24CA1672 Marriage of Flohr 06-05-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA1672 Douglas County District Court No. 22DR30401 Honorable Robert Lung, Judge
In re the Marriage of
Dawn Marie Flohr, n/k/a Dawn Marie Rannells,
Appellee,
and
Cory James Flohr,
Appellant.
ORDER AFFIRMED
Division IV Opinion by JUDGE GOMEZ Freyre and Meirink, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced June 5, 2025
Willoughby & Associates, LLC, Sara M. Cates, Golden, Colorado, for Appellee
Suazo Law, LLC, G. Aaron Suazo, Ian Z. Shea, Littleton, Colorado, for Appellant ¶1 Cory James Flohr (husband) appeals the entry of a permanent
protection order (PPO) against him, protecting Dawn Marie Flohr,
now known as Dawn Marie Rannells (wife). We affirm.
I. Background
¶2 The parties married in 2015 and have two minor children. In
June 2022, wife petitioned to dissolve the parties’ marriage and
concurrently moved for the entry of a civil protection order against
husband protecting both her and the children. In seeking a
protection order, wife cited domestic abuse and physical assault or
threats. The district court entered a temporary protection order
listing wife and the two children as protected persons, and the
parties agreed to keep that order in place until their July 2024
permanent orders hearing. They also agreed to have the potential
entry of a PPO addressed at the permanent orders hearing.
¶3 In the meantime, the district court appointed a Parental
Responsibility Evaluator (PRE) to make recommendations as to an
allocation of parental responsibilities. The court also appointed a
special master to resolve the parties’ disputes as to the PRE’s
access to certain private information.
1 ¶4 Because the parties settled all matters attendant to the
dissolution of their marriage before the permanent orders hearing,
the district court set a PPO hearing for August 2024. Before the
hearing, wife agreed to remove the children from the protection
order.
¶5 After taking evidence, the district court entered a PPO
protecting wife from husband. The court found that husband had
committed acts constituting grounds for the issuance of a
protection order based on assaults, threats of bodily harm, and
domestic abuse, which included both verbal and physical
harassment. The court credited the testimony of both the PRE and
wife as to husband’s pattern of abusive conduct and was persuaded
by an audio recording in which it was “very clear . . . that h[usband]
[wa]s physically assaulting [wife].”
¶6 The district court also found that husband would continue to
commit acts constituting grounds for the issuance of a protection
order unless restrained. The court reasoned that the duration of
husband’s abusive conduct and his ongoing denial of such conduct
meant that he was likely to continue abusing wife.
2 II. Statutory Framework
¶7 To issue a PPO, a 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), C.R.S. 2024. As relevant here, a court may issue
a protection order to prevent assaults, threatened bodily harm, and
domestic abuse. § 13-14-104.5(1)(a), C.R.S. 2024.
III. Preservation, Waiver, and Invited Error
¶8 In a civil case, “issues not raised in or decided by a lower court
will not be addressed for the first time on appeal.” Melat, Pressman
& Higbie, L.L.P. v. Hannon Law Firm, L.L.C., 2012 CO 61, ¶ 18.
Therefore, “[a] party’s mere opposition to its adversary’s request . . .
does not preserve all potential avenues for relief on appeal. We
review only the specific arguments a party pursued before the
district court.” Valentine v. Mountain States Mut. Cas. Co., 252 P.3d
1182, 1188 n.4 (Colo. App. 2011). To preserve an issue for
appellate review, a party must raise an argument “to such a degree
that the court has the opportunity to rule on it.” Madalena v.
3 Zurich Am. Ins. Co., 2023 COA 32, ¶ 50 (quoting Brown v. Am.
Standard Ins. Co. of Wis., 2019 COA 11, ¶ 21); see also In re
Marriage of Aragon, 2019 COA 76, ¶ 27.
¶9 A party may also waive an issue by intentionally relinquishing
a known right. Bernache v. Brown, 2020 COA 106, ¶ 10.
