Marriage of Kowalski

23CA2073 Marriage of Kowalski 09-19-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA2073
Boulder County District Court No. 17DR30329
Honorable Thomas F. Mulvahill, Judge

In re the Marriage of

Karla Rosete Kowalski, n/k/a Karla Rosete Nunez,

Appellee,

and

Robert Gerard Kowalski,

Appellant.

ORDER AFFIRMED IN PART AND REVERSED IN PART,
AND CASE REMANDED WITH DIRECTIONS

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

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

Kottke & Brantz LLC, Jennifer C. Terry, Boulder, Colorado, for Appellee

Robert Gerard Kowalski, Pro Se
¶1 In this post-decree dissolution of marriage case between Karla

Rosete Kowalski, now known as Karla Rosete Nunez (mother), and

Robert Gerard Kowalski (father), father appeals the district court’s

order adopting a magistrate’s ruling that modified parental

responsibilities and awarded mother attorney fees. We reverse the

portion of the order awarding attorney fees and remand for the

court to vacate the award. We otherwise affirm.

I. Relevant Facts and Procedural History

¶2 In the district court’s 2019 permanent orders, the court

allocated to the parties equal parenting time and joint

decision-making responsibility for their two children, J.K. and N.K.

¶3 About two years later, mother moved to modify and restrict

father’s parenting time, and she requested sole decision-making

responsibility. The magistrate appointed a child and family

investigator (CFI). The parties’ older child, J.K., began refusing

parenting time with father, and, after a hearing, the magistrate

found that J.K.’s emotional well-being was endangered with father

and restricted his parenting time.

¶4 In November 2022, and while mother’s request to modify

parental responsibilities remained pending, father, appearing pro

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se, moved to restore his parenting time. And in December 2022,

mother supplemented her motion to modify.

¶5 During the pendency of these motions, the court imposed an

injunction against father due to his vexatious litigation (related to

other post-decree disputes), and it required father to request and

obtain permission from the court before he could file future

motions. Father appealed the court’s ruling, and another division

of this court affirmed the court’s imposition of this restriction. In re

Marriage of Kowalski, (Colo. App. Nos. 23CA0188, 23CA0740, Jan.

18, 2024) (not published pursuant to C.A.R. 35(e)) (Kowalski I).

¶6 Meanwhile, after multiple continuances that were requested,

at least in part, by father, the magistrate set a hearing on the

pending parental responsibilities motions for August 2, 2023.

Approximately two weeks before that hearing, father asked the

court for permission to file another motion to continue. The

magistrate allowed him to file the motion and, in doing so,

reminded him of his duty to confer with mother’s attorney before

filing it.

¶7 On July 21, 2023, father filed the motion to continue (written

motion to continue). In response, mother’s attorney certified to the

2
magistrate that father did not confer with him. The magistrate then

denied the motion due to father’s failure to confer under C.R.C.P.

121, section 1-15(8).

¶8 At the start of the August 2023 hearing, father again asked the

magistrate to continue the hearing (oral motion to continue). The

magistrate denied his request. Father then informed the magistrate

that he would not participate and left the hearing.

¶9 The magistrate proceeded without father and, after the

hearing, found that his parenting time endangered the children.

The magistrate restricted father’s parenting time with N.K. and

continued the parenting time restriction with J.K. The magistrate

also allocated to mother sole decision-making responsibility.

Additionally, the magistrate granted mother’s request for an award

of attorney fees due to father’s continued vexatious filings, which

included his motion to restore parenting time, and ordered father to

pay mother’s attorney $3,920 in attorney fees and costs.

¶ 10 Father moved for reconsideration of the attorney fees award

and petitioned for district court review of the parental

responsibilities order. In separate orders, the court denied the

3
motion for reconsideration and adopted the parental responsibilities

order.

II. Standard of Review

¶ 11 Our review of a district court’s order adopting a magistrate’s

ruling is effectively a second layer of appellate review. In re Parental

Responsibilities Concerning E.E.L-T., 2024 COA 12, ¶ 15. We accept

the magistrate’s factual findings unless they are clearly erroneous

and review de novo issues of law. Id.

