23CA1708 Marriage of Byarlay 09-19-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA1708 Weld County District Court No. 12DR787 Honorable Anita Crowther, Judge
In re the Marriage of
Shad Harold Byarlay,
Appellee,
and
Rachael Tippmann,
Appellant.
ORDER AFFIRMED
Division VII Opinion by JUDGE KUHN Gomez, J., concurs Tow, J., dissents
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced September 19, 2024
Choice City Family Law, LLC, Desiree Gray, Fort Collins, Colorado, for Appellee
Rachael Tippmann, Pro Se ¶1 In this post-dissolution of marriage proceeding involving Shad
Harold Byarlay (father) and Rachael Tippmann (mother), mother
appeals the district court’s order granting father’s motion to
relocate with the parties’ child and modifying the allocation of
parental responsibilities. We affirm.
I. Background
¶2 The parties divorced in 2013 and have one child. Under the
permanent orders, the parties shared decision-making
responsibilities and were equally allocated parenting time, although
mother was designated the primary residential parent for purposes
of enrolling the child in school. The initial allocation of parental
responsibilities was later modified to award father decision-making
responsibility for the child’s education. At that time, father was
also designated the child’s primary residential parent for schooling
purposes, although the parties maintained an equal allocation of
parenting time.
¶3 In 2021, mother filed a motion to modify parenting time and
decision-making responsibilities. She sought sole decision-making
responsibilities, asked to be redesignated the primary residential
parent, and sought to reduce father’s parenting time to every other
1 weekend. Mother also moved for temporary orders modifying
parenting time and decision-making responsibilities. While
mother’s motions were still pending, father moved to relocate with
the child from his current residence in Lyons to Grand Junction,
because he had obtained a new job in Grand Junction.
¶4 The district court entered temporary orders providing that
father would have parenting time every weekend until his relocation
to Grand Junction, and then significant telephone and video call
parenting time after that. Roughly six months later, in March
2023, father amended his motion to relocate. He indicated that he
had not been able to remain in Grand Junction due to
circumstances beyond his control, and instead, he had already
relocated to Burlington, where he had family.
¶5 Following a hearing, the court granted father’s motion on
August 7. The court found that it was in the child’s best interests
to relocate with father to Burlington for the start of the 2023 school
year. Accordingly, the court ordered that during the school year,
the child would reside primarily with father in Burlington, with
mother receiving parenting time every other weekend. The court left
2 its existing allocation of decision-making responsibilities
unchanged.
II. Discussion
¶6 As an initial matter, we address the dissent’s position that we
lack subject matter jurisdiction to consider mother’s appeal
because her notice of appeal was not timely filed. Under C.A.R.
4(a)(1), mother was required to file her appeal of the court’s August
7 order within forty-nine days of its entry. Yet, as the dissent notes,
she filed her notice of appeal roughly eight days after this deadline
had expired.
¶7 This court ordered mother to show cause why her appeal
should not be dismissed as untimely and ordered her to provide a
copy of the order she was appealing. Mother filed two documents
on the same date in response, one titled “Motion to/for Relief from
Adverse Action &/or Dismissal” and the other titled “Motion for stay
of order and writs while pending appeal[, and] Motion for extension
of time.” In the first document, she described how the copy of the
order she had sent to this court had been returned by the post
office as undeliverable. She included a copy of the envelope
demonstrating that fact. She also asserted that the welfare and
3 safety of the child was at risk, the child was endangered by the
order, and the appeal was urgent. In the second document, she
described her own medical diagnosis and asserted generally that
the trauma of the case affected her ability to meet strict deadlines.
After receiving those filings, a motions division of this court
discharged the order to show cause and permitted the appeal to
move forward.
¶8 It’s true that we’re not bound by a motions division’s ruling.
Chavez v. Chavez, 2020 COA 70, ¶ 13. But we generally will not
revisit a motions division’s ruling on an issue unless the ruling
raises serious questions about our own jurisdiction. FSDW, LLC v.
First Nat’l Bank, 94 P.3d 1260, 1262 (Colo. App. 2004); see also
Parker v. USAA, 216 P.3d 7, 10 (Colo. App. 2007), aff’d, 200 P.3d
350 (Colo. 2009). Because we discern no such serious questions on
this record, we decline to nostra sponte reconsider the motions
division’s decision to accept mother’s untimely appeal.
¶9 But even though we won’t dismiss mother’s entire appeal
outright, we note that some of her contentions are not properly
before us for review. Mother asserts various errors related to
multiple orders issued by the district court after the order granting
4 father’s motion to relocate with the child. Specifically, she contends
that the district court erred by issuing writs in aid of enforcement of
the relocation order and that it would be improper for the court to
hold her in contempt of that order.
¶ 10 In its show cause order, this court ordered mother to provide
copies of any orders she sought to appeal in compliance with C.A.R.
