IN RE APH

• Decision Date: 12 August 2004
• Docket Number: No. 03CA2027.,03CA2027.
• Citation: 98 P.3d 955
• Parties: In the Interest of A.P.H., f/k/a Unborn Child H., a minor, Upon the Petition of S.B., Petitioner-Appellee, and Concerning L.H., Respondent-Appellant.
• Court: Colorado Court of Appeals

98 P.3d 955

In the Interest of A.P.H., f/k/a Unborn Child H., a minor,

Upon the Petition of S.B., Petitioner-Appellee, and

Concerning L.H., Respondent-Appellant.

No. 03CA2027.

Colorado Court of Appeals, Div. I.

August 12, 2004.

Colorado Legal Services, Theresa L. Kilgore, Colorado Springs, Colorado, for Petitioner-Appellee.

Daniel C. Kender, Pueblo, Colorado, for Respondent-Appellant.

Opinion by Judge MARQUEZ.

L.H. (mother) appeals from the district court's order reviewing the magistrate's order modifying the allocation of parental responsibilities to S.B. (father). We reverse and remand for a new hearing on father's motion for modification.

Father filed a petition for determination of paternity in December 1997, and in March 1999 the court approved the parties' stipulation concerning paternity, custody, parenting time, and child support. The parties agreed to share joint custody of the child and designated mother as the primary residential custodian. The magistrate subsequently entered various orders concerning parenting time, including visitation with the child's paternal grandmother.

In May 2002, father filed a motion to modify the allocation of parental responsibilities. After conducting an expedited hearing at which mother appeared pro se, the magistrate in July 2002 ordered the parties to continue to share joint decision-making, but changed the child's primary residence to father.

In November 2002, mother, through counsel, filed a motion to set aside the July 2002 order pursuant to C.R.C.P. 60(b)(3), arguing that the magistrate's order was void for lack of subject matter jurisdiction because she did not affirmatively consent to the 2002 proceedings before the magistrate. In denying mother's motion, the magistrate found that mother waived the initial advisement of her right to an initial court hearing under § 19-1-108, C.R.S.2003, when she requested approval of the stipulation for paternity, custody, parenting time, and child support in lieu of appearing for an initial advisement at a pretrial proceeding under § 19-4-111, C.R.S.2003. The magistrate also concluded that the March 1999 order approving the parties' stipulation was in the nature of a noncontested permanent order and that the subsequent proceedings were post-judgment proceedings, all of which could be heard by the magistrate without consent.

The magistrate found, however, that at the conclusion of the 2002 hearing, mother was not advised of her right to seek district court review of the magistrate's order as required by § 19-1-108(4)(b), C.R.S.2003. Therefore, the magistrate concluded that mother's motion to set aside the modification order was timely filed, and the magistrate ordered a transcript and briefing for review of the July 2002 order by the district court judge.

On review, the district court also found that mother affirmatively consented to the hearings before the magistrate by filing the stipulation and agreeing to the informal pretrial proceedings. The court further found that mother's active participation in the proceedings for five years without objection to the magistrate's jurisdiction manifested her affirmative consent on the record under C.R.M. 5(a), which could not be revoked. Finally, the court concluded that based upon § 19-4-119, C.R.S.2003, the magistrate had continuing jurisdiction to modify the orders.

Mother contends that the magistrate did not have subject matter jurisdiction to issue the order modifying the allocation of parental responsibilities because the magistrate did not advise her of her right to a hearing before a judge or secure a waiver of that right. While we disagree that the failure to advise mother and to secure a waiver divested the magistrate of subject matter jurisdiction, we conclude that it constitutes reversible error.

The Colorado Rules for Magistrates apply to all proceedings conducted by magistrates in district courts, including juvenile matters. C.R.M. 2. Pursuant to C.R.M. 6(d), a juvenile court magistrate has the powers and is subject to the limitations set forth in article 1 of the Colorado Children's Code (Code), § 19-1-101, et seq., C.R.S.2003, and it must conduct proceedings in accordance with the Code. C.R.M. 6(d). Section 19-1-108 governs the duties and powers of magistrates in proceedings under the Code.

Thus, as an initial matter, we conclude that the magistrate and the district court erred in relying on the rules for magistrates and the former statute governing family law magistrates, rather than on § 19-1-108, in determining that the magistrate proceeded properly.

Subject matter jurisdiction concerns the court's authority to deal with the class of cases in which it renders judgment. Subject matter jurisdiction exists when the sovereign from which a court derives authority empowers it to entertain a certain class of cases. Horton v. Suthers, 43 P.3d 611 (Colo.2002).

Pursuant to the Code, the juvenile court, or district court, has exclusive original jurisdiction in proceedings to determine parentage of a child and to make orders concerning support, allocation of parental responsibilities, parenting time, and any other matter in the best interests of the child. Sections 19-1-103(70), 19-1-104(1)(f), 19-4-116(3)(a), C.R.S.2003. A magistrate may hear any case or matter under the juvenile court's jurisdiction, except where a jury trial has been requested pursuant to § 19-2-107, C.R.S.2003, or where transfer hearings are held pursuant to § 19-2-518, C.R.S.2003. Section 19-1-108(1), C.R.S.2003; C.S. v. People, 83 P.3d 627 (Colo.2004). Thus, subject matter jurisdiction for proceedings to determine parentage and related issues is conferred on the magistrate by § 19-1-108(1).

As relevant here, § 19-1-108(3)(a), C.R.S.2003, requires the magistrate initially to advise the parties of their...