Marriage of Macaluso

25CA0400 Marriage of Macaluso 10-30-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 25CA0400
City and County of Denver District Court No. 19DR3504
Honorable Marie Avery Moses, Judge

In re the Marriage of

William Roy Macaluso III,

Appellant,

and

Mika Nicole Gilbert,

Appellee.

ORDER AFFIRMED

Division I
Opinion by JUDGE GROVE
J. Jones and Schutz, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced October 30, 2025

The Law Office of C. Robert Biondino Jr., P.C., C. Robert Biondino Jr.,
Highlands Ranch, Colorado, for Appellant

No Appearance for Appellee
¶1 In this post-decree proceeding, William Roy Macaluso, III

(father), appeals the district court’s order adopting magistrate

orders that denied his motion to modify parenting time and

decision-making responsibilities for T.M.G. (the child) and

addressed, without resolving, father’s motion to change the child’s

last name. We affirm.

I. Background

¶2 Father and Mika Nicole Gilbert (mother) have one child and

never married. Months before the child’s birth, father was charged

with domestic violence against mother. After the child’s birth, the

child resided with mother, and father was not involved in mother’s

decision-making. When the child was three years old, father

petitioned the court for an allocation of parental responsibilities.

Father also alleged that the child was unsafe with mother and

moved the court to order the police to remove the child from

mother’s home. The next day, mother requested a civil protection

order against father.

¶3 At a temporary orders hearing, the court denied father’s

motion and issued a temporary protection order against father. The

court appointed a child and family investigator (CFI), who later filed

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a status report. The court ordered that the decision-making orders

previously entered would remain in place, leaving mother with sole

decision-making responsibility.

¶4 Later, Father filed his first motion to modify decision-making

responsibilities. The court reappointed the CFI and ordered an

updated report. Father then filed a motion for contempt, and

mother filed a motion to restrict father’s parenting time. The court

denied these motions.

¶5 At permanent orders, the court again awarded mother sole

decision-making responsibility. Father filed a second motion for

contempt and a motion to reconsider the ruling granting mother

sole decision-making. The court granted father’s second motion for

contempt insofar as it requested that mother provide him with the

names of the child’s medical providers and the child’s social

security number, and that he be added to the child’s birth

certificate. The court denied father’s motion to reconsider its

previous ruling on the allocation of decision-making responsibility.

¶6 As relevant here, father then filed his second motion to modify

decision-making responsibilities. The district court ordered the

parties into mediation. After mediation ended unsuccessfully,

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father moved to appoint another CFI, which the court granted. The

newly appointed CFI filed a report.

¶7 A magistrate then held a hearing on father’s second motion to

modify decision-making responsibilities. The magistrate denied

father’s motion. Father petitioned the district court for review of the

magistrate’s order, which the district court denied.

II. Modification of Decision-Making

¶8 Father contends that the magistrate did not properly apply

sections 14-10-131(2) and 14-10-123.4, C.R.S. 2025, and

erroneously concluded that retaining mother’s sole decision-making

responsibility was in the child’s best interest. We are not

convinced.

A. Standard of Review

¶9 When, as here, we review a district court’s order reviewing a

magistrate’s order, we must accept the magistrate’s factual findings

unless they are clearly erroneous. See In re Parental

Responsibilities Concerning G.E.R., 264 P.3d 637, 639 (Colo. App.

2011); see also C.R.M. 7(a)(9) (a magistrate’s findings of fact may

not be altered unless clearly erroneous). Our review of the district

court’s decision is effectively a second layer of appellate review; we

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apply the same clearly erroneous standard to the magistrate’s

findings as does a district court. G.E.R., 264 P.3d at 638-39.

Factual findings are not clearly erroneous unless there is no

support for them in the record. Van Gundy v. Van Gundy, 2012

COA 194, ¶ 12.

¶ 10 We review questions of law de novo, including whether the

court applied the proper legal standard. See In re Marriage of

Young, 2021 COA 96, ¶ 9.

B. Our Record Review is Limited

¶ 11 Father did not provide the reviewing district court with a

transcript of the magistrate’s modification hearing or ruling — nor

does he acknowledge his failure to do so in his appellate briefing.

