in Interest of S.C ( 2020 )

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
June 11, 2020
2020COA95
No. 19CA1277, People in Interest of S.C. — Family Law —
Uniform Interstate Family Support Act — Special Rules of
Evidence and Procedure — Deposition or Testimony by
Telephone, Audiovisual, or Other Electronic Means
A majority of a division of the court of appeals concludes that
the magistrate in a paternity action was not authorized to “close”
the case based on mother’s refusal to testify in person. Rather,
section 14-5-316, C.R.S. 2019, required the magistrate to accept
mother’s testimony by telephone or other electronic means,
regardless of whether she had outstanding warrants in Colorado.
The dissent would dismiss the appeal on the ground that there
was no final, appealable judgment or order conferring appellate
jurisdiction.
COLORADO COURT OF APPEALS 2020COA95
Court of Appeals No. 19CA1277
El Paso County District Court No. 18JV514
Honorable Jill M. Brady, Judge
The People of the State of Colorado and El Paso Child Support Services,
Appellants,
In the Interest of S.C., a Child,
and Concerning R.D.C. III,
Appellee.
ORDER REVERSED AND CASE
REMANDED WITH DIRECTIONS
Division A
Opinion by JUDGE BERGER
Pawar, J., concurs
Bernard, C.J., dissents
Announced June 11, 2020
Young Williams, P.C., Christina K. Eigel, Colorado Springs, Colorado, for
Appellants
No Appearance for Appellee
¶1 At the request of the State of Missouri, El Paso Child Support
Services (CSS) filed the underlying paternity and support action,
seeking a determination that respondent R.D.C. III is the biological
father of S.C. (the child) and, if so, the entry of appropriate support
orders.
¶2 The mother of the child, S.N., who apparently resides in
Missouri, declined to testify in person because of outstanding arrest
warrants in Colorado. She offered to testify by telephone, but that
offer was refused by the magistrate on the sole ground that she had
outstanding arrest warrants. The magistrate cited no legal
authority, either statutory or case law, supporting this ruling.
¶3 The magistrate found that mother’s testimony was necessary
to proceed with the paternity action and “closed” the case “until
[mother] appears in Colorado in person, or otherwise arranges for
the satisfaction of the [outstanding] warrants.” On district court
review, the district court affirmed the magistrate’s rejection of
telephone testimony and the order “closing” the case, again on the
sole ground that mother had outstanding Colorado arrest warrants.
¶4 CSS appealed the district court’s order affirming the
magistrate’s order, and this court issued a show cause order
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directing CSS to explain why the appeal should not be dismissed for
lack of a final, appealable judgment or order. A motions division of
this court, with one judge dissenting, held that the district court’s
order was, under these unusual circumstances, a final, appealable
order. The division discharged the order to show cause and
directed the appeal to proceed. CSS filed its opening brief, but no
other party has filed a brief or entered an appearance in this court.
I. This Court Has Jurisdiction Over this Appeal
¶5 Preliminarily, we address the same question addressed by the
motions division: Does this court have appellate jurisdiction?
Because the district court’s order effectively terminated the
paternity proceeding and, therefore, constituted a final, appealable
order, we conclude that we do.
¶6 Our jurisdiction is limited to review of final, appealable
judgments or orders. § 13-4-102(1), C.R.S. 2019; C.A.R. 1(a);
Marks v. Gessler, 2013 COA 115, ¶ 15. “An order is final if it ends
the particular action in which it is entered, leaving nothing further
for the court pronouncing it to do in order to completely determine
the rights of the parties involved in the proceeding.” Marks, ¶ 15. A
final, appealable order is one that prevents further proceedings or
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effectively terminates the proceedings. Id.; People v. Thomas, 116
P.3d 1284, 1285 (Colo. App. 2005). “In determining whether an
order is final, we look to the legal effect of the order rather than its
form.” Marks, ¶ 15 (citation omitted).
¶7 Because the Colorado Rules of Civil Procedure do not
authorize the indefinite “closing” of a case, we must determine the
legal nature of the “closing” order. The closest rules-based
analogue is a dismissal without prejudice because, while the order
did not preclude a later ruling that R.C. was the father, it foreclosed
that possibility under the circumstances in existence at the time.
