Parental Responsibilities Concerning S.Z.S., a Child ( 2022 )

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
September 8, 2022
2022COA105No. 21CA1760, Parental Responsibility Concerning S.Z.S. —
Family Law — Modification of Parenting Time — Child’s
Integration with Parental Consent
A division of the court of appeals, as a matter of first
impression, clarifies the distinction between agreeing to the
modification of the primary residential parent under section
14-10-129(2)(a), C.R.S. 2021, and consenting to the child’s
integration into the family of the nonresidential parent under
section 14-10-129(2)(b).
COLORADO COURT OF APPEALS 2022COA105Court of Appeals No. 21CA1760
Mesa County District Court No. 16DR30036
Honorable William T. McNulty, Judge
Honorable Matthew D. Barrett, Judge
In re the Parental Responsibilities Concerning S.Z.S., a Child,
and Concerning Zofia Elise Tisue,
Appellant,
and
Christopher Michael Smith,
Appellee.
APPEAL DISMISSED IN PART, ORDERS AFFIRMED IN PART,
AND CASE REMANDED WITH DIRECTIONS
Division I
Opinion by JUDGE TOW
Dailey and Berger, JJ., concur
Announced September 8, 2022
Randy L. Brown, P.C., Randy L. Brown, Grand Junction, Colorado, for
Appellant
Cordell Law, LLP, Dorothy Walsh Ripka, Billie Jo Sowinski, Greenwood Village,
Colorado, for Appellee
¶1 In this post-decree parental responsibilities case, Zofia Elise
Tisue (mother) appeals the district court’s order adopting a
magistrate’s ruling that modified parenting time. She also appeals
the magistrate’s ruling that modified decision-making
responsibility. This appeal requires us to consider an issue not
previously addressed by an appellate court in this state: Can a
parent be found to have consented to a child’s integration into the
other parent’s family even though the parents only agreed that the
child would live with and be cared for by the other parent on a
temporary basis?
¶2 Because we answer this question in the affirmative, we affirm
the order concerning parenting time. In addition, we dismiss as
moot the portion of mother’s appeal concerning decision-making
responsibility. And we remand the case for further proceedings on
mother’s request for appellate attorney fees and costs.
I. Relevant Facts
¶3 Mother had one child, S.Z.S., with Christopher Michael Smith
(father), and, in 2017, the magistrate entered permanent orders
allocating parental responsibilities. The magistrate gave mother
primary residential care and sole decision-making responsibility for
1
the child, and father received parenting time during alternating
weekends and school breaks.
¶4 Approximately six months later, mother relocated to
Minnesota with the child, and the parties stipulated to a modified
parenting time plan. Under the modified plan, the child lived with
mother during the school year, and father had parenting time
during the child’s school breaks. The magistrate approved this
modified plan.
¶5 The following summer, mother’s partner experienced health
problems, and mother indicated that she was struggling to provide
care for the child and her partner. The parties agreed that the
child, who was then six years old, would live primarily with father
and attend first grade in Colorado. Mother exercised limited
parenting time with the child during this time.
¶6 In the summer of 2019, the parties agreed that the child would
remain with father and complete second grade in Colorado. They
executed a written stipulation memorializing this agreement and
asserted that, in the fall of 2020, the child would return to school in
Minnesota with mother. The magistrate approved the parties’
stipulation.
2
¶7 In August 2020, father sought to have the child remain with
him in Colorado. But the magistrate ordered the parties to resume
their previous parenting time plan, and the child returned to
Minnesota. Shortly after the magistrate’s ruling, father filed a
motion to modify parenting time, requesting primary residential
care of the child. He argued that, over those two years, the child
had been integrated into his family with mother’s consent and that
it was in the child’s best interests to reside primarily with him
during the school year.
¶8 After a three-day hearing, the magistrate granted father’s
motion to modify parenting time. The magistrate had concerns with
mother’s instability and the risks this posed to the eight-year-old
child. He then found that father could better provide for the child’s
long-term needs and that it was in the child’s bests interests to
allocate to him primary residential care of the child. The magistrate
allocated to mother parenting time generally over the child’s school
breaks. The magistrate also modified decision-making
responsibility, directing the parties to jointly make all major
decisions for the child.
