C Reid v. T Powell

• Court: New Mexico Court of Appeals
• Decided: January 6, 2009
• Docket: 28,956
• Status: Unpublished

Opinion

1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

2 CASSANDRA HOLBROOK REID,

3 Petitioner-Appellee,

4 v. NO. 28,956

5 THOMAS SARGENT POWELL,

6 Respondent-Appellant,

7 and

8 PENNY HOLBROOK,

9 Intervenor.

10 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 11 Elizabeth E. Whitefield, District Judge

12 David L. Walther 13 Santa Fe, NM

14 for Appellee

15 Thomas Sargent Powell 16 Albuquerque, NM

17 Pro Se Appellant

18 Leslie Becker 19 Albuquerque, NM

20 Guardian ad Litem

21 Thomas C. Montoya 1 Albuquerque, NM

2 for Intervenor

3 MEMORANDUM OPINION

4 CASTILLO, Judge.

5 Respondent (Father) appeals an order awarding fees to the guardian ad litem

6 (GAL). [DS unnumbered page 1; RP 365] We proposed to dismiss for lack of finality

7 in a notice of proposed summary disposition. Father has filed a timely memorandum

8 in opposition which we have duly considered. After considering the arguments raised

9 by Father in his memorandum opposition and remaining unpersuaded, we dismiss for

10 lack of a final order.

11 As stated in our notice of proposed summary dismissal, this Court’s jurisdiction

12 lies from final, appealable orders. The test of whether a judgment is final, so as to

13 permit the taking of an immediate appeal, lies in the effect the judgment has upon the

14 rights of some or all of the parties. See Bralley v. City of Albuquerque, 102 N.M. 715,

15 718, 699 P.2d 646, 649 (Ct. App. 1985). Thus, an order or judgment is not considered

16 final unless all issues of law and fact have been determined and the case disposed of

17 by the trial court to the fullest extent possible. Kelly Inn No. 102, Inc. v. Kapnison,

18 113 N.M. 231, 236, 824 P.2d 1033, 1038 (1992).

19 As discussed more fully in our previous notice, Father is appealing an order

2 1 requiring him to pay the GAL $5,568.31 in fees already incurred. [RP 365] The order

2 specifically states that Father may file a motion regarding his allegations that the

3 interim parenting plan has been violated, which will be heard at trial, and it makes no

4 decision on Father’s earlier motion to dismiss the GAL filed on March 6, 2008, which

5 remains pending. [RP 308, 365] The district court has also issued a memorandum

6 order requiring the GAL to cease any further action until the court hears Father’s

7 motion to dismiss or makes a determination consistent with Rule 1-053.3 NMRA.

8 [RP 366] Finally, a trial on the merits to determine custody was scheduled for

9 November 3, 2008, at which point various motions were to be considered. [RP 441]

10 We are unaware of the outcome of that proceeding and Father’s memorandum in

11 opposition indicates that the trial date was moved to December 18 and 19, 2008.

12 [MIO unnumbered page 4].

13 In his memorandum in opposition, Father urges us to forgo our usual policy of

14 avoiding piecemeal appeals, contending that the family court performs functions

15 distinct from the other functions performed by the district court and that the “novelty

16 and distinctiveness of its mission” serves to shield its decisions from “proper and

17 regular appellate review.” [MIO 2-3] He argues that finality should be more liberally

18 construed in family law matters because these cases are not “final” until the child is

19 emancipated or the child dies. [MIO 4] We are unpersuaded.

3 1 Father is correct that district courts may retain jurisdiction over matters such as

2 spousal support, child custody, and child support in order to modify earlier orders if

3 circumstances so warrant. [MIO 4] See NMSA 1978, § 40-4-(F) and (G) (1997).

4 However, the retention of jurisdiction to modify previous orders concerning these

5 matters does not render any initial decision of the district court non-final for purposes

6 of appeal. Cf. Thornton v. Gamble, 101 N.M. 764, 768, 688 P.2d 1268, 1272 (Ct.

7 App. 1984) (“When a petition for dissolution of marriage is filed requesting relief in

8 more than one area (divorce, custody, support, alimony, and property or any

9 combination thereof), the court must adjudicate all issues raised by the pleadings or

10 determine that there is no just reason for delay before its decision will be final enough

11 to allow appellate review. Similarly, if a petition to modify more than one of the

12 modifiable elements of a final divorce decree is filed, the court must adjudicate all

13 issues raised by the petition or determine that there is no just reason for delay before

14 its decision will be final enough to allow appellate review.”). Although orders

15 involving child custody and support are final despite the district court’s continuing

16 jurisdiction to later modify these orders, the order must resolve all of the matters

17 raised in the initial petition before the case is sufficiently final for appeal. See Khalsa

18 v. Levinson, 1998-NMCA-110, ¶ 17, 125 N.M. 680, 964 P.2d 844 (stating the general

19 rule in dissolution proceedings that “there is no final order unless and until an order

4 1 is entered that contains decretal language and resolves all the matters raised in the

2 initial petition”).

3 In this case, as Father acknowledges, trial is set for December 18, 2008. [MIO

4 4] Moreover, the order Father seeks to appeal only addresses the discrete issue of fees

5 previously incurred by the GAL; it does not resolve any other issues as to custody or

6 support nor does it even address the propriety of the GAL’s involvement in the case.

7 [RP 365] Finally, it does not contain the usual decretal language necessary for an

8 order to be sufficiently final for appeal. See id. ¶ 16 (“[L]ack of decretal language is

9 [usually] a fatal flaw.”). Therefore, we are not persuaded that allowing appeal of the

10 isolated issue of Father’s liability for the fees incurred by the GAL for past services

11 is appropriate given the number of substantive issues that remain outstanding and that

12 are currently set for trial and given our usual policy of avoiding piecemeal appeals.

13 See Kelly Inn No. 102, 113 N.M. at 239, 824 P.2d at 1041.

14 CONCLUSION

15 For these reasons as well as those set forth in our notice of proposed summary

16 disposition, we dismiss the appeal as having been taken from an order that does not

17 completely dispose of this case and is therefore not final for the purposes of appeal.

18 IT IS SO ORDERED.

5 1 ________________________________ 2 CELIA FOY CASTILLO, Judge

3 WE CONCUR:

4 ________________________________ 5 CYNTHIA A. FRY, Judge

6 ________________________________ 7 MICHAEL E. VIGIL, Judge