Marriage of Byarlay

23CA1708 Marriage of Byarlay 09-19-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1708
Weld County District Court No. 12DR787
Honorable Anita Crowther, Judge

In re the Marriage of

Shad Harold Byarlay,

Appellee,

and

Rachael Tippmann,

Appellant.

ORDER AFFIRMED

Division VII
Opinion by JUDGE KUHN
Gomez, J., concurs
Tow, J., dissents

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced September 19, 2024

Choice City Family Law, LLC, Desiree Gray, Fort Collins, Colorado, for Appellee

Rachael Tippmann, Pro Se
¶1 In this post-dissolution of marriage proceeding involving Shad

Harold Byarlay (father) and Rachael Tippmann (mother), mother

appeals the district court’s order granting father’s motion to

relocate with the parties’ child and modifying the allocation of

parental responsibilities. We affirm.

I. Background

¶2 The parties divorced in 2013 and have one child. Under the

permanent orders, the parties shared decision-making

responsibilities and were equally allocated parenting time, although

mother was designated the primary residential parent for purposes

of enrolling the child in school. The initial allocation of parental

responsibilities was later modified to award father decision-making

responsibility for the child’s education. At that time, father was

also designated the child’s primary residential parent for schooling

purposes, although the parties maintained an equal allocation of

parenting time.

¶3 In 2021, mother filed a motion to modify parenting time and

decision-making responsibilities. She sought sole decision-making

responsibilities, asked to be redesignated the primary residential

parent, and sought to reduce father’s parenting time to every other

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weekend. Mother also moved for temporary orders modifying

parenting time and decision-making responsibilities. While

mother’s motions were still pending, father moved to relocate with

the child from his current residence in Lyons to Grand Junction,

because he had obtained a new job in Grand Junction.

¶4 The district court entered temporary orders providing that

father would have parenting time every weekend until his relocation

to Grand Junction, and then significant telephone and video call

parenting time after that. Roughly six months later, in March

2023, father amended his motion to relocate. He indicated that he

had not been able to remain in Grand Junction due to

circumstances beyond his control, and instead, he had already

relocated to Burlington, where he had family.

¶5 Following a hearing, the court granted father’s motion on

August 7. The court found that it was in the child’s best interests

to relocate with father to Burlington for the start of the 2023 school

year. Accordingly, the court ordered that during the school year,

the child would reside primarily with father in Burlington, with

mother receiving parenting time every other weekend. The court left

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its existing allocation of decision-making responsibilities

unchanged.

II. Discussion

¶6 As an initial matter, we address the dissent’s position that we

lack subject matter jurisdiction to consider mother’s appeal

because her notice of appeal was not timely filed. Under C.A.R.

4(a)(1), mother was required to file her appeal of the court’s August

7 order within forty-nine days of its entry. Yet, as the dissent notes,

she filed her notice of appeal roughly eight days after this deadline

had expired.

¶7 This court ordered mother to show cause why her appeal

should not be dismissed as untimely and ordered her to provide a

copy of the order she was appealing. Mother filed two documents

on the same date in response, one titled “Motion to/for Relief from

Adverse Action &/or Dismissal” and the other titled “Motion for stay

of order and writs while pending appeal[, and] Motion for extension

of time.” In the first document, she described how the copy of the

order she had sent to this court had been returned by the post

office as undeliverable. She included a copy of the envelope

demonstrating that fact. She also asserted that the welfare and

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safety of the child was at risk, the child was endangered by the

order, and the appeal was urgent. In the second document, she

described her own medical diagnosis and asserted generally that

the trauma of the case affected her ability to meet strict deadlines.

After receiving those filings, a motions division of this court

discharged the order to show cause and permitted the appeal to

move forward.

¶8 It’s true that we’re not bound by a motions division’s ruling.

Chavez v. Chavez, 2020 COA 70, ¶ 13. But we generally will not

revisit a motions division’s ruling on an issue unless the ruling

raises serious questions about our own jurisdiction. FSDW, LLC v.

First Nat’l Bank, 94 P.3d 1260, 1262 (Colo. App. 2004); see also

Parker v. USAA, 216 P.3d 7, 10 (Colo. App. 2007), aff’d, 200 P.3d

350 (Colo. 2009). Because we discern no such serious questions on

this record, we decline to nostra sponte reconsider the motions

division’s decision to accept mother’s untimely appeal.

¶9 But even though we won’t dismiss mother’s entire appeal

outright, we note that some of her contentions are not properly

before us for review. Mother asserts various errors related to

multiple orders issued by the district court after the order granting

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father’s motion to relocate with the child. Specifically, she contends

that the district court erred by issuing writs in aid of enforcement of

the relocation order and that it would be improper for the court to

hold her in contempt of that order.