¶8 Ordinarily, a dismissal without prejudice is not a final,
appealable order. Scott v. Scott, 2018 COA 25, ¶ 11. However,
when “the circumstances of the case indicate that the action cannot
be saved and that the district court’s order precludes further
proceedings, dismissal without prejudice qualifies as a final
judgment for the purposes of appeal.” Avicanna Inc. v. Mewhinney,
2019 COA 129, ¶ 1 n.1. A “long line of Colorado cases” supports
this exception. DIA Brewing Co. v. MCE-DIA, LLC, 2020 COA 21,
¶ 31.
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¶9 One “common situation where a complaint ‘cannot be saved’
occurs when further proceedings would be barred by a statute of
limitations.” Id. at ¶ 32; see also, e.g., SMLL, L.L.C. v. Daly, 128
P.3d 266, 268-69 (Colo. App. 2005). In these cases, a dismissal
without prejudice constitutes a final, appealable order, vesting this
court with appellate jurisdiction.1 Pham v. State Farm Mut. Auto.
Ins. Co., 70 P.3d 567, 571 (Colo. App. 2003).
¶ 10 The district’s court order here, while different in form, has the
same effect. Though it leaves open the possibility that the case
would be reopened if mother returns to Colorado to testify or
satisfies the warrants, that possibility is totally speculative. So far
as this record demonstrates, mother will never appear to testify in
person or satisfy the outstanding warrants. Thus, by refusing to
allow the child’s mother to testify by telephone (or any other means
other than in-person testimony), the court prevented, certainly
1 The statute of limitations is not a legal barrier against the filing of
a barred action; the statute of limitations is an affirmative defense
that may be waived, so a time-barred action may be filed subject to
the affirmative defense of the statute of limitations. Zertuche v.
Montgomery Ward & Co., 706 P.2d 424, 426 (Colo. App. 1985).
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indefinitely and maybe permanently, an adjudication that is
mandated by law.
¶ 11 In addition, the fact that the order deprives the litigants of
statutorily protected rights (irrespective of whether the orders
entered by the magistrate and the district court were legally
erroneous) bears on the jurisdictional inquiry. The state has an
obvious interest in determining paternity so that a biological father
can be required to support his child. Kulko v. Superior Court, 436
U.S. 84, 92 (1978); In re Marriage of Malwitz, 99 P.3d 56, 63 (Colo.
2004). The child has an independent interest in receiving the
support required by law. Abrams v. Connolly, 781 P.2d 651, 656
(Colo. 1989). The district court’s order thwarts these interests.
¶ 12 Finally, we reject the dissent’s suggestion that the availability
of an original proceeding under C.A.R. 21 is an adequate alternative
to an appeal. No party has the right to an extraordinary writ under
C.A.R. 21; the issuance of such a writ is entirely committed to the
discretion of the Colorado Supreme Court. C.A.R. 21(a).
Accordingly, the availability of C.A.R. 21 relief is not an adequate
substitute for the statutory right to appeal.
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¶ 13 Accordingly, based on the practical effect of the district court’s
order, it is a final, appealable order.
II. There Was No Legal Basis to Refuse Remote Testimony
¶ 14 The controlling statute did not authorize either the magistrate
or the district court to refuse telephone testimony by mother.
Section 14-5-316(a), (f), C.R.S. 2019, states:
(a) The physical presence of a nonresident
party who is an individual in a tribunal of this
state is not required for the establishment,
enforcement, or modification of a support
order or the rendition of a judgment
determining parentage of a child.
....
(f) In a proceeding under this article, a tribunal
of this state shall permit a party or witness
residing outside this state to be deposed or to
testify under penalty of perjury by telephone,
audiovisual means, or other electronic means
at a designated tribunal or other location. A
tribunal of this state shall cooperate with other
tribunals in designating an appropriate
location for the deposition or testimony.
¶ 15 Simply put, there is no legal authority prohibiting telephone
testimony by mother based on her refusal to appear in person. This
is true whether the reason for her refusal to appear in person was
based on the existence of outstanding arrest warrants or otherwise.
