25CA0400 Marriage of Macaluso 10-30-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 25CA0400 City and County of Denver District Court No. 19DR3504 Honorable Marie Avery Moses, Judge
In re the Marriage of
William Roy Macaluso III,
Appellant,
and
Mika Nicole Gilbert,
Appellee.
ORDER AFFIRMED
Division I Opinion by JUDGE GROVE J. Jones and Schutz, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced October 30, 2025
The Law Office of C. Robert Biondino Jr., P.C., C. Robert Biondino Jr., Highlands Ranch, Colorado, for Appellant
No Appearance for Appellee ¶1 In this post-decree proceeding, William Roy Macaluso, III
(father), appeals the district court’s order adopting magistrate
orders that denied his motion to modify parenting time and
decision-making responsibilities for T.M.G. (the child) and
addressed, without resolving, father’s motion to change the child’s
last name. We affirm.
I. Background
¶2 Father and Mika Nicole Gilbert (mother) have one child and
never married. Months before the child’s birth, father was charged
with domestic violence against mother. After the child’s birth, the
child resided with mother, and father was not involved in mother’s
decision-making. When the child was three years old, father
petitioned the court for an allocation of parental responsibilities.
Father also alleged that the child was unsafe with mother and
moved the court to order the police to remove the child from
mother’s home. The next day, mother requested a civil protection
order against father.
¶3 At a temporary orders hearing, the court denied father’s
motion and issued a temporary protection order against father. The
court appointed a child and family investigator (CFI), who later filed
1 a status report. The court ordered that the decision-making orders
previously entered would remain in place, leaving mother with sole
decision-making responsibility.
¶4 Later, Father filed his first motion to modify decision-making
responsibilities. The court reappointed the CFI and ordered an
updated report. Father then filed a motion for contempt, and
mother filed a motion to restrict father’s parenting time. The court
denied these motions.
¶5 At permanent orders, the court again awarded mother sole
decision-making responsibility. Father filed a second motion for
contempt and a motion to reconsider the ruling granting mother
sole decision-making. The court granted father’s second motion for
contempt insofar as it requested that mother provide him with the
names of the child’s medical providers and the child’s social
security number, and that he be added to the child’s birth
certificate. The court denied father’s motion to reconsider its
previous ruling on the allocation of decision-making responsibility.
¶6 As relevant here, father then filed his second motion to modify
decision-making responsibilities. The district court ordered the
parties into mediation. After mediation ended unsuccessfully,
2 father moved to appoint another CFI, which the court granted. The
newly appointed CFI filed a report.
¶7 A magistrate then held a hearing on father’s second motion to
modify decision-making responsibilities. The magistrate denied
father’s motion. Father petitioned the district court for review of the
magistrate’s order, which the district court denied.
II. Modification of Decision-Making
¶8 Father contends that the magistrate did not properly apply
sections 14-10-131(2) and 14-10-123.4, C.R.S. 2025, and
erroneously concluded that retaining mother’s sole decision-making
responsibility was in the child’s best interest. We are not
convinced.
A. Standard of Review
¶9 When, as here, we review a district court’s order reviewing a
magistrate’s order, we must accept the magistrate’s factual findings
unless they are clearly erroneous. See In re Parental
Responsibilities Concerning G.E.R., 264 P.3d 637, 639 (Colo. App.
2011); see also C.R.M. 7(a)(9) (a magistrate’s findings of fact may
not be altered unless clearly erroneous). Our review of the district
court’s decision is effectively a second layer of appellate review; we
3 apply the same clearly erroneous standard to the magistrate’s
findings as does a district court. G.E.R., 264 P.3d at 638-39.
Factual findings are not clearly erroneous unless there is no
support for them in the record. Van Gundy v. Van Gundy, 2012
COA 194, ¶ 12.
¶ 10 We review questions of law de novo, including whether the
court applied the proper legal standard. See In re Marriage of
Young, 2021 COA 96, ¶ 9.
B. Our Record Review is Limited
¶ 11 Father did not provide the reviewing district court with a
transcript of the magistrate’s modification hearing or ruling — nor
does he acknowledge his failure to do so in his appellate briefing.
