Parental Resp Conc VRM

Opinion

23CA2122 Parental Resp Conc VRM 07-25-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA2122

Boulder County District Court No. 15DR30225

Honorable Andrew Hartman, Judge

In re the Parental Responsibilities Concerning V.R.M., a Child,

and Concerning Leor Tal Mason,

Appellee,

and

Amanda Rose Rubino,

Appellant.

ORDER AFFIRMED IN PART AND REVERSED IN PART,

AND CASE REMANDED WITH DIRECTIONS

Division A

Opinion by JUDGE BERNARD*

Román, C.J., and Richman*, J., concur

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

Announced July 25, 2024

Law Office of Brock R. Wood, LLC, Brock R. Wood, Denver, Colorado, for

Appellee

Lou Rubino, Boulder, 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. 2023.

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¶ 1 A mother, Amanda Rose Rubino, appeals from the district

court’s decision to adopt a magistrate’s order modifying parenting

time and child support. We affirm in part, reverse in part, and

remand for further proceedings.

I. Background

¶ 2 Mother and Leor Tal Mason, whom we shall call “father,” have

one child, V.R.M. When the child was one year old, the court

entered permanent orders allocating parental responsibilities.

Given the child’s youth, the permanent orders allocated most of the

parenting time to mother, but they also provided father with a

gradual increase in parenting time up to one overnight per week.

¶ 3 The court later modified the permanent orders to give father

additional, stepped-up parenting time. As of July 2020, father’s

regular parenting time consisted of four overnights with the child

every fourteen days. Three years later, father asked the court for an

equal allocation of parenting time, for revisions and clarifications to

the parents’ holiday parenting time schedule, and for expanded

vacation parenting time, including permission to travel

internationally with the child. Father simultaneously asked the

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court to modify his child support obligation based on the additional

parenting time that he sought.

¶ 4 Following a hearing, the magistrate granted most of father’s

requests, implementing a new, stepped-up parenting time schedule,

which awarded father additional overnights through the 2023-2024

school year and then transitioned the parties to an equal parenting

time schedule beginning with the child’s 2024 summer break. The

new parenting time order also provided a detailed schedule for

holiday parenting time. It awarded each parent vacation parenting

time, it provided that the parents could travel domestically with the

child without receiving permission from the other parent, and it

established parameters for when and where the child could travel

internationally.

¶ 5 The magistrate also entered a new child support order, which

reduced father’s child support obligation based on the new

parenting time schedule.

¶ 6 After mother petitioned for review, the court adopted the

magistrate’s order.

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II. Standard of Review

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

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

Marriage of Sheehan, 2022 COA 29, ¶ 22. We must accept the

magistrate’s factual findings unless they are clearly erroneous,

meaning that they have no support in the record. In re Marriage of

Young, 2021 COA 96, ¶ 8. But we review de novo questions of law,

including questions of statutory interpretation and whether the

magistrate applied the correct legal standard. See Sheehan, ¶ 22;

Young, ¶¶ 8-9.

III. Child Support

¶ 8 Mother contends that the court erred when it adopted the

magistrate’s finding that, to calculate father’s child support

obligation, father earned $8,447 per month. We disagree.

¶ 9 Father’s most recent sworn financial statement indicated that

he earned $8,447 per month as the self-employed owner of a jewelry

business. Father testified that this figure was based on his 2022

tax returns, which he introduced as a supporting exhibit.

¶ 10 Mother’s counsel cross-examined father on profit and loss

statements for his business from the first five months of 2023.

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They showed that he earned an average of $19,000 per month.

Father explained that his business income varied significantly and

that he did not believe it would be reasonable to use only a

five-month period as indicative of his normal income.

¶ 11 As the fact finder, the magistrate was free to credit father’s

testimony about his income. Because father’s testimony and tax

returns buttressed the finding that father earned $8,447 per

month, we conclude that there is support in the record for the

magistrate’s finding. See In re Marriage of Amich, 192 P.3d 422,

424 (Colo. App. 2007) (The lower court “can believe all, part, or

none of a witness’s testimony, even if uncontroverted, and its

resolution of conflicting evidence is binding on review.”); cf. In re

Marriage of Nelson, 2012 COA 205, ¶ 35 (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.”).

¶ 12 Relying on alleged inconsistencies involving father’s business

bank statements and differing tax rates, mother asserts that

father’s 2022 income must have been significantly higher than

$8,447 per month. But she never raised this issue with the

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magistrate or with the court. We therefore will not consider this

assertion. In re Marriage of Ensminger, 209 P.3d 1163, 1167 (Colo.

App. 2008) (“Arguments not presented at trial cannot be raised for

the first time on appeal.”); see also C.R.M. 7(a)(7); People in Interest

of K.L-P., 148 P.3d 402, 403 (Colo. App. 2006).

IV. Modification of Parenting Time

¶ 13 We agree, however, with mother’s contention that the

magistrate did not make sufficient findings under section 14-10-

124(1.5), C.R.S. 2023, to support of the order modifying parenting

time, and, as a result, the court erred when it adopted that portion

of the magistrate’s order.

¶ 14 A court has broad discretion when modifying an existing

parenting time order. We will not reverse such an order unless the

court abuses its discretion when entering it. See In re Marriage of

Barker, 251 P.3d 591, 592 (Colo. App. 2010); see also In re Marriage

of Hatton, 160 P.3d 326, 330 (Colo. App. 2007) (recognizing that an

appellate court exercises every presumption in favor of upholding a

court’s order modifying parenting time).

