25CA1307 Parental Resp Conc IBL 03-05-2026
COLORADO COURT OF APPEALS
Court of Appeals No. 25CA1307 Prowers County District Court No. 24DR34 Honorable Tarryn L. Johnson, Judge
In re the Parental Responsibilities Concerning IBL, a Child,
and Concerning Amanda Nicole Vasquez,
Appellee,
and
Brian Lee Lucero,
Appellant.
JUDGMENT AFFIRMED IN PART AND REVERSED IN PART, AND CASE REMANDED WITH DIRECTIONS
Division III Opinion by JUDGE HARRIS Dunn and Moultrie, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced March 5, 2026
No Appearance for Appellee
Brian Lee Lucero, Pro Se ¶1 In this domestic relations proceeding involving Brian Lee
Lucero (father) and Amanda Nicole Vasquez (mother), father appeals
the district court’s judgment determining that the parties were not
common law married, allocating parental responsibilities, setting
his child support obligation, and denying his request for attorney
fees. We affirm the judgment in part, reverse it in part, and remand
the case for additional proceedings.
I. Relevant Facts
¶2 In April 2024, mother filed a petition for the allocation of
parental responsibilities (APR) for the parties’ son. Father agreed
that an allocation was necessary but argued that the case should
proceed as a divorce because the parties were common law married.
¶3 Within a few months, mother moved to restrict father’s
parenting time, alleging that the child was in imminent danger
while in his care. On June 11, 2024, after finding the motion
“facially sufficient,” the district court temporarily ordered
supervised parenting time pending an evidentiary hearing. See §
14-10-129(4), C.R.S. 2025 (upon filing a sufficient section 14-10-
129(4) motion, any parenting time must be supervised until an
emergency hearing is held within fourteen days); see also In re
1 Marriage of Thorburn, 2022 COA 80, ¶¶ 28, 32 (section 14-10-129(4)
allows a parent to obtain a parenting time restriction on an
emergency basis so long as the motion meets the particularity
requirement of C.R.C.P. 7(b)(1)). The court held the hearing
fourteen days later, denied the motion, and lifted the restriction.
¶4 Next, the district court turned to father’s claim that the parties
were common law married. Following a hearing, the court
concluded that no common law marriage existed, finding no express
agreement to marry and no conduct from which such an agreement
could be inferred.
¶5 In April 2025, the district court held a permanent orders
hearing on the APR. The court designated mother as the child’s
primary residential parent during the school year and granted her
sole decision-making responsibility over his medical, mental health,
and dental care. Using father’s monthly income of $3,768 and
assigning him 106 overnights, the court directed him to pay
monthly child support of $192.
¶6 Father requested post-trial relief under C.R.C.P. 59, which the
district court summarily denied.
2 II. Failure to Include Transcripts in the Record on Appeal
¶7 About a month before the opening brief was due, father filed a
motion in this court acknowledging that he had not ordered
transcripts of the relevant hearings. He asked this court to
authorize “supplementation of the record with the transcripts.”
Because it could not order supplementation unless father had
designated and paid for the transcripts, the court ordered father to
provide proof of payment for the transcripts. Father then filed
another motion explaining that he could not afford to pay for the
transcripts and requested permission to submit a “statement of
evidence” and a “sworn narrative” of the proceedings instead. A
three-judge panel denied father’s request and ordered that because
father had failed to designate and pay for transcripts, the appeal
would “proceed without the transcripts.”
¶8 The next day, father filed his opening brief. The brief included
a section entitled “record status,” asserting that the “district court
transmitted the record without transcripts.” Father explained that
his motion to settle the record was pending. Father never
supplemented the record with the transcripts.
3 ¶9 As the appellant, father was obligated to include transcripts of
all proceedings necessary for resolution of the issues on appeal.
C.A.R. 10(d)(3). His failure to do so means that we must presume
that the missing transcripts support the district court’s findings
and conclusions. See In re Marriage of Beatty, 2012 COA 71, ¶ 15
(where the record is incomplete, the appellate court must assume
that the evidence supports the district court’s findings); see also In
re Marriage of Dean, 2017 COA 51, ¶ 13 (“Where the appellant fails
to provide . . . a transcript, the [appellate] court must presume that
the record supports the judgment.”); McCall v. Meyers, 94 P.3d
1271, 1272 (Colo. App. 2004) (“A party cannot overcome a
deficiency in the record by statements in the briefs.”).
