23CA2073 Marriage of Kowalski 09-19-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA2073 Boulder County District Court No. 17DR30329 Honorable Thomas F. Mulvahill, Judge
In re the Marriage of
Karla Rosete Kowalski, n/k/a Karla Rosete Nunez,
Appellee,
and
Robert Gerard Kowalski,
Appellant.
ORDER AFFIRMED IN PART AND REVERSED IN PART, AND CASE REMANDED WITH DIRECTIONS
Division VII Opinion by JUDGE TOW Pawar and Schutz, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced September 19, 2024
Kottke & Brantz LLC, Jennifer C. Terry, Boulder, Colorado, for Appellee
Robert Gerard Kowalski, Pro Se ¶1 In this post-decree dissolution of marriage case between Karla
Rosete Kowalski, now known as Karla Rosete Nunez (mother), and
Robert Gerard Kowalski (father), father appeals the district court’s
order adopting a magistrate’s ruling that modified parental
responsibilities and awarded mother attorney fees. We reverse the
portion of the order awarding attorney fees and remand for the
court to vacate the award. We otherwise affirm.
I. Relevant Facts and Procedural History
¶2 In the district court’s 2019 permanent orders, the court
allocated to the parties equal parenting time and joint
decision-making responsibility for their two children, J.K. and N.K.
¶3 About two years later, mother moved to modify and restrict
father’s parenting time, and she requested sole decision-making
responsibility. The magistrate appointed a child and family
investigator (CFI). The parties’ older child, J.K., began refusing
parenting time with father, and, after a hearing, the magistrate
found that J.K.’s emotional well-being was endangered with father
and restricted his parenting time.
¶4 In November 2022, and while mother’s request to modify
parental responsibilities remained pending, father, appearing pro
1 se, moved to restore his parenting time. And in December 2022,
mother supplemented her motion to modify.
¶5 During the pendency of these motions, the court imposed an
injunction against father due to his vexatious litigation (related to
other post-decree disputes), and it required father to request and
obtain permission from the court before he could file future
motions. Father appealed the court’s ruling, and another division
of this court affirmed the court’s imposition of this restriction. In re
Marriage of Kowalski, (Colo. App. Nos. 23CA0188, 23CA0740, Jan.
18, 2024) (not published pursuant to C.A.R. 35(e)) (Kowalski I).
¶6 Meanwhile, after multiple continuances that were requested,
at least in part, by father, the magistrate set a hearing on the
pending parental responsibilities motions for August 2, 2023.
Approximately two weeks before that hearing, father asked the
court for permission to file another motion to continue. The
magistrate allowed him to file the motion and, in doing so,
reminded him of his duty to confer with mother’s attorney before
filing it.
¶7 On July 21, 2023, father filed the motion to continue (written
motion to continue). In response, mother’s attorney certified to the
2 magistrate that father did not confer with him. The magistrate then
denied the motion due to father’s failure to confer under C.R.C.P.
121, section 1-15(8).
¶8 At the start of the August 2023 hearing, father again asked the
magistrate to continue the hearing (oral motion to continue). The
magistrate denied his request. Father then informed the magistrate
that he would not participate and left the hearing.
¶9 The magistrate proceeded without father and, after the
hearing, found that his parenting time endangered the children.
The magistrate restricted father’s parenting time with N.K. and
continued the parenting time restriction with J.K. The magistrate
also allocated to mother sole decision-making responsibility.
Additionally, the magistrate granted mother’s request for an award
of attorney fees due to father’s continued vexatious filings, which
included his motion to restore parenting time, and ordered father to
pay mother’s attorney $3,920 in attorney fees and costs.
¶ 10 Father moved for reconsideration of the attorney fees award
and petitioned for district court review of the parental
responsibilities order. In separate orders, the court denied the
3 motion for reconsideration and adopted the parental responsibilities
order.
II. Standard of Review
¶ 11 Our review of a district court’s order adopting a magistrate’s
ruling is effectively a second layer of appellate review. In re Parental
Responsibilities Concerning E.E.L-T., 2024 COA 12, ¶ 15. We accept
the magistrate’s factual findings unless they are clearly erroneous
and review de novo issues of law. Id.
