Norton v. Ruebel

2024 COA 107

• Court: Colorado Court of Appeals
• Decided: October 3, 2024
• Docket: 23CA0792 & 23CA2021
• Status: Published

Opinion

The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.

SUMMARY October 3, 2024

2024COA107

No. 23CA0792 & 23CA2021, In re Marriage of Pawelec — Family Law — Motion to Modify Arbitrator’s Award — De Novo Hearing — Fees and Costs

Section 14-10-128.5(2), C.R.S. 2024, allows a party who has

previously consented to arbitration of disputed parenting matters to

“move the court to modify the arbitrator’s award pursuant to a de

novo hearing.” If the court grants the motion and “substantially

upholds” the arbitrator’s decision, the party who requested the de

novo hearing “shall be ordered to pay the fees and costs of the other

party . . . incurred in responding to” the motion “unless the court

finds that it would be manifestly unjust.” Id.

A division of the court of appeals holds that a court

“substantially upholds” the arbitrator’s decision if it reaches a

substantially similar outcome, regardless of whether the court’s

reasoning differs from the arbitrator’s. The division also holds that “fees and costs . . . incurred in

responding to” the motion for a de novo hearing (1) do not include

fees and costs incurred before the motion for a de novo hearing is

filed but (2) do include fees and costs incurred in preparing for and

attending the de novo hearing after the motion is granted. COLORADO COURT OF APPEALS 2024COA107

Court of Appeals Nos. 23CA0792 & 23CA2021 Eagle County District Court No. 22DR93 Honorable Rachel J. Olguin-Fresquez, Judge

In re the Marriage of

Christopher Paul Pawelec,

Appellee,

and

Katarzyna Julia Pawelec,

Appellant.

JUDGMENT AFFIRMED IN PART, REVERSED IN PART, AND CASE REMANDED WITH DIRECTIONS

Division V Opinion by JUDGE LUM Harris and Taubman*, JJ., concur

Announced October 3, 2024

Howard & Associates, LLC, Kara Noack, Vail, Colorado, for Appellee

Courtney Holm & Associates, AAL PC, Courtney Autumn Holm, Edwards, 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. 2024. ¶1 In these consolidated appeals, Katarzyna Julia Pawelec

(mother) appeals the trial court’s permanent orders entered in

connection with the dissolution of her marriage to Christopher Paul

Pawelec (father).

¶2 Mother’s appeal involves the application of an unusual

statutory procedure. Section 14-10-128.5(2), C.R.S. 2024, allows a

party who has previously consented to arbitration of disputed

parenting matters to “move the court to modify the arbitrator’s

award pursuant to a de novo hearing.” If, after the hearing, the

court substantially upholds the arbitrator’s decision, the party who

requested the de novo hearing “shall be ordered to pay the fees and

costs of the other party . . . incurred in responding to” the motion,

unless the court finds that the award of fees would be manifestly

unjust. Id.

¶3 Mother’s contentions require us to examine, for the first time,

(1) whether a court “substantially upholds” the arbitrator’s decision

if it reaches a substantially similar outcome but its reasoning

differs from the arbitrator’s and (2) the appropriate scope of the fees

and costs awarded under the statute.

1 ¶4 We answer the first question in the affirmative. And we

conclude that “fees and costs . . . incurred in responding” to the

motion for a de novo hearing include the fees and costs incurred in

preparing for and attending the de novo hearing; however, they do

not include fees and costs incurred before the motion for a de novo

hearing is filed.

¶5 Mother also raises contentions regarding jurisdiction, due

process, parenting time, child support, notice, and the form of the

decree of dissolution of marriage. Both parties request appellate

attorney fees.

¶6 We affirm in part, reverse in part, and remand for proceedings

consistent with this opinion.

I. Background

¶7 The parties married in 2017 and are the parents of one minor

child, S.P.

¶8 After five years of marriage, father petitioned for dissolution.

The parties entered into a separation agreement regarding property

division and agreed to arbitrate the remaining unresolved issues of

parenting time, decision-making, child support, and spousal

2 maintenance. During the arbitration, mother did not raise any

allegations of domestic violence.

¶9 The arbitrator awarded the parties joint decision-making and

named father, who planned to move from Colorado to North

Carolina following the dissolution, as the primary residential

parent. The arbitrator also entered orders concerning child support

and spousal maintenance.

¶ 10 Mother moved for a de novo hearing to modify the arbitrator’s

award as to parenting time under section 14-10-128.5. In her

motion, she alleged that father had engaged in a “recurring pattern

of control and abuse, both emotional and physical,” which led her

to “withhold[] pertinent information” from the arbitrator. After a

case management conference, the trial court granted mother’s

motion and set a one-day hearing.

¶ 11 The de novo hearing took place in February 2023. After the

hearing, the trial court entered an oral order awarding the parties

joint decision-making, based on their agreement to that at the

hearing, and finding that it was in the child’s best interests to

reside primarily with father when he relocated to North Carolina

3 (oral parenting time order). Mother moved for reconsideration,

which the court denied in a written, signed order.

¶ 12 Because the trial court upheld the arbitrator’s parenting time

decision, father moved for attorney fees and costs under section 14-

10-128.5(2). The court granted father’s motion.

¶ 13 Mother appealed the oral parenting time order, the denial of

the motion to reconsider, and the attorney fees order in Case No.

23CA0792 (the first appeal).

¶ 14 Some months later, father filed proposed written orders

concerning parental responsibilities, child support, and spousal

maintenance, along with a transcript of the oral parenting time

order and a proposed decree of dissolution of marriage. The trial

court signed father’s proposed orders between October 5 and

October 9, 2023 (October 2023 orders). Mother separately appealed

those orders in Case No. 23CA2021 (the second appeal). We

consolidated the appeals and now address mother’s contentions

together.

