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                                                          ADVANCE SHEET HEADNOTE
                                                                     January 13, 2020

                                         2020 CO 2

No. 18SC436, Parental Responsibilities Concerning W.C.—Family Law—Parenting
Responsibilities—Appeals—Continuing Trial Court Jurisdiction.

       Absent a specific statute or rule stating otherwise, trial courts are divested of

jurisdiction over issues that are material to a perfected appeal. In this case, the supreme

court applies this rule to Father’s motions to modify parenting responsibility orders and

first concludes that 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 pending. Next, the supreme court concludes that

Father’s motions to modify were material to his appeal. Thus, the supreme court holds

that the trial court did not have jurisdiction to rule on Father’s motions to modify while

those orders were on appeal. Accordingly, the supreme court disapproves of the court

of appeals’ order.
                The Supreme Court of the State of Colorado
                2 East 14th Avenue • Denver, Colorado 80203

                                    2020 CO 2

                     Supreme Court Case No. 18SC436
                  Certiorari to the Colorado Court of Appeals
               Court of Appeals Case Nos. 16CA428, 16CA1863

            In re the Parental Responsibilities Concerning Child:

                                      W.C.,

                               and Concerning

                                    Petitioner:

                             Kimberly Ann Nanke,

                                       and

                                Respondent:

                         Winston Harold Conkling.


                             Order Disapproved
                                   en banc
                              January 13, 2020


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




JUSTICE BOATRIGHT delivered the Opinion of the Court.

                                     2
¶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




1   Specifically, we granted certiorari to review the following issue:

                                            3
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,




         Whether the court of appeals erred in determining that a district
         court retains continuing jurisdiction to review and decide motions
         to modify parental responsibilities brought under Colorado’s
         Uniform Dissolution of Marriage Act (“UDMA”) while the trial
         court’s prior orders regarding the same matter are on appeal.
2 After a separate division of the court of appeals affirmed the underlying
parenting responsibility orders in In re Parental Responsibilities Concerning W.C.,
Nos. 16CA0428, 16CA1863, ¶ 1 (Oct. 4, 2018), the trial court denied the motions to
modify the permanent orders. To maintain that ruling, we are not remanding this
case to the court of appeals.

                                          4
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.”

                                          5
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

limited remand to allow the trial court to consider the motions.

¶8    In response, a division of the court of appeals determined that no remand

was necessary. In re Parental Responsibilities Concerning W.C., 2018 COA 63, ¶ 19,

__ P.3d __.   The division reasoned that “the [trial] 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.” Id. at ¶ 1. The division deemed Molitor distinguishable,

reasoning that when a trial court rules on a motion to modify parenting

responsibility orders based on changed circumstances, “it is in reality considering

whether to enter a new order based on circumstances occurring after the prior order

was entered.” Id. at ¶ 14. Thus, the division granted Father’s motion to clarify,

concluded that no limited remand was necessary, and instructed the trial court

that it could, “in its discretion, reconsider the motions if it so [chose].” Id. at

                                         6
¶¶ 18–19. Mother petitioned this court for review of the division’s order that the

trial court retained jurisdiction to rule on the motions to modify while the matter

was on appeal, and we granted certiorari.3

                                   II. Analysis

¶9    We first identify the appropriate standard of review for jurisdictional

questions such as this. We next examine the applicable law, namely, the general

principle that absent a specific statute or rule stating otherwise, trial courts are

divested of jurisdiction over issues that are material to a perfected appeal. We last

apply this law to this case and hold that, because Father’s motions to modify were

material to his appeal and sections 14-10-129(1)(a)(I) and 14-10-131(2) do not

specifically grant trial courts jurisdiction to modify parenting responsibility orders

while an appeal of the orders is pending, the trial court here did not have




3After Mother filed the petition for review of the division’s order with this court,
a separate division of the court of appeals affirmed the permanent orders and
remanded the case to the trial court. W.C., Nos. 16CA0428, 16CA1863, ¶ 48 (Oct.
4, 2018). The trial court then denied Father’s motions to modify. Father did not
appeal this order. Thus, this issue on certiorari is arguably moot. However, we
elect to review the issue because it “falls within the exception to the mootness
doctrine that allows review of important issues capable of repetition yet
potentially evading review.” Walton v. People, 2019 CO 95, ¶ 8, __ P.3d __ (quoting
People v. Brockelman, 933 P.2d 1315, 1318 (Colo. 1997)).

