Marriage of Lomakine

• Court: Colorado Court of Appeals
• Decided: January 30, 2025
• Docket: 24CA0256
• Status: Unpublished

Opinion

24CA0256 Marriage of Lomakine 01-30-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0256 Arapahoe County District Court No. 16DR30291 Honorable Kimberly Karn, Judge

In re the Marriage of

Ludmila Vladimirovna Kamaeff,

Appellee,

and

Evgueni Lomakine,

Appellant.

ORDER AFFIRMED

Division I Opinion by JUDGE BROWN J. Jones and Yun, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced January 30, 2025

The Law Office of John Bellinger, LLC, John Bellinger, Denver, Colorado, for Appellee

MDS Legal Consultants, LLC, Melissa Drazen-Smith, Denver, Colorado, for Appellant ¶1 In this post-dissolution of marriage case, Evgueni Lomakine

appeals the district court’s entry of a permanent protection order

restraining his contact with his ex-wife, Ludmila Vladimirovna

Kamaeff. We affirm.

I. Background

¶2 In 2016, Lomakine and Kamaeff dissolved their marriage. On

October 12, 2022, Kamaeff sought a civil protection order against

Lomakine, alleging threats and acts of domestic violence, stalking,

sexual assault, unlawful sexual contact, and physical assault. That

same day, the district court entered a temporary protection order

(TPO).

¶3 On October 25, the court held a hearing to decide whether to

make the TPO permanent. During the hearing, Lomakine’s counsel

advised the court that the parties had stipulated to amend certain

provisions of the TPO and to extend it for one year, “[a]nd that if

there are no violations, [the amended TPO] would be dismissed as of

October 24, 2023.” The court accepted the parties’ agreement to

modify and extend the TPO for a year, entered an amended TPO,

and scheduled the next hearing date for October 23, 2023. The

1 court advised that “if the parties do not appear, [the amended TPO]

will just automatically expire.”

¶4 The amended TPO required Lomakine to remain at least 100

yards away from Kamaeff, her home, her workplace, and her

condominium in Florida. It also required Lomakine to surrender all

of his firearms and prohibited him from, among other things,

contacting, harassing, stalking, intimidating, or threatening

Kamaeff.

¶5 On October 19, 2023, Kamaeff’s counsel filed and served an

exhibit list, disclosing nearly thirty anticipated exhibits for use at

the permanent protection order (PPO) hearing scheduled for four

days later. On the morning of the October 23 hearing, the court

called the case “for the permanent restraining order hearing.” Both

parties and their counsel appeared.

¶6 Lomakine’s counsel began by requesting clarification on

whether the amended TPO would be automatically dismissed,

noting that the minute order entered after the TPO hearing

indicated that the amended TPO would be dismissed if no violations

occurred. Lomakine’s counsel acknowledged that there were

“statutory standards” the court must apply and expressed

2 uncertainty about “how to approach [the parties’ agreement

reflected in the minute order] given the statute.” In response,

Kamaeff’s counsel informed the court that “there have been new

violations that we intend to present evidence on, so we’ll be

presenting as to her complaint and the new violations.” Lomakine’s

counsel did not object. The court continued the hearing to the

afternoon to accommodate a Russian interpreter and instructed

counsel, “If you need to bring that up again this afternoon, please

do so.”

¶7 When the court called the case again later that day, both

parties’ attorneys affirmatively said that they were ready to proceed.

Again, Lomakine’s counsel did not object to proceeding with the

hearing on Kamaeff’s complaint for a civil protection order or on the

alleged violation of the amended TPO.

¶8 Kamaeff testified that Lomakine had physically, sexually, and

verbally abused her and that the abuse continued until the TPO

was issued. She also testified that after the amended TPO was put

in place, Lomakine used his business to buy a condominium unit

located less than 100 yards away from her Florida condo, and she

was unsure if he had surrendered his firearms, all of which made

3 her afraid. Kamaeff presented several exhibits, including audio

recordings of Lomakine making threats against her or her daughter,

as well as photographs of guns that he had kept in the house.

¶9 Lomakine testified and denied abusing Kamaeff in any way.

He acknowledged buying the Florida condo but claimed he had

never actually been there. He explained that he bought the unit

because he had nowhere to live after Kamaeff “stole all his

properties,” the unit was near a small Russian community, and

living in Florida would accommodate his physical disability.

¶ 10 After considering the evidence, the court determined that

(1) Lomakine had committed acts “constituting grounds for the

issuance of the civil protection order,” and (2) “unless he is

restrained on a permanent basis, he will continue to commit such

act or acts, [or] other acts designed to retaliate or intimidate against

Ms. Kamaeff.” The court entered a PPO.

II. Procedural Due Process

¶ 11 Lomakine contends that the district court violated his

procedural due process rights by failing to (1) ensure he had

adequate notice of the October 23 PPO hearing and (2) make a

threshold finding that the amended TPO had been violated before

4 making it permanent. Because these issues were not preserved, we

will not address them on their merits.

