21CA0138 Marriage of Nkouka 12-09-2021
COLORADO COURT OF APPEALS
Court of Appeals No. 21CA0138
City and County of Denver District Court No. 19DR1755
Honorable Jennifer B. Torrington, Judge
In re the Marriage of
Roukiatou Geraldo,
Appellant,
and
Koami Nkouka,
Appellee.
JUDGMENT AFFIRMED
Division IV
Opinion by JUDGE TOW
J. Jones and Freyre, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced December 9, 2021
Roukiatou Geraldo, Pro Se
No Appearance for Appellee
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¶ 1 Roukiatou Geraldo (wife) appeals the permanent orders
entered in connection with the dissolution of her marriage to Koami
Nkouka (husband). We affirm.
I. Facts
¶ 2 The parties married in 2003 and have three children, who
were seventeen, fourteen, and three years old as of the permanent
orders hearing date. All three children have medical issues that
require the parents to take them for regular medical appointments
or comply with treatment recommendations made by medical
providers.
¶ 3 In 2019, wife petitioned for a decree of legal separation, which
the court converted to a dissolution proceeding at husband’s
request. The parties and their children continued to live together in
the marital home during the proceedings.
¶ 4 The court appointed a child and family investigator (CFI) on a
limited basis to investigate whether the children’s medical needs
were being met by the parents. The CFI opined that the parents’
inability to work together prevented them from giving the children,
particularly the youngest child, regular and consistent medical
treatment. Based on the CFI’s report, and after hearing from the
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parties at a hearing, the court entered temporary orders giving
husband sole decision-making responsibility for the children.
¶ 5 On husband’s motion, the court reappointed the CFI to make
recommendations concerning the allocation of parental
responsibilities for permanent orders. Wife did not participate in
the second CFI investigation. In her report, the CFI summarized
that the older children “have greatly improved in, and due to,
[f]ather’s care,” while the youngest child was “not receiving the
consistent care that he so desperately needs” because of the parties’
continued inability to work together. The CFI recommended that
the children reside with husband and that he continue to have sole
decision-making responsibility.
¶ 6 Husband and the CFI appeared at the permanent orders
hearing. Wife did not appear. The district court entered the decree
of dissolution and written permanent orders shortly after the
hearing. The court divided the marital property, which included
awarding the marital home to husband; declined to award either
party spousal maintenance; named husband the children’s primary
residential parent and sole decision-maker; entered a limited
parenting time schedule for wife at a neutral public location or
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library; and declined to order child support “as the parties continue
to cohabitate in the same residence with their minor children.”
II. Denial of Wife’s Motion to Continue
¶ 7 Wife contends that the district court abused its discretion by
denying her motion to continue the permanent orders hearing date.
We discern no abuse of discretion.
¶ 8 A court should grant a motion to continue only upon a
showing of good cause. Miller v. Brannon, 207 P.3d 923, 932 (Colo.
App. 2009); see C.R.C.P. 121 § 1-11. A continuance of a scheduled
hearing should generally be limited to situations in which
unforeseen and exceptional circumstances would require diligent
parties to seek a continuance. See Todd v. Bear Valley Vill.
Apartments, 980 P.2d 973, 976 (Colo. 1999).
¶ 9 A motion to continue is addressed to the court’s discretion and
we will not disturb its ruling on appeal absent a showing of an
abuse of that discretion. People in Interest of R.J.B., 2021 COA 4, ¶
13. A court abuses its discretion when its ruling is manifestly
arbitrary, unfair, or unreasonable. Id.
¶ 10 Husband served wife with notice of the December 29, 2020,
permanent orders hearing on August 20, 2020. On December 23,
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2020, wife sought a new permanent orders hearing date because
December 29 was the youngest child’s birthday and she wanted to
“focus on [her] baby’s birthday on that date” and “will not have time
for anything else.”
¶ 11 This record does not establish good cause. Wife could have,
but chose not to, seek a continuance when she was served with the
notice of hearing in August or any time in the following months.
Instead, wife waited until six days before the scheduled hearing
date to notify the court that she had a conflict. Moreover, wife did
not show that the child’s birthday was an unforeseen or exceptional
circumstance requiring a continuance. See Kallas v. Spinozzi, 2014
COA 164, ¶¶ 43-44 (holding that no good cause for continuance
existed when attorney’s health issues were not only foreseeable, but
the related complications were predicted by and proactively
addressed by the court months earlier); but cf. Todd, 980 P.2d at
977 (holding that emergency back surgery is an unforeseen and
exceptional circumstance). We perceive no abuse of discretion in
the court’s denial of wife’s request for a continuance. See R.J.B.,
(1928) (affirming denial of a motion to continue that was not made
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“until the very day and hour of trial,” notwithstanding the fact that
the trial had been on the court’s docket for more than five months).
III. Permanent Orders
¶ 12 Wife next contends that the district court erred by dividing the
marital property without considering her financial and homemaking
contributions to the marital home. Wife also contends that the
court failed to consider husband’s character and other relevant
facts concerning the children’s medical care when allocating
parental responsibilities. We disagree.
¶ 13 Wife failed to appear at the permanent orders hearing. That
hearing was wife’s opportunity to present evidence of her
contributions to the marital home and husband’s character, as well
as any evidence challenging husband’s evidence or the CFI’s
reports. See In re Parental Responsibilities Concerning N.J.C., 2019
COA 153M, ¶ 49 (holding that if mother wanted the magistrate to
consider certain evidence, she should have presented such evidence
to the magistrate). Because wife did not attend the hearing to
present evidence relevant to her positions concerning the property
division or allocation of parental responsibilities, she left the court
with no choice but to issue the permanent orders based on the
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evidence that husband and the CFI presented. See In re Marriage of
Eisenhuth, 976 P.2d 896, 901 (Colo. App. 1999) (holding that the
district court is required to consider the evidence presented to it; it
does not act as a surrogate attorney for a party who has chosen not
to appear); see also In re Marriage of Krejci, 2013 COA 6, ¶ 23
(holding that the parties must present relevant evidence to the court
and their failure to do so does not provide grounds for reversal).
For this reason, we decline to reverse the permanent orders.
IV. Conclusion
¶ 14 The judgment is affirmed.
JUDGE J. JONES and JUDGE FREYRE concur.
