D Cordova v. L Hubbell

1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 STATE OF NEW MEXICO EX REL. 3 HUMAN SERVICES DEPARTMENT, 4 AND DENISE G. CORDOVA, 5 Petitioner-Appellant, 6 v. NO. 29,059 7 LORENZO P. HUBBELL, 8 Respondent-Appellee. 9 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 10 Deborah D. Walker, District Judge 11 Denise G. Cordova 12 Albuquerque, NM 13 Pro se Appellant 14 Lynda M. Latta 15 Albuquerque, NM 16 for Appellee 17 MEMORANDUM OPINION 18 KENNEDY, Judge. 19 Appellant is appealing, pro se, from separate district court orders involving 20 child support payments. We issued a calendar notice proposing to dismiss because the 21 there has yet to be a final judgment in the district court proceedings. Appellant has 22 filed a memorandum in opposition, referring us to pleadings, each labeled “docketing 1 statement,” that were filed after the calendar notice. We construe these pleadings 2 collectively as a memorandum in opposition to our calendar notice. We dismiss. 3 As we stated in the calendar notice, a judgment is not final and appealable 4 unless it practically disposes of the merits of the underlying controversy, leaving only 5 issues collateral to and separate from that underlying controversy to be resolved. See 6 Kelly Inn No. 102 v. Kapnison, 113 N.M. 231 , 824 P.2d 1033 (1992); Rule 12-201(A) 7 NMRA. Here, Appellant’s notices of appeal state that she is appealing from separate 8 district court orders. The first notice of appeal refers to a September 9, 2008, order 9 sealing the record. [RP 289-order is at RP 286] The second notice of appeal refers 10 to a June 17, 2008, stipulated order and a November 7, 2008, order appointing a 11 guardian ad litem. [RP 294] A notice of appeal was filed from that order on 12 December 8, 2008. [RP 305-orders at RP 265, 294] In her original docketing 13 statement, Appellant indicates that she is appealing from the order sealing the record 14 and from a ruling on arrearage. [DS 2] Appellant indicated that her appeal on this 15 latter ruling may be premature because no final order has been entered. [DS 2] 16 Appellant’s pleadings filed subsequent to our calendar concede that our calendar 17 notice was correct in proposing to hold that there is no final, appealable judgment in 18 this case. Cf. Hennessy v. Duryea, 1998-NMCA-036, ¶ 24 , 124 N.M. 754 , 955 P.2d 19 683 (“Our courts have repeatedly held that, in summary calendar cases, the burden is 20 on the party opposing the proposed disposition to clearly point out errors in fact or 21 law.”). 22 Because no final judgment has been entered in the underlying proceedings, we [2] 1 hold that none of the referenced orders are subject to appellate review at this time. See 2 Rule 12-201(A); Harrison v. ICX, Illinois-California Express, Inc., 98 N.M. 247, 249 , [3] 647 P.2d 880, 882 (Ct. App. 1982) (observing that a party may only appeal from a 4 written order), abrogated on other grounds by Martinez v. Friede, 2004-NMSC-006 , 5 ¶¶ 25-26, 135 N.M. 171 , 86 P.3d 596 . Accordingly, we dismiss. 6 IT IS SO ORDERED. [7] 8 RODERICK T. KENNEDY, Judge 9 WE CONCUR: [10] 11 JONATHAN B. SUTIN, Chief Judge [12] 13 TIMOTHY L. GARCIA, Judge