Opinion
No. 2 CA-CV 2014-0024
09-10-2014
IN RE THE MARRIAGE OF: COURTNEY BOYEN, Petitioner/Appellee, and EDWARD BOYEN, Respondent/Appellant.
COUNSEL Law Office of Sandra Tedlock, Tucson By Sandra Tedlock Counsel for Petitioner/Appellee The Reyna Law Firm, P.C., Tucson By Ron Reyna 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 NOT FOR PUBLICATION See Ariz.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); Ariz. R. Civ. App. P. 28(c). Appeal from the Superior Court in Pima County
No. D20124071
The Honorable Danelle B. Liwski, Judge
APPEAL DISMISSED
COUNSEL Law Office of Sandra Tedlock, Tucson
By Sandra Tedlock
Counsel for Petitioner/Appellee
The Reyna Law Firm, P.C., Tucson
By Ron Reyna
Counsel for Respondent/Appellant
MEMORANDUM DECISION
Judge Howard authored the decision of the Court, in which Judge Vásquez and Judge Brammer concurred. HOWARD, Judge:
The Hon. J. William Brammer, Jr., a retired judge of this court, is called back to active duty to serve on this case pursuant to orders of this court and the supreme court.
¶1 Appellant Edward Boyen appeals the trial court's order granting attorney fees to his former wife, Courtney Boyen. Edward additionally argues the court erred by granting Courtney spousal maintenance for an indefinite period in the decree of dissolution. Because we lack jurisdiction, we dismiss the appeal.
Factual and Procedural Background
¶2 The record reflects the following background. In November 2012, Courtney filed a petition for dissolution of her marriage to Edward. On November 7, 2013, the trial court entered an order awarding Courtney $15,000 in attorney fees and costs. On November 18, 2013, the court issued a ruling on most of the issues in the case, but reserved the disposition of certain property subject to an ongoing bankruptcy proceeding. On December 9, 2013, Edward filed a notice of appeal challenging the November 7, 2013, award of attorney fees. On January 2, 2014, the court entered the decree of dissolution.
Discussion
¶3 Although neither party raised the issue, this court has an independent duty to determine our jurisdiction over an appeal. Fields v. Oates, 230 Ariz. 411, ¶ 7, 286 P.3d 160, 162 (App. 2012). We only have jurisdiction pursuant to statute and have no authority to consider an appeal over which we do not have jurisdiction. See Hall Family Props., Ltd. v. Gosnell Dev. Corp., 185 Ariz. 382, 386, 916 P.2d 1098, 1102 (App. 1995). After reviewing the record, we ordered the parties to file supplemental briefs addressing this court's jurisdiction.
¶4 Pursuant to A.R.S. § 12-2101(A)(1), we have jurisdiction for an appeal "[f]rom a final judgment." A final judgment is one that "'dispose[s] of all claims and all parties.'" Maria v. Najera, 222 Ariz. 306, ¶ 5, 214 P.3d 394, 395 (App. 2009), quoting Musa v. Adrian, 130 Ariz. 311, 312, 636 P.2d 89, 90 (1981). If an order disposes of fewer than all claims or all parties, it is not a final judgment unless it contains language pursuant to Rule 78(B), Ariz. R. Fam. Law P. See Natale v. Natale, 234 Ariz. 507, ¶ 9, 323 P.3d 1158, 1160 (App. 2014).
The Arizona Supreme Court recently adopted Rule 54(c), Ariz. R. Civ. P., effective January 1, 2014, which provides that "[a] judgment shall not be final unless the court states that no further matters remain pending and that the judgment is entered pursuant to Rule 54(c)." That provision, however, has no counterpart in the Arizona Rules of Family Law Procedure.
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¶5 A notice of appeal filed prior to a final judgment is premature and, generally, a nullity. Craig v. Craig, 227 Ariz. 105, ¶ 13, 253 P.3d 624, 626 (2011); but see Barassi v. Matison, 130 Ariz. 418, 421-22, 636 P.2d 1200, 1203-04 (1981). "[T]he filing of a notice of appeal, even one ultimately determined to be a nullity, divests the trial court of jurisdiction to proceed other than to issue orders in furtherance of the appeal and to address matters unrelated to the appeal." In re Marriage of Flores & Martinez, 231 Ariz. 18, ¶ 10, 289 P.3d 946, 949 (App. 2012). A trial court may retain jurisdiction, however, if there is no "fairly debatable question [of] whether the notice of appeal is premature." In re Marriage of Johnson & Gravino, 231 Ariz. 228, ¶ 12, 293 P.3d 504, 508 (App. 2012). Additionally, pursuant to Rule 9(b)(2)(B), Ariz. R. Civ. App. P., effective January 1, 2014, "[a] notice of appeal filed after the court announces a decision or order — but before the entry of the judgment or order — is treated as filed on the date of and after the entry of the judgment or order." Thus, a premature notice of appeal still can be an effective notice of appeal when filed under the circumstances set forth in Rule 9(b)(2)(B).
¶6 The trial court's November 7 order awarded Courtney $15,000 in attorney fees and costs but did not dispose of the other issues in the case and did not contain language pursuant to Rule 78(B). It therefore was an interlocutory order and not a final judgment which could be appealed. See § 12-2101(A)(1). The court's November 18 ruling disposed of most of the remaining issues in the case, but reserved "the issue of the division of property and debts until the close of [Courtney's] bankruptcy proceedings." Because that ruling did not dispose of all the issues in the case and did not contain Rule 78(B) language, it also was not a final, appealable judgment.
¶7 On December 9, Edward filed a notice of appeal of the trial court's November 7 order awarding Courtney's attorney fees and costs. That notice of appeal was "clearly premature," and the court was not divested of jurisdiction to continue issuing rulings in the case. Marriage of Johnson & Gravino, 231 Ariz. 228, ¶ 11, 293 P.3d at 508. On January 2, 2014, the court, without announcing its decision prior to that date, entered a decree of dissolution disposing of the remaining property which it had deferred disposing of in the November 18 ruling. This decree, therefore, was a final judgment subject to appeal. See Maria, 222 Ariz. 306, ¶ 5, 214 P.3d at 395. Edward did not file another notice of appeal.
¶8 Edward filed his notice of appeal before the trial court entered its dissolution decree. Because the court had not previously announced its decision before entering the decree, Rule 9(b)(2)(B) does not convert his ineffective premature notice into an effective notice of appeal. Consequently, because Edward filed his only notice of appeal prematurely, it is "'ineffective' and a nullity." Craig, 227 Ariz. 105, ¶ 13, 253 P.3d at 626, quoting Smith v. Ariz. Citizens Clean Elections Comm'n, 212 Ariz. 407, ¶ 39, 132 P.3d 1187, 1195 (2006). We therefore lack jurisdiction over this appeal. See id.; see also § 12-2101(A)(1).
Disposition
¶9 For the foregoing reasons, we dismiss this appeal.