Parental Resp Conc ALL

Opinion

23CA1437 Parental Resp Conc ALL 08-01-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1437

Weld County District Court No. 19DR30512

Honorable Kimberly B. Schutt, Judge

In re the Parental Responsibilities Concerning A.L.L., a Child,

and Concerning Gillean Leslie,

Petitioner,

and

Keegan Guiliano,

Appellant,

and Janette Widhalm and Stephen Widhalm,

Intervenors-Appellees.

ORDER AFFIRMED AND CASE

REMANDED WITH DIRECTIONS

Division V

Opinion by JUDGE BROWN

Harris and Lum, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced August 1, 2024

Johnson Law Group, LLC, Brent E. Mecham, Denver, Colorado, for Appellant

Antommaria & Rodionov LLC, Milena Rodionov, Greeley, Colorado, for

Intervenors-Appellees

1

¶ 1 In this proceeding between Keegan Guiliano (father) and

maternal grandparents Janette and Stephen Widhalm (collectively,

grandparents), father appeals the district court’s order granting

grandparents’ motion concerning grandparent visitation disputes

and denying his motion to transfer jurisdiction to Tennessee. We

affirm and remand for the district court to determine and award

grandparents their reasonable attorney fees.

I. Relevant Facts

¶ 2 Gillean Leslie (mother) and father are the parents of A.L.L.

(child), who was born in Colorado on September 20, 2018.

¶ 3 In May 2021, the district court approved a stipulated

parenting plan for the child. Under the plan, mother was named

the child’s primary residential parent in Colorado and father was

allocated parenting time in Tennessee, where he was living, as well

as in Colorado.

¶ 4 A few months later, the district court restricted mother’s

parenting time, finding that her unchecked mental health issues

put the child’s well-being at risk. Then, on the basis that he was

effectively the child’s sole residential parent, father filed a motion to

relocate the child to Tennessee and to modify parenting time

2

accordingly (relocation motion). The court set the matter for an

evidentiary hearing.

¶ 5 Meanwhile, grandparents, who reside in Colorado, moved for

and were granted visitation rights with the child under section 19-

1-117, C.R.S. 2022 (repealed and relocated to section 14-10-124.4,

C.R.S. 2023, effective Aug. 7, 2023).

¶ 6 In October 2022, all parties reached a stipulation, which

partly resolved father’s relocation motion. In it, they agreed that

(1) the child would live with father in Tennessee; (2) mother would

have summer parenting time in Colorado; (3) if mother completed

her sentence to community corrections (ComCor), she could

exercise parenting time in Tennessee; (4) if mother violated her

ComCor sentence, grandparents would have visitation with the

child for three weeks in a calendar year; and (5) the stipulation

would supersede any grandparent visitation schedule previously

ordered. In November, following a hearing on the remaining

contested issues, the district court entered an order stating that if

mother violated her ComCor sentence or was otherwise

“unavailable,” grandparents could exercise her parenting time

3

during the 2022 Christmas break and 2023 spring break (visitation

order).

¶ 7 In early December, grandparents requested a forthwith status

conference to address mother’s recent termination from ComCor

and resentencing to the Department of Corrections (DOC) and

father’s supposed refusal to allow them visitation with the child

during the upcoming Christmas break. On December 8, the district

court issued an order reminding father that he was obligated to

follow the visitation order in good faith. The court also made clear

that any noncompliance with the visitation order could result in

sanctions. Later that evening, grandfather re-sent father the

itinerary for the Christmas visitation.

¶ 8 On December 9, father confirmed that he had received the

itinerary and assured grandfather that a “proposal” was

forthcoming. Yet on that same day, father verified and “directed the

filing” of a petition to domesticate the visitation order and for an ex

parte restraining order against grandparents in a Tennessee court.

The petition was filed a week later, on December 16, the day before

grandparents were to have Christmas visitation.

4

¶ 9 Generally citing Tennessee’s version of the Uniform Child

Custody Jurisdiction and Enforcement Act (UCCJEA), father alleged

that the child “would suffer immediate and irreparable harm” if the

visitation order took effect. He expressed confusion over what

grandparents’ visitation rights were under the visitation order since

mother was incarcerated. And he alleged that grandparents had

previously allowed mother to have unsupervised visitation with the

child and told the child that they would visit mother in the DOC

over Christmas vacation.

