Marriage of Delker

24CA0663 Marriage of Delker 06-12-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0663
Pueblo County District Court No. 21DR711
Honorable Dorothy A. Radakovich, Magistrate

In re the Marriage of

Christopher Lee Delker,

Appellant,

and

Yessica Rodriguez,

Appellee.

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

Division III
Opinion by JUDGE TOW
Dunn and Taubman*, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced June 12, 2025

Christopher Lee Delker, Pro Se

TurnerZamarripa, Attorneys at Law, LLC, Jennifer A. Zamarripa, Pueblo,
Colorado, for Appellee

*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 In this dissolution of marriage case between Christopher Lee

Delker (father) and Yessica Rodriguez (mother), father appeals the

trial court’s permanent orders regarding property division and child

support. We affirm the property division component but reverse in

part the child support component of the permanent orders and

remand to correct the commencement date for mother’s support

obligation.

I. Background

¶2 In the notice of electronic record certified to this court, the

Pueblo County clerk noted that no transcripts were requested, so

none were included in the appellate record. Therefore, the following

facts are taken from the court file.

¶3 Father filed an action to dissolve the parties’ marriage in 2021.

In October 2022, the trial court entered what it titled “permanent

orders”1 allocating parental responsibilities concerning the parties’

one child. But the court did not enter a decree dissolving the

marriage at that time, nor did it address any financial matters —

such as dividing the marital estate or establishing child or spousal

1 Orders entered before the decree of dissolution are generally

considered temporary orders. § 14-10-108, C.R.S. 2024.

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support — because the parties had not complied with their financial

disclosure obligations.

¶4 After several attempts to secure the parties’ compliance with

their financial disclosure obligations, which they eventually

partially satisfied, the court conducted an evidentiary hearing on

the remaining issues on January 18, 2024. The court took the

matter under advisement and, on April 1, 2024, entered a decree

dissolving the marriage, dividing the marital estate, and concluding

that the parties had waived maintenance. Still, however, child

support was not addressed.

¶5 After father appealed, we stayed the matter until finality could

be obtained, which required the trial court to address child support.

The trial court ultimately entered a child support order, requiring

mother to pay ten dollars to father each month, retroactive to

December 1, 2022.

¶6 Father appeals the orders related to division of property and

child support.

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II. Property Division

¶7 Father contends that the court erred by dividing the marital

estate based on mother’s incomplete financial disclosures. We

discern no error.

A. Additional Background

¶8 In the decree, the court noted that at the start of the January

2024 evidentiary hearing, father raised the lack of financial

documentation provided by mother. The court stated that it had

previously issued an order to compel mother to provide certain

financial disclosures; mother filed a sworn financial statement with

the court; mother later filed an updated sworn financial statement

the day before the hearing; and mother alleged that she provided all

required disclosures. The court noted that father took no action

between the order to compel and the evidentiary hearing to enforce

the order, including not even reaching out to mother’s counsel to

ask about the status of the discovery.

¶9 The court further stated in the decree that it declined to

continue the hearing, observing that neither party had fully

complied with their discovery obligations under C.R.C.P. 16.2. The

court imposed no sanctions, noting that father had not requested

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any. The court also made specific findings with respect to different

property owned by the parties based on the testimony at the

hearing and divided it.

B. Analysis

¶ 10 As a threshold matter, we note that it is an appellant’s

responsibility to furnish us with a record on appeal, including

“transcripts of all proceedings necessary for considering and

deciding the issues on appeal.” C.A.R. 10(d)(3). Without a

transcript for us to review, we cannot evaluate whether the evidence

and testimony sufficiently supported the trial court’s judgment.

Consequently, “[w]here the appellant fails to provide such a

transcript, the reviewing court must presume that the record

supports the judgment.” In re Marriage of Dean, 2017 COA 51,

¶ 13.

¶ 11 Such is the case here. Because father did not provide us with

a transcript of the hearing, we must presume the record supports

the trial court’s findings and its judgment. See id.

¶ 12 Moreover, to the extent father seeks to challenge the lack of

sanctions for mother’s nondisclosures, he has failed to preserve

that issue. As noted, he did not request any sanctions from the

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trial court. See In re Marriage of Hall, 971 P.2d 677, 678 (Colo.

App. 1998) (noting that we may not address arguments not made to

the trial court); see also In re Marriage of Davis, 252 P.3d 530, 537

(Colo. App. 2011) (“Sanctions for nondisclosure under C.R.C.P.

16.2(j) are discretionary and the trial court is not required to

impose sanctions for a violation of pretrial procedures.”). We do not

review unpreserved appellate claims. In re Estate of Ramstetter,

2016 COA 81, ¶ 12.

III. Child Support

¶ 13 Father next challenges the trial court’s child support

determination because it (1) was based on mother’s incomplete

financial disclosures; (2) factored in mother’s unsupported claim

that she was mentally incapacitated from October 2022 to January

2024; and (3) was retroactive only to December 1, 2022, rather than

February 1, 2022 (the day father became the custodial parent). We

reject the first two contentions but agree with the third.

A. Additional Background

¶ 14 In its child support order, the court noted that mother had

filed two financial statements stating that she had no income due to

a mental health crisis. The court found, based on the testimony

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and evidence throughout the case, that mother was suffering from

severe mental health issues. The court also observed that mother

had testified that she had applied for social security disability

benefits based on her mental health issues but had been denied

and was in the process of appealing that denial. The court ordered

mother to pay child support of ten dollars per month, retroactive to

December 1, 2022.

