     The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                   SUMMARY
                                                                 May 23, 2019

                                2019COA80

No. 17CA2318, In re Marriage of Olsen — Family Law —
Dissolution — Parents and Children — Assisted Reproduction —
Embryos

     A division of the court of appeals considers the disposition of a

divorced couple’s cryogenically frozen pre-embryos under the

guidance of In re Marriage of Rooks, 2018 CO 85. The division

concludes that wife’s subjective belief that the pre-embryos should

be protected as human life should not be weighted more heavily

than husband’s constitutional interest in not procreating using the

pre-embryos. Consequently, the division remands to the district

court to rebalance the parties’ interests in accord with Rooks.
COLORADO COURT OF APPEALS                                    2019COA80


Court of Appeals No. 17CA2318
El Paso County District Court No. 12DR5458
Honorable Timothy Schutz, Judge


In re the Marriage of

Jamie R. Fabos, f/k/a Jamie R. Olsen,

Appellee,

and

Justin R. Olsen,

Appellant.


                        JUDGMENT REVERSED AND CASE
                         REMANDED WITH DIRECTIONS

                                   Division VI
                          Opinion by JUDGE RICHMAN
                         Navarro and Welling, JJ., concur

                            Announced May 23, 2019


Theresa Sidebotham, Monument, Colorado; Joan M. Mannix, Chicago, Illinois,
for Appellee

Paige Mackey Murray, LLC, Paige Mackey Murray, Boulder, Colorado, for
Appellant
¶1    In this dissolution of marriage proceeding, we are called upon,

 as was the division in In re Marriage of Rooks, 2016 COA 153 (Rooks

 I), rev’d, 2018 CO 85 (Rooks II), to review a district court’s

 disposition of a divorcing couple’s cryogenically frozen pre-embryos.

                I. Background and Procedural History

¶2    Similar to the couple in Rooks, the divorcing couple here,

 Jamie R. Fabos, formerly known as Jamie R. Olsen (wife), and

 Justin R. Olsen (husband), sought in vitro fertilization (IVF) during

 their marriage after they were unable to conceive otherwise. Four of

 wife’s eggs were fertilized; two of the resulting pre-embryos were

 implanted successfully, leading to the births of the parties’ twins in

 2011; and the remaining two pre-embryos were cryogenically frozen

 for possible future use.

¶3    Also similar to the situation in Rooks, although the parties had

 entered into an agreement with the fertility center where they

 underwent IVF — entitled “Informed Consent for Assisted

 Reproduction” — that agreement did not specify a disposition of

 their remaining pre-embryos if they divorced. Rather, it provided,

 as did the agreement in Rooks, that in the event of divorce




                                     1
 ownership of the pre-embryos would be “as directed by court decree

 and/or settlement agreement.” See Rooks II, ¶¶ 2, 13, 73.

¶4    But the agreement provided an option for the parties to elect a

 disposition for their pre-embryos in the event of death or

 incapacitation of both of them, as well as when wife reached age

 fifty-five. Unlike in Rooks, where the couple agreed that in the

 event of the wife’s death, or the death of both partners, the embryos

 would be “thawed and discarded,” see id. at ¶ 12, here for both of

 these scenarios, wife and husband initialed the option to donate the

 pre-embryos to another couple. They did not initial the other

 available options: to “thaw and discard” the pre-embryos or “donate

 the pre-embryo(s) for research.”

¶5    In 2012, wife petitioned for dissolution of marriage. A decree

 was entered in 2013 resolving all dissolution issues except for the

 disposition of the pre-embryos, which was reserved for further

 proceedings.

¶6    It is at this point where the facts of this case diverge materially

 from those in Rooks. Mrs. Rooks asked the divorce court to award

 the pre-embryos to her because she wanted to preserve them for

 future implantation so that she could have more children, whereas


                                    2
 Mr. Rooks wanted to thaw and discard them. Id. at ¶ 14. In this

 case, however, wife does not want more children and instead wants

 to donate the pre-embryos to another infertile couple, whereas

 husband wants to discard them.

