Divorce at Altitude: A Podcast on Colorado Family Law

Appealing Divorce Trial Decisions with Paige Mackey Murray | Episode 82

February 03, 2022 Ryan Kalamaya & Amy Goscha Season 1 Episode 82
Divorce at Altitude: A Podcast on Colorado Family Law
Appealing Divorce Trial Decisions with Paige Mackey Murray | Episode 82
Show Notes Transcript

Sometimes one party can disagree with the ruling of a judge and want to appeal the ruling in a divorce case. Although appeals in a divorce are possible, they are typically only granted if one party can prove either that the judge misapplied the governing laws or the judgment was influenced by one party's bad faith.

Ryan Kalamaya and appellate attorney Paige Mackey Murray discuss when appeals can occur in a family law ruling, and typical types of appeals that are seen in divorce cases.

To contact Paige about an appeal, please visit https://www.appealscolorado.com.

About Paige Mackey Murray
 
Paige has been an attorney in Colorado for over 22 years. She clerked for four years on the Colorado Court of Appeals and Colorado Supreme Court. She handles appeals in both state appellate courts and in the lower courts, including petitions for magistrate review and county and municipal appeals. She also assists trial counsel in ensuring preservation of issues for appeal and with post-trial motions in anticipation of appeal. 

Paige maintains a separate solo practice where she represents clients in all types of appeals, and she is also Of Counsel to Kaplan Law L.L.C., where she represents clients in family law appeals.​

She was named Top Appeals Lawyer by 5280 Magazine for 2019, 2020, 2021, and 2022. She serves as Treasurer on the board of the CWBA's Boulder Chapter, and she is a member of the planning committee for the annual Appellate Update CLE, the Appellate Pro Bono Clinic Task Force, and the subcommittee proposing revisions to the Colorado Rules for Magistrates.


What is Divorce at Altitude? 

Ryan Kalamaya and Amy Goscha provide tips and recommendations on issues related to divorce, separation, and co-parenting in Colorado. Ryan and Amy are the founding partners of an innovative and ambitious law firm, Kalamaya | Goscha, that pushes the boundaries to discover new frontiers in family law, personal injuries, and criminal defense in Colorado. 

To subscribe to Divorce at Altitude, click here and select your favorite podcast player. To subscribe to Kalamaya | Goscha's YouTube channel where many of the episodes will be posted as videos, click here. If you have additional questions or would like to speak to one of our attorneys, give us a call at 970-429-5784 or email us at info@kalamaya.law.

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DISCLAIMER: THE COMMENTARY AND OPINIONS ON THIS PODCAST IS FOR ENTERTAINMENT AND INFORMATIONAL PURPOSES AND NOT FOR THE PURPOSE OF PROVIDING LEGAL ADVICE. CONTACT AN ATTORNEY IN YOUR STATE OR AREA TO OBTAIN LEGAL ADVICE ON ANY OF THESE ISSUES.

Ryan Kalamaya (3s):
Hey everyone. I'm Ryan Kalamaya

Amy Goscha (6s):
And Amy, Goscha

Ryan Kalamaya (8s):
Welcome to the Divorce at Altitude, a podcast on Colorado family law.

Amy Goscha (13s):
The force is not easy. It really sucks. Trust me. I know besides being an experienced divorce attorney, I'm also a divorce,

Ryan Kalamaya (21s):
Whether you are someone considering divorce or a fellow family law attorney listening for weekly tips and insight into topics related to divorce co-parenting and separation in Colorado. Welcome back to another episode of Divorce at Altitude. This week, we are talking about appeals and it is something that we have not explored previously. I confess it's not something I know a tremendous amount in my own personal practice, and I am looking forward to learning more by Paige Mackey Marie and experienced Colorado appellate attorney.

Ryan Kalamaya (1m 0s):
She focuses exclusively on appeals in a wide range of areas, but in particular family line, we'll discuss that. But Paige has been an attorney in Colorado for over 22 years. She is based in Boulder, Colorado, near where I grew up. She clerked for four years on the Colorado court of appeals in Colorado Supreme court. She handles appeals and state appellate courts, as well as lower courts, including petitions for magistrate review and county core and municipal appeals. We'll talk about what the differences between that she assists trial counsel so that people like me in ensuring that they preserve issues on appeal, as well as post-trial motions in anticipation of appeal. Paige maintains a separate solo practice where she represents clients in all types of appeals.

Ryan Kalamaya (1m 44s):
She's also of counsel to Kaplan law, where she represents clients specifically and family law appeals. I think we can announce this page that you were selected to the 2022 list by super lawyers. I also was a selected that, and the reason that I'm kind of cautious with that as they have these various restrictions on when you can announce that. But she has been selected to that. In addition, she was named top appeals lawyer by 52 80 magazine for 2019 through 2022. She serves as the treasurer on the board for <em></em> Boulder chapter. And there are other things that we could get into, but people are going to be sick of listening to me and really what we're here to listen to is you page.

Ryan Kalamaya (2m 27s):
So welcome to the show,

Paige Mackey Murray (2m 29s):
Glad to be here.

Ryan Kalamaya (2m 30s):
So for people that don't know, let's start off with explaining what an appeal is. Can you, you worked in the court of appeals for a while. So for people don't know what goes into an appeal.

Paige Mackey Murray (2m 44s):
The appeal is as situation where you've already gone through trial and you're unhappy with the result or you're the other party is unhappy with the result. And so you have an opportunity to go into a higher court, to have something reviewed what an appeal is not, is more interesting. I think it's not a redo. It's not another trial. You don't get to finally prove that they lied on the stand. That sort of thing. What it is is, is a review of the legal issues in the case, a review of what the court did incorrectly. And some issues are better for appeal than others for that reason. So where you're dealing with factual determinations that a trial court has made, those are really hard to appeal.

