Opinion
No. 2 CA-CV 2018-0149-FC
03-26-2019
IN RE THE MARRIAGE OF KRISTIN QUEEN, Petitioner/Appellee, and SHAWN KING, Respondent/Appellant.
Kristin Queen, Red Rock In Propria Persona Shawn King, New Boston, Michigan In Propria Persona
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NOT FOR PUBLICATION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 Pima County
No. D20170428
The Honorable Ken Sanders, Judge Pro Tempore
APPEAL DISMISSED
Kristin Queen, Red Rock
In Propria Persona Shawn King, New Boston, Michigan
In Propria Persona
MEMORANDUM DECISION
Presiding Judge Eppich authored the decision of the Court, in which Chief Judge Eckerstrom and Judge Espinosa concurred. EPPICH, Presiding Judge:
¶1 Shawn King appeals the trial court's division of property in the decree dissolving his marriage to Kristin Queen. Because King did not timely file a notice of appeal after the decree was filed, we lack jurisdiction to consider the appeal and therefore must dismiss it.
Jurisdiction
¶2 On June 27, 2018, the trial court entered a decree dissolving King and Queen's marriage. On July 30, King, representing himself, filed a request for a thirty-day time extension for his appeal, claiming he had not received notice of the decree from Queen's attorney until July 16. On August 9, King filed a notice of appeal. Approximately a week later, the court granted King's motion, finding that King did not have notice of the decree until July 16.
King used a form entitled "Notice of Cross-Appeal," which in our discretion we treat as a notice of appeal. --------
¶3 "This court has the duty to review its jurisdiction and, if jurisdiction is lacking, to dismiss the appeal." Davis v. Cessna Aircraft Corp., 168 Ariz. 301, 304 (App. 1991). "[T]he timely filing of a notice of appeal is a jurisdictional prerequisite to appellate review." In re Marriage of Gray, 144 Ariz. 89, 90 (1985). Therefore, if a party fails to timely file a notice of appeal, we are required to dismiss the appeal. See James v. State, 215 Ariz. 182, ¶ 11 (App. 2007).
¶4 In a civil case, a party must file a notice of appeal within thirty days of entry of the judgment the party seeks to appeal. See Ariz. R. Civ. App. P. 9(a). Except as provided under Rule 9(f), "neither an appellate court nor a superior court may extend the time for filing a notice of appeal." Ariz. R. Civ. App. P. 5(b). In a family law case, "[l]ack of notice of the entry of judgment by the clerk does not affect the time to appeal or authorize the court to relieve a party from the failure to appeal within the allowed time," except as provided under Rule 9(f). Ariz. R. Fam. Law P. 78(h).
¶5 Under Rule 9(f), a trial court may reopen the time to file a notice of appeal only if three conditions have been met. First, the court must find that the party seeking the time extension did not receive notice of entry of the judgment to be appealed within twenty-one days of its entry. Ariz. R. Civ. App. P. 9(f)(1). Second, the motion for time extension must have been filed within seven days of the party's receipt of notice of entry of judgment, and in any event no later than thirty days after expiration of the time for appeal. Ariz. R. Civ. App. P. 9(f)(2). Third, the court must find that no party would be prejudiced. Ariz. R. Civ. App. P. 9(f)(3). A court may not "incorporate an incorrect legal standard, in contravention of [Rule 9's] express language and purpose, when determining whether the rule authorizes an extension of time to appeal." Haroutunian v. Valueoptions, Inc., 218 Ariz. 541, ¶ 14 (App. 2008).
¶6 Here, the trial court failed to apply the legal standards in Rule 9(f) and thereby exceeded its authority to extend the time for King to file a notice of appeal. King received notice of the decree nineteen days after it was entered—sooner than the required twenty-one-day delay required for the court to grant a time extension. See Ariz. R. Civ. App. P. 9(f)(1). Moreover, King filed the motion fourteen days after receiving notice of the decree—more than the seven days allowed under Rule 9(f)(2) to file such a motion after receiving notice. These circumstances precluded the court from granting King relief under Rule 9(f), even if the court found no prejudice to Queen.
¶7 Because King did not qualify for extended time, he was required to file his notice of appeal within thirty days. His time to appeal had already expired when he filed his untimely motion for extra time; neither that motion, nor the court's favorable ruling, served to extend his time. Cf. Mark Lighting Fixture Co. v. Gen. Elec. Supply Co., 155 Ariz. 27, 31-32 (1987) (time limits on post-judgment time-extending motions are jurisdictional and court has no authority to rule on such motions when untimely filed). Therefore, King's eventual notice of appeal, filed forty-three days after the filing of the dissolution decree, was untimely, and we lack jurisdiction to consider the merits of his appeal.
Disposition
¶8 The appeal is dismissed.