Parental Resp Conc BMJA

• Court: Colorado Court of Appeals
• Decided: September 18, 2025
• Docket: 24CA2087
• Status: Unpublished

Opinion

24CA2087 Parental Resp Conc BMJA 09-18-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA2087 El Paso County District Court No. 23DR32133 Honorable Marcus S. Henson, Judge

In re the Parental Responsibilities Concerning B.M.J.A., a Child,

and Concerning Jason Aguinaga,

Appellee,

and

Rosemary Aguinaga,

Appellant.

JUDGMENT AFFIRMED

Division A Opinion by CHIEF JUDGE ROMÁN Hawthorne* and Martinez*, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced September 18, 2025

The Drexler Law Group, LLC, Matthew B. Drexler, Teresa A. Drexler, M. Addison Freebairn, Colorado Springs, Colorado, for Appellee

Heritage Family Law, LLC, Jarod C. Harsha, Broomfield, 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 allocation of parental responsibilities case involving

Rosemary Aguinaga (mother) and Jason Aguinaga (father), mother

appeals the district court’s judgment allocating parenting time. We

affirm.

I. Relevant Facts

¶2 The parties have four children, including one daughter,

B.M.J.A., born in 2015, who is the subject of this appeal.

¶3 In its 2024 permanent orders, the district court ordered that

B.M.J.A. primarily reside with father in Colorado. By doing so, the

court denied mother’s request to be designated B.M.J.A.’s primary

parent in Nevada, instead granting her parenting time during

summers, school breaks, and certain holidays.

II. Allocation of Parenting Time

A. Standard of Review

¶4 We review a district court’s parenting time determination for

an abuse of discretion, meaning that we will not disturb the court’s

decision unless it is manifestly arbitrary, unreasonable, or unfair.

In re Marriage of Pawelec, 2024 COA 107, ¶ 45. We also apply every

presumption in favor of upholding the court’s decision. In re

Marriage of Hatton, 160 P.3d 326, 330 (Colo. App. 2007).

1 ¶5 We review de novo whether the district court applied the

proper legal standard. In re Marriage of Morgan, 2018 COA 116M, ¶

7.

B. Governing Law

¶6 When, as here, a parent asserts an intent to relocate before

the entry of permanent orders, the district court must accept that

intent and determine a parenting time allocation that serves the

child’s best interests. See Spahmer v. Gullette, 113 P.3d 158,

161-64 (Colo. 2005) (district court must fashion a parenting plan

that can be exercised with the parties living in different states, if

that is their stated intention); see also Morgan, ¶ 17 (district court

must allocate parenting time in accordance with the child’s best

interests); § 14-10-124(1.5)(a)(VIII), C.R.S. 2025 (district court must

consider “[t]he physical proximity of the parties to each other as

this relates to the practical considerations of parenting time”). In

making that determination, the court must consider “all relevant

factors,” including those listed in section 14-10-124(1.5)(a). In re

Marriage of Collins, 2023 COA 116M, ¶ 7. At this stage, the parties

are on equal ground, and each parent is as likely as the other to

2 become the primary residential parent under the best interests

analysis. See Spahmer, 113 P.3d at 163.

¶7 On the other hand, when a parent seeks to relocate after the

entry of permanent orders, a district court must apply a more

stringent standard under section 14-10-129(2)(c), C.R.S. 2025,

which accounts for the vested parenting time rights established by

the prior order. Spahmer, 113 P.3d at 161, 163; see In re Marriage

of Ciesluk, 113 P.3d 135, 140 (Colo. 2005). This standard requires

consideration of the best interests factors plus nine additional

statutory factors specific to relocation modifications. See Spahmer,

113 P.3d at 163 (“[T]he goal of dissolution proceedings is to create a

stable situation between the new family units arising out of the

divorce, whereas the goal of a modification proceeding is to

maintain this stability, if possible, in the best interests of the

child.”).

¶8 Discussion

¶9 Mother contends that the district court misapplied the law

when it named father B.M.J.A’s primary parent in Colorado. To get

there, she says that she was not on equal ground as the court

treated her request to move with the child to Nevada as if it were a

3 modification of an existing order under section 14-10-129(2)(c)

instead of an initial allocation of parenting time under section

14-10-124. We disagree.

