Marriage of Pittman

23CA1835 Marriage of Pittman 03-06-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1835
Boulder County District Court No. 13DR30319
Honorable Thomas F. Mulvahill, Judge

In re the Marriage of

George Stephen Pittman,

Appellee,

and

Judi Beth Pittman n/k/a Judi Beth Atwood,

Appellant.

ORDER REVERSED AND CASE
REMANDED WITH DIRECTIONS

Division I
Opinion by JUDGE YUN
J. Jones and Brown, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced March 6, 2025

Aitken Law, LLC, Sharlene J. Aitken, Denver, Colorado, for Appellee

Wells Family Law, P.C., Chelsea Augelli, Denver, Colorado, for Appellant
¶1 In this post-dissolution of marriage proceeding involving Judi

Beth Pittman, now known as Judi Beth Atwood (mother), and

George Stephen Pittman (father), mother appeals from the district

court’s adoption of the magistrate’s order that resolved (1) her June

2022 motion to modify parenting time and decision-making and

(2) the parties’ respective motions to enforce the court’s parental

responsibilities orders. Specifically, mother challenges the portion

of the magistrate’s order providing that she “cannot grieve any

professional unless granted Court permission to do so.” We reverse

the portion of the order restricting mother’s ability to grieve

professionals and remand the case for further proceedings.

I. Background

¶2 The history of the proceedings between the parties is lengthy

and acrimonious. As part of the 2014 dissolution decree, the

parties agreed that mother would be the primary residential parent

for their two children, while father would have regular parenting

time. The parties also agreed to exercise joint decision-making.

¶3 However, in 2016, father was awarded sole decision-making

responsibility for all medical and educational decisions, and

mother’s parenting time was restricted to supervised visits based on

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a finding that the children were in imminent emotional danger while

in her care. Specifically, the district court found that mother had

repeatedly and falsely accused father of abusing the children,

causing harm to the children through unnecessary interactions

with law enforcement and an ongoing effort to portray father as an

abuser.

¶4 Subsequent orders maintained the restriction on mother’s

parenting time. In doing so, the district court found that mother

had difficulty working with professionals engaged in the case given

her animosity toward father:

[Mother’s] deteriorating relationships have
included prior [parenting
coordinator/decision-makers (PC/DMs)], the
children’s former therapist, teachers, school
administrators, etc. She has filed grievances
or complaints against the children’s therapist,
the initial [parental responsibilities evaluator
(PRE)] in this case, school personnel with the
school board, and against police officers with
internal affairs. By email communication, she
threatened to file a DORA complaint against
[the second PRE].

A later stipulation, which the court adopted, prohibited the parties

from sending “excessive or harassing communication [to] any

professional providing care for the minor children.”

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¶5 In June 2022, mother filed a motion to lift the restriction on

her parenting time and reestablish joint decision-making. She

concurrently filed a motion to enforce parenting time, alleging that

father had violated the current orders in various ways. Father then

filed his own motion to enforce the court’s orders and sought,

among other sanctions, to hold mother in contempt of court for

sending excessive and harassing communications to professionals

providing care for the children.

¶6 A magistrate appointed a child and family investigator (CFI) to

investigate and make recommendations as to the issues raised by

both parties. The CFI’s report, which was admitted into evidence at

the subsequent hearing on the parties’ motions, summarized the

involvement of numerous professionals in the case, including six

PC/DMs, multiple parenting time supervisors, and two PREs.

¶7 The CFI’s report further explained that mother had a history of

threatening and intimidating the various professionals who were

involved in the case or were providing support to the family. For

example, the report stated that mother had accused the second PRE

of accepting bribes, had accused one of the PC/DMs of having an

affair with father, and had caused another PC/DM to withdraw due

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to “numerous deleterious statements” that mother made towards

the PC/DM.

¶8 The CFI’s report explained that mother’s intimidation of

professionals extended to the children’s treatment providers,

including threats to grieve and sue the children’s original therapist.

Yet mother had failed to understand how her actions could interfere

with the children’s treatment. According to the CFI, mother’s

conduct towards the children’s treatment providers continued to

the present, as mother had recently filed an unsubstantiated

grievance against the youngest child’s therapist, Ann Norris. At the

hearing, Ms. Norris testified that mother had also sent her

numerous threatening emails, including an email suggesting that

mother had retained a “federal attorney” to take legal action against

her. Ms. Norris explained that she resigned as the child’s therapist

because mother’s actions were affecting the child’s well-being.

