     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
                                                               August 9, 2018

                               2018COA116

No. 16CA1951 Marriage of Morgan — Family Law — Uniform
Dissolution of Marriage Act — Parenting Time


     A division of the court of appeals reaffirms the supreme court’s

decision in Spahmer v. Gullette, 113 P.3d 158, 162 (Colo. 2005),

holding that when a parent indicates before permanent orders that

he or she wishes to relocate, the court must allocate parenting time

assuming that the parent will move. Yet many parents admit that

they will not actually relocate if the children are ordered to remain

in Colorado. Often, courts will allocate parenting time based upon

that admission (i.e., as though the parent will not move). The

division reiterates that Spahmer gives no authority to disregard the

parent’s stated intention to relocate, reverses the parenting time
order, and remands for the magistrate to enter a new parenting

time order based on mother’s stated intention to relocate.
COLORADO COURT OF APPEALS                                        2018COA116


Court of Appeals No. 16CA1951
Weld County District Court No. 14DR30427
Honorable Ryan L. Kamada, Judge


In re the Marriage of

Carol Crosley Morgan,

Appellant,

and

Carter Edward Morgan,

Appellee.


             JUDGMENT AFFIRMED IN PART, REVERSED IN PART,
                 AND CASE REMANDED WITH DIRECTIONS

                                  Division III
                            Opinion by JUDGE FOX
                        Webb and Richman, JJ., concur
             Prior Opinion Announced June 28, 2018 WITHDRAWN

OPINION PREVIOUSLY ANNOUNCED AS “NOT PUBLISHED PURSUANT TO
   C.A.R. 35(e)” ON June 28, 2018, IS NOW DESIGNATED FOR PUBLICATION

                          Announced August 9, 2018


Aitken Law, LLC, Sharlene J. Aitken, Denver, Colorado; Ericka J.A. Fowler,
Boulder, Colorado, for Appellant

Antolinez Miller LLC, Joseph H. Antolinez, Melissa E. Miller, Centennial,
Colorado, for Appellee
¶1    In this dissolution of marriage proceeding, Carol Crosley

 Morgan (mother) appeals that portion of the permanent orders

 allocating parental responsibilities for her two minor children with

 Carter Edward Morgan (father). We reverse the parenting time

 order and remand for the magistrate to enter a new parenting time

 order based on mother’s stated intention to relocate to California.

 In all other respects, we affirm.

                             I. Background

¶2    Well before the permanent orders hearing, mother notified the

 magistrate that she wished to move with the children to California.

 She sought orders that would name her the children’s primary

 residential parent and decision-maker.

¶3    The parents agreed that Dr. Kevin Albert would conduct a

 parental responsibilities evaluation (PRE) to assess the parenting

 issues, including mother’s proposed move. Dr. Albert

 recommended that the children be allowed to relocate to California

 with mother and that she should have sole decision-making

 responsibility.

¶4    At father’s request, the magistrate appointed Beth Lieberman

 to perform a supplemental PRE. Ms. Lieberman recommended that


                                     1
 the children remain in Colorado with father with shared

 decision-making responsibilities with mother.

¶5    After a two-day evidentiary hearing, the magistrate ordered the

 children to remain in Colorado. He found that their best interests

 would be served if the parents exercised equal parenting time, with

 mutual decision-making responsibilities.

              II. The Magistrate Did Not Follow Spahmer

¶6    When, as here, a parent indicates before permanent orders

 that she intends to move, a district court has no statutory authority

 to order her to live in a specific location. See Spahmer v. Gullette,

 113 P.3d 158, 162 (Colo. 2005). Rather, “in the initial

 determination of parental responsibilities . . . a [district] court must

 accept the location in which each party intends to live, and allocate

 parental responsibilities, including parenting time, accordingly.” Id.

 at 164; see also § 14-10-124(1.5)(a)(VIII), C.R.S. 2017 (requiring the

 court to consider “[t]he physical proximity of the parties to each

 other as this relates to the practical considerations of parenting

 time”).

