In re Thomas

Citation2021 COA 123,501 P.3d 290
Decision Date16 September 2021
Docket NumberCourt of Appeals No. 20CA1726
Parties IN RE the MARRIAGE OF Sergei B. THOMAS, Appellant, and Lydia M. Thomas, Appellee.
CourtCourt of Appeals of Colorado

Thomas Law Group, P.C., Sergei B. Thomas, Denver, Colorado, for Appellant

The Harris Law Firm, P.L.L.P., Katherine O. Ellis, Denver, Colorado, for Appellee

Opinion by JUDGE TOW

¶ 1 In this post-dissolution of marriage case, Sergei B. Thomas (father) appeals two district court orders entered after a hearing on a motion filed by Lydia M. Thomas (mother) regarding where the parties’ child would attend high school. This appeal requires us to explore, apparently as a matter of first impression, the interplay between the allocation of joint educational decision-making and the designation of one parent's residence as the child's residence "for purposes of school attendance." In so doing, we reject father's argument that the mere fact that his residence is the child's residence for school attendance purposes gives him a de facto veto over mother's desires when selecting a school for the child.

¶ 2 We also conclude that part of father's appeal is moot because it is directed at an order that the district court already vacated.

¶ 3 We thus dismiss the appeal of the vacated order and affirm the order resolving the parties’ impasse regarding school enrollment.

I. Relevant Facts

¶ 4 The district court dissolved the parties’ marriage in 2006. The parties’ separation agreement, which included a parenting plan for their only child, was incorporated into the decree.

¶ 5 The parties prepared their parenting plan using a now-discontinued model form from the judicial branch, JDF 1421 (revised Sept. 2003).1 The JDF 1421 form the parties used instructed them to check one of three boxes under the heading of paragraph "4. Decision-Making": (1) Major Decision-Making by One Party Only; (2) All Major Decision-Making by Both Parties; or (3) Major Decision-Making Divided Between the Parties. The parties marked box 2, agreeing that "[b]oth parties will make ALL major decisions regarding the child(ren) together." The form then directed the parties to proceed "directly to paragraphs 5, 6, 7, 8, and 9 below." Despite this instruction, the parties also checked the boxes under part 3 of the form, which were supposed to be used by parties who were not agreeing to a blanket allocation of either joint decision-making or sole decision-making to one parent for all matters but instead were dividing amongst themselves the allocation of decision-making authority on education, health care, religion, and extracurricular activities.2 Nevertheless, for each of these categories, the parties marked the respective box indicating they would exercise joint decision-making. Within this portion of the form, the parties also marked a box providing that "[f]or purposes of school attendance only, the child(ren)’s residence will be with [father]."

¶ 6 Later in the same form, under a section titled "compliance with state and federal statutes," the parties agreed that mother would be the "custodian of the child(ren) solely for the purposes of all federal and state statutes which require a designation or determination of custody." That section also provided that the custodial designation "shall not affect either party's rights and responsibilities under this parenting plan, or under Colorado law."

¶ 7 Finally, the parties agreed that future disputes related to the parenting plan or to child support would be submitted to mediation, and that if mediation was unsuccessful, "the final decision will be made by the Court."

¶ 8 Four years later, the parties filed a document titled "Stipulation and Order for Modification of Child Support Pursuant to § 14-10-115(14) and Modification of the Primary Residential Custodian Designation." In this stipulation, which was approved by the court, the parties agreed "that the provisions of the Separation Agreement will be modified by designating [father] the primary residential custodian for the minor child."3

¶ 9 In August 2020, a dispute arose because mother wanted the child to attend a high school in Jefferson County while father wanted the child to attend the neighborhood school based on father's residence in Adams County. This impasse prompted mother to file a motion seeking to become the sole decision-maker with respect to the child's high school enrollment. Alternatively, mother requested the district court either authorize her to determine enrollment pursuant to In re Marriage of Dauwe , 148 P.3d 282 (Colo. App. 2006), or resolve the dispute itself pursuant to section 14-10-130, C.R.S. 2020.4 In her motion, mother asserted that both parties agreed that mediation would not be fruitful; father did not dispute this assertion in his response or at the hearing on mother's motion.