Paige Mackey Murray (3m 28s):
An appellate court looks at a cold record. They look at written transcripts and they look at documents that were filed, and they're not going to replace the trial. Court's determination of facts with their own, unless there's no evidence at all to support what the trial court did. So an appeal is a chance to fix something that went wrong. I consider myself a bit of a fixer and it's a much different exercise. So you're not in court with trying to prove facts and basically interviewing the parties. You are arguing to a panel of judges about how the law should be interpreted or whether the law was followed or whether it should be changed.

Ryan Kalamaya (4m 9s):
That don't really understand the legal process. We have this interesting system in which higher court, whether that be a Colorado court of appeals at appellate court or the Supreme court, they give guidance to the lower courts on what happens. And so arguably what extends from England and you know, when someone a hundred years ago said, well, this is what happens in this particular situation, then that is instructive for what happens here today. So when you say you're a fixer, it's essentially handling that situation and providing guidance in future cases. And that's why appellate decisions, Matt.

Paige Mackey Murray (4m 50s):
Yeah, that's right. I mean, it's, some decisions are published and some decisions are not published quite a few or not. Let me back up a little. So there are two appellate courts. The court of appeals is a, an error correction court. You have a right in general, when you're coming out of the district court, you have a right to an appeal in the court of appeals and they fix errors and that's their primary role. The Supreme court on the other hand is more policy-driven is more interested in creating that law that you talked about. They're not an error correction court. You have to ask for permission, you have to petition for certiorari with the Supreme court and ask that they take your case and your case has to have something that's unique and interesting and perks their interest.

Paige Mackey Murray (5m 31s):
And they say, yeah, we want to decide this. So there are times when you petition for cert because the court of appeals really got it wrong, and maybe they agree, but they don't take it because they're not an error correction court. So we get most of our law out of the Supreme court, but we get some published decisions out of the court of appeals as well. And our job as an appellate attorney is to analyze those decisions, see which ones relate to the situation we have and craft an argument for why a case should come out a certain way based on that

Ryan Kalamaya (5m 59s):
Precedent. And I think family law in particular is interesting when we and listeners have heard me talk about entering marriage of Cieslik and it's like, why do they refer? And family law, we have this statute, the uniform dissolution of marriage act, and it provides some statutory factors that were developed by the legislature, but then there's these issues on the margins about how do you interpret that statute? And so a lot of family law practitioners, what we do lawyers is we refer to cases because it interprets the statute or a particular legal issue. And so that's why when we talk about these cases, that it's because it's guiding us on what is going to happen.

Ryan Kalamaya (6m 41s):
For example, if a trust is, or is not revocable and why that matters. And that kind of goes back to cases that have come out deciding that particular issue

Paige Mackey Murray (6m 50s):
That's right. And here we have similar type of statutes having to do with, you know, parental responsibilities or child support, or, and sometimes it's not clear how those are applied and we have to figure out how they're going to apply in a given circumstance that hasn't been considered before. And so cases where you're dealing with family law statutes, where there is a specific requirement or the ones that actually are good appeals because you do have a legal issue that can be considered. But sometimes the court has a lot of discretion to make determinations and those are tougher appeals.

Ryan Kalamaya (7m 24s):
Okay. So we've established kind of what appeals are. Let's get down to some brass tacks and some nuts and bolts, as you know, many listeners can relate to, or no, we have our hypothetical divorce story, Eric and Melanie Wolfe. And, you know, for people, they can go back to episode one or Google Eric Wolf and our law firm. And there'll be able to find that story. But if Eric Wolf goes to trial and he loses or is unhappy with what happened at trial and there's the final orders ruling, what are the things that if I come to you page as Eric Wolf's attorney and you know, I mean, we don't win every case. I, I tell clients I hate to lose.

Ryan Kalamaya (8m 4s):
And it's also hard to kind of decide between winning and losing in, in a divorce. But if I come to you and I say, listen, Paige, I've got Eric. He's very unhappy about his decision in the trial court. How long is an appeal going to take, what's it going to cost? And what's the likelihood of success. Walk me through your analysis when it comes to the kind of realities and timeframes involved in Appealing Divorce.

Paige Mackey Murray (8m 31s):
And that's a really important conversation to have with clients when they want to appeal. Because as you know, divorce situation is, is so emotionally fraught and you really got to talk through the time and expense and the realities of it. So an appeal typically takes a year or two year and a half, I would say in these subject areas, some take longer, very few take less than that. And a lot can happen in a year or a year and a half. So also once you're through with that appeal, after all that time has gone by often you get a remand, which means the court says, yeah, you know, the judge didn't take into consideration these particular factors, and now we're going to give them a chance to do that.

Paige Mackey Murray (9m 12s):
And so then they go have to go back and they have to redo the analysis, but they have to do it under the circumstances at that time. And so, for instance, if you're just as an example, let's say, is it Eric right in the hypothetical? Let's say he it's a relocation. And he moved to the east coast and he really wanted to take his kids with them. And the court said no, and in relocation case. And so he appeals it. Meanwhile, he moves to the east coast and while he's gone, the kids become, they get more friends, they get more ingrained in school. They're more ingrained in the community. It's going to be harder for him on remand to change the outcome. So it really has to do with why does Eric want to appeal? What are the things that he wants?