¶7    After a hearing, the district court, in a lengthy, thoughtful,

 and detailed order, first determined that the parties did not have an

 agreement on the disposition of their remaining pre-embryos in the

 event they divorced. Thus, consistent with this court’s decision in

 Rooks I, ¶ 24, the district court engaged in a balancing of the

 parties’ interests, concluding that the pre-embryos should be

 awarded to wife so that she could donate them to another couple.1

¶8    Husband appeals the district court’s judgment, contending

 that the court erred in balancing the parties’ interests. 2 The district



 1 The district court conditioned the donation on wife’s arranging
 that any donee couple “waive any right to seek contact with
 [husband], whether for genetic testing or any other purpose.”
 2 Husband initially challenged the district court’s use of the

 balancing of interests test and argued it should have applied a
 different standard — contemporaneous mutual consent. However,
 he abandoned that argument after Rooks II was announced and the
 supreme court adopted the balancing of interests test as the
 appropriate test to use in dissolution of marriage cases when there
 is no agreement as to the disposition of pre-embryos on divorce.
 See In re Marriage of Rooks, 2018 CO 85, ¶ 33 (Rooks II).

                                    3
  court granted husband’s request to stay its decision and ordered

  the parties to share equally the cost of maintaining the pre-embryos

  in cryogenic storage pending resolution of husband’s appeal.

¶9     Because the supreme court announced Rooks II while this

  appeal was pending, we requested supplemental briefs addressing

  that decision. Considering the parties’ initial and supplemental

  briefs and their oral arguments, we reverse the district court’s

  judgment and remand the case for further proceedings. In doing

  so, we first address the framework established in Rooks II for

  resolving disagreements over the disposition of pre-embryos in the

  event of divorce. We then address husband’s contentions under

  that framework, thereby resolving several issues not arising in, and

  thus not resolved by, Rooks II.

           II. Rooks and the Balancing of Interests Approach

¶ 10   In Rooks II, ¶¶ 32, 49-55, the supreme court noted that

  Colorado law relevant to assisted reproduction is not helpful in

  resolving disputes between divorcing parties concerning the

  disposition of their cryogenically frozen pre-embryos. The court

  further considered the three methods that have been used in other

  jurisdictions for resolving such disputes: the contract approach, the


                                    4
  balancing of interests approach, and the contemporaneous mutual

  consent approach. Id. at ¶¶ 40-48.

¶ 11   It rejected the contemporaneous mutual consent approach,

  which essentially maintains the status quo by leaving the

  pre-embryos in storage indefinitely until and unless the parties

  agree otherwise.3 The court noted, among other bases for rejecting

  this approach, that it gives one party a de facto veto over the issue

  and abdicates the court’s responsibility to resolve an issue on which

  the parties have proven unable to agree. Id. at ¶¶ 45, 60.

¶ 12   The court held that, instead, a dissolution court must first

  look to any existing agreement between the parties as to disposition

  of their pre-embryos in the event of divorce. Id. at ¶¶ 61, 74. The

  court agreed with other jurisdictions applying a contract approach

  that if there is such an agreement the court must enforce it, thereby

  allowing the parties, as progenitors, and not the court, to decide the

  private, personal matter of what will happen to their pre-embryos.

  See id. at ¶¶ 63, 72. When there is no express agreement on the



  3Justice Hood, joined by two members of the court, dissented in
  Rooks II, arguing for adoption of the contemporaneous mutual
  consent approach. See Rooks II, ¶¶ 82-107.

                                    5
  disposition of the pre-embryos in the event of a divorce, however,

  the court should apply a balancing of interests approach to

  determine the issue. Id. at ¶¶ 33, 64, 72, 74.

¶ 13     The Rooks II court provided “a non-exhaustive list” of factors

  that the court should consider in balancing the parties’ interests:

       • the intended use of the disputed pre-embryos by the party

         who seeks to preserve them;

       • the demonstrated physical ability or inability of the party

         seeking to preserve the pre-embryos to have biological children

         through other means;

       • the parties’ original reasons for undergoing IVF — for example,

         to preserve a party’s future ability to have biological children

         in the face of potential fertility loss due to medical treatment;

       • the hardship for the party seeking to avoid becoming a genetic

         parent, including emotional, financial, or logistical

         considerations;

       • either party’s demonstrated bad faith or attempt to use the

         pre-embryos as leverage in the dissolution proceedings; and

       • other relevant factors based on the circumstances of the case.

  Id. at ¶¶ 65-71, 74.

