2020 CO 2
Colo.2020Background
- Mother (Nanke) petitioned for allocation of parental responsibilities for child W.C.; trial court entered permanent orders giving Mother primary residence and sole decision-making; Father (Conkling) appealed.
- While the appeal was pending, Father filed motions in the trial court to modify parenting time and decision-making based on changed circumstances.
- Father also sought a limited remand from the court of appeals to allow the trial court to consider the modification motions; the court of appeals denied remand but later a division held the trial court retained continuing jurisdiction to consider such motions if based solely on changed circumstances occurring after the original order.
- The trial court concluded it lacked jurisdiction while the appeal was pending and declined to hear the motions; Father requested clarification from the court of appeals, which issued the division opinion allowing trial-court consideration.
- The Colorado Supreme Court granted certiorari to resolve the conflict about whether trial courts retain jurisdiction to modify parenting-responsibility orders while those orders are on appeal.
Issues
| Issue | Plaintiff's Argument (Nanke) | Defendant's Argument (Conkling) | Held |
|---|---|---|---|
| Whether trial court retains jurisdiction to decide motions to modify parental-responsibility orders while those orders are on appeal | Appellant’s motions are material to the appeal and general principle divests trial court of jurisdiction once appeal is perfected; trial court lacked authority | Statutes authorizing modification (e.g., use of “whenever”) and practical need for post-order modification allow trial court to act on changed-circumstances motions during appeal; court of appeals’ division adopted this view | Trial court did not have jurisdiction: appeal divests trial court of matters material to the appeal and the parenting statutes do not specifically grant continuing jurisdiction during appeal |
Key Cases Cited
- Molitor v. Anderson, 795 P.2d 266 (Colo. 1990) (once an appeal is perfected, trial court is divested of authority over matters materially affecting the appealed judgment)
- Musick v. Woznicki, 136 P.3d 244 (Colo. 2006) (jurisdiction transfers to appellate court once appeal is properly underway)
- People v. Dillon, 655 P.2d 841 (Colo. 1982) (a specific statute or rule may preserve trial-court jurisdiction despite an appeal)
- Schnier v. Dist. Court, 696 P.2d 264 (Colo. 1985) (trial court not divested if further orders are specifically authorized by statute or rule)
- Colo. State Bd. of Med. Exam’rs v. Lopez-Samayoa, 887 P.2d 8 (Colo. 1994) (practical reasons support preventing concurrent jurisdiction to avoid wasted resources and confusion)
- Mills v. Green, 159 U.S. 651 (U.S. 1895) (courts decide actual controversies that can be effected; advisory or moot rulings disfavored)