Marriage of Gillispie

23CA1603 Marriage of Gillispie 09-05-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1603

Jefferson County District Court No. 19DR1924

Honorable Randall C. Arp, Judge

In re the Marriage of

Justin Gillispie,

Appellant,

and

Kelsey Gillispie,

Appellee.

ORDER AFFIRMED

Division V

Opinion by JUDGE FREYRE

Grove and Lum, JJ., concur

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

Announced September 5, 2024

Justin Gillispie, Pro Se

No Appearance for Appellee

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¶ 1 Kelsey Gillispie (mother) filed a section 14-10-129.5, C.R.S.

2024, motion against Justin Gillispie (father) concerning disputes

over parenting time for their only child. After a magistrate granted

the motion, the district court, on review, entered an order adopting

the magistrate’s decision. Father now appeals the district court’s

order, and we affirm.

I. Relevant Facts

¶ 2 The parties were married in 2015 and share one child. The

marriage deteriorated, culminating in a domestic violence incident

committed by mother against father in December 2019. She was

later arrested and charged with misdemeanor domestic violence and

violation of a protection order. Soon after, father filed a petition for

dissolution.

¶ 3 In 2020, the district court issued a dissolution decree

incorporating the parties’ stipulated parenting plan. Under the

plan, father would be the child’s primary residential parent until

early 2021, at which time the parties would share equal parenting

time. The plan also provided that the parties would transition to

joint decision-making responsibility upon mother successfully

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completing the terms and conditions of her probation. An expert

report, which detailed the domestic violence incident, was

instrumental in formulating the plan. Mother was ultimately

successful in completing her probation.

¶ 4 In July 2021, the district court approved the parties’ mediated

agreement, which outlined a specific parenting time schedule.

¶ 5 On October 27, 2022, mother filed a motion for the

“enforcement of [the] parenting plan,” alleging that father was

refusing to return the child. Later that day, the district court

entered an order stating that it would take “no action,” on the

motion, but it reminded the parties that they were obligated to

follow the July 2021 order.

¶ 6 Mother filed numerous subsequent motions, but a magistrate

denied them all, resulting in her not having parenting time for the

next several months. Of note, the magistrate denied mother’s

motion concerning parenting time disputes under section

14-10-129.5 because she did not confer with father beforehand and

did not attempt mediation as required under the parenting plan.

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¶ 7 On February 7, 2023, the district court ordered the parties to

resume their equal parenting time schedule. Two weeks later,

mother filed another section 14-10-129.5 motion to address her

denied parenting time from October 27, 2022, through February 7,

2023. Father did not respond to the motion, and the court set an

evidentiary hearing for May 15, 2023.

¶ 8 On the day of the hearing, father filed a motion to continue,

asserting, among other things, that he had not been adequately

served with mother’s motion. The magistrate orally denied the

motion. The magistrate then heard testimony from both parties.

After the close of the evidence, the magistrate entered “detailed” oral

findings and conclusions of law. The subsequent written order

includes the following findings:

• Father withheld the child from mother for approximately

four months.

• Father gave no justifiable reasons for not giving mother

her scheduled parenting time.

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• Father’s “deviations from the parenting time schedule

were not in the child’s best interests and caused negative

emotional impact for the child.”

• The child must receive immediate “emotional treatment”

from a therapist.

• Mother successfully met her burden of proof by showing

that father had been, or was likely to be, in substantial

noncompliance with the parenting time order.

As remedial orders, the magistrate, finding it in the child’s best

interests, (1) gave mother makeup parenting time; (2) directed the

parties to enroll the child in therapy; (3) granted mother sole

decision-making responsibility over the child’s medical care; and (4)

awarded mother her attorney fees incurred to enforce the parenting

time order.

¶ 9 Father petitioned for district court review of the magistrate’s

decision. As part of the petition, he asked the court to consider

newly discovered evidence. According to him, new evidence showed

that mother perjured herself when testifying that she was unaware

of an October 2022 police investigation into the child’s abuse

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allegations against her significant other. The district court adopted

the magistrate’s decision and in doing so, denied father’s newly

discovered evidence claim because it could have been presented at

the hearing and would not have changed the outcome of the case.