¶ 10 At the hearing, the parties agreed that the facts were not in dispute. Thus, the parties presented no testimony, only their legal arguments. Mother asserted that the child was performing well and was socially adjusted, that he had attended schools in Jefferson County since kindergarten, that the high school she wanted him to attend was the school into which his middle school fed, that attending that high school would permit the child to maintain his friendships, and that changing schools would present emotional harm to the child.

¶ 11 Father responded that, based on his residence, the proper school for the child was in Adams County. He argued that mother could not establish any emotional harm to the child, particularly because the child was transitioning from middle school to high school regardless of which school he attended so his friends would likely change at either school. Father pointed out that the Jefferson County schools were not going to be providing any bus service due to the COVID-19 pandemic, thus affecting his ability to pick the child up after school. (In prior years, the child would take a bus to the YMCA after school, where father would pick him up.) He also argued that under Griffin v. Griffin , 699 P.2d 407 (Colo. 1985), he was the child's "primary residential custodian" and thus had the ultimate authority to decide the child's school.

¶ 12 The district court entered an order (the August 21 order) denying mother's motion on three grounds. Citing section 14-10-131, C.R.S. 2020, the court determined that there had been no change in circumstances justifying a modification of educational decision-making responsibility, and that mother had not demonstrated that the current allocation endangered the child's physical health or emotional development.

¶ 13 The court also denied mother's request for relief under section 14-10-130(1), noting that "[t]he [c]ourt's role is not to exercise parental decision-making, but to allocate it." However, the court also rejected father's interpretation of Griffin , noting that the statutory language had been amended, and thus the case was "outdated and inapplicable."

¶ 14 The district court was not persuaded by mother's reliance on Dauwe , in part because it considered the case factually distinguishable and, in part, because in that case the court "allocated decision-making authority where there was no other mechanism to do so." In the end, the court appointed a decision-maker, under section 14-10-128.3(1), C.R.S. 2020, to resolve the school choice issue.

¶ 15 Father moved for relief under C.R.C.P. 60(b), arguing that the court lacked the authority to appoint a decision-maker without his consent. See § 14-10-128.3(1) (providing that, "upon written consent of both parties," the district court may appoint a decision-maker with binding authority to resolve disputes between the parties).

¶ 16 On August 26, 2020, the court entered an order (the August 26 order) modifying its earlier ruling. It concluded that father's unwillingness to consent to a decision-maker left the parties at a "total impasse" in resolving the school issue. Noting that it had previously distinguished Dauwe because in that case there had been no other mechanism available to resolve the dispute, the court explained that the intent of the August 21 order appointing the decision-maker was to provide such a mechanism. Because the court lacked the parties’ consent, however, that effort failed as a matter of law. Thus, the district court concluded, Dauwe was no longer distinguishable, and the court would make the decision for the parties.

¶ 17 The court found that it was in the child's best interests to attend the Jefferson County high school for the 2020-2021 school year and so ordered.

¶ 18 Father appeals both orders.

II. The August 21 Order

¶ 19 As a threshold issue, mother argues that the appeal of the August 21 order is moot. Reviewing the question de novo, see Colo. Mining Ass'n v. Urbina , 2013 COA 155, ¶ 23, 318 P.3d 562, we agree.

¶ 20 The district court acknowledged that its August 21 order appointing a decision-maker was erroneous and that "by operation of C.R.C.P. 60(b)(3) or (5), the parties [were] entitled to relief from the judgment." The context of the August 26 order makes clear that it superseded the August 21 order.

¶ 21 Because the August 21 order is no longer in effect, there is no order to reverse. Thus, any action we may take with respect to the now-vacated order "would have no practical effect on an existing controversy." See In re Marriage of Balanson , 25 P.3d 28, 38 (Colo. 2001). Accordingly, we dismiss the appeal to the extent it seeks reversal of the August 21 order.

III. The August 26 Order
A. Though Moot, We Elect to Address Father's Challenge to the August 26 Order

¶ 22 Because the August 26 order, by its terms, applies only to the 2020-2021 school year — which has come to an end — the appeal of that order also implicates mootness concerns. As a jurisdictional prerequisite, mootness can be addressed at any stage of a proceeding. Diehl v. Weiser , 2019 CO 70, ¶ 9, 444 P.3d 313. "Because we must always satisfy ourselves that we have...

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