In the absence of a transcript, the district court presumed that the

magistrate’s factual findings regarding modification of decision-

making were supported by evidence presented at the hearing. See

C.R.M. 7(a)(9) (a reviewing court presumes that the magistrate’s

ruling is supported by the evidence when no transcript of the

proceedings is provided); see also In re Marriage of Dean, 2017 COA

51, ¶ 15 (without reviewing the transcripts, we are unable to

evaluate the evidence to determine whether it sufficiently supports

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the magistrate’s orders); In re Marriage of Rivera, 91 P.3d 464, 466

(Colo. App. 2004) (a party seeking review has burden of providing a

record justifying the rejection or modification of that order, and

absent such a record, the district court may presume the regularity

of the magistrate’s proceedings).

¶ 12 A transcript of the modification hearing was made part of the

record on appeal to this court. However, we may not consider it

because our review of the district court’s order is limited to the

record that was before the district court. See Dean, ¶ 14; see also

Rivera, 91 P.3d at 466. Accordingly, we consider only father’s legal

argument.

C. Relevant Law

¶ 13 The court must allocate decision-making responsibilities in

accordance with the best interests of the child. §§ 14-10-

123.4(1)(a), 14-10-124(1.5), C.R.S. 2025. Furthermore, pursuant to

section 14-10-131(2), the trial court

shall not modify a custody decree or a decree
allocating decision-making responsibility
unless it finds, upon the basis of facts that
have arisen since the prior decree or that were
unknown to the court at the time of the prior
decree, that a change has occurred in the
circumstances of the child or the child’s

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custodian or party to whom decision-making
responsibility was allocated and that the
modification is necessary to serve the best
interests of the child.

And the court must retain the prior decree’s allocation of joint

decision-making unless

• the parties agree to the modification;

• the child has been integrated into the family of the

petitioner with the consent of the other party;

• there has been a modification of parenting time that

warrants a change in decision-making responsibilities;

• one parent has consistently consented to the other

parent making individual decisions; or

• “[t]he retention of the allocation of decision-making

responsibility would endanger the child’s health or

significantly impairs the child’s emotional development

and the harm likely to be caused by a change of

environment is outweighed by the advantage of a change

to the child.”

§ 14-10-131(2)(a)-(c).

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¶ 14 “What constitutes endangerment is a highly individualized

determination, and we won’t disturb the trial court’s findings on the

issue if they are supported by the record.” In re Marriage of

Wenciker, 2022 COA 74, ¶ 26 (citations omitted).

D. Analysis

¶ 15 The magistrate applied the correct legal standards.

¶ 16 As an initial matter, as required by sections 14-10-124(1.5)(b)

and 14-10-124(4)(a)(II)(A), the magistrate considered father’s

domestic violence case before finding that joint decision-making

was impossible because mother still feared father. The record

indicates that father’s domestic violence charges were dismissed by

the prosecution in 2016, a month before the child’s birth.

Nevertheless, even if father had been convicted, findings of domestic

violence are not dispositive factors in determining parental

responsibilities. See Pawelec, ¶ 61 (holding that a finding of

domestic violence is not a dispositive factor in determining

parenting time).

¶ 17 Applying the factors from section 14-10-131(2)(a)-(c), the

magistrate found that the parties had exercised equal parenting

time for several years and did not agree to change decision-making

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responsibility. Finally, the magistrate considered father’s

arguments regarding mother’s potential endangerment of the child

by (1) not providing the contact information for the child’s doctors

and (2) not changing the child’s school. The magistrate, crediting

the CFI’s report as “thorough and well-reasoned,” adopted its

recommendations: that mother’s decisions were not endangering

the child, and that decision-making responsibility should remain

with mother.

¶ 18 In the absence of a transcript of the modification hearing or

the magistrate’s ruling, the reviewing district court properly

presumed that the magistrate’s findings were supported by the

record. And the district court noted, correctly, that the magistrate

relied largely on the CFI’s recommendations, which also appear in

her report.

¶ 19 The court thus applied the proper legal framework for a

modification of decision-making responsibility. And given that the

court, in the absence of a transcript, properly presumed record

support for the magistrate’s factual findings, we perceive no abuse

of discretion.

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¶ 20 We acknowledge that father also asserts that mother failed to

provide for the child’s best interests because, he alleges, (1) the

child slept in mother’s living room on an air mattress; (2) mother

failed to get the child to school on time; (3) mother did not provide

the child with afterschool activities or tutoring; and (4) the child

had concerning hygiene. The record — even in the absence of a

hearing transcript — indicates that the court relied on contrary

record evidence.

