GREETINGS FROM THE CHAIR
RICHARD I. ZUBER

Annual Family Law Institute

IN RE MARRIAGE OF BALANSON AND VESTED REMAINDERS IN IRREVOCABLE TRUSTS

Birds of a Feather Flock Together—or Do They?

FANTASTIC 3RD ANNUAL COLLABORATIVE LAW CONFERENCE

The CFI changes 

Newsletter Editorial  re: CFI Changes Newsletter Editorial  re: CFI ChangesNewNewsletter Editorial  re: CFI ChangesNewsletter Editorial  re: CFI ChangesNewsletter Editorial  re: CFI Changes 

DOMESTIC RELATIONS DECISIONMAKERS (DRDM):
SHERIFFS OR JUDGES? 

Domestic Violence and Divorce:  When Your Domestic Case Meets Criminal Charges

ACFF/MDIC/BIDC Conference Recap

The Paradigm Shift of Collaborative Law 

Upcoming CBA-CLE Programs 

Brown Bag Lunch with the Judges Notes

-4th Judicial District El Paso County

-8th Judicial District Larimer County

-1st Judicial District Jefferson County

-17th Judicial District Adams/Broomfield Counties



 

GREETINGS FROM THE CHAIR
RICHARD I. ZUBER

Colleagues,

We all have more reason today to feel a bit more optimistic about the economy, our clients, and our family law practices then we did last September. Still, challenges remain for practitioners faced with client’s homes in foreclosure, business valuation reports suggesting co-ownership post decree, and children being traumatized by angry parents facing long-term involuntary unemployment. It seems to me that issues surrounding the use and abuse of alcohol and medical marijuana have never been more prevalent in dissolution matters.   The executive council has been working diligently throughout the year in addressing these issues, along with evaluating and commenting upon proposed legislation that invariably and predictably seems to arise in hard times.

As the chair of the Section, I am nevertheless delighted to report that the August 2010 Family Law Institute was a great success!  CLE reports there were 367 registrants in attendance including judges, lawyers and mental health professionals. Of the 367 in attendance, 276 paid (“something”). By all reports, the Institute was very well received in terms of the content of the programs, the quality of the speakers, and certainly not to be overlooked the Steamboat Springs locale. There was from the first afternoon to the concluding presentation on Sunday, a remarkable enthusiasm for the seminar from both speakers and attendees.

Especially gratifying to Meredith Cord and me as co-chairs were the compliments   received from judges, lawyers, mental health professionals and most notably from Gary Abrams, as executive director of Colorado CLE.  Gary publicly recognized the hard work that went into planning the Institute which he characterized as a success for the Section. However, the success of the Institute did not rest simply with the Section.

Once the final decision was made to change the venue to Steamboat, the folks at CLE did an absolutely wonderful job in helping us plan and promote the Institute. Their work included designing a new color photo brochure for distribution. CLE also worked tirelessly with the Sheraton hotel staff to ensure that the facility met every speaker’s needs and attendee’s expectations. Not to be overlooked was the Friday afternoon wine tasting reception under the tent or the great lunch on Saturday, where the past was being honored and the future embraced.  (The names of all the past chairs prominently displayed on an easel with their engraved awards on display was simply a wonderful idea of the CLE staff.)

In addition, who can forget Jerry Snyder’s wonderful lunch presentation as he related the history of the Family Law Section since its founding in 1975?  As the first chair of the Section, Jerry rekindled memories for some of the older practitioners or created new ones for others, as he related what it was like to practice divorce law in Colorado under the fault system of divorce. 

Yet for many the most memorable event of the weekend was Rob Hinds giving his father the Section’s Icon Award and Bob’s speech that followed.  I happened to notice at our table the bright smile on the face of Donna Hinds. I shall always remember that smile, on that wonderful day, by a wife and mother who has in her own right given back so much inspiration, love, and hard work to the practice of family law in Colorado. At the conclusion of the 2010 Family Law Institute, an attendee observed that the Section keeps “raising the bar” each year in terms of the quality of the programs being presented.

The 2011 Institute in Breckenridge should prove to be equally successful.  I look forward to seeing all of you there this summer!

                                                WHAT’S  NEXT ?

The Executive Council has addressed some interesting issues this year including a new Civil Union bill, proposed changes to the CFI / PRE protocols (caps on fees), fascinating amicus issues, and the ongoing initiatives to bring quality speakers and presentations to the membership.

We also communicated to the Colorado Bar Association, the Section’s opposition to a proposed decanting statute being advocated by the Trust and Estates section. This statute if approved would have allowed trustees to engage in divorce planning by changing or decanting property remainder interests into mere expectancies. 

Further, we were able to successfully convince The Colorado Lawyer editorial board that they should consider changing their editorial policies so as to allow prospective authors to voice opinions in their articles, as long as there was a rational basis for the opinion. The Colorado Lawyer editorial board is in the process of formulating a new policy in response to our suggestions.

Finally, for the first time in recent memory, we were honored with a question and answer presentation at a recent luncheon by Chief Justice Michael Bender of the Colorado Supreme Court. Chief Justice Bender addressed any and all questions submitted and freely gave his opinions (popular or not) regarding topics of concern to the family law bar.  What made the presentation so worthwhile for many in attendance was not only the fact of the presentation but the realization that the Chief Justice was also listening and learning from the family law bar. Looking forward, I am excited to continue the work we have begun this year and I thank all Section members who have given us feedback and inspiration to continue one of the most dynamic sections of the bar association. 

Sincerely,

Richard Zuber 

Annual Family Law Institute: A message from the Chair Elect

It is Going to be a Rocking 2011/2012 Year at the Family Law Section, Starting with the Annual Family Law Institute!

You say you want a revolution
Well, you know
We all want to change the world
. . .
You say you got a real solution
Well, you know
We'd all love to see the plan
. . .
You tell me it's the institution
Well, you know
You better free your mind instead. . .

“Revolution” excerpts, by The Beatles

One of the honors of being the Chair-Elect of the Family Law Section of the Colorado Bar Association is chairing the annual Family Law Institute. This year, our goal with the Institute is to educate, entertain, and challenge our members to join the revolution for change! As part of that, we adopted The Beatles’ song “Revolution” as our theme. In addition to the amazing guitar licks, the words are an inspiration:

http://www.youtube.com/watch?v=71GJaR8rMtA&feature=related

When we talk about change, we are focusing on inspiring lawyers, judges, and experts to bring back respect and dignity to the legal processes around family issues. We are also focusing on new ways to deal with substantive family law issues, such as working around the “double-dip” caselaw, finding new resources to support imputing income to unemployed executives, and challenging the assumptions and impositions of cookie-cutter 50-50 parenting plans.

Also included in the theme of “change” are a few new components of the Family Law Institute. For the first time, we will have a “Kick-Off to the Institute, a/k/a Kick off to the Revolution!”event. As part of that initiative, also for the first time ever, I am proud to announce that we are having a charity fundraiser to benefit the Legal Aide Foundation.  The format of the Institute this year also gives participants significant additional networking opportunities, including a cocktail reception Saturday evening.   Also, the ever-popular “Hot Topics” are back once again, but our new twist is that they are being presented by judges.

One of my goals as Chair of the Section, starting at the Institute and Kick-Off, is to force us all to look squarely at what we, and this system, are doing to these families who come to us already broken. Often we are leaving them worse than we found them. I want to change that reality. I want to motivate our members to join me in that change.  Such change is not going to be easy, or quick. Our system has been around a long time, and typical core law school curriculum just does not prepare the family law practitioner for dealing with the intimate, emotional, and personal issues impacting our clients.   So, what we need is to bring about a revolutionary change in our profession, from what we do, to how we perceive what we do, and returning back to the theme of entertaining and educating while challenging members  to join the revolution for change, a catalyst was needed.   Thus, the ““Kick-Off to the Revolution” was born.

The thought was to have an intervention --a hard core look at ourselves, what we and our system have become.  Now, not just anyone could pull that off, and be that catalyst, and at the same time entertain, so we reached out to the hottest ticket in Hollywood:  Alec Baldwin.  Who else but Alec Baldwin could look a room full of us in the eyes and tell us how damaging our system has become, what we are doing wrong,  and motivate us to actually undertake to make the necessary changes? If you’ve seen his motivational speech in “Glengarry Glen Ross” you will know what I mean.   In addition to his star power and panache, he authored the book, “A Promise to Ourselves,” in which he shares his very personal story of the challenges of being a party to a dissolution case, the sometimes unbearable expectations and loss imposed by our system, and the lasting damage the players can do to a family that is going through this process.  He is going to come share his experience with us, and the experiences of others who have had to endure the same fate, and through it challenge the room, each of us, to not only listen but take the next steps required to make real changes in our profession and in the legal system.

This is where I turn to each of you, and ask you to please join the revolution. We can preach it. We can teach it. We can have Alec Baldwin motivate it. But it takes each and every one of us to implement it and accomplish it and to pull it off successfully.

