S Steinmetz v. B Steinmetz

• Court: New Mexico Court of Appeals
• Decided: January 6, 2009
• Docket: 29,034
• Status: Unpublished

Opinion

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

2 SUSAN CAROL STEINMETZ,

3 Petitioner-Appellee,

4 v. NO. 29,034

5 BRYAN JAMES STEINMETZ,

6 Respondent-Appellant.

7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 8 Angela J. Jewell, District Judge

9 Susan Carol Steinmetz 10 Albuquerque, NM

11 Pro Se Appellee

12 Bryan James Steinmetz 13 Albuquerque, NM

14 Pro Se Appellant

15 MEMORANDUM OPINION

16 CASTILLO, Judge.

17 Bryan Steinmetz (Respondent) seeks to appeal from an order reopening the

18 divorce proceedings, denying Respondent’s motion to dismiss, denying Respondent’s

19 motion for custody of the children, and ordering the parties to comply with all prior 1 court orders, among other things. [DS 1; RPDM 91-93] We issued a notice of

2 proposed summary disposition, proposing to dismiss the appeal on grounds that the

3 order is not final. Respondent has filed a memorandum in opposition, which we have

4 duly considered. Because we remain unpersuaded that the matter is properly before

5 us, we dismiss the appeal.

6 The right to appeal is generally restricted to final judgment and decisions. See

7 NMSA 1978, § 39-3-2 (1966); Kelly Inn No. 102, Inc. v. Kapnison, 113 N.M. 231,

8 234-40, 824 P.2d 1033, 1036-42 (1992). As we observed in the notice of proposed

9 summary disposition, the order from which Respondent seeks to appeal cannot be

10 regarded as a final order because it does not resolve all of the underlying issues to the

11 fullest extent possible. See B.L. Goldberg & Assocs., Inc. v. Uptown, Inc., 103 N.M.

12 277, 278, 705 P.2d 683, 684 (1985) (“For purposes of appeal, an order or judgment

13 is not considered final unless all issues of law and fact have been determined and the

14 case disposed of by the trial court to the fullest extent possible.”). To the contrary, the

15 order specifically provides that the district court shall address numerous pending

16 issues. [RPDM 93] See generally Thornton v. Gamble, 101 N.M. 764, 767-68, 688

17 P.2d 1268, 1271-72 (Ct. App. 1984) (holding that a judgment in a divorce proceeding

18 did not constitute a final, appealable order where “[t]he judgment specifically

19 contemplate[d] the entry of a further order”). Because so many critical issues remain

2 1 outstanding, the doctrine of practical finality is inapplicable; under the circumstances,

2 it would be both inappropriate and imprudent for the Court to hear an appeal at this

3 juncture. See generally Kellewood v. BHP Minerals Int’l, 116 N.M. 678, 681, 866

4 P.2d 406, 409 (Ct. App. 1993) (“It is well-established policy that piecemeal appeals

5 are disfavored and that fragmentation in the adjudication of related legal or factual

6 issues is to be avoided.” (citations omitted)).

7 Throughout his memorandum in opposition, Respondent appears to take the

8 position that the district court’s order is final and appealable because it denies his

9 motion to dismiss. [MIO 2, 5] However, as we previously observed, orders denying

10 motions to dismiss are not final orders. See King v. Allstate Ins. Co., 2007-NMCA-

11 044, ¶ 8, 141 N.M. 612, 159 P.3d 261 (observing that the denial of a motion to dismiss

12 is not a final, appealable order); Gutierrez v. Gutierrez, 116 N.M. 86, 86-87, 860 P.2d

13 216, 216-17 (Ct. App. 1993) (providing that an order denying a motion to dismiss for

14 lack of jurisdiction is not a final, appealable order).

15 We have reviewed the argument and the authorities cited in Respondent’s

16 memorandum in opposition, but we find nothing which could be said to address the

17 finality problem which is so clearly presented in this case. To the contrary, the vast

18 majority of the memorandum in opposition is devoted to alternative issues. [MIO 3-

19 11] Because we remain unpersuaded that the underlying order is final and appealable,

3 1 none of these alternative issues are properly before us.

2 For the reasons stated herein and in our notice of proposed summary

3 disposition, the appeal is dismissed.

4 IT IS SO ORDERED.

5 ________________________________ 6 CELIA FOY CASTILLO, Judge

7 WE CONCUR:

8 ________________________________ 9 JONATHAN B. SUTIN, Chief Judge

10 ________________________________ 11 JAMES J. WECHSLER, Judge