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¶9 Mother petitioned the district court to review the magistrate’s
order. The district court adopted the portion of the order modifying
parenting time. It concluded that the magistrate applied the correct
legal standard and that the record supported the child’s integration
into father’s family with mother’s consent.
¶ 10 In a later order, the district court determined that the
magistrate’s ruling concerning decision-making responsibility had
to be modified. It explained that, in the permanent orders, the
magistrate had made a finding of domestic violence but had then
failed to consider this finding when modifying decision-making
responsibility. The court set an evidentiary hearing to resolve the
issue, but before the hearing, the parties stipulated to joint
decision-making responsibility. The district court adopted their
stipulation.
II. Standard of Review
¶ 11 Our review of a district court’s order adopting a magistrate’s
ruling is, in effect, a second layer of appellate review. In re Marriage
of Evans, 2021 COA 141, ¶ 39. We review de novo whether the
court applied the correct legal standard. In re Parental
Responsibilities Concerning E.S., 264 P.3d 623, 626 (Colo. App.
4
2011). We also review de novo the court’s conclusions of law, but
we accept the magistrate’s factual findings unless they are clearly
erroneous. In re Parental Responsibilities Concerning B.J., 242 P.3d
1128, 1132 (Colo. 2010). A court’s factual finding is clearly
erroneous when it has no record support. Evans, ¶ 39.
III. Modifying Parenting Time
¶ 12 Mother contends that the magistrate erred by modifying
parenting time because he did not apply the legal standard for
consensual integration when issuing his ruling and the record did
not establish that the child had been integrated into father’s family
with mother’s consent. We disagree.
A. Legal Principles
¶ 13 A court has broad discretion to modify existing parenting
orders, and we must exercise every presumption in favor of
upholding its decision. 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).
¶ 14 The child’s best interest is the controlling factor for a court
when determining parenting time. See § 14-10-129(1)(a)(I), (2),
C.R.S. 2021; Barker, 251 P.3d at 592; see also § 14-10-124(1.5)(a),
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C.R.S. 2021 (best interests factors). When a parent seeks a
substantial modification of parenting time that also changes the
parent with whom the child primarily resides, the court must retain
the prior parenting time order unless there has been a change in
circumstances and, as relevant here, the child has been integrated
into the family of the parent seeking modification with the consent
of the other parent. § 14-10-129(2)(b).
¶ 15 The child’s integration with parental consent is a factual
determination based on the totality of the circumstances. See In re
Marriage of Chatten, 967 P.2d 206, 208 (Colo. App. 1998); In re
Marriage of Pontius, 761 P.2d 247, 249 (Colo. App. 1988). The court
considers the frequency, duration, and quality of the child’s
contacts with each parent; which parent is making decisions
concerning the child’s health care, education, religious training,
and general welfare; and the child’s views as to which environment
constitutes his or her home. Chatten, 967 P.2d at 208; Pontius, 761
P.2d at 249-50.
¶ 16 Integration, therefore, is more than a parent’s expanded
visitation with the child. Chatten, 967 P.2d at 208; Pontius, 761
P.2d at 249. It includes the parent performing normal parental
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duties and guiding the child physically, mentally, morally, socially,
and emotionally. Chatten, 967 P.2d at 208; accord Pontius, 761
P.2d at 249. As well, the time spent by the child with the parent
seeking primary residential care “must be of sufficient duration that
the child has become settled into the home of that parent as though
it were his or her primary home.” Chatten, 967 P.2d at 208.
¶ 17 The requirement of the other parent’s consent is satisfied
when that parent voluntarily places the child with the noncustodial
parent and willingly permits the child to become integrated into the
new family. Id. The parent’s consent does not need to be explicit.
See id. Rather, it “may be implied from a voluntary transfer of
custody that results in the child’s integration into” the other
parent’s family. Id.B. The Magistrate Applied the Correct Legal Standard
¶ 18 Mother argues that because the magistrate made no specific
finding that the child had integrated into father’s family with
mother’s consent, the magistrate failed to apply the correct legal
standard. We are not persuaded.