¶ 10 We are mindful, of course, that father is proceeding pro se on
appeal. Regardless, transcript fees cannot be waived by the court.
See Chief Justice Directive 98-01(III) (amended effective April 2024).
And even if father was unaware of the consequences of failing to
provide transcripts, he is bound by his decision not to include them
in the record on appeal. See Rosenberg v. Grady, 843 P.2d 25, 26
(Colo. App. 1992) (Self-represented litigants must follow procedural
4 rules and “must be prepared to accept the consequences of [their]
mistakes and errors.”).
III. Presentation of Evidence and Discovery
¶ 11 Father contends that the district court’s alleged two-and-a-
half-hour time limit and failure to rule on a discovery matter
“constrain[ed] his presentation” at the hearing. But he does not
develop that contention further — in fact, he does not clarify
whether he is referring to the common law marriage hearing or the
APR hearing — and because there is no transcript of either hearing,
we cannot confirm whether there was a time limit; if there was,
whether father objected; and, if he did, whether the time limit
precluded him from presenting evidence that might have affected
the district court’s decision. See, e.g., In re Marriage of Pawelec,
2024 COA 107, ¶¶ 34, 36 (three-hour time limit for parenting time
hearing was not an abuse of discretion when mother’s counsel did
not object and mother failed to identify any evidence excluded
based on the time limit); see also In re Marriage of Zander, 2019
COA 149, ¶ 27 (an appellate court may decline to consider an
argument not supported by legal authority or any meaningful legal
analysis), aff’d, 2021 CO 12.
5 IV. Common Law Marriage
¶ 12 Father contends that the district court erred by determining
that the parties were not common law married. We disagree.
¶ 13 “[A] common law marriage may be established by the mutual
consent or agreement of the couple to enter the legal and social
institution of marriage, followed by conduct manifesting that
mutual agreement.” Hogsett v. Neale, 2021 CO 1, ¶ 70. “The key
inquiry is whether the parties intended to enter a marital
relationship — that is, to share a life together as spouses in a
committed, intimate relationship of mutual support and obligation.”
Id.
¶ 14 In determining whether a couple entered into a common law
marriage, the district court should “accord weight to evidence
reflecting [their] express agreement to marry,” id., such as a
proposal and acceptance, a ceremony, the exchange of vows or
rings, or similar formal expressions of intent. LaFleur v. Pyfer, 2021
CO 3, ¶ 54; see Hogsett, ¶ 62; In re Estate of Yudkin, 2021 CO 2,
¶ 22.
¶ 15 Absent an express agreement, the district court may consider
whether one can be inferred from the couple’s conduct. Hogsett,
6 ¶ 70. Relevant factors include (1) cohabitation; (2) reputation in the
community as spouses; (3) maintenance of joint banking and credit
accounts; (4) purchase and joint ownership of property; (5) filing
joint tax returns; (6) shared financial responsibilities (like leases in
both partners’ names, joint bills, or other payment records); (7) joint
estate planning, (like wills, powers of attorney, and beneficiary and
emergency contact designations); (8) symbols of commitment (like
ceremonies, anniversaries, cards, gifts, and the couple’s references
to or labels for one another); and (9) the parties’ sincerely held
beliefs about the institution of marriage. Hogsett, ¶¶ 55-56.
¶ 16 No single factor is dispositive, Yudkin, ¶¶ 18-19; see also
Hogsett, ¶ 59 (the significance of a given factor will depend on the
individual, the relationship, and the broader circumstances,
including cultural differences), and the inquiry is fact intensive and
dependent on credibility determinations, which are best made by
the district court. LaFleur, ¶ 50; see Hogsett, ¶ 50 (The existence of
a common law marriage calls for “a flexible inquiry into the totality
of the circumstances that relies on the factfinder’s credibility
determinations and weighing of the evidence.”).
7 ¶ 17 We review the district court’s factual findings for clear error
and its common law marriage determination for an abuse of
discretion. LaFleur, ¶ 50. A court’s factual finding is clearly
erroneous if there is no support for it in the record. Pawelec, ¶ 55.
The court abuses its discretion when it misconstrues or misapplies
the law, or makes a decision that is manifestly arbitrary,
unreasonable, or unfair. In re Marriage of Nevedrova, 2024 COA
112, ¶ 6.
