On Friday, May 18, 2012, Governor John Hickenlooper announced his appointment of Judith LaBuda to serve as a district court judge in the Twentieth Judicial District, which serves Boulder County. LaBuda will fill a vacancy created by the retirement of the Honorable James C. Klein on June 30.

LaBuda, of Niwot, currently serves as the Senior Assistant Attorney General at the Colorado Attorney General’s Office, where she is general counsel to the Division of Insurance, Commissioner of Insurance, and the State Personnel Board. Previously, LaBuda spent 18 years practicing family law.

LaBuda earned a bachelor’s degree and a master’s degree at the University of Wisconsin-Madison and her law degree from the University of Colorado Law School.

The Colorado Court of Appeals issued its opinion in In re Marriage of Paige on May 10, 2012.

Post-Dissolution of Marriage—Child Support Modification—Change in Physical Care.

In this post-dissolution of marriage proceeding between Steven Paige (father) and Sarah Paige (mother), father appealed the denial of his motion to retroactively modify a child support order based on a change in physical care of the parties’ child. The Court of Appeals reversed the order and remanded the case.

In the 2000 permanent orders, mother was designated the primary residential parent and father was ordered to pay mother monthly child support in the amount of $1,057.24. In 2008, mother filed a motion requesting contempt sanctions against father for his failure to pay amounts due under the court’s orders, including child support from July 2000 to April 2005, when the child became emancipated. Father filed a motion to modify child support and argued that pursuant to an unwritten agreement between the parties, the child lived with him from July or August 2000 to March 2003, and again from September 2003 through her emancipation; therefore, father should not be required to pay child support to mother during that time period.

Pursuant to CRS § 14-10-122(5), “when a mutually agreed upon change of physical care occurs, the provisions for child support of the obligor under the existing child support order, if modified pursuant to this section, will be modified as of the date when physical care was changed.” This agreement does not need to appear in written form. Because the court erred in requiring a written agreement between the parties as to the change in physical care and failed to hold a hearing, the order was reversed and the case was remanded for a hearing on father’s motion.

Summary and full case available here.

The Colorado State Judicial Branch has issued several revised forms and instructions over the past month. Updates were made in the areas of adoption, probate, and small claims, as well as filing fees. Practitioners should begin using the new forms immediately.

Most forms are available in Adobe Acrobat (PDF) and Microsoft Word formats; many are also available as Word and Excel templates. Download the new forms from State Judicial’s individual forms pages, or below.

Adoption

• JDF 498 – “Instructions for Kinship Adoption” (revised 4/12)

Filing Fees

• Guide – “Guide for Determination of Indigency” (revised 4/12)

Probate

• JDF 906 – “Instructions for Probate With a Will” (revised 4/12)
• JDF 907 – “Instructions for Probate Without a Will” (revised 4/12)
• JDF 805 – “Acceptance of Office – Guardianships and Conservatorships” (revised 4/12)

Small Claims

• JDF 252a – “Motion and Order for Interrogatories – Short Form” (revised 4/12)
• JDF 252b – “Motion and Order for Interrogatories – Long Form” (revised 4/12)

The Colorado Court of Appeals issued its opinion in In re the Marriage of Beatty and Turner on April 26, 2012.

Post-Dissolution—Modification—Child Support—Service of Process—Equitable Estoppel Doctrine—Arrearages—Agreement.

In this post-dissolution decree proceeding to modify child support, mother appealed from the district court’s order adopting a magistrate’s calculation of child support arrearages owed by father. The order was affirmed in part and reversed in part, and the case was remanded for further proceedings.

Mother contended that the magistrate erred by finding that service of process was proper and by denying her request for a continuance. Mother, however, waived the improper service of process defense by failing to challenge the service’s sufficiency in a responsive pleading before the hearing. Mother also failed to provide the transcript in support of her request for a continuance.

Mother contended that the magistrate erred by applying the equitable estoppel doctrine to enforce the parties’ oral agreements to reduce child support. The magistrate’s order contains no findings that father had detrimentally relied on mother’s acts or representations. Further, father did not prove that he either was unaware of his continuing obligation under the original support order or lacked the knowledge and means to seek modification of it. Therefore, the magistrate erroneously abated the arrearages father owed under the original support order, and the district court’s order in that regard was reversed.