In the absence of a transcript, the district court presumed that the
magistrate’s factual findings regarding modification of decision-
making were supported by evidence presented at the hearing. See
C.R.M. 7(a)(9) (a reviewing court presumes that the magistrate’s
ruling is supported by the evidence when no transcript of the
proceedings is provided); see also In re Marriage of Dean, 2017 COA
51, ¶ 15 (without reviewing the transcripts, we are unable to
evaluate the evidence to determine whether it sufficiently supports
4 the magistrate’s orders); In re Marriage of Rivera, 91 P.3d 464, 466
(Colo. App. 2004) (a party seeking review has burden of providing a
record justifying the rejection or modification of that order, and
absent such a record, the district court may presume the regularity
of the magistrate’s proceedings).
¶ 12 A transcript of the modification hearing was made part of the
record on appeal to this court. However, we may not consider it
because our review of the district court’s order is limited to the
record that was before the district court. See Dean, ¶ 14; see also
Rivera, 91 P.3d at 466. Accordingly, we consider only father’s legal
argument.
C. Relevant Law
¶ 13 The court must allocate decision-making responsibilities in
accordance with the best interests of the child. §§ 14-10-
123.4(1)(a), 14-10-124(1.5), C.R.S. 2025. Furthermore, pursuant to
section 14-10-131(2), the trial court
shall not modify a custody decree or a decree allocating decision-making responsibility unless it finds, upon the basis of facts that have arisen since the prior decree or that were unknown to the court at the time of the prior decree, that a change has occurred in the circumstances of the child or the child’s
5 custodian or party to whom decision-making responsibility was allocated and that the modification is necessary to serve the best interests of the child.
And the court must retain the prior decree’s allocation of joint
decision-making unless
• the parties agree to the modification;
• the child has been integrated into the family of the
petitioner with the consent of the other party;
• there has been a modification of parenting time that
warrants a change in decision-making responsibilities;
• one parent has consistently consented to the other
parent making individual decisions; or
• “[t]he retention of the allocation of decision-making
responsibility would endanger the child’s health or
significantly impairs the child’s emotional development
and the harm likely to be caused by a change of
environment is outweighed by the advantage of a change
to the child.”
§ 14-10-131(2)(a)-(c).
6 ¶ 14 “What constitutes endangerment is a highly individualized
determination, and we won’t disturb the trial court’s findings on the
issue if they are supported by the record.” In re Marriage of
Wenciker, 2022 COA 74, ¶ 26 (citations omitted).
D. Analysis
¶ 15 The magistrate applied the correct legal standards.
¶ 16 As an initial matter, as required by sections 14-10-124(1.5)(b)
and 14-10-124(4)(a)(II)(A), the magistrate considered father’s
domestic violence case before finding that joint decision-making
was impossible because mother still feared father. The record
indicates that father’s domestic violence charges were dismissed by
the prosecution in 2016, a month before the child’s birth.
Nevertheless, even if father had been convicted, findings of domestic
violence are not dispositive factors in determining parental
responsibilities. See Pawelec, ¶ 61 (holding that a finding of
domestic violence is not a dispositive factor in determining
parenting time).
¶ 17 Applying the factors from section 14-10-131(2)(a)-(c), the
magistrate found that the parties had exercised equal parenting
time for several years and did not agree to change decision-making
7 responsibility. Finally, the magistrate considered father’s
arguments regarding mother’s potential endangerment of the child
by (1) not providing the contact information for the child’s doctors
and (2) not changing the child’s school. The magistrate, crediting
the CFI’s report as “thorough and well-reasoned,” adopted its
recommendations: that mother’s decisions were not endangering
the child, and that decision-making responsibility should remain
with mother.
¶ 18 In the absence of a transcript of the modification hearing or
the magistrate’s ruling, the reviewing district court properly
presumed that the magistrate’s findings were supported by the
record. And the district court noted, correctly, that the magistrate
relied largely on the CFI’s recommendations, which also appear in
her report.
¶ 19 The court thus applied the proper legal framework for a
modification of decision-making responsibility. And given that the
court, in the absence of a transcript, properly presumed record
support for the magistrate’s factual findings, we perceive no abuse
of discretion.
8 ¶ 20 We acknowledge that father also asserts that mother failed to
provide for the child’s best interests because, he alleges, (1) the
child slept in mother’s living room on an air mattress; (2) mother
failed to get the child to school on time; (3) mother did not provide
the child with afterschool activities or tutoring; and (4) the child
had concerning hygiene. The record — even in the absence of a
hearing transcript — indicates that the court relied on contrary
record evidence.
