Opinion by
In this post-dissolution of marriage proceeding between Merilyn M. Ferris (mother) and Alan G. Ferris (father), mother appeals the magistrate's order denying her motion for reconsideration and the district court's order denying the motion for review of the magistrate's orders. We vacate the orders and remand for additional proceedings.
In the 1997 permanent orders, father was awarded sole legal custody of the parties' three children, and mother was granted parenting time and ordered to pay child support. In December 2001, mother filed a verified motion to modify decision-making responsibility, parenting time, and child support, alleging that the children were endangered by father's abuse. She supported the motion with her own affidavit and a drawing by one of the children and "reserve[d] the right to supplement this motion with additional documentation and affidavits regarding the extensive abuse."
Father filed a motion to dismiss, contending that mother's affidavit was insufficient to sustain the motion. On January 14, 2002, the magistrate granted the motion to dismiss for the reasons stated by father.
Ten days later, mother filed a motion for reconsideration of the dismissal. Father responded, inter alia, that there is no provision allowing a motion for reconsideration of a magistrate's order. The magistrate denied the motion for reconsideration for the reasons asserted by father and awarded father attorney fees.
On March 18, 2002, mother filed, pursuant to C.R.M. 7, a motion for district court review of the magistrate's two orders.
The district court determined that the motion for review was not timely filed as to the magistrate's January order of dismissal and therefore concluded it had no jurisdiction to review that order. The court, however, found that the motion for review was timely filed as to the order denying the motion for reconsideration. - Concluding, inter alia, that the proper procedure would have been to file a motion for district court review, rather than a motion for reconsideration by the magistrate, the court denied the motion for review as to the magistrate's second order. Father was again awarded his attorney fees.
I.
Mother contends that her affidavits were sufficient to support the motion to modify, that she should have been allowed to supplement the motion with additional affidavits, that the court should have construed the motion for reconsideration as a C.R.C.P. 60 motion,; and that father is not entitled to attorney fees. We do not reach any of these contentions because we conclude that the magistrate never had jurisdiction to enter either of the two orders.
Although not raised by the parties, we choose to address the issue of subject matter jurisdiction. See In re Marriage of Dureno,
Mother's motion to modify was filed after January 1, 2000, and therefore this case is governed by the current Colorado Rules for Magistrates. See People ex rel. Garner v. Garner,
C.R.M. 6(b) states that in family law cases, a district court magistrate may perform any or all of the duties specified in §§ 13-5-301 to 13-5-805, C.R.98.2002. In re Marriage of Malewicz,
Here, mother's motion encompassed the modification of parental responsibilities because, at a minimum, the parties' decision-making responsibilities were at issue. See In re Marriage of Schenck,
We note that § 13-5-801(8)(e)(V.5), C.R.S.2002, provides that family law magistrates may also conduct "[hJearings upon motions" under the UDMA. See In re Marriage of Phelps,
II.
We deny Father's request for attorney fees on appeal. See C.A.R. 88(d).
The orders of the magistrate and district court are vacated, and the case is remanded for the district court's ruling on mother's motion to modify.