25CA1822 Marriage of Schmidt 08-06-2026
COLORADO COURT OF APPEALS
Court of Appeals No. 25CA1822 El Paso County District Court No. 23DR31104 Honorable Amy Cullen Cano, Judge
In re the Marriage of
Brittany Michelle Schmidt,
Appellee,
and
Ryan David Schmidt,
Appellant.
JUDGMENT AFFIRMED AND APPEAL DISMISSED IN PART
Division III Opinion by JUDGE JOHNSON Kuhn and Martinez*, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced August 6, 2026
Heather M. Mitchell, Monument, Colorado, for Appellee
Colorado Legal Group, Morgan Minser, Denver, Colorado, for Appellant
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2025. ¶1 In this dissolution of marriage case between Brittany Michelle
Schmidt (wife) and Ryan David Schmidt (husband), husband
appeals portions of the permanent orders concerning parenting
time, decision-making responsibility, division of marital property
relating to debt and tax matters, payment of wife’s attorney fees, the
award of maintenance and child support, and the court’s findings
as to husband’s income and that wife was not voluntarily
underemployed. Husband also appeals (1) the district court’s order
denying his request for a continuance and (2) a magistrate’s post-
dissolution order reducing wife’s attorney fees to a sum certain. We
conclude that the court did not err relating to husband’s appeal of
the permanent orders. And we conclude that we lack jurisdiction
over the magistrate’s post-dissolution attorney fee order. Therefore,
we affirm the district court’s judgment and dismiss the appeal with
respect to the magistrate’s order.
I. Background
¶2 Wife and husband were married in December 2020 and had
two children during the marriage. Wife petitioned for dissolution of
the marriage in June 2023.
1 ¶3 Shortly after filing the petition, wife sought attorney fees
pursuant to section 14-10-119, C.R.S. 2025, arguing that, because
of the gross disparity in income between the parties, husband
should be ordered to pay wife’s attorney fees and advance a lump
sum payment of $10,000 to wife’s attorney. In August 2023, a
magistrate set an evidentiary hearing. After the hearing in
September 2023, the magistrate granted wife’s request for attorney
fees (September 2023 order) and ordered that when husband made
a payment to his attorney, “he shall also make a corresponding
payment to [wife] for the same amount.” Less than one month later,
husband’s counsel filed a motion to withdraw pursuant to
husband’s request, which the district court granted.
¶4 A permanent orders hearing was set in February 2024. After
wife presented her case, husband made a statement that the
2 district court construed as a request for a continuance, which it
denied.1
¶5 Following the hearing, the district court made oral findings of
fact and conclusions of law and then entered written orders
confirming its oral ruling (permanent orders).
¶6 Husband appealed the permanent orders and the order
denying his request for a continuance. A division of this court
dismissed the appeal without prejudice for lack of a final appealable
order because the court’s permanent orders had not reduced the
magistrate’s September 2023 attorney fee order to a sum certain.
In re Marriage of Schmidt, (Colo. App. No. 24CA0931, Apr. 4, 2025)
(unpublished order). Thereafter, wife filed a motion to enter an
attorney fees award and, based on the timeframe provided for in the
permanent orders, requested attorney fees in the amount of $8,869.
On August 5, 2025, a magistrate granted wife’s motion and
1 Although the transcript from the permanent orders hearing was
not certified as part of the record in this appeal, we take judicial notice of it from the prior appeal in which it was designated. See In re Marriage of Schmidt, (Colo. App. No. 24CA0931, Apr. 4, 2025) (unpublished order); see also Sebastian Holdings, Inc. v. Johansson, 2025 COA 60, ¶ 30 n.9 (taking judicial notice of court records in a related proceeding under CRE 201).
3 awarded the requested amount to be paid by husband (August
2025 order). Husband appeals.
¶7 On appeal husband raises numerous issues, most of which
are unpreserved. We first address the issues that we deem
preserved or that could not be preserved based on the court’s
ruling.
II. Request for a Continuance
¶8 Husband argues that the district court erred by denying his
request for a continuance of the permanent orders hearing. We
disagree.
A. Standard of Review
¶9 Whether to grant or deny a continuance is within the sound
discretion of the district court, and its decision will not be disturbed
absent a clear abuse of discretion. In re Marriage of Rodrick, 176
P.3d 806, 814 (Colo. App. 2007). A court abuses its discretion
when its decision is manifestly arbitrary, unreasonable, or unfair,
or when it misapplies the law. In re Marriage of Sheehan, 2022 COA
29, ¶ 23. The moving party must also show that the denial of the
continuance resulted in actual prejudice. In Interest of Spohr, 2019
COA 171, ¶ 32.
