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TCL > December 2004 Issue > Court Business

December 2004       Vol. 33, No. 12       Page  147
From the Courts
Court Business

Court Business

Colorado Supreme Court Rules Committee

Rule Change 2004(19)
Colorado Rules of Civil Procedure
Chapter 2. Pleadings and Motions
Rule 16.2. Case Management (Domestic Relations)

Appendix to Chapters 1 to 17A
Form 35.1. Mandatory Disclosure
Form 35.2. Financial Affidavit
Form 35.3. Pattern Interrogatories (Domestic Relations)
Form 35.4. Pattern Requests for Production of Documents (Domestic Relations)

Colorado Rules of Civil Procedure
Chapter 17A. Practice Standards and Local Court Rules
Rule 121. Local Rules—Statewide Practice Standards
Section 1-17. Court Settlement Conferences

Repealed, Amended, and Adopted

Current Rules 16.2 and 26.2 are repealed and replaced by this Rule 16.2.*
Form 35.1 (Mandatory Disclosure) is adopted.
Form 35.2 (Financial Affidavit) is adopted.
Form 20.2 (Pattern Interrogatories—Domestic Relations) is repealed, Form 35.3 is adopted.
Form 21.2 (Pattern Requests for Production of Documents—Domestic Relations) is repealed; Form 35.4 is adopted.
Rule 121, Section 1-17 is amended below.

Repealed, Amended, and Adopted by the Court, En Banc, September 30, 2004, effective January 1, 2005.

JUSTICE RICE and JUSTICE COATS would not approve this Rule.

By the Court:

Rebecca Love Kourlis
Justice, Colorado Supreme Court

 

[*Available online, including corresponding forms, at: http://www.courts.state.co.us/supct/rules/"2004/2004(19).doc.]

 

Colorado Rules of Civil Procedure
Chapter 2. Pleadings and Motions
Rule 16.2 Case Management (Domestic Relations)

Rule 16.2. Court Facilitated Management of Domestic Relations Cases and General Provisions Governing Duty of Disclosure

(a) Purpose and Scope. Family members stand in a special relationship to one another and to the court system. It is the purpose of Rule 16.2 to provide a uniform procedure for resolution of all issues in domestic relations cases that reduces the negative impact of adversarial litigation wherever possible. To that end, this Rule contemplates management and facilitation of the case by the court, with the disclosure requirements, discovery and hearings tailored to the needs of the case. This Rule shall govern case management in all district court actions under Articles 10, 11, and 13 of Title 14 of the Colorado Revised Statutes, including post decree matters. The Child Support Enforcement Unit (CSEU) shall be exempted under this Rule unless the CSEU enters an appearance in an ongoing case. Upon the motion of any party or the court’s own motion, the court may order that this Rule shall govern juvenile, paternity or probate cases involving allocation of parental responsibilities (decision-making and parenting time), child support and related matters. Any notice or service of process referenced in this Rule shall be governed by the Colorado Rules of Civil Procedure.

(b) Active Case Management. The court shall provide active case management from filing to resolution or hearing on all pending issues. The parties, counsel and the court shall evaluate each case at all stages to determine the scheduling of that individual case, as well as the resources, disclosures/discovery, and experts necessary to prepare the case for resolution or hearing. The intent of this Rule is to provide the parties with a just, timely and cost effective process. The court shall consider the needs of each case and may modify its Standard Case Management Order accordingly. Each judicial district may adopt a Standard Case Management Order that is consistent with this Rule and takes into account the specific needs and resources of the judicial district.

(c) Scheduling and Case Management for New Filings.

(1) Initial Status Conferences/Stipulated Case Management Plans.

(A) Petitioner shall be responsible for scheduling the initial status conference and shall provide notice of the conference to all parties. Each judicial district shall establish a procedure for setting the initial status conference. Scheduling of the initial status conference shall not be delayed in order to accomplish service.

(B) All parties and counsel, if any, shall attend the initial status conference, except as provided in subsection (c)(1)(C) or (c)(1)(D). At that conference, the parties and counsel shall be prepared to discuss the issues requiring resolution and any special circumstances of the case. The court may permit the parties and/or counsel to attend the initial conference and any subsequent conferences by telephone.

(C) If both parties are represented by counsel, counsel may submit a Stipulated Case Management Plan signed by counsel and the parties. Counsel shall also exchange Mandatory Disclosures and file a Certificate of Compliance. The filing of such a plan, the Mandatory Disclosures and Certificate of Compliance shall exempt the parties and counsel from attendance at the initial status conference. The court shall retain discretion to require a status conference after review of the Stipulated Case Management Plan.

(D) Parties who file an affidavit for entry of decree without appearance with all required documents before the initial status conference shall be excused from that conference.