¶ 21 In adopting the CFI’s determinations1 regarding the child’s
best interest, the court considered that
• the child sleeps in a bedroom;
• the child is frequently a few minutes late to class, but
that the child’s teacher had “no concerns”;
1 The magistrate expressly relied on the CFI’s report, which was
filed with the court and is included in the record on appeal. A CFI’s report is automatically accepted into evidence without further foundation, unless a party notes an objection in the trial management certificate. C.R.C.P. 16.2(g)(2)(C); see also 14-10- 116.5, C.R.S. 2025 (authorizing the appointment of a CFI and the CFI’s preparation and filing of a report and providing that the “court shall consider the entirety of the report, as well as any testimony by the child and family investigator, the parties, and any other professionals, before adopting any recommendations made by the child and family investigator”).
9 • mother cannot afford extra activities for the child, and
father had arranged for afterschool activities and a tutor;
• the child “demonstrates good hygiene
¶ 22 Based on this record evidence, and assuming — as we must —
that the transcript would have provided similar support, we
perceive no error in the magistrate’s determination that the child’s
best interests were not served by a modification of decision-making
responsibility.
III. Child’s Name Change
¶ 23 Father next argues that the magistrate erred by denying his
request to change the child’s name. We conclude that we lack
jurisdiction to resolve this issue. In the alternative, we conclude
that it is inadequately presented for appellate review.
¶ 24 We review a district court order regarding a requested name
change for a minor child for an abuse of discretion. In re Marriage
of Nguyen, 684 P.2d 258, 260 (Colo. App. 1983). “A court abuses
its discretion when its decision is manifestly arbitrary,
unreasonable, or unfair, or when it misconstrues or misapplies the
law.” In re Marriage of Fabos, 2022 COA 66, ¶ 16.
10 ¶ 25 When considering a request for a name change, “the court
must take into consideration the best interests of the minor child.”
Hamman v. Cnty. Ct., 753 P.2d 743, 749 (Colo. 1988). Factors
influencing the court’s decision include “the length of time the child
has used the surname, the potential impact of the requested name
change on the child’s relationship with each parent, the child’s
preference, and any misconduct by a parent which would justify a
name change.” D.K.W. v. J.L.B., 807 P.2d 1222, 1224 (Colo. App.
1990). The court should also look to “the motivation of the parties,
the identification of the child as part of a family unit,” and any
negative consequences for the child that may result if the child’s
surname differs from that of the custodial parent. Id. Whether the
requested name change is in the best interests of the child is
ultimately a factual determination for the district court. Hamman,
753 P.2d at 750.
¶ 26 Here, instead of filing a separate petition or motion for a name
change, as required by section 13-15-101(1)(a.5), C.R.S. 2025,
father included the following in his trial management certificate:
“[t]he minor child’s name shall be changed to be hyphenated and
include both of her parents’ last names.” The magistrate
11 interpreted this statement as father’s request to change the child’s
name. However, the magistrate also pointed out that father had not
complied with the procedures from section 13-15-101(1)(a.5), and
found that father’s request was thus improperly pleaded. The
magistrate therefore dismissed his request without prejudice.
¶ 27 In its order adopting the magistrate’s order, the district court
declined to address the name change request because “there is no
final order from the Magistrate resolving the issue,” and because
father did not provide a transcript of the relevant hearing.
¶ 28 We recognize, as the magistrate did, that a division of this
court has held that a district court has the power, founded in
common law, to order a name change of a minor child of the parties
in a dissolution of marriage action without complying with statutory
procedures for a name change. Nguyen, 684 P.2d at 260 (“The
[statutory] procedure for change of name . . . is in addition to, not in
exclusion of, the common law method for change of name.”). Even
assuming that we would agree with Nguyen, however, we are unable
to address this issue because an order dismissing a request without
prejudice is not a final order subject to appeal unless “the
circumstances of the case indicate that the action cannot be saved
12 and that the district court’s order precludes further proceedings.”
Avicanna Inc. v. Mewhinney, 2019 COA 129, ¶ 1 n.1. Here, the
court’s order did not preclude father from continuing to seek a
name change for the child. Therefore, the order was not final and
appealable.