¶ 21 In adopting the CFI’s determinations1 regarding the child’s

best interest, the court considered that

• the child sleeps in a bedroom;

• the child is frequently a few minutes late to class, but

that the child’s teacher had “no concerns”;

1 The magistrate expressly relied on the CFI’s report, which was

filed with the court and is included in the record on appeal. A CFI’s
report is automatically accepted into evidence without further
foundation, unless a party notes an objection in the trial
management certificate. C.R.C.P. 16.2(g)(2)(C); see also 14-10-
116.5, C.R.S. 2025 (authorizing the appointment of a CFI and the
CFI’s preparation and filing of a report and providing that the “court
shall consider the entirety of the report, as well as any testimony by
the child and family investigator, the parties, and any other
professionals, before adopting any recommendations made by the
child and family investigator”).

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• mother cannot afford extra activities for the child, and

father had arranged for afterschool activities and a tutor;

and

• the child “demonstrates good hygiene

¶ 22 Based on this record evidence, and assuming — as we must —

that the transcript would have provided similar support, we

perceive no error in the magistrate’s determination that the child’s

best interests were not served by a modification of decision-making

responsibility.

III. Child’s Name Change

¶ 23 Father next argues that the magistrate erred by denying his

request to change the child’s name. We conclude that we lack

jurisdiction to resolve this issue. In the alternative, we conclude

that it is inadequately presented for appellate review.

¶ 24 We review a district court order regarding a requested name

change for a minor child for an abuse of discretion. In re Marriage

of Nguyen, 684 P.2d 258, 260 (Colo. App. 1983). “A court abuses

its discretion when its decision is manifestly arbitrary,

unreasonable, or unfair, or when it misconstrues or misapplies the

law.” In re Marriage of Fabos, 2022 COA 66, ¶ 16.

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¶ 25 When considering a request for a name change, “the court

must take into consideration the best interests of the minor child.”

Hamman v. Cnty. Ct., 753 P.2d 743, 749 (Colo. 1988). Factors

influencing the court’s decision include “the length of time the child

has used the surname, the potential impact of the requested name

change on the child’s relationship with each parent, the child’s

preference, and any misconduct by a parent which would justify a

name change.” D.K.W. v. J.L.B., 807 P.2d 1222, 1224 (Colo. App.

1990). The court should also look to “the motivation of the parties,

the identification of the child as part of a family unit,” and any

negative consequences for the child that may result if the child’s

surname differs from that of the custodial parent. Id. Whether the

requested name change is in the best interests of the child is

ultimately a factual determination for the district court. Hamman,

753 P.2d at 750.

¶ 26 Here, instead of filing a separate petition or motion for a name

change, as required by section 13-15-101(1)(a.5), C.R.S. 2025,

father included the following in his trial management certificate:

“[t]he minor child’s name shall be changed to be hyphenated and

include both of her parents’ last names.” The magistrate

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interpreted this statement as father’s request to change the child’s

name. However, the magistrate also pointed out that father had not

complied with the procedures from section 13-15-101(1)(a.5), and

found that father’s request was thus improperly pleaded. The

magistrate therefore dismissed his request without prejudice.

¶ 27 In its order adopting the magistrate’s order, the district court

declined to address the name change request because “there is no

final order from the Magistrate resolving the issue,” and because

father did not provide a transcript of the relevant hearing.

¶ 28 We recognize, as the magistrate did, that a division of this

court has held that a district court has the power, founded in

common law, to order a name change of a minor child of the parties

in a dissolution of marriage action without complying with statutory

procedures for a name change. Nguyen, 684 P.2d at 260 (“The

[statutory] procedure for change of name . . . is in addition to, not in

exclusion of, the common law method for change of name.”). Even

assuming that we would agree with Nguyen, however, we are unable

to address this issue because an order dismissing a request without

prejudice is not a final order subject to appeal unless “the

circumstances of the case indicate that the action cannot be saved

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and that the district court’s order precludes further proceedings.”

Avicanna Inc. v. Mewhinney, 2019 COA 129, ¶ 1 n.1. Here, the

court’s order did not preclude father from continuing to seek a

name change for the child. Therefore, the order was not final and

appealable.

