Justia Colorado Supreme Court Opinion SummariesArticles Posted in Family Law
In re Estate of Yudkin
When Viacheslav Yudkin died intestate, his ex-wife, Petitioner Svetlana Shtutman, was appointed personal representative of his estate. Respondent Tatsiana Dareuskaya sought Shtutman’s removal, asserting that she (Dareuskaya) should have had priority for that appointment as Yudkin’s common law wife. A probate court magistrate found that although Yudkin and Dareuskaya cohabitated and held themselves out to their community as married, other factors weighed against a finding of common law marriage, including that the couple did not file joint tax returns, own joint property or accounts, or share a last name. The court of appeals reversed the magistrate’s order, concluding that the magistrate abused his discretion by misapplying the test for a common law marriage set out in Colorado v. Lucero, 747 P.2d 660 (Colo. 1987). Shtutman petitioned the Colorado Supreme Court for certiorari review. The Supreme Court concluded the trial court was unclear whether the magistrate found Yudkin and Dareuskaya mutually agreed to enter into a marital relationship. Further, the magistrate’s treatment of certain evidence, such as the fact that the parties maintained separate finances and property, and that Dareuskaya never took Yudkin’s name, may have been appropriate under Lucero, but did not necessarily account for the legal and social changes to marriage acknowledged in In re Marriage of Hogsett & Neale, 2021 CO 1 __ P.3d ___. The Court of Appeals' judgment was reversed and the matter ordered remanded to the probate court to reconsider whether the parties entered into a common law marriage under Hogsett. View "In re Estate of Yudkin" on Justia Law
In re Marriage of Hogsett & Neale
The Colorado Supreme Court has previously held that a couple could establish a common law marriage “by the mutual consent or agreement of the parties to be husband and wife, followed by a mutual and open assumption of a marital relationship.” The Court advised that evidence of such agreement and conduct could be found in: a couple’s cohabitation; reputation in the community as husband and wife; maintenance of joint banking and credit accounts; purchase and joint ownership of property; filing of joint tax returns; and use of the man’s surname by the woman or by children born to the parties. In this case, a dispute arose over a common law marriage claim. Notably in this case, because same-sex couples could lawfully marry, the gender-differentiated terms and heteronormative assumptions found in the case law were "ill-suited" for same-sex couples. "The lower court decisions in these cases reflect the challenges of applying Lucero to these changed circumstances." The Supreme Court refined the Lucero test to hold that a common law marriage may be established by the mutual consent or agreement of the couple to enter the legal and social institution of marriage, followed by conduct manifesting that mutual agreement. The core query is whether the parties intended to enter a marital relationship—that is, to share a life together as spouses in a committed, intimate relationship of mutual support and obligation. In assessing whether a common law marriage has been established, courts should accord weight to evidence reflecting a couple’s express agreement to marry. In the absence of such evidence, the parties’ agreement to enter a marital relationship may be inferred from their conduct. When examining the parties’ conduct, the factors identified previously in Colorado case law can still be relevant to the inquiry, but they must be assessed in context; the inferences to be drawn from the parties’ conduct may vary depending on the circumstances. Finally, the manifestation of the parties’ agreement to marry need not take a particular form. Applying these factors to the parties' case here, the Supreme Court determined no common law marriage existed here. View "In re Marriage of Hogsett & Neale" on Justia Law
M.A.W. v. The People in Interest of A.L.W.
