Estate of Higginbotham

• Court: Colorado Court of Appeals
• Decided: August 28, 2025
• Docket: 24CA1877
• Status: Unpublished

Opinion

24CA1877 Estate of Higginbotham 08-28-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA1877 El Paso County District Court No. 17PR129 Honorable Kristen Hoffecker, Magistrate

In re the Estate of Boyd N. Higginbotham, Sr., deceased.

Kelly D. McGoffney,

Appellant,

v.

Catherine Seal, Diane Susan Evans, Boyd Higginbotham, Jr., Rodney Higginbotham, and Orlanda Moore,

Appellees.

ORDER AFFIRMED

Division III Opinion by JUDGE BROWN Dunn and Schock, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced August 28, 2025

Kelly D. McGoffney, Pro Se

No Appearance for Appellees ¶1 In this probate case, Kelly D. McGoffney appeals the final

settlement of the estate of Boyd N. Higginbotham, Sr., McGoffney’s

deceased father. We affirm.

I. Background

¶2 This is the fifth appeal McGoffney has filed arising out of the

probate of her father’s estate. In March 2017, Higginbotham’s

daughter, Diane Susan Evans, sought informal probate of what was

purported to be Higginbotham’s will. McGoffney intervened as an

interested party and filed several motions contesting the legitimacy

of the will and the heirship of Evans and others.

¶3 Through counsel, McGoffney set her motions for a hearing

before a magistrate in January 2018. In February, the magistrate

issued an order (1) revoking the informal probate of the will that

Evans filed, having been unable to find by a preponderance of the

evidence that Higginbotham executed it; (2) concluding that

Higginbotham died intestate; and (3) declaring that Higginbotham

had five descendants — McGoffney, Evans, Boyd Higginbotham, Jr.,

Rodney Higginbotham, and Orlanda Moore — who were “equal heirs

of [Higginbotham’s] estate.” The order noted that it “was issued

with consent” and that “any appeal taken must be in accordance

1 with Rule 7(b) of the Colorado Rules for Magistrates.” McGoffney

did not timely appeal the February 2018 order to the Colorado

Court of Appeals.

¶4 In July 2018, McGoffney filed a motion to determine heirship,

requesting that the court order DNA testing for “all alleged heirs.”

In August, the magistrate denied the motion, explaining that she

had determined the issue of Higginbotham’s heirs in the February

2018 order and that McGoffney could not seek the redetermination

of heirship under section 15-12-412, C.R.S. 2025. The order again

noted that it “was issued with consent; any appeal must be in

accordance with Rule 7(b) of the Colorado Rules for Magistrates.”

¶5 McGoffney sought district court review of the magistrate’s

August 2018 order. The district court denied McGoffney’s petition,

reasoning that an appeal of a magistrate’s order issued with

consent must be filed in the Colorado Court of Appeals. McGoffney

moved the district court to reconsider, arguing that she never

consented to the magistrate presiding over the probate case. In

December, the district court denied the motion, explaining that

McGoffney consented to the magistrate by filing her motions in the

magistrate’s division and by not objecting when the magistrate

2 heard the motions. McGoffney appealed the district court’s orders

to this court but voluntarily dismissed the appeal. In re Estate of

Higginbotham, (Colo. App. No. 19CA0200, June 28, 2019)

(unpublished order).

¶6 In 2019, the then-presiding magistrate issued additional

orders concerning Higginbotham’s heirs, including that Boyd

Higginbotham, Jr. and McGoffney are “conclusively” Higginbotham’s

heirs and that Evans, Moore, and Rodney Higginbotham must

submit to DNA testing to prove they are Higginbotham’s biological

children. The DNA test results showed that none of the three

contested heirs was McGoffney’s biological sibling. In response,

Evans filed paternity determinations for herself and Moore, which

had been issued by an Indiana court in the 1960s. After a hearing,

the magistrate ordered the contested heirs to submit certified copies

of any court documents establishing paternity, after which he

would make a final determination concerning heirship. Evans and

Moore submitted certified paternity documents; Rodney

Higginbotham did not.

¶7 McGoffney filed several petitions for review of the magistrate’s

2019 orders concerning heirship. The district court denied her

3 petitions, reasoning again that McGoffney had consented to the

magistrate and that an appeal of a magistrate’s order issued with

consent must be filed in the Colorado Court of Appeals. McGoffney

appealed the district court’s order, but the appeal was dismissed

with prejudice as an untimely appeal of the magistrate’s orders. In

re Estate of Higginbotham, (Colo. App. No. 20CA0688, Oct. 9, 2020)

¶8 In March 2021, McGoffney moved under C.R.C.P. 60(b) to set

aside all the magistrates’ orders for lack of jurisdiction. The district

court denied McGoffney’s motion because it “raise[d] the same

issue” regarding magistrate consent that had been resolved by prior

orders.

