Opinion
2 CA-CV 2023-0157-FC
07-23-2024
In re the Marriage of Theresa K. Marpe-Koontz, Petitioner/Appellant, and Jeffrey E. Koontz, Respondent/Appellee.
Alexander R. Arpad, Phoenix Counsel for Petitioner/Appellant
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Maricopa County No. FN2019004182 The Honorable Max H. Covil, Judge APPEAL DISMISSED
Alexander R. Arpad, Phoenix
Counsel for Petitioner/Appellant
Judge Kelly authored the decision of the Court, in which Judge Vasquez and Vice Chief Judge Eppich concurred.
MEMORANDUM DECISION
KELLY, JUDGE:
¶1 Theresa Marpe-Koontz appeals from the consent decree dissolving her marriage to Jeffrey Koontz and the trial court's award of attorney fees to Jeffrey. Because the decree failed to resolve outstanding property-allocation issues concurrently with dissolution and was improperly certified as a final, appealable judgment, we lack appellate jurisdiction. We therefore dismiss the appeal.
Jeffrey has not filed an answering brief, and we may consider his failure to do so as a confession of error. See Savord v. Morton, 235 Ariz. 256, ¶ 9 (App. 2014). However, in view of our conclusion that we lack jurisdiction, we need not do so here.
Factual and Procedural Background
¶2 The parties married in March 1983, and Theresa petitioned for dissolution of marriage in February 2019. In November 2019, the parties participated in a settlement conference and reached a partial agreement, which the trial court found to be fair and binding pursuant to Rule 69, Ariz. R. Fam. Law P. At the trial on the remaining issues in June 2020, the parties again entered into a binding Rule 69 agreement, which the court approved and adopted.
¶3 In April 2021, Jeffrey lodged an unsigned consent decree, seeking the trial court's enforcement. He noted that the parties had reached "a full and complete Rule 69 [a]greement as to all outstanding issues" at the June 2020 trial and that Theresa had refused to recognize that agreement. The following month, Theresa objected to numerous provisions of Jeffrey's decree and lodged a separate decree clarifying her alternate understanding of the parties' Rule 69 agreement. The court later issued a ruling directing the "parties to meet and confer" regarding certain disputed provisions.
For our recitation of the facts, we rely on the trial court's minute entry and a certified copy of the June 2020 trial transcript that was attached to Jeffrey's lodged decree. See Blair v. Burgener, 226 Ariz. 213, ¶ 9 (App. 2010) (appellant's duty to ensure record on appeal contains all transcripts or other necessary documents).
¶4 In June 2022, Theresa requested a resolution management conference, citing the parties' difficulty in finalizing the terms of their decree. At the August 2022 conference, the trial court ordered Jeffrey to file a proposed consent decree, which he did the following day. Theresa again filed an objection, and the court scheduled an oral argument.
¶5 In February 2023, approximately two weeks before the oral argument, the trial court vacated the proceeding and signed Jeffrey's August 2022 consent decree and property settlement agreement, certifying the judgment as final pursuant to Rule 78(c), Ariz. R. Fam. Law P. The following week, the court filed an amended consent decree pursuant to Rule 78(b) and later awarded Jeffrey attorney fees in May 2023. The following month, Theresa appealed the court's order and its award of attorney fees to Jeffrey.
Neither the initial consent decree nor the amended decree was signed by Theresa or Jeffrey.
¶6 Because the May 2023 judgment awarding attorney fees lacked the necessary finality language, this court stayed the appeal and revested jurisdiction in the trial court to allow it to enter an order containing the requisite language. The court subsequently entered an amended judgment, and Theresa filed a timely appeal.
In February 2023, Theresa filed a motion to amend findings of fact regarding the consent decree, which the trial court denied. Because the court did not sign the minute entry denying that post-judgment motion, the time to file an appeal from the Rule 78(b) judgment did not begin to run. See Ariz. R. Civ. App. P. 9(e)(1)(B).
Discussion
¶7 On appeal, Theresa asserts that the trial court erred by entering the decree of dissolution while issues remained in dispute. She further contends that the court erred in not properly clarifying "the postDecree referral of disputed property division issues" and in failing to hold a hearing regarding the parties' Rule 69 agreement. In addition, she argues the court erroneously divided disputed property and improperly awarded Jeffrey attorney fees. She asserts that despite the court's failure to properly resolve these disputes, this court has jurisdiction to consider her appeal.
