Category Archives: Family Law

Obergefell et. al. v. Hodges, Ohio Dep’t Health, 135 S.Ct. 1039 (June 26, 2015) Part II: Dissents

The CLR does not normally post summaries of US Supreme Court decisions. In this case, there are immediate implications for Family Law practitioners in Colorado, as well as other civil litigators pursuing or defending claims under the Equal Protection and Due Process Clauses of the Fourteenth Amendment. Therefore, the CLR will issue 2 posts related to this decision. Part I is a summary of the majority opinion and Part II is a summary of the dissenting opinions.

“The fundamental right to marry does not include a right to make a State change its definition of marriage.” Roberts, C.J. The 4 dissenting justices raised various arguments against extending marriage to same-sex couples by Court decree including (in no particular order): 1) the decision should rest with the people, resolved through elected representatives, not 5 lawyers; 2) courts do not substitute their judgment for that of the people; 3) limiting marriage is not an unconstitutional act by a State; 4) liberty is freedom from government action not a claim to government benefits; 5) dignity is neither granted nor taken away by government; and 6) children are best served by a marriage between a man and woman. A shared theme is that by deciding the scope of a Constitutional right, the Court has taken a power it should not claim, has created more division, and ended democratic debate.

The following are all the cases on Writs of Certiorari To The United States Court Of Appeals For The Sixth Circuit decided in this decision:

14–556, James Obergefell, et. al., Petitioners v. Richard Hodges, Director, Ohio Department of Health, et. al.;

14–562, Valeria Tanco, et. al., Petitioners v. Bill Haslam, Governor of Tennessee, et. al.;

14–571, April DeBoer, et. al., Petitioners v. Rick Snyder, Governor of Michigan, et. al.;

14–574, Gregory Bourke, et. al., Petitioners v. Steve Beshear, Governor of Kentucky.

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In Re the Marriage of Marta Cardon and Jamie Castro, 2014CO3 (January 13, 2014)

“Millennial Moms Focused on ‘Me’ Time, Study Says.” Time has value in a marriage; so it has value in a divorce. As a matter of first impression, the Court considered whether accrued time off earned during a marriage is marital “property” subject to equitable distribution. The trial court divided husband’s accrued time; the court of appeals reversed finding the value too uncertain to be deemed property and remanded. The Court affirmed on different grounds, examining two strains of thought: 1) leave as an alternative form of wages is not property; or 2) leave as deferred compensation and is property. The Court held that leave has value as time off or as cash, so if an enforceable right to be paid for leave exists, it is property. If its value can be reasonably ascertained it is divisible; if not, the time should be treated as an economic circumstance when equitably dividing property.

http://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2011/11SC59.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=9214&courtid=2

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In re the Parental Responsibilities of I.M., and Concerning R.A.M. and M.A.R., 2013COA107 (July 3, 2013)

“Paternity is a legal fiction.” James Joyce. McKenzie sought to have Russo declared the legal father of her son, I.M. Russo countered, arguing both that the statute of limitations barred the suit, and that McKenzie could not sue on I.M.’s behalf, as he was over 18. McKenzie claimed she should be allowed to bring the suit “at any time” under CRS 19-4-107 because Russo held I.M. out as his son.  She then sought to join I.M. as an indispensable party. The trial court granted judgment on the pleadings, holding that the suit was barred by statute of limitations, and that I.M. was not indispensable because, under CRS 19-4-108, he could bring his own suit before turning 21. The Court of Appeals agreed with the trial court’s legal conclusions as well as holding that CRS 19-4-107 only allows suits “at any time” when the parties were married or thought they were married.

http://www.courts.state.co.us/Courts/Court_of_Appeals/Opinion/2013/12CA1412-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=9024&courtid=1

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In re the Parental Responsibilities of L.K.Y. and J.R.Y., and Concerning Karen Elizabeth Peabody, and Angela Francis Young, n/k/a Evan Young, 2013COA108 (July 3, 2013)

“I’m for gay marriage, because I’m for gay divorce.”- Melissa Etheridge. Following the dissolution of a California domestic partnership, the same-sex parents of twins, who had moved to Colorado, sought a declaration of custodial rights and child support. The parent claiming support (Young) was in the military and received a stipend for off-base living. The magistrate did not deduct the stipend from her gross salary calculations because it qualifies as money that reduces Young’s personal living expense. If deducted, Peabody’s support obligation would be reduced by reducing the needs of the children. Peabody appealed. The court of appeals agreed, holding it was a proper under CRS 14-10-115 to not deduct the stipend because the stipend was not a resource of the children. Therefore, the total award of child support was higher than it would have been without the stipend.

http://www.courts.state.co.us/Courts/Court_of_Appeals/Opinion/2013/12CA1674-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=9025&courtid=1

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M.S. and S.S. v. The People In the Interest of A.C., and A.C., by and through his Guardian ad Litem.

