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IN RE MARRIAGE OF BROWN

Colorado Court of Appeals.

Mar 19, 1981

Judgment

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Case Summary — In re the Marriage of Sylvia Annette Brown and James Fletcher Brown (No. 79CA0202)

Factual and Procedural Background

The wife filed a dissolution action. At the hearing on final orders the parties reached an oral separation agreement which the trial court ordered reduced to writing. The written stipulation divided marital property and included these key provisions: the wife received the house free and clear, waived all rights to receive child support and maintenance and agreed to assume full financial obligations for the parties' minor children; the husband relinquished all visitation rights; and the husband consented to the adoption of the minor children by any person the wife might marry.

The trial court entered a written order approving the written stipulation, finding the agreement was not unconscionable, and ordered compliance. Before the dissolution decree was entered, the husband moved to set aside the agreement and to restore visitation rights; the trial court declined to hear that motion at that time. The dissolution decree later incorporated the separation agreement. The husband filed a motion for new trial asking the court to set aside the agreement and restore visitation rights; that motion and the earlier motion were denied. The husband appealed.

Legal Issues Presented

Whether the trial court erred by approving separation agreement provisions in which the husband waived all visitation rights.
Whether the trial court erred by approving the husband's consent to the adoption of the minor children by any person the wife might marry.
Whether the trial court's approval of the separation agreement was adequate when the court made only a general finding that the agreement was not unconscionable, without making findings addressing child support, custody, and visitation under the applicable statutory standards.
Whether the appeal should be dismissed because the husband's motion for new trial allegedly failed to raise the grounds asserted on appeal, in light of C.R.C.P. 59(f).

Arguments of the Parties

Appellant (James Fletcher Brown)

Seeks to set aside the separation agreement that was approved by the trial court and incorporated into the dissolution decree.
Contends the trial court erred in approving the provision whereby he waived all visitation rights.
Contends the trial court erred in approving the provision whereby he consented to the adoption of the minor children by any person his wife might marry.
Moved to restore visitation rights in the trial court proceedings (motions denied).

Appellee (Wife)

Argues the appeal should be dismissed because the husband's motion for a new trial failed to raise the grounds now asserted on appeal, and thus did not comply strictly with C.R.C.P. 59(f).

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Martin v. Opdyke Agency, Inc., 156 Colo. 316, 398 P.2d 971 (1965)	Cited regarding strict requirements of C.R.C.P. 59(f) for motions for new trial.	The court noted the husband’s motion failed to comply strictly with C.R.C.P. 59(f) as explained in Martin, but nevertheless invoked appellate rules to notice error because the minors’ status was at stake.
Kendall v. Hargrave, 142 Colo. 120, 349 P.2d 993 (1960)	Cited in conjunction with C.A.R. 1(d) authority to notice plain error where children’s status is implicated.	The court relied on this authority to justify noticing error despite procedural defects in the motion for new trial.
Lamborn v. Eshom, 132 Colo. 242, 287 P.2d 43 (1955)	Cited with Kendall as authority supporting appellate court's power to notice error in matters affecting children.	Used to support the court's decision to notice error and to remand despite procedural noncompliance with C.R.C.P. 59(f).
In re Marriage of Lowery, 39 Colo. App. 413, 568 P.2d 103 (1977), aff'd, 195 Colo. 86, 575 P.2d 430 (1978)	Discusses the relationship between child support, property division, and maintenance; unconscionability as a factor in child support assessment under § 14-10-112.	The court cited Lowery to explain that unconscionability is a necessary factor to consider for child support provisions but is not the sole factor; other child-related statutory standards must be considered.
In re Marriage of Lawson, 44 Colo. App. 105, 608 P.2d 378 (1980)	Authority that custody and visitation provisions must be examined under the legislative standards in § 14-10-124 (custody) and § 14-10-129 (visitation).	The court invoked Lawson to require that custody and visitation provisions in a separation agreement be evaluated under those statutory standards rather than by the unconscionability test alone.
In re Marriage of Wigner, 40 Colo. App. 253, 572 P.2d 495 (1977)	Discusses the propriety of addressing separation agreement terms before incorporation into a dissolution decree.	Used to support the proposition that the trial court should address the propriety of an agreement prior to incorporation in the decree.
In re Marriage of Jaramillo, 37 Colo. App. 171, 543 P.2d 1281 (1975)	Addresses the sufficiency of findings — specific listing of each statutory factor is not required, but the record must permit review of the trial court's basis.	The court relied on Jaramillo to require that the record contain enough to allow appellate review of the trial court's decision even if detailed itemized findings are not made.
McCoy v. McCoy, 139 Colo. 105, 336 P.2d 302 (1959)	Cited concerning the trial court's statutory authority (or limits) regarding adoption consent provisions.	The court cited McCoy to support its conclusion that the trial court's authority to validate a parent's consent to adoption is limited and that the validity of the adoption-consent provision is beyond the scope of the trial court's statutory authority in this context.
In re Marriage of Nichols, 38 Colo. App. 82, 553 P.2d 77 (1976)	Cited along with McCoy on the court's limited authority to affect adoption consent.	Used to reinforce the point that the trial court could not properly validate or resolve the question of the husband's consent to adoption as part of approving the separation agreement.