¶ 15 We first consider mother’s threshold contentions that the trial

court lacked jurisdiction to enter the October 2023 orders and

violated her due process rights at the de novo hearing. We then

4 address mother’s substantive arguments relating to the parenting

time, attorney fees, and child support orders. Finally, we consider

mother’s miscellaneous contentions related to the October 2023

orders and the parties’ requests for appellate attorney fees.

II. Jurisdiction

¶ 16 Mother contends that the trial court lacked jurisdiction to

enter the October 2023 orders because, at that time, mother’s first

appeal was pending. Reviewing the question de novo, see McDonald

v. Zions First Nat’l Bank, N.A., 2015 COA 29, ¶ 33, we disagree.

A. Applicable Law

¶ 17 When a party files a notice of appeal from a final judgment,

the trial court is divested of jurisdiction “with regard to the

substantive issues that are the subject of the appeal.” Molitor v.

Anderson, 795 P.2d 266, 268 (Colo. 1990). But when a party files a

premature notice of appeal — an appeal from a judgment that isn’t

final — the trial court doesn’t lose jurisdiction. Musick v. Woznicki,

136 P.3d 244, 246 (Colo. 2006). A final judgment is one that “ends

the proceeding in which it is entered and leaves nothing further to

be done regarding the rights of the parties.” In re Marriage of Salby,

126 P.3d 291, 294 (Colo. App. 2005).

5 B. Analysis

¶ 18 The parties’ dissolution of marriage action involved issues

pertaining to property division, spousal maintenance, child support,

parenting time, and decision-making. When mother filed her first

appeal, the trial court had entered the following relevant orders:

• the oral parenting time order;

• the order denying mother’s motion to reconsider;

• the order granting father’s request for attorney fees under

section 14-10-128.5; and

• an order (1) confirming the arbitrator’s award of spousal

maintenance; (2) adopting the parties’ stipulation as to their

incomes for purposes of calculating child support; and (3)

implicitly adopting the parties’ stipulation that the

separation agreement regarding property division “shall be

adopted into a Decree of Dissolution of Marriage.”1

1 We note that, while the October 2023 dissolution decree has a

checked box indicating that the court entered “permanent orders” — meaning the orders that were issued after arbitration and after the de novo hearing — it did not check the box incorporating the property division separation agreement into the decree. This appears to be a clerical error.

6 ¶ 19 But those orders weren’t sufficient to completely determine the

rights of the parties: the trial court hadn’t entered a written

parenting time order, orders regarding child support, or a decree of

dissolution of marriage. Accordingly, mother’s first notice of appeal

was premature because the judgment wasn’t final when she filed it.

See Salby, 126 P.3d at 295 (holding that a parenting time order

wasn’t appealable until the court had entered the decree of

dissolution of marriage and permanent orders regarding financial

matters).

¶ 20 For this reason, we conclude that the trial court had

jurisdiction to enter the October 2023 orders. See Musick, 136 P.3d

at 246. And because those orders rendered the judgment final, we

have jurisdiction to consider the contentions raised in mother’s first

appeal. See id. at 246-47.

III. Procedural Due Process

¶ 21 Mother contends that the trial court violated her procedural

due process rights at the de novo hearing by not allowing her to

present additional evidence beyond her allotted time. We disagree.

7 A. Additional Facts

¶ 22 On November 29, 2022, the trial court held a case

management conference to discuss mother’s motion for a de novo

hearing. Mother was unrepresented at the time. The court asked

father’s counsel how much time would be required. Father’s

counsel asked for a full day to “err on the side of caution.” Mother

didn’t object or ask for additional time. The court then asked both

parties if there were any questions, to which mother replied, “No.”

The court set a one-day hearing for February 7, 2023. On

December 8, 2022, mother’s counsel entered his appearance. He

didn’t seek a continuance or request more time for the hearing.

¶ 23 Seven days before the hearing, the parties submitted a joint

trial management certificate in which they acknowledged that the

hearing was scheduled for one day and estimated the amount of

time they would need for each witness. Mother and father each

estimated approximately three and a half hours for their respective

witnesses, each reserving any necessary time for cross-examination.

Again, mother’s counsel didn’t request more time.

¶ 24 Each party was given approximately equal time at the hearing,

with mother presenting her case first. Mother testified, as did

8 maternal grandmother and mother’s domestic violence expert

witness. Father testified about his parenting and his planned move

to North Carolina. He also called multiple family members, friends,

and neighbors to testify on his behalf.

¶ 25 During the hearing, the court informed mother’s counsel that

his time was up and asked if he had more witnesses. Mother’s

counsel said, “[W]ell, I have four but I can get away with calling

two.” After the court indicated that it was unlikely they would have

time for the witnesses, mother’s counsel responded, “Certainly,

Your Honor.” He didn’t object, request a continuance, or ask for the

hearing to continue to a second day.

¶ 26 Later, mother’s counsel said, “I have a couple other witnesses I

was hoping to get in. Is that not going to happen?” After the court

said that it wouldn’t, mother’s counsel replied, “Thanks. I just don’t

want them sitting around for no reason.”

¶ 27 Finally, at the very end of the hearing, mother’s counsel

informed the court that

[t]here’s a material witness that this court has not heard from that . . . would dispute a lot of what [father] said and would support what [mother] has testified. I don’t know if the Court needs that information in order to

9 render a decision. . . . [B]ut it is . . . information that would describe what was witnessed in terms of [father’s] behavior toward [mother] in public.

¶ 28 The court replied that it wasn’t inclined to increase mother’s

time when presentation of witnesses was “within [mother’s]

planning” and time had run out. Mother’s counsel did not further

attempt to identify the “material witness” or explain the witness’s

testimony or its importance.

