Parental Responsibilities Concerning S.Z.S., a Child

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.

SUMMARY
September 8, 2022

2022COA105

No. 21CA1760, Parental Responsibility Concerning S.Z.S. —
Family Law — Modification of Parenting Time — Child’s
Integration with Parental Consent

A division of the court of appeals, as a matter of first

impression, clarifies the distinction between agreeing to the

modification of the primary residential parent under section

14-10-129(2)(a), C.R.S. 2021, and consenting to the child’s

integration into the family of the nonresidential parent under

section 14-10-129(2)(b).
COLORADO COURT OF APPEALS 2022COA105

Court of Appeals No. 21CA1760
Mesa County District Court No. 16DR30036
Honorable William T. McNulty, Judge
Honorable Matthew D. Barrett, Judge

In re the Parental Responsibilities Concerning S.Z.S., a Child,

and Concerning Zofia Elise Tisue,

Appellant,

and

Christopher Michael Smith,

Appellee.

APPEAL DISMISSED IN PART, ORDERS AFFIRMED IN PART,
AND CASE REMANDED WITH DIRECTIONS

Division I
Opinion by JUDGE TOW
Dailey and Berger, JJ., concur

Announced September 8, 2022

Randy L. Brown, P.C., Randy L. Brown, Grand Junction, Colorado, for
Appellant

Cordell Law, LLP, Dorothy Walsh Ripka, Billie Jo Sowinski, Greenwood Village,
Colorado, for Appellee
¶1 In this post-decree parental responsibilities case, Zofia Elise

Tisue (mother) appeals the district court’s order adopting a

magistrate’s ruling that modified parenting time. She also appeals

the magistrate’s ruling that modified decision-making

responsibility. This appeal requires us to consider an issue not

previously addressed by an appellate court in this state: Can a

parent be found to have consented to a child’s integration into the

other parent’s family even though the parents only agreed that the

child would live with and be cared for by the other parent on a

temporary basis?

¶2 Because we answer this question in the affirmative, we affirm

the order concerning parenting time. In addition, we dismiss as

moot the portion of mother’s appeal concerning decision-making

responsibility. And we remand the case for further proceedings on

mother’s request for appellate attorney fees and costs.

I. Relevant Facts

¶3 Mother had one child, S.Z.S., with Christopher Michael Smith

(father), and, in 2017, the magistrate entered permanent orders

allocating parental responsibilities. The magistrate gave mother

primary residential care and sole decision-making responsibility for

1
the child, and father received parenting time during alternating

weekends and school breaks.

¶4 Approximately six months later, mother relocated to

Minnesota with the child, and the parties stipulated to a modified

parenting time plan. Under the modified plan, the child lived with

mother during the school year, and father had parenting time

during the child’s school breaks. The magistrate approved this

modified plan.

¶5 The following summer, mother’s partner experienced health

problems, and mother indicated that she was struggling to provide

care for the child and her partner. The parties agreed that the

child, who was then six years old, would live primarily with father

and attend first grade in Colorado. Mother exercised limited

parenting time with the child during this time.

¶6 In the summer of 2019, the parties agreed that the child would

remain with father and complete second grade in Colorado. They

executed a written stipulation memorializing this agreement and

asserted that, in the fall of 2020, the child would return to school in

Minnesota with mother. The magistrate approved the parties’

stipulation.

2
¶7 In August 2020, father sought to have the child remain with

him in Colorado. But the magistrate ordered the parties to resume

their previous parenting time plan, and the child returned to

Minnesota. Shortly after the magistrate’s ruling, father filed a

motion to modify parenting time, requesting primary residential

care of the child. He argued that, over those two years, the child

had been integrated into his family with mother’s consent and that

it was in the child’s best interests to reside primarily with him

during the school year.

¶8 After a three-day hearing, the magistrate granted father’s

motion to modify parenting time. The magistrate had concerns with

mother’s instability and the risks this posed to the eight-year-old

child. He then found that father could better provide for the child’s

long-term needs and that it was in the child’s bests interests to

allocate to him primary residential care of the child. The magistrate

allocated to mother parenting time generally over the child’s school

breaks. The magistrate also modified decision-making

responsibility, directing the parties to jointly make all major

decisions for the child.

