25CA0054 Marriage of Brand 04-02-2026
COLORADO COURT OF APPEALS
Court of Appeals No. 25CA0054 Jackson County District Court No. 20DR30000 Honorable Stephen J. Jouard, Judge
In re the Marriage of
Michelle Renee Brand, n/k/a Michelle Renee Brazelton,
Appellee,
and
Joseph Matthew Brand,
Appellant.
ORDER AFFIRMED IN PART AND REVERSED IN PART, AND CASE REMANDED WITH DIRECTIONS
Division I Opinion by JUDGE J. JONES Lum and Meirink, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced April 2, 2026
The Harris Law Firm, PLLP, Katherine O. Ellis, Denver, Colorado, for Appellee
Joseph Matthew Brand, Pro Se ¶1 In this post-dissolution of marriage proceeding involving
Michelle Renee Brand (mother) and Joseph Matthew Brand (father),
father appeals from the district court’s order modifying parenting
time and child support for the parties’ three children. We affirm the
portions of the order retroactively modifying child support and
prospectively modifying parenting time. However, we reverse the
portion of the order modifying child support under the new
parenting time order. We remand the case for the district court to
recalculate child support based on the new parenting time order
and for the court to consider mother’s request for appellate attorney
fees.
I. Background
¶2 The parties divorced in 2021, and the district court
incorporated their stipulated parenting plan into the decree of
dissolution. At the time, father was living in Walden, whereas
mother was living a significant distance away in Aurora.
¶3 The parties agreed that during daylight saving time, father
would have three overnights of parenting time, Thursday through
Sunday, during the first, third, and any fifth weekend of each
1 month. During standard time, father was allocated two overnights
of parenting time Friday through Sunday on the same schedule.
¶4 The parties also established a detailed schedule of alternating
parenting time for holidays and school breaks and agreed to ten
consecutive days of vacation time per party in the summer.
Although the children were homeschooled, the parties agreed to use
the local school district’s calendar to determine school breaks.
Lastly, the parties agreed that each party would receive ten
consecutive days of “bonus” parenting time with each individual
child.
¶5 The parties stipulated that father would pay child support of
$903 per month.
¶6 In September 2023, citing changes in expenses and father’s
failure to exercise all his allocated parenting time, mother moved to
modify child support. Shortly thereafter, father moved to modify
both parenting time and child support based on his recent
relocation to Fort Collins. Mother then also moved to modify
parenting time. The district court appointed a child and family
investigator (CFI) to make recommendations as to the parties’
competing parenting time requests.
2 ¶7 After a hearing, the district court modified parenting time.
The court ordered that during the school year, father would have
two overnights of parenting time, Sunday through Tuesday, the
first, third, and fifth weekend of every month. On Mondays and
Tuesdays, father was to be responsible for homeschooling the
children.
¶8 Father was allocated regular parenting time during summer
break, consisting of four overnights, Saturday through Wednesday,
on the same schedule. The court left in place the existing holiday
parenting time schedule and each party’s ten days of vacation
during the summer. However, the court reduced the parties’
“bonus” parenting time with each individual child to seven days,
limited to the summer.
¶9 The court increased father’s child support obligation to $1,620
per month retroactive to the date of mother’s motion to modify
parenting time.
¶ 10 Father filed a postjudgment motion arguing that the district
court committed multiple errors, but, except for the correction of a
typographical error, the court denied father’s motion.
3 II. Parenting Time
A. Application of Correct Legal Standard
¶ 11 To start, we reject as unpreserved father’s contention that the
district court applied the wrong legal standard when modifying
¶ 12 Specifically, father argues that the district court erred by
applying the best interests of the children standard under section
14-10-129(1)(a)(I), C.R.S. 2025, as opposed to the endangerment
standard under section 14-10-129(1)(b)(I), which applies when a
court restricts a party’s parenting time. According to father, his
parenting time was restricted both quantitatively via a reduction in
his overnights and qualitatively because his “bonus” overnights
were limited to the summer and much of his regular parenting time
would involve homeschooling the children.
¶ 13 However, “[i]t is axiomatic that issues not raised in or decided
by a lower court will not be addressed for the first time on appeal.”
Melat, Pressman & Higbie, L.L.P. v. Hannon Law Firm, L.L.C., 2012
CO 61, ¶ 18; see also Valentine v. Mountain States Mut. Cas. Co.,
252 P.3d 1182, 1188 n.4 (Colo. App. 2011) (“A party’s mere
opposition to its adversary’s request . . . does not preserve all
4 potential avenues for relief on appeal. We review only the specific
arguments a party pursued before the district court.”).