¶ 10 In its show cause order, this court ordered mother to provide

copies of any orders she sought to appeal in compliance with C.A.R.

3(d)(8). In response, mother indicated that she was only appealing

the August 7, 2023, order permitting relocation. Further, she could

not yet have sought review of the contempt proceedings considering

that the court hasn’t issued a final “order deciding the issue of

contempt and sanctions.” C.R.C.P. 107(f); see also C.A.R. 1 (stating

that an appeal may be prosecuted only from a final, appealable

judgment or order). Accordingly — given this court’s earlier order

and mother’s response — we decline to consider mother’s

contentions of error as to these later issues.

¶ 11 We will therefore consider only mother’s numerous challenges

to the district court’s order granting father’s motion to relocate with

the child and modifying the allocation of parental responsibilities.

And because we disagree with those challenges, we affirm the order.

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A. Applicable Legal Standards

¶ 12 Section 14-10-129(2)(c), C.R.S. 2024, establishes the

procedure that the court must follow in deciding a majority or equal

parent’s post-decree motion to relocate. In re Marriage of Ciesluk,

113 P.3d 135, 140-42 (Colo. 2005); In re Marriage of DeZalia, 151

P.3d 647, 650 (Colo. App. 2006). The court must consider the best

interest factors in section 14-10-124(1.5)(a), C.R.S. 2024, and the

relocation factors in section 14-10-129(2)(c) when evaluating the

child’s best interests as well as the parents’ interests relative to the

requested relocation. See Ciesluk, 113 P.3d at 140, 142.

¶ 13 The court must begin its analysis with each parent on equal

footing and may not presume either that a child is better off or

disadvantaged by relocating with the moving parent. Id. at 147.

Each parent has the burden to persuade the court that the

relocation would be in, or contrary to, the best interests of the child.

Id. at 148. The court must disclose the reasons for its decision and

make specific findings with respect to the relevant statutory factors.

Id. at 148, 150; see also § 14-10-129(2)(c); C.R.C.P. 52 (district

court shall “set forth the findings of fact and conclusions of law

which constitute the grounds of its action”). The court need not

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make specific findings on every statutory factor, although there

must be some indication that the court considered the pertinent

factors. People in Interest of A.M.K., 68 P.3d 563, 566 (Colo. App.

2003).

¶ 14 We review the court’s relocation decision for an abuse of

discretion, see Ciesluk, 113 P.3d at 148, meaning that we will not

disturb the decision unless it is manifestly arbitrary, unreasonable,

or unfair, In re Marriage of Gibbs, 2019 COA 104, ¶ 8. We exercise

every presumption that supports upholding the court’s decision. In

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

review de novo, however, whether the court applied the proper legal

standard. See In re Marriage of Morgan, 2018 COA 116M, ¶ 7.

B. Application of Incorrect Legal Standards

¶ 15 Because mother appears pro se, “we liberally construe [her]

filings while applying the same law and procedural rules applicable

to a party represented by counsel.” Gandy v. Williams, 2019 COA

118, ¶ 8. Accordingly, we seek to effectuate the substance, rather

than the form, of her briefing. See People v. Cali, 2020 CO 20, ¶ 34.

We won’t, however, rewrite her arguments or act as an advocate on

her behalf. See Johnson v. McGrath, 2024 COA 5, ¶ 10.

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¶ 16 As we understand it, mother argues that the district court

erred by failing to treat her as the majority-time parent in

evaluating father’s relocation request and erred by otherwise failing

to apply the legal standards set forth in sections 14-10-124 and

14-10-129. We discern no error.

¶ 17 In finding that relocation was in the child’s best interests, the

court first considered father’s reasons for relocating with the child,

including the presence of both father’s employer and extended

family in Burlington. The court also considered father’s testimony

that the child would attend Burlington High School, which had a

99% graduation rate, and then weighed mother’s objection to the

relocation given that the child also had friends and family in

Loveland, where mother resided.

¶ 18 In assessing the statutory best interests factors, the court

found that mother had “actively prevented and discouraged [the

child] from having a relationship with [f]ather,” and, despite a

previous warning from the court, mother had withheld parenting

time from father and repeatedly disregarded the parenting time

orders. Accordingly, the court concluded that “[m]other ha[d] zero

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ability to encourage the sharing of love, affection, and contact

between the child and the other party.”

¶ 19 Moreover, the court expressed concern that while in mother’s

care, the child “hardly attend[ed] school,” having missed over three

hundred class periods during mother’s parenting time the prior

school year. The court further observed that “[m]other has

struggled to get the child to school and with school attendance

since the child was in kindergarten” and expressed fear that

“without a significant change, [the child] will not graduate high

school.” Even though the court had previously warned her about

the importance of school attendance, the court further found that

“[m]other ha[d] no plan to get the child to school or work on [the

child’s] attendance.”

