Marriage of DiCamillo

23CA2063 Marriage of DiCamillo 10-24-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA2063
Elbert County District Court No. 22DR16
Honorable Theresa Slade, Judge

In re the Marriage of

Tammy Rena Rollins,

Appellee,

and

Randy DiCamillo,

Appellant.

ORDER AFFIRMED

Division VI
Opinion by JUDGE BROWN
Welling and Graham*, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced October 24, 2024

No Appearance for Appellee

Law Office of Timothy C Dietz, PLLC, Timothy C. Dietz, Colorado Springs,
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. 2024.
¶1 Appellant, Randy DiCamillo, appeals the district court’s

issuance of a permanent civil protection order restraining his

contact with Tammy Rena Rollins. We affirm.

I. Background

¶2 In May 2021, DiCamillo reportedly struck Rollins three times

in the presence of the parties’ minor child while Rollins drove

DiCamillo home from the hospital following a surgical procedure he

had undergone earlier that day. DiCamillo was charged with third

degree assault, domestic violence, and child abuse (the 2021

criminal case).1 The county court issued a mandatory protection

order (MPO) restraining DiCamillo’s contact with Rollins. DiCamillo

subsequently pleaded guilty to third degree assault, and the county

court sentenced him to twelve months of supervised probation as

part of a deferred disposition.

¶3 In February 2022, Rollins filed a petition for dissolution of her

common law marriage to DiCamillo.2

1 We take judicial notice of Elbert County case number 21M56 as a

related case under CRE 201(b). See Doyle v. People, 2015 CO 10,
¶ 12; People in Interest of I.S., 2017 COA 155, ¶ 7.
2 Rollins filed the case in El Paso County, but it was later

transferred to Elbert County.

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¶4 In October 2023, DiCamillo completed the requirements

associated with his deferred disposition. As a result, the county

court vacated the MPO and sealed the underlying case. Two days

later, Rollins filed a verified motion for a civil protection order in the

dissolution proceeding, recounting several instances of physical

abuse and controlling and coercive behavior by DiCamillo occurring

over a period of sixteen years. In the motion, Rollins explained that

she was making the request because the MPO had been vacated two

days earlier, stating “[DiCamillo] completed probation, so now the

protection order ends for me.” A temporary civil protection order

(TPO) was issued the same day.

¶5 The district court subsequently held a two-day hearing to

determine whether the TPO should be made permanent. After

considering the evidence, the court found “by a preponderance of

the evidence that Mr. DiCamillo had committed the acts

constituting grounds for the issuance of a protection order and

that, unless restrain[ed], will continue to commit such acts that are

designed to intimidate and retaliate against Ms. Rollins.”

Accordingly, the court issued a permanent civil protection order

(PPO) restraining DiCamillo’s contact with Rollins.

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II. Analysis

¶6 DiCamillo contends that the district court erred by (1) failing

to hold a statutorily mandated hearing before issuing the TPO;

(2) prohibiting the parties’ minor child from testifying during the

PPO hearing; and (3) finding that DiCamillo would continue to

commit acts designed to intimidate or retaliate against Rollins

unless restrained. We perceive no reversible error.

A. Statutory Framework

¶7 Section 13-14-104.5, C.R.S. 2024, authorizes a court to issue

a temporary or permanent civil protection order to prevent, among

other things, domestic abuse and assault. § 13-14-104.5(1)(a);

Martin v. Arapahoe Cnty. Ct., 2016 COA 154, ¶ 16. The statute

requires that “[a] motion for a temporary civil protection order shall

be set for hearing at the earliest possible time,” although the

hearing may be ex parte. § 13-14-104.5(4); see Martin, ¶ 18. If

“after hearing the evidence” the court is “fully satisfied therein that

sufficient cause exists,” it may issue a TPO and a citation “to the

respondent commanding [them] to appear before the court . . . to

show cause, if any, why said temporary civil protection order should

not be made permanent.” § 13-14-104.5(8).

