24CA1465 Marriage of McCracken 03-20-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA1465 Montrose County District Court No. 22DR160 Honorable D. Cory Jackson, Judge
In re the Marriage of
Benjamin R. McCracken,
Appellee,
and
Lynn M. McCracken,
Appellant.
JUDGMENT AFFIRMED
Division II Opinion by JUDGE GOMEZ Fox and Lum, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced March 20, 2025
Law Offices of J.M. Distefano, Jacqueline M. Distefano, Crawford, Colorado, for Appellee
Lynn M. McCracken, Pro Se ¶1 Lynn M. McCracken (wife) appeals the district court’s
judgment dissolving her marriage to Benjamin R. McCracken
(husband). We affirm.
I. Background
¶2 Husband filed a petition with the district court to dissolve the
parties’ marriage. The court scheduled a permanent orders hearing
and ordered the parties to appear in person. The day before the
hearing, wife asked the court if she could appear virtually instead.
The court denied her request, and wife did not appear for the
hearing.
¶3 After the hearing, the court issued its permanent orders. The
court set aside husband’s separate property, which included three
trucks, a hay rake, three guns, a gun shed, a Roth IRA, and forty-
five cows. The court then divided the marital estate by allocating to
wife assets that were worth about $211,500. The court allocated to
husband approximately $689,700 of the marital assets and all the
marital debt, which totaled about $547,700, thus leaving him with
about $142,000 of net equity. The court then declined to award
wife maintenance.
1 II. Preliminary Issue
¶4 Husband argues that we should strike wife’s opening brief and
dismiss her appeal because she didn’t comply with the
requirements of C.A.R. 28. See C.A.R. 38(a) (permitting the
appellate court to sanction a party for their noncompliance with the
appellate rules).
¶5 Under C.A.R. 28, an appellant’s opening brief must include,
among other things, a statement on “the applicable standard of
review with citation to authority”; a statement on “whether the issue
was preserved, and if preserved, the precise location in the record
where the issue was raised and where the court ruled”; and “a clear
and concise discussion of the grounds upon which the party relies
in seeking a reversal . . . , with citations to the authorities and parts
of the record on which the appellant relies.” C.A.R. 28(a)(7)(A)-(B).
These requirements are not mere technicalities; they facilitate our
appellate review. Cikraji v. Snowberger, 2015 COA 66, ¶ 10.
¶6 Even though wife’s brief doesn’t comply with C.A.R. 28, we are
mindful that she is representing herself. We exercise our discretion
and review wife’s contentions as best we understand them. See
Cikraji, ¶ 10. But we are limited by the information wife provided in
2 her briefs, and we will not develop arguments for her or search the
record for supporting facts. See id.
III. Property Division
¶7 Wife asserts that before the parties’ 2017 ceremonial marriage,
they entered into a common law marriage. She argues that the
district court’s property division failed to properly account for this
common law marriage, which began in 2012, and therefore erred by
classifying assets acquired during the common law marriage as
husband’s separate, premarital property. For three reasons, we
reject wife’s contention. See In re Marriage of Medeiros, 2023 COA
42M, ¶ 28 (declining to disturb a court’s division of the marital
estate absent a showing that the court abused its discretion).
¶8 First, wife didn’t preserve this issue by raising it in the district
court, and we don’t address arguments not raised in or decided by
the district court. Melat, Pressman & Higbie, L.L.P. v. Hannon Law
Firm, L.L.C., 2012 CO 61, ¶ 18. Wife didn’t address preservation in
her opening brief, as required by Rule 28. See C.A.R. 28(a)(7)(A). In
her reply brief, she claims that the issue was preserved and says
that the “marriage date was disputed in objections and filings”
before the hearing. However, she only directs us to her response to
3 the dissolution petition. In that response, she didn’t dispute the
date of the marriage but, rather, admitted that the parties married
in 2017. She later confirmed this marriage date in the joint trial
management certificate. Wife points us to no other portion of the
record where she alleged a common law marriage existed in 2012,
disputed that 2017 was the beginning of the marriage, or
challenged husband’s claim that property he owned before 2017
was his separate property. See id.; Melat, Pressman & Higbie, ¶ 18.
