In re Thorburn, Court of Appeals No. 21CA1006
| Citation | 519 P.3d 736,2022 COA 80 |
| Docket Number | Court of Appeals No. 21CA1006 |
| Decision Date | 21 July 2022 |
| Parties | IN RE the MARRIAGE OF Danielle Jeanette THORBURN, Appellee, and James M. Thorburn, Appellant. |
| Court | Court of Appeals of Colorado |
Miller Family Law, LLC, Kate Miller, Jessica Hoyt, Sophie Altman, Denver, Colorado, for Appellee
Thorburn Law Group, LLC, James D. Thorburn, Carolyn M. Schaffer, Greenwood Village, Colorado, for Appellant
Opinion by JUDGE FOX
¶ 1 This appeal involves the interplay between subsections (1)(b)(I) and (4) of section 14-10-129, C.R.S. 2021. Both subsections enable a district court to restrict parenting time so that a child is safe from physical and emotional endangerment. Subsection (1)(b)(I) applies to any order that imposes or continues a parenting time restriction. Subsection (4) allows a district court, on an emergency basis, to restrict parenting time until a hearing can be held within fourteen days. But where they differ is that subsection (1)(b)(I) does not mention imminence while subsection (4) does. The import of that difference is at the center of this appeal.
¶ 2 James M. Thorburn (father) challenges a magistrate's decision restricting his parenting time. According to him, the magistrate incorrectly defined "imminent" under subsection (4) and, as a result, failed to apply the appropriate legal standard.
¶ 3 Danielle Jeanette Thorburn (mother) counters that, even if the magistrate wrongly defined "imminent," it does not matter. She argues that a motion to restrict parenting time under subsection (4) is simply a procedural vehicle to get an emergency hearing and an immediate parenting time restriction, nothing more. And at the emergency hearing, she asserts, the general standards under subsection (1)(b)(I) — applicable to all hearings to restrict parenting time — govern.
¶ 4 For the reasons discussed below, we agree with mother. We affirm the district court's order adopting the magistrate's decision restricting father's parenting time. But we remand the case to the district court for further proceedings on mother's request for appellate attorney fees under section 14-10-119, C.R.S. 2021.
¶ 5 The parties’ marriage ended in February 2020. The dissolution decree incorporated their parenting plan for their son, J.C.T. Under the plan, J.C.T. would live primarily with mother. The parties also agreed that father would follow a step-up parenting time schedule, beginning with an overnight every week with the goal of equal time in nine months.
¶ 6 On February 1, 2021, mother moved to restrict father's parenting time under section 14-10-129(1)(b)(I) and (4). She alleged, among other things, that during father's most recent parenting time, J.C.T., then thirty-two months old, suffered a deep gash on his forehead, requiring eight stitches. Father quickly responded and asserted that J.C.T.’s injury was accidental.
¶ 7 The next day, a magistrate deemed mother's allegations sufficiently pleaded, scheduled an emergency hearing for February 9, and ordered that father's parenting time be supervised until then.
¶ 8 Following the emergency hearing, at which only the parties testified, the magistrate issued an oral ruling and directed mother's attorney to draft a proposed order.
¶ 9 For reasons unexplained in the record, both parties submitted proposed orders, and the magistrate signed father's order on February 26, 2021.1
¶ 10 In the written order, the magistrate made the following findings:
From those findings, the magistrate (1) rejected father's definition of "imminent" for purposes of section 14-10-129(4) ; (2) read "imminent" to mean a "certainty" at some point in the future, without "any form of immediacy"; (3) applied that definition and section 14-10-129(1)(b)(I) and (4) ; and (4) determined that mother had proved that J.C.T. was in imminent danger. In the end, the magistrate continued father's supervised parenting time and imposed certain conditions that father must meet before requesting a modification.
¶ 11 On March 3, 2021, mother filed a motion to "set aside," asking the magistrate to reconsider the selection of father's proposed order. Nine days later, father petitioned for district court review.
¶ 12 Regarding father's petition for review, the district court adopted the magistrate's decision. The court denied mother's motion to set aside to the extent that it sought review of the magistrate's decision. The court, however, remanded the case to the magistrate with directions to resolve mother's motion as it related to the form of the magistrate's written order.
¶ 13 Father then filed his notice of appeal. Based on a lack of jurisdiction given the pending appeal, the magistrate on remand declined to entertain mother's motion to set aside.
