Thornton v. Gamble

688 P.2d 1268, 101 N.M. 764
CourtNew Mexico Court of Appeals
DecidedSeptember 11, 1984
Docket7898, 7940
StatusPublished
Cited by95 cases

This text of 688 P.2d 1268 (Thornton v. Gamble) is published on Counsel Stack Legal Research, covering New Mexico Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Thornton v. Gamble, 688 P.2d 1268, 101 N.M. 764 (N.M. Ct. App. 1984).

Opinion

OPINION

NEAL, Judge.

This ease requires us to consider whether a judgment from which appeal is taken in a domestic relations matter is a final judgment allowing this court jurisdiction over the appeal. For the reasons hereinafter discussed, we conclude that there has not yet been a final judgment in the case. Accordingly, the appeal must be dismissed.

Husband filed a petition for dissolution of marriage, requesting a dissolution and a determination of the parties’ rights to property and to custody and support of the minor children. Wife answered. A partial decree dissolving the marriage was entered in 1982. The matter came on for a hearing on the remaining issues in April of 1984. The court entered its decision on May 3, 1984. In both a finding of fact and a conclusion of law, the court approved the “parties’ agreement concerning custody and visitation.” On May 7, 1984, the court entered a “final property judgment.” It completely disposed of the parties’ claims to various items of property. It includes a finding of fact which states, “The parties’ agreement concerning child custody and visitation is approved and should be enbodied [sic] in a separate document to be presented to the Court.” It includes a conclusion of law which states, “The parties’ agreement concerning custody and visitation is approved.” The decretal portions of the order, however, say nothing concerning child custody, support, or visitation. Nor has any further order or approved agreement since been filed.

On June 6, 1984, thirty days after the entry of the “final property judgment,” husband filed his notice of appeal therefrom. On June 19, 1984, wife filed a motion to dismiss the appeal for lack of jurisdiction due to a failure to file a timely notice of appeal. NMSA 1978, Crim., Child.Ct., Dom.Rel. & W/C App.R. 101, 202 (Repl.Pamp.1983); In the Matter of the Amendment of Rules 101, 201, 208, 209 and 501 of the Rules of Appellate Procedure for Criminal, Children’s Court, Domestic Relations Matters and Worker’s Compensation Cases and the Revision of Appellate Form 2.08. We docketed this motion in our cause number 7898. Sixteen days elapsed and husband did not respond to this motion. NMSA 1978, Crim., Child.Ct., Dom.Rel. & W/C App.R. 402 (Repl.Pamp.1983). See also NMSA 1978, Crim., Child.Ct., Dom. Rel. & W/C App.R. 403 and 404 (Repl. Pamp.1983). On July 5, 1984, this court granted wife’s motion.

On July 6, 1984, husband filed a skeleton transcript seeking to docket the same appeal. See NMSA 1978, Civ.App.R. 6 (Repl. Pamp.1984). We docketed this case as cause number 7940 and ordered husband to show cause why the skeleton transcript should not be rejected in light of the action taken in number 7898. Husband’s response to our order to show cause stated that, because “the trial court has yet to enter judgment on the related issues of support and custody in this cause, Plaintiff-Appellant asserts that the Judgment entered on May 7, 1984 was really not a Final Judgment.” We ordered the parties to file simultaneous briefs addressing the questions of the finality of the May 7 judgment and the appropriate result in both our cause numbers in the event this court found the May 7 judgment to be final or not final.

Those briefs have now been filed. Further, we have ordered the district court clerk’s record. See NMSA 1978, Crim., Child.Ct., Dom.Rel. & W/C App.R. 206 (Repl.Pamp.1983). Wife contends that the May 7 order was final and that our action in number 7898 operates as a bar to our hearing husband’s appeal from the May 7 order in any cause number. Husband contends that the May 7 judgment was not final and that both appeals should be dismissed as premature, but that, as a matter of practicality, we should hear his issues concerning the property judgment.

