Appeal Permanent Orders or Move to Modify Parenting? Recent Legislation Says You Can Do Both

Jaycey DeHoyos
Jaycey DeHoyos is an Associate Attorney at Griffiths Law. As a litigator, Jaycey advocates for clients in both the civil and domestic arenas. / Photo courtesy of Griffiths Law.

Jaycey DeHoyos
GRIFFITHS LAW

The opening sentence of the Colorado Supreme Court’s decision in In re: The Parental Responsibilities of W.C. acknowledges the universal truth that “[d]omestic cases, especially when children are involved, present unique challenges to the judicial system.” Indeed, domestic relations cases contain a myriad of complex issues made even more difficult considering the level of emotion involved, and that the issues are never quite finished. Family law cases do not end once, tied up neatly with a bow. The parties continue their lives, and the issues the court already determined, such as parenting time and child support, must often be re-examined when the parties’ life circumstances change by, say, a new job or a move to a new location. Recently, the Colorado Supreme Court determined that while changed circumstances might occur during an appeal, a trial court is nonetheless without jurisdiction to rule on any motion to modify until the appeal is adjudicated. The Colorado legislature promptly overturned that decision, and as it stands today, Colorado district courts retain continuous jurisdiction to hear motions to modify, even when an appeal has been filed. 

The complexity in domestic relations cases primarily arises from the issues being not limited to any one event that occurred. Rather, the issues and circumstances are ongoing. Unlike most other types of litigation, the parties to a dissolution will continue to be in contact, especially where there are children involved. Raising children creates infinite opportunities for the parties to continue engaging with each other. Continuous duties such as parenting time, decision-making, child support and maintenance are affected by the parties’ day-to-day behavior. Often, parties will resolve one issue, only to have the same issue arise again months later. It is not surprising that many of the simple life changes parents’ experience, be it relocating to a new area, remarrying or landing a new job, can cause the initial order or agreement to become ill-suited to the parties’ circumstances. Some changes are inevitable. For example, if parties create a parenting plan before a child is school-age, the parenting plan must be updated when the child begins kindergarten. When these life changes occur and the parties’ current orders no longer fit the family’s needs, the parties must return to the drawing board to reach a new solution. As such, motions to modify are common in domestic relations cases. 

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Of course, a party need not necessarily wait for changed circumstances to have a decision modified. A party can seek an immediate change by initiating an appeal. Historically, it was understood that once an appeal began, neither party could move to modify parenting time until the appeal was adjudicated. As most practitioners know, appealing a decision is a lengthy process. A party could freeze a case for approximately a year by filing an appeal, leaving the other party with no avenue for change until the appeal was resolved. For example, if one party prevailed in a parenting time relocation case, but was not satisfied with another aspect of the case, the party could appeal another part of the order and freeze the case. In this example, freezing the case prevents the other parent from modifying the relocation aspect of the case until after the resolution of the appeal, when the child has already acclimated to their new environment, firmly securing the relocation aspect of the case.

This issue was explicitly addressed in January 2021, when the Colorado Supreme Court decided the case In re the Parental Responsibilities of W.C. There, the court explicitly held that when a party appeals a decision, the lower court loses jurisdiction during the pendency of the appeal. In the opinion, authored by Chief Justice Boatright, the court noted several pragmatic concerns that justified the holding. Perhaps most obviously, allowing trial courts to modify orders during an appeal could lead to confusion. If the original order is ultimately upheld by the appellate but modified by the lower court while the appeal was being decided, not only is there plenty of room for confusion among the parties but the opinion by the appellate court might be moot upon issuance. These policy considerations regarding clarity and judicial economy led the court to determine that, absent an express reservation of jurisdiction in statute, lower courts are without the ability to hear matters on appeal. 

However, the Colorado legislature quickly intervened to change this outcome. In February 2021, just a month after the Colorado Supreme Court issued its opinion, Colorado legislators Lindsey Daughterty, Pete Lee and Bob Gardner introduced HB 21-1031 with the express goal of overturning the recent W.C. decision. Essentially, the bill sought to allow district courts to maintain jurisdiction to modify a decree regarding child support, maintenance, parenting time, decision making and the allocation of parental rights and responsibilities. It also allows district courts’ to retain jurisdiction to exercise temporary emergency jurisdiction under the Uniform Child-custody Jurisdiction and Enforcement Act. Ultimately, the bill was signed into law on May 7, 2021 with little debate. Colorado trial courts can now modify child support, maintenance, parenting time and decision making irrespective of whether there is an ongoing appeal.

This new law put an end to the practice of using an appeal to cement a parenting plan or support obligation in place temporarily. No longer can parties wield an appeal as a weapon to freeze a case in time. Now, attorneys need to prepare to write an appellate brief while defending or pursuing a motion to modify. As acknowledged by Chief Justice Boatright, attorneys should tread carefully and be aware of the potential for moot appellate opinions. 

Jaycey DeHoyos is an Associate Attorney at Griffiths Law. As a litigator, Jaycey advocates for clients in both the civil and domestic arenas. She prides herself on intimately knowing the facts of her cases.

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