1998 -NMCA- 110, Khalsa v. Levinson

• Decision Date: 16 July 1998
• Docket Number: No. 18211,18211
• Citation: 125 N.M. 680,1998 NMCA 110,964 P.2d 844
• Parties: , 1998 -NMCA- 110 Mukta Kaur KHALSA, Petitioner-Appellee, v. Richard Lee LEVINSON, f/k/a Gurubhai Singh Khalsa, Respondent-Appellant.
• Court: Court of Appeals of New Mexico

Page 844

964 P.2d 844

125 N.M. 680, 1998 -NMCA- 110

Mukta Kaur KHALSA, Petitioner-Appellee, v. Richard Lee LEVINSON, f/k/a Gurubhai Singh Khalsa,

Respondent-Appellant.

No. 18211.

Court of Appeals of New Mexico.

July 16, 1998.

Thomas Patrick Whelan, Jr., Santa Fe, for Petitioner-Appellee.

Kathryn M. Wissel, Geer, Wissel & Levy, P.A., Albuquerque, for Respondent-Appellant.

OPINION

ARMIJO, Judge.

¶1 This appeal presents this Court with the opportunity to clarify the law concerning the circumstances under which a trial court's decision becomes an order and the circumstances under which orders on post-decree motions in domestic relations cases are final for purposes of appeal.

¶2 For the reasons discussed below, we determine that the trial court's decision in this case is not final for purposes of Richard Lee Levinson's (Father) appeal because it neither includes decretal language nor provisions directing the entry of judgment. We further determine that when, as here, a decision resolves fewer than all the issues presented by post-decree motions, the decision, even if it contains the requisite decretal language, is not final and appealable unless (1) the trial court expressly determines, pursuant to Rule 1-054(C)(1) NMRA 1998 that there is no just reason for delay and expressly directs entry of judgment and (2) the matters adjudicated are not intertwined with issues that remain unresolved. We dismiss this appeal for lack of jurisdiction.

FACTS AND PROCEDURAL POSTURE

¶3 In 1992, Mukta Kaur Khalsa (Mother) sought a legal separation and divorce from her husband of eighteen years, then known as Gurubhai Singh Khalsa, now known as Richard Lee Levinson. The petition raised issues concerning the division of the marital estate, spousal support, and custody, visitation and support of the two minor children of the Parties. The Parties' daughter was ten years old and their son was four and a half years old at the time of the filing of the petition. The petition indicated that the son was living with Mother in New Mexico, while the daughter was living with Father outside New Mexico.

¶4 Eventually, Mother and Father resolved the issues between them through a marital settlement agreement (MSA) and a parenting plan. Insofar as it is pertinent to the post-decree motions, the MSA divided the property and debts and awarded Mother a lump sum as spousal support. The MSA also provided that the Parties would have joint legal custody of their children, with Father having primary physical custody. The MSA further provided that Father waived child support from Mother and that this deviation from the child support guidelines was appropriate because Father could support the children and Mother could not.

¶5 The parenting plan signed and filed by the Parties noted that the children had been raised as Sikhs and that Father considered himself a Sikh but no longer observed Sikh customs. It further provided that Father specifically agreed, despite his own views, to raise the children as Sikhs. He agreed to this in order to obtain Mother's agreement that he be the primary physical custodian. The parenting plan defined in detail the relevant Sikh customs which the children were to observe. They included, among other things, maintaining a vegetarian diet, refraining from cutting their hair, using their Sikh names as their legal names, and wearing a turban when in public. We refer to these collectively as the religious lifestyle provisions of the parenting plan. The parenting plan specifically provided that:

a breach of these covenants [the agreement concerning the religious lifestyle provisions] contrary to the best interests of the children by the parent having physical custody would constitute a "major change" under 40-4-9.1 NMSA 1978 Comp. which, unless advance permission has been obtained from the Court, would constitute grounds for the Court, in the exercise of its discretion, to transfer custody from one parent to the other, subject to the right in the Court to determine what is in the best interests of the children.

