Marriage of Gorski

25CA0499 Marriage of Gorski 11-20-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 25CA0499
Adams County District Court No. 23DR1078
Honorable Kelley R. Southerland, Judge
Honorable Sarah E. Stout, Judge

In re the Marriage of

Alexa Rose Gorski,

Appellee,

and

Jeffrey Allyn Gorski,

Appellant.

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

Division V
Opinion by JUDGE FREYRE
Pawar and Yun, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced November 20, 2025

Belzer Law, Aaron B. Belzer, Ashlee N. Hoffmann, Boulder, Colorado, for
Appellee

Colorado Legal Group, Ronald B. Taylor, Denver, Colorado, for Appellant
¶1 In this dissolution of marriage case between Jeffery Allyn

Gorski (father) and Alexa Rose Gorski (mother), father appeals a

portion of the district court’s permanent orders concerning holiday

parenting time and attorney fees. We affirm the judgment in part,

reverse it in part, and remand the case for further proceedings.

I. Relevant Facts

¶2 The parties successfully mediated nearly every issue in their

dissolution case and filed a memorandum of understanding (MOU)

memorializing their agreements. However, the parties reached an

impasse about certain holiday parenting time and, therefore,

requested a hearing on the issue. Following an evidentiary hearing,

the district court granted mother’s request to alternate Christmas

Eve and Christmas Day every year (Christmas order) and

subsequently granted mother attorney fees.

¶3 After the parties filed a parenting plan incorporating the

court’s ruling on the Christmas parenting time issue, the court

entered a decree dissolving the parties’ marriage on March 9, 2025.

Father filed his notice of appeal on March 21, 2025.

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II. Appellate Jurisdiction

¶4 We reject mother’s argument that we lack jurisdiction to

review the issue of Christmas parenting time on the basis that

father appealed too late. See In re Marriage of James, 2023 COA 51,

¶ 8 (“The timely filing of a notice of appeal is a jurisdictional

prerequisite for appellate review.”). Mother asserts that the

Christmas order was a final, appealable order. However, the

parties’ marriage was not yet dissolved at the time the court issued

the Christmas order. Therefore, the dissolution decree, not the

Christmas order, was the final appealable judgment because it

resolved all outstanding issues between the parties. See In re

Marriage of Wiggs, 2025 COA 10, ¶ 9 (in dissolution proceedings, an

order generally is not final and appealable until the district court

has issued permanent orders resolving all outstanding issues

between the parties); see also In re Marriage of Salby, 126 P.3d 291,

294 (Colo. App. 2005) (“A final judgment ends the proceeding in

which it is entered and leaves nothing further to be done regarding

the rights of the parties.”).

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¶5 Father filed his notice of appeal within forty-nine days of the

issuance of the decree. See C.A.R. 4(a)(1). Thus, we have

jurisdiction to address this issue.

III. Christmas Parenting Time

1. A. Legal Principles and Standard of Review

¶6 When allocating parenting time, a district court must focus on

the child’s best interests, giving paramount consideration to the

child’s safety and their physical, mental, and emotional conditions

and needs. See §§ 14-10-123.4(1)(a), 14-10-124(1.5), (1.7), C.R.S.

2025; In re Marriage of Morgan, 2018 COA 116M, ¶ 17. In making

this determination, the court must consider all relevant factors,

including those factors identified in section 14-10-124(1.5)(a). See

Morgan, ¶ 17.

¶7 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 Hatton, 160 P.3d 326, 330 (Colo. App.

2007). A court abuses its discretion when its decision is manifestly

arbitrary, unreasonable, or unfair, or is based on a misapplication

of the law. In re Marriage of Evans, 2021 COA 141, ¶ 25.

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¶8 However, we review the court’s application of the law de novo.

In re Marriage of Badawiyeh, 2023 COA 4, ¶ 10.

2. B. Waiver

¶9 Mother argues that father waived the Christmas parenting

time issue, precluding appellate review. We are not convinced. In

support, she cites father’s agreement in the MOU to “equally share

and alternate major holidays, with a specific schedule to be

provided in [the parties’] Parenting Plan.” Mother also cites

provisions in the parenting plan, such as the Christmas parenting

time schedule the court adopted and father’s agreement that the

plan is in the child’s best interests.

¶ 10 “Waiver is the intentional relinquishment of a known right; it

may be express, as when a party states its intent to abandon an

existing right, or implied, as when a party engages in conduct which

manifests an intent to relinquish the right or acts inconsistently

with its assertion.” Evans, ¶ 24.