¶ 14 At no point did father argue before the district court that his
parenting time was being restricted or that the endangerment
standard should apply. Father asserts that his contentions of error
are nonetheless preserved because he presented them in his
postjudgment motion and he couldn’t have known that the court
would reduce his parenting time, triggering the endangerment
standard. We disagree for two reasons.
¶ 15 First, father was on notice of the parental changes ultimately
ordered by the trial court. In the joint trial management certificate
(JTMC), mother proposed both the regular parenting time schedule
that the court ultimately adopted and proposed the limitation to
summer of the parties’ “bonus” parenting time. Likewise, father’s
additions to the JTMC stated that, while it was his preference for
mother to continue as the sole provider of the children’s
homeschooling instruction, he was nevertheless willing to instruct
the children on Mondays and Tuesdays.
¶ 16 Given the positions taken by each party in the JTMC, father
was plainly on notice of the proposed parenting time schedule that
5 the district court ultimately implemented, and he had ample
opportunity to argue that the endangerment standard should apply
to that change. Yet he didn’t do so See Melat, ¶ 18.
¶ 17 Second, “[a]rguments made . . . for the first time in a post-trial
motion are too late and, consequently, are deemed waived for
purposes of appeal.” Briargate at Seventeenth Ave. Owners Ass’n v.
Nelson, 2021 COA 78M, ¶ 66.
B. Rejection of the CFI’s Recommendations
¶ 18 Father next contends that the district court erred by not
adopting the CFI’s recommendations as to parenting time. We
aren’t persuaded.
¶ 19 Section 14-10-116.5, C.R.S. 2025, provides that in an action
involving parental responsibilities, the district court may appoint a
neutral person to serve the court as a CFI. See In re Parental
Responsibilities of B.J., 242 P.3d 1128, 1133 (Colo. 2010). The CFI
must investigate, report, and make recommendations, considering
the best interests factors under section 14-10-124(1.5), C.R.S.
2025. § 14-10-116.5(2)(a); B.J., 242 P.3d at 1133.
¶ 20 The district court has the discretion to adopt the CFI’s
recommendations after considering the CFI’s report and the
6 evidence presented at a hearing. See § 14-10-116.5(2)(b); see also
B.J., 242 P.3d at 1133 (“Ultimately it is the role of the court to
weigh the CFI’s recommendations pursuant to the appropriate
standards to determine whether they are in the children’s best
interests.”). But the court may also disregard the CFI’s
recommendations and make its own decision based on the
evidence. Aylor v. Aylor, 478 P.2d 302, 304 (Colo. 1970); In re
Marriage of McNamara, 962 P.2d 330, 334 (Colo. App. 1998).
¶ 21 A court’s discretion over parenting time matters is broad, and
we must apply every presumption in favor of upholding the court’s
decision so long as it is supported by competent evidence in the
record. In re Marriage of Hatton, 160 P.3d 326, 330 (Colo. App.
2007). A court abuses its discretion if its decision is manifestly
arbitrary, unreasonable, or unfair, or if it misconstrues or
misapplies the law. In re Marriage of Evans, 2021 COA 141, ¶ 25.
¶ 22 Based on her analysis of the children’s best interests, the CFI
recommended that, during the school year, the children should
have regular parenting time with father Sunday through Tuesday
every weekend except for the second weekend each month. The CFI
also recommended that, long term, the children shouldn’t do their
7 homeschooling during father’s parenting time and, instead, the
children should do a nontraditional schooling schedule, with some
of their homeschooling occurring with mother on Saturday. The
CFI also recommended that, during the summer, father should have
parenting time Saturday through Wednesday for all but one
weekend per month. Lastly, the CFI suggested that the parties’
holiday and “bonus” parenting time remain unchanged.
¶ 23 While the district court found the CFI’s recommendations to
be “generally supported,” the court made its own detailed findings
concerning the children’s best interests and then awarded father
the same regular parenting time recommended by the CFI, except
for only the first, third, and fifth weekends of each month. The
court also required father to homeschool the children during the
school year.
¶ 24 We don’t see any abuse of the district court’s discretion
because the court was free to give whatever weight to the CFI’s
recommendations that it saw fit. B.J., 242 P.3d at 1133;
McNamara, 962 P.2d at 334; see also In re Marriage of Lewis, 66
P.3d 204, 207 (Colo. App. 2003) (“[C]redibility determinations and
the weight, probative force, and sufficiency of the evidence, as well
8 as the inferences and conclusions to be drawn therefrom, are
matters within the sole discretion of the trial court.”); In re Marriage
of Farr, 228 P.3d 267, 270 (Colo. App. 2010) (the district court’s
resolution of conflicting evidence is binding on review).
