DEACUTIS-BLACK v. Black

Court of Appeals of Utah

DEACUTIS-BLACK v. Black

2011 UT App 202, 257 P.3d 510, 685 Utah Adv. Rep. 63, 2011 Utah App. LEXIS 200, 2011 WL 2518620

CourtCourt of Appeals of Utah

DecidedJune 23, 2011

Docket20110325-CA

StatusPublished

This text of 2011 UT App 202 (DEACUTIS-BLACK v. Black) is published on Counsel Stack Legal Research, covering Court of Appeals of Utah primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

DEACUTIS-BLACK v. Black, 2011 UT App 202, 257 P.3d 510, 685 Utah Adv. Rep. 63, 2011 Utah App. LEXIS 200, 2011 WL 2518620 (Utah Ct. App. 2011).

Pincite

Opinion

DECISION

PER CURIAM:

T1 Sandra DeAcutis-Black (Wife) appeals the partial summary judgment order that granted permanent physical custody of the parties' child to Robert D. Black (Husband). This case is before the court on a sua sponte motion for summary dismissal. The order specifically reserved the issue of legal custody for trial along with other pending issues in this case. Because the order was not a final appealable judgment and reserved other matters for trial, including the issue of legal custody, we lack jurisdiction over the appeal and dismiss the appeal without prejudice.

(2 Rule 3(a) of the Utah Rules of Appellate Procedure states that "[ain appeal may be taken from a district ... court to the appellate court with jurisdiction over the appeal from all final orders and judgments." Utah R.App. P. 3(a). An appeal taken from an order that is not final must be dismissed for lack of appellate jurisdiction. See Bradbury v. Valencia, 2000 UT 50, ¶ 8, 5 P.3d 649. An order is final and appealable when it disposes of all of the claims against all parties on the merits See id. ¶ 9; see also Loffredo v. Holt, 2001 UT 97, ¶ 12, 37 P.3d 1070; Houston v. Intermountain Health Care, 933 P.2d 403, 406 (Utah Ct.App.1997) ("Generally, a judgment is not a final, appeal-able order if it does not dispose of all the claims in a case, including counterclaims.").

The order being appealed is not final and appealable because it did not fully resolve the divoree petition and did not even resolve all issues raised in the summary Judgment motion in which Husband sought an order granting him permanent legal and physical custody of the child. The district court granted summary judgment as to permanent physical custody, but reserved the issue of legal custody for the pending trial. Once a court has determined that it lacks Jurisdiction, it "retains only the authority to dismiss the action." Varian-Eimac, Inc. v. Lamoreaux, 767 P.2d 569, 570 (Utah Ct.App.1989). Accordingly, we dismiss the appeal for lack of jurisdiction, without prejudice to a timely appeal following the entry of a final appealable judgment.

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DECISION

PER CURIAM:

T1 Sandra DeAcutis-Black (Wife) appeals the partial summary judgment order that granted permanent physical custody of the parties' child to Robert D. Black (Husband). This case is before the court on a sua sponte motion for summary dismissal. The order specifically reserved the issue of legal custody for trial along with other pending issues in this case. Because the order was not a final appealable judgment and reserved other matters for trial, including the issue of legal custody, we lack jurisdiction over the appeal and dismiss the appeal without prejudice.

(2 Rule 3(a) of the Utah Rules of Appellate Procedure states that "[ain appeal may be taken from a district ... court to the appellate court with jurisdiction over the appeal from all final orders and judgments." Utah R.App. P. 3(a). An appeal taken from an order that is not final must be dismissed for lack of appellate jurisdiction. See Bradbury v. Valencia, 2000 UT 50, ¶ 8, 5 P.3d 649. An order is final and appealable when it disposes of all of the claims against all parties on the merits See id. ¶ 9; see also Loffredo v. Holt, 2001 UT 97, ¶ 12, 37 P.3d 1070; Houston v. Intermountain Health Care, 933 P.2d 403, 406 (Utah Ct.App.1997) ("Generally, a judgment is not a final, appeal-able order if it does not dispose of all the claims in a case, including counterclaims.").

The order being appealed is not final and appealable because it did not fully resolve the divoree petition and did not even resolve all issues raised in the summary Judgment motion in which Husband sought an order granting him permanent legal and physical custody of the child. The district court granted summary judgment as to permanent physical custody, but reserved the issue of legal custody for the pending trial. Once a court has determined that it lacks Jurisdiction, it "retains only the authority to dismiss the action." Varian-Eimac, Inc. v. Lamoreaux, 767 P.2d 569, 570 (Utah Ct.App.1989). Accordingly, we dismiss the appeal for lack of jurisdiction, without prejudice to a timely appeal following the entry of a final appealable judgment.

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Bluebook (online)

2011 UT App 202, 257 P.3d 510, 685 Utah Adv. Rep. 63, 2011 Utah App. LEXIS 200, 2011 WL 2518620, Counsel Stack Legal Research, https://law.counselstack.com/opinion/deacutis-black-v-black-utahctapp-2011.

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