Paige Mackey Murray (9m 52s):
Is it money? Is it custody of the children? Is it parental responsibilities? Is it how much child support he had to pay? And then we, if it's the money situation, then we look at, okay, well, is it worth it to appeal? So I would say many appeals cost, just throwing out a number. It's hard to say because everything's different, but somewhere around $20,000 to maybe $25,000, by the time you're done that after that one, that year and a half is over, that's kind of what you're looking at. So if, for instance, you're upset because you don't think the child support calculations are right, but it's only a couple hundred dollars a month difference. You got to do the math. Is it really worth it? Do you want to give that money to your ex-wife and your children, or do you want to give that money to me?

Paige Mackey Murray (10m 32s):
And it's a real question. And some people are so emotionally ingrained that they don't want to give that money to their ex-husband or ex-wife, but let's have a real conversation about what makes sense here.

Ryan Kalamaya (10m 42s):
I have heard I'd rather give the money to you, Ryan, then my ex-wife or ex-husband or future ex-wife. And I have told them, there is a risk that you pay me and you pay Melanie in Erik situation. And one of the more persuasive methods, if in my professional opinion, decide or determine that a Selma is in that client's best interest. I will tell them it's in my financial interest to continue to litigate. And because I make more money and I'm telling you if I were you, I would settle. Now, of course, it's their decision.

Ryan Kalamaya (11m 23s):
But when they hear that they opens their eyes. And so I think if people are, at least my clients, they may not get it at first, but by the time trial comes, we have had a number of cost benefit analysis, you know, decisions or conversations. And so I think it is helpful for you to have that information on how much does it cost for appeal, because you know, there's also the time aspect. So, but what other remedies are available while Eric, if he moves to New York or back to the east coast in that interim, that year, year and a half while the case is up on appeal, what other remedies does he have?

Paige Mackey Murray (12m 5s):
That's a really interesting question. I think there's two questions. There's should we, should you appeal or should you try to do something different? And then there's, if you appeal, can you do something as well? Those are two different questions. I think so dealing with the first one, if you decide not to appeal, then you have to consider where are we in the process? Can I move to modify something? Or am I within the five-year period for 16.2, let's say Eric figures finds out that his wife had had assets from her and he wants to reopen the thing. You know, we talk about, are there anything, is there anything that's an appellate nature here or where are we really talking about filing a 16.2 motion to reopen the property division?

Paige Mackey Murray (12m 47s):
Or should we do a post-trial motion? Should we do a post-trial motion before we appeal to see if we can get the outcome we want in a quicker, more efficient, cheaper way? So a rule 59 or a rule 60 now, a rule it's important to know that a rule 59 we'll toll the time for Appealing. So if they want to file post-trial rule 59 motion, that's a good way to still preserve that appellate possibility. But if you filed rule 60, you're still under the appellate deadlines and that's where it gets really interesting. And it moves into that second question of what can you do when you've already appealed? Can you then file a rule 60? Well, there was a big case that came down a couple of years ago on read marriage FWC that said, no, you can't do a rule 60.

Paige Mackey Murray (13m 31s):
And in general, that's true if the matter in the motion. So basically let me back up a little bit. When you file an appeal, you remove jurisdiction from the lower court for purposes of the matters that are on appeal. So the lower court doesn't get to resolve those kinds of issues while the matters on appeal. Those issues are in the hands of the court of appeals. Now in Henri WC, the court clarified that that was true in family law as well. And that's problematic because things happen and you want to go in and get them to modify because of emergency situations or changes in circumstances. And under Henri WC, you couldn't do that. You had to stick with your appeal or abandon your appeal and make a motion in the trial court and make a decision about that.

Paige Mackey Murray (14m 14s):
And that was really problematic. So the legislature then passed a law last summer. I believe that basically overruled Henri WC in the context of family law and went through each of the provisions and statute for modification and changed them to say that you could still do it. Now, that's a new paradigm that we're working in and I've got cases where we're, we have issues on appeal and we have a rule 60 pending, and we don't have to do a limited remand like we did before, but I don't know what we're going to do with the two with the appeal and the lower court decision going on at the same time, it creates an interesting situation. So, and that's an evolving development, right

Ryan Kalamaya (14m 54s):
As is always the case in terms of it being an organic evolving system. But to go back to maybe for listeners that don't understand about rural 59 and rural 60, but to our hypothetical, if Eric moves to New York and he appeals that decision, and then meanwhile, Melanie gets pulled over drinking with, you know, the kids in the back of the car. He then can file a motion to restrict or say, Hey, trial court, you need to change the circumstances or the order of parenting because this time-sensitive issue came up.

Paige Mackey Murray (15m 30s):
That's right. He can do that now, for sure. He doesn't have to abandon his appeal before he moves to modify parenting time or put restrictions on her parenting time.

Ryan Kalamaya (15m 38s):
And to flesh out a little bit on the rule 59 versus rule 60. So rule 59, it has to be filed 14 days after you get the, I believe that order from the core and it basically asked the court to amend its rulings. And that is almost always done, you know, after a trial, for example, and I explain to clients that you need to be very reluctant to do that because you know, you and I were talking before we started recording, you know, I have a five and a seven year old. And when my daughter who's seven asked me for ice cream and I say, no, I am the judge. And I determined that you do not get ice cream.

Ryan Kalamaya (16m 18s):
If she then five minutes later says, well, please can I have ice cream? I'm going to start getting annoyed. And when you go to the core and you say, you made the wrong decision, we should win. You know, Eric should have the kids go with him to New York. There's a tendency of the judge being annoyed. That's going to be maybe different. And I've seen it where I saw judge who made a mistake on the child support worksheet, where they just, there was a typo, there was a zero missing and we filed a rule 59 motion and said, judge, you need to amend the child support worksheet because, and that judges are very receptive. Oh, I'm, you know, everyone makes mistakes. They're just trying to do the best that they can.

