Vanderhoop v. Slim

Vanderhoop v. Slim

IN THE UTAH COURT OF APPEALS
 

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Rachel A. Vanderhoop,

Petitioner and Respondent,

v.

David P. Slim,

Respondent and Petitioner.

______________________________

State of Utah, Office of Recovery Services,

Intervenor and Respondent.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20040964-CA
 

F I L E D
(February 10, 2005)
 

2005 UT App 64

 

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Eighth District, Roosevelt Department

The Honorable A. Lynn Payne

Attorneys: David P. Slim, Roosevelt, Petitioner Pro Se

Mark L. Shurtleff and Sandra Langley, Salt Lake City, for Respondent Office of Recovery Services

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Before Judges Billings, Greenwood, and Thorne.

PER CURIAM:

    This case is before the court on a "Petition for Interlocutory Appeal and Extraordinary Writ." David P. Slim also filed a purported "Notice of Interlocutory Appeal" in the district court. In this court, Slim filed a request for discovery and a counterclaim. Finally, Eldon Gardner filed a request to intervene in the appeal.

    The district court case originated in a paternity action filed by Rachel Vanderhoop against Slim. After the Ute Tribal Juvenile Court ruled that it lacked jurisdiction over the parties, Vanderhoop refiled her case in the Eighth District Court, which entered an order that (1) determined it had jurisdiction; (2) granted joint legal custody, with Vanderhoop to have physical custody; (3) set child support of $132.00 per month to be paid by Slim; and (4) set visitation.

    Vanderhoop subsequently requested the assistance of the Office of Recovery Services (ORS) in collection of child support. Accordingly, on August 6, 2004, ORS filed a motion to intervene, as well as a petition to modify child support. Slim opposed the motion to intervene and sought a temporary restraining order to prevent ORS from continuing the proceedings in the Eighth District Court as a claimed violation of Slim's civil rights as a Navajo Indian and to restrain the court from setting child support for an Indian child. In a ruling and order entered on October 7, 2004, the district court, after again concluding that it had jurisdiction, granted ORS's motion to intervene and denied Slim's request for a temporary restraining order. Slim then filed a "Notice of Interlocutory Appeal" in the district court, followed by a "Petition for Interlocutory Appeal and Extraordinary Writ" in this court.

    The October 7, 2004 order is an interlocutory order that is not appealable as a matter of right. Only an appeal from a final order can be initiated by filing a notice of appeal in the trial court. See Utah R. App. P. 3(a) ("An appeal may be taken from a district . . . court to the appellate court with jurisdiction over the appeal from all final orders and judgments . . . by filing a notice of appeal with the clerk of the trial court within the time allowed by rule 4 [of the Utah Rules of Appellate Procedures]."). "For a judgment or order to be final, it must dispose of the case as to all parties, and finally dispose of the subject matter of the litigation on the merits of the case." In re S. Am. Ins. Co., 930 P.2d 276, 278 (Utah Ct. App. 1996). Accordingly, the "Notice of Interlocutory Appeal" filed in the district court on October 20, 2004, did not confer jurisdiction on this court.

    The October 7, 2004 order was clearly interlocutory because the petition to modify child support remains pending. Rule 5(a) of the Utah Rules of Appellate Procedure contains the requirements for initiating an interlocutory appeal, stating:

An appeal from an interlocutory order may be sought by any party by filing a petition for permission to appeal from the interlocutory order with the clerk of the appellate court with jurisdiction over the case within 20 days after entry of the order of the trial court, with proof of service on all other parties to the action.

Utah R. App. P. 5(a) (emphasis added).

    The time for filing a petition for permission to appeal from the October 7, 2004 order in the appellate court expired on October 27, 2004. Slim filed "Respondent/Petitioner's Petition for Interlocutory Appeal and Extraordinary Writ" in this court on November 3, 2004. The petition was filed more than twenty days after entry of the October 7, 2004 order; therefore, it was not timely. We are precluded from suspending or modifying the requirements contained in rule 5(a). See Utah R. App. P. 2. Accordingly, we deny the petition for permission to appeal.

    Slim alternatively characterizes the petition filed in this court as a petition seeking extraordinary relief, i.e., restraining the district court from exercising jurisdiction over the petition to modify. We deny the petition insofar as it seeks extraordinary relief in the nature of mandamus directed to the district court. First, extraordinary relief is available only if no other plain, speedy, or adequate remedy exists. See Utah R. App. P. 19(b)(4) (requiring petitions to show "why no other plain, speedy[,] or adequate remedy exits"); see also Utah R. Civ. P. 65B(a) (stating a petition for extraordinary relief is availably only "[w]here no other plain, speedy[,] and adequate remedy is available"). Slim had a plain, speedy, or adequate remedy; however, he failed to file a timely petition for permission to appeal in the form required by rule 5(a). In addition, Slim did not file a petition for extraordinary relief satisfying rule 65B of the Utah Rules of Civil Procedure or rule 19 of the Utah Rules of Appellate Procedure, and he did not name or serve an appropriate respondent. Slim's petition seeks to invoke two procedurally exclusive remedies, i.e., appellate review of an order of the district court and an original proceeding for extraordinary relief as a collateral challenge to the same order.

    Based on the foregoing, we deny Slim's petition insofar as it seeks permission to appeal from an interlocutory order because it was not timely under rule 5 of the Utah Rules of Appellate Procedure and we lack jurisdiction to consider it. In addition, we deny the petition insofar as it seeks extraordinary relief collaterally challenging the district court's October 7, 2004 order because Slim had a plain, speedy, or adequate remedy through filing a timely petition for permission to appeal. Finally, we conclude that the purported "notice of interlocutory appeal" filed in district court had no effect because an interlocutory appeal cannot be initiated by filing a notice of appeal in district court. Slim's motion to stay and Gardner's motion to intervene, as well as Slim's procedurally inappropriate request for discovery and counterclaim, are each denied as moot based upon the dismissal of the petition for interlocutory appeal
for lack of jurisdiction and our denial of the petition for extraordinary relief.

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Judith M. Billings,

Presiding Judge

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Pamela T. Greenwood, Judge

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William A. Thorne Jr., Judge