B. Standard of Review and Legal Principles

¶ 29 A meaningful opportunity to be heard is an inherent element

of due process. In re Marriage of Hatton, 160 P.3d 326, 329 (Colo.

App. 2007). Parties are entitled to sufficient time in which to

orderly present their cases. Salby, 126 P.3d at 302.

¶ 30 The trial court’s interest in administrative efficiency may not

take precedence over a party’s right to due process. Hatton, 160

P.3d at 329. But the court may set a time limit on a hearing from

the outset and monitor the parties’ use of their time during the

hearing. See Maloney v. Brassfield, 251 P.3d 1097, 1102-05 (Colo.

App. 2010); CRE 611(a) (“The court shall exercise reasonable

control over the mode and order of interrogating witnesses and

10 presenting evidence so as to . . . avoid needless consumption of

time . . . .”).

¶ 31 Because due process is implicated, we apply a heightened level

of scrutiny to determine whether the trial court’s time limits

constituted an abuse of discretion at two levels: whether the limits

were inadequate for the nature of the proceeding at the outset, and

if not, whether they became inadequate because of developments

during the proceeding. See Maloney, 251 P.3d at 1102. A court

abuses its discretion when it acts in a manifestly arbitrary, unfair,

or unreasonable manner, or when it misconstrues or misapplies the

law. See In re Marriage of Fabos, 2022 COA 66, ¶ 16.

C. Analysis

¶ 32 The trial court did not abuse its discretion in setting the time

limits or by denying mother’s counsel’s request for additional time.

The parties had a little over three and a half hours each to present

evidence about a single issue: the best interests of the child

11 pertaining to parenting time.2 Cf. In re Marriage of Yates, 148 P.3d

304, 309-10 (Colo. App. 2006) (determining that a three-day

hearing was sufficient to present all issues — property division,

maintenance, parenting time, decision-making, and child

support — because both parties agreed to the time limits,

husband’s attorney did not object or suggest more time was needed

until the end of the hearing, and the parties were reminded of the

time limits throughout the hearing). Here, mother’s counsel was

permitted to make his own strategic decisions concerning witness

presentation, and he opted to present mother’s testimony,

grandmother’s testimony, and lengthy testimony from a domestic

violence expert. He also extensively cross-examined father’s

witnesses. See Maloney, 251 P.3d at 1104 (noting, in the division’s

consideration of whether the allocated length of time was adequate,

that parties are permitted to make strategic decisions). For this

reason, we reject mother’s comparison to In re Marriage of Goellner,

2 The parties originally disputed the allocation of decision-making

responsibility along with parenting time. As best we can discern, the parties agreed to joint decision-making at the hearing, and the court ordered joint decision-making based on their agreement. Mother doesn’t appeal the allocation of decision-making authority.

12 770 P.2d 1387 (Colo. App. 1989). In that case, a division of this

court concluded that the trial court abused its discretion by not

granting wife additional time where husband presented his case

first, and, after cross-examination, wife had only thirty minutes to

present her case-in-chief. Id. at 1388-89. This case was markedly

different.

¶ 33 Moreover, as the trial court pointed out, the parties were well

aware of the time constraints before the hearing, and it was mother

and her counsel’s responsibility “to make sure [she] got the most

important evidence before the Court during [her] allotted time

frame.” See Maloney, 251 P.3d at 1103 (considering whether time

constraints result in unfair surprise). The trial court also

demonstrated flexibility, permitting mother’s witnesses to go “a little

over” in the morning and finishing the hearing after six in the

evening. See id. at 1104-05 (considering trial court’s flexibility).

¶ 34 Finally, mother failed to adequately identify the evidence that

was in danger of being excluded if the trial court didn’t grant her

more time. See id. at 1105 (rejecting party’s claim that he was

prejudiced by inability to present additional evidence in part

because the party didn’t make an adequate and timely offer of

13 proof); see also CRE 103(a)(2). The first two times the court

mentioned time constraints during the hearing, mother’s counsel

said that he had other witnesses to present but didn’t detail their

prospective testimony. The third time — at the end of the

hearing — mother’s counsel said only that he wanted to present

information from a single witness who would “dispute” father’s

testimony, “corroborat[e]” mother’s testimony, and “describe what

was witnessed in terms of [father’s] behavior toward [mother] in

public.” Mother’s counsel didn’t explain what parts of the parties’

testimony would be “disputed” or “corroborated” or describe in any

detail the behavior about which the witness would testify.

¶ 35 This isn’t sufficient to “aid [the] trial court in addressing

[mother’s] request[] to depart from [the] previously set time limit[].”

Maloney, 251 P.3d at 1105. And mother’s counsel’s request for

more time to present specific witnesses in the motion for

reconsideration was both insufficiently detailed and untimely. See

id. (holding that submission of pretrial disclosures as an exhibit to

a motion for a new trial was an untimely and overly general proffer).

¶ 36 We aren’t persuaded otherwise by mother’s arguments to the

contrary. She contends that the time for the hearing was

14 inadequate from the outset and that the court should have known

of the inadequacy before trial because (1) the parties mediated for

four days and participated in a full day of arbitration; (2) mother

didn’t have any input into the length of the hearing; and (3) the

parties estimated they would each need around half a day for their

direct examinations. We disagree. The time it took to mediate isn’t

relevant to whether mother had a reasonable opportunity to present

her case at trial. And while mother wasn’t represented at the case

management conference where the court set the one-day hearing,

mother’s counsel entered his appearance just nine days later and

didn’t request additional time. Mother’s counsel also didn’t ask for

more time after submitting mother’s witness list or his estimate that

he would need most of mother’s three and a half hours for direct

examination.

