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In re The Parental Responsibilities Concerning W.C.

Court of Appeals of Colorado, Division A

May 3, 2018

In re the Parental Responsibilities Concerning W.C., a Child, and Concerning Kimberly Ann Nanke, Appellee, and Winston Harold Conkling, Appellant.

          City and County of Denver District Court No. 15DR30554 Honorable Karen L. Brody, Judge

          Robinson Waters & O'Dorisio, P.C., Langdon J. Jorgensen, Denver, Colorado, for Appellee

          Gill & Ledbetter, LLP, Ann Whalen Gill, Castle Rock, Colorado, for Appellant

          ORDER OF CLARIFICATION

          PER CURIAM

         ¶ 1 In this allocation of parental responsibilities case, Winston Harold Conklin (father) appeals the district court's permanent orders granting Kimberly Ann Nanke (mother) sole decision-making authority and majority parenting time. Though his appeal is pending with this court, father has filed verified motions to modify parenting time and decision-making in the district court. The district court has concluded it lacks jurisdiction to consider those motions because this court enjoys exclusive jurisdiction over those matters while the appeal is pending. We conclude that the district court retains continuing jurisdiction to consider motions to modify parenting time and decision-making while permanent orders are on appeal, but only when such motions are based solely on a material change in circumstances that occurred since the court entered permanent orders.[1]

         I. Background

         ¶ 2 In June 2015, mother filed an allocation of parental responsibilities action concerning W.C., the biological child of mother and father. Following hotly contested temporary and permanent order hearings, the district court entered permanent orders granting mother majority parenting time and sole decision-making authority. Father has appealed those orders to this court, arguing in pertinent part that the district court misapplied the best interests of the child standard in reaching its determinations on parenting time and decision-making.[2]

         ¶ 3 After filing his opening brief in this appeal, father filed a motion with this court titled "Motion to Determine Whether Remand is Necessary, and if so For a Limited Remand." In the motion, he argued that after the court entered permanent orders, there have been "significant, substantial, and continuing changes in circumstances" affecting parenting time and decision-making and, therefore, he wished to file motions to modify in the district court. While father conceded that the appeal "divested the district court of jurisdiction over the matters decided in the orders that are the subject of the appeal, " citing Molitor v. Anderson, 795 P.2d 266 (Colo. 1990), he also argued that "[i]t is unclear . . . whether a remand is necessary for the district court to have jurisdiction" over his proposed motions. After receiving a response from mother, a court of appeals judge denied the motion without explanation.

         ¶ 4 Father then filed motions to modify parenting time and decision-making in the district court, arguing that mother has demonstrated "a pattern of poor judgment, " "questionable judgment, " and "vindictive" behavior constituting a change in circumstances justifying modification of parenting time and decision-making. Mother responded with a motion to dismiss, and, in a detailed written order, [3] the district court concluded that under Molitor it lacked jurisdiction to consider the motions because those motions "absolutely affect the substance of the judgment entered in this case." See id. at 269 ("[I]n this jurisdiction a trial court may not determine matters affecting the substance of a judgment once an appeal of that judgment has been perfected unless the appellate court issues an order remanding the judgment to the trial court for that purpose.").

         ¶ 5 The district court noted that father's position "promotes a waste of judicial resources" and that while father argued changed circumstances, his request "is, essentially, the same issue before the Court of Appeals ― whether the trial court's order for allocation of parental responsibilities is in error." However, the district court acknowledged the "dearth of clear case law in the area of domestic relations on a court's jurisdiction to manage ongoing parenting time and decision-making issues when permanent orders have been appealed" and declined to dismiss father's motions. Instead, the district court decided to take no further action on the motions "unless and until the Court of Appeals finds that the Court has jurisdiction or remands and gives this Court authority to consider the motions."

         ¶ 6 We now grant father's motion to clarify or reconsider this court's earlier order denying the motion for limited remand, and issue this order to clarify that no limited remand is necessary because, under our statutory scheme, a district court retains continuing jurisdiction to consider motions to modify parenting time and decision-making based on allegedly changed circumstances while permanent orders are on appeal.

         II. Jurisdiction in District Court or Court of Appeals

         ¶ 7 "Courts universally recognize the general principle that once an appeal is perfected jurisdiction over the case is transferred from the trial court to the appellate court for all essential purposes with regard to the substantive issues that are the subject of the appeal." Id. "Such divestiture or transfer principle is essential to the efficient administration of appellate processes and is an important adjunct to the concept of finality of judgments."[4] Id. at 269.

         ¶ 8 At the same time, under Colorado's Uniform Dissolution of Marriage Act (UDMA), the General Assembly has declared that children have the right to have parental responsibilities determined based on their best interests, § 14-10-123.4(1)(a), C.R.S. 2017, and a district court "may make or modify an order granting or denying parenting time rights whenever such order or modification would serve the best interests of the child." § 14-10-129(1)(a)(I), C.R.S. 2017 (emphasis added); see ยง 14-10-131(2), C.R.S. 2017 (setting ...


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