III. Father’s Motions to Continue

¶ 12 Father contends that the district court erred by adopting the

magistrate’s denial of his written and oral motions to continue. We

reject his contentions.

A. Governing Legal Standards

¶ 13 Continuances shall be granted only for good cause. C.R.C.P.

121, § 1-11. The burden is on the moving party to show good

cause. See In re Marriage of Lorenzo, 721 P.2d 155, 156 (Colo. App.

1986).

¶ 14 We may not disturb a court’s ruling on a motion to continue

absent a showing that the court abused its discretion, meaning that

it acted in a manifestly arbitrary, unreasonable, or unfair manner,

4
or it misapplied the law. People in Interest of E.B., 2022 CO 55,

¶ 14.

B. Written Motion to Continue

¶ 15 Father contends that the magistrate erred by denying his

written motion to continue based on his purported failure to confer

with mother’s attorney. We are unpersuaded.

1. Jurisdiction

¶ 16 As an initial matter, mother argues that we lack jurisdiction to

review the magistrate’s ruling because father did not timely appeal

it. See In re Estate of Ybarra, 2024 COA 3, ¶ 9 (“The timely filing of

a notice of appeal is generally a jurisdictional prerequisite for

appellate review.”). We disagree.

¶ 17 A party seeking appellate court review of a magistrate’s ruling

must first file a petition for review to the district court. C.R.M.

7(a)(11). That petition must be filed within twenty-one days of the

date the magistrate’s written order is transmitted to the parties.

C.R.M. 7(a)(4), (5). But the district court may review only a final

order, and a magistrate’s order is not final until it fully resolves the

issue or claim, leaving nothing further for the magistrate to do.

5
C.R.M. (7)(a)(3); see also Mulberry Frontage Metro. Dist. v. Sunstate

Equip. Co., LLC, 2023 COA 66, ¶ 14.

¶ 18 The magistrate’s denial of father’s written motion to continue

did not fully resolve the parties’ disputes and, therefore, was not a

final order. The magistrate’s ruling did not become final until the

magistrate issued the August 3, 2023, order resolving their parental

responsibilities dispute. See C.R.M. 7(a)(3); see also Mulberry

Frontage Metro. Dist., ¶ 14; cf. People in Interest of K.L-P., 148 P.3d

402, 403 (Colo. App. 2006) (concluding that the appellant was

required to raise arguments concerning the magistrate’s denial of a

motion to continue in the petition for review of the magistrate’s final

judgment). Father timely petitioned the district court for review of

that order, and in that petition, he challenged the magistrate’s

denial of his written motion to continue. See Mulberry Frontage

Metro. Dist., ¶ 14 (“Once a court enters a final judgment, the court’s

earlier orders merge into the judgment and generally become

reviewable.”). And this court accepted as timely father’s appeal of

the court’s order adopting the magistrate’s August 2023 ruling. See

In re Marriage of Kowalski, (Colo. App. No. 23CA2073, Feb. 16,

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2024) (unpublished order). We thus have jurisdiction to review the

magistrate’s ruling on the written motion to continue.

2. Discussion

¶ 19 A party must confer with the opposing party before filing a

motion with the court. C.R.C.P. 121, § 1-15(8). The motion must

also include a certification that the moving party conferred in good

faith with the opposing party and advise the court whether the

motion will be opposed. Id. If there is no conferral, the moving

party must state the reason why, including all efforts made to

confer. Id.

¶ 20 Father argues that mother’s attorney falsely represented that

he failed to confer before filing the written motion to continue and

that the magistrate improperly relied on that misrepresentation to

deny his motion. He highlights that, before he filed the written

motion to continue, he emailed the motion to mother’s attorney.

However, the record reveals that father sent this email only two

minutes before he filed his motion, and, in that email, he merely

notified mother’s attorney that he was filing the motion. The intent

of conferral is to provide the parties with an opportunity “to work

out the difference[s] prompting the motion” and to determine

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whether the motion will be opposed. C.R.C.P. 121, § 1-15 cmt. 2.

Father’s email did neither. Therefore, we are not persuaded by

father’s claim that mother’s attorney misrepresented his failure to

adhere to the conferral requirements under C.R.C.P. 121, section 1-

15(8).

