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In re Marriage of Vanderborgh

Court of Appeals of Colorado, Third Division

February 25, 2016

In re the Marriage of Craig Allen Vanderborgh Appellant,
v.
Heidi Krauth, Appellee.

Boulder County District Court No. 10DR213 Honorable Bruce Langer, Judge

Wedgle Epstein, P.C., Steven B. Epstein, Denver, Colorado; Cox Baker & Page, LLC, Anne Whalen Gill, Castle Rock, Colorado, for Appellant

Christopher C. Jeffers, Boulder, Colorado, for Appellee

OPINION

BERGER, JUDGE

¶1 In this post-dissolution of marriage parenting time dispute between Craig Allen Vanderborgh (father) and Heidi Krauth (mother), father appeals the district court's order denying him a de novo hearing concerning a parenting time ruling by the arbitrator appointed under section 14-10-128.5, C.R.S. 2015. We affirm and remand the case to the district court to decide mother's request for appellate attorney fees.

I. Background

¶2 The parties' marriage ended in 2010. They agreed to a parenting plan for their minor child whereby father would exercise two overnight visits a week and the parties would work toward increasing his overnight visits to five in every two-week period. They further agreed to resolve any future parenting time disputes through mediation and arbitration and asked the court to appoint an arbitrator under section 14-10-128.5. The district court approved and adopted their plan, finding that it was in the child's best interests. It also appointed the arbitrator they had requested.

¶3 In 2011, the parties disagreed on expanding father's parenting time. The arbitrator issued a decision granting father some, but not all, of the additional time requested, and father moved for a de novo hearing, arguing that his time should be further increased. The district court confirmed the arbitrator's ruling and denied father's request for a de novo hearing. Father did not appeal that order. At the parties' request, the court also appointed a new arbitrator.

¶4 Father then agreed to reduce his parenting time to six overnight visits a month for an unspecified period of time, and, in January 2014, the court adopted the parties' stipulation.

¶5 Father later sought equal parenting time for the summer of 2014. Mother objected to a modification of the parenting time. The arbitrator decided that the then-current parenting schedule should continue and denied father's request. The district court confirmed this arbitration award and no appeal was taken from that order.

¶6 A short time later, father again attempted, over mother's objection, to increase his parenting time for the 2014-15 school year. The arbitrator again decided that the then-current schedule should continue. Father moved for a de novo hearing, under section 14-10-128.5(2), on his motion to modify the parenting time schedule. The court denied his request for a de novo hearing and confirmed the arbitrator's decision. Father now appeals.

II. A De Novo Hearing Is Not Mandatory Under the Statute

¶7 Father first contends that the district court erred by denying him a de novo hearing on his request for equal parenting time during the school year because he claims that section 14-10-128.5(2) mandates such a hearing whenever a party requests one.

¶8 Statutory interpretation is a question of law that we review de novo. Wolf Ranch, LLC. v. City of Colorado Springs, 220 P.3d 559, 563 (Colo. 2009). When interpreting a statute, we must ascertain and effectuate the intent of the General Assembly. People v. Diaz, 2015 CO 28, ¶12. If the statutory language is clear and unambiguous, no further statutory analysis is required, and we apply the statute as written. Romero v. People, 179 P.3d 984, 986 (Colo. 2007). We construe the statute as a whole, in an effort to give consistent, harmonious, and sensible effect to all its parts, and we read the words and phrases in context and construe them according to the rules of grammar and common usage. § 2-4-101, C.R.S. 2015; Davison v. Indus. Claim Appeals Office, 84 P.3d 1023, 1036 (Colo. 2004). "We do not add words to the statute or subtract words from it." Turbyne v. People, 151 P.3d 563, 567 (Colo. 2007).

¶9 If the statutory language is susceptible of more than one reasonable interpretation, it is ambiguous, and only then will we apply interpretive aids to ascertain the General Assembly's intent. Diaz, ¶13. "The plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole." Id. (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997)).

¶10 Most Colorado arbitration awards are challengeable only under the Colorado Uniform Arbitration Act (CUAA), sections 13-22-201 to -230, C.R.S. 2015. An arbitration award may be vacated under the CUAA only if one of the five statutory grounds for vacatur is established. § 13-22-223, C.R.S. 2015; see also Byerly v. Kirkpatrick Pettis Smith Polian, Inc., 996 P.2d ...


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