                                          7
jurisdiction to rule on Father’s motions to modify while those orders were on

appeal.

                             A. Standard of Review

¶10   A trial court’s jurisdiction over child custody and related proceedings is a

question of law, which we review de novo. See Madrone v. Madrone, 2012 CO 70,

¶ 9, 290 P.3d 478, 479.

                                      B. Law

¶11   As the trial court in this case noted, in Molitor we addressed whether trial

courts have jurisdiction to rule on motions in a case that is pending on appeal.

795 P.2d at 267. In that case, an employee filed suit against his employer, claiming,

among other things, that the employer wrongfully terminated him. Id. at 266. The

jury found for the employee, and the employer appealed; while the appeal was

still pending, however, the employer filed a motion for relief from judgment

pursuant to C.R.C.P. 60(b)(1) in the trial court. Id. In holding that the trial court

lacked jurisdiction to consider the Rule 60(b)(1) motion, we noted that “[c]ourts

universally recognize the general principle 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.” Id. at 268. In other words, “the filing of a notice of appeal divests

a trial court of authority to consider matters of substance affecting directly the

                                          8
judgment appealed from.” Id. at 269. Concluding that the Rule 60(b)(1) motion

was material to the case because it “requested the trial court to vacate the very

judgment that [was] the subject of the [appeal],” we held that “absent a remand of

the case to the trial court by the Court of Appeals, the trial court had no jurisdiction

to consider” that motion. Id. at 270.

¶12   Thus, the rule from Molitor is that when an appeal has been perfected, trial

courts do not have jurisdiction over matters material to the appeal. Since Molitor,

this rule has become well established. See, e.g., Musick v. Woznicki, 136 P.3d 244,

248 (Colo. 2006) (“[O]nce an appeal is properly underway, jurisdiction transfers to

the appellate court.”); Coors Brewing Co. v. City of Golden, 2013 COA 92, ¶¶ 58–68,

411 P.3d 767, 777–78 (finding that the trial court had jurisdiction over a matter

collateral to the appeal at issue).

¶13   But this rule has an exception.          When a statute or rule “specifically

authorize[s]” jurisdiction to trial courts over issues material to an appeal, that

specific authorization trumps general jurisdictional principles. People v. Dillon,

655 P.2d 841, 844 (Colo. 1982) (emphasis added); see also Schnier v. Dist. Court,

696 P.2d 264, 267 (Colo. 1985) (“A trial court is not divested of jurisdiction to issue

further orders in the case relative to the order or judgment appealed from if such

further orders are specifically authorized by statute or rule.”); C.A.R. 3(a) (“Upon

the filing of the notice of appeal, the appellate court shall have exclusive

                                           9
jurisdiction over the appeal and all procedures concerning the appeal unless

otherwise specified by these rules.” (emphasis added)).        For example, section

19-2-707(3), C.R.S. (2019), specifically authorizes continuing jurisdiction during

the appellate process to trial courts over mandatory protection orders against

juveniles charged with the commission of a delinquent act; it provides that “[t]he

trial court shall retain jurisdiction to enforce, modify, or dismiss the protection

order during the pendency of any appeal that may be brought.” In that instance,

the general jurisdictional rule that trial courts do not have jurisdiction upon

perfection of appeal yields to the legislature’s explicit intent.

¶14   We see no reason to depart from this rule today, particularly because it is

supported by vital pragmatic considerations. Specifically, “[t]he rule effectively

limits two courts from simultaneously considering the same judgment, and

ensures the efficient administration of appeals.” Colo. State Bd. of Med. Exam’rs v.

