Abalos v. Pino

858 P.2d 426, 115 N.M. 759
CourtNew Mexico Court of Appeals
DecidedJuly 22, 1993
DocketNo. 13587
StatusPublished
Cited by7 cases

This text of 858 P.2d 426 (Abalos v. Pino) is published on Counsel Stack Legal Research, covering New Mexico Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Abalos v. Pino, 858 P.2d 426, 115 N.M. 759 (N.M. Ct. App. 1993).

Opinion

OPINION

PICKARD, Judge.

This case requires us to consider whether an order from which appeal is taken in a probate matter is a final judgment, allowing this Court jurisdiction over the appeal. More specifically, we address the issue of whether an order by the district court, requiring putative grandparents to undergo blood testing to determine if their deceased son was the father of the petitioner against his estate, is final. For the reasons we discuss below, we conclude that the order was not final and does not fit into the collateral order doctrine. Therefore, we dismiss the appeal.

This action arose from a party that was allegedly attended by Janet Abalos, Manuel “Chon” Pino, III, his brother Andrew Pino, and others on the night of July 26, 1986. Ms. Abalos apparently imbibed a sufficient quantity of alcohol at the party to render her unconscious. It is alleged that one or more males then engaged in sexual intercourse with her. She subsequently gave birth to a daughter, Maria Cecilia Abalos, on April 30, 1987.

Ms. Abalos filed a petition for paternity, which named six individuals as potential fathers. Five of these six individuals were excluded from being the father through blood testing. The sixth died before testing could commence. Ms. Abalos did not originally name Andrew and Chon Pino in her paternity petition, and her motion to join Andrew, who was later excluded as a possible father, and his parents, Manuel Pino, Jr., and Ylaria Pino, was denied. Ms. Abalos attempted to join Manuel and Ylaria Pino because the results of a test of Chon Pino’s blood, performed after his death, were inconclusive, and medical personnel asserted that testing Chon Pino’s parents would achieve a conclusive result.

The issues in the action that began as a petition for paternity are now being litigated in a probate matter, due to the death of Chon Pino in an automobile accident. Manuel Pino, Jr., was appointed as the personal representative of his son’s estate. Janet Abalos and her daughter made a claim against Chon Pino’s estate, based on their assertion that Maria Cecilia is Chon Pino’s daughter and sole heir. This claim was denied by Manuel Pino, Jr., as personal representative for the estate, through his attorney. The Abaloses also filed a motion asking the district court to order the Pinos to show cause why they should not undergo blood testing to aid in the determination of whether Chon Pino was the father of Maria Cecilia Abalos. The district court heard evidence and arguments and ordered the Pinos to undergo the blood tests. It is from this order that the Pinos appeal.

Our jurisdiction is limited to appeals from final judgments, interlocutory orders that practically dispose of the merits, and final orders after entry of judgment that affect substantial rights. Thornton v. Gamble, 101 N.M. 764, 766, 688 P.2d 1268, 1270 (Ct.App.1984). The definition of a final order does not include matters of discovery:

Orders granting or denying a motion for protective order, like orders requiring or denying discovery, or orders requiring a party to submit to a physical or mental examination, generally do not constitute a final disposition of the proceedings. Therefore, they are not normally appeal-able, except upon the granting of an interlocutory appeal.

In re Deposition of Bartow, 101 N.M. 532, 534, 685 P.2d 387, 389 (Ct.App.1984); see also 4 James W. Moore et al., Moore’s Federal Practice § 26.83 (2d ed. 1989); 8 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 2006 (1970).

However, NMSA 1978, Section 45-3-107 (Repl.Pamp.1989) states that each proceeding in a probate matter is independent. See In re Estate of Newalla, 114 N.M. 290, 837 P.2d 1373 (Ct.App.1992). The Abaloses initiated a proceeding to determine whether Maria Cecilia is an heir. The motion to compel the blood tests did not institute a new proceeding. The dispute concerning the blood test is part and parcel of the proceeding to determine heirship. As stated in Newalla: “Further pleadings relating to the same subject matter, whether la-belled motions or petitions, are part of the same proceeding. When the subject matter of two petitions overlap, it would generally be appropriate to consider both petitions as belonging to the same proceeding.” Id. at 294, 837 P.2d at 1377. In particular, discovery disputes are not separate proceedings, and orders on discovery issues therefore are not final orders. See id.

Other jurisdictions are split as to whether an order for the taking of blood for paternity tests is a final and appealable order. Although some jurisdictions allow an appeal from discovery orders requiring blood tests, see Voss v. Duerscherl, 408 N.W.2d 161, 164 (Minn.Ct.App.1987), rev’d on other grounds, 425 N.W.2d 828 (Minn. 1988) (applying Minnesota statute regarding appealability); Christianson v. Ely, 390 Pa.Super. 398, 568 A.2d 961, 962 (1990), we are more persuaded by the rule in federal court, see Moore et al., supra, § 26.83; Wright & Miller, supra, § 2006, and New Mexico, see Kelly Inn No. 102, Inc. v. Kapnison, 113 N.M. 231, 239-40, 824 P.2d 1033, 1041-42 (1992); Thornton, 101 N.M. at 767, 688 P.2d at 1271, which seeks to avoid piecemeal appeals and promote judicial efficiency. See Helton v. Arkansas Dep’t of Human Seros., 309 Ark. 268, 828 S.W.2d 842 (1992) (no jurisdiction to appeal order requiring blood test in paternity dispute).

The Pinos do not assert any religious, moral, or other compelling reason to distinguish the blood test order here from general discovery orders. See R.J.A. v. K.A. V., 34 Mass.App.Ct. 369, 611 N.E.2d 729, 731-32 (1983) (fact that people may have to undergo intrusions of blood testing does not make interlocutory order appealable). But see Commonwealth ex rel. Weston v. Weston, 201 Pa.Super. 554, 193 A.2d 782, 783 (1963) (order for blood test is appeal-able; simple act of requiring child to submit to test could cause injury by leading child to question paternity). The blood test is a part of the probate proceeding initiated by the Abaloses to determine whether Maria Cecilia is an heir of Chon Pino. A final order has not been entered as to this petition against the estate. Therefore, the order for the blood testing of the Pinos is not final.

Another question to be answered is whether this case falls under the collateral order doctrine as announced in Carrillo v. Rostro, 114 N.M. 607, 613, 845 P.2d 130, 136 (1992). Our Supreme Court adopted the federal rule articulated in Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), and its progeny.

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858 P.2d 426, 115 N.M. 759, Counsel Stack Legal Research, https://law.counselstack.com/opinion/abalos-v-pino-nmctapp-1993.