Court's Reasoning and Analysis

(Step-by-step presentation of the court's analysis based on the opinion)

The trial court approved the written separation agreement and made a single finding that the agreement "was not unconscionable," apparently treating that single finding as sufficient to bind the court to the terms under § 14-10-112(2), C.R.S. 1973.
The appellate court examined the statutory framework and observed a statutory exception: § 14-10-112(6), C.R.S. 1973, expressly excludes support, visitation, and custody provisions from the binding effect that otherwise applies to property settlement provisions.
Because support, custody, and visitation provisions are excepted, the court explained they may bind the parties contractually but they are not binding upon the court or on the children and remain subject to modification under appropriate circumstances.
The court held that unconscionability, while a relevant factor in assessing child support provisions (see In re Marriage of Lowery and § 14-10-112(4)), is not the sole test. The trial court must also consider statutory factors concerning the child's living standards and the child's physical and emotional well-being as indicated by § 14-10-115(1)(c) and (d), C.R.S. 1973.
For custody and visitation provisions, the court held that unconscionability is not the appropriate test; instead the trial court must evaluate these terms under the legislative standards in § 14-10-124 (custody) and § 14-10-129 (visitation), relying on In re Marriage of Lawson.
The appellate court observed that the trial court made no specific findings concerning the wife's waiver of child support, the husband's waiver of visitation rights, the custody arrangement, or the husband's consent to adoption; it only made a general unconscionability finding regarding the agreement as a whole.
Because the court's approval lacked findings addressing the applicable statutory standards for child support, custody, and visitation, the appellate court concluded the record did not provide a sufficient basis for appellate review of whether those provisions were in the best interests of the children.
Although the wife argued procedural forfeiture because the husband's motion for new trial did not raise the present grounds in strict compliance with C.R.C.P. 59(f) (Martin v. Opdyke Agency, Inc.), the appellate court invoked C.A.R. 1(d) and relevant authorities (Kendall v. Hargrave; Lamborn v. Eshom) to notice error because the minors' status was implicated.
The court expressly declined to resolve the husband's contention regarding the validity of his consent to adoption, concluding that whether the trial court had authority to validate such a provision was beyond the scope of the court's statutory authority (citing McCoy v. McCoy and In re Marriage of Nichols), and citing § 19-1-104, C.R.S. 1973.
Because the trial court's order approving the separation agreement lacked the necessary findings under the applicable statutes, the appellate court reversed, set aside the order approving the separation agreement, and remanded for determination and findings on whether the agreement’s provisions for child support, custody, and visitation are in the best interests of the children under the statutory standards; the court left to the trial court's discretion whether to base findings on the existing record or to hold further hearing.

Holding and Implications

Holding: The appellate court reversed the judgment, set aside the trial court's order approving the separation agreement, and remanded the cause to the trial court for determination and findings on whether the provisions of the separation agreement for child support, child custody, and visitation are in the best interests of the children under the applicable statutory standards.

Immediate implications for the parties:

The separation agreement's approval is vacated for purposes of the child support, custody, and visitation provisions; those provisions are not conclusively binding on the court or on the children.
The trial court must make findings applying the statutory standards (including § 14-10-115 factors for support and the custody/visitation statutes § 14-10-124 and § 14-10-129) to determine whether the agreement's provisions serve the children's best interests. The trial court may make those findings based on the existing record or, in its discretion, after further hearing.
The appellate court did not resolve the husband's contention concerning the validity of his consent to adoption, concluding that the issue is beyond the trial court's authority in this context; that question was left unadjudicated on appeal.

Broader implications: The opinion emphasizes that trial courts must assess separation agreement terms affecting children against the controlling statutory standards and make sufficient findings to permit appellate review. The court did not purport to create new legal precedent beyond applying the cited authorities to require statutory-based findings; it remanded for the trial court to apply existing statutes and case law.

Judges Pierce and Van Cise concurred. Opinion by Judge Kelly. Decided March 19, 1981, Colorado Court of Appeals (No. 79CA0202).

Show all summary ...

Opinion by JUDGE KELLY.

James Brown seeks to set aside a separation agreement that was approved by the trial court and subsequently incorporated into a dissolution decree. On appeal, Brown contends, among other things, that the trial court erred in approving two provisions in the agreement: one whereby he waived all visitation rights, and the other whereby he consented to the adoption of his minor children by any person his wife might marry. We reverse and remand for findings.