                                       6
¶ 14   The supreme court also listed certain other factors that courts

  must not consider in a balancing test: economic considerations

  such as whether the party seeking to become a genetic parent can

  afford to have another child, whether that party could instead adopt

  or otherwise parent nonbiological children, and the sheer number of

  a party’s existing children. Id. at ¶¶ 71, 74. Because the division of

  our court in Rooks I had upheld a district court’s disposition that

  relied in part on these prohibited factors, the supreme court in

  Rooks II reversed that decision and remanded the case for the

  district court to rebalance the parties’ interests under the

  framework it adopted. Id. at ¶¶ 5, 73.

¶ 15   Although the district court in the present case did not have

  the benefit of the decision of the supreme court in Rooks II, it did

  apply a balancing test using pertinent factors. The district court

  identified seven specific factors to be balanced, and, although

  phrased differently than the supreme court’s list of factors in Rooks

  II, the pertinent factors applied by the district court are sufficiently

  similar to the Rooks II factors that we will not reverse the district

  court ruling solely because its phraseology differed.

                          III. Husband’s Appeal


                                      7
¶ 16   Husband contends that the district court erred in applying the

  balancing of interests test because it weighted wife’s interest in

  donating the pre-embryos more heavily than his interest in avoiding

  procreation based on wife’s moral belief that the pre-embryos are

  human lives. We agree and thus reverse the judgment and remand

  the case for the district court to rebalance the parties’ interests

  consistent with this opinion and Rooks II.

                          A. Standard of Review

¶ 17   The parties disagree regarding the standard of review we

  should apply in reviewing the district court’s decision. Husband

  argues that a de novo standard applies because the case involves

  constitutionally protected interests. Wife argues that application of

  a balancing of interests test is necessarily an exercise of the district

  court’s equitable discretion and therefore an abuse of discretion

  standard applies.

¶ 18   The supreme court in Rooks II granted certiorari in part to

  address “[w]hether the court of appeals erred in applying an abuse

  of discretion standard of review in reviewing the trial court’s

  determination of the disposition of a couple’s cryogenically frozen




                                     8
  pre-embryos in a dissolution of marriage.” Id. at ¶ 3 n.1. But, the

  court did not resolve this issue.

¶ 19   The court did, however, characterize the pre-embryos as

  marital property, albeit “marital property of a special character”

  because they “contain the potential for human life.” Id. at ¶ 57.

  And it noted the district court’s discretion under section

  14-10-113(1), C.R.S. 2018, and In re Marriage of Balanson, 25 P.3d

  28, 35 (Colo. 2001), to divide marital property equitably after

  considering relevant factors. Rooks II, ¶¶ 58, 72. These statements

  imply that an abuse of discretion standard applies as it would in

  reviewing any marital property distribution. See Balanson, 25 P.3d

  at 35 (recognizing district court’s “great latitude” to equitably

  distribute marital property and that an appellate court must not

  disturb its decision “unless there has been a clear abuse of

  discretion”).

¶ 20   Additionally, the supreme court has previously applied an

  abuse of discretion standard of review to an issue involving

  competing constitutional rights. See In re Marriage of Ciesluk, 113

  P.3d 135, 142, 148 (Colo. 2005). In Ciesluk, the court reviewed a

  parental relocation determination under section 14-10-129(2)(c),


                                      9
  C.R.S. 2018, for an abuse of discretion, noting that the

  determination involved balancing the mother’s constitutional right

  to travel between states against the father’s constitutional right to

  parent his child. Ciesluk, 113 P.3d at 142, 148.

¶ 21   Thus, we apply an abuse of discretion standard. In doing so,

  however, we more carefully scrutinize the district court’s

  determination because it involves the parties’ constitutional rights.

  See Nikander v. Dist. Court, 711 P.2d 1260, 1262 (Colo. 1986).

           B. The District Court’s Balancing of Interests Analysis

¶ 22   The district court began its analysis with three “constructs”

  that had informed its balancing analysis: (1) the pre-embryos are

  not legally considered human lives; (2) neither party can

  persuasively argue that he or she would involuntarily become a

  parent, legally or financially, of any child born using the pre-

  embryos; and (3) the parties’ competing interests are grounded in

  constitutional rights — the right to procreate and the right not to

  procreate. These constructs are consistent with Rooks II, ¶¶ 35-39,

  50-57.




                                     10
¶ 23   Against this backdrop, the court then weighted the parties’

  interests, applying the factors listed in the division’s decision in

  Rooks I, ¶¶ 42-62, to the extent they were pertinent to this case.