Ryan Kalamaya (16m 59s):
But can you talk a little bit about your observations on that rule 59 process immediately after a trial?

Paige Mackey Murray (17m 7s):
Yeah. I mean, I think it's, there is this question of whether or not a rule 59 hurts your chances on appeal or whether it helps you. Right. And in some instances like the one you talked about where it's a simple error that it's not, Hey judge, you got everything wrong, you're a disaster. You know, if you know, the judge is going to rule against you on a rule 59, and there's no chance of prevailing. Sometimes you end up hurting your chances on appeal because you give the judge an opportunity to do a better job of explaining his bad decision or her bad decision. And then it's harder to fight it on appeal, right? Because they just wrote a much better opinion. I think if you know that you're going to lose on a rule 59, maybe you just want to go ahead and appeal and not give them that opportunity.

Paige Mackey Murray (17m 51s):
And that's just a judgment call that has to be made based on the given circumstances, what your reasons for filing the rule 59 are what your relationship with the judge has been during the course of the proceedings. And it's just a judgment call that has to be made for sure.

Ryan Kalamaya (18m 4s):
Yeah. And I explained to clients, especially with children, because there can be an oftentimes is these posts decree a year later, two years later, I mean, child support can still be an issue. There could be parenting time. That is that issue. And if you have aggravated the judge, you've gone to him and asked for ice cream, after he has said, you do not get ice cream, you know, you're going to be jeopardizing. I mean, you don't want to be, to kind of use another analogy. The boy who cries Wolf, who just continually goes to the judge and says, you know, you got it wrong. That is just not going to be in your long-term interest. But what about rule 60? So what is the difference with the rural 60 compared to the rule 59 procedure?

Paige Mackey Murray (18m 49s):
Let's see, I mean, a motion under rule 60, they're very specific criteria for why you can bring a motion under rule 60. And so you have to fall under one of the specific listed criteria on will 60, and that can be clerical errors that can be fraud. It can be excusable neglect. You know, there are a number of things. And then there's this catch all the 65 at the end that it's very difficult to get. And what's interesting about a rule 60 is it can be brought, I believe it's 182 days change

Ryan Kalamaya (19m 21s):
For subsection one in B or a and B there's a timeframe under various things. And what we do within our firm is this happens even when people settle, if they're at mediation and you know, that's a whirlwind, we remind our clients six months cause it 180 days, generally six months go back and look at your separation agreement and go back in particular that parenting plan. And if there is a mistake in there, it does happen, but it's much easier to fix that in that six month period. And I have seen it, you've mentioned rule 16.2, where the five-year look back, you know, and frequently what happens is if someone believes that an asset has not been disclosed, they can file a rule 60 motion.

Ryan Kalamaya (20m 6s):
And then in the alternative asked for rule 16.2 relief. And so it's these kinds of alternative mechanisms of what I frequently refer to as divorce remorse. But you know, the, the rule 60 is basically it's beyond the timeframe of rule 59. And it also can be for cases that are settled and there's a negotiated Selma instrument, like a separation agreement.

Paige Mackey Murray (20m 29s):
Well, and the important thing to remember too is, so the rule 59 will toll the time for appeal. So you file your rule 59 and you file the extension. And there's a deemed denied provision. So that under 59 J that says, you know, if the court doesn't rule on it within a certain period of time, it's deemed denied. So your time to appeal starts that point. Oh, and the rule of 59, it preserves issues for appeal, but your appeal isn't limited to just the things you raised in the rule 59. Now with the rural 60, it doesn't toll the time for appeal. So you bring a rule 60 motion, six months later, and you've abandoned your appeal as to the PO as to your permanent orders, but you haven't abandoned. And as to the issues raised in 60, so you can, if you lose on your rule 60, you can appeal the denial of the rule 60, but that's not going to get you back to the original PO and allow you to appeal other issues that you didn't raise in the 60.

Paige Mackey Murray (21m 20s):
So it's important that the 60 points to think about what issues you're going to want to appeal and make sure they're in your rule 60 motion,

Ryan Kalamaya (21m 27s):
Right? So you can't use that three months later, rule 60 motion to kind of act as a Trojan horse to get in on appeal for something that may have been overlooked, or it was appeal. This episode is brought to you by our law firm. Kalamaya Gosha Amy. And I describe our law firm as an innovative and ambitious trial team that pushes the boundaries to discover a new frontier is and family law, personal injuries in criminal defense in Colorado. We currently have offices in Aspen, Glenwood Springs, Edwards, Denver, and Boulder. If you want find out more, visit our website, Kalamaya dot law now back to the show.

Ryan Kalamaya (22m 9s):
So, okay, well, let's switch gears and talk about procedural issues that come up in family law appeals. You, I mentioned in your introduction, the county core and magistrate review. So for people that don't know, it varies in jurisdictions. I'm in Aspen primarily, and we don't have magistrates, but I've seen them in Mesa county and grand junction as well as Denver. So for people that don't understand what that would a magistrate is and what the appeal process is, kind of walk us through that.

Paige Mackey Murray (22m 37s):
Sure. And it's kind of a complicated mess. I have to confess the rules. Aren't great. There is a commission right now to change them that I've been involved in, and it's not getting a whole lot of traction because there's a lot of disagreement, but I'll just preface it with that. When I explain it to you, you'll be like, really, it doesn't make any sense,

Ryan Kalamaya (22m 55s):
A bunch of lawyers disagreeing.

