Abuse of Discretion
“Discretion is the power of officials to act according to the dictates of their own judgment and conscience.” The abuse of discretion standard is used when a lower court such as a district court makes a discretionary ruling. “A court abuses its discretion when it misconstrues or misapplies the law, or decides in a manifestly arbitrary, unreasonable, or unfair way.” In re Marriage of Evans, 2021 COA 141, ¶ 25; see also In re Marriage of Gibbs, 446 P.3d 968, 970 (Colo. App. 2019) (“A district court abuses its discretion when its decision is manifestly arbitrary, unreasonable, or unfair.”).
In the context of an appeal, when an appellate court agrees that a lower court’s decisions, holdings, rulings, or conclusions of law–which are being reviewed by the appellate court on appeal–were correct and valid and must therefore stand as rendered by the lower court.
Allocation of Parental Responsibility
Previously referred to as “custody,” the Allocation of Parental Responsibility (APR) is the term courts use to address the parenting time and decision-making authority of divorcing parents with regards to their children.
“An appeal is a challenge to a previous legal determination. An appeal is directed towards a legal power higher than the power making the challenged determination.” Decisions from trial courts–such as a Colorado district court–may be appealed to an intermediate appellate court, which in Colorado is the Colorado Court of Appeals. The rulings of the Colorado Court of Appeals may be reviewed by a “court of last resort,” which in Colorado is the Colorado Supreme Court for Colorado state law matters. “Appeals can be either discretionary or of right. An appeal of right is one that the higher court must hear, if the losing party demands it, while a discretionary appeal is one that the higher court may, but does not have to, consider.” In Colorado, appeals to the Colorado Court of Appeals are usually “of right,” meaning that the Colorado Court of Appeals usually has to hear and decide those appeals. On the other hand, appeals to the Colorado Supreme Court are usually “discretionary” except in some circumstances, which means that the Colorado Supreme Court is usually allowed to decide which decisions from Colorado’s lower courts it wants to review, and it can decline reviewing cases it does not want to review.
The award of child support in Colorado is based on the statutory child support guidelines and schedule of basic child support obligations found in C.R.S. (Colorado Revised Statutes) § 14-10-115. The Colorado General Assembly enacted the child support guidelines and schedule of basic child support obligations for the following purposes: “(I) To establish as state policy an adequate standard of support for children, subject to the ability of parents to pay; (II) To make awards more equitable by ensuring more consistent treatment of persons in similar circumstances; and (III) To improve the efficiency of the court process by promoting settlements and giving courts and the parties guidance in establishing levels of awards.” The Colorado child support guidelines and schedule of basic child support obligations were enacted to do the following: “(I) Calculate child support based upon the parents’ combined adjusted gross income estimated to have been allocated to the child if the parents and children were living in an intact household; (II) Adjust the child support based upon the needs of the children for extraordinary medical expenses and work-related child care costs; and (III) Allocate the amount of child support to be paid by each parent based upon physical care arrangements.”
Colorado Court of Appeals
“The Colorado Court of Appeals is usually the first court of appeals for decisions from the district courts, Denver Probate Court, and Denver Juvenile Court. The Court of Appeals also reviews decisions of several state administrative agencies. Its determination of an appeal is final unless the Colorado Supreme Court agrees to review the matter.”
Colorado Revised Statutes
The Colorado Revised Statutes–abbreviated as “C.R.S.”–are the codified general and permanent statutes of the Colorado General Assembly.
Colorado Supreme Court
“The Colorado Supreme Court is the court of last resort in Colorado’s state court system. The court generally hears appeals from the Court of Appeals, although in some instances individuals can petition the Supreme Court directly regarding a lower court’s decision.”
Decree of Dissolution of Marriage
A Decree of Dissolution of Marriage is the final judgment entered by a Colorado district court judge or magistrate in a dissolution of marriage (i.e. divorce) case that legally ends a couple’s marriage and that the divorcing parties are legally obligated to follow. The decree describes the final decisions of the district court and sets forth important information about the resolution of the parties’ case, including parenting time and decision-making for the parties’ children (i.e. parental responsibilities), child support, maintenance (spousal support), division and distribution of property and debt, and whether a spouse will return to her maiden name.
Dissolution of Marriage
The term Colorado law and courts use for a “divorce.”
“[Colorado] District Courts hear civil cases in any amount, as well as domestic relations, criminal, juvenile, probate, and mental health cases. District court decisions may be appealed to the Colorado Court of Appeals (in some cases directly to the Colorado Supreme Court).” A district court in the Colorado state court system is sometimes referred to as a trial court because the trial of civil, criminal, and domestic relations (i.e. divorce and post-divorce matters) occur in district courts where a district court judge usually presides and makes rulings resolving legal and evidentiary questions in the case. In domestic relations cases, there is no jury to decide factual disputes. Instead, a district court judge usually acts as the fact finder in divorce and domestic relations cases in Colorado.