¶9 Therefore, the CFI recommended “an order [under] which

[m]other may not grieve any professional in the case — either who

has in the past or is currently or will in the future have a role in

this case — without [m]other first getting permission from this

Court to do so.”

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¶ 10 The magistrate found mother in contempt of court and

maintained the restriction on her parenting time. The magistrate

also ordered that “[m]other cannot grieve any professional unless

granted Court permission to do so.” After mother petitioned for

review, the district court adopted the magistrate’s order.

II. Review of Magistrate Orders

¶ 11 Our review of a district court’s order adopting a magistrate’s

decision is effectively a second layer of appellate review. In re

Marriage of Sheehan, 2022 COA 29, ¶ 22. We must accept the

magistrate’s factual findings unless they are clearly erroneous,

meaning they have no support in the record. In re Marriage of

Young, 2021 COA 96, ¶ 8. However, we review de novo questions of

law. See Sheehan, ¶ 22; Young, ¶¶ 8-9.

¶ 12 Because we act as a second layer of appellate review, we

decline to address mother’s contention that the reviewing district

court judge failed to make sufficient findings of fact and

conclusions of law when adopting the magistrate’s order.1 Instead,

1 In its order adopting the magistrate’s ruling, the district court

stated that mother “continues to harm her children by scaring away
all of their treatment providers” and that “[r]equiring prior court
approval prior to [mother] grieving a professional will provide a layer

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our review focuses on the magistrate’s order, and we give no

deference to the district court’s determinations.

III. Prior Restraint on Mother’s Speech

¶ 13 Mother asserts that the portion of the magistrate’s order

barring her from grieving “any professional” without first obtaining

court permission violates her right to free speech under both the

United States and Colorado Constitutions. Because that provision

of the magistrate’s order is not supported by sufficient findings

under In re Marriage of Newell, 192 P.3d 529, 535-36 (Colo. App.

2008), and is overly restrictive, we conclude that further

proceedings are required. Since we remand for further proceedings

regarding mother’s free speech argument, we need not address her

argument regarding her fundamental right to make decisions

of protection for the children so their treatment providers may
continue to assist them without fear of irrational, baseless
grievances from [mother].” However, the magistrate did not make
these findings, and it is unclear whether the record supports them.
See In re Marriage of Stephens, 2022 COA 29, ¶ 22 (“A district court
reviewing a magistrate’s decision under C.R.M. 7(a) may not alter
the magistrate’s factual findings unless they are clearly
erroneous.”). Because we act as a second layer of appellate review
of the magistrate’s order, we decline to consider these findings that
appear to differ from the magistrate’s.

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concerning the care, custody, and control of the children under

Troxel v. Granville, 530 U.S. 57 (2000).

A. Applicable Law

¶ 14 Freedom of speech is protected under the First Amendment to

the United States Constitution and article II, section 10 of the

Colorado Constitution. Although the Colorado Constitution

provides greater free speech protection than the First Amendment,

where, as here, neither party provides us with a framework different

from a First Amendment analysis, our analysis may proceed solely

under the First Amendment. See Newell, 192 P.3d at 535.

¶ 15 “Under the First Amendment, the government may regulate

the content of constitutionally protected speech in order to promote

a compelling interest as long as it chooses the least restrictive

means to further that interest.” Id. In the context of an order

allocating or modifying parental responsibilities, a “showing that

[the restricted parent’s] exercise of [their] free speech rights

threatened the child[ren] with physical or emotional harm, or had

actually caused such harm” may constitute a compelling state

interest sufficient to justify a restriction on a parent’s First

Amendment free speech rights. Id. at 536.

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¶ 16 However, “[t]his is a demanding standard when properly

applied.” Id. “[N]ot every type or degree of actual or threatened

physical or emotional harm will suffice; to constitute a compelling

state interest the harm must be ‘substantial.’” Id. (quoting In re

Marriage of McSoud, 131 P.3d 1208, 1216 (Colo. App. 2006)).

Moreover, “harm to the child . . . should not be simply assumed or

surmised; it must be demonstrated in detail.” Id. (quoting McSoud,

131 P.3d at 1216).

¶ 17 Finally, “[i]n order to survive strict scrutiny, any restriction on

[a parent’s] speech must be the least restrictive alternative that

would achieve the legitimate goal of avoiding actual or threatened

substantial harm to the child[ren].” Id. An order that “‘effectively

suppresses a large amount of speech . . .’ is ‘unacceptable if less

restrictive alternatives would be at least as effective.’” Id. (quoting

Reno v. Am. Civ. Liberties Union, 521 U.S. 844, 874 (1997)).

