Wollert v. Joseph

464 P.3d 703

IN RE the MARRIAGE OF Heidi A. WOLLERT, Petitioner, and Francis F. JOSEPH, Respondent.

Supreme Court Case No. 20SA87

Supreme Court of Colorado.

June 1, 2020

Attorneys for Petitioner: Law Offices of Rodger C. Daley, Rodger C. Daley, Kerry Lego, Carrie Vonachen, Dorian Geisler, Denver, Colorado

Attorneys for Respondent: Fourth Street Law, LLC, Christopher J. Linas, Caroline C. Cooley, Castle Rock, Colorado

Attorneys for Douglas County District Court: Philip J. Weiser, Attorney General, Emily B. Buckley, Assistant Attorney General, Denver, Colorado

En Banc

JUSTICE SAMOUR delivered the Opinion of the Court.

¶1 The highly contentious marriage dissolution case before us today has been active for more than fourteen years and has an astonishing six hundred and fifty docket entries. Through it all, the parties have shown an utter unwillingness to co-parent. Making no secret of the disdain they have for each other, they continue to fight over their son, who is now thirteen.

¶2 We, of course, are under no illusion of being able to bring the parties’ protracted dispute to a merciful end. But we nevertheless chose to exercise our original jurisdiction in this case because the C.A.R. 21 petition filed by Francis F. Joseph ("Father") presents a rare opportunity to address a legal question of public importance that arises with some frequency in domestic relations cases: When does a motion to restrict parenting time ("motion to restrict") pursuant to section 14-10-129(4), C.R.S. (2019), require a hearing within fourteen days of the filing of the motion?¹

¶3 A magistrate in Arapahoe County District Court applied the analytical framework espoused by the court of appeals in In re Marriage of Slowinski , 199 P.3d 48 (Colo. App. 2008), and found that no hearing was required on Father's motion to restrict. She concluded that, taking all of the allegations in the motion at face value, "there [was] no set of facts or circumstances that could give rise to the conclusion that the child [was] in imminent physical or emotional danger." On appeal, the district court sided with Heidi A. Wollert ("Mother") and adopted the magistrate's order.

¶4 We now overrule Slowinski and hold that the particularity requirement in C.R.C.P. 7(b)(1) provides the proper standard to review a section 14-10-129(4) motion. Applying Rule 7(b)(1), we conclude that Father's motion was sufficiently particular to require a hearing within fourteen days. Accordingly, we make the rule absolute.

I. Procedural History

¶5 In April 2006, approximately five months after the parties’ wedding, Mother filed a petition for dissolution of marriage. She was pregnant at the time. In December 2007, the court entered a dissolution decree. Rather than bring finality to this action, though, the decree seemed to serve as a springboard for more litigation. During the last twelve-plus years, the parties have raised myriad issues revolving around their son. As a result, three Child and Family Investigators, a Parental Responsibility Evaluator ("PRE"), two reintegration therapists, and other professionals have been involved in the case.

¶6 The parenting order currently in effect, which was entered in February 2015, provides that Mother has parenting time except for every other weekend and every other Wednesday overnight, when Father has parenting time. In December 2016, when the child was ten, the district court expressed concern about "a child th[at] young" having a very negative attitude toward Father for no apparent reason. Determining that "[i]mmediate therapeutic" intervention was required, the court appointed Dr. Karen Jamieson Darr, a reintegration therapist, to work with Father and son. Dr. Darr accepted the appointment and provided reintegration therapy until April 2018 when, for personal reasons, she could no longer continue offering her services in this case.

¶7 A couple of months later, in June 2018, the court appointed Sharon Feder, M.S., as the new reintegration therapist. In April 2019, while the reintegration therapy was still ongoing, Father filed a motion to modify and enforce parenting time ("motion to modify") pursuant to sections 14-10-129(1) and 14-10-129.5, C.R.S. (2019). Father asserted that Mother was alienating the child from him in several ways, including by making unfounded allegations about him being "an abduction threat." He reminded the court that before the marriage was dissolved, the PRE had indicated that "Mother behaves as if the child is her possession, to be doled out to the father as she sees fit," and that she "expends much effort to limit and control the time father has with his child," going "so far as to agree it would be good if [Father]," whom she treated as nothing more than a "semen donor," were deported. And, continued Father, the PRE had predicted at that time that Mother was "unlikely to change." According to Father, the child was refusing to see him during much of his scheduled parenting time as a result of Mother's behavior. Father requested an expedited hearing on his motion to modify.²

¶8 In November 2019, approximately seventeen months into her reintegration therapy with Father and son, Ms. Feder issued a four-page, single-spaced "Treatment Summary of Reintegration Therapy" ("Summary"), providing notice that she was terminating her services based on "the lack of positive results of treatment and the digression it ha[d] taken" in recent months. She felt that "more specialized treatment" was needed.

