Parental Resp Conc MM

23CA1367 Parental Resp Conc MM 01-23-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1367
El Paso County District Court No. 16DR30155
Honorable Chad Miller, Judge

In re the Parental Responsibilities Concerning M.M., a Child,

and Concerning Kristin Lee a/k/a Kristin Ellias,

Appellee,

and

William Muhr,

Appellant.

ORDER AFFIRMED, ORDER REVERSED,
AND CASE REMANDED WITH DIRECTIONS

Division III
Opinion by JUDGE TOW
Martinez* and Berger*, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced January 23, 2025

No Appearance for Appellee

Mark D. Francis, 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 William Muhr (father) appeals from the district court’s order

releasing $78,380 held in the court registry to Kristen Lee (mother)

to be applied towards a judgment entered against father for unpaid

temporary child support. Father also appeals the reassignment of

the case to a new district court judge. We reverse the order

releasing the $78,380 and remand the case for further proceedings

as to that issue. But we affirm the order reassigning the case.

I. Background

¶2 In February 2016, mother petitioned to allocate parental

responsibilities for the parties’ only minor child, M.M. While the

proceedings were pending, mother sought and obtained an award of

temporary child support in the amount of $1,270 per month.

Father appealed, and a division of this court affirmed. In re

Parental Responsibilities Concerning M.M., slip op. (Colo. App. No.

17CA0263, Apr. 26, 2018) (not published pursuant to C.A.R. 35(e))

(M.M. I).

¶3 The district court entered permanent orders allocating

parental responsibilities in October 2020. In February 2021,

mother sought and obtained a support judgment in the amount of

$78,380 against father, consisting of unpaid temporary child

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support and statutory interest. Mother also filed and recorded two

notices of lis pendens against certain real property owned by the

irrevocable K and S Family Trust (the Trust), which mother asserted

was an entity that was indistinguishable from father and was being

used to conceal his assets.

¶4 To lift the cloud on title caused by the notices of lis pendens,

the Trust then agreed to deposit, under protest, the amount of

$78,380 into the registry of the court. Upon the court’s receipt of

the funds, mother released the notices of lis pendens. Father

appealed the $78,380 judgment entered in mother’s favor, but a

division of this court dismissed the portion of father’s appeal as to

the unpaid temporary child support. In re Parental Responsibilities

Concerning M.M., slip op. at ¶¶ 42-45 (Colo. App. No. 20CA2066,

June 2, 2022) (not published pursuant to C.A.R. 35(e)) (M.M. II).

¶5 Over a year later, mother filed a notice to set a hearing

concerning the funds being held in the court registry. A hearing

was set for July 31, 2023, and following a prehearing conference,

the parties and the Trust were permitted to file position statements

as to the disposition of the funds.

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¶6 At the hearing, father argued that the court lacked jurisdiction

to enter an order as to the funds because, in June 2023, he had

filed a petition for certiorari with the United States Supreme Court

asserting various violations of his right to due process during the

prior proceedings. Mother disagreed that the court lacked

jurisdiction to proceed and argued that the court could, without

taking any evidence, release the funds to her based on issue

preclusion. Mother sought to apply issue preclusion based on three

orders issued in El Paso County District Court case number

12DR2531 (the B.B. case), which involved father’s obligation to pay

child support for a different child, B.B. In that proceeding, the

district court found that father had unfettered access to, and

control over, the Trust’s assets.

¶7 Near the end of the hearing, the district court was prepared to

issue a verbal order. But before the court could rule, father

requested a short recess. After the recess, mother’s attorney

informed the court that the parties had reached a settlement, in

which father would directly pay mother the full $78,380 judgment

within seven days in exchange for the release of the funds in the

court registry to the Trust. Father confirmed the terms of the

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settlement on the record. The court directed mother’s attorney to

draft and file an agreement reflecting the settlement. But a week

later, mother filed a request for a ruling from the July 31, 2023,

hearing, stating that father was refusing to honor the settlement.

The court set a status conference for August 31, 2023, at which it

would issue a ruling.

¶8 At the status conference, the court stated that it was issuing

the order that it had intended to issue before the unsuccessful

settlement. The court found that it had jurisdiction and ordered

the money released to mother based on issue preclusion. The court

relied on orders from the B.B. case, which contained findings that

the Trust was a sham and was a way for father to hide funds to

avoid paying his child support obligations.