III. Father’s Motions to Continue
¶ 12 Father contends that the district court erred by adopting the
magistrate’s denial of his written and oral motions to continue. We
reject his contentions.
A. Governing Legal Standards
¶ 13 Continuances shall be granted only for good cause. C.R.C.P.
121, § 1-11. The burden is on the moving party to show good
cause. See In re Marriage of Lorenzo, 721 P.2d 155, 156 (Colo. App.
1986).
¶ 14 We may not disturb a court’s ruling on a motion to continue
absent a showing that the court abused its discretion, meaning that
it acted in a manifestly arbitrary, unreasonable, or unfair manner,
4 or it misapplied the law. People in Interest of E.B., 2022 CO 55,
¶ 14.
B. Written Motion to Continue
¶ 15 Father contends that the magistrate erred by denying his
written motion to continue based on his purported failure to confer
with mother’s attorney. We are unpersuaded.
1. Jurisdiction
¶ 16 As an initial matter, mother argues that we lack jurisdiction to
review the magistrate’s ruling because father did not timely appeal
it. See In re Estate of Ybarra, 2024 COA 3, ¶ 9 (“The timely filing of
a notice of appeal is generally a jurisdictional prerequisite for
appellate review.”). We disagree.
¶ 17 A party seeking appellate court review of a magistrate’s ruling
must first file a petition for review to the district court. C.R.M.
7(a)(11). That petition must be filed within twenty-one days of the
date the magistrate’s written order is transmitted to the parties.
C.R.M. 7(a)(4), (5). But the district court may review only a final
order, and a magistrate’s order is not final until it fully resolves the
issue or claim, leaving nothing further for the magistrate to do.
5 C.R.M. (7)(a)(3); see also Mulberry Frontage Metro. Dist. v. Sunstate
Equip. Co., LLC, 2023 COA 66, ¶ 14.
¶ 18 The magistrate’s denial of father’s written motion to continue
did not fully resolve the parties’ disputes and, therefore, was not a
final order. The magistrate’s ruling did not become final until the
magistrate issued the August 3, 2023, order resolving their parental
responsibilities dispute. See C.R.M. 7(a)(3); see also Mulberry
Frontage Metro. Dist., ¶ 14; cf. People in Interest of K.L-P., 148 P.3d
402, 403 (Colo. App. 2006) (concluding that the appellant was
required to raise arguments concerning the magistrate’s denial of a
motion to continue in the petition for review of the magistrate’s final
judgment). Father timely petitioned the district court for review of
that order, and in that petition, he challenged the magistrate’s
denial of his written motion to continue. See Mulberry Frontage
Metro. Dist., ¶ 14 (“Once a court enters a final judgment, the court’s
earlier orders merge into the judgment and generally become
reviewable.”). And this court accepted as timely father’s appeal of
the court’s order adopting the magistrate’s August 2023 ruling. See
In re Marriage of Kowalski, (Colo. App. No. 23CA2073, Feb. 16,
6 2024) (unpublished order). We thus have jurisdiction to review the
magistrate’s ruling on the written motion to continue.
2. Discussion
¶ 19 A party must confer with the opposing party before filing a
motion with the court. C.R.C.P. 121, § 1-15(8). The motion must
also include a certification that the moving party conferred in good
faith with the opposing party and advise the court whether the
motion will be opposed. Id. If there is no conferral, the moving
party must state the reason why, including all efforts made to
confer. Id.
¶ 20 Father argues that mother’s attorney falsely represented that
he failed to confer before filing the written motion to continue and
that the magistrate improperly relied on that misrepresentation to
deny his motion. He highlights that, before he filed the written
motion to continue, he emailed the motion to mother’s attorney.
However, the record reveals that father sent this email only two
minutes before he filed his motion, and, in that email, he merely
notified mother’s attorney that he was filing the motion. The intent
of conferral is to provide the parties with an opportunity “to work
out the difference[s] prompting the motion” and to determine
7 whether the motion will be opposed. C.R.C.P. 121, § 1-15 cmt. 2.
Father’s email did neither. Therefore, we are not persuaded by
father’s claim that mother’s attorney misrepresented his failure to
adhere to the conferral requirements under C.R.C.P. 121, section 1-
15(8).
