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IN THE DISTRICT COURT OF EL PASO COUNTY, COLORADO
IN RE: THE MARRIAGE OF
CASE NO.: 10-1234-DR-123456
TIM NONAME,
DIVISION: Family
Husband,
And
SARAH NONAME,
Wife.
______________________________/
PETITIONER/HUSBAND’S TRIAL BRIEF
A.
INTRODUCTORY STATEMENT
On November 19, 2023, Petitioner, Tim Noname (“Husband”), by and through his attorney, John
Doe of Doe & Doe Law filed a Petition for Divorce from Respondent, Sarah Noname, (“Wife”).
The parties have two minor children, Jasmine Noname, DOB October 9, 2012 (“Daughter”) and
Stuart Noname, DOB May 22, 2014 (“Son”)
B.
QUESTION(S) PRESENTED: ISSUES(S)
Allocation of Parenting Time
C.R.S. § 14-10-124, Best Interest of the Child
Child Support
C.R.S. 14-10-115, Child Support Guidelines
Permanent v. Temporary Alimony
C.R.S. 14-10-114, Spousal Maintenance
Division of Property
C.R.S. 14-10-113, Disposition of Property:
Attorneys Fees
C.R.S. 13-17-102, Attorneys Fees
C.
STATEMENT OF FACTS
1.
Tim and Sarah Noname married on March 3, 1998 at the age of 21. Tim attended College
at age 23 to become a physician’s assistant, and obtained his certification at age 29. While
Tim attended College, Sarah briefly worked as a baker’s assistant to help support the
household earning $24,000/year.
2.
Sarah became pregnant with their first child, Jasmine (11), at age 30. Their second child,
Stuart (9), was born two years later. They share custody of both minor children.
3.
Tim makes $150,000/year working as a physician's assistant.
Sarah is currently
unemployed and has primarily been a stay-at-home mom. Currently, Tim and Sarah both
reside in the marital home in separate rooms. The home is paid off and valued at
$300,000. Tim wishes to keep the family home in order to raise the children. Sarah also
wishes to keep the home to raise the children.
4.
Tim has concerns over Sarah’s alcohol use. Sarah likes to drink at night which results in
her waking up late. As a result the childs are often late for school, which is reflected on
their report cards.
5.
In the past three months, Stuart's grades have declined over the past three months.
Stuart’s teacher expressed concerns to both Tim and Sarah that Stuart may have a
learning disability and is requesting a formal evaluation by a licensed professional.
Jasmine maintains good grades.
6.
Tim and Sarah are unable to agree on custody of the children. Tim believes that due to
Sarah’s drinking problem, he is best suited to care for the children. Sarah wishes to
continue being a stay at home mom to maintain the children’s routine, volunteer at the
children's school, and to maintain her standard of living by receiving child support and
permanent alimony from Tim.
7.
Tim believes Sarah is able bodied and capable of working a job to support herself. Tim
believes he should pay temporary spousal support until Sarah gains employment.
Additionally, both children are in school which does not require Sarah to be home all day.
8.
Tim believes a tutor would be better suited for Staurt. Sarah frequently gets frustrated
working with Stuart, and as a result Tim is the one who helps him with his school work.
Sarah does help Jasmine with her homework, but frequently seeks Tim’s help when Sarah
cannot help Jasmine herself.
9.
Tim is very involved in both children's extracurricular activities. Tim is responsible for
taking Stuart to all of his seasonal activities on the weekend. Sarah does not attend
Stuart's events, and leaves the “boy stuff” to Tim. Tim attends Jasmine's swimming
events as much as he can, as they usually take place during the work week. Sarah
accompanies Jasmine to these events.
10.
Sarah regularly attends Yoga and pilates 3 nights a week. As a result, Tim is responsible
for feeding, bathing, and putting the children to bed on those nights. Tim also frequently
works out at a fitness club, which is located in the same building as his office. Tim works
out before work at 6 am.
11.
Tim is concerned about Sarah's spending habits and believes she is a shopaholic. During
their marriage, Tim gave Sarah $1000 a week for spending into a separate account to
keep her from putting the family into debt.
12.
Tim manages the household expenses. As a result, Tim and Sarah have little debt. Tim
uses one credit card to pay for monthly expenses, which he pays off each month.
Currently, there is a $10,000 balance on this credit card due to attorneys fees. Tim has an
additional credit card he uses to gamble, which Sarah does not have access to.
13.
Tim has contributed to individual savings accounts for both Tim and Sarah. Both
accounts total $65,000 each. Additionally, Tim has set up individual retirement accounts.
Tim’s currently has $400,000, and Sarah's account has $100,000.