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¶ 16 Neither the district court nor the magistrate cited any
authority supporting the order prohibiting telephone testimony, and
we have found none. To the contrary, the statute is clear on its face
and required the court to accept remote testimony under section
14-5-316(f).
¶ 17 We recognize that C.R.C.P. 43(i) establishes the procedures for
and ordinarily grants discretion to trial courts with respect to the
acceptance of absentee testimony. The court usually must
determine if the interests of justice require the acceptance of
absentee testimony. C.R.C.P. 43(i)(3). We need not do so here. In
this paternity action, the court’s usual discretion to reject absentee
testimony is plainly displaced by section 14-5-316(a) and (f).
¶ 18 That statutory displacement is entirely understandable. This
is a paternity action brought by a unit of the state, at the request of
a sister state, to determine paternity, and if paternity is established,
to order child support. As noted above, states have an obvious and
substantial interest in requiring parents to support their children.
Kulko, 436 U.S. at 92; Malwitz, 99 P.3d at 63. These reasons
include governmental fiscal policy; if a parent is required to support
his child, the level of support by the government may be reduced or
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even eliminated. People in Interest of S.P.B., 651 P.2d 1213, 1217
(Colo. 1982). Moreover, the child whose paternity is in question
also has a legal right to support from his or her biological parents.
Abrams, 781 P.2d at 656.
III. Conclusion
¶ 19 The district court’s order affirming the closure of the case is
reversed. The case is remanded to the district court with
instructions that telephone testimony by the mother is to be
permitted and for further proceedings consistent with the paternity
statute and this opinion.
JUDGE PAWAR concurs.
CHIEF JUDGE BERNARD dissents.
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CHIEF JUDGE BERNARD, dissenting.
¶ 20 I respectfully dissent because I do not think that we have
jurisdiction to hear this appeal.
¶ 21 First, “[t]he dismissal of a complaint without prejudice is
generally not appealable unless such dismissal prohibits further
proceedings, such as when the applicable statute of limitations
would prevent the reinstitution of the suit.” Golden Lodge No. 13,
I.O.O.F. v. Easley, 916 P.2d 666, 667 (Colo. App. 1996); see Farmers
Union Mut. Ins. Co. v. Bodell, 197 P.3d 913, 916 (Mont. 2008) (An
order dismissing a complaint without prejudice is not an appealable
order unless special circumstances exist, such as “the running of a
statute of limitations, language in the order of dismissal indicating
that the complainant will not be permitted to re-plead, or where the
practical effect of the order of dismissal terminates the litigation in
the complainant’s chosen forum.”).
¶ 22 Relying on this authority, I conclude that the order closing the
case does not “prohibit[] further proceedings.” Golden Lodge No. 13,
I.O.O.F., 916 P.2d at 667. Indeed, the order sets out clear
conditions for reopening the case: mother can appear in Colorado or
satisfy the pending arrest warrants. I therefore think that we do
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not have jurisdiction over this appeal because the order closing the
case is not final.
¶ 23 Second, I think that C.A.R. 21 provides an adequate remedy.
There is ample authority indicating that C.A.R. 21 is the proper
vehicle for seeking review of orders, such as this one, that are not
final. See People in Interest of A.E.L., 181 P.3d 1186, 1191 (Colo.
App. 2008) (“Because [interim orders in a dependency and neglect
case] are not final orders subject to appeal, review of such orders
may only be sought pursuant to C.A.R. 21.”); People in Interest of
M.W., 140 P.3d 231, 233 (Colo. App. 2006) (concluding that,
because “temporary custody orders are not subject to appeal, . . .
review must be taken pursuant to C.A.R. 21”).
¶ 24 And “C.A.R. 21 authorizes [the supreme court] to review a trial
court’s order if a remedy on appeal would not be adequate.” Willhite
v. Rodriguez-Cera, 2012 CO 29, ¶ 8. We cannot craft an adequate
remedy in this appeal because the order is not final. See id. (“An
order quashing service is not a final order that is immediately
appealable,” so C.A.R. 21 was the proper vehicle to review the
order.).
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