In re Marriage of McSoud

• Decision Date: 09 February 2006
• Docket Number: No. 04CA2682.,04CA2682.
• Citation: 131 P.3d 1208
• Parties: In re the MARRIAGE OF Rebekah G. McSOUD, Appellant, and Joseph McSoud, Appellee.
• Court: Colorado Court of Appeals

131 P.3d 1208

In re the MARRIAGE OF Rebekah G. McSOUD, Appellant, and Joseph McSoud, Appellee.

No. 04CA2682.

Colorado Court of Appeals, Division V.

February 9, 2006.

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Litvak, Litvak, Mehrtens & Epstein, Steven B. Epstein, Denver, Colorado, for Appellant.

McGuane & Hogan, LLP, Kathleen A. Hogan, Denver, Colorado, for Appellee.

WEBB, J.

In this dissolution of marriage proceeding, Rebekah G. McSoud (mother) appeals from the permanent orders allocating parental responsibilities; from the order denying her motion for relief under C.R.C.P. 59 and 60; and from the order denying her C.R.C.P. 97 motion to disqualify the court. We affirm in part, reverse in part, vacate in part, and remand with directions.

Mother and Joseph McSoud (father) are the parents of one child. Mother petitioned for dissolution of the marriage in 2001. Following a hearing on permanent orders in January 2004, the court allocated decisionmaking responsibilities relating to the child's religious upbringing and medical care to father, ordered that all other decisions should be shared by the parties, and increased father's parenting time. In March 2004, mother sought relief under C.R.C.P. 59 and 60, and sought also to disqualify the judge. The trial court declined to recuse and then denied the motion for relief under C.R.C.P. 59 and 60.

I. Deficiencies in the Record

We first address mother's contentions that deficiencies in the record deprive her of meaningful appellate review and that because of such deficiencies the trial court erred or abused its discretion in denying her motion for a new trial under C.R.C.P. 59 and 60. We discern neither error nor abuse of discretion.

In March 2004, shortly after entry of the permanent orders at issue, mother discovered that a transcript of a portion of the January 2004 hearing was not available because the recording equipment had malfunctioned. Instead of attempting to reconstruct the record, she moved for a new trial, alleging that it would be "impossible to reconstruct the proceedings from recollection with any degree of accuracy or to the satisfaction of both [mother] and [father]." The court denied the motion, noting that the unavailability of a transcript is to be remedied under C.A.R. 10(c).

A. C.A.R. 10

We first consider and reject mother's contention that because a complete transcript cannot be reconstructed from recollection with any degree of accuracy or to the parties' satisfaction, the procedure set forth in C.A.R. 10(c) is inadequate to protect her due process right to a meaningful appellate review.

If a transcript is unavailable, the appellant may prepare a statement of the proceedings from the best available means, including recollection. The appellee may serve objections or propose amendments to the statement within ten days after service. The statement and any objections or proposed amendments shall then be submitted to the trial court for settlement and approval and, as settled and approved, shall be included in the record on appeal. C.A.R. 10(c). If any difference arises as to whether the record accurately discloses what occurred in the trial court, the difference shall be submitted to and settled by that court and the record made to conform to the truth. C.A.R. 10(e).

The party prosecuting an appeal is obligated to take all steps necessary under the appellate rules to obtain the necessary record for review. Reconstruction may not be an appropriate remedy for a missing transcript if testimony is in dispute and the exact language used is crucial. People v. Jackson, 98 P.3d 940 (Colo.App.2004).

But if a party fails to attempt to reconstruct the record as required by C.A.R. 10(c) and (e), that party may not thereafter complain that the record is inadequate. Halliburton v. Pub. Serv. Co., 804 P.2d 213 (Colo.App.1990). Federal courts have interpreted the analogous federal rule similarly. See, e.g., United States v. Burns, 104 F.3d 529 (2d Cir.1997); In re Ashley, 903 F.2d 599 (9th Cir.1990).

Here, because mother has made no attempt to comply with C.A.R. 10(c) and (e), we are unable to evaluate her claim that accurately reconstructing the record would be impossible. Accordingly, we conclude that she cannot be heard to say the record is inadequate to protect her right to a meaningful appellate review.

B. C.R.C.P. 59

Mother next contends the lack of a transcript constitutes both an "irregularity in the proceedings" and an "accident or surprise" to her, and thus the trial court erred in failing to order a new trial under C.R.C.P. 59(d)(1) and (3). We disagree.

