23CA1962 Marriage of Danks 03-27-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA1962 Weld County District Court No. 17DR30496 Honorable Shannon D. Lyons, Judge
In re the Marriage of
Megan Jo Dell,
Appellant,
and
Raymond B. Danks,
Appellee.
ORDERS AFFIRMED
Division IV Opinion by JUDGE KUHN Harris and Yun, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced March 27, 2025
Sherman & Howard L.L.C., Jordan M. Fox, Hannah R. Taylor, Denver, Colorado, for Appellant
Antommaria & Rodionov, LLC, Amy M. Antommaria, Greeley, Colorado, for Appellee ¶1 In this dissolution of marriage case between Megan Jo Dell
(mother) and Raymond B. Danks (father), mother appeals the
district court’s order granting father’s emergency motion to restrict
parenting time and ordering shared decision-making responsibility.
Mother also appeals the order denying her motion for post-trial
relief under C.R.C.P. 59 and C.R.C.P. 60. We affirm.
I. Background
¶2 This matter arose amidst ongoing, contentious
post-dissolution litigation. The parties divorced in September 2018
and have two young children.
¶3 The court’s initial orders designated mother the sole
decision-maker and established equal parenting time for each
party. At the time of dissolution, mother lived in New Mexico while
father lived in Colorado. However, mother moved to Oregon during
the course of this case — without the district court’s consent —
where she currently resides. Father remains in Colorado. The
parties’ parenting time schedule proved to be impractical, and the
parties agreed to change father’s parenting time to ten consecutive
overnights per month in Colorado. Despite this change, the parties
continued to struggle with parenting time transitions. As a result,
1 the court again modified the parenting time schedule to align with
the children’s school calendar in Oregon, giving mother the majority
of the year and father the summer, with occasional school year
visits.
¶4 The latest dispute arose after father exercised parenting time
with the children in late February through March of 2023. Upon
their return to Oregon, one of the children told a teacher that he
was confined while at his father’s house. The teacher made a
mandatory report of child abuse. After receiving the report, the
Oregon Department of Human Services began an investigation and
referred the matter to Juliette’s House, a child advocacy center in
Oregon. Juliette’s House separately interviewed each of the
children and issued preliminary evaluation reports: a two-page
recommendation for each child, dated May 3 and 10, as well as a
ten-page medical exam and forensic interview report for each child,
dated May 10 and 15. The reports recommended that the children
have no unsupervised contact with father until the investigation
concluded.
¶5 The day after the last report was issued, mother filed a status
report that included the two-page recommendations and a request
2 for the court to relieve her from the obligation of confirming the
children’s travel to Colorado for their scheduled June 17 parenting
time with father. The district court denied this request.
¶6 Then on June 14, the district court held a status conference
during which mother asked the court to permit her Oregon counsel
to appear. However, the Oregon counsel had not been admitted pro
hac vice, so the court denied the request and reiterated that the
current parenting time order — that included a scheduled visit on
June 17 — remained in effect.
¶7 During this status conference, mother did not inform the court
that she intended to file an emergency motion to restrict parenting
time in the Oregon circuit court. But the next day, she did exactly
that. The Oregon court issued an order — the same day —
restricting father’s parenting time. Due to these events, the
children did not visit their father at the start of his scheduled
parenting time on June 17.
¶8 Subsequent to the Oregon court order, the parties filed
cross-motions to restrict parenting time in the Colorado district
court. Mother claimed that father physically abused the children,
while father claimed that mother coached the children to make the
3 abuse allegations, placing them in emotional danger. The district
court held another hearing on June 27. Two days later, it issued a
thirty-four-page order granting father’s motion to restrict mother’s
parenting time and withdrawing sole decision-making authority
from mother. Mother filed a post-hearing motion to reconsider.
The district court denied the motion, and mother appealed.
II. Analysis
¶9 Mother contends that the district court erred by (1) changing
the children’s residential parent from mother in Oregon to father in
Colorado; (2) changing the decision-making authority from being
solely mother’s to shared; and (3) failing to properly apply section
14-10-127.5, C.R.S. 2023, known as “Kayden’s Law.”1 We address
the first two issues together due to their related facts and law before
turning to the application of Kayden’s Law.