¶ 37 We also reject mother’s contention that she was prejudiced by

the hearing’s length because she was unable to present evidence

concerning her interaction and relationship with S.P. and her

attention to S.P.’s mental, emotional, and physical needs —

evidence that the trial court remarked was missing. Mother didn’t

timely raise her inability to present this evidence. At the end of the

15 hearing, when mother’s counsel asked to present one more

“material witness,” he said that the witness would testify about

father’s behavior toward mother, not mother’s relationship with S.P.

Moreover, mother herself could have testified about these topics but

didn’t do so. See id. at 1104 (“[T]rial courts should allow the parties

maximum latitude in presenting their cases within the allotted

time.”).

¶ 38 Finally, we reject as unpreserved mother’s argument, to the

extent she makes it, that she should have had more time to present

her case because maternal grandmother testified through an

interpreter. See Berra v. Springer & Steinberg, P.C., 251 P.3d 567,

570 (Colo. App. 2010) (holding that to preserve an issue for appeal,

the issue must be brought to the trial court’s attention so that the

court has an opportunity to rule on it).

¶ 39 For these reasons, we perceive no error in the length of the

hearing set by the court or the court’s denial of mother’s request for

additional time.

IV. Parenting Time

¶ 40 Mother contends that the trial court erred by (1) not

considering whether the harm S.P. would suffer from moving to

16 North Carolina with father was outweighed by the advantage of the

move; and (2) not finding that father committed domestic violence,

and, therefore, not addressing other required domestic violence

considerations.

¶ 41 Initially, we note that only the oral parenting time order

contains the trial court’s findings of fact and conclusions of law.

The written parenting time order provides for joint decision-making

and contains a parenting time schedule that parallels the schedule

in the oral order. We therefore consider the orders together. See

Friends of Denver Parks, Inc. v. City & Cnty. of Denver, 2013 COA

177, ¶ 35 (“Oral findings and conclusions that are contained in a

transcript are adequate if they are ‘sufficiently comprehensive to

provide a basis for review.’” (quoting Hipps v. Hennig, 447 P.2d 700,

703 (Colo. 1968))). However, in the event of a conflict, the written

17 order prevails over the oral order. See Reed v. Indus. Claim Appeals

Off., 13 P.3d 810, 813 (Colo. App. 2000).3

A. Best Interests of the Child

¶ 42 Mother argues that the trial court erred by not considering

whether the harm S.P. would suffer from moving to North Carolina

with father was outweighed by the advantage of the move. We

discern no basis for reversal.

1. Legal Principles and Standard of Review

¶ 43 When allocating parenting time, the court must focus on the

child’s best interests, giving paramount consideration to the child’s

safety and physical, mental, and emotional conditions and needs.

See § 14-10-123.4(1)(a), C.R.S. 2024; § 14-10-124(1.5), (1.7), C.R.S.

2024; see also In re Parental Responsibilities Concerning M.W., 2012

COA 162, ¶ 16. In making this determination, the court must

consider all relevant factors, including, as pertinent here, (1) the

3 In her reply brief in the second appeal, mother argues for the first

time that father did not properly serve her with the proposed written parenting time order, implying that she wants to object to it. We don’t consider this contention because it was raised for the first time on reply. See Jenkins v. Haymore, 208 P.3d 265, 269 (Colo. App. 2007). And in any event, as best we can discern, mother doesn’t argue that any specific provision in the written parenting time order is inconsistent with the oral parenting time order.

18 wishes of the child’s parents as to parenting time; (2) the interaction

and interrelationship of the child with his or her parents and any

other person who may significantly affect the child’s best interests;

(3) any report of domestic violence; (4) the child’s adjustment to his

or her home, school, and community; (5) the ability of the parties to

encourage the sharing of love, affection, and contact between the

child and the other party; (6) whether the past pattern of

involvement of the parties with the child reflects a system of values,

time commitment, and mutual support; (7) the physical proximity of

the parties to each other as it relates to the practical considerations

of parenting time; and (8) the ability of each party to place the

needs of the child ahead of his or her own needs. § 14-10-

124(1.5)(a).

¶ 44 The court is not required to make findings on all statutory

factors. In re Custody of C.J.S., 37 P.3d 479, 482 (Colo. App. 2001).

Findings must be sufficiently explicit, however, to give the reviewing

court a clear understanding of the basis of the order. In re Marriage

of Lester, 791 P.2d 1244, 1246 (Colo. App. 1990).

¶ 45 We review a court’s parenting time determination for an abuse

of discretion. In re Marriage of Badawiyeh, 2023 COA 4, ¶ 9. A

19 court abuses its discretion if its decision is manifestly arbitrary,

unreasonable, or unfair, or if it misapplied the law. Id.

2. The Trial Court’s Best Interests Findings

¶ 46 In its oral parenting time order, the trial court made the

following findings:

• Each parent believed he or she was better equipped to meet

S.P.’s best interests.

• Each parent would continue to allow and foster the

relationship between S.P. and the other parent.

• There were no credible reports of domestic violence.

• S.P. appeared to be well cared for and comfortable in both

parents’ homes.

• Mother had criticized or made disparaging remarks about

father to S.P. and had not acknowledged, apologized for, or

changed her behavior.

• Father had “minimiz[ed]” mother’s home, disparaged

mother’s current partner, and criticized mother to S.P.;

however, father had apologized for his comments and

recognized that they were unhelpful and unfair.

20 • Since the separation, both parents had been “sharing 50/50

responsibility” for S.P. and allowed her to communicate via

video call with the other parent and family members.

• Both parents had been “involved with [S.P.’s] schooling

[and] the establishment of her values.” They both

“appear[ed] to be conscientious to her needs and the ability

to . . . encourage mutual support.”

