author: Judge LOEB.

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Jose L. GARCIA, Defendant-Appellant.
    No. 02CA2212.
    Colorado Court of Appeals, Div. IV.
    March 11, 2004.
    Ken Salazar, Attorney General, John J. Fuerst, III, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    David S. Kaplan, Colorado State Public Defender, Keyonyu X O’Connell, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.
   Opinion by

Judge LOEB.

Defendant, Jose L. Garcia, appeals the sentence entered upon judgment of conviction for sex assault on a child by one in a position of trust. We dismiss the appeal.

Defendant was convicted of sex assault on a minor by one in a position of trust under § 18-3^405.3(2), C.R.S.2003, and was originally sentenced to eight years to life under the Colorado Sex Offender Lifetime Supervision Act, § 18-1.3-1004, C.R.S.2003. Defendant appealed his sentence, and a division of the court remanded. Upon remand, the trial court sentenced defendant to twenty years to life intensive supervised probation. People v. Garcia, 2002 WL 1773306 (Colo.App. No. 00CA1584, Feb. 21, 2002)(not published pursuant to C.A.R. 35(f)).

On appeal, defendant contends that the sentencing provisions of the Lifetime Supervision Act are unconstitutional. The People disagree and also contend that defendant’s appeal is moot because he has been deported from the United States. We agree with the People that this appeal is moot.

We first note that the only evidence of deportation on appeal is an affidavit from defendant’s probation officer recommending revocation of probation on the basis that the officer learned from the Immigration and Naturalization Service that defendant had been deported. Thus, we do not know whether defendant was deported based on this conviction or on some other grounds. However, defendant has not contested the People’s allegation that he has been deported. For purposes of this argument, we will assume, in defendant’s favor as discussed below, that he was deported based on the conviction at issue here.

When an immigrant defendant is convicted of a sexual assault on a child, the immigrant is subject to deportation and becomes ineligible for reentry into the United States. See 8 U.S.C. § 1182(a)(2)(A)(i)(I) (alien inadmissible for conviction of crime of moral turpitude); 8 U.S.C. § 1227(a)(2)(A)© (alien deportable for crime of moral turpitude); Bendel v. Nagle, 17 F.2d 719 (9th Cir.1927)(carnal knowledge of child is offense involving moral turpitude).

If the conviction that forms the basis of the deportation and reentry bar were overturned on appeal, the defendant would no longer be barred from reentry. See 8 U.S.C. § 1182(a)(2)(A) (requiring conviction for inadmissibility). Contrary to the People’s contention, when the bar to reentry is the product of the conviction itself, it does not render the appeal moot, but, to the contrary, is a collateral consequence of the conviction that could be remedied on appeal. United States v. Marsh, 747 F.2d 7, 9 n. 2 (1st Cir.l984)(ap-peals are not moot because record of conviction constitutes continuing harm which may prevent entry into United States in future); Cuellar v. State, 13 S.W.3d 449 (Tex.App.2000)(appeal of narcotics conviction is not moot because conviction prevents individual from reentering United States or obtaining visa); State v. Ortiz, 113 Wash.2d 32, 774 P.2d 1229, 1230 (1989)(“Far from mooting his appeal, [defendant’s] deportation makes the appeal all the more significant.”).

Moreover, we disagree with the People that deportation is analogous to escape. See State v. Ortiz, supra (distinguishing between flight of fugitive and involuntary deportation); cf. People v. Del Rio, 14 N.Y.2d 165, 250 N.Y.S.2d 257, 199 N.E.2d 359 (1964)(con-sensual deportation arranged for international exchange of prisoners for hostages analogous to escape because prisoner affirmatively abandoned appeal).

However, defendant here has only appealed his sentence, not his conviction. Because the reentry bar is based on the nature of the crime, rather than the sentence, regardless of the outcome of this appeal, defendant’s bar to reentry will remain in effect. See 8 U.S.C. § 1182(a)(2)(A)(i)(I) (crime of moral turpitude); 8 U.S.C. § 1157(a)(2)(A)© (same). As a result, because defendant is no longer in the United States and is subject to a permanent bar on attempted reentry into this country, he will not serve his sentence here, and thus, the outcome of the appeal has no practical effect upon him. See Freedom from Religion Found., Inc. v. Romer, 921 P.2d 84, 88 (Colo.App.1996)(appellate courts will not generally render opinions on merits of appeal when issues become moot because of subsequent events; a case is moot when judgment would have no practical effect upon existing controversy). Accordingly, his appeal is moot.

Appeal dismissed.

Judge CASEBOLT and Judge GRAHAM concur.


source: Caselaw Access Project

author: Judge CARPARELLI.

license: Public Domain

text:
    In the Matter of the ESTATE OF Donna L. GALLAVAN, Deceased. Joseph James Verce, Jr., Personal Representative of the Estate of Carla M. Verce, Deceased, Petitioner-Appellant, v. Phillip R. McClendon, Personal Representative of the Estate of Donna L. Gallavan, Deceased; and Shriners Hospitals for Children, Residuary Beneficiary under the Will of Donna L. Gallavan, Deceased, Respondents-Appellees.
    No. 02CA2513.
    Colorado Court of Appeals, Div. III.
    March 11, 2004.

      Bruce M. Kirkpatrick, Durango, Colorado, for Petitioner-Appellant.
    Jerry F. Venn, Pagosa Springs, Colorado, for Respondent>-Appellee, Phillip R. McClen-don.
    Frank J. Anesi, Durango, Colorado, for Respondent-Appellee, Shriners Hospitals for Children.

       Sitting by assignment of the Chief Justice under provisions of Colo. Const, art. VI, § 5(3) and § 24-51-1105, C.R.S.2003.