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¶9 Mother petitioned the district court to review the magistrate’s

order. The district court adopted the portion of the order modifying

parenting time. It concluded that the magistrate applied the correct

legal standard and that the record supported the child’s integration

into father’s family with mother’s consent.

¶ 10 In a later order, the district court determined that the

magistrate’s ruling concerning decision-making responsibility had

to be modified. It explained that, in the permanent orders, the

magistrate had made a finding of domestic violence but had then

failed to consider this finding when modifying decision-making

responsibility. The court set an evidentiary hearing to resolve the

issue, but before the hearing, the parties stipulated to joint

decision-making responsibility. The district court adopted their

stipulation.

II. Standard of Review

¶ 11 Our review of a district court’s order adopting a magistrate’s

ruling is, in effect, a second layer of appellate review. In re Marriage

of Evans, 2021 COA 141, ¶ 39. We review de novo whether the

court applied the correct legal standard. In re Parental

Responsibilities Concerning E.S., 264 P.3d 623, 626 (Colo. App.

4
2011). We also review de novo the court’s conclusions of law, but

we accept the magistrate’s factual findings unless they are clearly

erroneous. In re Parental Responsibilities Concerning B.J., 242 P.3d

1128, 1132 (Colo. 2010). A court’s factual finding is clearly

erroneous when it has no record support. Evans, ¶ 39.

III. Modifying Parenting Time

¶ 12 Mother contends that the magistrate erred by modifying

parenting time because he did not apply the legal standard for

consensual integration when issuing his ruling and the record did

not establish that the child had been integrated into father’s family

with mother’s consent. We disagree.

A. Legal Principles

¶ 13 A court has broad discretion to modify existing parenting

orders, and we must exercise every presumption in favor of

upholding its decision. See In re Marriage of Barker, 251 P.3d 591,

592 (Colo. App. 2010); see also In re Marriage of Hatton, 160 P.3d

326, 330 (Colo. App. 2007).

¶ 14 The child’s best interest is the controlling factor for a court

when determining parenting time. See § 14-10-129(1)(a)(I), (2),

C.R.S. 2021; Barker, 251 P.3d at 592; see also § 14-10-124(1.5)(a),

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C.R.S. 2021 (best interests factors). When a parent seeks a

substantial modification of parenting time that also changes the

parent with whom the child primarily resides, the court must retain

the prior parenting time order unless there has been a change in

circumstances and, as relevant here, the child has been integrated

into the family of the parent seeking modification with the consent

of the other parent. § 14-10-129(2)(b).

¶ 15 The child’s integration with parental consent is a factual

determination based on the totality of the circumstances. See In re

Marriage of Chatten, 967 P.2d 206, 208 (Colo. App. 1998); In re

Marriage of Pontius, 761 P.2d 247, 249 (Colo. App. 1988). The court

considers the frequency, duration, and quality of the child’s

contacts with each parent; which parent is making decisions

concerning the child’s health care, education, religious training,

and general welfare; and the child’s views as to which environment

constitutes his or her home. Chatten, 967 P.2d at 208; Pontius, 761

P.2d at 249-50.

¶ 16 Integration, therefore, is more than a parent’s expanded

visitation with the child. Chatten, 967 P.2d at 208; Pontius, 761

P.2d at 249. It includes the parent performing normal parental

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duties and guiding the child physically, mentally, morally, socially,

and emotionally. Chatten, 967 P.2d at 208; accord Pontius, 761

P.2d at 249. As well, the time spent by the child with the parent

seeking primary residential care “must be of sufficient duration that

the child has become settled into the home of that parent as though

it were his or her primary home.” Chatten, 967 P.2d at 208.

¶ 17 The requirement of the other parent’s consent is satisfied

when that parent voluntarily places the child with the noncustodial

parent and willingly permits the child to become integrated into the

new family. Id. The parent’s consent does not need to be explicit.

See id. Rather, it “may be implied from a voluntary transfer of

custody that results in the child’s integration into” the other

parent’s family. Id.

B. The Magistrate Applied the Correct Legal Standard

¶ 18 Mother argues that because the magistrate made no specific

finding that the child had integrated into father’s family with

mother’s consent, the magistrate failed to apply the correct legal

standard. We are not persuaded.