1 Throughout this opinion, we refer to the version of Kayden’s Law
that was in effect when the district court issued its order. The General Assembly has since amended section 14-10-127.5, C.R.S. 2023. Ch. 344, sec. 6, § 14-10-127.5, 2024 Colo. Sess. Laws 2342-45.
4 A. Standard of Review and Applicable Law
¶ 10 “We review [the district court’s] findings of fact for clear error,
‘meaning that we won’t disturb such findings if there is any
evidence in the record supporting them.’” Bartenders & More v.
Colo. Dep’t of Lab. & Emp., 2023 COA 123, ¶ 13 (quoting
Woodbridge Condo. Ass’n v. Lo Viento Blanco, LLC, 2020 COA 34,
¶ 24).
¶ 11 “The determination of parenting time is a matter within the
sound discretion of the trial court, taking into consideration the
child’s best interests and the policy of encouraging the parent-child
relationship.” In re Marriage of Hatton, 160 P.3d 326, 330 (Colo.
App. 2007) (citing In re Marriage of England, 997 P.2d 1288, 1290
(Colo. App. 1999)). Indeed, “every presumption that supports
upholding the court’s decision will be exercised.” Id. Further, on a
motion to restrict parenting time, “[c]redibility determinations and
the weight, probative force, and sufficiency of the evidence, as well
as the inferences and conclusions to be drawn therefrom, are
matters within the sole discretion of the [district] court.” In re
Marriage of Thorburn, 2022 COA 80, ¶ 49 (second alteration in
original) (quoting In re Marriage of Lewis, 66 P.3d 204, 207 (Colo.
5 App. 2003)). A “court abuses its discretion when its decision is
manifestly arbitrary, unreasonable, unfair, or based on a
misapplication of the law.” Adams Cnty. Hous. Auth. v. Panzlau,
2022 COA 148, ¶ 17 (quoting Black v. Black, 2020 COA 64M,
¶ 118).
¶ 12 However, “we review the legal conclusions the trial court drew
from [its factual] findings de novo.” In re Marriage of de Koning,
2016 CO 2, ¶ 17. And we review a district court’s interpretation of
a statute de novo. Bodelson v. City of Littleton, 36 P.3d 214, 216
(Colo. App. 2001).
¶ 13 The party asserting an error has the burden of showing that
the error wasn’t harmless. Moody v. Corsentino, 843 P.2d 1355,
1375 (Colo. 1993). An error is harmless if it “does not affect the
substantial rights of the parties.” C.R.C.P. 61. An error affects a
party’s substantial rights “only if it can be said with fair assurance
that [it] substantially influenced the outcome of the case or
impaired the basic fairness of the trial itself.” Stockdale v.
Ellsworth, 2017 CO 109, ¶ 32 (quoting Laura A. Newman, LLC v.
Roberts, 2016 CO 9, ¶ 24).
6 ¶ 14 Section 14-10-129, C.R.S. 2024, governs the modification of
parenting time. “[T]he court may make or modify an order granting
or denying parenting time rights whenever such order or
modification would serve the best interests of the child.”
§ 14-10-129(1)(a)(I). However, “[t]he court shall not restrict a
parent’s parenting time rights unless it finds that the parenting
time would endanger the child’s physical health or significantly
impair the child’s emotional development.” § 14-10-129(1)(b)(I).
B. Relocation and Decision-Making
¶ 15 Mother contends that the district court erred by changing the
children’s primary residence to Colorado and altering the decision-
making responsibility from her sole authority to a shared
arrangement. To support these contentions, mother argues that
the court (1) incorrectly applied the modification of parenting time
statute, section 14-10-129, by not considering the harm of
relocation to the children; (2) incorrectly relied on a parental
evaluation report and lacked sufficient evidence to make a finding of
coaching; (3) made improper credibility findings; and (4) applied its
personal knowledge to the matter. We address each argument in
turn.
7 1. Application of the Modification of Parenting Time and Decision-Making Statutes
¶ 16 Mother argues that the district court failed to consider the
harm caused by the children’s relocation from Oregon, where they
lived with her, to Colorado, where they would live with father. But
because the district court did consider the harm of the change in
environment, we disagree.
¶ 17 In its order granting father’s motion to restrict mother’s
parenting time, the district court primarily relied on section
14-10-129(1)(b)(I), which governs the restriction of a parent’s
parenting time rights. In applying the statute, the court made
findings of endangerment, ordered supervised visits for mother,
substantially changed the parties’ allocated parenting time, and
ordered joint decision-making.
