24CA1671 Marriage of McCandless 05-29-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA1671 El Paso County District Court No. 23DR30103 Honorable Amanda J. Philipps, Judge
In re the Marriage of
Danielle Evangeline McCandless,
Appellee,
and
Michael Ray McCandless,
Appellant.
ORDERS AFFIRMED
Division VI Opinion by JUDGE SCHUTZ Welling and Kuhn, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced May 29, 2025
The Burnham Law Firm, P.C., Brian D. Teed, Centennial, Colorado, for Appellee
Robinson & Henry, P.C., Mark J. Galler, Highlands Ranch, Colorado, for Appellant ¶1 In this post-decree dissolution of marriage case between
Michael Ray McCandless (father) and Danielle Evangeline
McCandless (mother), father appeals the district court’s orders
denying his motion to modify parenting time and child support and
his motion to appoint a child and family investigator (CFI). We
affirm.
I. Relevant Facts
¶2 In October 2023, the court dissolved the parties’ marriage and
entered permanent orders.
¶3 Concerning the allocation of parental responsibilities for the
parties’ child, mother informed the court that she was moving to
New York in the summer of 2024, and she asked the court to
allocate to her primary parenting time. Father, however, believed
that the child should remain with him in Colorado. After a
thorough analysis of the child’s best interests, the court allocated
primary parenting time to mother, allowing the child to move with
her to New York. Recognizing that mother’s move would not be
immediate, the court directed the parties to exercise equal
parenting time while mother remained in Colorado. And it ordered
that, “[s]tarting in the summer of 2024 when [mother] moves to New
1 York” and going forward, father will exercise parenting time during
the summer and other extended school breaks.
¶4 In July 2024, father filed a motion to modify parenting time
and child support. He asked the court to allocate to him primary
parenting time, allowing the child to stay in Colorado, and
recalculate child support based on the changed parenting time
schedule. He also filed a motion for the appointment of a CFI to
investigate and make recommendations on modifying parenting
time. The court denied the motions without a hearing.
II. Request to Modify Parenting Time
¶5 Father contends that the district court erred by denying his
request to modify parenting time without a hearing. We disagree.
¶6 A parent seeking a substantial modification of parenting time
that also changes the parent with whom the child primarily resides
must show that based on “facts that have arisen since the prior
decree or that were unknown to the court at the time of the prior
decree,” there has been a change in circumstances and a
modification is necessary to serve the child’s best interests. § 14-
10-129(2), C.R.S. 2024; see In re Parental Responsibilities
Concerning S.Z.S., 2022 COA 105, ¶ 14. The court must deny a
2 motion to modify parenting time without a hearing unless the
motion and supporting affidavit(s) present sufficient facts to
establish an adequate basis for modification under the applicable
legal standard. See § 14-10-132, C.R.S. 2024; In re Marriage of
Jones, 703 P.2d 1328, 1329 (Colo. App. 1985).
¶7 The court has broad discretion when determining whether to
modify a parenting time order, and we must exercise every
presumption in favor of affirming its ruling. S.Z.S., ¶ 13. We will
not disturb the court’s decision absent a showing that it misapplied
the law or that its decision was manifestly arbitrary, unreasonable,
or unfair. In re Marriage of Collins, 2023 COA 116M, ¶ 8.
¶8 Father’s request to modify parenting time focused on mother
moving to New York with the child, and he argued that this move
would deprive the child of parenting time with father. He alleged
that, since the court entered its permanent orders, the child had
strengthened his connections to friends and the community in
Colorado, was thriving, and did not have a relationship with anyone
in New York. He also criticized mother’s parenting and actions
around the child.
3 ¶9 The court found, however, that father did not present any
facts or circumstances that were not known and considered by the
court when it determined the previous allocation of parenting time
in 2023. Indeed, when determining that allocation, the court
analyzed mother’s anticipated move to New York, the child’s
relationships and connections to others within the two
communities, and the purported concerns over the parents’
parenting time. See § 14-10-124(1.5)(a), C.R.S. 2024; see also § 14-
10-129(2)(c). After a thorough analysis of these circumstances, the
court determined that the child could move with mother to New
York. See Spahmer v. Gullette, 113 P.3d 158, 164 (Colo. 2005) (“[I]n
the initial determination of parental responsibilities, . . . a [district]
court must accept the location in which each party intends to live,
and allocate parental responsibilities, including parenting time,
accordingly.”). While father desired to have the child remain in
Colorado, his motion to modify merely reargued his purported
reasons for an allocation of parenting time in his favor. The court
already considered those circumstances when determining its
permanent orders, and father’s motion did not establish any change
4 since that ruling that warranted modifying parenting time. See
§ 14-10-132; see also Jones, 703 P.2d at 1329.