¶9 McGoffney appealed, and a division of this court ordered her

to show cause why the appeal should not be dismissed, observing

that her Rule 60(b) motion “appear[ed] to be another attempt to

collaterally attack judgments and orders that have been finally

resolved and are no longer subject to further judicial review.” In re

Estate of Higginbotham, (Colo. App. No. 21CA0778, May 4, 2022)

(unpublished order). After McGoffney filed a response, the division

explained that McGoffney had not identified any orders entered

4 between the dismissal of her second appeal and the filing of her

third appeal that were reviewable. Thus, the division concluded

that it lacked jurisdiction to review the district court’s or the

magistrates’ orders and dismissed the appeal with prejudice. In re

Estate of Higginbotham, (Colo. App. No. 21CA0778, June 17, 2022)

¶ 10 In May 2024, the personal representative petitioned for final

settlement of the estate. McGoffney objected, and the

then-presiding magistrate set the matter for a hearing. McGoffney

appealed the magistrate’s order setting the hearing, but the appeal

was dismissed for lack of a final, appealable judgment. In re Estate

of Higginbotham, (Colo. App. No. 24CA1305, Aug. 16, 2024)

¶ 11 The magistrate conducted the final settlement hearing on

October 23, 2024. McGoffney failed to appear. The same day, the

magistrate entered an order for final settlement, dividing

Higginbotham’s estate among four heirs: McGoffney, Boyd

Higginbotham, Jr., Evans, and Moore.

5 II. Analysis

¶ 12 “Pleadings by pro se litigants must be broadly construed to

ensure that they are not denied review of important issues because

of their inability to articulate their argument like a lawyer.” Jones

v. Williams, 2019 CO 61, ¶ 5. Still, it is not our role to rewrite a pro

se appellant’s briefs or to act as their advocate. Johnson v.

McGrath, 2024 COA 5, ¶ 10.

¶ 13 Construing McGoffney’s opening brief broadly, we understand

her to contend that the magistrate erred by (1) entering the order

for final settlement without her consent; (2) authorizing the

distribution of Higginbotham’s estate to non-lineal heirs; (3) failing

to enforce the personal representative’s fiduciary duties; and

(4) committing a number of statutory and procedural errors that

cumulatively deprived her of procedural due process. We affirm the

order for final settlement.

A. Consent

¶ 14 McGoffney contends that the magistrate lacked jurisdiction to

enter any orders in this case because she did not consent to the

magistrate at the beginning of the proceeding. But in December

2018, the district court determined that McGoffney had consented

6 to the magistrate by affirmatively requesting relief in motions filed

in the magistrate’s division and by not objecting when the

magistrate heard those motions. The court also determined that

McGoffney could not revoke her consent. See C.R.M. 3(f)(1).

¶ 15 McGoffney appealed the district court’s order but voluntarily

dismissed the appeal with prejudice. Estate of Higginbotham, No.

19CA0200.1 As a result, the district court’s order became final and

binding on McGoffney. See Youngs v. Indus. Claim Appeals Off.,

2012 COA 85M, ¶ 49 (“Once an issue has been raised and decided,

it becomes the law of the case.”); In re Estate of Leslie, 886 P.2d

284, 286 (Colo. App. 1994) (declining to address contentions that

were resolved in a prior appeal). McGoffney is not entitled to raise

this issue again and again, hoping for a different result.

¶ 16 We also note that, with respect to the order for final settlement

in particular, McGoffney failed to appear at the properly noticed

1 McGoffney similarly raised the issue of consent to jurisdiction in

her second and third appeals to this court, but in both instances this court declined to address the issue and dismissed McGoffney’s appeals with prejudice. In re Estate of Higginbotham, (Colo. App. No. 20CA0688, Oct. 9, 2020) (unpublished order); In re Estate of Higginbotham, (Colo. App. No. 21CA0778, June 17, 2022) (unpublished order).

7 hearing during which the magistrate considered her objections. For

this additional reason, we conclude that McGoffney consented to

proceeding before the magistrate. See C.R.M. 3(f)(1)(A)(iii) (“[A] party

is deemed to have consented to a proceeding before a magistrate

if . . . [t]he party failed to appear at a proceeding after having been

provided notice of that proceeding.”).

B. Determination of Heirs

¶ 17 McGoffney contends that the magistrate erred by authorizing

the distribution of Higginbotham’s estate to individuals who were

not his heirs. But McGoffney failed to appear and present evidence

at the hearing on her objections to the final settlement, including

her claim that Evans and Moore were not, in fact, Higginbotham’s

heirs.