During Part 1 of the argument section, you will focus on the four primary custody of the
children, parental responsibility, timesharing with the children, and child support. EACH
of the four needs its own section complete with IRAC. Do not just make one long IRAC
analysis that includes all four, they need to be separate.
D. ARGUMENT
1.
Allocation of Parenting Time
a.
C.R.S. § 14-10-124, Best Interest of the Child
i.
Determination of parenting time.
The court shall determine parenting time upon motion
of either party using the best interests of the child standard,
C.R.S. § 14-10-124(1)
.
Reasonable parenting time is mandated unless the court finds it endangers the child's physical
wellbeing and/or impairs a child's emotional development.
When determining the best interests of the child for the purpose of establishing parenting
time, the court shall consider all relevant factors.
With regards to the statement of facts laid
out in Husband’s Petition for Divorce, four factors laid out under
C.R.S. § 14-10-124(1.5)(a)
stand out as particularly relevant to this case:
ii.
The interaction and interrelationship of the child with his or her parents, his or her
siblings, and any other person who may significantly affect the child’s best interests;
Tim demonstrates consistent involvement in all areas of the children’s lives. Tim provides
consistent care for both children throughout the week and weekends, despite working a full time
job. Tim is already responsible for providing meals, performing bedtime routines, taking the
children to extracurricular activities, and helping with school work.
iii.
The mental and physical health of all individuals involved, except that a disability alone
shall not be a basis to deny or restrict parenting time;
Teacher’s have raised concerns about Stuart potentially having a learning disability and have
requested a formal evaluation. Sarah frequently gets frustrated helping Stuart with his
homework. As a result, Sarah often leaves this task solely up to Tim. Disrupting Stuart’s current
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routine where he heavily relies on his father for help with schoolwork and accompanying him to
activities would be detrimental to his well-being and grades.
iv.
Whether the past pattern of involvement of the parties with the child reflects a system
of values, time commitment, and mutual support;
Sarah has demonstrated a pattern of behavior that requires Tim to step in to mitigate the situation
whenever Sarah becomes stressed or frustrated. This is concerning, given that Sarah is requesting
primary custody and permanent alimony in order to continue to stay home and perform tasks that
Sarah already struggles to manage on her own.
v.
The ability of each party to place the needs of the child ahead of his or her own needs.
Tim has demonstrated consistent commitment to the children's well-being by actively
participating in their lives, to include Jasmine and Stuart's education and extracurricular
activities. Sarah has been inconsistent in this regard, especially with their son.
Further, Sarah's drinking habits have led to the children consistently being tardy. This behavior
has the potential to impact Stuart's and Jasmines academic performance and that Sarah struggles
to prioritize the children's needs effectively.
2.
Parental Responsibility
b.
In re Moore, 35 Colo. App. 280, 531 P.2d 995 (1975)
i.
Conduct of proposed custodians not affecting children is not to be considered.
Sarah has raised concerns regarding Tim’s gambling and its impact on the children and his
financial stability.
determined that the court shall not consider conduct of a proposed
custodian that does not affect the children.
Tim currently makes $150,000 years and has contributed a substantial amount of money to
savings and retirement. Additionally, the family home has been paid off. There is no
indication that Tim’s gambling has put the family at risk of financial instability or has
impacted his ability to care for his children, and therefore should not be considered in
determining parenting time.
3.
Timesharing with Minor Children
c.
Rayer v. Rayer, 32 Colo. App. 400, 512 P.2d 637 (1973).
d.
In re Miller, 670 P.2d 819 (Colo. App. 1983).
i. Primary Custody Assumption Based on Gender.
Sarah is requesting primary custody
because of her role as the stay at home parent. However, when the court is asked to determine
parenting time based on the best interest standard, and the mere fact of motherhood is not
sufficient to give a mother any special standing during a proceeding regarding custody
Rayer
v. Rayer, 32 Colo. App. 400, 512 P.2d 637 (1973)
Further,
In re Miller, 670 P.2d 819 (Colo. App. 1983)
the
court found that expressing an
undue emphasis on “motherly instincts” constituted a presumption based on her sex. This
presumption that a mother was better to serve the best interests of the child because of her
sex, was found to be both an abuse of discretion and reversible error.
With regards to the Petition of Divorce the court should consider the totality of the facts and
not rely solely on the fact that Sarah was a stay at home parent at the time the motion was
brought to the attention of the court.
4.
Child Support
e.
C.R.S. 14-10-115, Child Support Guidelines
i.
Guidelines.
Determining the amount of child support is based on established guidelines to
ensure the financial stability of the children post-divorce. Tim acknowledges he is the sole
and
his financial responsibility to the children but contends that Sarah should also contribute
and the court should consider her employability.
ii.
