Parental Resp Conc BS

24CA0142 Parental Resp Conc BS 04-10-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0142
Jefferson County District Court No. 15DR1510
Honorable Meegan A. Miloud, Judge

In re the Parental Responsibilities Concerning B.S. and A.S., Children,

and Concerning Anson Stodghill,

Appellant,

and

Bethany Brooks,

Appellee.

JUDGMENT AFFIRMED IN PART AND REVERSED IN PART,
AND CASE REMANDED WITH DIRECTIONS

Division IV
Opinion by JUDGE HARRIS
Grove and Pawar, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced April 10, 2025

Family Law Center of the Rockies, Chris McLane, Golden, Colorado, for
Appellant

Wright Family Law, Jamie L. Wright, Centennial, Colorado, for Appellee
¶1 Anson Stodghill (father) appeals the district court’s order

modifying parenting time and child support for his two children

with Bethany Brooks (mother). We affirm in part, reverse in part,

and remand the case for further proceedings.

I. Background

¶2 The parties have two children, B.S. (daughter) and A.S. (son).

In January 2016, when daughter was seven and son was two, the

district court allocated parental responsibilities in accordance with

the parties’ agreement, under which mother and father had

approximately equal parenting time.

¶3 About six years later, mother moved to modify the parenting

time order. As she explained in the motion, in the interim, father

had moved to Como, Colorado, a rural community about

seventy-five miles away from mother’s home in Littleton.

Additionally, daughter, who had moved to Como to live with father

at the beginning of the COVID-19 pandemic, had returned to

mother’s home and, with the assent of both parents, stopped

visiting father. Mother asserted that continuation of the equal

parenting time schedule would disrupt the children’s academic and

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social lives, which were centered in Littleton. Mother also raised

concerns about father’s ability to safely parent the children, but she

nonetheless suggested that he have “reasonable time” with the

children during school breaks and holidays.

¶4 At mother’s request, the district court appointed a child and

family investigator (CFI). The CFI filed a report and an update

recommending that father’s parenting time be therapeutically

supervised.

¶5 Mother immediately filed a motion to restrict parenting time,

relying on the CFI’s findings and recommendations. Father

objected to any change in parenting time with son but agreed that

daughter should not have to resume visits. After a hearing, a

magistrate restricted father to therapeutically supervised parenting

time with son, but, based on father’s concession, the magistrate did

not issue orders concerning daughter.

¶6 Fourteen months later, in November 2023, the court held a

hearing on mother’s motion to modify parenting time and her

later-filed motion to modify child support. By then, daughter was

almost sixteen years old and, without objection from father, had not

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had parenting time with him for over two years. As for son, he had

not seen father since March 2023, when mother, at the suggestion

of son’s therapist, unilaterally ended father’s supervised parenting

time.

¶7 At the conclusion of the hearing, the court entered an oral

ruling. Based on its finding that “contact between [father] and the

children [is] emotionally endangering to them,” the court declined to

order any parenting time for daughter and continued restricted

parenting time for son. Under the restriction, father’s parenting

time with son had to “begin with family or reunification therapy,”

pursuant to a plan to be developed by the therapists treating father

and son.

¶8 With regard to child support, the court acknowledged that

father received social security disability income (SSDI) benefits but

also found that he was voluntarily underemployed. The court

concluded that father could work full-time and imputed to him

minimum wage income of $2,366 per month which, adding his

$941 in SSDI benefits, gave him a total monthly income of $3,307.

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Based on that income, the court ordered father to pay mother child

support of $577 per month plus $5,200 in retroactive child support.

¶9 Finally, the court denied father’s request for attorney fees,

which was based on the disparity in the parties’ economic

circumstances. The court did not explain the reason for the denial.

¶ 10 On appeal, father challenges the court’s endangerment

findings, its alleged delegation of parenting time decisions to third

parties, its imputation to him of full-time income, and its denial of

his request for attorney fees.

II. Parenting Time

¶ 11 Father contends that the district court erred by first restricting

his parenting time with both children and then improperly

delegating parenting time decisions to daughter and to the

therapists treating father and son. We agree in part: we conclude

that the court improperly delegated parenting time decisions for son

to the third-party therapists.