In June 2016, shortly after the child’s birth, the Boulder County Department of Housing and Human Services initiated this case based on evidence that the child’s mother was using drugs and that both father and the child’s mother were missing the child’s cues, were homeless, and had previously been involved in child welfare cases. The child was placed with maternal relatives. As pertinent here, the juvenile court adjudicated the child dependent and neglected as to father based on father’s admission that he needed support and services and that the child’s environment was injurious to her welfare. At the first hearing in the juvenile court, father appeared in custody following a recent arrest. The court appointed counsel for him and approved an initial treatment plan. Two months later, the court conducted another hearing, and father again appeared in custody, this time based on new drug possession charges. The Department filed a motion to terminate father’s parental rights. In this petition, the Department alleged that (1) father did not comply with his treatment plan, and the treatment plan failed; (2) no additional period of time would allow for the successful completion of the treatment plan; (3) father was an unfit parent; (4) father’s conduct or condition was unlikely to change within a reasonable period of time; and (5) there were no less drastic alternatives to termination, which would be in the child’s best interests. The matter then proceeded to a termination hearing; father was incarcerated. When father did not appear for the hearing, father’s counsel told the court that father was “on a writ at Arapahoe County and he refused the writ so he did not want to appear today.” Father’s counsel did not seek a continuance to ensure father’s presence, and the court found that father had voluntarily absented himself from the court. Mother was denied her request for a continuance. The issue this case presented for the Colorado Supreme Court’s review was similar to that decided in its companion, Colorado in Interest of A.R., 2020 CO 10, __ P.3d __. Here, as in A.R., the Supreme Court was asked to decide (1) the correct standard for determining whether a parent in a dependency and neglect proceeding was prejudiced by counsel’s ineffective performance and (2) whether an appellate court may vacate a juvenile court’s decision in a dependency and neglect proceeding on the ground of ineffective assistance of counsel without remanding the case for further evidentiary development. Applying those principles here, the Court concluded the juvenile court correctly applied Strickland’s prejudice prong to father’s ineffective assistance of counsel claims and that the court did not abuse its discretion in rejecting those claims. View "M.A.W. v. The People in Interest of A.L.W." on Justia Law
Colorado in Interest of A.R.
The issue this case presented for the Colorado Supreme Court’s review centered on the contention of ineffective assistance of counsel in the context of a dependency and neglect proceeding. In 2016, petitioner A.R.’s (the “child’s”) paternal step-grandmother took him to the emergency room to receive treatment for scabies. A physician who treated the then-six-month-old child determined that the degree of scabies on the child evinced a case of neglect, and, later that night, another doctor confirmed that the child also had a skull fracture. The Department of Human Services subsequently initiated this dependency and neglect proceeding, and the juvenile court granted the Department continued custody of the child. Later, the juvenile court held an adjudicatory hearing with respect to both parents. When mother did not appear, her counsel told the court that he had made arrangements with mother to attend the hearing, but did not know why she did not appear. Apparently in an effort to move the case forward, and after speaking with counsel for both mother and the child’s father (who also did not appear), the Department asked the court for leave to amend the Department’s dependency and neglect petition to include an allegation that the child was dependent or neglected through no fault of the child’s parents and to allow the Department to rest on the Report of Investigation filed with the petition. The child’s guardian ad litem (“GAL”) agreed with this procedure, stating that it was in the child’s best interests to “move forward,” and the court therefore entered a no-fault adjudication and approved the proposed treatment plan. Mother did not appeal this adjudication. The mother challenged the ultimate termination of her rights to A.R. The Supreme Court was asked to decide: (1) whether, in a direct appeal from a judgment terminating parental rights, an appellate court may consider a claim of ineffective assistance of counsel based on counsel’s performance at an adjudicatory hearing; (2) the correct standard for determining whether a parent in a dependency and neglect proceeding was prejudiced by counsel’s ineffective performance; and (3) whether an appellate court may vacate a juvenile court’s decision in a dependency and neglect proceeding on the ground of ineffective assistance of counsel without remanding the case for further evidentiary development. The Supreme Court held an appellate court may consider a claim of ineffective assistance of counsel based on counsel’s performance at an adjudicatory hearing only when the party claiming ineffective assistance did not have a full and fair opportunity to assert such a claim immediately after his or her child was adjudicated dependent and neglected, and outlined the standard for determining ineffective performance in a dependency and neglect context. Applying these determinations to the facts and claims presented, the Court affirmed the judgment below (on different grounds), and remanded for further proceedings. View "Colorado in Interest of A.R." on Justia Law