¶ 10 The Tennessee court did not rule on father’s request to

domesticate the visitation order but issued an ex parte temporary

restraining order (TRO) prohibiting grandparents from contacting or

removing the child from father’s “care, custody, and control,”

“pending further orders of this [c]ourt.” Grandparents traveled to

Tennessee and appeared through counsel in the Tennessee

proceeding. Because of the Tennessee TRO, grandparents did not

have visitation with the child during Christmas break.

¶ 11 In January 2023, grandparents filed a motion concerning

grandparent visitation disputes under section 19-1-117.5(2), C.R.S.

2022 (repealed and relocated to section 14-10-124.5, C.R.S. 2023,

5

effective Aug. 7, 2023). Sometime in March, the district court held

a UCCJEA conference with the Tennessee court that issued the

TRO; the district court maintained that Colorado had exclusive,

continuing jurisdiction over the child. At the end of March, the

Tennessee court dissolved the TRO and dismissed father’s petition

for “lack of jurisdiction.”

1

¶ 12 Grandparents did not have their spring break visitation with

the child before the TRO was dismissed. They amended their

motion concerning grandparent visitation disputes, alleging that

father violated the visitation order by not allowing them visitation

with the child during the 2023 spring break.

¶ 13 Meanwhile, father filed a motion under section 14-13-207,

C.R.S. 2023, asking the district court to relinquish jurisdiction to

Tennessee on the basis that Tennessee was a more appropriate

forum to address all issues concerning the child.

1

Although it appears that the exhibit containing the Tennessee

court’s order was not admitted during the hearing on grandparents’

motion concerning grandparent visitation disputes and father’s

motion to transfer jurisdiction to Tennessee, we take judicial notice

of it as part of the court record in a related proceeding. See CRE

201; Harriman v. Cabela’s Inc., 2016 COA 43, ¶ 64.

6

¶ 14 In June 2023, the district court held an evidentiary hearing on

grandparents’ motion concerning grandparent visitation disputes

and father’s motion to transfer jurisdiction to Tennessee. The court

found father noncompliant with the visitation order:

[I]t is evident to the [c]ourt that [f]ather did not

comply in good faith with the [c]ourt’s orders,

and had no intention of complying with those

orders given the undisputed fact he had signed

the verification document for the [restraining]

order in Tennessee on December 9, 2022 . . .

at the same time he was stringing along the

[grandparents] in their emails about travel

arrangements for the December visit.

The court found that father presented no evidence supporting the

allegations of child endangerment he made to obtain the Tennessee

TRO. And it found father’s claim that he did not think the Colorado

court could address his concerns not credible given the history of

the case. The court ordered that grandparents would have makeup

parenting time during the summer of 2023, directed father to post a

$1,000 cash bond to cover any future violations of its visitation

orders, and awarded grandparents their Colorado attorney fees

incurred to enforce the visitation order. See § 19-1-117.5(2)(c)-(d),

(4), C.R.S. 2022.

7

¶ 15 The court also denied father’s motion to transfer jurisdiction to

Tennessee. It reasoned that Colorado retained exclusive,

continuing jurisdiction under the UCCJEA because mother still

resides in Colorado and the child still has a significant connection

to the state. See § 14-13-202(1), C.R.S. 2023. The court also

determined that Colorado was not an inconvenient forum under

section 14-13-207.

II. Compliance with C.A.R. 28 and 32

¶ 16 To begin, we observe that father’s opening brief does not

comply with the appellate rules. Among other things, the rules

require that father’s brief be double-spaced, see C.A.R. 32(a)(3), and

that father provide record citations to support his recitation of facts

in his statement of the case, see C.A.R. 28(a)(5) (Appellant’s opening

brief must contain “a concise statement identifying the nature of

the case, the relevant facts and procedural history, and the ruling,

judgment, or order presented for review, with appropriate references

to the record.”).

¶ 17 “The appellate rules are not mere technicalities, but are

designed to facilitate appellate review.” Cikraji v. Snowberger, 2015

COA 66, ¶ 10. A noncompliant opening brief may be stricken, and

8

the appeal dismissed. See C.A.R. 38(a); see also Bruce v. City of

Colorado Springs, 252 P.3d 30, 32 (Colo. App. 2010).

¶ 18 Still, because we can understand the issues on appeal, we

exercise our discretion to consider father’s contentions. See Bruce,

252 P.3d at 32; but see Castillo v. Koppes-Conway, 148 P.3d 289,

291 (Colo. App. 2006) (“In light of [the appellant’s] failures and

violations [of C.A.R. 28], we will not review the [district] court’s

order.”). That said, we will not develop father’s arguments for him

or scour the record for supporting facts. See Minshall v. Johnston,

2018 COA 44, ¶ 21; see also Cikraji, ¶ 10. We warn father that any

future noncompliance with C.A.R. 28 or other applicable appellate

rules may result in our striking the offending brief or imposing

other appropriate sanctions, including dismissal. See C.A.R. 38(a);

see also Bruce, 252 P.3d at 32.