¶ 24   Husband contends only two of the supreme court’s Rooks II

  balancing factors are relevant to the circumstances here: wife’s

  intended use of the embryos and the hardship on him if he were

  forced to become a genetic parent. See Rooks II, ¶¶ 66, 69. Wife

  did not want to have more children herself using the pre-embryos

  so her physical ability to have more children through other means

  is not relevant. Also, the parties did not have a reason for

  undergoing IVF other than to have children, which they

  successfully did. Further, neither party argued in the district court

  that the other was acting in bad faith or using the pre-embryos as

  unfair leverage in the divorce proceedings, as all other dissolution

  issues had been resolved. The district court also did not consider

  any of the Rooks II prohibited factors. See id. at ¶ 71.

¶ 25   Applying the first factor (intended use of the pre-embryos by

  the party who seeks to preserve them), the court stated that wife’s

  interest in donating the pre-embryos was “less important” than her

  interest would be if she planned to use the embryos to have another


                                     11
  child herself. But it still weighted this factor “slightly” in wife’s

  favor because it concluded “she is seeking to utilize the embryos for

  a productive purpose rather than simply discard them as [husband]

  proposes.”

¶ 26   The court weighted the factor of “hardship for the party

  seeking to avoid becoming a genetic parent” “slightly” in husband’s

  favor, and it weighted wife’s personal view that the pre-embryos are

  human lives “heavily” in her favor.

¶ 27   Separately, the district court ultimately rejected husband’s

  position that his desire to avoid procreation should be given

  “conclusive weight,” although it characterized this factor as

  “substantial.” The court found that husband’s stated concern

  about having a child born from the pre-embryos who was

  genetically his child but whom he would not raise was inconsistent

  with his actions in agreeing to donate the embryos in other

  scenarios. And because the parties had agreed to donate the pre-

  embryos in other scenarios, the court surmised that they had given

  more weight to wife’s “fundamental beliefs” (that the pre-embryos

  were human lives and should not be destroyed) than to husband’s

  interest in avoiding undesired procreation. Thus, the court


                                      12
  weighted husband’s subjective concerns about donating the

  pre-embryos in his favor but “at a level significantly less than the

  subjective importance of [wife’s] desire to avoid destruction of the

  [pre-]embryos.” Balancing all of these factors, the court awarded

  the pre-embryos to wife.

                               C. Analysis

                          1. Preliminary Issues

¶ 28   Because wife’s argument that husband waived his right to

  avoid procreating when he agreed to create the pre-embryos

  through IVF is inconsistent with Rooks II, we reject it. See id. at ¶

  62 (“We do not interpret a party’s commencement of the IVF

  process, on its own, to establish the party’s automatic consent to

  become the genetic parent of all possible children that could result

  from successful implantation of the pre-embryos.”).

¶ 29   We also reject wife’s argument on appeal that we should

  conclude the parties entered into an agreement to preserve the

  pre-embryos for donation in the event of divorce. The record

  reflects that although wife testified at the hearing that the parties

  had orally agreed that any unused pre-embryos would not be

  destroyed, she admitted that she had no evidence of such an


                                    13
  agreement other than her email correspondence with her friend and

  sister, in which husband did not participate. Further, wife

  admitted that the parties did not have an agreement for disposition

  of the pre-embryos in the event they divorced.

¶ 30   When asked by the district court why, if the parties had

  chosen donation of the pre-embryos in other instances, they did not

  also provide for that disposition in the event of divorce, wife

  responded that they did not discuss what would happen in the

  event that they divorce and that she wished that she had included

  such a provision but she thought they would be married forever.

¶ 31   Wife did not argue in her written briefs in the district court

  that there was an oral agreement between the parties that must be

  enforced. She instead consistently described the fertility center’s

  written consent form as the only agreement concerning disposition

  of the pre-embryos and argued, as she also did at the hearing, that

  the consent form should be interpreted as indicating an intent that

  the pre-embryos be donated on divorce. Although the court found

  credible wife’s testimony that the parties had “discussed” her pro-

  life beliefs in connection with their decision to undergo IVF, it also

  found that the IVF agreement did not set forth a standard to be


                                     14
  utilized in resolving the dispute in the event of divorce, other than

  to submit it to the court. Cf. J.B. v. M.B., 783 A.2d 707, 714 (N.J.