Paige Mackey Murray (22m 59s):
So the statutes allow magistrates to review certain things automatically and others, they have to get the consent of the parties and a magistrate is not a judge, but it's sort of like, I kind of refer to them as starter judges. So a magistrate has a, there's a whole set of rules just for magistrates that outlines what they can do and not do. And so you see them a lot in the family law arena and they handle a lot of issues in family law. So what happens is if a magistrate did your ruling and you're not happy with it, you have to determine whether or not the magistrate had consent via the statute and just was given the authority to do it, or whether or not they were required to get the consent of the parties in order to do it.

Paige Mackey Murray (23m 42s):
Now, when a magistrate and my head spend some times with this, but when a magistrate is acting with the consent of the parties is supposed to get consent and it has gotten consent. The decision is appealed directly to the court of appeals. Now, when a magistrate is not acting with the consent of the parties, but just has authority to resolve an issue based on the statute. So the parties didn't have a choice in the matter. That's how you think about it. Then that ruling has to be first reviewed by a judge. And your ability to appeal is dependent on you getting that magistrate review. So you have to file a petition for review of a magistrate's ruling with the district court judge, and get a ruling on that.

Paige Mackey Murray (24m 23s):
And now where the rules get wonky is there's no deadline, there's no Dean denied provision. Like what I mentioned before with rule 59, where if they don't rule on it, it's just deemed denied. There's nothing like that. And I've had cases take a year just to get a magistrate ruling or a magistrate review accomplished. And then they kick it back to the magistrate magistrate gets another go at it. And if you don't like it, you have to review that again. And so it's really cumbersome for litigants to do have that process. You also have to preserve all your issues for appeal in your petition for magistrate's review. So if you miss everything you want to ultimately appeal has to be in that magistrate's review, or it's not preserved for appeal.

Ryan Kalamaya (25m 3s):
And so if Eric is deciding he wants to relocate, and he's looking at trying to have a trial, as soon as possible, he may decide by consent to use a magistrate because it could happen a lot faster. And in that circumstance, then there's going to be a different appellate process versus the district court saying, you know what? I don't have enough time to deal with this right now. You have to go in front of the magistrate and is ordered by the district court judge. And that is a different process by which if Eric loses that he would appeal.

Paige Mackey Murray (25m 40s):
And typically, and I'm just kind of looking this up right now to, but typically in the case of permanent orders, consent is necessary. But typically in the case of modification of permanent orders, consent is not necessary. That's kind of a generalization, but under the magistrate statutes, that's typically how that's laid out.

Ryan Kalamaya (25m 59s):
How much in terms of the practical reality mean, I used to be prosecutor in Eagle county. We would go back in the hallways and all the judges would be right next to each other. And it was a very collegial atmosphere between all of us. And we'd go back there, the public defender, who's now a judge. And, you know, I know judges all talk with one another about attorneys and various issues and some are pretty close and there can certainly be some schisms between judges. How much do you think that that plays between the magistrates who were on that court or they might have maybe a smaller office than a district court versus, you know, the court of appeals, which is down in Denver. And I guess how much do you think that that really plays in the ultimate appeal process?

Paige Mackey Murray (26m 43s):
Think that's such an interesting question. It's one that comes up a lot, the perception of lawyers who do this work and who file these petitions for magistrate's review is that they're almost impossible to get, unless the issue is just really, really clear. I've sat with judges in, on panels to talk about this issue and they claim up and down and right and left that there's no, you know, that they are good at discerning the law and they're going to do what's right. And it's, there's no cronyism and all that kind of stuff, but there's, it's so hard. And as similar to a county court appeal that goes to district court, cause that's where county court appeals go. We have the same perception, they're impossible. And then once you go from account and that this doesn't come up in family law, it's really the petitions for magistrates that come up and family law, but it's still interesting.

Paige Mackey Murray (27m 28s):
So from county courts, a district court is very, very difficult to get a good ruling in your favor when you're trying to appeal in the same way. And what's in that instance, unlike the petitions for magistrate review, when in order to appeal the district court ruling on the appeal, you have to go to the Supreme court and ask for a petition for cert. And so the question is whether in a county court appeal, is there really a true appellate avenue that's happening, where you're getting any kind of real review.

Ryan Kalamaya (27m 57s):
In an other episode, we talked about decision-making and arbitrators for parenting in particular. So what are the appellate standards or procedures? When, for example, you have a parenting decision maker saying that a child needs to be vaccinated. What if, if a parent Eric disagrees with the decision maker, what are his remedies to appeal decision-makers decisions?

Paige Mackey Murray (28m 24s):
Well, he has to request Denovo review of that decision in the district court. And he has to do it under, I can't remember what the timeframe is, but it's fairly short. And if he doesn't do that, then there's no review from that point. And so that's required. And so they're kind of considered the PCDs or the decision-makers are sort of considered like an, an alternate adjudicator. And so, yeah, he's going to have to request a Denovo hearing in the district court to review that decision. And if he doesn't do it, then he's waived his right to appeal that decision.

Ryan Kalamaya (28m 56s):
And what if the decision is a changing a parenting schedule? And the decision-maker says I'm doing this as an arbitrator or people go to arbitration because you know, the time issue that we referenced earlier with magistrates, if they decide I'm going to go to arbitration and it's on parenting and you know, there there's obviously, well, not obviously, but can you explain the difference between parenting with arbitrators as compared to, you know, fighting over who gets the car or selling the house with arbitration on a financial issue is extremely,

Paige Mackey Murray (29m 31s):
Really difficult to appeal an arbitration ruling. In fact, I've never have, because it's so difficult to appeal an arbitration really I've reviewed many, many cases where people come to me and they go, there has to be a way for me to, to get review of this. That might be an oversimplification there's procedural things that have to be met. And if you haven't met those specific procedural requirements and you can argue whether or not arbitration was required in the first place, but the actual decision is very difficult. Yeah.