Potential Income Considerations
. C.R.S. 14-10-115
(b)(I) states
if a parent is voluntarily
unemployed or underemployed, child support must be calculated based on a determination of
potential income
.
Tim expresses concerns about Sarah's lack of motivation to find employment and spending
habits. He believes Sarah is capable of working while the children are in school and that her
earning potential be considered before an order is entered by the court.
Tim wishes to emphasize the importance of fair distribution of the financial responsibility for
the children by both parents.
5.
Permanent v. Temporary Alimony
f.
C.R.S. 14-10-114, Spousal Maintenance
i.
Determining Spousal Maintenance.
.
There is no mathematical formula for spousal
maintenance,
Carlson v. Carlson
, 178 Colo. 283. Tim and Sarah have been married for 20
years. Guidelines under
C.R.S. 14-10-114 for spousal maintenance would entitle Sarah to 120
months of support, unless specific findings support a reduced term and/or amount. .For that
reason, the court should consider various factors under C.R.S. 14-10-114(b)(i)(c) that would
affect an order of spousal support
before making its determination:
ii.
Both parties’ income, employment, and employability, obtainable through reasonable
diligence and additional training or education, if necessary, and any necessary reduction in
employment due to the needs of an unemancipated child of the marriage or the
circumstances of the parties;
Tim is requesting a vocational evaluator to assess Sarah's employability and potential earnings
before an order of spousal maintenance is determined by the court.
iii. The age and health of the parties, including consideration of significant health-care
needs or uninsured or unreimbursed health-care expenses;
Tim and Sarah are both healthy, able-bodied individuals capable of working. Additionally, both
parties spend multiple days in the gym. There is nothing that would limit Sarah from contributing
to her own wellbeing, and relying solely on Tim for support.
iv. Significant economic or noneconomic contribution to the marriage or to the economic,
educational, or occupational advancement of a party, including but not limited to
completing an education or job training, payment by one spouse of the other spouse’s
separate debts, or enhancement of the other spouse’s personal or real property;
Tim requests the court consider the savings account ($65,000) and retirement plan ($100,000)
that belong to Sarah that he fully contributed to throughout the marriage when calculating the
terms of any spousal maintenance.
6.
Division of Property
g. C.R.S. 14-10-113, Disposition of Property:
i . Equitable Distribution.
The court is to make an equitable division of marital property and
debts in a dissolution of marriage, although it need not be mathematically equal.
Eisenhuth v.
Eisenhuth,
976 P.2d 896 (Colo. App. 1999)
C.R.S. 14-10-113 states the court sh
all divide the marital property, without regard to marital
misconduct, in such proportions as the court deems just after considering all relevant factors
including
(a)
The contribution of each spouse to the acquisition of the marital property, including
the contribution of a spouse as homemaker;
During the majority of Tim and Sarah’s marriage, Tim has been the sole financial provider.
During that time, Tim contributed funds meant to directly provide for Sarah. Despite being
the only working adult, Tim also put in substantial time caring for the children and assisting
Sarah in her role as the stay at home parent when she is overwhelmed. Tim has contributed
substantial financial support and dedicated much of his free time to his family's well-being,
which should be considered when determining equitable distribution of the family's assets
and funds.
(b)
The value of the property set apart to each spouse;
Tim and Sarah have separate savings and retirement funds that Tim has solely contributed to.
(c)
The economic circumstances of each spouse at the time the division of property is to
become effective, including the desirability of awarding the family home or the right to live
therein for reasonable periods to the spouse with whom any children reside the majority of
the time;
There are currently no mortgage payments on the home valued at $300,000. Typically, the
family home is awarded to the parent who retains primary custody of the children in the state
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of Colorado. Given that Tim is requesting primary custody of the children based on the best
interest standard. Determination of any custody agreement between husband and wife should
be considered before making a determination regarding the family home.
ii.
De Koning v. De Koning, 2012 the court used the Petitioners (Wife) earning potential
based off of past earning before becoming a stay at home mom as a factor when considering
equitable distribution of the couples assets.
7.
Attorneys Fees
h. C.R.S. 13-17-102, Attorney’s Fees
i.
Attorneys Fees.
Tim has already acquired $10,000 in credit card debt related to attorney’s
fees. Tim has not made a request to the court for this debt created for the divorce to be
considered as a marital debt. However, if the court considers awarding attorney’s fees to
Sarah, Tim asks that his attorneys fees be considered before making any order.
ii. Sarah currently has $65,000 in savings and earning potential should be considered when
awarding attorney’s fees in this matter. (De Koning v. De Koning, 2012)
ii. Attorney’s fees are not considered non-challengeable martial debt under
Colo. Rev. Stat. §
14-10-113 (
In re Marriage of Rieger, 827 P.2d 625)