4 B. Analysis
¶ 10 At the permanent orders hearing after wife had presented her
case, husband made a statement questioning the fairness of the
proceedings because he had “not been allowed to obtain counsel.”
He stated, “I don’t know how to do this” and “I have things that are
being asked of me that I don’t know how to do.” The district court
construed husband’s statement as a request for a continuance to
obtain counsel.
¶ 11 The district court denied husband’s request as untimely,
reasoning that (1) the issue could have been addressed at the
pretrial readiness conference or a prior status conference, but
husband failed to appear at both; and (2) husband appeared at the
permanent orders hearing late and made his request after wife had
presented her case. The court also found it “suspect” that husband
had an attorney but terminated them “almost immediately after” the
magistrate ordered husband to pay wife’s attorney fees concurrently
with his own. We agree with the district court’s ruling for three
reasons.
¶ 12 First, as the district court found — and we agree — husband
could have made a timely request for a continuance before the
5 permanent orders hearing, either by filing a motion or raising the
issue at two hearings that he did not attend held on December 21,
2023, and January 19, 2024. He provides no account of why he did
not seek a continuance earlier, nor does he provide an explanation
as to why he did not attend those hearings.
¶ 13 Second, the court’s finding that husband’s withdrawal of his
attorney was “suspect” and done almost immediately after the
magistrate’s temporary attorney fee award is supported by the
record. Husband says that he “was forced to permit his previous
counsel to withdraw due to extreme financial burden.” But he
provides no financial specifics below or on appeal to support the
assertion made in the motion to withdraw that he was “request[ing]
counsel to withdraw.”
¶ 14 Also, the magistrate entered temporary orders on September
26, 2025, and less than three weeks later, husband requested his
counsel to withdraw; therefore, the court’s suspicion of husband’s
actions based on their timing was well founded. Most importantly,
however, even assuming husband was under “extreme financial
burden,” he concedes that his parents offered to pay for an attorney
for him, but he declined to have them do so. He did not explain at
6 the permanent orders hearing or on appeal his reason for rejecting
their offer.
¶ 15 Third and finally, husband has not demonstrated actual
prejudice. The district court assisted husband during the hearing
to the extent it was appropriate. The district court was prepared to
move forward with the hearing as a default hearing but allowed
husband to appear late. The court also consistently asked if
husband wanted to object to wife’s exhibits, explained to husband
how cross-examination worked, gave him the opportunity to
question wife’s testimony, and asked him if there was anything he
would like to say regarding the decisions the court had to make.
Except in a cursory fashion, husband does not explain how having
an attorney would have made a difference at the permanent orders
hearings. For example, he does not explain how his monthly
income was imputed incorrectly by the court or what evidence
through an attorney he would have presented to support that his
income was different and, thus, he might have an inability to pay
maintenance. Likewise, in that same vein, he does not explain how
any attorney would have presented evidence that he should have
more parenting time. Under the circumstances, therefore, we
7 cannot say that the district court abused its discretion by denying
the continuance.
III. Permanent Orders
¶ 16 Husband raises numerous issues with the permanent orders,
but most of them are unpreserved, so we do not address the merits.
As a subset of the unpreserved contentions, however, he raises two
issues that he did not need to preserve: (1) the court drew an
unspecified negative inference that was not requested by wife, and
(2) the court erred by failing to make best interests of the child
findings. We address the merits of those two issues.
A. Negative Inference
¶ 17 Husband contends that the court erred by drawing a negative
inference against him for “his lack of compliance with discovery and
disclosure requirements.” We disagree.
1. Standard of Review
¶ 18 We review a district court’s decision to draw an adverse
inference for an abuse of discretion. Aloi v. Union Pac. R.R. Corp.,
129 P.3d 999, 1002 (Colo. 2006). We will not disturb the district
court’s “imposition of an adverse inference unless the sanction is
manifestly arbitrary, unreasonable, or unfair.” Id.
8 2. Analysis
¶ 19 Husband contends that wife did not ask for a negative
inference, so it was an abuse of discretion for the court to draw one
without first providing him notice. Because wife did not make a
request, husband could not have timely objected; thus, we will
review the merits of this issue. In re Marriage of Herold, 2021 COA
16, ¶ 7 (reviewing a court’s sua sponte grant of retroactive
temporary maintenance because the husband had no opportunity
to object); Rinker v. Colina-Lee, 2019 COA 45, ¶ 26 (holding that,
“where, as here, the [district] court rules sua sponte on an issue,
the merits of its ruling are subject to review on appeal, whether
timely objections were made or not”).
