in Interest of S.C

2020 COA 95

• Court: Colorado Court of Appeals
• Decided: June 11, 2020
• Docket: 19CA1277, People
• Status: Published

Opinion

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

1 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

2 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.

3 ¶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).

4 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.

5 ¶ 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.

6 ¶ 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

7 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.

8 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

9 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.).