Marriage of Finer, In re

• Decision Date: 23 March 1995
• Docket Number: No. 94CA0178,94CA0178
• Citation: 893 P.2d 1381
• Parties: In re the MARRIAGE OF Carol Linton FINER, Appellant, and Joseph P. Finer, Appellee. . V
• Court: Colorado Court of Appeals

Page 1381

893 P.2d 1381

In re the MARRIAGE OF Carol Linton FINER, Appellant,

and

Joseph P. Finer, Appellee.

No. 94CA0178.

Colorado Court of Appeals,

Div. V.

March 23, 1995.

Quade, Fontana & Bonin, P.C., Frances C. Fontana, Denver, for appellant.

Cox, Mustain-Wood & Walker, Mary Jane Truesdell Cox, Littleton, for appellee.

Opinion by Judge TAUBMAN.

In this dissolution of marriage action, Carol Linton Finer (mother) appeals the trial court's order refusing to hold a hearing to modify the temporary injunction preventing removal of the parties' minor child from the state. Because we agree with mother's contention that the trial court's refusal to hold such a hearing violated her right to due process, we reverse. However, since the temporary injunction prohibiting the removal of the child from Colorado has expired, no remand is warranted.

In September 1992, mother filed a petition for dissolution of her marriage to Joseph P. Finer (father). Mother was granted temporary custody of the only child of the marriage in October 1992, pending the issuance of permanent orders.

On August 26, 1993, mother requested a hearing seeking relief from the automatic temporary injunction imposed by § 14-10-107(4)(b)(I), C.R.S. (1987 Repl.Vol. 6B) upon the filing of a petition for dissolution of marriage. That injunction prohibited, inter alia, the removal of the parties' minor child from the state pending permanent orders without agreement or prior court order.

In her motion, mother informed the trial court that she was currently unemployed, but had been offered a position as a teacher, her chosen profession, in Delaware. She further asserted that a recent custody evaluation had determined that it was in the child's best interest for the child to remain in her custody and even to leave the state with mother if she accepted that employment opportunity. Nevertheless, the district court refused to hear arguments on mother's request stating that there was insufficient time for it to address her request prior to the scheduled trial date for permanent orders which were set to commence on August 31, 1993.

On that date, the trial court announced that it was unable to hold the hearing on permanent orders and had to reschedule it. Accordingly, mother renewed her request for an immediate hearing, seeking temporary relief from the injunction so that she could accept the teaching position in Delaware and move there with her child.

In response, the trial court stated that, if the parties could limit their arguments to one hour, it could schedule a hearing on mother's motion within three months; however, if they needed more time, a hearing could not be scheduled until spring or summer of 1994. Although mother agreed to a one hour hearing, father professed that he needed at least one day of trial time to rebut mother's motion. The guardian ad litem also asserted that he required more than an hour for the hearing to present his concerns. Consequently, the trial court refused to hear mother's motion.

The permanent orders hearing was rescheduled to commence on July 18, 1994. The trial court, however, noted that earlier trial dates were offered to the parties but provided no explanation regarding why any of the earlier dates had not been selected.

Following the postponement of the permanent orders hearing, wife filed an emergency forthwith motion for temporary removal of the child from Colorado on September 1, 1993. The trial court ruled that it would not bifurcate this issue and permanent custody issues for purposes of administrative efficiency. However, it referred mother's motion to a magistrate.

On October 19, 1993, the magistrate denied mother a hearing because the trial court had previously ruled that the matter not be bifurcated, the issues were pending before the supreme court in a C.A.R. 21 petition, and the magistrate could not set one day aside for a hearing on mother's motion since he only had two-hour blocks of time available. On October 25, 1993, the trial court affirmed the magistrate's order without explanation.

On November 2, 1993, mother filed a motion with the trial court seeking review of the magistrate's order denying her a hearing. The court denied petitioner's motion to review the magistrate's order on December 23, 1993, and this appeal followed.

After this appeal was filed, the permanent orders hearing was held in July 1994 and the court issued its order on August 3, 1994. In the permanent orders, the trial court awarded sole custody of the parties' child to father. In addition, the court made detailed alternative provisions for parenting time and child support to be paid by mother, depending on whether mother remained in Colorado or moved to Delaware. An appeal of the permanent orders has been initiated, but it does not raise the issue presented here.

I. Jurisdiction of Court of Appeals

As a threshold matter, we address the issue of whether the court of appeals has jurisdiction over appeals from orders granting or denying preliminary injunctions. Although the issue was not raised by the parties, the court's subject matter jurisdiction cannot be waived and can be raised at any time. Minto v. Lambert, 870 P.2d 572 (Colo.App.1993).