¶ 21 Father also asserts that when he filed and served mother’s
attorney with his request to file the written motion to continue, as
required by the court-imposed injunction, he made a “de facto
conferral” and a “de facto certification” of conferral. But father
overlooks that following this request, the magistrate directed him to
confer with mother’s attorney before filing the written motion to
continue. That is, the magistrate determined that his request to file
a motion did not satisfy his duty to confer. And beyond father’s
general assertion, he directs us to nothing in the rule or any other
legal authority providing that this “de facto” conferral and
certification complied with C.R.C.P. 121, section 1-15(8) or adhered
to the intent of the rule. See In re Parental Responsibilities
Concerning S.Z.S., 2022 COA 105, ¶ 29 (declining to review an
undeveloped contention).
8 ¶ 22 Father also notes that the magistrate modified her initial
ruling on the written motion to continue when she later found that
father’s motion did not include a certification of conferral. See
C.R.C.P. 121, § 1-15(8). But father’s motion plainly did not include
a statement certifying that he conferred with mother’s attorney, and
nothing prevented the magistrate from clarifying her ruling to deny
the written motion to continue. See People in Interest of J.D., 2020
CO 48, ¶ 10 (“[A] magistrate, just as a judge, retains the ability to
modify . . . any . . . rulings made in the course of judicial
proceedings until those proceedings culminate in a final, reviewable
order or judgment.”).
¶ 23 The district court thus did not err by rejecting father’s
arguments that the magistrate improperly denied his written motion
to continue.
C. Oral Motion to Continue
¶ 24 Father next contends that the magistrate abused her
discretion by denying his oral motion to continue. We disagree.
¶ 25 At the hearing, father argued that the court-imposed
injunction interfered with his ability to prepare for the hearing, and
he orally moved to continue the hearing. The magistrate
9 determined that the court-imposed injunction did not prevent father
from preparing for the hearing, which had been pending for over a
year; the hearing had previously been continued; and the children’s
best interests were not served by further continuing the hearing.
And the magistrate concluded that father did not establish good
cause for a continuance.
¶ 26 Father generally disagrees with the magistrate’s ruling and
argues that he was not the reason for the delays in the case. But as
the magistrate found, it was father, not mother, who previously
sought and obtained the continuances. Moreover, even if, as father
claims, mother contributed to the delay, the record supports the
magistrate’s determinations that further delaying the parental
responsibilities dispute was contrary to the children’s best interests
and that there was not good cause to grant another continuance.
See E.B., ¶ 14. To the extent father also asserts that the magistrate
improperly relied on “non-procedural grounds” to deny his motion
for the first time at the hearing, he does not develop a legal or
factual argument in support of this conclusory assertion. See
S.Z.S., ¶ 29.
10 ¶ 27 The magistrate thus acted within her discretion by denying
father’s oral motion to continue, and the district court did not err
by adopting that ruling.
IV. Purported Exclusion of Evidence
¶ 28 We also reject father’s contention that the magistrate
improperly excluded his evidence by denying the motions to
continue.
¶ 29 We review a court’s exclusion of evidence for an abuse of
discretion. See D.R. Horton, Inc. v. Bischof & Coffman Constr., LLC,
217 P.3d 1262, 1267 (Colo. App. 2009).
¶ 30 Father argues that the magistrate’s refusal to continue the
hearing precluded him from calling his primary expert witness,
Mark Vatsaas. However, the magistrate struck Vatsaas as an
expert witness before the hearing due to father’s failure to provide
the required expert witness disclosures. See C.R.C.P. 26(a)(2)(B)
(discussing the disclosure requirements to call an expert witness).
Father directs us to nothing in the record showing that he provided
the necessary disclosures for Vatsaas, and thus, it was this failure,
not the denial of his motions to continue, that precluded the
admission of Vatsaas’ expert testimony.