¶ 18 Mother does not argue that the court incorrectly applied
section 14-10-129(1)(b)(I). However, she contends that the district
court failed to apply two other controlling statutory provisions:
section 14-10-129(2)(d), which addresses modification of parenting
time, and section 14-10-131(2)(c), C.R.S. 2024, which addresses
modification of decision-making responsibility.
8 ¶ 19 Father argues, in response, that the court’s determination is
only governed by section 14-10-129(1)(b)(1) and that no other
statutory provisions apply. We disagree. Father cites no case law
in support of this argument, and the plain language of section
14-10-129(2)(d) indicates it clearly applies in this matter along with
the requirements of section 14-10-129(1)(b)(1).
¶ 20 Section 14-10-129(2)(d) provides that
[t]he court shall not modify a prior order concerning parenting time that substantially changes the parenting time as well as changes the party with whom the child resides a majority of the time unless it finds, upon the basis of facts that have arisen since the prior decree or that were unknown to the court at the time of the prior decree, that a change has occurred in the circumstances of the child or the party with whom the child resides the majority of the time and that the modification is necessary to serve the best interests of the child. In applying these standards, the court shall retain the parenting time schedule established in the prior decree unless:
....
(d) The child’s present environment endangers the child’s physical health or significantly impairs the child’s emotional development and the harm likely to be caused by a change of environment is outweighed by the advantage of a change to the child.
9 (Emphasis added.)
¶ 21 In addition, section 14-10-131(2)(c) contains a near identical
requirement. Under that paragraph, one basis for a court to modify
decision-making responsibility is when it finds that “[t]he retention
of the allocation of decision-making responsibility would endanger
the child’s physical health or significantly impairs the child’s
emotional development and the harm likely to be caused by a
change of environment is outweighed by the advantage of a change
to the child.” § 14-10-131(2)(c).
¶ 22 Mother argues that the district court erred by failing to make
“any findings regarding the harm likely to be caused from removing
the children from their primary caregiver.” However, her argument
overlooks a key section of the district court’s order that specifically
addressed these required findings: “In addition, [the court] makes
the further finding that retaining allocation of decision-making
authority in mother would significantly impair the children’s
10 change of environment is currently outweighed by the advantage of
a change in the children’s current environment.”2
¶ 23 The district court made the findings required by sections
14-10-129(2)(d) and 14-10-131(2)(c).3 We thus discern no error,
and mother’s argument fails.
2. The Parental Evaluation Report and Sufficiency of the Evidence
¶ 24 Mother next argues that the district court improperly took
judicial notice of a report created by Dr. Mark Kilmer, and that
without that report there was no evidence to support the district
2 While it appears that the district court accidentally collapsed its
statutory citations to section 14-10-129(2)(d), C.R.S. 2024, and section 14-10-131(2)(c), C.R.S. 2024, into “C.R.S. § 14-10-129(2)(c),” this typographical error does not undercut the substance of its finding.
3 Further, mother’s argument regarding the court’s determination of
decision-making responsibility is foreclosed by section 14-10-131(2)(b.5), which provides that a court may modify decision-making responsibility when “[t]here has been a modification in the parenting time order pursuant to section 14-10-129, that warrants a modification of the allocation of decision-making responsibilities.” The district court’s rationale for the modification of the parenting time schedule from being primarily with mother to primarily with father also warrants the change in decision-making responsibility from being solely mother’s to joint. This alternative rationale also supports the district court’s order.
11 court’s finding that mother had coached the children to make false
reports about father.
¶ 25 We first address the court’s use of the report. Dr. Kilmer was
appointed as the parental responsibility evaluator (PRE) in this case
and issued his PRE report in December 2022. The PRE report
contained statements the children had made during their interview
with Dr. Kilmer, along with his analysis and evaluation. Although
he was later removed from the statewide PRE list, his report was
already part of the district court’s record at the time of the June 27
hearing. During that hearing, the district court took judicial notice
of the contents of its court file, which included the PRE report.
Neither party objected.
¶ 26 But when the court later indicated that it had reviewed and
would consider the PRE report, mother’s counsel made the following
record:
Your Honor, if I could just -- for the record, the PRE Report obviously was filed with [the court]. There has never been a hearing in which the PRE Report or the PRE himself was available to be cross-examined, and [the court] is aware of the issues related to Dr. [Kilmer] and his report, and his removal from the PRE list. Thank you, Your Honor.
