In re Vega

Citation2021 COA 99,497 P.3d 1056
Decision Date22 July 2021
Docket NumberCourt of Appeals No. 19CA2343
Parties IN RE the MARRIAGE OF Nancy Lynn VEGA, Appellee, and Abelardo Vega, Appellant.
CourtCourt of Appeals of Colorado

Polidori, Franklin, Monahan & Beattie, LLC, Robin Lutz Beattie, Lakewood, Colorado, for Appellee

Donald E. Janklow, Greeley, Colorado, for Appellant

Opinion by JUDGE BROWN

¶ 1 Abelardo Vega (husband) appeals the default permanent orders entered by a district court magistrate in connection with the dissolution of his marriage to Nancy Lynn Vega (wife). Husband contends that the magistrate lacked jurisdiction to enter permanent orders because C.R.M. 6(b)(2) required that the parties consent to the magistrate presiding over their contested hearing and no such consent was given.

¶ 2 To resolve this contention, we must first determine whether the magistrate erred by entering default against husband under C.R.C.P. 55(a) based on husband's failure to file a response to the petition for dissolution of marriage. Because the plain language of section 14-10-107(4)(a), C.R.S. 2020, 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 C.R.C.P. 16.2(c)(1)(B) requires, we conclude that the magistrate erred by entering default against him under C.R.C.P. 55(a).

¶ 3 We further conclude that, because 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. See Andrews v. Miller , 2019 COA 185, ¶¶ 1-2, 487 P.3d 701. Consequently, we reverse the entry of default against husband and the default permanent orders judgment and remand the case for further proceedings.1

I. Background

¶ 4 Wife petitioned in 2019 to end the parties’ thirty-five-year marriage. She served husband personally with the petition for dissolution of marriage and summons. In relevant part, the summons provided as follows: "If you were served in the State of Colorado, you must file your Response with the clerk of this Court within 21 days after this Summons is served on you to participate in this action." The summons tracked the language of the form summons available on the Colorado Judicial Branch website: JDF 1102, titled "Summons for Dissolution of Marriage or Legal Separation" (revised June 2018).2

¶ 5 Wife served husband by mail with the case management order and notice of initial status conference. The case management order informed the parties that all domestic relations cases are assigned to a district court magistrate.

¶ 6 Husband did not file a response to the dissolution petition, but he appeared at the initial status conference, which was conducted by a family court facilitator. Despite husband's appearance, the district court magistrate assigned to the case entered default against him. In the default order, below the word "APPEARANCES" and next to the word "Respondent" (here, husband), the "yes" box was marked. But, immediately below that, the order stated that there had been "no entry of appearance or response filed" by husband and therefore the case would proceed to a default permanent orders hearing.

¶ 7 The magistrate ordered wife to file proposed permanent orders at least ten days before the hearing. The record reflects that wife filed a proposed decree, property spreadsheet, child support worksheet, exhibit list, and sworn financial statement with the court ten days before the permanent orders hearing but did not provide these documents to husband. Wife's proposed property spreadsheet reflected that the parties owned assets exceeding $10 million, including at least twenty-seven residential and commercial properties.

¶ 8 Both parties appeared at the permanent orders hearing, over which the magistrate presided. Wife appeared with counsel, and husband appeared pro se. The magistrate did not allow husband to participate in the hearing, however, finding that although he was present, he remained in default. Husband stated in response, "Then, I need to hire a lawyer."

¶ 9 The magistrate asked wife's attorney whether he had sent the proposed permanent orders to husband before the hearing. Wife's attorney responded that he had not, and the magistrate recessed the hearing for husband to review the documents "so that he's aware of at least what's being asked." When the hearing resumed, wife's attorney stated that, after speaking to husband, "there seems to be a lot of confusion," but "I would prefer to move forward today with the default hearing. Sorry." Husband again requested that the magistrate "give me a chance to get a lawyer," stating that he had thought wife would be fair, but her proposed permanent orders, which he was seeing for the first time at the hearing, listed properties to be divided that the parties did not own.

¶ 10 The magistrate denied husband's request, took evidence by offer of proof from wife, and admitted wife's exhibits. He gave husband no opportunity to cross-examine wife or rebut her evidence. Then the magistrate made oral findings on the record, dissolved the parties’ marriage, and entered default permanent orders in the form wife requested. The permanent orders did not include the required C.R.M. 7 notice of the parties’ appeal rights for cases that are heard by a magistrate. See C.R.M. 7(a), (b) (a magistrate "shall include ... a written notice that the order or judgment" was entered with or without consent and how an appeal must be taken).

¶ 11 Thirteen days after the magistrate entered the written permanent orders, husband, by then represented by counsel, moved to extend the time to petition for district court review of the orders, and the court granted his request. Instead of filing a petition for review, however, husband moved for post-trial relief under C.R.C.P. 59(a) and C.R.C.P. 60(b), noting the magistrate's failure to include appeal notification language in the permanent orders and arguing that his right to appeal the permanent orders fell under C.R.M. 7(b).

