2021 Statutory Changes: Modifying Family Law Orders While an Appeal Is Pending in Colorado

By: Stephen J. Plog

As with most areas of the law, family law statutes and the cases interpreting them are not always clear. When ambiguity exists, attorneys and judges can be left wondering what the right outcome of the given issue may be. In many instances, the state legislature or judiciary does what it can to clear up ambiguities or fill gaps in statute. In 2021, the Colorado Legislature provided clarity related to the issue of whether certain orders could be modified while an appeal to the Colorado Court of Appeals or Supreme Court is pending. The specific clarification and statutory change came in the form of adoption of Colorado House Bill 21-1031. While this may not matter in most cases, some divorce or child custody case orders may ultimately be appealed. Appeals can take a year, or years, before they are decided. Prior to adoption of HB 21-1031, a person needing to modify their child support or parenting time orders might have been stuck in limbo, with the trial courts unable to make modifications until the appeal had concluded. That has now changed regarding certain family law orders.

In early 2020, the Colorado Supreme Court handed down a decision in a case, In re: the Parental Responsibilities Concerning W.C., which essentially indicated that a parent could not file a motion to modify parenting time or decision-making while an appeal was pending. Specifically, the decision indicated that the district court (trial court) did not retain jurisdiction for modifications during an appeal. In response to this ruling, HB 21-1031 was put forth, with the goal of filling this gap.

As a Denver divorce attorney, this all matters. When final orders regarding support or custody are entered by a judge, either side has the right to file an appeal, which is generally going to be based on alleged judicial error. The first stop in the appellate process is the Court of Appeals and getting a final ruling can take a year or more. From there, if one party is unhappy with the COA ruling, they could then appeal a level up, to the Supreme Court. If this happens, you can add at least another year to the process.

In family law cases, orders regarding parenting time and custody, child support, or alimony (maintenance) can be modified, pursuant to statute. Child support or maintenance modifications can be sought based on changed circumstances, such as a job loss or significant changes in income. Parenting time modifications can be sought for an array of reasons, including in instances of an emergency regarding a child and their safety. Prior to the adoption of HB 21-1031, parents or litigants with real life child-related or financial needs would have been forced to potentially wait years to get the relief they needed from the family law court. Fortunately, that has now changed.

HB-1031 was codified into various, relevant family law statutes. Specifically, C.R.S. 14-10-122, which deals with modification of child support and maintenance, now specifies that the district court retains modification jurisdiction while an appeal is pending. Likewise, C.R.S. 14-10-129, the statute dealing with modifications of parenting time, and C.R.S. 14-10-131, the statute dealing with modifying decision-making orders, both contain new, similar language. The change has also been added to various juvenile statutes and statutes regarding interstate custody matters under the Uniform Child Custody Jurisdiction and Enforcement Act. With these changes, the wheels of justice can continue to roll despite the pending appeal.

On a nerdy, intellectual note, while the changes are good and absolutely allow for the district courts to modify orders as needed, I can envision situations in which future confusion can arise. For example, in instances in which a modified order is entered while an appeal is pending, and the original order is subsequently overturned or reversed on appeal, what impact will there be on the modified order? Will there be any connection at all? If a modification is entered which then satisfies the appealing party’s concerns, was the appeal worth it in the first place? Again, the types of situations in which this scenario would apply or in which HB 21-1031 would matter are few and far between. Nonetheless, to this family law practitioner, having clarity and allowing people to address their family law issues while an appeal is pending does matters.