12 ¶ 27 Mother argues that she “objected to the court taking judicial
notice of the contents of the PRE Report in this manner.” She also
contends that she preserved her two-pronged argument that (1) the
PRE report, and hearsay within it, is not something that can be
judicially noticed; and (2) she was not provided the opportunity to
cross-examine Dr. Kilmer about what he reviewed and his
conclusions.
¶ 28 The record mother made was not sufficient to preserve her
entire argument for review. “To properly preserve an argument for
appeal, the party asserting the argument must present ‘the sum
and substance of the argument’ to the district court.” Gebert v.
Sears, Roebuck & Co., 2023 COA 107, ¶ 25 (quoting Madalena v.
Zurich Am. Ins. Co., 2023 COA 32, ¶ 50). The only argument
mother presented to the district court was that she did not have the
opportunity to cross-examine Dr. Kilmer and that he was removed
from the PRE list. Her statement was sufficient to preserve an
objection to Dr. Kilmer’s findings and conclusions. But, as the
court noted in its order, it “[did] not rely on Dr. Kilmer’s opinions as
an expert since he did not testify and was not subject to
cross-examination.”
13 ¶ 29 Instead, the district court relied on “the statements [in the
report] attributed to [the children].” But mother didn’t object to the
court taking judicial notice of the report or considering the
statements in it (or indeed argue that they were hearsay). Thus, her
argument that the court couldn’t have considered the contents of
the PRE report under judicial notice is unpreserved. See People v.
Tallent, 2021 CO 68, ¶ 11 (“[A]n appellate court has an
independent, affirmative duty to determine whether a claim is
preserved . . . .”). When a party fails to advance an argument in the
district court, that argument is generally waived. Melat, Pressman
& Higbie, L.L.P. v. Hannon L. Firm, L.L.C., 2012 CO 61, ¶ 18.
¶ 30 But regardless of the extent of the district court’s reliance on
the statements in the PRE report, there was ample evidence in the
record to support the court’s ultimate findings and conclusion.4
4 Mother also argues that “[the PRE report] would never be admitted
as evidence in a proceeding without the PRE appearing and being admitted as an expert and the proper foundation being laid.” We note that C.R.C.P. 16.2(g)(2)(c) provides that “[t]he court shall receive the expert reports into evidence without further foundation, unless a party notes an objection in the Trial Management Certificate.” Mother does not argue that she made such an objection, thus contradicting her argument.
14 ¶ 31 Mother argues that apart from “the [c]ourt’s pure conjecture”
and the PRE report, there was no evidence that she coached the
children to make claims of abuse. It’s true that the children’s
statements within the PRE report constitute a portion of the basis
for the coaching finding. But the district court also relied on other
evidence to determine that the children’s abuse allegations were not
credible and that, as a result, mother likely influenced their report.
¶ 32 After “[v]iewing all the evidence together,” the court found that
“Mother coached the boys to make false allegations against Father.”
It concluded that “the coaching may have been direct or indirect or
a combination of both.” But it didn’t rely on the opinions from the
PRE report to get there.
¶ 33 Instead, in reaching this conclusion the district court found
that mother was “trashing Father,” focusing her litigation on
disrupting father’s parenting time, and using the children’s reports
of abuse in strategic instead of protective ways. Further, it found
that “Mother simply shares her feelings (most of them negative)
about Father far too frequently, including with the children, and the
boys have received the message that Father is the bad guy.” Based
on mother’s actions, intentional or not, the court found that “[t]he
15 boys . . . have learned how to please their primary caretaker. The
boys knew their allegations against Father would please Mother.”
¶ 34 Mother also argues that there was no evidence that she
previously engaged in coaching the children. But the district
court’s order belies this claim. Setting aside the statements from
the PRE report and the reasons discussed above, the court found
historical coaching because of the incredible nature of the
children’s allegations, mother’s strategic rather than protective
litigation tactics, its finding that her denial of coaching was not
credible, and its findings that mother was exposing the children to
an environment “where trashing Father and calling him ‘Ray’ have
been commonplace.” Further, mother doesn’t explain why these
findings are wrong or how they affected the outcome of this case.