  2001) (rejecting party’s assertion that an oral agreement existed for

  disposition of the parties’ pre-embryos based on their discussions of

  the issue before undergoing IVF). 4

¶ 32   Moreover, Rooks II, ¶ 72, held that an express agreement

  between the spouses in the event of divorce would govern and

  therefore be enforceable. And we discern no error in the district

  court’s conclusion that the parties did not have an agreement on

  the disposition of the pre-embryos in the event of divorce — except

  to submit the issue to a court in the event they could not agree. We

  similarly reject husband’s argument in his reply brief that section

  19-4-106(7), C.R.S. 2018, which requires both parties’ consent to

  IVF, controls the disposition issue presented here. See Rooks II, ¶¶

  51-52 (rejecting similar argument and holding that “consent” in



  4 Wife argues for the first time in her answer brief that husband is
  equitably estopped from arguing that the pre-embryos should be
  destroyed because she only agreed to IVF on the understanding
  that any unused pre-embryos would not be destroyed. However, we
  will not address an argument raised for the first time on appeal.
  Melat, Pressman & Higbie, L.L.P. v. Hannon Law Firm, L.L.C., 2012
  CO 61, ¶ 18.

                                    15
  section 19-4-106(7) “logically refers to the former spouse’s consent

  to legal parenthood” of a child born as a result of IVF). We also note

  that husband’s argument is not preserved because it is raised for

  the first time in his reply brief. See In re Marriage of Drexler, 2013

  COA 43, ¶ 24.

       2. Case Law on Balancing the Interests of a Party Wanting to
           Donate Versus Those of Wanting to Avoid Procreating

¶ 33    In weighing the parties’ competing interests, the Rooks II,

  court stated that “[a] party who seeks to become a genetic parent

  through implantation of the pre-embryos, for example, has a

  weightier interest than one who seeks to donate the pre-embryos to

  another couple.” Rooks II, ¶ 66.

¶ 34    And the court noted that “generally” case law from other

  jurisdictions addressing disposition of pre-embryos on divorce

  “avoid[s] results that compel one party to become a genetic parent

  against his or her will except in rare circumstances.” Id. at ¶ 32.

  Rooks, however, involved a party who wanted to preserve the

  pre-embryos to become pregnant, not to donate them as wife wants

  to do here. See id. at ¶ 2.




                                     16
¶ 35   On appeal, husband urges us to adopt this intended use factor

  as the primary and dispositive factor when one spouse seeks to

  donate the pre-embryos, rather than use them to have biological

  children. We decline to adopt this proposed bright line test.

¶ 36   First, although the opinion in Rooks II lists this factor first, it

  does not state that it has primary or dispositive weight. It states

  only that a party wishing to implant and have a child has a

  weightier interest than a party wishing to donate. And, in this case,

  husband does not wish to become a genetic parent through

  implantation (i.e., by using a surrogate), so the first clause is not

  dispositive in weighting his interest against wife’s.

¶ 37   Rooks II cited two cases from other jurisdictions in which a

  spouse’s interest in discarding pre-embryos so as to avoid becoming

  a genetic parent was pitted against a spouse’s interest in preserving

  pre-embryos to donate to another couple. Id. at ¶ 66 (citing J.B.,

  783 A.2d at 716-17; Davis v. Davis, 842 S.W.2d 588, 603-04 (Tenn.

  1992)).

¶ 38   Davis stated that in this circumstance, “[o]rdinarily, the party

  wishing to avoid procreation should prevail.” 842 S.W.2d at 604;

  see also J.B., 783 A.2d at 716. The Davis court upheld the lower


                                     17
  court’s disposition under the balancing of interests test in favor of

  the party who did not want to procreate. 842 S.W.2d at 604. That

  party — the husband — asserted that he was “vehemently opposed

  to fathering a child that would not live with both parents” because,

  as a child, he had been sent to a home for boys after his parents

  divorced and had “severe problems” as a result. Id. at 603-04. The

  court credited the husband’s testimony, and also found that the

  wife’s interest in donating, which it described as her having to know

  “that the lengthy IVF procedures she underwent were futile, and

  that the pre[-]embryos to which she contributed genetic material

  would never become children,” was not as significant as the

  husband’s interest. Id. at 604.

¶ 39   The New Jersey court approved of the Davis rule that

  ordinarily a party wishing to avoid procreation should prevail, and it

  also ruled in favor of destroying the pre-embryos. J.B., 783 A.2d at

  716-17.