¶ 29 Even if the order in question was final, however, we would

reject father’s appellate argument because it is inadequately

developed for appellate review. Father’s opening brief devotes a

total of three sentences, along with one case citation, to the name

change issue. It does not address the magistrate’s reason for

denying the request — inadequate pleading — nor does it

acknowledge the district court’s conclusion that the magistrate’s

order was not final and appealable or the court’s observation that

the lack of a hearing transcript hindered its ability to consider

father’s argument on the merits. Accordingly, because father’s

contention is unsupported by any substantial argument, we would

decline to address it further even if it were properly before us. See

People v. Wallin, 167 P.3d 183, 187 (Colo. App. 2007) (declining to

address arguments presented in a perfunctory or conclusory

manner); see also United States v. Dunkel, 927 F.2d 955, 956 (7th

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Cir. 1991) (“A skeletal ‘argument,’ really nothing more than an

assertion, does not preserve a claim.”); Topco, Inc. v. State, Dep’t of

Highways, 275 Mont. 352, 912 P.2d 805, 812 (1996) (“It is not the

function of this Court on appeal to advocate a party’s position, to

develop arguments or to locate and cite supporting or opposing

authority.”).

IV. Bias

¶ 30 Lastly, we reject father’s argument — made for the first time

on appeal — that mother’s “theatrics” during the hearing biased the

magistrate against him and his counsel and violated the Colorado

Code of Judicial Conduct.

A. Applicable Law, Preservation, and Standard of Review

¶ 31 “Basic to our system of justice is the principle that a judge

must be free of all taint of bias and partiality.” People v. Jennings,

2021 COA 112, ¶ 18. A judge may be disqualified from presiding

over a matter based on (1) an appearance of impropriety or

(2) actual bias. People in Interest of A.P., 2022 CO 24, ¶ 26.

¶ 32 The Colorado Code of Judicial Conduct requires a judge to

recuse himself from a case based on the appearance of impropriety

when “the judge’s impartiality might reasonably be questioned.”

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C.J.C. 2.11(A); see also People in Interest of A.G., 262 P.3d 646, 650

(Colo. 2011) (even if a judge may be able to act impartially, “the

judge is disqualified nonetheless because a reasonable observer

might have doubts about the judge's impartiality”). “The purpose

behind disqualifying a judge who has the appearance of partiality is

to protect public confidence in the judiciary.” Jennings, ¶ 19.

¶ 33 “Actual bias, on the other hand, exists when, in all probability,

a judge will be unable to deal fairly with a party.” A.P., ¶ 28. A

claim of actual bias focuses on the “subjective motivations of the

judge,” Jennings, ¶ 20, and requires a showing that a judge “has a

personal bias or prejudice concerning a party or a party’s lawyer,”

C.J.C. 2.11(A)(1). Unlike provisions prohibiting a judge from

presiding over a case involving an appearance of impropriety, the

purpose behind disqualifying a judge for actual bias is to ensure

that the parties to a case receive a fair and impartial trial. A.P., ¶

28; A.G., 262 P.3d at 651. “Only when a judge was actually biased

will we question the reliability of the proceeding’s result.” A.P., ¶

29.

¶ 34 To establish a claim for actual bias, a party must show that a

judge had a “substantial bent of mind against him or her,” People v.

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Drake, 748 P.2d 1237, 1249 (Colo. 1988), or a “deep-seated

favoritism . . . that would make fair judgment impossible,” A.P., ¶

31 (quoting Liteky v. United States, 510 U.S. 540, 555 (1994)). The

record must clearly demonstrate the judge’s actual bias. Jennings,

¶ 28. “Bare assertions and speculative statements are insufficient

to satisfy the burden of proof.” A.P., ¶ 30. Indeed, disqualification

for an actual bias is exceedingly rare. See, e.g., Jennings, ¶ 30 (no

actual bias when the judge told the defendant’s attorney that “when

I saw you enter in this case I knew there were going to be issues

because there are almost always issues with you”); People v. Dobler,

2015 COA 25, ¶ 12 (“While the judge’s statements that he would be

‘haunt[ed]’ by his decision to grant probation showed the judge was

affected by his prior decision to be lenient with defendant, it is not

enough to establish that the judge was unable to sentence

defendant fairly.”).

¶ 35 Under C.R.C.P. 97, a party may move to disqualify a judge

who is “interested or prejudiced” for or against a party. See Bocian

v. Owners Ins. Co., 2020 COA 98, ¶ 13. Because father did not file

a motion to disqualify the judge in this case (and does not address

preservation in his opening brief) this issue is not preserved for

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appeal, and we do not consider further whether the magistrate

should have recused herself based on an appearance of impropriety.