¶ 10 The district court began its analysis by recognizing that there

was no prior order in place and emphasizing that both parties had

an equal opportunity to exercise appropriate parenting time

consistent with B.M.J.A.’s best interests:

The course of this hearing has been one where not only have I considered the issue of just kind of the standard aspect of allocation of parental responsibilities under 14-10-124, but I’ve also had to deal with kind of some of the various things related to the fact that [mother] in the very near term is proposing a relocation for that child, but it’s not a relocation hearing because we have not yet had any sort of decree regarding allocation entered at this point for this child. So this is not one of those situations where there is some sort of higher burden to establish a shift from one parent or the other being a primary residential parent or anything along those lines, but I think it’s instructive to take into account that the request does involve some aspects of impacting adjustment of the child to the current environment versus a new environment and having to determine whether or not that’s something that maybe does or does not weigh in favor of the requested relocation of the child if I were to, for instance, to adopt what’s being requested by . . . mother. So taking that into account, I’ll begin by observing that 14-10-124

4 kind of generally has a statutory policy favor that really is focused on trying to establish frequent and continuing contact with both parents if it can be done without any sort of endangerment of the child. So really what that amounts to is the idea of trying to make sure that both parents are afforded appropriate opportunity to have a loving, nurturing, nourishing relationship with the child in a way that is beneficial to the child, again, without endangering the child in some way. So when I consider that overarching factor and then I look at the various factors statutorily that are laid out[.]

See In re Marriage of Thorburn, 2022 COA 80, ¶ 9 n.1 (district

court’s oral findings supplement its written order).

¶ 11 Then, the district court carefully considered the section

14-10-124 best interests factors and found the following:

• Mother wanted to be B.M.J.A.’s primary parent in

Nevada. See § 14-10-124(1.5)(a)(I) (directing the district

court to consider the parents’ wishes).

• Father opposed the relocation and wanted to be

B.M.J.A.’s primary parent in Colorado. See id.

• There was no extensive evidence about B.M.J.A.’s

preference on parenting time. See § 14-10-124(1.5)(a)(II)

5 (directing the district court to consider the child’s

wishes).

• “Historically, both parties have tried to meet [B.M.J.A.’s]

needs and really do a lot for her in a positive way.” See

§ 14-10-124(1.5)(a)(III) (directing the district court to

consider the interaction and interrelationship of the child

with their parents, siblings, and any other person who

may significantly affect their best interests). Mother

provided consistent day-to-day care and maintained

routines. Father, especially of late, had become much

more engaged. He helped the child with schoolwork, and

they spent time fishing, gardening, and ice skating

together. “[T]he two of them [were] building a much

stronger bond.”

• B.M.J.A. also had a strong bond with her adult siblings,

especially her older brother who was actively involved,

helpful, and fun. See id. Such a supportive sibling

relationship was “significantly beneficial and

advantageous” for her.

6 • B.M.J.A. was “doing well” in a “nurturing” school

environment, “socially engaged,” and living next door to

her best friend. See id.; see also § 14-10-124(1.5)(a)(IV)

(directing the district court to consider the child’s

adjustment to their home, school, and community).

• Mother credibly testified that Nevada offered potentially

excellent school districts, but she provided no

comparative evidence, and it would be difficult to predict

how B.M.J.A. would adjust. See § 14-10-124(1.5)

(directing the district court to consider all relevant

factors).

• Both parties accused the other of trying to undermine

B.M.J.A.’s relationship with them. See

§ 14-10-124(1.5)(a)(V) (directing the district court to

consider the mental and physical health of all individuals

involved).

• Allowing or encouraging B.M.J.A. to distance or alienate

herself from either party would be detrimental and not in

her best interests, and the parties “have some work to do

in this regard.” See § 14-10-124(1.5)(a)(VI) (directing the 7 district court to consider each parent’s ability to

encourage the sharing of love, affection, and contact

between the child and the other parent).

• Both parties, despite their disputes, have shown a

commitment to prioritizing B.M.J.A.’s well-being and

attempting to act in her best interests. See

§ 14-10-124(1.5)(a)(VII) (directing the district court to

consider whether the parents’ past pattern of

involvement with the child reflects a system of values,

time commitment, and mutual support).