III. Grandparent Visitation Disputes

¶ 19 Father contends that the district court erred by granting

grandparents’ motion concerning grandparent visitation disputes.

We disagree.

9

A. Governing Law

¶ 20 If the district court finds after a hearing that a person with

parental responsibilities has not complied with a grandparent

visitation order or schedule, it may impose remedial orders. See

§ 19-1-117.5(2), C.R.S. 2022; In re Adoption of C.A., 137 P.3d 318,

324 (Colo. 2006). The district court has broad discretion to make or

modify orders to resolve disputes concerning grandparent visitation.

See § 14-10-129(1)(a), C.R.S. 2023; § 19-1-117.5(2), C.R.S. 2022; cf.

In re Marriage of Dean, 2017 COA 51, ¶ 19 (“To resolve disputes

concerning parenting time, courts have broad authority to make or

modify parenting time orders that are in the best interests of the

children.”). We review the district court’s findings of fact for clear

error and its legal conclusions de novo. In re Marriage of de Koning,

2016 CO 2, ¶ 17.

B. Discussion

¶ 21 Father contends that the district court failed to give full faith

and credit to the Tennessee TRO, which he argues relieved him of

his obligation to comply with the visitation order. We reject this

contention.

10

¶ 22 Because the Tennessee TRO qualifies as a “child-custody

determination,” we look to our provisions of the UCCJEA. See § 14-

13-102(3), C.R.S. 2023; see also People in Interest of S.A.G., 2021

CO 38, ¶ 24 (section 14-13-102(3) defines “child-custody

determination” very broadly); People in Interest of M.C., 94 P.3d

1220, 1224 (Colo. App. 2004) (a temporary restraining order

constitutes a “child-custody determination” within the meaning of

the UCCJEA); see also § 13-14-110(1), C.R.S. 2023 (a “custody

order” is excluded from the definition of a “foreign protection

order”).

¶ 23 “The primary aim of the UCCJEA is to prevent competing and

conflicting custody orders by courts in different jurisdictions” and

to “avoid jurisdictional competition over child-custody matters in an

increasingly mobile society.” People in Interest of M.M.V., 2020 COA

94, ¶ 17. As relevant here, section 14-13-303(1), C.R.S. 2023,

requires Colorado courts to recognize and enforce a child-custody

determination of a court of another state if the latter court exercised

jurisdiction in substantial conformity with or under factual

circumstances satisfying the jurisdictional requirements of the

UCCJEA.

11

¶ 24 As best we understand, father contends that when the district

court found that he acted in bad faith and failed to comply with the

visitation order, it necessarily failed to recognize and enforce the

Tennessee TRO. Father argues he was simply “complying with [the]

valid and superior” Tennessee TRO when he denied grandparents

their court-ordered visitation, so he should not be penalized for

violating the Colorado visitation order. The district court was not

persuaded by father’s arguments, and we are not either.

¶ 25 As an initial matter, nothing in the UCCJEA makes the

Tennessee TRO “superior” to the Colorado visitation order, and

father cites no authority supporting this claim. On the contrary,

the UCCJEA is designed to favor the court with exclusive,

continuing jurisdiction. Even assuming the Tennessee court had

temporary, emergency jurisdiction under section 14-13-204, C.R.S.

2023 — which we do not decide

2

— Colorado maintained exclusive,

continuing jurisdiction under section 14-13-202. But the

2

The relevant Tennessee provision provides that “[a] court of this

state has temporary emergency jurisdiction if the child is present in

this state and the child has been abandoned or it is necessary in an

emergency to protect the child because the child . . . is subjected to

or threatened with mistreatment or abuse.” Tenn. Code Ann. § 36-

6-219(a) (West 2023).

12

Tennessee court was only authorized to issue a temporary

emergency order lasting long enough for the petitioning party “to

obtain an order from the state having jurisdiction.” § 14-13-204(3).

The Tennessee court was required to specify in the order “a period

that the court considers adequate” to allow the petitioner to obtain

relief from the court with jurisdiction. Id. And the Tennessee court

was required to “immediately communicate” with the Colorado

court upon being informed that child custody proceedings were

pending here. § 14-13-204(4).