¶ 35 Regardless, the coaching finding was only one small part of
the court’s larger conclusion that mother was “stunting [the
children’s] emotional development.” This ultimate conclusion was
what the court relied on when it issued its “orders . . . intended to
ameliorate the emotional harm Mother has caused.” Even
completely disregarding the coaching finding, there was still
sufficient evidence supporting the district court’s findings of
16 emotional harm to the children. The court made the following
findings relevant to emotional harm:
• “Mother has been sharing inappropriate adult
information and opinions with the boys.”
• “Specifically, . . . Mother has shared with the boys, either
directly or in their presence, the flaws she [found] in
Father and his parenting style.”
• “Mother has conveyed to the boys that it [was]
outrageous that [father] want[ed] them to call him ‘Dad’
instead of ‘Ray.’”
• “Mother demonstrated with the method and timing of her
pleadings that she was attempting to maximize the
amount of time Father would be restricted from seeing
the children.”
• “Mother exhibit[ed] a pattern of attempting to seriously
diminish Father’s standing.”
• “Based on the complete lack of any evidence of physical
injuries to the children, . . . impossibility of confinement
in the manner reported by the children, . . . [and] stories
containing other wild exaggerations, . . . the [children’s]
17 reports [were] false and . . . Mother encouraged [them] to
invent false stories about their Father.”
• “Mother [was] blinded by her dislike of Father.”
• “The Court has lost all trust in Mother’s ability to
facilitate the relationship between Father and the
children.”
¶ 36 These factual findings are reviewable for clear error, “meaning
that we won’t disturb such findings if there is any evidence in the
record supporting them.” Bartenders & More, ¶ 13 (quoting
Woodbridge Condo. Ass’n, ¶ 24). They have support in the record,
and mother does not argue otherwise. Thus, we have no basis to
disturb them. So even if all of mother’s arguments about the PRE
report and the coaching finding were correct, they would not have
substantially influenced the outcome of the proceeding, see
Stockdale, ¶ 32, and any error is therefore harmless.
3. The District Court’s Credibility Findings and Denial of Reconsideration
¶ 37 Mother contends that the district court erred in its credibility
findings and refused to acknowledge or reconsider its findings and
18 conclusions when presented with evidence that father perjured
himself during his testimony.
¶ 38 “The very ‘sanctity of trial court findings is derived from the
recognition that the trial judge’s presence during the presentation of
testimonial evidence provides an unparalleled opportunity to
determine the credibility of the witnesses and the weight to be
afforded the evidence which is before the court.’” In re Marriage of
Wollert, 2020 CO 47, ¶ 23 (quoting Page v. Clark, 592 P.2d 792, 796
(Colo. 1979)). Given this unique position of the district court, “we
will not disturb the . . . determination of matters involving weight
and credibility of the evidence,” In re Marriage of Foottit, 903 P.2d
1209, 1213 (Colo. App. 1995), “unless the findings of the trial court
are manifestly erroneous,” In re Marriage of Hoyt, 742 P.2d 963, 964
(Colo. App. 1987).
¶ 39 The district court made numerous credibility findings based
on testimony adduced at the hearing. Generally, the court found
that mother’s testimony was not credible, the children’s allegations
regarding abuse and confinement were facially unbelievable or not
credible, and father’s testimony regarding the children was credible.
19 As an example, the court made the following finding about mother’s
testimony:
The Court does not find Mother’s testimony at the hearing on June 27, 2023, to be credible. Her excuses for delayed filing in Oregon instead of prompt filing in Colorado were not credible. Her testimony about when she made the decision to file is not credible. Mother’s denial of coaching the boys prior to meeting with the PRE is not credible.
¶ 40 We understand mother’s argument that she presented other
evidence contradicting father’s testimony at the hearing. But that
doesn’t change our analysis. We are limited by the record before us
and “[a] cold record is a poor substitute for live testimony.” Wollert,
¶ 23 (quoting People v. Scott, 600 P.2d 68, 69 (Colo. 1979)). The
additional evidence pointed to by mother does not demonstrate that
the district court’s credibility findings about father are manifestly
erroneous. And even if it did, that evidence would not call into
question the court’s credibility findings about mother or the
children. We simply have no basis on this record to disturb the
district court’s credibility findings.
¶ 41 In addition to the credibility findings made at the hearing on
father’s motion to restrict parenting time, mother argues that the
20 district court erred by not reconsidering those credibility findings in
light of newly discovered evidence demonstrating that father
committed perjury.