¶ 21 Father also asserts that when he filed and served mother’s

attorney with his request to file the written motion to continue, as

required by the court-imposed injunction, he made a “de facto

conferral” and a “de facto certification” of conferral. But father

overlooks that following this request, the magistrate directed him to

confer with mother’s attorney before filing the written motion to

continue. That is, the magistrate determined that his request to file

a motion did not satisfy his duty to confer. And beyond father’s

general assertion, he directs us to nothing in the rule or any other

legal authority providing that this “de facto” conferral and

certification complied with C.R.C.P. 121, section 1-15(8) or adhered

to the intent of the rule. See In re Parental Responsibilities

Concerning S.Z.S., 2022 COA 105, ¶ 29 (declining to review an

undeveloped contention).

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¶ 22 Father also notes that the magistrate modified her initial

ruling on the written motion to continue when she later found that

father’s motion did not include a certification of conferral. See

C.R.C.P. 121, § 1-15(8). But father’s motion plainly did not include

a statement certifying that he conferred with mother’s attorney, and

nothing prevented the magistrate from clarifying her ruling to deny

the written motion to continue. See People in Interest of J.D., 2020

CO 48, ¶ 10 (“[A] magistrate, just as a judge, retains the ability to

modify . . . any . . . rulings made in the course of judicial

proceedings until those proceedings culminate in a final, reviewable

order or judgment.”).

¶ 23 The district court thus did not err by rejecting father’s

arguments that the magistrate improperly denied his written motion

to continue.

C. Oral Motion to Continue

¶ 24 Father next contends that the magistrate abused her

discretion by denying his oral motion to continue. We disagree.

¶ 25 At the hearing, father argued that the court-imposed

injunction interfered with his ability to prepare for the hearing, and

he orally moved to continue the hearing. The magistrate

9
determined that the court-imposed injunction did not prevent father

from preparing for the hearing, which had been pending for over a

year; the hearing had previously been continued; and the children’s

best interests were not served by further continuing the hearing.

And the magistrate concluded that father did not establish good

cause for a continuance.

¶ 26 Father generally disagrees with the magistrate’s ruling and

argues that he was not the reason for the delays in the case. But as

the magistrate found, it was father, not mother, who previously

sought and obtained the continuances. Moreover, even if, as father

claims, mother contributed to the delay, the record supports the

magistrate’s determinations that further delaying the parental

responsibilities dispute was contrary to the children’s best interests

and that there was not good cause to grant another continuance.

See E.B., ¶ 14. To the extent father also asserts that the magistrate

improperly relied on “non-procedural grounds” to deny his motion

for the first time at the hearing, he does not develop a legal or

factual argument in support of this conclusory assertion. See

S.Z.S., ¶ 29.

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¶ 27 The magistrate thus acted within her discretion by denying

father’s oral motion to continue, and the district court did not err

by adopting that ruling.

IV. Purported Exclusion of Evidence

¶ 28 We also reject father’s contention that the magistrate

improperly excluded his evidence by denying the motions to

continue.

¶ 29 We review a court’s exclusion of evidence for an abuse of

discretion. See D.R. Horton, Inc. v. Bischof & Coffman Constr., LLC,

217 P.3d 1262, 1267 (Colo. App. 2009).

¶ 30 Father argues that the magistrate’s refusal to continue the

hearing precluded him from calling his primary expert witness,

Mark Vatsaas. However, the magistrate struck Vatsaas as an

expert witness before the hearing due to father’s failure to provide

the required expert witness disclosures. See C.R.C.P. 26(a)(2)(B)

(discussing the disclosure requirements to call an expert witness).

Father directs us to nothing in the record showing that he provided

the necessary disclosures for Vatsaas, and thus, it was this failure,

not the denial of his motions to continue, that precluded the

admission of Vatsaas’ expert testimony.

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¶ 31 Father goes on to argue that the magistrate’s order striking

Vatsaas’ testimony did not specify a timeframe in which he could

provide the necessary witness disclosures and thereby present the

expert testimony. However, the magistrate indicated in the order

issued three weeks before the hearing that father may be able to

present this expert testimony if he provided the necessary

disclosures “in a timely manner.” The magistrate thus indicated

that she was giving father time beyond the previous disclosure

deadline to file the expert disclosures. See C.R.C.P. 16.2(g)(5). And

father directs us to no legal authority that required the magistrate

to do more or that otherwise establishes that the magistrate erred.