Waiver may be express, as when a party states its intent to abandon an existing right, or implied, as when a party engages in conduct which manifests an intent to relinquish the right or acts inconsistently with its assertion.
In re Marriage of Hill, 166 P.3d 269, 273 (Colo. App. 2007).
¶ 10 Moreover, “[t]he doctrine of invited error precludes a party
from appealing an error that the party invited or injected into the
case.” In re Marriage of O’Connor, 2023 COA 35, ¶ 24. “A party’s
affirmative action during litigation triggers this doctrine and usually
bars appellate review of alleged error arising from such action.”
Vista Resorts, Inc. v. Goodyear Tire & Rubber Co., 117 P.3d 60, 65
(Colo. App. 2004).
IV. Treatment of Husband’s Mental Health Information
¶ 11 Husband first argues that the PPO must be reversed because
privileged and confidential information concerning his mental
health was improperly provided to the PRE and thereby injected
4 into the PPO proceedings. We reject husband’s contentions as
waived or unpreserved.
A. Special Master’s Rulings on Mental Health Evaluations
¶ 12 Husband specifically asserts that the special master erred by
ordering him to provide the PRE with (1) certain Federal Aviation
Administration (FAA) mental health evaluations, which the FAA had
conducted in reevaluating husband’s pilot’s license; and (2) mental
health evaluations conducted during a probate dispute involving
husband and his mother’s estate. Husband argues that his
psychotherapist-patient privilege under section 13-90-107(1)(g),
C.R.S. 2024, was thus improperly abrogated. We conclude,
however, that husband has waived the issue.
¶ 13 Pursuant to C.R.C.P. 53(a)(1)(C), governing the appointment of
a special master to address pretrial matters, the district court
empowered the special master to resolve the parties’ disputes as to
the PRE’s access to the FAA and probate evaluations. In her
corresponding report and recommendations, the special master
disagreed that the evaluations should be withheld from the PRE
based on husband’s privacy interests and instead recommended
that the evaluations should be produced, subject to certain
5 redactions. After holding an additional hearing with the parties, the
special master issued an amended report and recommendations
that again recommended the production of the evaluations, with
redactions. The district court then approved the special master’s
amended report and recommendations.
¶ 14 We agree with wife that husband has waived any challenge to
the special master’s recommendations as to the production of the
FAA and probate evaluations. The final sentence of the special
master’s amended report and recommendations states, “The parties
agreed at [a] hearing held 7/21/23 to accept the findings and
redact those portions mentioned in the recommendation and
exchange those documents within [seven] days of the date of this
recommendation.” Consistent with that agreement, husband never
objected to the special master’s recommendations. See C.R.C.P.
53(f)(2) (providing a fourteen-day window to file objections to a
special master’s recommendations when the special master held a
hearing). Thus, we conclude that husband’s agreement to the
findings, combined with his lack of an objection under C.R.C.P.
53(f)(2), constituted a waiver of his right to challenge the special
6 master’s recommendations. See Bernache, ¶ 10; Hill, 166 P.3d at
273.
¶ 15 Husband asserts that he only stipulated to the special
master’s “findings,” as opposed to legal conclusions, and therefore
he may still challenge on appeal the special master’s
recommendation that he produce the evaluations. Yet, husband
doesn’t dispute that he agreed to produce the partially redacted
evaluations within seven days of the special master’s amended
recommendations. And we conclude that such an agreement to
produce the documents before the district court review process
could play out under C.R.C.P. 53(f) was inconsistent with
husband’s right to object under that rule, and thus he has waived
any challenge to the special master’s ruling. See Hill, 166 P.3d at
273 (waiver may be implied from acts inconsistent with an assertion
of a party’s right).
B. Husband’s Treating Psychologist
¶ 16 As best as we can discern, husband also asserts that the
district court’s approval of the special master’s recommendations
likewise resulted in the erroneous abrogation of his
psychotherapist-patient privilege as to his treating psychologist,
7 who provided information to the PRE and testified at the PPO
hearing. But we again hold that husband failed to preserve or
otherwise invited the alleged errors.
