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In re Marriage of James.

2023 COA 51. No. 22CA0232. Magistrate Rules—Authority to Consider Petition for Rehearing—Motion for Reconsideration—Colorado Rules of Appellate Procedure—Running of Time for Filing Notice of Appeal.

June 8, 2023

Husband and wife consented to a magistrate presiding over their permanent orders hearing. The magistrate issued written permanent orders on November 3, 2021, but later that day husband filed a CRCP 59 motion for the magistrate to reconsider the permanent orders. The district court dismissed husband’s motion for lack of jurisdiction, and on February 7, 2022, husband filed his notice of appeal seeking review of the permanent orders. The court of appeals issued an order requiring husband to show cause why the appeal should not be dismissed given that the notice of appeal was filed more than 49 days after the entry of permanent orders.

Husband contended that his notice of appeal was timely because his CRCP 59 motion for reconsideration filed with the magistrate tolled the C.A.R. 4(a)(1) deadline until the district court issued its order of dismissal. Husband relied on C.A.R. 4(a)(3), which provides that the deadline for the filing of a notice of appeal is tolled while a CRCP 59 motion is pending. Pursuant to C.A.R. 4(a)(1), a party has 49 days after entry of a judgment or order in which to file a notice of appeal. But Colo. R. Mag. 5(a) unambiguously provides that magistrates lack authority to consider petitions for rehearing, except for CRCP 60(a) petitions concerning clerical errors, and the rule does not except proceedings where the parties’ consent was necessary. Given Colo. R. Mag. 5(a)’s prohibition on petitions for rehearing in magistrate proceedings, CRCP 59 does not apply here, and C.A.R. 4(a)(3) is inapplicable to the appeal of magistrate orders and judgments. Therefore, a party in a proceeding before a magistrate acting with the parties’ consent may not file a CRCP 59 motion for reconsideration and thereby toll the 49-day deadline for filing a notice of appeal pursuant to C.A.R. 4(a)(3). Accordingly, husband’s appeal was untimely, and the court lacks jurisdiction for appellate review.

The appeal was dismissed.

Official Colorado Court of Appeals proceedings can be found at the Colorado Court of Appeals website.

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