(E) The initial status conference shall take place, or the Stipulated Case Management Plan shall be filed with the court, as soon as practicable but no later than 40 days from the filing of the petition.

(F) At the initial status conference, the court shall set the date for the next court appearance. The court may direct one of the parties to send written notice for the next court appearance or may dispense with written notice.

(2) Status conference procedures.

(A) At each conference the parties shall be prepared to discuss what needs to be done and determine a timeline for completion. The parties shall confer in advance on any unresolved issues.

(B) The conferences shall be informal.

(C) Family Court Facilitators may conduct conferences. Family Court Facilitators shall not enter orders but may confirm the agreements of the parties in writing. Agreements which the parties wish to have entered as orders shall be submitted to the judge or magistrate for approval.

(D) The judge or magistrate may enter interim orders at any status conference either upon the stipulation of the parties or to address emergency circumstances.

(E) A record of any part of the proceedings set forth in this section shall be made if requested by a party or by order of the court.

(F) The court shall either enter minute orders, direct counsel to prepare a written order, or place any agreements or orders on the record.

(3) Emergency matters/evidentiary hearings/temporary orders.

(A) Emergency matters may be brought to the attention of the clerk or the Family Court Facilitator for presentation to the court. Issues related to children shall be given priority on the court’s calendar.

(B) At the request of either party or on its own motion, the court shall conduct an evidentiary hearing, subject to the Colorado Rules of Evidence, to resolve disputed questions of fact or law. The parties shall be given notice of any evidentiary hearing. Only a judge or magistrate may determine disputed questions of fact or law or enter orders.

(C) Hearings on temporary orders shall be held as soon as possible. The parties shall certify on the record at the time of the temporary orders hearing that they have conferred and attempted in good faith to resolve temporary orders issues. If the parties do not comply with this requirement, the court may vacate the hearing unless an emergency exists that requires immediate court attention.

(4) Motions.

(A) Motions related to the jurisdiction of the court, change of venue, service and consolidation, protection orders, contempt, motions to amend the petition or response, withdrawal or substitution of counsel, motions to seal the court file or limit access to the court file, motions in limine related to evidentiary hearings, motions for review of an order by a magistrate, and post decree motions may be filed with the court at any time.

(B) All other motions shall only be filed and scheduled as determined at a status conference or in an emergency upon order of court.

(d) Scheduling and Case Management for post-decree/modification matters. Within 45 days of the date a post decree motion or motion to modify is filed, the court shall review the matter and determine whether the case will be scheduled and resolved under the provisions of (c) or will be handled on the pleadings or otherwise.

(e) Disclosure.

(1) Parties to domestic relations cases owe each other and the court a duty of full and honest disclosure of all facts that materially affect their rights and interests and those of the children involved in the case. The court requires that, in the discharge of this duty, a party must affirmatively disclose all information that is material to the resolution of the case without awaiting inquiry from the other party. This disclosure shall be conducted in accord with the duty of candor owing among those whose domestic issues are to be resolved under this Rule 16.2.

(2) A party shall, without a formal discovery request, provide the Mandatory Disclosures, as set forth in the form and content of Appendix to Chapters 1 to 17A, Form 35.1, C.R.C.P., and shall provide a completed financial affidavit in the form and content of Appendix to Chapters 1 to 17A , Form 35.2, C.R.C.P., to the other party within 40 days after service of a petition or a post decree motion involving financial issues. The parties shall exchange the required Mandatory Disclosures and the financial affidavit by the time of the initial status conference to the extent reasonably possible.

(3) A party shall, without a formal discovery request, also provide a list of expert and lay witnesses whom the party intends to call at a contested hearing or final orders. This disclosure shall include the address, phone number and a brief description of the testimony of each witness. This disclosure shall be made no later than 60 days prior to the date of the contested hearing or final orders, unless the time for such disclosure is modified by the court.

Unless otherwise stipulated or ordered by the court and subject to the provisions of subsection (g) of this Rule, the disclosure of expert testimony shall be governed by the provisions of C.R.C.P. 26 (a)(2)(B). The time for the disclosure of expert or lay witnesses whom a party intends to call at a temporary orders hearing or other emergency hearing shall be determined by the court.

(4) A party is under a continuing duty to supplement or amend any disclosure in a timely manner. This duty shall be governed by the provisions of C.R.C.P. 26(e).

(5) If a party does not timely provide the Mandatory Disclosure, the court may impose sanctions pursuant to subsection (j) of this Rule.

(6) Financial affidavits and child support worksheets shall be filed with the court. Other mandatory disclosure documents shall not be filed with the court.

