In Re Marriage of Finer

Citations: 920 P.2d 325; 1996 WL 74394Docket: 94CA1562

Court: Colorado Court of Appeals; May 16, 1996; Colorado; State Appellate Court

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Carol Linton Finer appealed the permanent orders following her divorce from Joseph P. Finer, which included the award of sole custody of their child to the husband. The Colorado Court of Appeals affirmed in part, reversed in part, and remanded the case for further instructions. The couple, married in 1987 and separated in 1992, had one child. Initially, the wife received temporary sole custody, but following two custody evaluations, the husband was awarded permanent sole custody. Although the wife planned to return to her teaching career and contemplated a job on the east coast, her eventual move rendered certain issues, such as parenting time and private school tuition, moot.

The wife contended that the trial court failed to explicitly find that awarding sole custody to the husband was in the child's best interests. The court disagreed, emphasizing that the best interests of the child must guide custody decisions. It noted that while the trial court did not make a specific declaration regarding the best interests, it engaged with the relevant statutory factors. Findings indicated that the wife struggled to recognize the child's needs and tended to alienate her from the husband, while the husband better promoted a healthy relationship between the child and both parents. The trial court highlighted the couple’s acrimonious relationship, which hindered effective communication regarding their child's welfare. Overall, the court determined that the evidence supported the custody decision despite the absence of a direct statement about the best interests of the child.

The court determined that awarding sole custody to the father serves the child's best interests, supported by competent evidence including a favorable custody evaluation and recommendations from the guardian ad litem (GAL). The court’s decision on custody will not be disturbed on review. However, the court agreed with the wife that the trial court abused its discretion by unreasonably limiting her parenting time, allowing only one week at Christmas and four weeks in summer. Reasonable parenting time is mandated unless it poses a risk to the child's well-being. Given the wife’s prior extensive involvement with the child, this restriction was found unreasonable, prompting a remand for reconsideration of parenting time. 

Additionally, the wife contended that the trial court erred in indefinitely continuing the GAL's appointment, requiring the parties to consult him before seeking further court relief. The court acknowledged potential statutory ambiguities regarding the continuation of a GAL’s appointment post-final decree. Precedents indicate that a GAL typically serves until a final adoption decree or termination of juvenile court jurisdiction, and there is no clear authority under the Uniform Parentage Act for extending a GAL's role beyond final custody determinations. The GAL’s purpose in the dissolution proceeding was to represent the child’s interests regarding custody and parenting time, which he effectively fulfilled. Although the continuation of the GAL's appointment during the appeal was not contested, the court found the indefinite extension beyond a final decree to be erroneous.

The court's indefinite continuation of the Guardian ad Litem (GAL) appointment was primarily due to the parties' inability to communicate. The order implied that the GAL would mediate between them and require a fee-incurring consultation before either party could seek further court relief. While it is assumed that a dissolution court can extend a GAL's appointment under extraordinary circumstances to fulfill statutory duties, the current inability to communicate does not justify the GAL acting as a mediator. Thus, the trial court abused its discretion by indefinitely continuing the GAL's appointment for this purpose.

Regarding child support, the wife argued it was erroneous to exclude the husband's commissions and bonuses from his monthly gross income. However, the trial court's finding, based on the husband's testimony about the uncertainty of future bonuses, was upheld. The court mandated annual exchange of W-2 tax information, ensuring the wife would be informed of any significant future bonuses for potential modification of child support.

The wife also contended that the $850 monthly nanny cost was excessive and lacked specific findings from the court to justify its inclusion in child support calculations. The court must include reasonable work-related child care costs unless justified otherwise, as per the guidelines. The trial court erred by not including the nanny costs without explicit findings supporting their exclusion. However, the parties had previously agreed that the husband anticipated these costs, and there was no factual disagreement noted regarding the anticipated child care expenses in their stipulation.

The court concluded that the husband's costs for a nanny were appropriate for inclusion in the basic support obligation, as the wife did not provide evidence to argue the costs were excessive. Consequently, her challenge failed. Regarding the wife's obligation to pay a percentage of the child's uninsured medical expenses and therapy costs, the court found insufficient findings to support this. Under Colorado law, extraordinary medical expenses over $100 must be shared according to the parents' adjusted gross incomes, and such expenses should typically be incorporated into child support calculations. The trial court's order requiring the wife to pay a portion of all uninsured medical costs, in addition to established child support, was not aligned with statutory provisions, as costs under $100 should generally be borne by the custodial parent. Furthermore, without a diagnosis of a mental disorder, the non-custodial parent cannot be obliged to contribute to therapy costs. The court noted a lack of evidence indicating the child needed therapy due to a mental disorder, asserting the child appeared well-adjusted. The case was remanded for the trial court to reevaluate whether the child's uninsured medical expenses qualify as extraordinary and to determine if there is a mental disorder diagnosis affecting therapy costs. If such conditions are not met, the wife should not be responsible for these payments.

Wife argues that the trial court incorrectly valued her separate property as of the date of separation instead of the decree date, which is contrary to the statutory requirement that property be valued at the decree date or the hearing date, whichever comes first. This principle is mandatory, and wife is entitled to share in any increase in property value during that period. The trial court, upon remand, must assess whether wife's use of certain assets constituted valid expenditures or illegitimate dissipation, which affects property division.

Additionally, wife contends the trial court erred by deducting selling costs and capital gains from the equity of the Vail condominium, which led to an erroneous conclusion that wife received no equity. The court may consider tax consequences and selling costs in property valuation, but this should be contingent on whether the property is actually being sold. There was insufficient evidence regarding the husband's intent to sell the condominium, and the court's finding of nearly zero net equity is unsupported, as wife's expert testified a net equity of $6600 after deductions. The court must reevaluate the husband's intentions regarding the sale and adjust its findings accordingly on remand.

Wife contends that the trial court incorrectly classified the Vail condominium and another property, both jointly titled but initially owned by husband, as his separate property rather than gifts to the marital estate. The court's error lies in the presumption that placing the properties in joint names constitutes a gift, which the husband failed to rebut. His explanation for joint tenancy—facilitating asset liquidation for the wife in case of his death—supports the gift classification, as it aligns with his intent for a joint investment and eventual transfer of shares to her. Consequently, on remand, these properties must be treated as marital assets for equitable distribution.

Wife also argues that the trial court's overall order reflects an abuse of discretion and bias against her, warranting a new trial. While some findings were inappropriate, such as requiring her to make a timely decision about leaving Colorado, the court acted within its discretion regarding the child’s best interests. Similarly, the order prohibiting drinking and smoking around the child is unsupported by evidence and must be reversed. However, the court's requirement for both parents to undergo parenting counseling is upheld as it aligns with the child's welfare. Lastly, the trial court's comment regarding wife’s appearance is deemed inappropriate but not prejudicial to the case outcomes.

A court remark regarding the frequency of the parties' sexual relations during their marriage was deemed irrelevant and inappropriate, though it was not seen as evidence of bias against the wife since it affected both parties equally. On remand, the court is instructed to remove this statement from the permanent orders. The wife's additional claims of bias were found to lack merit. Concerning attorney fees, the wife contended that the trial court abused its discretion by awarding her only $10,000 of the $97,254 incurred. The court will not address this now but will reconsider the attorney fee award in conjunction with the property division upon remand. The judgment regarding the wife's parenting time, property division, and costs for the child's therapy is reversed, and the case is remanded for further consideration of these issues and the attorney fees, along with an amendment of the permanent orders. Additionally, the indefinite appointment of the Guardian ad Litem (GAL) is reversed, while the judgment is affirmed in all other respects.