Case Summary: In re the Marriage of Nancy Carolyn Rappe and Kenneth Allen Rappe

Factual and Procedural Background

This is an appeal from the District Court of the City and County of Denver (Hon. John F. Sanchez) in a dissolution of marriage action. The trial court entered a temporary custody order pursuant to the parties' stipulation; that temporary custody order is not challenged on appeal. The husband, Kenneth Allen Rappe, appealed the denial of his motion for a team psychological evaluation of the family and his later motion for mental examinations of the wife and the son. These motions were described by the court as in limine motions preliminary to the final disposition of the custody and related issues, which remained pending in the trial court. The wife, Nancy Carolyn Rappe, contended that the appellate court lacked jurisdiction because the challenged orders were not final. The Court of Appeals agreed and dismissed the appeal. Counsel of record included Epstein, Epstein and Lozow, P.C. (Peter L. Franklin, Frederick Epstein) for appellee and Stephen J. Harhai for appellant. Opinion by Judge Kelly; Judges Smith and Kirshbaum concurred.

Legal Issues Presented

Whether the trial court's orders denying a team psychological evaluation and denying mental examinations of the wife and son are final, appealable orders.
Whether orders granting or denying motions for mental examinations or home/family evaluations in the context of custody disputes are sufficiently final to support appellate jurisdiction.

Arguments of the Parties

Appellant's Arguments

The appellant sought review of the trial court's denial of his motions for a team psychological evaluation of the family and for mental examinations of the wife and son (the fact of the appeal is stated in the opinion).
Both parties, including the appellant, asserted that In re Marriage of Henne, 620 P.2d 62 (Colo.App. 1980), was dispositive on the jurisdictional question (as stated in the opinion).

Appellee's Arguments

The appellee contended that the appellate court lacked jurisdiction because the challenged orders were not final.
The appellee also relied on In re Marriage of Henne as dispositive of the jurisdictional issue (as stated in the opinion).

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
In re Marriage of Henne, 620 P.2d 62 (Colo.App. 1980)	Interpreted Olson v. Priest as holding that a temporary custody order is not final for purposes of appeal.	The court agreed that Henne's interpretation of Olson (that a temporary custody order is not final) was correct for purposes of jurisdiction; however, the court expressly disagreed with Henne's treatment of other trial-court orders (such as home evaluation orders) as final and declined to follow that aspect of Henne.
Olson v. Priest, 193 Colo. 222, 564 P.2d 122 (1977)	Characterization of temporary custody orders as not final for appeal.	The court accepted the interpretation (as articulated in Henne) that Olson holds a temporary custody order is not final, supporting dismissal for lack of appellate jurisdiction.
Jones v. Galbasini, 134 Colo. 64, 299 P.2d 503 (1956)	Definition of a final judgment: one which ends the proceeding in which it is entered and leaves nothing further to be done by the court concerning the rights of the parties.	The court relied on this definition to analyze whether the challenged orders ended the proceeding or left further matters for the trial court; finding they did not, the orders were not final.
Ferkovich v. Ferkovich, 130 Colo. 228, 274 P.2d 602 (1954)	Support for the proposition that orders relating to custody (including examinations/evaluations) do not establish the financial rights and obligations of the parties pending permanent orders.	The court cited Ferkovich (along with Henne) to support its conclusion that orders granting or denying mental examinations in custody disputes are directly related to custody and are not final.

Court's Reasoning and Analysis

The court proceeded in these steps:

It noted the trial court had entered a temporary custody order by stipulation, which was not contested on appeal.
It identified the challenged rulings as in limine motions—preliminary motions for a team psychological evaluation of the family and for mental examinations of the wife and son—pending final disposition of custody and related matters.
It observed that both parties relied on In re Marriage of Henne and that Henne interpreted Olson v. Priest to hold that a temporary custody order is not final for purposes of appeal; the court agreed with that interpretation.
The court then addressed Henne's separate treatment of other orders (e.g., an order granting a home evaluation) as final. The court expressly disagreed with that aspect of Henne and declined to follow Henne's interpretation that such evaluation orders are final and reviewable.
Using the Jones v. Galbasini definition of final judgment, the court concluded that an order granting or denying motions for mental examinations to resolve custody disputes does not terminate the proceeding or settle interim financial rights and obligations; rather, such orders are directly related to custody and are therefore no more final than temporary custody orders.
Because the challenged orders were not final, the court held that their propriety could not be reviewed on appeal and dismissed the appeal for lack of jurisdiction.

Holding and Implications

Holding: APPEAL DISMISSED FOR LACK OF JURISDICTION.

Implications:

The direct consequence is that the appellant's challenge to the trial court's denial of a team psychological evaluation and of mental examinations of the wife and son cannot be reviewed on appeal because those orders are not final.
The court agreed that temporary custody orders are not final (following the interpretation of Olson as adopted in Henne), and it held that orders granting or denying mental examinations or family evaluations in custody disputes are likewise not final.
The court explicitly disagreed with and declined to follow the portion of In re Marriage of Henne that treated certain evaluation orders as final and reviewable; beyond that, the decision results in dismissal of the appeal and does not purport to resolve the underlying custody proceedings, which remained pending in the trial court.

Opinion by Judge Kelly. Judges Smith and Kirshbaum concur.

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In re the Marriage of: Nancy Carolyn Rappe, Appellee, and Kenneth Allen Rappe, Appellant.

Opinion by JUDGE KELLY.

In this dissolution of marriage action, the husband, Kenneth Allen Rappe, appeals the denial of his motion for a team psychological evaluation of the family and mental examinations of the wife and son. The wife, Nancy Carolyn Rappe, contends that we lack jurisdiction because the orders are not final. We agree and dismiss the appeal.

The trial court entered a temporary custody order pursuant to the parties' stipulation, the propriety of which is not challenged. Husband then moved for a team psychological evaluation of the family, and later moved for a mental examination of the wife and son. These were in limine motions preliminary to the final disposition of the issues, which are still pending.

Both parties assert that In re Marriage of Henne, 620 P.2d 62 (Colo.App. 1980) is dispositive of the jurisdictional issue. The Henne court interpreted Olson v. Priest, 193 Colo. 222, 564 P.2d 122 (1977) as holding that a temporary custody order is not final for purposes of appeal. We agree with this interpretation.

However, the trial court's other orders in Henne, including an order granting husband's motion for home evaluation, were held to be final and reviewable. In this, we disagree with the Henne court, and decline to follow its interpretation.

A final judgment is one which ends the proceeding in which it is entered and which leaves nothing further to be done by the court pronouncing it concerning the rights of the parties to the proceeding. See Jones v. Galbasini, 134 Colo. 64, 299 P.2d 503 (1956). An order granting or denying a motion for mental examinations to be conducted for the purpose of resolving custody disputes does not establish the financial rights and obligations of the parties pending entry of permanent orders. See In re Marriage of Henne, supra; Ferkovich v. Ferkovich, 130 Colo. 228, 274 P.2d 602 (1954). On the contrary, such orders are directly related to custody issues, and are no more final than are temporary custody orders. Accordingly, the propriety of such orders may not be reviewed on appeal, and this appeal is dismissed.

JUDGE SMITH and JUDGE KIRSHBAUM concur.

IN RE MARR. OF RAPPE