¶9 Judge Miller, who presided over the hearing, also stated that,

going forward, he would be recusing from the case and would have

the case reassigned to a new judge. Judge Miller explained that he

was convinced that father had never intended to honor the earlier

settlement agreement and had possibly orchestrated the settlement

as a fraudulent stall tactic. Per Judge Miller, recusal was necessary

because “[m]oving forward I cannot believe anything that [father]

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tells me . . . [and] I would have a conflict because if he stood here

and told me something I would not believe him.” However, Judge

Miller emphasized that he was nonetheless ordering the release of

the funds to mother because such an order was “going to be

entered” at the conclusion of the July 31, 2023, hearing, “before I

had these credibility concerns about [father].” Judge Miller

immediately signed mother’s proposed order releasing the funds to

her, and the next day he issued an order of recusal reassigning the

case to Division 17 of the El Paso County District Court.

II. Effect of Father’s Petition for Certiorari

¶ 10 As a threshold matter, we reject father’s contention that

because he had a petition for certiorari pending with the United

States Supreme Court, the district court lacked jurisdiction to issue

any orders in the case, including the order releasing the funds. It is

true that a timely appeal of a final judgment or order to this court,

and the subsequent filing of a petition for certiorari with the

Colorado Supreme Court, generally divests the district court of

jurisdiction to act on matters relative to the appealed judgment or

order until the mandate issues. Musick v. Woznicki, 136 P.3d 244,

248 (Colo. 2006); People v. Jones, 631 P.2d 1132, 1133 (Colo.

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1981). But father has not cited any legal authority suggesting that

the mere filing of a petition for certiorari with the United States

Supreme Court similarly divests the district court of jurisdiction.

¶ 11 Indeed, “[a] review by the [United States] Supreme Court of a

judgment or decree of a State court shall be conducted in the same

manner and under the same regulations, and shall have the same

effect, as if the judgment or decree reviewed had been rendered in a

court of the United States.” 28 U.S.C. § 2104. And it is well

established in federal court that the mere “filing of a petition for

certiorari does not automatically stay proceedings in the [federal]

District Court.” United States v. Eisner, 323 F.2d 38, 42 (6th Cir.

1963) (recognizing that if the filing of a petition for a writ of

certiorari automatically divested a federal district court of

jurisdiction to enter further orders, the procedures for obtaining a

stay of the proceedings under 28 U.S.C. § 2101 would be

superfluous); see also United States v. Sears, 411 F.3d 1240, 1242

(11th Cir. 2005) (“[T]hat certiorari proceedings were going forth in

the Supreme Court does not divest the district court of

jurisdiction.”); State v. Abram, 815 N.W.2d 897, 904-05 (Neb. 2012)

(“[T]he mere filing of a petition for certiorari [in the United States

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Supreme Court] does not automatically stay proceedings in a lower

[state] court and does not divest a trial court of jurisdiction.”)

¶ 12 Accordingly, we conclude that despite father’s June 2023

petition for certiorari to the United States Supreme Court, the

district court retained jurisdiction to enter orders in the case,

including the August 31, 2023, order releasing the funds and the

subsequent order of reassignment.

III. Issue Preclusion

¶ 13 Father contends that the district court erred by applying the

doctrine of issue preclusion to conclude that, because the Trust was

a sham, the funds held in the court registry could be released to

satisfy father’s child support arrearage. We agree because not all

the elements of issue preclusion were met as to the three orders

that the district court relied upon. We therefore reverse the district

court’s order releasing the funds and remand the case for further

proceedings.

A. Applicable Law

¶ 14 Under the doctrine of issue preclusion, “[a] court may rely on a

determination made in a separate legal proceeding and bar parties

from relitigating that matter” in the new proceeding. Sensible Hous.

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Co. v. Town of Minturn, 280 P.3d 36, 39 (Colo. App. 2010), rev’d on

other grounds, 2012 CO 23. Issue preclusion bars a party from

relitigating an issue if:

(1) The issue precluded is identical to an issue
actually litigated and necessarily adjudicated
in the prior proceeding; (2) The party against
whom estoppel was sought was a party to or
was in privity with a party to the prior
proceeding; (3) There was a final judgment on
the merits in the prior proceeding; [and] (4)
The party against whom the doctrine is
asserted had a full and fair opportunity to
litigate the issues in the prior proceeding.

Rantz v. Kaufman, 109 P.3d 132, 139 (Colo. 2005) (quoting Bebo

Constr. Co. v. Mattox & O’Brien, P.C., 990 P.2d 78, 84-85 (Colo.

1999)).