“AC was born with cocaine in his system.” (Opinion). So begins a series of unfortunate events. AC’s third foster home parents are the petitioners (MS). They wanted to adopt AC. Initially the Denver DHS (DHS) called them “prospective adoptive parents,” until a report raised concerns about the mother. DHS removed AC without notice to anyone; a hearing was eventually held and the removal affirmed. MS appealed, arguing they had a constitutionally protected liberty interest in their relationship with AC based on their reasonable expectation that their relationship with A.C. would continue. The Court held they did not because neither CRS 19-3-507 (foster parents have a right to notice and participation), nor the 14th Amendment creates such an interest absent significant progress towards actual adoption. MS never started the adoption process and only had a foster parent’s rights.

http://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2011/11SC733.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8978&courtid=2

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[Re-post] In Re the Marriage of Jane Doe v. Charles B. Bruce, Jr., 2013COA43 (March 28, 2013)

“I’m an excellent housekeeper. Every time I get a divorce, I keep the house.” – Zsa Zsa Gabor. In this divorce case, Husband is ordered to make monthly payments of $5,000 in child support and $12,000 in maintenance (Obligations). He fails to pay, accumulates $101,486 in arrearages and has his law license suspended. The trial court permits Wife to collect from his retirement account pursuant to a qualified domestic relations order (QDRO) under 29 U.S.C. 1056 (ERISA). A QDRO allows a former spouse to obtain benefits owed to a participant in a retirement plan, and can be used to enforce payment of support and maintenance obligations. Under CRS 13-54-102, however, a retirement plan is not subject to such orders. The court of appeals held that Colorado’s law conflicts with ERISA, a Federal law, and is preempted. Husband’s retirement contributions could be taken to meet his Obligations.

[Please see comments regarding links]

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In Re: The Marriage of Sarah Joanne Rivera v. Ryan Lee Rivera

When it comes to kids and divorce, alternative dispute resolution is an option, but courts are ultimately responsible for protecting the best interests of children. CRS 14-10-128.5 authorizes court review of a dissolution of marriage arbitration award pursuant to the Arbitration Act, CRS 13-22-222, which favors confirmation of such awards. But, the trial court may review issues related to children de novo if a timely request is made. Here, an arbitrator issued a final award that included parenting time. Wife moved to confirm, but at a later hearing indicated she did not believe the award was in the best interest of the child. That request was made 42 days after the award, not 30 (as then required). The court of appeals held that the trial court lacked the authority to conduct a de novo review because the request was not timely. Thus, the trial court should have confirmed the entire award.

http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion/2012/11CA1886-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8847&courtid=1

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A.M. by and through his Guardian ad Litem, and L.H. and R.H. v. A.C., and the People in the Interests of A.M. v. N.M., 2012CO16M (February 25, 2013; Modified March 18)

As family structures change, so do the way in which we determine what may be in the best interests of a child. In dependency and neglect (D&N) proceedings, which can lead to the termination of parental rights, courts consider many factors and take evidence from many sources. With this opinion, the Court holds that foster parents of a child in the middle of a D&N proceeding can fully participate in such hearings, so long as they meet the requirements for intervention in CRS 19-3-507. A parent’s due process rights at a hearing are preserved by ensuring notice and using higher evidentiary standards. Full foster parent participation still provides the parental protections in Mathews v. Eldridge. Here, foster parents properly gave opening and closing statements, cross-examined witnesses, raised objections, and fully participated in the termination hearing without limitation.

http://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2011/11SC53.pdf [Opinion modified, and as modified, Petition for Rehearing DENIED (March 18, 2013).]

http://www.cobar.org/opinions/opinion.cfm?opinionid=8837&courtid=2

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In Re: Parental Responsibilities Concerning M.D.E., and Concerning Bernice M. Spencer, Intervenor, and Scott Rottler, Petitioner, 2013COA13 (January 31, 2013)

Grandparents are great; but great-grandparents are not “grandparents.” Following the dissolution of a marriage, the grandmother of a child’s mother (Great-grandmother), sought visitation rights. Father objected. The trial court allowed Great-grandmother to intervene to seek visitation. Father obtained interlocutory review pursuant to CRS 13-4-102 and CAR 4.2. The court of appeals reversed. Under CRS 19-1-117 and CRS 19-1-103(56) a “grandparent” is “a person who is the parent of child’s father or mother.” Great-grandparents are not such a person. Although the Children’s Code is liberally construed in favor of the best interests of the child, unambiguous language, combined with the protection of parents’ rights under Troxel v. Granville, do not permit an expansion of the definition of grandparent. Thus, Great-grandmother lacked standing to seek visitation.

http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion/2012/12CA2482-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8816&courtid=1

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L.A.N., a/k/a L.A.C., by and through her Guardian ad Litem; and The People in the Interest of Minor Child L.A.N., a/k/a L.A.C., v. L.M.B., 2013CO6 (January 22, 2013)

How does a minor-child shield his or her secrets, told to a psychotherapist, during a dependency and neglect proceeding? Normally, parents “hold” the child’s psychotherapist-patient privilege, and the right to waive that privilege on behalf of their children. But in a termination proceeding, parents have a conflict of interest. Three others could hold the child’s privilege: the department of human services, the juvenile court, or the guardian ad litem (GAL). The Court’s answer, under CRS sections 13-90-107 and 19-3-311, is the GAL. If waived, the court determines the scope, balancing various factors, seven of which were identified by the Court. The process for a GAL to withhold information is familiar: the GAL serves a privilege log, and then, if necessary, the court conducts an in camera review. The Court remanded this case for a determination of the scope of a GAL’s waiver.

http://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2011/11SC529.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8808&courtid=2

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Filed under Evidence, Family Law, Government