Marriage of Stanton

23CA0791 Marriage of Stanton 10-17-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA0791
El Paso County District Court No. 20DR62
Honorable David Prince, Judge

In re the Marriage of

Sean P. Stanton,

Appellee,

and

Stephanie May Stanton, n/k/a Stephanie May Barrett,

Appellant.

ORDER AFFIRMED AND CASE
REMANDED WITH DIRECTIONS

Division II
Opinion by JUDGE SCHOCK
Fox and Johnson, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced October 17, 2024

Artemis Law, Leigh Horton, Denver, Colorado, for Appellee

Paige Mackey Murray, LLC, Paige Mackey Murray, Boulder, Colorado, for
Appellant
¶1 In this post-dissolution of marriage proceeding between

Stephanie May Stanton, n/k/a Stephanie May Barrett (mother),

and Sean P. Stanton (father), mother appeals the district court

order modifying parenting time for the parties’ child and designating

father as the child’s primary residential parent. We affirm the order

and remand for the district court to consider mother’s request for

appellate attorney fees.

I. Relevant Facts

¶2 The parties’ marriage ended in 2020. At that time, they agreed

that their only child, who was then nearly two and a half years old,

would live with mother in New Hampshire and that father would

have parenting time in Colorado, where he lived, as well as in New

Hampshire. The parties also agreed to shared decision-making

responsibility and reasonable telephone and video communication

with the child when he was in the care of the other.

¶3 In January 2021, the district court entered an order finding

that mother had not worked in good faith to honor the parties’

agreement concerning telephone and video contact and had been

primarily responsible for disruptions to the agreed-upon schedule.

The court ordered a specific schedule of video contact four days per

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week. The order provided that mother could not cancel or change a

scheduled contact more than three times per month, and “[i]f

[mother] conclude[d] she must” change or cancel a contact time,

she was to reschedule at father’s convenience the following day.

¶4 Nearly a year later, father filed a motion concerning parenting

time disputes under section 14-10-129.5, C.R.S. 2024. He alleged

that mother had violated the January 2021 order; refused to involve

father in medical, therapy, and educational decisions for the child;

and refused to give father her new phone number after changing it.

He further asserted that mother was endangering the child and

asked to become the child’s primary residential parent.

¶5 At mother’s request, the district court appointed a parental

responsibilities evaluator (PRE). The PRE completed an

investigation that included home visits in New Hampshire and

Colorado, as well as interviews with the parties, the child’s maternal

grandmother, the child, and other individuals who know the child.

¶6 The PRE found, among other things, that mother and

maternal grandmother were engaging in “alienating behaviors” and

that “without a change in [the child’s] environment, his ability to

develop a positive relationship with Father will be impossible.” The

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PRE also concluded that (1) mother’s “enmeshment with maternal

grandmother” was “endangering [the child] emotionally”; (2) the

child’s current environment “significantly impairs the child’s

emotional development”; (3) “the harm likely to be caused by a

change in the child’s environment is outweighed by the advantage

of a change to the child”; and (4) a change in physical custody is

necessary to serve the best interest of the child. The PRE

recommended that father be given primary physical custody.

¶7 After holding an evidentiary hearing, the district court entered

an order adopting the PRE report and naming father the child’s

primary residential parent in Colorado. The court noted that

father’s request was governed by the “endangerment” standard, and

it summarized the PRE’s conclusion that “the child’s development

(primarily emotional development) is endangered by the current

parenting arrangement.” The court explained that it agreed with

the PRE’s findings and analysis. It reasoned as follows:

[T]he change of primary residential parent
recommended by the PRE will be difficult and
stressful for the child. A reasonable overall
summary of the Court’s analysis is that the
child is unlikely to be permitted to develop a
healthy relationship with both parents in the
current situation and the child is likely to

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continue to be placed under great stress by
[mother’s] household regarding the conflict
between the parents over mutually developed
parenting relationships. However, a change in
primary residential parent provides the best
opportunity for the child to develop a healthy
relationship with both parents and the best
chance for lessening the stress placed on the
child by the parents’ relational competition.
Additionally, [father] appears better equipped
to recognize his shortcomings in
communication and parental skills
development that need to be addressed. As
compared to [mother], [father] appears to have
a stronger potential to address these
challenges productively . . . .