   Opinion by

Judge CARPARELLI.

In this formal testacy proceeding as to the estate of Donna L. Gallavan (decedent), Joseph James Verce, Jr. (contestant), as personal representative of decedent’s sister, Carla M. Verce, appeals the trial court’s judgment denying his petition for adjudication of intestacy. Phillip R. McClendon, as decedent’s personal representative, and Shri-ners Hospitals for Children, as a devisee, opposed the petition. We affirm.

Decedent was a protected person under conservatorship when she executed a will that contained a testamentary trust for the benefit of her sister and brother during their lives. Upon the death of both beneficiaries, the trust was to terminate, and trust proceeds were to be distributed to Shriners Hospitals.

Decedent died in July 1999. Her personal representative submitted the will to informal probate. Decedent’s sister survived decedent, but died in September 1999. Her brother also survived her, but died in October 2001 while the estate was in probate. Contestant later filed the petition for adjudication of intestacy at issue here, alleging that decedent lacked testamentary capacity to execute the will.

I.

Contestant urges us to conclude that the will is invalid because decedent lacked testamentary capacity. We perceive no basis for such a conclusion.

A person has testamentary capacity if he or she is an “individual eighteen or more years of age who is of sound mind.” Section 15-11-501, C.R.S.2003. The soundness of a testator’s mind may be evaluated under either the Cunningham test or the insane delusion test. See Breeden v. Stone, 992 P.2d 1167 (Colo.2000); Cunningham v. Slender, 127 Colo. 293, 255 P.2d 977 (1953).

Under the Cunningham test, a person has testamentary capacity when (1) she understands the nature of her act; (2) she knows the extent of her property; (3) she understands the proposed testamentary disposition; (4) she knows the natural objects of her bounty; and (5) the will represents her wishes. Cunningham v. Stender, supra. Under the insane delusion test, a person lacks testamentary capacity when she suffers from an insane delusion that materially affects her disposition in the will. Breeden v. Stone, supra.

A.

Contestant contends that the judicial appointment of the conservator establishes that decedent was “incapacitated” and, thus, that she lacked testamentary capacity. We are not persuaded.

Contestant first points to the language of § 15-14-401(l)(b), C.R.S.2003, which allows appointment of a conservator for one who is unable to manage property and business affairs because of inability “to effectively receive or evaluate information or both or to make or communicate decisions” affecting her assets. He then points to the statutes that allow appointment of a guardian for an “incapacitated person,” defined in § 15-14-102(5), C.R.S.2003, as, in pertinent part, one who is unable “to satisfy essential requirements for physical health, safety, or self-care,” because of inability “to effectively receive or evaluate information or both or make or communicate decisions.” He argues that the provisions include similar phrases and that, as a result, the appointment of decedent’s conservator establishes that decedent was “incapacitated” when she wrote the will. This argument is contrary to the explicit language of the statutes.

When the meaning of a statute is plain and free from ambiguity, we may conclude that the legislature made a deliberate choice that was “calculated to obtain the result dictated by the plain meaning of the words,” Hendricks v. People, 10 P.3d 1231, 1238 (Colo.2000)(quoting City & County of Denver v. Gallegos, 916 P.2d 509, 512 (Colo.1996)), and we give effect to that meaning without resorting to rules of statutory interpretation. In re Estate of DeWitt, 54 P.3d 849 (Colo.2002).

Section 15-14-401 pertains to the appointment of a conservator to ensure that assets a person needs for her own support, care, education, health, and welfare, or for that of others who are entitled to her support, are not wasted or dissipated. The appointment of a conservator does not include a finding of “incapacity.” In fact, when decedent wrote her will, the version of § 15-14-408(6) then in effect provided that “[a]n order ... determining that a basis for appointment of a conservator ... exists, has no effect on the capacity of the protected person.” Colo. Sess. Laws 1979, eh. 451, § 153-5-408(6) at 1626 (repealed effective January 1, 2001). Similarly, the current statute, § 15-14-409(4), C.R.S.2003, states that appointment of a conservator “is not a determination of incapacity.”

Thus, the statute explicitly states that findings that warrant appointment of a conservator do not equate to a determination of testamentary incapacity.

Here, the trial court reached the same conclusion based on the holding in In re Estate of McCrone, 106 Colo. 69, 101 P.2d 25 (1940), and contestant argues that reliance was error. However, contestant also argues that the court should have applied the current statutes. Because we conclude that the court’s ruling was correct under those statutes, we need not address contestant’s argument concerning McCrone. See People v. Gresl, 89 P.3d 499, 2003 WL 23095411 (Colo. App. No. 00CA1170, Dec. 31, 2003).

B.

Contestant also asserts that the trial court erred when it held that decedent had testamentary capacity. We disagree.

Findings of fact will not be set aside unless they are clearly erroneous. C.R.C.P. 52; Mesa County Valley Sch. Dist. No. 51 v. Kelsey, 8 P.3d 1200 (Colo.2000); In re Estate of Heyn, 47 P.3d 724 (Colo.App.2002); In re Estate of Perry, 33 P.3d 1235 (Colo.App.2001).

Here, the trial court applied and made findings appropriate to the Cunningham and insane delusion tests, and there is substantial evidence in the record to support the court’s findings. We perceive no basis for overturning this ruling.

C.

Contestant also argues that the will or, in the alternative, the trust is invalid because a protected person cannot execute a valid will that includes a trust. Again, we are not persuaded.

