     The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                   SUMMARY
                                                                June 11, 2020

                                2020COA95

No. 19CA1277, People in Interest of S.C. — Family Law —
Uniform Interstate Family Support Act — Special Rules of
Evidence and Procedure — Deposition or Testimony by
Telephone, Audiovisual, or Other Electronic Means

     A majority of a division of the court of appeals concludes that

the magistrate in a paternity action was not authorized to “close”

the case based on mother’s refusal to testify in person. Rather,

section 14-5-316, C.R.S. 2019, required the magistrate to accept

mother’s testimony by telephone or other electronic means,

regardless of whether she had outstanding warrants in Colorado.

     The dissent would dismiss the appeal on the ground that there

was no final, appealable judgment or order conferring appellate

jurisdiction.
COLORADO COURT OF APPEALS                                        2020COA95


Court of Appeals No. 19CA1277
El Paso County District Court No. 18JV514
Honorable Jill M. Brady, Judge


The People of the State of Colorado and El Paso Child Support Services,

Appellants,

In the Interest of S.C., a Child,

and Concerning R.D.C. III,

Appellee.


                         ORDER REVERSED AND CASE
                         REMANDED WITH DIRECTIONS

                                    Division A
                           Opinion by JUDGE BERGER
                               Pawar, J., concurs
                             Bernard, C.J., dissents

                            Announced June 11, 2020


Young Williams, P.C., Christina K. Eigel, Colorado Springs, Colorado, for
Appellants

No Appearance for Appellee
¶1    At the request of the State of Missouri, El Paso Child Support

 Services (CSS) filed the underlying paternity and support action,

 seeking a determination that respondent R.D.C. III is the biological

 father of S.C. (the child) and, if so, the entry of appropriate support

 orders.

¶2    The mother of the child, S.N., who apparently resides in

 Missouri, declined to testify in person because of outstanding arrest

 warrants in Colorado. She offered to testify by telephone, but that

 offer was refused by the magistrate on the sole ground that she had

 outstanding arrest warrants. The magistrate cited no legal

 authority, either statutory or case law, supporting this ruling.

¶3    The magistrate found that mother’s testimony was necessary

 to proceed with the paternity action and “closed” the case “until

 [mother] appears in Colorado in person, or otherwise arranges for

 the satisfaction of the [outstanding] warrants.” On district court

 review, the district court affirmed the magistrate’s rejection of

 telephone testimony and the order “closing” the case, again on the

 sole ground that mother had outstanding Colorado arrest warrants.

¶4    CSS appealed the district court’s order affirming the

 magistrate’s order, and this court issued a show cause order


                                    1
 directing CSS to explain why the appeal should not be dismissed for

 lack of a final, appealable judgment or order. A motions division of

 this court, with one judge dissenting, held that the district court’s

 order was, under these unusual circumstances, a final, appealable

 order. The division discharged the order to show cause and

 directed the appeal to proceed. CSS filed its opening brief, but no

 other party has filed a brief or entered an appearance in this court.

          I.   This Court Has Jurisdiction Over this Appeal

¶5    Preliminarily, we address the same question addressed by the

 motions division: Does this court have appellate jurisdiction?

 Because the district court’s order effectively terminated the

 paternity proceeding and, therefore, constituted a final, appealable

 order, we conclude that we do.

¶6    Our jurisdiction is limited to review of final, appealable

 judgments or orders. § 13-4-102(1), C.R.S. 2019; C.A.R. 1(a);

 Marks v. Gessler, 2013 COA 115, ¶ 15. “An order is final if it ends

 the particular action in which it is entered, leaving nothing further

 for the court pronouncing it to do in order to completely determine

 the rights of the parties involved in the proceeding.” Marks, ¶ 15. A

 final, appealable order is one that prevents further proceedings or


                                    2
 effectively terminates the proceedings. Id.; People v. Thomas, 116

 P.3d 1284, 1285 (Colo. App. 2005). “In determining whether an

 order is final, we look to the legal effect of the order rather than its

 form.” Marks, ¶ 15 (citation omitted).

¶7       Because the Colorado Rules of Civil Procedure do not

 authorize the indefinite “closing” of a case, we must determine the

 legal nature of the “closing” order. The closest rules-based

 analogue is a dismissal without prejudice because, while the order

 did not preclude a later ruling that R.C. was the father, it foreclosed

 that possibility under the circumstances in existence at the time.

