Opinion
No. 2 CA-CV 2013-0123 No. 2 CA-CV 2013-0124
05-22-2014
IN RE THE MARRIAGE OF KIMBERLY SEYFFERT, Petitioner/Appellant/Cross-Appellee, and STEPHEN E. SEYFFERT, Respondent/Appellee/Cross-Appellant.
Law Offices of Thomas M. Larson, Casa Grande By Thomas M. Larson Counsel for Petitioner/Appellant/Cross-Appellee Michael J. Shew, Ltd., Phoenix By Michael J. Shew Counsel for Respondent/Appellee/Cross-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NOT FOR PUBLICATION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 Pinal County
No. S1100DO200901766
The Honorable Stephen F. McCarville, Judge
DISMISSED
COUNSEL
Law Offices of Thomas M. Larson, Casa Grande
By Thomas M. Larson
Counsel for Petitioner/Appellant/Cross-Appellee
Michael J. Shew, Ltd., Phoenix
By Michael J. Shew
Counsel for Respondent/Appellee/Cross-Appellant
MEMORANDUM DECISION
Judge Espinosa authored the decision of the Court, in which Presiding Judge Kelly and Judge Brammer concurred. ESPINOSA, 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 The parties, whose marriage was dissolved in 2010, seek review of the trial court's order addressing several post-decree motions. However, because we lack jurisdiction, their consolidated appeal must be dismissed.
Factual and Procedural Background
¶2 Several years after the 2010 dissolution of Stephen and Kimberly Seyffert's marriage pursuant to a consent decree, Stephen filed a petition to modify child support "and/or" spousal maintenance. He also filed a separate motion to set aside the decree on grounds that it differed in significant respects from the settlement agreement entered into by the parties. In addition to opposing both filings, Kimberly sought to dismiss Stephen's petition for modification and motion to set aside the consent decree. Several months later, the trial court denied Stephen's motion as well as Kimberly's motion to dismiss. The court did not rule on Stephen's petition for modification or make any findings as to the parties' circumstances, instead setting a hearing on the matter to be held approximately one month later. Notwithstanding the pending petition for modification, however, the court stated in conclusion that its order served as a "final order[] pursuant to Rule 81, of the Arizona Rules of Family Procedure" that "resolve[d] all pending issues" and that "no further proceedings [we]re necessary." See Ariz. R. Fam. Law P. 81 ("Entry of Judgment").
This document appears to have been identified incorrectly in the trial court's order as a "Motion to Dismiss Both Petitions for Post Conviction Relief."
¶3 Kimberly has appealed the trial court's denial of her motion to dismiss Stephen's petition for modification, and Stephen has cross-appealed its denial of his motion to set aside the consent decree. After noticing his appeal, however, Stephen filed a motion for clarification below in which he argued the court's order was a "non-appealable interlocutory order" that required clarification "to avoid confusion in the Court of Appeals regarding . . . jurisdiction." The court granted his motion and modified its order nunc pro tunc by striking the paragraphs containing the final order language set forth above. We subsequently granted Stephen's motion to consolidate the parties' appeals but denied his request for a stay.
Discussion
Jurisdiction
¶4 Before turning to the merits of either claim, we first must consider whether, as Stephen contends, we lack jurisdiction over this appeal. This court has jurisdiction to review orders modifying spousal maintenance and child custody under A.R.S. § 12-2101(A)(2), which provides for appeals "[f]rom any special order made after final judgment." See also Williams v. Williams, 228 Ariz. 160, ¶ 19, 264 P.3d 870, 875 (App. 2011) (exercising jurisdiction pursuant to current § 12-2101(A)(2), renumbered by 2011 Ariz. Sess. Laws, ch. 304, § 1); In re Marriage of Dorman, 198 Ariz. 298, ¶ 4, 9 P.3d 329, 331-32 (App. 2000) (similar). However, "[w]hen more than one claim for relief is presented in an action," a trial court order directing entry of final judgment as to some, but not all, claims must contain both an "express determination that there is no just reason for delay" and "an express direction for the entry of judgment." Ariz. R. Fam. Law P. 78(B).
Both parties erroneously equate our order denying Stephen's motion to stay this appeal pursuant to Rule 9.1, Ariz. R. Civ. App. P., with a determination that we have jurisdiction. On the contrary, a refusal to "revest" jurisdiction in the trial court is entirely consistent with a determination that jurisdiction has remained in that court throughout. See Ariz. R. Civ. App. P. 9.1 cmt. (rule codifies existing practice for revesting jurisdiction in superior court to decide matters "over which it would otherwise lack jurisdiction").
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¶5 We previously have determined that "a post-decree petition [for modification] begins an action that includes various claims for relief." In re Marriage of Kassa, 231 Ariz. 592, ¶ 5, 299 P.3d 1290, 1291 (App. 2013). Therefore, a trial court order that fails to resolve all issues raised in a petition for modification will not constitute a final, appealable order unless it is certified by the court's inclusion of Rule 78(B) language. Ghadimi v. Soraya, 230 Ariz. 621, ¶¶ 10-11, 14, 285 P.3d 969, 970-72 (App. 2012) (notice of appeal from judgment lacking Rule 78(B) language "nullity" where order did not resolve attorney fees issues); see also Natale v. Natale, 684 Ariz. Adv. Rep. 14, ¶ 11 (Ct. App. Apr. 16, 2014) (order failing to address wife's claim for attorney fees not appealable absent Rule 78 language); Kassa, 231 Ariz. 592, ¶¶ 5-6, 299 P.3d at 1291-92 (no appellate jurisdiction where trial court order failed to resolve claims for modification of child support and attorney fees and lacked Rule 78 language).
¶6 Here, Stephen commenced a post-decree matter by filing a petition for modification of child support "and/or" spousal maintenance. But despite the trial court's indication that its order "resolve[d] all pending issues," that ruling did not determine the issue of modification as to either child support or maintenance. On the contrary, although the court found it had the ability to consider spousal maintenance modification under the terms of the previous award, it made no findings on whether such action would be warranted under the circumstances. Nor did it make any findings regarding the modification of child support beyond its observation that Kimberly "did not [dispute] that the child support obligation is subject to modification." To render this order appealable, the court therefore was required to direct the entry of judgment after finding "no just reason for delay." Ariz. R. Fam. Law P. 78(B). Without such language, we lack jurisdiction to hear this consolidated appeal. See, e.g., Kassa, 231 Ariz. 592, ¶ 5, 299 P.3d at 1291-92.
Attorney Fees
¶7 Stephen has requested attorney fees on appeal pursuant to A.R.S. § 25-324, which allows a court to award such fees in domestic relations cases "after considering the financial resources of both parties and the reasonableness of the positions each party has taken throughout the proceedings." Our supreme court has observed that the purpose of this statute "is to provide a remedy for the party least able to pay." In re Marriage of Zale, 193 Ariz. 246, ¶ 20, 972 P.2d 230, 235 (1999). In the absence of any findings below on the parties' respective financial circumstances, however, any determination on this issue would be premature. Cf. Duckstein v. Wolf, 230 Ariz. 227, ¶ 27, 282 P.3d 428, 436 (App. 2012). Accordingly, the trial court may, in its discretion, award attorney fees and costs for this appeal if it determines that such action is warranted. See § 25-324.
Disposition
¶8 Pursuant to the foregoing analysis, this consolidated appeal is dismissed.