¶8 The district court later issued a post-hearing order further

clarifying its reasoning for the parenting time modification. Among

other things, the court found that (1) mother had violated the

parenting time order; (2) mother “affirmatively discourage[d] the

sharing of love, affection, and contact between [father] and the

child”; (3) the child’s existing circumstances endangered the child;

and (4) the modification served the child’s best interests.

II. Analysis

¶9 Mother contends that the district court failed to conduct the

required three-step analysis for parenting time modifications that

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change the child’s primary residential parent. She also asserts that

the evidence was insufficient to satisfy that test. We disagree.

A. Applicable Law and Standard of Review

¶ 10 When a court finds that a parent has violated a parenting time

order, it may issue an order modifying the previous order to meet

the best interests of the child. § 14-10-129.5(2)(b). But when such

an order would substantially change the parenting time and change

the party with whom the child resides a majority of the time, the

court must apply the heightened standard in section 14-10-129(2),

C.R.S. 2024. In re Marriage of Schlundt, 2021 COA 58, ¶ 30.

¶ 11 Under section 14-10-129(2), the district court cannot

substantially modify parenting time and change the child’s primary

residential parent unless it finds that a change has occurred in the

child’s or primary residential parent’s circumstances and that the

modification is necessary to serve the child’s best interests.

Moreover, the court must retain the prior parenting time schedule

unless, as relevant here, (1) the child’s present environment

significantly impairs the child’s emotional development, and (2) the

harm likely to be caused by a change of environment is outweighed

by the advantage of a change to the child. § 14-10-129(2)(d).

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¶ 12 Thus, the court must apply “a three-step analytical process.”

Schlundt, ¶ 35 (citation omitted). First, it must start from a

presumption that the prior order shall be retained. Id. Second, it

must find that “the child is endangered by the status quo and that

modifying the existing order will create advantages that outweigh

any harm caused by the modification.” Id. Third, it must find that

the proposed modification is in the child’s best interests. Id.

¶ 13 We review a district court order modifying an existing

parenting time order for an abuse of discretion, exercising every

presumption in favor of upholding its decision. In re Parental

Responsibilities Concerning S.Z.S., 2022 COA 105, ¶ 13; In re

Marriage of Barker, 251 P.3d 591, 592 (Colo. App. 2010). We review

de novo whether the district court correctly applied the law. In re

Parental Responsibilities Concerning B.R.D., 2012 COA 63, ¶ 15.

B. Presumption

¶ 14 Mother first argues that the district court did not apply the

presumption that the prior parenting time order be retained.

¶ 15 We acknowledge that the district court did not explicitly cite

the presumption. But it recognized that the “endangerment”

standard applied — in other words, that the parenting time order

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could be modified only if father demonstrated that the child was

endangered by the child’s current environment. And it expressly

found that this standard was satisfied. In doing so, the district

court effectively applied the presumption, even if it did not refer to it

as such. Cf. Schlundt, ¶ 36 (holding that court failed to apply the

presumption where it did not make findings necessary to overcome

it). We therefore see no error at the first step of the analysis.

C. Endangerment Finding

¶ 16 Mother next argues that the district court’s analysis fails at

the second step because (1) the record does not support the finding

that the child’s emotional development was significantly impaired

by the existing parenting arrangement, and (2) the court did not

sufficiently consider the harm caused by the modification and weigh

that harm against the advantages. We disagree on both points.

Although there was evidence pointing in both directions, including

evidence tending to suggest that the child’s emotional development

was not significantly impaired, we conclude that there is sufficient

evidence in the record to support the district court’s findings.

