In re Schlundt

• Decision Date: 29 April 2021
• Docket Number: Court of Appeals No. 19CA1956
• Court: Colorado Court of Appeals
• Parties: IN RE the MARRIAGE OF Zachary A. SCHLUNDT, Appellee, and Brittany L. Schlundt, n/k/a Brittany L. Fillingame, Appellant.

489 P.3d 781

IN RE the MARRIAGE OF Zachary A. SCHLUNDT, Appellee,

and

Brittany L. Schlundt, n/k/a Brittany L. Fillingame, Appellant.

Court of Appeals No. 19CA1956

Colorado Court of Appeals, Division I.

Announced April 29, 2021

Travis Law Group, PLLC, Richard M. Travis, Colorado Springs, Colorado, for Appellee

Paige Mackey Murray, LLC, Paige Mackey Murray, Boulder, Colorado, for Appellant

Opinion by JUDGE DAILEY

¶ 1 In this post-dissolution of marriage proceeding, Brittany L. Schlundt (mother), now known as Brittany L. Fillingame, appeals the district court's order modifying parenting time for her child. In this appeal, we must determine whether a district court may substantially modify parenting time and change the parent with whom a child resides a majority of the time as an enforcement remedy under section 14-10-129.5(2)(b), C.R.S. 2020, without applying the endangerment standard of section 14-10-129(2)(d), C.R.S. 2020. We conclude that the court must apply the endangerment standard in this circumstance and that, although the court purportedly applied the endangerment standard, it failed to do so correctly. Consequently, we reverse the court's order and remand the case for further proceedings.

I. Background

¶ 2 Mother's marriage to Zachary A. Schlundt (father) ended in June 2017. Mother was designated the primary residential parent for the parties’ minor child but alternated parenting time with father on a weekly basis.

¶ 3 In late 2017/early 2018, both parties moved to relocate with the child — father to Ouray and mother to Florida — and to modify parenting time accordingly. After a hearing, the district court ordered that mother could relocate with the child and that father would have parenting time over the summer and for certain holidays/school breaks.

¶ 4 Six months later, father moved to enforce parenting time under section 14-10-129.5, contending that mother was refusing to communicate with him and denying him parenting time, and that the child was endangered in her care. He requested that the court designate him the child's primary residential parent in place of mother. A parental responsibilities evaluator (PRE) was appointed to investigate and report on father's allegations. Father subsequently filed an amended motion, expanding on the allegations from his initial motion and noting that mother and the child were now living in Georgia, not Florida.

¶ 5 The PRE filed a lengthy report applying the best interests of the child factors under section 14-10-124(1.5)(a), C.R.S. 2020, and recommending that the existing parenting time schedule be "flipped" so that father becomes the child's primary residential parent and mother has parenting time over the summer and for holidays and school breaks.

¶ 6 After a June 2019 hearing, at which mother appeared pro se, father was represented by counsel, and the PRE did not testify, the district court entered oral findings on the record adopting the PRE's recommendations and asked father's attorney to prepare a written order in fourteen days. However, no written order was entered within that time. And mother did not receive parenting time after the hearing even though under the court-ordered schedule, she should have had the child for the summer of 2019. Instead, father kept the child in his care, and both parties requested an emergency status conference. Mother contended that father was denying her summer parenting time. Father contended that mother's post-hearing communications with the child endangered him and asked that her summer parenting time be restricted.

¶ 7 The PRE prepared an updated report recommending that the parties stop their "petty arguing" and follow the court's order and emphasizing that mother's parenting time should not be restricted. The PRE further recommended that father allow the child to have parenting time with mother and encourage the child to be excited about his visits and contact with her, and that mother be positive and avoid emotional reactions when on the phone with the child.

¶ 8 The district court held another hearing in July 2019, after which it eliminated mother's summer parenting time. On September 6, 2019, the court entered a final written parenting time order.

II. The Primary Issues on Appeal

¶ 9 Father brought his motion under section 14-10-129.5, which addresses disputes concerning compliance with parenting time orders. Under section 14-10-129.5(2)(b), if a court finds after a hearing that a parent has violated a parenting time order, the court may enter one or more of several remedies, including "modifying the previous order to meet the best interests of the child."