A. Legal Principles and Standard of Review

¶ 12 As a general matter, the court may modify parenting time

whenever such modification will serve the best interests of the

children. See § 14-10-129(1)(a)(I), C.R.S. 2024. But if the
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modification amounts to a restriction of a parent’s parenting time,

the court may not order the modification unless it finds that “the

parenting time would endanger the child’s physical health or

significantly impair the child’s emotional development.”

§ 14-10-129(1)(b)(I); see also § 14-10-129(2)(d) (court may not

substantially modify parenting time and change the child’s primary

residence without making endangerment findings); In re Marriage of

Dale, 2025 COA 29, ¶¶ 32-33 (A restriction on parenting time rights

“means an order imposing a qualitative control over the manner,

location, or environment in which the parent engages in parenting

time,” and requires an endangerment finding.).

¶ 13 Even if it makes those findings, the court must also determine

that the particular restriction imposed is in the best interests of the

child. See In re Marriage of Hatton, 160 P.3d 326, 332 (Colo. App.

2007). And if the restriction is termination of all contact between a

parent and a child, the best interests standard requires the court to

find that there is no less detrimental alternative. Id.

¶ 14 The district court has broad discretion to decide parenting

time issues, and we will not reverse those decisions absent an

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abuse of discretion. In re Marriage of Collins, 2023 COA 116M, ¶ 8.

But the court must exercise that discretion itself; it may not

delegate decisions about parenting time to third parties. In Interest

of D.R.V-A., 976 P.2d 881, 884 (Colo. App. 1999) (reversing order

that delegated to family therapist decisions about when mother

should be allowed to exercise unsupervised parenting time); In re

Marriage of Elmer, 936 P.2d 617, 621 (Colo. App. 1997) (reversing

order that delegated to child’s psychiatrist the decision about when

father’s overnight visits would occur). And while we defer to the

court’s factual findings if supported by the record, we review its

adherence to the statutory requirements de novo. See In re Parental

Responsibilities Concerning B.R.D., 2012 COA 63, ¶ 15.

B. Daughter

¶ 15 The court found that daughter would be emotionally

endangered if ordered to have parenting time with father and that it

was in her best interests for her to decide whether to see him.

¶ 16 Father argues that the evidence does not support an

endangerment finding, the court should have considered a less

detrimental alternative to ending parenting time, and the court

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improperly delegated the parenting time decision to daughter. We

reject these arguments.

1. Endangerment Findings

¶ 17 What constitutes endangerment is a highly individualized

determination. In re Marriage of Wenciker, 2022 COA 74, ¶ 26.

When the evidence on endangerment is conflicting, the district

court’s “findings resolving such conflicts are binding on review if

they have record support.” Id.

¶ 18 In making its endangerment findings, the court relied on

testimony by the CFI and mother. According to the CFI, daughter

had reported that “the home environment at [f]ather’s was

unhealthy for her mental health.” When the CFI prepared her

report, daughter’s therapist told the CFI that daughter suffered

from anxiety and depression and exhibited “some symptoms [of]

post-traumatic stress.” The therapist opined that daughter was not

ready to see father, even in family therapy, and that any change in

parenting time “could derail her progress” and “cause a regression.”

The CFI testified that daughter had engaged in cutting while at

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father’s home, and, at one point, daughter had expressed suicidal

ideation, but father “did not obtain the services that [she] needed.”

¶ 19 Mother testified that when daughter lived with father, “her

personality, her demeanor, her physical appearance, . . . [and] the

way that she talked about the world became very concerning and

very dark.” She said that daughter had suffered from defecation

accidents up to age thirteen, but that once daughter stopped seeing

father, the accidents “[s]topped entirely,” as did the self-harming

behaviors.

¶ 20 Although father disputed some of that testimony, the evidence

sufficiently supported the court’s endangerment finding with

respect to daughter.

