State of Utah v. Green (Kunz)

State of Utah v. Green (Kunz), Case No. 20010084-CA, Filed April 19, 2001 IN THE UTAH COURT OF APPEALS
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State of Utah,
Plaintiff and Appellee,

v.

Thomas A. Green,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20010084-CA

F I L E D
April 19, 2001 2001 UT App 130 -----

Fourth District, Nephi Department
The Honorable Donald J. Eyre, Jr.

Attorneys:
Grant W.P. Morrison, Salt Lake City, for Appellant Linda Kunz
Mark L. Shurtleff and Laura B. Dupaix, Salt Lake City, for Appellee

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Before Judges Greenwood, Billings, and Orme.

PER CURIAM:

Appellant and intervenor Linda Kunz seeks to appeal as a matter of right from an order, entered in a pending criminal proceeding, which determined that a legal and valid marriage existed between defendant Thomas Green and Kunz under Utah Code Ann. § 30-1-4.5 (1999). The appeal is before the court on a sua sponte motion for summary dismissal for lack of jurisdiction.

The State sought a determination that a valid and legal marriage existed between Green and Kunz, or between Green and Shirley Beagley. Kunz and Beagley were allowed to intervene for the purpose of responding to the State's motion. The district court's July 10, 2000 Memorandum Decision ruled that a valid and legal marriage had existed between Green and Kunz from November of 1995, and also concluded that probable cause existed to bind Green over on four counts of bigamy. The order filed on December 28, 2000, from which this appeal is taken, incorporated and summarized the earlier ruling, apparently for purposes of using the "order" as a trial exhibit. Green filed a notice of appeal, arguing that the order was appealable because it determined the issue of the existence of the marriage with finality.

Both this court and the Utah Supreme Court have consistently applied the final judgment rule. See Bradbury v. Valencia, 2000 UT 50,¶10, 5 P.3d 649. "To be final, the trial court's order or judgment must dispose of all parties and claims to an action." Id. An appeal must be taken from a final judgment, unless it is allowed under an exception to the final judgment rule. See id. at ¶9. Both the July 10, 2000 Memorandum Decision declaring a valid marriage and the order filed on December 28, 2000 incorporating the earlier ruling, are interlocutory orders entered in the course of an ongoing criminal proceeding. In criminal cases, it is the sentence "which constitutes a final judgment from which appellant has the right to appeal." State v. Gerrard, 584 P.2d 885, 886 (Utah 1978). The order Kunz appeals is not a final judgment.

Kunz argues that the order is final for purposes of appeal because the intended effect of the order was to finally determine the existence of a legal and valid marriage between Green and Kunz under Utah's common law marriage statute and because the effect of the order may not be limited to the present criminal proceeding. However, both Utah appellate courts have rejected the federal collateral order doctrine as an exception to the final judgment rule. See Tyler v. Department of Human Servs., 874 P.2d 119 (Utah 1994) (per curiam); In re Southern American Ins. Co., 930 P.2d 276 (Utah Ct. App. 1996); Merit Electrical & Instrumentation v. Utah Dep't of Commerce, 902 P.2d 151 (Utah Ct. App. 1995). In addition, we note that there is no statutory or case law exception to the final judgment rule for interlocutory orders declaring a marriage to exist under section 30-1-4.5. Kunz did not file a timely petition for permission to appeal from either the July 10, 2000 Memorandum Decision or the order filed on December 28, 2000. See Utah R. App. P. 5(a).

The State says that it "does not concede that the order is interlocutory as to Kunz and reserves the right to argue in this or future proceedings that the July 10, 2000 order was final as to her." The State then contends that the appeal is untimely because it was not filed within thirty days of entry of the July 10, 2000 Memorandum Decision. The July 10, 2000 decision and the December 28, 2000 order were each entered in the course of ongoing criminal proceedings, rather than in a separate civil proceeding, and bear the caption of the criminal case. Because the orders declaring a marriage are interlocutory orders in the context of the criminal case, they are not final and appealable as a matter of right. No petition for permission to appeal has been filed or granted, and we lack jurisdiction to consider the appeal. Having determined that we lack jurisdiction, we dismiss the appeal.

We dismiss the appeal for lack of jurisdiction because it is not taken from a final judgment, and Kunz did not file a timely petition for permission to appeal, as required by Rule 5(a) of the Utah Rules of Appellate Procedure.(1)
 
 
 

______________________________
Pamela T. Greenwood,
Presiding Judge
 
 
 

______________________________
Judith M. Billings, Judge
 
 
 

______________________________
Gregory K. Orme, Judge

1. Despite the State's argument, by which it seemingly seeks to have it both ways, it follows that, as with any interlocutory disposition, Kunz will have an opportunity to appeal the issues treated in the interlocutory orders if an adverse final judgment is entered and she chooses to appeal.