3(d)(8). In response, mother indicated that she was only appealing
the August 7, 2023, order permitting relocation. Further, she could
not yet have sought review of the contempt proceedings considering
that the court hasn’t issued a final “order deciding the issue of
contempt and sanctions.” C.R.C.P. 107(f); see also C.A.R. 1 (stating
that an appeal may be prosecuted only from a final, appealable
judgment or order). Accordingly — given this court’s earlier order
and mother’s response — we decline to consider mother’s
contentions of error as to these later issues.
¶ 11 We will therefore consider only mother’s numerous challenges
to the district court’s order granting father’s motion to relocate with
the child and modifying the allocation of parental responsibilities.
And because we disagree with those challenges, we affirm the order.
5 A. Applicable Legal Standards
¶ 12 Section 14-10-129(2)(c), C.R.S. 2024, establishes the
procedure that the court must follow in deciding a majority or equal
parent’s post-decree motion to relocate. In re Marriage of Ciesluk,
113 P.3d 135, 140-42 (Colo. 2005); In re Marriage of DeZalia, 151
P.3d 647, 650 (Colo. App. 2006). The court must consider the best
interest factors in section 14-10-124(1.5)(a), C.R.S. 2024, and the
relocation factors in section 14-10-129(2)(c) when evaluating the
child’s best interests as well as the parents’ interests relative to the
requested relocation. See Ciesluk, 113 P.3d at 140, 142.
¶ 13 The court must begin its analysis with each parent on equal
footing and may not presume either that a child is better off or
disadvantaged by relocating with the moving parent. Id. at 147.
Each parent has the burden to persuade the court that the
relocation would be in, or contrary to, the best interests of the child.
Id. at 148. The court must disclose the reasons for its decision and
make specific findings with respect to the relevant statutory factors.
Id. at 148, 150; see also § 14-10-129(2)(c); C.R.C.P. 52 (district
court shall “set forth the findings of fact and conclusions of law
which constitute the grounds of its action”). The court need not
6 make specific findings on every statutory factor, although there
must be some indication that the court considered the pertinent
factors. People in Interest of A.M.K., 68 P.3d 563, 566 (Colo. App.
2003).
¶ 14 We review the court’s relocation decision for an abuse of
discretion, see Ciesluk, 113 P.3d at 148, meaning that we will not
disturb the decision unless it is manifestly arbitrary, unreasonable,
or unfair, In re Marriage of Gibbs, 2019 COA 104, ¶ 8. We exercise
every presumption that supports upholding the court’s decision. In
re Marriage of Hatton, 160 P.3d 326, 330 (Colo. App. 2007). We
review de novo, however, whether the court applied the proper legal
standard. See In re Marriage of Morgan, 2018 COA 116M, ¶ 7.
B. Application of Incorrect Legal Standards
¶ 15 Because mother appears pro se, “we liberally construe [her]
filings while applying the same law and procedural rules applicable
to a party represented by counsel.” Gandy v. Williams, 2019 COA
118, ¶ 8. Accordingly, we seek to effectuate the substance, rather
than the form, of her briefing. See People v. Cali, 2020 CO 20, ¶ 34.
We won’t, however, rewrite her arguments or act as an advocate on
her behalf. See Johnson v. McGrath, 2024 COA 5, ¶ 10.
7 ¶ 16 As we understand it, mother argues that the district court
erred by failing to treat her as the majority-time parent in
evaluating father’s relocation request and erred by otherwise failing
to apply the legal standards set forth in sections 14-10-124 and
14-10-129. We discern no error.
¶ 17 In finding that relocation was in the child’s best interests, the
court first considered father’s reasons for relocating with the child,
including the presence of both father’s employer and extended
family in Burlington. The court also considered father’s testimony
that the child would attend Burlington High School, which had a
99% graduation rate, and then weighed mother’s objection to the
relocation given that the child also had friends and family in
Loveland, where mother resided.
¶ 18 In assessing the statutory best interests factors, the court
found that mother had “actively prevented and discouraged [the
child] from having a relationship with [f]ather,” and, despite a
previous warning from the court, mother had withheld parenting
time from father and repeatedly disregarded the parenting time
orders. Accordingly, the court concluded that “[m]other ha[d] zero
8 ability to encourage the sharing of love, affection, and contact
between the child and the other party.”
¶ 19 Moreover, the court expressed concern that while in mother’s
care, the child “hardly attend[ed] school,” having missed over three
hundred class periods during mother’s parenting time the prior
school year. The court further observed that “[m]other has
struggled to get the child to school and with school attendance
since the child was in kindergarten” and expressed fear that
“without a significant change, [the child] will not graduate high
school.” Even though the court had previously warned her about
the importance of school attendance, the court further found that
“[m]other ha[d] no plan to get the child to school or work on [the
child’s] attendance.”