¶ 15 The party asserting issue preclusion has the burden of

establishing each element, Bebo, 990 P.2d at 85, and whether the

elements are met presents a question of law that we review de novo,

Vanderpool v. Loftness, 2012 COA 115, ¶ 17. However, where, as

here, a party seeks to apply nonmutual offensive issue preclusion,

which “presents a unique potential for unfairness toward the party

sought to be estopped,” the district court must also consider other

factors which bear on the fairness of applying issue preclusion. See

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id. at ¶ 14 (describing additional considerations in nonmutual

offensive issue preclusion). Accordingly, we also “review a district

court’s ultimate decision whether to apply offensive issue preclusion

for an abuse of discretion.” Id. at ¶ 18.

¶ 16 Here, in applying issue preclusion, the district court relied on

three separate orders from the B.B. case. We agree with father that

the orders relied on by the court were either insufficient to apply

issue preclusion or were not final for purposes of issue preclusion.

B. March 3, 2017, Order

¶ 17 The first order presented by mother, and relied on by the

district court, consisted of four pages of a March 3, 2017,

transcript, in which a magistrate held father in punitive and

remedial contempt for failing to pay child support in the B.B. case.

The district court took judicial notice of the transcript excerpt, in

which the magistrate found that the Trust was effectively a sham

and that father had unfettered access to the Trust’s assets.

¶ 18 But we agree with father that the four pages of the transcript

alone were insufficient to apply issue preclusion as to whether the

Trust’s funds held in the court registry could be used to satisfy the

child support arrearage. Indeed, based on the very limited record of

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the contempt proceedings in the B.B. case provided by mother, we

cannot say that the issue of whether the Trust’s assets can be

appropriated to satisfy father’s child support arrearage was both

actually and necessarily adjudicated in the contempt proceeding.

Rantz, 109 P.3d at 139; see also Nat. Energy Res. Co. v. Upper

Gunnison River Water Conservancy Dist., 142 P.3d 1265, 1280

(Colo. 2006) (recognizing that for an issue to be actually litigated,

the issue “must have been properly raised by appropriate pleading”

and actually determined by the court).

C. January 8, 2018, and January 25, 2021, Orders

¶ 19 The district court also relied on orders from the B.B. case

dated January 8, 2018, and January 25, 2021. In those orders, the

district court in the B.B. case made findings that father had hidden

assets in, and otherwise controlled, the Trust. But we agree with

father that those orders were not final for issue preclusion

purposes.

¶ 20 A final judgment or order “is an essential prerequisite for the

applicability of [issue preclusion].” S.O.V. v. People in Interest of

M.C., 914 P.2d 355, 359 (Colo. 1996). Accordingly, a judgment or

order that is later reversed or vacated is generally not final for issue

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preclusion purposes. See id. (no final judgment where “[t]he

judgment that had been entered on the jury verdict was reversed on

appeal and the case was remanded for a ruling on [a] motion for a

new trial”); Barnett v. Elite Props. of Am., Inc., 252 P.3d 14, 23 (Colo.

App. 2010) (“A judgment is not final in the sense that it binds the

parties [for purposes of issue preclusion] until the losing party has

failed properly to perfect an appeal, or until the highest court,

whose jurisdiction is invoked by either party, upholds the decision

of the trial court.” (quoting Benham v. Plotner, 795 P.2d 510, 512

(Okla. 1990)).

¶ 21 However, if a judgment or order is partially reversed, that

partial reversal generally negates only the part of the judgment or

order that has been reversed, and issue preclusion can still be

asserted based on the remaining parts of the judgment. See FCA

US, LLC v. Spitzer Autoworld Akron, LLC, 887 F.3d 278, 289-90 (6th

Cir. 2018) (recognizing that the part of a reversed judgment that

remains can support issue preclusion); cf. 18A Charles Alan Wright

& Arthur R. Miller, Federal Practice & Procedure § 4432 (2d ed.

2013) (“There is no preclusion as to the matters vacated or

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reversed” absent further proceedings on remand restoring the

original judgment or expanding the preclusion.).

¶ 22 Here, as recognized in In re Parental Responsibilities

Concerning B.B., slip op. at ¶¶ 4-6 (Colo. App. No. 21CA0326, Apr.

28, 2022) (not published pursuant to C.A.R. 35(e)) (the B.B. appeal),

the January 8, 2018, order denying father’s October 2016 motion to

modify child support was vacated by the district court, which

acknowledged that it had erroneously denied father’s motion and

instead should have modified child support in the B.B. case

retroactive to October 1, 2016. And while the district court in the

B.B. case had asked mother’s counsel to submit a corrected child

support worksheet for the court’s review, that never happened. Id.

at ¶¶ 6, 9. Accordingly, the division in the B.B. appeal instructed

the district court on remand to issue a corrected child support

order dating back to October 2016. Id. at ¶¶ 10-16.