¶ 36 A claim of actual bias, however, cannot be waived and may be

raised for the first time on appeal.2 See Jennings, ¶ 21; A.G., 262

P.3d at 651-53; see also Dobler, ¶ 7. Although father’s appellate

argument is only minimally developed and difficult to parse, it can

reasonably be read as asserting a claim of actual bias. Therefore,

preservation is not required.

¶ 37 We review de novo a claim for disqualification based on actual

bias. Dobler, ¶ 8; see also Jennings, ¶ 27.

B. Analysis

¶ 38 Father contends that the magistrate demonstrated actual bias

at the hearing because, as result of mother’s “theatrics” and

“emotional outbursts,” the magistrate “permitted [m]other to take

several breaks, leave the [c]ourtroom, and even called law

enforcement to the [c]ourtroom because [m]other was now fearful of

not only [f]ather but [f]ather’s counsel.” These actions, father

2 Because actual bias may be raised for the first time on appeal, we

may look to the hearing transcript that appears in the appellate
record even though father did not provide it to the district court
when he petitioned for review of the magistrate’s order.

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contends, demonstrate that mother’s conduct “allowed the

[m]agistrate to be inappropriately swayed and she lost complete

control of the [c]ourtroom.”

¶ 39 “[T]rial judges enjoy broad discretion to adopt procedures

designed to regulate conduct in their courtrooms and to preserve

order during judicial proceedings.” Wilkerson v. Dist. Ct., 925 P.2d

1373, 1377 (Colo. 1996). Based on our review of the hearing

transcript, we conclude that the magistrate’s actions were well

within that broad discretion. To be sure, mother reacted poorly to

much of the questioning by father’s counsel, but the magistrate’s

management of the situation — which included taking breaks when

things became “heated” and instructing father’s counsel to refrain

from “commentary” — was entirely appropriate. Because nothing in

the record clearly establishes actual bias on the magistrate’s part,

we reject father’s argument. See Jennings, ¶ 28.

V. A Word of Warning to Counsel

¶ 40 We find it necessary to address counsel’s noncompliance with

C.A.R. 28 as well as the tenor of the opening brief (which was the

only brief submitted by either party).

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¶ 41 First, the opening brief does not comply with C.A.R. 28 in

several respects. Many of father’s claims about mother’s conduct —

for example, allegations that mother “moved people in and out of

her home, making them the priority over own children,” that father

“battled with the overall hygiene of the minor child,” and “the minor

child not being provided meals sufficient to meet the minor child’s

nutritional needs” — are unsupported by any record citations. See

C.A.R. 28(a)(5). And many of the record citations that do appear in

the opening brief cover are imprecise — instead covering large

swaths of the court file or the single transcript that was made part

of the record on appeal. See C.A.R. 28(a)(7)(a) (briefs must identify

“the precise location in the record where the issue was raised and

where the court ruled”); see Black v. Black, 2018 COA 7, ¶ 67

(“‘Judges are not like pigs, hunting for truffles buried in’ the parties’

submissions.”) (alteration and citation omitted).

¶ 42 Although the opening brief lists ten different orders as grounds

for “preservation” of the issues raised regarding the allocation of

decision-making, it does not acknowledge that the district court

denied father’s petition for review of the magistrate’s order because

he failed to provide a transcript of the relevant hearing. See

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Marriage of Dean, ¶ 15. And father’s claim of judicial bias does not

address the standard of review or preservation at all. See C.A.R.

28(a)(7)(A).

¶ 43 We are also troubled by the tone of father’s opening brief,

which includes repeated ad hominem attacks on mother and the

magistrate — including claims that mother engaged in “theatrics”

and an assertion that the magistrate and the district court

“crucified” father. These intemperate accusations are of a piece

with counsel’s briefs in the district court, where, among other

things, he accused the magistrate of being “blinded by [m]other’s

theatrics” and wrote that “[s]he should have been awarded an Oscar

and not sole decision making.”

¶ 44 Counsel’s inflammatory approach is counterproductive not

only because it “hinders the court in deciding the merits of the

appeal,” but also because it “debases both the legal profession and

the judicial system.” Martin v. Essrig, 277 P.3d 857, 860 (Colo.

App. 2011).

¶ 45 Although we have opted to resolve this appeal on the merits,

we remind counsel of his obligation to comply with the Colorado

Appellate Rules and his obligations to act civilly toward opposing

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parties and the court. Future lapses may be subject to sanctions or

other remedies. See id. at 861.

VI. Disposition

¶ 46 The order is affirmed.

JUDGE J. JONES and JUDGE SCHUTZ concur.

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