Marriage of Shepard
Marriage of Shepard
Marriage of Shepard
Opinion
23CA1749 Marriage of Shepard 08-01-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA1749
Adams County District Court No. 09DR1707
Honorable Rayna Gokli McIntyre, Judge
In re the Marriage of
Cole Shepard,
Appellant,
and
Page K. Shepard,
Appellee.
ORDER AFFIRMED IN PART AND VACATED IN PART,
AND CASE REMANDED WITH DIRECTIONS
Division VII
Opinion by JUDGE TOW
Gomez and Kuhn, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced August 1, 2024
The Hoben Law Firm, Kristine R. Hoben, Castle Rock, Colorado, for Appellant
No Appearance for Appellee
1
¶ 1 In this post-dissolution of marriage proceeding, Cole Shepard
(father) appeals the district court’s order modifying parenting time
such that Page K. Shepard (mother) became the primary residential
parent instead of father for their child, A.C.S. (the child). We vacate
the order to the extent it substantially modified the parenting time
orders and changed the child’s primary residential parent. We
affirm the order to the extent it denied father’s request for attorney
fees. (Because neither party challenged the other two components
of the order — the denial of mother’s request for make-up parenting
time with the child’s sibling and the appointment of a legal
representative for the child — we take no action as to those
components of the order.)
I. Background
¶ 2 The marriage between father and mother was dissolved in
August 2010. There were three children of the marriage: the child;
his younger sibling, T.C.S.; and his older sibling, N.C.S. Several
months after the entry of the decree of dissolution and permanent
orders, the court granted mother’s request to relocate with the
children to West Virginia.
2
¶ 3 In early 2022, after a series of modifications to the allocation
of parental responsibilities, the existing order provided that the
children lived primarily with mother in West Virginia, while father
had regular parenting time for at least five days per month,
sometimes in West Virginia and sometimes in Colorado. The parties
shared joint decision-making authority.
¶ 4 In January 2022, after mother unilaterally decided not to
allow the children to fly to Colorado for father’s scheduled parenting
time (citing an impending severe snowstorm), father filed a motion
concerning parenting time disputes pursuant to
section 14-10-129.5, C.R.S. 2023. Father alleged that mother was
engaging in alienation and poisoning the relationship between him
and the children. Father requested both make-up parenting time
and a modification of the parenting time order such that the child
and his younger sibling be relocated to live with him.
1
On March 7,
2022, after a hearing, the district court found that mother had
violated the parenting time order and awarded father make-up
1
Because the oldest child was months away from graduating high
school, father acknowledged that relocating would likely not be in
that child’s best interests.
3
parenting time. The court also found that mother was interfering
with father’s relationship with the children and emotionally
harming the children in the process. The court set over the request
for modification of parenting time and ordered an updated report
from the Child and Family Investigator (CFI) who had previously
been involved in the case.
2
¶ 5 The very next day, father moved to restrict mother’s parenting
time. He alleged that mother had responded to the court’s March 7
order by emailing father’s counsel to relinquish her parental rights
to all three children — and included completed relinquishment
paperwork. Father contended that mother’s behavior endangered
the children.
¶ 6 At the hearing on father’s emergency motion, the evidence
showed that mother had also texted the children telling them that
their father was coming to West Virginia to get them, after which
she would have no contact with them. The court observed that the
2
The court apparently never reduced its March 7 order to writing.
The observations regarding mother’s actions and their resulting
harm to the children are not reflected in the minute order.
However, the updated CFI report describes the court’s observations,
taken from a transcript of the hearing — a transcript not made a
part of our appellate record.
4
message did not inform the children that the lack of contact was at
her request, thus likely leaving the children under the impression
that these developments were instigated by father. The court
granted the motion to restrict, temporarily moving the child and his
younger sibling to Colorado and, again temporarily, allocating sole
decision-making to father.
¶ 7 The emergent situation having been addressed, the motion
proceeded on father’s request to be permanently allocated sole
decision-making and for the two younger children to live primarily
with him, while mother sought to lift the restriction requiring her
parenting time be supervised.
¶ 8 After a hearing in January 2023, the district court granted
father’s motion for a substantial modification of parenting time, and
father’s home in Colorado became the primary residence of the child
and his younger sibling.
3
Mother’s parenting time was no longer
required to be supervised and included “the majority of the
[c]hildren’s summer vacation.” The parties maintained joint
decision-making responsibility.
