Gavel banging on cubes forming the word Appeal

On May 7, 2021, Governor Polis signed into law HB 21-1031, which modifies several statutes to clarify that trial courts still have jurisdiction to modify certain types of family law orders while a case is up on appeal.

Normally, once a party has appealed a case, the trial court is deprived of jurisdiction until the appeal is resolved. And in 2020, the Colorado Supreme Court held that the trial court was deprived of jurisdiction to consider a motion to modify parenting, as the issue of parenting was then pending an appeal, and the statute did not explicitly provide that the court keeps jurisdiction while an appeal is pending. W.C.1In re: Marriage of W.C., 2020 CO 2.

The Colorado Assembly moved fairly quickly with a new law which, in the legislative declaration to HB 21-1031, has the stated purpose of overturning W.C.:

“Therefore, the general assembly declares that a district court has continuing jurisdiction to modify family law orders based on changed circumstances as described in House Bill 21-1031, specifically reversing the supreme court’s holding and decision in In re: The Parental Responsibilities Concerning W. C.

The Act modifies several statutes to clarify that the trial court retains jurisdiction to consider motions to modify various types of family law matters while the case is on appeal. The language inserted into C.R.S. 14-10-122(1)(a) is typical of the simple language added:

“The trial court retains continuing jurisdiction to modify a decree respecting maintenance or child support pursuant to this section during the pendency of an appeal.”

Specific Issues Where Court Keeps Jurisdiction

The Act does not apply to all family law issues, but only provides for a trial court to keep jurisdiction over the following specific issues:

What this means is that an appeal will not deprive the trial court of jurisdiction to modify parenting or support when circumstances change, simply because one of the parties has appealed the case. It is not a substitute for an appeal – a litigant cannot simply ask the judge to change his/her mind without satisfying the requirements to modify an order.

What’s missing from this somewhat lengthy list? Any family law issues other than parenting or support, the most obvious example being modification of the property settlement. For property, debt, attorney’s fees, and other issues, the parties will still have to wait for the appellate court to rule.

Applicability of Act & Potential for Conflicting Orders?

HB 21-1031 applies to any motion filed after the date of its enactment (May 7, 2021). Note that the Act, while seeming somewhat common-sensical, could have an interesting effect. What happens if the court enters a child custody order, which one parent appeals. While the case was before the Court of Appeals, something pretty significant happens which causes one of the parents files a motion to modify custody.

The trial court may well modify the very same parenting order which was appealed based upon this new evidence, and if the Court of Appeals were to subsequently overturn the trial court’s original custody order, would the appeal be moot, since that order is no longer in effect? In reality, this is probably more of a “law school hypothetical” than a situation we will see much of in the real world, but this issue could arise when two different courts, the trial court and the appellate court, are simultaneously exercising jurisdiction over the same family law issues.

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