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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
 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 Court s 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

                                               2
 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


                                       3
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 Respondent s       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 court the order from

13 which Respondent seeks to appeal a 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.

                                  4
 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 Court s           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


                                            5
1
2 M. MONICA ZAMORA, Judge




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