Thomas Jefferson said “Every generation needs a new revolution.” Join this generation of the Family Law Section! Join the revolution! Have some fun along the way.

Thanks,

Brenda L. Storey
Chair-Elect of the Family Law Section
Chair of the Family Law Institute

Save the dates:

August 11, 2011, in Denver: The Kick-Off to the 2011 Family Law Institute, a/k/a The Kick-Off to the Revolution, with Alec Baldwinwith fundraiser benefitting the Legal Aide Foundation

August 12- 14, in Breckenridge The Family Law Institute, “Say you want a revolution."

IN RE MARRIAGE OF BALANSON AND VESTED REMAINDERS IN IRREVOCABLE TRUSTS
by Marc A. Chorney^*                                                          

Introduction.

In In Re Marriage of Balanson (“Balanson II”)[1]the Colorado Supreme Court held that a spouse’s remainder interest in a third party settled irrevocable trust constituted “property” for purposes of a property division on dissolution of marriage.  This author has previously written about the Balanson II decision and trusts in divorce property divisions in general and it is not the not the purpose of this article to repeat the discussion of those earlier ones.[2]  This article analyzes whether or not Balanson II should be interpreted as requiring a bright-line rule that a vested remainder in an irrevocable third party settled trust constitutes “property” for purposes of Colorado’s property division statute.[3]  Incident to this analysis, the article summarizes background to Balanson II and discusses relevant case law and statutory authority bearing on the issue. 

Balanson Factsand In Re Marriage of Gorman.

In Balanson II, the wife’s par­ents (the “settlors”) created a joint revocable trust.  At the death of the wife’s mother the trust divided into two irrevocable trusts.[4]  The settlors apparently intended the A trust to be a combined trust consisting of the surviving father’s assets and the deceased mother’s assets which would have qualified the A trust for the federal estate tax marital deduction at the mother’s death.  The B trust was apparently intended to be a “credit shelter trust” that would not be subject to federal estate tax at the surviving father’s death.[5]  Both trusts provided the wife’s father with a mandatory income interest and the power, as the trustee, to distribute principal to himself for his support, care, and maintenance.  At the father’s death, the A trust would be distributed in accordance with the father’s general power of appointment exercisable by will and if not exercised, then in accordance with the B trust.  The B trust was to be divided at the father’s death into as many equal shares as there were living children of the mother and the father.  The wife and her brother were the only living children of the wife’s parents.  The wife’s father was the sole trustee of both trusts and the trust instrument designated the wife’s brother as the successor trustee at the death of the wife’s father.

In reversing the Colorado Court of Appeals, the Colorado Supreme Court stated that the wife had a “future, vested interest not within the discretion of the trustee to withhold”[6]and held that the wife’s interest in the B trust constituted “property,” as opposed to a mere expectancy.[7]The court reached this conclusion despite the father’s income interest and right to invade the principal of the trust.  According to the court, “[t]hese factors render the value of wife’s remainder interest uncertain, but do not convert her interest into a mere expectancy.”[8]   The remainder in­terest constituted the wife’s separate property, and the appreciation in the value of her separate property constituted marital property under the Colorado property division stat­ute.[9]

In In Re Marriage of Gorman,[10]the husband’s living mother created a typical revocable trust in which she retained all the income from the trust, the right to receive distributions of principal for her benefit, and the power to revoke or amend the trust.  Upon the mother’s death, the trust was to be distributed to the husband and his siblings.  The trial court held that husband did not possess a property interest in the trust for purposes of a property division at divorce, but only a mere expectancy.[11]  The Colorado Court of Ap­peals reversed and held that husband’s remainder interest was “property.”  The rationale of the court was that the right of revocation did not convert “what otherwise would be a vested remainder property interest into a mere expectancy.”[12]  In other words, because the remainder interest was “vested” it was a property interest for purposes of a property division at divorce.  The court acknowledged the difficulty in valuing such an interest, but suggested that the property division could be delayed until husband came into actual possession of the interest.[13]

Gorman was subsequently legislatively overruled and superceded by amendment of Colorado’s property division statute, effective July 1, 2002.  The statutory amendment states, in pertinent part:

‘[P]roperty’ and ‘an asset of a spouse’ shall not include any in­terest a party may have as an heir at law of a living person or any interest under any donative third party instrument which is a­mend­able or revocable, including but not limited to third-party wills, revocable trusts, life insurance, and retirement benefit in­struments, nor shall any such interests be considered as an economic circumstance or other factor.[14]

One view is that Gorman correctly interpreted Balanson II and that the rationale in Gorman remains valid post statutory amendment, except as to remainder interests in revocable trusts.    Another view maintains that Balanson II does not impose a bright-line vesting rule in determining whether a remainder interest in an irrevocable trust is property in a dissolution of marriage.

Assume that T transfers property in trust.  Income from the trust is to be paid to A for life with remainder to B.  The trust instrument states that A may appoint the property by will to any person, including A’s estate.  A possesses an income interest and a testamentary general power of appointment.[15]  Under the common law, B possesses a vested remainder subject to complete defeasance.[16]   If Balanson II imposes a bright-line rule that requires a vested remainder interest in an irrevocable trust to always constitute “property” for purposes of property division at divorce, then B’s remainder interest, if it is vested, would constitute “property” even though it is subject to A’s power of appointment.   From the perspective of a remainder beneficiary, there is no practical distinction between a power of revocation and A’s power of appointment.[17]  But before the implications of a bright-line vesting rule can even be considered, it must first be determined whether or not B’s interest in an irrevocable trust in a given case is “vested.” 

Abolition of Vested Remainders.

The Balanson II opinion states that “we have previously held that a trust interest similar to that of Wife’s in this case constitutes a vested interest” and that “Wife has a future, vested interest not within the discretion of the trustee to withhold.”[18]  This language has been viewed as equating a vested remainder interest in trust in a property law sense to “property” for purposes of an equitable distribution at divorce.  Underlying such a bright-line rule interpretation is the assumption that the remainder interest considered in Balanson II constituted a “vested” interest.  If a Balanson type remainder interest is in fact not a vested interest, then a bright-line vesting rule attributed to the holding would be self-contradictory.

At common law, a transfer from T to A for life then to B did not require B to survive A to take the interest.  B possessed a vested remainder, and in this instance an indefeasibly vested remainder, because of the common law rule of construction referred to as the “no-implied-condition-of-survivorship rule” (“NICS Rule”).[19]  Both the Uniform Probate Code (“UPC”) § 2-707(b), as revised in 1993, and its Colorado version, Colo. Rev. Stat. § 15-11-707(2), which became effective July 1, 1995,  reversed the NICS Rule as to trusts by stating: “A future interest under the terms of a trust is contingent on the beneficiary’s surviving the distribution date.”  The rationale in reversing the common law NICS Rule “is to prevent cumbersome and costly distributions to and through the estates of deceased beneficiaries of future interests, who may have died long before the distribution date.”[20]  Stated otherwise, the purpose of the rule is to avoid creation of transmissible future interests.  If a future interest in trust fails, UPC § 2-707(b) creates a substitute gift in the deceased beneficiary’s surviving descendants, unless the gift is in the form of a class gift.[21]

According to the drafters of UPC § 2-707, “subsection (b) renders a future interest [in trust] ‘contingent’ on the beneficiary’s survival of the distribution date.  As a result, future interests [in trust] are ‘non-vested’ and subject to the Rule Against Perpetuities (emphasis added).”[22]

Thus, the wife’s remainder interest in the Balanson B trust, although “vested” under the common law,[23]would be a non-vested contingent remainder under the UPC and current Colorado law by virtue of UPC § 2-707(b) and its Colorado counterpart.[24]

At least with respect to post-July 1, 1995 instruments, instruments “republished” or “reaffirmed” after that date, or where an intention is found that the new rule applies,[25]if the holding in Balanson II is that a vested remainder in trust constitutes property for purposes of a property division at divorce, then the holding would contradict the result because the remainder interest in a Balanson type trust would be “non-vested.”  The only means of eliminating the contradiction is to read into the Balanson II opinion an implied requirement that in making a determination of whether an interest is vested, otherwise applicable law is to be ignored and the common law NICS Rule is to be applied for this purpose.  There is no logic or policy justification for a mechanical vesting rule to drive an equitable distribution determination to begin with and reading into this mechanical rule a strained and unlikely constituent rule which would be necessary to validate it is even more difficult to justify.