In re Marriage of Durie
Husband Steven Durie brought a dissolution of marriage action in April 2014. He and his then-wife, Wife Kelly subsequently exchanged sworn financial statements, mandatory disclosures, and supplemental disclosures. In line with C.R.C.P. 16.2(g), the parties jointly selected and retained an expert to value their businesses: Coin Toss, LLC, a holding company, and the two companies owned by Coin Toss: Rock Paper Scissors, Inc., d/b/a Secure Search, and Sandbox Sharing, LLC, d/b/a Safeguard from Abuse. The parties integrated this value into the property division of the marital estate set forth in their separation agreement, which was in turn, integrated into the decree of dissolution. Thirteen months after the court issued the decree of dissolution, Husband sold a portion of Secure Search’s assets to a Tennessee company, for an amount more than 685% higher than the value assigned to Coin Toss in the separation agreement. When Wife learned of the sale, and “[b]elieving she smelled a rat,” she filed a motion pursuant to Rule 16.2(e)(10) to set aside or reopen the property division in order to reallocate the proceeds from the post-decree sale. Husband moved to dismiss. Although Husband did not cite the rule in his motion, Wife urged the court to treat it as a Rule 12(b)(5) motion and to apply "Warne’s" plausibility standard in evaluating her 16.2(e)(10) motion. The court granted Husband’s motion to dismiss. Wife appealed, and the Colorado Supreme Court held that hold that Rule 12(b)(5) and the plausibility standard in Warne did not apply to Rule 16.2(e)(10) motions. Instead, the Court held that, consistent with C.R.C.P. 7(b), a Rule 16.2(e)(10) motion must “state with particularity” the grounds on which it is premised, but this did not preclude allegations that were based on information and belief when the moving party lacked direct knowledge about those allegations. “So long as the motion satisfies the particularity requirement in Rule 7(b)(1), it may include such allegations.” The matter was remanded back to the district court for further proceedings. View "In re Marriage of Durie" on Justia Law
Parental Responsibilities Concerning W.C.
Mother, Kimberly Nanke, filed a petition requesting an allocation of parenting responsibilities to her child, W.C. The trial court ultimately entered permanent parenting responsibility orders, granting Mother sole decision-making responsibility and making her the primary residential parent. Father, Winston Conkling, appealed. While his appeal was still pending, however, Father filed motions to modify the orders in the trial court, alleging changed circumstances. This raised the question of whether the trial court had jurisdiction to modify the very orders that were on appeal. The trial court believed that it did not have such jurisdiction; a division of the court of appeals disagreed. After its review, the Colorado Supreme Court held that, because Father’s motions to modify were material to his appeal and sections 14-10-129(1)(a)(I), C.R.S. (2019), and 14-10-131(2), C.R.S. (2019), did not specifically grant trial courts jurisdiction to modify parenting responsibility orders while an appeal of the orders is still pending, the trial court here did not have jurisdiction to rule on Father’s motions to modify while those orders were on appeal. The Supreme Court concluded the court of appeals therefore erred in concluding the trial court retained jurisdiction to modify the orders during the pendency of Father’s appeal. View "Parental Responsibilities Concerning W.C." on Justia Law
In re Marriage of Boettcher
At the time of the dissolution of their marriage, Ryan Boettcher (“father”) and Christina Boettcher (“mother”) agreed that neither party would pay child support. Several years later, mother, citing a substantial change in father’s income, sought a modification of the original decree so that she could receive child support. The district court conducted an evidentiary hearing to determine whether modification was appropriate. At the hearing, the parties admitted evidence of their incomes showing that mother earned $13,343 per month and father earned $92,356 per month—a combined monthly income far exceeding the highest combined income of $30,000 per month listed in the schedule contained in the statutory child support guidelines. Father requested that the district court impose a monthly child support obligation of $1,424.82, which would be the presumptive award amount if the parties combined income were $30,000 per month. Father argued that the presumptive amount of child support for that income level was also the presumptive amount for any higher income level. If the court ordered a higher payment, father argued, such payment would constitute a deviation from the statutory presumptive amount and would require specific findings under section 14-10-115(8)(e) C.R.S. (2019). Mother disagreed, contending the district court should extrapolate father’s monthly child support obligations from the uppermost level of the guidelines in light of the parties’ actual combined income. This approach would result in a monthly support payment of $5,024. The Colorado Supreme Court concluded the plain language of the statute provided that the uppermost award identified explicitly in the schedule was the minimum presumptive award for families with higher incomes, and the district court could, within its discretion, aware more than that amount so long as the court supports its order with findings made pursuant to 14-10-115(2)(b). View "In re Marriage of Boettcher" on Justia Law
Colorado in Interest of D.Z.B.
