In re Marriage of McCaulley-Elfert

• Decision Date: 27 March 2003
• Docket Number: No. 01CA0767.,01CA0767.
• Citation: 70 P.3d 590
• Parties: In re the MARRIAGE OF Debra K. McCAULLEY-ELFERT, Appellee, and Michael J. Elfert, Appellant.
• Court: Colorado Court of Appeals

70 P.3d 590

In re the MARRIAGE OF Debra K. McCAULLEY-ELFERT, Appellee, and

Michael J. Elfert, Appellant.

No. 01CA0767.

Colorado Court of Appeals, Div. II.

March 27, 2003.

Cage Williams Abelman & Layden, P.C., Jordan M. Fox, Denver, Colorado, for Appellee.

Marc J. Kaplan Attorney at Law, LLC, Marc J. Kaplan, Denver, Colorado, for Appellant.

Opinion by Judge MARQUEZ.

In this dissolution of marriage proceeding between Michael J. Elfert (husband) and Debra K. McCaulley-Elfert (wife), husband appeals from the trial court's permanent orders insofar as they contain findings that he abused his stepdaughter. We affirm.

The parties married in 1996 and were granted a decree of dissolution in 2000. They have a son who was born in 1997. Wife also has a daughter from a previous marriage, who was born in 1994 and resides with her.

As part of its determinations concerning the allocation of parental responsibility for the parties' son, the trial court found that husband had committed acts of domestic violence against wife and had been a perpetrator of child abuse or neglect as defined in § 18-6-401, C.R.S.2002. Specifically, the court found credible wife's testimony that she had observed husband engaging in inappropriate sexual behavior with her daughter. Husband appeals from this latter finding.

I.

Because husband does not challenge the court's allocation of parental responsibility regarding the parties' son, our review of the court's permanent orders will not affect that allocation. However, the challenged findings regarding the abuse of his stepdaughter pose a risk of continuing stigma. We will, therefore, consider husband's contentions. See White v. Adamek, 907 P.2d 735 (Colo.App.1995)

(although contemnor no longer faced the possibility of a fine or incarceration, the finding of contempt itself imposed a continuing stigma that could lead to adverse consequences, and therefore, the case was not moot).

II.

We first reject husband's contention that the trial court erred in entering findings with respect to his stepdaughter because it had no jurisdiction over her.

Husband argues that § 14-10-124, C.R.S. 2002, vests the court with authority to allocate parental responsibility only for the children of the marriage being dissolved. Because neither party sought orders regarding the stepdaughter, husband asserts that the court exceeded its jurisdiction in addressing wife's allegations of child abuse against her daughter. He further maintains that his alleged conduct with the stepdaughter is not pertinent to the issues presented to the court concerning the parties' son.

We acknowledge that the court had no jurisdiction over the stepdaughter. The matters presented for adjudication to the court in no way involved the rights of the stepdaughter or her relationship with her mother.

However, we do not agree with husband that jurisdiction over the stepdaughter was necessary for the trial court to consider evidence of his sexual misconduct in determining the parental responsibility issues raised with respect to the parties' son. Section 14-10-124(1.5)(a)(IX) and (b)(IV), C.R.S. 2002, require the court to give paramount consideration to credible evidence of child abuse or neglect in determining the child's best interest for purposes of allocating parenting time and decision-making responsibility.

Indeed, § 14-10-124(1.5)(a)(IX) provides that in determining the best interests of the child for purposes of parenting time, the court shall consider all relevant factors, including: "Whether one of the parties has been a perpetrator of child abuse or neglect under section 18-6-401, C.R.S., or under the law of any state, which factor shall be supported by credible evidence." Section 14-10-124(1.5)(b)(IV) contains an identical wording. It prohibits the trial court from allocating mutual decision-making responsibility over a spouse's objection if the court has made a finding that the other spouse has been a perpetrator of child abuse or neglect.

