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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

2 MARION DUBEAU,

3 Petitioner-Appellee,

4 v. No. 36,018

5 JOHN HOGDEN,

6 Respondent-Appellant.

7 APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY

8 Matthew J. Wilson, District Judge

9 Cuddy & McCarthy, LLP

10 Julie A. Wittenberger

11 Santa Fe, NM

12 for Appellee

13 John Hogden

14 Santa Fe, NM

15 Pro Se Appellant

16 MEMORANDUM OPINION

17 HANISEE, Judge.

18 {1} Respondent John Hogden, a self-represented litigant, appeals from the district

19 court’s order denying his request that the district court judge recuse himself and
2

1 adopting the priority consultation recommendations. [2 RP 122] We entered a notice

2 of proposed summary disposition, proposing to dismiss for lack of a final order.

3 Respondent has filed a memorandum in opposition (MIO) to our notice, challenging

4 our proposed disposition. We are unpersuaded by Respondent’s arguments and

5 therefore dismiss.

6 {2} On appeal, Respondent raises eight issues relative to the district court’s rulings

7 in post-decree proceedings. Our calendar notice did not address the merits of

8 Respondent’s issues because, we explained, that it appeared that this case was not

9 properly before the Court. [CN 2-3] In response, Respondent

10 disputes this Courts proposal that there is no final

11 order in this case. [MIO 1-4] Respondent seeks a

12 definition of what it means to dispose of a case to

13 the fullest extent possible[.] [MIO 1] We direct him

14 to the following language, set forth by our Supreme

15 Court in Kelly Inn No. 102, Inc. v. Kapnison: 

16 To distill from all of this a general

17 principle that will provide an easy answer to

18 the question of when a judgment is final

19 and when it is not is probably a hopeless

20 undertaking. We agree with the United States
3

1 Supreme Court that it is impossible to

2 devise a formula to resolve all marginal

3 cases coming within the twilight zone of

4 finality. One formula, not yet mentioned in

5 this opinion, has been phrased by our court

6 of appeals as follows: The test of whether a

7 judgment is final so as to permit the taking

8 of an immediate appeal, lies in the effect

9 the judgment has upon the rights of some

10 or all of the parties. But this, of course,

11 fails to explain what kind of effect upon the

12 rights of the parties is necessary for an

13 order to be considered as final.

14 We probably can do little better than to

15 propose the following guidelines, which may

16 answer some but undoubtedly will not

17 answer all of the difficult questions falling

18 into the twilight zone: Where a judgment

19 declares the rights and liabilities of the

20 parties to the underlying controversy, a

21 question remaining to be decided thereafter

22 will not prevent the judgment from being

23 final if resolution of that question will not

24 alter the judgment or moot or revise

25 decisions embodied therein. Where a

26 postjudgment request, such as one for attorney[] fees, raises

27 issues “collateral to” and “separate from” the decision on the merits,

28 such a request will not destroy the finality of the decision;

29 proceedings to carry out or give effect to

30 the judgment do not render the judgment

31 nonfinal, because the trial court always
4

1 retains jurisdiction to enforce its

2 unsuperseded judgment.

3 1992-NMSC-005,  20-21, 113 N.M. 231, 824 P.2d

4 1033 (internal quotation marks and citations

5 omitted).

6 {3} In this case, as we explained in our calendar

7 notice, the district court has yet to rule on

8 Respondents motion for the court to refrain from

9 court-ordered defamation. [1 RP 113; CN 3] Because

10 the motion is directed at certain findings contained

11 in the priority consultation, which the district court

12 adopted as an order of the courtthe order from

13 which Respondent seeks to appeala ruling on the

14 motion could alter, moot, or revise the judgment of

15 the district court. In other words, the motion is not

16 collateral to or separate from the decision on the

17 merits. Accordingly, the decision is non-final. See id.
5

1 {4} We acknowledge the possibility that the district

2 court is under the impression, as Respondent

3 suggests, that it has resolved all outstanding issues.

4 [MIO 2-3] However, that does not change this

5 Courts assessment of finality in this case. We

6 suggest that Respondent invoke a ruling on the

7 motion and re-file his appeal, if he so desires, once

8 the district court explicitly resolves the outstanding

9 motion.

10 {5} For the reasons set forth in our notice of proposed disposition and in this

11 opinion, we dismiss. 

12 {6} IT IS SO ORDERED.

13 

14 J. MILES HANISEE, Judge

15 WE CONCUR:

16 

17 TIMOTHY L. GARCIA, Judge 
6

1 

2 M. MONICA ZAMORA, Judge