¶ 12 The district court determined that husband should have petitioned for review of the default permanent orders under C.R.M. 7(a) because a default hearing is uncontested and does not require the parties’ consent to a magistrate. In any event, the district court considered and denied husband's post-trial motion.

II. Standard of Review and Applicable Law

¶ 13 Husband's argument that he did not consent to the magistrate raises a jurisdictional issue concerning the magistrate's authority to preside over the permanent orders, which we review de novo. See Andrews , ¶ 8. We also review the district court's interpretation of statutes and rules of civil procedure de novo. In re Marriage of Blaine , 2021 CO 13, ¶ 14, 480 P.3d 691 ; Schaden v. DIA Brewing Co. , 2021 CO 4M, ¶ 32, 478 P.3d 1264.

¶ 14 We always look first to the plain language of the statute or rule and interpret that language according to its commonly understood and accepted meaning. Blaine , ¶ 14 ; Schaden , ¶ 32. If the statute or rule is clear, we apply it as written and need not resort to other rules of statutory construction. Blaine , ¶ 14.

¶ 15 We also construe the civil rules "liberally to effectuate their objective to secure the just, speedy, and inexpensive determination of every case and their truth-seeking purpose." Maslak v. Town of Vail , 2015 COA 2, ¶ 10, 345 P.3d 972 (quoting DCP Midstream, LP v. Anadarko Petroleum Corp. , 2013 CO 36, ¶ 24, 303 P.3d 1187 ); see also C.R.C.P. 1.

III. Analysis

¶ 16 Pursuant to C.R.M. 6(b)(2), "a district court magistrate may preside over contested hearings which result in permanent orders concerning property division, maintenance, child support or allocation of parental responsibilities" only with "the consent of the parties." So, to determine whether consent to the magistrate was required, we must determine whether the permanent orders hearing in this case was contested. And to determine whether the hearing was contested, we must first determine whether the magistrate properly entered default against husband.

A. The Magistrate Erred by Finding Husband in Default

¶ 17 Because husband was not required to file a response to wife's petition for dissolution of marriage, and because husband appeared at the initial status conference, we conclude that the magistrate erred by finding him in default.

¶ 18 Section 14-10-107(4)(a) provides that, "[u]pon the commencement of a proceeding by one of the parties ..., the other party shall be personally served in the manner provided by the Colorado rules of civil procedure, and he or she may file a response in accordance with such rules." (Emphasis added.) The legislature's use of the word "may" is permissive; it is "generally indicative of a grant of discretion or choice among alternatives." A.S. v. People , 2013 CO 63, ¶ 21, 312 P.3d 168 ; see also People v. Dist. Ct. , 713 P.2d 918, 922 n.7 (Colo. 1986) ("[T]he word ‘may’ will not be treated as a word of command...." (quoting Black's Law Dictionary 883 (5th ed. 1979))); AA Wholesale Storage, LLC v. Swinyard , 2021 COA 46, ¶ 29, 488 P.3d 1213. The legislature's choice of the term "may" with respect to the filing of a response stands in stark contrast to its use of the word "shall" in the same sentence to mandate personal service of a petition for dissolution of marriage. "Where a legislature uses both mandatory and directory verbs in the same ... sentence, it is fair to assume it was aware of the difference and intended each verb to carry its ordinary meaning." 3 Shambie Singer, Sutherland Statutory Construction § 57:11, Westlaw (8th ed. database updated Nov. 2020). "The presumption especially is reasonable where disparate verbs such as ‘shall’ and ‘may’ are in close juxtaposition...." Id. ; see also A.S. , ¶ 21 ; Swinyard , ¶ 31.

¶ 19 Thus, we...

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    ... ... In re Estate of Gallegos , 2021 COA 115, 13, P.3d ... We look first to the plain language of the statute and interpret that language according to its commonly understood and accepted meaning. In re Marriage of Vega , 2021 COA 99, 14, 497 P.3d 1056. We avoid constructions that would render any of the statutory language superfluous or that would lead to illogical or absurd results. Harvey , 16. If the statute is clear, we apply it as written. Id. 39 Section 14-10-129.5(4) is clear. It requires the court ... ...
1 books & journal articles
  • Summaries of Published Opinions
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    • Colorado Bar Association Colorado Lawyer No. 50-9, October 2021
    • Invalid date
    ...asserted. Accordingly, the statements were not hearsay and did not implicate defendant's confrontation rights. The judgment was affirmed. 2021 COA 99. No. 19CA2343. In re the Marriage of Vega. Dissolution of Marriage—Response— Default Hearing—Magistrate—Consent. Wife served husband personal......

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