Pearson v. Third District

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Pearson v. Third District IN THE UTAH COURT OF APPEALS

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Kelley F. Pearson,
Petitioner,

v.

Third District Court
of Salt Lake County,
Judge Tyrone E. Medley,
Kimberlee Y. Pearson,
and Pete N. Thanos,
Respondents.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20020953-CA

F I L E D
January 9, 2003 2003 UT App 6 -----

Original Proceeding in this Court

Attorneys:
Paige Bigelow, Salt Lake City, for Petitioner
Kellie F. Williams, Steven H. Gunn, and Brent M. Johnson, Salt Lake City, for Respondents

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Before Judges Davis, Greenwood, and Orme.

PER CURIAM:

Petitioner filed for extraordinary relief under rule 65B of the Utah Rules of Civil Procedure. This is a divorce action in which Respondent Thanos sought to intervene in the custody portion of the case on the basis that he is the birth father of one of the children. Respondent Thanos included a paternity test in support of his request to intervene. The trial court granted the motion to intervene and there is a partial motion for summary judgment filed by Thanos pending before the trial court. Petitioner seeks extraordinary relief, in the nature of mandamus from the trial court's grant of Thanos' motion to intervene. Petitioner claims that the trial court abused its discretion in allowing Thanos to intervene.

Petitioner has failed to adequately demonstrate that no other plain, speedy, and adequate remedy exists. See Utah R. Civ. P. 65B(a). Petitioner could have filed a petition for interlocutory appeal, pursuant to rule 5 of the Utah Rules of Appellate Procedure. Because Petitioner has failed to meet this requirement, extraordinary relief is unavailable. See State v. Stirba, 972 P.2d 918, 921 (Utah Ct. App. 1998). Moreover, mandamus is not intended to replace a regular appeal. See id. at 923. Review by a writ is limited to determining whether the judge has regularly exercised his or her authority. See id. at 920.

For the reasons stated, the petition is dismissed.
 

______________________________
James Z. Davis, Judge
 

______________________________
Pamela T. Greenwood, Judge
 

______________________________
Gregory K. Orme, Judge

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