Ryan Kalamaya (29m 57s):
And I think that the short answer is that there is potentially a path under arbitration awards for parenting, but not for financials. I mean, it is essentially a slam dunk, but that's, you know, that you can't appeal and a financial arbitration, but there's

Paige Mackey Murray (30m 13s):
A review for parenting in the, under the statute. So let's

Ryan Kalamaya (30m 16s):
Talk about kinds of issues that we frequently see in family law. We've referenced some rule 16.2 and some other things that you and I know what we're talking about, but what are the things page that you see a lot of family law professionals come to you and walk us through and talk to me about the issues that you frequently see and the context of appeal

Paige Mackey Murray (30m 37s):
Or things we see. A lot of our people will come to me and say, well, the parenting plan doesn't make sense. I didn't get enough time with my kid or people will say, you know, I got imputed income. That's an interesting one. I got imputed income and now I have to pay all this child support, but I don't, I can't pay it because I don't have any money. I'll see people will want to appeal maintenance calculations. There's a, the chalkboard has a lot of discretion in determining maintenance there's guidelines, but there aren't the requirements that you have for child support calculations. People want to appeal those, and that's tougher. Other things are whether or not the best interest standard or the endangerment standard applies.

Paige Mackey Murray (31m 17s):
This comes up a lot. It seems to be a theme. And a lot of the cases I've been working on lately, and to kind of give you some background on that when you're determining parental responsibilities and parenting time for permanent orders, you have to determine what the best interests are. And there's a statutory guidelines for that. And there's questions of whether the court follow those statutory guidelines and how they were applied. And then when you're moving to modify, there's a question whether endangerment or best interests apply. And if you're trying to change the party with whom the child resides and majority of the time you have to show that there's been endangerment. So when you made the example of, is it Melanie Eric's wife, driving drunk with the kids in the back of a car that could potentially be an endangerment, so he could move to modify and get full, you know, more majority time custody of the kids under that statute.

Paige Mackey Murray (32m 10s):
We see a lot of cases where the court messes up endangerment versus best interests, you know, refuses to apply the endangerment standard or says that the child's endangered, but there's absolutely no evidence of endangerment. You know, I had a case like that where one of the parties was essentially being punished by the court for having a bad attitude and change the parent with whom the child resided a majority of the time. And so there was endangerment and there was absolutely no evidence of endangerment at all. We won that one as we should have, it was really

Ryan Kalamaya (32m 39s):
Bad. And so when you, I think the one issue you or the kind of assumption, and when you say we won that and there was no evidence, talk to me about, I know what you're referring to, and that's the factual determinations versus the legal determinations. And so when people say I didn't get enough time with my kids, how is that different than what standard is applied? Like why care about what standard is applied? So talk to me about the legal versus factual issues in the context of an appeal.

Paige Mackey Murray (33m 12s):
Sure. And we touched on it a little bit at the beginning. So there are standards of review for appeal on an appeal you have, what's called a Denovo review where the court of appeals sort of starts from scratch and figure something out for themselves. And that's usually what does the law mean? Legal questions are reviewed de Novo. What is the statute really? How is this supposed to be applied? Those sorts of questions. And then there's abusive discretion. And there's statute gives the trial court discretion in certain matters. And that discretion comes from the ability to observe the parties firsthand, to really get to know them in the course of litigation and make those kinds of determinations where the court, like I said, the court of appeals is just reading a transcript.

Paige Mackey Murray (33m 56s):
And so those areas where the court has discretion, it's not to say that you can't appeal those. You can. They're just, it's just tougher road. It's as steep hill to climb and best interest analysis is one of those where the court has a lot of discretion to determine what's in the best interests of the child. Now, the court has to look at relevant factors and if they failed to articulate those relevant factors or failed to look at the right factors, you might be able to argue there was an abuse of discretion, but it's tougher than a Denovo review. And then there's the third, which is clear error, and that has to do with factual determination. So again, the trial court is in a position to determine credibility of people that are standing before it and talking, determine whether or not they believe what they say, whether or not they believe the evidence and can make factual determinations.

Paige Mackey Murray (34m 47s):
So people come to me and they say, yeah, but there was, I presented so much evidence that this thing happened and the court said it didn't happen. How could that be? I presented so much evidence. Well, if there's any evidence at all, to support the court's finding the court of appeals is not going to reverse that factual finding there has to really be nothing to support it. And it's really, really hard.

Ryan Kalamaya (35m 9s):
So when you say the previous example with the endangerment and that there was no evidence, is it, was it the, that there was no clear error that there was no evidence that when you look at the transcript, there was no real mention, or there was no evidence whatsoever and in that circumstance, and that's why you kind of said, surprise, surprise. We, we won that actually. And it's because it was a factual issue. And, but there was just simply such a dearth of evidence. In fact, no evidence that it rose to the level of clearer.

Paige Mackey Murray (35m 39s):
Yes, that's right. There was a finding of endangerment, but there was absolutely no evidence to support that finding. And that's really unusual most if there's anything at all, to support that the court's going to defer to the trial, court's ruling on that. So we were a little bit surprised to, because it was an extreme case, but I have lots of cases in other situations, not necessarily an endangerment where there's evidence on both sides. And sometimes there's a ton of evidence on one side. And the only evidence we have on the other side is one person's self-serving testimony. And we still can't, aren't going to get that overrule because the court believed him.

