Opinion
23CA0843
05-23-2024
In re the Parental Responsibilities Concerning M.M., a Child, and Concerning Matthew Musclow, Appellant, and Soraya Chiha, Appellee.
Matthew Musclow, Pro Se Soraya Chiha, Pro Se
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Montezuma County District Court No. 21DR121 Honorable William Y. Furse, Judge
ORDER REVERSED AND CASE REMANDED WITH DIRECTIONS
Matthew Musclow, Pro Se
Soraya Chiha, Pro Se
OPINION
PAWAR, JUDGE
¶ 1 Matthew Musclow (father) appeals the district court's order summarily denying his motions to modify parental responsibilities and parenting time. We reverse and remand the case for further proceedings.
I. Background
¶ 2 Father and Soraya Chiha (mother), never married, have one child, M.M. In February 2021, the parties entered into a parenting plan allocating parental responsibilities for then-two-year-old M.M., which was adopted as an order of the court. The parenting plan designated mother, who lives in Phoenix, Arizona, as M.M.'s primary residential parent. Father, who resides in Dolores, Colorado, received ten total overnights of parenting time during the first and third weeks of each month. The parties agreed to share decision-making responsibilities.
¶ 3 In early 2023, father moved to restrict mother's parenting time under section 14-10-129(4), C.R.S. 2023, alleging that M.M.'s maternal grandmother, who frequently cared for the child during mother's parenting time, had been indicted on numerous charges arising from the operation of a prostitution ring. The district court immediately denied father's request to restrict mother's parenting time but indicated that it would treat his filing as a motion to modify parenting time. Father then filed an amended motion to modify parenting time containing additional information and allegations.
¶ 4 In his motions, father requested supervision of mother's parenting time and that M.M. have no contact with the maternal grandmother. Though father did not propose a specific modified parenting time schedule, he proposed that M.M. attend school in Colorado. Given the distance between the parties, this would mean father would become M.M.'s primary residential parent. Father also requested sole decision-making responsibility for M.M.
¶ 5 The district court set a hearing on father's motions to modify. But shortly thereafter, it summarily denied father's motions along with mother's competing requests to modify parenting time and vacated the hearing as moot.
¶ 6 Father appeals, contending the district court erred by refusing to hold a hearing on his motions to modify parenting time. We agree.
II. Father's Motions to Modify Are Not Time Barred
¶ 7 We first address mother's contention that we should reject father's claims because his motions to modify were otherwise barred under section 14-10-129(1.5).
¶ 8 The filing of a motion for a substantial modification of parenting time that seeks to change the party with whom the child resides a majority of the time triggers a bar on a subsequent motion unless certain exceptions apply. § 14-10-129(1.5). Generally, no subsequent motion may be filed within two years after the disposition of the prior motion. See id.
¶ 9 Mother asserts that father's motions were properly denied because, less than two years earlier, he had filed a motion to modify parenting time that the district court resolved. Though mother is correct that the present motion to modify was filed less than two years later, in our view the resolution of father's previous motion did not start the clock on the two-year limit under section 14-10129(1.5) because the motion did not seek to change the party with whom M.M. resides the majority of the time from mother to father. Father's prior motion sought to modify the parenting time schedule so that the parties would alternate two-week blocks of parenting time, meaning that the parties would equally share parenting time, as opposed to father's original allocation of ten overnights per month. But it would not have replaced mother with father. The governing phrase in section 14-10-129(1.5) - "changes the party" - contemplates a substitution of the party with whom the child resides a majority of the time and does not apply to a modification that results in an equal split of parenting time. See In re Marriage of Newell, 192 P.3d 529, 533 (Colo.App. 2008). Thus, father's present motion is not barred by section 14-10-129(1.5).
III. Father is Entitled to a Hearing
A. Governing Law and Standard of Review
¶ 10 To receive a hearing on a motion to modify parental responsibilities, the moving party must establish adequate cause that the modification is in the child's best interests. See § 14-10132, C.R.S. 2023; In re Marriage of Jones, 703 P.2d 1328, 1329 (Colo.App. 1985) (motion properly denied when father failed to allege modification was in the best interests of the child); In re Marriage of Davis, 43 Colo.App. 302, 304, 602 P.2d 904, 905 (1979). The threshold for adequate cause is not high. For instance, it can be met by showing a general lack of cooperation between the parents. In Interest of D.R.V-A., 976 P.2d 881, 883 (Colo.App. 1999).