¶ 19 In his ruling, the magistrate expressly set forth the applicable
law for modifying parenting time. Specifically, the magistrate
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recognized that a change to the prior parenting time order must
serve the child’s best interests and stated that the magistrate “must
retain the prior schedule unless [he] finds that [the] child has been
integrated into the family of the moving party with consent of the
other party.” The magistrate then analyzed and made findings on
the best interests factors enumerated in section 14-10-124(1.5)(a).
¶ 20 In doing so, the magistrate found that
 the child had “a close relationship” with father and
“important relationships” with the other members of
father’s household, including father’s wife and his other
children;
 the child was “comfortable” in father’s home and “very
familiar” with the routine at his home;
 father provided for the child’s needs, was engaged in her
medical and dental care, and was involved in the child’s
education;
 father indicated that the child was “completely integrated
into his home”;
 father had consistently provided “suitable care” for the
child;
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 mother had relinquished primary care of the child to
father in 2018 and “was somewhat disengaged” from the
child’s life in Colorado; and
 mother had “relatively sporadic and modest amounts of
parenting time” with the child while the child lived with
father.
¶ 21 Even though made in relation to the best interests factors,
these findings demonstrate that the magistrate applied the law
concerning the child’s integration with mother’s consent and
considered these circumstances when he determined that modifying
parenting time was in the child’s best interests. See Chatten, 967
P.2d at 208; Pontius, 761 P.2d at 249-50. Therefore, although the
magistrate did not make a specific finding, the order indicates that
he implicitly found that the child had been integrated into father’s
family with mother’s consent. See Chatten, 967 P.2d at 208;
Pontius, 761 P.2d at 249-50; see also In re Marriage of Finer, 920
P.2d 325, 328 (Colo. App. 1996) (recognizing that a court’s finding
may be implicit in its ruling).
¶ 22 Moreover, the magistrate later stated he was modifying
decision-making responsibility “[p]ursuant to [section] 14-10-
9
131(2)(b),” C.R.S. 2021. This section, similar to section 14-10-
129(2)(b), directs the court to retain the allocation of decision-
making responsibility unless “[t]he child has been integrated into
the family of the petitioner with the consent of the other party.”
§ 14-10-131(2)(b). By relying on section 14-10-131(2)(b), the
magistrate clarified that he found the child had been integrated into
father’s family with mother’s consent.
¶ 23 Still, mother contends that the magistrate must make an
express finding on the child’s integration with mother’s consent.
While such an express finding is preferable, nothing in section
14-10-129(2)(b) requires one. When, as here, the magistrate’s
finding demonstrates the application of the statute and is
sufficiently explicit to allow us to review that determination, the
magistrate’s implicit finding suffices. See Finer, 920 P.2d at 328; cf.
In re Marriage of Rodrick, 176 P.3d 806, 813-14 (Colo. App. 2007)
(affirming a court’s parental responsibilities decision when its
findings sufficiently showed that it considered the statutory criteria,
even though it did not make specific findings on each factor).
¶ 24 Mother also argues that the magistrate had to first make a
finding on the child’s consensual integration before it could address
10
the child’s best interests. While we generally decline to review an
issue not raised until the reply brief, see In re Marriage of Drexler,
2013 COA 43, ¶ 24, we are not convinced that such a two-step
inquiry is demanded by section 14-10-129(2)(b). Indeed, nothing in
section 14-10-129(2)(b) forbids a court from addressing the child’s
integration during its discussion of the best interests factors or
demands that the court employ a two-step inquiry when addressing
a request to modify parenting time. And, beyond citing this statute,
mother directs us to no legal authority supporting her argument.
¶ 25 We therefore are not persuaded that the magistrate failed to
apply the correct legal standard concerning the child’s integration
into father’s family with mother’s consent.
C. The Record Supports a Finding of the Child’s Integration into
Father’s Family with Mother’s Consent
¶ 26 Mother contends that the record fails to support findings that
the child was integrated into father’s family and that mother had
consented to any integration. We disagree.
1. The Child’s Integration into Father’s Family
¶ 27 Father testified that for almost two years, the child resided
primarily with him, he was responsible for the child’s care and
11
welfare while with him, and he made many of the day-to-day
decisions concerning the child during that time. He further testified
that the child had many “connections and relationships” in
Colorado and that when the child lived with him, mother had
limited parenting time. In addition, father’s wife testified that she
and father have a strong, bonded relationship with the child; the
child and the child’s older half-sibling were “inseparable”; and the
child and her younger half-sibling, who was born while the child
lived with father, were constantly together. Father’s other family
members also confirmed that the child had a strong connection
with father’s family. And the child’s second grade teacher testified
that father and his wife were engaged in the child’s education and
that the child had a very close relationship with father’s family.