¶ 42 At the hearing, father and two other witnesses testified that
his basement was unfinished and did not have rooms or drywall.
After the district court issued its order — which credited father’s
testimony about his home as credible — mother filed a motion for
post-trial relief under C.R.C.P. 59 and 60. In that motion, she
sought relief under C.R.C.P. 59(d)(4), arguing that she had newly
discovered evidence showing that father lied to the court about the
condition of his basement. That evidence consisted of social media
posts showing father constructing a mushroom growing operation
in his basement.
¶ 43 The district court denied her request to reconsider, finding
that mother’s newly provided evidence was in fact posted on social
media in January 2023 and, therefore, was discoverable before the
hearing in June. It determined that the newly provided evidence
was not “material for the party making the application which that
party could not, with reasonable diligence, have discovered and
produced at the trial.” C.R.C.P. 59(d)(4).
21 ¶ 44 Reviewing for an abuse of discretion, Unicure, Inc. v. Thurman,
599 P.2d 925, 928 (Colo. App. 1979), we perceive no error in the
district court’s denial of the motion. A party must show that “the
evidence could not have been discovered in the exercise of
reasonable diligence” in order to receive relief under the rule. Id.
And as the district court noted, these social media posts and
publications are materials that could have been discovered and
produced at the hearing.
4. Knowledge Outside of the Record
¶ 45 Mother next argues that the district court improperly
considered evidence outside of the record by relying on its own
knowledge about the location in Mexico where mother traveled with
the children.
¶ 46 In the challenged June 2023 order, the court noted that in
early 2022, mother took the children to Chihuahua, Mexico, where
she ran an ultramarathon. Mother and the children flew to Texas
and then drove eleven hours to get to the race site. The district
court stated that they traveled through “one of the most dangerous
regions in Mexico” and referenced a U.S. State Department’s
advisory, which recommended that individuals “reconsider travel to”
22 Chihuahua. The court criticized mother for opting to take the
children through a dangerous area while she “withheld information
about her journey” from father, instead of leaving them with father,
who was available to care for them.
¶ 47 Mother contests the district court’s reference to a travel
advisory, arguing that it was not in place at the time of the trip and
that no one admitted evidence on the topic. She says that “the
Court [took] it upon itself to look it up” and that “[t]he Court’s
efforts to find ‘evidence’ that was not presented by Father is clearly
error.”
¶ 48 We disagree. As mother admits in her briefing, the district
court, without objection, took judicial notice of its case file at the
June 2023 hearing. The case file contained all of the matters
previously litigated by the parties, including this very issue, which
was the subject of evidentiary hearings that concluded in August
2022. In its order addressing the parenting disputes at that time,
and the Mexico trip in particular, the court noted that it was
entering “detailed factual findings . . . to place the parties on notice
of the [c]ourt’s degree of alarm initiated by mother’s entire manner
of handling the Mexico trip.” The court noted in its August 2022
23 order that, at that time, the State Department had categorized
Chihuahua as being “classified as a Level 3 state, meaning that
U.S. citizens should ‘reconsider travel to’ that region ‘due to crime
and kidnapping.’”
¶ 49 Contrary to mother’s argument, “a court may take judicial
notice of its own records and adopt factual findings . . . involv[ing]
the same parties and the same issue.” In Interest of C.A.B.L., 221
P.3d 433, 442 (Colo. App. 2009). In its August 2022 order, the
court found that (1) “mother does not have the authority to
jeopardize the safety of the children by requiring them to travel to
the race with her, and that it was a mistake to do so in 2022”;
(2) “U.S. citizens should ‘reconsider travel to’ [Chihuahua]”; and
(3) “mother failed to consider the best interests of the children with
respect to her trip to Mexico.”
¶ 50 In its June 2023 order, the court noted that
[t]hough this episode occurred more than a year ago, it fits a pattern of Mother withholding important information about the children from Father. More importantly, it demonstrates that Mother is willing to place the children’s physical safety in jeopardy to keep them close to her. Mother’s default position is to always avoid including Father in the children’s lives, no matter the risk to their lives.
24 ¶ 51 The court incorporated its earlier factual findings to
demonstrate what it found to be a concerning pattern, not as an
independent basis upon which it decided the pending motion to
restrict parenting time. It was not error for the court to adopt its
findings from its August 2022 order as support for its June 2023
conclusions. And to the extent that mother seeks to challenge the
district court’s August 2022 findings, any such challenge is
untimely. See C.A.R. 4(a)(1).5 Thus, we discern no error in the
district court’s reliance on findings from earlier in the case.
