Feinberg v. Feinberg

• Court: New Mexico Court of Appeals
• Decided: September 23, 2010
• Docket: 30,476
• Status: Unpublished

Opinion

1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please 2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 3 Please also note that this electronic memorandum opinion may contain computer-generated 4 errors or other deviations from the official paper version filed by the Court of Appeals and does 5 not include the filing date. 6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

7 KIMBERLY B. FEINBERG,

8 Petitioner-Appellee,

9 v. NO. 30,476

10 ROBERT H. FEINBERG,

11 Respondent-Appellant.

12 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 13 Gerard J. Lavelle , District Judge

14 Armand T. Carian 15 Albuquerque, NM

16 for Appellee

17 Peter H. Johnstone 18 Albuquerque, NM

19 for Appellant

20 MEMORANDUM OPINION

21 CASTILLO, Judge. 1 Respondent is appealing [RP 181] from a district court order [RP 165]

2 addressing the parties’ child support dispute, but leaving unaddressed the spousal

3 support issue before the court. We issued a calendar notice proposing to dismiss.

4 Respondent has filed a memorandum in opposition. Not persuaded that the underlying

5 order should be treated as final and appealable, we dismiss.

6 A judgment is not final and appealable unless it practically disposes of the

7 merits of the underlying controversy, leaving only issues collateral to and separate

8 from that underlying controversy to be resolved. See Kelly Inn No. 102 v. Kapnison,

9 113 N.M. 231, 238, 824 P.2d 1033, 1040 (1992), limited on other grounds by Trujillo

10 v. Hilton of Santa Fe, 115 N.M. 397, 851 P.2d 1064 (1993). As indicated, Respondent

11 filed a notice of appeal [RP 181] on May 5, 2010, from a district court order that

12 addressed the parties’ child support dispute, but left unresolved the spousal support

13 issues. [RP 165] As indicated by the court’s order, the matter had come before the

14 court on Respondent’s motion to modify child support and Petitioner’s counter-motion

15 to increase spousal support and for payment of child support. [RP 64, 85, 165] Our

16 calendar notice observed that the outstanding claim for spousal support renders the

17 order non-final pursuant to Rule 1-054(B)(1) NMRA, in the absence of a certification

18 of finality. The order in this case does not contain certification language.

19 Accordingly, we proposed to dismiss the appeal.

2 1 In his memorandum in opposition, Respondent relies on language in the Marital

2 Settlement Agreement (MSA) that sets forth the terms of the child support obligation

3 to argue that piecemeal litigation will be avoided because there will not be any

4 continued child support given the children’s ages. [MIO 5-6] Respondent further notes

5 that the spousal support issue may still arise in the future, irrespective of any

6 resolution of the current claims. [MIO 8-9] We are not persuaded by these arguments.

7 An order is not deemed final simply because a single claim has been resolved. To the

8 contrary, Rule 1-054 expressly deems such orders to be non-final in the absence of

9 certification language. Respondent concedes that the district court did not intend to

10 certify this order as final. [MIO 8] We also note that Petitioner, in her counter-

11 motion, observed that the MSA intertwined the amount of spousal support with the

12 calculation of child support. [RP 88, ¶ 19] Accordingly, we conclude that the

13 underlying order is non-final and we dismiss the appeal.

14 IT IS SO ORDERED.

15 ___________________________________ 16 CELIA FOY CASTILLO, Judge 17 WE CONCUR:

18 __________________________________ 19 JAMES J. WECHSLER, Judge

3 1 __________________________________ 2 LINDA M. VANZI, Judge