When a court appoints a conservator, the protected person’s assets are vested in the conservator. As a result, the protected person cannot transfer assets to others, including an inter vivos trust. See §§ 15-14-421, 15-14-422, C.R.S.2003. Here, however, decedent had testamentary capacity and, as a result, could bequeath assets to others, create a testamentary trust, and bequeath some or all of her estate to such a trust. Because she did not transfer any assets during her lifetime, the conservatorship was not implicated. Therefore, we conclude that, even if appointment of a conservator prevents a protected person from creating an inter vivos trust, it does not prevent a protected person who has testamentary capacity from creating a testamentary trust.

II.

Contestant next argues that a personal representative may not assist a proponent of the will in a will contest because the personal representative is not an interested party. Contestant further argues that a personal representative who defends a will diminishes the value of the estate he is obligated to protect. However, it is not clear what relief contestant seeks on appeal. To the extent contestant argues that the trial court should have struck the personal representative’s brief, we conclude that such error, if any, was harmless.

It is well settled that a judgment entered by a trial court will not be reversed for alleged errors unless they are shown to be prejudicial to the substantial rights of the party claiming to be aggrieved thereby. Bigler v. Richards, 151 Colo. 325, 377 P.2d 552 (1963).

Here, assuming, without deciding, that the personal representative lacked standing to participate in the will contest, we note that the personal representative’s brief was not the only brief before the trial court. Shri-ners Hospitals also submitted a brief in defense of the will. Moreover, the trial court applied the Cunningham and insane delusion tests in its determination that decedent had testamentary capacity and correctly concluded that the appointment of the conservator did not control. Consequently, contestant has not shown that his substantial rights in the proceedings to invalidate the will were prejudiced by the personal representative’s participation.

To the extent contestant argues that a personal representative may not be reimbursed for expenses incurred to defend a will, and to the extent he argues that the personal representative here breached his fiduciary duty to protect the assets of the estate, these issues were not raised before the trial court and therefore are not properly before us on appeal. See Estate of Stevenson v. Hollywood Bar & Cafe, Inc., 832 P.2d 718 (Colo.1992)(issues may not be raised for the first time on appeal where the trial court has not had the opportunity to rule on them).

The judgment is affirmed.

Judge ROY and Judge PIERCE concur.


text:
    In re the MARRIAGE OF Kelly L. ROOSA, n/k/a Kelly L. Bryan, Appellee, and Steven E. Roosa, Appellant.
    No. 02CA2533.
    Colorado Court of Appeals, Div. IV.
    March 11, 2004.

      Heekenbach Carlton, LLP, David W. Heckenbach, Lone Tree, Colorado, for Appel-lee.
    Allen C. Christensen, Attorney at Law, P.C., Allen C. Christensen, Edwards, Colorado, for Appellant.
   Opinion by

Judge LOEB.

In this post-dissolution of marriage case, this court ordered Steven E. Roosa (father) to show cause why his appeal should not be dismissed for failure to obtain district court review of a magistrate’s order and for lack of a final, appealable order. We have considered the record and the parties’ briefs on the jurisdictional issues and now discharge the ■order to show cause in part, make it absolute in part, dismiss the appeal, and remand for further proceedings.

The original 1998 decree provided for the parties’ joint legal custody of their three children, with Kelly L. Bryan (mother) as the primary residential custodian, and father’s payment of child support. The following year, the parties stipulated to, and the court ordered, split residential custody and a concomitant reduction in child support, with the two sons living with father in Colorado and the daughter living with mother in Florida. The provision for joint legal custody was not modified.

As to the property division, the original decree provided that the marital residence in Colorado was to be listed and sold, with the proceeds evenly divided after payment of certain expenses. However, the court subsequently approved the parties’ stipulation allowing father to retain the residence in exchange for payment to mother.

In 2001, mother filed the two motions at issue in this appeal. First, she requested entry of an order, pursuant to § 14-10-129, C.R.S.2003, to modify the primary residence of the children, to reflect that the two sons were again living with her by agreement of the parties, a corresponding modification of child support, and enforcement of the provisions of the decree requiring that father pay for certain insurance coverage. Second, she filed a motion for enforcement and clarification of the modified order regarding payment of her share of the equity in the marital residence.

Prior to hearing these two motions, the magistrate informed the parties that a hearing before a magistrate “for changing ... the primary residence requires a consent by the parties.” The magistrate requested, and the parties filed, written consents to having the magistrate hear the issue of the children’s change of residence. The magistrate then conducted a hearing and issued two orders from which father now appeals.

In a July 2002 order, the magistrate ordered that mother was to receive the entire net proceeds of the sale of father’s Florida property. The proceeds were to be applied first to retroactive child support, the amount of which was reserved for subsequent determination, then to deferred interest on the note payable to mother in connection with the marital residence, and then to child support, maintenance, and interest arrearages in the amount of $6,000.

In the same order, the magistrate ordered that the children were to reside with mother, but left the parenting time schedule unresolved. Because mother had not requested any modification of the previous order for joint legal custody, the magistrate noted that the parties were to “continue to share joint decision-making for the minor children.”

Soon after entry of the July 2002 order, father filed a motion pursuant to C.R.C.P. 60(b) requesting reconsideration or modification of the order to reflect the parties’ alleged agreement that mother would receive only a part of the net proceeds from the sale of the Florida property.

In a December 2002 order, the magistrate denied the C.R.C.P. 60(b) motion and ordered father to pay increased child support, retroactive to September 2001. Citing inadequate evidence of the amount of arrearages, the magistrate again declined to enter an amount due; instead, the parties were instructed to calculate the amount, and if they were unable to agree, they were granted leave to file a motion requesting the magistrate to determine the amount.

No district court review of these orders was requested. Father then appealed the July 2002 and December 2002 orders to this court. Questioning the finality of these orders, the lack of district court review, and the magistrate’s jurisdiction over these issues, we requested the parties to show cause why the appeal should not be dismissed. The parties filed simultaneous briefs on the issues.