¶ 10 Here, the court purported to enforce its original order by modifying its parenting time provisions. Section 14-10-129 addresses parenting time modifications specifically and provides in relevant part:

The court shall not modify a prior order concerning parenting time that substantially changes the parenting time as well as changes the party with whom the child resides a majority of the time unless it finds, upon the basis of facts that have arisen since the prior decree or that were unknown to the court at the time of the prior decree, that a change has occurred in the circumstances of the child or the party with whom the child resides the majority of the time and that the modification is necessary to serve the best interests of the child.

§ 14-10-129(2).

¶ 11 Even if the court finds changed circumstances and that the modification serves the child's best interests, however, it still must retain the parenting time schedule from the prior decree unless, as relevant here, "[t]he child's present environment endangers the child's physical health or significantly impairs the child's emotional development and the harm likely to be caused by a change of environment is outweighed by the advantage of a change to the child" (the endangerment standard). § 14-10-129(2)(d).

¶ 12 The issues raised on appeal concern the relationship, if any, between sections 14-10-129.5(2)(b) and 14-10-129(2)(d) : (1) do they operate independently of one other, or (2) must they be read together to require a showing of endangerment before a court may remedy noncompliance with a previous order by changing the parent with whom the child resides a majority of the time?

¶ 13 Father argued the former position — that is, that under section 14-10-129.5(2)(b) alone, the district court could enforce its earlier order by changing the parent with whom the child resides a majority of the time if it found that such a change was "in the best interests of the child." The district court agreed with that position.

¶ 14 Nonetheless, in an abundance of caution, the district court also purported to alternatively apply the additional endangerment standard of section 14-10-129(2)(d).

¶ 15 On appeal, mother argues that (1) the endangerment standard of section 14-10-129(2)(d) applies to section 14-10-129.5(2)(b) motions to enforce a parenting time order by substantially changing the parenting time as well as changing the parent with whom the child resides a majority of the time; and (2) the endangerment standard was not properly applied by the district court.

¶ 16 Father asserts that (1) mother has waived these arguments for purposes of appeal; (2) section 14-10-129.5(2)(b) operates totally independently of section 14-10-129(2)(d) ; and, in any event, (3) the district court properly applied the endangerment standard.

¶ 17 We address waiver first, then the applicable legal standard, and last the court's endangerment findings.

III. Mother Did Not Waive the Arguments She Presents on Appeal

¶ 18 "Waiver is the intentional relinquishment of a known right." Universal Res. Corp. v. Ledford , 961 P.2d 593, 596 (Colo. App. 1998). To establish waiver, there must be a clear, unequivocal, and decisive act by the party against whom waiver is asserted. Id.

¶ 19 At the pretrial conference before the June 2019 hearing, father's attorney argued that although father's motion had alleged that the child was endangered in mother's care, the child's primary residence could be modified as a sanction under section 14-10-129.5 based on the best interests standard alone. The court, addressing mother specifically, opined to the contrary that a substantial parenting time modification resulting in a change to a child's primary residence would require a showing that the child was endangered.

¶ 20 Father's attorney and the court again discussed the applicable legal standard at the beginning of the hearing with father again arguing that the best interests standard applied to his motion even though he was seeking a substantial change in parenting time. The court then asked mother whether she disagreed with father's attorney's argument, and mother responded: "Of course I do." Mother then responded to the court's further questions by stating that she "absolutely" believes in the best interests of the child and that the court's order "should be in the best interest[s]."

¶ 21 We perceive no clear, unequivocal, and decisive act by mother that would preclude her from raising the arguments she does on appeal. In our view, the court's questions to mother did not make clear that the court would apply one of two standards in resolving father's motion: (1) best interests of the child or (2) endangerment. Although best interests is a separate standard, it is also a factor that the court must consider when applying the endangerment standard. See § 14-10-129(2) (requiring the court to find, in addition to changed circumstances and endangerment of the child, that "the modification is necessary to serve the best interests of the child"). Thus, mother's statement agreeing that the court's parenting time order must be in the child's best interests is not necessarily inconsistent with applying the endangerment standard and does not reflect a clear intent on her part to waive that standard.

¶ 22 Further, mother's rights are not the only rights at issue here. The parties’ parenting time...