¶8 We have an independent duty to determine whether we have jurisdiction over an appeal. Sorensen v. Farmers Ins. Co. of Ariz., 191 Ariz. 464, 465 (App. 1997). "Our jurisdiction is prescribed by statute, and we have no authority to entertain an appeal over which we do not have jurisdiction." In re Marriage of Kassa, 231 Ariz. 592, ¶ 3 (App. 2013). Generally, our jurisdiction is limited to final judgments that dispose of all claims against all parties. Robinson v. Kay, 225 Ariz. 191, ¶ 4 (App. 2010); see also Ariz. R. Fam. Law P. 78(c).
¶9 Here, the parties' Rule 69 agreements expressly provided for the appointment of a special master to determine the balances in the community accounts as of the date the petition for dissolution was served and to divide those accounts equally between the parties. This required the special master to classify the property as either community or separate in nature in order to evaluate the parties' reimbursement claims for community bill payments and to decide whether either party was entitled to reimbursement for separate funds previously transferred into community accounts. Furthermore, the February 2023 consent decree entered by the trial court dictated that "[the special master] shall determine the balance as well as whether any amounts are sole and separate or community and calculate appropriate offsets owed to each party relating to community expenses paid during the dissolution proceedings."
¶10 Under Arizona law, "property-allocation issues must be resolved concurrent with dissolution." Larchick v. Pollock, 252 Ariz. 364, ¶ 12 (App. 2021). "[T]he court shall assign each spouse's sole and separate property to such spouse" and "shall also divide the community, joint tenancy and other property held in common equitably." A.R.S. § 25-318(A). "When the community property is divided at dissolution pursuant to the mandate of A.R.S. § 25-318, each spouse receives an immediate, present, and vested separate property interest in the property awarded to him or her by the trial court." Koelsch v. Koelsch, 148 Ariz. 176, 181 (1986). "The court shall enter a decree of dissolution of marriage" and must "make provisions for . . . the disposition of property," to the extent the court "has jurisdiction to do so." A.R.S. § 25-312(A), (E).
¶11 On the record before us, at the time the trial court entered the dissolution decree, the special master had not yet classified the parties' accounts as either separate or community property. Consequently, property-allocation issues, including issues regarding the division of the parties' community funds, remained pending, contrary to Arizona law. See Larchick, 252 Ariz. 364, ¶ 12; § 25-312(E); Dole v. Blair, 248 Ariz. 629, ¶ 12 (App. 2020) ("A.R.S. § 25-318 is clear in its mandate that community property must be divided on dissolution of the marriage."). Accordingly, the decree fails to resolve all issues in this matter and was not properly certified as a final, appealable judgment under Rule 78(c). See Walker v. Walker, 256 Ariz. 264, ¶ 19 (App. 2023) ("The judgment is not appealable if it includes Rule 78(c) language when potential issues or claims remain pending."). As a result, this court lacks appellate jurisdiction. Because these factual determinations need to be made in the trial court in the first instance, we also decline Theresa's request to treat her opening brief as a petition for special action. See Mohave Disposal, Inc. v. City of Kingman, 186 Ariz. 343, 350 (1996) (trial court "is the forum in which the necessary factual determinations must be made and related issues first resolved").
Our decision to decline special-action jurisdiction is made without prejudice to any other petition for special action Theresa may file in the future.
Attorney Fees and Costs
¶12 Theresa requests her attorney fees on appeal pursuant to A.R.S. § 25-324. In our discretion, we deny her request for attorney fees. See Palmer v. Palmer, 217 Ariz. 67, ¶ 26 (App. 2007) (declining to award attorney fees on appeal where court lacks "evidence of the parties' current financial resources"). Theresa is also not the prevailing party on appeal, and we therefore do not award her costs on appeal. See In re Marriage of Morris &Mandel, 255 Ariz. 158, ¶ 36 (App. 2023).
Disposition
¶13 For the foregoing reasons, we dismiss the appeal for lack of jurisdiction.