“[A]n agreement between spouses who intend to remain married which affirms, modifies, or waives a marital right or obligation during the marriage or at legal separation, marital dissolution, death of one of the spouses, or the occurrence or nonoccurrence of any other event. The term includes an amendment, signed after the spouses marry, of a premarital agreement or marital agreement.” C.R.S. § 14-2-302(2).
Debt that is incurred during a marriage and before a decree of legal separation or dissolution (divorce) is entered by a Colorado district court.
The assets and debts a married couple acquires during their marriage.
“[A]ll property acquired by either spouse subsequent to the marriage except: (a) Property acquired by gift, bequest, devise, or descent; (b) Property acquired in exchange for property acquired prior to the marriage or in exchange for property acquired by gift, bequest, devise, or descent; (c) Property acquired by a spouse after a decree of legal separation; and (d) Property excluded by valid agreement of the parties.” C.R.S. § 14-10-113(2)(a)-(d). Marital property can also include the value of any appreciation or growth of one spouse’s separate property during the time of the parties’ marriage.
“Mediation is a process wherein the parties meet with a mutually selected impartial and neutral person who assists them in the negotiation of their differences…. Mediation leaves the decision power totally and strictly with the parties. The mediator does not decide what is ‘fair’ or ‘right,’ does not blame nor render an opinion on the merits or chances of success if the case were litigated. Rather, the mediator acts as a catalyst between opposing interests attempting to bring them together by defining issues and eliminating obstacles to communication, while moderating and guiding the process to avoid confrontation and ill will. The mediator will, however, seek concessions from each side during the mediation process.”
A Parenting Plan in a Colorado domestic relations case outlines the particulars of the parenting time and parental responsibilities that divorcing parents have towards their children. Parenting time is the time a parent spends with a child away from the child’s other parent. Parenting time was previously referred to as “visitation.” Parental responsibilities includes matters relating to what was previously referred to as the “custody” of a child and the rights and responsibilities divorcing parents have towards a child.
Permanent Orders Hearing
A permanent orders hearing is the “trial” part of a divorce (dissolution of marriage) case in Colorado. Unlike most trials involving criminal or civil litigation, a permanent orders hearing is a trial to the judge, not a jury. During a permanent orders hearing, the parties or their attorneys can present evidence, call witnesses to testify, and deliver arguments to the judge hearing the case. The judge presiding over a permanent orders hearing will decide any issues involving child support; parenting time and decision-making (allocation of parental responsibilities); maintenance (spousal support); and the division and distribution of marital assets and debts that the parties to the divorce have not already resolved through their own settlement negotiations or through mediation. The judge may also enter an award of attorney fees, if applicable. Permanent orders hearings can take anywhere from a half day to several days to complete depending on the complexity of the case and the number of issues that the trial judge will have to resolve. The trial judge will also review any agreements reached by the parties outside of court, in particular as they pertain to any children of the marriage so the trial judge can ensure that any agreements are fair and in the best interest of the children before entering final orders. After the permanent orders hearing is concluded, the trial judge will enter the final orders and the decree of dissolution of marriage, which will incorporate any separation agreement entered into by the parties and will formally end the parties’ marriage.
Personal property can include any asset that is not real estate, or real property. “The distinguishing factor between personal property and real estate, or real property, is that personal property is movable; that is, it isn’t fixed permanently to one particular location.” Personal property can include tangible items such as vehicles, boats, furniture, appliances, computers, artwork, antiques, jewelry, clothing, farm equipment, and electronics. Personal property can also be intangible such as bank accounts, stocks, and bonds.
Petition for Dissolution of Marriage
The pleading or legal document that one or both spouses must file (along with a Case Information Sheet and a Summons) in a Colorado district court to initiate a divorce case or “dissolution of marriage” proceeding.
See Marital Agreement
Primary Residential Parent
Usually the parent with whom a child resides or children reside most of the time. Because each family law case is unique and tailored to the circumstances of the particular family, the term primary custody will vary depending on the case. Even when both parents share parenting time equally, one parent will still likely be designated as the primary residential parent for considerations of matters such as calculating child support, tax filing status, and tax exemptions.
Colorado is an “equitable division” state when it comes to dividing and distributing marital property in a dissolution of marriage (divorce) case. “Equitable division” does not mean that marital property is divided 50/50 between the spouses. Instead, if the parties do not reach an agreement on their own as to how their marital property will be divided, then the judge presiding over their case must divide their marital property in a manner that the judge believes is fair, or “just,” under the circumstances. Property division in Colorado dissolution of marriage cases are governed by C.R.S. § 14-10-113 of Colorado’s Uniform Dissolution of Marriage Act. The statute describes the judge’s responsibility to “divide the marital property, without regard to marital misconduct, in such proportions as the court deems just after considering all relevant factors….” The statute expressly identifies four “relevant factors,” including: “(a) The contribution of each spouse to the acquisition of the marital property, including the contribution of a spouse as homemaker; (b) The value of the property set apart to each spouse; (c) The economic circumstances of each spouse at the time the division of property is to become effective, including the desirability of awarding the family home or the right to live therein for reasonable periods to the spouse with whom the children may reside the majority of the time; and (d) Any increases or decreases in the value of the separate property of the spouse during the marriage or the depletion of the separate property for marital purposes.”
