25CA1331 Marriage of Cantar 05-28-2026
COLORADO COURT OF APPEALS
Court of Appeals No. 25CA1331 Douglas County District Court No. 20DR30416 Honorable Daniel Warhola, Judge
In re the Marriage of
Mason Barnett Cantar,
Appellant,
and
Victoria Ann Rimmel-Cantar,
Appellee.
ORDER AFFIRMED
Division IV Opinion by JUDGE FREYRE Brown and Schutz, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced May 28, 2026
Peek Vasquez, LLC, Sean S. Peek, Denver, Colorado, for Appellant
No Appearance for Appellee ¶1 In this post-dissolution of marriage case involving Mason
Barnett Cantar (father) and Victoria Ann Rimmel-Cantar (mother),
father appeals the district court’s order adopting the magistrate’s
modification of parenting time and child support. We affirm.
I. Background
¶2 In 2020, the parties’ marriage ended. At that time, they
stipulated that mother would be the primary parent for their two
children and father would have parenting time every other Friday
through Sunday, plus holiday and vacation time. Father also
agreed to pay mother $1,150 in monthly child support.
¶3 In early 2023, the parties on their own increased father’s
regular parenting time to every other Friday night until Tuesday
morning.
¶4 About a year later, father moved to modify parenting time and
child support. He asked for equal time and a reduction in child
support. At the time, father was retired with a 100% military
disability rating.
¶5 Following a hearing, the magistrate adopted the parties’ 2023
informal agreement, giving father parenting time every other Friday
after school until the children’s return to school on Tuesday
1 morning, finding that this schedule was in the children’s best
interests.
¶6 The magistrate then found that father’s total monthly gross
income was $7,903, consisting of $3,980 in military disability
benefits, $1,923 in imputed full-time minimum wage income, and
$2,000 in rental income. It was undisputed that mother’s monthly
gross income was $4,162. Based on the parties’ income and the
parenting time schedule, the magistrate modified father’s monthly
child support obligation to $1,140.
¶7 Father petitioned for review, and the district court adopted the
magistrate’s decision.
II. Appellate Standard of Review
¶8 Our review of a district court’s order adopting a magistrate’s
decision is effectively a second layer of appellate review, and we
must accept a magistrate’s factual findings unless they are clearly
erroneous. See In re Marriage of Thorburn, 2022 COA 80, ¶ 25;
C.R.M. 7(a)(9). Factual findings are clearly erroneous only if there
is no record support for them. Thorburn, ¶ 25. Legal conclusions,
however, are reviewed de novo. See In re Marriage of Clark, 2025
COA 75, ¶ 12.
2 III. Modification of Parenting Time
A. Relevant Law
¶9 A court may modify parenting time whenever doing so would
serve the children’s best interests. See § 14-10-129(1)(a)(I), C.R.S.
2025. In making that determination, the court must consider the
relevant factors in section 14-10-124(1.5)(a), C.R.S. 2025. In re
Custody of C.J.S., 37 P.3d 479, 482 (Colo. App. 2001). The court
does not need to make findings on every statutory factor, but its
findings must be “sufficiently explicit . . . to give the reviewing court
a clear understanding of the basis of the order.” In re Marriage of
Pawelec, 2024 COA 107, ¶ 44.
¶ 10 The court has broad discretion when modifying parenting
time. In re Parental Responsibilities Concerning S.Z.S., 2022 COA
105, ¶ 13. The court abuses its discretion when it misapplies the
law or acts in a manifestly arbitrary, unreasonable, or unfair
manner. Pawelec, ¶ 45. If the order is supported by competent
evidence in the record, we will not disturb it. In re Marriage of
Collins, 2023 COA 116M, ¶ 8.
3 B. Equal Parenting Time Presumption
¶ 11 Father contends that the magistrate erred by denying him
equal parenting time. To get there, he says that when two fit
parents — both of whom have a fundamental right to raise their
children — disagree about parenting time, the magistrate must
start with a presumption that equal parenting time is in the
children’s best interests. We disagree.
¶ 12 Parents have a fundamental right to make decisions
concerning the care, custody, and control of their children. See
Troxel v. Granville, 530 U.S. 57, 66 (2000); In re Marriage of
O’Connor, 2023 COA 35, ¶ 20. This fundamental liberty interest
gives rise to a presumption that fit parents act in their children’s
best interests, In re Adoption of C.A., 137 P.3d 318, 327 (Colo.