• Father had been responsible for taking S.P. to the doctor

and dentist and paying for and enrolling S.P. in preschool.

• Father volunteered at S.P.’s school.

• Mother did not testify or offer other evidence regarding her

current involvement in S.P.’s health or schooling.

• Most of the “real decision making and caretaking” was

father’s responsibility.

¶ 47 Based on these findings, the trial court determined that it was

in S.P.’s best interests to live primarily with father in North

Carolina.

3. Analysis

¶ 48 We disagree with mother’s premise that the trial court was

required to explicitly consider whether the harm likely to be caused

21 to S.P. by moving to North Carolina was outweighed by the

advantage of the move. While a court is required to make that

consideration in determining whether to modify a “custody decree or

a decree allocating decision-making responsibility,” it isn’t required

to do so in an initial allocation of parental responsibilities (APR).

§ 14-10-131(2), C.R.S. 2024. Compare § 14-10-131(2)(c) (“The court

shall not modify a custody decree . . . unless . . . the harm likely to

be caused by a change of environment is outweighed by the

advantage of a change to the child.”), with § 14-10-124(1.5)(a)

(requiring only consideration of factors such as the child’s

“adjustment to [the] home, school, and community” and “[t]he

physical proximity of the parties to each other” in initial APR).

¶ 49 We aren’t persuaded otherwise by In re Marriage of Garst, on

which mother relies, because that case concerned a modification of

an existing APR order as a result of one parent’s relocation. 955

P.2d 1056, 1059 (Colo. App. 1998). At most, Garst stands for the

proposition that the best interests standard that applies in initial

APR determinations also applies to modifications. It doesn’t stand

for the principle that a factor specific to modifications must be

considered in an initial APR.

22 ¶ 50 Moreover, the record reflects that the court considered

evidence of the best interests factors pertaining to father’s planned

move: the physical proximity of the parents to one another; S.P.’s

attachment to her home, school, and community; and the presence

or absence of a community (extended family and friends) for S.P. in

each location. See § 14-10-124(1.5)(a)(IV), (VIII). The trial court

explicitly referenced testimony from each of the parties and their

family members about (1) S.P.’s community and family members in

Colorado versus North Carolina; (2) S.P.’s adjustment to changing

preschools in Colorado; and (3) S.P.’s educational options in North

¶ 51 We acknowledge that the court’s findings on these factors were

thin: it noted only that, because of S.P.’s age, she would be

transitioning from preschool to kindergarten no matter where she

lived. However, the court did not need to make findings on every

statutorily enumerated factor so long as (1) there is “some

indication in the record that the trial court considered” the

pertinent factors, Garst, 955 P.2d at 1058; and (2) the court made

sufficient findings to explain its parenting time allocation and its

determination that allowing father to be the primary parent was in

23 S.P.’s best interests, see In re Marriage of Collins, 2023 COA 116M,

¶ 12.

¶ 52 Ultimately, while the court considered the evidence relevant to

the move, it concluded that S.P.’s best interests were served by

moving with father to North Carolina because father was “in a

position of primary caregiver/caretaker,” and “while [m]other has

engaged well and also co-parented, much of the real decision-

making and caretaking has fallen on [father].” These findings are

supported by the record, and we may not reweigh the court’s

resolution of conflicting evidence. See id. Accordingly, we perceive

no abuse of discretion in the court’s consideration and resolution of

the best interests factors.

B. Domestic Violence Allegations

¶ 53 Mother also contends that the trial court erred by not finding

that father committed an act of domestic violence. And she argues

that, because domestic violence occurred, the trial court erred by

not considering additional best interests factors under section 14-

10-124(4). We again discern no reversible error.

24 1. Legal Principles and Standard of Review

¶ 54 Domestic violence “means an act of violence or a threatened

act of violence upon a person with whom the actor is or has been

involved in an intimate relationship.” § 14-10-124(1.3)(b).

¶ 55 We review a trial court’s factual findings for clear error. Gagne

v. Gagne, 2019 COA 42, ¶ 17. “A court’s finding of fact is clearly

erroneous if there is no support for it in the record.” Id. We review

the trial court’s application of the law de novo. Id.

¶ 56 An error is only reversible if it affects the substantial rights of

the parties. C.R.C.P. 61. An error affects a party’s substantial

rights if “it can be said with fair assurance that the error

substantially influenced the outcome of the case or impaired the

basic fairness of the trial itself.” Bly v. Story, 241 P.3d 529, 535

(Colo. 2010) (quoting Banek v. Thomas, 733 P.2d 1171, 1178 (Colo.

1986)).

2. Physical Domestic Violence Incident

¶ 57 At the hearing, mother testified that, in September 2022, she

and father agreed that she could retrieve her property from father’s

home while he was away with S.P. However, father returned home

with S.P. while mother was still packing. Father took S.P., who was

25 upset that she couldn’t go outside, to an upstairs bedroom. When

mother went upstairs, father “went crazy on [mother]” and told her

to leave. Instead, mother, who said she could hear S.P. screaming,

tried to enter the bedroom while father blocked the door. Mother

opened the door, causing father to trip, and he became “really

upset.” Father then grabbed mother’s arms, “move[d]” her next to

the stairs, and yelled and swore at her, causing her to lose her

balance and fall down the stairs. Mother testified that father

bruised her when he moved her to the stairs, and she introduced an

exhibit showing the bruises. Father was not examined about the

incident.

¶ 58 In its oral order, the trial court found that, while it was

concerned about the incident and did not condone father’s

behavior, mother was “trying to gain entrance” into a part of the

home in which she was no longer living, and father’s actions “[were]

simply to move her from the [bedroom] door.” The court also noted

that mother herself described the fall as losing her balance. Finally,

the court observed that the police were not called and that no

charges were filed related to the incident. It concluded that there

was no “substantial evidence” of domestic violence.