Real Property (Real Estate)
Real property, or real estate, is “the land and any permanent structures, like a home, or improvements attached to the land, whether natural or man-made.” Because it includes land and anything permanently attached to land, real property is different than personal property such as vehicles, boats, jewelry, and furniture, which is not permanently attached to land. Real property/real estate can be categorized as residential, commercial, industrial, and raw, or vacant, land.
To remand something means to send it back. When an appellate court remands a case back to a lower court such as a district court in Colorado, the appellate court–either the Colorado Court of Appeals or the Colorado Supreme Court–is instructing the district court to reconsider its decision based on the appellate court’s ruling.
If an appellate court like the Colorado Court of Appeals or the Colorado Supreme Court determines that a lower court’s decision was incorrect, the appellate court vacates the original judgment or decision made by the lower court. An appellate court may reverse the lower court’s judgment in full or in part. If an appellate court reverses a lower court’s judgment in part, the other parts of the lower court’s judgment remain intact and valid. Usually, when reversing a lower court’s judgment and remanding the case back to the lower court for further proceedings, the appellate court provides instructions to the lower court on how to proceed in a manner that is compliant or consistent with the appellate court’s opinion.
Separate property is property a spouse acquired before marriage. It also includes property that is specifically excluded by Colorado’s Uniform Dissolution of Marriage Act from being considered as “marital property,” including: (1) Property acquired by inheritance or by gift (although gifts from one spouse to another during a marriage can be considered either marital or separate property depending on the circumstances surrounding the gift); (2) Property received in exchange for property owned prior to marriage or in exchange for property received by gift or inheritance; (3) Property acquired after there has been a decree of legal separation; and (4) Property that spouses want to be excluded from being considered as marital property in a “valid agreement.” See C.R.S. § 14-10-113(2)(a)-(d).
A separation agreement in a Colorado divorce case is the final agreement between the divorcing spouses that sets forth the agreed upon resolution of the disputed issues in their case, which may include child support; parenting time and decision-making (allocation of parental responsibilities); maintenance (spousal support); and the division and distribution of marital assets and debts. “Prior to its incorporation in a dissolution [divorce] decree a separation agreement is a contract between the parties to a marriage.” In re Marriage of Manzo, 659 P.2d 669, 671 (Colo. 1983). “The purpose of the separation agreement is ‘to enable divorcing parties to reach an amicable out-of-court settlement of their claims to the property of the other….’ However, before a separation agreement concerning property is incorporated in the dissolution decree, it is subject to review by the district court under section 14-10-112(2) for unconscionability.” Id. (quoting In re Marriage of Newman, 653 P.2d 728, 733 (Colo. 1982)). “In a proceeding for dissolution of marriage or for legal separation, the terms of the separation agreement, except terms providing for the allocation of parental responsibilities, support, and parenting time of children, are binding upon the court unless it finds, after considering the economic circumstances of the parties and any other relevant evidence produced by the parties, on their own motion or on request of the court, that the separation agreement is unconscionable.” C.R.S. § 14-10-112(2). “If the court finds the separation agreement unconscionable, the court may request the parties to submit a revised separation agreement, or the court may make orders for the disposition of property, support, and maintenance.” C.R.S. § 14-10-112(3). If the trial court finds that the separation agreement is not unconscionable as to support, maintenance, and property distribution, then “its terms shall be set forth in the decree of dissolution or legal separation” unless the parties state in the agreement that it shouldn’t be. C.R.S. § 14-10-112(4(a). If the parties don’t want the terms of the separation agreement stated in the decree, then “the decree shall identify the separation agreement and shall state that the court has found the terms not unconscionable.” C.R.S. § 14-10-112(4)(b).
Previously called “alimony,” spousal maintenance is payment that is usually made by the higher-earning spouse to the lower-earning spouse. Spousal maintenance may be paid during the dissolution of marriage proceeding as part of a district court’s temporary orders and after the dissolution of marriage proceeding has concluded as part of a district court’s permanent orders. A spouse is not entitled to an award of spousal maintenance. Instead, unless the parties come to an agreement, a court must evaluate the request and need for spousal maintenance and determine whether spousal maintenance should be ordered.
A Colorado district court may enter “temporary orders” before it enters “permanent orders” in a Colorado domestic relations case. Temporary orders are often used to maintain the “status quo” in the lives of the parties and their children while a case is ongoing. Parties can ask a court to enter temporary orders during a temporary orders hearing (often after mediation is completed), or the parties can arrive at an agreement or prepare a stipulation between themselves and then ask the court to approve the agreement or stipulation and adopt it as an order of the court. Some of the issues that are often addressed in temporary orders and at temporary orders hearings include child support; parenting time and decision making responsibility for minor children; maintenance/spousal support; payment of debts and marital expenses such as car, utilities, and insurance payments; possession and use of vehicles; possession and use of the marital home; and attorney’s fees.