Hasselstrom v. Scott

• Court: New Mexico Court of Appeals
• Decided: May 20, 2011
• Docket: 30,891
• Status: Unpublished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 Please 2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 3 Please also note that this electronic memorandum opinion may contain computer-generated 4 errors or other deviations from the official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 KRISTI J. HASSELSTROM,

8 Petitioner-Appellant,

9 v. NO. 30,891

10 DONALD W. SCOTT,

11 Respondent-Appellee.

12 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 13 Elizabeth E. Whitefield, District Judge

14 Rodey, Dickason, Sloan, Akin & Robb, P.A. 15 Edward Ricco 16 Albuquerque, NM

17 for Appellant

18 Donald W. Scott 19 Rio Rancho, NM

20 Pro Se Appellee

21 MEMORANDUM OPINION

22 VANZI, Judge. 1 Petitioner (Mother) appeals from an order denying various motions, and she is

2 also contesting previous orders regarding child support and periods of parental

3 responsibility for Mother’s three children. We issued a calendar notice proposing to

4 dismiss. Mother has filed a memorandum in opposition. We affirm.

5 As we have previously stated in Mother’s first appeal, “[i]n civil cases, this

6 Court has jurisdiction over, among other things, any final order after entry of

7 judgment which affects substantial rights[.]” Khalsa v. Levinson, 1998-NMCA-110,

8 ¶ 12, 125 N.M. 680, 964 P.2d 844 (internal quotation marks and citation omitted).

9 “Whether an order is a final order . . . is a jurisdictional question that an appellate

10 court is required to raise on its own motion.” Id. In a divorce proceeding involving

11 issues over which the district court has continuing jurisdiction, a decision by the

12 district court that resolves fewer than all of the issues presented by post-decree

13 motions is not final and appealable unless “(1) the trial court expressly determines,

14 pursuant to Rule 1-054(C)(1) NMRA . . . that there is no just reason for delay and

15 expressly directs entry of judgment and (2) the matters adjudicated are not intertwined

16 with issues that remain unresolved.” Khalsa, 1998-NMCA-110, ¶ 2.

17 In this case, the record reflects a procedural morass, in which multiple motions

18 were filed, and the orders on those motions did not always address all of the issues

19 raised and often seemed to contemplate further proceedings. Mother is now

2 1 attempting to appeal from an October 12, 2010, order. Mother correctly observes that

2 the order denies the pending motions, and therefore appears initially to be final.

3 However, the order states: “Petitioner’s motions are denied as her means of obtaining

4 necessary information have not been exhausted.” [RP 398] Our calendar notice

5 construed this language to mean that Mother’s motions are denied without prejudice,

6 and will be addressed once Mother has provided the court with a factual record

7 sufficient to rule on the merits. Because the further action is contemplated by the

8 district court order, and the order is not certified pursuant to Rule 1-054(C)(1), we

9 proposed to dismiss. See Eberline Instrument Corp. v. Felix, 103 N.M. 422, 425, 708

10 P.2d 334, 337 (1985).

11 In her memorandum in opposition, Mother refers us to the doctrine of practical

12 finality, which permits immediate review of orders that might otherwise not be

13 considered final because any future review is effectively unavailable. [MIO 3] Mother

14 argues that she has a statutory right to review the documents in question, and she

15 should not have to seek them through subpoena. We believe that the issue is the

16 availability of the information in question. Either the materials will be made available

17 to her, in which case she can seek costs related to the subpoena, or they will not be

18 made available to her, in which case she may raise the statutory issue on appeal. In

19 light of these outcomes, we do not believe that Mother’s concerns outweigh our

3 1 firmly-rooted rules governing finality. To the extent that Mother believes that there

2 are strong public policy reasons for reaching out to this issue at this point [MIO 4], we

3 believe that this argument should be made as a basis for seeking interlocutory review.

4 For the reasons discussed above, we dismiss the appeal.

5 IT IS SO ORDERED.

6 __________________________________ 7 LINDA M. VANZI, Judge

8 WE CONCUR:

9 _________________________________ 10 JAMES J. WECHSLER, Judge

11 _________________________________ 12 TIMOTHY L. GARCIA, Judge