11 ¶ 31 Father goes on to argue that the magistrate’s order striking
Vatsaas’ testimony did not specify a timeframe in which he could
provide the necessary witness disclosures and thereby present the
expert testimony. However, the magistrate indicated in the order
issued three weeks before the hearing that father may be able to
present this expert testimony if he provided the necessary
disclosures “in a timely manner.” The magistrate thus indicated
that she was giving father time beyond the previous disclosure
deadline to file the expert disclosures. See C.R.C.P. 16.2(g)(5). And
father directs us to no legal authority that required the magistrate
to do more or that otherwise establishes that the magistrate erred.
See S.Z.S., ¶ 29.
¶ 32 Father also claimed that due to the court’s “injunction,” he
needed a continuance to be able to present Vatsaas’ testimony. The
magistrate rejected this claim, and we discern no error in that
determination. The court-imposed injunction required father to
obtain the court’s approval before filing a motion. It did not place
any additional requirements on his ability to comply with the
required expert disclosures or secure a witness for the hearing. To
the extent father is attempting to challenge the propriety of the
12 injunction, that ruling was affirmed in Kowalski I, and we may not
revisit that decision.
¶ 33 Father further argues that, when the magistrate denied the
oral motion to continue, she improperly found that Vatsaas’
testimony was irrelevant when there was “no basis for drawing such
[a] conclusion.” However, the magistrate was aware of the scope of
Vatsaas’ testimony, given father’s representation before the hearing
that Vatsaas was father’s parenting coach and that he would
discuss the reasons for the tension between J.K. and father under
“the concept of [a]ttachment [t]heory.” Moreover, the magistrate did
not determine that Vatsaas’ testimony was irrelevant; she found
that, under the circumstances, his testimony did not justify further
delaying the proceedings. Such a finding was within the
magistrate’s broad discretion when ruling on the oral motion to
continue. See E.B., ¶ 14.
¶ 34 Father also asserts that by not continuing the hearing, the
magistrate prevented him from presenting evidence on mother’s
financial motives and other relevant evidence. But beyond father’s
general assertion, he does not develop any factual or legal argument
on appeal explaining why he was unable to present this additional
13 evidence at the hearing, particularly when he voluntarily chose to
leave the hearing without presenting any evidence. See S.Z.S., ¶ 29.
¶ 35 We likewise reject father’s conclusory argument that the
magistrate violated his due process rights by excluding his
evidence. Due process requires that a party be provided with a
meaningful opportunity to be heard. In re Marriage of Hatton, 160
P.3d 326, 329 (Colo. App. 2007). Father had the opportunity to
present evidence, but he chose not to by leaving the hearing. He
therefore was not deprived of his due process rights. See In re
Taylor, 134 P.3d 579, 584 (Colo. App. 2006) (holding that a party
who did not appear at a hearing was not deprived of due process).
¶ 36 To the extent father further suggests that the magistrate
violated the “Equal Protection Clause” and “created an unequal and
prejudicial application of the law,” he again develops no legal
argument in support of this suggestion. See S.Z.S., ¶ 29. Nor does
he direct us to where in the record he raised this issue to the
magistrate or the district court. See Melat, Pressman & Higbie,
L.L.P. v. Hannon Law Firm, L.L.C., 2012 CO 61, ¶ 18 (“It is axiomatic
that issues not raised in or decided by a lower court will not be
addressed for the first time on appeal.”); K.L-P., 148 P.3d at 403
14 (concluding that to preserve an issue for appellate review, an
appealing party must assert the contention to the district court in a
petition for review).
¶ 37 Thus, the magistrate did not abuse her discretion.
V. Magistrate’s Comments to J.K.
¶ 38 At the hearing, the magistrate admitted in camera testimony
from J.K. Father contends that, during that testimony, the
magistrate made disparaging comments about him, which
influenced J.K.’s testimony and exhibited the magistrate’s bias
against him.
¶ 39 However, father neither raised this issue to the magistrate nor
asserted it in his petition for review to the district court. See Melat,
Pressman & Higbie, ¶ 18; K.L-P., 148 P.3d at 403; see also Valentine
v. Mountain States Mut. Cas. Co., 252 P.3d 1182, 1188 n.4 (Colo.
App. 2011) (“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.”). Additionally, father does not identify any record
support demonstrating that he sought the magistrate’s recusal due
to her alleged bias against him. See In re Marriage of Zebedee, 778
15 P.2d 694, 699 (Colo. App. 1988) (declining to address allegations of
judicial bias not raised in a motion for recusal). We thus need not
address father’s unpreserved argument.