I. Magistrate’s Jurisdiction

We first conclude that the magistrate had jurisdiction to consider mother’s motions.

A. Family Law Terminology

In order to analyze the jurisdictional issue properly, it is necessary to understand and clarify the changes in terminology used in family law cases in the intervening years between the original decree and the magistrate’s July 2002 order.

Effective February 1, 1999, the General Assembly enacted a statutory framework in which the term “custody” was abandoned and changed to “parental responsibilities,” which includes both “decision-making responsibilities” and “parenting time,” as those terms are now used. See §§ 14-10-103(4), 14-10-124(1.5), C.R.S.2003; In re Marriage of Stewart, 43 P.3d 740 (Colo.App.2002)(change was effective February 1, 1999, as provided in § 14-10-103(4)); In re Marriage of Schenck, 39 P.3d 1250 (Colo.App.2001); see also Angela R. Arkin & Robert T. Hines, III, Addressing New Standards for Modification Under the Parental Responsibility Act, 28 Colo. Law. 67 (June 1999); A. Elizabeth Henson, et al., Elimination of “Custody” in Colorado: The Impact of H.B. 1183, 27 Colo. Law. 83 (Sept.1998).

In turn, the terms “joint custody” and “legal custody” were replaced by “decision-making responsibilities.” Compare Colo. Sess. Laws 1983, ch. 178, § 14-10-123.5(1) at 645 (defining “joint custody” as “an order awarding legal custody of the minor child to both parties and which provides that all decisions regarding the health, education and general welfare of the child shall be made jointly”), with § 14-10-124(1.5)(b),(court allocates “decision-making responsibility with respect to each issue affecting the child”), § 14-10-124(6), C.R.S.2003 (contemplating that decision-making includes medical issues), and § 14-10-130(1) C.R.S.2003 (expressly indicating that decision-making relates to education, health care, and religion). See generally People in Interest of A.M.K., 68 P.3d 563 (Colo.App.2003)(trial court order on decision-making authority included religious, medical, day-to-day matters and education issues).

Similarly, the terms “residential custody” and “physical custody” and terms relating to the residential or physical placement of the child (including what was formerly known as visitation rights) all now appear to be encompassed by the term “parenting time,” as a result of the 1999 statutory changes. See § 14-10-129 (modification of parenting time governs changes in a child’s residence, including “the party with whom the child resides a majority of the time”); § 14-10-103(3), C.R.S.2003 (as of July 1, 1993, changing the term “visitation” to “parenting time”); §§ 14-10.5-102, 14-10.5-104, C.R.S. 2003 (the Parenting Time Enforcement Act provides the child with access to the “parent with whom the child does not reside the majority of the time”); N.A.H v. S.L.S., 9 P.3d 354, 359 n. 2 (Colo.2000)(“The term ‘parenting time’ replaces notions of custody and visitation rights. The General Assembly recently clarified that children are not to be treated as property and apportioned between parents. Accordingly, we no longer use the term custody, but rather parental rights and responsibilities. Courts no longer adjudicate custody and visitation, but rather divide parenting time.” (citation omitted)); People in Interest of A.M.K., supra (contrasting primary residential care with decision-making authority).

B. Jurisdictional Analysis

Mother’s motions were filed after January 1, 2000, and, therefore, this ease is governed by the Colorado Rules for Magistrates (C.R.M.) in effect at the time those motions were filed. See People ex rel. Garner v. Garner, 33 P.3d 1239, 1241 (Colo.App.2001)(date of filing of motion at issue, not date of commencement of case, dictates application of new C.R.M.).

Under the version of C.R.M. 6(b) applicable to this case, in family law cases, a district court magistrate may perform the duties specified in §§ 13-5-301 to 13-5-305, C.R.S.2003. See In re Marriage of Malewicz, 60 P.3d 772, 774 (Colo.App.2002); cf. C.R.M. 6(b) (rule revised effective Nov. 6, 2003, distinguishing functions of district court magistrates and family law magistrates in family law cases). Under these sections, family law magistrates have the power and authority to modify and enforce orders for child support and to conduct hearings upon motions and postjudgment proceedings under the Uniform Dissolution of Marriage Act (UDMA), § 14-10-101, et seq., C.R.S.2003. Section 13 — 5—301(3)(a), (3)(e)(V.5), (3)(e)(VTI)(B), C.R.S.2003. Accordingly, the magistrate clearly had jurisdiction over mother’s motions regarding the child support and property issues.

It is less clear whether the magistrate had jurisdiction over the parenting time issue. Section 13-5-301(3)(e)(V), C.R.S.2003, provides that family law magistrates have the power and authority to conduct hearings under the UDMA regarding “[p]arenting time, and the modification thereof, including motions to restrict parenting time or parental contact, where the allocation of parental responsibilities is not an issue ” (emphasis added).

In In re Marriage of Ferris, 75 P.3d 1170 (Colo.App.2003), a division of this court recently noted, without resolving, an ambiguity in this statute. Section 13-5-301(3)(e)(V) grants magistrates authority to hear certain parenting time issues, but simultaneously prohibits them from hearing issues as to the allocation of parental responsibilities. This statute is inconsistent, given that parental responsibilities include parenting time. See § 14-10-124(1.5); In re Marriage of Schenck, supra; cf. § 14-10-112, C.R.S.2003 (illustration of additional inconsistent use of the term; subsections (1) and (2) redundantly refer to “parental responsibilities ... and parenting time,” while subsection (6) correctly refers to “decision-making responsibility! ] or parenting time”).