¶ 11 Father did not waive his objection to this issue for purposes of

appeal. Notwithstanding their vague agreement in the MOU

concerning major holidays, the parties jointly requested an

evidentiary hearing on the disputed issue of Christmas parenting

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time. Following the court’s resolution of this issue after the

hearing, the parties then merely incorporated the Christmas order

into the parenting plan. Accordingly, father neither expressly

waived nor impliedly waived his objection on this issue. See id.

3. C. The Parties’ Positions and the Christmas Order

¶ 12 Father, who testified that he is Christian, requested that he be

allocated Christmas Eve and Christmas Day every year “due to his

religious beliefs” and his limited holiday time off work. At the time

of the hearing, father received only Christmas Eve and Christmas

Day off work for the end-of-year holidays (not including paid time

off).

¶ 13 Mother, on the other hand, requested that the parents

alternate Christmas Eve and Christmas Day every year until the

child began his formal education and, thereafter, alternate the first

and second half of the child’s winter break. (Father agreed to

alternate winter break weeks but still sought Christmas Eve and

Christmas Day every year.) Mother, who testified that she is

Jewish, argued that father was attempting to elevate his religious

beliefs over her parenting time on “secular state holidays” under

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section 24-11-101, C.R.S. 2025. At the time of the hearing, mother

worked in the school system and had winter breaks off from work.

¶ 14 Following the hearing, the court adopted mother’s proposed

holiday parenting time schedule, concluding that it would serve the

child’s best interests. The court was persuaded by mother that,

“because a state-sanctioned holiday also happens to be a religious

holiday for some parents does not also mean that the parent who

celebrates that holiday should always be allocated that time, absent

parental agreement.” And it reasoned that granting father’s

request, over mother’s objection, would amount to “prioritizing a

parent’s religion over the other parent’s right to parent on a state-

sanctioned holiday.”

4. D. The District Court Did Not Misapply the Law

¶ 15 For the first time on appeal, father asserts that the district

court misapplied the law in deciding the Christmas order because it

did not apply a “two prong test,” either in addition to or in lieu of

the best interests test under section 14-10-124(1.5)(a). Apparently

relying on a West Virginia case, State ex rel. Brandon L. v. Moats,

551 S.E.2d 674, 684 (W. Va. 2001), father claims that the court

should have applied a “two prong approach to balance the

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competing interests” of “general parental rights to parent balanced

with parental religious freedoms” and “the child’s welfare.”

However, we are not bound by the decisions of the courts of other

states. Wal-Mart Stores, Inc. v. United Food & Com. Workers Int’l

Union, 2016 COA 72, ¶ 17. And because father did not raise this

argument in the district court, we do not address it further. See In

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

(“Arguments not presented at trial cannot be raised for the first time

on appeal.”).

¶ 16 Father also summarily asserts that the court did not apply the

“best interests lens” to its review of the evidence. However, in its

Christmas order, the court noted that it considered the child’s best

interests and determined they were served by adopting mother’s

proposed holiday schedule. And, at the conclusion of the hearing,

the court stated that it would “do [its] very best to meet [the child’s]

needs, first and foremost, and [the] parents’ wishes as well.” See §

14-10-124(1.5)(a)(I). Thus, we are unpersuaded by father’s

assertion.

¶ 17 Accordingly, the court did not misapply the law.

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5. E. The District Court Did Not Abuse Its Discretion

¶ 18 Notwithstanding father’s statement in his opening brief that

this case is “not about the [district court’s] ultimate allocation,” he

contends that the court abused its discretion in deciding holiday

parenting time. For the reasons we discuss below, we are not

convinced.

¶ 19 First, father incorrectly asserts that the court concluded that

it “could not as a matter of law consider” his Christmas parenting

time request. The court drew no such conclusion and, to the

contrary, considered father’s wishes for parenting time, consistent

with section 14-10-124(1.5)(a)(I). That the court was persuaded by

mother’s argument, rather than father’s, does not mean that the

court didn’t consider his argument or parenting time wishes.

¶ 20 Further, we may and do presume that the court considered

the evidence that father presented. See In re Marriage of Udis, 780

P.2d 499, 504 (Colo. 1989) (appellate court may presume that the

district court considered all the evidence presented, even if the

order does not expressly recite such evidence).

¶ 21 Second, we reject father’s contention that the court made “no

factual findings” in the Christmas order. The court indeed made

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factual findings about the parents’ work schedules and holiday time

off and it took judicial notice of certain adjudicative facts, including

the “fact that public schools in the State of Colorado are closed for

approximately two weeks each year over what is called ‘Winter

Break,’” which includes Christmas Eve and Christmas Day. See

CRE 201. In addition, the court indicated in the Christmas order

that it considered the “relevant statutory provisions.” As discussed,

the court orally noted that it would do its best to meet the child’s

needs, as well as the parents’ wishes. Considering this record, we

are unpersuaded that its findings were inadequate. See In re

Marriage of Martin, 42 P.3d 75, 77 (Colo. App. 2002) (a district court

need not make specific findings on each factor, but the record must

indicate that the court considered the pertinent factors).