¶8       Ordinarily, a dismissal without prejudice is not a final,

 appealable order. Scott v. Scott, 2018 COA 25, ¶ 11. However,

 when “the circumstances of the case indicate that the action cannot

 be saved and that the district court’s order precludes further

 proceedings, dismissal without prejudice qualifies as a final

 judgment for the purposes of appeal.” Avicanna Inc. v. Mewhinney,

 2019 COA 129, ¶ 1 n.1. A “long line of Colorado cases” supports

 this exception. DIA Brewing Co. v. MCE-DIA, LLC, 2020 COA 21,

 ¶ 31.




                                      3
¶9     One “common situation where a complaint ‘cannot be saved’

  occurs when further proceedings would be barred by a statute of

  limitations.” Id. at ¶ 32; see also, e.g., SMLL, L.L.C. v. Daly, 128

  P.3d 266, 268-69 (Colo. App. 2005). In these cases, a dismissal

  without prejudice constitutes a final, appealable order, vesting this

  court with appellate jurisdiction.1 Pham v. State Farm Mut. Auto.

  Ins. Co., 70 P.3d 567, 571 (Colo. App. 2003).

¶ 10   The district’s court order here, while different in form, has the

  same effect. Though it leaves open the possibility that the case

  would be reopened if mother returns to Colorado to testify or

  satisfies the warrants, that possibility is totally speculative. So far

  as this record demonstrates, mother will never appear to testify in

  person or satisfy the outstanding warrants. Thus, by refusing to

  allow the child’s mother to testify by telephone (or any other means

  other than in-person testimony), the court prevented, certainly




  1 The statute of limitations is not a legal barrier against the filing of
  a barred action; the statute of limitations is an affirmative defense
  that may be waived, so a time-barred action may be filed subject to
  the affirmative defense of the statute of limitations. Zertuche v.
  Montgomery Ward & Co., 706 P.2d 424, 426 (Colo. App. 1985).

                                      4
  indefinitely and maybe permanently, an adjudication that is

  mandated by law.

¶ 11   In addition, the fact that the order deprives the litigants of

  statutorily protected rights (irrespective of whether the orders

  entered by the magistrate and the district court were legally

  erroneous) bears on the jurisdictional inquiry. The state has an

  obvious interest in determining paternity so that a biological father

  can be required to support his child. Kulko v. Superior Court, 436

  U.S. 84, 92 (1978); In re Marriage of Malwitz, 99 P.3d 56, 63 (Colo.

  2004). The child has an independent interest in receiving the

  support required by law. Abrams v. Connolly, 781 P.2d 651, 656

  (Colo. 1989). The district court’s order thwarts these interests.

¶ 12   Finally, we reject the dissent’s suggestion that the availability

  of an original proceeding under C.A.R. 21 is an adequate alternative

  to an appeal. No party has the right to an extraordinary writ under

  C.A.R. 21; the issuance of such a writ is entirely committed to the

  discretion of the Colorado Supreme Court. C.A.R. 21(a).

  Accordingly, the availability of C.A.R. 21 relief is not an adequate

  substitute for the statutory right to appeal.




                                     5
¶ 13    Accordingly, based on the practical effect of the district court’s

  order, it is a final, appealable order.

       II.   There Was No Legal Basis to Refuse Remote Testimony

¶ 14    The controlling statute did not authorize either the magistrate

  or the district court to refuse telephone testimony by mother.

  Section 14-5-316(a), (f), C.R.S. 2019, states:

              (a) The physical presence of a nonresident
              party who is an individual in a tribunal of this
              state is not required for the establishment,
              enforcement, or modification of a support
              order or the rendition of a judgment
              determining parentage of a child.

              ....

              (f) In a proceeding under this article, a tribunal
              of this state shall permit a party or witness
              residing outside this state to be deposed or to
              testify under penalty of perjury by telephone,
              audiovisual means, or other electronic means
              at a designated tribunal or other location. A
              tribunal of this state shall cooperate with other
              tribunals in designating an appropriate
              location for the deposition or testimony.

¶ 15    Simply put, there is no legal authority prohibiting telephone

  testimony by mother based on her refusal to appear in person. This

  is true whether the reason for her refusal to appear in person was

  based on the existence of outstanding arrest warrants or otherwise.