¶ 29 Even if the order in question was final, however, we would
reject father’s appellate argument because it is inadequately
developed for appellate review. Father’s opening brief devotes a
total of three sentences, along with one case citation, to the name
change issue. It does not address the magistrate’s reason for
denying the request — inadequate pleading — nor does it
acknowledge the district court’s conclusion that the magistrate’s
order was not final and appealable or the court’s observation that
the lack of a hearing transcript hindered its ability to consider
father’s argument on the merits. Accordingly, because father’s
contention is unsupported by any substantial argument, we would
decline to address it further even if it were properly before us. See
People v. Wallin, 167 P.3d 183, 187 (Colo. App. 2007) (declining to
address arguments presented in a perfunctory or conclusory
manner); see also United States v. Dunkel, 927 F.2d 955, 956 (7th
13 Cir. 1991) (“A skeletal ‘argument,’ really nothing more than an
assertion, does not preserve a claim.”); Topco, Inc. v. State, Dep’t of
Highways, 275 Mont. 352, 912 P.2d 805, 812 (1996) (“It is not the
function of this Court on appeal to advocate a party’s position, to
develop arguments or to locate and cite supporting or opposing
authority.”).
IV. Bias
¶ 30 Lastly, we reject father’s argument — made for the first time
on appeal — that mother’s “theatrics” during the hearing biased the
magistrate against him and his counsel and violated the Colorado
Code of Judicial Conduct.
A. Applicable Law, Preservation, and Standard of Review
¶ 31 “Basic to our system of justice is the principle that a judge
must be free of all taint of bias and partiality.” People v. Jennings,
2021 COA 112, ¶ 18. A judge may be disqualified from presiding
over a matter based on (1) an appearance of impropriety or
(2) actual bias. People in Interest of A.P., 2022 CO 24, ¶ 26.
¶ 32 The Colorado Code of Judicial Conduct requires a judge to
recuse himself from a case based on the appearance of impropriety
when “the judge’s impartiality might reasonably be questioned.”
14 C.J.C. 2.11(A); see also People in Interest of A.G., 262 P.3d 646, 650
(Colo. 2011) (even if a judge may be able to act impartially, “the
judge is disqualified nonetheless because a reasonable observer
might have doubts about the judge's impartiality”). “The purpose
behind disqualifying a judge who has the appearance of partiality is
to protect public confidence in the judiciary.” Jennings, ¶ 19.
¶ 33 “Actual bias, on the other hand, exists when, in all probability,
a judge will be unable to deal fairly with a party.” A.P., ¶ 28. A
claim of actual bias focuses on the “subjective motivations of the
judge,” Jennings, ¶ 20, and requires a showing that a judge “has a
personal bias or prejudice concerning a party or a party’s lawyer,”
C.J.C. 2.11(A)(1). Unlike provisions prohibiting a judge from
presiding over a case involving an appearance of impropriety, the
purpose behind disqualifying a judge for actual bias is to ensure
that the parties to a case receive a fair and impartial trial. A.P., ¶
28; A.G., 262 P.3d at 651. “Only when a judge was actually biased
will we question the reliability of the proceeding’s result.” A.P., ¶
29.
¶ 34 To establish a claim for actual bias, a party must show that a
judge had a “substantial bent of mind against him or her,” People v.
15 Drake, 748 P.2d 1237, 1249 (Colo. 1988), or a “deep-seated
favoritism . . . that would make fair judgment impossible,” A.P., ¶
31 (quoting Liteky v. United States, 510 U.S. 540, 555 (1994)). The
record must clearly demonstrate the judge’s actual bias. Jennings,
¶ 28. “Bare assertions and speculative statements are insufficient
to satisfy the burden of proof.” A.P., ¶ 30. Indeed, disqualification
for an actual bias is exceedingly rare. See, e.g., Jennings, ¶ 30 (no
actual bias when the judge told the defendant’s attorney that “when
I saw you enter in this case I knew there were going to be issues
because there are almost always issues with you”); People v. Dobler,
2015 COA 25, ¶ 12 (“While the judge’s statements that he would be
‘haunt[ed]’ by his decision to grant probation showed the judge was
affected by his prior decision to be lenient with defendant, it is not
enough to establish that the judge was unable to sentence
defendant fairly.”).
¶ 35 Under C.R.C.P. 97, a party may move to disqualify a judge
who is “interested or prejudiced” for or against a party. See Bocian
v. Owners Ins. Co., 2020 COA 98, ¶ 13. Because father did not file
a motion to disqualify the judge in this case (and does not address
preservation in his opening brief) this issue is not preserved for
16 appeal, and we do not consider further whether the magistrate
should have recused herself based on an appearance of impropriety.