3
By this time, the oldest child had turned eighteen and, thus, was
no longer subject to an order allocating parental responsibilities.
5
¶ 9 After spending the summer of 2023 in West Virginia, the child
refused to return to Colorado. Mother requested a status
conference, which was granted. The court ordered father to travel
to West Virginia and attempt to retrieve the child. However, despite
the involvement of the local police department in attempting to
convince the child to return home with father, the child refused to
return to Colorado. Days later, mother moved to enroll the child in
school in West Virginia and requested that she become the primary
residential parent for the child. Father objected, asserting that
mother was not even permitted to file her motion because less than
two years had passed since the parenting time was amended
making him the child’s primary residential parent. See § 14-10-
129(1.5), C.R.S. 2023 (providing that no motion to modify parenting
time may be filed for two years after the resolution of a motion that
sought to substantially modify parenting time and change the party
with whom the child resides a majority of the time).
¶ 10 The court held another status conference on mother’s motion
to enroll the child in school and to modify the parenting time order.
At the conclusion of that conference, over which a senior judge
presided because the assigned judge was ill, the court scheduled a
6
hearing but noted that “the issue of school enrollment and
parenting time will only be considered if the court finds, on the
basis of affidavits to be filed by the parties, that the endangerment
standard has been met.” (Though the senior judge did not cite the
statute, this language parallels the language of the statutory
exception to the two-year bar. See id.)
¶ 11 Mother filed an affidavit and father responded. Father’s
affidavit, though not styled as either a motion or a response, also
objected to mother’s request — asserted at the status conference —
for make-up parenting time with the child’s sibling,
4
sought to
reinstate the restrictions on mother’s parenting time, and sought
attorney fees against mother.
¶ 12 At the scheduled hearing, the regularly assigned judge heard
evidence on all the outstanding issues. After mother presented her
case on her requested modification of the parenting time order,
father moved for a “directed verdict” on mother’s request to become
the youth’s primary residential parent, arguing that mother had not
4
Contrary to the parenting time order, the child’s sibling did not go
to West Virginia for the summer. However, though the parties
appear to dispute the reason for this, it is not an issue in this
appeal.
7
met the endangerment standard required to modify the January
2023 order. The court granted father’s motion for “directed verdict”
on the issue of endangerment and took the other issues under
advisement.
5
The next day, the court conducted an in camera
interview with the child. The court subsequently issued a written
order granting mother’s request for the child to reside primarily
with her and attend school in West Virginia. The court’s order did
not address decision-making responsibilities.
¶ 13 Father moved for post-trial relief pursuant to C.R.C.P. 59
contending, among other things, that the court erred by
(1) substantially modifying parenting time, including changing the
party with whom the child resides a majority of the time;
(2) restricting father’s parenting time without a finding of
endangerment; and (3) allegedly giving mother sole educational
5
Though both father’s counsel and the court treated the request as
a motion for directed verdict under C.R.C.P. 50, that rule only
applies in jury trials. In a hearing where the judge serves as the
fact finder, such a motion is brought under C.R.C.P. 41(b)(1).
Franklin Drilling & Blasting Inc. v. Lawrence Constr. Co., 2018 COA
59, ¶ 13. Though our appellate review is arguably slightly different
between the two motions, see id. at ¶ 14, any analytical differences
are of no consequence here.
8
decision-making responsibility without a finding of endangerment.
The court denied the motion.
II. Modification of Parenting Time
¶ 14 Father contends that the district court erred when it modified
the January 2023 parenting time order. We agree, and therefore
vacate the court’s parenting time determination.
A. Legal Framework and Standard of Review
¶ 15 The district court has broad discretion in deciding whether to
modify parenting time, and we must exercise every presumption in
favor of upholding the court’s decision. See In re Parental
Responsibilities Concerning S.Z.S., 2022 COA 105, ¶ 13. The court
abuses its discretion when its decision is manifestly arbitrary,
unfair, or unreasonable, or is based on a misapplication of the law.
In re Marriage of Bochner, 2023 COA 63, ¶ 12. We review de novo
whether the court applied the appropriate legal standard. See In re
Parental Responsibilities of Reese, 227 P.3d 900, 902 (Colo. App.
2010).
