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March 5, 2026 Get Citation Alerts Download PDF Add Note

Marriage of Kiphardt

Colorado Court of Appeals

• Citations: None known
• Docket Number: 25CA0424

• Precedential Status: Non-Precedential

• Opinion

• Authorities (2)

• Cited By (0)

• Summaries (0)

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Combined Opinion

25CA0424 Marriage of Kiphardt 03-05-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 25CA0424
City and County of Denver District Court No. 18DR30792
Honorable Adam J. Espinosa, Judge

In re the Marriage of

Phillip Kiphardt,

Appellee,

and

Margaret Martin Kiphardt,

Appellant.

ORDER AFFIRMED

Division VI
Opinion by JUDGE YUN
Grove and Schock, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced March 5, 2026

The Demkowicz Law Firm, LLC, Danielle L. Demkowicz, Centennial, Colorado,
for Appellee

Cox Baker Page & Bailey, LLC, James S. Bailey, Alexandra K. Wetzler, Lone
Tree, Colorado; Sherr Puttmann Akins Lamb PC, Tanya L. Akins, Denver,
Colorado, for Appellant
¶1 In this post-dissolution of marriage proceeding between

Margaret Martin Kiphardt (mother) and Phillip Kiphardt (father),

mother appeals the district court’s order adopting a magistrate’s

ruling that modified parenting time. Mother contends the district

court erred by adopting the magistrate’s decision because (1) the

magistrate applied the incorrect legal standard, and (2) the record

does not support the magistrate’s finding that the children were

endangered in mother’s care. We affirm the district court’s order.

I. Background

¶2 The parties married in 2015 and separated in 2018. They

have two children together: B.K., born in 2015, and C.K., born in

1. In June 2020, nunc pro tunc to May 2019, the district court

entered permanent orders allocating parental responsibilities. The

court found that father had “serious anger management issues” and

had perpetrated domestic abuse during the parties’ relationship. It

also found that mother had “an issue with alcohol that she’s

probably going to be struggling with for the rest of her life.” But it

found that both parties had a good relationship with the children

and that neither father’s anger nor mother’s struggles with alcohol

were “detrimental to the kids.” The court awarded mother primary

1
residential care and sole decision-making responsibility for the

children; father received parenting time during certain weekends,

holidays, and vacations. The court permitted mother and the

children to move to Tennessee, while father remained in Colorado.

¶3 In November 2021, father filed a motion to modify parenting

time, claiming that mother was “drinking heavily” and endangering

the children. The magistrate appointed a child and family

investigator (CFI), who issued an initial report in September 2022

finding that the children were doing well in mother’s care. The CFI

explained,

There is credible evidence that [m]other did
have a drinking problem, but there is also
credible evidence that she no longer drinks.
Her fiancé . . . , with whom she lives, stated
that [m]other abstains from alcohol. [The
fiancé] himself has been sober for three years
and is employed as a counselor at a drug and
alcohol rehab center. Mother’s references
state that [to] their knowledge, [m]other does
not have a problem with alcohol. The children
state that [m]other does not drink. Mother has
been getting the children to school on time,
and according to their teachers, they appear
well-rested, healthy, clean, and appropriately
dressed.

2
Accordingly, the CFI recommended that the children continue to

reside primarily with mother in Tennessee and spend their summer

vacations with father in Colorado.

¶4 But six months later, in March 2023, mother relapsed and

entered inpatient treatment for alcohol use. The parties agreed to

allow the CFI to conduct a supplemental investigation. Two days

after her discharge from treatment in May 2023, mother relapsed

again. She notified father of her relapse, and the parties agreed

that father would take the children that summer while mother

focused on her recovery. Following a second round of treatment,

mother voluntarily signed up for sobriety monitoring through a

service called Soberlink. Subsequently, in July 2023, the

magistrate ordered that mother continue to take Soberlink tests

four times per day. On October 2, 2023, mother also voluntarily

took a hair follicle test, which can determine if a person has

consumed alcohol within the last ninety days. All of mother’s tests

were negative for alcohol.