(7) A Certificate of Compliance shall accompany the Mandatory Disclosures and shall be filed with the court. A party’s signature on the Certificate constitutes certification that to the best of the signer’s knowledge, information, and belief, formed after a reasonable inquiry, the Mandatory Disclosure is complete and correct as of the time it is made, except as noted with particularity in the Certificate of Compliance.

(8) Signing of all disclosures, discovery requests, responses and objections shall be governed by C.R.C.P. 26(g).

(9) A Court Authorization For Financial Disclosure shall be issued at the initial status conference if requested, or may be executed by those parties who submit a Stipulated Case Management Plan pursuant to (c)(1)(C), identifying the persons authorized to receive such information.

(10) As set forth in this section, it is the duty of parties to an action for decree of dissolution of marriage, legal separation, or invalidity of marriage, to provide full disclosure of all material assets and liabilities. If the disclosure contains misstatements or omissions, the court shall retain jurisdiction after the entry of a final decree or judgment for a period of 5 years to allocate material assets or liabilities, the omission or non-disclosure of which materially affects the division of assets and liabilities. The provisions of C.R.C.P. 60 shall not bar a motion by either party to allocate such assets or liabilities pursuant to this paragraph. This paragraph shall not limit other remedies that may be available to a party by law.

(f) Discovery. Discovery shall be subject to active case management by the court consistent with this Rule.

(1) Depositions of parties are permitted.

(2) Depositions of non-parties upon oral or written examination for the purpose of obtaining or authenticating documents not accessible to a party are permitted.

(3) After an initial status conference or as agreed to in a Stipulated Case Management Plan filed pursuant to (c)(1)(E), a party may serve on each adverse party any of the pattern interrogatories and requests for production of documents contained in the Appendix to Chapters 1 to 17A Form 35.3 and Form 35.4, C.R.C.P. A party may also serve on each adverse party 10 additional written interrogatories and 10 additional requests for production of documents, each of which shall consist of a single question or request.

(4) The parties shall not undertake additional formal discovery except as authorized by the court or as agreed in a Stipulated Case Management Plan filed pursuant to (c)(1)(C). The court shall grant all reasonable requests for additional discovery for good cause as defined in C.R.C.P. 26 (b)(2)(F). Unless otherwise governed by the provisions of this Rule additional discovery shall be governed by C.R.C.P. Rules 26 through 37 and C.R.C.P. 121 section 1-12. Methods to discover additional matters shall be governed by C.R.C.P. 26(a)(5). Additional discovery for trial preparation relating to documents and tangible things shall be governed by C.R.C.P. 26(b)(3).

(5) All discovery shall be initiated so as to be completed not later than 30 days before hearing, except that the court shall extend the time upon good cause shown or to prevent manifest injustice.

(6) Claims of privilege or protection of trial preparation materials shall be governed by C.R.C.P. 26(b)(5).

(7) Protective orders sought by a party relating to discovery shall be governed by C.R.C.P. 26(c).

(g) Use of Experts. If the matter before the court requires the use of an expert or more than one expert, the parties shall attempt to select one expert per issue. If they are unable to agree, the court shall act in accordance with CRE 706, or other applicable rule or statute.

(1) Expert reports shall be filed with the court only if required by the applicable rule or statute.

(2) If the court appoints or the parties jointly select an expert, then the following shall apply:

(A) Compensation for any expert shall be governed by the provisions of CRE 706.

(B) The expert shall communicate with and submit a draft report to each party in a timely manner or within the period of time set by the court. The parties may confer with the expert to comment on and make objections to the draft report before a final report is submitted.

(C) The court shall receive the expert reports into evidence without further foundation, unless a party notes an objection in the Trial Management Certificate. However, this shall not preclude either side from calling an expert for cross-examination, and voir dire on qualifications. Unless otherwise ordered by the court, a reasonable witness fee associated with the expert’s court appearance shall be tendered before the hearing by the party disputing the expert’s findings.

(3) Nothing in this rule limits the right of a party to retain a qualified expert at that party’s expense, subject to judicial allocation if appropriate. The expert shall consider the report and documents or information used by the court appointed or jointly selected expert and any other documents provided by a party, and may testify at a hearing. Any additional documents or information provided to the expert shall be provided to the court appointed or jointly selected expert by the time the expert’s report is submitted.

(4) The parties have a duty to cooperate with and supply documents and other information requested by any expert. The parties also have a duty to supplement or correct information in the expert’s report or summary.

(5) Unless otherwise ordered by the court, expert reports shall be provided to the parties 60 days prior to hearing. Rebuttal reports shall be provided 20 days thereafter.

(6) Unless otherwise ordered by the court, parental responsibility evaluations and special advocate reports shall be provided to the parties pursuant to the applicable statute.

(7) The court shall not give presumptive weight to the report of a court appointed or jointly selected expert when such report is disputed by one or both parties.

