Marriage of Gillispie
Marriage of Gillispie
Marriage of Gillispie
Opinion
23CA1603 Marriage of Gillispie 09-05-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA1603
Jefferson County District Court No. 19DR1924
Honorable Randall C. Arp, Judge
In re the Marriage of
Justin Gillispie,
Appellant,
and
Kelsey Gillispie,
Appellee.
ORDER AFFIRMED
Division V
Opinion by JUDGE FREYRE
Grove and Lum, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced September 5, 2024
Justin Gillispie, Pro Se
No Appearance for Appellee
1
¶ 1 Kelsey Gillispie (mother) filed a section 14-10-129.5, C.R.S.
2024, motion against Justin Gillispie (father) concerning disputes
over parenting time for their only child. After a magistrate granted
the motion, the district court, on review, entered an order adopting
the magistrate’s decision. Father now appeals the district court’s
order, and we affirm.
I. Relevant Facts
¶ 2 The parties were married in 2015 and share one child. The
marriage deteriorated, culminating in a domestic violence incident
committed by mother against father in December 2019. She was
later arrested and charged with misdemeanor domestic violence and
violation of a protection order. Soon after, father filed a petition for
dissolution.
¶ 3 In 2020, the district court issued a dissolution decree
incorporating the parties’ stipulated parenting plan. Under the
plan, father would be the child’s primary residential parent until
early 2021, at which time the parties would share equal parenting
time. The plan also provided that the parties would transition to
joint decision-making responsibility upon mother successfully
2
completing the terms and conditions of her probation. An expert
report, which detailed the domestic violence incident, was
instrumental in formulating the plan. Mother was ultimately
successful in completing her probation.
¶ 4 In July 2021, the district court approved the parties’ mediated
agreement, which outlined a specific parenting time schedule.
¶ 5 On October 27, 2022, mother filed a motion for the
“enforcement of [the] parenting plan,” alleging that father was
refusing to return the child. Later that day, the district court
entered an order stating that it would take “no action,” on the
motion, but it reminded the parties that they were obligated to
follow the July 2021 order.
¶ 6 Mother filed numerous subsequent motions, but a magistrate
denied them all, resulting in her not having parenting time for the
next several months. Of note, the magistrate denied mother’s
motion concerning parenting time disputes under section
14-10-129.5 because she did not confer with father beforehand and
did not attempt mediation as required under the parenting plan.
3
¶ 7 On February 7, 2023, the district court ordered the parties to
resume their equal parenting time schedule. Two weeks later,
mother filed another section 14-10-129.5 motion to address her
denied parenting time from October 27, 2022, through February 7,
2023. Father did not respond to the motion, and the court set an
evidentiary hearing for May 15, 2023.
¶ 8 On the day of the hearing, father filed a motion to continue,
asserting, among other things, that he had not been adequately
served with mother’s motion. The magistrate orally denied the
motion. The magistrate then heard testimony from both parties.
After the close of the evidence, the magistrate entered “detailed” oral
findings and conclusions of law. The subsequent written order
includes the following findings:
• Father withheld the child from mother for approximately
four months.
• Father gave no justifiable reasons for not giving mother
her scheduled parenting time.
4
• Father’s “deviations from the parenting time schedule
were not in the child’s best interests and caused negative
emotional impact for the child.”
• The child must receive immediate “emotional treatment”
from a therapist.
• Mother successfully met her burden of proof by showing
that father had been, or was likely to be, in substantial
noncompliance with the parenting time order.
As remedial orders, the magistrate, finding it in the child’s best
interests, (1) gave mother makeup parenting time; (2) directed the
parties to enroll the child in therapy; (3) granted mother sole
decision-making responsibility over the child’s medical care; and (4)
awarded mother her attorney fees incurred to enforce the parenting
time order.
¶ 9 Father petitioned for district court review of the magistrate’s
decision. As part of the petition, he asked the court to consider
newly discovered evidence. According to him, new evidence showed
that mother perjured herself when testifying that she was unaware
of an October 2022 police investigation into the child’s abuse
5
allegations against her significant other. The district court adopted
the magistrate’s decision and in doing so, denied father’s newly
discovered evidence claim because it could have been presented at
the hearing and would not have changed the outcome of the case.