Our jurisdiction is limited to appeals from final judgments, interlocutory orders which practically dispose of the merits of an action, and final orders after entry of judgment which affect substantial rights. N.M. Const, art. VI, § 29; NMSA 1978, § 39-3-2; Johnson v. C & H Construction Co., 78 N.M. 423, 432 P.2d 267 (Ct.App.1967). We also have jurisdiction to grant applications for interlocutory appeals in certain cases. NMSA 1978, § 39-3-4. However, there is no contention that this case falls within Section 39-3-4.

NMSA 1978, Civ.P.Rule 54(b)(1) (Repl.Pamp.1980) states:

[W]hen more than one claim for relief is presented in an action * * * the court may enter a final judgment as to one or more but fewer than all of the claims only upon an express determination that there is no just reason for delay. In the absence of such determination, any order or other form of decision, however designated, which adjudicates fewer than all the claims shall not terminate the action as to any of the claims and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims.

Rule 54(b)(1) and the statutes limiting our jurisdiction to final judgments express a policy avoiding piece-meal appellate review of interlocutory decisions. Rule 54(b)(1) does not prohibit piece-meal review, but permits it in limited instances with the express approval of the trial court. Montoya v. Anaconda Mining Co., 97 N.M. 1, 635 P.2d 1323 (Ct.App.1981). In the absence of Rule 54(b)(1) language, a judgment adjudicating fewer than all the claims is not final. Central-Southwest Dairy Cooperative v. American Bank of Commerce, 78 N.M. 464, 432 P.2d 820 (1967). When the issues in the case are not disposed of so far as the court has power to dispose of them, the judgment is not final. Johnson v. C & H Construction Co.

In this case, the pleadings made claims for relief for a dissolution of marriage, a determination of property rights, and a determination of custody, support, and visitation. Only the dissolution and property rights have been adjudicated. The final property judgment does not contain an express determination that there is no just reason for delay.

Nor are we persuaded by wife’s contention that all terms of an order relating to the children have been agreed to and approved so that there is nothing left for the trial court to do. The judgment specifically contemplates the entry of a further order. Although the requirement of a final decision does not necessarily mean the last possible order in the case, Montoya, the final decision must dispose of all issues on the merits, Johnson, and be in writing, signed by the judge and filed in the case. Bouldin v. Bruce M. Bernard, Inc., 78 N.M. 188, 429 P.2d 647 (1967).

In this case, there are two barriers to construing the final property judgment as completely disposing of the issues relating to the children. First, the judgment says nothing about support. Support was put in issue by the pleadings. Second, the judgment does not order the carrying into effect of any decision on the question of custody and visitation. See State ex rel. Reynolds v. McLean, 74 N.M.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Garcia
New Mexico Court of Appeals, 2025
Absolute Realty v. Martin
New Mexico Court of Appeals, 2025
Valdez v. Erickson
538 P.3d 486 (New Mexico Court of Appeals, 2023)
Candelaria v. Reyes
New Mexico Court of Appeals, 2023
Gallegos v. Adams
New Mexico Court of Appeals, 2022
State v. Ferrier
New Mexico Court of Appeals, 2022
Bank of New York Mellon v. Vigil
New Mexico Court of Appeals, 2022
Tachias v. Lucero
New Mexico Court of Appeals, 2022
State v. Lozano
New Mexico Court of Appeals, 2021
Kuykendall v. Weger
New Mexico Court of Appeals, 2021
Anderson v. Anderson
New Mexico Court of Appeals, 2021
State v. Martinez
New Mexico Court of Appeals, 2021
State v. Hardcastle
New Mexico Court of Appeals, 2020
Cepelak v. Gibson
New Mexico Court of Appeals, 2020
Young v. Fisher
New Mexico Court of Appeals, 2020
In Re Gelinas
2020 NMCA 038 (New Mexico Court of Appeals, 2020)
Bustos v. Clovis Healthcare Rehab. Ctr., LLC
New Mexico Court of Appeals, 2019
State v. Barela
New Mexico Court of Appeals, 2019
State v. Cummings
New Mexico Court of Appeals, 2019

Cite This Page — Counsel Stack

Bluebook (online)
688 P.2d 1268, 101 N.M. 764, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thornton-v-gamble-nmctapp-1984.