Moreover, if the result for purposes of an equitable division turns on a property law determination, there remains the question of which state’s property law is to be applied in that determination.  The issue may require a complex conflict of laws analysis.  In constructing and classifying beneficial interests in trusts, it has been held in at least one instance that the law governing the trust instrument should control rather than the law of the divorce proceeding.[26]     

Supporting the conclusion that Balanson II does not impose a bright-line vesting rule is the following language from the opinion:  “In the present case, Wife has a future, vested interest not within the discretion of the trustee to withhold...Such interests are distinguishable from interests in discretionary trusts because although the value of such interest may be uncertain at the time of the dissolution of marriage, they nonetheless constitute property because they are certain, fixed interests subject only to the condition of survivorship” (emphasis added).[27]  Implied here is that if other conditions may defeat the remainder interest, the interest might not constitute property.  The proper and necessary interpretation of Balanson II is that the remainder interest in Balanson was, under the facts and circumstances of that case, “property” under the Colorado property division statute. While it is true that a facts and circumstances approach may complicate a property division, there does not appear to be any other alternative.

Bright-line tests are appealing because they are easy to administer and leave no room for varying interpretation; but, overriding objectives may result in a bright-line test being poorly suited for a determination.   In In Re Marriage of Hunt,[28]the court rejected a bright-line rule in dividing post-divorce pension enhancements, stating that “the ‘bright line’ rule contravenes the principles underlying equitable distribution and unduly constrains trial courts from performing their statutorily prescribed duty.” [29]  This statement is equally applicable to a bright-line vesting rule for trusts.  There is little if any correlation between the ancient rules of the law of future interests and the law of equitable distribution.  A correlation between the two is even more difficult to imagine considering that otherwise applicable law must be ignored to connect the concepts.  As stated by one court, “the concept of vesting should probably find no significant place in the developing law of equitable distribution.”[30]

Conclusion.

The Colorado Supreme Court in Balanson II considered a beneficiary’s fully distributable remainder interest in a trust and held that it constituted “property” for purposes of a property division at divorce.  The view that Balanson II created a bright-line rule requiring all vested trust remainders to constitute “property” for purposes of a property division at divorce cannot be reconciled with applicable property law.  An analysis of applicable property law requires that the bright-line interpretation of Balanson II be rejected.    
 

Birds of a Feather Flock Together—or Do They?
Edward C. Budd, Ph.D.

This question, though a relative of the previous one, is different.  We’re talking about a special population.  Somewhere around half of all married couples remain married.  Of those that don’t, about 90% reach a settlement without litigation.  That means only about 5% of all married couples end up in divorce litigation.  That’s a highly selected population, and the people within it may be very unlike married couples in general.

Consequently, the relationship between spouses’ pathology in the high-conflict population may or may not be comparable to the association within the married population in general.  It could be stronger; it might be about the same; or it might not exist at all.

Research Findings

So what does the research say?  To the best of my knowledge, the answer is “nothing.”  There is a large literature on high-conflict divorce.  However, the empirical literature focuses on other topics.  (For example, there are quite a few studies on domestic violence within this population.)  As regards parental psychopathology, much of the literature is clinical/anecdotal.  It consists of case reports.  I have yet to unearth an empirical study that directly addresses the question “Do divorcing pairs involved in litigated parenting disputes have comparable levels of psychological health?”

A Systematic Case Review

Unable to find an answer in the literature, I turned to my case files.  I reviewed cases and generated estimates of each parent’s overall psychological functioning.

Data were drawn from 75 evaluations completed under C.R.S. 14-10-116.5 or C.R.S. 14-10-127.  Apart from a few cases excluded because of missing data or unsuitability, they were  (in essence) the 75 most recently completed evaluations.

I identified five dimensions related to psychological functioning:

• credible evidence of significant problems in the area of academic and/or vocational functioning
• credible evidence of significant problems with interpersonal relationships (excluding problems only with the other party to the litigated dispute, but including parent-child relationships)
• documented history of significant failures of adaptive functioning (excluding non-criminal legal problems specific to the domestic relations case and excluding problems already addressed under the two previous items).  Examples include:
• major or recurring legal problems
• previously diagnosed psychological disorders (excluding non-recurring situational depression or anxiety)
• suicide attempts, self-injurious behavior, or psychiatric hospitalizations
• substance abuse
• recurring and important judgment errors
• quantitative data from psychological tests suggestive of significant psychological problems (excluding non-recurring situational depression or anxiety)
• documented behavior, in the context of the litigated dispute, that is clearly destructive and maladaptive

The assumption that litigating parents have problems of comparable severity is wrong—but it mitigates against good guy, bad guy thinking.  Although it’s a problematic bias, it minimizes the impact of an even more destructive bias.

The knowledge that many high-conflict pairs have markedly different levels of psychopathology must not be used to justify good guy, bad guy thinking.  You can’t correct a problem by going to the opposite extreme.

The Bottom Line

The pragmatic implication of the preceding analysis is utterly simple:  Professionals who work with high-conflict families should make no assumption whatsoever about whether the psychological functioning of the parties will prove to be similar or different.

Neither of the two general assumptions is justified.  A person who assumes divorcing parents are matched as regards psychopathology will be wrong about half the time.  A person who assumes one parent must be far healthier than the other will be wrong about half the time.  Both assumptions are problematic biases.

The prescription is to approach parenting disputes with no presumption about whether the parties have problems of comparable or contrasting severity.  Mom and dad may be pretty closely matched.  Both may be fairly healthy; both may have mild problems; or both may have serious problems.  Conversely, the parties may not have comparable problems at all.  One parent may be reasonably healthy while the other has significant or even severe problems.  All combinations are not only possible—they’re common.

Any assumption about the correspondence, or lack thereof, of parents’ psychopathology can badly distort conclusions and recommendations.  Consequently, we shouldn’t make those assumptions.  Let the facts illuminate the reality of a particular family.
 

^[1]It may be difficult to follow this extremely condensed summary of the study.  It’s explained more fully in the longer paper from which this version was derived.

FANTASTIC 3RD ANNUAL COLLABORATIVE LAW CONFERENCE

If you missed the 3^rdannual Colorado Collaborative Law Conference on September 11 and 12, 2009 at the beautiful Lone Tree Golf Club, you not only missed learning a lot, you missed much inspiration and a great time.  After two days with fellow collaborative attorneys, coaches and financial and real estate professionals, I remember what drew me to Collaborative Law years ago, and draws me still.

Melodye Feldman’s keynote address “Creating Common Ground: the Psychology of Conflict” was insightful, inspirational and very moving.  Her professional presentation was complete with a lovely video of the people with whom she works, Jewish, Muslim and Christian Israeli, Palestinian and American youth.  Ms. Feldman’s work was testimony to the difference one person can make.

Dori Dejong and Barbara Shindell did an excellent job whipping the whole conference into shape and the turnout was excellent - more than 40 people.  It was a tribute to the sensitivity of the Board of Directors of CCLP that the Conference was priced most reasonably for the current economy and that people who needed or wanted to could commute to and from home each day.  Plus, for the attorneys involved, you can not find a more fairly priced 15 units of CLE credit.

As always, I thoroughly enjoyed Tom Bache-Wiig’s and Arlene Brownell’s presentation on “Non-Adversarial Communications, the Key to Collaborative Balance.”  I can never hear enough about this way of communication, both for use in our professional and personal lives.  The Friday afternoon focus on the current economics vis-à-vis divorce and specifically collaborative divorce, was timely and most useful.

I attended mortgage brokers, Dedre Mills’ and Tim Smith’s break-out seminar on real estate issues in divorce given the economic circumstances of many of our clients.  How to get clients qualified for loans, how to refinance, what factors influence credit scores and more were covered in depth.  I found the class so energizing and informative, it was the only break-out I attended.  In the process, I found just the help we needed for a challenging collaborative case.  On behalf of our clients, a big thank you to both Dedre and Tim.

The Saturday role-play using the eponymous McMillan Matrix was entertaining and interesting.  The differences in the paradigms and contributions of mental health professionals and lawyers always make for lively discussion and hopefully new insights by all.

There was plenty of time for networking as well.  The food was good and the environment was casual, relaxing and beautiful.  Terri Harrington won a special “keeps the movement going” award, not yet lifetime achievement, but well on her way.  It is indeed an honor and a treat to work with people who are competent, compassionate and dedicated to practicing what we are all trying to learn.  Clients who choose this approach to their family law issues can be certain they are being served by professionals who are committed to their well-being and to helping them resolve their cases in a compassionate, dignified environment supported and advised by dedicated  collaborative, professionals. Thank you to all who contributed to the great success of this conference. Don’t miss it next year!

The CFI changes

CJD 04-08 Amended April 14, 2011 – Appointments of Child and Family Investigators Pursuant to C.R.S. 14-10-116.5 and revised JDF 1318 Order Appointing Child and Family Investigator

• The CJD and JDF 1318 Order of Appointment were changed to:
  1. Establish a cap of $2,000.00 for the investigation and report;
  2. Require further order of the court and specific findings of extraordinary circumstances to justify fees and costs that exceed the cap;
  3. Eliminate the CFIs authority to perform psychological testing or drug and alcohol evaluations;
  4. Eliminate CFI quasi-judicial immunity in the order of appointment; and
  5. Eliminate the CFI authority to conduct a meeting with parties when a protection order restrains such contact.
• These amendments reflect Chief Justice Michael L. Bender’s decisions based on various recommendations submitted by The Supreme Court Standing Committee on Family Issues.