¶ 28 From this evidence, the magistrate could reasonably find that
the child had become settled into father’s family as though it was
her primary home and that during the approximately two years the
child lived with father, father took care of the child and performed
the normal parental duties. See Chatten, 967 P.2d at 208. The
record, therefore, supports the determination that the child had
become integrated into father’s family. While mother highlights
12
conflicting evidence that could support a contrary finding, we may
not reweigh the magistrate’s resolution of the conflicts in the
evidence. See Evans, ¶ 45.
¶ 29 To the extent mother asserts that the child’s integration into
father’s family “legally terminated” when the child returned to
Minnesota in 2020, mother develops no legal or factual argument in
support of this assertion. We therefore will not address it. See
Barnett v. Elite Props. of Am., Inc., 252 P.3d 14, 19 (Colo. App. 2010)
(“We will not consider a bald legal proposition presented without
argument or development.”).
¶ 30 Thus, contrary to mother’s contention, there is record support
for the finding that the child was integrated into father’s home and
family.
2. Mother’s Consent
¶ 31 Nor do we agree with mother that no evidence showed that she
consented to the child’s integration. It was undisputed that mother
voluntarily transferred primary care of the child to father in 2018,
and she agreed to extend father’s primary care throughout the
2019-2020 school year. Following this voluntary transfer, the
record, as explained above, shows that the child was integrated into
13
father’s family. As a result, the magistrate could reasonably infer
that mother consented to the child’s integration into father’s family.
See Chatten, 967 P.2d at 208-09.
¶ 32 Mother argues that this is insufficient to establish her consent
because the parties’ agreements to transfer the child to father were
intended to be only temporary. But mother’s argument
misunderstands what consent to integration means. It does not
mean consent to change the parent with whom the child resides the
majority of the time. An agreement to change the primary
residential parent is the modification criterion in section 14-10-
129(2)(a). If mother’s view were correct, section 14-10-129(2)(b)
would be superfluous — an outcome we do not believe the General
Assembly intended. See Wolford v. Pinnacol Assurance, 107 P.3d
947, 951 (Colo. 2005) (noting that we avoid interpretations that
render statutory provisions redundant or superfluous).
¶ 33 Rather, section 14-10-129(2)(b) applies when a parent
consents to the other parent “perform[ing] . . . normal parental
duties . . . and guiding the child[] physically, mentally, morally,
socially, and emotionally.” Chatten, 967 P.2d at 208. Mother
clearly did so when she sent the child to live with father on a full-
14
time basis for two years, during which she exercised limited
parenting time. And, with mother’s consent, the child became
settled into father’s home as though it was her primary home. See
id.¶ 34 That the parties’ agreement was for only a temporary transfer
of the child’s primary care to father does not change the fact that
the child integrated into father’s family, nor does it change the fact
that mother consented to the child doing so. The parents’
subjective intentions concerning the length of time a child will
reside with a particular parent are not dispositive of the issue
because the consent requirement is intended to serve the “narrow
purpose” of avoiding a noncustodial parent’s kidnapping of the
child. Id.; see Unif. Marriage & Divorce Act § 409 cmt. (amended
1973), 9A pt. II U.L.A. 440 (1998). “Instead, the consent
requirement is satisfied when the custodian has voluntarily placed
the child with the non-custodial parent and willingly permitted the
child to become integrated into the new family.” Chatten, 967 P.2d
at 208.
¶ 35 We are not persuaded otherwise by mother’s reliance on
several Illinois cases in support of her argument. See In re Marriage
15
of Wechselberger, 450 N.E.2d 1385, 1391 (Ill. App. Ct. 1983); In re
Marriage of Hill, 434 N.E.2d 527, 531 (Ill. App. Ct. 1982); People ex
rel. Bukovic v. Smith, 423 N.E.2d 1302, 1307-08 (Ill. App. Ct. 1981);
see also In re Custody of Dykhuis, 475 N.E.2d 1107, 1110 (Ill. App.