¶ 18 In denying father’s common law marriage claim, the district
court made the following findings:
• Based on the parties’ demeanor and tone, as well as the
substance of their testimony, mother was credible and father
less so.
• At no point did either party propose marriage to the other.
• The parties never held a marriage ceremony in front of family
or friends.
• The parties did not enter any written agreement expressing an
intent to form a common law marriage.
• The parties have a child.
• The parties cohabitated for most of the last thirteen years.
8 • While living together, each party at times dated or pursued
relationships with other people.
• Father introduced mother as his wife to two acquaintances.
• The parties referred to each other inconsistently, which
suggested that they did not have a reputation in the
community as spouses.
• The parties did not jointly own any real property.
• The parties did not have joint bank or credit accounts.
• The parties filed separate tax returns and consistently
identified themselves as single or head of household.
• The parties did not sign leases together, and, although father
contributed to household expenses, the parties did not have
joint bills, or maintain joint payment records.
• The parties did not have joint estate planning documents or
name each other as beneficiaries or emergency contacts.
• When mother was a bartender, she sometimes wore a ring but
explained that she bought it herself to avoid unwanted
attention.
• Father did not wear a ring. He did not dispute that mother
bought the ring she sometimes wore at work.
9 • The parties did not celebrate anniversaries.
• Neither party demonstrated sincerely held beliefs regarding the
institution of marriage.
¶ 19 The district court ultimately determined that a common law
marriage did not exist.
¶ 20 Pointing to certain evidence, father maintains that the parties
were common law married. But even assuming some evidence
could have supported a finding of a common law marriage, other
evidence amply supports the district court’s determination that
there was no common law marriage. It is not our role as an
appellate court to reweigh the evidence and reach a different
conclusion than the district court on the fact-intensive question of
whether the parties were common law married. See Hogsett, ¶ 21
(upholding the district court’s determination that a common law
marriage did not exist when, although many indicia of marriage
were present, other indicia, which the district court chose to weigh
more heavily, were not present).
V. APR
¶ 21 Father challenges the district court’s APR order on several
grounds. We are not persuaded by his arguments.
10 ¶ 22 The district court must allocate parental responsibilities in
accordance with the best interests of the child. See § 14-10-
124(1.5), (1.7), C.R.S. 2025. To do so, the court must consider all
relevant factors, including those factors identified in section 14-10-
124(1.5)(a) and (b). See In re Marriage of Morgan, 2018 COA 116M,
¶ 21 (decision-making responsibility); Collins, ¶ 7 (parenting time).
¶ 23 The district court has broad discretion when allocating
parental responsibilities. See Morgan, ¶ 23 (decision-making
responsibility); Collins, ¶ 8 (parenting time).
¶ 24 Father first argues that the district court failed to “link facts to
each [section 14-10-124] factor,” rendering its findings insufficient
to support the APR. That argument misses the mark for two
reasons.
¶ 25 For one thing, the court is not required to make specific
findings on each factor so long as there is some indication in the
record that it considered the pertinent factors. See In re Marriage of
Garst, 955 P.2d 1056, 1058 (Colo. App. 1998).
¶ 26 And in any event, the district court made the following
findings related to each factor:
11 • Mother sought to be named the primary residential parent and
sole decision-maker for the then fourteen-year-old child while
father wanted equal parenting time and joint decision-making
responsibility. See § 14-10-124(1.5)(a)(I) (the parents’ wishes
are relevant to the child’s best interests).
• The child expressed a desire to spend equal time with his
parents, and his relationship with both parents has
historically been “strong, loving, [and] consistent.” See § 14-
10-124(1.5)(a)(II) (the child’s wishes are relevant to the child’s
best interests), (III) (interaction and interrelationship of the
child with their parents, siblings, and any other person who
may significantly affect the child’s best interests are relevant
to the child’s best interests).
• Father committed an act of domestic violence, or had a history
of domestic violence, based on mother’s credible testimony
that he took her phone, pinned her down on a bed, and
choked her in front of the child. See § 14-10-124(1.5)(a)(III.5)
(domestic violence is relevant to the child’s best interests); see
also Thorburn, ¶ 49 (it is for the district court to determine
witness credibility and the weight, probative force, and
12 sufficiency of the evidence, as well as the inferences and
conclusions to be drawn therefrom).
• The child was very well adjusted to his school and community.
See § 14-10-124(1.5)(a)(IV) (the child’s adjustment to their
home, school, and community is relevant to the child’s best
interests).