Nothing within these statutory provisions precludes the court's inquiry into the alleged abuse or neglect when it involves other children. Such a restriction would unduly hinder a court's ability to carry out the statutory directive of assessing all relevant factors when making the best interests determination. Evidence of abuse or neglect, even when the victim is unrelated to the perpetrator, is probative of the overall home environment and the interaction of the parties with their children, issues that lie at the core of any parental responsibility or parenting time proceeding. See People in Interest of A.R.D., 43 P.3d 632 (Colo.App.2001)

(in parenting time determination, court considered evidence of improper sexual contact with unrelated children and conviction of incest with daughter from a prior marriage); see also Thompson v. Thompson, 559 So.2d 4 (La.Ct.App.1990)(stepfather's sexual misconduct with his own daughter was adequate basis for award of sole custody to father and restricted visitation to mother); In re Welfare of H.M.P.W., 281 N.W.2d 188 (Minn.1979)(father's prior convictions for unlawful sexual conduct were sufficient to support the termination of parental rights even though there was no proof that he had harmed his children); Brown v. Brown, 154 Vt. 625, 580 A.2d 975 (1990) (trial court properly admitted and considered evidence that husband had sexually abused his stepdaughter in determining whether he should be awarded visitation with the parties' child). Therefore, husband's reliance on § 14-10-124(2), C.R.S.2002, which instructs the trial court to disregard a party's conduct if it does not affect that party's relationship to the child, is misplaced.

III.

Husband next contends that the trial court erred in its determination that he had committed child abuse as it is defined in § 18-6-401 because the rules and constitutional protections afforded criminal defendants generally were not extended to him. He argues that § 14-10-124(1.5)(a)(IX) does not permit the domestic relations court, under the rules of civil procedure and by a preponderance of the evidence, to determine whether the criminal statute was violated. Again, we disagree.

An appellate court's fundamental responsibility in interpreting a statute is to give effect to the General Assembly's purpose or intent in enacting the statute. Interpretive efforts begin with the language of the statute itself. If the statutory language unambiguously sets forth the legislative purpose, we need not apply additional rules of statutory construction to determine the statute's meaning. Martin v. People, 27 P.3d 846 (Colo. 2001).

Pursuant to § 14-10-124(1.5)(a)(IX) and (b)(IV), the child abuse or neglect must be consistent with the criminal conduct proscribed in § 18-6-401 or the "law of any state." In re Marriage of Chatten, 967 P.2d 206 (Colo.App.1998). Under the criminal statute, a person commits child abuse if such person

causes an injury to a child's life or health, or permits a child to be unreasonably placed in a situation that poses a threat of injury to the child's life or health, or engages in a continued pattern of conduct that results in malnourishment, lack of proper medical care, cruel punishment, mistreatment, or an accumulation of injuries that ultimately results in the death of a child or serious bodily injury to a child.

Section 18-6-401(1)(a), C.R.S.2002.

Here, the trial court found wife's testimony to be credible and based on that testimony found that husband had been a perpetrator of "spouse abuse" as defined in § 14-10-124(4), C.R.S.2002, and had been a perpetrator of child abuse or neglect as defined in § 18-6-401, by a preponderance of the evidence. Specifically, the court found that wife's testimony that her daughter was sexually abused was credible.

We conclude that the trial court was free to credit her testimony over husband's denials in determining that the abuse had occurred. See In re Marriage of Laughlin, 932 P.2d 858 (Colo.App.1997)

(trial court's determination as to the credibility of witnesses and the sufficiency and weight of the evidence cannot be disturbed on appeal unless it is manifestly erroneous); In re Marriage of Agner, 659 P.2d 53 (Colo.App.1982)(finding of endangerment supported by abundant evidence that, regardless of whether they were actually molested, the children feared such would occur if they were returned to the mother and stepfather's home).

Furthermore, while § 14-10-124(1.5)(a)(IX) and (b)(IV) do not state that the factor must be supported by a preponderance of the evidence, those subsections state that it "shall be...