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.




                                    3
¶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),


                                     5
  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


                                    6
  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


                                     7
  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;

                                    8
           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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