Nor does the record reveal that wife ever argued to the district court
that property acquired after 2012 was marital property due to a
purported common law marriage.
¶9 Second, even if we assume the issue was preserved, wife
presents only conclusory allegations of error. She doesn’t
(1) develop any legal argument to support her allegations of a
common law marriage; (2) identify the specific assets that the court
misclassified as husband’s separate property; or (3) direct us to
anything in the record that supports her contention. See In re
Parental Responsibilities Concerning S.Z.S., 2022 COA 105, ¶ 29
(declining to address a legally and factually undeveloped argument);
Brighton Sch. Dist. 27J v. Transamerica Premier Ins. Co., 923 P.2d
4 328, 335 (Colo. App. 1996) (“[I]t is not the duty of the reviewing
court to search the record for evidence to support bald assertions.”),
aff’d, 940 P.2d 348 (Colo. 1997).
¶ 10 And third, wife omitted portions of the record necessary for
our review of her alleged error. At the permanent orders hearing,
the court heard evidence and then entered findings of fact and
conclusions of law concerning the equitable allocation of the marital
estate. The court later incorporated its oral findings explaining its
property division into its written order. It was wife’s responsibility
to “include in the record transcripts of all proceedings necessary for
considering and deciding the issues on appeal.” C.A.R. 10(d)(3).
But she didn’t obtain a transcript of the permanent orders hearing.
Without a transcript of those proceedings, we cannot review wife’s
contention regarding the court’s property division or consider
whether the evidence supported the court’s determination. Instead,
we “must presume that the record supports the judgment.” In re
Marriage of Dean, 2017 COA 51, ¶ 13.
¶ 11 To the extent that wife further challenges the court’s property
division by arguing that the court didn’t recognize undisclosed
“cattle, tractors, and implements” and that the court’s ruling
5 “exacerbated” husband’s financial abuse and misconduct, we
decline to address those issues. Wife doesn’t legally or factually
develop these general assertions, doesn’t explain why the court’s
determinations warrant reversal, and doesn’t direct us to anywhere
in the record where she presented these arguments to the district
court. See Melat, Pressman & Higbie, ¶ 18; S.Z.S., ¶ 29; Brighton
Sch. Dist.
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24CA1465 Marriage of McCracken 03-20-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA1465 Montrose County District Court No. 22DR160 Honorable D. Cory Jackson, Judge
In re the Marriage of
Benjamin R. McCracken,
Appellee,
and
Lynn M. McCracken,
Appellant.
JUDGMENT AFFIRMED
Division II Opinion by JUDGE GOMEZ Fox and Lum, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced March 20, 2025
Law Offices of J.M. Distefano, Jacqueline M. Distefano, Crawford, Colorado, for Appellee
Lynn M. McCracken, Pro Se ¶1 Lynn M. McCracken (wife) appeals the district court’s
judgment dissolving her marriage to Benjamin R. McCracken
(husband). We affirm.
I. Background
¶2 Husband filed a petition with the district court to dissolve the
parties’ marriage. The court scheduled a permanent orders hearing
and ordered the parties to appear in person. The day before the
hearing, wife asked the court if she could appear virtually instead.
The court denied her request, and wife did not appear for the
hearing.
¶3 After the hearing, the court issued its permanent orders. The
court set aside husband’s separate property, which included three
trucks, a hay rake, three guns, a gun shed, a Roth IRA, and forty-
five cows. The court then divided the marital estate by allocating to
wife assets that were worth about $211,500. The court allocated to
husband approximately $689,700 of the marital assets and all the
marital debt, which totaled about $547,700, thus leaving him with
about $142,000 of net equity. The court then declined to award
wife maintenance.
1 II. Preliminary Issue
¶4 Husband argues that we should strike wife’s opening brief and
dismiss her appeal because she didn’t comply with the
requirements of C.A.R. 28. See C.A.R. 38(a) (permitting the
appellate court to sanction a party for their noncompliance with the
appellate rules).