¶ 26 The Tennessee TRO does not direct father to seek relief in

Colorado or detail how much time would be adequate for him to do

so. The record also does not reflect that the Tennessee court

immediately communicated with the Colorado court. Indeed, it

does not appear that the courts communicated about jurisdiction

until more than two months after the TRO issued. Even setting

these deficiencies aside, the Tennessee TRO was not “superior” to

the Colorado visitation order under the UCCJEA.

¶ 27 In any event, the district court never declined to recognize or

enforce the Tennessee TRO as required by section 14-13-303(1).

The court did not, for example, compel father to deliver the child to

13

grandparents for visitation while the TRO remained in place; in fact,

the TRO was the reason grandparents were not able to exercise

visitation during Christmas or Spring Break. Instead, the district

court found that father never intended to comply with the visitation

order and used the Tennessee proceedings to avoid having to

comply with that order. Both things can be true: the TRO —

obtained ex parte and never tested on the merits — could have been

a valid and enforceable temporary order, and father could have

initiated the TRO proceedings in bad faith for the purpose of

depriving grandparents of their court-ordered visitation.

¶ 28 The record supports the district court’s findings regarding

father’s conduct and credibility. It is undisputed that father did not

allow the child to spend time with grandparents over Christmas.

Father signed the Tennessee petition one day after the district court

entered its December 2022 order requiring him to comply in good

faith with the visitation order while simultaneously purporting to

coordinate with grandfather on the child’s travel to Colorado for

Christmas visitation. Then father filed the petition and obtained

the ex parte TRO one day before grandparents’ visitation was

supposed to start. And even though the district court had been

14

deeply involved in the underlying controversy since its inception,

father went to the Tennessee court professing not to understand

how the Colorado visitation order worked and seeking a restraining

order based in part on alleged violations of the visitation order.

¶ 29 The district court also found that father was not credible when

he said he did not think it could address his concerns about the

child because the case was “administratively closed.” As the court

noted, father had filed a motion to restrict mother’s parenting time

in June 2021, which was granted, even though the case had been

administratively closed at that time too. Even if father believed

obtaining the Tennessee TRO was a faster option, father never filed

a motion seeking a similar order from the district court. And at the

hearing before the district court, father offered no evidence to

support the allegations he made to obtain the TRO — namely, that

grandparents had or would endanger the child during the 2022

Christmas break.

¶ 30 In the end, we conclude that the district court did not fail to

give the Tennessee TRO full faith and credit and that its findings

that father violated the visitation order enjoy record support. Thus,

15

the district court did not err when it granted grandparents’ motion

concerning grandparent visitation disputes.

¶ 31 Father also contends that if we reverse the district court’s

determination that he violated the visitation order, we should also

reverse its remedial orders, including the requirements that he post

a bond to secure his compliance with visitation orders and that he

pay grandparents’ attorney fees. He makes no argument that these

remedial orders are otherwise improper. Given our disposition, we

need not address this contention.

IV. Inconvenient Forum

¶ 32 Next, father contends that the district court abused its

discretion when it declined to transfer jurisdiction to Tennessee.

We are not persuaded.

¶ 33 Under the UCCJEA, the court that entered the initial child-

custody determination retains exclusive, continuing jurisdiction

over that matter until (a) the child and parents lack a significant

connection with the issuing state and substantial evidence is no

longer available there, or (b) the child and parents do not presently

reside in the issuing state. § 14-13-202(1)(a)-(b); People in Interest

of M.S., 2017 COA 60, ¶ 15. The court with exclusive, continuing

16

jurisdiction may also relinquish its jurisdiction to another state

when it determines that the other state would be a more convenient

forum. § 14-13-207(1); see In re Marriage of Pritchett, 80 P.3d 918,

920 (Colo. App. 2003).

¶ 34 In determining whether it is appropriate for another state to

exercise jurisdiction, the district court must consider all relevant

factors, including the following:

• whether domestic violence has occurred;

• the length of time the child has resided outside the state;

• the distance between the courts;

• the parties’ relative financial circumstances;

• any agreement between the parties concerning

jurisdiction;

• the nature and location of the evidence required to

resolve the pending litigation;

• each court’s ability to expeditiously decide the issue; and

• the familiarity of each state with the facts and issues in

the pending litigation.

§ 14-13-207(2)(a)-(h); see also § 14-13-207 cmt. (noting that the list

of statutory factors is not meant to be exclusive).

17

¶ 35 The district court’s consideration of these factors and its

ultimate determination that it is not an inconvenient forum are

matters within its discretion. See In re Marriage of Tatum, 653 P.2d

74, 77 (Colo. App. 1982). A court abuses its discretion when it acts

in a manifestly arbitrary, unreasonable, or unfair manner, or when

it misapplies the law. In re Marriage of Bergeson-Flanders, 2022

COA 18, ¶ 10.

