Imani v. Imani

----ooOoo----

Pamela E. Imani,
Petitioner and Appellant,

v.

Jahangir Imani,
Respondent and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 990100-CA

F I L E D
April 15, 1999)
  1999 UT App 121 -----

Second District, Ogden Department
The Honorable Rodger S. Dutson

Attorneys:
Wayne R.N. Searle, Park City, for Appellant
Robert A. Echard, Ogden, for Appellee

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Before Judges Greenwood, Davis, and Jackson.

PER CURIAM:

This matter is before the court on its own motion for summary disposition. We dismiss the appeal for lack of jurisdiction.

Utah R. App. P. 3 allows a party to appeal from a final judgment or order. This rule precludes a party from taking an appeal from any orders or judgment that are not final, including orders or judgments disposing of less than all of the claims presented. A.J. Mackay Co. v. Okland Constr. Co., 817 P.2d 323, 325 (Utah 1991). There are exceptions to this rule. When more than one claim for relief is presented in an action, the court may certify a judgment as to one or more but fewer than all of the claims as final for appeal "upon an express determination by the court that there is no just reason for delay and upon an express direction for the entry of judgment." Utah R. Civ. P. 54(b). Failure to properly certify a judgment on fewer than all of the claims presented leaves the issues before the trial court and deprives the appellate court of jurisdiction over the appeal. Donohue v. Mouille, 913 P.2d 776, 778 (Utah Ct. App. 1996)(citing First Sec. Bank v. Conlin, 817 P.2d 298, 299 (Utah 1991)). In divorce proceedings, the district court has continuing jurisdiction over issues such as custody and child support, and, where an order or judgment entered by the court does not resolve the controversy between the parties and conclude the litigation, such as an initial order in a bifurcated proceedings, it is not a final appealable order or judgment absent proper certification. Copier v. Copier, 939 P.2d 202, 203-04 (Utah Ct. App. 1997).

There has been no final appealable order entered in the case at hand. Several issues regarding modification and enforcement of the Colorado divorce decree and the division of the parties' assets and debts are still pending. The order sought to be appealed resolves only one issue between the parties, and does not conclude the litigation. Thus, absent proper certification, it is not a final appealable order.

The order has not been properly certified by the trial court pursuant to Utah R. Civ. P. 54(b). Rule 54(b) clearly requires that the trial court expressly determine that there is no just reason for delay of the appeal. See Bennion v. Penzoil Co., 826 P.2d 137, 139 (Utah 1992); Donohue, 913 P.2d at 777-78 n.1. Moreover, the trial court must explain its reasons for certification, including an explanation regarding the lack of factual overlap between the certified and remaining claims. Bennion, 826 P.2d at 139. The "certification" offered by appellant makes no such express determination or explanation.

In the absence of a determination by the trial court that there is no just reason for delay and an explanation of the reasons for certification, this court is without jurisdiction to consider the appeal, and we have no alternative but to dismiss the appeal. This dismissal is without prejudice to the filing of a new, timely notice of appeal after the trial court enters a final order disposing of all the issues raised in the parties' pleadings and motions.
 
 
 

______________________________
Pamela T. Greenwood,
Associate Presiding Judge
 
 
 

______________________________
James Z. Davis, Judge
 
 
 

______________________________
Norman H. Jackson, Judge