See S.Z.S., ¶ 29.

¶ 32 Father also claimed that due to the court’s “injunction,” he

needed a continuance to be able to present Vatsaas’ testimony. The

magistrate rejected this claim, and we discern no error in that

determination. The court-imposed injunction required father to

obtain the court’s approval before filing a motion. It did not place

any additional requirements on his ability to comply with the

required expert disclosures or secure a witness for the hearing. To

the extent father is attempting to challenge the propriety of the

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injunction, that ruling was affirmed in Kowalski I, and we may not

revisit that decision.

¶ 33 Father further argues that, when the magistrate denied the

oral motion to continue, she improperly found that Vatsaas’

testimony was irrelevant when there was “no basis for drawing such

[a] conclusion.” However, the magistrate was aware of the scope of

Vatsaas’ testimony, given father’s representation before the hearing

that Vatsaas was father’s parenting coach and that he would

discuss the reasons for the tension between J.K. and father under

“the concept of [a]ttachment [t]heory.” Moreover, the magistrate did

not determine that Vatsaas’ testimony was irrelevant; she found

that, under the circumstances, his testimony did not justify further

delaying the proceedings. Such a finding was within the

magistrate’s broad discretion when ruling on the oral motion to

continue. See E.B., ¶ 14.

¶ 34 Father also asserts that by not continuing the hearing, the

magistrate prevented him from presenting evidence on mother’s

financial motives and other relevant evidence. But beyond father’s

general assertion, he does not develop any factual or legal argument

on appeal explaining why he was unable to present this additional

13
evidence at the hearing, particularly when he voluntarily chose to

leave the hearing without presenting any evidence. See S.Z.S., ¶ 29.

¶ 35 We likewise reject father’s conclusory argument that the

magistrate violated his due process rights by excluding his

evidence. Due process requires that a party be provided with a

meaningful opportunity to be heard. In re Marriage of Hatton, 160

P.3d 326, 329 (Colo. App. 2007). Father had the opportunity to

present evidence, but he chose not to by leaving the hearing. He

therefore was not deprived of his due process rights. See In re

Taylor, 134 P.3d 579, 584 (Colo. App. 2006) (holding that a party

who did not appear at a hearing was not deprived of due process).

¶ 36 To the extent father further suggests that the magistrate

violated the “Equal Protection Clause” and “created an unequal and

prejudicial application of the law,” he again develops no legal

argument in support of this suggestion. See S.Z.S., ¶ 29. Nor does

he direct us to where in the record he raised this issue to the

magistrate or the district court. See Melat, Pressman & Higbie,

L.L.P. v. Hannon Law Firm, L.L.C., 2012 CO 61, ¶ 18 (“It is axiomatic

that issues not raised in or decided by a lower court will not be

addressed for the first time on appeal.”); K.L-P., 148 P.3d at 403

14
(concluding that to preserve an issue for appellate review, an

appealing party must assert the contention to the district court in a

petition for review).

¶ 37 Thus, the magistrate did not abuse her discretion.

V. Magistrate’s Comments to J.K.

¶ 38 At the hearing, the magistrate admitted in camera testimony

from J.K. Father contends that, during that testimony, the

magistrate made disparaging comments about him, which

influenced J.K.’s testimony and exhibited the magistrate’s bias

against him.

¶ 39 However, father neither raised this issue to the magistrate nor

asserted it in his petition for review to the district court. See Melat,

Pressman & Higbie, ¶ 18; K.L-P., 148 P.3d at 403; see also Valentine

v. Mountain States Mut. Cas. Co., 252 P.3d 1182, 1188 n.4 (Colo.

App. 2011) (“A party’s mere opposition to its adversary’s request . . .

does not preserve all potential avenues for relief on appeal. We

review only the specific arguments a party pursued before the

district court.”). Additionally, father does not identify any record

support demonstrating that he sought the magistrate’s recusal due

to her alleged bias against him. See In re Marriage of Zebedee, 778

15
P.2d 694, 699 (Colo. App. 1988) (declining to address allegations of

judicial bias not raised in a motion for recusal). We thus need not

address father’s unpreserved argument.