The court noted that father did not file the hearing transcript,
which included the magistrate’s oral ruling.
II. Missing Transcript
¶ 10 As in the district court, father did not submit the hearing
transcript as part of the appellate record. As the appellant, it is his
responsibility to “include in the record transcripts of all proceedings
necessary for considering and deciding the issues on appeal.”
C.A.R. 10(d)(3). His failure to include all transcripts is significant
because, without a complete record, we must presume that the
omitted portions would support the magistrate’s findings and
conclusions. See In re Marriage of Dean, 2017 COA 51, ¶ 13
(“Where the appellant fails to provide . . . a transcript, the reviewing
court must presume that the record supports the judgment.”); In re
Marriage of Beatty, 2012 COA 71, ¶ 15 (where the record is
incomplete, the appellate court must assume that the evidence
6
supports the district court’s findings); see also McCall v. Meyers, 94
P.3d 1271, 1272 (Colo. App. 2004) (“A party cannot overcome a
deficiency in the record by statements in the briefs.”). Our review
must include all the evidence, both favorable and unfavorable to
father.
¶ 11 Although we recognize that father appears pro se, he is bound
by the same rules of procedure as attorneys. See Yadon v.
Southward, 64 P.3d 909, 912 (Colo. App. 2002); see also Dean,
¶ 12; Rosenberg v. Grady, 843 P.2d 25, 26 (Colo. App. 1992) (“A pro
se litigant who chooses to rely upon his own understanding of legal
principles and procedures is required to follow the same procedural
rules as those who are qualified to practice law and must be
prepared to accept the consequences of his mistakes and errors.”).
III. Parenting Time Disputes
A. Appellate Standard of Review
¶ 12 Our review of a district court’s order is effectively a second
layer of appellate review, and we must accept a magistrate’s factual
findings unless they are clearly erroneous. In re Marriage of
Thorburn, 2022 COA 80, ¶ 25; see C.R.M. 7(a)(9). A court’s factual
7
findings are clearly erroneous only if there is no record support for
them. Thorburn, ¶ 25. We review the magistrate’s legal conclusions
de novo. See In re Parental Responsibilities Concerning S.Z.S., 2022
COA 105, ¶ 11.
B. Governing Law
¶ 13 Section 14-10-129.5 governs disputes over parenting time. If,
after a hearing, the court finds that a party has not complied with a
parenting time order or schedule, it may impose remedial orders.
§ 14-10-129.5(1), (2)(b). In this context, the court may order
makeup parenting time, enter “[a]ny other order that may promote
the [child’s] best interests,” or require the party who has failed to
provide court-ordered parenting time to pay the aggrieved party’s
attorney fees. § 14-10-129.5(2)(d), (h), (4).
C. Discussion
1. Continuance
¶ 14 Father first contends that the magistrate erred by denying his
motion for a continuance. We disagree.
¶ 15 A continuance of a hearing “shall be granted only for good
cause,” C.R.C.P. 121, § 1-11, meaning that “there are unforeseen
and exceptional circumstances requiring a continuance.” Miller v.
8
Brannon, 207 P.3d 923, 932 (Colo. App. 2009). The burden is on
the moving party to show good cause for a continuance. See In re
Marriage of Lorenzo, 721 P.2d 155, 156 (Colo. App. 1986).
¶ 16 The decision to grant or deny a continuance is a matter
entrusted to the sound discretion of the district court, and the
court’s decision will not be disturbed on review absent a clear abuse
of that discretion. In re Marriage of Rodrick, 176 P.3d 806, 814
(Colo. App. 2007); see People in Interest of E.B., 2022 CO 55, ¶ 14.
A court abuses its discretion when its ruling is manifestly arbitrary,
unfair, or unreasonable or when it misapplies the law. E.B., ¶ 14.
In determining whether a court abused its discretion, the appellate
court must consider the totality of the circumstances as reflected by
the record. Id.
¶ 17 On February 21, 2023, mother filed her second section
14-10-129.5 motion and served father by email.
¶ 18 On March 22, 2023, the magistrate determined that while
father did not file a response to the motion, there was not enough
information to enter a default ruling, and, as a result, set the
matter for an evidentiary hearing.
