23CA2063 Marriage of DiCamillo 10-24-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA2063 Elbert County District Court No. 22DR16 Honorable Theresa Slade, Judge
In re the Marriage of
Tammy Rena Rollins,
Appellee,
and
Randy DiCamillo,
Appellant.
ORDER AFFIRMED
Division VI Opinion by JUDGE BROWN Welling and Graham*, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced October 24, 2024
No Appearance for Appellee
Law Office of Timothy C Dietz, PLLC, Timothy C. Dietz, Colorado Springs, Colorado, for Appellant
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2024. ¶1 Appellant, Randy DiCamillo, appeals the district court’s
issuance of a permanent civil protection order restraining his
contact with Tammy Rena Rollins. We affirm.
I. Background
¶2 In May 2021, DiCamillo reportedly struck Rollins three times
in the presence of the parties’ minor child while Rollins drove
DiCamillo home from the hospital following a surgical procedure he
had undergone earlier that day. DiCamillo was charged with third
degree assault, domestic violence, and child abuse (the 2021
criminal case).1 The county court issued a mandatory protection
order (MPO) restraining DiCamillo’s contact with Rollins. DiCamillo
subsequently pleaded guilty to third degree assault, and the county
court sentenced him to twelve months of supervised probation as
part of a deferred disposition.
¶3 In February 2022, Rollins filed a petition for dissolution of her
common law marriage to DiCamillo.2
1 We take judicial notice of Elbert County case number 21M56 as a
related case under CRE 201(b). See Doyle v. People, 2015 CO 10, ¶ 12; People in Interest of I.S., 2017 COA 155, ¶ 7. 2 Rollins filed the case in El Paso County, but it was later
transferred to Elbert County.
1 ¶4 In October 2023, DiCamillo completed the requirements
associated with his deferred disposition. As a result, the county
court vacated the MPO and sealed the underlying case. Two days
later, Rollins filed a verified motion for a civil protection order in the
dissolution proceeding, recounting several instances of physical
abuse and controlling and coercive behavior by DiCamillo occurring
over a period of sixteen years. In the motion, Rollins explained that
she was making the request because the MPO had been vacated two
days earlier, stating “[DiCamillo] completed probation, so now the
protection order ends for me.” A temporary civil protection order
(TPO) was issued the same day.
¶5 The district court subsequently held a two-day hearing to
determine whether the TPO should be made permanent. After
considering the evidence, the court found “by a preponderance of
the evidence that Mr. DiCamillo had committed the acts
constituting grounds for the issuance of a protection order and
that, unless restrain[ed], will continue to commit such acts that are
designed to intimidate and retaliate against Ms. Rollins.”
Accordingly, the court issued a permanent civil protection order
(PPO) restraining DiCamillo’s contact with Rollins.
2 II. Analysis
¶6 DiCamillo contends that the district court erred by (1) failing
to hold a statutorily mandated hearing before issuing the TPO;
(2) prohibiting the parties’ minor child from testifying during the
PPO hearing; and (3) finding that DiCamillo would continue to
commit acts designed to intimidate or retaliate against Rollins
unless restrained. We perceive no reversible error.
A. Statutory Framework
¶7 Section 13-14-104.5, C.R.S. 2024, authorizes a court to issue
a temporary or permanent civil protection order to prevent, among
other things, domestic abuse and assault. § 13-14-104.5(1)(a);
Martin v. Arapahoe Cnty. Ct., 2016 COA 154, ¶ 16. The statute
requires that “[a] motion for a temporary civil protection order shall
be set for hearing at the earliest possible time,” although the
hearing may be ex parte. § 13-14-104.5(4); see Martin, ¶ 18. If
“after hearing the evidence” the court is “fully satisfied therein that
sufficient cause exists,” it may issue a TPO and a citation “to the
respondent commanding [them] to appear before the court . . . to
show cause, if any, why said temporary civil protection order should
not be made permanent.” § 13-14-104.5(8).
