Opinion
No. 2 CA-CV 2017-0175-FC
06-13-2018
IN RE THE MARRIAGE OF BRITANY L. LEE, FKA BRITANY L. RITENOUR, Petitioner/Appellee, and BRANDON J. RITENOUR, Respondent/Appellant.
COUNSEL Law Office of Michael E. Farro, Sierra Vista By Michael E. Farro Counsel for Petitioner/Appellee Bays Law PC, Sierra Vista By P. Randall Bays Counsel for Respondent/Appellant
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Civ. App. P. 28(a)(1), (f). Appeal from the Superior Court in Cochise County
No. DO201300573
The Honorable Charles A. Irwin, Judge
APPEAL DISMISSED
COUNSEL Law Office of Michael E. Farro, Sierra Vista
By Michael E. Farro
Counsel for Petitioner/Appellee Bays Law PC, Sierra Vista
By P. Randall Bays
Counsel for Respondent/Appellant
MEMORANDUM DECISION
Judge Eppich authored the decision of the Court, in which Presiding Judge Vásquez and Judge Espinosa concurred. EPPICH, Judge:
¶1 Brandon Ritenour appeals from the trial court's order granting Britany Lee permission to relocate the parties' two children to Tacoma, Washington. For the following reasons, his appeal is dismissed.
Factual and Procedural Background
¶2 In October 2013, the trial court signed a consent decree dissolving the marriage of Ritenour and Lee. The consent decree incorporated a joint parenting plan signed by the parties in August of that same year, which awarded the parties joint legal decision-making authority, granted Lee primary residential custody, and awarded Ritenour a minimum of eleven days' parenting time per month. In December 2014, the court approved and adopted a modified parenting plan that granted Ritenour "three weekends every month from Friday after school until Sunday evening, with no more than two consecutive weekends," and granted each parent custody for one month during the summer school break.
¶3 In April 2017, Lee filed a petition to permit her to relocate and move with the children to Tacoma, Washington. In his response, Ritenour objected to the relocation of the children, and requested that he be made the primary residential parent. Following a two-day hearing, and because the matter was "time sensitive due to the children's school schedule," the trial court issued a "preliminary Decision" on July 20, granting Lee's petition, ordering the parties to attempt to formulate and submit a long-distance parenting plan, and directing Lee's attorney to draft and submit proposed findings of fact and conclusions of law. Ritenour then filed his notice of appeal, which the trial court noted was premature but otherwise ignored in a second, non-final order. In that second order, the court noted that the parties had "been unable to agree to a long distance parenting plan," and entered its own order comprised of various portions of the parties' proposed plan, which included as an attachment a child support worksheet that calculated Ritenour's support obligation under the new parenting plan. In that order, the court also noted that "[t]he parties['] proposed Findings of Fact and Conclusions of Law [were] due August 31, 2017." Lee had submitted proposed Findings of Fact and Conclusions of Law on August 25.
The record before us shows that Ritenour signed and filed a notice of appeal on August 16, 2017. That notice was transmitted to and stamped as received by this court on September 18, 2017, for the purpose of evaluating the case's potential for mediation under the Arizona Appellate Settlement Conference Program. See Ariz. R. Civ. App. P. 30. That same day, this court determined the case was not suited for the program, and a copy of the notice of appeal, now bearing both "Received" and "Not for Settlement" stamps from this court, was returned to the superior court. Upon receiving that notice, the clerk of that court apparently stamped it as "Filed" on September 25, 2017, rather than as simply received, and entered it into the trial court record. Thus, although it appears there are two notices of appeal in the record, the second is merely a duplicate of the only notice of appeal Ritenour appears to have filed in this case.
¶4 On September 15, the trial court issued a third preliminary order, in which it adopted some of Lee's proposed Findings of Fact and Conclusions of Law, set forth findings required by A.R.S. §§ 25-403(A) and 25-408(I), and ordered Lee to prepare and submit a proposed final form of order incorporating the previous rulings. On October 27, the court issued its final order.
Analysis
¶5 This court's jurisdiction is defined by statute, and we have an independent duty to determine our jurisdiction over an appeal. Baker v. Bradley, 231 Ariz. 475, ¶ 8 (App. 2013). We must dismiss an appeal over which we lack jurisdiction. Id.
¶6 In general, our jurisdiction is limited to appeals from final judgments that dispose of all claims and parties. Id. ¶ 9; see, e.g., A.R.S. § 12-2101(A)(1). Rule 81(A), Ariz. R. Fam. Law P., which applies to family law cases filed in superior court, see Ariz. R. Fam. Law P. 1, states: "All judgments shall be in writing and signed by a judge," and entry occurs when "fil[ed] with the clerk." In a civil case, a notice of appeal must be filed no more than thirty days after entry of the judgment being appealed. Ariz. R. Civ. App. P. 9(a). Two narrow exceptions to this rule exist: the Barassi exception, which applies when "a notice of appeal is filed 'after the trial court has made its final decision but before it has entered a formal judgment, if no decision of the court could change and the only remaining task is merely ministerial,'" Camasura v. Camasura, 238 Ariz. 179, ¶ 9 (App. 2015), quoting Ghadimi v. Soraya, 230 Ariz. 621, ¶ 12 (App. 2012), and when a premature notice is "filed after the superior court announces an order or other form of decision—but before entry of the resulting judgment that will be appealable," under Rule 9(c), Ariz. R. Civ. App. P. Rule 9(c) applies only "when the ruling designated in the [premature] notice is a 'decision' for purposes of the rule, and 'only when a [superior] court announces a decision that would be appealable if immediately followed by the entry of judgment.'" Camasura, 238 Ariz. 179, ¶¶ 14, 16 (citation omitted), quoting FirsTier Mortg. Co. v. Inv'rs Mortg. Ins. Co., 498 U.S. 269, 274 n.4, 276 (1991).
Barassi v. Matison, 130 Ariz. 418 (1981). --------
¶7 Ritenour filed his notice of appeal on August 16, 2017. By the terms of that notice, Ritenour purported to challenge only the trial court's "preliminary Decision" of July 20, 2017. That order not only left unresolved the establishment a new long-distance parenting plan and recalculation of child support, but contained none of the required findings pursuant to §§ 25-403(A) and 25-408(I), which the court noted would "follow at a later date." It was not until the trial court's order on September 15, 2017, that all pending issues were resolved, and not until October 27 that the court entered judgment in a final appealable order. The July 20 order was thus not a final, appealable order, and any notice of appeal filed from it could not fall under the Barassi or Rule 9(c) exceptions. Ritenour's notice of appeal was therefore "'ineffective' and a nullity," Craig v. Craig, 227 Ariz. 105, ¶ 13 (2011), quoting Smith v. Ariz. Citizens Clean Elections Comm'n, 212 Ariz. 407, ¶ 39 (2006), and this court lacks jurisdiction to consider his appeal.
Conclusion
¶8 Ritenour's appeal is dismissed for lack of jurisdiction. In our discretion, we deny Lee's request for attorney fees. But as the prevailing party, Lee is entitled to costs incurred in this appeal upon her compliance with Rule 21, Ariz. R. Civ. App. P. See Robinson v. Kay, 225 Ariz. 191, ¶ 8 (App. 2010) (appellee entitled to costs when appeal dismissed for lack of jurisdiction).