The court noted that father did not file the hearing transcript,

which included the magistrate’s oral ruling.

II. Missing Transcript

¶ 10 As in the district court, father did not submit the hearing

transcript as part of the appellate record. As the appellant, it is his

responsibility to “include in the record transcripts of all proceedings

necessary for considering and deciding the issues on appeal.”

C.A.R. 10(d)(3). His failure to include all transcripts is significant

because, without a complete record, we must presume that the

omitted portions would support the magistrate’s findings and

conclusions. See In re Marriage of Dean, 2017 COA 51, ¶ 13

(“Where the appellant fails to provide . . . a transcript, the reviewing

court must presume that the record supports the judgment.”); In re

Marriage of Beatty, 2012 COA 71, ¶ 15 (where the record is

incomplete, the appellate court must assume that the evidence

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supports the district court’s findings); see also McCall v. Meyers, 94

P.3d 1271, 1272 (Colo. App. 2004) (“A party cannot overcome a

deficiency in the record by statements in the briefs.”). Our review

must include all the evidence, both favorable and unfavorable to

father.

¶ 11 Although we recognize that father appears pro se, he is bound

by the same rules of procedure as attorneys. See Yadon v.

Southward, 64 P.3d 909, 912 (Colo. App. 2002); see also Dean,

¶ 12; Rosenberg v. Grady, 843 P.2d 25, 26 (Colo. App. 1992) (“A pro

se litigant who chooses to rely upon his own understanding of legal

principles and procedures is required to follow the same procedural

rules as those who are qualified to practice law and must be

prepared to accept the consequences of his mistakes and errors.”).

III. Parenting Time Disputes

A. Appellate Standard of Review

¶ 12 Our review of a district court’s order is effectively a second

layer of appellate review, and we must accept a magistrate’s factual

findings unless they are clearly erroneous. In re Marriage of

Thorburn, 2022 COA 80, ¶ 25; see C.R.M. 7(a)(9). A court’s factual

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findings are clearly erroneous only if there is no record support for

them. Thorburn, ¶ 25. We review the magistrate’s legal conclusions

de novo. See In re Parental Responsibilities Concerning S.Z.S., 2022

COA 105, ¶ 11.

B. Governing Law

¶ 13 Section 14-10-129.5 governs disputes over parenting time. If,

after a hearing, the court finds that a party has not complied with a

parenting time order or schedule, it may impose remedial orders.

§ 14-10-129.5(1), (2)(b). In this context, the court may order

makeup parenting time, enter “[a]ny other order that may promote

the [child’s] best interests,” or require the party who has failed to

provide court-ordered parenting time to pay the aggrieved party’s

attorney fees. § 14-10-129.5(2)(d), (h), (4).

C. Discussion

1. Continuance

¶ 14 Father first contends that the magistrate erred by denying his

motion for a continuance. We disagree.

¶ 15 A continuance of a hearing “shall be granted only for good

cause,” C.R.C.P. 121, § 1-11, meaning that “there are unforeseen

and exceptional circumstances requiring a continuance.” Miller v.

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Brannon, 207 P.3d 923, 932 (Colo. App. 2009). The burden is on

the moving party to show good cause for a continuance. See In re

Marriage of Lorenzo, 721 P.2d 155, 156 (Colo. App. 1986).

¶ 16 The decision to grant or deny a continuance is a matter

entrusted to the sound discretion of the district court, and the

court’s decision will not be disturbed on review absent a clear abuse

of that discretion. In re Marriage of Rodrick, 176 P.3d 806, 814

(Colo. App. 2007); see People in Interest of E.B., 2022 CO 55, ¶ 14.

A court abuses its discretion when its ruling is manifestly arbitrary,

unfair, or unreasonable or when it misapplies the law. E.B., ¶ 14.

In determining whether a court abused its discretion, the appellate

court must consider the totality of the circumstances as reflected by

the record. Id.

¶ 17 On February 21, 2023, mother filed her second section

14-10-129.5 motion and served father by email.

¶ 18 On March 22, 2023, the magistrate determined that while

father did not file a response to the motion, there was not enough

information to enter a default ruling, and, as a result, set the

matter for an evidentiary hearing.