3 ¶8 At the hearing on the PPO, the court “shall examine the record
and the evidence” to decide whether to make the TPO permanent or
to enter a PPO on different terms. § 13-14-106(1)(a), C.R.S. 2024;
see also Martin, ¶ 20. To issue a PPO, the court must find by a
preponderance of the evidence that the person to be restrained
(1) “has committed acts constituting grounds for issuance of a civil
protection order” and (2) “unless restrained will continue to commit
such acts or acts designed to intimidate or retaliate against the
protected person.” § 13-14-106(1)(a). The grounds for issuing a
civil protection order are those set forth in section 13-14-
104.5(1)(a). See Martin, ¶ 20.
B. TPO Hearing
¶9 DiCamillo contends that the PPO is invalid because the district
court failed to hold a hearing before granting the TPO. Even
assuming that a hearing was required and not held, we conclude
that any error was harmless.
1. Standard of Review
¶ 10 Statutory construction and application present questions of
law that we review de novo. Hickerson v. Vessels, 2014 CO 2, ¶ 10.
If we identify an error, we review for harmlessness and will reverse
4 only if the error affected a party’s substantial right. C.R.C.P. 61;
People in Interest of R.D., 2012 COA 35, ¶ 25. “An error affects a
substantial right only if ‘it can be said with fair assurance that the
error substantially influenced the outcome of the case or impaired
the basic fairness of the trial itself.’” Bly v. Story, 241 P.3d 529,
535 (Colo. 2010) (citation omitted).
2. Any Error in Failing to Hold a TPO Hearing Is Harmless Because DiCamillo Was Provided a Full Hearing Before the PPO Was Granted
¶ 11 DiCamillo contends that the district court failed to hold a
statutorily required hearing before issuing the TPO. He further
contends that, because the TPO was procedurally flawed, the PPO is
invalid.
¶ 12 In support of his contention, DiCamillo alleges that as of
December 2, 2023, the district court’s electronic filing system
reflected that a hearing had been held on October 27, 2023, the day
the TPO was issued. Because the filing system reflected that a
hearing had taken place, DiCamillo’s counsel requested the
transcripts from that day. Two days later, DiCamillo’s counsel
“received a call from the transcription service” to inform him that “a
hearing for the issuance of the temporary protection order in this
5 matter was never held on October 27.” Further, after counsel filed
a revised transcript request, the district court “scrubbed and
removed from the electronic filing system the reference to the
non-existent hearing.”
¶ 13 While we struggle to understand how the string of events
DiCamillo sets forth could even be possible — particularly his claim
that the register of actions in the underlying case file was altered to
remove a hearing event — the record provides no clarity as to
whether or not the district court actually held a hearing before
issuing the TPO. Still, even assuming that a TPO hearing was not
held, we conclude that any error is harmless.
¶ 14 DiCamillo contends that “a valid temporary protection order is
a condition precedent to issuance of a permanent protection order”
and “[t]he absence of a valid temporary protection order warrants
vacating the permanent protection order.” But the plain language
of the governing statutes does not so provide, and DiCamillo cites
no other authority supporting these bald contentions. As the
appealing party, DiCamillo “bears the burden to provide supporting
authority for contentions of error asserted on appeal.” Biel v. Alcott,
876 P.2d 60, 64 (Colo. App. 1993).
6 ¶ 15 In any event, “a temporary protection order issued under
section 13-14-104.5 is not the . . . court’s ‘final decision’ on a
plaintiff’s request for a civil protection order.” Martin, ¶ 22. Rather,
the procedure governing TPOs merely “permits [a] court to make an
initial determination as to whether an imminent danger exists to
the person seeking protection, and issue a temporary protection
order based on that finding.” Id.; see § 13-14-104.5. Conversely,
section 13-14-106(1)(a) “contemplates that a final ruling regarding
the plaintiff’s entitlement to a civil protection order, and the terms
of the order, will be made at the permanent order hearing.” Martin,
¶ 22.
¶ 16 Additionally, while section 13-14-104.5 plainly requires that a
hearing be set prior to granting a TPO, the statute permits the
hearing to be conducted ex parte. § 13-14-104.5(4). Because
DiCamillo had no right to be present at any TPO hearing, we fail to
see, and he has failed to articulate, how he was prejudiced.