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¶8 At the hearing on the PPO, the court “shall examine the record

and the evidence” to decide whether to make the TPO permanent or

to enter a PPO on different terms. § 13-14-106(1)(a), C.R.S. 2024;

see also Martin, ¶ 20. To issue a PPO, the court must find by a

preponderance of the evidence that the person to be restrained

(1) “has committed acts constituting grounds for issuance of a civil

protection order” and (2) “unless restrained will continue to commit

such acts or acts designed to intimidate or retaliate against the

protected person.” § 13-14-106(1)(a). The grounds for issuing a

civil protection order are those set forth in section 13-14-

104.5(1)(a). See Martin, ¶ 20.

B. TPO Hearing

¶9 DiCamillo contends that the PPO is invalid because the district

court failed to hold a hearing before granting the TPO. Even

assuming that a hearing was required and not held, we conclude

that any error was harmless.

1. Standard of Review

¶ 10 Statutory construction and application present questions of

law that we review de novo. Hickerson v. Vessels, 2014 CO 2, ¶ 10.

If we identify an error, we review for harmlessness and will reverse

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only if the error affected a party’s substantial right. C.R.C.P. 61;

People in Interest of R.D., 2012 COA 35, ¶ 25. “An error affects a

substantial right only if ‘it can be said with fair assurance that the

error substantially influenced the outcome of the case or impaired

the basic fairness of the trial itself.’” Bly v. Story, 241 P.3d 529,

535 (Colo. 2010) (citation omitted).

2. Any Error in Failing to Hold a TPO Hearing Is Harmless
Because DiCamillo Was Provided a Full Hearing Before the
PPO Was Granted

¶ 11 DiCamillo contends that the district court failed to hold a

statutorily required hearing before issuing the TPO. He further

contends that, because the TPO was procedurally flawed, the PPO is

invalid.

¶ 12 In support of his contention, DiCamillo alleges that as of

December 2, 2023, the district court’s electronic filing system

reflected that a hearing had been held on October 27, 2023, the day

the TPO was issued. Because the filing system reflected that a

hearing had taken place, DiCamillo’s counsel requested the

transcripts from that day. Two days later, DiCamillo’s counsel

“received a call from the transcription service” to inform him that “a

hearing for the issuance of the temporary protection order in this

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matter was never held on October 27.” Further, after counsel filed

a revised transcript request, the district court “scrubbed and

removed from the electronic filing system the reference to the

non-existent hearing.”

¶ 13 While we struggle to understand how the string of events

DiCamillo sets forth could even be possible — particularly his claim

that the register of actions in the underlying case file was altered to

remove a hearing event — the record provides no clarity as to

whether or not the district court actually held a hearing before

issuing the TPO. Still, even assuming that a TPO hearing was not

held, we conclude that any error is harmless.

¶ 14 DiCamillo contends that “a valid temporary protection order is

a condition precedent to issuance of a permanent protection order”

and “[t]he absence of a valid temporary protection order warrants

vacating the permanent protection order.” But the plain language

of the governing statutes does not so provide, and DiCamillo cites

no other authority supporting these bald contentions. As the

appealing party, DiCamillo “bears the burden to provide supporting

authority for contentions of error asserted on appeal.” Biel v. Alcott,

876 P.2d 60, 64 (Colo. App. 1993).

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¶ 15 In any event, “a temporary protection order issued under

section 13-14-104.5 is not the . . . court’s ‘final decision’ on a

plaintiff’s request for a civil protection order.” Martin, ¶ 22. Rather,

the procedure governing TPOs merely “permits [a] court to make an

initial determination as to whether an imminent danger exists to

the person seeking protection, and issue a temporary protection

order based on that finding.” Id.; see § 13-14-104.5. Conversely,

section 13-14-106(1)(a) “contemplates that a final ruling regarding

the plaintiff’s entitlement to a civil protection order, and the terms

of the order, will be made at the permanent order hearing.” Martin,

¶ 22.

