In Re Marriage of Newell

Citations: 192 P.3d 529; 2008 WL 2684134Docket: 06CA1795

Court: Colorado Court of Appeals; July 10, 2008; Colorado; State Appellate Court

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Steven W. Newell appeals a magistrate's order modifying his parenting time and decision-making responsibilities regarding his child with Ruth F. Newell, following their 1999 separation agreement. The agreement designated the mother as the primary custodian and decision-maker, with exceptions for surgical decisions and life-threatening conditions. In 2002, a special advocate was appointed to address the child's special needs, and by May 2004, a special master recommended a modified parenting time schedule, suggesting the child spend six overnights with the mother and eight with the father biweekly during the school year, and alternating weeks in summer. The mother objected, prompting a parenting time evaluation, which largely supported the special master's recommendations.

However, the mother later engaged additional experts who raised concerns about the adequacy of the evaluations regarding the child's special needs and recommended that the child primarily reside with her on school nights. After hearings, the magistrate ruled that the special master's alternate-week plan was not in the child's best interest, granting the father parenting time on alternate weekends and awarding the mother sole decision-making authority. The father argues that the magistrate incorrectly applied an endangerment standard instead of a best interests standard in modifying parenting time. The court agrees that the endangerment standard was inapplicable but finds no error in the magistrate's decision to overturn the special master's ruling. The orders are partially affirmed, partially reversed, and remanded for further proceedings.

Section 14-10-129(1)(a)(I), C.R.S.2007, allows a court to modify parenting time if it serves the child's best interests. Subsection (2) outlines conditions for significant changes to parenting time and residential arrangements, requiring the court to assess whether the child's environment poses a risk to their physical or emotional well-being, and that the benefits of a change outweigh any potential harm. In this case, the proposed modification by the special master would not have changed the child's primary residence, so the endangerment standard of section 14-10-129(2) was not applicable, and the magistrate's conclusion that the special master erred was incorrect. However, the magistrate ultimately determined that the special master's parenting time plan was not in the child's best interests.

The father argued that the magistrate's modification of the parenting time order was erroneous due to the qualifications of the mother's experts, who were not parenting time specialists. The court countered that a special master's recommendations are advisory, and the trial court retains the authority to draw its own conclusions and may admit additional evidence. The court accepted the expertise of the mother’s specialists, including a pediatrician and experts in child assessment and disabilities. The admission of such expert testimony falls within the trial court's discretion, and the evidence showed that the child struggled with frequent transitions between homes, indicating a need for stability, which was a point of agreement among evaluators, though opinions varied on how to achieve it through the parenting plan.

Conflicting evidence regarding parenting time plans led to deference to the magistrate's decision, as established in In re Marriage of Bowles, which stipulates that a trial court's resolution of such conflicts is binding on review. The magistrate's order was not deemed clearly erroneous despite the mother's experts being found more persuasive than the special master's plan. 

Regarding parental decision-making, the father argued that the magistrate's modification of decision-making responsibility was unsupported by evidence and constituted an abuse of discretion. However, the court disagreed, citing C.R.S. § 14-10-131(2)(c), which allows for modification if the existing arrangement could endanger the child's health or emotional development, and the potential harm from changing it is outweighed by the benefits. 

Testimony indicated that the father was unsupportive of the mother's decisions concerning the child's evaluations and treatment, contributing to failures in securing necessary help due to his opposition. Expert witnesses corroborated the need for further evaluation and treatment, highlighting the father's obstructionist behavior. The magistrate found the father's denial of the child's emerging problems and inability to co-parent detrimental to the child's well-being. Based on these findings, the magistrate concluded that sole decision-making authority should be granted to the mother to ensure clarity and serve the child's best interests. The court upheld the magistrate's findings and conclusions regarding the father's behavior and its impact on the child, indicating that factual findings of the trial court are to remain undisturbed unless clearly erroneous.

Father argues that a magistrate's order prohibiting him from expressing concerns about his child's care and education infringes upon his constitutional rights to make decisions regarding the child's welfare and to free speech. The court agrees a remand is necessary to evaluate the free speech issue, deferring the fundamental rights argument for now. 

Freedom of speech is protected under the First Amendment and the Colorado Constitution, with Colorado providing greater protections. However, since neither party proposes a different analytical framework under the Colorado Constitution, the analysis can proceed under First Amendment principles. The government may regulate protected speech if it promotes a compelling interest using the least restrictive means. The restrictions on Father's speech are classified as content-based, requiring a compelling state interest to justify them.

The court will conduct a de novo review to ensure that the magistrate's judgment does not violate Father's free speech rights. While some jurisdictions have recognized the state's compelling interest in child welfare to limit parental speech, Colorado courts have established that, absent demonstrated harm to the child, this interest does not outweigh a parent's fundamental rights. Thus, the court finds out-of-state precedents unconvincing, as no Colorado court has identified a compelling state interest that would override a parent's First Amendment rights.

Proof of a parent's actions causing actual or threatened physical or emotional harm to a child can justify state interference with the parent's First Amendment rights, including free exercise of religion and free speech. A recent court case established that a substantial showing of harm is necessary to demonstrate a compelling state interest for such restrictions. In this instance, the magistrate found that the father frequently disagreed with the mother regarding the child's decisions and that his behavior could endanger the child's development. Consequently, the magistrate restricted the father's ability to voice objections regarding the child's education and treatment. However, the findings were deemed insufficient to justify the speech restriction, prompting a remand for the magistrate to re-evaluate whether such restrictions are warranted. The court emphasized that any imposed restrictions must be the least restrictive means necessary to prevent substantial harm. Alternative measures, such as informing providers of the mother's decision-making authority, should be assessed before restricting the father's speech. If restrictions are necessary, the magistrate must provide detailed evidence of the harm and consider any alternatives, clearly stating reasons for any decisions made. Additionally, the father challenged the award of attorney and expert fees to the mother, arguing it was an abuse of discretion.

Father contends that the magistrate's award of attorney fees lacks evidence of reasonableness, fails to specify the allocation between attorney and expert fees, and inadequately considers the financial situations of both parties. He argues that the magistrate did not hold a hearing after a supplemental affidavit from Mother and that the award should be set aside for these reasons. The court disagrees, noting that the issue of fee apportionment was discussed at a hearing, where both parties submitted financial affidavits and provided testimony regarding their financial circumstances. The magistrate determined that Father had the financial capacity to contribute $50,000 towards Mother's fees based on the detailed information presented during the trial, including Mother's attorney fees affidavit. The court found no abuse of discretion, as the magistrate had reviewed both parties' financial statements and was aware of Mother's significant assets and Father's incurred attorney fees. Father's argument regarding the lack of clarity on fee allocation was rejected, as was his claim for a post-affidavit hearing due to his failure to request one. The court affirmed the fee award and stated that Mother's request for attorney fees for the appeal must follow proper procedures, directing that such requests be made to the trial court on remand. The court reversed some restrictions on Father's communication regarding the child but upheld all other orders.