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In re Parental Responsibilities Concerning Child W.C.

Supreme Court of Colorado, En Banc

January 13, 2020

In re the Parental Responsibilities Concerning Child: W.C., and Concerning Kimberly Ann Nanke, Petitioner and Winston Harold Conkling. Respondent

          Certiorari to the Colorado Court of Appeals Court of Appeals Case Nos. 16CA428, 16CA1863

          Attorneys for Petitioner: Robinson Waters & O'Dorisio, 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 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 Father's 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 Father's 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 Father's 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 motions with the trial court, one to modify parenting time and one to modify the allocation of decision-making responsibility ("motions to modify").

         ¶6 The court of appeals denied Father's motion for a limited remand without explanation. The trial court then issued an order stating that it did not have jurisdiction to rule on the motions to modify because the action was on appeal. The trial court primarily relied on this court's statement in Molitor v. Anderson, 795 P.2d 266, 268 (Colo. 1990), 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." The trial court further stated that "[i]t makes no sense for the Court of Appeals to expend resources determining whether the original orders entered in this case are proper, when upon doing so, the orders may have already been modified."

         ¶7 One day after the trial court's order denying jurisdiction, Father filed a "Request for Clarification or Reconsideration" with the court of appeals, again asking the court to either (1) state that no remand was necessary or (2) grant a ...


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