¶7    Mother contends that the magistrate failed to follow this

 principle by entering a parenting time order requiring her to remain


                                    2
 in Colorado. We review de novo whether the magistrate applied the

 proper legal standard, see In re Parental Responsibilities of Reese,

 227 P.3d 900, 902 (Colo. App. 2010), and agree.

¶8    Mother never wavered from her stated position that she

 intended to move to California after the divorce was completed. She

 informed the magistrate of her intention in a written notice of intent

 to relocate, at the temporary orders hearing, via two parental

 evaluators, in the joint trial management certificate, and at the

 permanent orders hearing. The magistrate confirmed that mother

 “very clearly” stated her wish to move to California and

 acknowledged that, under Spahmer, his parenting time orders must

 assume she would move.

¶9    But the magistrate did not then adhere to the Spahmer

 analysis and enter parenting time orders that assumed mother

 would live in California. Instead, the magistrate ordered the

 children to remain in Colorado and issued a year-round 5-2-2-5

 parenting time schedule, the terms of which required the parties to

 exchange the children on Monday, Wednesday, and every other

 Friday. This order is impractical to implement if mother lives in

 California. See, e.g., Jacob A. v. C.H., 127 Cal. Rptr. 3d 611, 617,


                                   3
  620 (Cal. Ct. App. 2011) (holding that a 5-2-2-5 parenting plan is

  not an option when the parents plan to live in different states).

  Moreover, the order implicitly requires mother to live in a specific

  location (Colorado). Cf. Spahmer, 113 P.3d at 162.

¶ 10   In Spahmer, the supreme court reversed a parenting time

  order that required the child’s mother to remain in Colorado, in

  close proximity to the child’s father, over her stated intent to

  relocate to Arizona. Id. at 164. The court noted that mother’s plans

  were unambiguous — she had testified that she wanted to live in

  Arizona to have family support and to pursue job opportunities and

  had premised her proposed parenting time schedule on her living in

  Arizona. Id. Accordingly, the district court should have allocated

  parenting time with the understanding that mother was intending

  to live in Arizona and father in Colorado. Id. By failing to do so, the

  court did not properly take into account the parties’ physical

  proximity to each other, thereby abusing its discretion and

  exceeding its statutory authority. Id.; see also

  § 14-10-124(1.5)(a)(VIII).

¶ 11   Similarly here, mother’s request was neither ambiguous nor

  uncertain. Mother stated her intention at least five times during


                                     4
  the proceedings and submitted a proposed parenting plan premised

  on her relocation. Additionally, she testified that she wanted to

  move because she had an “incredible” family support system in

  California; she grew up there, and the area was familiar and

  comfortable; she and the children could “get away from a lot of the

  negativity that has developed” in Colorado; and she and father

  would better be able to work together to be good parents. She also

  testified that she had “endless” job opportunities in California, had

  inquired about therapy for herself and the children, had “a

  pediatrician lined up,” knew which schools the children would

  attend, and had looked into sports programs for the children.

¶ 12   True, mother admitted that she would not move without her

  children if they were ordered to remain in Colorado with father.

  Father asserts that this admission makes mother’s request

  “ambiguous.” Considering the evidence showing the number of

  times mother stated her intention to move and her reasons for

  relocating, we disagree.

¶ 13   Father also asserts that when a parent admits he or she will

  not move without the children, Spahmer does not require the

  “[district] court to participate in ‘make believe’ and pretend that


                                     5
  [m]other will live in California when analyzing what the best

  interests of the children would look like if it were to place the

  children with [f]ather in Colorado.”

¶ 14   Yet this is exactly what Spahmer requires. Mother said in no

  uncertain terms that she wanted to move to California — that is the

  premise from which the legal analysis must begin. See Spahmer,

  113 P.3d at 164; see also Jacob A., 127 Cal. Rptr. 3d at 617 (stating

  that the court must treat a parent’s plan to move “as a serious one

  and must decide the custody issues based upon that premise”

  (quoting Ruisi v. Thieriot, 62 Cal. Rptr. 2d 766, 771 (Cal. Ct. App.