¶ 19 In his ruling, the magistrate expressly set forth the applicable

law for modifying parenting time. Specifically, the magistrate

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recognized that a change to the prior parenting time order must

serve the child’s best interests and stated that the magistrate “must

retain the prior schedule unless [he] finds that [the] child has been

integrated into the family of the moving party with consent of the

other party.” The magistrate then analyzed and made findings on

the best interests factors enumerated in section 14-10-124(1.5)(a).

¶ 20 In doing so, the magistrate found that

 the child had “a close relationship” with father and

“important relationships” with the other members of

father’s household, including father’s wife and his other

children;

 the child was “comfortable” in father’s home and “very

familiar” with the routine at his home;

 father provided for the child’s needs, was engaged in her

medical and dental care, and was involved in the child’s

education;

 father indicated that the child was “completely integrated

into his home”;

 father had consistently provided “suitable care” for the

child;

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 mother had relinquished primary care of the child to

father in 2018 and “was somewhat disengaged” from the

child’s life in Colorado; and

 mother had “relatively sporadic and modest amounts of

parenting time” with the child while the child lived with

father.

¶ 21 Even though made in relation to the best interests factors,

these findings demonstrate that the magistrate applied the law

concerning the child’s integration with mother’s consent and

considered these circumstances when he determined that modifying

parenting time was in the child’s best interests. See Chatten, 967

P.2d at 208; Pontius, 761 P.2d at 249-50. Therefore, although the

magistrate did not make a specific finding, the order indicates that

he implicitly found that the child had been integrated into father’s

family with mother’s consent. See Chatten, 967 P.2d at 208;

Pontius, 761 P.2d at 249-50; see also In re Marriage of Finer, 920

P.2d 325, 328 (Colo. App. 1996) (recognizing that a court’s finding

may be implicit in its ruling).

¶ 22 Moreover, the magistrate later stated he was modifying

decision-making responsibility “[p]ursuant to [section] 14-10-

9
131(2)(b),” C.R.S. 2021. This section, similar to section 14-10-

129(2)(b), directs the court to retain the allocation of decision-

making responsibility unless “[t]he child has been integrated into

the family of the petitioner with the consent of the other party.”

§ 14-10-131(2)(b). By relying on section 14-10-131(2)(b), the

magistrate clarified that he found the child had been integrated into

father’s family with mother’s consent.

¶ 23 Still, mother contends that the magistrate must make an

express finding on the child’s integration with mother’s consent.

While such an express finding is preferable, nothing in section

14-10-129(2)(b) requires one. When, as here, the magistrate’s

finding demonstrates the application of the statute and is

sufficiently explicit to allow us to review that determination, the

magistrate’s implicit finding suffices. See Finer, 920 P.2d at 328; cf.

In re Marriage of Rodrick, 176 P.3d 806, 813-14 (Colo. App. 2007)

(affirming a court’s parental responsibilities decision when its

findings sufficiently showed that it considered the statutory criteria,

even though it did not make specific findings on each factor).

¶ 24 Mother also argues that the magistrate had to first make a

finding on the child’s consensual integration before it could address

10
the child’s best interests. While we generally decline to review an

issue not raised until the reply brief, see In re Marriage of Drexler,

2013 COA 43, ¶ 24, we are not convinced that such a two-step

inquiry is demanded by section 14-10-129(2)(b). Indeed, nothing in

section 14-10-129(2)(b) forbids a court from addressing the child’s

integration during its discussion of the best interests factors or

demands that the court employ a two-step inquiry when addressing

a request to modify parenting time. And, beyond citing this statute,

mother directs us to no legal authority supporting her argument.

¶ 25 We therefore are not persuaded that the magistrate failed to

apply the correct legal standard concerning the child’s integration

into father’s family with mother’s consent.

C. The Record Supports a Finding of the Child’s Integration into
Father’s Family with Mother’s Consent

¶ 26 Mother contends that the record fails to support findings that

the child was integrated into father’s family and that mother had

consented to any integration. We disagree.