¶ 20 Given these detailed findings, we reject mother’s assertion that
the court failed to apply sections 14-10-124 and 14-10-129. While
the court did not make explicit findings as to every statutory factor,
it was not required to, see A.M.K., 68 P.3d at 566, and we are
otherwise satisfied that the court considered the relevant statutory
factors in sections 14-10-124(1.5)(a) and 14-10-129(2)(c) when
allowing father to relocate with the child and implementing a new
9 parenting time schedule. Moreover, there is no indication that the
court applied any improper presumption in father’s favor as
opposed to placing an equal burden on each party in resolving the
relocation issue. See Ciesluk, 113 P.3d at 148 (recognizing that the
court erred by denying a motion to relocate when it prematurely
concluded that the parties should remain in close proximity to each
other).
¶ 21 Mother also argues that the court failed to consider the child’s
wishes as required by section 14-10-124(1.5)(a)(II). But because we
lack a transcript of the relocation hearing, we are unable to
ascertain to what extent the parties presented any information on
that factor and therefore must assume that the court’s order was
supported by the record. See In re Marriage of Dean, 2017 COA 51,
¶ 15 (where an appellant does not provide a sufficient record
demonstrating that the district court erred, we must presume that
the record supports the court’s judgment).
¶ 22 Finally, we reject mother’s argument that she was the
majority-time parent, and therefore, the court erred by allowing
father’s motion to relocate to proceed based on a finding that the
parties equally shared parenting time. Mother’s contention is
10 contradicted by the most recent permanent parenting time order,
which designated father as the primary residential parent for
schooling purposes and maintained an equal allocation of parenting
time. Although the court entered temporary orders reducing
father’s parenting time during his initial relocation to Grand
Junction, the temporary orders unambiguously stated that they
would not prejudice either party as to the resolution of the parties’
other outstanding motions. See § 14-10-108(5)(a), C.R.S. 2024
(providing that temporary orders do “not prejudice the rights of the
parties or the child which are to be adjudicated at subsequent
hearings in the proceeding”). And to the extent that mother was at
times effectively the majority-time parent because, as the court
found, she had been withholding father’s parenting time, mother
has not directed us to any legal authority suggesting that a parent
may obtain majority-time status by refusing to follow the existing
parenting time orders.
C. Mother’s Remaining Contentions of Error
¶ 23 Our review of mother’s multiple remaining contentions of error
is severely hampered by the lack of a complete record. Specifically,
we lack a transcript of the April 2023 hearing that addressed
11 father’s motion to relocate and mother’s competing motion to
modify parenting time and decision-making responsibilities.
Likewise, we lack transcripts of the multiple status conferences and
pretrial readiness conferences preceding that hearing, during which
mother asserts that various errors also occurred.
¶ 24 As the appellant, it was mother’s responsibility to designate
the record and to ensure that all items designated were transmitted
to the appellate court. See In re Marriage of Tagen, 62 P.3d 1092,
1096 (Colo. App. 2002). Therefore, mother was required to “include
in the record transcripts of all proceedings necessary for
considering and deciding the issues on appeal.”1 C.A.R. 10(d)(3).
Where an appellant fails to include the necessary portions of the
1 We acknowledge mother’s assertion that, being indigent, she
attempted but couldn’t afford to purchase the transcripts. We also recognize that it was beyond the district court’s authority to waive the fees associated with obtaining them. See Chief Justice Directive 98-01, Costs for Indigent Persons in Civil Matters, § III (amended Apr. 2024). Nonetheless, we note that under C.A.R. 10(e), the parties could have agreed to submit a statement of the evidence or proceedings in lieu of designating transcripts with the district court. There is no indication that mother tried to utilize this alternative avenue to provide a record of the proceedings. Regardless, her efforts in this regard do not relieve her of her obligation to provide transcripts for our review.
12 record, we must presume that the missing record supports the
judgment. See Dean, ¶ 15; cf. People v. Wells, 776 P.2d 386, 390
(Colo. 1989) (reviewing court cannot conclude that the district
court’s judgment is erroneous when the record is insufficient).
¶ 25 Likewise, mother has failed to include relevant citations to the
record in her briefing, and she has not included relevant dates or
other information that would allow us to readily locate her
numerous alleged errors. See C.A.R. 28(a)(7)(A)-(B) (requiring an
appellate brief to cite “the precise location in the record where the
issue was raised and where the court ruled” and include “citations
to the authorities and parts of the record on which the appellant
relies” when presenting the appellant’s arguments). And it is not
otherwise our duty as the reviewing court “to search the record for
evidence to support” her arguments. Brighton Sch. Dist. 27J v.