¶ 20 Relying on In re Marriage of Sgarlatti, 801 P.2d 18 (Colo. App.
1990), the district court drew an adverse inference against
husband. Husband concedes that a district court has the
discretion to do so. But he asserts that the facts here are
distinguishable from Sgarlatti because his failure to provide
financial and other disclosures was not his fault, as he was forced
to allow his counsel to withdraw.
9 ¶ 21 Under C.R.C.P. 16.2(e)(5), the court may sanction a party
under C.R.C.P. 16.2(j) when the party does not timely provide
disclosures, which includes the information identified in Form 35.1
of the Appendix to Chapters 1 to 17A of the Colorado Rules of Civil
Procedure, such as monthly income, debts, and expenses.
¶ 22 Although the court never mentioned any specific negative
inference, it asserted in the permanent orders that the negative
inference supported some of its findings, though it did not delineate
which ones. Thus, we perceive that the negative inference drawn
against husband may have influenced the court’s findings and
rulings that
• wife’s income was $3,466.67 per month and husband’s
income was $10,190.97 per month;
• husband was to pay maintenance in the amount of
$1,497.29 per month for eleven months and child support
in the amount of $2,531.74 per month until the children
reach the age of majority; and
• husband must pay the remaining 2022 tax return to wife,
wife could claim the children for the 2023 tax year, and
each year thereafter the parties shall split who claims the
10 children, with husband claiming one child and wife claiming
the other.
¶ 23 We conclude that the district court did not abuse its discretion
by drawing a negative inference against husband with respect to
these monetary considerations. While it is true that the court did
not provide advance notice of its ruling, husband was well aware
that he had not complied with discovery obligations given his
excuse was that he did not have counsel and so he was unaware of
his obligations. But that excuse does not relieve him of the duty to
comply with the rules of civil procedure, which, as we mentioned
above, authorize the district court to impose sanctions against a
noncompliant party. Adams v. Sagee, 2017 COA 133, ¶ 10 (“[P]ro
se parties must comply with procedural rules to the same extent as
parties represented by attorneys.”).
¶ 24 It is true that when husband had counsel, he filed a sworn
financial affidavit that indicated his monthly income was $7,174.90.
Wife’s counsel filed a sworn financial affidavit attesting that
husband’s monthly income was $10,000. Later at the pretrial
conference, though, wife’s counsel indicated that husband had not
complied with discovery or Rule 16.2 disclosures, suggesting that
11 she had not received updated financial information from husband.
At the permanent orders hearing, wife’s counsel asked wife what
information she based husband’s $10,190.97 monthly income on,
and she testified it was from their joint tax returns. Husband did
not provide any argument at the hearing or on appeal that wife’s
evidence of his income was in error.
¶ 25 The court had discretion to weigh the conflicting information
about husband’s income and draw a negative inference that his
lack of disclosures could mean he was concealing additional
income. See Sgarlatti, 801 P.2d at 19; see also In re Marriage of
Yates, 148 P.3d 304, 311 (Colo. App. 2006) (upholding an order
imputing income based on the only evidence available when the
party’s financial disclosures were “atrocious”); In re Marriage of
Tooker, 2019 COA 83, ¶ 31 (the district court has discretion to draw
its own conclusions and inferences from the conflicting evidence).
And because the court broadly found that husband was not credible
and that wife was credible, it is difficult to ascertain how its
findings would have been any different without the unspecified
negative inference. Thus, we perceive no error.
12 B. Best Interests of the Child Standard
¶ 26 Husband asserts that, as part of the court’s rulings involving
parenting time and decision-making responsibility, the court failed
to make best interests of the child findings. Case law indicates that
a district court need not make detailed findings on all the best
interests of the child factors listed in section 14-10-124(1.5), C.R.S.
2025, “so long as there is some indication in the record that the
pertinent factors were considered.” People in Interest of A.M.K., 68
P.3d 563, 565-66 (Colo. App. 2003). We acknowledge that the
district court’s written order did not include any best interests of
the child findings, nor did it make reference to incorporating its oral
findings into its written order. But an appellate court may rely on
the district court’s implicit findings and affirm a judgment on any
grounds supported by the record. See Johnson v. Toohey, 2021
COA 43M, ¶ 7. In this case, the overall record supports the court’s
implicit best interests of the child findings.
1. Parenting Time
¶ 27 Husband contends that, in making its parenting time decision,
the district court failed to make findings as required by section
13 14-10-129(1)(a)(I), C.R.S. 2025. We reject this contention for two
reasons.