¶ 18 “First Amendment questions of ‘constitutional fact’ require de

novo appellate review.” Id. at 535 (quoting Kuhn v. Tribune-

Republican Publ’g Co., 637 P.2d 315, 318 (Colo. 1981)).

Accordingly, we must independently review the record to ensure

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that the order issued by the magistrate and adopted by the district

court does not intrude on mother’s right to free speech. Id.

B. Discussion

¶ 19 We agree with mother that the magistrate did not make

sufficient findings required by Newell, 192 P.3d at 535-36, before

restricting her speech by prohibiting her from grieving professionals

without court permission.

¶ 20 In holding mother in contempt, the magistrate found that she

had filed an unfounded professional grievance against Ms. Norris

and had sent threatening emails to Ms. Norris and one of the

previous parenting time supervisors. Moreover, the magistrate

found that restoring joint decision-making was not feasible due to

mother’s “behavior towards [father] and other professionals involved

in [the children’s] care.” And in ordering that mother’s parenting

time remain supervised, the magistrate found that her “insistence

on her beliefs and resultant conduct toward the [children] continues

to endanger them.”

¶ 21 We conclude that the magistrate’s findings are insufficient to

justify the restriction on mother’s speech given the demanding

standard imposed by Newell, 192 P.3d at 536. Specifically, the

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restriction preventing mother from grieving professionals without

court permission was not supported by sufficient findings

demonstrating that her grievances would threaten the children with

substantial physical or emotional harm, or had actually caused

such harm. See id.

¶ 22 Father asks us to imply findings in support of the restriction

on mother’s speech based on the record. While we acknowledge

mother’s lengthy history of intimidating the professionals involved

with the family, we decline to make our own findings in support of

the restriction on mother’s speech given that the missing findings

involve questions of “constitutional fact.” Id. at 535.

¶ 23 On remand, the district court should direct the magistrate to

reconsider whether a restriction on mother’s right to grieve

professionals is constitutionally warranted. If any restriction is

deemed necessary, the magistrate must make additional, discrete

findings regarding the “type and degree of harm that the child[ren]

ha[ve] suffered or may suffer because of the speech that is to be

restricted.” Id. The magistrate should also identify the specific

evidence relied upon so that the reviewing court may determine

whether the harm justifying the restriction has been “demonstrated

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in detail.” Id. The magistrate may, at her discretion, schedule

additional hearings if additional evidence is needed. Id.

¶ 24 Moreover, we agree with mother that the order preventing her

from grieving any professional without court permission does not

represent the “least restrictive alternative that would achieve the

legitimate goal of avoiding actual or threatened substantial harm to

the child[ren].” Id. at 536. Indeed, a plain reading of the restriction

even prevents mother from grieving her own medical doctor,

therapist, or lawyer, who are professionals that do not otherwise

treat the children or assist the parties in implementing the

parenting orders. And while father suggests that the present order,

in fact, allows mother to grieve her own professionals, we do not see

any such exception in the text of either the magistrate’s order or the

reviewing district court judge’s order.

¶ 25 Therefore, the district court should direct the magistrate to

consider less restrictive alternative measures, and mother’s speech

should be restricted only to the extent necessary to protect the

children. See id. at 536-37. The court should direct the magistrate

to describe any alternative measures that were considered and, if a

restriction on mother’s speech is deemed necessary, state the

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reasons why the alternative measures were rejected. Id. Any

restriction that is imposed should be as narrowly tailored as

possible. Id.

¶ 26 Because we reverse and remand the portion of the order

restricting mother from grieving professionals for the magistrate’s

reconsideration and further findings, we decline to address mother’s

additional contentions that the restriction was otherwise

impermissibly vague and overbroad.

IV. Separation of Powers

¶ 27 We next address mother’s separation of powers argument

because the issue is likely to arise on remand. Mother specifically

argues that the magistrate could not issue an order requiring her to

obtain court permission before filing professional grievances

because such an order violates Article 3 of the Colorado

Constitution by interfering with the power of the Department of

Regulatory Agencies (DORA), which is part of the executive branch,

to regulate professionals. See § 24-1-122, C.R.S. 2024. We are not

persuaded.

¶ 28 Article 3 of the Colorado Constitution provides that “no person

or collection of persons charged with the exercise of powers properly

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belonging to one [branch of the state government] shall exercise any

power properly belonging to either of the others.” “The province of

the Executive Branch is to see that the laws are faithfully executed,”

and “in order to be separate from the other two branches of

government, [the Executive Branch] must function independently

within its sphere of operation.” McDonnell v. Juv. Ct., 864 P.2d 565,

567 (Colo. 1993). Therefore, courts generally do “not have the right

to interfere with the Executive Branch of government in

performance of its statutory duties.” Id.

