Natale v. Natale

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

In re the Marriage of:

ARLENE NATALE, Petitioner/Appellee,

v.

PAUL NATALE, Respondent/Appellant.

No. 1 CA-CV 12-0765

FILED 4-16-2014

Appeal from the Superior Court in Maricopa County

FN2010-090627

The Honorable Teresa A. Sanders, Judge

AFFIRMED

COUNSEL

Bishop & Martin Law Office, P.C., Phoenix

By William D. Bishop, Kristen A. Martin

Counsel for Petitioner/Appellee

The Murray Law Offices, P.C., Scottsdale

By Stanley D. Murray

Counsel for Respondent/Appellant

NATALE v. NATALE

Opinion of the Court

OPINION

Judge John C. Gemmill delivered the opinion of the Court, in which

Presiding Judge Maurice Portley joined and Judge Kent E. Cattani

specially concurred.

G E M M I L L, Judge:

¶1 Paul Natale (“Husband”) appeals the family court’s rulings

in favor of Arlene Natale (“Wife”) on her petition for contempt and for

enforcement of court orders and her application for attorneys’ fees. In a

separate memorandum decision issued contemporaneously with this

opinion, we affirm the family court’s rulings. In this opinion, we explain

our denial of Wife’s motion to dismiss a portion of Husband’s appeal for

lack of appellate jurisdiction.

Background

¶2 Husband and Wife were married in 1976. Wife filed for

dissolution in March 2010. The family court entered a decree of

dissolution of marriage in September 2011. Neither party appealed any

ruling in the decree.

¶3 On January 4, 2012, Wife filed a petition for contempt and

for enforcement of court orders. She asserted that Husband had not

completed various steps necessary for the division of marital assets. Wife

requested enforcement of several court orders and an award of attorneys’

fees resulting from litigation regarding the petition. In a separate

application filed on the same day, Wife also sought an award of attorneys’

fees for post-trial proceedings from June through December 2011. After

Husband responded in opposition, the family court set an evidentiary

hearing on Wife’s petition for contempt and enforcement and all

unresolved issues for July 9, 2012.

¶4 After the July 9 hearing, the court issued three rulings

pertinent to this appeal. First, in a signed minute entry filed August 9,

2012, the court resolved several issues regarding the division of the

marital property and accounts. The court indicated, however, that it

would resolve Wife’s requests for attorneys’ fees in separate rulings.

Although the August 9, 2012 minute entry was signed “as a formal order”

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Opinion of the Court

of the court “pursuant to Rule 81,” Arizona Rules of Family Law

Procedure (“Family Rules”), the ruling did not include a certification of

finality for appeal under Family Rule 78(B). Second, on August 24, 2012,

the family court entered a judgment awarding Wife attorneys’ fees for

post-trial proceedings. Third, on September 17, 2012, the court entered a

judgment awarding Wife additional attorneys’ fees for the enforcement

proceedings. These three rulings resolved all issues pending before the

court arising from Wife’s January 4, 2012 petition and application.

¶5 On September 24, 2012, Husband filed a notice of appeal,

stating that he was appealing the rulings entered on August 9, August 24,

and September 17, 2012. This notice of appeal comported with our ruling

in Ghadimi v. Saraya, 230 Ariz. 621, 285 P.3d 969 (App. 2012), which held

that a family court ruling is not final and appealable until all of the claims

pending before the court have been resolved or a Family Rule 78(B)

certification of finality is included.

Wife’s Motion to Dismiss a Portion of Husband’s Appeal

¶6 During the pendency of this appeal, another panel of this

court issued its opinion in Reeck v. Mendoza, 232 Ariz. 299, 304 P.3d 1122

(App. 2013), addressing the finality of family court rulings and declining

to follow Ghadimi and another similar case, see In re Marriage of Kassa, 231

Ariz. 592, 593, ¶ 4, 299 P.3d 1290, 1291 (App. 2013) (holding that, absent

Family Rule 78(B) certification, an appeal is premature unless the court

“resolve[d] all issues raised in a post-decree petition”). The Reeck court

held that a ruling resolving the merits of a petition for child support is

“inherently final” and appealable even if the issue of attorneys’ fees

remains unresolved and the ruling does not contain a certification of

finality in accordance with Family Rule 78(B). Reeck, 232 Ariz. at 300-02,

¶¶ 1, 8-10, 304 P.3d at 1123-25.