1. The Child’s Integration into Father’s Family

¶ 27 Father testified that for almost two years, the child resided

primarily with him, he was responsible for the child’s care and

11
welfare while with him, and he made many of the day-to-day

decisions concerning the child during that time. He further testified

that the child had many “connections and relationships” in

Colorado and that when the child lived with him, mother had

limited parenting time. In addition, father’s wife testified that she

and father have a strong, bonded relationship with the child; the

child and the child’s older half-sibling were “inseparable”; and the

child and her younger half-sibling, who was born while the child

lived with father, were constantly together. Father’s other family

members also confirmed that the child had a strong connection

with father’s family. And the child’s second grade teacher testified

that father and his wife were engaged in the child’s education and

that the child had a very close relationship with father’s family.

¶ 28 From this evidence, the magistrate could reasonably find that

the child had become settled into father’s family as though it was

her primary home and that during the approximately two years the

child lived with father, father took care of the child and performed

the normal parental duties. See Chatten, 967 P.2d at 208. The

record, therefore, supports the determination that the child had

become integrated into father’s family. While mother highlights

12
conflicting evidence that could support a contrary finding, we may

not reweigh the magistrate’s resolution of the conflicts in the

evidence. See Evans, ¶ 45.

¶ 29 To the extent mother asserts that the child’s integration into

father’s family “legally terminated” when the child returned to

Minnesota in 2020, mother develops no legal or factual argument in

support of this assertion. We therefore will not address it. See

Barnett v. Elite Props. of Am., Inc., 252 P.3d 14, 19 (Colo. App. 2010)

(“We will not consider a bald legal proposition presented without

argument or development.”).

¶ 30 Thus, contrary to mother’s contention, there is record support

for the finding that the child was integrated into father’s home and

family.

2. Mother’s Consent

¶ 31 Nor do we agree with mother that no evidence showed that she

consented to the child’s integration. It was undisputed that mother

voluntarily transferred primary care of the child to father in 2018,

and she agreed to extend father’s primary care throughout the

2019-2020 school year. Following this voluntary transfer, the

record, as explained above, shows that the child was integrated into

13
father’s family. As a result, the magistrate could reasonably infer

that mother consented to the child’s integration into father’s family.

See Chatten, 967 P.2d at 208-09.

¶ 32 Mother argues that this is insufficient to establish her consent

because the parties’ agreements to transfer the child to father were

intended to be only temporary. But mother’s argument

misunderstands what consent to integration means. It does not

mean consent to change the parent with whom the child resides the

majority of the time. An agreement to change the primary

residential parent is the modification criterion in section 14-10-

129(2)(a). If mother’s view were correct, section 14-10-129(2)(b)

would be superfluous — an outcome we do not believe the General

Assembly intended. See Wolford v. Pinnacol Assurance, 107 P.3d

947, 951 (Colo. 2005) (noting that we avoid interpretations that

render statutory provisions redundant or superfluous).

¶ 33 Rather, section 14-10-129(2)(b) applies when a parent

consents to the other parent “perform[ing] . . . normal parental

duties . . . and guiding the child[] physically, mentally, morally,

socially, and emotionally.” Chatten, 967 P.2d at 208. Mother

clearly did so when she sent the child to live with father on a full-

14
time basis for two years, during which she exercised limited

parenting time. And, with mother’s consent, the child became

settled into father’s home as though it was her primary home. See

id.

¶ 34 That the parties’ agreement was for only a temporary transfer

of the child’s primary care to father does not change the fact that

the child integrated into father’s family, nor does it change the fact

that mother consented to the child doing so. The parents’

subjective intentions concerning the length of time a child will

reside with a particular parent are not dispositive of the issue

because the consent requirement is intended to serve the “narrow

purpose” of avoiding a noncustodial parent’s kidnapping of the

child. Id.; see Unif. Marriage & Divorce Act § 409 cmt. (amended

1973), 9A pt. II U.L.A. 440 (1998). “Instead, the consent

requirement is satisfied when the custodian has voluntarily placed

the child with the non-custodial parent and willingly permitted the

child to become integrated into the new family.” Chatten, 967 P.2d

at 208.

¶ 35 We are not persuaded otherwise by mother’s reliance on

several Illinois cases in support of her argument. See In re Marriage

15
of Wechselberger, 450 N.E.2d 1385, 1391 (Ill. App. Ct. 1983); In re

Marriage of Hill, 434 N.E.2d 527, 531 (Ill. App. Ct. 1982); People ex

rel. Bukovic v. Smith, 423 N.E.2d 1302, 1307-08 (Ill. App. Ct. 1981);

see also In re Custody of Dykhuis, 475 N.E.2d 1107, 1110 (Ill. App.