Lopez-Samayoa, 887 P.2d 8, 15 (Colo. 1994). Undeniably, a foundational principle

of “every . . . judicial tribunal[] is to decide actual controversies by a judgment

which can be carried into effect, and not . . . to declare principles or rules of law

which cannot affect the matter in issue . . . before it.” People v. Dist. Court, 242 P.

997, 998 (Colo. 1925) (second and third omissions in original) (quoting Mills v.

Green, 159 U.S. 651, 653 (1895)). Allowing both trial courts and the court of appeals

to adjudicate the same issue simultaneously would risk the court of appeals

                                          10
issuing moot opinions because the trial court may have already modified the

underlying order or judgment. This is an untenable waste of judicial resources.

Additionally, allowing different courts to enter rulings on the same order creates

the risk of significant confusion. Potentially, the parties would be left to speculate

which order, or part of an order, is in effect at any given time. For example, if the

court of appeals affirmed an order that the trial court had already modified, both

the trial court and the parties could understandably be confused as to which

order—affirmed or modified—they are supposed to follow.

¶15   With this understanding in mind, we now consider whether the division of

the court of appeals in this case correctly held that the trial court had continuing

jurisdiction over Father’s motions to modify, which he filed while his appeal of the

underlying order was still pending.

                                  C. Application

¶16   We conclude that the trial court did not have jurisdiction to rule on Father’s

motions to modify.      We reach this conclusion for two reasons: (1) sections

14-10-129(1)(a)(I) and 14-10-131(2), which respectively grant trial courts

jurisdiction to determine parenting time and decision-making authority, do not

specifically grant trial courts continuing jurisdiction after the perfection of appeal;

and (2) Father’s motions to modify raised issues material to the appeal. We discuss

each in turn below.

                                          11
           1. Sections 14-10-129(1)(a)(I) and 14-10-131(2) Do Not
          Specifically Grant Trial Courts Continuing Jurisdiction

¶17   The statutes at issue in this case are sections 14-10-129 and 14-10-131.

Section 14-10-129(1)(a)(I) pertains to orders allocating parenting time, while

section 14-10-131(2) concerns orders allocating decision-making responsibilities.

Specifically, section 14-10-129(1)(a)(I) allows trial courts to “modify an order

granting or denying parenting time rights whenever such order or modification

would serve the best interests of the child.” And section 14-10-131(2) allows trial

courts to modify decision-making responsibility orders only when it is necessary

to serve the best interests of the child due to changed circumstances:

      The court shall not modify . . . a decree allocating decision-making
      responsibility unless it finds, upon the basis of facts that have arisen
      since the prior decree or that were unknown to the court at the time
      of the prior decree, that a change has occurred in the circumstances of
      the child or the child’s custodian or party to whom decision-making
      responsibility was allocated and that the modification is necessary to
      serve the best interests of the child.

Following the general rule described above, trial courts could only have the

jurisdiction to rule on motions to modify parenting time and/or decision-making

orders that are already on appeal if these statutes specifically authorize such

jurisdiction. But they do not.

¶18   To be sure, sections 14-10-129(1)(a)(I) and 14-10-131(2) authorize trial courts

to modify parenting time and decision-making orders as a general matter. But



                                         12
unlike section 19-2-707(3)—which, as discussed above, specifically grants

continuing jurisdiction “during the pendency of any appeal”—these statutes

contain no language that might pass the stringent test of a specific grant of

jurisdiction to modify these orders when they are on appeal. Neither section

mentions continuing trial court jurisdiction, nor do they mention appeals. Given

that the legislature has demonstrated just how specific it can be in regards to this

language in sections such as section 19-2-707(3), we will not “read into a statute

language that does not exist.” Boulder Cty. Bd. of Comm’rs v. HealthSouth Corp.,

246 P.3d 948, 954 (Colo. 2011).

¶19   Nevertheless, Father contends that the word “whenever” in section

14-10-129(1)(a)(I)—which, again, allows courts to “modify an order granting or

denying parenting time rights whenever such order or modification would serve

the best interests of the child” (emphasis added)—is a specific grant of this type of

jurisdiction. The court of appeals emphasized this word as well. See W.C., ¶ 8.