¶ 17 Finally, the district court held a two-day PPO hearing during
which it weighed the evidence and evaluated the parties’ credibility.
See Parocha v. Parocha, 2018 CO 41, ¶ 16 (It is the trial court’s
“prerogative to weigh and evaluate the parties’ credibility.”); see also
7 Martin, ¶ 23 (“The permanent protection order hearing gives the
respondent a prompt opportunity to challenge the court’s initial ex
parte findings and raise any jurisdictional or procedural
deficiencies.”). Rollins testified and answered questions from both
the court and DiCamillo’s counsel. DiCamillo did the same during
the second day of the hearing. After hearing the parties’ testimony,
observing the parties’ demeanor, and considering the evidence
presented, the court found that Rollins had met her burden of proof
and granted the PPO.
¶ 18 Because DiCamillo had the benefit of presenting evidence
during a two-day hearing before the PPO was granted, we conclude
that any failure to hold a hearing before the TPO was granted was
harmless. The alleged error had no effect on DiCamillo’s
substantial rights in these proceedings. See Martin, ¶ 23 (“[T]he
permanent order hearing and ordinary appellate procedures provide
adequate alternative remedies for challenging a temporary
restraining order.”).
8 C. Minor Child’s Testimony
¶ 19 DiCamillo contends that the district court abused its
discretion by prohibiting the parties’ minor child from testifying
during the PPO hearing. We are not persuaded.
¶ 20 We review a trial court’s determination regarding the
admissibility of evidence for an abuse of discretion. Gebert v. Sears,
Roebuck & Co., 2023 COA 107, ¶ 29. A court abuses its discretion
when its ruling is manifestly arbitrary, unreasonable, or unfair or is
based on an erroneous understanding or application of the law. Id.
2. The District Court Did Not Abuse Its Discretion by Preventing the Minor Child from Testifying
¶ 21 In Rollins’ verified motion for a civil protection order, she
alleged that DiCamillo had “beat [her] in front of [her] kids a lot
[from January] 2005 until May 22, 2021.” At the PPO hearing,
DiCamillo sought to call the parties’ fourteen-year-old son as a
witness to disprove Rollins’ allegation. Specifically, DiCamillo’s
counsel explained that the child would testify that “he [did not]
observe either party striking [the] other and never observed any
bruises or black eyes on Ms. Rollins.”
9 ¶ 22 As we understand the district court’s ruling, it prohibited the
minor child from testifying for two reasons. First, the court
theorized that if the child would testify that he did not see the
abuse happen, then he was not a relevant witness to speak to the
allegations of abuse. Second, the court was concerned about the
negative impact on the child’s wellbeing that would result from
being thrust into the middle of his parents’ conflict, explaining that
it is inappropriate “for a child to testify in his parents’ proceedings
regarding a temporary or permanent protection order involving
domestic abuse.”
¶ 23 DiCamillo contends the court erred because “it was reasonable
for [him] to have [their fourteen] year old son present at the
courthouse to refute Ms. Rollins’s outlandish claims.” He argues
that the minor child’s testimony would have refuted Rollins’ claim
“that she was subjected to repeated beatings over a [sixteen -]year
period resulting in long-lasting and visible injuries.” We perceive no
abuse of discretion.
¶ 24 First, the child’s proposed testimony that no abuse occurred
would not be relevant unless the minor child was physically present
for every single interaction between his parents, a circumstance no
10 one claims to exist. See CRE 402 (“Evidence which is not relevant
is not admissible.”); see also CRE 602 (“A witness may not testify to
a matter unless evidence is introduced sufficient to support a
finding that he has personal knowledge of the matter.”). And
although Rollins alleged that DiCamillo had “beat [her] in front of
[her] kids,” Rollins has two children from a prior marriage. Thus,
establishing that one child did not witness the abuse does not
disprove Rollins’ allegation, as “my kids” may have meant her two
other children. See Smith v. Bd. of Educ., 83 P.3d 1157, 1165 (Colo.