¶7 Relying on Reeck, Wife filed a motion to dismiss that portion

of Husband’s appeal regarding the family court’s ruling entered August 9,

2012, arguing that the ruling was final and appealable under Reeck and

Husband’s notice of appeal filed on September 24, 2012 was thus

untimely. In civil and family law cases, a notice of appeal must be filed

within 30 days after entry of the judgment or order being appealed.

ARCAP 9(a). Because Husband’s notice of appeal was filed more than 30

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Opinion of the Court

days after the ruling, Wife’s motion is well taken if the August 9 ruling

was final and appealable when entered. 1 In response to Wife’s motion,

Husband contends that Wife waived her jurisdictional argument by not

asserting it in her answering brief and that, under the applicable Family

Rules and cases (including Ghadimi and Kassa), the August 9 ruling was

not yet final and appealable until entry of the September 17, 2012 ruling.

Wife filed a reply, and this court heard oral argument regarding this

jurisdictional issue as well as the merits of the appeal.

¶8 We reject Husband’s argument that Wife has waived the

jurisdictional argument. If this court lacks appellate jurisdiction, the

appeal — or that portion lacking in jurisdiction — must be dismissed. See

Baker v. Bradley, 231 Ariz. 475, 479, ¶ 8, 296 P.3d 1011, 1015 (App. 2013)

(”Our jurisdiction is defined by statute, and we must dismiss an appeal

over which we lack jurisdiction.”). Just as appellate jurisdiction cannot be

created by agreement of the parties, Ginn v. Superior Court, 1 Ariz. App.

455, 457, 404 P.2d 721, 723 (1965), the absence of appellate jurisdiction

cannot be waived, see Slaughter v. First Nat’l Bank, 34 Ariz. 26, 31-32, 267 P.

416, 418 (1928).

¶9 We deny Wife’s motion to dismiss that portion of Husband’s

appeal arising from the August 9, 2012 order. In so doing, we respectfully

decline to follow Reeck and choose instead to follow Ghadimi, Kassa, the

cases cited therein, and Family Rule 78(B). In accordance with Ghadimi,

Kassa, and Family Rule 78(B), a family court ruling that resolves some but

not all of the issues pending before the court and does not have a Family

Rule 78(B) certification of finality is not final and appealable.

¶10 The fact pattern presented in the instant case is analogous to

Ghadimi, except with respect to the timing of the notice of appeal. The

family court in Ghadimi issued a signed decree of dissolution that resolved

numerous issues but specifically reserved the issue of attorneys’ fees for

subsequent resolution. Ghadimi, 230 Ariz. at 622, ¶ 3, 285 P.3d at 970. The

decree did not have Family Rule 78(B) language of finality. The wife filed

a notice of appeal before the attorneys’ fees issue was resolved. Id. When

the attorneys’ fees had been determined and a final judgment entered, the

1 No issue is presented regarding the timeliness of the September 24, 2012

notice of appeal with respect to the August 24, 2012 judgment, because the

30th day after August 24 — September 23 — was a Sunday. The notice of

appeal was filed on Monday, September 24.

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Opinion of the Court

wife did not file a new or amended notice of appeal. Id. at ¶ 5. We

determined that the wife’s notice of appeal was premature and ineffective

to convey appellate jurisdiction under the Arizona Supreme Court

opinions of Craig v. Craig, 227 Ariz. 105, 253 P.3d 624 (2011); Smith v.

Arizona Citizens Clean Elections Commission, 212 Ariz. 407, 132 P.3d 1187

(2006); and Barassi v. Matison, 130 Ariz. 418, 636 P.2d 1200 (1981). Ghadimi,

230 Ariz. at 623-24, ¶¶ 11-14, 285 P.3d at 971-72. Therefore, we dismissed

the appeal for lack of jurisdiction. Id. at ¶ 15.