26 ¶ 59 Even assuming that the court erred by not characterizing the

incident as domestic violence, we aren’t persuaded that the error

affected mother’s substantial rights.

¶ 60 If the court had found domestic violence, it would have been

required to (1) consider the statutory “best interests” factors in light

of that finding; (2) consider, “as the primary concern, the safety and

well-being of the child and the abused party”; and (3) “consider

conditions on parenting time that ensure the safety of the child and

abused party.” § 14-10-124(4)(b), (d), (e). Such conditions may

include, but are not limited to

(I) [a]n order limiting contact between the parties . . . ;

(II) [a]n order that requires the exchange of the child for parenting time to occur in a protected setting determined by the court;

(III) [a]n order for supervised parenting time;

(IV) [a]n order restricting overnight parenting time;

(V) [a]n order that restricts the party who has committed domestic violence . . . from possessing or consuming alcohol or controlled substances during parenting time . . . ;

(VI) [a]n order directing that the address of the child or of any party remain confidential; [and]

27 (VII) [a]n order that imposes any other condition on one or more parties that the court determines is necessary to protect the child, another party, or any other family or household member of a party.

§ 14-10-124(4)(e).

¶ 61 Mother doesn’t explain, and we can’t discern, how a finding

characterizing the incident as domestic violence would have

substantially influenced the outcome of the parenting time order.

While we, like the trial court, recognize the seriousness of domestic

violence, the legislature has deemed it a relevant, but not

necessarily dispositive factor in determining parenting time.

Rather, a court must consider any finding of domestic violence

alongside the myriad other statutory factors when determining the

allocation of parenting time in the child’s best interests. See Yates,

148 P.3d at 308 (noting that “child abuse or spousal abuse” are

“but two, albeit important, factors in assessing the best interests of

the child”). Here, the trial court awarded primary parenting time to

father despite its findings and concerns about the physical incident

by the stairs. Mother doesn’t explain how a finding that this

incident constituted domestic violence would have overcome the

trial court’s other findings that it was in S.P.’s best interests to live

28 primarily with father because father had been S.P.’s “primary

caregiver [and] caretaker.”

¶ 62 Moreover, mother doesn’t identify any statutorily enumerated

condition that she requested but the court declined to impose

because it didn’t find domestic violence. See § 14-10-124(4)(e)

(listing potential parenting plan provisions if the court finds

domestic violence). For example, mother didn’t request at trial that

father’s parenting time be supervised or that he not receive

overnight time, indicating that mother didn’t think such measures

were necessary for S.P.’s safety. Additionally, mother’s proposed

parenting plan — that she be the primary parent with extended

parenting time permitted for father during the summers, along with

some school year time — would have generated roughly the same

amount of contact between father and mother as the parenting plan

entered by the court.

¶ 63 On this record, any error by the trial court in failing to make a

finding of domestic violence isn’t reversible.

3. Nonphysical Domestic Abuse

¶ 64 Mother also argues that the trial court erred by “ignoring” the

evidence she presented, including expert testimony, of incidents of

29 nonphysical domestic abuse. But the record reflects that the trial

court considered this evidence and found that mother’s claims that

(1) father controlled her financially; (2) father controlled her

physical movements; and (3) father attempted to isolate himself,

mother, and S.P. from friends and family weren’t credible and were

contradicted by other evidence.

¶ 65 As for mother’s expert, the court observed that “errors” in the

expert’s report emerged on cross-examination and that the report

had limited persuasive value because the expert didn’t observe any

of the parties and spoke only with mother and heard “her side”; the

expert didn’t speak with father or S.P. It is the trial court’s

responsibility to judge witness credibility, determine the weight and

probative value of the evidence, and resolve evidentiary conflicts,

and we may not disturb its findings in this regard. Hatton, 160

P.3d at 330; Yates, 148 P.3d at 318.4

4 Because of our conclusion, we need not address whether the

nonphysical incidents described by mother can be classified as “domestic violence” under section 14-10-124(1.3)(b), C.R.S. 2024.

30 V. Attorney Fees Under Section 14-10-128.5

¶ 66 Mother argues that the trial court erred by granting father

attorney fees under section 14-10-128.5. We agree in part.

A. Legal Principles and Standard of Review

¶ 67 Section 14-10-128.5(2) provides, in relevant part, as follows:

In circumstances in which a party moves for a de novo hearing by the court, if the court, in its discretion based on the pleadings filed, grants the motion and the court substantially upholds the decision of the arbitrator, the party that requested the de novo hearing shall be ordered to pay the fees and costs of the other party and the fees of the arbitrator incurred in responding to the application or motion unless the court finds that it would be manifestly unjust.

¶ 68 “Interpretation of a statute is a question of law that we review

de novo.” In re Marriage of DeZalia, 151 P.3d 647, 648 (Colo. App.

2006). “In construing a statute, we strive to give effect to the intent

of the legislature and adopt the statutory construction that best

effectuates the purposes of the legislative scheme, looking first to

the plain language of the statute.” In re Marriage of Ciesluk, 113

P.3d 135, 141 (Colo. 2005). If the meaning of a statute is clear and

unambiguous, courts need not resort to interpretive rules to divine

31 the General Assembly’s intent. In re Marriage of Schmitt, 89 P.3d

510, 511 (Colo. App. 2004).

B. Meaning of “Substantially Uphold”

¶ 69 Mother first argues that the trial court did not substantially

uphold the arbitrator’s award because, even though the result was

similar, “the reasoning behind the result was substantially

different.” We disagree.