¶ 25 Importantly, mother testified at length as to why her proposed
parenting time schedule, which the district court ultimately
implemented, was in the children’s best interests. And given this
record support, we decline to disturb the district court’s
determinations and otherwise reweigh the evidence in father’s favor.
See People in Interest of A.J.L., 243 P.3d 244, 249-56 (Colo. 2010)
(reversing because the court of appeals “improperly substituted its
judgment for that of the trial court regarding the credibility of
witnesses and the weight, sufficiency, and probative value of the
evidence”).
III. Modification of Child Support
¶ 26 Father next asserts that the district court committed multiple
errors when modifying child support. Because we agree, we reverse
in part the portion of the order modifying child support.
9 A. Standards of Review and Applicable Law
¶ 27 We review a child support order for an abuse of discretion. In
re Marriage of Davis, 252 P.3d 530, 533 (Colo. App. 2011). But we
review de novo whether the district court applied the correct legal
standard when calculating child support, In re Marriage of Wells,
252 P.3d 1212, 1213 (Colo. App. 2011), and we won’t disturb the
district court’s factual findings if they have record support, In re
Marriage of Tooker, 2019 COA 83, ¶ 27.
B. Determination of Overnights and Use of Worksheet A
¶ 28 Under section 14-10-115(3)(h), C.R.S. 2025, “[s]hared physical
care” means that each parent has the children “for more than
ninety-two overnights each year” and that both parents contribute
to the children’s expenses in addition to paying child support. See
In re Marriage of Antuna, 8 P.3d 589, 596 (Colo. App. 2000). When
the parties share physical care, an adjustment is made to the basic
support obligation because certain basic expenses for the children
will be incurred by both parents. Id.; § 14-10-115(8)(b). To account
for this adjustment, worksheet B, rather than worksheet A, is used
to calculate child support when shared physical care exists.
Worksheet A is used when one parent is the primary residential
10 parent such that the other parent has ninety-two or fewer overnight
visits with the children each year. See Antuna, 8 P.3d at 596.
C. Modification of Child Support Under New Parenting Time Order
¶ 29 We first address father’s contention that he will have more
than ninety-two overnights under the new parenting time order,
and therefore the district court erred by using Worksheet A when
modifying child support. Because the district court made
insufficient findings in support of its use of Worksheet A, we reverse
the portion of the district court’s order modifying child support
under the new parenting time order and remand the case for
further proceedings.
¶ 30 A district court must make findings of fact and conclusions of
law sufficiently explicit to give an appellate court a clear
understanding of the basis of its order. See C.R.C.P. 52; In re
Marriage of Gibbs, 2019 COA 104, ¶ 9; In re Marriage of Rozzi, 190
P.3d 815, 822 (Colo. App. 2008).
¶ 31 When modifying child support, the district court initially
explained that it had “attempted to calculate” the overnights
allocated to father under the new parenting time order and then
11 found that father had been allocated not more than ninety-two
overnights. Yet the court didn’t make any specific findings as to the
number of overnights that father would be exercising, nor did it
provide any indication as to how it had determined the number of
father’s overnights.
¶ 32 Later, in its order denying father’s postjudgment motion, the
district court contradicted its prior findings and provided a different
justification for using Worksheet A, explaining that, under the new
parenting time order, father would be exercising less than ninety-
two overnights per year because of his past failure to exercise a
significant portion of his allocated parenting time. Yet, given the
district court’s inconsistent and conclusory explanations as to how
it determined that the use of Worksheet A was appropriate, we lack
a clear understanding of the court’s order, see Gibbs, ¶ 9, and
accordingly reverse the portion of the court’s order modifying child
support under the new parenting time order.
¶ 33 In defense of the district court’s ruling, mother cites her
testimony that father had historically failed to exercise significant
portions of his parenting time. And indeed, the district court
appeared to rely on mother’s testimony when it put forth a new
12 rationale for using Worksheet A in its denial of father’s
postjudgment motion. However, it was undisputed that father had
relocated from Walden to Fort Collins, which was closer to mother
and had significantly reduced the commute between the parties’
residences. Moreover, father’s relocation eliminated the substantial
mountain driving that characterized the parties’ prior parenting
time exchanges. Given this consequential change in father’s
location, we conclude that it was arbitrary for the district court to
rely on his past parenting time when determining the number of
overnights father would exercise under the new parenting time
order. See Evans, ¶ 25.
¶ 34 Therefore, on remand, the district court must determine
father’s number of overnights under the new parenting time order,
and the court must accordingly use that number to determine
father’s child support obligation under the provisions of section 14-
10-115. On remand, the court must consider the parties’ current
financial circumstances when redetermining child support. See In
re Marriage of Schaefer, 2022 COA 112, ¶ 41. The court should
make sufficient findings to give us a clear understanding of the
13 basis of its order, including findings as to how the court determined
the number of father’s overnights. Gibbs, ¶ 9.
