Johnson v. Johnson

Johnson v. Johnson

IN THE UTAH COURT OF APPEALS

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Ina Marie Johnson,

Petitioner and Appellee,

v.

Neldon Paul Johnson,

Respondent and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20030736-CA
 

F I L E D
(January 29, 2004)
 

2004 UT App 13

 

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Fourth District, Provo Department

The Honorable Gary D. Stott

Attorneys: Matthew K. Woolley, Salem, for Appellant

Rosemond G. Blakelock, Provo, for Appellee

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Before Judges Billings, Davis, and Thorne.

PER CURIAM:

Appellant Neldon Paul Johnson appeals an order of the presiding judge of the Fourth District Court denying a motion to disqualify the assigned judge. This case is before the court on a sua sponte motion for summary disposition.

The parties obtained a divorce in bifurcated proceedings. The court entered an amended divorce decree on June 27, 2001, resolving the remaining issues. On April 24, 2003, Johnson filed a motion to set aside the amended decree under rule 60(b) of the Utah Rules of Civil Procedure. Johnson also filed objections to a proposed order on an earlier order to show cause. The district court scheduled oral arguments on these and other pending matters for July 28, 2003. Johnson filed a motion to disqualify the assigned district court judge under rule 63(b) of the Utah Rules of Civil Procedure. In a ruling dated July 22, 2003, the presiding judge denied the motion to disqualify.

After the July 28, 2003 hearing, the assigned judge denied the motion to set aside the decree and objections to the proposed order on order to show cause, as well as ruling on other pending matters. Johnson filed objections to proposed orders prepared following the hearing and also filed a notice of appeal from the denial of his motion to disqualify. As a result, the district court has not entered orders denying Johnson's rule 60(b) motion or resolving the remaining matters. Johnson concedes that these matters remain pending before the district court; nevertheless, he contends the ruling on the motion to disqualify is final and appealable. We disagree.

A district court's continuing jurisdiction to determine matters in a divorce proceeding makes it possible that there can be multiple final appealable orders in a case. See generally Copier v. Copier, 939 P.2d 202 (Utah Ct. App. 1997) (per curiam). However, an appealable order must resolve the controversy then existing between the parties. See id. at 203-04 (holding that divorce decree entered in bifurcated proceedings dissolving the marriage, but reserving additional issues, was not a final appealable judgment). The motion to disqualify was intended to disqualify the assigned judge from hearing the pending rule 60(b) motion and other matters. Following the interlocutory ruling denying the motion to disqualify, Johnson could have filed a timely petition for permission to appeal in this court under rule 5 of the Utah Rules of Appellate Procedure, but he did not do so. In addition, he may raise the issues regarding his motion to disqualify in an appeal after entry of an order denying the rule 60(b) motion. See Amica Mut. Ins. Co. v. Schettler, 768 P.2d 950, 970 (Utah Ct, App. 1989) ("It is well settled under Utah law, an order denying relief under [r]ule 60(b) is a final appealable order.").

Once a court has determined that it lacks jurisdiction, it "retains only the authority to dismiss the action." Varian-

Eimac, Inc. v. Lamoreaux, 767 P.2d 569, 570 (Utah Ct. App. 1998). Accordingly, we dismiss the appeal.

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Judith M. Billings,

Presiding Judge

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James Z. Davis, Judge

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William A. Thorne Jr., Judge