¶ 16 Additionally, while section 13-14-104.5 plainly requires that a

hearing be set prior to granting a TPO, the statute permits the

hearing to be conducted ex parte. § 13-14-104.5(4). Because

DiCamillo had no right to be present at any TPO hearing, we fail to

see, and he has failed to articulate, how he was prejudiced.

¶ 17 Finally, the district court held a two-day PPO hearing during

which it weighed the evidence and evaluated the parties’ credibility.

See Parocha v. Parocha, 2018 CO 41, ¶ 16 (It is the trial court’s

“prerogative to weigh and evaluate the parties’ credibility.”); see also

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Martin, ¶ 23 (“The permanent protection order hearing gives the

respondent a prompt opportunity to challenge the court’s initial ex

parte findings and raise any jurisdictional or procedural

deficiencies.”). Rollins testified and answered questions from both

the court and DiCamillo’s counsel. DiCamillo did the same during

the second day of the hearing. After hearing the parties’ testimony,

observing the parties’ demeanor, and considering the evidence

presented, the court found that Rollins had met her burden of proof

and granted the PPO.

¶ 18 Because DiCamillo had the benefit of presenting evidence

during a two-day hearing before the PPO was granted, we conclude

that any failure to hold a hearing before the TPO was granted was

harmless. The alleged error had no effect on DiCamillo’s

substantial rights in these proceedings. See Martin, ¶ 23 (“[T]he

permanent order hearing and ordinary appellate procedures provide

adequate alternative remedies for challenging a temporary

restraining order.”).

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C. Minor Child’s Testimony

¶ 19 DiCamillo contends that the district court abused its

discretion by prohibiting the parties’ minor child from testifying

during the PPO hearing. We are not persuaded.

1. Standard of Review

¶ 20 We review a trial court’s determination regarding the

admissibility of evidence for an abuse of discretion. Gebert v. Sears,

Roebuck & Co., 2023 COA 107, ¶ 29. A court abuses its discretion

when its ruling is manifestly arbitrary, unreasonable, or unfair or is

based on an erroneous understanding or application of the law. Id.

2. The District Court Did Not Abuse Its Discretion by Preventing
the Minor Child from Testifying

¶ 21 In Rollins’ verified motion for a civil protection order, she

alleged that DiCamillo had “beat [her] in front of [her] kids a lot

[from January] 2005 until May 22, 2021.” At the PPO hearing,

DiCamillo sought to call the parties’ fourteen-year-old son as a

witness to disprove Rollins’ allegation. Specifically, DiCamillo’s

counsel explained that the child would testify that “he [did not]

observe either party striking [the] other and never observed any

bruises or black eyes on Ms. Rollins.”

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¶ 22 As we understand the district court’s ruling, it prohibited the

minor child from testifying for two reasons. First, the court

theorized that if the child would testify that he did not see the

abuse happen, then he was not a relevant witness to speak to the

allegations of abuse. Second, the court was concerned about the

negative impact on the child’s wellbeing that would result from

being thrust into the middle of his parents’ conflict, explaining that

it is inappropriate “for a child to testify in his parents’ proceedings

regarding a temporary or permanent protection order involving

domestic abuse.”

¶ 23 DiCamillo contends the court erred because “it was reasonable

for [him] to have [their fourteen] year old son present at the

courthouse to refute Ms. Rollins’s outlandish claims.” He argues

that the minor child’s testimony would have refuted Rollins’ claim

“that she was subjected to repeated beatings over a [sixteen -]year

period resulting in long-lasting and visible injuries.” We perceive no

abuse of discretion.

¶ 24 First, the child’s proposed testimony that no abuse occurred

would not be relevant unless the minor child was physically present

for every single interaction between his parents, a circumstance no

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one claims to exist. See CRE 402 (“Evidence which is not relevant

is not admissible.”); see also CRE 602 (“A witness may not testify to

a matter unless evidence is introduced sufficient to support a

finding that he has personal knowledge of the matter.”). And

although Rollins alleged that DiCamillo had “beat [her] in front of

[her] kids,” Rollins has two children from a prior marriage. Thus,

establishing that one child did not witness the abuse does not

disprove Rollins’ allegation, as “my kids” may have meant her two

other children. See Smith v. Bd. of Educ., 83 P.3d 1157, 1165 (Colo.