(8) A party may depose any person who has been identified as an expert whose opinions may be presented at trial. Such trial preparation relating to experts shall be governed by C.R.C.P. 26 (b)(4).

(h) Trial Management Certificates.

(1) If both parties are not represented by counsel, then each party shall file with the court a brief statement identifying the disputed issues and that party’s witnesses and exhibits including updated financial affidavits, together with copies thereof, mailed to the opposing party at least 10 days prior to the hearing date or at such other time as ordered by the court.

(2) If at least one party is represented by counsel, the parties shall file a joint Trial Management Certificate 10 days prior to the hearing date or at such other time as ordered by the court. Petitioner’s counsel (or respondent’s counsel if petitioner is pro se) shall be responsible for scheduling meetings among counsel and parties and preparing and filing the Trial Management Certificate. The joint Trial Management Certificate shall set forth stipulations and undisputed facts, any requests for attorney fees, disputed issues and specific points of law, lists of lay witnesses and expert witnesses the parties intend to call at hearing, and a list of exhibits, including updated financial affidavits and proposed child support work sheets. The parties shall exchange copies of exhibits at least 10 days prior to hearing.

(i) Alternative Dispute Resolution.

(1) Nothing in this Rule shall preclude, upon request of both parties, a judge or magistrate from conducting the conferences as a form of alternative dispute resolution pursuant to section 13-22-301, C.R.S. (2002), provided that both parties consent in writing to this process. Consent may only be withdrawn jointly.

(2) The provisions of this Rule shall not preclude the parties from jointly consenting to the use of dispute resolution services by third parties, or the court from referring the parties to mediation or other forms of alternative dispute resolution by third parties pursuant to sections 13-22-311 and 313, C.R.S. (2002).

(j) Sanctions. If a party fails to comply with any of the provisions of this rule, the court may impose appropriate sanctions, which shall not prejudice the party who did comply. If a party attempts to call a witness or introduce an exhibit that the party has not disclosed under subsection (h) of this Rule, the court may exclude that witness or exhibit absent good cause for the omission.

Committee Notes

Disclosures: This Rule is premised upon an expectation that regular status conferences will be conducted informally, that the parties will provide all necessary disclosures and that formal discovery, if authorized, will be tailored to the specific issues of the case. Disclosure of expert testimony and the signing of disclosures and discovery responses will be governed by C.R.C.P. 26 as specifically incorporated into section (e) of new Rule 16.2.

Rule 26.2: The current Rule 26.2 will be repealed. Disclosure of expert testimony and the signing of disclosures and discovery responses will be governed by C.R.C.P. 26 as specifically incorporated into section (e) of new Rule 16.2. Relevant provisions of C.R.C.P. 26 that relate to any additional discovery authorized by the court or stipulated to by the parties under sections (f) and (g) of the new Rule have been incorporated into new Rule 16.2. It is the intent of the committee that relevant caselaw under Rule 26.2 or Rule 26 will have precedential value. The pattern interrogatories and pattern requests for production of documents will also be modified to be consistent with new Rule 16.2.

Appendices and Forms: The Supreme Court approved the mandatory disclosures and financial affidavit forms referenced in 16.2(e)(2), and inclusion of both forms in the Appendix to Chapters 1 to 17A of the Colorado Rules of Civil Procedure. Rule 16.2 requires compliance with the mandatory disclosures, and completion of the financial affidavit form submitted with this Rule to achieve the disclosure intended by the Rule. The court also approved the amended pattern interrogatories (Form 35.3) and pattern requests for production (Form 35.4). The court further approved the form of the Stipulated Case Management Plan, an associated Order referenced in 16.2(c)(1) (C), and the Court Authorization for Financial Disclosure, referenced in 16.2(e)(9), which forms now have JDF numbers.

Settlement Conferences: Rule 121, Section 1-17 has been amended to permit a judge or magistrate to conduct a settlement conference or utilize other alternative dispute resolution techniques under Rule 16.2(i).

 

Appendix to Chapters 1 to 17A
Form 35.1. Mandatory Disclosure
From 35.2. Financial Affidavits
Form 35.3. Pattern Interrogatories (Domestic Relations)
Form 35.4. Pattern Request For Production of Documents (Domestic Relations)

Form 35.1 — Mandatory Disclosure
[Reference to 16.2(e)(2). These are not to be filed with the court, except as may be ordered pursuant to C.R.C.P. 16.2]

Mandatory Disclosures. (Complete and accurate copies may replace originals. Children refers to minor children of both parties.)

(a) Financial Affidavit. Each party shall provide a complete and signed Financial Affidavit in the Supreme Court approved form. See Appendix to Chapters 1 to 17A, Form 35.2, C.R.C.P.

