Marriage of Alexander
Marriage of Alexander
Opinion
20CA1985 Marr of Alexander 11-10-2021
COLORADO COURT OF APPEALS
Court of Appeals No. 20CA1985
Weld County District Court No. 20DR410
Honorable Kimberly B. Schutt, Judge
In re the Marriage of
Jeremy E. Alexander,
Appellant,
and
Malissa Marie Alexander, n/k/a Malissa Marie McAllister,
Appellee.
ORDER AFFIRMED
Division VII
Opinion by JUDGE PAWAR
Navarro and Grove, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced November 10, 2021
Kraemer, Golden & O’Brien, LLC, Michael M. O’Brien, Fort Collins, Colorado,
for Appellant
Sandra L. Wright, LLC, Sandra L. Wright, Arvada, Colorado, for Appellee
1
¶ 1 Jeremy E. Alexander (husband) appeals the permanent
protection order entered in connection with the dissolution of his
marriage to Malissa Marie Alexander, now known as Malissa Marie
McAllister (wife). We affirm.
I. Background
¶ 2 In 2020, wife petitioned to dissolve the parties’ five-year
marriage. A few months later, wife obtained a temporary protection
order against husband, alleging domestic abuse and stalking.
¶ 3 After a permanent protection order hearing, the district court
entered a permanent protection order against husband. The
district court found by a preponderance of the evidence that
husband had committed acts constituting grounds for entering a
protection order and that, unless restrained, he would continue to
commit acts designed to intimidate wife or retaliate against her.
II. Permanent Protection Order
¶ 4 Husband contends the district court abused its discretion by
entering a permanent protection order against him because there
was insufficient evidence to establish that he committed acts
constituting domestic abuse or stalking or that he would continue
to do so unless restrained. We disagree.
2
A. Legal Standards
¶ 5 The district court has authority to issue a protection order in a
dissolution case. See § 13-14-104.5(5), C.R.S. 2021; § 14-10-
108(3), C.R.S. 2021.
¶ 6 As relevant here, the court may enter a temporary or a
permanent protection order to prevent domestic abuse or stalking.
§ 13-14-104.5(1)(a)(II), (V). “Domestic abuse” includes “any act,
attempted act, or threatened act of violence, stalking, harassment,
or coercion that is committed . . . against another person . . . with
whom the actor is involved or has been involved in an intimate
relationship.” § 13-14-101(2), C.R.S. 2021.
¶ 7 “Stalking” includes any act, attempted act, or threatened act
described in section 18-3-602, C.R.S. 2021. § 13-14-101(3). Under
that statute, a person commits stalking if, as relevant here, the
person knowingly “[r]epeatedly follows, approaches, contacts, . . . or
makes any form of communication with another person [or] a
member of that person’s immediate family . . . in a manner that
would cause a reasonable person to suffer serious emotional
distress and does cause that person [or] a member of that person’s
immediate family . . . to suffer serious emotional distress.” § 18-3-
3
602(1)(c). “Immediate family” includes the person’s parent. § 18-3-
602(2)(c).
¶ 8 ‘“[C]oercion’ includes compelling a person by . . . intimidation
to engage in conduct from which the person has the right or
privilege to abstain, or to abstain from conduct in which the person
has a right or privilege to engage.” § 13-14-101(2). Harassment
includes following a person in a public place or initiating
communication with the person in a manner intended to harass the
person. § 18-9-111(1)(c), (e), C.R.S. 2021.
¶ 9 The court shall make a temporary protection order permanent
if it finds by a preponderance of the evidence that the restrained
party has committed acts constituting grounds to issue a protection
order “and that unless restrained will continue to commit such acts
or acts designed to intimidate or retaliate against the protected
person.” § 13-14-106(1)(a), C.R.S. 2021.
¶ 10 Although we review de novo the district court’s construction of
the protection order statutes, it is that court’s prerogative to weigh
each party’s credibility. In re Marriage of Fiffe, 140 P.3d 160, 161,
16. Therefore, we will not disturb the district court’s conclusion
4
that grounds for granting a permanent protection order exist if that
B. Preservation
¶ 11 Wife argues that husband did not preserve his argument that
grounds for the temporary protection order were not established
because he failed to object to the entry of the temporary protection
order. We disagree. A temporary protection order may be issued ex
parte, § 13-14-104.5(4), as appears to have occurred here. As such,
the procedure does not afford the restrained party an opportunity to
object to the issuance of the temporary protection order. In any
event, husband challenges only the permanent protection order on
appeal, not the temporary order.
¶ 12 Further, the permanent protection order statute requires the
court to first find that the restrained person “has committed acts
constituting grounds for issuance of a civil protection order.” § 13-
14-106(1)(a); see also § 13-14-104.5(1)(a) (listing grounds for both
temporary and permanent civil protection orders). Husband has
preserved his argument that such grounds were not established at
the hearing.
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C. Analysis
¶ 13 Husband argues that there was insufficient evidence to
establish that he committed domestic abuse or stalking or that he
would continue to do so absent a permanent protection order. We
conclude that the record supports the district court’s findings.
¶ 14 Wife testified to an incident in which husband pushed her into
her car with enough force to cause a dent in the car. She
introduced into evidence a photograph of the dented car as well.
Although husband testified that he did not push wife into the car
but rather “[s]he may have brushed up against” it, the district court
found wife’s account of the incident credible. See Parocha, ¶ 16;
Fiffe, 140 P.3d at 163. Wife also testified that husband threw his
phone against a wall and submitted a picture of the resulting hole
in the wall. Although husband argues that these incidents
happened long ago, wife testified that they are examples of
husband’s “fits of rage” and “flaring tempers” and that there were
“so many” other incidents by husband, including “screaming,
kicking things, [and] slamming doors” during the parties’
relationship.