VI. Modifying Parental Responsibilities Concerning N.K.

¶ 40 Father next contends that the magistrate erred by restricting

his parenting time with N.K. because the magistrate failed to

consider the CFI’s recommendations when reaching her decision.1

We disagree.

¶ 41 The court’s discretion in the area of parenting time is broad,

and we exercise every presumption in favor of upholding its

decision. In re Marriage of Collins, 2023 COA 116M, ¶ 8. We will

not disturb a court’s ruling absent a showing that the court abused

its discretion. Id.

¶ 42 A court may restrict a parent’s parenting time, when it finds

that parenting time endangers the child’s physical health or

significantly impairs the child’s emotional development.

1 Father does not challenge the magistrate’s ruling to continue the

restriction on his parenting time with J.K. Moreover, we note that
because J.K. has turned eighteen during the pendency of this
appeal, any issues related to the parenting time order regarding
J.K. are moot. See In re Marriage of Tibbetts, 2018 COA 117, ¶ 12.

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§ 14-10-129(1)(b)(I), C.R.S. 2024. The court may also modify the

allocation of decision-making responsibility if it finds that retaining

the current decision-making allocation endangers the child.

§ 14-10-131(2)(c), C.R.S. 2024.

¶ 43 In the CFI’s February 2022 report, she opined that father’s

verbal abuse endangered J.K.’s mental health and recommended

restricting his parenting time with J.K. The CFI also said that she

suspected N.K. was subjected to father’s verbal abuse. However,

the CFI reported that there was not enough evidence to confirm that

suspicion and, therefore, did not recommend modifying parenting

time or decision-making responsibility related to N.K.

¶ 44 Father complains that the magistrate did not consider and

follow the CFI’s recommendations regarding N.K. Because father

chose not to participate in the hearing, however, he did not argue to

the magistrate that she should adopt the CFI’s recommendations.

Moreover, the magistrate was under no obligation to follow the CFI’s

year-and-a-half old recommendation. See In re Parental

Responsibilities Concerning B.J., 242 P.3d 1128, 1133 (Colo. 2010).

¶ 45 In addition, while the CFI lacked evidence to confirm her

suspicion that N.K. was subject to father’s verbal abuse, the

17
evidence at the hearing provided the magistrate with ample

evidence to corroborate that suspicion. Mother testified that

father’s parenting time with N.K. had “gotten worse” since the

magistrate restricted his parenting time with J.K. She also said

that father’s recent irrational behavior placed N.K. “in imminent

danger” and that she was concerned about N.K.’s safety with father.

In addition, J.K. testified that they knew “the pain and suffering”

N.K. was experiencing, that father was “terrible for [N.K.’s] mental

health,” and that they could see “a lot of parallels” between the

emotional abuse toward them and N.K. (J.K.’s pronouns are

they/them.)

¶ 46 The magistrate found J.K. credible and determined that

father’s angry rants and verbal abuse endangered N.K. See In re

Marriage of Thorburn, 2022 COA 80, ¶ 49 (recognizing that

credibility determinations and the weight, probative force, and

sufficiency of the evidence, as well as the inferences and

conclusions to be drawn, are matters within the district court’s sole

discretion).

¶ 47 In sum, given the record support for the magistrate’s parental

responsibilities decision and the absence of any showing that the

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decision was an abuse of the magistrate’s discretion, there was no

basis to disturb it. See Collins, ¶ 8. The district court therefore did

not err by adopting the magistrate’s ruling modifying father’s

parental responsibilities concerning N.K.

VII. Attorney Fees Award

¶ 48 Father contends that the attorney fees award must be reversed

because the magistrate abused her discretion by not making the

required findings in support of awarding attorney fees against a pro

se party. See Collins, ¶ 51 (reviewing attorney fees order for an

abuse of discretion). We agree.

A. Jurisdiction

¶ 49 Before reviewing the attorney fees award, we must address

mother’s claim that father did not timely appeal the magistrate’s

order. See Ybarra, ¶ 9.