(b) Income Tax Returns (Most Recent 3 Years). Provide the personal and business federal income tax returns for the three years before filing of the petition or post decree motion. The business returns shall be for any business for which a party has an interest entitling the party to a copy of such returns. Provide all schedules and attachments including W-2’s, 1099’s and K-1. If a return is not completed at the time of disclosure, provide the documents necessary to prepare the return including W-2’s, 1099’s and K-1’s, copies of extension requests and estimated tax payments.

(c) Personal Financial Statements (Last 3 Years). Provide all personal financial statements, statements of assets or liabilities, and credit and loan applications prepared during the last three years.

(d) Business Financial Statements (Last 3 Years). For every business for which a party has access to financial statements, provide the last three fiscal years’ financial statements, all year-to-date financial statements, and the same periodic financial statements for the prior year.

(e) Real Estate Documents. Provide the title documents and all documents stating value of all real property in which a party has a personal or business interest. This section shall not apply to post decree motions unless so ordered by the court.

(f) Personal Debt. Provide all documents creating debt, and the most recent debt statements showing the balance and payment terms.

(g) Investments. Provide most recent documents identifying each investment, and stating the current value.

(h) Employment benefits. Provide most recent documents identifying each employment benefit, and stating the current value.

(i) Retirement Plans. Provide most recent documents identifying each retirement plan, and stating the current value, and all Plan Summary Descriptions.

(j) Bank/Financial Institution Accounts. Provide most recent documents identifying each account at banks and other financial institutions, and stating the current value.

(k) Income Documentation. For each income source in the current and prior calendar year, including income from employment, investment, government programs, gifts, trust distributions, prizes, and income from every other source, provide pay stubs, a current income statement and the final income statement for the prior year. Each self-employed party shall provide a sworn statement of gross income, business expenses necessary to produce income, and net income for the three months before filing of the petition or post decree motion.

(l) Employment and Education-Related Child Care Documentation. Provide documents that show average monthly employment-related child care expense including child care expense related to parents’ education and job search.

(m) Insurance Documentation. Provide life, health and property insurance policies and current documents that show beneficiaries, coverage, cost including the portion payable to provide health insurance for children, and payment schedule.

(n) Extraordinary Children’s Expense Documentation. Provide documents that show average monthly expense for all recurring extraordinary children’s expenses.

[Note: Related Forms may be found at: http://"www."courts.state. co.us/supct/rules/2004/2004(19).doc.]

Colorado Rules of Civil Procedure
Chapter 17A. Practice Standards and Local Court Rules
Rule 121. Local Rules—Statewide Practice Standards
Section 1–17. Court Settlement Conferences

1. At any time after the filing of Disclosure Certificates as required by C.R.C.P. 16, any party may file with the courtroom clerk and serve a request for a court settlement conference, together with a notice for setting of such request. The court settlement conference shall, if the request is granted, be conducted by any available judge other than the assigned judge. In all instances, the assigned judge shall arrange for the availability of a different judge to conduct the court settlement conference.

2. All discussions at the settlement conference shall remain confidential and shall not be disclosed to the judge who presides at trial. Statements at the settlement conference shall not be admissible evidence for any purpose in any other proceeding.

3. This Rule shall not apply to proceedings conducted pursuant to Rule 16.2(i).

 

United States Court of Appeals, Tenth Circuit

In re: Electronic Submission of Selected Documents
Emergency General Order Filed October 20, 2004
Amended

In order to evaluate the usefulness of documents in electronic form the Court adopts this interim order effective December 1, 2004.

Except in social security cases, all parties represented by counsel, including pro se parties who are admitted to the practice of law, (Digital Submitters) must and all other parties may submit certain documents in electronic form (Digital Submission) as provided herein. Electronic submission does not supplant, but is in addition to, written filings required by the Federal Rules of Appellate Procedure and the Tenth Circuit Rules. Digital Form or Digital Submission refers to a document in Portable Document Format (also known as PDF or Acrobat format and sometime referred to as Native PDF) generated from an original word processing file, so that the text may be searched and copied: PDF images created by scanning documents do not comply.

(a) Briefs. In addition to the written filing (original and seven copies), Digital Submitters must furnish the full contents of briefs (from cover through conclusion) in Digital Form. Any attachment(s) to a brief available in Digital Form must be included with the brief (and in the same document).

(1) Scanned Attachments to Briefs. With the prior approval of the Clerk, documents attached to a written and filed brief that are not available in Digital Form may be submitted along with the written brief in scanned PDF format. If any attachment to a brief is submitted in scanned PDF format all attachments must be so submitted and they must be submitted as one separate PDF document (all scanned documents included as attachments to a brief must be contained in a single PDF document, identified as the Clerk may direct).