¶ 16 A court may generally modify an order granting or denying
parenting time rights “whenever such order or modification would
serve the best interests of the child.” § 14-10-129(1)(a)(I). There are
9
exceptions to this broad grant of authority, however. For example,
when the court has previously resolved a request to substantially
modify parenting time and change the primary residential parent,
the statute prohibits a party from filing a similar motion for two
years unless the court finds, “on the basis of affidavits, that the
child’s present environment may endanger the child’s physical
health or significantly impair the child’s emotional development.”
§ 14-10-129(1.5).
B. Absent a Showing of Endangerment, the Motion Was
Improperly Filed
¶ 17 The court’s order in January 2023 granted father’s request to
substantially change parenting time as well as switch the role of
primary residential parent from mother to father. Mother filed her
motion, essentially asking to reverse that decision as to the child,
mere months later. Given this timing, the restrictions of
section 14-10-129(1.5) applied. Accordingly, once the court ruled
that mother had not shown the child’s environment endangered
him physically or impaired his emotional development, it was
required to strike the portion of the motion seeking such a
modification. See id. (Because the statute says that no motion may
10
be filed unless the endangerment exception can be met, the proper
remedy once no endangerment is found is to strike, rather than
deny, the motion.)
6
¶ 18 Because the statute prohibited filing the motion under these
circumstances, it should not have been granted. We must,
therefore, vacate the order insofar as it modified the then-existing
parenting time order to switch the parent with whom the child lived
a majority of the time.
7
In light of our disposition, we need not
address father’s remaining contentions of error to the extent they
6
Logistically, in order to comply with the statutory ban on filing the
motion, a parent who seeks to modify parenting time within the two
years after a substantial change should file a motion for leave to file
the motion to modify (attaching the proposed motion to modify),
along with the affidavit required by section 14-10-132, C.R.S. 2023,
for all post-decree motions for modification of the allocation of
parental responsibilities. If the court finds, on the basis of that
affidavit, that there is physical endangerment or significant
impairment of the child’s emotional development, it will grant leave
to file the accompanying motion to modify. If not, the court will
deny leave and the accompanying request for modification will not
be filed.
7
We recognize that by the time the mandate issues in this case
restoring jurisdiction to the district court, the child will be eighteen
years old (or very close to it); once he turns eighteen, he will no
longer be subject to any order allocating parental responsibilities.
See In re Marriage of Tibbetts, 2018 COA 117, ¶ 21. Nevertheless,
because the child has not yet turned eighteen, the issue is not
moot.
11
involve the order’s impact on parenting time or decision-making
authority.
III. Attorney Fees
¶ 19 Father also asserts that the district court erred when it denied
his request for attorney fees. He asserts that “because [m]other’s
requests could only be granted upon a finding of endangerment,
and a [directed verdict] was granted, it was absolutely appropriate
for the [c]ourt to [order] [m]other to pay [f]ather’s attorney fees.” We
discern no error.
¶ 20 Under section 13-17-102(4), C.R.S. 2023, a court “shall assess
attorney fees if . . . it finds that an attorney or party brought . . . an
action, or any part thereof, that lacked substantial justification,”
meaning that the action was substantially frivolous, groundless, or
vexatious. The district court has broad discretion to determine
whether an action lacks substantial justification. Patterson v.
James, 2018 COA 173, ¶ 46. Thus, we review the district court’s
resolution of a request for fees under section 13-17-102 for an
abuse of discretion, meaning that we will not reverse the ruling
unless it is based on a misapplication of the law or is manifestly
arbitrary, unreasonable, or unfair; we do not consider whether we
12
would have reached a different result. In re Estate of Shimizu, 2016
COA 163, ¶¶ 15, 30.
¶ 21 We realize that the court’s exercise of its discretion in
concluding that mother’s motion did not lack substantial
justification may have been impacted by its erroneous application of
section 14-10-129(1.5). Nevertheless, the record shows that mother
litigated the existence of the child’s endangerment — and that there
was some evidence to support her contention in this regard. Father
does not explain how the court’s determination that the child was
not endangered made mother’s initial motion to modify frivolous or
vexatious. Mere lack of success does not amount to a lack of
substantial justification. See Gravina Siding & Windows Co. v.
Gravina, 2022 COA 50, ¶ 89.
IV. Disposition
¶ 22 The portion of the order denying father’s request for attorney
fees is affirmed. The portion of the order modifying the allocation of
parental responsibilities related to the child and making mother the
child’s primary residential parent is vacated. The matter is
remanded with instructions to strike the motion to modify.
JUDGE GOMEZ and JUDGE KUHN concur.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.