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In re Marriage of Thorburn.

2022 COA 80. No. 21CA1006. Post-Dissolution of Marriage Proceeding—Motion to Restrict Parenting Time—Emergency Motion—Endangerment—Imminent—New Evidence—Jurisdiction.

July 21, 2022

The parties’ dissolution of marriage decree incorporated a parenting plan for their son J.C.T., under which he would live primarily with mother. The parties also agreed to a step-up parenting time schedule for father, beginning with an overnight every week with the goal of equal time in nine months. Mother moved to restrict father’s parenting time under CRS § 14-10-129(1)(b)(I) and (4) alleging that during father’s most recent parenting time, 32-month-old J.C.T. suffered a deep gash on his forehead that required eight stitches. Following an emergency hearing, the magistrate issued an oral ruling and directed mother’s attorney to draft a proposed order. Both parties submitted proposed orders, and the magistrate signed father’s order. Mother filed a motion to set aside the order, asking the magistrate to reconsider the selection of father’s proposed order. Father petitioned for district court review. The district court adopted the magistrate’s decision and denied mother’s motion to the extent that it sought review of that decision but remanded the case to the magistrate with directions to resolve mother’s motion as it related to the form of the written order. Father then filed a notice of appeal, and given the pending appeal, the magistrate on remand declined to entertain mother’s motion to set aside based on lack of jurisdiction.

On appeal, father argued that the district court order should be vacated for lack of subject matter jurisdiction because the parties never consented to the magistrate’s jurisdiction. However, the Colorado Constitution vests district courts with general subject matter jurisdiction in civil cases, and domestic relations cases are civil in nature. Accordingly, the magistrate and district court had subject matter jurisdiction to hear the action, including mother’s motion to restrict parenting time. Further, C.R.M. 6(b)(1)(B) gives magistrates the power to preside over all motions to modify parental responsibilities without the parties’ consent, so regardless of the parties’ consent, the magistrate had authority to preside over mother’s motion.

Mother contended that the district court’s order is not final and appealable because her motion to set aside the magistrate’s approval of father’s proposed order remains pending before the magistrate on remand. A magistrate’s decision that fully resolves an issue or claim is final under C.R.M. 7(a)(3). A party may obtain review of a magistrate’s final decision in a proceeding where consent was not necessary by petitioning the district court for review under C.R.M. 7(a)(5). Once a district court enters its order on review, a party may appeal to the Court of Appeals. Here, father invoked district court review of the magistrate’s decision to continue his supervised parenting time. After adopting the decision, the district court remanded the case to the magistrate to resolve any dispute as to the written order’s form. The district court could not, under C.R.M. 7, remand the issue to the magistrate, who would have lacked authority to act. In addition, mother described her motion as one for reconsideration, which falls under either CRCP 59 or CRCP 60(b). However, a magistrate cannot rule on a motion to reconsider under either of these rules, so mother’s reconsideration motion was effectively denied. Therefore, the district court’s order and the underlying magistrate’s decision are final and appealable, and the Court has jurisdiction to hear the appeal.

On the merits, father contended that the magistrate used an inaccurate definition of “imminent” and thus applied an improper legal standard when deciding mother’s motion to restrict parenting time. Mother argued that even if “imminent” was wrongly defined, the magistrate properly applied the endangerment standard when continuing father’s supervised parenting time. A CRS § 14-10-129(4) motion requires the movant to allege, but not prove, at the emergency hearing that the child is in imminent danger. This statute is a means of triggering a hearing within 14 days and an immediate parenting time restriction pending that hearing. Once a hearing is held on the motion, the court must apply CRS § 14-10-129(1)(b)(I), the “endangerment standard,” which requires a finding that parenting time would endanger the child’s physical health or significantly impair the child’s emotional development, to continue any parenting time restriction. Here, the magistrate deemed mother’s allegations of imminent danger to be sufficiently pleaded, set an emergency hearing within 14 days, and imposed a supervised parenting time requirement pending the hearing. Following the emergency hearing, the magistrate made the necessary findings under § 14-10-129(1)(b)(I), supported by the record, that father endangered J.C.T., and it properly continued father’s parenting time restriction while allowing father to work on safer parenting skills.

Father further argued that the district court erred as a matter of law by not reopening the proceeding under C.R.M. 7(a)(8) based on new evidence—a child welfare referral assessment from the Jefferson County Division of Children, Youth and Families, which concluded that the referral related to father was unfounded. However, the district court here was reviewing a magistrate’s decision restricting parenting time and was not required, as a matter of law, to defer to an independent child welfare referral assessment in conducting that review.

The order was affirmed. The case was remanded for consideration of mother’s request for appellate attorney fees.

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

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