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¶ 19 On April 6, 2023, mother filed a notice with a hearing date of

May 15, 2023; again, the certificate of service indicated that it was

served on father via email.

¶ 20 Father filed a motion for a continuance on the day of the

hearing. He asserted that he could not respond to mother’s section

14-10-129.5 motion because he did not receive a copy until May 9,

2023. In the end, he sought a continuance “to retain counsel and

have an opportunity to examine all the claims and relevant law.”

The magistrate denied his request.

¶ 21 Without a transcript, we must presume the magistrate’s denial

of father’s request for a continuance on the hearing date was proper

and that he received adequate notice of mother’s section

14-10-129.5 motion. See Dean, ¶ 13; see also Rodrick, 176 P.3d at

814.

¶ 22 Father also argues that because he never consented to service

by electronic means as required under C.R.C.P. 5(b)(2)(D), the

magistrate erroneously held him in default or “allowed a default

hearing to proceed.” He is mistaken. The magistrate did not enter

a default or a default judgment. Instead, the magistrate set a

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contested hearing on mother’s section 14-10-129.5 motion, at

which father appeared and participated.

2. Claim Preclusion (Res Judicata)

¶ 23 Father contends that mother’s section 14-10-129.5 motion

was barred by the principle of claim preclusion (formerly res

judicata). See In re Parental Responsibilities Concerning T.L.B.,

2012 COA 8, ¶ 39. He reasons that mother filed numerous

motions, including a prior section 14-10-129.5 motion, addressing

the “same subject matter” as her latest section 14-10-129.5 motion,

all of which the court had already denied. We are not persuaded.

¶ 24 We review legal determinations, such as the applicability of the

doctrine of claim preclusion, de novo. Madalena v. Zurich Am. Ins.

Co., 2023 COA 32, ¶ 64.

¶ 25 Claim preclusion bars a second action on a claim that was, or

could have been, litigated in a prior proceeding. T.L.B., ¶ 39; In re

Marriage of Tozer, 2017 COA 151, ¶ 10. Its purpose is to prevent

needless litigation. In re Marriage of Aragon, 2019 COA 76, ¶ 23.

¶ 26 Similarly, the related doctrine of issue preclusion (formerly

collateral estoppel) “prevents the re-litigation of discrete issues,

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rather than causes of action.” Nation SLP, LLC v. Bruner, 2022 COA

76, ¶ 17 (quoting Foster v. Plock, 2017 CO 39, ¶ 13). “Under this

doctrine, once a particular issue is finally determined in one

proceeding, parties to this proceeding are barred from re-litigating

that particular issue again in a second proceeding, even when the

actual claims for relief in the two proceedings are different.” Foster,

¶ 13.

¶ 27 However, claim preclusion and issue preclusion apply only to

later, independent proceedings; these doctrines are not used to

preclude a party’s later assertions in the same litigation. In re

Marriage of Mallon, 956 P.2d 642, 645 (Colo. App. 1998); Tozer,

¶ 10.

¶ 28 Because the magistrate’s decision granting mother’s section

14-10-129.5 motion was entered in the same proceeding and not in

a later, independent one, it is not barred by claim or issue

preclusion. See Tozer, ¶ 11.

¶ 29 But because father is pro se, we must interpret his pleadings

liberally. See Minshall v. Johnston, 2018 COA 44, ¶ 21.

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His assertion, as best we understand it, centers on the applicability

of the law of the case doctrine. See Mallon, 956 P.2d at 645. This

doctrine recognizes that prior relevant rulings made in the same

case will be followed unless such application results in error or the

ruling is no longer sound due to changed conditions. Stockdale v.

Ellsworth, 2017 CO 109, ¶ 37. The doctrine, however, is

discretionary when applied to a district court’s own prior rulings.

In re Marriage of Burford, 26 P.3d 550, 554 (Colo. App. 2001); see

Stockdale, ¶ 37 (A district court “is not inexorably bound by its own

precedents.” (quoting Brodeur v. Am. Home Assurance Co., 169 P.3d

139, 149 (Colo. 2007))). It does not preclude the court from

clarifying or even revisiting its prior rulings. S. Cross Ranches, LLC

v. JBC Agric. Mgmt., LLC, 2019 COA 58, ¶ 40.