For a copy of the amended CJD: http://www.cobar.org/repository/Inside_Bar/FamilyLaw/CJD%2004-08amended4-11.pdf?ID=20141

Newsletter Editorial  re: CFI Changes

At the last Family Law Luncheon, the Section had the honor of hearing from Chief Justice Michael Bender who is the first Chief Justice of Colorado to ever address the Family Law Bar.  The Family Law Bar found it quite interesting to meet and speak with the head of our judiciary.  The Chief Justice invited the audience to pepper him with questions, and the Bar obliged.  He was also mobbed at the end of his session.  The subject of his visit was to discuss potential changes in the CFI process.  In a letter dated February 8, 2011, the Chief Justice has indicated he will implement some changes to the judicial directives and additional thoughts regarding further changes were suggested to the Section during lunch.

The speculation stopped being speculation with the issuance of the new CJD on CFIs.

The first major change is a specific requirement that the scope of work of a CFI be very clearly defined in the order of appointment.  This change will likely be easy to accomplish by a modification of the current CFI order.  The Chief Justice also suggested that a statewide list of CFIs should be approved for CFI work and that the “protocol” for appointment be standardized.  At this point, several (but not all) jurisdictions have implemented lists of approved CFI providers.  The creation of a statewide list would be an interesting proposition; it is not clear if appointment would be pre-conditioned on being on the list or if parties could stipulate to appointments off the list.

The new directive requires that most CFI appointments be capped at $2,000 in expense.  Initially, the remarks of the Chief Justice were interpreted by some listeners to indicate that all CFI appointments would be capped at $2,000 in cost.  This is not necessarily so, and parties are free to stipulate to a greater expense or a court can order an expanded expense.  However, there is no doubt that the guidelines are intended to “chill” the costs of CFI investigations. 

The discussion and the new directive raise several unsettled issues.  The skyrocketing cost of the CFI process is, indeed, alarming, but capping CFI rates will likely mean that all but the simplest of evaluations will now be in the PRE format.  If history is any guide, then it is a good bet the cost of these investigations will be greater than ever before (and if this prediction is correct, it will somewhat defeat the intent of the reform).

More troubling is that the shifting of the investigative role from the CFI into the PRE brings to light significant differences in procedure between appointments pursuant to CRS 14-10-116.5 and CRS 14-10-127.  This includes the shift away from a neutral joint “court” expert, the provision that the moving party’s request must be granted and that the moving party must pay (at least preliminarily) the cost of the PRE.  If the costs of the evaluation also increase, this will result in a significant shifting of advantage to the monied spouse.  With both spouses contributing to the initial CFI retainer, there was a strong appearance of neutrality and objectivity.  This will be lost when the financially “advantaged” spouse pays the entire cost up front.

Given the reality that the original purpose of a CFI investigation was to effect a quick and brief investigation at less cost than that for a PRE, a purpose that many of us would applaud, what do we do with those cases where the investigation is not going to be easy or brief, but the family circumstances do not require a full blown parental responsibility evaluation?  Previously, the scope of the CFI investigation was constrained largely by the professional judgment of the investigator, which perhaps was problematic.  However, with a PRE, the scope of the appointment requires a full investigation of every relevant circumstance, even in a circumstance where the professional judgment of the investigator might be that such an investigation was overkill. 

There is also the loss of the non-mental health CFI.  Although Doctors Gould and Austin asserted a year or so ago that only persons with mental health backgrounds are qualified to make parenting recommendations, many of us use attorneys for CFI work in instances where we want less of a mental health analysis of the situation and more of an analysis of what will work for the family from a legal and practical perspective.   I am perhaps not alone in the observation that a thorough grounding in due process and the need for a concrete solution is more often in the bailiwick of the purportedly callous attorney over the sensitive mental health provider.  Attorney CFIs often have a strong grasp of applicable legal standards.  It’s doubtful many of them will be able or willing to complete an investigation with a $2,000 cap.

Additionally, this author thought it was noteworthy that the Chief Justice’ impression of the purpose of the CFI investigation was basically that of a neutral fact finder.  The Chief Justice is firmly of the opinion that Judges should be making child related decisions as opposed to deferring to the recommendations of mental health hired guns.  It is an interesting comment and it is one based upon a firm belief in the inherent validity of the adversarial system – that when both parties vigorously pursue their side of a case –justice has a good chance of being achieved. 

But are CFIs glorified fact finders?  The statute calls for expert opinion.  Are Judges best situated to make complex decisions regarding custody without expert opinion?  Can you understand the nuances and complexities of a family from brief amounts of testimony?  Is a move – however slight - to more adversity in process a good idea in family law? 

The CFI role is to act as a neutral investigator to aid the parents and the Court in determining the needs of the children.  A CFI is usually jointly chosen, because there is no presumption that one or the other party will pay.  As a result, CFIs are chosen by the parties for their pre-conceived ability to be neutral.  As a result, experts with a reputation as being Father’s “rights” and Mother’s “rights” do not receive the bulk of CFI appointments.  With a PRE, the person paying gets to pick the expert, and the only challenge to appointment (as opposed to challenge to the report) would be to convince the Court that the proposed PRE evaluator lacks the requisite credentials or that the appointment is being requested to delay the process. 

I foresee that many of the more neutral evaluators whose focus is more oriented to the children’s needs than desire of either parent are going to see their work decrease in favor of those with a reputation of supporting the perspective of the parent paying for the PRE.  Personally, I don’t see that as a particularly positive development, from the standpoint of meeting children’s needs.  Even if this is perception only, it is still bad: a PRE report from an expert appointed and paid solely by one party is going to raise the specter of bias.  Then, there would be the additional cost to the family to have a supplemental PRE.

I also like having the ability to use attorney CFIs, although I confess I do not (did not) use them as frequently as I used CFIs with MH backgrounds.  Any parenting analysis that is complicated will have to be a PRE evaluation, and attorneys are precluded from 127 exams.   The alternative of appointment of a Child Legal Representative (not the former GAL) hardly serves judicial economy and affords the CLR fewer investigative tools than were available to attorney CFIs.

The financial change of switching primarily to PREs is enormous.  There is a provision for balancing of costs, but the statute requiresdeposit by the moving party and although there is a case where the denial of a motion for a PRE by a party proceeding in forma pauperis was held to be an abuse of discretion and the court held that “[I]n determining the reasonable amount of the deposit, the court may not hamper or prevent a poor person's participation in the judicial process because of his financial status.” Hernandez v. District Court, 814 P.2d 379 (Colo., 1991).  However, this still means the moving party has to advance fees and the truth is that the financially downside spouse will be hugely disadvantaged because CR 14-10-127 requires an advance deposit. 

Since the new Chief Justice Directive was issued last week, several of the leading mental health professionals who previously performed CFIs  have indicated that they will no longer perform CFI work, citing as concerns the following points:  (a) the $2,000 fee limit, (b) the loss of quasi-judicial immunity (though some have doubts as to the efficacy of quasi-judicial immunity under the former CJD), and (c) the loss of an ability to perform investigatory procedures necessary to comply with professional standards set by disciplinary governing bodies.

While a CFI could often issue an interim report, offer oral guidance to parties or otherwise assist the parties in reaching non-litigated solutions, a PRE lacks such ability under the Order of appointment.  Accordingly, it is far more likely that a PRE report will be issued shortly before a trial that then becomes inevitable, even where a family might have been able to achieve an agreement to resolve the issues in a CFI process.

When a family cannot afford the costs of a full blown PRE, but has concerns that a $2,000 CFI cannot adequately address, the Courts will be filled with collateral witnesses, with requests of in camera interviews of child witnesses, with attempts to put older children on the stand, and with swearing contests between parents, likely to be won by the best witness, who may be the most pathological parent or the parent who is least child-centered.  Such a judicial process, to achieve the investigation of family needs in a CFI process, will necessarily require far more judicial resources and judicial officers than the State of Colorado has seen fit to devote to family law cases.

One wonders if all the push-back is just because it is also a bit disorienting for the bar and parents in our courts to have the vagaries of changing Chief Justice Directives push the practice in opposite directions every few years.  I recall many dire predictions that accompanied the changes to CRCP Rule 16.2 which has turned out to be not too bad and, as with many changes, this one does present opportunities.  The use of Early Neutral Assessment/Evaluation will enable the parties to seek professional input without running afoul of the changes and the use of Collaborative Law will also enable the parties to opt out of the litigation process and court control for a process which they control.  In collaboration, parties can make use of child specialists and other consultants to give feedback without the restrictions imposed by CJD 04-08. 

