Marriage of Alexander

20CA1985 Marr of Alexander 11-10-2021

COLORADO COURT OF APPEALS

Court of Appeals No. 20CA1985

Weld County District Court No. 20DR410

Honorable Kimberly B. Schutt, Judge

In re the Marriage of

Jeremy E. Alexander,

Appellant,

and

Malissa Marie Alexander, n/k/a Malissa Marie McAllister,

Appellee.

ORDER AFFIRMED

Division VII

Opinion by JUDGE PAWAR

Navarro and Grove, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced November 10, 2021

Kraemer, Golden & O’Brien, LLC, Michael M. O’Brien, Fort Collins, Colorado,

for Appellant

Sandra L. Wright, LLC, Sandra L. Wright, Arvada, Colorado, for Appellee

1

¶ 1 Jeremy E. Alexander (husband) appeals the permanent

protection order entered in connection with the dissolution of his

marriage to Malissa Marie Alexander, now known as Malissa Marie

McAllister (wife). We affirm.

I. Background

¶ 2 In 2020, wife petitioned to dissolve the parties’ five-year

marriage. A few months later, wife obtained a temporary protection

order against husband, alleging domestic abuse and stalking.

¶ 3 After a permanent protection order hearing, the district court

entered a permanent protection order against husband. The

district court found by a preponderance of the evidence that

husband had committed acts constituting grounds for entering a

protection order and that, unless restrained, he would continue to

commit acts designed to intimidate wife or retaliate against her.

II. Permanent Protection Order

¶ 4 Husband contends the district court abused its discretion by

entering a permanent protection order against him because there

was insufficient evidence to establish that he committed acts

constituting domestic abuse or stalking or that he would continue

to do so unless restrained. We disagree.

2

A. Legal Standards

¶ 5 The district court has authority to issue a protection order in a

dissolution case. See § 13-14-104.5(5), C.R.S. 2021; § 14-10-

108(3), C.R.S. 2021.

¶ 6 As relevant here, the court may enter a temporary or a

permanent protection order to prevent domestic abuse or stalking.

§ 13-14-104.5(1)(a)(II), (V). “Domestic abuse” includes “any act,

attempted act, or threatened act of violence, stalking, harassment,

or coercion that is committed . . . against another person . . . with

whom the actor is involved or has been involved in an intimate

relationship.” § 13-14-101(2), C.R.S. 2021.

¶ 7 “Stalking” includes any act, attempted act, or threatened act

described in section 18-3-602, C.R.S. 2021. § 13-14-101(3). Under

that statute, a person commits stalking if, as relevant here, the

person knowingly “[r]epeatedly follows, approaches, contacts, . . . or

makes any form of communication with another person [or] a

member of that person’s immediate family . . . in a manner that

would cause a reasonable person to suffer serious emotional

distress and does cause that person [or] a member of that person’s

immediate family . . . to suffer serious emotional distress.” § 18-3-

3

602(1)(c). “Immediate family” includes the person’s parent. § 18-3-

602(2)(c).

¶ 8 ‘“[C]oercion’ includes compelling a person by . . . intimidation

to engage in conduct from which the person has the right or

privilege to abstain, or to abstain from conduct in which the person

has a right or privilege to engage.” § 13-14-101(2). Harassment

includes following a person in a public place or initiating

communication with the person in a manner intended to harass the

person. § 18-9-111(1)(c), (e), C.R.S. 2021.

¶ 9 The court shall make a temporary protection order permanent

if it finds by a preponderance of the evidence that the restrained

party has committed acts constituting grounds to issue a protection

order “and that unless restrained will continue to commit such acts

or acts designed to intimidate or retaliate against the protected

person.” § 13-14-106(1)(a), C.R.S. 2021.

¶ 10 Although we review de novo the district court’s construction of

the protection order statutes, it is that court’s prerogative to weigh

each party’s credibility. In re Marriage of Fiffe, 140 P.3d 160, 161,

163 (Colo. App. 2005); see also Parocha v. Parocha, 2018 CO 41, ¶

16. Therefore, we will not disturb the district court’s conclusion

4

that grounds for granting a permanent protection order exist if that

conclusion is supported by the record. See Fiffe, 140 P.3d at 163.

B. Preservation

¶ 11 Wife argues that husband did not preserve his argument that

grounds for the temporary protection order were not established

because he failed to object to the entry of the temporary protection

order. We disagree. A temporary protection order may be issued ex

parte, § 13-14-104.5(4), as appears to have occurred here. As such,

the procedure does not afford the restrained party an opportunity to

object to the issuance of the temporary protection order. In any

event, husband challenges only the permanent protection order on

appeal, not the temporary order.

¶ 12 Further, the permanent protection order statute requires the

court to first find that the restrained person “has committed acts

constituting grounds for issuance of a civil protection order.” § 13-

14-106(1)(a); see also § 13-14-104.5(1)(a) (listing grounds for both

temporary and permanent civil protection orders). Husband has

preserved his argument that such grounds were not established at

the hearing.

5

C. Analysis

¶ 13 Husband argues that there was insufficient evidence to

establish that he committed domestic abuse or stalking or that he

would continue to do so absent a permanent protection order. We

conclude that the record supports the district court’s findings.

¶ 14 Wife testified to an incident in which husband pushed her into

her car with enough force to cause a dent in the car. She

introduced into evidence a photograph of the dented car as well.

Although husband testified that he did not push wife into the car

but rather “[s]he may have brushed up against” it, the district court

found wife’s account of the incident credible. See Parocha, ¶ 16;

Fiffe, 140 P.3d at 163. Wife also testified that husband threw his

phone against a wall and submitted a picture of the resulting hole

in the wall. Although husband argues that these incidents

happened long ago, wife testified that they are examples of

husband’s “fits of rage” and “flaring tempers” and that there were

“so many” other incidents by husband, including “screaming,

kicking things, [and] slamming doors” during the parties’

relationship.