¶5 On October 16, 2023, the CFI submitted her supplemental

report, noting that the parents “are both amazing . . . in the sense

that they absolutely adore their children and want what is best for

3
them” and that “[t]he children adore both parents.” She also

observed that, “[w]hen not under the influence of alcohol, [mother]

is a wonderful, fun, and nurturing parent.” But the CFI also found

that “[c]ircumstances [had] changed” since she issued her initial

report in September 2022. Specifically, during her supplemental

investigation, she discovered that mother attended residential

treatment for alcohol use disorder in 2019, 2021, and 2022, in

addition to her most recent treatment in 2023. Mother admitted to

drinking up to four bottles of wine daily before seeking treatment.

Due to mother’s ongoing struggles with alcohol use, the CFI found

that the children were endangered in her care, and she

recommended modifying parenting time so that the children would

reside with father during the school year and with mother during

summers and holidays. The CFI summarized the basis for her

recommendation as follows:

The issue is that [mother] has yet to prove
long-term sobriety. Her excessive drinking has
endangered the boys. They said that their
mom was sick a lot and she slept a lot. They
are only five and seven years old and need
trustworthy care and supervision. . . . The
children have suffered emotional distress.
[B.K.] stated that he does not like even the
word “alcohol,” he knows what it is, and it

4
makes him think bad things. He said that he
wishes that drink was never made, and he said
that his mom told him that she is allergic to
alcohol. Five-year-old [C.K.] was able to
articulate that it was disrespectful for their
mom to sit in bed and keep drinking alcohol
when they asked her not to do so.

....

The biggest factors contributing to the
recommendations are that [mother] has been
to inpatient treatment almost every year since
2019, and she relapsed again two days after
getting out of her most recent thirty-day
treatment. Furthermore, [father] was not
informed for ten days that she was in
treatment this last time around, and the
children had more of an acute awareness of
her drinking than originally thought. . . .
[Mother] is a lovely person and loving mother
when sober. She is convincing and can
articulate well that she knows what she needs
to do to remain sober. The CFI believes that
she does know what she needs to do, but her
issues run deep and she may need more
intense treatment. [Mother] may need more
time to work on herself and to fully delve into
the trauma that keeps leading her to drink. In
the meantime, the children are at extreme risk
of further endangerment of their physical
health and significant impairment of their
emotional development.

The CFI does not take these recommendations
lightly, understanding the potential
implications for the boys, including the
necessity of switching schools and the
emotional impact of being separated from their

5
mother. The CFI believes this is outweighed by
the advantage to the children of residing
primarily with the parent who is better able to
keep them physically and emotionally safe.

¶6 In February 2024, the magistrate held a hearing on father’s

motion to modify parenting time. During the proceeding, the CFI

testified that mother had not been completely transparent about

her alcohol consumption during the initial investigation, such that

the CFI was not aware of mother’s multiple residential treatments

until the second investigation. She further testified that mother

reported “drink[ing] in excess” for “up to several months before

going into rehab,” which the CFI understood to mean “possibly up

to three or four months.” Accordingly, she testified that

the longest amount of time then that I guess
[m]other could have been drinking in excess,
chronically could have been three months,
then she went to rehab for a month. So that
means every year for the four years that the
boys have been in the primary care of their
mother, there could have been four months
out of the year, or one third of the entire year
where their mother was not mentally and
physically, emotionally present for them. That
is significant.

¶7 Regarding her interviews with the children, the CFI testified

that C.K. “did say he knows [mother] drinks, and she gets really,

6
really sleepy and quiet after she drinks.” She also testified that

B.K., the older child, “got really visibly distraught when [she] just

brought the word alcohol up when talking with him,” leaving her

with the impression that “he didn’t want to say anything about his

mom’s drinking.”

¶8 After the hearing, the magistrate designated father as the

children’s primary residential parent. The magistrate noted that,

under section 14-10-129(2)(b), C.R.S. 2025, she was required to

retain the parenting time schedule established
in the prior decree unless . . . [t]he child[ren]’s
present environment endangers the child[ren]’s
physical health or significantly impairs the
child[ren]’s emotional development and the
harm likely to be caused by a change of
environment is outweighed by the advantage of
a change to the child[ren].

