specially concurring.
While I concur in the result reached by the majority and the conclusion that the Colorado Rules for Magistrates, as amended effective January 1, 2000, apply to the motion at issue here, see C.R.M. 2, I write separately to point out that even under the interpretation of the rules advanced by Richard Garner (father), the appeal must be dismissed for lack of jurisdiction.
Father argues that the terms "with consent" and "without consent" in CRM. 7 should be given their literal meaning and that because the parties agreed that the magistrate could hear father's motion and consented to the magistrate hearing this matter, review of the order should be governed by C.RM. 7(b). However, because father has not demonstrated consent under the current rules, this argument fails.
I agree with the majority that this matter remains a family law case governed by §§ 13-5-301 to 18-5-805, C.R.S8.2000. Un*1244der § 13-5-305, any party may appeal a decision of the family law magistrate pursuant to rules promulgated by the supreme court. C.R.M. 7 sets forth the rules governing such appeals. Under C.R.M. 7(a)(1), a party may obtain review of a magistrate's order or judgment entered without consent of the parties by filing a motion to review such order or judgment with the reviewing district court judge within a prescribed time. Under C.RM. 7(b), orders or judgments entered with consent are not subject to review under C.R.M. 7(a), but "shall be appealed pursuant to the Colorado Appellate Rules in the same manner as orders or judgments of the district court." However, C.R.M. 7 does not further indicate whether a party may or may not bypass district court review by consenting to a magistrate proceeding in those cases where the statute provides for action by the magistrate even without consent. C.R.M. 7 is simply silent on this issue.
Thus, in my view, a reasonable alternative interpretation of C.R.M. 7 as it is presently written is the literal interpretation advanced by father, ie, if consent is in fact provided for the magistrate proceeding, then in all family law matters, district court review is not required. This position is supported by the plain language of C.R.M. 7, the lack of terms in C.R.M. 7 precluding such an interpretation, and an implied purpose of the Colorado Rules for Magistrates to expedite appellate review without the necessity of intervening district court review, at least in family law matters. CL § 19-1-108(5), C.R.S. 2000 (in magistrate proceedings under the Children's Code, a petition for review is a prerequisite before an appeal may be filed with the appellate courts).
Nevertheless, C.R.M. 5 provides in pertinent part as follows:
(a) Consent:
(1) Consent in District Court:
(A) For the purposes of the rules, a party is deemed to have consented to a proceeding before a magistrate if:
(i) The party has affirmatively consented in writing or on the record; or
i) The party failed to appear at a proceeding after having been provided notice of that proceeding.
Here, father asserts that the parties consented to proceeding before the magistrate and points to statements in the parties' briefs indicating that consents were previously given. However, he has not referred us to any portion of the record, and our separate review has not revealed any evidence indicating that the parties affirmatively consented in writing or on the record after the effective date of the new rules to have the current motion heard by the magistrate. Therefore, even if we were to accept father's interpretation of the rule that review before a district judge would not be required upon demonstration that the parties had actually consented, such consent is absent in this case within the meaning of CRM. 5(@)(1). Therefore, the judgment here was entered without "consent" and was subject to review before the district judge under CRM. T(a)(1).
Accordingly, I1 concur that we do not have jurisdiction to consider father's appeal, and the appeal must be dismissed.