Where possible, a statute should be interpreted to give effect to all its parts. We presume that the legislature intends a just and reasonable result when it enacts a statute, and we will not read a statute to provide an unreasonable or absurd result. People v. Madden, - P.3d -, 2003 WL 21939695 (Colo.App. No. 02CA0024, Aug. 14, 2003). Furthermore, courts may correct evident errors in words or figures so as to give an act its manifest meaning. Capp v. People, 64 Colo. 58, 170 P. 399 (1917)(reference in statute to one section, where another section was plainly intended, was subject to correction by the court); People v. Madden, supra (reference in statute to nonexistent section is merely a typographical error that may be corrected by the court, thereby allowing logical reading of statute).

Here, a logical and reasonable interpretation of § 13-5-301(3)(e)(V), in conjunction with the UDMA, leads us to conclude that the General Assembly meant to allow magistrates to resolve parenting time issues, but not decision-making responsibilities. See Town of Erie v. Eason, 18 P.3d 1271 (Colo.2001)(if the result is absurd, court may interpret the statute by considering laws upon the same or similar subjects). Because parenting time together with decision-making responsibilities constitute parental responsibilities, use of the term “parental responsibilities” in § 13-5-301(3)(e)(V), rather than “decision-making responsibilities,” was obviously an error that we may correct. See Capp v. People, supra; People v. Madden, supra.

Thus, we conclude that the magistrate had jurisdiction to consider the parenting time issues, including the residential placement, in this case. The magistrate was not asked to and did not change the original grant of joint legal custody, a matter over which he lacked jurisdiction. See In re Marriage of Ferris, supra (where mother filed motion to modify decision-making responsibility, parenting time, and child support, magistrate’s order was vacated for lack of jurisdiction).

We are not persuaded otherwise by mother’s argument that because father is not appealing the issue of parenting time, Ferris is inapplicable. While it is true that father’s advisory list of issues in his notice of appeal does not include parenting time, the fact that the magistrate ruled on a motion that includes parenting time warrants our resolution of the jurisdictional issue. See In re Marriage of Ferris, supra (even though magistrate had jurisdiction over child support, fact that decision-making was at issue resulted in vacation of entire order). Furthermore, because child support was collateral to, and dependent upon, the amount of parenting time awarded, the issues were inextricably intertwined. See In re Marriage of Redford, 776 P.2d 1149 (Colo.App.1989)(number of overnights must be determined before child support may be calculated).

Nor are we persuaded otherwise by the fact that the parties consented to the magistrate hearing mother’s motions. Their consent is irrelevant, because the magistrate had authority to hear the motions regardless of that consent. See In re Marriage of Phelps, 74 P.3d 506, 509 (Colo.App.2003).

II. Appellate Jurisdiction

Because the parties’ consent was not required for the magistrate’s jurisdiction, a motion for district court review was necessary prior to appeal of these orders. See C.R.M. 7(a); People ex rel. Garner v. Garner, supra. However, for reasons discussed below, we conclude that district court review can be had only when the magistrate issues a final order.

A. Parenting Time and Child Support Order

Here, there was no final order regarding parenting time and child support because the amount of retroactive child support and the specifics of the parenting time were left unresolved. Even if the parties were able to agree on these issues, given the posture of the magistrate’s rulings, the magistrate would still need to adopt their agreement to finalize the order. See In re Marriage of Micaletti, 796 P.2d 54 (Colo.App.1990)(court is not bound by parties’ agreements regarding support and custody).

Piecemeal review of orders and judgments that do not fully resolve an issue or claim is generally discouraged at any level of review, and the law in various areas specifically regulates this inefficient approach. See, e.g., Fabec v. Beck, 922 P.2d 330 (Colo.1996)(in ballot initiative, plaintiffs must exhaust available and applicable administrative remedies to prevent piecemeal application for judicial relief); Mission Viejo Co. v. Willows Water Dist., 818 P.2d 254 (Colo.1991)(C.R.C.P.54(b) certification avoids piecemeal and possibly duplicative appellate review); UPS, Inc. v. Indus. Claim Appeals Office, 988 P.2d 1146 (Colo.App.1999)(absent specific legislation to the contrary, to avoid piecemeal review, the amount of the penalty in a workers’ compensation case must be determined before the ruling as to penalties is final for purposes of judicial review); cf. § 24-10-108, C.R.S.2003 (statute specifically allowing interlocutory appeal of decision on sovereign immunity as a final judgment); In re Marriage of Mockelmann, 944 P.2d 670, 671 (Colo.App.1997) (temporary orders under § 14-10-108 are reviewable as final judgments because they establish the financial rights and obligations of the parties until the entry of permanent orders).

We perceive no reason why the review or appeal of a magistrate’s order should be treated any differently. Thus, we conclude that, in the interest of judicial economy, 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. Indeed, when a magistrate’s order is appealed directly to the court of appeals, see C.R.M. 7(b); § 13-5-301(3)(e)(VI)(A), C.R.S.2003; In re Marriage of Malewicz, supra, this court requires a final order. See City of Grand Junction v. City & County of Denver, 960 P.2d 675 (Colo.1998)(under C.A.R. 1(a)(1), appeal may be taken only from a final judgment of a district, probate, or juvenile court; appellate court does not review interlocutory orders absent specific authorization by statute or rule); Hait v. Miller, 38 Colo.App. 503, 559 P.2d 260 (1977)(except as provided in C.R.C.P. 54(b), court of appeals has jurisdiction over only final judgments).

The C.R.M. contain no specific authorization for review or appeal of interlocutory orders of a magistrate, as would be required under City of Grand Junction v. City & County of Denver, supra. Indeed, as other divisions of this court have noted, guidance on the procedures applicable to review of magistrate’s orders is yet to be developed. See In re Marriage of Schmidt, 42 P.3d 81 (Colo.App.2002)(although statute instructs supreme court to promulgate rules of procedure to govern family law magistrates, to date the supreme court has promulgated only the C.R.M., which do not contain a separate section on procedure and address only a few areas of procedure); In re Marriage of Talbott, 43 P.3d 734 (Colo.App.2002).

