Vanderborgh v. Krauth

• Decision Date: 25 February 2016
• Docket Number: Court of Appeals No. 14CA2258
• Citation: 370 P.3d 661
• Parties: In re the Marriage of Craig Allen VANDERBORGH, Appellant, v. Heidi KRAUTH, Appellee.
• Court: Colorado Court of Appeals

370 P.3d 661

In re the Marriage of Craig Allen VANDERBORGH, Appellant,

v.Heidi KRAUTH, Appellee.

Court of Appeals No. 14CA2258

Colorado Court of Appeals, Div. III.

Announced February 25, 2016

Wedgle Epstein, P.C., Steven B. Epstein, Denver, Colorado; Cox Baker & Page, LLC, Anne Whalen Gill, Castle Rock, Colorado, for Appellant.

Christopher C. Jeffers, Boulder, Colorado, for Appellee.

Opinion by JUDGE BERGER

¶ 1 In this post-dissolution of marriage parenting time dispute between Craig Allen Vanderborgh (father) and Heidi Krauth (mother), father appeals the district court's order denying him a de novo hearing concerning a parenting time ruling by the arbitrator appointed under section 14–10–128.5, C.R.S. 2015

. We affirm and remand the case to the district court to decide mother's request for appellate attorney fees.

I. Background

¶ 2 The parties' marriage ended in 2010. They agreed to a parenting plan for their minor child whereby father would exercise two overnight visits a week and the parties would work toward increasing his overnight visits to five in every two-week period. They further agreed to resolve any future parenting time disputes through mediation and arbitration and asked the court to appoint an arbitrator under section 14–10–128.5

. The district court approved and adopted their plan, finding that it was in the child's best interests. It also appointed the arbitrator they had requested.

¶ 3 In 2011, the parties disagreed on expanding father's parenting time. The arbitrator issued a decision granting father some, but not all, of the additional time requested, and father moved for a de novo hearing, arguing that his time should be further increased. The district court confirmed the arbitrator's ruling and denied father's request for a de novo hearing. Father did not appeal that order. At the parties' request, the court also appointed a new arbitrator.

¶ 4 Father then agreed to reduce his parenting time to six overnight visits a month for an unspecified period of time, and, in January 2014, the court adopted the parties' stipulation.

¶ 5 Father later sought equal parenting time for the summer of 2014. Mother objected to a modification of the parenting time. The arbitrator decided that the then-current parenting schedule should continue and denied father's request. The district court confirmed this arbitration award and no appeal was taken from that order.

¶ 6 A short time later, father again attempted, over mother's objection, to increase his parenting time for the 2014–15 school year. The arbitrator again decided that the then-current schedule should continue. Father moved for a de novo hearing, under section 14–10–128.5(2)

, on his motion to modify the parenting time schedule. The court denied his request for a de novo hearing and confirmed the arbitrator's decision. Father now appeals.

II. A De Novo Hearing Is Not Mandatory Under the Statute

¶ 7 Father first contends that the district court erred by denying him a de novo hearing on his request for equal parenting time during the school year because he claims that section 14–10128.5(2) mandates such a hearing whenever a party requests one.

¶ 8 Statutory interpretation is a question of law that we review de novo. Wolf Ranch, LLC. v. City of Colorado Springs, 220 P.3d 559, 563 (Colo. 2009)

. When interpreting a statute, we must ascertain and effectuate the intent of the General Assembly. People v. Diaz, 2015 CO 28, ¶ 12, 347 P.3d 621. If the statutory language is clear and unambiguous, no further statutory analysis is required, and we apply the statute as written. Romero v. People, 179 P.3d 984, 986 (Colo. 2007). We construe the statute as a whole, in an effort to give consistent, harmonious, and sensible effect to all its parts, and we read the words and phrases in context and construe them according to the rules of grammar and common usage. § 2–4–101, C.R.S

. 2015; Davison v. Indus. Claim Appeals Office, 84 P.3d 1023, 1036 (Colo. 2004). "We do not add words to the statute or subtract words from it." Turbyne v. People, 151 P.3d 563, 567 (Colo. 2007).

¶ 9 If the statutory language is susceptible of more than one reasonable interpretation, it is ambiguous, and only then will we apply interpretive aids to ascertain the General Assembly's intent. Diaz, ¶ 13

. "The plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole." Id. (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 341, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997) ).