• The parents and the child were physically and mentally
healthy. See § 14-10-124(1.5)(a)(V) (mental and physical
health of all individuals involved is relevant to the child’s best
• When the parties were at their best, they encouraged the child
to spend time with the other party. See § 14-10-124(1.5)(a)(VI)
(the ability of the parties to encourage the sharing of love,
affection, and contact between the child and the other party is
relevant to the child’s best interests). But when they were not,
the parties put the child in the middle by using him to pass
along information about the other parent’s personal life. See
• Both parents have a history of being actively involved in the
child’s life, showing shared values, time commitment, and
13 mutual support. See § 14-10-124(1.5)(a)(VII) (whether the
past pattern of involvement of the parties with the child
reflects a system, time commitment, and mutual support is
relevant to the child’s best interests); § 14-10-124(1.5)(b).
• The parties lived just a few blocks from one another. See § 14-
10-124(1.5)(a)(VIII) (the physical proximity of the parties to
each other as that relates to the practical considerations of
parenting time is relevant to the child’s best interests).
¶ 27 These findings (which, in the absence of a transcript, we must
presume were supported by the evidence) are sufficient to support
the court’s decision to designate mother as the child’s primary
residential parent and to grant her sole decision-making
responsibility concerning the child’s medical, mental health, and
dental care. We will not reweigh the statutory factors or substitute
our judgment for that of the district court. See 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.”).
14 ¶ 28 Next, father argues that the court failed to consider that,
before the APR hearing, mother refused to allow him to see the child
for over a month — a fact that he says shows mother will not foster
his relationship with the child. We presume, however, that the
district court considered all the evidence admitted. See Collins,
¶ 21.
¶ 29 Finally, father argues that the district court erred by
excluding, as “attorney-client privilege[d],” an email from mother’s
attorney offering to withdraw a civil protection order against him in
exchange for certain “custody [and] child support concessions.”
Though father does not identify the email, we assume he is
referencing a January 25, 2025, email to him titled “Offer to Settle –
C.R.E. 408.” The email from mother’s attorney advised father that
“[t]his offer is protected under Colorado Rules of Evidence 408,
which means the discussions we have concerning settlement cannot
be used at any hearing.”
¶ 30 “CRE 408 bars the admission at trial of settlement
discussions, or offers to compromise a claim, when the evidence is
offered to prove liability for, invalidity of, or amount of a disputed
claim.” People v. Butson, 2017 COA 50, ¶ 1, overruled in part on
15 other grounds by, Buell v. People, 2019 CO 27, ¶ 21 & n.2.
Settlement offers may be admissible for other purposes, however.
See CRE 408(b).
¶ 31 Father’s brief does not mention CRE 408 or include any legal
argument concerning admissibility of the email, except to say that
the attorney-client privilege does not extend to communications
between a party and opposing counsel. Without the benefit of a
transcript, we do not know whether or how the issue was raised at
the APR hearing or the court’s reason for excluding the email. And
father has not explained why exclusion of the email prejudiced him,
beyond asserting that the email revealed mother’s “motive to
fabricate” (presumably the domestic violence allegations) and
therefore its exclusion “was not harmless.” For all these reasons,
his argument is not properly postured for appellate review. See,
e.g., People v. Perez, 2024 COA 94, ¶ 51 (appellate courts do not
consider undeveloped arguments).
¶ 32 In sum, we cannot say that the district court abused its broad
discretion in deciding what APR was in the child’s best interests.
See Morgan, ¶ 23; Collins, ¶ 8.
16 VI. Temporary Parenting Time Restriction
¶ 33 Father’s claim of error regarding the district court’s June 11,
2024, order, which temporarily restricted his parenting time, is
moot. “A claim is moot when the relief sought, if granted, would
have no practical legal effect on an actual existing controversy.”
Portley-El v. Colo. Dep’t of Corr., 2022 COA 86, ¶ 18.
¶ 34 The June 2024 order was vacated when the district court
denied mother’s underlying section 14-10-129(4) motion. And the
current APR, which gives father unsupervised parenting time,
supersedes the June 2024 order. See In re Marriage of Salby, 126
P.3d 291, 295 (Colo. App. 2005) (“[T]emporary orders terminate
when permanent orders are entered, and thereafter they may not be
appealed.”). Thus, because the restriction order has been vacated
or replaced and no longer has any legal effect, any opinion about its
propriety would be advisory only, “and we must avoid issuing
advisory opinions.” Stor-N-Lock Partners #15, LLC v. City of
Thornton, 2018 COA 65, ¶ 38.
