Col. R. Mag. 7
ANNOTATION Law reviews. For article, "Family Law Magistrates: An Overview of Review and Appeal Procedures", see 32 Colo. Law. 91 (September 2003). Section (a) of this rule, rather than former rule, applies to a motion filed after the effective date of this rule concerning 1996 child support stipulation. People ex rel. Garner v. Garner, 33 P.3d 1239 (Colo. App. 2001). The consent distinctions in this rule relate to the "with consent" and "without consent" categories established in C.R.M. 6. Thus, review of matters that may be heard by a magistrate without consent of the parties is governed by section (a) of this rule. Conversely, review of those matters that, by rule or statute, required the consent of the parties is governed by section (b). People ex rel. Garner v. Garner, 33 P.3d 1239 (Colo. App. 2001). Parties' consent in family law cases does not make the order subject to expedited appellate procedure prescribed in C.R.M. 7(b). In re Phelps, 74 P.3d 506 (Colo. App. 2003) (decided prior to 2004 repeal of § 13-5-301 ). Characterization of a common law marriage determination hinges on context in which the issue is raised. When the common law marriage issue is related to an effort to dissolve a marriage, it constitutes a "family law case", thereby implicating C.R.M. 6(b) and § 13-5-301(3). In re Phelps, 74 P.3d 506 (Colo. App. 2003) (decided prior to 2004 repeal of § 13-5-301 ). A magistrate may, without the consent of the parties, act upon an inmate's in forma pauperis request and dispose of the case in accordance with its ruling thereon. Therefore, it is appropriate for such action to be governed by section (a), which sets out procedures for review of a magistrate's orders and judgments that have been entered without consent of the parties. Bryan v. Neet, 85 P.3d 556 (Colo. App. 2003). A magistrate's order must fully resolve an issue before it may be reviewed by the district court or appealed to the court of appeals. In re Roosa, 89 P.3d 524 (Colo. App. 2004). Failure to file motion for review with the reviewing judge justifies dismissal of appeal with prejudice. Matter of Estate of Burnford, 746 P.2d 51 (Colo. App. 1987); Estate of Jordan v. Estate of Jordan, 899 P.2d 350 (Colo. App. 1995); In re Estate of Hillebrandt, 979 P.2d 36 (Colo. App. 1999). A party is not entitled to appellate review unless the party has first filed a timely motion for district court review of the magistrate's order. Such a motion for review must be filed within 15 days after the date of the magistrate's order. In re McCord, 910 P.2d 85 (Colo. App. 1995); In re Tonn, 53 P.3d 1185 (Colo. App. 2002); In re Moore, 107 P.3d 1150 (Colo. App. 2005). A party must present an issue to the district court in a petition for review before that issue may be raised in the court of appeals. A party seeking review of a magistrate's decision must raise a particular issue in the district court so that the district court may have an opportunity to correct any error that may have been made by the magistrate. If a party does not raise an issue before the district court in a petition for review, but raises the issue on appeal for the first time, such party seeks to have the court of appeals correct an error that could have been corrected by the district court in a petition for review. People ex rel. K.L-P., 148 P.3d 402 (Colo. App. 2006). A magistrate's order or judgment entered without the consent of the parties is not a decree and order to or from which an appeal lies, as envisioned in C.R.C.P. 54(a). Therefore, C.R.C.P. 59 is inapplicable to motions for review of a magistrate's order. In re Moore, 107 P.3d 1150 (Colo. App. 2005). District court erred in denying appellant's motion for review based on the failure timely to provide a transcript. The Colorado rules for magistrates do not contain a separate section on procedure or any procedural rules specifying any time limits for filing a transcript of a hearing before a magistrate. There is no requirement that a transcript be filed at all in a review proceeding, and there is no requirement that the district court must consider a transcript, if one is provided, when reviewing a magistrate's order. In re Schmidt, 42 P.3d 81 (Colo. App. 2002). A party seeking review of a magistrate's order shoulders the burden of providing a record justifying the rejection or modification of that order even though this rule does not require that a transcript be filed at all in a review proceeding and it provides no guidance on the procedures for filing a transcript. Absent such a record, the district court may presume that the magistrate's findings were supported by the evidence. In re Rivera, 91 P.3d 464 (Colo. App. 2004). A magistrate has authority under § 13-5-301 to hear a C.R.C.P. 60(b)(2) motion without the consent of the parties. As a result, a district court has jurisdiction to review the motion. In re Malewicz, 60 P.3d 772 (Colo. App. 2002). The rules governing magistrates do not authorize any motion except a motion for review. Thus, a magistrate's order issued in response to a motion for reconsideration is void. In re Roosa, 89 P.3d 524 (Colo. App. 2004). Previous courts have concluded that a motion for reconsideration may be deemed a motion for review; therefore, a motion for extension of time to file a motion for reconsideration may also be construed to allow the late filing of a motion for review. In re Cooprider, 140 P.3d 312 (Colo. App. 2006). When a magistrate enters an order outside the presence of the parties, the 15 days to file for review of the order begins to run on the date the order is mailed, not the date the order is made. In re Talbott, 43 P.3d 734 (Colo. App. 2002); In re Tonn, 53 P.3d 1185 (Colo. App. 2002). In paternity action where grandmother sought to intervene for visitation rights, § 19-1-108 of the Colorado Children's Code is properly applied, not this rule, if parents have waived the right to a hearing before a judge. In re K.L.O-V., 151 P.3d 637 (Colo. App. 2006). Magistrate has no authority to reconsider its own order, sua sponte, or to hear a motion for reconsideration made by a party. Once a magistrate has entered a written and signed order on a matter without consent, a party must file a motion for review of the magistrate's order with the district court judge. In re M.B.-M., 252 P.3d 506 (Colo. App. 2011).