¶ 10 Still, father argues that without a hearing on the motion, the
court violated his due process rights. To be sure, 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). But due process is flexible, calling for the procedural
protections that a particular situation requires, and a written
motion is often sufficient to afford a party with a meaningful
opportunity to be heard. See Van Sickle v. Boyes, 797 P.2d 1267,
1273 (Colo. 1990); BFN-Greeley, LLC v. Adair Grp., Inc., 141 P.3d
937, 942 (Colo. App. 2006); see also C.R.C.P. 121, § 1-15(4) (giving
the court discretion over whether to set a hearing on a motion).
¶ 11 Father had an adequate opportunity to present facts and
arguments in support of his request for the child to remain with
him in Colorado. At the permanent orders hearing, father was
aware of mother’s request to relocate with the child, and he was
able to present evidence concerning his desired allocation of
parenting time. Then, to the extent there was any change in
circumstances after the court’s permanent orders, father was able
5 to present such a factual basis in his motion to modify. But as the
court found, father did not do so. See § 14-10-132; see also Jones,
703 P.2d at 1329. The court therefore did not violate father’s due
process rights by not holding a hearing on his motion to modify.
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24CA1671 Marriage of McCandless 05-29-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA1671 El Paso County District Court No. 23DR30103 Honorable Amanda J. Philipps, Judge
In re the Marriage of
Danielle Evangeline McCandless,
Appellee,
and
Michael Ray McCandless,
Appellant.
ORDERS AFFIRMED
Division VI Opinion by JUDGE SCHUTZ Welling and Kuhn, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced May 29, 2025
The Burnham Law Firm, P.C., Brian D. Teed, Centennial, Colorado, for Appellee
Robinson & Henry, P.C., Mark J. Galler, Highlands Ranch, Colorado, for Appellant ¶1 In this post-decree dissolution of marriage case between
Michael Ray McCandless (father) and Danielle Evangeline
McCandless (mother), father appeals the district court’s orders
denying his motion to modify parenting time and child support and
his motion to appoint a child and family investigator (CFI). We
affirm.
I. Relevant Facts
¶2 In October 2023, the court dissolved the parties’ marriage and
entered permanent orders.
¶3 Concerning the allocation of parental responsibilities for the
parties’ child, mother informed the court that she was moving to
New York in the summer of 2024, and she asked the court to
allocate to her primary parenting time. Father, however, believed
that the child should remain with him in Colorado. After a
thorough analysis of the child’s best interests, the court allocated
primary parenting time to mother, allowing the child to move with
her to New York. Recognizing that mother’s move would not be
immediate, the court directed the parties to exercise equal
parenting time while mother remained in Colorado. And it ordered
that, “[s]tarting in the summer of 2024 when [mother] moves to New
1 York” and going forward, father will exercise parenting time during
the summer and other extended school breaks.
¶4 In July 2024, father filed a motion to modify parenting time
and child support. He asked the court to allocate to him primary
parenting time, allowing the child to stay in Colorado, and
recalculate child support based on the changed parenting time
schedule. He also filed a motion for the appointment of a CFI to
investigate and make recommendations on modifying parenting
time. The court denied the motions without a hearing.
II. Request to Modify Parenting Time
¶5 Father contends that the district court erred by denying his
request to modify parenting time without a hearing. We disagree.
¶6 A parent seeking a substantial modification of parenting time
that also changes the parent with whom the child primarily resides
must show that based on “facts that have arisen since the prior
decree or that were unknown to the court at the time of the prior
decree,” there has been a change in circumstances and a
modification is necessary to serve the child’s best interests. § 14-
10-129(2), C.R.S. 2024; see In re Parental Responsibilities
Concerning S.Z.S., 2022 COA 105, ¶ 14. The court must deny a
2 motion to modify parenting time without a hearing unless the
motion and supporting affidavit(s) present sufficient facts to
establish an adequate basis for modification under the applicable
legal standard. See § 14-10-132, C.R.S. 2024; In re Marriage of
Jones, 703 P.2d 1328, 1329 (Colo. App. 1985).
¶7 The court has broad discretion when determining whether to
modify a parenting time order, and we must exercise every
presumption in favor of affirming its ruling. S.Z.S., ¶ 13. We will
not disturb the court’s decision absent a showing that it misapplied
the law or that its decision was manifestly arbitrary, unreasonable,
or unfair. In re Marriage of Collins, 2023 COA 116M, ¶ 8.
¶8 Father’s request to modify parenting time focused on mother
moving to New York with the child, and he argued that this move
would deprive the child of parenting time with father. He alleged
that, since the court entered its permanent orders, the child had
strengthened his connections to friends and the community in
Colorado, was thriving, and did not have a relationship with anyone
in New York. He also criticized mother’s parenting and actions
around the child.