Ryan Kalamaya (36m 14s):
And the rationale is that the court of appeals, they're not in the courtroom, observing body language to look at someone in the eye and believe in, you know, I know that there's research on like, especially with sentencing on how reliable people's predictive powers on credibility can really matter with sentencing and recidivism. But the rationale is that the trial core is looking that person in the eye. And when Eric looks at them and says, I am a good dad, that you can't really pick up in a transcript, you can see the words, I'm a good dad, but you can't judge from a core, from a court of appeals, whether or not he is, or is not telling the truth.

Paige Mackey Murray (36m 59s):
Yeah. And, and so when I'm looking at an issues and clients are coming to me and saying, well, I'm really unhappy with how this came out. You know, I have to have a really hard conversation sometimes and say, yeah, I got it. And this is going to be a tough hill to climb, but

Ryan Kalamaya (37m 13s):
Right. And now, and that might be different than a Denovo. So would an example of a Denovo be if Eric and Melanie, if there's a disagreement on a trust that is involved and whether or not it's a property interest, whether or not Eric is the beneficiary of a trust, and that might be appealed on what is the trust document say, or if there is a premarital agreement between Eric and Melanie Wolfe and it pivots on what does the premarital agreement say that court of appeals is going to look at that premarital agreement and decide, take a second, look, and look at it and say, we're going to make a Denovo, or we're going to make our own determination on what this document says.

Paige Mackey Murray (37m 54s):
That's right. Cause contract interpretation is to Nova review on appeal and it, legislative interpretation is Denovo review on appeal. So that's right.

Ryan Kalamaya (38m 2s):
So what are the issues that you referenced some of them, but that people want to pursue, but they are not good cases for appeal from a general matter.

Paige Mackey Murray (38m 13s):
Well, one of the things we see pretty often is we'll have a CFI, a parenting evaluator, giving a report to the court. And that party either loved that CFI, or really hated that CFI. And either wants that report to be included or doesn't want that to lead to the court's conclusions. And so where the courts ruling differs from the CFI, as they might argue that the court abused its discretion or did something wrong because they didn't, they disagreed with the CFI, or it might be the other way around where the court totally adopted everything the CFI said, and the party says, oh, they didn't make an independent decision. They just adopted the CFI. Well, but both of those instances are fine because the court has the discretion to take what they want from CFI or, or not.

Paige Mackey Murray (38m 59s):
And so those are really bad issues on appeal, and I've seen them be appealed, but it doesn't go well,

Ryan Kalamaya (39m 5s):
What about Eric comes in and says, well, the judge believed everything that Melanie said, and she's a liar. I can prove it. And she's just dishonest. And how does that go down?

Paige Mackey Murray (39m 17s):
Yeah. That doesn't go down. Well, either just for the reasons we discussed, I get this a lot. Well, they've completely lied on the stand. Everything they said was a lie. What can I do about that? And it's like, well, that's what the trial is for is to determine those issues and you don't always win those. So that's a tough one. Another one I hear that's kind of along the same basis is the court was completely biased against me, everything, everything I did, they were against me once seen a bias appeal work. It's an issue that you have to have, like he has to be like secretly in business with your ex or he had, you know, there has to be something that's really dramatic conflict of interest to, to argue for bias. I think it's, I think it's really, really difficult on appeal, but a lot of clients feel that way.

Paige Mackey Murray (39m 59s):
They felt like they were treated unfairly from the beginning. And what we have to do is find the unfairness and find a legal reason why that unfairness should be appealed. And then that's how we appeal the case.

Ryan Kalamaya (40m 10s):
Yeah. And I think, you know, an example that as we are recording this, there was an article in the wall street journal about a judge who had, I think he held some Amazon stock and he was presiding over a case involving Amazon. And that might be a circumstance where there's some financial incentive. So if one of the parties, if Eric Wolf is the president of a bank, for example, and that judge has a bank account, I've seen that come up where there can be some issues with that. But the final example that you and I talked about before is unequal distribution of property. And we've got some how to Episodes. I am pretty well known for being fairly aggressive when it comes to disproportionate allocations of property.

Ryan Kalamaya (40m 51s):
So talk to me about what you see with appeals with unequal property allocations

Paige Mackey Murray (40m 58s):
Really appealed on equal property. I mean, the test is not whether it's equal it's whether it's fair and there's so many things that go into that, determining the fairness. And so there's the challenge there. You can just hear the word fairness implies some discretion in the court. So it has to be fair. And then where we see the interesting issues come up is where the question is not, was this allocated unfairly, but the question is, was this even supposed to be allocated in the first place? So is this separate or marital property? What's the value of that property? Was that value calculated in a way that was that corresponds with the evidence that was presented, should there have been tracing? You know, those are issues that get really interesting, but just to say, come in and say, well, she got more than mayor and the court can take things like, say, okay, well I'm going to give him more money.

Paige Mackey Murray (41m 48s):
And then she won't have to pay him maintenance. The court can do that. And that happens. Yeah.

Ryan Kalamaya (41m 53s):
And it happens a lot. Yeah. And I always tell people that fare is like the F word in a divorce. And, you know, people, I cannot tell you how many times Eric Wolf has called me and said, I just want to be fair. And then when we get into it, Melanie and Eric have a very different idea of what it means to be fair. So you mentioned interesting issues while we finalize this discussion on what are the unique issues that you see coming up on appeal that the court of appeals or more importantly, the Colorado Supreme court really looks at and says, I want to deal with this because this is unique, it's cutting edge.

Ryan Kalamaya (42m 37s):
And you and I have kind of been on the sidelines for some of these issues, but what are the unique issues that the are, are particularly compelling for the appeal?