2006), and prohibits judicial interference in the day-to-day child-
rearing decisions of the parents. See Troxel, 530 U.S. at 72-73 (a
state may not infringe on the parents’ fundamental right to make
child-rearing decisions simply because a state judge believes a
“better” decision could be made); see also In re Parental
Responsibilities Concerning B.J., 242 P.3d 1128, 1134 (Colo. 2010)
(“[S]o long as a parent is fit, there will normally be no reason for the
4 State to second-guess the ability of that parent to make the best
decisions concerning the rearing of his or her children.”).
¶ 13 But the application of the Troxel presumption is limited to
parental responsibilities disputes between a fit parent and a
nonparent. O’Connor, ¶ 20; see In re Parental Responsibilities
Concerning M.W., 2012 COA 162, ¶ 13 (because “[a] parental
responsibilities dispute between a [fit] parent and a nonparent is
not a contest between equals,” the court applies Troxel when the
parent opposes an allocation of parental responsibilities to a
nonparent); see also Troxel, 530 U.S. at 65-73 (holding that a
Washington statute compelling grandparent visitation over the
objection of the widow mother was unconstitutional without giving
a presumption that a fit parent acts in her child’s best interests);
B.J., 242 P.3d at 1130 (setting aside a district court order that
improperly granted parenting time to the former foster parents over
the objection of the father, without affording him the Troxel
presumption that his determinations were in the child’s best
interests); In Interest of C.T.G., 179 P.3d 213, 226 (Colo. App. 2007)
(reversing a visitation order based on Troxel when the nonparent
5 stepfather failed to present evidence of special circumstances to
justify an order contrary to the parents’ wishes).
¶ 14 In In re Marriage of DePalma, 176 P.3d 829 (Colo. App. 2007),
the division considered whether to apply Troxel in a dispute
between two parents and concluded that “the presumption that a
parent has a ‘first and prior’ right to the custody of their child was
not implicated.” Id. at 832; see Vanderborgh v. Krauth, 2016 COA
27, ¶ 21 (In DePalma, the division “held that the Troxel presumption
in favor of a fit parent’s decisions concerning their child [was] not
implicated in a dispute between parents in a dissolution of marriage
case.”). The division added that when two fit parents disagree, the
court must weigh the wishes of both to determine what is in the
children’s best interests. Id. at 832; see also § 14-10-124(1.5)(a)(I)
(the parents’ wishes as to parenting time are relevant to the
children’s best interests).
¶ 15 As in DePalma, because this case involves a dispute between
two fit parents, with the same fundamental parental rights, Troxel is
not implicated. See DePalma, 176 P.3d at 832; Vanderborgh, ¶ 21.
Nor does Colorado law have a presumption of equal parenting time
or otherwise require a court to divide parenting time equally. See §
6 14-10-124(1.5)(a) (the district court allocates parenting time in
accordance with the children’s best interest, and it considers all
relevant factors including the statutory factors); In re Morgan, 2018
COA 116M, ¶ 17. Instead, when fit parents disagree over the
modification of parenting time, the court resolves the dispute by
considering the best interest factors in section 14-10-124(1.5)(a),
which includes the parents’ wishes. See § 14-10-129(1)(a)(I);
DePalma, 176 P.3d at 832.
¶ 16 Because the Troxel presumption applies only to fit parent-
nonparent disputes, the magistrate was not required to apply it
here. Nor did the magistrate have to begin with a presumption of
equal parenting time. The magistrate appropriately analyzed the
modification motion under the best interests standard. See § 14-
10-129(1)(a)(I). And because we conclude that the magistrate did
not err in declining to apply the Troxel presumption or presume
equal parenting time, we necessarily reject father’s related claim
that the failure to apply such presumptions constituted a violation
of due process or equal protection.
7 C. Constitutionality of Sections 14-10-124 and 14-10-129
¶ 17 Father also contends that sections 14-10-124 and 14-10-129
are unconstitutional “as drafted.”
¶ 18 “[A] party seeking review of a magistrate’s decision must raise
a particular issue in the district court so that the district court may
have an opportunity to correct any error that may have been made
by the magistrate.” People in Interest of K.L-P., 148 P.3d 402, 403
(Colo. App. 2006). Issues not raised in a petition for review are not
properly before us on appeal. Id.