Ct. 1985).

¶ 36 None of these cases stands for the proposition that when a

custodial parent agrees to the child living temporarily with the

noncustodial parent for an extended time, the temporary nature of

that agreement necessarily defeats a claim that the custodial parent

consented to the child’s integration.

¶ 37 Of these cases, only Wechselberger (on which mother primarily

relies) discussed the point of contention at issue here: whether the

primary custodial parent’s agreement to temporarily permit the

child to live with the other parent, during which time the custodial

parent had limited parenting time, amounts to integration with

consent. But that case is unhelpful to mother for several reasons.

¶ 38 First, the posture of that case was the opposite of that here:

the noncustodial parent in Wechselberger had failed to obtain the

modification sought. 450 N.E.2d at 1388. So the issue was

whether the trial court’s determination that the modification was

16
not in the child’s best interest was “against the manifest weight of

the evidence or an abuse of discretion.” Id. at 1391.1

¶ 39 Second, although the relevant Illinois statute had previously

been consistent with Colorado’s law, it had been amended such

that the governing statute in Wechselberger no longer required a

showing of integration by consent. Id. at 1388-89 (citing Ill. Rev.

Stat. 1981, ch. 40, par. 610(b) (effective until July 1, 1982)).

Instead, the statute governing the motion in that case required a

showing “‘by clear and convincing evidence’ . . . that a change has

taken place in the circumstances of the child or the child’s

custodian and that the modification is needed to serve the best

interests of the child.” Id. at 1389 (quoting Ill. Rev. Stat. 1981, ch.

40, par. 610(b) (effective July 1, 1982)). As the court observed,

“Integration into the petitioner’s family with consent . . . is no longer

required to be proved, although it may be a factor the court may

1The fact that the appellate review posture was the opposite of this
case is significant. When reviewing a court’s factual findings and
exercise of discretion, an appellate court is deferential to the trial
court’s decision. Whether the evidence could have supported the
opposite finding or a different discretionary act is irrelevant. Put
another way, the fact that an appellate court found that the record
supported a particular finding in no way suggests that it would not
have also supported a different finding.

17
take into account in determining whether a change in

circumstances has occurred.” Id. at 1391. Thus, the Appellate

Court of Illinois’s discussion of whether the mother had consented

to the child’s integration into the father’s family was arguably dicta.

¶ 40 And, in any event, the court ultimately acknowledged that

integration by consent may have occurred, observing that “while a

change of circumstances may have been proved, it is implicit in the

trial judge’s decision that a modification was not necessary for the

best interest of the children.” Id. (emphasis added). In other words,

the decision in Wechselberger ultimately rested on the trial court’s

determination of the child’s best interests, not on whether there was

integration by consent — again suggesting that the entire

discussion of integration was dicta.

¶ 41 In short, Wechselberger cannot bear the weight mother places

on it.

¶ 42 Unlike the circumstances present in Wechselberger, the

totality of the circumstances here demonstrated that mother

consented to the child’s integration into father’s home and family.

Even if the parties contemplated only a temporary change in the

child’s custodial arrangement, their agreements support such a

18
finding, particularly when the child primarily resided with father for

almost two years and during that time father provided her primary

care and mother exercised limited parenting time. See Chatten, 967

P.2d at 208-09.

¶ 43 We therefore do not agree that the magistrate clearly erred by

finding that mother consented to the child’s integration.

¶ 44 Mother also takes issue with the magistrate’s finding that she

“did not address how she helped [the child] adjust to her fourth

school in four years after her return to Minnesota in August 2020.”

While mother points to evidence that she assisted the child with her

reading struggles, she directs us to no evidence that refutes the

magistrate’s finding concerning the child’s adjustment to her new

school. See Evans, ¶ 45.

¶ 45 Mother further argues that the magistrate’s ruling is contrary

to the “goals and policies” of sections 14-10-124 and 14-10-129,

because it will disincentivize a parent with primary custody from

being willing to agree to additional parenting time with the other

parent. Mother did not raise this argument until her reply brief,

however, and we therefore do not address it. See Drexler, ¶ 24.