¶ 15 Under section 14–10–129(1)(a)(I), C.R.S. 2023, with certain

exceptions that do not apply to this case, a court may modify a

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parenting time order if doing so is in the child’s best interests. In re

Marriage of DePalma, 176 P.3d 829, 834 (Colo. App. 2007); see also

§ 14-10-124(1.5)(a) (describing the best interests factors that the

court “shall consider” in determining parenting time); § 14-10-

123.4(1)(a), C.R.S. 2023 (children have the right to have parental

responsibilities determined based upon their best interests).

¶ 16 Although a court is not required to make specific findings on

all the statutory best interest factors, there must be some indication

that the relevant factors were considered. See People in Interest of

A.M.K., 68 P.3d 563, 565-66 (Colo. App. 2003). The court’s findings

must be sufficiently explicit to give a reviewing court a clear

understanding of the basis of its order. In re Marriage of Rozzi, 190

P.3d 815, 822 (Colo. App. 2008); see also In re Marriage of Garst,

955 P.2d 1056, 1058 (Colo. App. 1998) (“Factual findings are

sufficient if they identify the evidence which the fact finder deemed

persuasive and determinative of the issues raised.”).

¶ 17 In this case, the magistrate’s order modifying parenting time

made no findings concerning the child’s best interests beyond a

conclusory statement that a gradual, phased expansion of father’s

parenting time was in the child’s best interests. Although the

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magistrate recited the best interests factors under section 14-10-

124(1.5)(a), she did not make any additional findings concerning

those factors beyond the simple acknowledgment that they applied.

Although the magistrate’s order was very detailed concerning the

parameters of the new, stepped-up parenting time schedule, the

order did not explain why the new parenting time orders were in the

child’s best interests or even which statutory factors the magistrate

found to be persuasive. See Rozzi, 190 P.3d at 822; Garst, 955 P.2d

at 1058.

¶ 18 Father submits that the magistrate’s findings were adequate

because the magistrate summarized the sworn testimony of each

witness before concluding that an increase in father’s parenting

time was in the child’s best interests. We disagree because the

magistrate’s summary of the testimony does not indicate which

witnesses the magistrate found to be credible and persuasive. The

absence of credibility findings is problematic given that the witness

summaries contained contradictory testimony as to the child’s best

interests. For example, the magistrate acknowledged father’s

testimony that he “has never experienced [V.R.M.] being reluctant to

come to his home,” but also acknowledged mother’s testimony that

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“[V.R.M.] still has difficulty on the nights before she goes to her

father’s home, including tears and anxiety.” It was the magistrate’s

role, as the fact finder, to resolve such inconsistencies in the

evidence. But that did not happen. See In re Marriage of Lewis, 66

P.3d 204, 207 (Colo. App. 2003) (“[C]redibility determinations and

the weight, probative force, and sufficiency of the evidence, as well

as the inferences and conclusions to be drawn therefrom, are

matters within the sole discretion of the trial court.”); In re Marriage

of McNamara, 962 P.2d 330, 333-34 (Colo. App. 1998)(recognizing

that it is the district court’s responsibility to resolve conflicting

evidence as to the child’s best interests).

¶ 19 We decline father’s invitation to make our own credibility

assessments and best interests findings based on his contention

that the record otherwise supports the magistrate’s order. We are

an appellate court, and we cannot evaluate credibility or find facts.

See In re Marriage of Wollert, 2020 CO 47, ¶ 23 (recognizing that

“[f]actfinding is the basic responsibility of district courts, rather

than appellate courts” because a “cold record is a poor substitute

for live testimony” (quoting Pullman-Standard v. Swint, 456 U.S.

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273, 291 (1982), and People v. Scott, 198 Colo. 371, 373, 600 P.2d

68, 69 (1979), respectively)).

¶ 20 Without adequate findings, we cannot determine whether the

magistrate otherwise abused her discretion in granting father’s

request to modify parenting time. We therefore reverse the order

modifying parenting time, and we remand the case for

reconsideration of the order and for additional factual findings and

conclusions of law sufficient to support the order. See In re

Marriage of Goodbinder, 119 P.3d 584, 587 (Colo. App. 2005)

(requiring remand where district court did not include in its order

any factual findings or legal conclusions that would enable

appellate court to understand the basis of its order and,

accordingly, whether the court abused its discretion). Because the

magistrate’s order modifying parenting time was entered almost a

year ago, the parents shall be given the opportunity to present

additional evidence concerning the child’s circumstances as of the

time of the proceedings on remand. See In re Parental

Responsibilities Concerning M.W., 2012 COA 162, ¶ 27.

¶ 21 The current parenting time orders shall remain in effect

pending the additional findings on remand. See id. And, if the

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court decides to modify parenting time, it may also prospectively

modify child support, if warranted, consistently with section 14-10-

122(a), (b), C.R.S. 2023.

V. Appellate Attorney Fees

¶ 22 Father asks us to grant his request for appellate attorney fees.

But he did not accompany his request with legal and factual

justification for such an award. See C.A.R. 39.1; In re Marriage of

Schlundt, 2021 COA 58, ¶ 53. We therefore deny his request.

VI. Disposition

¶ 23 The portions of the court’s order modifying father’s child

support obligation are affirmed. The portions of the order modifying

parenting time are reversed. The case is remanded for further

proceedings concerning father’s request to modify parenting time

that are consistent with this opinion. The portions of the order that

were not challenged on appeal remain undisturbed.

CHIEF JUDGE ROMÁN and JUDGE RICHMAN concur.