¶ 30 Because the application of the law of the case doctrine is

discretionary and father has failed to articulate how the magistrate

abused its discretion, we discern no error. See Burford, 26 P.3d at

554; see also S. Cross Ranches, ¶ 40. In any event, the record

establishes that the court did not reach the merits of mother’s

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allegations of father’s noncompliance with the parenting time order

until after resolving her section 14-10-129.5 motion.

3. The Magistrate’s Finding of Noncompliance with the Parenting

Time Order or Schedule

¶ 31 Next, father contends that (1) his evidence “absolutely” proved

that he did not “arbitrarily” withhold parenting time from mother;

and (2) the magistrate failed to recognize that mother’s section

14-10-129.5 motions were another attempt at committing domestic

violence against him.

¶ 32 But father’s contention essentially asks us to reweigh the

evidence and make credibility assessments, which we cannot do.

See Thorburn, ¶ 49 (it is for the district court to determine witness

credibility and the weight, probative force, and sufficiency of the

evidence, as well as the inferences and conclusions to be drawn

therefrom); see also In re Marriage of Amich, 192 P.3d 422, 424

(Colo. App. 2007) (The district 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.”); In re Marriage of Hatton,

160 P.3d 326, 329-30 (Colo. App. 2007) (we may presume that the

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district court considered all of the evidence before it). Moreover, in

the absence of the hearing transcript, we must presume the

evidence supports the magistrate’s findings and ultimate

determination that he violated the parenting time order or schedule.

See Dean, ¶ 13; see also Beatty, ¶ 15.

¶ 33 Father also appears to argue that the district court on review

erred by not accepting his newly discovered evidence. He

specifically references a police report, and claims that it proves

mother committed perjury by testifying that an October 2022

investigation into child abuse allegations never happened. But

apart from referencing the report, he does not explain why he was

unable to provide the report or the information it contains at the

hearing. Therefore, we do not address this undeveloped argument.

See In re Marriage of Zander, 2019 COA 149, ¶ 27, aff’d, 2021 CO

12.

4. Constitutional Violations

¶ 34 Father asserts numerous state and federal constitutional

violations. But he did not raise them in his petition for review with

the district court. Thus, we will not address them now. See People

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

seeking review of a magistrate’s decision with the district court

must raise an issue with particularity in the petition so that the

district court can review and correct any error by the magistrate);

see also City & Cnty. of Broomfield v. Farmers Reservoir & Irrigation

Co., 239 P.3d 1270, 1276 (Colo. 2010) (“We do not consider

constitutional issues raised for the first time on appeal.”).

¶ 35 While father raised the issue that the magistrate erred by

denying him his statutory rights as a victim of domestic violence, a

claim rejected by the district court, we decline to review the issue as

undeveloped. See Zander, ¶ 27.

5. Remedial Orders

¶ 36 Father contends that the magistrate erred by imposing the

remedial order that gave mother sole responsibility over the child’s

medical care. Specifically, he claims that (1) the magistrate gave no

reasoning for the modification from joint to sole decision-making

responsibility; (2) the magistrate disregarded the fact that he was a

victim of mother’s domestic violence; (3) mother intends to wield

sole decision-making responsibility as a “weapon”; and (4) mother

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disregarded her obligations under the prior joint decision-making

responsibility arrangement.

¶ 37 However, without the benefit of the hearing transcript, we

must presume, like the district court, that the magistrate made all

the necessary findings, that the record supports such findings, and

that the magistrate’s remedial order is correct. See Dean, ¶ 13; see

also Beatty, ¶ 15.

¶ 38 For the same reasons, we reject father’s contention that the

magistrate erred by awarding mother her attorney fees in

connection with her section 14-10-129.5 motion.

6. Bias

¶ 39 Last, father contends that the magistrate exhibited bias

against men because mother’s victory “should never have occurred.”

But adverse rulings, without more, do not establish bias. See Dean,

¶ 24; see also People v. Schupper, 2014 COA 80M, ¶ 59 (the record

must clearly establish bias, and there must be more than

speculation).

IV. Disposition

¶ 40 The order is affirmed.

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JUDGE GROVE and JUDGE LUM concur.