¶ 35 We reject father’s claim that the issue is not moot because the
restriction “colored” the final APR. Nothing in the written order
17 suggests that the district court relied on the prior restriction when
deciding the APR.
VII. Child Support
A. Father’s Income
¶ 36 Father contends that the district court incorrectly determined
his gross income. We disagree.
¶ 37 Child support is calculated by using each party’s actual gross
income. § 14-10-115(3)(c), (5)(a)(I), C.R.S. 2025. The district court
has broad discretion in determining income. Collins, ¶ 30.
¶ 38 The district court did not impute income to father. Rather, it
determined his actual income based on father’s testimony at the
APR hearing, which the court considered the “most credible source
of information” about his income. According to the court, father
testified that he was self-employed and earned $33.50 per hour,
working an average of twenty-seven hours per week for fifty weeks
per year. In the end, the court found that his gross monthly income
was $3,768. Given that the APR hearing transcript is not part of
the record, we must presume that the court’s income finding is
supported by the evidence and is not clearly erroneous. See Beatty,
¶ 19.
18 B. Number of Overnights
¶ 39 Father contends the district court erred by understating the
number of his overnights with the child. Unlike his other
challenges, this issue can be resolved without the transcript of the
APR hearing. We conclude that additional findings are necessary.
¶ 40 Child support is calculated in part based on the number of
overnights that the child will have with each party under a district
court’s APR. See § 14-10-115(8)(b); Pawelec, ¶ 82.
¶ 41 In its child support worksheet for shared physical care, the
district court calculated father’s obligation based on 106 overnights.
We cannot tell how the court arrived at that number.
¶ 42 Under the permanent orders, father has parenting time during
the school year on the first, second, and third weekends of each
month, from Thursday through Sunday. Using a nine-month
school year as a reasonable assumption, he would have around
eighty-one overnights during the school year. During the summer,
he has parenting time on a week-on, week-off basis. If summer is
the remaining three months, that schedule results in roughly forty-
two additional overnights. The parties also alternate certain
holidays each year. Thus, the permanent orders reflect that father
19 has around 123 overnights per year, even before accounting for
holidays.
¶ 43 We reverse this portion of the judgment and remand for
additional findings on the number of father’s overnights. On
remand, the court should make sufficiently explicit findings to allow
an appellate court a clear understanding of the basis of its decision.
See In re Marriage of Humphries, 2024 COA 92M, ¶ 43.
C. Health Insurance
¶ 44 Father insists that the district court erred by “[c]rediting an
employer premium for ‘three children’ when the child is on Medicaid
and the other two [children] are adults.” He is mistaken. The
court’s child support worksheet indicates that a health insurance
premium credit was not given to either party.
VIII. Attorney Fees
¶ 45 Father contends that the district court “fail[ed] to “rule or
make findings on [his] requests for attorney’s fees to equalize
economic positions.” Father was not represented by an attorney at
the APR hearing, so we discern no error in the court’s decision not
to award attorney fees in connection with the APR order. To the
extent father sought attorney fees in connection with some other
20 proceeding, he does not explain why the court erred by not
addressing that request in the APR order. In fact, he does not cite
to the record or provide any facts or legal analysis to guide our
review of this claim, and therefore we decline to address it. Zander,
¶ 27.
IX. C.R.C.P. 59
¶ 46 Father contends that the district court erred by denying his
C.R.C.P. 59 motion without making any findings. We disagree. A
court may deny a motion to amend or alter its findings without
explanation if it concludes that its existing findings and conclusions
are proper and sufficient. See Eitel v. Alford, 257 P.2d 955, 958
(Colo. 1953); US Fax Law Ctr., Inc. v. Henry Schein, Inc., 205 P.3d
512, 519 (Colo. App. 2009). Moreover, C.R.C.P. 59(j) makes clear
that if the court does not rule on such a motion within sixty-three
days, the motion is deemed denied, without further findings.
X. Disposition
¶ 47 The district court’s APR permanent orders are reversed as to
child support. The court on remand must make additional findings
explaining the number of overnights. The judgment is otherwise
affirmed.
21 JUDGE DUNN and JUDGE MOULTRIE concur.