of the child, unless the court finds that the parties are able to make shared decisions about their children without physical confrontation and in a place and manner that is not a danger to the abused party or the child.

Here, husband had been charged with child abuse, but pleaded guilty to third degree assault, for striking his eight-year-old son hard in the face. The court initially indicated that this did not qualify as evidence of child abuse under the statute. However, for purposes of resolving this case, the court assumed that this was sufficient evidence of child abuse under the statute. It also found that wife presented credible evidence of spouse abuse by husband. Nonetheless, the court awarded primary parental and sole decision-making responsibility to husband.

Neither party had sought mutual decision-making responsibility, and the court concluded that nothing in § 14-10-124(1.5)(b)(IV)-(V) forbids awarding primary parental responsibility and decision-making responsibility to a party who has committed child and spouse abuse.

The interpretation of a statute is a question of law. See Ryals v. St. Mary-Corwin Reg'l Med. Ctr., 10 P.3d 654, 659 (Colo.2000). In interpreting a statute, our task is to give effect to legislative intent. Preston v. Dupont, 35 P.3d 433, 437 (Colo.2001).

In ascertaining legislative intent, we look first to the language employed in the statute. In re Marriage of Dale, 87 P.3d 219, 2003 WL 22723020 (Colo.App. No. 02CA1523, Nov. 20, 2003). If the meaning of a statute is clear and unambiguous, we will apply the statute as written, see Slack v. Farmers Ins. Exch., 5 P.3d 280, 284 (Colo.2000), unless to do so would lead to an absurd result. Showpiece Homes Corp. v. Assurance Co., 38 P.3d 47, 51 (Colo.2001).

In § 14-10-124(1.5)(b), C.R.S.2003, the General Assembly authorized allocation of decision-making responsibility "with respect to each issue affecting the child mutually between both parties or individually to one or the other party or any combination thereof." Yet, in § 14-10-124(1.5)(b)(IV)-(V), the...