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1. Significant Impairment

¶ 17 The district court expressly incorporated the PRE’s conclusion

that the child’s emotional development is endangered by the current

parenting arrangement. More specifically, the PRE found that the

child’s current environment “significantly impairs the child’s

emotional development.” § 14-10-129(2)(d); cf. Schlundt, ¶¶ 41-45

(concluding that PRE did not support endangerment finding where

it did not mention endangerment or significant impairment of

emotional development). The court adopted the PRE’s findings.

¶ 18 There is record support for the district court’s findings. The

PRE’s written report and testimony indicated the following:

• Mother had difficulty coping with parenting

responsibilities appropriately. She deferred most of her

parenting responsibilities and parenting time to maternal

grandmother. And even when mother was present, the

child tended to seek out maternal grandmother for most

of the child’s needs, questions, and assistance.

• The child’s inability to distinguish the parenting role

between mother and maternal grandmother was a

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concern. The child exhibited confusion about who to

turn to with questions or issues.

• Mother was “enmeshed with maternal grandmother,

emotionally immature and unable to individuate and

mature to a point where she [was] able to complete

parenting tasks and responsibilities on her own.” That

“enmeshment” created a “negative environment for [the

child] endangering him emotionally.”

• Mother’s intent to remain in her parents’ home

indefinitely was “problematic” in light of maternal

grandmother’s “over involvement in parenting” the child.

• Mother had significant difficulty encouraging the child’s

relationship with father. In particular, she restricted the

child’s interactions with father and his family and

prevented the child from receiving gifts from father.

• Mother and her extended family had “participated in

behaviors that [gave] [the child] the impression that

[f]ather [was] bad, wrong, and exhibits poor judgment.”

They spoke negatively about father while the child was in

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earshot. And the PRE had concerns that the child had

been “coached” on things to say to father.

• Although a positive relationship between the child and

father was “imperative to [the child’s] best interest,”

mother and her extended family did not value it. Without

a change in environment, it would be impossible for the

child to develop a positive relationship with father.

• The child was “acutely aware” of the parties’ ongoing

conflict. That conflict, combined with the “impressions

and influence” from mother and her extended family,

gave the child “a great deal of anxiety.”

• The “negative influence and alienating behaviors that are

present in mother’s environment” were “detrimental to

[the child’s] personality development, his own self-

concept and his emotional well-being.”

¶ 19 In addition to the PRE report and testimony, father testified

that mother’s home was adversely impacting the child’s personality.

He said that during his parenting time, the child was disobedient

and argumentative and would dismiss his authority in favor of

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grandmother’s. And he recalled numerous situations in which

mother frustrated or disrupted his parenting time with the child.

¶ 20 Mother takes issue with the PRE’s conclusions. She argues

that none of the PRE’s concerns — mother’s inability to support the

child’s relationship with father, maternal grandmother’s

involvement in parenting the child, and the conflict between the

parties — showed that the child’s emotional development was

significantly impaired. But as detailed above, the district court (by

incorporating the PRE report) found otherwise. “What constitutes

endangerment is a highly individualized determination.” In re

Marriage of Wenciker, 2022 COA 74, ¶ 26. Because the district

court’s findings are supported by the record, we will not disturb

them. See id. And given the PRE’s observations as to how the

identified concerns were affecting the child, we cannot conclude

that the district court’s assessment of those facts was an abuse of

discretion.

¶ 21 Mother points to evidence that could have supported the

contrary finding, including that (1) the child was happy, well-

adjusted, intellectually advanced, and bonded to both parents; and

(2) the child had a stable home for two years in New Hampshire

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where the child had built strong ties to family and friends. We

agree that this evidence cuts in the other direction and could have

supported a finding that the child’s environment with mother did

not significantly impair the child’s emotional development.