¶ 17 The district court’s order appointing the special master stated
that the PRE’s “[f]ull access to all therapists that have been involved
with the family,” including “unrestricted releases of information” as
to those treatment providers, was one of the disputes for the special
master to resolve. But the special master’s recommendations
indicated that, since her appointment, the parties had resolved all
their disputes except for the production of the FAA and probate
evaluations. Those were the only issues the special master
addressed, and the special master thus never made any
recommendations requiring husband’s treating psychologist to
produce any documents or otherwise testify. Accordingly, we see no
indication that any arguments concerning husband’s treating
psychologist were set forth and then ruled on in the proceedings
before the special master. Thus, such issues are not preserved for
our appellate review. See Melat, ¶ 18.
¶ 18 Husband asserts that the alleged errors regarding the
involvement of his treating psychologist were nonetheless preserved
8 because the district court stated in a minute order that “A CHILD
PROFESSIONAL WILL ALWAYS HAVE ACCESS TO ALL ISSUES IN
A CASE.” But because husband challenges that minute order for
the first time in his reply brief, we decline to address his contention
that the minute order improperly abrogated his psychotherapist-
patient privilege. See In re Marriage of Herold, 2021 COA 16, ¶ 14
(declining to address an argument not raised in a party’s opening
brief).
¶ 19 Finally, to the extent that husband claims that the testimony
of his treating psychologist somehow tainted the PPO hearing, we
observe that any possible error was invited by husband given that
husband himself called his psychologist as a witness. See Vista
Resorts, 117 P.3d at 65. We also disagree with husband that he
was forced to call his psychologist as a matter of strategy to mitigate
the prior improper abrogation of his psychotherapist-patient
privilege because he hasn’t identified any place in the record where
he asserted that privilege. See Madalena, ¶ 50.
9 V. Admission of PRE Report at the PPO Hearing and Issue of Separate Presiding Judicial Officer
¶ 20 We similarly reject as unpreserved husband’s contentions that
(1) the introduction of the PRE report and the involvement of the
PRE in the PPO proceedings was inherently improper and violative
of his due process rights and (2) a judicial officer different than the
judge presiding over the parties’ domestic relations case should
have presided over the PPO hearing.
¶ 21 Specifically, husband failed to object when wife called the PRE
as a witness at the PPO hearing, and he stipulated to the admission
of the PRE report. Likewise, at no point did husband ever seek the
recusal of the presiding judge or ask that the PPO hearing be
assigned to a different judicial officer. Therefore, husband has
failed to preserve his contentions of error as to those issues. See
Melat, ¶ 18; Madalena, ¶ 50.
VI. Husband’s Access to Wife’s Mental Health Records and Treatment Providers
¶ 22 We next consider and reject husband’s contention that the
district court erred and denied him due process because he was
prevented from accessing wife’s mental health records and from
calling her treatment providers as witnesses.
10 ¶ 23 Before the parties settled the issues relevant to the dissolution
of their marriage, wife filed, based on her own psychotherapist-
patient privilege, a motion in limine seeking to prevent husband
from requesting documents from, and calling as witnesses, her
mental health treatment providers. The district court granted wife’s
motion.
¶ 24 Husband first argues that the district court erred in granting
wife’s motion because, under section 14-10-127(3), C.R.S. 2024, he
had a statutory right to call wife’s treatment providers as witnesses
given that the PRE had consulted with the treatment providers.
Section 14-10-127(1)(a)(I)(A) authorizes the court to appoint a
parenting evaluator “[i]n all proceedings concerning the allocation of
parental responsibilities.” In turn, under section 14-10-127(3),
“[a]ny party to the proceeding may call the evaluator and any person
with whom the evaluator has consulted for cross-examination.”
(Emphasis added).
¶ 25 Here, the PPO hearing was not a proceeding concerning the
allocation of parental responsibilities. See § 14-10-127(1)(a)(I)(A).
Therefore, the conditions under which husband might have had a
right to cross-examine the treatment providers under section 14-10-
11 127(3) did not exist, and his statutory right to cross-examine the
treatment providers was not violated.