Ct. 1985).
¶ 36 None of these cases stands for the proposition that when a
custodial parent agrees to the child living temporarily with the
noncustodial parent for an extended time, the temporary nature of
that agreement necessarily defeats a claim that the custodial parent
consented to the child’s integration.
¶ 37 Of these cases, only Wechselberger (on which mother primarily
relies) discussed the point of contention at issue here: whether the
primary custodial parent’s agreement to temporarily permit the
child to live with the other parent, during which time the custodial
parent had limited parenting time, amounts to integration with
consent. But that case is unhelpful to mother for several reasons.
¶ 38 First, the posture of that case was the opposite of that here:
the noncustodial parent in Wechselberger had failed to obtain the
modification sought. 450 N.E.2d at 1388. So the issue was
whether the trial court’s determination that the modification was
16
not in the child’s best interest was “against the manifest weight of
the evidence or an abuse of discretion.” Id. at 1391.1
¶ 39 Second, although the relevant Illinois statute had previously
been consistent with Colorado’s law, it had been amended such
that the governing statute in Wechselberger no longer required a
showing of integration by consent. Id. at 1388-89 (citing Ill. Rev.
Stat. 1981, ch. 40, par. 610(b) (effective until July 1, 1982)).
Instead, the statute governing the motion in that case required a
showing “‘by clear and convincing evidence’ . . . that a change has
taken place in the circumstances of the child or the child’s
custodian and that the modification is needed to serve the best
interests of the child.” Id. at 1389 (quoting Ill. Rev. Stat. 1981, ch.
40, par. 610(b) (effective July 1, 1982)). As the court observed,
“Integration into the petitioner’s family with consent . . . is no longer
required to be proved, although it may be a factor the court may
1The fact that the appellate review posture was the opposite of this
case is significant. When reviewing a court’s factual findings and
exercise of discretion, an appellate court is deferential to the trial
court’s decision. Whether the evidence could have supported the
opposite finding or a different discretionary act is irrelevant. Put
another way, the fact that an appellate court found that the record
supported a particular finding in no way suggests that it would not
have also supported a different finding.
17
take into account in determining whether a change in
circumstances has occurred.” Id. at 1391. Thus, the Appellate
Court of Illinois’s discussion of whether the mother had consented
to the child’s integration into the father’s family was arguably dicta.
¶ 40 And, in any event, the court ultimately acknowledged that
integration by consent may have occurred, observing that “while a
change of circumstances may have been proved, it is implicit in the
trial judge’s decision that a modification was not necessary for the
best interest of the children.” Id. (emphasis added). In other words,
the decision in Wechselberger ultimately rested on the trial court’s
determination of the child’s best interests, not on whether there was
integration by consent — again suggesting that the entire
discussion of integration was dicta.
¶ 41 In short, Wechselberger cannot bear the weight mother places
on it.
¶ 42 Unlike the circumstances present in Wechselberger, the
totality of the circumstances here demonstrated that mother
consented to the child’s integration into father’s home and family.
Even if the parties contemplated only a temporary change in the
child’s custodial arrangement, their agreements support such a
18
finding, particularly when the child primarily resided with father for
almost two years and during that time father provided her primary
care and mother exercised limited parenting time. See Chatten, 967
P.2d at 208-09.
¶ 43 We therefore do not agree that the magistrate clearly erred by
finding that mother consented to the child’s integration.
¶ 44 Mother also takes issue with the magistrate’s finding that she
“did not address how she helped [the child] adjust to her fourth
school in four years after her return to Minnesota in August 2020.”
While mother points to evidence that she assisted the child with her
reading struggles, she directs us to no evidence that refutes the
magistrate’s finding concerning the child’s adjustment to her new
school. See Evans, ¶ 45.
¶ 45 Mother further argues that the magistrate’s ruling is contrary
to the “goals and policies” of sections 14-10-124 and 14-10-129,
because it will disincentivize a parent with primary custody from
being willing to agree to additional parenting time with the other
parent. Mother did not raise this argument until her reply brief,
however, and we therefore do not address it. See Drexler, ¶ 24.