¶ 11 The motion must also comply with C.R.C.P. 7(b)(1) - it must identify with particularity the grounds on which the motion is based. See In re Marriage of Wollert, 2020 CO 47, ¶ 26.
¶ 12 We review a district court's summary denial of a motion to modify parental responsibilities for an abuse of discretion. See In re Marriage of Barker, 251 P.3d 591, 592 (Colo.App. 2010); In re Marriage of Hatton, 160 P.3d 326, 330 (Colo.App. 2007). As relevant here, an abuse of discretion occurs when the district court misapplies the law. In re Marriage of Herold, 2021 COA 16, ¶ 5.
B. The District Court Abused its Discretion
¶ 13 The district court denied father's motions to modify parenting time based on its "review of the record and the facts alleged since the prior decree," finding that "[f]ather has not met his burden as required by C.R.S. § 14-10-129(2) . . . to demonstrate [that] [the] child's present environment endangers his physical health or significantly impairs his emotional development and [that] the harm likely to be caused by a change of environment is outweighed by the advantage of the change to the child." In maintaining the existing parenting time and decision-making orders, the district court likewise stated that it was "unable to find the child's best interests would be served through the modifications requested by either party."
¶ 14 The district court subjected father's motions to the burden he would have borne at a hearing. This was a misapplication of the law. To warrant a hearing, his motions needed to contain only sufficiently particular allegations to show adequate cause for modification. See Wollert, ¶ 39. And our review of the record reveals that his motions did just that.
¶ 15 Father's verified motions contain allegations that he had recently discovered that M.M.'s maternal grandmother, who provided substantial care for M.M. during mother's parenting time, had been charged with multiple felonies, including receiving the earnings of a prostitute. Father further alleged that as part of those felonies, the maternal grandmother had participated in running a house of prostitution, and father attached court documents from Arizona indicating that the maternal grandmother had recently pleaded guilty to at least some criminal charges. In addition, father alleged that during a video call with M.M. when the child was in the care of his maternal grandmother, father had witnessed a naked man in the background.
¶ 16 The allegations in father's motions extended beyond the conduct of the maternal grandmother and included various claims that mother was failing to cooperate in decision-making and parenting time exchanges, negatively impacting M.M. Father also alleged a change in his own circumstances - that he had recently sold his business - which would allow him to spend more time with M.M. - including additional time when mother was otherwise placing M.M. in child care - given that father also owned a house in Arizona.
¶ 17 These allegations are sufficient to establish adequate cause for a hearing under section 14-10-132. Father's allegations that the child was frequently in the care of an individual involved in the running of a prostitution ring were adequate to entitle him to present evidence at a hearing as to whether such circumstances justify an order substantially changing parenting time under section 14-10-129(2). Moreover, even short of an order substantially altering parenting time, father alleged that contact with the maternal grandmother was not in the child's best interests and sought an order limiting M.M.'s contact with her during mother's parenting time. Likewise, father cited a general lack of cooperation between parents and an inability to follow the existing parenting time and decision-making orders, which also demonstrated adequate cause to hold a hearing on whether the current parenting plan was in M.M.'s best interests. See D.R.V-A., 976 P.2d at 883.
¶ 18 Accordingly, the district court erred by failing to provide father with a hearing under section 14-10-132. See In re Marriage of Finer, 893 P.2d 1381, 1388 (Colo.App. 1995) (noting that determining children's best interests "cannot be accomplished without a hearing"); see also D.R.V-A., 976 P.2d at 883-84 (concluding that the district court erred by continuing to deny a hearing on parent's requests to modify parenting time); In re Marriage of Sepmeier, 782 P.2d 876, 877-78 (Colo.App. 1989) (remanding for a hearing on parent's request to modify restricted parenting time visits).
¶ 19 Because we conclude that the district court erred by incorrectly applying the law, we do not consider father's due process claim or other contentions.
¶ 20 In remanding this case for a hearing under section 14-10-132, however, we express no opinion as to the merits of father's motions.
IV. Disposition
¶ 21 The order denying father's motions to modify parental responsibility and parenting time is reversed, and the case is remanded for further proceedings consistent with this opinion.
JUDGE NAVARRO and JUDGE JOHNSON concur.