App. 2003) (“A trial court has considerable discretion in

determining whether evidence has logical relevance.”).

¶ 25 Second, even assuming the child’s proposed testimony that he

did not see bruises or black eyes on Rollins was marginally

probative to show that the abuse did not happen as Rollins claimed,

the court nonetheless acted within its discretion by excluding it. At

the heart of the court’s ruling is a careful balancing of the best

interests of the minor child against the minimal probative value of

his testimony. See CRE 403 (“Although relevant, evidence may be

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excluded if its probative value is substantially outweighed by the

danger of unfair prejudice . . . [or] confusion of the issues.”).3

¶ 26 One of the purposes of the Uniform Dissolution of Marriage

Act, the act governing the dissolution case in which the PPO was

entered, is “[t]o mitigate the potential harm to the spouses and their

children caused by the process of legal dissolution of marriage.”

§ 14-10-102(2)(b), C.R.S. 2024; see also § 14-10-104.5, C.R.S.

2024. Indeed, the district court is required to consider the best

interests of the child in such matters, “giving paramount

consideration to the child’s safety and the physical, mental, and

emotional conditions and needs of the child.” § 14-10-124(1.5),

C.R.S. 2024.

¶ 27 For these reasons, “the preferred method” of receiving evidence

from a child in a dissolution proceeding is by in camera interview,

Haase v. Haase, 460 S.E.2d 585, 680-81 (Va. Ct. App. 1995), which

3 Although we recognize that the “unfair prejudice” contemplated by

CRE 403 is not harm to a child resulting from having to testify in
favor of one parent against another, see Kelly v. Haralampopoulos,
2014 CO 46, ¶ 47 (“[U]nfair prejudice” means “an undue tendency
on the part of admissible evidence to suggest a decision made on an
improper basis.”) (citation omitted), we cannot say the court abused
its discretion in balancing the competing interests as it did.

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neither party requested in this case. That is because “[n]o person

who is a party to a divorce proceeding — litigant, counsel, or

[judicial officer] — relishes the spectacle of a child testifying in open

court as to [their] preference for one parent over another.” Id.

at 680. An in camera interview allows the court to receive evidence

from the child while “(1) lessening the ordeal for the child by

eliminating the harm a child might suffer from exposure to the

adversarial nature of the proceedings; (2) enhancing the child’s

ability to be forthcoming; and (3) protecting the child from the ‘tug

and pull of competing custodial interests.’” People in Interest of

H.K.W., 2017 COA 70, ¶ 18 (quoting Ynclan v. Woodward, 237 P.3d

145, 150-51 (Okla. 2010)).

¶ 28 We acknowledge that, unlike Haase and H.K.W., the

proceeding that resulted in issuance of the PPO was not a hearing

to determine the allocation of parental responsibilities.

Nonetheless, the considerations animating those decisions apply

equally here, where allowing the child to testify would necessarily

embroil him in his parents’ extraordinary conflict to his detriment.

As DiCamillo’s counsel conceded, the child was “pretty stressed

over having to be [t]here [that day].” The probative value of the

13
evidence was slight while the risk of harm to the child was great.

On this record, we cannot conclude that the district court’s decision

to exclude his testimony was manifestly arbitrary, unreasonable, or

unfair. See Gebert, ¶ 29.

D. The District Court’s Finding that Unless Restrained,
DiCamillo’s Conduct Will Continue

¶ 29 DiCamillo contends that the district court erred by finding that

he would continue to engage in domestic abuse or intimidating and

retaliatory conduct against Rollins unless restrained. We disagree.

1. Standard of Review

¶ 30 We review a trial court’s factual findings for clear error. Lo

Viento Blanco, LLC v. Woodbridge Condo. Ass’n, Inc., 2021 CO 56,

¶ 17. A finding of fact is clearly erroneous if there is no support for

it in the record. In re Marriage of Evans, 2021 COA 141, ¶ 39. It is

for the trial 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. In re Mariage of

Thorburn, 2022 COA 80, ¶ 49; see also In re Marriage of Amich, 192

P.3d 422, 424 (Colo. App. 2007) (“The trial court can believe all,

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part, or none of a witness’s testimony, even if uncontroverted, and

its resolution of conflicting evidence is binding on review.”).