The parenting plan also provided that the New Mexico Joint Custody Statute, NMSA 1978, § 40-4-9.1 (1986) would be applied to the children and that the parents would communicate and be flexible about the needs of the children. On January 12, 1993 a final decree was entered that incorporated the provisions of the MSA and the parenting plan. Father and the children were living in Washington, D.C. by this time.

¶6 Thirteen months after the final decree was entered, Mother filed a motion for modification of custody, for sanctions, and for an award of attorney fees. In her motion, Mother alleged that Father was systematically violating the religious lifestyle provisions of the parenting plan. Mother also alleged that at the time he signed the parenting plan and MSA, Father had no intention of abiding by those provisions. Mother further alleged that this change in the religious upbringing of the children threatened the best interests of the children and was a major change of circumstances. She asked that the trial court modify the custody arrangements by making her primary physical custodian, assess substantial financial sanctions against Father, and order Father to pay Mother's attorney fees and costs for the proceedings.

¶7 Mother's motion was the first pleading in what, over the next several years, became a series of motions, supplements to motions, responses and counter motions that raised a series of interrelated issues. Each party sought to reopen or revisit the provisions of the MSA, although Father's contentions were directed at the child support provisions while Mother's were directed at the alimony and property provisions. Each party asked the court to order the other to pay all or part of the attorney fees or costs incurred in connection with the litigation. In addition to her request to reopen the MSA, Mother asked the trial court to hold Father in contempt and order him to pay substantial financial sanctions. Mother asked the court to determine that Father was liable to her for compensatory damages based on tort theories of intentional infliction of emotional distress, fraud, misrepresentation and alienation of the affection of the children.

¶8 The issues concerning custody are more complex. Each party asked the court to modify the custody provisions of the MSA and the parenting plan although their proposals differed radically. Mother contended that Father had specifically violated the religious lifestyle provisions of the parenting plan and that this violation constituted a major change that affected the best interests of the children. She alleged that Father had violated the provisions of the parenting plan and the joint custody statute by failing to consult with her concerning major changes in the lives of the children. At various times she asked the court (1) to award her primary physical custody of the children; (2) to alternate primary physical custody every two years; (3) to hold Father in contempt for these violations; and (4) to defer ruling on her other requests and instead appoint a Rule 11-706 NMRA 1998 expert to mediate or, if necessary, arbitrate disputes between the parents.

¶9 For his part, Father denied that he had violated the religious lifestyle provisions of the parenting plan. He contended that the religious lifestyle provisions were to apply to the children only so long as they were in their best interests, and that this was no longer the case. He argued that the religious lifestyle provisions of the parenting plan violated his rights or were unenforceable under the First Amendment to the United States Constitution. He argued Mother's summer visitation should be shortened to allow the children to participate in other activities during summer vacation. With respect to Mother's contention that he failed to consult with her, Father took the position that neither the law nor the parenting plan required him to consult with Mother concerning major issues if such consultation would be detrimental to the best interests of the children.

¶10 The trial court held an evidentiary hearing during three days in June 1994. In October 1994, the court entered an interim order concerning placement of the children. The order determined that, unless modified, the provisions of the parenting plan would remain in effect pending entry of a final order disposing of all issues concerning the parenting plan. In addition, it appointed a "case manager," defined the powers of the case manager, and required psychotherapy. Later, additional disputes developed over the case manager's role, transportation to and from New Mexico for summer visitation, and the length of the summer visitation. Over the next two years, the trial court held additional evidentiary hearings. However, the interim order referred to above was the only order signed by the judge and filed in the case until the December 1996 decision, discussed below.

¶11 We initially assigned this case to the summary calendar with summary dismissal proposed because the decision did not appear to be a final order. Both Parties filed memoranda in opposition arguing that the decision was final and appealable. We note that the Parties also filed motions in this Court presenting quite different views of what issues were actually resolved by the trial court's decision. We then assigned this case to the expedited bench program with instructions that the Parties brief the question of finality. At oral argument both parties again vigorously argued in favor of the finality of the order. After oral argument it became apparent that the question of whether the decision was a final order for purposes of appeal warranted a formal opinion; thus, this appeal was removed from the expedited bench program.

DISCUSSION

A. Lack of Decretal Language

¶12 In civil cases, this Court has jurisdiction over, among other things, "any final order after entry of judgment which affects...