6
¶ 15 Wife further testified that husband follows her around at her
son’s baseball games and stands behind her looking over her
shoulder while she uses her phone. Wife’s mother described a
specific incident where husband followed her and wife from the
baseball field, “got extremely angry,” and started pacing around and
yelling at them. Wife’s mother said that this was the last game she
attended without her husband, and wife testified that her parents
had become “so intimidated by [husband] that they won’t come to
their grandchild’s games anymore.”
¶ 16 Contrary to husband’s argument, wife’s mother did not testify
to only one incident of harassment or intimidation. In addition to
the baseball game incident, wife’s mother, who was a teacher,
testified that husband once called her while she was in her
classroom. Thinking that “something was really wrong,” wife’s
mother left her class to take the call. Husband asked her if she
knew where wife was, what she was doing, and who she was with.
He told her that he had obtained wife’s cell phone records, knew
she was having an affair, and was on his way to confront her.
Wife’s mother said she panicked because husband was very upset,
and she knew he carried a gun. She called wife right away because
7
she “was terrified that something bad was going to happen.” Wife’s
mother further testified that husband came to her house the
following month, asked her not to tell wife he was coming, and “was
adamant” that he and wife were not getting divorced. When wife’s
mother expressed her disagreement, husband “got really angry,”
jumped off the couch, and paced frantically around the room yelling
at her.
¶ 17 During her testimony, wife submitted a letter husband gave
her stating that he realized how “emotionally abusive” he was to her
and her child and that he was “disgusted and embarrassed” by his
behavior. Wife also testified that husband continues to contact her
daily, including three-to-five-page emails, and that he comes to her
home uninvited. As wife points out, husband’s Exhibit A (email
exchanges between the two of them) supports her testimony
concerning his excessive contacts with her and repeated efforts to
coerce her into dismissing the dissolution case. Wife testified that
although she repeatedly tells husband not to contact her and to
leave her alone, he continues to contact her. She provided one
example of a phone call during which he told her that he had
obtained three months of her text messages and that if she did not
8
change her mind about the divorce, he would share them with her
son and family.
¶ 18 The record supports the court’s findings and its entry of the
permanent protection order. Although husband provided
conflicting testimony and denied many of wife’s and her mother’s
allegations, it is the district court’s prerogative, and not ours, to
resolve such factual conflicts. See Parocha, ¶ 16; Fiffe, 140 P.3d at
163; see also M.D.C./Wood, Inc. v. Mortimer, 866 P.2d 1380, 1383-
84 (Colo. 1994) (noting trial court’s superior ability to determine
credibility and resolve conflicting evidence).
¶ 19 Husband asserts wife’s claim that he once gave her “a bloody
mouth” is not supported by the record because wife did not testify
about it. However, the incident is referenced in husband’s Exhibit
A, which is part of the record.
¶ 20 Husband further argues that even assuming his past conduct
justified the temporary protection order under section 13-14-
104.5(1)(a), it was not established at the hearing that, unless
further restrained, he would continue to engage in such conduct.
See § 13-14-106(1)(a). We are not persuaded. The permanent
protection order statute requires the court to find that, unless
9
restrained, husband will either continue to engage in the acts that
led to the temporary order or that he will engage in “acts designed
to intimidate or retaliate” against wife. Id. And, here, the court
found that husband would continue to commit acts designed to
intimidate or retaliate against wife and that a protection order was
the only way to stop him. This finding was supported by wife’s
evidence concerning husband’s threat to share her text messages
with her son and family; his continued, unwanted contacts with
her; and his contacts with her mother.
¶ 21 Last, we note that wife was adamant that she needed
protection from husband. She implored the court to enter a
permanent protection order, stating that she had done everything in
her power to try to stop husband’s behavior and had no recourse
left other than the courts. Further, wife testified that she “was
afraid” of husband’s behavior, and her mother described his
behavior as “terrif[ying].” See § 18-3-602(1)(c) (defining stalking as
repeatedly following, contacting, or communicating with a person or
a member of the person’s family in a manner that would cause a
reasonable person serious emotional distress and that does cause
10
the person or the member of the person’s immediate family serious
emotional distress).
¶ 22 In sum, based on the totality of the evidence presented at the
hearing, both from the witnesses and the written exhibits, we
conclude that the district court did not abuse its discretion by
entering the permanent protection order against husband. See §
13-14-104.5(1)(a)(II), (V); § 13-14-106(1)(a); cf. Parocha, ¶¶ 6, 16
(upholding county court’s finding that, in the context of the past
pattern of domestic abuse, the wife was credible in perceiving the
husband’s communications as harassing and threatening).
III. Appellate Attorney Fees
¶ 23 Wife requests her attorney fees and costs incurred on appeal
under C.A.R. 38(b), contending that husband’s appeal is frivolous.
We decline to award fees or double costs. Although husband has
not prevailed on appeal, we do not view his arguments as frivolous
so as to justify a fee award under the rule. See Mission Denver Co.
v. Pierson, 674 P.2d 363, 365 (Colo. 1984) (“Standards for
determining whether an appeal is frivolous should be directed
toward penalizing egregious conduct without deterring a lawyer
from vigorously asserting his client’s rights.”); In re Estate of
11
Shimizu, 2016 COA 163, ¶ 34 (noting that appellate fees are
“appropriate only in clear and unequivocal cases where no rational
argument is presented”).
¶ 24 Appellate costs will be assessed under C.A.R. 39(a)(2).
IV. Conclusion
¶ 25 The order is affirmed.
JUDGE NAVARRO and JUDGE GROVE concur.
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