Marriage of Zunker

• Court: Colorado Court of Appeals
• Decided: May 1, 2025
• Docket: 24CA1180
• Status: Unpublished

Opinion

24CA1180 Marriage of Zunker 05-01-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA1180 City and County of Denver District Court No. 11DR4141 Honorable Anita M. Schutte, Judge

In re the Marriage of

Derek Zunker,

Appellee,

and

Sabrina Zunker,

Appellant.

APPEAL DISMISSED IN PART, ORDER REVERSED, AND CASE REMANDED WITH DIRECTIONS

Division III Opinion by JUDGE DUNN Tow and Meirink, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced May 1, 2025

Sherr Puttman Akins Lamb, PC, Tanya L. Akins, Denver, Colorado, for Appellee

Sabrina Zunker, Pro Se ¶1 In this post-dissolution of marriage proceeding, Sabrina

Zunker (mother), appeals the district court’s order adopting a

magistrate’s ruling that denied her request to lift limitations on her

right to record and communicate with third parties under the res

judicata doctrine. Because res judicata doesn’t apply, we reverse

the district court’s order. However, to the extent mother’s appeal

challenges the initial order imposing the limitations, we dismiss it.

I. Background

¶2 Mother’s three-year marriage to Derek Zunker (father) ended

in 2012. They are the parents of one child. Originally, the parents

shared equal parenting time.

¶3 In January 2017, father moved to enforce his parenting time

and requested the court to modify parenting time “in the best

interest” of the child and to appoint a parental responsibilities

evaluator (PRE).

¶4 Upon completion of the PRE report, the magistrate held a

hearing and awarded father sole decision-making responsibility and

modified parenting time, with father becoming the majority-time

parent (the 2017 order). The 2017 order also imposed certain

limitations. Due to concerns about mother video-recording the PRE

1 and others — and, in particular, concerns about the emotional toll

of recording on the child — the 2017 order provides that “no

videotaping will occur in any setting by [m]other.” The order also

requires mother to “refrain from engaging in communication with

third parties regarding matters of this case” based on mother’s

history of “unnecessarily expos[ing] third parties to private and

sensitive matters.”

¶5 Mother petitioned the district court to review the 2017 order,

but she did not specifically ask the district court to review the

recording and communication limitations. The district court

adopted the 2017 order.

¶6 Mother appealed the district court’s order to this court,

raising, among other issues, the constitutionality of the recording

limitation (but not the communication limitation). A division of this

court affirmed portions of the 2017 order, but it dismissed the

portion of the appeal related to the recording limitation because

mother had not raised it in her district court petition. In re

Marriage of Zunker, slip op. at ¶¶ 26-27, 33 (Colo. App. No.

18CA1205, Apr. 25, 2019) (not published pursuant to C.A.R. 35(e)).

2 ¶7 In late 2022, mother moved to “take back [her] right to record

and provide any information that could be helpful to cooperate in

any investigation.” Among the attachments to the motion was an

excerpt of the 2017 order. Construing the motion as one to modify

the 2017 order, the magistrate denied it because mother did not

cite any legal authority in support of her request. See § 14-10-

129(1), C.R.S. 2024 (discussing motions to modify); see also § 14-

10-132, C.R.S. 2024 (discussing requirements for motions to

modify). Mother didn’t petition the district court to review the

magistrate’s order.

¶8 In February 2024, mother filed a motion to “dissolve gag order

and return [her] 1st Amendment and Constitutional Rights” (the

2024 motion). The 2024 motion argued that the 2017 order’s

recording and communication limitations are “[e]xcessively broad

and violate mother’s constitutionally protected rights.”

¶9 The magistrate summarily denied the 2024 motion under the

doctrine of res judicata (the 2024 order).

¶ 10 Mother petitioned the district court to review the magistrate’s

order. The district court agreed that mother’s motion was barred by

the doctrine of res judicata and adopted the magistrate’s order.

3 ¶ 11 On appeal, mother appears to challenge the 2017 order and

the 2024 order. We address each order separately.

II. The 2017 Order

¶ 12 Mother contends that the district court erred by (1) “ordering

[her] to stop recording [and] videotaping” and (2) ordering her not to

discuss the case with third parties. These contentions appear

directed at the recording and communication limitations imposed in

the 2017 order. To the extent mother is challenging these portions

of the 2017 order, that attempt is untimely, and we dismiss this

portion of her appeal.1

¶ 13 A party must file a notice of appeal within forty-nine days of

the entry of the order from which the party appeals. C.A.R. 4(a); In

re Marriage of Roth, 2017 COA 45, ¶ 11. “The timely filing of a

notice of appeal is a jurisdictional prerequisite to appellate review.”