¶ 26 We also reject husband’s argument that his right to due
process was violated because he was prevented from calling the
treatment providers as witnesses. The opportunity to be heard is
an inherent element of due process and must be granted at a
meaningful time and in a meaningful manner. In re Marriage of
Hatton, 160 P.3d 326, 329 (Colo. App. 2007). Due process generally
includes a right to cross-examine witnesses and an opportunity to
offer rebuttal. Aspen Props. Co. v. Preble, 780 P.2d 57, 58 (Colo.
App. 1989); In re Marriage of Goellner, 770 P.2d 1387, 1389 (Colo.
App. 1989).
¶ 27 The essence of due process is fundamental fairness. Van
Sickle v. Boyes, 797 P.2d 1267, 1273 (Colo. 1990). Therefore, “due
process is flexible and calls for such procedural protections as the
particular situation demands.” Morrissey v. Brewer, 408 U.S. 471,
481 (1972); accord Van Sickle, 797 P.2d at 1273. We review de novo
whether a party was denied due process. People in Interest of C.J.,
2017 COA 157, ¶ 25.
12 ¶ 28 Here, to the extent that the PRE’s conclusions were based on
information obtained from wife’s treatment providers, husband was
afforded, and took advantage of, the opportunity to cross-examine
the PRE as to the underpinnings of the PRE’s conclusions. We thus
conclude that the PRE proceedings provided husband with
sufficient fundamental fairness to comport with his due process
rights. See Morrissey, 408 U.S. at 481; Van Sickle, 797 P.2d at
1273.
¶ 29 Finally, even assuming, without deciding, that the district
court erred by upholding wife’s psychotherapist-patient privilege,
husband has failed to adequately allege prejudice arising from the
court’s ruling. See People in Interest of A.C., 170 P.3d 844, 845
(Colo. App. 2007) (an alleged error, without a valid allegation of
prejudice, is not grounds for reversal). Husband’s assertion of
prejudice rests almost entirely on his speculation about what wife’s
mental health records might have revealed. But such speculation
doesn’t constitute a sufficient basis for reversal. See Antolovich v.
Brown Grp. Retail, Inc., 183 P.3d 582, 606-07 (Colo. App. 2007) (The
plaintiffs’ “speculation that they would have found relevant, useful
evidence” if documents had been timely disclosed did not warrant a
13 new trial.); cf. Silva v. Wilcox, 223 P.3d 127, 137 (Colo. App. 2009)
(“[S]peculations do not warrant additional discovery.”).
VII. Husband’s Access to the Children’s Mental Health Information and Preclusion of Testimony Concerning Husband’s Interactions with the Children
¶ 30 We lastly reject husband’s assertion that the district court
erred by (1) preventing him from accessing the children’s mental
health records and treatment providers and (2) sustaining
objections as to testimony concerning his parenting of the children.
¶ 31 Based on wife’s assertion of the children’s psychotherapist-
patient privilege, the district court’s order granting wife’s motion in
limine also prevented husband from seeking documents and
testimony from the children’s mental health treatment providers.
And when husband’s counsel asked the PRE questions about
husband’s ability to appropriately and safely care for the children,
the court sustained wife’s objections to the questioning based on
relevance because the children were no longer part of the PPO.
¶ 32 As to the children’s mental health records and treatment
providers, husband has again failed to explain, beyond mere
speculation, how he was prejudiced by the district court’s ruling.
See Antolovich, 183 P.3d at 606-07; A.C., 170 P.3d at 845.
14 ¶ 33 And even if we assume that the district court erred by
excluding testimony concerning husband’s parenting of the
children, we conclude that any error was harmless.
¶ 34 We will reverse an error only if the error affected a party’s
substantial rights, see C.R.C.P. 61, which occurs 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) (quoting Banek v.
Thomas, 733 P.2d 1171, 1178 (Colo. 1987)).
¶ 35 Here, wife introduced significant evidence — including her own
testimony, the PRE’s report and testimony, a police report,
photographs, and multiple audio and video recordings — in support
of her contention that husband verbally and physically abused her
throughout the parties’ marriage.