¶ 14 At oral argument and later in his written supplemental authority, father asserted that the district court order should be vacated for lack of subject matter jurisdiction. He insisted that the parties never consented to the magistrate's jurisdiction. Father is mistaken.
¶ 15 A district court has subject matter jurisdiction when it has been "empowered to entertain the type of case before it by the sovereign from which the court derives its authority." In re Marriage of Roth , 2017 COA 45, ¶ 14, 395 P.3d 1226 (quoting Wood v. People , 255 P.3d 1136, 1140 (Colo. 2011) ). The Colorado Constitution vests a district court with general subject matter jurisdiction in civil cases, which may be limited by the legislature only when that limitation is explicit. See Colo. Const. art. VI, § 9 ; see also Currier v. Sutherland , 215 P.3d 1155, 1159 (Colo. App. 2008), aff'd , 218 P.3d 709 (Colo. 2009). "[D]omestic relations cases are ‘proceedings of a civil nature.’ " In re Marriage of Wollert , 2020 CO 47, ¶ 26, 464 P.3d 703 (quoting In re Marriage of Durie , 2020 CO 7, ¶ 14, 456 P.3d 463 ).
¶ 16 Because this dissolution proceeding is civil in nature, the district court (and the magistrate before it) had constitutionally vested subject matter jurisdiction to hear the action, including mother's motion to restrict. See Colo. Const. art. VI, § 9 ; see also Wollert , ¶ 26 ; Roth , ¶ 14.
¶ 17 To the extent father argues that the magistrate lacked authority to act on mother's motion to restrict, he is again mistaken. C.R.M. 6(b)(1)(B) gives a magistrate the power to preside over all motions to modify parental responsibilities without the parties’ consent. See Evans v. Evans , 2019 COA 179M, ¶ 20, 469 P.3d 498 ; see also In re Marriage of Roosa , 89 P.3d 524, 527 (Colo. App. 2004) ; § 13-5-201(3), C.R.S. 2021. So, regardless of the parties’ consent, the magistrate had the authority to preside over mother's motion to restrict, which sought to modify the existing parenting time order.
¶ 18 Mother contends 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. We disagree.
¶ 19 With limited exceptions not applicable here, our appellate jurisdiction is limited to review of final judgments or orders. In re Marriage of Evans , 2021 COA 141, ¶ 11, 504 P.3d 988 ; see also C.A.R. 1(a)(1) ; § 13-4-102(1), C.R.S. 2021.
¶ 20 A magistrate's decision that fully resolves an issue or claim is final. C.R.M. 7(a)(3) ; In re Marriage of January , 2019 COA 87, ¶ 12, 446 P.3d 954.
¶ 21 A party may obtain review of a magistrate's final decision in a proceeding, like this one, where consent was not necessary, by filing a timely petition for review with the district court under C.R.M. 7(a)(5). Once a district court enters its order on review, a party may appeal to this court. C.R.M. 7(a)(11) ; Heotis v. Colo. Dep't of Educ. , 2016 COA 6, ¶ 15, 375 P.3d 1232.
¶ 22 Here, father invoked district court review of the magistrate's decision to continue his supervised parenting time. After adopting the decision, the court remanded the case to the magistrate to resolve any dispute as to the form of the written order.
¶ 23 The district court could not, under C.R.M. 7, remand the issue to the magistrate and the magistrate would have lacked authority to act. At oral argument, mother described her motion as one for reconsideration, which falls under either C.R.C.P. 59 or C.R.C.P. 60(b). A magistrate cannot rule on a motion to reconsider under C.R.C.P. 59 or for relief under C.R.C.P. 60(b). In re Parental Responsibilities Concerning M.B.-M. , 252 P.3d 506, 510 (Colo. App. 2011) ; see also C.R.M. 5(a) (). Because there was no relief the magistrate could then grant, mother's motion for reconsideration was effectively denied.
¶ 24 Therefore, the district court's order and the underlying magistrate's decision are final and appealable, and we have jurisdiction to consider them.
¶ 25 Our review of a district court's order adopting a magistrate's decision is effectively a second layer of appellate review. In re Marriage of Sheehan , 2022 COA 29, ¶ 22, 511 P.3d 708. We must accept the magistrate's factual findings unless they are clearly erroneous, meaning that they have no support in the record. In re Marriage of Young , 2021 COA 96, ¶ 8, 497 P.3d 524.
¶ 26 However, we review de novo questions of law,...
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