  1997))); In re Marriage of Hall, 241 P.3d 540, 543 (Colo. 2010)

  (holding that the potential relocation of a parent is a fundamental

  part of a parenting time determination). Mother’s admission that

  she would not “abandon” her children and move without them did

  not relieve the magistrate of his obligation to make the difficult

  decision to allocate parenting time with mother in California and

  father in Colorado. See In re Marriage of Ciesluk, 113 P.3d 135, 147

  (Colo. 2005) (“Child parenting disputes present agonizing decisions

  for [district] court judges.”).




                                     6
¶ 15   Accordingly, we reverse the parenting time order. On remand,

  the magistrate must accept the location in which each party intends

  to live (father in Colorado, mother in California) and allocate

  parenting time accordingly. The magistrate has no authority on

  remand to issue an order that effectively coerces mother into

  abandoning her plans to relocate to California. See Jacob A., 127

  Cal. Rptr. 3d at 620 (holding that the decision to move a child away

  from one of his or her parents “cannot be avoided by coercing the

  moving parent into staying or prohibiting her from moving”).

                III. Other Parenting Time Considerations

¶ 16   Because it may arise on remand, we briefly address mother’s

  contention that the magistrate ignored section 14-10-124(4) when

  fashioning parenting time.

¶ 17   A district court must allocate parenting time in accordance

  with the best interests of the child, applying the factors in section

  14-10-124(1.5)(a) and giving paramount consideration to the

  physical, mental, and emotional conditions and needs of the child.

  See Spahmer, 113 P.3d at 159, 162.




                                     7
¶ 18   However, if domestic violence is an issue in the case, the court

  must also consider the factors in section 14-10-124(4). See

  § 14-10-124(1.5)(a). As relevant here:

            (d) When the court finds by a preponderance of
            the evidence that one of the parties has
            committed child abuse or neglect, domestic
            violence, or sexual assault resulting in the
            conception of the child, the court shall
            consider, as the primary concern, the safety
            and well-being of the child and the abused
            party.

            (e) When the court finds by a preponderance of
            the evidence that one of the parties has
            committed child abuse or neglect, domestic
            violence, or sexual assault resulting in the
            conception of the child, in formulating or
            approving a parenting plan, the court shall
            consider conditions on parenting time that
            ensure the safety of the child and of the
            abused party.

  § 14-10-124(4).

¶ 19   The magistrate found that father had committed domestic

  violence and that a permanent protection order (PPO) had been

  issued against him. Hence, these sections are relevant to the

  magistrate’s parenting time consideration and he must consider

  them on remand. See id.




                                    8
                  IV. Decision-Making Responsibilities

¶ 20   Mother contends that the magistrate erred in ordering mutual

  decision-making responsibilities over her objection and in the

  absence of credible evidence that the parents could work together.

  We disagree.

¶ 21   An allocation of decision-making responsibility requires the

  district court to consider the nine parenting time factors in section

  14-10-124(1.5)(a) and three decision-making factors in paragraph

  (b) of the same subsection. This analysis occurs even in cases

  involving domestic violence: “The court shall consider the additional

  factors set forth in paragraphs (a) and (b) of subsection (1.5) of this

  section in light of any finding of child abuse or neglect, domestic

  violence, or sexual assault resulting in the conception of a child

  pursuant to this subsection (4).” § 14-10-124(4)(b).

¶ 22   When, as here, the court finds by a preponderance of the

  evidence that one of the parties has committed domestic violence,

             [i]t shall not be in the best interests of the
             child to allocate mutual decision-making
             responsibility over the objection of the other
             party . . . unless the court finds that there is
             credible evidence of the ability of the parties to
             make decisions cooperatively in the best



                                     9
             interest of the child in a manner that is safe
             for the abused party and the child.

  § 14-10-124(4)(a)(II)(A).

¶ 23   The allocation of decision-making responsibilities is within the

  sound discretion of the district court. See Reese, 227 P.3d at 902.

¶ 24   Relying on section 14-10-124(4)(a)(II)(A), the magistrate found

  that mother objected to mutual decision-making and, therefore, he

  presumed that such an order was not in the children’s best

  interests. Supporting her position on this issue, mother presented

  Exhibit M, a 614-page record of the parents’ communications on

  Talking Parents. Mother asserted that Exhibit M demonstrated that

  the parties had “little success” resolving child-related issues.