¶ 50 In the August 2023 order, the magistrate ordered father to pay

mother’s attorney fees due to his vexatious filings and directed

mother’s attorney to file an affidavit of fees. After the magistrate

granted mother’s attorney’s request for $3,800 in attorney fees and

$120 in costs, father moved for reconsideration, raising the same

issue asserted on appeal. The district court denied that request on

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October 9, 2023, and the next day resolved father’s petition for

review of the parental responsibilities order. Father then filed his

notice of appeal on December 4, 2023.

¶ 51 Mother argues that father’s appeal was not timely because the

deadline to appeal the October 9, 2023, order was November 27,

2023. See C.A.R. 4(a)(1) (requiring the filing of an appeal within

forty-nine days of the entry of the final order). However, the order

on attorney fees was not a final, appealable order until the court

fully resolved the post-decree litigation concerning the modification

of parental responsibilities. See Camelot Invs., LLC v. LANDesign,

LLC, 973 P.2d 1279, 1280 (Colo. App. 1999) (“Generally, an order

that resolves less than all the issues in an action is not a final

judgment for purposes of appeal.”); State Farm Fire & Cas. Co. v.

Bellino, 976 P.2d 342, 343-44 (Colo. App. 1998) (dismissing an

appeal of an award of attorney fees before the entry of a final

judgment on the merits). That did not occur until the district court

entered its October 10, 2023, order. See Mulberry Frontage Metro.

Dist., ¶ 16 (For postjudgment orders, “we consider whether the

order ends ‘the particular part of the action in which it is entered,’

leaving ‘nothing further for the court pronouncing it to do in order

20
to completely determine the rights of the parties as to that part of

the proceeding.’” (quoting AA Wholesale Storage, LLC v. Swinyard,

2021 COA 46, ¶ 13)). Father’s appeal of that order was accepted as

timely. See Kowalski, (Colo. App. No. 23CA2073, Feb. 16, 2024)

(unpublished order). And the court’s October 9, 2023, order on

attorney fees merged into that final order for purposes of appeal.

See Mulberry Frontage Metro. Dist., ¶¶ 14, 18.2

¶ 52 Therefore, we may review the award of attorney fees.

B. Discussion

¶ 53 A court may assess reasonable attorney fees against a party

when it finds that the party brought an action that lacked

substantial justification. § 13-17-102(4), C.R.S. 2024. But when a

party is not represented by an attorney, the court must also find

that “the party clearly knew or reasonably should have known” that

the action “was substantially frivolous, substantially groundless, or

substantially vexatious” before it may assess attorney fees against

2 We note that the attorney fee order was final for purposes of

review by the district court because that order resolved “an issue or
claim.” C.R.M. 7(a)(3); see People v. Maes, 2024 CO 15, ¶ 13.
However, nothing in the Maes decision alters the determination of
finality of the district court’s order for purposes of our appellate
review.

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that pro se party. § 13-17-102(6). Absent this finding, an order

“awarding attorney fees cannot stand.” Artes-Roy v. Lyman, 833

P.2d 62, 63 (Colo. App. 1992).

¶ 54 The magistrate found that father had made “continued

vexatious filings.” But the magistrate made no finding that father,

who was appearing pro se, clearly knew or reasonably should have

known that his conduct was substantially vexatious or that it was

substantially frivolous or substantially groundless. See § 13-17-

102(6). Nor did the magistrate make any other findings explaining

the basis of the attorney fees award. See § 13-17-103(1), C.R.S.

2024. The district court had an opportunity to address this error,

but failed to do so. Rather, the district court concluded that “[t]here

was no legal basis for [father’s] motion for reconsideration” even

though father had explained that his motion was mistitled and was,

in fact, a petition for review of the magistrate’s ruling under C.R.M.

7(a).

¶ 55 We therefore reverse the order awarding mother $3,920 for her

attorney fees and costs. See Artes-Roy, 833 P.2d at 63.

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VIII. Disposition

¶ 56 We reverse the portion of the district court’s order adopting

the magistrate’s award of attorney fees and costs to mother and

remand for the court to vacate that award. The order is otherwise

affirmed.

JUDGE PAWAR and JUDGE SCHUTZ concur.

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