The magistrate then found that, “for the reasons cited in the CFI

report, the children are emotionally and physically endangered in

[m]other’s care.” Specifically, she found that mother had “received

treatment for alcohol use at least four times” since permanent

orders; that mother had “been secretive about her alcohol

consumption”; that the children did “not have sufficient support . . .

to keep them safe from neglect” when mother was drinking; and,

7
“most importantly, that the very young children are aware of her

alcohol use,” with the older child “feeling pressure to cover for

[her].” Although the magistrate considered evidence that “[m]other

is a lovely person and loving [m]other” and that a “change in the

majority time parent” could be difficult for the children, especially

since father had never been the “school year ‘homework and chores’

parent,” she concluded that the children’s need for “a stable

environment in which a parent is alert and able to parent”

outweighed all other concerns.

¶9 Mother petitioned the district court to review the ruling,

arguing that the magistrate misapplied the law and made findings

unsupported by the record. The court rejected mother’s arguments

and adopted the magistrate’s ruling.

¶ 10 Mother now appeals.

II. Analysis

¶ 11 Mother contends that the magistrate failed to conduct the

required three-step analysis for parenting time modifications that

change the children’s primary residential parent. She also asserts

that the evidence was insufficient to satisfy that test. We disagree.

8
A. Applicable Law and Standard of Review

¶ 12 Under section 14-10-129(2), the court cannot substantially

modify parenting time and change the child’s primary residential

parent unless it finds that a change has occurred in the child’s or

primary residential parent’s circumstances and that the

modification is necessary to serve the child’s best interests.

Moreover, the court must retain the prior parenting time schedule

unless, as relevant here, (1) the child’s present environment

endangers the child’s physical health or significantly impairs the

child’s emotional development, and (2) the harm likely to be caused

by a change of environment is outweighed by the advantage of a

change to the child. § 14-10-129(2)(d).

¶ 13 Thus, the court must apply “a three-step analytical process.”

In re Marriage of Schlundt, 2021 COA 58, ¶ 35 (citation omitted).

First, it must start from a presumption that the prior order shall be

retained. Id. Second, it must find that “the child is endangered by

the status quo and that modifying the existing order will create

advantages that outweigh any harm caused by the modification.”

Id. Third, it must find that the proposed modification is in the

child’s best interests. Id.

9
¶ 14 Our review of a district court’s order adopting a magistrate’s

decision is effectively a second layer of appellate review. In re

Parental Responsibilities Concerning S.Z.S., 2022 COA 105, ¶ 11.

We review de novo whether the magistrate and the court applied the

correct legal standard. Id. We also review de novo their

conclusions of law, but we accept the magistrate’s factual findings

unless they are clearly erroneous. Id. A factual finding is clearly

erroneous when it has no record support. Id.

¶ 15 While express findings are generally preferable, they are not

required. Id. at ¶ 23. As long as the magistrate’s findings

demonstrate the application of the statute and are sufficiently

explicit to allow us to review those determinations, implicit findings

suffice. Id.; see also In re Marriage of Rodrick, 176 P.3d 806,

813-14 (Colo. App. 2007) (affirming a court’s parental

responsibilities decision when its findings sufficiently showed that it

considered the statutory criteria, even though it did not make

specific findings on each factor).

B. Presumption

¶ 16 Mother argues that the magistrate failed to apply the

presumption in favor of retaining the prior parenting time order.

10
¶ 17 We acknowledge that the magistrate did not explicitly

reference the presumption. But she cited section 14-10-129(2)(d)

and explicitly recognized that the prior parenting time order could

be modified only if the children were endangered by their current

environment. And she expressly found that this standard was

satisfied. In doing so, the magistrate effectively applied the

presumption, even if she did not refer to it as such. See S.Z.S., ¶ 21

(recognizing that a magistrate’s findings may be implicit); cf.

Schlundt, ¶ 36 (holding that the court failed to apply the

presumption where it did not make findings necessary to overcome

it). We therefore see no error at the first step of the analysis.

C. Endangerment Finding

¶ 18 Mother argues that the record does not support the

magistrate’s determination that the children were endangered in

her care. Specifically, she challenges “five key findings used by the

magistrate in reaching her ultimate conclusion that the children

were endangered.” We address each contention in turn.