B. Analysis

¶ 15 An award of child support is generally within the sound

discretion of the trial court and will not be set aside absent an

abuse of discretion. In re Marriage of Hartford, 612 P.2d 1163,

1164 (Colo. App. 1980). A court abuses its discretion if its decision

is manifestly arbitrary, unreasonable, or unfair, or if the court

misapplies the law. In re Marriage of Young, 2021 COA 96, ¶ 7.

¶ 16 First, to the extent father largely reiterates his argument that

mother’s financial disclosures were incomplete, we again discern no

error based on the record that we have. See Dean, ¶ 13. The court

credited mother’s testimony that she had applied for social security

disability benefits based on her mental health issues, was denied

benefits, and was appealing that denial. We do not have the

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hearing transcript and thus must assume it would support these

findings. See id.

¶ 17 Similarly, we must reject father’s contention that there was no

evidence that mother was mentally incapacitated from October

2022 to January 2024. The court made its finding that mother was

suffering from severe mental health issues based, in part, on the

testimony at the hearing. Again, because we do not have the

hearing transcript, we must presume the trial court did not err by

making this finding.2 See id.

¶ 18 Finally, father contends that the child support order should

have been retroactive to February 1, 2022 — when the first

temporary order regarding allocation of parental responsibilities

was entered — not to December 1, 2022. We agree that the trial

court ordered child support retroactive to the incorrect date.

¶ 19 The record reflects that the parties were exercising equal

parenting time until mother moved with the child to Kansas — in

violation of the statutory automatic temporary injunction

2 The record contains mother’s two financial disclosures, which

support the court’s finding that she had no income due to a mental
health crisis.

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prohibiting unilateral removal of the child from the state, see

§ 14-10-107(4)(b)(I)(C), C.R.S. 2024 — and refused to permit father

to see the child. In response, the trial court entered a temporary

order on February 1, 2022, allocating sole parenting time to father.

The record reflects that father has been the primary custodial

parent since that date.

¶ 20 The court ordered child support retroactive to December 1,

2022. According to the court’s order, this date was chosen because

it was the first day of the month after the court received father’s

sworn financial statement. Apparently, the court deemed this to be

the proper date to begin mother’s child support obligation because

it lacked the information to establish such an obligation before

receiving father’s information. This was erroneous for several

reasons.

¶ 21 First, section 14-10-115(2)(a), C.R.S. 2024, allows the court to

order either or both parents to pay child support “for a time period

that occurred after the date of the parties’ physical separation or

the filing of the petition or service upon the respondent, whichever

date is latest.” The statute does not contemplate the date financial

disclosures are made as a beginning point for child support. See

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id.; see also § 14-10-122(1)(c), C.R.S. 2024 (identifying possible

dates for retroactive application of a modification of an existing

child support order, including, in some circumstances, the date of a

change in primary custody). The court thus misapplied the law.

¶ 22 Second, if the court intended December 1, 2022, to reflect the

date it was first able to determine child support, it miscalculated.

As of December 1, 2022, mother still had made no disclosures. She

made her first disclosure on March 7, 2023. Thus, in December

2022, the court still lacked sufficient information to establish the

child support obligation. Choosing December 1, 2022, to begin

child support was therefore manifestly arbitrary.

¶ 23 And finally, to the extent the court intended this as a sanction

for father’s late financial disclosures, we again note that father

rectified his nondisclosures before mother did. Yet this sanction

lays the consequence for both parties’ noncompliance solely at the

feet of father by requiring him to forfeit nine months of child

support. That is both manifestly arbitrary and manifestly unfair.

¶ 24 But we do not agree with father that the retroactive date

should be February 1, 2022. As noted, child support is retroactive

to the latest of three possible dates: separation, filing of the petition,

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or service of the same. § 14-10-115(2)(a). Here, the latest of the

three dates was November 1, 2021, when mother was served with

the dissolution of marriage petition. Thus, child support should

have been ordered retroactive to November 1, 2021.

¶ 25 That being said, father is functionally correct, in that the

record reflects that February 1, 2022, is the first date either parent

would actually owe the other support. Before that date, the parties

— who both have extremely limited resources — shared parenting

time (other than when mother improperly excluded father from the

child’s life). Thus, from the date mother was served with the

petition until the date of the temporary orders, it is logical to

presume that neither party owed the other for child support.

However, beginning February 1, 2022, father was the sole custodial

parent. There is no reason mother’s child support obligation should

not be calculated from that date.3

3 To be sure, we are not suggesting that section 14-10-122(1)(c),

C.R.S. 2024, applies here. This was not a modification of an
existing child support order. But when initially establishing the
parties’ respective child support obligations and any arrearage, it is
appropriate to consider the parties’ actual income and parenting
time arrangements, including any changes thereto, during the
period between service of the petition and the entry of the order.

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IV. Mother’s Appellate Attorney Fees Request

¶ 26 Mother requests appellate attorney fees under C.A.R. 39.1 and

section 13-17-102, C.R.S. 2024, contending that father’s appeal

was substantially frivolous. We disagree.

¶ 27 Father’s appeal is partially successful. Had he not appealed in

the first place, no child support order would exist. And he correctly

noted the incorrect commencement date for mother’s child support

obligation. Thus, contrary to mother’s claim, “all of [father’s]

claims” are not frivolous. We thus decline to award mother her

appellate attorney fees.

V. Disposition

¶ 28 The child support order is reversed in part, and the case is

remanded with instructions to impose mother’s monthly obligation

of ten dollars retroactive to February 1, 2022, and correct any

arrearage accordingly. The permanent orders are affirmed in all

other respects.

JUDGE DUNN and JUDGE TAUBMAN concur.

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