IN RE MARRIAGE OF ROOSA, No. 02CA2533.

• Decision Date: 11 March 2004
• Docket Number: No. 02CA2533.
• Citation: 89 P.3d 524
• Parties: In re the MARRIAGE OF Kelly L. ROOSA, n/k/a Kelly L. Bryan, Appellee, and Steven E. Roosa, Appellant.
• Court: Colorado Court of Appeals

89 P.3d 524

In re the MARRIAGE OF Kelly L. ROOSA, n/k/a Kelly L. Bryan, Appellee, and

Steven E. Roosa, Appellant.

No. 02CA2533.

Colorado Court of Appeals, Div. IV.

March 11, 2004.

Heckenbach Carlton, LLP, David W. Heckenbach, Lone Tree, Colorado, for Appellee.

Allen C. Christensen, Attorney at Law, P.C., Allen C. Christensen, Edwards, Colorado, for Appellant.

Opinion by Judge LOEB.

In this post-dissolution of marriage case, this court ordered Steven E. Roosa (father) to show cause why his appeal should not be dismissed for failure to obtain district court review of a magistrate's order and for lack of a final, appealable order. We have considered the record and the parties' briefs on the jurisdictional issues and now discharge the order to show cause in part, make it absolute in part, dismiss the appeal, and remand for further proceedings.

The original 1998 decree provided for the parties' joint legal custody of their three children, with Kelly L. Bryan (mother) as the primary residential custodian, and father's payment of child support. The following year, the parties stipulated to, and the court ordered, split residential custody and a concomitant reduction in child support, with the two sons living with father in Colorado and the daughter living with mother in Florida. The provision for joint legal custody was not modified.

As to the property division, the original decree provided that the marital residence in Colorado was to be listed and sold, with the proceeds evenly divided after payment of certain expenses. However, the court subsequently approved the parties' stipulation allowing father to retain the residence in exchange for payment to mother.

In 2001, mother filed the two motions at issue in this appeal. First, she requested entry of an order, pursuant to § 14-10-129, C.R.S.2003, to modify the primary residence of the children, to reflect that the two sons were again living with her by agreement of the parties, a corresponding modification of child support, and enforcement of the provisions of the decree requiring that father pay for certain insurance coverage. Second, she filed a motion for enforcement and clarification of the modified order regarding payment of her share of the equity in the marital residence.

Prior to hearing these two motions, the magistrate informed the parties that a hearing before a magistrate "for changing ... the primary residence requires a consent by the parties." The magistrate requested, and the parties filed, written consents to having the magistrate hear the issue of the children's change of residence. The magistrate then conducted a hearing and issued two orders from which father now appeals.

In a July 2002 order, the magistrate ordered that mother was to receive the entire net proceeds of the sale of father's Florida property. The proceeds were to be applied first to retroactive child support, the amount of which was reserved for subsequent determination, then to deferred interest on the note payable to mother in connection with the marital residence, and then to child support, maintenance, and interest arrearages in the amount of $6,000.

In the same order, the magistrate ordered that the children were to reside with mother, but left the parenting time schedule unresolved. Because mother had not requested any modification of the previous order for joint legal custody, the magistrate noted that the parties were to "continue to share joint decision-making for the minor children."

Soon after entry of the July 2002 order, father filed a motion pursuant to C.R.C.P. 60(b) requesting reconsideration or modification of the order to reflect the parties' alleged agreement that mother would receive only a part of the net proceeds from the sale of the Florida property.

In a December 2002 order, the magistrate denied the C.R.C.P. 60(b) motion and ordered father to pay increased child support, retroactive to September 2001. Citing inadequate evidence of the amount of arrearages, the magistrate again declined to enter an amount due; instead, the parties were instructed to calculate the amount, and if they were unable to agree, they were granted leave to file a motion requesting the magistrate to determine the amount.

No district court review of these orders was requested. Father then appealed the July 2002 and December 2002 orders to this court. Questioning the finality of these orders, the lack of district court review, and the magistrate's jurisdiction over these issues, we requested the parties to show cause why the appeal should not be dismissed. The parties filed simultaneous briefs on the issues.

I. Magistrate's Jurisdiction

We first conclude that the magistrate had jurisdiction to consider mother's motions.