9
¶ 19 On April 6, 2023, mother filed a notice with a hearing date of
May 15, 2023; again, the certificate of service indicated that it was
served on father via email.
¶ 20 Father filed a motion for a continuance on the day of the
hearing. He asserted that he could not respond to mother’s section
14-10-129.5 motion because he did not receive a copy until May 9,
2023. In the end, he sought a continuance “to retain counsel and
have an opportunity to examine all the claims and relevant law.”
The magistrate denied his request.
¶ 21 Without a transcript, we must presume the magistrate’s denial
of father’s request for a continuance on the hearing date was proper
and that he received adequate notice of mother’s section
14-10-129.5 motion. See Dean, ¶ 13; see also Rodrick, 176 P.3d at
814.
¶ 22 Father also argues that because he never consented to service
by electronic means as required under C.R.C.P. 5(b)(2)(D), the
magistrate erroneously held him in default or “allowed a default
hearing to proceed.” He is mistaken. The magistrate did not enter
a default or a default judgment. Instead, the magistrate set a
10
contested hearing on mother’s section 14-10-129.5 motion, at
which father appeared and participated.
2. Claim Preclusion (Res Judicata)
¶ 23 Father contends that mother’s section 14-10-129.5 motion
was barred by the principle of claim preclusion (formerly res
judicata). See In re Parental Responsibilities Concerning T.L.B.,
2012 COA 8, ¶ 39. He reasons that mother filed numerous
motions, including a prior section 14-10-129.5 motion, addressing
the “same subject matter” as her latest section 14-10-129.5 motion,
all of which the court had already denied. We are not persuaded.
¶ 24 We review legal determinations, such as the applicability of the
doctrine of claim preclusion, de novo. Madalena v. Zurich Am. Ins.
Co., 2023 COA 32, ¶ 64.
¶ 25 Claim preclusion bars a second action on a claim that was, or
could have been, litigated in a prior proceeding. T.L.B., ¶ 39; In re
Marriage of Tozer, 2017 COA 151, ¶ 10. Its purpose is to prevent
needless litigation. In re Marriage of Aragon, 2019 COA 76, ¶ 23.
¶ 26 Similarly, the related doctrine of issue preclusion (formerly
collateral estoppel) “prevents the re-litigation of discrete issues,
11
rather than causes of action.” Nation SLP, LLC v. Bruner, 2022 COA
doctrine, once a particular issue is finally determined in one
proceeding, parties to this proceeding are barred from re-litigating
that particular issue again in a second proceeding, even when the
actual claims for relief in the two proceedings are different.” Foster,
¶ 13.
¶ 27 However, claim preclusion and issue preclusion apply only to
later, independent proceedings; these doctrines are not used to
preclude a party’s later assertions in the same litigation. In re
¶ 10.
¶ 28 Because the magistrate’s decision granting mother’s section
14-10-129.5 motion was entered in the same proceeding and not in
a later, independent one, it is not barred by claim or issue
preclusion. See Tozer, ¶ 11.
¶ 29 But because father is pro se, we must interpret his pleadings
liberally. See Minshall v. Johnston, 2018 COA 44, ¶ 21.
12
His assertion, as best we understand it, centers on the applicability
doctrine recognizes that prior relevant rulings made in the same
case will be followed unless such application results in error or the
ruling is no longer sound due to changed conditions. Stockdale v.
Ellsworth, 2017 CO 109, ¶ 37. The doctrine, however, is
discretionary when applied to a district court’s own prior rulings.
In re Marriage of Burford, 26 P.3d 550, 554 (Colo. App. 2001); see
Stockdale, ¶ 37 (A district court “is not inexorably bound by its own
precedents.” (quoting Brodeur v. Am. Home Assurance Co., 169 P.3d
139, 149 (Colo. 2007))). It does not preclude the court from
clarifying or even revisiting its prior rulings. S. Cross Ranches, LLC
v. JBC Agric. Mgmt., LLC, 2019 COA 58, ¶ 40.
