Marriage of Ziebinski

24CA0498 Marriage of Ziebinski 10-10-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0498
Larimer County District Court No. 21DR30034
Honorable Susan Blanco, Judge

In re the Marriage of

Danielle Ziebinski n/k/a Danielle Curry,

Appellee,

and

Marek Ziebinski,

Appellant.

ORDER AFFIRMED

Division VII
Opinion by JUDGE TOW
Pawar and Schutz, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced October 10, 2024

No Appearance for Appellee

Marek Ziebinski, Pro Se
¶1 In this post-dissolution of marriage case, Marek Ziebinski

(father) appeals the district court’s order resolving the parties’

dispute over where the parties’ children would attend school. We

affirm.

I. Background

¶2 In 2021, the district court dissolved the marriage between

father and Danielle Ziebinski, now known as Danielle Curry

(mother), and entered a permanent order concerning the parties’

two children — then-two-year-old C.Z. and then-five-year-old L.Z.

In doing so, the court allocated joint decision-making responsibility

to the parties concerning the children’s education.

¶3 For the 2023-2024 school year, C.Z. attended preschool and

L.Z. attended a charter school in Larimer County. Before the 2024-

2025 school year — C.Z.’s kindergarten year and L.Z.’s third grade

year — a dispute arose concerning where the children would attend

school.

¶4 Father filed a motion requesting that the court resolve the

dispute. In his motion, he alleged that the parties had agreed in

writing that both children would move to new schools for the

upcoming school year. He asserted that the charter school L.Z.

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currently attended “lack[s] in academic merit.” Father also

explained that mother lived in Fort Collins while he had relocated to

Loveland, and he wanted the children to attend a school that was

roughly equidistant from the parties. Mother opposed the motion,

denying the existence of a written agreement to change schools and

asserting that any issues with distance from school were of father’s

own making.

¶5 After the parties’ unsuccessful attempt to mediate, a district

court magistrate held a hearing. By the time the matter was heard,

however, both parties had changed their positions regarding the

children’s school. Father now wanted both children to attend the

charter school L.Z. was already attending. Mother wanted the

children to attend her neighborhood school.

¶6 After the hearing, the magistrate determined that it was in the

children’s best interests for them to attend mother’s neighborhood

school. Father requested review by the district court, which

declined to disturb the magistrate’s order.

¶7 Father appeals.

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II. Applicable Law and Standard of Review

¶8 When parents share educational decision-making

responsibility and they are unable to agree on the school for their

children, the district court may break the parental deadlock. In re

Marriage of Thomas, 2021 COA 123, ¶¶ 36-38; see also In re

Marriage of Dauwe, 148 P.3d 282, 285 (Colo. App. 2006) (noting

that there is “no authority that prohibits the court from resolving a

dispute between joint decision makers”). When exercising this

authority, the court is governed by the best interests of the child.

Thomas, ¶¶ 17, 38 n.7.

¶9 We will uphold a district court’s factual findings if the record

supports them. Dauwe, 148 P.3d at 286. And because the

ultimate determination of what is in the children’s best interest is a

matter within the district court’s discretion, we will not disturb its

judgment absent a showing that the court abused that discretion.

Cf. In re Marriage of Ciesluk, 113 P.3d 135, 148 (Colo. 2005). A

court abuses its discretion when its decision is manifestly arbitrary,

unreasonable, or unfair or is based on a misapplication of the law.

In re Marriage of Bochner, 2023 COA 63, ¶ 12. We exercise every

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presumption in favor of upholding its decision. See In re Marriage

of Hatton, 160 P.3d 326, 330 (Colo. App. 2007).

III. Analysis

¶ 10 As father frames the issue, the district court erred by ordering

the children to attend mother’s neighborhood school because the

evidence showed that “the child” (presumably meaning L.Z., since

C.Z. was going to be starting kindergarten at a new school

regardless) was thriving at the charter school, the charter school

meets accreditation standards, and there was no evidence of abuse

or neglect at the charter school. Father contends that, before the

court was allowed to change the children’s school, it was required to

find that the children were being denied a competent education or

subjected to abuse or neglect. Essentially, father argues for the

imposition of something akin to an endangerment standard before a

child’s school can be changed. We reject this contention.

¶ 11 There is no Colorado statute or case law that imposes a

heightened standard to judicial decisions resolving parental

disagreements concerning where the children attend school. To the

contrary, when a district court engages in its impasse-breaking

authority, it must make its decision in the best interests of the

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child. Thomas, ¶¶ 17, 38 n.7; see also § 14-10-124(1.7), C.R.S.

2024 (“[C]hildren have the right to have the determination of

matters relating to parental responsibilities based upon the best

interests of the child.”).

¶ 12 While father continues to acknowledge that Thomas recognized

the district court’s authority to resolve an impasse between joint

decision-makers, he argues that the case is distinguishable. In

particular, father argues that a key fact in Thomas was that the

child was moving from middle school to high school and, thus, was

changing schools in any event. Notably, father does not appear to

acknowledge that C.Z. was moving from preschool to kindergarten

and, thus, like the child in Thomas was changing schools no matter

what.

¶ 13 In any event, nothing in the Thomas decision suggests that the

division placed any weight at all on the fact that the child was

necessarily changing schools. Rather, Thomas stands for the

simple proposition that where two parents who share

decision-making authority cannot come to an agreement on a

particular decision, the district court has the authority to break the

impasse by deciding what is in the best interests of the child.