¶ 19 Because father did not raise, and the district court did not
address, the constitutionality of section 14-10-129, his contention
is not preserved for appellate review. Accordingly, we decline to
address it now. See K.L-P., 148 P.3d at 403. That leaves only
section 14-10-124.
¶ 20 When a party challenges the constitutionality of a statute,
C.A.R. 44 requires that, in an appellate proceeding where the state
is not a party, the party raising the constitutional challenge must
notify the clerk of the supreme court in writing, at which point the
clerk must certify the matter to the attorney general. See also
C.R.C.P. 57(j) (“If a party files a motion or other pleading asserting
8 that a state statute . . . is unconstitutional, that party shall serve
the state attorney general with a copy of the motion or pleading,
and the state is entitled to be heard.”).
¶ 21 Here, the state is not a party. Father was therefore required to
notify the supreme court clerk and allow the attorney general an
opportunity to respond to his facial constitutional challenge to
section 14-10-124. There is nothing in the record to indicate that
he filed the required notice or that the attorney general was
otherwise allowed to be heard on the issue.
¶ 22 Because father did not comply with C.A.R. 44, we decline to
address the merits of his constitutional challenge to section 14-10-
124. See In re Marriage of Cespedes, 895 P.2d 1172, 1176 (Colo.
App. 1995) (contention that statute violates the constitution was
not properly before the appellate court where the father neither
complied with C.R.C.P. 57(j) in the district court nor with C.A.R. 44
on appeal); In re J.M.A., 240 P.3d 547, 549 (Colo. App. 2010) (facial
challenge to the constitutionality of a statute was barred from
consideration because of failure to comply with C.A.R. 44); cf. In re
Estate of Becker, 32 P.3d 557, 560-61 (Colo. App. 2000) (lack of
C.A.R. 44 notice does not preclude an as-applied constitutional
9 challenge), aff’d sub nom. In re Estate of DeWitt, 54 P.3d 849 (Colo.
2002); In re Marriage of Davis, 252 P.3d 530, 533 (Colo. App. 2011)
(lack of C.A.R. 44 notice does not preclude claim that retroactive
application of statute is unconstitutional).
¶ 23 Even if we were to assume that the issue was properly before
us, we disagree with father’s argument that section 14-10-124 is
unconstitutional because it does “not serve to protect a compelling
state interest nor [is] [it] narrowly tailor[ed] in [its] application.”
Father cites Shapiro v. Thompson, 394 U.S. 618 (1969), and Kramer
v. Union Free Sch. Dist. No. 15, 395 U.S. 621 (1969), neither of
which involve parenting time. He simply recaps their general
holdings and asserts, in conclusory fashion, that under Kramer,
section 14-10-124 must be “strictly scrutinized” and that under
Troxel, state interference is impermissible because he and mother
are fit and proper parents.
¶ 24 A statute is presumed constitutional, and the party
challenging it bears a heavy burden to show unconstitutionality
beyond a reasonable doubt. See Marquez v. Schaefer, 2025 COA
44, ¶ 46; In re Marriage of Lohman, 2015 COA 134, ¶ 35. But father
does not tell us how the cited cases apply to the facts of this case,
10 nor does he undertake any meaningful constitutional analysis. We
therefore decline to address the argument further. See In re
Marriage of Zander, 2019 COA 149, ¶ 27 (an appellate court may
decline to consider an argument not supported by legal authority or
any meaningful legal analysis), aff’d, 2021 CO 12; see also
Marquez, ¶ 54 (declining to address perfunctory and conclusory
constitutional arguments).
¶ 25 The same is true about father’s claim that section 14-10-124
is unconstitutionally overbroad. The overbreadth doctrine is
typically confined to statutes that substantially burden protected
speech or otherwise have a chilling effect on expressive activity. See
People v. Lee, 717 P.2d 493, 495 (Colo. 1986) (“Generally, the
overbreadth doctrine is applied when legislative enactments
threaten the exercise of fundamental or express constitutional
rights, such as first amendment freedoms.”); see also People v.