Mother also challenged the income that the magistrate attributed to father and used for calculating his current child support obligation. Because the hearing transcript was not in the record on appeal, however, the Court of Appeals presumed that the determination of father’s income was supported by the evidence and was not clearly erroneous.

Mother further argued that the magistrate erred by setting aside the requirement that father attend a parenting class. The magistrate had authority to preside over all motions to modify permanent orders and did not abuse discretion in modifying this order.

Summary and full case available here.

The Colorado Court of Appeals issued its opinion in In re the Marriage of Leverett on April 26, 2012.

Dissolution of Marriage—Arbitration Award—Unconfirmed—Contempt of Court.

In this post-dissolution of marriage contempt matter between husband and wife, husband appealed from the district court’s order denying his petition for review of a district court magistrate’s judgment. The order was vacated and the case was remanded.

The district court magistrate found husband in contempt and imposed punitive sanctions against him for violating the awards of an arbitrator. Wife had not asked the district court to confirm the arbitrator’s awards pursuant to CRS §13-22-222(1).

On appeal, husband argued that the magistrate erred in finding him in contempt of court for alleged violations of unconfirmed arbitration awards. An arbitrator’s award does not become enforceable as an order of the court unless and until (1) a party makes a motion to the court for an order confirming the award, and (2) the court issues an order confirming the arbitration award pursuant to CRS §13-22-222(1). Therefore, a person cannot be held in contempt of court for violating an unconfirmed award of an arbitrator. Because neither wife nor husband made a motion to the court for an order confirming the arbitrator’s awards, those awards were not enforceable as an order of the court, and husband may not be held in contempt on that basis.

Summary and full case available here.

The Colorado Bar Association Ethics Committee has been working on updating their Formal Ethics Opinions in order to reflect changes in the law, including the 2008 revision to the Colorado Rules of Professional Conduct. As part of that effort, the Ethics Committee released an updated version of Formal Opinion 68, “Conflicts of Interest; Propriety of Multiple Representation” in December 2011, and it was published in the March 2012 issue of The Colorado Lawyer.

Formal Opinion 68 addresses four specific conflict situations:

1) representation of both a husband and wife in negotiating a property settlement before dissolution proceedings commence;
2) representation of both the buyer and seller in a residential real estate transaction;
3) representation of both the buyer and seller of a business; and
4) representation of individuals in drafting an entity agreement, and representation of solely an entity in its formation.

The Ethics Committee opines that, in the first scenario, the dual representation would be impermissible under the Colorado Rules of Professional Conduct (Colo. RPC or Rules) because even if the divorce settlement agreement is uncontested, it must be approved by the court, and counsel cannot represent two parties whose interests are adverse under Colo. RPC 1.7.

In the second, third, and fourth scenarios, which are all transactional, the Ethics Committee declines to issue a blanket prohibition on representing both parties to the proposed transactions, but rather notes that each individual situation will require a thorough analysis of the propriety of the representation.

Opinion 68 provides a thoughtful and detailed evaluation of Colo. RPC 1.7 and its comments. It thoroughly examines informed consent, including when and whether it is appropriate, what can be consented to, how to obtain informed consent, the need to obtain new consent when there are situational changes, and confirmation in writing. Each scenario listed above is explored in depth, and the propriety of dual representation is examined for all for sample scenarios. The message of the Ethics Committee is clear: an attorney must examine the specific scenario involving a concurrent conflict of interest with the utmost scrutiny and caution prior to undertaking representation of conflicting parties.

The Ethics Committee develops its formal opinions as a means for providing Colorado attorneys with guidance. However, they issue the following caveat:

Formal Ethics Opinions are issued for advisory purposes only and are not in any way binding on the Colorado Supreme Court, the Presiding Disciplinary Judge, the Attorney Regulation Committee, or the Office of Attorney Regulation Counsel, and do not provide protection against disciplinary actions.

The Colorado Court of Appeals issued its opinion in In re the Parental Responsibilities Concerning B.R.D., and Concerning Decker on April 12, 2012.

Presumption of Fit Parent Versus Non-Parent—Custody.

Father sought liberal and expanded parenting time and a share of decision-making authority regarding his son. The trial court denied his request, awarding sole decision-making responsibility, primary residential caretaking, and majority parenting time to Phillip and Sherry Decker, the couple with whom the boy currently was residing. The order was vacated and the case was remanded.