• Father’s past work demands limited his time with the

children, but his recent decision to cut back his hours

gave him more time with B.M.J.A. See id. He credibly

testified that he now devotes substantial time to the

child’s needs and activities.

• If mother moves to Nevada, a long-distance parenting

plan would be necessary. See § 14-10-124(1.5)(a)(VIII).

• Mother expressed concerns about the safety of father’s

neighborhood, but those concerns were uncorroborated,

and there was no evidence suggesting that B.M.J.A. was 8 endangered. See § 14-10-124(1.5)(a) (district court

allocates parenting time based on the child’s best

interests unless it finds that time with a parent would

endanger the child’s physical health or impair the child’s

emotional development).

¶ 12 Based on those findings, which have record support, the

district court applied the correct legal standard — that is, it treated

both parties equally — and concluded that it was in the child’s best

interests for father to be her primary parent in Colorado. See

Spahmer, 113 P.3d at 164; see also Thorburn, ¶ 49 (it is for the

district court, not the reviewing court, to determine the witnesses’

credibility and the weight of the evidence). To the extent some

findings also related to the section 14-10-129 factors specific to

relocation modifications, the court was not precluded from

considering those factors. This is because under a best-interests

analysis, the court may consider any relevant factors, including

those listed in section 14-10-129. See § 14-10-124(1.5)(a); Collins,

¶ 7.

¶ 13 Still, mother challenges the district court’s finding that father

had the ability to encourage the sharing of love, affection, and

9 contact between her and B.M.J.A., arguing that the court failed to

adequately weigh her evidence of his disparagement and alienation.

She points to testimony from the oldest daughter who described

father’s role in exacerbating the parties’ rift, as well as father’s own

admission that he destroyed photographs of mother and labeled

food to exclude her. She also maintains that her testimony shows

that his behavior undermined her relationship with the children,

including B.M.J.A. But her argument essentially asks us to

reweigh the evidence, which we cannot do. See Thorburn, ¶ 49; see

also In re Marriage of Nelson, 2012 COA 205, ¶ 35 (When reviewing

for an abuse of discretion, even where “there is evidence in the

record that could have supported a different conclusion, we will not

substitute our judgment for that of the district court.”); In re

Marriage of Udis, 780 P.2d 499, 504 (Colo. 1989) (an appellate court

may presume that the district court considered all of the evidence

admitted).

¶ 14 Last, mother claims that the district court erred by

“inconsistently” applying “evidentiary standards.” She offers no

supporting legal analysis. So, we decline to address the issue. See

In re Marriage of Zander, 2019 COA 149, ¶ 27 (an appellate court

10 may decline to consider an argument not supported by legal

authority or any meaningful legal analysis), aff’d, 2021 CO 12; see

also Vallagio at Inverness Residential Condo. Ass’n v. Metro. Homes,

Inc., 2017 CO 69, ¶ 40 (an appellate court will “decline to assume

the mantle” when parties offer no supporting arguments for their

claims).

¶ 15 In all, we cannot say that the district court exceeded its broad

discretion by determining that B.M.J.A.’s best interests were better

served by naming father her primary parent in Colorado. See

Pawelec, ¶ 45.

III. Appellate Attorney Fees

¶ 16 Father requests appellate attorney fees under C.A.R. 39.1 and

section 13-17-102, C.R.S. 2025, asserting that mother’s appeal is

substantially frivolous. Although unsuccessful, her contentions

were not so lacking in merit as to constitute frivolity or bad faith.

See Mission Denv. Co. v. Pierson, 674 P.2d 363, 365 (Colo. 1984)

(“Standards for determining whether an appeal is frivolous should

be directed toward penalizing egregious conduct without deterring a

lawyer from vigorously asserting his client’s rights.”); see also In re

11 Marriage of Boettcher, 2018 COA 34, ¶ 38 (“Fees should be awarded

only in clear and unequivocal cases . . . .”), aff’d, 2019 CO 81.

IV. Disposition

¶ 17 The judgment is affirmed.

JUDGE HAWTHORNE and JUSTICE MARTINEZ concur.