¶ 20 Given these detailed findings, we reject mother’s assertion that

the court failed to apply sections 14-10-124 and 14-10-129. While

the court did not make explicit findings as to every statutory factor,

it was not required to, see A.M.K., 68 P.3d at 566, and we are

otherwise satisfied that the court considered the relevant statutory

factors in sections 14-10-124(1.5)(a) and 14-10-129(2)(c) when

allowing father to relocate with the child and implementing a new

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parenting time schedule. Moreover, there is no indication that the

court applied any improper presumption in father’s favor as

opposed to placing an equal burden on each party in resolving the

relocation issue. See Ciesluk, 113 P.3d at 148 (recognizing that the

court erred by denying a motion to relocate when it prematurely

concluded that the parties should remain in close proximity to each

other).

¶ 21 Mother also argues that the court failed to consider the child’s

wishes as required by section 14-10-124(1.5)(a)(II). But because we

lack a transcript of the relocation hearing, we are unable to

ascertain to what extent the parties presented any information on

that factor and therefore must assume that the court’s order was

supported by the record. See In re Marriage of Dean, 2017 COA 51,

¶ 15 (where an appellant does not provide a sufficient record

demonstrating that the district court erred, we must presume that

the record supports the court’s judgment).

¶ 22 Finally, we reject mother’s argument that she was the

majority-time parent, and therefore, the court erred by allowing

father’s motion to relocate to proceed based on a finding that the

parties equally shared parenting time. Mother’s contention is

10
contradicted by the most recent permanent parenting time order,

which designated father as the primary residential parent for

schooling purposes and maintained an equal allocation of parenting

time. Although the court entered temporary orders reducing

father’s parenting time during his initial relocation to Grand

Junction, the temporary orders unambiguously stated that they

would not prejudice either party as to the resolution of the parties’

other outstanding motions. See § 14-10-108(5)(a), C.R.S. 2024

(providing that temporary orders do “not prejudice the rights of the

parties or the child which are to be adjudicated at subsequent

hearings in the proceeding”). And to the extent that mother was at

times effectively the majority-time parent because, as the court

found, she had been withholding father’s parenting time, mother

has not directed us to any legal authority suggesting that a parent

may obtain majority-time status by refusing to follow the existing

parenting time orders.

C. Mother’s Remaining Contentions of Error

¶ 23 Our review of mother’s multiple remaining contentions of error

is severely hampered by the lack of a complete record. Specifically,

we lack a transcript of the April 2023 hearing that addressed

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father’s motion to relocate and mother’s competing motion to

modify parenting time and decision-making responsibilities.

Likewise, we lack transcripts of the multiple status conferences and

pretrial readiness conferences preceding that hearing, during which

mother asserts that various errors also occurred.

¶ 24 As the appellant, it was mother’s responsibility to designate

the record and to ensure that all items designated were transmitted

to the appellate court. See In re Marriage of Tagen, 62 P.3d 1092,

1096 (Colo. App. 2002). Therefore, mother was required to “include

in the record transcripts of all proceedings necessary for

considering and deciding the issues on appeal.”1 C.A.R. 10(d)(3).

Where an appellant fails to include the necessary portions of the

1 We acknowledge mother’s assertion that, being indigent, she

attempted but couldn’t afford to purchase the transcripts. We also
recognize that it was beyond the district court’s authority to waive
the fees associated with obtaining them. See Chief Justice Directive
98-01, Costs for Indigent Persons in Civil Matters, § III (amended
Apr. 2024). Nonetheless, we note that under C.A.R. 10(e), the
parties could have agreed to submit a statement of the evidence or
proceedings in lieu of designating transcripts with the district court.
There is no indication that mother tried to utilize this alternative
avenue to provide a record of the proceedings. Regardless, her
efforts in this regard do not relieve her of her obligation to provide
transcripts for our review.

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record, we must presume that the missing record supports the

judgment. See Dean, ¶ 15; cf. People v. Wells, 776 P.2d 386, 390

(Colo. 1989) (reviewing court cannot conclude that the district

court’s judgment is erroneous when the record is insufficient).

¶ 25 Likewise, mother has failed to include relevant citations to the

record in her briefing, and she has not included relevant dates or

other information that would allow us to readily locate her

numerous alleged errors. See C.A.R. 28(a)(7)(A)-(B) (requiring an

appellate brief to cite “the precise location in the record where the

issue was raised and where the court ruled” and include “citations

to the authorities and parts of the record on which the appellant

relies” when presenting the appellant’s arguments). And it is not

otherwise our duty as the reviewing court “to search the record for

evidence to support” her arguments. Brighton Sch. Dist. 27J v.

