Marriage of Nkouka

21CA0138 Marriage of Nkouka 12-09-2021

COLORADO COURT OF APPEALS

Court of Appeals No. 21CA0138

City and County of Denver District Court No. 19DR1755

Honorable Jennifer B. Torrington, Judge

In re the Marriage of

Roukiatou Geraldo,

Appellant,

and

Koami Nkouka,

Appellee.

JUDGMENT AFFIRMED

Division IV

Opinion by JUDGE TOW

J. Jones and Freyre, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced December 9, 2021

Roukiatou Geraldo, Pro Se

No Appearance for Appellee

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¶ 1 Roukiatou Geraldo (wife) appeals the permanent orders

entered in connection with the dissolution of her marriage to Koami

Nkouka (husband). We affirm.

I. Facts

¶ 2 The parties married in 2003 and have three children, who

were seventeen, fourteen, and three years old as of the permanent

orders hearing date. All three children have medical issues that

require the parents to take them for regular medical appointments

or comply with treatment recommendations made by medical

providers.

¶ 3 In 2019, wife petitioned for a decree of legal separation, which

the court converted to a dissolution proceeding at husband’s

request. The parties and their children continued to live together in

the marital home during the proceedings.

¶ 4 The court appointed a child and family investigator (CFI) on a

limited basis to investigate whether the children’s medical needs

were being met by the parents. The CFI opined that the parents’

inability to work together prevented them from giving the children,

particularly the youngest child, regular and consistent medical

treatment. Based on the CFI’s report, and after hearing from the

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parties at a hearing, the court entered temporary orders giving

husband sole decision-making responsibility for the children.

¶ 5 On husband’s motion, the court reappointed the CFI to make

recommendations concerning the allocation of parental

responsibilities for permanent orders. Wife did not participate in

the second CFI investigation. In her report, the CFI summarized

that the older children “have greatly improved in, and due to,

[f]ather’s care,” while the youngest child was “not receiving the

consistent care that he so desperately needs” because of the parties’

continued inability to work together. The CFI recommended that

the children reside with husband and that he continue to have sole

decision-making responsibility.

¶ 6 Husband and the CFI appeared at the permanent orders

hearing. Wife did not appear. The district court entered the decree

of dissolution and written permanent orders shortly after the

hearing. The court divided the marital property, which included

awarding the marital home to husband; declined to award either

party spousal maintenance; named husband the children’s primary

residential parent and sole decision-maker; entered a limited

parenting time schedule for wife at a neutral public location or

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library; and declined to order child support “as the parties continue

to cohabitate in the same residence with their minor children.”

II. Denial of Wife’s Motion to Continue

¶ 7 Wife contends that the district court abused its discretion by

denying her motion to continue the permanent orders hearing date.

We discern no abuse of discretion.

¶ 8 A court should grant a motion to continue only upon a

showing of good cause. Miller v. Brannon, 207 P.3d 923, 932 (Colo.

App. 2009); see C.R.C.P. 121 § 1-11. A continuance of a scheduled

hearing should generally be limited to situations in which

unforeseen and exceptional circumstances would require diligent

parties to seek a continuance. See Todd v. Bear Valley Vill.

Apartments, 980 P.2d 973, 976 (Colo. 1999).

¶ 9 A motion to continue is addressed to the court’s discretion and

we will not disturb its ruling on appeal absent a showing of an

abuse of that discretion. People in Interest of R.J.B., 2021 COA 4, ¶

13. A court abuses its discretion when its ruling is manifestly

arbitrary, unfair, or unreasonable. Id.

¶ 10 Husband served wife with notice of the December 29, 2020,

permanent orders hearing on August 20, 2020. On December 23,

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2020, wife sought a new permanent orders hearing date because

December 29 was the youngest child’s birthday and she wanted to

“focus on [her] baby’s birthday on that date” and “will not have time

for anything else.”

¶ 11 This record does not establish good cause. Wife could have,

but chose not to, seek a continuance when she was served with the

notice of hearing in August or any time in the following months.

Instead, wife waited until six days before the scheduled hearing

date to notify the court that she had a conflict. Moreover, wife did

not show that the child’s birthday was an unforeseen or exceptional

circumstance requiring a continuance. See Kallas v. Spinozzi, 2014

COA 164, ¶¶ 43-44 (holding that no good cause for continuance

existed when attorney’s health issues were not only foreseeable, but

the related complications were predicted by and proactively

addressed by the court months earlier); but cf. Todd, 980 P.2d at

977 (holding that emergency back surgery is an unforeseen and

exceptional circumstance). We perceive no abuse of discretion in

the court’s denial of wife’s request for a continuance. See R.J.B.,

¶ 13; see also Benster v. Bell, 83 Colo. 587, 590, 267 P. 792, 793-94

(1928) (affirming denial of a motion to continue that was not made

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“until the very day and hour of trial,” notwithstanding the fact that

the trial had been on the court’s docket for more than five months).

III. Permanent Orders

¶ 12 Wife next contends that the district court erred by dividing the

marital property without considering her financial and homemaking

contributions to the marital home. Wife also contends that the

court failed to consider husband’s character and other relevant

facts concerning the children’s medical care when allocating

parental responsibilities. We disagree.

¶ 13 Wife failed to appear at the permanent orders hearing. That

hearing was wife’s opportunity to present evidence of her

contributions to the marital home and husband’s character, as well

as any evidence challenging husband’s evidence or the CFI’s

reports. See In re Parental Responsibilities Concerning N.J.C., 2019

COA 153M, ¶ 49 (holding that if mother wanted the magistrate to

consider certain evidence, she should have presented such evidence

to the magistrate). Because wife did not attend the hearing to

present evidence relevant to her positions concerning the property

division or allocation of parental responsibilities, she left the court

with no choice but to issue the permanent orders based on the

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evidence that husband and the CFI presented. See In re Marriage of

Eisenhuth, 976 P.2d 896, 901 (Colo. App. 1999) (holding that the

district court is required to consider the evidence presented to it; it

does not act as a surrogate attorney for a party who has chosen not

to appear); see also In re Marriage of Krejci, 2013 COA 6, ¶ 23

(holding that the parties must present relevant evidence to the court

and their failure to do so does not provide grounds for reversal).

For this reason, we decline to reverse the permanent orders.

IV. Conclusion

¶ 14 The judgment is affirmed.

JUDGE J. JONES and JUDGE FREYRE concur.