                                      6
¶ 16   Neither the district court nor the magistrate cited any

  authority supporting the order prohibiting telephone testimony, and

  we have found none. To the contrary, the statute is clear on its face

  and required the court to accept remote testimony under section

  14-5-316(f).

¶ 17   We recognize that C.R.C.P. 43(i) establishes the procedures for

  and ordinarily grants discretion to trial courts with respect to the

  acceptance of absentee testimony. The court usually must

  determine if the interests of justice require the acceptance of

  absentee testimony. C.R.C.P. 43(i)(3). We need not do so here. In

  this paternity action, the court’s usual discretion to reject absentee

  testimony is plainly displaced by section 14-5-316(a) and (f).

¶ 18   That statutory displacement is entirely understandable. This

  is a paternity action brought by a unit of the state, at the request of

  a sister state, to determine paternity, and if paternity is established,

  to order child support. As noted above, states have an obvious and

  substantial interest in requiring parents to support their children.

  Kulko, 436 U.S. at 92; Malwitz, 99 P.3d at 63. These reasons

  include governmental fiscal policy; if a parent is required to support

  his child, the level of support by the government may be reduced or


                                     7
  even eliminated. People in Interest of S.P.B., 651 P.2d 1213, 1217

  (Colo. 1982). Moreover, the child whose paternity is in question

  also has a legal right to support from his or her biological parents.

  Abrams, 781 P.2d at 656.

                              III.   Conclusion

¶ 19   The district court’s order affirming the closure of the case is

  reversed. The case is remanded to the district court with

  instructions that telephone testimony by the mother is to be

  permitted and for further proceedings consistent with the paternity

  statute and this opinion.

       JUDGE PAWAR concurs.

       CHIEF JUDGE BERNARD dissents.




                                       8
       CHIEF JUDGE BERNARD, dissenting.

¶ 20   I respectfully dissent because I do not think that we have

  jurisdiction to hear this appeal.

¶ 21   First, “[t]he dismissal of a complaint without prejudice is

  generally not appealable unless such dismissal prohibits further

  proceedings, such as when the applicable statute of limitations

  would prevent the reinstitution of the suit.” Golden Lodge No. 13,

  I.O.O.F. v. Easley, 916 P.2d 666, 667 (Colo. App. 1996); see Farmers

  Union Mut. Ins. Co. v. Bodell, 197 P.3d 913, 916 (Mont. 2008) (An

  order dismissing a complaint without prejudice is not an appealable

  order unless special circumstances exist, such as “the running of a

  statute of limitations, language in the order of dismissal indicating

  that the complainant will not be permitted to re-plead, or where the

  practical effect of the order of dismissal terminates the litigation in

  the complainant’s chosen forum.”).

¶ 22   Relying on this authority, I conclude that the order closing the

  case does not “prohibit[] further proceedings.” Golden Lodge No. 13,

  I.O.O.F., 916 P.2d at 667. Indeed, the order sets out clear

  conditions for reopening the case: mother can appear in Colorado or

  satisfy the pending arrest warrants. I therefore think that we do


                                      9
  not have jurisdiction over this appeal because the order closing the

  case is not final.

¶ 23   Second, I think that C.A.R. 21 provides an adequate remedy.

  There is ample authority indicating that C.A.R. 21 is the proper

  vehicle for seeking review of orders, such as this one, that are not

  final. See People in Interest of A.E.L., 181 P.3d 1186, 1191 (Colo.

  App. 2008) (“Because [interim orders in a dependency and neglect

  case] are not final orders subject to appeal, review of such orders

  may only be sought pursuant to C.A.R. 21.”); People in Interest of

  M.W., 140 P.3d 231, 233 (Colo. App. 2006) (concluding that,

  because “temporary custody orders are not subject to appeal, . . .

  review must be taken pursuant to C.A.R. 21”).

¶ 24   And “C.A.R. 21 authorizes [the supreme court] to review a trial

  court’s order if a remedy on appeal would not be adequate.” Willhite

  v. Rodriguez-Cera, 2012 CO 29, ¶ 8. We cannot craft an adequate

  remedy in this appeal because the order is not final. See id. (“An

  order quashing service is not a final order that is immediately

  appealable,” so C.A.R. 21 was the proper vehicle to review the

  order.).




                                    10
