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The Colorado Court of Appeals unanimously affirmed an order and remanded a post-dissolution of marriage case.
According to the Colorado Court of Appeals opinion, Eric Bochner and Melinda Bochner’s 16-year marriage was dissolved in 2020. When entering the decree, the district court adopted the parties’ stipulated parenting plan regarding their three children.
In the stipulation, the parties agreed they would both remain in individual therapy, the children and Eric Bochner would continue in reunification therapy, he would have sole decision-making responsibility over the children’s individual and reunification therapy and they would keep working with a parenting coordinator/decision-maker who was given arbitration authority to resolve disputes involving reunification therapy.
In June 2021, the PCDM found the therapeutic plan wasn’t being followed. Due to this, the PCDM directed the children to return to individual and reunification therapy. The PCDM required the children’s individual therapist and reunification therapist to “speak with one another regularly to coordinate care for the family members” and “confer with each parent’s individual therapist as needed.” The magistrate adopted the PCDM’s decision.
Melinda Bochner filed a motion to modify the PCDM’s decision under Colorado Revised Statute 14-10-128.3(4)(a). Melinda Bochner asserted 12-245-203.5(2)(a)(I) barred the PCDM from compelling the children, over the children’s objections, to participate in individual and reunification therapy.
Melinda Bochner also asserted the PCDM’s decision violated the children’s psychotherapist-patient privilege given that their individual therapist needed to communicate regularly with the parents’ therapists and reunification therapist. In the alternative, Melinda Bochner asked for an evidentiary hearing.
Eric Bochner, in response, alleged Melinda Bochner was engaging in a pattern of parental alienation and interference in his relationship with the children. Eric Bochner argued against Melinda Bochner’s interpretation of 12-245-203.5(2)(a)(I), saying it was erroneous and contrary to legislative intent. He also argued the parents had consented to the release of the children’s therapeutic information amongst the therapists and the PCDM. Eric Bochner indicated that if the PCDM’s decision was “substantially upheld,” he was entitled to his attorney fees and costs under 14-10-128.3(4)(b).
After the filing of Melinda Bochner’s reply, the magistrate held a 15-minute status conference that only the parents’ counsel appeared at. The magistrate heard oral argument, allowed the parents to submit supplemental briefs and said a written order would be issued.
In October 2021, after reviewing the supplemental briefs, the magistrate granted Melinda Bochner’s 14-10-128.3(4)(a) motion. Noting the motion involved purely legal questions, the magistrate conducted what he referred to as a “de novo review” of the PCDM’s decision. The magistrate sided with Melinda Bochner’s interpretation of section 12-245-203.5(2)(a)(I). The magistrate modified the PCDM’s decision to allow the children to choose whether to take part in therapy, as well as to assert their psychotherapist-patient privilege.
Eric Bochner, proceeding pro se, petitioned the district court to review the magistrate’s order. According to the appeals court opinion, he maintained the magistrate erred by violating his due process rights by overriding his parenting decisions; failing to distinguish between the legal concepts of “privilege” and “confidentiality;” declining to deny Melinda Bochner’s 14-10-128.3(4)(a) motion as untimely; and conducting a “de novo review” instead of a “de novo hearing.” Eric Bochner asked the court to “substantially uphold” the PCDM’s decision and award him attorney fees and costs under 14-10-128.3(4)(b).
In January 2022, the district court rejected the magistrate’s order and reinstated the PCDM’s decision. The court reasoned, the magistrate errantly concluded section 12-245-203.5 required the children’s approval for court-ordered therapy. It mentioned, however, that Melinda Bochner “might be correct that compelling therapy no longer is in the children’s best interests, and she may wish to assert the legal premise that [they] may withhold their therapist’s ability to share information.”
Eric Bochner moved to amend the district court’s order under Colorado Rule of Civil Procedure 59(a)(4), arguing the court overlooked his request for attorney fees and costs under 14-10-128.3(4)(b). The district court denied Eric Bochner’s motion and the father filed an appeal.
The Colorado Court of Appeals wrote its review required the court to consider what qualifies as a de novo hearing when a court is asked to review a decision of a court-appointed decision-maker.
The appeals court concluded the magistrate didn’t conduct a de novo hearing, and the statute only authorizes an award of attorney fees for a de novo hearing, the appeals court affirmed the district court’s denial of Eric Bochner’s request for attorney fees. The appeals court remanded the case to determine Melinda Bochner’s request for appellate attorney fees under 14-10-119.