VI. Modifying Parental Responsibilities Concerning N.K.
¶ 40 Father next contends that the magistrate erred by restricting
his parenting time with N.K. because the magistrate failed to
consider the CFI’s recommendations when reaching her decision.1
We disagree.
¶ 41 The court’s discretion in the area of parenting time is broad,
and we exercise every presumption in favor of upholding its
decision. In re Marriage of Collins, 2023 COA 116M, ¶ 8. We will
not disturb a court’s ruling absent a showing that the court abused
its discretion. Id.
¶ 42 A court may restrict a parent’s parenting time, when it finds
that parenting time endangers the child’s physical health or
significantly impairs the child’s emotional development.
1 Father does not challenge the magistrate’s ruling to continue the
restriction on his parenting time with J.K. Moreover, we note that because J.K. has turned eighteen during the pendency of this appeal, any issues related to the parenting time order regarding J.K. are moot. See In re Marriage of Tibbetts, 2018 COA 117, ¶ 12.
16 § 14-10-129(1)(b)(I), C.R.S. 2024. The court may also modify the
allocation of decision-making responsibility if it finds that retaining
the current decision-making allocation endangers the child.
§ 14-10-131(2)(c), C.R.S. 2024.
¶ 43 In the CFI’s February 2022 report, she opined that father’s
verbal abuse endangered J.K.’s mental health and recommended
restricting his parenting time with J.K. The CFI also said that she
suspected N.K. was subjected to father’s verbal abuse. However,
the CFI reported that there was not enough evidence to confirm that
suspicion and, therefore, did not recommend modifying parenting
time or decision-making responsibility related to N.K.
¶ 44 Father complains that the magistrate did not consider and
follow the CFI’s recommendations regarding N.K. Because father
chose not to participate in the hearing, however, he did not argue to
the magistrate that she should adopt the CFI’s recommendations.
Moreover, the magistrate was under no obligation to follow the CFI’s
year-and-a-half old recommendation. See In re Parental
Responsibilities Concerning B.J., 242 P.3d 1128, 1133 (Colo. 2010).
¶ 45 In addition, while the CFI lacked evidence to confirm her
suspicion that N.K. was subject to father’s verbal abuse, the
17 evidence at the hearing provided the magistrate with ample
evidence to corroborate that suspicion. Mother testified that
father’s parenting time with N.K. had “gotten worse” since the
magistrate restricted his parenting time with J.K. She also said
that father’s recent irrational behavior placed N.K. “in imminent
danger” and that she was concerned about N.K.’s safety with father.
In addition, J.K. testified that they knew “the pain and suffering”
N.K. was experiencing, that father was “terrible for [N.K.’s] mental
health,” and that they could see “a lot of parallels” between the
emotional abuse toward them and N.K. (J.K.’s pronouns are
they/them.)
¶ 46 The magistrate found J.K. credible and determined that
father’s angry rants and verbal abuse endangered N.K. See In re
Marriage of Thorburn, 2022 COA 80, ¶ 49 (recognizing that
credibility determinations and the weight, probative force, and
sufficiency of the evidence, as well as the inferences and
conclusions to be drawn, are matters within the district court’s sole
discretion).
¶ 47 In sum, given the record support for the magistrate’s parental
responsibilities decision and the absence of any showing that the
18 decision was an abuse of the magistrate’s discretion, there was no
basis to disturb it. See Collins, ¶ 8. The district court therefore did
not err by adopting the magistrate’s ruling modifying father’s
parental responsibilities concerning N.K.
VII. Attorney Fees Award
¶ 48 Father contends that the attorney fees award must be reversed
because the magistrate abused her discretion by not making the
required findings in support of awarding attorney fees against a pro
se party. See Collins, ¶ 51 (reviewing attorney fees order for an
abuse of discretion). We agree.
A. Jurisdiction
¶ 49 Before reviewing the attorney fees award, we must address
mother’s claim that father did not timely appeal the magistrate’s
order. See Ybarra, ¶ 9.