2. The Record Supports the Court’s Finding

¶ 31 DiCamillo challenges the district court’s finding as to the

second requirement for issuing a PPO — that “unless restrained [he]

will continue to commit such acts or acts designed to intimidate or

retaliate against the protected person.” § 13-14-106(1)(a).

¶ 32 Rollins attested or testified to the following:

• She suffered mental, emotional, and physical abuse at

the hands of DiCamillo for approximately sixteen years.

The abuse occurred in situations where there were rarely

witnesses aside from children, nieces, or nephews, and it

“was always hidden.”

• DiCamillo engaged in aggressive and violent behavior

toward Rollins, including pinning her against a bedroom

floor and repeatedly striking her face, hitting her while

she was driving a car with their minor child in the back

seat in 2021, and breaking her glasses and “put[ting]

[her] out on the side of the road” in 2017.

15
• DiCamillo engaged in coercive and controlling behavior

toward Rollins relative to transportation, including

disabling her car to prevent her departure following an

argument in 2008, forcing her out of the car in 2017, and

taking the keys out of the ignition while she was driving

in 2021.

• Rollins submitted photo and audio evidence in support of

her allegations of abuse. The photos pertained to

separate incidents of abuse that occurred in 2017 and

2019. The audio recording pertained to a verbal

argument in 2019 relating to the minor child’s schooling

during which DiCamillo levied threats of violence against

Rollins.

• DiCamillo previously pleaded guilty to third degree

assault on Rollins. Rollins said the MPO entered in the

2021 criminal case provided her with a “security blanket”

and that when DiCamillo completed his deferred

judgment requirements and the MPO was vacated, so

was her sense of security. Rollins filed for a TPO two

days later.

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¶ 33 DiCamillo contends that the district court “failed to articulate

any facts or basis as [to] how Mr. DiCamillo could pose a continuing

threat to Ms. Rollins even if the abuse as alleged actually occurred.”

Specifically, he argues “[t]he only actionable abuse is related to Mr.

DiCamillo’s deferred disposition in the 2021 criminal case and

possibly the disabling of the motor vehicle when Ms. Rollins was

pregnant some [thirteen] years earlier.” Further, DiCamillo argues

that because the parties now live approximately thirty-six miles

away from each other and “Rollins admitted she has [not] observed

Mr. DiCamillo anywhere near her residence since the parties

separated in May, 2021,” “[t]here was absolutely no basis for finding

that Mr. DiCamillo constitutes a continuing threat under these

circumstances.”

¶ 34 Although the district court could have been more explicit as to

why it found that DiCamillo posed a continuing threat to Rollins,

the record nonetheless supports that finding — especially under the

applicable preponderance of the evidence standard, see

§ 13-14-106(1)(a), which requires only that the court find the

existence of a contested fact to be more probable than not, Life Care

17
Ctr. of Am. v. Indus. Claim Appeals Off., 2024 COA 47, ¶ 15. We

reach this conclusion for three reasons.

¶ 35 First, given that the alleged domestic abuse — including the

coercive and controlling behavior4 — occurred repeatedly over a

period of sixteen years, it is not unreasonable to believe that the

conduct would continue to occur unless restrained. Rollins testified

that the physical abuse began a mere two weeks after the parties

began cohabitating in 2005. She recounted instances of domestic

abuse occurring in 2008, 2017, 2019, and most recently in 2021

when DiCamillo pleaded guilty to third degree assault.