D. Retroactive Child Support
¶ 35 While we reverse the portion of the court’s order modifying
child support going forward, we affirm the portion of the district
court’s order modifying child support retroactive to the date that
mother filed her January 31, 2024, motion to modify parenting
time.
¶ 36 Given mother’s testimony that father had failed to exercise
significant portions of his parenting time under the prior parenting
time order, we conclude that the district court could retroactively
modify child support under that prior order based on the parenting
time that father had actually exercised. Cf. Brown v. Brown, 516
P.2d 1129, 1131 (Colo. 1973) (recognizing that the parent was “only
entitled to payments when the children were actually with her and
supported by her”).
¶ 37 And while father argues that the district court abused its
discretion by entering any order retroactively modifying child
support, we disagree because any error was invited by father.
14 ¶ 38 In the JTMC, father specifically argued that, based on his
proposed parenting time schedule, his child support obligation
would be reduced by more than ten percent, thus warranting
modification. Yet, even though his request to modify child support
was based on a proposed change in future parenting time, father
nevertheless asked that child support be modified retroactive to the
date of mother’s September 2023 motion to modify child support.
¶ 39 Father now argues that the district court erred by modifying
child support retroactively because the portion of the district court’s
order modifying parenting time only applied going forward. (OB p.
29) But given the contrary position that he took in the JTMC, we
hold that father’s contentions are barred by the doctrine of invited
error. See In re Marriage of O’Connor, 2023 COA 35, ¶ 24
(recognizing that “[t]he doctrine of invited error precludes a party
from appealing an error that the party invited or injected into the
case”); cf. Horton v. Suthers, 43 P.3d 611, 619 n.10 (Colo. 2002)
(invited error merely mandates that the claim of error cannot be
considered but does not suggest that actual error occurred).
15 E. Maintenance Multiplier
¶ 40 Because the issue may arise on remand depending on the
parties’ current financial circumstances, we next address father’s
contention that the district court miscalculated the adjusted
maintenance figure that was to be deducted from his gross income
and added to mother’s gross income when calculating his child
support obligation. We agree with father that the court erred.
¶ 41 Under section 14-10-115(3)(a)(II)(A), (B), when the
maintenance actually paid by a parent isn’t deductible for federal
income tax purposes, then the amount of maintenance deducted
from that parent’s gross income is multiplied by 1.25 if the parties’
combined monthly adjusted gross income is ten thousand dollars or
less; it is multiplied by 1.33 if the parties’ combined monthly
adjusted gross income exceeds ten thousand dollars. And under
section 14-10-115(5)(a)(I.5), the maintenance received by the
recipient parent is likewise adjusted using the same multipliers.
¶ 42 The parties’ combined gross incomes exceeded $14,000 per
month, requiring the application of the 1.33 multiplier to the
$1,309 in monthly maintenance paid by father, which should have
resulted in a maintenance adjustment of $1,741 on each side of the
16 child support worksheet. See § 14-10-115(3)(a)(II)(B), (5)(a)(I.5).
Yet, the district court incorrectly multiplied the $1,309 per month
in maintenance by 1.25, resulting in a maintenance adjustment of
only $1,636.
¶ 43 Accordingly, when reconsidering child support based on the
parties’ present circumstances, the district court must ensure on
remand that it applies the correct multiplier.
IV. Appellate Attorney Fees
¶ 44 Asserting that father’s appeal is frivolous, mother requests an
award of her attorney fees incurred on appeal. See § 13-17-102,
C.R.S. 2025. We don’t view his appeal as frivolous such that an
award of appellate attorney fees is appropriate, and we therefore
deny mother’s request.
¶ 45 Mother also requests her appellate attorney fees under section
14-10-119, C.R.S. 2025, due to the alleged financial disparities
between the parties. Because the district court is better situated to
determine the factual issues regarding the parties’ current financial
resources, we direct it to address this request on remand. See
C.A.R. 39.1; In re Marriage of Schlundt, 2021 COA 58, ¶ 54.
17 V. Disposition
¶ 46 The portions of the order retroactively modifying child support
and prospectively modifying parenting time are affirmed. The
parenting time order is reversed. The case is remanded for the
district court to (1) recalculate child support under the new
parenting time order consistent with this opinion, and (2) address
mother’s request for appellate attorney fees. Those portions of the
order not challenged on appeal remain undisturbed.
JUDGE LUM and JUDGE MEIRINK concur.