¶5 Under C.A.R. 28, an appellant’s opening brief must include,
among other things, a statement on “the applicable standard of
review with citation to authority”; a statement on “whether the issue
was preserved, and if preserved, the precise location in the record
where the issue was raised and where the court ruled”; and “a clear
and concise discussion of the grounds upon which the party relies
in seeking a reversal . . . , with citations to the authorities and parts
of the record on which the appellant relies.” C.A.R. 28(a)(7)(A)-(B).
These requirements are not mere technicalities; they facilitate our
appellate review. Cikraji v. Snowberger, 2015 COA 66, ¶ 10.
¶6 Even though wife’s brief doesn’t comply with C.A.R. 28, we are
mindful that she is representing herself. We exercise our discretion
and review wife’s contentions as best we understand them. See
Cikraji, ¶ 10. But we are limited by the information wife provided in
2 her briefs, and we will not develop arguments for her or search the
record for supporting facts. See id.
III. Property Division
¶7 Wife asserts that before the parties’ 2017 ceremonial marriage,
they entered into a common law marriage. She argues that the
district court’s property division failed to properly account for this
common law marriage, which began in 2012, and therefore erred by
classifying assets acquired during the common law marriage as
husband’s separate, premarital property. For three reasons, we
reject wife’s contention. See In re Marriage of Medeiros, 2023 COA
42M, ¶ 28 (declining to disturb a court’s division of the marital
estate absent a showing that the court abused its discretion).
¶8 First, wife didn’t preserve this issue by raising it in the district
court, and we don’t address arguments not raised in or decided by
the district court. Melat, Pressman & Higbie, L.L.P. v. Hannon Law
Firm, L.L.C., 2012 CO 61, ¶ 18. Wife didn’t address preservation in
her opening brief, as required by Rule 28. See C.A.R. 28(a)(7)(A). In
her reply brief, she claims that the issue was preserved and says
that the “marriage date was disputed in objections and filings”
before the hearing. However, she only directs us to her response to
3 the dissolution petition. In that response, she didn’t dispute the
date of the marriage but, rather, admitted that the parties married
in 2017. She later confirmed this marriage date in the joint trial
management certificate. Wife points us to no other portion of the
record where she alleged a common law marriage existed in 2012,
disputed that 2017 was the beginning of the marriage, or
challenged husband’s claim that property he owned before 2017
was his separate property. See id.; Melat, Pressman & Higbie, ¶ 18.
Nor does the record reveal that wife ever argued to the district court
that property acquired after 2012 was marital property due to a
purported common law marriage.
¶9 Second, even if we assume the issue was preserved, wife
presents only conclusory allegations of error. She doesn’t
(1) develop any legal argument to support her allegations of a
common law marriage; (2) identify the specific assets that the court
misclassified as husband’s separate property; or (3) direct us to
anything in the record that supports her contention. See In re
Parental Responsibilities Concerning S.Z.S., 2022 COA 105, ¶ 29
(declining to address a legally and factually undeveloped argument);
Brighton Sch. Dist. 27J v. Transamerica Premier Ins. Co., 923 P.2d
4 328, 335 (Colo. App. 1996) (“[I]t is not the duty of the reviewing
court to search the record for evidence to support bald assertions.”),
aff’d, 940 P.2d 348 (Colo. 1997).
¶ 10 And third, wife omitted portions of the record necessary for
our review of her alleged error. At the permanent orders hearing,
the court heard evidence and then entered findings of fact and
conclusions of law concerning the equitable allocation of the marital
estate. The court later incorporated its oral findings explaining its
property division into its written order. It was wife’s responsibility
to “include in the record transcripts of all proceedings necessary for
considering and deciding the issues on appeal.” C.A.R. 10(d)(3).
But she didn’t obtain a transcript of the permanent orders hearing.
Without a transcript of those proceedings, we cannot review wife’s
contention regarding the court’s property division or consider
whether the evidence supported the court’s determination. Instead,
we “must presume that the record supports the judgment.” In re
Marriage of Dean, 2017 COA 51, ¶ 13.