The wife brought the dissolution action, and at the hearing on final orders, an oral agreement was reached by the parties which the court ordered be reduced to writing. In addition to providing for division of the marital property, the stipulation provided that in consideration of the wife's receiving the house free and clear, she waived all rights to receive child support payments and maintenance and assume the full financial obligations for the care of the parties' minor children. The husband relinquished all visitation rights and consented to the adoption of the minor children by any person whom the wife might marry.

The court entered a written order approving the written stipulation, finding that it was not unconscionable and ordered the parties to comply therewith. However, before the decree of dissolution was entered, the husband moved to set aside the agreement and restore visitation rights. The trial court declined to hear the motion at that time. The dissolution decree subsequently entered incorporated the provisions of the separation agreement. A motion for new trial was filed, again asking that the agreement be set aside and visitation rights restored. Both this and the previous motion were denied.

The wife argues that this appeal should be dismissed because the motion for a new trial failed to raise the grounds asserted on appeal. While we agree that the motion fails to comply strictly with the requirements of C.R.C.P. 59(f), see Martin v. Opdyke Agency, Inc., 156 Colo. 316, 398 P.2d 971 (1965), because the status of the minor children is at stake, we notice error in the trial court proceedings, and remand for findings. See C.A.R. 1(d); Kendall v. Hargrave, 142 Colo. 120, 349 P.2d 993 (1960); Lamborn v. Eshom, 132 Colo. 242, 287 P.2d 43 (1955).

In its order approving the parties' separation agreement, the trial court made no findings concerning the propriety of the wife's waiver of her need for child support, the husband's waiver of his right to visit the children, the custody provisions, and the consent to adoption. Rather, the trial court found the agreement as a whole not to be unconscionable, and presumably concluded that its provisions were, therefore, binding upon the court pursuant to § 14-10-112(2), C.R.S. 1973.

While unconscionability is the standard to be applied under § 14-10-112(2) in determining the binding effect upon the court of the property settlement provisions of a separation agreement, the statute specifically excepts the support, visitation, and custody provisions of a separation agreement from its operation. Although agreements concerning these matters may bind the parties, they are not binding upon the court or on the children, and are subject to modification under appropriate circumstances. See § 14-10-112(6), C.R.S. 1973.

Because of the relationship between the child support, property division, and maintenance needs, unconscionability is necessarily one factor to be considered by a trial court in assessing the propriety of child support provisions in a See In re Marriage of Lowery, 39 Colo. App. 413, 568 P.2d 103 (1977), aff'd, 195 Colo. 86, 575 P.2d 430 (1978); see also § 14-10-112(4), C.R.S. 1973. However, in addition to unconscionability, the court must consider other factors, such as the living standards the child would have enjoyed had the parties not dissolved the marriage and the physical and emotional well-being of the child. Section 14-10-115(1)(c) and (d), C.R.S. 1973.

When evaluating the propriety of custody and visitation provisions in a separation agreement, unconscionability is not the test. Rather, these provisions must be examined by the trial court under the legislative standards set forth in § 14-10-124, C.R.S. 1973, as to custody, and § 14-10-129, C.R.S. 1973, as to visitation. See In re Marriage of Lawson, 44 Colo. App. 105, 608 P.2d 378 (1980).

The propriety of a separation agreement should be addressed by a trial court prior to its incorporation in a dissolution decree, having due regard for the applicable statutory standards. Cf. In re Marriage of Wigner, 40 Colo. App. 253, 572 P.2d 495 (1977); In re Marriage of Lowery, supra. While specific findings listing each factor in the statutes are not necessary, still, there must be enough in the record to allow this court to review the basis on which the trial court reached its decision. See In re Marriage of Jaramillo, 37 Colo. App. 171, 543 P.2d 1281 (1975).

We do not reach the husband's argument questioning the validity of the husband's consent to adoption. While the record does not reveal whether the trial court specifically considered the validity of this provision in the separation agreement, we conclude that it is beyond the scope of its statutory authority to do so. See McCoy v. McCoy, 139 Colo. 105, 336 P.2d 302 (1959); In re Marriage of Nichols, 38 Colo. App. 82, 553 P.2d 77 (1976). See also § 19-1-104, C.R.S. 1973.

In view of our conclusions, it is not necessary to consider the other arguments.

The judgment is reversed; the order approving the separation agreement is set aside, and the cause is remanded to the trial court for a determination and findings by the court, either based on the record, or, in its discretion, after further hearing, on the question whether the provisions of the separation agreement for child support, child custody, and visitation are in the best interests of the children under the applicable statutory standards.

JUDGE PIERCE and JUDGE VAN CISE concur.