In the absence of such guidance, we conclude that a magistrate’s order must folly resolve the issues before the time for district court review begins to run. Here, because the parenting time and child support rulings are not yet final, the time for district court review has not yet run as to mother’s first motion. Accordingly, this portion of the appeal must be dismissed without prejudice for lack of a final, appealable order. See C.R.M. 7(a)(4).

B. Property Division Order

The property motion requires a different analysis. The magistrate fully resolved that motion by granting mother the requested relief in the July 2002 order, and therefore that portion of that order was final when entered. See Brody v. Bock, 897 P.2d 769 (Colo.1995)(where order completely determined parties’ rights with respect to distinct claim, that portion of the trial court’s order constituted a final judgment as to that claim for purposes of appeal); Gergel v. High View Homes, L.L.C., 58 P.3d 1132 (Colo.App.2002)(final judgment is a complete determination of the rights of the parties involved).

In the December 2002 order, the magistrate then denied father’s C.R.C.P. 60(b) motion for reconsideration or modification. However, that portion of the magistrate’s December 2002 order issued in response to father’s motion for reconsideration was void. See In re Marriage of Phelps, supra (declaring magistrate’s ruling on motion for reconsideration void); In re Marriage of Tonn, 53 P.3d 1185, 1187 (Colo.App.2002)(rules governing magistrates do not authorize any motion except a motion for review).

Nonetheless, because father filed his motion for reconsideration within fifteen days of the magistrate’s written order, and the motion was erroneously acted upon by the magistrate, the motion for reconsideration may be construed as a motion for district court review. See In re Marriage of Phelps, supra; In re Marriage of Spector, 867 P.2d 181 (Colo.App.1993)(under former C.R.M., time for filing motion for review did not begin running until magistrate signed written order). Accordingly, the appeal regarding the property motion must be dismissed, and the case must be remanded for district court review of the magistrate’s order on the property issues. See In re Marriage of Malewicz, supra (once motion for district court review is filed, the district court reviewing judge had to act pursuant to C.R.M. 7(a)(2) to create a final order).

The order to show cause is discharged in part and made absolute in part, the appeal is dismissed, and the case is remanded for the magistrate’s entry of a final order on parenting time and child support and for district court review of the magistrate’s final order on property issues.

Judge CASEBOLT and Judge GRAHAM concur.


author: Judge ROY.

text:
    The PEOPLE of the State of Colorado, Petitioner-Appellee, In the Interest of D.B-J., a Child, and Concerning W.B., Respondent-Appellant, and W.C. Special, Respondent-Appellee.
    No. 03CA0893.
    Colorado Court of Appeals, Div. III.
    March 11, 2004.

      James D. Robinson, County Attorney, Rebecca Wiggins, Assistant County Attorney, Denver, Colorado, for Petitioner-Appellee.
    Deborah Gans, Denver, Colorado, for Respondent-Appellant.
    David R. Gloss, Denver, Colorado, for Special Respondent-Appellee.
   Opinion by

Judge ROY.

W.B. (father) appeals from a judgment terminating the parent-child legal relationship between him and his child, D.B-J. We affirm.

I.

Father contends generally that the evidence was insufficient to support the criteria for termination set forth in § 19-3-604(l)(c), C.R.S.2003. However, he does not identify any supporting facts, make specific arguments, or set forth specific authorities to support the contention. Therefore, the contention is not properly before us on appeal, and we will not address it. See Westrac, Inc. v. Walker Field, 812 P.2d 714 (Colo.App.1991).

II.

Father also contends the trial court erred in rejecting permanent placement as a less drastic alternative and in finding that termination was in the child’s best interests. He argues that the paternal grandmother was an appropriate placement alternative and that the department of social services (department) failed in its duty to inquire as to and investigate all possible relative placement alternatives. We find no error.

Implicit in the statutory scheme for termination set forth in § 19 — 3—604(l)(c) is a requirement that the trial court consider and eliminate less drastic alternatives before entering an order of termination. People in Interest of M.M., 726 P.2d 1108 (Colo.1986). In so doing, the court must give primary consideration to the physical, mental, and emotional conditions and needs of the child. Section 19-3-604(3), C.R.S.2003.

A statutory preference arises in favor of placement with an available and appropriate grandparent if such placement is in the child’s best interests. Sections 19-1-115(1), 19-3-605, C.R.S.2003. Placement with a grandparent is not a viable alternative to termination if the grandparent lacks appreciation of the parent’s problems or of the child’s conditions or needs. See People in Interest of M.H., 855 P.2d 15 (Colo.App.1992).

The credibility of the witnesses and the sufficiency, probative effect, and weight of the evidence, as well as the inferences and conclusions to be drawn from it, are within the discretion of the trial court. Thus, a trial court’s findings and conclusions will not be disturbed on review if the record supports them. People in Interest of C.A.K., 652 P.2d 603 (Colo.1982)

Here, the department evaluated the paternal grandmother as a possible placement for the child as a less drastic alternative to termination. This evaluation consisted of a home study and psychological examination. In addition, a great-uncle and aunt were initially identified as a possible placement but they declined to be considered.

In rejecting placement with the paternal grandmother as a less drastic alternative, the trial court found that grandmother did not interact well with the child; that the child had an ambivalent attachment to grandmother; and that grandmother was not genuinely invested in participating in treatment to address her relationship with the child. The trial court further found that grandmother did not acknowledge the risk of harm to the child posed by father and that grandmother was unlikely to comply with no contact orders.