The Supreme Court Standing Committee on Family Issues will continue looking at this situation in depth and will issue a report in September of this year.  This committee is headed by Chief Judge Schapanski.   Members of the Family Law Bar are invited to communicate their perspectives to Chief Judge Schapanski, and the Chief Justice also indicated an interest in hearing more from the Bar.

DOMESTIC RELATIONS DECISION MAKERS (DRDM):
SHERIFFS OR JUDGES?

When House Bill 05-1171 (codified as C.R.S.§14-10-128.1 – 128.3 and 128.5) became effective on June 2, 2005, a new day of private adjudication dawned to meet the challenges of crowded dockets, endless continuances, and the escalating lawyer and expert fees which were commonplace.

As with most change, some good some bad resulted from the enactment of these new statutes – the possibility of timely and competent resolution of family law issues as well as a new level of judicial rulings in the name of “implementation or clarification of existing orders… in a manner that is consistent with the substantive intent of the court order” and actions on behalf of private adjudicators that challenged due process.

Problems began to surface almost immediately when the Parenting Coordinator (PC) proved to be ineffective and more and more (PC’s) only agreed to serve if they were also domestic relations decisionmakers with the power of binding determinations of a sort.

Further problems occurred when the decisionmakers looked to the orders, either stipulated to by the parties or entered by the Court and found them to be, at times, vague, ambiguous, or unclear.  How can the substantive intent of the Court Order be implemented or clarified under these circumstances?

Also, is the decisionmaker prevented from taking into account in implementing or clarifying the provisions of a parenting plan other changes to other provisions not in dispute?  Is the role of the decisionmaker one of a sheriff—just enforcing and clarifying the law of the agreement-  or can the decisionmaker be a “judge like figure” taking into account the best interest standard in implementing or clarifying the court order?

A fact pattern best illustrates the tension of this role:  “Party A and B create a permanent parenting plan which states A and B must make all decisions jointly regarding their children in the areas of education, parenting time, and extra curricular activities.  Any disputes shall be resolved by the decisionmaker named in this agreement.”

Party A, who lives in Castle Rock, Colorado, wants both twin boys aged 11 to attend a private military school in Salina, Kansas.  Party B, who lives in Centennial, Colorado, does not agree and the decisionmaker is called upon to resolve this dispute pursuant to C.R.S. §14-10-128.3.

The decisionmaker rules that effective winter semester 2011, the twins will attend school in Kansas.

The results of the decisionmaker’s ruling are (1) Party A and B’s equal parenting time is changed; (2) The children are unable to play competitive ice hockey in Centennial, Colorado; and (3) the issues of how the tuition, fees, room and board, and travel home to Colorado are to be handled have not been addressed.

The following are questions which must be addressed regarding the decisionmaker’s role in this type of family law dispute:

1. If the decisionmaker acts only as a “sheriff”, i.e. clarifies or implements the educational issues only, and in doing so changes the parenting time, child support, and extra curricular activities schedule of the children, what are the due process issues raised? or
2. If the decisionmaker acts as a “judge”, i.e. looks at the clarification and implementation of the education issue as it impacts the parenting time, child support, and extra curricular activities in light of the issues of best interest of the child, has the decisionmaker acted appropriately according to C.R.S. §14-10-128.3?

Your responses are solicited by email to Ann Gushurst (ann@ggfamilylaw.com) or Randy Mustain-Wood (randy@tbwalkerlaw.com.

Domestic Violence and Divorce:  When Your Domestic Case Meets Criminal Charges
By David A. Lamb. Esq.

Family law practitioners understand that domestic relations cases frequently overlap with domestic violence and the criminal justice system.  Opportunities for missteps abound when your divorce case meets criminal charges, and when your domestic relations client is the named victim in a pending domestic violence criminal case, be careful to consider the following four issues.

1.         Understand the basic dynamics of abusive domestic relationships.

If your client is in, and perhaps attempting to leave, an abusive domestic relationship, you must have some familiarity with the psychology of abuse victims, abuse perpetrators, and the cycles of behavior that characterize these relationships.  Your client’s emotions and goals likely will change from day to day and week to week as they seek to establish their new life, and they may seem to make decisions (such as remaining with their abuser) which, from the outside may seem counter-intuitive and irrational, but which in truth are often part of what many domestic abuse victims see as necessary to their survival.  To understand the psychological and emotional obstacles that your client will face in escaping a world of abuse, you should spend some time reading established literature about the Cycle of Violence, the patterns of power and control, and other common issues with which your client will be grappling.  See e.g. www. domesticviolence.org.  Chances are, you will recognize established patterns of behavior in your client and his/her present relationship immediately, and therefore will be better able to improve his/her life through your representation. 

2.         Understand the practical impact of the Victim’s Rights Amendment.

The Colorado Victims’ Rights Amendment wisely guarantees that victims of violent crime shall have the opportunity to have input regarding the outcome of criminal cases in which they are involved.  This often means that a domestic violence victim will make statements on the record in the criminal matter about the charged incident, his/her alleged abuser, and what they think should happen regarding a variety of issues including the defendant’s bond, protection order terms, the defendant’s sentence, and even the facts of the charged incident. 

This guarantee can empower domestic violence victims and greatly enhance the criminal justice system’s ability to do justice.  However, you and your client must understand that statements made by your client on such issues become part of the record and therefore may have lasting, dramatic effects not only on the criminal matter, but also on your domestic relations matter.  For example, at a preliminary bond hearing, your domestic violence victim client may feel pressure (from herself or outside sources) to tell the judge falsely that the charged incident never happened, or even that she was the actual instigator of the violence.  If true, these fact need to be known by the criminal judge, prosecutor, and defense attorney.  But if such statements on the record are made in an emotional disregard of the truth, not only is the criminal matter unduly complicated, but now your client (if children are involved) may have a serious – and unnecessary – problem in establishing a proper child custody arrangement under C.R.S. §14-10-124(1.5)(a)(X).  With proper preparation for such statements and input under the Victim’s Right’s Act, the domestic relations practitioner often can simultaneously help effectuate the Amendment’s goals and protect your client from making a bad situation worse.

3.         Understand that recanting does not necessarily result in dismissal of criminal charges.

As understanding of domestic violence has increased in the last three decades has advanced, so has the belief among many prosecutors that a person who recants abuse allegations is often no less of a victim.  Furthermore, research has led to enhanced police investigation protocols in domestic violence cases which often discover historical patterns that can lead to conviction despite even the most strident recantations of a domestic violence victim.  The domestic relations practitioner needs to communicate with the victim/client that despite their fervent desire to “just forget this whole criminal case altogether,” untruthfully recanting a prior claim of domestic abuse very well may never result in a dismissal of criminal charges, and may only serve to complicate their case.

4.         Understand the importance of communication with the prosecutor.

Many domestic violence victims may be intimidated by the criminal justice system, and indeed by the very prosecutors and their staff who are tasked with helping victims of abuse.  However, your client will need to understand that even in cases where the prosecutor and your client do not agree on the criminal matter, communication between the prosecutor’s office and your client can be essential to ensuring that your client’s interests are best served by the criminal justice system.  For example, if your client does not want his/her spouse to be incarcerated and believes that probation and counseling is best for the defendant, that desire should be communicated clearly and carefully to the prosecuting authority and ultimately to the judge.  Ignoring letters from the district attorney’s office or – worse – ignoring subpoenas frequently will not help the criminal case resolve in a way that is best for your client and his/her family.  Your client and you, as the domestic practitioner, need to understand that the criminal case can be yet another appropriate forum to obtain creative results, including geographic restrictions, treatment, counseling and monitoring that may be more difficult to obtain in a domestic setting.       

ACFF/MDIC/BIDC Conference Recap
By Ann Gushurst & Todd A. Stahly

On March 4, 2011, the Colorado AFCC, Metro Denver IDC and Boulder IDC held a jointly sponsored all-day conference at the Sheraton Denver West in Lakewood, CO. 

The introductory remarks were provided by the witty Ed Fyfe, Bill Fyfe’s alter ego.  Dr. Fyfe shared with the group some humor, background about the speakers and some general commentary that enabled the day to begin correctly.

The morning presentation by Zeynep Biringen, a professor at CSU, focused on Emotional Availability (EA).  Professor Biringen’s presentation was helpful to practitioners in gaining more of an understanding of EA research, both current and past studies, and how the evolution of that research might apply to Parenting Plans.  Several attendees, both attorneys and those with mental health backgrounds, noted that they had never seen EA used in a CFI or C.R.S. 14-10-127 parental responsibilities evaluation, which is interesting because EA is so predictive of good child outcomes later on.  The EA testing and research information provided great insight into more tools that are available to evaluators in assessing a child’s best interests and it will be interesting to watch the use of EA continue to evolve and to see how it may impact the practice of family law in Colorado.

