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In re Marriage of Bochner - Parental Coordinator Decision Maker Motion For De Novo Hearings

Father hugging his daughterThe law is comprised of both statute and caselaw. Statute sets forth the basic law as created by the legislature. However, statutes are general in nature and it is not always clear how they apply to a specific set of facts. Appellate courts interpret the statutes as they apply to a specific set of facts where a party does not agree with a trial court decision. We can learn a great deal about the law by reviewing appellate decisions.

As a prelude to the case, a Parental Coordinator Decision Maker (PCDM) is a person who aids parents in making important decisions about their children when there is conflict between parents. A parent can take a PCDM decision to court for resolution if a parent does not agree with it. C.R.S. § 14-10-128.3(4)(a), "A party may file a motion with the court requesting that a decision of the decision-maker be modified by the court pursuant to a de novo hearing. A motion for a de novo hearing shall be filed no later than thirty-five days after the date the decision is issued pursuant to subsection (3) of this section."

As for court remedies, C.R.S. § 14-10-128.3(4)(b) goes on to state that, "If a court, in its discretion based on the pleadings filed, grants a party's request for a de novo hearing to modify the decision of the decision-maker and the court substantially upholds the decision of the decision-maker, the party that requested the de novo hearing shall pay the fees and costs of the other party and shall pay the fees and costs incurred by the decision-maker in connection with the request for de novo hearing, unless the court finds that it would be manifestly unjust.

In In re Marriage of Bochner, the Colorado Court of Appeals considered the issue of a PCDM de novo hearing. 2023 COA 63 (July 6, 2023). In Bochner, the Parties agreed to the appointment of a Parenting Coordinator Decision-Maker. The PCDM decided that the children should attend therapy and the decision was made an order of the court. Mother requested a de novo hearing based on her assertion that the children, who were older than age 12, did not desire to participate in therapy. The Magistrate granted Mother's motion without holding a hearing. Father petitioned for review to the District Court requesting attorney's fees. The District Court reversed the Magistrate's decision without deciding Father's request for attorney's fees.

Father appealed and the Court of Appeals affirmed the District Court. The Court of Appeals stated that if a party who requested a de novo hearing receives a decision that upholds the original decision, the requesting party must pay the other party's attorney's fees. However, the Court found that by statute a de novo hearing contemplates an evidentiary hearing, which did not happen. Thus attorney's fees were not applicable in that situation.

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