App. 2003) (“A trial court has considerable discretion in
determining whether evidence has logical relevance.”).
¶ 25 Second, even assuming the child’s proposed testimony that he
did not see bruises or black eyes on Rollins was marginally
probative to show that the abuse did not happen as Rollins claimed,
the court nonetheless acted within its discretion by excluding it. At
the heart of the court’s ruling is a careful balancing of the best
interests of the minor child against the minimal probative value of
his testimony. See CRE 403 (“Although relevant, evidence may be
11 excluded if its probative value is substantially outweighed by the
danger of unfair prejudice . . . [or] confusion of the issues.”).3
¶ 26 One of the purposes of the Uniform Dissolution of Marriage
Act, the act governing the dissolution case in which the PPO was
entered, is “[t]o mitigate the potential harm to the spouses and their
children caused by the process of legal dissolution of marriage.”
§ 14-10-102(2)(b), C.R.S. 2024; see also § 14-10-104.5, C.R.S.
2024. Indeed, the district court is required to consider the best
interests of the child in such matters, “giving paramount
consideration to the child’s safety and the physical, mental, and
emotional conditions and needs of the child.” § 14-10-124(1.5),
C.R.S. 2024.
¶ 27 For these reasons, “the preferred method” of receiving evidence
from a child in a dissolution proceeding is by in camera interview,
Haase v. Haase, 460 S.E.2d 585, 680-81 (Va. Ct. App. 1995), which
3 Although we recognize that the “unfair prejudice” contemplated by
CRE 403 is not harm to a child resulting from having to testify in favor of one parent against another, see Kelly v. Haralampopoulos, 2014 CO 46, ¶ 47 (“[U]nfair prejudice” means “an undue tendency on the part of admissible evidence to suggest a decision made on an improper basis.”) (citation omitted), we cannot say the court abused its discretion in balancing the competing interests as it did.
12 neither party requested in this case. That is because “[n]o person
who is a party to a divorce proceeding — litigant, counsel, or
[judicial officer] — relishes the spectacle of a child testifying in open
court as to [their] preference for one parent over another.” Id.
at 680. An in camera interview allows the court to receive evidence
from the child while “(1) lessening the ordeal for the child by
eliminating the harm a child might suffer from exposure to the
adversarial nature of the proceedings; (2) enhancing the child’s
ability to be forthcoming; and (3) protecting the child from the ‘tug
and pull of competing custodial interests.’” People in Interest of
H.K.W., 2017 COA 70, ¶ 18 (quoting Ynclan v. Woodward, 237 P.3d
145, 150-51 (Okla. 2010)).
¶ 28 We acknowledge that, unlike Haase and H.K.W., the
proceeding that resulted in issuance of the PPO was not a hearing
to determine the allocation of parental responsibilities.
Nonetheless, the considerations animating those decisions apply
equally here, where allowing the child to testify would necessarily
embroil him in his parents’ extraordinary conflict to his detriment.
As DiCamillo’s counsel conceded, the child was “pretty stressed
over having to be [t]here [that day].” The probative value of the
13 evidence was slight while the risk of harm to the child was great.
On this record, we cannot conclude that the district court’s decision
to exclude his testimony was manifestly arbitrary, unreasonable, or
unfair. See Gebert, ¶ 29.
D. The District Court’s Finding that Unless Restrained, DiCamillo’s Conduct Will Continue
¶ 29 DiCamillo contends that the district court erred by finding that
he would continue to engage in domestic abuse or intimidating and
retaliatory conduct against Rollins unless restrained. We disagree.
¶ 30 We review a trial court’s factual findings for clear error. Lo
Viento Blanco, LLC v. Woodbridge Condo. Ass’n, Inc., 2021 CO 56,
¶ 17. A finding of fact is clearly erroneous if there is no support for
it in the record. In re Marriage of Evans, 2021 COA 141, ¶ 39. It is
for the trial court to determine witness credibility and the weight,
probative force, and sufficiency of the evidence, as well as the
inferences and conclusions to be drawn therefrom. In re Mariage of
Thorburn, 2022 COA 80, ¶ 49; see also In re Marriage of Amich, 192
P.3d 422, 424 (Colo. App. 2007) (“The trial court can believe all,
14 part, or none of a witness’s testimony, even if uncontroverted, and
its resolution of conflicting evidence is binding on review.”).