In 2014, the Arapahoe County Department of Human Services (the Department) was ordered to take custody of D.Z.B. and house him in a particular facility pending his delinquency adjudication. Believing that the district court order imposed a duty on it that was in violation of statutory requirements, the Department appealed that order. The court of appeals dismissed the appeal, concluding that the Department, as a non-party to the delinquency proceedings, lacked standing to appeal the order. In reaching that conclusion, the Colorado Supreme Court determined the district court conflated the test to evaluate whether a plaintiff has standing to bring a lawsuit with the test to determine whether a non-party has standing to appeal a decision of a lower court. Accordingly, the Supreme Court reversed and remanded for the division to apply the correct standing analysis and to consider any other remaining arguments. View "Colorado in Interest of D.Z.B." on Justia Law
In re Marriage of Rooks
A written agreement with a fertility clinic failed to specify what should have been done with remaining pre-embryos in the event of divorce. The Colorado Supreme Court was asked to decide how a court should determine, in dissolution of marriage proceedings, which spouse should receive remaining cryogenically preserved pre-embryos produced by the couple during their marriage. Although this case fundamentally centered the disposition of a couple’s marital property, “it presents difficult issues of procreational autonomy for which there are no easy answers because it pits one spouse’s right to procreate directly against the other spouse’s equivalently important right to avoid procreation, and because the fundamental liberty and privacy interests at stake are deeply personal and emotionally charged.” The Court determined the Colorado statutes touched on some aspects of assisted reproduction, but they did not address what should happen with a couple’s pre-embryos in a divorce context. In the absence of specific legislative guidance in these circumstances, the Court adopted an approach that sought to balance the parties’ interests given the legislature’s general command in dissolution proceedings requiring the court to divide the marital property equitably. Because the trial court and court of appeals considered certain inappropriate factors in attempting to balance the parties’ interests here, the Supreme Court reversed the judgment of the court of appeals and remanded the case with directions to return the matter to the trial court to balance the parties’ interests under the framework the Supreme Court adopted in this opinion. View "In re Marriage of Rooks" on Justia Law
Colorado in Interest of L.M.
The Alamosa County Department of Human Services interviewed Mother, who admitted that she was addicted to prescription medications, although she denied selling drugs from her home. Mother had a history of prior referrals to the Department, and her older children had previously been temporarily removed from her home due to her drug use. Meanwhile, the father of the children had been incarcerated following a criminal conviction and remained in custody at the time the Department conducted its investigation. Father had a history of methamphetamine use. In light of the foregoing, the Department filed a dependency and neglect petition with regard to E.M., L.M., and E.J.M. (the “Children”). Although both Mother and Father initially denied the allegations contained in the petition, they subsequently entered admissions, and the court adjudicated the Children dependent and neglected. This case called on the Colorado Supreme Court to decide whether the State could seek to terminate a parent’s parental rights under the relinquishment provision of the Colorado Children’s Code (the “Code”), section 19-5-105, C.R.S. (2017), when the child is already subject to a dependency and neglect proceeding under Article 3 of the Code, sections 19-3-100.5 to -805, C.R.S. (2017). The Court concluded that when a dependency and neglect proceeding is pending, the State can terminate parental rights only through the procedures set forth in Article 3 of the Code and cannot use the more limited processes provided in Article 5. View "Colorado in Interest of L.M." on Justia Law