¶ 11 To the extent that wife further challenges the court’s property
division by arguing that the court didn’t recognize undisclosed
“cattle, tractors, and implements” and that the court’s ruling
5 “exacerbated” husband’s financial abuse and misconduct, we
decline to address those issues. Wife doesn’t legally or factually
develop these general assertions, doesn’t explain why the court’s
determinations warrant reversal, and doesn’t direct us to anywhere
in the record where she presented these arguments to the district
court. See Melat, Pressman & Higbie, ¶ 18; S.Z.S., ¶ 29; Brighton
Sch. Dist. 27J, 923 P.2d at 335.
¶ 12 For these reasons, we will not disturb the court’s division of
the marital estate.
IV. Maintenance
¶ 13 Wife next asserts that the court’s maintenance decision “was
inadequate and unsupported by [the] evidence,” and she says that
the court erred by not considering husband’s financial abuse and
the parties’ financial disparity. We are unpersuaded.
¶ 14 Beyond conclusory statements, wife doesn’t explain why we
should disturb the court’s discretionary decision. See In re
Marriage of Capparelli, 2024 COA 103M, ¶ 30 (we review a court’s
maintenance determination for an abuse of discretion). She doesn’t
provide any supporting legal authority or any factual basis to
reverse. See S.Z.S., ¶ 29; Brighton Sch. Dist. 27J, 923 P.2d at 335.
6 And, again, without the transcript of the hearing and the court’s
ruling, we must presume that the court fully considered the parties’
financial circumstances and that the record supports its decision
declining to award wife maintenance. See Dean, ¶ 13; see also In re
Marriage of Collins, 2023 COA 116M, ¶ 21 (presuming the court
considered all the evidence).
¶ 15 We therefore affirm the court’s maintenance determination.
V. Judicial Bias
¶ 16 Wife also argues that we must reverse the judgment because
the judge exhibited bias against her. We disagree.
¶ 17 To warrant reversal based on a judge’s alleged bias, the record
must clearly establish that the judge’s conduct so departed from the
required impartiality as to deny the party a fair trial. People v.
Schupper, 2014 COA 80M, ¶ 59; see also In re Estate of Elliott, 993
P.2d 474, 481 (Colo. 2000) (reviewing de novo whether a judge
demonstrated bias).
¶ 18 Wife claims that the judge disregarded husband’s alleged
financial abuse and stalking, accepted husband’s self-serving
testimony, excluded “crucial evidence” from wife, and denied
“critical motions.” While wife speculates that the rulings against
7 her interests were due to the judge’s bias, adverse rulings, without
more, do not establish judicial bias. See Schupper, ¶¶ 58-59. And
wife doesn’t develop any further argument to establish that the
court’s rulings or evidentiary determinations were improper or that
they so departed from the required impartiality as to deny her a fair
trial. See id. at ¶ 59; see also S.Z.S., ¶ 29; Brighton Sch. Dist. 27J,
923 P.2d at 335. We therefore reject her contention.
VI. Attorneys’ Misconduct
¶ 19 Finally, wife asserts that two attorneys involved in the
dissolution proceeding, one who represented her and another who
represented husband, mishandled evidence and had conflicts of
interest, thus violating their ethical obligations. Wife highlights
that an arrest warrant was issued against her and that her former
attorney was nominated for the district attorney’s office.
¶ 20 But wife doesn’t direct us to anywhere in the record where she
raised her allegations of attorney misconduct to the district court.
See C.A.R. 28(a)(7)(A); Melat, Pressman & Higbie, ¶ 18. Nor does
she develop any legal or factual argument to explain why her
conclusory allegations warrant reversal. See S.Z.S., ¶ 29; Brighton
Sch. Dist. 27J, 923 P.2d at 335. To the extent that wife attempts to
8 direct us to other alleged instances of attorney misconduct in her
reply brief, she again doesn’t develop her claims, and we needn’t
address issues raised for the first time in a reply brief. See In re
Marriage of Drexler, 2013 COA 43, ¶ 24. We therefore decline to
disturb the judgment based on wife’s attorney misconduct claims.
VII. Disposition
¶ 21 The judgment is affirmed.
JUDGE FOX and JUDGE LUM concur.