These findings are supported by evidence that the child did not engage in play with grandmother or seek her out for nurturing and that grandmother denied a need for therapy and did not comply with recommendations that she participate in individual and group therapy. The evidence further revealed that grandmother believed that father was a good, safe parent, even though he was convicted of felony child abuse and was serving a sentence in the Department of Corrections. Finally, because of grandmother’s psychological profile, her evaluating psychologist had concerns about compliance with court orders.

During the termination hearing, father testified that there might be other relatives available to care for the child, but that he needed to discuss it with them first. There is no indication that he ever identified any of these relatives to the department or to the court. On appeal, father asserts that the department was obligated to explore other family members as possible placements.

The department and trial court must consider remedies less drastic than termination. People in Interest of M.M., supra. In that regard, the department must evaluate a reasonable number of persons suggested to it as possible placements by the family and other interested persons in the course of its investigation. However, there is no statute, rule, or other authority, of which we are aware, or to which our attention has been directed, that requires the department to make special inquiry and independently identify and evaluate other possible placements within or outside the family. See 19-3-100.5(4).

Finally, the child was five years old at the time of the termination hearing and had been in multiple placements during the four-year pendency of the proceeding. His emotional problems and developmental delays were exacerbated by frequent moves and lack of permanence. Accordingly, he needed a safe, stable, permanent home with nurturing caregivers as soon as possible.

Thus, having support in the record, the trial court’s findings concerning less drastic alternatives and the child’s best interests will not be disturbed on review. See People in Interest of C.A.K., supra.

The judgment is affirmed.

Judge KAPELKE and Judge CARPARELLI concur.


text:
    John J. KAISER, Appellant, v. ROYAL INSURANCE CO. OF AMERICA, et al., Appellees.
    No. S-10703.
    Supreme Court of Alaska.
    March 19, 2004.
    Before: BRYNER, Chief Justice, EASTAUGH, FABE, and CARPENETI, Justices.
   Order

IT IS ORDERED:

1. This appeal involves a workers’ compensation recipient’s claim for reimbursement of his medical bills relating to his back surgery. John Kaiser filed a complaint with the Alaska Workers’ Compensation Board disputing his insurance carrier’s controversion of any medical benefits related to his surgery. Kaiser argued that his Compromise and Release (C & R) should be set aside; that the insurance carrier interfered with and improperly influenced the care provided by his attending physician; that his surgery expenses should be reimbursed; and that penalties and interest should be imposed for the carrier’s late payment of an MRI. The Alaska Workers’ Compensation Board did not address the issue whether the C & R should be set aside but denied the other three claims. Because the validity of the C & R is a threshold determination that should be considered before Kaiser’s other claims can be addressed, we HEREBY STAY all claims on appeal — with the exception of the claim of interference, which we REMAND for further findings — until there is a determination of whether the C & R should be set aside.

2. At a hearing held on September 20, 2000, the Alaska Workers’ Compensation Board elected to proceed to consider several of Kaiser’s claims, including his assertion that his surgery should be reimbursed, before deciding the question whether to set aside the C & R. The Board rendered its decision on the reimbursement claims on October 3, 2000, but apparently did not ever hold a hearing or reach a decision on the validity of the C & R. Kaiser argues on appeal that the C & R was not in his Rest interest and that statements in support of the C & R constituted fraud on the Board. He also claims that he approved the settlement under duress. Under AS 23.30.012 the Board may approve a settlement if it “appears to be [in] the best interest of the employee.” Kaiser alleges that significant discrepancies exist within the terms and language of the C & R that call into question whether the settlement was in his best interest. For example, he argues that the settlement waived Kaiser’s entitlement to a pain management clinic when nearly all of the doctors, including Dr. Swift, Dr. Ohlson, Dr. Mihayl, and Dr. Smith, recommended that Kaiser receive pain management treatment or further evaluation for pain management. Kaiser further contends that he did not want to waive pain management and that it was the insurance carrier that sought to exclude it from his settlement. He points to a letter dated October 17, 1997, six months before the signing of the C & R, in which he specifically requested to preserve his entitlement to a pain clinic. He also notes that prior to that letter, Dr. Ohlson and Dr. Mihayl urged, on Kaiser’s behalf, that the insurance carrier allow Kaiser to be treated at a pain clinic. Kaiser contends that in light of his clear expression of willingness to receive pain management, the C & R’s language stating that “the employee does not wish to attend” a “chronic pain program or pain clinic” is a misrepresentation. Kaiser further maintains that his agreement to the C & R was obtained under duress, emphasizing that the insurance carrier withheld his weekly disability benefits and medical compensation for over a year until he was willing to agree with the carrier on the final terms of the C & R. The insurance carrier has not responded to any of Kaiser’s appellate arguments to set aside the settlement because that issue has not yet been litigated before the Board. We REMAND for further fact-finding and a determination of whether the C & R should be set aside before we decide the dependent issues regarding Kaiser’s right to reimbursement under the terms of the C & R.

3. We also REMAND to the Board for further findings and conclusions on the question whether the insurance carrier interfered with and improperly attempted to influence Kaiser’s treating physician, retaining jurisdiction of this matter so that we may assess it in light of the ruling on the issue of the C & R’s validity. If the C & R is set aside, all dependent claims are consequently mooted. If the C & R remains intact, we will proceed to consider any points of dispute concerning whether any interference by the carrier with the treatment provided by Kaiser’s treating physician was a violation of the implied covenant of good faith and fair dealing. An implied covenant of good faith and fair dealing exists in all contracts and requires that each contracting party refrain from doing anything that would injure the right of the other party to receive the benefits of the agreement. Once an employer’s insurance carrier enters into a settlement agreement with an employee, the carrier becomes bound by the settlement, and any authority the carrier might otherwise have to communicate with the employee’s physician may become substantially restricted by the carrier’s contractual duty to comply with the express or implied terms of the agreement. If the insurance carrier takes direct action to deprive the employee of the benefit of the settlement bargain, this interference could amount to a violation of the implied covenant of good faith and fair dealing.