¶ 36 Here, the district court, which had exclusive, continuing

jurisdiction, determined that a few factors weighed heavily against

transferring jurisdiction to Tennessee: (1) mother, grandparents, the

child’s half sibling, and many maternal and paternal family

members reside in Colorado; (2) the Colorado court is very familiar

with the “significant” history in the case, including grandparents’

attempts to enforce the visitation order; (3) the majority of the

evidence relating to anticipated changes in mother’s parenting time

and grandparents’ visitation is in Colorado; and (4) mother is more

likely to appear and participate in Colorado, even while

incarcerated. The court also reasoned that the child had been

living in Tennessee for only the past two years and that it would

continue to accommodate remote appearances by father or any

18

other witnesses located in Tennessee. Although the court did not

make explicit factual findings addressing every factor, it did not

have to. See § 14-13-207(2) (requiring the court to “consider all

relevant factors”); In re Marriage of Wright, 2020 COA 11, ¶ 20

(When a court is required to “consider” factors, it need not make

explicit findings on each one; rather it need only “make sufficiently

explicit findings of fact to give the appellate court a clear

understanding of the basis of its order.” (quoting In re Marriage of

Gibbs, 2019 COA 104, ¶ 9)). Given that the district court carefully

considered the statutory factors it deemed relevant and because its

determination is supported by the record, we discern no abuse of

discretion. See Tatum, 653 P.2d at 77.

¶ 37 We acknowledge that there is other evidence in the record that

could have supported a determination that Colorado was an

inconvenient forum. But it is the district court’s prerogative, not

ours, to resolve conflicting evidence. See In re Parental

Responsibilities Concerning B.R.D., 2012 COA 63, ¶ 15 (“[W]hen

there is record support for the [district] court’s findings, its

resolution of conflicting evidence is binding on review.”). It is not

our role to reweigh the evidence to reach a different conclusion. See

19

People in Interest of A.J.L., 243 P.3d 244, 249, 256 (Colo. 2010)

(reversing a division of this court for substituting its judgment for

that of the district court regarding the credibility of witnesses and

the weight, sufficiency, and probative value of the evidence).

¶ 38 We decline to address father’s unpreserved argument that the

district court’s ruling failed to consider his constitutional right to

parent under Troxel v. Granville, 530 U.S. 57 (2000). See Berra v.

Springer & Steinberg, P.C., 251 P.3d 567, 570 (Colo. App. 2010) (to

preserve an issue for appeal, it must be presented in such a way

that the district court has an opportunity to rule on it); see also City

& Cnty. of Broomfield v. Farmers Reservoir & Irrigation Co., 239 P.3d

1270, 1276 (Colo. 2010) (“We do not consider constitutional issues

raised for the first time on appeal.”).

V. Appellate Attorney Fees

¶ 39 Grandparents ask for their appellate attorney fees. Because

grandparents were properly awarded attorney fees by the district

court under section 19-1-117.5(2)(f), C.R.S. 2022, they are also

entitled to an award of attorney fees incurred in defending this

appeal. See Duhon v. Nelson, 126 P.3d 262, 269 (Colo. App. 2005)

(“When a party, pursuant to a statute, has been appropriately

20

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.”); cf. In re Marriage of Turilli, 2021 COA 151,

¶ 45 (awarding the aggrieved parent appellate attorney fees under

section 14-10-129.5(4), C.R.S. 2023, because the district court

appropriately awarded him attorney fees on that basis). The

purpose of such an award, when authorized by statute, is to make

grandparents whole, not to punish father for an unsuccessful

appeal. See Turilli, ¶ 45; see also Levy-Wegrzyn v. Ediger, 899 P.2d

230, 233 (Colo. App. 1994).

¶ 40 Because the district court is in a better position to determine

the reasonable attorney fees incurred in defending against father’s

appeal, we exercise our discretion under C.A.R. 39.1 to remand the

case for further proceedings on that issue.

¶ 41 Having granted grandparents’ request for appellate attorney

fees under section 19-1-117.5(2)(f), C.R.S. 2022, we need not

address their request for attorney fees under section 13-17-102,

C.R.S. 2023.

21

VI. Disposition

¶ 42 The order is affirmed, and the case is remanded for the district

court to determine and award grandparents their reasonable

appellate attorney fees.

JUDGE HARRIS and JUDGE LUM concur.