¶9 Ms. Feder noted that Father and son seemed to have had a healthy relationship when the son was younger and that Father had never emotionally or physically abused or neglected him. She added that Dr. Darr had made a similar assessment. But, observed Ms. Feder, during the previous seventeen months, Father had not had "a relationship with the child outside [her] office." Ms. Feder believed that whenever she started to make progress, the therapy would inexplicably "slow down or take a step backwards." She pointed out that the same phenomenon had occurred during Dr. Darr's therapy. Ms. Feder was convinced that Mother was responsible for bringing any progress to a halt and regressing the Father-son relationship. She opined that Mother was "alienating the child from his father," something Dr. Darr had also witnessed.

¶10 In eighteen bullet points, Ms. Feder listed her reasons for determining that Mother was engaging in "severe parental alienation." Ms. Feder remarked that Mother had "very strong negative feelings" about Father, which Mother had passed on to the child and which influenced what the child thought about his Father. As an example, Ms. Feder stated that Mother had made numerous unfounded allegations of child abuse against Father, which is common among parents who engage in alienation. Ms. Feder mentioned that the child did not want a relationship with Father, a "classic sign[ ] of alienation." In Ms. Feder's view, the child's rationalization for hating Father was "absurd" and "flimsy."

¶11 Significantly, Ms. Feder concluded that the child was "in imminent psychological and emotional danger" as a result of Mother's severe parental alienation. In Ms. Feder's assessment, this constituted "child abuse" and could lead to severe psychological dysfunction, which, in turn, placed the child at risk of legal issues and "problems with interpersonal relationships, substance abuse, ... lack of empathy, low self-esteem, anxiety, depression, behavioral issues, ... lack of impulse control, on-going anger issues, sleep and eating disorders, self-destructive behaviors and/or suicidal ideation." Ms. Feder felt that "immediate intervention by the court" was necessary.

¶12 Upon receiving Ms. Feder's Summary, Father immediately filed a verified emergency motion to restrict pursuant to section 14-10-129(4). His motion incorporated by reference the contents of the Summary in their entirety. Father specifically requested that a hearing be held within fourteen days.

¶13 Mother filed a response opposing the motion. She argued that Father had been accusing her of parental alienation since the child was in utero. Mother's motion was accompanied by a letter from the child's individual therapist. In stark contrast to Ms. Feder, who believed that the status quo placed the child in imminent psychological and emotional danger, the child's individual therapist stated that the child "may well commit self-harm" if Father were to become the primary custodial parent.

¶14 In Father's reply, his counsel represented that she was familiar with the child's individual therapist. She questioned his credibility, alleging that his professional liability insurance had been dropped as a result of the number of complaints and lawsuits filed against him. Counsel also referenced a prior case in which the child's individual therapist had aligned himself with a parent who engaged in alienation and ultimately murdered his child.

¶15 The magistrate denied Father's motion to restrict without holding a hearing. Relying on Slowinski , she found that the motion was "facially insufficient" because even "taking all of the allegations ... as true, there [was] no set of facts or circumstances that could give rise to the conclusion that the child [was] in imminent physical or emotional danger."

¶16 Father timely petitioned the district court for review of the magistrate's order pursuant to C.R.M. 7(a). Besides repeating the allegations in his motion to restrict, he informed the court that in an unrelated filing Mother had recently asserted that the child was threatening to commit suicide if he were forced to see Father. Father told the court that this allegation was alarming and underscored the need for the court's immediate intervention.

¶17 Unpersuaded by Father, the district court adopted the magistrate's order. It found that the denial of Father's motion without a hearing was not "clearly erroneous."³ Additionally, it noted that Father's motion to modify was still pending and that, "[u]pon a full...