2. The Record Supports the Court’s Finding
¶ 31 DiCamillo challenges the district court’s finding as to the
second requirement for issuing a PPO — that “unless restrained [he]
will continue to commit such acts or acts designed to intimidate or
retaliate against the protected person.” § 13-14-106(1)(a).
¶ 32 Rollins attested or testified to the following:
• She suffered mental, emotional, and physical abuse at
the hands of DiCamillo for approximately sixteen years.
The abuse occurred in situations where there were rarely
witnesses aside from children, nieces, or nephews, and it
“was always hidden.”
• DiCamillo engaged in aggressive and violent behavior
toward Rollins, including pinning her against a bedroom
floor and repeatedly striking her face, hitting her while
she was driving a car with their minor child in the back
seat in 2021, and breaking her glasses and “put[ting]
[her] out on the side of the road” in 2017.
15 • DiCamillo engaged in coercive and controlling behavior
toward Rollins relative to transportation, including
disabling her car to prevent her departure following an
argument in 2008, forcing her out of the car in 2017, and
taking the keys out of the ignition while she was driving
in 2021.
• Rollins submitted photo and audio evidence in support of
her allegations of abuse. The photos pertained to
separate incidents of abuse that occurred in 2017 and
2019. The audio recording pertained to a verbal
argument in 2019 relating to the minor child’s schooling
during which DiCamillo levied threats of violence against
Rollins.
• DiCamillo previously pleaded guilty to third degree
assault on Rollins. Rollins said the MPO entered in the
2021 criminal case provided her with a “security blanket”
and that when DiCamillo completed his deferred
judgment requirements and the MPO was vacated, so
was her sense of security. Rollins filed for a TPO two
days later.
16 ¶ 33 DiCamillo contends that the district court “failed to articulate
any facts or basis as [to] how Mr. DiCamillo could pose a continuing
threat to Ms. Rollins even if the abuse as alleged actually occurred.”
Specifically, he argues “[t]he only actionable abuse is related to Mr.
DiCamillo’s deferred disposition in the 2021 criminal case and
possibly the disabling of the motor vehicle when Ms. Rollins was
pregnant some [thirteen] years earlier.” Further, DiCamillo argues
that because the parties now live approximately thirty-six miles
away from each other and “Rollins admitted she has [not] observed
Mr. DiCamillo anywhere near her residence since the parties
separated in May, 2021,” “[t]here was absolutely no basis for finding
that Mr. DiCamillo constitutes a continuing threat under these
circumstances.”
¶ 34 Although the district court could have been more explicit as to
why it found that DiCamillo posed a continuing threat to Rollins,
the record nonetheless supports that finding — especially under the
applicable preponderance of the evidence standard, see
§ 13-14-106(1)(a), which requires only that the court find the
existence of a contested fact to be more probable than not, Life Care
17 Ctr. of Am. v. Indus. Claim Appeals Off., 2024 COA 47, ¶ 15. We
reach this conclusion for three reasons.
¶ 35 First, given that the alleged domestic abuse — including the
coercive and controlling behavior4 — occurred repeatedly over a
period of sixteen years, it is not unreasonable to believe that the
conduct would continue to occur unless restrained. Rollins testified
that the physical abuse began a mere two weeks after the parties
began cohabitating in 2005. She recounted instances of domestic
abuse occurring in 2008, 2017, 2019, and most recently in 2021
when DiCamillo pleaded guilty to third degree assault.