¶ 23 Next, the January 25, 2021, order, which resolved a second

motion to modify child support filed by father in the B.B. case, was

vacated and remanded by the division in the B.B. appeal for the

district court’s reconsideration based on the parties’ present

financial circumstances. Id. at ¶¶ 1, 8, 17-19, 37.

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¶ 24 Therefore, the district court here failed to recognize that both

the January 8, 2018, and the January 25, 2021, child support

modification orders from the B.B. case had been vacated, meaning

that they were not final orders for issue preclusion purposes.

S.O.V., 914 P.2d at 359; Barnett, 252 P.3d at 23. And mother, as

the party with the burden of establishing issue preclusion,

Bebo, 990 P.2d at 85, did not otherwise demonstrate that, as of the

August 31, 2023, order releasing the funds, further proceedings on

remand in the B.B. case had led to the reinstatement of the two

vacated orders. See 18A Wright & Miller, supra, § 4432.

D. Remand

¶ 25 Because we conclude that the district court erred in applying

issue preclusion, we reverse the August 31, 2023, order and

remand the case for further proceedings concerning the disposition

of the funds that were held in the court registry.

IV. Remaining Issues

¶ 26 Because we are reversing and remanding for further

proceedings, we decline to address father’s contention that the

district court erred by denying him an opportunity to object to

mother’s proposed order. We also decline to address father’s

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assertion that the Trust was an indispensable party that should

have been joined in the proceedings. Father will have the

opportunity to seek the inclusion of the Trust under C.R.C.P. 19 on

remand.

¶ 27 We also decline to address all but one of the issues father

raises regarding disqualification of Judge Miller. As we read the

record, Judge Miller had not recused before issuing the order to

release the funds. Thus, there is no jurisdictional defect and the

issue would merely be one of whether the order was tainted by bias.

Because we are reversing the order, any taint there may have been

has been cured. We also decline to consider father’s arguments

that Judge Miller should have been disqualified from the beginning

of the case — in part because they have been rejected before and

are the law of the case and in part because Judge Miller has now

recused so those issues are moot.

¶ 28 The only issue we address in this regard is the challenge to the

order of reassignment, because it will necessarily arise on remand.

Father contends that, because Judge Miller was recusing, he lacked

subject matter jurisdiction to issue the September 1, 2023, order

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reassigning the case to Division 17 of the El Paso County District

Court.

¶ 29 We review de novo whether the district court had subject

matter jurisdiction. See In re Marriage of Roth, 2017 COA 45, ¶ 13.

A challenge to subject matter jurisdiction cannot be waived and

may be raised at any stage of the proceedings. Town of Carbondale

v. GSS Props., LLC, 169 P.3d 675, 681 (Colo. 2007).

¶ 30 This is now the third time that father has raised this same

recusal/successor judge issue on appeal. Specifically, father made

nearly identical contentions in M.M. II, slip. op. at ¶¶ 10-13, and the

B.B. appeal, slip op. at ¶¶ 24-27, concerning the procedure that

followed the recusal of the initial judicial officer, Judge Bain, from

both cases and the reassignment of both cases to Judge Miller. We

agree with the analysis of the divisions in those cases.

¶ 31 Specifically, when a district court judge is disqualified from

hearing a case, that judge loses jurisdiction to enter rulings

requiring the exercise of judicial discretion, but not to execute

administrative tasks. See People v. Arledge, 938 P.2d 160, 167

(Colo. 1997). Therefore, Judge Miller retained the jurisdiction to

reassign the case to another judge, and contrary to father’s

15
assertions, the record does not indicate that the case was not

randomly assigned to a successor judge. Indeed, anticipating

father’s objection, Judge Miller specifically stated that, in

accordance with the district court’s procedures, the case would be

submitted to the court staff for random reassignment. Cf. Chief

Justice Directive 95-01, Authority and Responsibility of Chief

Judges § 6.b (amended Aug. 2005) (“The chief judge may assign and

reassign cases to courts or divisions within the courts and may

delegate the assignment power.”).

V. Disposition

¶ 32 The August 31, 2023, order releasing the funds from the court

registry to mother is reversed. The September 1, 2023, order

reassigning the case to Division 17 or the El Paso County District

Court is affirmed. The case is remanded for further proceedings

consistent with this opinion.

JUSTICE MARTINEZ and JUDGE BERGER concur.

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