In re Marriage of Buck, 60 P.3d 788, 789 (Colo. App. 2002).

¶ 14 The magistrate entered the modified parenting time order in

2017. That order put in place the recording and communication

limitations. Mother petitioned the district court to review the

1 Before mother filed her opening brief, another division of this

court limited her appeal to the 2024 order.

4 magistrate’s order, but she didn’t challenge the limitations. The

district court adopted the magistrate’s ruling in December 2017.

Mother appealed that order to this court and the appellate mandate

issued in June 2019.

¶ 15 The time to appeal the 2017 order has long expired, and we

lack jurisdiction to review it. Thus, to the extent mother challenges

the limitations in the 2017 order, we dismiss that portion of her

appeal.

III. The 2024 Order

¶ 16 Mother contends that the district court erred by denying her

2024 motion to “dissolve gag order and return [her] 1st Amendment

and Constitutional Rights” under the doctrine of res judicata.

Because we agree that the district court erred by applying the

doctrine of res judicata, we reverse the 2024 order.

¶ 17 Res judicata — also known as claim preclusion — bars a party

from relitigating claims in a separate legal proceeding that were or

could have been litigated in a prior proceeding. Argus Real Est., Inc.

v. E-470 Pub. Highway Auth., 109 P.3d 604, 608 (Colo. 2005); see

also Foster v. Plock, 2017 CO 39, ¶ 12 (outlining elements necessary

for res judicata to apply). But res judicata doesn’t bar “a party’s

5 later assertions in the same litigation.” In re Marriage of Mallon,

956 P.2d 642, 645 (Colo. App. 1998); accord In re Marriage of Tozer,

2017 COA 151, ¶ 10.

¶ 18 Our review of a district court’s order adopting a magistrate’s

decision is effectively a second layer of appellate review. In re

Marriage of Sheehan, 2022 COA 29, ¶ 22. While we defer to the

magistrate’s factual findings, we review legal questions — such as

whether res judicata applies — de novo. See Foster, ¶ 10.

¶ 19 Because mother sought to challenge the constitutionality of

the recording and communication limitations imposed in the 2017

order in the same dissolution proceeding — not a separate

proceeding — res judicata doesn’t apply. See Tozer, ¶ 10. Nor was

the district court barred from revisiting its own previous rulings.

Indeed, a district court is well within its discretion to revisit its own

rulings. See Stockdale v. Ellsworth, 2017 CO 109, ¶ 37. The

magistrate and district court therefore erred by concluding that res

6 judicata barred mother’s constitutional challenges to the recording

and communication limitations imposed in the 2017 order.2

¶ 20 We recognize, as father points out, that in 2019 mother

stipulated to limitations on her right to record and communicate

that are separate from the 2017 order. That stipulation too was

made a court order.3 But neither the magistrate nor the district

court considered that stipulation or order when it denied mother’s

2024 motion. Nor does mother present any arguments about the

2019 order. The stipulation and its impact, if any, on mother’s

2024 motion is therefore not properly before us, and we express no

opinion on it.

2 Despite references in the magistrate and district court orders

suggesting that mother’s constitutional claims had already been decided, we don’t see anywhere in the record that any court has considered whether the recording and communication limitations pass constitutional muster. Though mother tried to appeal the recording limitation to this court, the claim was dismissed for lack of jurisdiction. In re Marriage of Zunker, slip op. at ¶¶ 26-27, 33 (Colo. App. No. 18CA1205, Apr. 25, 2019) (not published pursuant to C.A.R. 35(e)). 3 In 2019, the parties specifically stipulated that they shall “not

photograph or videotape each other or the respective family members of each parent” and “not involve third parties or communicate with third parties regarding matters related to this case or parenting disputes.”

7 ¶ 21 Finally, in her reply brief, mother says that her motion should

have been construed as a motion to modify. To be sure, a parent

may seek modification of parenting time orders under sections 14-

10-129 and 14-10-132. See In re Marriage of Hatton, 160 P.3d 326,

330 (Colo. App. 2007). But having concluded that the district court

erred by applying the doctrine of res judicata, we needn’t consider

whether mother’s motion satisfied section 14-10-132.

¶ 22 For these reasons, we reverse the district court’s 2024 order.

IV. Appellate Attorney Fees, Costs, and Sanctions

¶ 23 Because we agree with mother that the district court erred by

applying the doctrine of res judicata, we deny father’s request for

appellate attorney fees, costs, and sanctions.

V. Disposition

¶ 24 We reverse the district court’s 2024 order and remand for

further proceedings. We dismiss the portions of mother’s appeal

that challenge the 2017 order.

JUDGE TOW and JUDGE MEIRINK concur.