1. Multiple Relapses

¶ 19 Mother concedes that her pattern of treatments and relapses

was “an appropriate consideration for the [magistrate].” But she

11
argues that the magistrate placed too much weight on this history,

especially considering the undisputed evidence that she was sober

at the time of the hearing.

¶ 20 However, the weight of the evidence, its probative value, and

the inferences and conclusions to be drawn from it are within the

trial court’s discretion. People in Interest of A.J.L., 243 P.3d 244,

249-50 (Colo. 2010). Thus, we may not reweigh the evidence and

substitute our judgment for that of the magistrate. Id.

1. History of Secrecy

¶ 21 Mother argues that there was no evidence to support the

magistrate’s finding that she had a “history of secrecy about alcohol

use.” But the CFI testified that mother had been drinking “heavily

and secretly up to several months before she goes to rehab” and

that mother was not “completely forthcoming” about her alcohol use

during the initial investigation. The CFI further testified that it was

her impression, based on her interviews with the children, that the

older child had “gotten the message that he has to keep his

[m]other’s drinking secret.” When asked what her concerns would

be if the magistrate did not adopt her recommendation, she

responded that she would be “concerned that [mother] would drink

12
heavily, and also secretly, while caring for the children,” and that

the children would feel pressure to “keep it secret.”

¶ 22 While mother admits that she did not tell father right away

about her relapse in May 2023, she argues that the magistrate

erred by finding that she waited ten days when the CFI testified that

it was “maybe five or six days.” But the CFI also testified that

mother initially told father that she was in “intensive trauma

treatment,” not alcohol treatment. Thus, while the magistrate may

have been mistaken about the exact length of the delay, the record

nonetheless supports the finding that mother was not immediately

forthcoming with father regarding her relapse and treatment.

¶ 23 Finally, the magistrate found that there was a history of

secrecy not just by mother but surrounding her. Specifically, the

magistrate noted that,

In the 2022 [CFI] report, [m]other’s parents . . .
as well as her neighbor [and her fiancé’s
brother] all reported that [m]other did not have
a problem with alcohol and [her fiancé] did not
report any concerns, even though at least
[m]other’s family was likely aware that she had
been in treatment for drinking. This narrative
continues now — everyone says [m]other is
fine. But the Court finds that these close
friends and family would be likely to sugar
coat any troubles and would not be honest

13
reporters when the children were endangered
in [m]other’s care.

¶ 24 Mother points to evidence that could have supported a

contrary finding, including testimony by an expert in psychology,

addiction, and mental health that she was cooperative, engaging,

non-defensive, and “very forthcoming about her history of alcohol

use.” But it is the magistrate’s role, not ours, to resolve questions

of conflicting evidence. Id. Because there is record support for the

findings, the magistrate’s resolution of conflicting evidence is

binding on review. In re Parental Responsibilities Concerning B.R.D.,

2012 COA 63, ¶ 15.

1. Children’s Awareness

¶ 25 Mother argues that there was no evidence to support the

magistrate’s finding that the children were aware of and distressed

by her alcohol use. Specifically, she argues that the magistrate

erred by admitting, over a hearsay objection, testimony by father’s

sister that C.K. told her he found mother’s drinking upsetting and

disrespectful.

¶ 26 But even assuming, without deciding, that the magistrate

erred by admitting C.K.’s statement as an excited utterance, and

14
setting that statement aside, there was other testimony about the

children’s knowledge of, and discomfort with, mother’s alcohol use.

Specifically, the CFI testified about her interviews with the children

and emphasized the “emotionally distraught” way B.K. said that he

hated alcohol and “wished [it] was never invented.” In describing

B.K.’s response to her mention of alcohol, she testified that she had

“rarely seen a child get so distraught like that after just hearing one

word.” She also testified that C.K. “did say he knows [mother]

drinks.” And she noted in her supplemental report that C.K. “is

aware of the concept of alcohol and notes that his dad consumes it,

but not much. His mom’s behavior changes after drinking, causing

her to become sleepy and quiet.”

¶ 27 Thus, even without considering father’s sister’s testimony,

there was evidence in the record to support the magistrate’s finding

that the children were aware of mother’s drinking and that at least

the older child was upset by it. See S.Z.S., ¶ 11 (A factual finding is

clearly erroneous when it has no record support.).