¶ 50 In the August 2023 order, the magistrate ordered father to pay
mother’s attorney fees due to his vexatious filings and directed
mother’s attorney to file an affidavit of fees. After the magistrate
granted mother’s attorney’s request for $3,800 in attorney fees and
$120 in costs, father moved for reconsideration, raising the same
issue asserted on appeal. The district court denied that request on
19 October 9, 2023, and the next day resolved father’s petition for
review of the parental responsibilities order. Father then filed his
notice of appeal on December 4, 2023.
¶ 51 Mother argues that father’s appeal was not timely because the
deadline to appeal the October 9, 2023, order was November 27,
2023. See C.A.R. 4(a)(1) (requiring the filing of an appeal within
forty-nine days of the entry of the final order). However, the order
on attorney fees was not a final, appealable order until the court
fully resolved the post-decree litigation concerning the modification
of parental responsibilities. See Camelot Invs., LLC v. LANDesign,
LLC, 973 P.2d 1279, 1280 (Colo. App. 1999) (“Generally, an order
that resolves less than all the issues in an action is not a final
judgment for purposes of appeal.”); State Farm Fire & Cas. Co. v.
Bellino, 976 P.2d 342, 343-44 (Colo. App. 1998) (dismissing an
appeal of an award of attorney fees before the entry of a final
judgment on the merits). That did not occur until the district court
entered its October 10, 2023, order. See Mulberry Frontage Metro.
Dist., ¶ 16 (For postjudgment orders, “we consider whether the
order ends ‘the particular part of the action in which it is entered,’
leaving ‘nothing further for the court pronouncing it to do in order
20 to completely determine the rights of the parties as to that part of
the proceeding.’” (quoting AA Wholesale Storage, LLC v. Swinyard,
2021 COA 46, ¶ 13)). Father’s appeal of that order was accepted as
timely. See Kowalski, (Colo. App. No. 23CA2073, Feb. 16, 2024)
(unpublished order). And the court’s October 9, 2023, order on
attorney fees merged into that final order for purposes of appeal.
See Mulberry Frontage Metro. Dist., ¶¶ 14, 18.2
¶ 52 Therefore, we may review the award of attorney fees.
B. Discussion
¶ 53 A court may assess reasonable attorney fees against a party
when it finds that the party brought an action that lacked
substantial justification. § 13-17-102(4), C.R.S. 2024. But when a
party is not represented by an attorney, the court must also find
that “the party clearly knew or reasonably should have known” that
the action “was substantially frivolous, substantially groundless, or
substantially vexatious” before it may assess attorney fees against
2 We note that the attorney fee order was final for purposes of
review by the district court because that order resolved “an issue or claim.” C.R.M. 7(a)(3); see People v. Maes, 2024 CO 15, ¶ 13. However, nothing in the Maes decision alters the determination of finality of the district court’s order for purposes of our appellate review.
21 that pro se party. § 13-17-102(6). Absent this finding, an order
“awarding attorney fees cannot stand.” Artes-Roy v. Lyman, 833
P.2d 62, 63 (Colo. App. 1992).
¶ 54 The magistrate found that father had made “continued
vexatious filings.” But the magistrate made no finding that father,
who was appearing pro se, clearly knew or reasonably should have
known that his conduct was substantially vexatious or that it was
substantially frivolous or substantially groundless. See § 13-17-
102(6). Nor did the magistrate make any other findings explaining
the basis of the attorney fees award. See § 13-17-103(1), C.R.S.
2024. The district court had an opportunity to address this error,
but failed to do so. Rather, the district court concluded that “[t]here
was no legal basis for [father’s] motion for reconsideration” even
though father had explained that his motion was mistitled and was,
in fact, a petition for review of the magistrate’s ruling under C.R.M.
7(a).
¶ 55 We therefore reverse the order awarding mother $3,920 for her
attorney fees and costs. See Artes-Roy, 833 P.2d at 63.
22 VIII. Disposition
¶ 56 We reverse the portion of the district court’s order adopting
the magistrate’s award of attorney fees and costs to mother and
remand for the court to vacate that award. The order is otherwise
affirmed.
JUDGE PAWAR and JUDGE SCHUTZ concur.