¶ 10 Most Colorado arbitration awards are challengeable only under the Colorado Uniform Arbitration Act (CUAA), sections 13–22201 to –230, C.R.S. 2015. An arbitration award may be vacated under the CUAA only if one of the five statutory grounds for vacatur is established. § 13–22–223, C.R.S

.2015; see also Byerly v. Kirkpatrick Pettis Smith Polian, Inc., 996 P.2d 771, 774–75 (Colo. App. 2000). Father did not seek review of the arbitrator's award under the CUAA.

¶ 11 But section 14–10–128.5(2)

provides for an additional type of review of arbitration awards involving disputes over the parties' minor or dependent children, including, as relevant here, disputes regarding parenting time.

¶ 12 Section 14–10–128.5(2) provides in pertinent part:

Any party ... may move the court to modify the arbitrator's award pursuant to a de novo hearing concerning such award by filing a motion for hearing no later than thirty-five days after the date of the award. In circumstances in which a party moves for a de novo hearing by the court, if the court, in its discretion based on the pleadings filed, grants the motion and the court substantially upholds the decision of the arbitrator, the party that requested the de novo hearing shall be ordered to pay the fees and costs of the other party....

(Emphasis added.)

¶ 13 Father contends that section 14–10–128.5

grants him an absolute right to a de novo hearing upon his request and that the district court erred in denying him one. In support of his position, he asserts that section 14–10–128.5(2) is susceptible of two or more reasonable interpretations and thus is ambiguous.

¶ 14 His argument turns on the phrase "grants the motion." He contends that the word "motion" could refer to either a motion to modify the arbitrator's award or a motion for a de novo hearing. He then asserts that, in context, the General Assembly could only have intended to give the court discretion to modify an arbitrator's award, not discretion whether to grant or deny a de novo hearing. We reject this argument and instead conclude that the plain language of the statute gives the court discretion to grant or deny a party's motion for a de novo hearing.

¶ 15 The purpose of a de novo hearing is for the court to hear the relevant evidence and base its decision whether to "substantially uphold [ ]" the arbitrator's decision on the evidence, not just the "pleadings." See B.C., Ltd. v. Krinhop, 815 P.2d 1016, 1018 (Colo. App. 1991)

. Under father's interpretation, only the "pleadings filed," but not the arguments or evidence presented at the de novo hearing, could be considered in making the decision on the merits of the parenting time dispute. That makes no sense. Instead, we conclude that the only reasonable reading of these words is that upon the filing of a motion for a de novo hearing, the court considers the "pleadings filed" in exercising its discretion whether to grant a de novo hearing. Then, if those pleadings persuaded the court to grant a de novo hearing, it will consider the pleadings and the arguments and evidence presented at that hearing on the ultimate question of whether the motion to modify the arbitrator's award should be granted or denied.

¶ 16 Father also argues that because denial of a right to a de novo hearing would violate his rights to due process, we should apply the rule of construction that requires a court to choose the interpretation of a statute that meets constitutional requirements. See State, Dep't of Labor & Employment v. Esser, 30 P.3d 189, 194 (Colo. 2001)

. But that rule of construction applies only when a statute is ambiguous, and we have concluded that the statute is not ambiguous. See Fields v. Suthers, 984 P.2d 1167, 1172 (Colo. 1999). Even if the statute were ambiguous, we would reject reliance upon this rule of construction because, as discussed later in this opinion, a statutory scheme in which de novo review of an arbitration award is discretionary does not violate father's due process rights.

¶ 17 Finally, father's reliance on In re Marriage of Popack, 998 P.2d 464, 468–69 (Colo. App. 2000)

, to support his assertion that a de novo hearing is mandatory is misplaced for two reasons. First, the Popack court construed a previous version of the statute, which did not contain the "in its discretion" language that is before us. See id. Second, even under the former statute, the Popack court concluded only that the trial court "retains jurisdiction" to decide issues relating to the children de novo, not, as father argues, that a de novo hearing is mandatory whenever one is requested. See id. ; see also In re Marriage of Rivera, 2013 COA 21, ¶ 15, 300 P.3d 994.

III. Section 14–10–128.5(2)

's Grant of Discretion to the District Court Is Not Unconstitutional as Applied to Father or the Child

¶ 18 Father next argues that section 14–10–128.5(2)

is unconstitutional as the district court applied it because it "allows an arbitration decision on parenting time, a constitutionally protected interest, without procedural safeguards and only discretionary review." He further argues that the parties' child has been denied equal protection because he does not have the same rights as children whose parents do not choose arbitration for parenting time disputes. We reject both contentions.

¶ 19 Our review of the constitutional issues father raises is de novo. See Morris–Schindler, LLC v. City & Cty. of Denver, 251...