In considering the issue, we recognize that an inconsistency has arisen in our recent opinions.

In Joel L. Schaffer, P.C. v. Christopher M. Sullivan, P.C., 844 P.2d 1327 (Colo.App.1992), a division of this court held that the court of appeals lacked initial statutory jurisdiction, pursuant to § 13-4-102(1), C.R.S. (1987 Repl.Vol. 6A), over interlocutory rulings in injunction proceedings because they are not final judgments. See Harding Glass Co. v. Jones, 640 P.2d 1123 (Colo.1982). However, a majority of the division concluded that, if such actions first were referred to the supreme court on the question of jurisdiction and if, after referral, the supreme court declined to exercise jurisdiction, jurisdiction then was conferred on this court by § 13-4-110(3), C.R.S. (1987 Repl.Vol. 6A).

In contrast, the dissenting member of the division was of the view that denial of a motion for preliminary injunction is not appealable to the court of appeals and that the only review possible is by certiorari under C.A.R. 21. Joel L. Schaffer v. Christopher M. Sullivan, P.C., supra, (Jones, J., dissenting).

In recent years, however, at least seven other panels of this court have issued published opinions considering appeals of preliminary injunctions without first referring the jurisdictional issue to the supreme court and without addressing the issue. See Herstam v. Board of Directors, --- P.2d ---- (Colo.App.1995); Hughley v. Rocky Mountain Health Maintenance Organization, Inc., --- P.2d ---- (Colo.App.1995); City of Aurora v. Board of County Commissioners, --- P.2d ---- (Colo.App.1994); White v. Department of Institutions, 883 P.2d 575 (Colo.App.1994); Network Telecommunications, Inc. v. Boor-Crepeau, 790 P.2d 901 (Colo.App.1990); Parrish v. Rocky Mountain Hospital, 754 P.2d 1180 (Colo.App.1988); Mesa Springs v. Cutco, 736 P.2d 1251 (Colo.App.1986). Four of these opinions were issued after Schaffer was announced.

Because we concluded initially that the question of our jurisdiction should be referred to the supreme court as in Schaffer, we requested that it assume jurisdiction. The supreme court declined to do so.

On further reflection, however, we concluded, for the reasons set forth below, that the result implicitly reached by these seven divisions was correct, and thus, it was unnecessary to follow Schaffer.

The Colorado Supreme Court has been given the power to promulgate rules for the courts of record in this state. See §§ 13-2-108, 13-2-109, and 13-2-110, C.R.S. (1987 Repl.Vol. 6A); Kolkman v. People, 89 Colo. 8, 300 P. 575 (1931) (supreme court is charged with power and duty of formulating, promulgating, and enforcing rules of procedure).

Although the court of appeals is a statutory court, the General Assembly also has conferred on the supreme court specific, exclusive, and final authority to determine whether a case before this court is properly within its jurisdiction. Such authority is set out in § 13-4-110(1)(a), C.R.S. (1987 Repl.Vol. 6A), which provides that: "The supreme court shall decide the question of jurisdiction [between it and the court of appeals] in a summary manner and its determination shall be conclusive."

The Colorado Appellate Rules, promulgated by the supreme court, contain the following statement entitled "Applicability of Rules":

1. These rules of appellate procedure are intended to embrace appeals of both criminal and civil matters.

2. Rules 1 through 48, except where specifically noted otherwise, apply to appeals to either the supreme court or to the court of appeals. Whenever "appellate court" is used it refers to either court.

With certain enumerated exceptions, § 13-4-102(1), C.R.S. (1986 Repl.Vol. 6A) gives the court of appeals initial jurisdiction over appeals from "final judgments of the district courts...." (emphasis added)

The companion rule, C.A.R. 1(a), states that:

An appeal to the appellate court may be taken from: (1) A final judgment of any district, superior, probate, or juvenile court in all actions or special proceedings whether governed by these rules or by the statutes.

....

(3) An order granting or denying a preliminary injunction.... (emphasis added)

Moreover, C.R.C.P. 54(a) defines "judgment" to include "a decree and order to or from which an appeal lies."

Thus, when the jurisdictional statute is read together with the rules issued by the supreme court, the term "final judgment" in § 13-4-102(1) must be interpreted to give the court of appeals initial jurisdiction over any decree and order to or from which an appeal lies that is issued by any district court. This would include an order granting or denying a preliminary injunction.

We therefore hold that the court of appeals does have initial jurisdiction over appeals from...