¶ 36 For instance, in one audio recording, husband can be heard
repeatedly swearing at wife, throwing objects, and then physically
grabbing her while she begs him to stop and let her go. Similarly,
wife introduced photographs of marks on her neck and a bruise on
her arm from incidents during which husband had physically
attacked her. Moreover, wife recalled that husband had threatened
15 to kill her “over [fifty] times,” including while holding a gun, and
husband conceded that he had “conditionally” threatened to kill
her. Given the substantial evidence of husband’s violent behavior
directed at wife, we are unpersuaded that the exclusion of
testimony of his interactions with the children could somehow have
“substantially influenced the outcome of the case or impaired the
basic fairness of the trial itself,” requiring reversal. Id. (quoting
Banek, 733 P.2d at 1178).
¶ 37 Relying on documents appended to his briefing, husband
insists that his interactions with the children were probative of
whether he was likely to be an ongoing perpetrator of “intimate
partner violence,” but we may not consider documents appended to
briefs that do not appear in the certified record. In re Marriage of
Drexler, 2013 COA 43, ¶ 24. And while the district court cited
“intimate partner violence” when issuing the PPO, it is apparent to
us that the district court primarily based the PPO on assaults and
threatened bodily harm, as well as domestic abuse in the form of
harassment. See § 13-14-104.5(1)(a); § 13-14-101(2), C.R.S. 2024
(defining domestic abuse as including “any act, attempted act, or
threatened act of violence, stalking, harassment, or coercion that is
16 committed by any person against another person . . . with whom
the actor . . . has been involved in an intimate relationship”);
§ 18-9-111(1)(a), C.R.S. 2024 (defining harassment as occurring
when a person, “with intent to harass, annoy, or alarm another
person, . . . [s]trikes, shoves, kicks, or otherwise touches a person
or subjects [them] to physical contact”); § 18-3-204(1)(a), C.R.S.
2024 (defining third degree assault as including “knowingly or
recklessly caus[ing] bodily injury to another person”).
¶ 38 In sum, because the record amply demonstrates that husband
engaged in a lengthy pattern of physical violence and threats
against wife during the parties’ marriage, any error concerning the
admission of testimony as to husband’s interactions with the
children was harmless. See In re Marriage of Adamson, 626 P.2d
739, 741 (Colo. App. 1981) (evidentiary ruling was not reversible
error where other cumulative evidence supported the judgment).
VIII. Appellate Attorney Fees
¶ 39 Wife requests an award of her appellate attorney fees on the
grounds that husband’s appeal is without substantial justification
and is otherwise frivolous. See § 13-17-102, C.R.S. 2024.
Although the issue is arguably close, we don’t view husband’s
17 appeal as frivolous such that an award of appellate attorney fees is
appropriate. We therefore deny wife’s request.
¶ 40 Wife also seeks an award of appellate attorney fees under
section 14-10-119, C.R.S. 2024, which allows a court to equitably
apportion, based on a disparity in the parties’ financial resources,
the “cost . . . of maintaining or defending any proceeding pursuant
to this article 10.” (Emphasis added.) While section 13-14-106(1)(c)
authorizes the entry of protection orders in proceedings commenced
under article 10 of title 14, protection orders are otherwise governed
by article 14 of title 13. We therefore agree with husband that we
may not award wife attorney fees under section 14-10-119 because
husband’s appeal of the protection order doesn’t involve
maintaining or defending a proceeding under article 10 of title 14.
Cf. In re Marriage of Gallegos, 251 P.3d 1086, 1087-90 (Colo. App.
2010) (section 14-10-119 didn’t provide a basis for the court to
award attorney fees after denying a petition for grandparent
visitation because even though grandparents pursued their
visitation request by intervening in a dissolution proceeding, the
basis for their visitation request was title 1 of article 19).
18 IX. Disposition
¶ 41 The order is affirmed.
JUDGE FREYRE and JUDGE MEIRINK concur.