¶11 In its ruling of August 9, 2012, the family court here resolved

several issues of property division between the parties but specifically

reserved two requests by Wife for awards of attorneys’ fees. Because the

ruling did not have Family Rule 78(B) certification, it was not final and

appealable until the attorneys’ fees issues were resolved in a signed order

or judgment. Family Rule 78(B) provides:

B. Judgment upon Multiple Claims or Involving Multiple

Parties. When more than one claim for relief is presented in

an action, whether as a claim, counterclaim, or third-party

claim, or when multiple parties are involved, the court may

direct the entry of final judgment as to one or more but

fewer than all of the claims or parties only upon an express

determination that there is no just reason for delay and upon

an express direction for the entry of judgment. In the

absence of such determination and direction, any order or

other form of decision, however designated, that adjudicates

fewer than all the claims or the rights and liabilities of fewer

than all the parties shall not terminate the action as to any of

the claims or parties, and the order or other form of decision

is subject to revision at any time before the entry of

judgment adjudicating all the claims and the rights and

liabilities of all the parties. For purposes of this subsection, a

claim for attorneys’ fees may be considered a separate claim

from the related judgment regarding the merits of a cause.

In accordance with this rule, a judgment or order that resolves fewer than

all the claims is not final and appealable in the absence of “an express

determination that there is no just reason for delay and upon an express

direction for the entry of judgment.” Such an order is “subject to revision

at any time before the entry of judgment adjudicating all the claims and

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Opinion of the Court

the rights and liabilities of all the parties.” 2 Accordingly, the family court

must “resolve all issues raised in a post-decree petition before the filing of

an appeal,” Kassa, 231 Ariz. at 593, ¶ 4, 299 P.3d at 1291, in the absence of a

Family Rule 78(B) certification of finality for appeal. Id. at ¶ 5.

¶12 Wife’s petition for contempt and for enforcement of court

orders and her application for post-trial attorneys’ fees, both filed on

January 4, 2012, presented claims for substantive relief and attorneys’ fees.

The August 9, 2012 order did not resolve all of these claims. We disagree

with Wife’s position that Husband had to file his notice of appeal within

30 days of August 9. In accordance with Craig, Smith, Barassi, Ghadimi,

Kassa, Baker, Fields v. Oates, 230 Ariz. 411, 286 P.3d 160 (App. 2012), and

Santee v. Mesa Airlines, Inc., 229 Ariz. 88, 270 P.3d 915 (App. 2012), the

August 9 order was not final and appealable when entered. The claims

presented to the family court were resolved with finality by the judgments

entered on August 24 and September 17, 2012, and the August 9 ruling

became final and appealable on September 17, 2012. Therefore, as a result

of Husband’s September 24, 2012 notice of appeal, we have jurisdiction

under Arizona Revised Statutes (A.R.S.) section 12-2101(A) over

Husband’s appeal of the August 9 order as well the August 24 and

September 17 judgments.

¶13 The fact that the August 9, 2012 minute entry was signed “as

a formal order” of the court “pursuant to Rule 81” of the Family Rules

may impact the enforceability of certain rulings and the future

appealability of such rulings. But by signing a ruling “as a formal order”

“pursuant to Rule 81” of the Family Rules, the court has not thereby

imparted immediate finality and appealability to such ruling. To

conclude otherwise would be contrary to the language and intent of

Family Rule 78(B).

2 Family Rule 78(B) is virtually identical to Arizona Rule of Civil

Procedure (“Civil Rule”) 54(b), and therefore we may apply

interpretations of Civil Rule 54(b) to Family Rule 78(B). Kassa, 231 Ariz. at

593-94 n.1, ¶ 5, 299 P.3d at 1291-92 n.1 (quoting Family Rule 1 comment

that “[w]herever the language in these rules is substantially the same as

the language in other statewide rules, the case law interpreting that

language will apply to these rules” and citing Family Rule 78 comment

noting that this rule is “based on” Civil Rule 54).

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Opinion of the Court

¶14 Wife’s reliance on Reeck is understandable but misplaced.

The new concept of “inherent finality” for appeal purposes recognized in

Reeck may be limited, even under Reeck itself, to dissolution decrees and

child support orders. This appeal involves neither. More importantly, we

believe Reeck is inconsistent not only with Ghadimi and Kassa but also with

the broader jurisprudence of our supreme court and this court regarding

the finality of orders or judgments for appeal purposes as well as the

language of Family Rule 78. Although we respect our colleagues who

decided Reeck, we decline to follow the Reeck opinion for several reasons.