A. Family Law Terminology

In order to analyze the jurisdictional issue properly, it is necessary to understand and clarify the changes in terminology used in family law cases in the intervening years between the original decree and the magistrate's July 2002 order. Effective February 1, 1999, the General Assembly enacted a statutory framework in which the term "custody" was abandoned and changed to "parental responsibilities," which includes both "decision-making responsibilities" and "parenting time," as those terms are now used. See §§ 14-10-103(4), 14-10-124(1.5), C.R.S.2003; In re Marriage of Stewart, 43 P.3d 740 (Colo.App.2002)(change was effective February 1, 1999, as provided in § 14-10-103(4)); In re Marriage of Schenck, 39 P.3d 1250 (Colo.App.2001); see also Angela R. Arkin & Robert T. Hines, III, Addressing New Standards for Modification Under the Parental Responsibility Act, 28 Colo. Law. 67 (June 1999); A. Elizabeth Henson, et al., Elimination of "Custody" in Colorado: The Impact of H.B. 1183, 27 Colo. Law. 83 (Sept.1998).

In turn, the terms "joint custody" and "legal custody" were replaced by "decision-making responsibilities." Compare Colo. Sess. Laws 1983, ch. 178, § 14-10-123.5(1) at 645 (defining "joint custody" as "an order awarding legal custody of the minor child to both parties and which provides that all decisions regarding the health, education and general welfare of the child shall be made jointly"), with § 14-10-124(1.5)(b),(court allocates "decision-making responsibility with respect to each issue affecting the child"), § 14-10-124(6), C.R.S.2003 (contemplating that decision-making includes medical issues), and § 14-10-130(1) C.R.S.2003 (expressly indicating that decision-making relates to education, health care, and religion). See generally People in Interest of A.M.K., 68 P.3d 563 (Colo.App.2003)(trial court order on decision-making authority included religious, medical, day-to-day matters and education issues).

Similarly, the terms "residential custody" and "physical custody" and terms relating to the residential or physical placement of the child (including what was formerly known as visitation rights) all now appear to be encompassed by the term "parenting time," as a result of the 1999 statutory changes. See § 14-10-129 (modification of parenting time governs changes in a child's residence, including "the party with whom the child resides a majority of the time"); § 14-10-103(3), C.R.S.2003 (as of July 1, 1993, changing the term "visitation" to "parenting time"); §§ 14-10.5-102, 14-10.5-104, C.R.S. 2003 (the Parenting Time Enforcement Act provides the child with access to the "parent with whom the child does not reside the majority of the time"); N.A.H v. S.L.S., 9 P.3d 354, 359 n. 2 (Colo.2000)("The term `parenting time' replaces notions of custody and visitation rights. The General Assembly recently clarified that children are not to be treated as property and apportioned between parents. Accordingly, we no longer use the term custody, but rather parental rights and responsibilities. Courts no longer adjudicate custody and visitation, but rather divide parenting time." (citation omitted)); People in Interest of A.M.K., supra (contrasting primary residential care with decision-making authority).

B. Jurisdictional Analysis

Mother's motions were filed after January 1, 2000, and, therefore, this case is governed by the Colorado Rules for Magistrates (C.R.M.) in effect at the time those motions were filed. See People ex rel. Garner v. Garner, 33 P.3d 1239, 1241 (Colo.App. 2001)(date of filing of motion at issue, not date of commencement of case, dictates application of new C.R.M.).

Under the version of C.R.M. 6(b) applicable to this case, in family law cases, a district court magistrate may perform the duties specified in §§ 13-5-301 to 13-5-305, C.R.S.2003. See In re Marriage of Malewicz, 60 P.3d 772, 774 (Colo.App.2002); cf. C.R.M. 6(b) (rule revised effective Nov. 6, 2003, distinguishing functions of district court magistrates and family law magistrates in family law cases). Under these sections, family law magistrates have the power and authority to modify and enforce orders for child support and to conduct hearings upon motions and postjudgment proceedings under the Uniform Dissolution of Marriage Act (UDMA), § 14-10-101, et seq., C.R.S.2003. Section 13-5-301(3)(a), (3)(e)(V.5), (3)(e)(VII)(B), C.R.S.2003. Accordingly, the magistrate clearly had jurisdiction over mother's motions regarding the child support and property issues. It is less clear whether the magistrate had jurisdiction over the parenting time issue. Section 13-5-301(3)(e)(V), C.R.S.2003, provides that family law magistrates have the power and authority to conduct hearings under the UDMA regarding "[p]arenting time, and the modification thereof, including motions to restrict parenting time or parental contact, where the allocation of parental responsibilities is not an issue" (emphasis added).

In In re Marriage of Ferris, 75 P.3d 1170 (Colo.App.2003), a division of this court recently noted, without resolving, an ambiguity in this statute. Section 13-5-301(3)(e)(V) grants magistrates authority to hear certain parenting time issues, but...