In re Marriage of McCaulley-Elfert, No. 01CA0767.

• Docket Nº: No. 01CA0767.
• Citation: 70 P.3d 590
• Case Date: March 27, 2003
• Court: Court of Appeals of Colorado

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.

70 P.3d 591

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

70 P.3d 592

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....