¶ 22 But it is the district court’s role, not ours, to resolve questions

of conflicting evidence, including whether the child’s emotional

development is significantly impaired by the child’s current

environment. See B.R.D., ¶ 15 (“[W]hen there is record support for

the [district] court’s findings, its resolution of conflicting evidence is

binding on review.”); Wenciker, ¶ 26. We may not reweigh the

evidence and substitute our judgment for that of the district court.

See People in Interest of A.J.L., 243 P.3d 244, 249, 256 (Colo. 2010).

2. Balancing of Harm

¶ 23 We also reject mother’s contention that the district court did

not consider the harm caused by the modification and weigh that

harm against the advantages of the modification.

¶ 24 The district court explicitly acknowledged that the change of

primary residential parent would be “difficult and stressful for the

child.” The PRE similarly recognized the “issues related to changing

environments for a child this age.” The court also noted that no

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solution would be perfect, given the significant challenges faced by

both parents in fostering a positive relationship with the other.

¶ 25 But the district court found — explicitly, insofar as it adopted

the PRE — that “the harm likely to be caused by a change in the

child’s environment is outweighed by the advantage of a change to

the child.” In particular, the court found that the change to father

as the primary residential parent “provides the best opportunity for

the child to develop a healthy relationship with both parents and

the best chance for lessening the stress placed on the child.”

¶ 26 That finding had record support in the PRE’s report and

testimony, including the following:

• The child interacted appropriately with father, and they

were well-bonded and happy together.

• Father was more respectful and encouraging of the

child’s relationship with mother than vice versa.

• Father was more willing to engage and reinforce with the

child that he had two extended families and two homes.

• The child was safe in father’s home, and the child should

adjust well to life there.

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¶ 27 Again, mother contends that the district court struck the

wrong balance, and she asks us to reweigh the evidence, which we

cannot do. See A.J.L., 243 P.3d at 256; B.R.D., ¶ 15. To the extent

mother asserts that the district court ignored certain evidence that

it did not refer to expressly — including mother’s concerns about

father’s alcohol use, anger issues, and ability to be a stable

majority-time parent as an active-duty service member — we may

presume that the court considered all the evidence before it. See In

re Marriage of Udis, 780 P.2d 499, 504 (Colo. 1989). Nothing

requires the court to separately enumerate each potential harm.

3. Child’s Best Interests

¶ 28 Finally, we reject mother’s claim that the district court erred

by not considering certain statutory factors bearing on the child’s

best interests. The PRE report expressly considered each of the

pertinent factors set forth in section 14-10-124(1.5)(a), C.R.S. 2024.

The district court’s adoption of that report indicates that the court

appropriately considered the pertinent factors. The court did not

need to repeat each of those findings in its order or make specific

findings on each statutory best interest factor. See In re Marriage of

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Garst, 955 P.2d 1056, 1058 (Colo. App. 1998); see also In re

Marriage of DePalma, 176 P.3d 829, 834 (Colo. App. 2007).

III. Appellate Attorney Fees

¶ 29 Mother requests an award of her appellate attorney fees under

section 14-10-119, C.R.S. 2024, based on the parties’ disparate

financial resources. Because the district court is better situated to

determine whether the parties’ relative financial circumstances

warrant such an award, we remand this issue to the district court

for its consideration. See C.A.R. 39.1; Schlundt, ¶ 54.

¶ 30 We deny father’s request for appellate attorney fees under

section 13-17-102(4), C.R.S. 2024. Although mother has not

prevailed, her arguments did not lack substantial justification. See

In re Marriage of Boettcher, 2018 COA 34, ¶ 38 (“Fees should be

awarded only in clear and unequivocal cases when the appellant

presents no rational argument, or the appeal is prosecuted for the

purpose of harassment or delay.”), aff’d, 2019 CO 81.

IV. Disposition

¶ 31 The order is affirmed, and the case is remanded to the district

court to consider mother’s request for appellate attorney fees.

JUDGE FOX and JUDGE JOHNSON concur.

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