¶ 22 In addition, mother testified that winter break was “one of the

only times that parents and children have extended time off of

work,” and she continued, “If I were to have week one [of winter

break], or some time but never have Christmas, that would always

impede on those years of my ability to have uninterrupted time with

[the child] or the ability to travel or go on vacation.”

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¶ 23 Third, father otherwise essentially asks us to reweigh the

evidence to find in his favor and substitute our own judgment for

that of the district court, which we cannot do. See In re Marriage of

Thorburn, 2022 COA 80, ¶ 49 (it is for the district 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); see also In re Marriage of Kann,

2017 COA 94, ¶ 36 (“[O]ur supreme court has . . . expressed

unbridled confidence in [district] courts to weigh conflicting

evidence.”).

¶ 24 Accordingly, we discern no abuse of discretion in the court’s

Christmas order.

IV. Attorney Fees in the District Court

¶ 25 Father contends that the district court erred by awarding

mother attorney fees without making any factual findings to

support its award. We agree.

6. A. Additional Facts

¶ 26 Mother requested attorney fees under section 13-17-102(4),

C.R.S. 2025, asserting that father’s holiday parenting time

argument was frivolous. In the Christmas order, the court

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authorized mother to file an attorney fee affidavit. The court

subsequently stamped mother’s attorney fee affidavit “granted by

court.”

7. B. Legal Principles and Standard of Review

¶ 27 A district court may award attorney fees under section 13-17-

102(4) when it finds that a party brought an action, or any part

thereof, that lacked substantial justification, meaning that the

action was substantially frivolous, substantially groundless, or

substantially vexatious. In re Marriage of Tognoni, 313 P.3d 655,

661 (Colo. App. 2011). When a court awards attorney fees

under section 13-17-102, it must consider the relevant factors set

forth in section 13-17-103(1), C.R.S. 2025, and make findings on

those factors to explain how it arrived at the amount of its award.

See In re Marriage of Aldrich, 945 P.2d 1370, 1378-79 (Colo. 1997);

Tognoni, 313 P.3d at 661.

¶ 28 We review an award of attorney fees for an abuse of discretion.

Tognoni, 313 P.3d at 661.

8. C. Analysis

¶ 29 In stamping mother’s attorney fee affidavit “granted,” the court

did not make any findings justifying its award of attorney fees to

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mother. Therefore, we must reverse the court’s attorney fee award

and remand the case to the district court to reconsider mother’s

attorney fee request. On remand, the court must consider the

relevant factors in section 13-17-103(1) and make findings on those

factors to explain how they justify a fee award. See Aldrich, 945

P.2d at 1378-79; Tognoni, 313 P.3d at 661.

V. Mother’s Request for Appellate Attorney Fees and Costs

¶ 30 Mother requests an award of her appellate attorney fees under

section 13-17-102 because she argues that father’s argument is

frivolous as filed. In support of this argument, mother cites, among

other things, her assertions that father’s contentions are untimely

and waived. But, in light of our disposition, we are unpersuaded by

these assertions. As additional support mother also references the

district court award of attorney fees, claiming they were awarded

because father’s argument “lacked substantial justification,” but, as

discussed, we reverse that award for a lack of findings justifying the

award. Moreover, an award of fees based on such a request is

appropriate only in clear and unequivocal cases of egregious

conduct where no rational argument is presented. See Glover v.

Serratoga Falls LLC, 2021 CO 77, ¶ 70; In re Parental

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Responsibilities Concerning S.Z.S., 2022 COA 105, ¶ 53. While we

certainly disagree with father’s contention on holiday parenting

time, we are not persuaded that his appeal was substantially

frivolous.

¶ 31 Mother also seeks her appellate costs. Because we affirm in

part and reverse in part, the district court shall determine appellate

costs on remand. See C.A.R. 39(a)(4) (“[I]f a judgment is affirmed in

part, reversed in part, modified, or vacated, costs are taxed only as

ordered by the [district] court.”).

VI. Disposition

¶ 32 The portion of the judgment deciding Christmas parenting

time is affirmed, the portion granting mother attorney fees is

reversed, and the case is remanded for further proceedings

consistent with this opinion.

JUDGE PAWAR and JUDGE YUN concur.

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