2. Least Detrimental Alternative

¶ 21 The concept of the “least detrimental alternative” recognizes

that some “detriment to a child is present in every [parenting time]

decision, [and] a court’s task is to make the [parenting time] choice

‘least detrimental’ to the child.” In re Marriage of Martin, 42 P.3d

75, 78 (Colo. App. 2002) (citation omitted). The least detrimental

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alternative analysis is generally subsumed within the best interests

standard. Id.

¶ 22 Even assuming the court should have expressly considered

whether a less detrimental alternative to termination of parenting

time existed, see Hatton, 160 P.3d at 333, we conclude that any

error was harmless.

¶ 23 For one thing, it was not even clear at the modification hearing

that father was asking the court to compel daughter to attend

parenting time. In the two years leading up to that hearing, father

had expressly acquiesced to daughter’s decision not to visit him. At

the end of the hearing, mother’s counsel represented that father

“was not insisting or asserting any right toward a schedule with”

daughter. Father did not dispute that representation. Instead, he

merely requested that the court deny the modification motion.

¶ 24 Also, father did not offer any alternative to termination of

parenting time, other than an implicit request to adhere to the

schedule put in place eight years earlier, when daughter was seven

years old and father and mother lived in the same city. By granting

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the modification motion, the court necessarily rejected that

alternative.

¶ 25 The court found instead that it was in daughter’s best

interests not to be forced into parenting time with father. That

finding is supported by the evidence. The CFI recommended that

daughter be permitted to decline visitation with father because she

was “sufficiently mature to articulate her wishes” and “giving [her]

agency” to decide whether visits “fe[lt] safe” would “further support[]

[her] mental health treatment.”

¶ 26 Under these circumstances, the court’s failure to specifically

address the least detrimental alternative did not affect father’s

substantial rights or the outcome of the proceedings. See Bly v.

Story, 241 P.3d 529, 535 (Colo. 2010).

3. Delegation of Parenting Time Decisions

¶ 27 As noted, the court may not abdicate its decision-making

authority and delegate entirely to third parties (or to the other

parent) decisions about when or how parenting time will occur. See

Hatton, 160 P.3d at 334.

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¶ 28 After the court ruled that it would not order parenting time

between father and daughter, it explained that daughter could

nonetheless agree to see father “at her discretion.” Father says this

ruling amounted to an improper delegation of parenting time

decision-making to daughter. We disagree.

¶ 29 The court did not delegate its authority to make parenting

time decisions to another person. The court itself made the

decision about father’s parenting time with daughter — by declining

to order any parenting time based on its endangerment and best

interests findings. Thus, in contrast to the cases cited by father,

the court here did not order parenting time and then leave to

daughter the decision about how or when it would occur. See

D.R.V-A., 976 P.2d at 884-85 (where court ordered supervised

parenting time for mother and conditioned unsupervised parenting

time on the family therapist’s assent and recommendation, court

improperly delegated parenting time decisions to a third party); In re

Marriage of McNamara, 962 P.2d 330, 333-35 (Colo. App. 1998)

(where court ordered “equal access to the children by both parents”

but gave the guardian ad litem authority to modify parenting time

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in the future, court improperly delegated parenting time decisions

to a third party); Elmer, 936 P.2d at 620-21 (where court ordered

parenting time for father but gave the child’s psychiatrist authority

to decide “when, and if,” overnight visits would occur, court

improperly delegated parenting time decisions to a third party); see

also In re Marriage of Dean, 2017 COA 51, ¶ 22 (where court

ordered parenting time for father, mother had to make a good faith

effort to obtain the teenage children’s compliance with the order).

Instead, the court merely made clear that daughter could, of course,

decide to see father in the absence of a court order — at her

discretion.

C. Son

¶ 30 We reach the opposite conclusion regarding delegation with

respect to son, however. Even assuming the court made sufficient

endangerment and best interests findings to support the continued

restriction on parenting time — an issue we need not decide in light

of our disposition — the court erred by delegating authority to the

therapists to decide when, if ever, parenting time would occur.

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¶ 31 In son’s case, the court did not decline to order parenting

time. Rather, it ordered that before any parenting time commenced,

father and son had to participate in family or reunification therapy.

