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In re the Marriage of Vega.

2021 COA 99. No. 19CA2343.  Dissolution of Marriage—Response—Default Hearing—Magistrate—Consent.

July 22, 2021

Wife served husband personally with her petition for dissolution of marriage and summons. Husband did not file a response, but he appeared at the initial status conference. Nevertheless, the magistrate found husband in default because he did not file a response. Husband also appeared at the default permanent orders hearing, but the magistrate would not allow him to participate and granted wife’s requested form of permanent orders. After the magistrate entered the written permanent orders, husband moved for post-trial relief. The district court denied the motion.

Husband argued on appeal that the magistrate lacked jurisdiction to enter permanent orders because C.R.M. 6(b)(2) required the parties’ consent to the magistrate presiding over their contested hearing and no consent was given. To resolve this issue, the Court of Appeals first considered whether the magistrate erred by finding husband in default. Because the plain language of CRS § 14-10-107(4)(a) permits, but does not require, the filing of a response to a petition for dissolution of marriage, and because husband appeared at the initial status conference as CRCP 16.2(c)(1)(B) requires, the magistrate erred by entering a default against him. Accordingly, husband was not in default, the permanent orders hearing was contested, and the parties’ consent for the magistrate to preside was required by C.R.M. 6(b)(2). Because the parties did not give the required consent, the magistrate lacked jurisdiction to preside over and enter permanent orders in this case.

The entry of default against husband and the default permanent orders judgment were reversed and the case was remanded for further proceedings.

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

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