Father and mother are biological parents of a boy born September 2005. Mother gave him up for adoption and he was placed with the Deckers shortly after birth. In January 2006, mother filed a petition stating that she wished to relinquish to the Deckers her parental rights. Several months later, father, who had not known of mother’s pregnancy, learned of the birth. He acknowledged paternity and objected to the adoption. Mother then asked the court to dismiss her relinquishment petition and have the boy returned to her. The Deckers asked the court to terminate mother and father’s parental rights.

In June 2007, mother and father entered into a stipulation with the Deckers that awarded the Deckers sole parental and decision-making responsibility, but also allocated some parenting time to mother and father. Mother and father reserved the right to ask for a modification of parental responsibilities and also paid child support to the Deckers. In December 2008, mother moved to increase her parenting time and to have more decision-making authority. In September 2009, father asked for a similar modification.

In October 2010, the court held a three-day evidentiary hearing. The court found that the boy was deeply attached to father and mother, as well as to the Deckers and their child. The court applied the endangerment standard found in CRS §§ 14-10-129 and -131 and, finding no endangerment, decided that the Deckers should be the primary residential custodians and exercise sole decision-making authority. Father appealed.

Father argued that the court failed to accord him the presumption that he is a fit parent acting in the best interests of the boy. The Court of Appeals agreed. The Court noted that the applicable statutes essentially establish a three-step analysis: (1) there is a presumption that prior orders should remain in effect; (2) to overcome the presumption, the court must find evidence showing that the status quo endangers the child and that a modification will create advantages that outweigh any harm caused by the modification; and (3) the modification must be in the child’s best interests.

In this case, however, the Court determined that the status of the persons involved (father versus non-parents) also is a determining factor. The Court found that parents have a fundamental interest, protected by the Due Process Clause, in the care, custody, and control of their children. A fit parent is presumed to act in the best interest of his or her child. In analyzing appellate decisions addressing conflicts between parents and non-parents, the Court found (1) there is a presumption that the parent has a first and prior right to custody, which presumption may be rebutted; (2) the presumption is given “special weight” by requiring proof of “special factors” that justify interference with a parent’s decisions when the parent has custody; (3) to grant responsibilities to a non-parent over the objection of a parent, a court must find by clear and convincing evidence that such an order is in the child’s best interests based on special factors; and (4) a fit parent who has relinquished custody is nonetheless entitled to the presumption that his or her decisions about the child’s custody are in the child’s best interests.

In this case, father has a constitutionally protected interest in the boy’s care, custody, and control, and is presumed to act in the boy’s best interests. Consequently, the statutory analysis is altered in the following manner: (1) rather than presuming the existing order remains in effect, the court must give “special weight” to father’s modification request (father gains the presumption); (2) the Deckers must be given an opportunity to rebut the presumption by showing that the modification is not in the boy’s best interests and that the present allocation does not endanger him, and they must prove that the present allocation is in the boy’s best interests; (3) the Deckers must satisfy their evidentiary burdens by a preponderance of the evidence standard; and (4) if the court denies father’s request, it must make findings of fact identifying the special factors on which it relied. Because the trial court did not follow the foregoing analytic framework, its ruling was in error and the case was remanded for proceedings conducted under the standards described in the opinion.

Summary and full case available here.

The Colorado Judicial Branch announced today it has opened the application process for Fiscal Year 2013 grants from the Family Violence Justice Fund, which funds programs that provide civil legal services to indigent Coloradans.

Application forms will be available Monday, April 16, 2012 at http://www.courts.state.co.us/Administration/Unit.cfm/Unit/fvjf and will be accepted only via email.

The program was established by the General Assembly in 1999 to help indigent victims of family violence obtain legal services at no cost to them.

Grants will be awarded based on a formula that considers factors including past participation in the program. For Fiscal Year 2013, $625,000 is available for grants.

Applications must be received by the State Court Administrator’s Office by Friday, May 25, 2012, to be considered for a grant. To be eligible, organizations must be non-profit and currently serving the legal needs of indigent victims of family violence.

Successful organizations must be prepared to provide full legal services, including but not limited to assistance with divorce, child custody, child support, and other related civil matters. Additional information regarding the fund and qualifications for organizations receiving grants may be found in section 14-4-107 of the Colorado Revised Statutes.