¶ 40   Although the Davis court noted that “[t]he case would be

  closer if [the wife] were seeking to use the pre[-]embryos herself,”

  842 S.W.2d at 604, it did not hold that an objecting party must

  always prevail when the other party wants to donate rather than


                                    18
  have a child using the pre-embryos. To the contrary, it clarified

  that the rule it was announcing “does not contemplate the creation

  of an automatic veto” for an objecting party. Id. Neither of these

  cases adopted the bright line test urged by husband.

            3. The Parties’ Competing Constitutional Rights

¶ 41   Husband argues that wife’s “right to procreate is less

  impacted, if impacted at all,” if she is not permitted to donate the

  pre-embryos and that her right only “manifests at the moment of

  implantation [of the pre-embryos] in her uterus.” See J.B., 783

  A.2d at 717 (preventing donation or use of the pre-embryos would

  not impair the husband’s right to procreate). Accordingly, he

  further argues, the district court erred in treating the parties’

  constitutional rights as equivalent.

¶ 42   The court did not treat the parties’ rights as equivalent,

  however. Rather, it noted that “there is a constitutional dimension”

  to wife’s interest in preserving the pre-embryos for donation to

  another couple and thus both parties’ “competing interests . . . are

  grounded in constitutional rights.” The court did not err in making

  this statement.




                                     19
¶ 43   The supreme court similarly noted in Rooks II, ¶ 35, that the

  parties’ competing interests in this situation “derive from

  constitutional rights in the realm of reproductive choice.” Further,

  wife’s right, as well as husband’s, in this area includes not only the

  right to procreate or not procreate, but also the right to make

  decisions about the fate of the pre-embryos that were created using

  their genetic material. See Davis, 842 S.W.2d at 601-03 (describing

  the parties — the wife, who wanted to donate the pre-embryos, and

  the husband, who wanted to discard them — as “entirely equivalent

  gamete-providers,” both with “decisional authority” over whether to

  continue gestating the pre-embryos); see also Rooks II, ¶¶ 35-38

  (discussing case law around reproductive rights and noting the

  importance of individual choice and autonomy in decision-making).

             4. Husband’s Interest in Avoiding Procreation

¶ 44   Although husband claimed a similar interest to that asserted

  by the husband in Davis — that he never knew his own father and

  did not want to have a genetic child whom he would not raise and

  who also might not have a father in his or her life — the district

  court found his assertion not credible. It noted that if his concern

  “was so compelling that he could not accommodate the prospect of


                                    20
  his biological child being raised by someone else other than himself,

  how could he have agreed the [pre-]embryos should be donated to

  another couple in the event [wife] attained the age of fifty-five or in

  the event of his and [wife’s] mutual death?” According to the court,

  this inconsistency “dissipate[d] [husband’s] argument that this

  factor should weigh heavily in his favor.”

¶ 45   We conclude that the district court did not abuse its discretion

  in weighting husband’s interest in this manner. We agree with

  Davis’s ruling that ordinarily a party not wanting to procreate

  should prevail when the other party wants to donate the

  pre-embryos instead of using them to have a child of his or her

  own. See 842 S.W.2d at 604; see also Rooks II, ¶ 32. But, we also

  agree with the district court and with Davis that an objecting

  party’s interest is not a veto power and therefore is not conclusive

  in a balancing analysis. See 842 S.W.2d at 604.

¶ 46   Moreover, determining credibility is the district court’s

  prerogative. In re Marriage of Farr, 228 P.3d 267, 270 (Colo. App.

  2010). And the court’s observations relative to its credibility

  determination here are supported by the record. Whereas in Davis

  the parties had not entered into any agreement for disposition of


                                     21
  their pre-embryos, 842 S.W.2d at 590, here husband twice agreed

  that in scenarios other than divorce the pre-embryos would be

  donated to another couple. As the district court noted, his decision

  to elect donation in these other scenarios unavoidably conflicts with

  his claimed “core belief” that he did not want his biological child

  being raised by someone else and potentially without a father, as he

  had been raised.

¶ 47   At the hearing, after husband stated his concerns about

  donating the pre-embryos, the district court asked him directly

  about the inconsistency in his position relative to his previous

  agreement to donate in other scenarios:

            But let me push back and don’t take this in an
            offensive way, but just try to explain to me the
            difference. So if that’s true, why would it be
            acceptable to donate in the event of your death
            or the other category that was set forth in the
            contract, to donate in the event that you
            reached 56 and didn’t otherwise address this
            position? So why aren’t those sort of
            overriding concerns that you have about the
            absence of a father equally applicable in those
            cases?

