In re Marriage of Bertsch, 02CA0888.

• Decision Date: 15 January 2004
• Docket Number: No. 02CA0888.,02CA0888.
• Citation: 97 P.3d 219
• Parties: In re the MARRIAGE OF Greg BERTSCH, Appellee, and Julie Bertsch, Appellant.
• Court: Colorado Court of Appeals

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

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 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 General Assembly chose to either prohibit (in the case of child abuse) or presumptively prohibit (in the case of spouse abuse) only "mutual decision-making" responsibility.

This contrast in the General Assembly's language used in the above-mentioned provisions leads us to conclude that, by enacting § 14-10-124(1.5)(b)(IV)-(V), it did not intend to bar or presumptively bar an abusive parent or spouse from exercising individual decision-making responsibility with respect to children. See Hendricks v. People, 10 P.3d 1231, 1238 (Colo.2000)

("The legislative choice of language may be concluded to be a deliberate one calculated to obtain the result dictated by the plain meaning of the words.") (quoting City & County of Denver v. Gallegos, 916 P.2d 509, 512 (Colo.1996)); see also Joseph v. Wiles, 223 F.3d 1155, 1161 (10th Cir.2000)(where the legislature "includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that [it] acts intentionally and purposely in the disparate inclusion or exclusion") (quoting United States v. Burch, 202 F.3d 1274, 1277 (10th Cir.2000)).

Wife asserts that the General Assembly could not have intended such an absurd result. For this assertion, she relies on the following comment of a leading proponent of the measures at issue here before a legislative committee: "[I]n terms of harmfulness of parents, if there's abuse in the relationship between the parents, if there is abuse towards the children, then you can take all of the decision-making authority away from the person who is abusive and there are standards for determining that." Hearings on H.B. 1183 before the House Judiciary Committee, 61st General Assembly, Second Session (Jan. 29, 1998)(House Hearings)(remarks of then University of Denver Adjunct Law Professor, now judge of the Eighteenth Judicial District, Angela Arkin).

We are unpersuaded by wife's argument. Responding to objections that the measures did not go far enough in barring abusive parents or spouses from decision-making responsibility, that very same proponent later testified before the Senate Judiciary Committee: "If the parent isn't 100% bad, then they should get some input into decision-making. This bill allows the court that flexibility." Hearings on H.B. 1183 before the Senate Judiciary Committee, 61st General Assembly, Second Session (Apr. 13, 1998)(Senate Hearings)(remarks of Professor Arkin). Further, another proponent related that there was nothing in the bill "which requires the court or prohibits the court from giving sole decision-making on every issue to one party or the other." Senate Hearings (remarks of Michael DiManna, representing the Family Law Section of the Colorado Bar Association).

The General Assembly's failure to amend the bill following this discussion leads us to conclude that, consistent with our plain language analysis, the General Assembly did not mean to preclude as a matter of law abusive parents or spouses from exercising individual, and even sole, decision-making responsibility.

Trial courts traditionally allocate parental responsibilities, including parenting time and decision-making, in accordance with the best interests of the children, giving paramount consideration to the physical, mental, and emotional conditions and needs of the children, after considering numerous statutory factors. See People in Interest of A.M.K., 68 P.3d 563, 565-66 (Colo.App.2003)

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