Transamerica Premier Ins. Co., 923 P.2d 328, 335 (Colo. App. 1996),

aff’d, 940 P.2d 348 (Colo. 1997). Moreover, “[a]rguments not

presented at trial cannot be raised for the first time on appeal,” In re

Marriage of Ensminger, 209 P.3d 1163, 1167 (Colo. App. 2008), and

without relevant transcripts and citations to the record, we are

13
unable to ascertain what arguments and information mother

presented to the court in the course of the proceedings.

¶ 26 Similarly, many of mother’s remaining contentions represent

bald assertions of error, presented without any supporting legal

authority or argument. See People in Interest of R.J.B., 2021 COA 4,

¶ 35 (declining to consider a bald legal proposition presented

without argument or development); C.A.R. 28(a)(7)(B). And while we

acknowledge that mother is pro se, a party’s pro se status does not

excuse a party from complying with the appellate rules. See Gandy,

¶ 8; see also Cornelius v. River Ridge Ranch Landowners Ass’n, 202

P.3d 564, 572 (Colo. 2009) (court may take into account that the

party is pro se but pro se parties are bound by same rules as

attorneys).

¶ 27 Given these numerous deficiencies, we presume that the

record supports the district court’s order concerning mother’s

remaining contentions of error, and otherwise decline to consider

her undeveloped arguments, regarding the following matters:

• the court’s service of various pleadings on her;

• the reassignment of the case to a different district court

judge;

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• the leeway afforded to father in responding to mother’s

motion to modify parenting time and decision-making

responsibilities;

• mother’s request to interview the child in chambers;

• the court’s refusal to let the child testify at the hearing;

• the dismissal of a child’s legal representative that the

court appointed to represent the child;

• the application of section 14-10-127.5, C.R.S. 2024; and

• the court’s child support order.

¶ 28 We similarly decline to address the numerous arguments that

appear for the first time in mother’s lengthy reply brief, and we

otherwise may not consider the multiple documents that mother

attached to her opening brief. See In re Marriage of Herold, 2021

COA 16, ¶ 14; In re Marriage of Drexler, 2013 COA 43, ¶ 24; cf.

Schempp v. Lucre Mgmt. Grp., LLC, 75 P.3d 1157, 1164-65 (Colo.

App. 2003) (declining to address contention of error that, while

mentioned in opening brief, was not supported with legal authority

or adequately argued until the reply brief).

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III. Disposition

¶ 29 The order is affirmed.

JUDGE GOMEZ concurs.

JUDGE TOW dissents.

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JUDGE TOW, dissenting.

¶ 30 While I agree with the majority’s entire analysis, I must

nevertheless dissent, as I believe we lack jurisdiction to address this

appeal.

¶ 31 The district court issued the order being appealed on August

7, 2023. The notice of appeal was filed on October 3, 2023 —

fifty-seven days later. An appeal must be filed no later than

forty-nine days after the date of the order being appealed. C.A.R.

4(a)(1). We will accept an untimely notice of appeal if the filing

party can demonstrate that the deadline was missed due to

excusable neglect. C.A.R. 4(a)(4). “The timely filing of a notice of

appeal is a jurisdictional prerequisite for appellate review.” In re

Marriage of James, 2023 COA 51, ¶ 8.

¶ 32 I recognize that this court ordered mother to show cause why

the appeal should not be dismissed as untimely, and that after her

response to that show cause order a motions division of this court

discharged the show cause and permitted the appeal to proceed.

But I cannot discern the basis for the motions division’s decision.

Mother’s show cause response provided no justification for her late

filing; instead, it merely asserted — in conclusory fashion — that

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the appeal was “urgent” and that the child was endangered.

(Indeed, if the appeal was truly urgent and the child endangered,

one would think that would spur earlier action by mother, not a

delay in filing.)

¶ 33 The majority notes that mother filed another document along

with her response to the show cause order, in which she mentioned

that she struggles with deadlines due to her mental health and the

trauma of this case. But that document was a motion for extension

of time to file the opening brief and a request to stay the trial court’s

orders pending appeal. At no time did mother tie her struggles with

deadlines to her failure to timely file the appeal. Even liberally

construing this document, I simply cannot read it as being proffered

as an explanation for why her appeal was not timely filed. See

Minshall v. Johnston, 2018 COA 44, ¶ 21 (Liberal construction of a

pro se party’s pleadings “does not include inventing arguments not

made by the pro se party.”).

¶ 34 We are not bound by a motions division’s prior order,

particularly where there are “serious questions regarding our own

jurisdiction.” Riggs Oil & Gas Corp. v. Jonah Energy, LLC, 2024

COA 57, ¶ 72 (quoting FSDW, LLC v. First Nat’l Bank, 94 P.3d 1260,

18
1262 (Colo. App. 2004)). In my view, there is not only a serious

question whether we have jurisdiction, but a clear indication that

we do not. The appeal, therefore, should be dismissed without

reaching the merits.

¶ 35 Accordingly, I dissent.

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