Transamerica Premier Ins. Co., 923 P.2d 328, 335 (Colo. App. 1996),
aff’d, 940 P.2d 348 (Colo. 1997). Moreover, “[a]rguments not
presented at trial cannot be raised for the first time on appeal,” In re
Marriage of Ensminger, 209 P.3d 1163, 1167 (Colo. App. 2008), and
without relevant transcripts and citations to the record, we are
13 unable to ascertain what arguments and information mother
presented to the court in the course of the proceedings.
¶ 26 Similarly, many of mother’s remaining contentions represent
bald assertions of error, presented without any supporting legal
authority or argument. See People in Interest of R.J.B., 2021 COA 4,
¶ 35 (declining to consider a bald legal proposition presented
without argument or development); C.A.R. 28(a)(7)(B). And while we
acknowledge that mother is pro se, a party’s pro se status does not
excuse a party from complying with the appellate rules. See Gandy,
¶ 8; see also Cornelius v. River Ridge Ranch Landowners Ass’n, 202
P.3d 564, 572 (Colo. 2009) (court may take into account that the
party is pro se but pro se parties are bound by same rules as
attorneys).
¶ 27 Given these numerous deficiencies, we presume that the
record supports the district court’s order concerning mother’s
remaining contentions of error, and otherwise decline to consider
her undeveloped arguments, regarding the following matters:
• the court’s service of various pleadings on her;
• the reassignment of the case to a different district court
judge;
14 • the leeway afforded to father in responding to mother’s
motion to modify parenting time and decision-making
responsibilities;
• mother’s request to interview the child in chambers;
• the court’s refusal to let the child testify at the hearing;
• the dismissal of a child’s legal representative that the
court appointed to represent the child;
• the application of section 14-10-127.5, C.R.S. 2024; and
• the court’s child support order.
¶ 28 We similarly decline to address the numerous arguments that
appear for the first time in mother’s lengthy reply brief, and we
otherwise may not consider the multiple documents that mother
attached to her opening brief. See In re Marriage of Herold, 2021
COA 16, ¶ 14; In re Marriage of Drexler, 2013 COA 43, ¶ 24; cf.
Schempp v. Lucre Mgmt. Grp., LLC, 75 P.3d 1157, 1164-65 (Colo.
App. 2003) (declining to address contention of error that, while
mentioned in opening brief, was not supported with legal authority
or adequately argued until the reply brief).
15 III. Disposition
¶ 29 The order is affirmed.
JUDGE GOMEZ concurs.
JUDGE TOW dissents.
16 JUDGE TOW, dissenting.
¶ 30 While I agree with the majority’s entire analysis, I must
nevertheless dissent, as I believe we lack jurisdiction to address this
appeal.
¶ 31 The district court issued the order being appealed on August
7, 2023. The notice of appeal was filed on October 3, 2023 —
fifty-seven days later. An appeal must be filed no later than
forty-nine days after the date of the order being appealed. C.A.R.
4(a)(1). We will accept an untimely notice of appeal if the filing
party can demonstrate that the deadline was missed due to
excusable neglect. C.A.R. 4(a)(4). “The timely filing of a notice of
appeal is a jurisdictional prerequisite for appellate review.” In re
Marriage of James, 2023 COA 51, ¶ 8.
¶ 32 I recognize that this court ordered mother to show cause why
the appeal should not be dismissed as untimely, and that after her
response to that show cause order a motions division of this court
discharged the show cause and permitted the appeal to proceed.
But I cannot discern the basis for the motions division’s decision.
Mother’s show cause response provided no justification for her late
filing; instead, it merely asserted — in conclusory fashion — that
17 the appeal was “urgent” and that the child was endangered.
(Indeed, if the appeal was truly urgent and the child endangered,
one would think that would spur earlier action by mother, not a
delay in filing.)
¶ 33 The majority notes that mother filed another document along
with her response to the show cause order, in which she mentioned
that she struggles with deadlines due to her mental health and the
trauma of this case. But that document was a motion for extension
of time to file the opening brief and a request to stay the trial court’s
orders pending appeal. At no time did mother tie her struggles with
deadlines to her failure to timely file the appeal. Even liberally
construing this document, I simply cannot read it as being proffered
as an explanation for why her appeal was not timely filed. See
Minshall v. Johnston, 2018 COA 44, ¶ 21 (Liberal construction of a
pro se party’s pleadings “does not include inventing arguments not
made by the pro se party.”).
¶ 34 We are not bound by a motions division’s prior order,
particularly where there are “serious questions regarding our own
jurisdiction.” Riggs Oil & Gas Corp. v. Jonah Energy, LLC, 2024
COA 57, ¶ 72 (quoting FSDW, LLC v. First Nat’l Bank, 94 P.3d 1260,
18 1262 (Colo. App. 2004)). In my view, there is not only a serious
question whether we have jurisdiction, but a clear indication that
we do not. The appeal, therefore, should be dismissed without
reaching the merits.
¶ 35 Accordingly, I dissent.