Applications will be accepted via email only at jessica.zender@judicial.state.co.us. Questions may be directed to Jessica Zender at the email address above or by calling (303) 861-1111.

As part of its continuing efforts to keep JDF forms up-to-date, the Colorado State Judicial Branch revised several instructions and a few forms in March. Practitioners should begin using the new forms and instructions immediately.

All forms are available in Adobe Acrobat (PDF) and Microsoft Word formats. Download the new forms from State Judicial’s individual forms pages or below.

Adoption

• JDF 495 – “Instructions for Second Parent Adoption” (revised 3/12)
• JDF 497 – “Instructions for Validation of Foreign Adoption” (revised 3/12)
• JDF 498 – “Instructions for Kinship Adoption” (revised 3/12)
• JDF 499 – “Instructions for Custodial Adoption” (revised 3/12)
• JDF 500 – “Instructions for Stepparent Adoption” (revised 3/12)
• JDF 506 – “Notice of Adoption Proceeding and Summons to Respond” (revised 3/12)

Appeals

• JDF 126 – “Instructions to File a County Court Civil or Small Claims Appeal” (revised 3/12)

County Civil / District Civil

• JDF 86  – “Instructions for Issuing a Subpoena in Support of an Action Outside the State of Colorado” (revised 3/12)
• JDF 96 – “Instructions for Filing an Answer and/or Counterclaim in County Court” (Money Demand) (revised 3/12)
• JDF 100 – “Instructions for Forcible Entry and Detainer (FED) / Evictions” (revised 3/12)
• JDF 110 – “Instructions for County Court Civil Cases (Money Demand)” (revised 3/12)
• JDF 112 – “Instructions for Reviving a Judgment” (revised 3/12)
• JDF 115 – “Instructions for Replevin” (revised 3/12)
• JDF 122 – “Instructions for Issuance of Contempt Citation” (revised 3/12)
• JDF 137 – “Instructions for Filing a Foreign Judgment” (revised 3/12)
• JDF 385  – “Instructions for Filing a Change of Name to Obtain Identity-Related Documents” (revised 3/12)
• JDF 420 – “Instructions for Filing for a Change of Name (Minor)” (revised 3/12)
• JDF 432 – “Instructions for Filing a Change of Name (Adult)” (revised 3/12)
• JDF 605 – “Instructions for Appealing Property Tax Assessments with the District Court” (revised 3/12)
• JDF 611 – “Instructions to Seal Criminal Conviction Records” (revised 3/12)
• JDF 620 – “Instructions for Filing a Response to a Rule 120 Notice” (revised 3/12)

Criminal

• JDF 323 – “Instructions to File a Petition to Seal Underage Alcohol Conviction” (revised 3/12)
• JDF 385 – “Instructions for Filing a Change of Name to Obtain Identity-Related Documents” (revised 3/12)
• JDF 416 – “Instructions to File a Petition to Seal Arrest and Criminal Records” (revised 3/12)

Domestic

• JDF 1215 – “Evaluation of a Foreign Decree, Foreign Custody-Determination, and Foreign Support Order” (revised 3/12)
• JDF 1220 – “Instructions to Register a Foreign Decree” (revised 3/12)
• JDF 1800 – “Instructions/Options to Enforce Orders” (revised 3/12)
• JDF 1801 – “Instructions for Completing an Income Assignment Based on Child Support and/or Maintenance Orders” (revised 3/12)

Juvenile

• JDF 323 – “Instructions to File a Petition to Seal Underage Alcohol Conviction” (revised 3/12)
• JDF 385 – “Instructions for Filing a Change of Name to Obtain Identity-Related Documents” (revised 3/12)
• JDF 476 – “Instructions to Discontinue Sex Offender Registration for a Colorado and Non-Colorado Juvenile Adjudication or Disposition” (revised 3/12)

Paternity

• JDF 1500  – “Instructions to Establish Paternity” (revised 3/12)
• JDF 1502 – “Summons in Paternity” (revised 3/12)
• JDF 1513 – “Instructions to Disclaim Paternity” (revised 3/12)
• JDF 1515 – “Summons to Disclaim Paternity” (revised 3/12)