  In response, husband did not say that he had changed his mind

  but rather attempted to distinguish the two situations:




                                    22
            I think there would be a guarantee. There
            would be a definite definition. If I was dead,
            my child, if it was out there and planted in
            somebody else, would know. There’s the
            possibility they would know I’m not around. I
            don’t know. It’s just something that’s there
            that I’m thinking about constantly. It’s like
            the most logical thing that you think about. If
            you’re 55 or 56 and we were still together, me
            and [wife], even though there’s a document
            there, it’s still something that you would talk
            about. Obviously we can’t talk about things
            and make decisions together. That’s why we’re
            here all the time unfortunately. You have to
            be — I can’t really say being what I would do
            with putting myself out there 14 years from
            now. So it’s — I don’t know. It’s hard for me
            to say.

¶ 48   Husband did not argue in the district court that he was

  entitled to and in fact had changed his mind about his previous

  agreement to donate the pre-embryos. Thus, because it was not

  shown to be clearly erroneous, we must accept the district court’s

  finding that husband either overstated his “core belief” about the

  prospect of his biological child being raised by someone other than

  himself, or recognized that the wife’s “competing value is entitled to

  greater weight.”

¶ 49   Additionally, the district court noted that fewer than two years

  had elapsed from when the parties signed the agreement, in which



                                    23
  they agreed to donate the pre-embryos in other scenarios, and the

  dissolution proceedings began. Therefore, it found unlikely that

  “the parties’ core beliefs and values” had evolved significantly in this

  short time.

¶ 50   The district court appropriately weighted the husband’s

  testimony under the factor of husband’s personal view of the moral

  responsibility to have a meaningful presence in the life of a child he

  aided in conceiving.

             5. Wife’s Interest in Donating the Pre-Embryos

¶ 51   By stating initially that wife’s interest in donating the pre-

  embryos was “less important” than if she had planned to use the

  pre-embryos to have another child herself, the district court

  appeared to accord appropriate weight to wife’s interest. See Rooks

  II, ¶ 66 (“A party who seeks to become a genetic parent through

  implantation of the pre-embryos, for example, has a weightier

  interest than one who seeks to donate the pre-embryos to another

  couple.”); see also J.B., 783 A.2d at 716; Davis, 842 S.W.2d at 604.

  We read this statement from Rooks II to mean that a party’s interest

  in seeking to donate is still entitled to some weight, but not as great

  a weight as if the party sought to use the pre-embryos herself.


                                    24
¶ 52   However, the district court identified what appears to be a

  corollary factor that turned on the “the parties’ personal views of

  the morality of discarding fertilized embryos” and weighted that

  factor heavily in favor of wife. Nothing in Rooks I or Rooks II

  suggests that the weight to be attributed to a party’s interest in

  donating should in any way turn on that party’s personal views of

  the morality of donating. Moreover, Rooks II did not recognize, as it

  could have, that certain uses of the pre-embryos — such as

  implantation or donation — were for a “productive purpose” and

  thus entitled to greater weight in the balancing calculus. To the

  contrary, attributing such weight in this case appears to be

  inconsistent with the supreme court’s conclusion that pre-embryos

  are not persons under Colorado law. See Rooks II, ¶ 56.

¶ 53   Although the district court had clarified at the beginning of its

  balancing analysis, consistent with Colorado law, see id., that “the

  legal system does not view an embryo as a human life” and that the

  parties’ dispute “cannot be resolved based upon a perception that

  the [pre-]embryos must be protected as human life,” it then did just

  the opposite by weighting “heavily” wife’s personal beliefs that the

  pre-embryos were human lives and describing her interest in


                                    25
  donating them as a “productive purpose” as compared with

  husband’s intent to discard them. By applying this new factor of

  personal moral views, the district court effectively restored

  conclusive weight to wife’s side of the balancing equation because

  “she is seeking to utilize the embryos for a productive purpose

  rather than simply discard them as [husband] proposes.” In

  characterizing wife’s purpose to donate as “productive” and

  husband’s purpose as “simply discard[ing],” the court credited

  wife’s personal beliefs that the pre-embryos were human lives and

  treated donation as an innately and unavoidably superior purpose

  to discarding. By relying on this factor, the district court tilted the

  scale in favor of the party seeking to donate and thus abused its

  discretion by inserting a factor not recognized in Rooks II and that

  is seemingly inconsistent with that decision. See id. at ¶¶ 32, 66;

  J.B., 783 A.2d at 716; Davis, 842 S.W.2d at 604.

