IN RE the Parental Responsibilities Concerning Child: W.C., and Kimberly Ann Nanke, Concerning Petitioner and Winston Harold Conkling, Respondent.
Petition for Rehearing Denied February 24, 2020
Certiorari to the Colorado Court of Appeals, Court of Appeals
Case Nos. 16CA428, 16CA1863
Attorneys
for Petitioner: Robinson Waters & ODorisio, P.C., Langdon J.
Jorgensen, Denver, Colorado
Attorneys
for Respondents: Gill & Ledbetter, LLP, Anne Whalen Gill,
Castle Rock, Colorado
Attorneys
for Amicus Curiae Colorado Chapter of the American Academy of
Matrimonial Lawyers: Litvak, Litvak, Mehrtens and Carlton,
P.C., Ronald D. Litvak, Denver, Colorado, Sherman & Howard
L.L.C., Jordan M. Fox, Denver, Colorado, Lass Moses Ramp &
Cooper, L.L.C., Patricia A. Cooper, Denver, Colorado
Attorneys
for Amicus Curiae Family Law Section of the Colorado Bar
Association: Polidori, Franklin, Monahan & Beattie, LLC,
Robin Lutz Beattie, Lakewood, Colorado, Sherr Puttmann Akins
Lamb PC, Courtney Radtke McConomy, Greenwood Village,
Colorado
OPINION
BOATRIGHT,
JUSTICE
[¶1]
Domestic cases, especially when children are involved,
present unique challenges to the judicial system. Unlike
criminal and civil cases, which generally litigate what has
already happened, domestic cases concerning
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children litigate what is currently happening . And
when orders in these cases are appealed, the question of
which court has jurisdiction to act when one party seeks to
modify those same orders arises. That question comes squarely
before us today.
[¶2]
The parties in this case have a child. Mother, Kimberly Ann
Nanke, filed a petition requesting an allocation of parenting
responsibilities. The trial court ultimately entered
permanent parenting responsibility orders, granting Mother
sole decision-making responsibility and making her the
primary residential parent. Father, Winston Harold Conkling,
appealed. While his appeal was still pending, however, Father
filed motions to modify the orders in the trial court,
alleging changed circumstances. This raised the question of
whether the trial court had jurisdiction to modify the very
orders that were on appeal. The trial court believed that it
did not have such jurisdiction; a division of the court of
appeals disagreed.
[¶3]
This case requires us to resolve that conflict.[1] We hold that,
because Fathers motions to modify were material to his
appeal and sections 14-10-129(1)(a)(I), C.R.S. (2019), and
14-10-131(2), C.R.S. (2019), do not specifically grant trial
courts jurisdiction to modify parenting responsibility orders
while an appeal of the orders is still pending, the trial
court here did not have jurisdiction to rule on Fathers
motions to modify while those orders were on appeal. We
therefore disapprove of the court of appeals order
concluding that the trial court retained jurisdiction to
modify the orders during the pendency of Fathers
appeal.[2]
I. Facts and Procedural History
[¶4]
Father and Mother are the parents of W.C. Four-and-a-half
years ago, Mother filed a petition with the trial court for
allocation of parenting responsibilities of W.C., beginning
what has since become nearly continuous litigation between
the parties. Ultimately, the trial court entered permanent
orders allocating parenting responsibilities between Mother
and Father. In those orders, the court found that it was in
W.C.s best interest for Mother to be his primary residential
parent and to have sole decision-making responsibility over
him, and that Father would have parenting time every other
weekend.
[¶5]
Father appealed. Before the court of appeals issued a
decision, however, Father filed a "Motion to Determine
Whether Remand Is Necessary, and if so for a Limited
Remand," alleging that there were significant changed
circumstances affecting parenting time and decision-making.
In that motion, Father asked the court of appeals "to
determine whether the trial court has jurisdiction to hear
and decide a Motion for Modification of Parenting Time while
this Appeal is pending, and if so, to grant a limited remand
for that purpose." Two days after filing that
motion— and before the court of appeals ruled on
it— Father filed two ...