¶ 36 We are unpersuaded by DiCamillo’s argument that since the

last claimed incident of abuse was in 2021, he does not pose a

continuing threat to Rollins. The argument ignores the fact that an

MPO restraining DiCamillo’s contact with Rollins was issued in

2021 and remained in place until just two days before Rollins

4 In the context of civil protection orders, “domestic abuse” is

defined as “any act, attempted act, or threatened act of violence,
stalking, harassment, or coercion that is committed by any person
against another person to whom the actor is currently or was
formerly related, or with whom the actor is living or has lived in the
same domicile, or with whom the actor is involved or has been
involved in an intimate relationship.” § 13-14-101(2), C.R.S. 2024.

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sought a TPO. Thus, it is not particularly telling that DiCamillo has

not intimidated or retaliated against Rollins since he last admitted

to abusing her. DiCamillo’s argument may in fact prove the value

of a protective order for these parties. In any event, the extended

duration of abuse supports the conclusion that it would continue

absent restraint. See § 13-14-104.5(7)(a) (A court “shall not deny a

petitioner the relief requested because of the length of time between

an act of abuse or threat of harm and the filing of the petition for a

protection order.”).

¶ 37 Second, the district court noted that credibility is particularly

important in cases such as this where two parties offer

contradictory testimony concerning the same events. During the

hearing, the court observed the parties’ in-court demeanor and was

best positioned to determine their credibility. See People v. Pitts,

13 P.3d 1218, 1221 (Colo. 2000) (“It is the function of the trial

court, and not the reviewing court, to weigh evidence and

[determine] the credibility of the witnesses.”).

¶ 38 In recounting its observations bearing on the parties’

credibility, the court explained that, during direct examination,

DiCamillo was more than willing to engage and answer questions,

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but “[i]t was only when Ms. Rollins was asking questions[] that he

suddenly had a lapse of memory.” Specifically, DiCamillo “[could

not] remember the police responding; [could not] remember what he

told the police; [and did] not recall being arrested” after he disabled

Rollins car in 2008. Further, DiCamillo argues that he only entered

a plea relating to his assault of Rollins in 2021 to “keep the couple’s

son from testifying against his mother.” Yet in the present matter,

DiCamillo sought to offer the minor child as a witness to do just

that. These findings are supported by the record and led the court

to find that DiCamillo’s testimony lacked credibility.

¶ 39 Finally, the district court’s order emphasized DiCamillo’s

controlling and coercive conduct as evidence of the potential for

ongoing domestic abuse. The court pointed to the instance in

which DiCamillo disabled Rollins’ car in 2008 while she was

pregnant, stating, “[DiCamillo] was quick to point out that the car

he disabled was a car that he purchased.” The court noted that, in

testifying about Rollins’ cellphone, “[DiCamillo] was quick to explain

to [Rollins] that it was his phone and she was only permitted to use

it.” And the court highlighted a recent parenting time dispute that

occurred while the MPO was still in place. During that dispute,

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Rollins believed she had permission to retrieve the minor child from

DiCamillo earlier than parenting time orders allowed. But when

she attempted to initiate the exchange, DiCamillo refused, drove

away with the minor child to evade Rollins, and threatened Rollins

with legal action, all while filming the interaction and telling the

minor child what Rollins was doing wrong. Taken together, the

court observed DiCamillo’s “need to control these situations,

sometimes without logic or explanation.”

¶ 40 DiCamillo seizes on the court’s concession that some of the

alleged instances of abuse standing alone — for example, disabling

Rollins’ car in 2008 or the parenting time exchange dispute in 2021

— would not “be the basis for granting a protection order.” But the

cited examples are just two threads of a much larger tapestry. And

we understand the court’s ruling to mean that, although each

isolated incident may not have been sufficient to sustain the PPO,

the incidents viewed collectively met the standard.

¶ 41 We conclude that the record supports the district court’s

findings that DiCamillo “has committed acts constituting grounds

for issuance of a civil protection order” and “unless restrained [he]

will continue to commit such acts or acts designed to intimidate or

21
retaliate against the protected person.” § 13-14-106(1)(a). We will

not disturb these findings or the PPO.

III. Disposition

¶ 42 The permanent civil protection order is affirmed.

JUDGE WELLING and JUDGE GRAHAM concur.

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