¶ 70 The arbitrator ordered that S.P. would primarily reside with

father in North Carolina and mother would have parenting time

during the majority of school vacations, along with certain

alternating holidays during the school year. The trial court

substantially upheld that order because it also named father the

primary residential parent, giving mother parenting time during the

majority of school vacations along with some weekend parenting

time during the school year. See Black’s Law Dictionary 1734-35

(12th ed. 2024) (defining “substantial” as “[c]ontaining the essence

of a thing; conveying the right idea even if not the exact details”).

¶ 71 We acknowledge that the trial court’s reasoning for allocating

parenting time primarily to father differed from the arbitrator’s

reasoning. But nothing in the statute distinguishes the result from

32 the reasoning or suggests that both must be the same to trigger a

fee award.

¶ 72 In a similar vein, mother argues that, because her reasons for

requesting a de novo hearing were not frivolous, the statute

punishes her for raising a legitimate concern with the arbitrator’s

decision. However, the language of the statute doesn’t provide any

exception to the mandatory fee award simply because the

challenging party raises valid concerns with the arbitrator’s

decision or reasoning. We can’t read requirements into the statute

that don’t exist. See Hobbs v. City of Salida, 2024 COA 25, ¶ 20

(We can’t “rewrite a statute to achieve a different result than that

dictated by the legislature’s selected language.”).

C. Scope of Attorney Fees Awarded

¶ 73 Mother next contends that the trial court erred by (1) awarding

father fees and costs incurred before mother filed her motion for a

de novo hearing and (2) awarding father fees and costs incurred in

preparing for and attending the hearing. We agree with the first

contention but reject the second.

33 1. Fees Incurred Before the Motion

¶ 74 The plain language of section 14-10-128.5(2) requires mother

to pay father’s fees incurred in “responding to the application or

motion” for a de novo hearing. Mother filed her motion for a de

novo hearing on October 31, 2022. Father’s request for attorney

fees contained billing entries for fees incurred from September 26,

2022, through February 9, 2023. The court awarded father all of

his requested fees. But any fees or costs incurred before mother

filed the motion for a de novo hearing cannot logically be incurred

in responding to that motion. Accordingly, father is not entitled to

recover those fees and costs. See § 14-10-128.5. The court

therefore erred to the extent it awarded father any fees incurred

before mother filed the motion for a de novo hearing.

2. Fees Incurred in Preparing for and Attending the De Novo Hearing

¶ 75 We reject mother’s argument that the statute’s plain language

limits the recoverable fees to those incurred in filing the objection to

the motion for the de novo hearing and attending the case

management conference where the trial court determined whether

to grant it. Rather, fees incurred in “responding” to a motion for a

34 de novo hearing necessarily include fees incurred in preparing for

and attending the hearing once the motion is granted.

¶ 76 The surrounding statutory language supports this

interpretation. If the legislature were concerned only about the fees

incurred in objecting to a motion for a de novo hearing (and not the

fees incurred after the hearing was granted), it would have made

such fees recoverable even if the court simply denied the motion

and declined to hold a hearing, thereby leaving the arbitrator’s

award in place. By making the fees recoverable only if the court

holds a hearing and substantially upholds the arbitration award,

the legislature signaled its intent to award not only the fees

incurred in objecting to the motion but also the fees incurred in

connection with the hearing itself.

D. “Manifestly Unjust”

¶ 77 Mother also argues that, given the disparity between her

income and father’s income, the trial court should have denied the

otherwise-mandatory fee award as manifestly unjust. See § 14-10-

128.5(2).

¶ 78 A determination that awarding fees under the statute would be

“manifestly unjust” is an equitable decision that we review for an

35 abuse of discretion. Cf. In re Marriage of Rodrick, 176 P.3d 806,

815-16 (Colo. App. 2007) (noting that a trial court has broad

discretion to award attorney fees under section 14-10-119, C.R.S.

2024); In re Marriage of Hein, 253 P.3d 636, 637 (Colo. App. 2010)

(noting that the trial court has discretion to determine whether the

presumptive amount of child support is “inequitable, unjust, or

inappropriate,” thereby justifying a deviation from the child support

guidelines).

¶ 79 The trial court’s attorney fees order granted father all his

requested fees without addressing mother’s contention that

awarding fees would be manifestly unjust. Thus, we are unable to

determine the basis of its decision. See In re Marriage of Rozzi, 190

P.3d 815, 822 (Colo. App. 2008) (A trial court order must contain

sufficient findings of fact and conclusions of law to enable an

appellate court to “determine the grounds upon which it rendered

its decision.”). On remand, the court should consider whether the

award of fees for the proceedings below is manifestly unjust in light

of the parties’ economic circumstances at the time of remand, cf. In

re Marriage of Wells, 850 P.2d 694, 696 (Colo. 1993) (concluding

that a court must consider the parties’ economic circumstances at

36 the time of remand when dividing property); In re Marriage of

Martin, 2021 COA 101, ¶ 42 (directing trial court to consider

economic circumstances at the time of remand when determining

appellate attorney fees under section 14-10-119), and make

sufficient findings to enable a reviewing court to determine the

basis of its order, see Rozzi, 190 P.3d at 822.5 While a trial court

may conclude that an attorney fee award under section 14-10-

128.5 is manifestly unjust based on the parties’ economic

circumstances, that determination is not the same as the

determination about whether to award attorney fees under section

14-10-119.

VI. Child Support

¶ 80 Mother contends that the court erred by entering father’s

proposed child support order without evidence as to (1) the number

5 To the extent mother argues that the fee award was also unjust

because she had a legitimate complaint regarding the arbitrator’s reasoning, we decline to address this argument because it isn’t preserved. Berra v. Springer & Steinberg, P.C., 251 P.3d 567, 570 (Colo. App. 2010). While we direct the trial court to consider the parties’ economic circumstances on remand, we express no opinion about what other factors a court may consider when determining whether a fee award under section 14-10-128.5, C.R.S. 2024, is “manifestly unjust.”