Within fifteen days of entry of judgment as provided in C.R.C.P. 58 or such greater time as the court may allow, a party may move for post-trial relief under C.R.C.P. 59. C.R.C.P. 59(a). The court may in its discretion extend the time period for filing such a motion, but the extension must be sought before the time period for filing the motion under C.R.C.P. 59 has expired. Austin v. Coll./Univ. Ins. Co., 30 Colo.App. 502, 495 P.2d 1162 (1972).

Failure to file the motion within the time allowed by C.R.C.P. 59(a), or within the time allowed by the court in response to a timely filed motion for extension of time, deprives the court of jurisdiction to act under C.R.C.P. 59. People v. Albaugh, 949 P.2d 115 (Colo.App.1997).

Here, the permanent orders at issue were entered on February 12, 2004. On March 30, mother filed a motion for a new trial under C.R.C.P. 59 and for relief under C.R.C.P. 60. Mother also requested an extension of time for seeking C.R.C.P. 59 relief. The trial court denied mother's motion for an extension of time as untimely, and then denied the C.R.C.P. 59 motion as untimely.

On appeal, mother does not argue that the trial court erred in rejecting her C.R.C.P. 59 motion as untimely. Thus, we conclude that she has abandoned the timeliness issue. See Buckhannon v. U.S. W. Communications Inc., 928 P.2d 1331 (Colo.App.1996).

C. C.R.C.P. 60(a)

Mother next contends the lack of a complete transcript constitutes a "clerical error" that may be corrected under C.R.C.P. 60(a), and thus the trial court abused its discretion in failing to order a new trial for this purpose. We disagree.

Clerical mistakes in judgments, orders, or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party and after such notice, if any, as the court orders. C.R.C.P. 60(a).

Correction of clerical errors under C.R.C.P. 60(a) is a matter within the discretion of the trial court. McNeill v. Allen, 35 Colo.App. 317, 534 P.2d 813 (1975). A trial court abuses its discretion when it acts in a manifestly arbitrary, unfair, or unreasonable manner. In re Marriage of Page, 70 P.3d 579 (Colo.App.2003).

In other jurisdictions, courts have allowed errors in the record to be corrected if the party seeking correction can show that, as a result of clerical error, the record does not accurately reflect particular proceedings. See, e.g., Crye v. Edwards, 178 Ariz. 327, 873 P.2d 665 (Ariz.Ct.App.1993)(where the record did not show that a critical document had been filed on the date claimed, but evidence supported the party's claim that the document had been submitted to the clerk on that date, court could correct the error as clerical).

Here, mother did not seek to correct the record to reflect the proceedings at the January 2004 hearing. Rather, she requested a new hearing. The trial court denied the motion on the basis that equipment failure resulting in the lack of a complete transcript was not a clerical error as contemplated by C.R.C.P. 60(a). The court again noted that unavailability of a transcript could be remedied under C.A.R. 10(c).

Mother has provided us with no authority supporting her argument that an incomplete transcript can be "corrected" in this manner, and we are aware of none. Hence, we conclude that the court did not abuse its discretion in denying mother's request for relief pursuant to C.R.C.P. 60(a).

D. C.R.C.P. 60(b)

Mother next contends the trial court erred in finding that she was not seeking relief under C.R.C.P. 60(b). We do not agree.

In her "motion for new trial pursuant to C.R.C.P. Rules 59 and/or 60," mother asserted that a new trial should be available to her pursuant to C.R.C.P. 60(b)(5). Father responded that a C.R.C.P. 60 motion is not a substitute for an appeal. In her reply, mother stated that she "is not seeking relief under Rule 60(b)."

We conclude that, by stating she did not intend to seek relief under C.R.C.P. 60(b), mother abandoned this claim.

E. Law of the Case

Mother further contends the trial court's denial of her new trial motion violated the law of the case because the court had established a procedure for resolving a missing transcript. Again, we disagree.

The law of the case doctrine is a discretionary rule that generally requires prior relevant rulings made in the same case to be followed. It applies to decisions of law, rather than to the resolution of factual questions, and discourages reconsideration only of the ruling itself, not of a court's preliminary opinion on questions of fact or law related to the ruling. DeForrest v. City of Cherry Hills Village, 990 P.2d 1139 (Colo.App.1999).

Here, in July 2004, before ruling on mother's motion for a new trial, the court learned that the record of the April 20, 2004, hearing on financial issues also could not be transcribed. In an "order regarding perfection of the record of the April 20, 2004 proceedings," the court offered the parties the option of recalling the witnesses who had testified that day. Nearly four months later, the court rejected mother's request for a new trial on the parental responsibilities issues, in which she had argued that she should have been afforded a similar opportunity to recall witnesses with respect to that hearing.

Mother now asserts that in offering ...