C. The Application of Kayden’s Law
¶ 52 Lastly, mother contends that the district court erred by
concluding that section 14-10-127.5 (known as “Kayden’s Law”) is
inapplicable here.
¶ 53 As an initial matter, the parties dispute preservation. Father
says mother failed to raise this issue at the June hearing and that
she could not properly raise this issue for the first time in her
5 Additionally, to the extent that mother argues the court cannot
consider its previous findings, she is incorrect. See In Interest of C.A.B.L., 221 P.3d 433, 442 (Colo. App. 2009). And to the extent mother argues that there are no new facts or evidence arising since its prior orders, this argument is patently refuted by the record, which includes the June 2023 event prompting the court’s action.
25 motion for reconsideration. Mother counters that she didn’t have
an opportunity to raise the issue earlier because she didn’t know
how the district court was going to rule. We decline to resolve this
dispute because, even if preserved, mother’s claim fails on the
merits.
¶ 54 Mother argues that the district court’s order violates
subsection (3) of Kayden’s Law, which, she says, applies to these
proceedings. See § 14-10-127.5(3). Because mother misreads the
district court’s order, we disagree.
¶ 55 The relevant provision of Kayden’s Law states that when “a
party has committed domestic violence . . . , a court shall not:
(I) [r]emove a child from a protective party solely to improve a
deficient relationship with an accused party; [or] (II) [r]estrict
contact between a child and a protective party solely to improve a
deficient relationship with an accused party.”
§ 14-10-127.5(3)(b)(I)-(II).
¶ 56 In its June 2023 order, the court explained that it restricted
mother’s parenting time to “ameliorate the emotional harm mother
has caused thus far and to prevent future harm.” Later, in its order
denying mother’s motion for reconsideration, the court confirmed
26 that “[n]owhere in the [June 2023 order]” did it state that it
“restrict[ed] Mother’s parenting time to improve a deficient
relationship with Father.” Nonetheless, mother characterizes the
order as an attempt to rebuild the children’s relationship with
father and says that the district court “effectively states that Mother
must get over being a domestic violence victim before she can have
unrestricted parenting time again.” This reading grossly
mischaracterizes the district court’s order.
¶ 57 We agree with the district court that its order does not say
that it is restricting mother’s parenting time to improve the
children’s relationship with father. To the contrary, its findings are
focused on mother’s actions and the emotional harm she has
caused the children. And nowhere within the order does the court
state that mother “must get over” the domestic violence. In fact, the
court’s order states the opposite: “Mother’s dislike of Father may be
justified, and she is entitled to hold on to that sentiment for the rest
of her life. The Court does not require Mother to change her
feelings about Father to resume unrestricted parenting time.”
¶ 58 Because there is no indication that the court was attempting
to improve a deficient relationship with an accused party — much
27 less acting solely for that reason — the provision of Kayden’s Law
cited by mother does not apply. See § 14-10-127.5(3)(b)(I)-(II).
Thus, we discern no abuse of discretion in the district court’s denial
of mother’s motion to reconsider. See, e.g., Gold Hill Dev. Co., L.P. v.
TSG Ski & Golf, LLC, 2015 COA 177, ¶ 52 (“An order denying a
motion for reconsideration under C.R.C.P. 59 is reviewed for abuse
of discretion.”).
D. Attorney Fees
¶ 59 Father requests attorney fees and costs “pursuant to C.A.R.
39(2).” As the prevailing party, father is entitled to his costs.
C.A.R. 39(a)(2). However, “the party claiming attorney fees must
include a specific request, . . . and must explain the legal and
factual basis for an award of attorney fees.” C.A.R. 39.1. Father’s
request constitutes a single sentence with no explanation as to any
entitlement to fees. He provides no facts or legal argument to
support his request. Because he merely cites an appellate rule
“without stating the specific grounds that justify an award of fees,”
we deny his request. In re Marriage of Roddy, 2014 COA 96, ¶ 32.
28 III. Disposition
¶ 60 The order restricting parenting time and modifying
decision-making responsibility and the order denying post-trial
relief are affirmed.
JUDGE HARRIS and JUDGE YUN concur.