Al-Saleh v. Al-Saleh

2020 UT App 16

THE UTAH COURT OF APPEALS

NOUR AL-SALEH,
Appellee,
v.
ASAAD AL-SALEH,
Appellant.

Per Curiam Opinion
No. 20191013-CA
Filed January 30, 2020

Third District Court, Salt Lake Department
The Honorable Patrick Corum
No. 154905136

Cassandra Elyse Gallegos and Gregory B. Wall,
Attorneys for Appellant
Kendall Peterson, Attorney for Appellee

Before JUDGES DAVID N. MORTENSEN, JILL M. POHLMAN, and
DIANA HAGEN.

PER CURIAM:

¶1 Asaad Al-Saleh (Husband) seeks to appeal the district
court’s order denying his request to modify his child support
obligations. The district court issued an order certifying the
order as final pursuant to rule 54(b) of the Utah Rules of Civil
Procedure. This matter is before the court on its own motion for
summary disposition based upon lack of jurisdiction due to the
absence of a final, appealable order or an order properly certified
pursuant to rule 54(b).

¶2 For an order to be properly certified as final under rule
54(b), three requirements must be met. See Copper Hills Custom
Homes, LLC v. Countrywide Bank, FSB, 2018 UT 56, ¶ 16, 428 P.3d
1133. “There must be multiple claims for relief or multiple
Al-Saleh v. Al-Saleh

parties to the action; . . . the judgment appealed from must have
been entered on an order that would be appealable but for the
fact that other claims or parties remain in the action; . . . [and the
district] court, in its discretion, must make an express
determination that there is no just reason for delay.” Id.
(quotation simplified). In regard to the second criterion, i.e., the
appealability of the order, the Utah Supreme Court has
instructed that district courts must “enter findings supporting
the conclusion that the certified orders are final,” and “detail the
lack of factual overlap between the certified and remaining
claims.” Id. ¶ 21 (quotation simplified). These findings are
important in assessing the propriety of the rule 54(b) certification
because of the need to determine the potential res judicata effect
of an appeal on the issues remaining before the district court.
Kennecott Corp. v. Utah State Tax Comm’n, 814 P.2d 1099, 1104
(Utah 1991). “Where the facts are sufficiently similar to
constitute res judicata on the remaining issues, 54(b) certification
is generally precluded.” Id. at 1104–05.

¶3 Here, the district court’s certification order does not
comply with the standard set forth by the Utah Supreme Court.
Specifically, the order does not include detailed findings
concerning the lack of factual overlap between the certified claim
and the remaining claims. The order states generally that there is
“no overlap in the issue sought to be appealed . . . and the other
issues.” However, it does not set forth what other claims remain
and whether those other claims may involve some of the same
facts that were relevant to the order concerning the modification
of child support. 1 The Supreme Court specifically stated in

1. Rather than make the necessary findings, the district court
found that Husband represented that “he does not at this time
intend to pursue” the issues raised in his pending petition to
modify, and that Wife’s pending petition appears to have “little
likelihood of success.” (Emphasis added). While the court’s
(continued…)

20191013-CA 2 2020 UT App 16
Al-Saleh v. Al-Saleh

Copper Hills Custom Homes that when there is no discussion of
such issues “it is self-evident that we cannot review the district
court’s analysis in this regard if analysis is not provided.”
Id. ¶ 28. Therefore, the certification order in this case is deficient.

¶4 Accordingly, the appeal is dismissed without prejudice to
the filing of a timely appeal after the district court enters a
proper rule 54(b) certification or a final, appealable order.

(…continued)
assessment may be accurate, it must still enter proper findings
on the factual overlap between the order on appeal and the
pending claims. One of the principal rationales for limiting the
right to appeal under Rule 54(b) “is to promote judicial economy
by preventing piecemeal appeals in the same litigation.” Copper
Hills, 2018 UT 56, ¶ 11 (quotation simplified). Our supreme court
has also expressed concern “that multiple rulings in the same
litigation on narrow issues taken out of context may needlessly
increase the risk of inconsistent and erroneous decisions.” Id.
(quotation simplified). If there are overlapping claims before the
district court that the parties do not intend to pursue or do not
have merit, the principles underlying Rule 54(b) generally will
be best served if those claims are resolved prior to appeal.

20191013-CA 3 2020 UT App 16