In re Wenciker, Court of Appeals No. 20CA1669

• Docket Number: Court of Appeals No. 20CA1669
• Decision Date: 14 July 2022
• Citation: 519 P.3d 381,2022 COA 74
• Parties: IN RE the MARRIAGE OF Jeffrey WENCIKER, Appellee, and Kinsey BOLEN, Appellant.
• Court: Colorado Court of Appeals

519 P.3d 381

2022 COA 74

IN RE the MARRIAGE OF Jeffrey WENCIKER, Appellee,

and

Kinsey BOLEN, Appellant.

Court of Appeals No. 20CA1669

Colorado Court of Appeals, Division VI.

Announced July 14, 2022

Griffiths Law PC, Jennifer Schaffner, Lone Tree, Colorado, for Appellee

Leslie A. Goldstein Attorney at Law, LLC, Leslie A. Goldstein, Steamboat Springs, Colorado, for Appellant

Opinion by JUDGE WELLING

¶ 1 In this post-dissolution of marriage parental responsibilities action between Kinsey Bolen (mother) and Jeffrey Wenciker (father), mother appeals the trial court's order modifying parenting time and decision-making authority for the parties’ two children.

Because one of the children is now over the age of eighteen, we dismiss the appeal as to him as moot; because the younger child is still a minor, we reach the merits of mother's appeal as to her.

¶ 2 In his motion to modify, father sought to substantially change parenting time and to modify decision-making from joint decision-making to sole decision-making by him. His motion rested in large part on the same allegations of endangerment that he had asserted and failed to prove in connection with an emergency motion to restrict parenting time that the court had recently denied. Notwithstanding having previously denied father's emergency motion to restrict, the court granted his motion to modify.

¶ 3 Mother argues that because the Uniform Dissolution of Marriage Act (UDMA) requires motions to modify such as father's be based on "facts that have arisen since the prior decree or that were unknown to the court at the time of the prior decree," §§ 14-10-129(2), - 131(2), C.R.S. 2021, the court's denial of his emergency motion to restrict barred the court from relying on the same facts to grant the motion to modify. We reject mother's argument and conclude that allegations of endangerment from a failed emergency motion to restrict parenting time can, if ultimately proved, be the basis for a subsequent motion to substantially change parenting time or modify decision-making.

¶ 4 Because we reject mother's construction of the statute and because the court's findings are supported by the record, we affirm the order as to the younger child.

I. Background

¶ 5 The parties were divorced in Kansas in 2009. Under their 2011 modified parenting plan, mother was designated the primary residential parent for their two children, father had parenting time during school breaks and over the summer, and the parties shared joint decision-making authority.

¶ 6 In 2019, after father relocated to Virginia, he registered the Kansas order in Colorado, where mother and her husband (stepfather) lived with the children. At the same time that he registered the Kansas order in Colorado, father also filed an emergency motion to restrict mother's parenting time pursuant to section 14-10-129(4). Less than two weeks later, and after a hearing, the trial court denied that motion, finding that father had failed to carry his burden of proof. Shortly after the court's denial of his emergency motion to restrict parenting time, father moved to appoint a child and family investigator (CFI) and to modify parenting time and decision-making authority. The court granted the motion for a CFI and set a hearing on the motion to modify.

¶ 7 After a two-day hearing on father's motion to modify, the court entered a lengthy order finding that the children were endangered in mother's care and that any potential harm caused by transitioning them to father's care in Virginia was "substantially outweighed" by the harm caused by remaining with mother. The court further found that the decision-making allocation in place endangered the children because mother was incapable of engaging in joint decision-making and her unilateral decisions "endanger[ed] the children's physical, educational, and emotional well-being." Accordingly, the court designated father the children's primary residential parent and allocated sole decision-making authority to him.

II. The Appeal Is Moot as to the Parties’ Older Child

¶ 8 The record reflects that the parties’ older child turned eighteen while this appeal was pending. As an adult, he has the right to make his own decisions, including whether and how often to visit his parents, rendering any parenting time and decision-making orders unenforceable as to him. See In re Marriage of Tibbetts , 2018 COA 117, ¶¶ 12–13, 428 P.3d 686 ; see also § 13-22-101(1)(d), C.R.S. 2021 (deeming a person eighteen years or older as of full age to "make decisions in regard to his own body ... to the full extent allowed to any other adult person").