Conlon, 2025 COA 79M, ¶ 85 (“[A] statute is facially overbroad if it
sweeps so comprehensively as to substantially include within its
proscriptions constitutionally protected speech.”); People v. Graves,
2016 CO 15, ¶ 12 (a statute is overbroad if its scope is so
comprehensive that it restricts or has a chilling effect on speech
11 protected by the First Amendment). Father fails to explain why the
doctrine has any application in this domestic relations context, nor
does he walk us through any constitutional reasoning to support
his claim. Absent such a showing, we decline to consider the
argument. See Zander, ¶ 27; Marquez, ¶ 54
¶ 26 And to the extent that father claims that section 14-10-124 is
unconstitutional because it is “drafted” “so vaguely” that it invites
judicial bias and gives “unfettered discretion to infringe on a
parent’s fundamental right to parent,” we disagree. A statute is not
unconstitutionally vague when it includes explicit standards that
guide decision-making and provides a person of ordinary
intelligence fair notice of what is required. See Grayned v. City of
Rockford, 408 U.S. 104, 108 (1972) (Vague statutes fail to “provide
explicit standards for those who apply them” and do not “give the
person of ordinary intelligence a reasonable opportunity to know
what is prohibited, so that he may act accordingly.”); People In
Interest of A.N., 2019 COA 67, ¶ 19 (“[W]hen considering whether a
statute is unconstitutionally vague, we examine whether the statute
gives fair warning of prohibited conduct and whether it lacks
12 explicit standards for application, creating a danger of arbitrary and
capricious enforcement.”).
¶ 27 Section 14-10-124 directs a district court to resolve parenting
time disputes based on the children’s best interests, using specific,
articulated factors. See § 14-10-124(1.5)(a). These standards,
while necessarily flexible, reflect the fact-specific nature of domestic
relations cases and do not give unfettered discretion to the district
court. See C.J.S., 37 P.3d at 482; Rayer v. Rayer, 512 P.2d 637,
639 (Colo. App. 1973) (the district court, who is best able to
appraise the parties’ circumstances, is best fitted to make the
factual determinations regarding custody).
D. Best Interests
¶ 28 Next, father contends that the magistrate improperly denied
his request for equal parenting time because the magistrate had an
“arbitrary belief” that “changing parenting time schedules” was not
in the children’s best interests. We disagree.
¶ 29 The magistrate evaluated the best interests factors and made
the following findings:
• Father sought a week on, week off regular parenting time
schedule, while mother wanted to formalize the parties’
13 existing arrangement, under which father had parenting
time every Friday from after school until the children’s
return to school Tuesday morning. See § 14-10-
124(1.5)(a)(I).
• The children were not sufficiently mature to express an
independent and rational preference about parenting
time. See § 14-10-124(1.5)(a)(II) (the children’s wishes
are relevant to their best interests).
• The children had a strong bond with both parents and
spent time with their grandparents. See § 14-10-
124(1.5)(a)(III) (interaction and interrelationship of the
children with their parents, siblings, and any other
person who may significantly affect their best interests
• Father committed acts of domestic violence, specifically
coercive control, by continuing to disparage mother
through text messages. See § 14-10-124(1.5)(a)(III.5)
(domestic violence is relevant to the children’s best
interests).
14 • One child was struggling somewhat at school and the
children had difficulty transitioning after father’s
parenting time. See § 14-10-124(1.5)(a)(IV) (the
children’s adjustment to their home, school, and
community is relevant to their best interests).
• Father had a 100% military disability rating, but it did
not affect his parenting time. See § 14-10-124(1.5)(a)(V)
(mental and physical health of all individuals involved is
relevant to the children’s best interests).
• There was no issue with the parties’ ability to encourage
the sharing of love, affection, and contact between the
children and the other party. See § 14-10-124(1.5)(a)(VI).
• Mother had historically been the children’s primary
parent, although father had become more involved. See
§ 14-10-124(1.5)(a)(VII) (whether the past pattern of
involvement of the parties with the children reflects a
system, time commitment, and mutual support is
• The parties were able to place the children’s needs ahead
of their own. See § 14-10-124(1.5)(a)(XI).
15 • The children needed consistency, and frequent changes
to the parenting schedules were not in their best
interests. See § 14-10-124(1.5) (the court must consider
the factors enumerated, as well as all other relevant
factors).