¶ 30 Because the application of the law of the case doctrine is
discretionary and father has failed to articulate how the magistrate
abused its discretion, we discern no error. See Burford, 26 P.3d at
554; see also S. Cross Ranches, ¶ 40. In any event, the record
establishes that the court did not reach the merits of mother’s
13
allegations of father’s noncompliance with the parenting time order
until after resolving her section 14-10-129.5 motion.
3. The Magistrate’s Finding of Noncompliance with the Parenting
Time Order or Schedule
¶ 31 Next, father contends that (1) his evidence “absolutely” proved
that he did not “arbitrarily” withhold parenting time from mother;
and (2) the magistrate failed to recognize that mother’s section
14-10-129.5 motions were another attempt at committing domestic
violence against him.
¶ 32 But father’s contention essentially asks us to reweigh the
evidence and make credibility assessments, which we cannot do.
See Thorburn, ¶ 49 (it is for the district court to determine witness
credibility and the weight, probative force, and sufficiency of the
evidence, as well as the inferences and conclusions to be drawn
therefrom); see also In re Marriage of Amich, 192 P.3d 422, 424
(Colo. App. 2007) (The district court “can believe all, part, or none of
a witness’s testimony, even if uncontroverted, and its resolution of
conflicting evidence is binding on review.”); In re Marriage of Hatton,
160 P.3d 326, 329-30 (Colo. App. 2007) (we may presume that the
14
district court considered all of the evidence before it). Moreover, in
the absence of the hearing transcript, we must presume the
evidence supports the magistrate’s findings and ultimate
determination that he violated the parenting time order or schedule.
See Dean, ¶ 13; see also Beatty, ¶ 15.
¶ 33 Father also appears to argue that the district court on review
erred by not accepting his newly discovered evidence. He
specifically references a police report, and claims that it proves
mother committed perjury by testifying that an October 2022
investigation into child abuse allegations never happened. But
apart from referencing the report, he does not explain why he was
unable to provide the report or the information it contains at the
hearing. Therefore, we do not address this undeveloped argument.
See In re Marriage of Zander, 2019 COA 149, ¶ 27, aff’d, 2021 CO
12.
4. Constitutional Violations
¶ 34 Father asserts numerous state and federal constitutional
violations. But he did not raise them in his petition for review with
the district court. Thus, we will not address them now. See People
15
in Interest of K.L-P., 148 P.3d 402, 403 (Colo. App. 2006) (a party
seeking review of a magistrate’s decision with the district court
must raise an issue with particularity in the petition so that the
district court can review and correct any error by the magistrate);
see also City & Cnty. of Broomfield v. Farmers Reservoir & Irrigation
Co., 239 P.3d 1270, 1276 (Colo. 2010) (“We do not consider
constitutional issues raised for the first time on appeal.”).
¶ 35 While father raised the issue that the magistrate erred by
denying him his statutory rights as a victim of domestic violence, a
claim rejected by the district court, we decline to review the issue as
undeveloped. See Zander, ¶ 27.
5. Remedial Orders
¶ 36 Father contends that the magistrate erred by imposing the
remedial order that gave mother sole responsibility over the child’s
medical care. Specifically, he claims that (1) the magistrate gave no
reasoning for the modification from joint to sole decision-making
responsibility; (2) the magistrate disregarded the fact that he was a
victim of mother’s domestic violence; (3) mother intends to wield
sole decision-making responsibility as a “weapon”; and (4) mother
16
disregarded her obligations under the prior joint decision-making
responsibility arrangement.
¶ 37 However, without the benefit of the hearing transcript, we
must presume, like the district court, that the magistrate made all
the necessary findings, that the record supports such findings, and
that the magistrate’s remedial order is correct. See Dean, ¶ 13; see
also Beatty, ¶ 15.
¶ 38 For the same reasons, we reject father’s contention that the
magistrate erred by awarding mother her attorney fees in
connection with her section 14-10-129.5 motion.
6. Bias
¶ 39 Last, father contends that the magistrate exhibited bias
against men because mother’s victory “should never have occurred.”
But adverse rulings, without more, do not establish bias. See Dean,
must clearly establish bias, and there must be more than
speculation).
IV. Disposition
¶ 40 The order is affirmed.
17
JUDGE GROVE and JUDGE LUM concur.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.