19
¶ 46 That being said, it is important to note that the mere fact that
one parent consented to the child’s integration into the other
parent’s home does not automatically mean that the parent seeking
the change of primary parent will succeed. It simply means that
the decision can be made based on the best interests of the child,
without requiring that the party seeking the modification show
endangerment. This makes sense in light of the fact that, given the
integration of the child into the new family, the interest in finality of
the original order is less significant. See Unif. Marriage & Divorce
Act § 409 cmt., 9A pt. II U.L.A. at 439 (noting that the restrictions
on modifying the primary parent are “designed to maximize finality
(and thus assure continuity for the child) without jeopardizing the
child’s interest”).
¶ 47 In sum, the district court applied the correct legal standard
and made factual findings that have record support. Thus, the
magistrate did not err by modifying parenting time.
IV. Modifying Decision-Making Responsibilities
¶ 48 Mother next contends that the magistrate erred by modifying
decision-making responsibility. In response, father argues that the
parties’ joint decision-making responsibility stipulation, adopted by
20
the district court after the magistrate’s ruling, rendered this issue
moot. We agree with father and dismiss this portion of the appeal.
¶ 49 Whether an issue is moot is a question of law that we review
de novo. Colo. Mining Ass’n v. Urbina, 2013 COA 155, ¶ 23; see
also USAA v. Parker, 200 P.3d 350, 356-57 (Colo. 2009) (recognizing
that mootness involves the court’s subject matter jurisdiction and
may be raised at any time).
¶ 50 We will not render an opinion on the merits of an issue when
subsequent events have rendered the issue moot. In re Marriage of
Salby, 126 P.3d 291, 301 (Colo. App. 2005); see also Colo. Mining,
¶ 33 (“The power of judicial review simply does not extend to moot
questions.”). “An issue is moot when a judgment, if rendered,
would have no practical legal effect upon the existing controversy.”
Salby, 126 P.3d at 301.
¶ 51 The parties’ stipulation resolved the issue of decision-making
responsibility. See Lego v. Schmidt, 805 P.2d 1119, 1125 (Colo.
App. 1990) (recognizing that when the parties settle the dispute
which is the subject of an appeal, the issue is moot). And the
court’s order adopting that stipulation superseded the magistrate’s
ruling modifying decision-making responsibility. See Salby, 126
21
P.3d at 301. Thus, any decision we render as to the merits of the
magistrate’s ruling would have no practical legal effect. Therefore,
this portion of mother’s appeal is moot.
V. Appellate Attorney Fees and Costs
¶ 52 Mother requests appellate attorney fees and costs under
section 14-10-119, C.R.S. 2021, based on the financial disparity
between the parties. We disagree with father that mother’s request
fails to set forth a factual basis for her request. See C.A.R. 39.1;
see also In re Marriage of Gutfreund, 148 P.3d 136, 141 (Colo. 2006)
(providing that section 14-10-119 empowers the court to equitably
apportion costs and attorney fees between the parties based on
their relative abilities to pay). However, the district court is better
equipped to determine the factual issues regarding the parties’
current financial resources. Thus, we remand this issue. See
C.A.R. 39.1; In re Marriage of Alvis, 2019 COA 97, ¶ 30.
¶ 53 For his part, father seeks an award of appellate attorney fees
and costs under section 13-17-102(4), C.R.S. 2021, arguing that
mother’s appeal lacked substantial justification. While we reject
mother’s arguments, we decline to assess attorney fees and costs
under section 13-17-102(4). See In re Estate of Shimizu, 2016 COA
22163, ¶ 34 (“[A]n award of fees on appeal is appropriate only in clear
and unequivocal cases where no rational argument is
presented . . . .”); see also In re Parental Responsibilities Concerning
D.P.G., 2020 COA 115, ¶ 37 n.1 (recognizing that section 13-17-102
does not provide for an award of costs). (That being said, in light of
our disposition, father is entitled to appellate costs — though not
attorney fees — pursuant to C.A.R. 39(a).)
VI. Disposition
¶ 54 We dismiss the appeal in part and affirm the court’s order
adopting the magistrate’s ruling modifying parenting time. The case
is remanded to the district court for further proceedings on
mother’s request for section 14-10-119 appellate attorney fees and
costs.
JUDGE DAILEY and JUDGE BERGER concur.
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