¶ 54   We recognize that the factors identified in Rooks II are not

  exhaustive. Rooks II, ¶ 71 (“Factors other than the ones described

  above may be relevant on a case-by-case basis.”). But the factors

  that a court adds — like the five expressly identified in Rooks II —

  must be in service of balancing the competing constitutional


                                     26
  interests at stake, namely, “the parties’ individual interests in either

  achieving or avoiding genetic parenthood through use of the

  disputed pre-embryos.” Id. at ¶ 64. And the relative strength or

  sincerity of the parties’ respective personal or moral convictions, as

  a separate additional factor, does not advance the court’s charge of

  giving primacy to one of “the equivalently important, yet competing,

  right to procreate and right to avoid procreation.” Id. at ¶ 74.

¶ 55   The district court found that wife’s subjective beliefs were

  “bona fide, passionate, and antedate this dispute.” While this

  finding is certainly supported by the record, wife’s beliefs are also

  contrary to established law regarding pre-embryos and, as such,

  were ultimately weighted too heavily by the district court vis-a-vis

  husband’s constitutional right to avoid procreating using the

  pre-embryos. Cf. J.B., 783 A.2d at 712, 716-17 (resolving issue in

  favor of party seeking to destroy pre-embryos to avoid procreating

  despite the other party’s desire to donate the pre-embryos

  consistent with his religious convictions that the pre-embryos must

  be protected as human life).

¶ 56   To be sure, although wife is constitutionally entitled to her

  sincerely held personal moral beliefs, such beliefs cannot be


                                    27
  accorded dispositive weight. 5 See id.; Davis, 842 S.W.2d at 604; see

  also Rooks II, ¶¶ 32, 66. Moreover, to the extent the supreme court

  in Rooks II identified hardship or emotional toll as a consideration,

  it was only with respect to “the spouse seeking to avoid becoming a

  genetic parent.” Rooks II, ¶¶ 4, 69, 74.

¶ 57   For all of these reasons, we remand the case for the district

  court to rebalance the parties’ interests in accord with Rooks II. As

  set forth in this opinion, the court should do so without weighting

  wife’s subjective belief that the pre-embryos should be protected as

  human life more heavily than husband’s interest in not procreating

  using the pre-embryos. Further, because the court and the parties

  did not have the guidance of Rooks II during the earlier hearing,

  both parties should be afforded the opportunity to present the

  district court with additional evidence and argument if either party

  wishes to do so.



  5 On appeal, wife appears to argue that her right to donate the
  pre-embryos implicates her right to free exercise of her religious
  beliefs. If this argument was raised below, it was not addressed by
  the district court. Moreover, wife cites no authority for the
  proposition that free exercise of religious beliefs is implicated in a
  case involving the allocation of pre-embryos as marital property of a
  special character.

                                    28
             IV. Wife’s Request for Appellate Attorney Fees

¶ 58   Wife requests appellate attorney fees under C.A.R. 38(b) and

  section 13-17-102, C.R.S. 2018. We deny the request.

¶ 59   Wife requests fees based on husband’s first issue, in which he

  argues that the contemporaneous mutual consent approach applies

  instead of the balancing of interests approach — a position

  supported by the dissent in Rooks II, ¶¶ 76-109. Husband

  abandoned this issue, however, in his supplemental brief after the

  Rooks II court adopted the balancing of interests approach.

  Accordingly, attorney fees are not appropriate. See Mission Denver

  Co. v. Pierson, 674 P.2d 363, 365 (Colo. 1984) (“Standards for

  determining whether an appeal is frivolous should be directed

  toward penalizing egregious conduct without deterring a lawyer

  from vigorously asserting his client’s rights.”); cf. § 13-17-102(5)

  (attorney fees shall not be assessed if a claim is dismissed within a

  reasonable time after the party knew or reasonably should have

  known that he or she would not prevail on the claim).

                              V. Conclusion




                                     29
¶ 60   The judgment is reversed, and the case is remanded for the

  district court to rebalance the parties’ interests consistent with this

  opinion.

       JUDGE NAVARRO and JUDGE WELLING concur.




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