¶ 28 First, husband relies on an incorrect legal theory. Temporary
orders are not viewed the same as permanent orders, do not grant
parenting time rights, and are not subject to modification. In re
Marriage of Fickling, 100 P.3d 571, 573 (Colo. App. 2004). Only
permanent orders grant parenting time rights and are subject to
modification. Id.
¶ 29 An initial determination of parenting time is established in
permanent orders pursuant to section 14-10-124(1.5)(a). Under
this section, when determining a child’s best interests for parenting
time, the district court “shall consider all relevant factors,” which
include, among other things, the parent’s wishes; the child’s
interaction with their parents; each parent’s ability “to encourage
the sharing of love, affection, and contact” between them and the
child; and “[t]he ability of each party to place the needs of the child
ahead of his or her own needs.” § 14-10-124(1.5)(a).
¶ 30 Second, after hearing the testimony and reviewing the
evidence, the district court found wife’s testimony credible, while
also finding that husband’s was not. At the permanent orders
14 hearing, wife requested that the district court continue the
magistrate’s temporary orders that husband have parenting time
every other weekend. She testified that it “would be healthy for the
children” if they had a “primary parent bring them to school and
pick them up reliably” and to avoid “unexpectedness.” She also
testified that husband’s job “requires him to be on-call” and his
schedule is inconsistent.
¶ 31 The district court also heard testimony from wife’s family
member and her neighbor. This testimony, along with wife’s,
addressed several of the factors in section 14-10-124(1.5)(a),
including
• wife’s wishes that husband have parenting time every other
weekend;
• how attentive wife is to the children and their needs
compared to husband, who is not as attentive; and
• each party’s ability to prioritize the children.
¶ 32 Husband did not advance any argument for his preferred
parenting time schedule, or why parenting time should be different
from that in the temporary orders. In the testimony provided,
husband stated that he has been consistent with the time he has
15 had with his children, but when wife does not adhere to the
schedule, it presents a financial burden for him. Husband also
emphasized the lack of time he has because he works seventy hours
per week.
¶ 33 The court stated that “[i]t has been pretty one-sided as far as
evidence” and that it did not have any testimony contrary to wife’s
requests. In its oral ruling, the court considered the parties’
positions, acknowledging husband’s concerns about wife’s
adherence to the schedule. The court explained that, while the
parties can agree to temporary changes in parenting time, husband
does not have to care for the children outside the scope of the order,
unless he wants to, so that this does not need to affect his work
schedule.
¶ 34 While the district court did not use talismanic language in its
ruling about the factors, it was presented with and considered
evidence and testimony sufficient to satisfy the statutory standards.
And the court’s credibility determinations support that, by rejecting
husband’s testimony, it implicitly adopted wife’s evidence involving
the children’s emotional well-being and care. See Sims v. Indus.
Claim Appeals Off., 797 P.2d 777, 780 (Colo. App. 1990) (declining
16 to disturb the district court’s implicit rejection of petitioner’s
testimony); see also In re Marriage of Nelson, 2012 COA 205, ¶ 41
(upholding the district court’s implicit conclusions based on its
explicit findings); Tooker, ¶ 31 (inferences and conclusions drawn
from conflicting evidence are for the district court to resolve).
Because the district court’s decision is supported by the record, we
conclude that the court did not abuse its discretion by awarding
husband parenting time every other weekend. See In re Marriage of
Collins, 2023 COA 116M, ¶ 14.
2. Decision-Making Responsibility
¶ 35 Husband also contends that, in awarding wife tie-breaking
authority, the district court failed to make the findings required by
section 14-10-124(1.5)(b). We disagree.
¶ 36 Under this section, when determining a child’s best interests
for decision-making, the district court must consider “all relevant
factors,” id., including, among other things, “[c]redible evidence of
the ability of the parties to cooperate and to make decisions jointly.”
§ 14-10-124(1.5)(b)(I).
¶ 37 Similar to the parenting time issue, we acknowledge that the
district court did not explicitly refer to the statutory factors, but the
17 record supports the court’s decision to award wife tie-breaking
authority.
¶ 38 At the permanent orders hearing, wife testified that she would
prefer to make decisions jointly with husband, but he frequently
does not respond to her queries. Accordingly, wife requested that
she “have final say in case he decides he’s not going to participate
in the conversation as per the past six months.” Again, husband
did not advance any argument for his preferences regarding
decision-making authority, nor did he object to wife’s request or
provide contrary evidence refuting wife’s assertion that he failed to
respond to wife’s queries on parenting issues; as a result, there was
no conflicting request for the court to resolve. People in Interest of
A.V., 2018 COA 138M, ¶ 35 (affirming the district court’s order
where the evidence supported the court’s decision and the opposing
party did not offer any rebuttal evidence). Because the district
court’s decision to award wife tie-breaking authority is supported by
the record, we conclude that the court did not abuse its discretion.
