Petitions for Review of Magistrate Decisions

Magistrates play an important role in dissolution and family law matters. They often preside over the “simplified divorce” procedures. Appellate procedures for Magistrates differ from those of Judges, so it is important to understand the difference. It is important to always remember that a review or an appeal is based on errors of fact or law and are not a second "bite at the apple". The purpose and mechanics of reviews and appeals are often misunderstood by litigants who may believe that a second court will rehear their case if they request review or appeal. Magistrate reviews can be confusing as statutory authority can seem contradictory, and statutory authority can appear to contradict guidance given on the JDF Form issued by the courts as to time to request review.

District court magistrates serve under the direction and supervision of the Chief District Court Judge in each judicial district. C.R.M. 1. A district court magistrate must be a licensed attorney in good standing. C.R.S. § 13-5-201. There are limitations on their jurisdiction and authority. Magistrates can not conduct jury trials or rule on statutory constitutionality. C.R.S. § 13-5-201(3) & C.R.M. 5(f). A district court magistrate can hear any issue in controversy under Title 14 without the consent of the parties except for contested permanent orders. District court magistrates may preside over all post-decree matters for modification of permanent orders under Title 14, except for petitions for review of magistrate decisions. C.R.M. 6(b)(1)(B). Additionally, district court magistrates can issue child support orders. C.R.S. §§ 26-13-101.

Consent. A Magistrate can preside over contested permanent orders with consent. C.R.M. 3. Consent may occur in writing or on the record. C.R.M. 3(f)(1)(A)(i). Failure to appear at a proceeding after being given notice also constitutes consent. C.R.M. 3(f)(1)(A)(iii). Also, if a party has been provided notice of referral, setting, or hearing before a magistrate and does not file a written objection within 14 days, the failure to object also constitutes consent. C.R.M. 3(f)(1)(A)(ii). Consent can not be later withdrawn. C.R.M. 3(f)(1)(B).

An “order or judgment of a magistrate in any judicial proceeding shall be effective upon the date of the order or judgment and shall remain in effect pending review by a reviewing judge unless stayed by the magistrate or by the reviewing judge.” C.R.M. 5(a). It may be advisable to request a stay pending review on the record, particularly if there may be a delay in issuance of a written order.

Every written order or judgment of a magistrate must contain a notice regarding the review process. Notice must be given that review must be requested within 21 days of order issuance. C.R.M. 7(a). Only a final order or judgment of a magistrate is reviewable. C.R.M. 7. A final order is defined as one that “fully resolves an issue or claim.” C.R.M. 7(a)(3). The “final order or judgment is not reviewable until it is written, dated, and signed by the magistrate.” C.R.M. 7(a)(4). A request for extension of time to file a petition for review must be made to the reviewing judge within the 21 day time limit within which to file a petition for review. An extension will often be necessary to obtain a transcript due to the short timeline in which the petition must be filed.

A petition for review shall state with particularity the alleged legal or factual errors in the order and may be accompanied by a brief identifying legal authority. C.R.M. 7(a)(7). As with all filings, all parties must be provided with a copy. An Answer may be filed within 14 days after the Petition is filed. A failure to file a copy of the transcript creates a presumption that the record supports the magistrate’s order C.R.M. 7(a)(9). Thus the request should be well grounded in the evidence submitted at trial as shown by the transcript. As with appeals of district court judicial orders, an error of fact or law must be based on the evidence submitted during the hearing and the issue on review must have been preserved in the trial court hearing.

When consent is necessary for Magistrate jurisdiction, then the traditional appellate process applies where application is made to the Court of Appeals as opposed to the District Court. Consent is necessary for permanent contested permanent orders concerning property division, maintenance, child support, or allocation of parental responsibilities. Keep in mind the implicit consent by conduct or lack of conduct, as well as express consent in writing or on the record constitutes consent. In practice, it is not common for magistrates to preside over contested permanent orders hearings.

When a petition for review is timely filed, the reviewing judge issues an order in response to the petition for review in writing. C.R.M. 7(a)(10). In the order, the reviewing district court may adopt, reject, or modify the initial order. The district court judge considers the petition for review based on the pleadings and transcript and generally does not consider new evidence. However unlike with an appeal, a district court review can include the review of new evidence. C.R.M. 7(a)(8). In practice, it rarely does. Similar to an appeal, errors of fact are evaluated under the clearly erroneous standard, and errors of law are considered de novo. This practice offers deference to the court that heard the evidence.

A knowledgeable and experienced divorce and family law attorney can guide you through Colorado Springs divorce and family law matters by negotiating, mediating and litigating. Give yourself the benefit of hiring one. This allows you to focus on moving on to a better future instead of spending your time attempting to navigate complex legal rules and procedures.

Sabra Janko from Janko Family Law is a knowledgeable and experienced attorney who protects your best interests and ensures that you are aware of your legal rights and obligations. Contact us at 719-344-5523 for a free 30-minute informational consultation or complete our online form.