¶ 30 From those findings, the magistrate concluded that keeping
the current parenting time schedule was in the children’s best
interests. The magistrate reasoned that they needed stability rather
than a schedule that changed year after year. Contrary to father’s
contention, the magistrate was not precluded from considering the
children’s need for stability and consistency because under a best
interest analysis, the magistrate had to consider all factors it
deemed relevant. See § 14-10-124(1.5)(a); Collins, ¶ 7.
¶ 31 Because the magistrate applied the correct legal standard and
made sufficient findings, which have record support, we see no
abuse of the magistrate’s broad discretion in denying father’s
request for equal parenting time. See S.Z.S., ¶ 13; Collins, ¶ 8.
16 IV. Modification of Child Support
¶ 32 In calculating child support, income means a party’s actual
gross income if the party is fully employed. § 14-10-115(3)(c),
C.R.S. 2025. If, however, a party is voluntarily unemployed, child
support is calculated based on a determination of that party’s
potential income. § 14-10-115(5)(b)(I). “‘[P]otential income’ is
described as the amount a party could earn from a full-time job
commensurate with the party’s demonstrated earning ability.” In re
Marriage of Tooker, 2019 COA 83, ¶ 26.
¶ 33 The court has broad discretion in determining income, and
whether to impute income to a party is typically a question of fact
that we will not disturb if it is supported by the record. See People
v. Martinez, 70 P.3d 474, 480 (Colo. 2003). The decision to modify
child support is also within the court’s sound discretion. See In re
Marriage of Bergeson-Flanders, 2022 COA 18, ¶ 10.
B. Imputation of Income
¶ 34 Father contends that the magistrate erred by imputing a
minimum wage income to him even though he was disabled and
unable to work. We disagree.
17 ¶ 35 The record reflects that father was thirty-two years old at the
time of the modification hearing. Father testified that in December
2022, his military disability rating increased to 100%, which more
than doubled his benefits. As a result, he “ceased working” because
his new income “was enough to survive on,” allowed him to “take
care of [him]self,” and “provide[d] him a significant opportunity . . .
to spend way more time with the kids.” He recalled that his
previous job as a machinist was difficult due to his disability. But
he also testified that his disability did not impact his ability to work
certain jobs. When asked directly whether he could work, he said,
“If need be, yeah, I am capable of quite a bit.”
¶ 36 Based on his testimony, the magistrate found that, despite his
disability, father had the ability to work, albeit not at his prior
employment, and was thus shirking his child support obligation
pursuant to Martinez. The magistrate then imputed to him a full-
time minimum wage salary of $1,923 per month.
¶ 37 Because the record supports the magistrate’s income finding,
we will not disturb it. See Martinez, 70 P.3d at 480; Thorburn, ¶ 25.
18 C. Rental Income
¶ 38 Last, father contends that the magistrate erred by including
his rental income when calculating child support. We are not
persuaded.
¶ 39 Father testified that he owned a home with a mortgage in his
name alone and that two individuals lived there, each paying him
$1,000 per month in rent. Under section 14-10-115(5)(a)(I)(J), the
$2,000 in monthly rental income must be included in his gross
income when determining child support. In re Marriage of Schaefer,
2022 COA 112, ¶ 28. So, we discern no error in this regard. See
Martinez, 70 P.3d at 480.
¶ 40 Nor are we persuaded by father’s related argument that his
$2,000 in rental payments should not count as gross income
because he was not receiving a net gain, as those payments fell
short of his mortgage obligation. Father also lived in the home, and
the rent payments he received, even if they did not cover the full
mortgage, reduced the housing costs he would otherwise have to
pay himself. See Tooker, ¶ 18 (benefits are included as gross
income for child support purposes if they reduce an individual’s
19 daily living expenses unless the child support statute specifically
excludes them).
¶ 41 We also reject father’s assertion that the magistrate should
have included mother’s monthly rent payments in her gross income.
Mother testified that she did not own the residence she currently
lived in. Instead, she rented the property along with several family
members, and each person paid their own share of the rent. Unlike
father, because she was not receiving rent payments from others for
their use of property she owned, we cannot say that the magistrate
erred by excluding the payments made by her family members who
lived in the home. See Martinez, 70 P.3d at 480.
V. Disposition
¶ 42 The order is affirmed.
JUDGE BROWN and JUDGE SCHUTZ concur.