1. Neglect

¶ 28 Mother argues that there was no evidence to support the

magistrate’s finding that the children were neglected while in her

15
care. Specifically, she argues that, although she “had self-reported

that she drank anywhere from one or two weeks to up to several

months during a relapse,” the magistrate made an overly harsh

inference by determining that the children were consequently

neglected for months at a time.

¶ 29 We acknowledge that there was conflicting evidence on this

point. The CFI’s report noted that both children were well adjusted

and thriving socially and academically, with the older child earning

excellent grades and the younger one “always clean, well-rested,

healthy, and appropriately dressed.” The CFI also reported that

mother’s fiancé and several babysitters cared for the children while

mother was in residential treatment, with the younger child

recalling that “some really nice babysitters” looked after him.

¶ 30 But mother herself admitted that her relapses involved periods

of weeks to months of heavy drinking before going to rehab, and the

CFI testified that these periods of drinking were secret. Given the

CFI’s testimony that mother had a history of “covertly drinking

excessively and chronically [when] nobody knew,” it was reasonable

for the magistrate to infer that mother could not be a vigilant and

engaged parent during those periods.

16
¶ 31 “[W]e may not reweigh the magistrate’s resolution of the

conflicts in the evidence.” Id. at ¶ 28. Accordingly, we conclude

that the magistrate’s finding that the children were neglected in

mother’s care was supported by the record.

1. Ability to Comply with Testing

¶ 32 Mother argues that there was no evidence to support the

magistrate’s finding that she was “unable to comply with Soberlink

testing.” Again, the evidence on this point was conflicting.

Although mother completed 1,067 compliant tests between May

2023 and February 2024, the record also shows five noncompliant

tests during that period.1 And the magistrate found, and mother

does not dispute, that she “stopped providing Soberlink testing

results at all in February 2024.” But more importantly, the

magistrate adopted the CFI’s finding that mother has “yet to prove

long-term sobriety” in light of her five prior relapses and “may need

more time to work on herself and to fully delve into the trauma that

keeps leading her to drink.” Because we are bound by the

1 The noncompliant tests were negative for alcohol, but Soberlink

was unable to recognize mother’s identity. In each case, Soberlink
registered multiple compliant tests later the same day.

17
magistrate’s resolution of conflicting evidence, we may not disturb

the magistrate’s finding on this point.

¶ 33 Overall, while there was evidence pointing in both directions,

including evidence that the children were thriving in mother’s care,

we conclude that there is sufficient evidence in the record to

support the magistrate’s endangerment finding.

D. Balancing of Harm

¶ 34 Finally, mother argues that the magistrate “did not address

whether the harm in changing the parenting time and the

[children’s] primary residence would be outweighed by the

advantages to the [children].”

¶ 35 On the contrary, the magistrate explicitly acknowledged that

changing the primary residential parent would present “adversity”

for the children and “could . . . have a large impact on” them,

particularly because “[f]ather has primarily been the ‘fun summer’

parent and not the school year ‘homework and chores’ parent.”

“Exposure to more adverse childhood experiences,” the magistrate

noted, “affects the well-being and health of . . . children throughout

their lifetimes.” The magistrate also acknowledged that “[t]here is

ample evidence that [f]ather was a perpetrator of domestic violence

18
in 2018,” although there had been no reported incidents since that

time.

¶ 36 Nevertheless, the magistrate concluded that the “children need

a stable environment in which a parent is alert and able to parent,

and the children need the freedom to be safe and secure.”

Additionally, the magistrate explicitly incorporated the CFI’s

findings, including the finding that, while switching schools and

being separated from their mother would have negative effects,

those effects were “outweighed by the advantage to the children of

residing primarily with the parent who is better able to keep them

physically and emotionally safe.”

¶ 37 Taken together, these findings are sufficient to show that the

magistrate considered whether “the harm likely to be caused by a

change of environment is outweighed by the advantage of a change

to the child[ren].” § 14-10-129(2)(d).

III. Disposition

¶ 38 The district court’s order adopting the magistrate’s ruling is

affirmed.

JUDGE GROVE and JUDGE SCHOCK concur.

19