Marriage of Weathers

23CA1518 Marriage of Weathers 07-03-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1518

Mesa County District Court No. 21DR210

Honorable Gretchen B. Larson, Judge

In re the Marriage of

Elizabeth Eileen Weathers, n/k/a Elizabeth Eileen Kruger,

Appellee,

and

Dusten Ray Weathers,

Appellant.

ORDER REVERSED AND CASE

REMANDED WITH DIRECTIONS

Division III

Opinion by JUDGE YUN

Dunn and Moultrie, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced July 3, 2024

Elizabeth Eileen Weathers, n/k/a Elizabeth Eileen Kruger, Pro Se

Knies, Helland & McPherson Law, Kelly J. McPherson, Colorado Springs,

Colorado, for Appellant

1

¶ 1 In this post-dissolution of marriage proceeding involving

Dusten Ray Weathers (father) and Elizabeth Eileen Weathers, now

known as Elizabeth Eileen Kruger (mother), father appeals the

district court’s affirmance of a magistrate’s parenting time

restriction order. The order suspended all parenting time between

father and his three children while he attended individual therapy

and provided for a graduated parenting plan moving forward. He

contends that the court (1) unreasonably limited his parenting time

and (2) impermissibly delegated parenting time decisions. Because

we agree that the delegation of parenting time decisions was

improper, we reverse the order and remand the case to the district

court for further proceedings.

I. Background

¶ 2 In 2017, a court in Alabama dissolved the parties’ marriage.

Under a settlement agreement, mother had primary physical

custody of the parties’ three children and the parties agreed that

mother and the children would move to Colorado at the end of the

school year. Father exercised parenting time at his home on the

east coast during alternating spring breaks and holidays and each

summer.

2

¶ 3 In 2021, mother moved to restrict father’s parenting time,

asserting that the children were experiencing extreme anxiety about

visiting father for the summer based on experiences they had while

in his custody. The district court denied mother’s motion, finding

no imminent emotional danger to the children if father had

parenting time. However, it noted that the older children were

credible in their account about a 2019 incident where father lost

emotional control and found that the parenting plan may not be in

the children’s best interests until father was better able to meet the

children’s needs.

¶ 4 Mother then moved to modify parenting time. The district

court appointed a child family investigator (CFI) under section

14-10-116.5, C.R.S. 2023. In the meantime, father relocated to

Colorado and the parties agreed to a graduated parenting plan over

the course of three months, culminating in 50-50 parenting time.

About a week before the scheduled hearing on mother’s motion to

modify parenting time, she again moved to restrict father’s

parenting time, alleging that the children were experiencing panic

attacks and suicidal ideation at the thought of returning to father’s

care. The court granted the motion to restrict on an emergency

3

basis. After a three-day hearing, a magistrate granted mother’s

motion to modify and restrict parenting time and entered her

proposed parenting plan, modeled closely on the CFI’s

recommendations, which stopped visits for a time and provided for

gradual increases of parenting time as certain milestones were met.

¶ 5 Specifically, the parenting plan required that father engage in

mental health treatment weekly for a minimum of six months before

the commencement of any parenting time or contact with the

children. Following the completion of six months of individual

therapy, the parenting plan required “therapeutic parenting

time/family therapy” with all three children for a minimum of three

months. Then, father could resume parenting time in five gradual

“phases” starting with one mid-week evening visit every other week

and culminating in a week-on/week-off, equal parenting time

arrangement. The plan required that mother and father agree to

move to the next phase after consultation with father’s individual

4

therapist,

1

the children’s individual therapist, and a family

therapist.

¶ 6 Further, the parenting plan provided that the oldest child, who

was fifteen at the time of the order, should not be expected to

progress past Phase 2, which allowed for one mid-week visit per

month and one weekend visit per month. And it allowed the oldest

child to “decide for herself how much, if any, involvement she

wants” with father after she turns sixteen. Similarly, the parenting

plan provided that the middle child, who was nearly thirteen at the

time of the order, should not be pushed to advance past Phase 4,

which allowed extended weekend visits with father every other

week. And, once she reached sixteen, she could decide to reduce

time with father to Phase 3, which allowed for weekend visits every

other week.

¶ 7 Father petitioned the district court for review of the

magistrate’s decision. The district court affirmed the magistrate’s

order.

1

The CFI recommended that father engage in individual therapy

with a clinician who specializes in “[domestic violence], child abuse,

empathy training and emotional regulation.”

5

II. Law and Standard of Review

¶ 8 Reasonable parenting time is mandated, and parenting time

rights may not be unduly restricted unless the district court finds

that exercising these rights would endanger the children’s physical

health or significantly impair their emotional development. See

§ 14-10-124(1.5)(a), C.R.S. 2023; see also § 14-10-129(1)(b)(I),

C.R.S. 2023; In re Marriage of Martin, 42 P.3d 75, 77 (Colo. App.

2002). And “in any order imposing or continuing a parenting time

restriction, the court shall enumerate the specific factual findings

supporting the restriction . . . .” § 14-10-124(1.5)(a); see

§ 14-10-129(1)((b)(I).