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¶ 14 Because father reads Thomas too narrowly, he argues that the

court is significantly restricted in exercising its tie-breaking

authority, at least where the decision would entail moving a child

from their established school. Relying entirely on decades-old

out-of-state case law, father attempts to craft his endangerment-like

standard.

¶ 15 He first argues that, because L.Z. was in a “stable

environment” with respect to her schooling, there must be some

showing of endangerment before disrupting that stability. Quoting

Ex parte McLendon, 455 So. 2d 863, 865 (Ala. 1984), he argues that

“[t]he positive good brought about by the modification must more

than offset the inherently disruptive effect caused by uprooting the

child.” Beyond the fact that we are not bound by out-of-state

authority, this case does not support father’s position. The

uprooting referenced in McLendon did not involve a simple change

of schools; rather, that case involved uprooting a child from her

established home with her grandparents and moving her across the

country to live with her mother, who had previously voluntarily

surrendered custody. Id. at 864. In short, the case is wholly

inapposite.

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¶ 16 Father next invokes a sixty-year-old case from the Missouri

Court of Appeals for the proposition that once parties have been

allocated joint decision-making, “no further decision should be

required of the court save to prevent the abuse of the child or the

neglect of his essential interests.” Jenks v. Jenks, 385 S.W.2d 370,

377 (Mo. Ct. App. 1964). Father asserts that the division in Thomas

referenced Jenks, and thus appears to argue the division adopted

its standards. Father is wrong on both counts.

¶ 17 First, contrary to father’s assertion, the Thomas division never

mentioned Jenks. The division did address Griffin v. Griffin, 699

P.2d 407, 409-10 (Colo. 1985), in which the Colorado Supreme

Court discussed Jenks. But, as noted in Thomas, Griffin’s

interpretation of the district court’s statutory authority to be the

decision-maker of last resort has been superseded by intervening

amendments to the relevant statute, section 14-10-130, C.R.S.

2024. Thomas, ¶¶ 33-34. Thus, to the extent Griffin’s

interpretation of the statute may have embraced Jenks, we cannot

say the case has any continuing vitality.

¶ 18 Second, nothing in Thomas suggests that the division intended

to incorporate the standards discussed in Jenks. To the contrary,

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as noted, the division applied a best interests of the child standard.

Thomas, ¶¶ 17, 38 n.7.

¶ 19 Here, the magistrate explicitly followed Thomas and properly

applied the best interests standard. In reaching her decision, the

magistrate found that mother’s neighborhood school has a strong

academic program; it is an “IB school”;1 the school’s teachings

incorporate the use of technology, which will benefit the children;

and it has a gifted and talented program. The court found that

there was little evidence that the charter school had any advantages

over mother’s neighborhood school and that, although father later

changed his mind about the charter school’s academic strengths,

his motion stated that L.Z.’s education was clearly lacking at the

charter school.

¶ 20 Further, the court found that the children have friends who

attend both schools and that this was therefore not a defining

issue. The court also found that, although the charter school may

have students who live closer to father’s home, there was no

1 An “IB school” means an international baccalaureate school.

Mother testified that this meant that the school had an
academically rigorous environment.

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evidence that the children had socialized with any such students

outside of school during father’s parenting time.

¶ 21 Regarding the schools’ locations, the court found that father’s

opposition to the location of mother’s neighborhood school was

disingenuous because the schools were only five minutes from each

other.2 And though father touted the availability of a carpooling

program at the charter school, the magistrate observed that there

was no evidence he had ever used the program in the past.

¶ 22 Finally, the magistrate noted that there was no credible

evidence to show that father would be prevented from being

involved in the children’s schooling or extracurricular activities if

they attended mother’s neighborhood school. The magistrate also

observed that father’s concern over driving distance was an issue of

father’s convenience — not a concern about what is in the best

interests of the children. Ultimately, the court concluded that it

was in the children’s best interests that they attend mother’s

neighborhood school for the 2024-2025 school year.

2 Indeed, based on the father’s hearing exhibits, mother’s

neighborhood school appears to be several minutes closer to father’s
home.

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¶ 23 To the extent that father points to contrary evidence, it was for

the magistrate — not us — to resolve any factual conflicts. It was

the magistrate’s responsibility to determine the credibility of

witnesses, the weight to give the testimony, and the inferences to be

drawn from the evidence. See In re Estate of Owens, 2017 COA 53,

¶ 22; see also In re Marriage of Udis, 780 P.2d 499, 504 (Colo. 1989)

(presuming that the district court considered all the evidence in

reaching its decision). We cannot reweigh the court’s factual

determinations when, as here, the record supports them. See

Owens, ¶ 22; see also Hatton, 160 P.3d at 330.

¶ 24 Finally, we reject father’s objection to the magistrate

considering his statements in his motion that the charter school

was not up to academic standards. Despite father later changing

course, which the magistrate acknowledged, the fact remains he

made the statements — indeed, he made them under oath because

the motion was a verified motion. Father points to no Colorado

case law, nor are we aware of any, suggesting that this was an

improper consideration.

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¶ 25 Because the record supports the magistrate’s findings, we will

not disturb them. See Owens, ¶ 22. And in light of those findings,

we cannot say the magistrate abused her discretion.

IV. Disposition

¶ 26 The order is affirmed.

JUDGE PAWAR and JUDGE SCHUTZ concur.

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