(2) Notice of Attachments. If a brief has attachments the cover page must so state and also state whether the attachments are included in Digital Form, scanned PDF format or only in writing.

(b) Appendix. Any appendix required by Tenth Circuit Rule 30.1 must be filed in written form. In addition, Digital Submitters must submit all portions of the appendix available in Digital Form in a single PDF document, identified as the Clerk may direct, if that document does not to exceed 7.5 megabytes. If it exceeds 7.5 megabytes, the Clerk must be contacted for supplemental instructions. With the prior permission of the Clerk and as the Clerk may direct, Appendix documents not available in Digital Form may be submitted in scanned PDF format.

(c) Motions, Petitions, and Other. Digital Submitters must submit all motions, petitions for rehearing, cost bills and entries of appearance in Digital Form. The original (but no copies) of each motion, cost bill or entry of appearance, and the original and all required copies of petitions for rehearing or petitions for rehearing en banc must also be filed and served in written form as required by the Federal Rules of Appellate Procedure and Tenth Circuit Rules.

(d) Submission. All digital submissions must be furnished to the Clerk on a compact disc (CD-ROM) or via e-mail to esub mission@ca10.uscourts.gov.

(1) Identification and Signing. The label of a compact disc, if one is used, or the subject line of each e-mailed document must show the case name, docket number, and party on whose behalf it is presented. A digital submission requiring an attorney’s or pro se party’s signature shall be signed in the following manner:

s/ Attorney or Pro Se Party

Attorney Bar Number (if applicable)

Address

Telephone number

E-mail address

(2) Electronic Mail. The subject line of any e-mail must have the docket number and short title of the case.

(e) Certification of Digital Submissions. In addition to the certificate of service required by the Federal Rules of Appellate Procedure and Tenth Circuit Rules, Digital Submitters must certify that:

(1) all required privacy redactions (below) have been made and, with the exception of those redactions, every document submitted in Digital Form or scanned PDF format is an exact copy of the written document filed with the Clerk, and

(2) the digital submissions have been scanned for viruses with the most recent version of a commercial virus scanning program (naming the program, version and the date of the most recent update) and, according to the program, are free of viruses.

(d) Service. In addition to the service requirements of the Federal Rules of Appellate Procedure and the Tenth Circuit Rules, Digital Submitters must simultaneously provide to all other counsel and pro se parties identical copies of any material submitted to the Clerk in Digital Form or scanned PDF format. The copies shall be provided on a compact disc supplied along with written materials. Compliance with this requirement must be included in the certificate of service.

(e) Privacy Redactions. In the interest of privacy, Digital Submitters must redact all digital submissions as required by any privacy policy of the Judicial Conference of the United States (e.g., names of victims and minors; financial account numbers; social security numbers [use only the last four numbers], dates of birth, and other data required to be redacted by order of the court). See http://www.privacy.uscourts.gov/b4 amend.htm. The responsibility for redacting personal data identifiers rests solely with counsel and the parties.

(f) Relief. For good cause, a party may move for relief from the requirement of Digital Submission.

During the pendency of this order, the court will evaluate its effectiveness. The court invites interested parties to send written comments to the clerk of court. After evaluation, the court will decide whether the order should be vacated or whether its provisions should be incorporated into the rules of court wholly or in part.

Entered for the Court:

Patrick Fisher, Clerk

Colorado Supreme Court Rules Committee

Notice of Public Hearing
Colorado Appellate Rules. Chapter 32.
New Rule 3.4. Appeals From Proceedings in Dependency or Neglect
Public Hearing Date and Time: January 24, 2005, 3:30–4:30 p.m.

 

The Colorado Supreme Court will conduct a hearing on proposed new Rule 3.4, Appeals From Proceedings in Dependency or Neglect. The Public Hearing is scheduled for Monday January 24, 2005, from 3:30 p.m. to 4:30 p.m., in the Colorado Supreme Court Courtroom, 2 E. 14th Ave., Denver, Colorado.

The Court also requests written public comments by any interested person on these proposed rule changes. An original and eight copies of the written comments concerning the proposals should be submitted to: Susan J. Festag, Clerk of the Supreme Court, 2 E. 14th Ave., Denver, CO 80203, no later than Thursday, January 20, 2005, by 5:00 p.m. Persons wishing to participate in the hearing should so notify Ms. Festag no later than Thursday, January 20, 2005.

[Note: The proposed new Rule is printed below. Corresponding Table 1, Frequently Asked Questions, and all Forms can be found at the Court’s website: http://www.courts.state.co.us.]

Colorado Appellate Rules. Chapter 32.
Rule 3.4. Appeals From Proceedings in Dependency or Neglect

(a) How Taken. Appeals from orders in dependency or neglect proceedings, as permitted by section 19-1-109(2)(b) and (c), C.R.S., shall be in the manner and within the time prescribed by this rule.

