23CA1239 Marriage of Smiley 07-25-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA1239
Boulder County District Court No. 22DR603
Honorable Thomas F. Mulvahill, Judge
In re the Marriage of
Candance Smiley, n/k/a Sebastian Bray,
Appellant,
and
Troy Smiley,
Appellee.
JUDGMENT AFFIRMED
Division V
Opinion by JUDGE LUM
Harris and Brown, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced July 25, 2024
Candance Smiley, n/k/a Sebastian Bray, Pro Se
Peak Legal Services, LLC, Todd Narum, Denver, Colorado, for Appellee
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¶ 1 Candace Smiley, n/k/a Sebastian Bray,
1
appeals from the trial
court’s permanent orders entered in connection with the dissolution
of his marriage to Troy Smiley. We affirm the judgment.
I. Background
¶ 2 The parties are the parents of three children, who were all
minors at the time of the dissolution proceedings. During the case,
a child and family investigator (CFI) was appointed to make
recommendations about the children’s best interests. The CFI filed
an initial report about a month before the originally scheduled
permanent orders hearing. The hearing was then continued twice
— the first time so that Bray could address a medical issue and the
second time so that he could retain new counsel after his counsel
withdrew. Two days before the final rescheduled hearing date, the
CFI filed an updated report.
¶ 3 Bray did not retain new counsel, and he represented himself
at the permanent orders hearing. At the beginning of the hearing,
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Because the final order from the trial court refers to Bray by his
former name, we must include that name on our caption page as
well. We mean no disrespect in doing so.
2
Bray moved for a continuance due to the updated report’s late
disclosure, which the trial court denied.
¶ 4 During the hearing, the trial court heard witness testimony
and received evidence from both sides. In its permanent orders, the
trial court (1) awarded Smiley sole decision-making authority; (2)
ordered that the children would reside primarily with Smiley in
Florida, with some parenting time for Bray with the two younger
children on weekends, holidays, and school breaks; and (3) entered
other orders regarding the division of property, spousal
maintenance, and child support.
¶ 5 Bray appeals.
II. Motion to Continue
¶ 6 As best we can discern, Bray first argues that the trial court
erred by denying his motion to continue the permanent orders
hearing. We disagree.
A. Legal Principles and Standard of Review
¶ 7 We review the trial court’s denial of a motion to continue for
an abuse of discretion. Miller v. Brannon, 207 P.3d 923, 932 (Colo.
App. 2009). A court abuses its discretion only if its decision is
manifestly arbitrary, unreasonable, or unfair. Id.
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¶ 8 A court should grant a motion to continue only upon a
showing of good cause. C.R.C.P. 121, § 1-11; Miller, 207 P.3d at
932-33. Accordingly, a continuance should generally be limited to
situations in which unforeseen and exceptional circumstances
would require diligent attorneys to seek an adjournment. Todd v.
Bear Valley Vill. Apartments, 980 P.2d 973, 976 (Colo. 1999). The
moving party bears the burden of establishing the requisite good
cause. In re Marriage of Lorenzo, 721 P.2d 155, 156 (Colo. App.
1986). And to obtain reversal based on the denial of a continuance,
the moving party must demonstrate actual prejudice arising from
the denial. Black v. Black, 2018 COA 7, ¶ 107.
B. Analysis
¶ 9 According to the permanent orders, Bray moved to continue
the hearing because the late disclosure of the updated CFI report
prevented him from subpoenaing witnesses to rebut it. The trial
court denied Bray’s motion because the original report identified all
of the witnesses Bray wished to subpoena; therefore, they were
known to him well in advance of the hearing. And the trial court
noted that the report was delayed in part because Bray did not
cooperate with the CFI.
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¶ 10 On appeal, Bray fails to explain how the court erred in this
reasoning or how he was prejudiced by the denial. While we
broadly construe arguments made by self-represented litigants, we
cannot rewrite Bray’s pleadings on his behalf or make arguments
that he has not. Johnson v. McGrath, 2024 COA 5, ¶ 10. We
therefore discern no basis for reversal. Black, ¶ 107.
III. Exclusion of Evidence
¶ 11 Second, Bray argues that the trial court improperly excluded
evidence at the hearing.
A. Legal Principles and Standard of Review
¶ 12 We review a trial court ruling on the admissibility of evidence
for an abuse of discretion. Bly v. Story, 241 P.3d 529, 535 (Colo.
2010); E-470 Pub. Highway Auth. v. 455 Co., 3 P.3d 18, 23 (Colo.
2000).
¶ 13 In general, all relevant evidence is admissible, CRE 402, and
the Colorado Rules of Evidence strongly favor admission of material
evidence, Palizzi v. City of Brighton, 228 P.3d 957, 962 (Colo. 2010).
Even so, we will reverse a trial court’s decision to exclude evidence
only if the exclusion affected a substantial right of a party. Williams
v. Chrysler Ins. Co., 928 P.2d 1375, 1380 (Colo. App. 1996); C.A.R.
5
35(e). An error affects a substantial right only if “it can be said with
fair assurance that the error substantially influenced the outcome
of the case or impaired the basic fairness of the trial itself.” Banek
v. Thomas, 733 P.2d 1171, 1178 (Colo. 1986).
B. Analysis
¶ 14 Bray argues that he was not permitted to admit (1) “some of
the exhibits” that he submitted for the hearing or (2) “exhibits to
impeach [the CFI] on the stand.” But Bray does not identify what
evidence he was barred from introducing; how that evidence was
relevant, material, and admissible; or how he was prejudiced by the
exclusion. It is therefore impossible to discern whether the court
abused its discretion or whether the error, if any, affected Bray’s
substantial rights. Accordingly, we decline to review this argument.
Vallagio at Inverness Residential Condo. Ass’n v. Metro. Homes, Inc.,
2017 CO 69, ¶¶ 39-40 (declining to address conclusory assertions
presented without supporting argument or authority).
IV. Talking Parents Log Exhibit
¶ 15 As best as we understand him, Bray argues that the trial court
improperly counted against him the time that Smiley spent looking
for a Talking Parents log exhibit during Bray’s cross-examination of
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Smiley. However, Bray doesn’t make any coherent argument about
why the trial court’s timekeeping was erroneous. See Maloney v.
Brassfield, 251 P.3d 1097, 1101-05 (Colo. App. 2010) (noting that
the “conduct of the trial and the control of counsel . . . are fully
within the discretion of trial court” (quoting Smartt v. Lamar Oil Co.,
asserting that (1) he was unable to question Smiley about the
exhibit and (2) Smiley was engaged in a “stall tactic” to limit Bray’s
ability to “prove the best interests of the children, child custody,
child support, and maintenance,” Bray doesn’t explain how his
inability to examine Smiley about the contents of the Talking
Parents log prejudiced him. We therefore also decline to address
this argument as undeveloped. Vallagio, ¶¶ 39-40.
V. Disposition
¶ 16 The judgment is affirmed.
JUDGE HARRIS and JUDGE BROWN concur.