True, “whenever” is a broad term, and its use here recognizes that dynamics can

change when raising children, which might necessitate modifying permanent

orders. But that alone does not meet the specificity needed to allocate jurisdiction

to the trial court. When read in context with the words following it, see McCoy v.

People, 2019 CO 44, ¶ 37, 442 P.3d 379, 389 (“We read statutory words and phrases

in context.”), it is evident that “whenever” is not a jurisdictional term as used here.

                                          13
The statute reads that a court may modify parenting time “whenever such order

or modification would serve the best interests of the child.” § 14-10-129(1)(a)(I).

”Whenever” is referring to the “best interests of the child” standard; it is a

substantive direction to trial courts, telling them that they may modify parenting

time orders only when doing so meets the standard of the “best interest of the

child.” Thus, section 14-10-129(1)(a)(I) is not a jurisdictional statute at all, let alone

a specific grant of jurisdiction; rather, it provides the substantive standard for

possible modifications.

¶20   In sum, we conclude that sections 14-10-129(1)(a)(I) and 14-10-131(2) do not

contain language that specifically grants trial courts jurisdiction to rule on motions

to modify parenting responsibility orders when those orders are on appeal.4

            2. Father’s Motions to Modify Raised Issues Material to
                                  His Appeal

¶21   That sections 14-10-129(1)(a)(I) and 14-10-131(2) do not specifically grant

jurisdiction does not end our inquiry. Regardless of specific statutory permission,




4 Both parties in this case advocate for an emergency exception to grant trial courts
jurisdiction to enter orders when a party files a “motion to restrict parenting time
or parental contact with a parent which alleges that the child is in imminent
physical or emotional danger due to the parenting time or contact by the parent”
pursuant to section 14-10-129(4), when an original parenting time order is still on
appeal. However, Father in this case did not allege that W.C. was in imminent
physical or emotional danger. Thus, we need not address that issue today.

                                           14
the trial court here would still have had jurisdiction to rule on Father’s motions to

modify if those motions were not material to Father’s appeal. But Father’s motions

were material here. In fact, Father requested modification of the very orders that

he appealed.

¶22   The trial court recognized as much. In ruling that it had been divested of

jurisdiction to rule on Father’s motions, the trial court summarized why the

motions were material to his previously perfected appeal, noting that if it ruled on

them, it “would be altering the very judgment that the court of appeals is presently

considering”:

      Respondent’s motions absolutely affect the substance of the judgment
      entered in this case. Both motions seek to fundamentally and
      significantly alter the allocation of parental responsibilities judgment
      entered by the Court . . . . If the Court were to consider Respondent’s
      motions and find that they had merit, this Court would be altering the
      very judgment that the Court of Appeals is presently considering.

We agree. To modify the parenting responsibility orders would be to modify the

substance of precisely what was before the court of appeals, potentially rendering

any court of appeals opinion moot.

¶23   The court of appeals looked at this from a different angle, reasoning instead

that if the trial court modified the orders, it would “in reality [be] considering

whether to enter a new order based on circumstances occurring after the prior order

was entered.” W.C., ¶ 14. Thus, the court of appeals saw no friction between the

general principle against continuing jurisdiction and the motions to modify here.
                                         15
Id.   But Father’s motions and the language in sections 14-10-129(1)(a)(I) and

14-10-131(2) speak specifically to modifying orders, not entering new ones. Indeed,

Father requested modification of the parenting responsibility orders pursuant to

section 14-10-129(1)(a)(I), which allows courts to modify parenting time, and

section   14-10-131(2),   which   allows        courts   to   modify   decision-making

responsibility. In modifying an order, the trial court is not creating a new order

but rather changing the existing one. While the original order and the modified

order may ultimately be materially different, they represent, in effect, one

continuous order. Thus, any change to the order here would be material to an

appeal of that order.

                                  III. Conclusion

¶24    For the foregoing reasons, we disapprove of the court of appeals’ order.




                                           16