At noon, Judge Arkin and Judge Berkenkotter were kind enough to share their insights into the view of family law cases from the bench.  The information both of these Judges shared with the audience was helpful and gave practitioners insight as to how the bench views cases.  This type of information is always helpful in this practice and we greatly appreciated the tireless efforts of the bench to improve family law practice in Colorado.  The Judges provided some statistics about the dockets in their respective Judicial Districts.  Feedback from participants relating to the Judges’ presentation was that participants were very appreciative that both of these Judges took time out of their schedules to attend the conference and share their viewpoints. 

The afternoon presenter, Mary E. O’Connell, is a Professor at Northeastern University School of Law.  Professor O’Connell is a bundle of energy and provided a wealth of information about the background of our legal system as it relates to family law, as well as the current demographics of the Court system.  Professor O’Connell’s presentation invited practitioners to think outside the box and to ask some very sincere yet basic questions about assumptions and values.  A profound example of the types of introspective inquiry that occurred at various times throughout the presentation was evaluation of such basic fundamentals such as whether mandatory mediation is really helpful to the families going through court processes. 

Professor O’Connell’s presentation was motivating in that it really sought to elicit thoughts about how our current court system might be reshaped to better focus on solving the problems of the litigants.  She also caused everyone in attendance to re-think his/her approach to this practice and to renew the internal strive to find the answer to the question “are we doing it right?”

While her presentation indicated that demographics nationwide may not be tracking in Colorado, and that the greatest number of participants in the legal system will not be our clients, her thesis was very challenging nonetheless.  For one thing, she notes that the assumptions in our system really favor middle class and upper socioeconomic biases that are not applicable or perhaps appropriate to the majority of those traversing the legal system.  In particular, she wondered if assumptions of maintaining parental contact are valid in a highly mobile society and in cases where parenting occurs as a result of extremely short term parental relationships.

Overall, participants felt the conference was a success and the feedback received so far has been very positive.  Participants also noted how fantastic it was to spend a day with one’s colleagues and to spend time on breaks meeting new people, putting a face with a name, and getting to know icons in the domestic relations profession. 

This conference is one of the few large conferences in Colorado where both attorneys and mental health professionals can come together in one setting and collaborate on each one’s respective profession, the legal system, and mental health protocol that all affect each of our practices. 

The Paradigm Shift of Collaborative Law

The Collaborative Family Law Process is a form of unbundled legal services, in which the attorney’s representation of his/her client is limited to the role of legal advisor and settlement counsel.  It is thus a form of Alternative Dispute Resolution available to parties who choose it.

Both parties to the dissolution agree contractually with each other not to litigate their dissolution with their collaborative attorneys.

A paradigm shift for attorneys and other neutral experts that may be involved in a collaborative case (financial experts, child experts, mediators, coaches for clients—all of whom have been collaboratively trained) is essential for a successful collaborative case.  The heart of the Collaborative Law Process is the shared belief and commitment of all participants (professionals and clients) that it is in the best interest of the parties and their families that they commit to resolving their differences without the threat of litigation.

The parties and their collaboratively trained attorneys (and any other professionals) agree to work together to resolve legal, financial and parenting issues faced in divorce in a manner that not only terminates the marriage, but assists them in meeting their long range goals that arise our of their marriage (i.e., Ongoing relationship vis-a-vis the children).  Some of these goals may not be “legal,” but emotional or social.

The paradigm shift, especially for attorneys, involves a switch from an adversarial model to one of cooperation.  The process is designed to empower the clients to reach their own agreements that specifically address their unique concerns.  The attorneys act as legal advisors., each for his or her own client, but the process belongs to the clients.  The goal is an outcome that can be both more creative and more deeply satisfying than results achieved in either traditional litigation or other forms of A.D.R. , where the attorney always has one eye on the posture of his or her case should it go to trial. The clients can relax knowing they will not have to face this attorney in a deposition or cross examination. These attorneys will not be going to trial or involved in any litigation with these clients. 

The process relies on an atmosphere of integrity, cooperation, transparency, professionalism and courtesy.  It is consistently focused on the present and future well-being of the parties and their family.

Collaborative Family Law is a shift from an attorney driven, win/lose or settle” mentality to a client-driven, cooperative, “what works best for both of us and our children” approach.  The biggest shift for most attorneys may well be one that requires a continuing choice to trust the clients and the process, rather than one of “running the show.”  It is definitely not for everyone, but for those clients who, having been fully informed, choose the process and commit to it, and those attorneys and other professionals who help facilitate it, it can be transformative.

Upcoming CBA CLE Programs

Evidence Practicum for Family Lawyers – May 14, 2011
Learn by doing . . . in this workshop setting!
Live Program Only!
Location: CBA-CLE Large Classroom, 1900 Grant St., Ste 300, Denver, CO  80203
CLE Credit: Submitted for 8 General CLE credits

Tuition: Non-member: $339  -  CBA Member: $289  -  CBA Family Law Section Member:  $259 - CBA Associate Member $239 -  - New Lawyer (In practice less than 2 years) $239

Program Description

Don't miss the opportunity to practice the elements of courtroom evidence that are most important for family law practitioners to know, but that we too often get wrong. The day will consist of an exciting, interactive mix of panel discussions, exercises, and lecture, along with interaction and feedback from judges and experienced practitioners. Participants should come prepared for an intensive day of learning and practice designed to equip you with important courtroom techniques.

You will learn and practice the rules of evidence to advocate effectively for your clients in any domestic relations hearing setting. We will practice: 

1. Laying a Proper Foundation

2. Hearsay, Non-Hearsay, and the Exceptions

3. Summary Exhibits and Exhibit Voir Dire

4. Impeachment and Refreshing Recollection

5. Use of Electronic Evidence/Social Media

6. Getting the Most out of Expert Testimony and Reports 

Faculty

Laura Ammarell, Honorable Magistrate Emily Anderson, Honorable Angela Arkin, Martin D. Brown, Honorable Richard Caschette, Daniel N. Deasy, John Eckelberry, Honorable Kenneth M. Laff, John Tatlock, and Honorable Robert H, Russell, II

To find out more or to register: http://www.cobar.org/cle/item.cfm?EventID=FL051411LL

Brown Bag Lunch with the Judges Notes

CBA FAMILY LAW SECTION
BROWN BAG LUNCHEON
4th Judicial District - El Paso County
Colorado Springs, Colorado
November 18, 2010
Minutes Prepared by Cyndy Ciancio 

CBA Family Law Section Attendees:
Richard Zuber - Chair
Brenda Storey - Vice Chair
Cyndy Ciancio - Secretary
John Eckelberry - Treasurer
Meredith Cord - Judicial Liaison 4th JD 

4th J.D. Attendees:
District Court -
Presiding Chief Judge Robert Lowrey - Div. 12
Judge Theresa Cisneros - Div. 8
Judge Jan DuBois - Div. 17
Judge Barney Iuppa - Div. 20
Judge Gilbert Martinez - Div. 10
Judge Scott Sells - Div. 6
Judge Cande-Ramsey
Magistrate M. Flynn Feeney - Div. X
Magistrate Barbara Hughes - Div. W
Family Court Facilitator Nicole Rugh

Most of the judges in the 4th JD have a mixed docket. A few do 100% domestic.

Case Management:

The 4th JD Case Management Order is attached.

Chief Judge Lowry indicates most divisions are setting full day permanent orders hearings 10-11 months out.  Less than full day is 4-6 months out.

You must do a notice to set to get a hearing.

Each division is a little different on how they are doing settings.

All judges indicated a strong willingness to have active case management. Most indicated that if an attorney or party is in need of judicial intervention (for discovery, etc.), they will do their best to hold telephone status conferences as soon as possible.

All judges indicated that they do not necessarily follow the rules prohibiting motions. They allow appropriate motions practice and don’t see the need to file a motion requesting permission to file a motion.   They were disappointed in the lack of conferring prior to filing motions, however. They prefer a good faith effort to confer and seek court involvement via a phone status conference prior to filing motions.

There were on-going discussions about the frustration with growing number of Pro Se litigants.  

The justices believe that there are so many on line forms and forums for Pro Se people to go to for help that it creates more problems than help.  There are an increasing number of pro se litigants filing groundless and frivolous motions just because they can.

Judge Cisneros is having a meeting in December with Former Justice Kourlis’ group to discuss pro se filings and access to justice.   There was discussion about how lawyers are pricing themselves out of the market and people think they are smarter than the attorney and can represent them selves.

Pro Bono Work:

John Eckelberry and Richard Zuber discuss how the family law section continues to promote volunteer work and clinic work through Metro Volunteer Lawyers in each jurisdiction.  There was discussion about how some lawyers continue to do unbundled work and some lawyers/law offices have committed to monthly pro se divorce clinics in various jurisdictions. John indicated that MVL referred out approximately 1300 total cases last year to approximately 300 volunteer attorneys, of which about 400 cases were family law related.   In addition, MVL helped over 600 family law clients through the Family Law Court Program (FLCP).