A. Generally Applicable Law

¶ 12 If an argument was “never presented to, considered by, or

ruled upon by a district court,” it “may not be raised for the first

time on appeal.” Gebert v. Sears, Roebuck & Co., 2023 COA 107,

¶ 25. To preserve an issue for appeal in a civil case, “the party

asserting the argument must present ‘the sum and substance of the

argument’ to the district court.” Id. (quoting Madalena v. Zurich Am.

Ins. Co., 2023 COA 32, ¶ 50). Talismanic language is not required

to preserve an issue, but the court must be alerted to it and have

the opportunity to rule on it. See In re Estate of Owens, 2017 COA

53, ¶ 21.

B. Analysis

¶ 13 Lomakine contends that the district court failed to ensure his

procedural due process rights were protected. He claims that he

was not provided adequate notice that the PPO hearing would

address a violation of the amended TPO or the entry of a PPO

because the parties had stipulated that the amended TPO would be

5 dismissed automatically absent a violation. We conclude that

Lomakine failed to preserve these issues. See Gebert, ¶¶ 25-26.

¶ 14 As an initial matter, we note that Lomakine’s opening brief

fails to comply with C.A.R. 28(a)(7) because it does not identify “the

precise location in the record where the issue was raised and where

the court ruled.” We expect counsel to read, be familiar with, and

comply with the Colorado Appellate Rules. Patterson Recall Comm.,

Inc. v. Patterson, 209 P.3d 1210, 1220 (Colo. App. 2009). And we

may impose sanctions for the failure to comply with the rules,

including refusing to consider certain arguments or dismissing an

appeal. See C.A.R. 38(a); Bruce v. City of Colorado Springs, 252

P.3d 30, 32 (Colo. App. 2010) (“Ordinarily, we would summarily

strike plaintiff’s briefs and dismiss the appeal” for failure “to meet

the basic requirements of C.A.R. 28.”); O’Quinn v. Baca, 250 P.3d

629, 631 (Colo. App. 2010) (declining to address an issue because

the parties failed to direct the court to a place in the record where

the issue was raised and ruled on); Castillo v. Koppes-Conway, 148

P.3d 289, 291-92 (Colo. App. 2006) (refusing to consider the

arguments on appeal because the opening brief violated C.A.R. 28).

6 ¶ 15 Even so, our review of the record reveals that Lomakine’s

counsel did not raise, nor did the district court rule on, Lomakine’s

claims that he received inadequate notice or that the court was

required to make a threshold finding that he violated the amended

TPO. While Lomakine’s counsel expressed confusion at the start of

the PPO hearing about how the parties and the court would

proceed, he did not object when Kamaeff’s counsel explained that

she intended to present evidence of a violation of the amended TPO

and to request a PPO. Nor did he raise these arguments when the

hearing reconvened, despite being invited to do so by the court. Nor

did he object to Kamaeff’s testimony about Lomakine’s past conduct

in relation to her request to make the amended TPO permanent.

¶ 16 Indeed, the first time Lomakine raised either of these

arguments was in a C.R.C.P. 59 motion, which did not preserve

them for appellate review. See Fid. Nat’l Title Co. v. First Am. Title

Ins. Co., 2013 COA 80, ¶ 51 (arguments raised for the first time in a

post-trial motion are not preserved for appellate review).

Accordingly, we will not consider these claims of error. See id.;

Gebert, ¶ 25.

7 III. Criteria for the PPO

¶ 17 Lomakine contends that Kamaeff presented insufficient

evidence to establish that he violated the amended TPO. His

argument assumes that the district court needed to make a

threshold finding that he violated the amended TPO before it could

enter the PPO. As noted, Lomakine did not preserve this

contention. But to reach his sufficiency challenge, which need not

be preserved, see People in Interest of D.B., 2017 COA 139, ¶ 30

(“[A] party is not required to object to the trial court’s findings in the

trial court to preserve a challenge to those findings.”), we must first

determine whether the correct legal standard requires the court to

make that finding. If the court was not obligated to find that

Lomakine violated the amended TPO to issue the PPO, then it does

not matter whether sufficient evidence supported that finding.

Because we conclude that the court was required to and did

correctly apply the statutory criteria for entering a PPO, which does

not require a finding that Lomakine violated the amended TPO,

Lomakine’s sufficiency challenge necessarily fails.

8 A. Applicable Law and Standard of Review

¶ 18 Section 13-14-104.5, C.R.S. 2024, authorizes a court to issue

a temporary or permanent civil protection order to prevent, as

relevant here, assaults and threatened bodily harm, domestic

abuse, sexual violence, and stalking. § 13-14-104.5(1)(a)(I)-(II),

(IV)-(V). If “after hearing the evidence” the court is “fully satisfied

that sufficient cause exists,” it may issue a TPO and command the

respondent to appear “to show cause, if any, why the temporary

civil protection order should not be made permanent.”

§ 13-14-104.5(8)(a).

