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.
1
¶ 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
2
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.
3
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.
4
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
5
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
6
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
7
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
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
8
“[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.
9
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
10
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.