¶ 29 However, it is well-established that “[t]he separation of powers

doctrine does not require a complete division of authority among

the three branches . . . , and the powers exercised by different

branches of government necessarily overlap.” Dee Enters. v. Indus.

Claim Appeals Off., 89 P.3d 430, 433 (Colo. App. 2003); see also

People in Interest of R.W.V., 942 P.2d 1317, 1320 (Colo. App. 1997)

(“[A]bsolute separation of government functions among the co-equal

branches is neither required nor desirable to achieve the

constitution’s ultimate goal of effective and efficient government.”).

“Indeed, the fundamental purpose of the doctrine is not to create

three mutually exclusive departments of government, but to prevent

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one department from exercising power that is essential to another

department’s exercise of its constitutionally defined functions.” Dee

Enters., 89 P.3d at 433.

¶ 30 “Determining whether a court has intruded into the sphere of

the Executive Branch requires a case-by-case evaluation,”

McDonnell, 864 P.2d at 567, and we conduct such a review de novo,

Hickerson v. Vessels, 2014 CO 2, ¶ 10.

¶ 31 We do not perceive an order restricting mother’s ability to

grieve certain professionals, including those regulated by DORA, as

violating the constitutional separation of powers. Section

14-10-124(1.5), C.R.S. 2024, affords courts the authority to issue

orders allocating parental responsibilities in the best interests of the

children. See also § 14-10-129.5(2)(h), C.R.S. 2024 (providing that

in resolving disputes between parents, a court may issue “[a]ny

other order that may promote the best interests of the child or

children involved”). And while the authority to regulate

professionals such as doctors, therapists, and counselors is vested

in DORA, see § 24-1-122(3)(m)(I), (jj)-(mm), the courts are vested

with the authority to ensure that a parent who lacks medical

decision-making responsibility, like mother, does not interfere with

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the children’s relationship with the professionals selected by the

other parent. § 14-10-124(1.5); § 14-10-129.5(2)(h); see also

§ 14-10-130(1), C.R.S. 2024 (providing that a parent “with

responsibility for decision-making may determine the child’s

upbringing, including his or her education, health care, and

religious training”).

¶ 32 Accordingly, the magistrate’s order does not constrain DORA’s

power to regulate professionals at all. Rather, it restricts mother

from grieving professionals without first obtaining court permission

and has an incidental or indirect impact on DORA’s statutory

duties. Thus, to the extent that such an order can be perceived as

interfering with the statutory duties of the Executive Branch, we

hold that such an order falls within the necessary and permissible

overlap between the branches of government. See Dee, 89 P.3d at

433; McDonnell, 864 P.2d at 567.

¶ 33 We are not otherwise persuaded by mother’s contention that

an order preventing her from grieving certain professionals without

court permission lacks an applicable legal standard by which to

assess a proposed grievance. Section § 14-10-124(1.5) provides

that the children’s best interests guide the court in an allocation of

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parental responsibilities proceeding, and we conclude that the

magistrate can determine whether a grievance was proposed in

good faith by mother in furtherance of the children’s best interests.

V. Attorney Fees

¶ 34 Mother requests her appellate attorney fees under section

14-10-119, C.R.S. 2024, due to the alleged disparities between the

parties’ respective economic circumstances. Because the district

court is better equipped to determine the factual issues regarding

the parties’ current financial resources, we direct it to address this

request on remand. See C.A.R. 39.1; In re Marriage of Schlundt,

2021 COA 58, ¶ 54.

¶ 35 Father requests his appellate attorney fees on the ground that

mother’s appeal was substantially groundless and frivolous. See

§ 13-17-102(4), (9)(a), C.R.S. 2024. Given our disposition, we deny

this request. See In re Marriage of Martin, 2021 COA 101, ¶ 42.

Father also requests attorney fees under section 14-10-129.5(4),

but that section authorizes an award of fees only against a parent

who has failed to provide or exercise court-ordered parenting time,

which is not at issue in mother’s appeal. Thus, we also deny

father’s request for attorney fees on that basis.

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VI. Disposition

¶ 36 We reverse the portions of the order providing that mother

“cannot grieve any professional unless granted Court permission to

do so.” We remand the case for further proceedings consistent with

this opinion and direct the court to follow the remand instructions

set forth in part III(B) above. Those portions of the order not

challenged on appeal remain undisturbed.

JUDGE J. JONES and JUDGE BROWN concur.

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