But it gave complete control to the therapists to decide how or when

to initiate the pre-parenting time therapy, ordering only that “both

therapists talk [and] come up with a good plan.” We agree that the

court could have delayed reinstating supervised parenting time

until certain conditions were met. We also agree that the court

could have enlisted the therapists’ involvement in identifying the

conditions and devising a plan to implement them. But the court

had to ultimately endorse a plan, order that it be executed, and

then monitor compliance with it. It could not hand over all

authority to the third-party therapists to decide whether and when

father’s parenting time would resume.

¶ 32 Mother’s attempt to distinguish the case law prohibiting a

court’s delegation of parenting time decisions misses the mark.

That some of the cases cited by father did not involve endangerment

findings is irrelevant. The divisions’ holdings turned not on why

particular restrictions had been ordered but on whether the district

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court had given third parties the authority to control if or when a

parent exercised parenting time. We see no difference between the

order in this case and the orders in D.R.V-A., see 976 P.2d at 885

(court could not delegate to therapist authority to decide when

mother could participate in family therapy), and Elmer, see 936

P.2d at 621 (court could not delegate to child’s psychiatrist the

decision about when father’s overnight visits would begin).1

¶ 33 Therefore, we reverse that portion of the judgment giving the

third-party therapists authority to determine when family or

reunification therapy will occur, and we remand the case to the

district court for review of that issue. See Elmer, 936 P.2d at 621.

Because any parenting time plan must be based on son’s current

1 Like the orders in those cases, the order here leaves father with

limited recourse. Soon after the November 2023 hearing, the
therapist notified father and his counsel that “it will take [son] at
least a year if not longer” to be ready for therapy with father; the
therapist would provide updates on son’s progress only “as [she]
deem[ed] necessary”; and when the therapist “fe[lt] [son] [wa]s
ready,” she would then refer father to a family therapist “approved
by [her]” to determine whether father was ready for reunification
therapy. According to the district court record, this case was closed
as of February 2024, with no further developments regarding
father’s parenting time. See Schnelle v. Cantafio, 2024 COA 17, ¶ 2
n.1 (appellate court may take judicial notice of the court record in
an underlying case under CRE 201(b)).
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circumstances, see id.; In re Parental Responsibilities Concerning

M.W., 2012 COA 162, ¶ 27, we decline to address father’s argument

that the court’s endangerment findings are insufficient to support

the current restriction.

III. Child Support

¶ 34 Father contends that the district court erred by imputing full-

time income to him without making necessary findings that he was

shirking a child support obligation or that he was not physically or

mentally “incapacitated.” We agree with the first contention, so we

do not resolve the second.

A. Legal Principles and Standard of Review

¶ 35 In calculating child support, the court must consider the

parties’ financial resources, including each parent’s income. See

§ 14-10-115(2)(b)(II), (V), C.R.S. 2024. “Income” for purposes of the

child support guidelines means the “actual gross income of a

parent, if employed to full capacity, or potential income, if

unemployed or underemployed.” § 14-10-115(3)(c).

¶ 36 Potential income is used to calculate child support only if the

parent is voluntarily unemployed or underemployed. See

§ 14-10-115(5)(b)(I). “‘Voluntarily’ in this context means that the
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parent is underemployed ‘intentionally, of free will.’” In re Marriage

of Garrett, 2018 COA 154, ¶ 10 (quoting People v. Martinez, 70 P.3d

474, 477-78 (Colo. 2003)). Thus, before the court may impute

potential income to a parent, it must find that the parent is

“shirking his or her child support obligation by unreasonably

forgoing higher-paying, obtainable employment.” Id.

¶ 37 To determine if a parent is shirking a financial obligation, the

district court must examine all the circumstances, including, as

relevant here, whether the parent sought a job in the field in which

he has experience and training; the availability of jobs for a person

with the parent’s level of education, training, and skills; the

prevailing wage rates in the region; the parent’s prior employment

experience and history; and the parent’s history of child support

payment. Martinez, 70 P.3d at 480. “Imputation of income is an

exception to computing child support based on actual income and

should be applied with caution.” Garrett, ¶ 10.