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¶ 46 That being said, it is important to note that the mere fact that

one parent consented to the child’s integration into the other

parent’s home does not automatically mean that the parent seeking

the change of primary parent will succeed. It simply means that

the decision can be made based on the best interests of the child,

without requiring that the party seeking the modification show

endangerment. This makes sense in light of the fact that, given the

integration of the child into the new family, the interest in finality of

the original order is less significant. See Unif. Marriage & Divorce

Act § 409 cmt., 9A pt. II U.L.A. at 439 (noting that the restrictions

on modifying the primary parent are “designed to maximize finality

(and thus assure continuity for the child) without jeopardizing the

child’s interest”).

¶ 47 In sum, the district court applied the correct legal standard

and made factual findings that have record support. Thus, the

magistrate did not err by modifying parenting time.

IV. Modifying Decision-Making Responsibilities

¶ 48 Mother next contends that the magistrate erred by modifying

decision-making responsibility. In response, father argues that the

parties’ joint decision-making responsibility stipulation, adopted by

20
the district court after the magistrate’s ruling, rendered this issue

moot. We agree with father and dismiss this portion of the appeal.

¶ 49 Whether an issue is moot is a question of law that we review

de novo. Colo. Mining Ass’n v. Urbina, 2013 COA 155, ¶ 23; see

also USAA v. Parker, 200 P.3d 350, 356-57 (Colo. 2009) (recognizing

that mootness involves the court’s subject matter jurisdiction and

may be raised at any time).

¶ 50 We will not render an opinion on the merits of an issue when

subsequent events have rendered the issue moot. In re Marriage of

Salby, 126 P.3d 291, 301 (Colo. App. 2005); see also Colo. Mining,

¶ 33 (“The power of judicial review simply does not extend to moot

questions.”). “An issue is moot when a judgment, if rendered,

would have no practical legal effect upon the existing controversy.”

Salby, 126 P.3d at 301.

¶ 51 The parties’ stipulation resolved the issue of decision-making

responsibility. See Lego v. Schmidt, 805 P.2d 1119, 1125 (Colo.

App. 1990) (recognizing that when the parties settle the dispute

which is the subject of an appeal, the issue is moot). And the

court’s order adopting that stipulation superseded the magistrate’s

ruling modifying decision-making responsibility. See Salby, 126

21
P.3d at 301. Thus, any decision we render as to the merits of the

magistrate’s ruling would have no practical legal effect. Therefore,

this portion of mother’s appeal is moot.

V. Appellate Attorney Fees and Costs

¶ 52 Mother requests appellate attorney fees and costs under

section 14-10-119, C.R.S. 2021, based on the financial disparity

between the parties. We disagree with father that mother’s request

fails to set forth a factual basis for her request. See C.A.R. 39.1;

see also In re Marriage of Gutfreund, 148 P.3d 136, 141 (Colo. 2006)

(providing that section 14-10-119 empowers the court to equitably

apportion costs and attorney fees between the parties based on

their relative abilities to pay). However, the district court is better

equipped to determine the factual issues regarding the parties’

current financial resources. Thus, we remand this issue. See

C.A.R. 39.1; In re Marriage of Alvis, 2019 COA 97, ¶ 30.

¶ 53 For his part, father seeks an award of appellate attorney fees

and costs under section 13-17-102(4), C.R.S. 2021, arguing that

mother’s appeal lacked substantial justification. While we reject

mother’s arguments, we decline to assess attorney fees and costs

under section 13-17-102(4). See In re Estate of Shimizu, 2016 COA

22
163, ¶ 34 (“[A]n award of fees on appeal is appropriate only in clear

and unequivocal cases where no rational argument is

presented . . . .”); see also In re Parental Responsibilities Concerning

D.P.G., 2020 COA 115, ¶ 37 n.1 (recognizing that section 13-17-102

does not provide for an award of costs). (That being said, in light of

our disposition, father is entitled to appellate costs — though not

attorney fees — pursuant to C.A.R. 39(a).)

VI. Disposition

¶ 54 We dismiss the appeal in part and affirm the court’s order

adopting the magistrate’s ruling modifying parenting time. The case

is remanded to the district court for further proceedings on

mother’s request for section 14-10-119 appellate attorney fees and

costs.

JUDGE DAILEY and JUDGE BERGER concur.

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