4. The Board’s October 3, 2000 decision determined only that Dr. Peterson’s treatment recommendation “was based on his evaluation of the employee’s medical needs, not on the terms of the employee’s settlement of his workers’ compensation benefits.” The Board’s decision did not address whether the carrier improperly influenced Kaiser’s attending physician or whether the carrier attempted to improperly influence Kaiser’s attending physician in contravention of the implied covenant of good faith and fair dealing. Kaiser alleges that the carrier interfered with his relationship with his attending physician, Dr. Peterson, by providing Dr. Peterson with inaccurate information concerning the C & R and attempting to influence his referrals. According to Kaiser, Dr. Peterson notes in his report that the insurance carrier informed him that it “settled with [Kaiser] several years ago and gave him about $80,000. Their understanding was that this was to be used for inpatient pain management services.” Kaiser also points to a letter, dated November 12, 1998, in which the insurance carrier questioned Dr. Peterson about his view that Kaiser should receive a referral to see Dr. Knight, an orthopedic surgeon in Seattle, for a second opinion regarding surgery. As Kaiser sets forth, the attorney for the insurance carrier then sent Dr. Knight an overnight express letter summarizing Kaiser’s medical history before Kaiser’s upcoming appointment with Dr. Knight despite knowledge that Dr. Peterson had already forwarded to Dr. Knight a recent discography, MRI results, and all other information relevant to the evaluation that suggested surgery may be appropriate. On remand, the Board should conduct further fact-finding on whether the carrier improperly influenced or attempted to improperly influence Kaiser’s treating physician and whether the carrier’s conduct violated the implied covenant of good faith and fair dealing.

Entered at the direction of the court.

MATTHEWS, J., not participating.

      . Although we express no view at this point concerning the meaning and scope of the best interest provision of AS 23.30.012, we note that other jurisdictions with similarly worded statutory provisions requiring that the settlement comport with the "employee's best interests" have determined that lump sum settlements are generally disfavored or that they should be provided in exceptional circumstances. Bailey v. Colonial Freight Sys., Inc. 836 S.W.2d 554, 557 (Tenn.1992); Codling v. Aztec Well Servicing Co., 89 N.M. 213, 549 P.2d 628, 630-32 (N.M.App.1976). Alabama courts have determined that the trial judge should make a specific finding on the record that the settlement is in the employee’s best interest, and, if the trial judge does not specifically make such a finding, then the record must affirmatively show that the settlement is in the employee's best interest. Ex parte Ford, 782 So.2d 185, 186-87 (Ala.2000) (citing Shaw v. Dover Furniture Mfg. Co., 700 So.2d 1382, 1384-85 (Ala.Civ.App.1997).) In Tennessee,, a trial judge is also required to make a careful inquiry into the facts and circumstances and the burden is on the worker to establish that a lump sum is in his or her "best interest” and that the worker is capable of “wisely managing and controlling the commuted award.” Bailey v. Colonial Freight Sys., Inc. 836 S.W.2d 554, 557 (Tenn.1992) (citing North Am. Royalties, Inc. v. Thrasher, 817 S.W.2d 308, 310-11 (Tenn.1991)). The Iowa Supreme Court has considered four factors in determining the employee's best interest;
      1) The worker’s age, education, mental and physical condition, and actual life expectancy (as contrasted with information provided by actuarial tables); 2) The worker’s family circumstances, living arrangements, and responsibilities to dependents; 3) The worker's financial condition, including all sources of income, debts and living expenses; 4) The reasonableness of the worker’s plan for investing the lump sum proceeds and the worker's ability to manage invested funds or arrange for management by others (for example, by a trustee or conservator).

        Dameron v. Neumann Bros., Inc., 339 N.W.2d 160, 164 (Iowa 1983).

      . Ramsey v. City of Sand Point, 936 P.2d 126, 133 (Alaska 1997) (citing Revellev. Marston, 898 P.2d 917, 926 (Alaska 1995); Mitford v. de Lasala, 666 P.2d 1000, 1006 (Alaska 1983); Guin v. Ha, 591 P.2d 1281, 1291 (Alaska 1979).)

      . We do not currently address the extent to which the carrier's authority to communicate with the physician becomes more restricted after a settlement agreement but we take note of the decisions of other jurisdictions on this issue. In a workers’ compensation case in which a chiropractor alleged that the insurance carrier interfered and improperly influenced the physician-patient relationship, the New Mexico Court of Appeals determined that rights injured by interference with an existing contract are more readily protected than if the contract is only prospective. Speer v. Cimosz, 97 N.M. 602, 642 P.2d 205, 209 (N.M.App.1982) (citing Anderson v. Dairyland Ins. Co., 97 N.M. 155, 637 P.2d 837 (1981)). In consideration of a patient's right to receive treatment without interference from the insurer, an Ohio federal district court has determined, "[wjhen an ailing person selects a physician to treat him, he does so with the full expectation that such physician will do his best to restore him to health, and the contract into which they enter is deserving of more attention from the law than a businessman’s expectation of profit from a purely commercial transaction.” Hammonds v. Aetna Cas. & Sur. Co., 3 Ohio Misc. 83, 237 F.Supp. 96, 101 (1965).

        .See Guin, 591 P.2d at 1291.