In re the Parental Responsibilities Concerning W.C., a Child, and Concerning Kimberly Ann Nanke, Appellee, and Winston Harold Conkling, Appellant.
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.
Ledbetter, LLP, Ann Whalen Gill, Castle Rock, Colorado, for
Taubman, Hawthorne, and Ashby, JJ.
[¶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.
[¶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
[¶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, 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 ...