Utah Court of AppealsJul 29, 2004
2004 UT App. 253 (Utah Ct. App. 2004)

Case No. 20040380-CA.

Filed July 29, 2004. (Not For Official Publication).

Appeal from the Third District, Salt Lake Department, The Honorable Leslie A. Lewis.

Randy S. Ludlow, Salt Lake City, for Appellant.

David J. Friel, Salt Lake City, for Appellee.

Before Judges Bench, Davis, and Greenwood.



This case is before the court on Appellee's (Winward) motion to dismiss for lack of jurisdiction on the basis that no final appealable order has issued. See Utah R. App. P. 10. Winward filed a motion to modify the divorce decree that sought to transfer custody of the parties' two minor children to her.

The custody of the minor child G.G. was not transferred by the court because the child was close to the age of majority. Therefore, the custody of J.G. is the only issue on appeal.

The order, issued after trial, transferred custody from Appellant (George) to Winward. George seeks review of that order. Winward moves to dismiss on the basis that several issues remain unresolved, including: transportation, insurance issues, and day care. George claims that the order of the trial court resolved the only issue presented at trial, the custody of the parties' two children.

While the trial court retains ongoing jurisdiction in domestic cases and, as a result, several final orders can issue, an appealable order must resolve the controversy then existing between the parties. See Copier v. Copier, 939 P.2d 202, 203-04 (Utah Ct.App. 1997). The petition to modify the divorce decree requested custody transfer and also child support modification and tax exemption status change as a result of transfer of custody. The order issued by the trial court did not resolve the issues of child support modification or tax exemption status and, therefore, is not final and appealable.

Because the order is not final and appealable, this court lacks jurisdiction. Once a court has determined that it lacks jurisdiction, it "retains only the authority to dismiss the action." Varian-Eimac, Inc. v. Lamoreaux, 767 P.2d 569, 570 (Utah Ct.App. 1998). Accordingly, we dismiss the appeal without prejudice to a proper appeal filed after the issuance of a final order.

Russell W. Bench, Associate Presiding Judge, Pamela T. Greenwood, Judge.

I DISSENT: James Z. Davis, Judge.