Probate

• JDF 782 – “Instructions to File Petition to Accept Adult Guardianship and/or Conservatorship in Colorado From Sending State” (revised 3/12)
• JDF 786 – “Instructions to File Petition to Transfer Adult Guardianship and/or Conservatorship From Colorado to Receiving State” (revised 3/12)
• JDF 820 – “Instructions for Appointment of Guardian for Minor by Will or Other Signed Writing” (revised 3/12)
• JDF 823 – “Instructions for Appointment of a Guardian – Minor” (revised 3/12)
• JDF 840 – “Instructions for Appointment of a Guardian – Adult” (revised 3/12)
• JDF 860 – “Instructions for Appointment of a Conservator – Minor” (revised 3/12)
• JDF 875 – “Instructions for Appointment of a Conservator – Adult” (revised 3/12)
• JDF 887 – “Instructions to File a Petition to Terminate Conservatorship” (revised 3/12)
• JDF 906 – “Instructions for Probate With a Will” (revised 3/12)
• JDF 907 – “Instructions for Probate Without a Will” (revised 3/12)
• JDF 957 – “Instructions for Closing an Estate Formally” (revised 3/12)
• JDF 958 – “Instructions for Closing a Small Estate Informally” (revised 3/12)
• JDF 959 – “Instructions for Closing an Estate Informally” (revised 3/12)
• JDF 989 – “Instructions for Re-Opening an Estate” (revised 3/12)

Protection Orders

• JDF 395 – “Instructions for Restrained Person – Motion to Modify/Dismiss Protection Order” (revised 3/12)
• JDF 400 – “Instructions for Obtaining a Civil Protection Order” (revised 3/12)

Small Claims

• JDF 248 – “Instructions for Filing a Small Claims Case” (revised 3/12)

Governor Hickenlooper has signed 111 bills into law this legislative session, including fourteen bills that he signed on Friday, April 6, and one on April 9, 2012. A complete list of the bills he signed Friday can be found here. Five of these bills are highlighted below.

• HB 12-1181 – Concerning a Supplemental Appropriation to the Department of Corrections
  Sponsored by Rep. Cheri Gerou and Sen. Mary Hodge. This Joint Budget Committee bill changes the appropriations to the Department of Corrections for several services. This was one of three bills from the Joint Budget Committee to be signed by the governor on April 6.
• HB 12-1229 – Concerning Publication Requirements for a Newspaper In Which a Legal Notice or Advertisement is Printed
  Sponsored by Rep. Carole Murray and Sen. Mark Scheffel. The bill creates a definition for “published” for legal notices that are required to be published in legally recognized newspapers, and creates a contingency for counties that do not have a newspaper.
• HB 12-1269 – Concerning the Threshold Amount of Campaign Activity By a Candidate Committee In Connection With a Special District Election that Triggers Disclosure Requirements Under the “Fair Campaign Practices Act.”
  Sponsored by Rep. Jim Kerr and Sen. Ellen Roberts. This bill increases the amount that a candidate committee in a special district election must spend in order to trigger reporting requirements under the FCPA.
• HB 12-1285 – Concerning Modifications to Statutory Provisions Governing Intergovernmental Cooperation to Address Wildland Fire Mitigation Where a Municipality Owns Land Inside a County for Utility Purposes
  Sponsored by Rep. Cheri Gerou and Sen. Cheri Jahn. The bill requires municipalities that own land for utility purposes inside a county but outside the municipal boundaries to enter into an Intergovernmental Agreement with the county or the Colorado State Forest Service in order to mitigate wildfires.
• SB 12-066 – Concerning Expanding Those Persons Eligible as Guardians in the Guardianship Assistance Program to Include Persons Ascribed By the Family as Having a Family-Like Relationship With the Child
  Sponsored by Sen. Jeanne Nicholson and Rep. Bob Gardner. The bill allows non-family members to receive guardianship assistance if they are guardians and foster parents of a child and are committed to the child’s permanency.

Additionally, on Monday, April 9, Governor Hickenlooper signed HB 12 -1295 “Colorado Rockies Vehicle License Plate,” sponsored by Rep. Kevin Priola and Sen. Lois Tochtrop. The governor signed the bill into law at Coors Field before the Colorado Rockies home opener. The bill creates a specialty license plate for the Colorado Rockies that benefits the Colorado Rockies Baseball Club Foundation.

For a complete list of legislation signed into law by Governor Hickenlooper on April 6, 2012, click here.

For a complete list of Governor Hickenlooper’s 2012 legislative decisions, click here.