¶ 9 Further, the parental responsibilities statutes “require[] that

the trial court itself make decisions regarding parenting time, and

[the court] may not delegate this function..” In re D.R.V-A.,

976 P.2d 881, 884 (Colo. App. 1999) (reversing delegation to

guardian ad litem and family therapist); see § 14-10-124(1.5)(a); see

also In re Marriage of Elmer, 936 P.2d 617, 621 (Colo. App. 1997)

(concluding that a court has no authority to delegate to the child’s

psychiatrist the decision when overnight parenting time visits can

occur); In re Marriage of Hatton, 160 P.3d 326, 334 (Colo. App.

6

2007) (reversing order delegating to a parent decisions regarding the

other parent’s parenting time).

¶ 10 Our review of a district court’s order adopting a magistrate’s

decision is effectively a second layer of appellate review. In re

Marriage of Sheehan, 2022 COA 29, ¶ 22. The determination of

parenting time is a matter within the district court’s sound

discretion, taking into consideration the children’s best interests

and the policy of encouraging the parent-child relationship. Hatton,

160 P.3d at 330. A district court abuses its discretion when it acts

in a manifestly arbitrary, unfair, or unreasonable manner. Id.

III. Restricting Father’s Parenting Time

¶ 11 Father first argues that the magistrate abused its discretion by

restricting his parenting time. He asserts that ample evidence

established that his parenting time did not significantly impair the

children’s emotional development. Because this issue is not

properly preserved, we may not consider it for the first time on

appeal.

¶ 12 A party appealing from a magistrate’s order must present a

particular issue in his petition for review in the district court and

give that court an opportunity to correct any error before the issue

7

may be raised on appeal. People in Interest of K.L-P., 148 P.3d 402,

403 (Colo. App. 2006); see also C.R.M. 7(a)(7) (a petition for review

shall state with particularity the alleged errors in the magistrate’s

order).

¶ 13 Father’s petition for review raised only one issue — whether

the magistrate improperly delegated parenting time decisions to

mother, the children’s therapist, and the children themselves. He

did not challenge the magistrate’s finding that parenting time with

him impaired the children’s emotional development or argue that

the magistrate abused his discretion by reducing his parenting

time. Accordingly, we cannot review this contention on appeal. See

Estate of Stevenson v. Hollywood Bar & Café, Inc., 832 P.2d 718

(Colo. 1992) (arguments never presented to, considered by, or ruled

upon by a trial court may not be raised for the first time on appeal).

IV. Delegating Parenting Time Decisions

¶ 14 Father also argues that the magistrate’s order impermissibly

delegated parenting time decisions to the children’s therapist,

mother, and the children themselves. Although the parenting order

requires only consultation with the therapists for father, the

children, and the family — not their agreement — the parenting

8

time order must be reversed because it improperly delegates

parenting time decisions to mother and, in certain circumstances,

to the children themselves. See In re Parental Responsibilities

Concerning B.J., 242 P.3d 1128, 1133 (Colo. 2010) (“Only the court

has the authority to allocate parenting time . . . .”).

¶ 15 Mother argues on appeal that the delegation was permissible

because nothing in the record indicated that she would

unreasonably withhold her permission to move on to the next

phase. The district court also noted that the record did not support

an assumption that mother would never agree to move from one

phase to another. While that may be true, mother provides no

authority, nor are we aware of any, that permits the court to

delegate parenting time decisions to another parent even if that

parent appears reasonable.

¶ 16 Nor are we convinced by mother’s argument that the court was

required to delegate decision making to the children because it had

to consider their wishes under the best interests standard of section

14-10-124(1.5)(a)(II). We agree that the children’s wishes — if the

children are sufficiently mature to express reasoned and

independent preferences — are a factor for the court to consider.

9

But nothing allows, let alone requires, a court to acquiesce to a

child’s preference to discontinue or reduce parenting time entirely.

¶ 17 We acknowledge the dilemma that the court faces if the

children are unwilling to participate in parenting time with father.

However, the court must craft a parenting time order that does not

delegate the parenting time decisions to mother or the children.

See Hatton, 160 P.3d at 333-34. The court must consider

alternatives, other than giving the children discretion to refuse or

reduce parenting time, that will preserve parenting time rights for

father while also recognizing that the children are approaching

adulthood. See id.

¶ 18 Because it may occur again on remand, we also consider

father’s challenge to the parenting time provision that states that,

“[t]o eliminate any concerns about emotional safety, no child should

begin a new parenting phase without at least one other sibling

present in Phases 1-3.” Father argues that this provision

unreasonably restricts his parenting time with the youngest child,

who did not have the same anxiety and negative reaction to

parenting time with father. We agree that the order does not

sufficiently explain why this provision was necessary to ensure the

10

emotional safety of all the children and, on remand, this provision

should be reconsidered. If it is retained, the court must make

specific findings supported by the record explaining why.

¶ 19 Accordingly, we remand the matter to the district court for

further proceedings. On remand, the court should give the parties

an opportunity to present any new evidence concerning the current

circumstances of the parties and the children. See In re Parental

Responsibilities Concerning B.R.D., 2012 COA 63, ¶ 43.

V. Disposition

¶ 20 The order is reversed and the case remanded for further

proceedings.

JUDGE DUNN and JUDGE MOULTRIE concur.