¶ 19 At the PPO hearing, 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. 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 the issuance of a civil protection order,”

and (2) unless restrained, “will continue to commit the 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

9 are those set forth in section 13-14-104.5(1)(a), listed above. See

Martin v. Arapahoe Cnty. Ct., 2016 COA 154, ¶ 20.

¶ 20 Whether a trial court applied the correct legal standard is a

question of law that we review de novo. See People in Interest of

I.J.O., 2019 COA 151, ¶ 6. We also review de novo issues of

statutory interpretation. See Mendoza v. Pioneer Gen. Ins. Co., 2014

COA 29, ¶ 9. But we defer to the trial court’s weighing of the

evidence and will not disturb its findings of fact if they have record

support. See In re Marriage of Smith, 2024 COA 95, ¶ 50.

¶ 21 Lomakine contends that the district court had to make a

threshold finding that he violated the amended TPO because the

parties stipulated to that requirement at the October 25, 2022,

hearing, and the court adopted the parties’ stipulation. We are not

persuaded.

¶ 22 We acknowledge that during the TPO hearing, Lomakine’s

counsel represented that the parties had agreed “that if there are no

violations, [the amended TPO] would be dismissed.” The minute

order from that hearing also reflects the parties’ agreement to that

term, among others, and provides that the “court approves

10 extending the TPO for one year under the conditions stated above.”

But the transcript from the TPO hearing reflects that the court did

not adopt that term as a prerequisite to entering a PPO. Based on

the court’s comments, the only circumstance under which the

amended TPO would “automatically expire” was if “the parties do

not appear” at the next hearing. Both parties and their counsel

appeared at that hearing.

¶ 23 More importantly, the amended TPO itself contains no such

condition. To the extent the court’s comments at the TPO hearing

and the minute order entered after that hearing could be

understood as reflecting the court’s adoption of the condition, they

would conflict with the written order, and the written order

controls. See Reed v. Indus. Claim Appeals Off., 13 P.3d 810, 813

(Colo. App. 2000) (“[I]f there is a conflict between oral and written

findings, it is the written order that controls.”); In re Marriage of

West, 94 P.3d 1248, 1250 (Colo. App. 2004) (the trial court’s oral

remarks or findings are not final and may be modified until reduced

into writing, dated, and signed); see also C.R.C.P. 58.

¶ 24 Instead, the court had to apply section 13-14-106(1)(a), which

authorizes the court to issue a PPO if it finds by a preponderance of

11 the evidence that the person to be restrained (1) “has committed

acts constituting grounds for the issuance of a civil protection

order,” and (2) unless restrained, “will continue to commit the acts

or acts designed to intimidate or retaliate against the protected

person.” See In re Marriage of Wollert, 2020 CO 47, ¶ 20 (“If the

language of a statute is clear, we apply it as written without

resorting to other tools of statutory construction.”). Under the

statute, these two elements were all the district court had to find to

enter the PPO.1 The court found that Lomakine had committed acts

constituting grounds to issue a PPO and that he would continue to

retaliate or intimidate Kamaeff unless restrained. Lomakine does

not challenge these findings, which are supported by the record.

¶ 25 Kamaeff testified that Lomakine “always” forced her to have

sex, explaining that their sexual relationship became

nonconsensual as early as 2010. She recounted an incident in

2019, years after they were divorced, during which Lomakine

1 To the extent Lomakine argues that the district court had to make

findings required by statutes criminalizing a violation of the amended TPO, we reject that argument because this case was not a criminal prosecution for violation of a TPO but a civil hearing on whether to make the amended TPO permanent, which was governed by section 13-14-106(1)(a), C.R.S. 2024.

12 grabbed her by the hair and pressured her to perform oral sex.

Kamaeff testified that Lomakine would threaten her, telling her

“[t]he last bullet will be yours” every time he was drunk, and she

presented audio recordings supporting that testimony. Kamaeff

also testified that Lomakine would hit her in places on her body

that had been injured in a 2015 car accident. At the conclusion of

the evidence, the court determined that Kamaeff “described a long

history of domestic violence perpetrated by Mr. Lomakine,” which

was supported by credible evidence, and that “Ms. Kamaeff is in

danger from Mr. Lomakine.”

¶ 26 The court further determined that Lomakine “purchasing [the]

condo is an act of intimidation and further threats and that without

this protection order being made permanent, Ms. Kamaeff is in

danger from Mr. Lomakine.” In addition, although Lomakine

testified at the PPO hearing that he had complied with the TPO

requirement that he relinquish all of his firearms, he effectively

admitted that he did not comply when he filed an affidavit of

relinquishment the day after the PPO hearing, which reflected that

a licensed firearm dealer received Lomakine’s firearms that same

day.

13 ¶ 27 Because the district court made the findings required by

section 13-14-106(1)(a), and those findings have record support, we

will not disturb them or the court’s conclusion based on them. See

Smith, ¶ 50. We perceive no error in the district court’s entry of the

PPO. See I.J.O., ¶ 6; Mendoza, ¶ 9.

IV. Disposition

¶ 28 The permanent civil protection order is affirmed.

JUDGE J. JONES and JUDGE YUN concur.