(b) Time for Appeal.

(1) A Notice of Appeal and Designation of Record (Form 1) shall be filed with the clerk of the Court of Appeals and an advisory copy served on the clerk of the trial court within twenty-one days after the entry of the order from which the appeal is taken. If a motion for post-trial relief is timely filed pursuant to C.R.C.P. 59, the time for filing the notice of appeal begins to run upon the entry of an order denying the motion or upon the date the motion is deemed denied under C.R.C.P. 59(j), whichever occurs first. An order is entered within the meaning of this rule when it is entered pursuant to C.R.C.P. 58. If notice of the entry of the order is mailed to the parties, the time for filing the notice of appeal shall commence from the date of mailing.

(2) If a timely notice of appeal is filed, any other party may file a Notice of Cross-Appeal and Designation of Record (Form 1) within five days of the date on which the notice of appeal was filed or within the twenty-one days for the filing of the notice of appeal, whichever period expires last.

(3) The time in which to file a notice of appeal or a notice of cross-appeal and the corresponding designation of record will not be extended.

(c) Docketing the Appeal. The appeal shall be docketed in accordance with C.A.R. 12(a).

(d) Notice of Appeal. The Notice of Appeal and Designation of Record (Form 1) must be prepared and signed by the appellant’s trial counsel or by appellant, if pro se. The notice must set forth the party or parties initiating the appeal and specify the order or part thereof from which the appeal is taken. The notice must be signed by appellant, if an adult, unless counsel states in the notice of appeal that appellant has specifically authorized the filing of the appeal. If counsel is unable to file a notice of appeal because the appellant is unavailable, counsel may file a Certificate of Diligent Search (Form 2) with the clerk of the trial court.

(e) Record on Appeal.

(1) The record on appeal shall include the trial court file, including all exhibits, and any transcripts ordered by the parties pursuant to this rule.

(2) The appellant and the cross-appellant, if any, shall (A) complete a Notice of Appeal (Cross-Appeal) and Designation of Record (Form 1); (B) file Form 1 with the clerk of the trial court and the clerk of the Court of Appeals; and (C) serve Form 1 on any court reporter listed therein.

(3) The designation of record portion of Form 1 shall identify the dates of the proceedings for which transcripts are requested and the names of the court reporters. Service of the Notice of Appeal and Designation of Record (Form 1) and the Supplemental Designation of Record (Form 3), if any, on the court reporter shall constitute a request for transcription of the specified proceedings.

(4) Within five days after service of a designation of record, any appellee may complete and file a Supplemental Designation of Record (Form 3) with the clerk of the trial court and the clerk of the Court of Appeals and serve it on the court reporter listed therein.

(5) Within five days after service of the Notice of Appeal and Designation of Record (Form 1), the designating party or public entity responsible for the cost of transcription shall make arrangements for payment with the court reporter. Within ten days after service of the Notice of Appeal and Designation of Record (Form 1), the court reporter shall file a statement with the clerk of the trial court and the clerk of the Court of Appeals indicating whether arrangements for payment have been made.

(6) After arrangements for payment of the transcript have been made, any party may request a copy of the unedited transcript from the court reporter for use in preparing the petition on appeal or the response to the petition on appeal (cross-appeal). The unedited transcript may be in electronic form and is not an official transcript of the trial court proceedings. The court reporter may require a signed waiver of liability for any errors in the unedited transcript.

(f) Transmission of Record.

(1) Within forty days after the filing of the Notice of Appeal and Designation of Record (Form 1), the record, including any transcripts or exhibits, shall be transmitted to the Court of Appeals in accordance with C.A.R. 11(b).

(2) The appellant may request an extension of time of no more than fifteen days in which to file the record, which will be granted only upon a showing of good cause. If the request is based on the court reporter’s inability to complete the transcript, it must be supported by an affidavit of the reporter specifying why the transcript has not been completed.

(g) Petition on Appeal.

(1) Within twenty days after the filing of the Notice of Appeal and Designation of Record (Form 1), the appellant shall file an original and five copies of a Petition on Appeal (Form 4). The petition shall be prepared by appellant if proceeding pro se, by appellant’s trial counsel, or by substitute counsel so long as substitute counsel has filed an entry of appearance. Except for extraordinary circumstances, substitution of counsel shall not be grounds for an extension of time.

(2) The appellant may request one extension of time of no more than seven days in which to file the petition, which will be denied except upon a showing of manifest injustice.