C. Unpreserved Contentions
¶ 39 Husband contends that the district court erred by (1) awarding
wife tie-breaking authority for decision-making responsibility;
18 (2) awarding husband parenting time every other weekend;
(3) assigning the remaining marital debt to husband; (4) awarding
wife the remainder of the 2022 tax refund and permitting wife to
claim both children for the 2023 tax year; (5) calculating wife’s
income; (6) awarding wife child support and maintenance;
(7) finding that wife was not voluntarily underemployed; and
(8) upholding the magistrate’s temporary attorney fee award.
¶ 40 The basic thrust of his arguments on all these points is that
the court abused its discretion by denying his continuance so he
could obtain counsel, and that, with counsel, he could have made
better arguments and presented evidence. We acknowledge that
husband made a statement before the district court; however, he
did not enter any objections or offer any testimony on the merits of
any of these issues, so there is nothing for us to review. We have
already addressed and rejected his request for continuance. We
have also rejected his contentions that the court erred by drawing
an unspecified negative inference against him and failing to make
the best interests of the child findings. As a result, we view these
issues to be unpreserved and, therefore, we will not review the
remainder of them. In re Marriage of Salby, 126 P.3d 291, 297
19 (Colo. App. 2005) (declining to review issues not raised before the
trial court).
IV. Review of the Magistrate’s Order
¶ 41 Husband requests that we review and vacate the magistrate’s
August 2025 order reducing to a sum certain wife’s attorney fees.
Because we do not have jurisdiction over this matter, we dismiss
this portion of husband’s appeal.
¶ 42 Any magistrate order entered in a proceeding that did not
require the consent of the parties must first be reviewed by the
district court before this court acquires jurisdiction to review.
C.R.M. 7(a).2 Whether an order has been entered with or without
the parties’ consent depends upon whether consent is required by
rules or statutes investing the magistrate with authority to act.
Bryan v. Neet, 85 P.3d 556, 557 (Colo. App. 2003). If a party does
2 We note that the Colorado Rules for Magistrates (C.R.M.) changed
significantly, effective for orders issued on or after January 2, 2026. See In re Marriage of Carey, 2026 COA 3, ¶ 9 n.4 (noting that under the new C.R.M. 7, “there are no longer different avenues for appeal to this court depending on whether the matter was one that required the consent of the parties”); see also Rule Change 2025(18), Colorado Rules for Magistrates (Amended and Adopted by the Court En Banc, Sep. 4, 2025), https://perma.cc/S7P6-9RVS. For purposes of our analysis here, we rely on the magistrate rules in effect at the time the August 2025 order was issued.
20 not timely seek the district court’s review of a magistrate’s order,
“the order or judgment of the magistrate shall become the order or
judgment of the district court.” C.R.M. 7(a)(12) (2025). We may not
review a magistrate order “unless a timely petition for review has
been filed and decided by a reviewing court.” C.R.M. 7(a)(11)
(2025). A magistrate may enter an order awarding a party its
attorney fees without consent of the parties. In re Marriage of
Stockman, 251 P.3d 541, 542 (Colo. App. 2010).
¶ 43 Husband never sought district court review of the August
2025 order. Therefore, we lack jurisdiction to review the order
reducing wife’s attorney fees to a sum certain. C.R.M. 7(a)(11)
(2025) (“Appeal of an order or judgment of a district court
magistrate may not be taken to the appellate court unless a timely
petition for review has been filed and decided by a reviewing court
in accordance with these Rules.”). Accordingly, we dismiss this
portion of husband’s appeal.
V. Appellee’s Request for Attorney Fees
¶ 44 Wife requests an award of her attorney fees incurred on appeal
under C.A.R. 38(b) and 39.1, contending that husband’s arguments
are contrary to the record and, therefore, we should find husband’s
21 appeal frivolous. Although we affirm the district court’s permanent
orders and dismiss the appeal of the August 2025 order for lack of
jurisdiction, we disagree with wife’s characterization of the
arguments raised as frivolous. Therefore, we decline to award wife
her attorney fees. See C.A.R. 39.1 (“In its discretion, the appellate
court may determine entitlement to and the amount of an award of
attorney fees for the appeal . . . .”).
VI. Conclusion
¶ 45 We affirm the judgment and dismiss the appeal with respect to
the August 2025 order.
JUDGE KUHN and JUSTICE MARTINEZ concur.