6

¶ 15 Wife further testified that husband follows her around at her

son’s baseball games and stands behind her looking over her

shoulder while she uses her phone. Wife’s mother described a

specific incident where husband followed her and wife from the

baseball field, “got extremely angry,” and started pacing around and

yelling at them. Wife’s mother said that this was the last game she

attended without her husband, and wife testified that her parents

had become “so intimidated by [husband] that they won’t come to

their grandchild’s games anymore.”

¶ 16 Contrary to husband’s argument, wife’s mother did not testify

to only one incident of harassment or intimidation. In addition to

the baseball game incident, wife’s mother, who was a teacher,

testified that husband once called her while she was in her

classroom. Thinking that “something was really wrong,” wife’s

mother left her class to take the call. Husband asked her if she

knew where wife was, what she was doing, and who she was with.

He told her that he had obtained wife’s cell phone records, knew

she was having an affair, and was on his way to confront her.

Wife’s mother said she panicked because husband was very upset,

and she knew he carried a gun. She called wife right away because

7

she “was terrified that something bad was going to happen.” Wife’s

mother further testified that husband came to her house the

following month, asked her not to tell wife he was coming, and “was

adamant” that he and wife were not getting divorced. When wife’s

mother expressed her disagreement, husband “got really angry,”

jumped off the couch, and paced frantically around the room yelling

at her.

¶ 17 During her testimony, wife submitted a letter husband gave

her stating that he realized how “emotionally abusive” he was to her

and her child and that he was “disgusted and embarrassed” by his

behavior. Wife also testified that husband continues to contact her

daily, including three-to-five-page emails, and that he comes to her

home uninvited. As wife points out, husband’s Exhibit A (email

exchanges between the two of them) supports her testimony

concerning his excessive contacts with her and repeated efforts to

coerce her into dismissing the dissolution case. Wife testified that

although she repeatedly tells husband not to contact her and to

leave her alone, he continues to contact her. She provided one

example of a phone call during which he told her that he had

obtained three months of her text messages and that if she did not

8

change her mind about the divorce, he would share them with her

son and family.

¶ 18 The record supports the court’s findings and its entry of the

permanent protection order. Although husband provided

conflicting testimony and denied many of wife’s and her mother’s

allegations, it is the district court’s prerogative, and not ours, to

resolve such factual conflicts. See Parocha, ¶ 16; Fiffe, 140 P.3d at

163; see also M.D.C./Wood, Inc. v. Mortimer, 866 P.2d 1380, 1383-

84 (Colo. 1994) (noting trial court’s superior ability to determine

credibility and resolve conflicting evidence).

¶ 19 Husband asserts wife’s claim that he once gave her “a bloody

mouth” is not supported by the record because wife did not testify

about it. However, the incident is referenced in husband’s Exhibit

A, which is part of the record.

¶ 20 Husband further argues that even assuming his past conduct

justified the temporary protection order under section 13-14-

104.5(1)(a), it was not established at the hearing that, unless

further restrained, he would continue to engage in such conduct.

See § 13-14-106(1)(a). We are not persuaded. The permanent

protection order statute requires the court to find that, unless

9

restrained, husband will either continue to engage in the acts that

led to the temporary order or that he will engage in “acts designed

to intimidate or retaliate” against wife. Id. And, here, the court

found that husband would continue to commit acts designed to

intimidate or retaliate against wife and that a protection order was

the only way to stop him. This finding was supported by wife’s

evidence concerning husband’s threat to share her text messages

with her son and family; his continued, unwanted contacts with

her; and his contacts with her mother.

¶ 21 Last, we note that wife was adamant that she needed

protection from husband. She implored the court to enter a

permanent protection order, stating that she had done everything in

her power to try to stop husband’s behavior and had no recourse

left other than the courts. Further, wife testified that she “was

afraid” of husband’s behavior, and her mother described his

behavior as “terrif[ying].” See § 18-3-602(1)(c) (defining stalking as

repeatedly following, contacting, or communicating with a person or

a member of the person’s family in a manner that would cause a

reasonable person serious emotional distress and that does cause

10

the person or the member of the person’s immediate family serious

emotional distress).

¶ 22 In sum, based on the totality of the evidence presented at the

hearing, both from the witnesses and the written exhibits, we

conclude that the district court did not abuse its discretion by

entering the permanent protection order against husband. See §

13-14-104.5(1)(a)(II), (V); § 13-14-106(1)(a); cf. Parocha, ¶¶ 6, 16

(upholding county court’s finding that, in the context of the past

pattern of domestic abuse, the wife was credible in perceiving the

husband’s communications as harassing and threatening).

III. Appellate Attorney Fees

¶ 23 Wife requests her attorney fees and costs incurred on appeal

under C.A.R. 38(b), contending that husband’s appeal is frivolous.

We decline to award fees or double costs. Although husband has

not prevailed on appeal, we do not view his arguments as frivolous

so as to justify a fee award under the rule. See Mission Denver Co.

v. Pierson, 674 P.2d 363, 365 (Colo. 1984) (“Standards for

determining whether an appeal is frivolous should be directed

toward penalizing egregious conduct without deterring a lawyer

from vigorously asserting his client’s rights.”); In re Estate of

11

Shimizu, 2016 COA 163, ¶ 34 (noting that appellate fees are

“appropriate only in clear and unequivocal cases where no rational

argument is presented”).

¶ 24 Appellate costs will be assessed under C.A.R. 39(a)(2).

IV. Conclusion

¶ 25 The order is affirmed.

JUDGE NAVARRO and JUDGE GROVE concur.