¶ 18 At the hearing, the magistrate considered the paternity

determinations made in Indiana in the 1960s. Although McGoffney

sought to challenge those paternity determinations in a separate

action in Indiana, the Indiana court entered judgment against her

for failure to appear and prosecute her claims, for failure to state a

claim upon which relief can be granted, and for “submitting

multiple false and non-existent citations to case law throughout her

8 voluminous filings” that were “either knowingly and deliberately

fabricated or were generated using artificial intelligence” and that

warranted “a serious sanction such as dismissal with prejudice.”

The magistrate considered the Indiana court’s dismissal order.

¶ 19 Ultimately, the magistrate recognized the Indiana paternity

orders “under the full faith and credit clause of the United States

Constitution” and concluded that McGoffney had “abandoned her

efforts to challenge those paternity results.” The magistrate found

that Higginbotham had consented to his paternity of Evans and had

an order for child support as to Moore. The magistrate concluded

that Higginbotham’s heirs were McGoffney, Boyd Higginbotham, Jr.,

Evans, and Moore and ordered that Higginbotham’s estate be

divided among them.

¶ 20 By failing to appear at the final settlement hearing, McGoffney

failed to prove her claims by a preponderance of the evidence. See

In re Marriage of Durie, 2020 CO 7, ¶ 32 (the moving party bears the

burden to demonstrate their entitlement to relief by a

preponderance of the evidence). And because the record otherwise

supports the magistrate’s heirship determination, we will not

disturb it.

9 C. McGoffney’s Remaining Contentions

¶ 21 As best we understand, McGoffney also contends that the

magistrate (1) failed to enforce the personal representative’s

fiduciary duties and (2) denied McGoffney procedural due process.

We decline to consider these or any other remaining contentions.

¶ 22 C.A.R. 28(a)(7)(A) requires that McGoffney’s opening brief

contain, among other things, “statements . . . [regarding] whether

the issue was preserved, and if preserved, the precise location in

the record where the issue was raised and where the court ruled.”

An issue is preserved for appeal when it is brought to the district

court’s attention and the court has an opportunity to rule on it. In

re Marriage of Turilli, 2021 COA 151, ¶ 12. We do not address

issues in civil cases that were not properly preserved for appeal.

Madalena v. Zurich Am. Ins. Co., 2023 COA 32, ¶ 50.

¶ 23 McGoffney failed to comply with C.A.R. 28(a)(7)(A). She did not

identify where in the record she raised any of her remaining

contentions or where the magistrate or district court ruled on them.

Because McGoffney failed to establish that any of her remaining

contentions were preserved, we decline to address them. See

O’Quinn v. Baca, 250 P.3d 629, 631 (Colo. App. 2010) (declining to

10 address an issue because the parties failed to direct the court to a

place in the record where the issue was raised and ruled on);

Valentine v. Mountain States Mut. Cas. Co., 252 P.3d 1182, 1186

(Colo. App. 2011) (“When a party does not point us to where an

issue was raised and resolved, he ‘place[s] the burden of searching

records on us’ — a search we are not required to undertake.”

(citation omitted)).

¶ 24 In addition, C.A.R. 28(a)(7)(B) requires that an appellant’s brief

contain “a clear and concise discussion of the grounds upon which

the party” seeks relief, including any “citations to the authorities

and parts of the record on which the appellant relies.” McGoffney

fails to set forth a cogent argument on any of her remaining

appellate issues and does not support her argument with citations

to relevant authorities or record evidence. In fact, a majority of the

cases McGoffney cites do not support her assertions, and some even

appear to be fabricated.

¶ 25 When a party fails to comply with the appellate rules, we may

impose sanctions, including refusing to consider certain arguments

or dismissing an appeal. C.A.R. 38(a); Bruce v. City of Colorado

Springs, 252 P.3d 30, 32 (Colo. App. 2010) (“Ordinarily, we would

11 summarily strike [the] plaintiff’s briefs and dismiss the appeal” for

failure “to meet the basic requirements of C.A.R. 28.”). We may also

decline to address incoherent, conclusory, or underdeveloped

arguments. Sanchez v. Indus. Claim Appeals Off., 2017 COA 71,

¶ 41 (declining to address undeveloped argument); Castillo v.

Koppes-Conway, 148 P.3d 289, 291-92 (Colo. App. 2006) (refusing

to consider contentions on appeal because the opening brief set

forth no cogent argument and violated C.A.R. 28). We decline to

address McGoffney’s remaining contentions on these bases as well.

III. Disposition

¶ 26 We affirm the order for final settlement.

JUDGE DUNN and JUDGE SCHOCK concur.