Court Appointed CFIs - new Guidelines/Recommendations:

Richard Zuber discussed how there are new chief justice directives/recommendations being drafted to provide more guidance for CFIs.  Judge Sells agreed that we need more clarity on what a CFI report should be and what a PRE should be. The judges committed to working harder to specify the scope of the CFI orders.

Sorenson Issues:

The judges are seeing more Sorenson type issues coming up in family law matters.  There are more and more people suffering from mental illnesses and due to aging demographics, they are seeing more parties with dementia.

Collaborative Law Act:

The judges appreciate those who try alternatives to litigation, such as collaborative law.  They find it sometimes difficult to meet their administrative deadlines, however.  They recommend that a case be administratively closed during the collaborative process and then can be reopened at time of filing final paperwork or if case goes into litigation. 

Post Decree Matters:

Like most jurisdictions, El Paso County is seeing a high number of litigious post decree matters. They are very difficult.

Maintenance:

The judges concurred that age 65/66 is generally an appropriate retirement age for purposes of modifying/terminating maintenance.

Military Issues:

Due to the local demographics, there are a high number of domestic cases involving one or more parties in the military.  The judges will set emergency status conferences even when they are busy with criminal trials to accommodate parties facing deployment, etc.

Family Law Institute:

Brenda informed the judges that this year’s FLI is on Aug. 12-14 in Breckenridge.  The FL section received significant money from CJI last year and they intend to seek more this year in an effort to educate more judges.  This year’s FLI theme is “Say you want a Revolution” and Brenda expects a lot of fun, informative and controversial topics to be covered. The “Hot Topics” will be done by judges this year.

FLS Luncheons:

Richard Zuber reminds the judges that they can attend the CLE lunches by phone at no charge.

CBA FAMILY LAW SECTION
BROWN BAG LUNCHEON
8th Judicial District - Larimer County
Ft. Collins, Colorado
December 2, 2010
Prepared by Cyndy Ciancio

CBA Family Law Section Attendees:
Richard Zuber - Chair
Brenda Storey - Vice Chair
Cyndy Ciancio  - Secretary
John Eckelberry - Treasurer
Marie Moses - Past Chair 

8th J.D. Attendees:
Stephen J. Schapanski  - Chief Judge
Dave Williams -  District Court Judge
Andrea Shahmardian - Family Court Facilitator
Mary Joan Berenato  - District Court Magistrate
Gregory M. Lammons - District Court Judge
Dave Williams - District Court Judge
Devin R. Odell - District  Court Judge
Kent S. Spangler - District Court Magistrate
John A. Jostad - District Court Magistrate

Larimer County Procedures:

Chief Judge Schapanski stated that the set-up in Larimer County is unique. The cases start with the family court facilitator who handles all the Initial Status Conferences. The family court facilitator is given a large amount of discretion as to how long they keep a case. They have the ability to continue conferences, settings, etc.

Magistrate Jostad is the magistrate that handles all urgent matters. When the family court facilitator believes that the matter needs to be resolved by a judicial officer, the matter goes to Magistrate Jostad. Magistrate Jostad manages cases, conducts temporary orders, resolves jurisdictional issues, etc.

All of the judges share the domestic relations docket and each judge hears domestic relations cases one week out of the month.

After the family court facilitator has had one to two status conferences, then the parties get a status conference with Magistrate Jostad. If the matter is ready for trial, the parties may get a permanent orders trial setting. If there are CFI issues, disclosure problems, or failure to communicate, then the parties may not get a permanent orders setting.

The JT position statement must be filed before status conference with Magistrate Jostad. This appearance is required to be in-person. Magistrate Jostad wants the attorneys and their files present in order to resolve any disclosure/discovery disputes. However, if there are later status conferences, Magistrate Jostad may allow phone appearances. Magistrate Jostad expects cooperation and communication from the attorneys. If not, the case will not proceed to trial. Active case management has been important long before C.R.C.P. 16.2.

The court has an initial case management order that goes out when the case is filed.  A stipulated case management plan (SCMP) may get you out of the initial status conference (ISC). An additional order is issued after a SCMP is filed or after the ISC.

Temporary orders (TO) can be set pursuant to the SCMP or at the ISC. Typically, you can get a TO hearing in about a month or two.

Post decree orders are handled by Magistrate Berenato. However, for certain issues, these matters will go to the judges.

The court follows C.R.C.P. 16.2.

Motions: A party can file any motion except for a motion to compel. A motion to compel needs to be authorized, which means that you need to file a motion that states you want to file a motion to compel. Or, you can ask for a motion to compel at the ISC.

Trial Setting: The judges make sure the case will be going to trial before the matter is on the trial docket. The court is working towards resolving the matter in six months if it is uncontested and resolving the matter in one year if the matter is contested. The court had over 1800 filings this year. The court will not reveal who the judge is on a party’s case until the parties arrive. The judges believe that this will prevent “judge shopping.” Also, this procedure gives the court the flexibility to shift judges at the last minute.

Mediation: The court’s mediation requirement depends on whether the CFC determines whether mediation is necessary. For some cases, the parties will not go to permanent orders if they have not gone to mediation.

Pro SeLitigants: In regard to pro se parties, Judge Schapanski commented that there is a varying degree of willingness and ability to deal with pro se parties. The judges understand that they need to inform pro se parties about the resources available to them. However, there is a line between advocating for a pro se party and assisting them with the rules. The Larimer County Court has a pro se clinic that they run every Monday. They work with the local bar to get volunteers. The Colorado Bar also has a pro se clinic on Wednesdays.

Child Family Investigators: The 8^thJudicial District has a unique, low-cost CFI system. CFIs cost about $1400 in this judicial district. PREs are lower cost in this district as well. They range from about $4500-$5000. Magistrate Jostad meets with the CFIs every six months to discuss processes and procedures. The court has a list of CFIs that are willing to take cases for $1400.

CBA FAMILY LAW SECTION
BROWN BAG LUNCHEON
1st Judicial District -  Jefferson County
Golden, Colorado
January 18, 2011
Prepared by Cyndy Ciancio

CBA Family Law Section Attendees:
Richard Zuber - Chair
Brenda Storey - Vice Chair
Cyndy Ciancio  - Secretary
John Eckelberry - Treasurer
Marie Moses - Past Chair
David Littman - Past Chair
Kathryn Beck - Liaison 

1st J.D. Attendees:
Judge Brian Boatwright -District Court Judge (juvenile)
Judge Tammy Russell - District Court Judge (mixed docket)
Steve Munsinger - District Court Judge (probate, criminal, civil)
Chris Philips - District Court Judge
Shelly Rodriquez - Div. U - District Court Magistrate (new)
Gail Meinster  - District Court Magistrate (div. S)
Judith Goeke - District Court Magistrate (div. B)
Dennis Hall - District Court Magistrate
Chris Voisinet - District Court Magistrate (div. Q)
Jane Tidball - District Court Judge
Marggie Enquist - District Court Judge (div. 8)
Christine  Krietemuier - Family Court Facilitator
Randy Arp - District Court Judge (div. 9)
Brook Jackson -District Court Judge - Chief (div. 6)

Kathryn Beck introduces herself and the section.  She indicates her desire to provide information to the members about this district and vice verse. There are often complaints from members about not knowing how things are done in each district.  She hopes to be launching a web page for the 1st J.D. on the CBA/FLS website.

Brenda Storey discusses this year’s Family Law Institute.

Richard Zuber discusses his goal of improving as a section and improving the practice of family law.

Cyndy Ciancio reports that minutes from these brown bags will be available on the FLS website.

Marie Moses discusses current legislative issues.

John Eckelberry discusses current MVL opportunities and challenges.

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Judge  Jackson talks about how for the past 2 years, they have been attempting to have one judge preside primarily over all domestic matters.  This plan proved to be too much of a burden on Judge Arp.  Now they have returned to most judges doing a mixed docket (including Judge Arp). 

Div. 14, Judge Barryhill has more than his equal share of domestic cases because he’s not doing any criminal.  Judge  Boatwright  is doing all juvenile and NOT domestic unless he’s picking up over flow.  He wants to get back into domestic and is waiting to hear what happens with Judge Jackson.  Judge Munsinger is doing a bit of everything and he is a great “rover” judge.

The Magistrate positions are now all filled.  Magistrate Norton has retired. Magistrate Martinez has left the bench as well.  For awhile, neither Magistrates were replaced. Ultimately, Div. O was replaced by Brian Stewart and then they filled Magistrate Norton’s position with Magistrate Rodriquez.

Initial Status Conferences:  Div. 14 is still doing all status conferences when there are 2 lawyers involved. Pro se parties or cases with only one lawyer have ISCs with the family court facilitator.

Stipulated Case Management Plans:  If you file a stipulated case management plan, you must contact the magistrate or setting clerk within 10-14 days to set permanent orders.

