Background
During the parties’ dissolution case, Marjorie Grace Burge sought a civil protection order against Jun-Kyou Park. A magistrate entered a temporary order and set a hearing on a permanent order. Although Burge moved to continue the hearing the evening before it was scheduled, the magistrate proceeded without ruling on that request and later deemed it moot. Park did not appear, and the magistrate entered a permanent protection order by default.
Park sought reconsideration under Colorado Rules of Civil Procedure 59 and 60(b), but the magistrate concluded it lacked jurisdiction to entertain those motions. Park then timely petitioned the district court to review the magistrate’s order, seeking a new hearing under Rule 60(b)(1) and (b)(5). The district court adopted the magistrate’s order as its final order.
The Court’s Holding
The Colorado Court of Appeals affirmed. It declined to address Park’s one-sentence due-process challenge to the magistrate’s default order because the argument was underdeveloped and unsupported by authority.
The court held that the district court erred in stating Park had failed to identify any alleged magistrate error: his petition did identify a claimed due-process error. But the error was harmless because Rule 60(b) relief was premature when raised in Park’s petition for district-court review. There was no district-court judgment subject to Rule 60(b) until the district court acted on that petition. The court also held that Rule 60(b)(5) did not apply because Park’s asserted grounds fell within Rule 60(b)(1).
Key Takeaways
- A Rule 60(b) request to set aside a magistrate’s protection-order ruling is premature when included in a petition for district-court review of that ruling.
- Rule 60(b)(5) is reserved for extraordinary circumstances not covered by another Rule 60(b) provision.
- An appellate court may treat a district court’s reasoning error as harmless when the requested relief was procedurally unavailable.
Why It Matters
The decision distinguishes review of a magistrate’s ruling from post-judgment relief from the district court’s final judgment. Litigants challenging magistrate orders must identify specific errors in their review petitions and use Rule 60(b) only after a judgment exists that the rule can reach.
The court denied Burge’s request for appellate attorney fees but awarded her appellate costs as the prevailing appellee.