¶ 36 We are unpersuaded by DiCamillo’s argument that since the
last claimed incident of abuse was in 2021, he does not pose a
continuing threat to Rollins. The argument ignores the fact that an
MPO restraining DiCamillo’s contact with Rollins was issued in
2021 and remained in place until just two days before Rollins
4 In the context of civil protection orders, “domestic abuse” is
defined as “any act, attempted act, or threatened act of violence, stalking, harassment, or coercion that is committed by any person against another person to whom the actor is currently or was formerly related, or with whom the actor is living or has lived in the same domicile, or with whom the actor is involved or has been involved in an intimate relationship.” § 13-14-101(2), C.R.S. 2024.
18 sought a TPO. Thus, it is not particularly telling that DiCamillo has
not intimidated or retaliated against Rollins since he last admitted
to abusing her. DiCamillo’s argument may in fact prove the value
of a protective order for these parties. In any event, the extended
duration of abuse supports the conclusion that it would continue
absent restraint. See § 13-14-104.5(7)(a) (A court “shall not deny a
petitioner the relief requested because of the length of time between
an act of abuse or threat of harm and the filing of the petition for a
protection order.”).
¶ 37 Second, the district court noted that credibility is particularly
important in cases such as this where two parties offer
contradictory testimony concerning the same events. During the
hearing, the court observed the parties’ in-court demeanor and was
best positioned to determine their credibility. See People v. Pitts,
13 P.3d 1218, 1221 (Colo. 2000) (“It is the function of the trial
court, and not the reviewing court, to weigh evidence and
[determine] the credibility of the witnesses.”).
¶ 38 In recounting its observations bearing on the parties’
credibility, the court explained that, during direct examination,
DiCamillo was more than willing to engage and answer questions,
19 but “[i]t was only when Ms. Rollins was asking questions[] that he
suddenly had a lapse of memory.” Specifically, DiCamillo “[could
not] remember the police responding; [could not] remember what he
told the police; [and did] not recall being arrested” after he disabled
Rollins car in 2008. Further, DiCamillo argues that he only entered
a plea relating to his assault of Rollins in 2021 to “keep the couple’s
son from testifying against his mother.” Yet in the present matter,
DiCamillo sought to offer the minor child as a witness to do just
that. These findings are supported by the record and led the court
to find that DiCamillo’s testimony lacked credibility.
¶ 39 Finally, the district court’s order emphasized DiCamillo’s
controlling and coercive conduct as evidence of the potential for
ongoing domestic abuse. The court pointed to the instance in
which DiCamillo disabled Rollins’ car in 2008 while she was
pregnant, stating, “[DiCamillo] was quick to point out that the car
he disabled was a car that he purchased.” The court noted that, in
testifying about Rollins’ cellphone, “[DiCamillo] was quick to explain
to [Rollins] that it was his phone and she was only permitted to use
it.” And the court highlighted a recent parenting time dispute that
occurred while the MPO was still in place. During that dispute,
20 Rollins believed she had permission to retrieve the minor child from
DiCamillo earlier than parenting time orders allowed. But when
she attempted to initiate the exchange, DiCamillo refused, drove
away with the minor child to evade Rollins, and threatened Rollins
with legal action, all while filming the interaction and telling the
minor child what Rollins was doing wrong. Taken together, the
court observed DiCamillo’s “need to control these situations,
sometimes without logic or explanation.”
¶ 40 DiCamillo seizes on the court’s concession that some of the
alleged instances of abuse standing alone — for example, disabling
Rollins’ car in 2008 or the parenting time exchange dispute in 2021
— would not “be the basis for granting a protection order.” But the
cited examples are just two threads of a much larger tapestry. And
we understand the court’s ruling to mean that, although each
isolated incident may not have been sufficient to sustain the PPO,
the incidents viewed collectively met the standard.
¶ 41 We conclude that the record supports the district court’s
findings that DiCamillo “has committed acts constituting grounds
for issuance of a civil protection order” and “unless restrained [he]
will continue to commit such acts or acts designed to intimidate or
21 retaliate against the protected person.” § 13-14-106(1)(a). We will
not disturb these findings or the PPO.
III. Disposition
¶ 42 The permanent civil protection order is affirmed.
JUDGE WELLING and JUDGE GRAHAM concur.