Mediation: We discussed the pros and cons of mandatory mediation.  Some, but not all, 1st JD Judges require mediation before setting a final hearing:

Judge Arp - requires mediation
Judge Phillips - requires mediation
Judge Enquist - requires mediation
Judge Tidball - requires mediation
Judge Russell - requires mediation
Judge Munsinger - does not require mediation
Judge Jackson - does not require mediation
Judge Hall - does not require mediation 

Magistrate Voisinet indicates that they do not require mediation prior to temp orders and that the Magistrates are all over the board re post decree mediation.

Temporary Orders: It typically takes 4-6 weeks to get a temporary orders hearing, depending on how much time is needed.  If you are asking for more than a 1/2 day, it will go to the District Court Judge and settings will take longer.  The Bench advises attorneys to limit temporary orders hearings to 3 hours, max.  In their opinion, if you need a full day, you might as well set it for permanent orders.  The temporary orders hearings are set at the ISC.

Post Decree:  Judges are hearing certain post decree matters such as motions to modify primary care parents, removal cases and post decree cases that are set for more than 1/2 day.

Contempts: The Magistrates usually hear all of the contempts.  Occasionally the Judges will pick up long contempt hearings. Contempt advisals - the Magistrates will allow a hearing at the time of advisement if both sides are ready to go but usually the first setting date is only an advisal. Magistrate Rodriqueez bifurcates contempt by having the advisal and then later a hearing. Judge Boatwright asked if we have a preference.

Richard Zuber discussed Sorenson issue and asks how this jurisdiction handles it. Judge Arp indicated that he will have a “Sorenson hearing” if the issue is raised. He will generally just appoint a GAL because he doesn’t consider himself qualified to determine competency. 

David Littman indicates that the statue under which a GAL is appointed comes out of the probate code and it’s incredibly vague as to what the GAL is authorized to do. He’s doing this kind of work now and is trying to determine the scope of his duties.  He inquires, how does this role fit with a conservator or legal guardian? David also reports that there is now a sub committee working on this issue and it is expected that they will issue an ethics opinion in the next couple of years.

Judge Munsinger discusses GAL v. conservator/guardianship in probate.  Judge Arp indicates that short of a guardianship action under the probate code, a GAL doesn’t have authority to sign a separation agreement.  Judge Boatwright indicates that if you have a Sorenson issue, he thinks a party or attorney should ask for a GAL, then it’s up to the GAL to petition the court (in probate) to ask for a conservatorship/guardianship. 

Judge Munsinger talks about cases in the probate court that really should be allocation of parental responsibilities actions; such as two missing parents and grandmother ending up with the children.  Grandmother comes into probate court and asks for guardianship.  Mom sobers up, Dad gets out of jail, etc.  The guardianship is not as protective of the children as an APR is. He recommends that if your client has standing, it is much better to proceed in an APR action.

Brenda Storey reports on the Family Law Institute Aug. 12-14 ... Say You Want a Revolution!

Maries Moses gives a legislative update; there are efforts to get UCLA passed.  Marie also surveyed the Judges about their opinion on a proposed maintenance formula, they answered as follows: Judge Munch has a formula that he uses. Judge Tidball thinks it’s too hard to apply a formula because of all the different circumstances. Judge Russell believes it’s too hard to quantify contribution into a formula. 

CBA FAMILY LAW SECTION
BROWN BAG LUNCHEON
17th Judicial District -  Adams/Broomfield Counties
Brighton, Colorado
March 8, 2011
Prepared by Cyndy Ciancio

CBA Family Law Section Attendees:
Richard Zuber - Chair
Brenda Storey - Vice Chair
Cyndy Ciancio - Secretary
John Eckelberry - Treasurer
Marie Moses - Past Chair
David Littman - Past Chair
Trish Cooper - Liaison 

17th J.D. Attendees:
Judge Ed Moss -District Court Judge
Judge Ted Tow - District Court Judge
Judge Kathy Delgado - District Court Judge
Magistrate Valerie Malara
Magistrate Simon Mole - District Court Magistrate
Magistrate Emily Anderson - District Court Magistrate
Janet Lee - Family Court Facilitator
Michelle Gashler - Family Court Facilitator

Richard Zuber gives opening remarks informing the bench of what we as a section are attempting to do and would like from them, etc. We are all grateful for the hard work of the judicial officers.

Discussed what’s going on in Adam & Broomfield Counties in Domestic

Judge Delgado informs us that there has been a change in the number of judicial officers in the 17th JD.

In the last 3 months, 2 new judges and 1 magistrate were assigned to Domestic; Judge Tow, Judge Welling and Magistrate Malara.  In addition, Judge Delgado will be providing back-up to the domestic judges on Monday and Tuesday afternoons and Magistrate Anderson will be providing back up to the magistrates on Wednesday and Fridays.  

Judge Delgado will be providing mentorship to the new judges and will be helping with TROs, Motions To Restrict, etc.

On Wed., Thurs. and Fri., Judge Delgado will be in Broomfield providing back up to Judge Ensor. She will be handling temp orders, motions to restrict, and some PO hearings. 

Magistrate Mole is back in domestic, they’ve added the new Magistrate, Valerie Malara, in Adam County and Magistrate Anderson continues to preside in Broomfield.

Case Management Orders:  Case Management Orders are issued after case is filed

Initial Status Conferences:  Family Court Facilitators handle ALL Initial Status Conferences.

Stipulated Case Management Plans:  You can file a Stipulated Case Management Plan provided it is filed at least 5 business days in advanceof the ISC. It must be very detailed and include an “exit strategy” for the case.  Mag. Mole will deny them if they are not detailed and planned out. 

Mag. Malara says they all really attempt to have the same procedures in each division.

The clerks here are great. They answer calls and get back to people very promptly. They are down in staff but it is going back up.

Division Assignments:

Broomfield

Judge Ensor - all cases are currently assigned to Judge Ensor. Some may                       eventually be assigned to Judge Delgado.

Judge Delgado - will likely be moving full time to Broomfield within a year.

Magistrate Anderson - is in Broomfield on Mondays and Tuesdays and in Adams                      Wednesday –Friday.

Adams:

Even # cases - Judge Tow (Div. K) / Magistrate Malara (Div. K1)

Odd # cases - Judge Welling (Div. B) / Magistrate Mole (Div. B1)                                               

Temporary Orders:  The standard length of time for temp orders is 1 hour.  Magistrates will hear them unless you’ve asked for more than 2 hours.  They are setting out about 45-60 days.  temporary orders hearings are often set on Fridays at 4 p.m. if the case is particularly contentious.

Mediation:  Mediation is only required if it is a post decree matter that has a prior stipulation or court order mandating mediation.  If they parties have not mediated prior to filing their motion, the court will deny the motion.  Note, you can refile your motion with a certificate of mediation and you do not have to pay a new filing fee. Further, you are allowed to file your motion to preserve a retroactive support date if you indicate in the motion that you are attending mediation and just want to preserve the filing date. You need to explain your reasons in the motion.

Docket Management:  When Magistrate Mole was the FCF, there was as a strong desire to get the cases done in one year.  They still want to see cases completed within a year but some Judges on the bench currently are a bit more flexible.  Some are not. There is no desire to do “cookie cutter divorces”, but they like to keep the cases moving.    The State Judicial guidelines account for the fact that some cases take longer. However, they strive to be firm in the vast number of cases to get them finished in one year.  They try to stop the cases from being set too far in advance thereby requiring one or more temporary orders hearings.

Settings:  They generally do not double set trials.  Trials are frequently set at or around the 90 day time frame.

Judge Welling is talking about getting active in the cases earlier than the pre trial conference in an effort to help manage the discovery disputes or other issues that come up pre trial.  Adams County is very good about determining issues early on and deciding if the Judge needs to get involved.

Contempt:  Generally, contempt hearings are handled by Magistrates unless the hearing is set for more than 2 hours, then it gets bumped to the District Court Judge. The Judges issue the citations and then the matter gets set for an advisement in the magistrate’s division. After advisement, it gets set for a hearing. They welcome written waivers of advisement.

Post decrees:   Post decrees cases are handled the same way as dissolutions - dependent on case number and the number of hours requested for the hearing.

Discussion on Court Forms: There are pros and cons to the standard court forms such as separation agreements and parenting plans.

John Eckelberry  talked about mentoring: The judges discussed their frustration with lawyers that do not understand the rules of evidence; admission of exhibits; child hearsay and case presentation. Brenda Storey and John Eckelberry relay that there is a Basic Skills Seminar offered through CLE every two years, with a reduced tuition if a pro bono case is taken.

Judge Tow wants us to know the following: 

1. When you have a pre trial telephone conference - be at your phone.
2. If you filed your settlement paperwork the day before your hearing you better show up. Until he has reviewed and signed the order, the hearing will NOT be vacated.

Magistrate Malara will allow non-cons with one atty (kids) to appear for the final hearing via phone.

Trish Cooper discussed the liaison committee. The goal of the committee is to be the contact person for the district.

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