Paige Mackey Murray (42m 47s):
All of them jump out at me that have been in the news lately in Colorado or cases that I've been involved with that I think are really interesting. I was not involved in these cases, but there was a big case that came down the Supreme court on same-sex marriage and common law marriage, which I just think is fascinating. So, I mean, just as a short, just a blip about it is you have a same sex. Couple. They could only get married recently, but they claim they were married for a long time before that. And so they claim their common law married. And the question is, you know, how can you be common law married where common law marriage requires that you put yourself out there as married, but you're not allowed legally just be married and you're actually living what could potentially be a secret lifestyle.

Paige Mackey Murray (43m 31s):
So how do you put yourself out there as a common law married when you're a same-sex couple and you're not allowed to be married. And so the argument was, well, how much property is separate or marital in the divorce? They've only been married for three years, but really that one person says, but no, we were really married for 15 years and the other person goes, no, we weren't. We were married for three years. And so that was the case in the Supreme court. And I think we're going to see a lot more unraveling of those issues around same-sex marriage and common law marriage in Colorado. And then the, the case that you mentioned that you and I were both have both been involved with, has to do with IVF pre embryos. And, and that's actually, I think ever since I got involved in that case, I realized there are a lot of people out there who have done IVF and especially in where I live in Boulder and where this is, could be potentially a real issue for them.

Paige Mackey Murray (44m 22s):
So to back it up a little bit, it has to do with, okay, a couple gets married, they can't conceive. They go get help. They have, in the course of IVF, they get, they create a bunch of pre embryos that they don't use those get frozen, then they get divorced. And then they have an argument over who gets the pre embryos. And sometimes one party says I'm done. I don't want any more kids. I want them destroyed. The other party says, I want to have more kids in the future, or I feel strongly that these already are kids. And so I want to donate them to another couple. I mean, I think you were involved in the case in the Supreme court that had to do with a woman who wanted the preamble for herself and the husband wanted them destroyed.

Paige Mackey Murray (45m 6s):
And then I've been involved in a case that came down after that, where the wife wanted to donate them because she had strong religious beliefs about the nature of the Rios and the husband didn't feel the same way and wants them to destroy it. So these are issues that are up on appeal now, and that are really interesting, I think. And we're going to see some decisions on that here pretty soon. Yeah.

Ryan Kalamaya (45m 26s):
We mentioned before both premarital agreements, which we won't get into, but the rule 16.2 disclosures, because as you know, page, there was this case in our marriage of hunt that really raised a bunch of people's eyes on disclosure. And the basic facts were that the parties agreed at mediation on their own to a particular value for a business. And then the wife went and hired a lawyer who tried to unwind that agreement. And the trial court said, no, you made an agreement. You're stuck with it. And then the court of appeals said, Nope, the husband didn't disclose what he was required to do under rule 16.2. And a lot of us were, you know, just floored because it resulted in uncertainty on agreements that were settled.

Ryan Kalamaya (46m 12s):
People can set all the time. And since then there've been various court of appeals, really kind of getting into that issue. And so I think you'd probably agree that there are threads of law where the court of appeals will really dive in so vaccines or IVF and they'll really get into it and then you'll see them address it and further refine it. And those issues come up. And it's really interesting to just see that judicial process at work.

Paige Mackey Murray (46m 40s):
Yeah. I think those 16.2 issues are really interesting and it's, it's, I'm dealing with them in a couple of cases we're working on now. So I do think you're right, like, you'll see this particular issue. And then you'll see multiple cases just like the IVF that come down afterwards and they start to over the years, carve out some law around that. You know, we have a CA I'm trying, I'm not, I can't talk too much about the cases we have going on now, but I have a case I'll just say it has to do with what does irretrievably broken mean in the context of a legal separation? You're not really divorced, you're just doing a legal separation, but you're still required to assert that your marriage is irretrievably broken. And how does that differ from when you say the same thing and you're actually getting divorced, what is a legal separation in Colorado?

Paige Mackey Murray (47m 27s):
I have a really interesting case right now, dealing with that

Ryan Kalamaya (47m 29s):
Issue. That is interesting. I often will explain to clients that, you know, the legal separation versus divorce is or dissolution of marriage. It is often used to be a lot more common to have a legal separation, and that was on religious grounds. Now there will be occasions where to preserve the health insurance or ability to file taxes. So that is always interesting, that kind of navigate, but Paige, thank you so much for the time. If people, if family law lawyers have an issue, whether it be a post-trial, you know, they want to really ask the judge for, you know, that scoop of ice cream and they want to kind of improve their chances or they have an appeal, where can they find you?

Ryan Kalamaya (48m 11s):
And can you explain where, what the best places to contact you?

Paige Mackey Murray (48m 15s):
My website's probably the best place to start. It's appeals, colorado.com. Hopefully you can remember that. Yeah. And just email me through the site and I'll get it and we can start a conversation for sure. I work out of Boulder, but I take cases all over the state in the days of the pandemic, but seems to be your location is no barrier to communication and getting work done. So

Ryan Kalamaya (48m 39s):
Indeed, and we'll have a link in the show notes, but really again, appreciate the time and the insight page and look forward to having another discussion at some point on some cutting edge issues that you're excited about. But until then, thanks for joining us on Divorce at Altitude.

Paige Mackey Murray (48m 54s):
Well, thank you so much. It was great to be here. Have a great day.

Ryan Kalamaya (48m 57s):
Thanks everyone. This is Ryan again. Thank you for joining us on Divorce at Altitude. If you found our tips, insight or discussion, helpful, please tell a friend about this podcast for show notes, additional resources or links mentioned on today's episode. Visit divorce@altitude.com. Follow us on apple podcasts, Spotify, or wherever you listen to in many of our episodes are also posted on YouTube. You can also find me at Kalamaya dot law or 9 7 8 3 1 5 2 3 6 5 that's K a L a M a Y a.law.