(3) Unless the petition contains no more than 6,300 words, it shall not exceed twenty pages, excluding the attachments required by this Rule 3.4(g)(3)(G). The petition on appeal shall conform to the requirements in C.A.R. 32(a) and shall include:

(A) A cover page containing the information set forth in C.A.R. 32(c);

(B) A statement of the nature of the case and the relief sought;

(C) The date the trial court order was entered;

(D) A concise statement of the material facts as they relate to the issues presented in the petition on appeal (references to page and line numbers in the record are not required);

(E) A concise statement of the legal issues presented for appeal, including a statement of how the issues arose;

(F) Supporting statutes, case law, or other legal authority for the issues raised; and

(G) Copies of the petition in dependency or neglect, the motion to terminate, the trial court’s adjudicatory order and/or order of termination, and rulings on any post-trial motions.

(h) Response to Petition on Appeal (Cross-Appeal).

(1) Within twenty days after service of the appellant’s petition on appeal, any appellee may file an original and five copies of a Response to Petition on Appeal (Cross-Appeal) (Form 5). The response (cross-appeal) shall be prepared by trial counsel or by substitute counsel so long as substitute counsel has filed an entry of appearance. Except for extraordinary circumstances, substitution of counsel shall not be grounds for an extension of time.

(2) An appellee may request one extension of time of no more than seven days in which to file a response (cross-appeal), which will be denied except upon a showing of manifest injustice.

(3) Unless the response (cross-appeal) contains no more than 6,300 words, it shall not exceed twenty pages, excluding the attachments required by this Rule 3.4(h)(3)(E). The response (cross-appeal) shall conform to the requirements of C.A.R. 32(a) and shall include:

(A) A cover page containing the information set forth in C.A.R. 32(c);

(B) A concise statement of the material facts as they relate to the issues presented (references to page and line numbers in the record are not required);

(C) A concise response to the legal issues presented;

(D) Supporting statutes, case law, or other legal authority in support of the response; and

(E) If a cross-appeal, copies of the petition in dependency or neglect, the motion to terminate, the trial court’s adjudicatory order and/or order of termination, and rulings on any post-trial motions.

(i) Oral Argument. Oral argument will be allowed upon the written request of a party or upon the court’s own motion, unless the court, in its discretion, dispenses with oral argument. A request for oral argument shall be made in a separate, appropriately titled document filed no later than the date on which the party’s petition on appeal or response is due. Unless otherwise ordered, argument shall not exceed fifteen minutes for the appellant(s) and fifteen minutes for the appellee(s).

(j) Ruling.

(1) Appeals in dependency or neglect proceedings shall be advanced on the calendar of the Court of Appeals pursuant to section 19-1-109(1), C.R.S., and shall be set for disposition upon the filing of the response to the petition on appeal or upon the time the response is due, whichever is earlier.

(2) After reviewing the petition on appeal, any response, and the record, the Court of Appeals may, by opinion in conformity with C.A.R. 35, affirm the trial court decision, reverse, or vacate the trial court decision, remand the case to the trial court, or set the case for supplemental briefing on issues raised by the parties or noticed by the court. If supplemental briefing is ordered, new counsel may be substituted upon a showing of good cause. Such request must be filed with the Court of Appeals within seven days after the case is set for supplemental briefing.

(k) (1) Petition for Rehearing. A petition for rehearing in the form prescribed by C.A.R. 40(b) may be filed within ten days after entry of judgment. The time in which to file the petition for rehearing shall not be extended.

(2) Petition for Writ of Certiorari. Review of the judgment of the Court of Appeals may be sought by filing a petition for writ of certiorari in the Supreme Court in accordance with C.A.R. 51. The petition shall be filed within ten days after the expiration of the time for filing a petition for rehearing or the date of denial of a petition for rehearing by the Court of Appeals. Any cross-petition or opposition brief to a petition for writ of certiorari shall be filed within ten days after the filing of the petition. The petition for writ of certiorari, any cross-petition, and any opposition brief shall be in the form prescribed by C.A.R. 53(a)-(c) and filed and served in accordance with C.A.R. 53(f).

(l) Issuance of Mandate. The mandate shall be in the form prescribed by C.A.R. 41(a) and shall issue twenty-two days after entry of the judgment. The timely filing of a petition for rehearing will stay the mandate until the Court of Appeals has ruled on the petition. If the petition is denied, the mandate shall issue twelve days after entry of the order denying the petition. The mandate may also be stayed in accordance with C.A.R. 41.1.

(m) Filing and Service. All papers required or permitted by this rule shall be filed and served in accordance with C.A.R. 25, unless otherwise provided in this rule.

(n) Computation of Time. Computation of any time period prescribed by this rule shall be in accordance with C.A.R. 26(a) and (c), unless otherwise provided in this rule.

(o) Forms. The following forms may be used and

shall be sufficient. Authorization of the use of these forms shall not prevent the use of other forms that substantially comply with the requirements of this rule.

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