37 of overnights S.P. would have with each parent and (2) father’s

expenses for work-related child care and health insurance. We

agree.

¶ 81 Initially, we disagree with father that mother failed to preserve

this contention for review. Mother’s claim didn’t arise until the

court entered father’s proposed child support order, and a party

isn’t required to file a post-trial motion in order to appeal. See

C.R.C.P. 59(b). We also reject father’s suggestion, to the extent he

makes it, that mother waived this contention by failing to present

evidence on this issue during the de novo hearing. Although the

parties apparently agreed in advance to leave the issue of child

support open pending the result of the de novo hearing, the subject

of the hearing was strictly limited to parenting time and decision-

making.

¶ 82 The amount of child support due from one parent to the other

is calculated based on the incomes of the parents and, as relevant

here, the number of overnights with each parent and expenditures

paid directly by each parent for work-related child care costs and

the child’s portion of health insurance premiums. § 14-10-115(8)-

(10), C.R.S. 2024.

38 ¶ 83 Father submitted a proposed, unsworn child support

worksheet indicating that he had 273 overnights or more with S.P.

per year; he paid $1,004 per month in work-related child care; and

S.P.’s portion of the health insurance premium was $215 per

month. This resulted in a child support payment of $1,043.53 per

month from mother to father in “current” child support and a total

of $8,348.24 in child support arrears. Father used these amounts

in his proposed support order.

¶ 84 When the court adopted father’s proposed order, it implicitly

adopted his overnight and expense figures as its factual findings.

Though we defer to a trial court’s factual findings if they are

supported by any evidence in the record, In re Marriage of Young,

2021 COA 96, ¶ 8, we see no such evidence here. While overnights

are sometimes calculable from the face of a parenting plan, the

court’s parenting plan in this case was based on S.P.’s school

calendar. Without that calendar, we can’t discern whether the

number of overnights was correct. And as far as we can tell, there

isn’t any evidence supporting father’s expenses.

¶ 85 Accordingly, we reverse the trial court’s support order and

remand the case to the trial court to recalculate child support. On

39 remand, the trial court may take additional evidence as necessary

to support its calculation. See In re Marriage of Corak, 2014 COA

147, ¶ 21 (noting that the trial court has discretion to receive

additional evidence on remand).

VII. Miscellaneous Contentions

¶ 86 Finally, mother contends that the trial court erred by

(1) checking a box on the decree of dissolution of marriage

indicating that mother was represented by counsel even though her

counsel withdrew shortly after the de novo hearing and (2) failing to

notify mother of the October 2023 orders. We can’t discern how the

“check box” error would result in prejudice to mother. While failure

to receive notice of a court’s orders could certainly prejudice a

party’s appellate rights, mother timely appealed the orders. And

mother doesn’t otherwise explain how either of these purported

errors prejudiced her. Accordingly, we conclude that the errors, if

any, aren’t reversible because they didn’t affect mother’s substantial

rights. See C.R.C.P. 61.

VIII. Appellate Attorney Fees

¶ 87 Mother requests her appellate attorney fees under section 14-

10-119 because of the disparity in the parties’ incomes. Father

40 opposes her request, arguing that mother “should be financially

secure” with her income, spousal maintenance payments, and

money she received from the property division.

¶ 88 Father requests his appellate attorney fees under both section

14-10-128.5 and section 14-10-119. Regarding section 14-10-

128.5, unless such an award of fees would be manifestly unjust, we

agree that father is entitled to the fees incurred in successfully

defending the trial court’s parenting time orders on appeal. See

Levy-Wegrzyn v. Ediger, 899 P.2d 230, 233 (Colo. App. 1994) (When

“a party, pursuant to a statute, has been appropriately awarded

attorney fees for a stage of the proceeding prior to the appeal, that

party will be entitled to reasonable attorney fees for defending the

appeal.”). Mother opposes father’s request, arguing that an award

of appellate fees to father would be manifestly unjust due to the

parties’ disparate financial circumstances.

¶ 89 Because the district court is in a better position than we are to

make findings about the parties’ financial circumstances, we direct

the court to consider both parties’ appellate fee requests on remand

41 based on the parties’ relative financial circumstances at that time.6

See C.A.R. 39.1; Martin, ¶ 42.

¶ 90 We deny father’s request for appellate attorney fees under

section 14-10-119 because father provides no argument about the

relative financial resources of both parties to support his request.

See § 14-10-119 (providing that “[t]he court from time to time, after

considering the financial resources of both parties” may order one

party to pay the attorney fees of the other) (emphasis added).

Instead, father asserts that mother’s “continued pursuant [sic] of

litigation and her refusals to accept the carefully considered and

reasoned judgments” of the arbitrator and trial court have imposed

“burdens and expenses” on him. Essentially, father requests that

he be awarded his fees as a punishment for mother’s pursuit of

these appeals. Although mother’s conduct may be considered to

the extent that “it might affect the reasonableness and necessity of

attorney fees” she incurred, an award of fees under section 14-10-

6 Because neither party raises this issue, we express no opinion

about the interaction of competing attorney fee requests under section 14-10-128.5 and section 14-10-119, C.R.S. 2024.

42 119 “should not be used as punishment against a party.” C.J.S., 37

P.3d at 481.

IX. Disposition

¶ 91 The judgment is affirmed in part and reversed in part, and the

case is remanded for proceedings consistent with this opinion.

JUDGE HARRIS and JUDGE TAUBMAN concur.