¶ 38 To the extent mother contends that father failed to preserve

his claim regarding income imputation, we reject that contention.

At the hearing, mother’s counsel argued that father was

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underemployed and “capable of making more money,” while father’s

counsel argued that father was “not able to work” and his actual

income was limited to his benefits. The court considered the issue

and adopted mother’s view. Accordingly, the issue is preserved.

See In re Marriage of Young, 2021 COA 96, ¶ 20.

¶ 39 Whether a parent is voluntarily underemployed is a mixed

question of fact and law. Id. at ¶ 21. We defer to the district court’s

factual findings if they are supported by the record, but we review

whether it applied the correct legal standards de novo. Garrett, ¶ 9.

B. Insufficient Findings or Evidence of Shirking

¶ 40 In its oral ruling, the district court found that

• father receives $914 per month in SSDI benefits;

• father operates a dog training business on his property,

and has an active website;

• father has been employed in the past and “has the ability

to be employed”;

• father’s testimony that he “has no income” beyond the

SSDI benefits was not credible; and

• father does not contribute to the children’s expenses.

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¶ 41 The court did not expressly find that father was shirking a

financial obligation. And while an explicit finding may not be

necessary, the court did not make sufficient factual findings to

support an implicit shirking finding either. For example, it did not

make any findings on the availability of jobs for a person with

father’s level of education, training and skills, and, importantly,

with a comparable disability. And while the court found that father

had been employed “in the past,” there was no evidence concerning

when father had last held a full-time job. (The court also did not

determine whether father could work full-time and continue to

receive SSDI benefits. If not, calculating child support based on

full-time wages plus SSDI benefits was clearly erroneous.)

¶ 42 The evidence established that father “had a nonprofit

[company] training service dogs” for veterans that he operated from

his home. He testified that he had received some donations for his

work but that “those had ceased” more than a year before the

hearing. The court found that father’s testimony about his income

(reported as zero, except for government benefits) was not credible,

but it did not attempt to determine father’s actual income. If father

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had actual income from employment, the court should have

considered that income in calculating child support. See

§ 14-10-115(5)(a)(I).

¶ 43 In sum, considering all of the circumstances, we conclude that

the court’s findings are insufficient to support its decision to impute

full-time employment to father. Thus, we reverse the child support

award and remand for further proceedings. See Garrett, ¶ 16

(remanding where the district court, in imputing income to mother,

considered some but not all of the relevant factors and failed to

make an express finding of shirking). On remand, the court must

consider the parties’ current financial circumstances when

determining father’s income and recalculating child support. See In

re Marriage of Schaefer, 2022 COA 112, ¶ 41.

IV. Attorney Fees

¶ 44 Father contends that the district court erred in denying his

request for attorney fees under section 14-10-119, C.R.S. 2024.

¶ 45 Under section 14-10-119, the district court may equitably

apportion attorney fees and costs between the parties based on

their relative economic circumstances. See Collins, ¶ 49. Because

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we conclude that the court must reconsider father’s income on

remand, we reverse the denial of attorney fees and direct the district

court to consider father’s request anew on remand.

¶ 46 Both parties request appellate attorney fees, father under

section 14-10-119, and mother under section 13-17-102, C.R.S.

2024, on the ground that father’s appeal was frivolous.

¶ 47 The district court is better equipped to address the factual

issues associated with father’s section 14-10-119 attorney fee

request. Accordingly, we direct the district court to consider the

request on remand, based on the parties’ financial circumstances at

the time of the remand proceedings. See In re Marriage of Schlundt,

2021 COA 58, ¶ 54. In light of our disposition, we deny mother’s

request for appellate attorney fees. See In re Marriage of Sheehan,

2022 COA 29, ¶ 64.

V. Disposition

¶ 48 We reverse the portion of the judgment restricting father’s

parenting time and modifying child support, and we remand the

case to the district court for further proceedings. On remand, the

court must determine parenting time between father and son

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without delegating the decision to a third party, and it must make

additional findings concerning father’s income. Finally, the court

should consider father’s request for attorney fees under section

14-10-119.

JUDGE GROVE and JUDGE PAWAR concur.

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