3 ¶9 The court found, however, that father did not present any
facts or circumstances that were not known and considered by the
court when it determined the previous allocation of parenting time
in 2023. Indeed, when determining that allocation, the court
analyzed mother’s anticipated move to New York, the child’s
relationships and connections to others within the two
communities, and the purported concerns over the parents’
parenting time. See § 14-10-124(1.5)(a), C.R.S. 2024; see also § 14-
10-129(2)(c). After a thorough analysis of these circumstances, the
court determined that the child could move with mother to New
York. See Spahmer v. Gullette, 113 P.3d 158, 164 (Colo. 2005) (“[I]n
the initial determination of parental responsibilities, . . . a [district]
court must accept the location in which each party intends to live,
and allocate parental responsibilities, including parenting time,
accordingly.”). While father desired to have the child remain in
Colorado, his motion to modify merely reargued his purported
reasons for an allocation of parenting time in his favor. The court
already considered those circumstances when determining its
permanent orders, and father’s motion did not establish any change
4 since that ruling that warranted modifying parenting time. See
§ 14-10-132; see also Jones, 703 P.2d at 1329.
¶ 10 Still, father argues that without a hearing on the motion, the
court violated his due process rights. To be sure, 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). But due process is flexible, calling for the procedural
protections that a particular situation requires, and a written
motion is often sufficient to afford a party with a meaningful
opportunity to be heard. See Van Sickle v. Boyes, 797 P.2d 1267,
1273 (Colo. 1990); BFN-Greeley, LLC v. Adair Grp., Inc., 141 P.3d
937, 942 (Colo. App. 2006); see also C.R.C.P. 121, § 1-15(4) (giving
the court discretion over whether to set a hearing on a motion).
¶ 11 Father had an adequate opportunity to present facts and
arguments in support of his request for the child to remain with
him in Colorado. At the permanent orders hearing, father was
aware of mother’s request to relocate with the child, and he was
able to present evidence concerning his desired allocation of
parenting time. Then, to the extent there was any change in
circumstances after the court’s permanent orders, father was able
5 to present such a factual basis in his motion to modify. But as the
court found, father did not do so. See § 14-10-132; see also Jones,
703 P.2d at 1329. The court therefore did not violate father’s due
process rights by not holding a hearing on his motion to modify.
¶ 12 Father also argues that by denying his motion, the court
“affirmed the notion created from the Final Orders that gave
[mother] an indefinite timeline to move” to New York with the child.
However, this argument appears to be nothing more than an
untimely attempt to appeal the court’s allocation of parenting time
in the October 2023 permanent orders. See C.A.R. 4(a)(1) (requiring
a party to appeal a final order within forty-nine days); see also In re
Marriage of Tognoni, 313 P.3d 655, 658 (Colo. App. 2011) (noting
that a timely appeal from a court’s later orders does not permit
appellate review of the court’s previous final judgment). The time
for father to appeal that judgment has passed. See Karr v. Williams,
50 P.3d 910, 912 (Colo. 2002) (recognizing that a judgment not
timely appealed is final and binding); see also In re Marriage of
James, 2023 COA 51, ¶ 8 (“The timely filing of a notice of appeal is
a jurisdictional prerequisite for appellate review.”).
6 ¶ 13 The court therefore acted within its discretion by denying
father’s motion to modify parenting time without a hearing.
III. Requests to Modify Child Support and Appoint a CFI
¶ 14 Father also generally asserts that the court erred by denying
his requests to modify child support and appoint a CFI. As best we
understand his contention, he suggests that because the court
erred by denying his motion to modify parenting time, these
additional rulings, which relied on that order, must also be
reversed. Given that we affirm the court’s denial of father’s motion
to modify parenting time, we necessarily reject father’s challenge to
these additional rulings.
IV. Subject Matter Jurisdiction
¶ 15 Finally, father argues that the district court “lacked subject
matter jurisdiction to grant [mother] an unlimited timeline to move”
to New York in its “Final Orders when [mother] failed to file a
motion to relocate.” We are unpersuaded.
¶ 16 Subject matter jurisdiction is the court’s authority to deal with
the class of cases which the sovereign has authorized it to hear.
See In re Marriage of Thorburn, 2022 COA 80, ¶ 15. The Colorado
Constitution vests the district court with general subject matter
7 jurisdiction to preside over civil cases, including dissolution of
marriage proceedings. See Colo. Const. art. VI, § 9; Thorburn,
¶¶ 15-16.
¶ 17 Defects in a court’s subject matter jurisdiction may be raised
at any time. See In re Marriage of Mallon, 956 P.2d 642, 645 (Colo.
App. 1998). However, beyond his general assertion, father does not
direct us to any legal authority suggesting that the court lacked
subject matter jurisdiction to rule on the allocation of parenting
time or deny father’s motions. See Thorburn, ¶ 15 (recognizing that
a limitation to the district court’s general subject matter jurisdiction
must be explicit); cf. In re Marriage of Stroud, 631 P.2d 168, 172 n.8
(Colo. 1981) (“Whether the record supports the trial court’s findings
and conclusions, and whether those findings and conclusions in
turn support the relief allowed, are matters for appeal, not matters
going to the jurisdiction of the court.”). We therefore will not
further review father’s conclusory assertion that the district court
lacked subject matter jurisdiction to deny his motions. See S.Z.S.,
¶ 29 (declining to address an undeveloped argument).
V. Disposition
¶ 18 The orders are affirmed.
8 JUDGE WELLING and JUDGE KUHN concur.