¶ 25   The magistrate found differently, and concluded that the

  evidence rebutted the presumption that mutual decision-making

  was not in the children’s best interests. He found that “[i]f you can

  get through that Exhibit M, the results are [the parties] were

  making decisions.” And he found that “[e]ven during this hotly

  contested case, the parties were able to make joint decisions like

  choosing a therapist, scheduling dental appointments, adjusting

  exchange times, discussing illnesses, [and] discussing activities,



                                    10
  [and] schedules.” He agreed with the statements of both PREs that

  the parties had the capacity to work together and make decisions in

  the children’s best interests.

¶ 26   These findings, which enjoy record support, reflect the

  magistrate’s consideration of the domestic violence issue and the

  children’s best interests. See § 14-10-124(1.5)(a), (4). We discern

  no abuse of discretion in the order for mutual decision-making

  responsibility. See Reese, 227 P.3d at 902.

¶ 27   Insofar as mother argues that the magistrate entered the order

  without concern for her safety, we disagree. See § 14-10-124(4)(d).

  When fashioning a parenting plan that ensures the safety of the

  child and the abused party, the district court may enter “[a]n order

  limiting contact between the parties to contact that the court deems

  is safe and that minimizes unnecessary communication between

  the parties.” § 14-10-124(4)(e)(I).

¶ 28   The crux of mother’s “safety” argument is that father harassed

  her and violated the PPO through Talking Parents, a website that

  allows parties to discuss matters relating to their children.

  However, at mother’s request, the parties agreed to stop using

  Talking Parents after permanent orders and start using Civil


                                    11
  Communicator, which she described as a “structured form of

  communication where messages are reviewed for appropriateness.”

¶ 29   In adopting this agreement and ordering the use of Civil

  Communicator, we may presume that the magistrate impliedly

  found that its use would alleviate mother’s concerns and provide a

  safe way for her to communicate with father regarding the children.

  See id.; see also In re Marriage of Nelson, 2012 COA 205, ¶ 41

  (upholding district court’s decision based on its implied findings,

  which were sufficient).

                              V. Exhibit T

¶ 30   Mother contends that the magistrate erred in reviewing an

  irrelevant exhibit, Exhibit T, when allocating parenting time.

  Exhibit T is a district court order from an unrelated domestic

  relations case that father submitted as “authority from another

  court in Adams County on [its] interpretation of the Spahmer case.”

  The mother in that case intended to move to Washington but stated

  that she would remain in Colorado if she could not move with one

  or both of the children. Relying on her statement, the Adams

  County court disregarded Spahmer and issued its parenting time

  orders by assuming that mother would remain in Colorado. Mother


                                    12
  argues that Exhibit T improperly influenced the magistrate’s

  decision here.

¶ 31   In light of our disposition that the magistrate must allocate

  parenting time assuming mother will move to California, this issue

  is moot. See Anderson v. Applewood Water Ass’n, 2016 COA 162,

  ¶ 31 (“A claim is moot when prospective relief is unnecessary to

  remedy an existing controversy or prevent its reoccurrence.”).

           VI. Mother’s Request for Appellate Attorney Fees

¶ 32   Asserting she is at a financial disadvantage, mother requests

  an award of her attorney fees under section 14-10-119, C.R.S.

  2017. She may raise this issue to the district court on remand.

  See In re Marriage of Rivera, 2013 COA 21, ¶ 25.

                            VII. Conclusion

¶ 33   That part of the judgment allocating parenting time is

  reversed, and the case is remanded with directions to enter a new

  parenting time plan in accordance with Spahmer. Because the

  magistrate’s order was entered more than one year ago, the

  magistrate should take additional evidence on the children’s

  current circumstances on remand. See In re Parental

  Responsibilities Concerning M.W., 2012 COA 162, ¶ 27. The existing


                                   13
  allocation of parental responsibilities shall remain in place pending

  new orders on remand. See id.

¶ 34   In all other respects, the judgment is affirmed.

       JUDGE WEBB and JUDGE RICHMAN concur.




                                   14