¶ 9 Therefore, mother's appeal as to the older child is moot, and we dismiss the appeal as it relates to him. See Tibbetts , ¶¶ 7–8, 21, 28 ; see also Fullerton v. Cnty. Ct. , 124 P.3d 866, 867 (Colo. App. 2005) (addressing mootness issue nostra sponte because it is an issue of subject matter jurisdiction).

¶ 10 We next address mother's contentions as they relate to the parties’ younger child.

III. Modification of Parenting Time and Decision-Making Authority as to the Parties’ Younger Child

¶ 11 Mother contends that the trial court erred in two respects when it granted father's motion to modify and designated him the child's primary residential parent and sole decision-maker. First, she contends that the court erred by relying on the same claims of endangerment that father had previously asserted in an emergency motion to restrict parenting time filed pursuant to section 14-10-129(4), which the court rejected in ruling on that motion. Second, she contends that even if father could rely on allegations predating the denial of his emergency motion to restrict parenting time, the court's findings aren't supported by the record. We address, and reject, both contentions below.

A. Previously Asserted Allegations of Endangerment

1. Statutory Scheme

¶ 12 Section 14-10-129 governs the modification of parenting time orders. When, as here, a parent seeks to modify a prior parenting time order in a way that "substantially changes the parenting time as well as changes the party with whom the child resides a majority of the time,"

[t]he court shall not modify [the] prior order ... 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) (emphasis added).

¶ 13 That subsection goes on to provide that the court shall retain the parenting time schedule from the prior order unless, as relevant here,¹ "[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." § 14-10-129(2)(d).

¶ 14 Similarly, when resolving a motion to modify decision-making authority,

[t]he court shall not modify a custody decree or a decree allocating decision-making responsibility 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 child's custodian or party to whom decision-making responsibility was allocated and that the modification is necessary to serve the best interests of the child.

§ 14-10-131(2) (emphasis added).

¶ 15 And the court must retain the allocation of decision-making responsibility established by the prior decree unless, as relevant here, "[t]he retention of the allocation of decision-making responsibility would endanger 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." § 14-10-131(2)(c); see also In re Parental Responsibilities Concerning B.R.D. , 2012 COA 63, ¶¶ 17–18, 280 P.3d 78.

2. Standard of Review

¶ 16 Mother argues that the court erred because it had previously denied father's emergency motion to restrict her parenting time and father alleged no new facts or circumstances in his motion to modify. We aren't persuaded.

¶ 17 Mother's argument requires us to interpret the phrase "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," as used in sections 14-10-129(2) and 14-10-131(2). This presents an issue of statutory interpretation, which we review de novo. In re Marriage of Mack , 2022 CO 17, ¶ 13, 507 P.3d 524. In construing a statute, our goal "is to give effect to legislative intent." Johnson v. Sch. Dist. No. 1 , 2018 CO 17, ¶ 11, 413 P.3d 711. Therefore, we examine "the entire statutory scheme to give consistent, harmonious, and sensible effect to all parts," and we apply "words and phrases according to their plain and ordinary meaning." Vallagio at Inverness Residential Condo. Ass'n, Inc. v. Metro. Homes, Inc. , 2017 CO 69, ¶ 16, 395 P.3d 788 (quoting Pulte Home Corp. Inc. v. Countryside Cmty. Ass'n, Inc. , 2016 CO 64, ¶ 24, 382 P.3d 821 ).

¶ 18 When the statutory language is clear, we must enforce it as written. Mack , ¶ 14. Only if the language is ambiguous may we resort to other tools of statutory construction. Id. (citing Munoz v. Am. Fam. Mut. Ins. Co. , 2018 CO 68, ¶ 9, 425 P.3d 1128 ).

3. Analysis

¶ 19 To begin, the plain language of the statutes—specifically their reference to "prior decree"—doesn't bar a court from considering allegations contained in a previously denied emergency motion to restrict parenting time. The "prior decree" in this case wasn't the order denying father's motion to modify; it was the parenting time and decision-making orders that were in place when father filed his emergency motion. Mother offers no...