¶ 36 A claim of actual bias, however, cannot be waived and may be
raised for the first time on appeal.2 See Jennings, ¶ 21; A.G., 262
P.3d at 651-53; see also Dobler, ¶ 7. Although father’s appellate
argument is only minimally developed and difficult to parse, it can
reasonably be read as asserting a claim of actual bias. Therefore,
preservation is not required.
¶ 37 We review de novo a claim for disqualification based on actual
bias. Dobler, ¶ 8; see also Jennings, ¶ 27.
B. Analysis
¶ 38 Father contends that the magistrate demonstrated actual bias
at the hearing because, as result of mother’s “theatrics” and
“emotional outbursts,” the magistrate “permitted [m]other to take
several breaks, leave the [c]ourtroom, and even called law
enforcement to the [c]ourtroom because [m]other was now fearful of
not only [f]ather but [f]ather’s counsel.” These actions, father
2 Because actual bias may be raised for the first time on appeal, we
may look to the hearing transcript that appears in the appellate record even though father did not provide it to the district court when he petitioned for review of the magistrate’s order.
17 contends, demonstrate that mother’s conduct “allowed the
[m]agistrate to be inappropriately swayed and she lost complete
control of the [c]ourtroom.”
¶ 39 “[T]rial judges enjoy broad discretion to adopt procedures
designed to regulate conduct in their courtrooms and to preserve
order during judicial proceedings.” Wilkerson v. Dist. Ct., 925 P.2d
1373, 1377 (Colo. 1996). Based on our review of the hearing
transcript, we conclude that the magistrate’s actions were well
within that broad discretion. To be sure, mother reacted poorly to
much of the questioning by father’s counsel, but the magistrate’s
management of the situation — which included taking breaks when
things became “heated” and instructing father’s counsel to refrain
from “commentary” — was entirely appropriate. Because nothing in
the record clearly establishes actual bias on the magistrate’s part,
we reject father’s argument. See Jennings, ¶ 28.
V. A Word of Warning to Counsel
¶ 40 We find it necessary to address counsel’s noncompliance with
C.A.R. 28 as well as the tenor of the opening brief (which was the
only brief submitted by either party).
18 ¶ 41 First, the opening brief does not comply with C.A.R. 28 in
several respects. Many of father’s claims about mother’s conduct —
for example, allegations that mother “moved people in and out of
her home, making them the priority over own children,” that father
“battled with the overall hygiene of the minor child,” and “the minor
child not being provided meals sufficient to meet the minor child’s
nutritional needs” — are unsupported by any record citations. See
C.A.R. 28(a)(5). And many of the record citations that do appear in
the opening brief cover are imprecise — instead covering large
swaths of the court file or the single transcript that was made part
of the record on appeal. See C.A.R. 28(a)(7)(a) (briefs must identify
“the precise location in the record where the issue was raised and
where the court ruled”); see Black v. Black, 2018 COA 7, ¶ 67
(“‘Judges are not like pigs, hunting for truffles buried in’ the parties’
submissions.”) (alteration and citation omitted).
¶ 42 Although the opening brief lists ten different orders as grounds
for “preservation” of the issues raised regarding the allocation of
decision-making, it does not acknowledge that the district court
denied father’s petition for review of the magistrate’s order because
he failed to provide a transcript of the relevant hearing. See
19 Marriage of Dean, ¶ 15. And father’s claim of judicial bias does not
address the standard of review or preservation at all. See C.A.R.
28(a)(7)(A).
¶ 43 We are also troubled by the tone of father’s opening brief,
which includes repeated ad hominem attacks on mother and the
magistrate — including claims that mother engaged in “theatrics”
and an assertion that the magistrate and the district court
“crucified” father. These intemperate accusations are of a piece
with counsel’s briefs in the district court, where, among other
things, he accused the magistrate of being “blinded by [m]other’s
theatrics” and wrote that “[s]he should have been awarded an Oscar
and not sole decision making.”
¶ 44 Counsel’s inflammatory approach is counterproductive not
only because it “hinders the court in deciding the merits of the
appeal,” but also because it “debases both the legal profession and
the judicial system.” Martin v. Essrig, 277 P.3d 857, 860 (Colo.
App. 2011).
¶ 45 Although we have opted to resolve this appeal on the merits,
we remind counsel of his obligation to comply with the Colorado
Appellate Rules and his obligations to act civilly toward opposing
20 parties and the court. Future lapses may be subject to sanctions or
other remedies. See id. at 861.
VI. Disposition
¶ 46 The order is affirmed.
JUDGE J. JONES and JUDGE SCHUTZ concur.