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).

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.
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

¶ 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 
2

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. 
3

¶ 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. 
4

¶ 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. 
5

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), 
6

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 
7

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
8

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; 
9

 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-
10

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 decisionmaking 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
11

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 
12

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 
13

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 
14

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-
15

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 
16

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 
17

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 

1 The 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. 
18

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 
19

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. 
20

¶ 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 
21

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 
22

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 
23

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.