¶15 Reeck’s concept of “inherently final” decisions is based

primarily on the first sentence of A.R.S. § 25-325(A), which states: “A

decree of dissolution of marriage or of legal separation is final when

entered, subject to the right of appeal.” 3 Reeck concluded that this statute

declares that every decree of dissolution is final and appealable upon entry

and the expiration of the time for the filing any time-extending motions,

even in the absence of a certification under Family Rule 78(B). 232 Ariz. at

301, ¶ 5, 304 P.3d at 1124. We respectfully disagree. The qualifying words

in the statute, “subject to the right of appeal,” mean that the Arizona

statutes and rules pertaining to the right to appeal are applicable,

including the requirement of a final judgment that resolves all issues of all

parties, except when certified as final under Family Rule 78(B) when one

or more claims raised by the petition is yet to be resolved.

¶16 The reference to “final when entered” in § 25-325(A) is

intended to remove a one-year prohibition upon remarriage imposed by

the predecessor statute. As explained by this court in Matter of Brother's

Estate, 134 Ariz. 536, 658 P.2d 189 (App. 1982), in resolving an assertion

that the statute precluded an appeal from a dissolution decree:

He contends that jurisdiction to vacate a dissolution decree

is foreclosed by A.R.S. § 25–325(A):

“A decree of dissolution of marriage or of legal

separation is final when entered, subject to the

right of appeal. An appeal from the decree of

dissolution that does not challenge the finding

3 As noted in Reeck, § 25-325 was not cited or argued to this court in

Ghadimi and was not considered. Reeck, 232 Ariz. at 302, ¶ 9, 304 P.3d at

1125.

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Opinion of the Court

that the marriage is irretrievably broken does

not delay the finality of that provision of the

decree which dissolves the marriage beyond

the time for appealing from that provision, and

either of the parties may remarry pending

appeal.”

We do not read this provision to deprive the court of

jurisdiction over the portion of the decree that dissolves the

marriage relationship. The obvious purpose of this statute is to

remove the one-year prohibition upon remarriage imposed by its

predecessor, former A.R.S. § 25–320, and allow the parties to

marry during the pendency of an appeal.

134 Ariz. at 537, 658 P.2d at 190 (emphasis added). When the first

sentence of § 25-325(A) is considered in context with the entire

subsection, we believe the statute is assigning finality to the dissolution

decree for purposes of allowing most parties to move forward with their

lives, knowing they are divorced. The first sentence of § 25-325(A) does

not change what is or is not “final” for appeal purposes, because the decree

remains “subject to the right of appeal.” In short, the first sentence of

A.R.S. § 25-325(A) addresses enforceability, not appealability.

¶17 Several cases from other jurisdictions support our

interpretation of A.R.S. § 25-325(A). The statute was adopted in Arizona

in 1973 from the Uniform Marriage and Divorce Act (“UMDA”). The

same subsection, including the same or similar language in the first

sentence, has been enacted in states that also have procedural rules similar

to Family Rule 78(B) or Civil Rule 54(b). Appellate courts in several states

have addressed the issue of whether the language of the first sentence —

“final when entered, subject to the right of appeal” — makes a decree

immediately appealable even though it does not resolve all claims and has

not been certified as final and appealable under a rule equivalent to

Family Rule 78(B). In Estate of Burford v. Burford, 935 P.2d 943 (Colo. 1997),

the Colorado Supreme Court explained its interpretation of Colorado

Revised Statute section 14-10-120(1), which is essentially identical to

A.R.S. § 25-325(A):

In summary, we hold that section 14-10-120(1) provides that

when a dissolution decree is entered by the district court, it

is a final order concerning the marital status of parties even

though the decree is not treated as final for the purposes of

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Opinion of the Court

appellate review. We hold that a decree of dissolution granted

in accordance with section 14-10-120 may be immediately

appealed when one party challenges the findings of the

district court that the marriage is irretrievably broken or

contests the jurisdiction of the court, and the district court

acting pursuant to its discretionary authority certifies the decree as

a final order for purposes of appeal under C.R.C.P. 54(b).

935 P.2d at 955 (emphasis added).

¶18 Additionally, the Illinois Supreme Court in Marriage of Lentz,

403 N.E.2d 1036 (Ill. 1980), considered the meaning of the words “final

when entered, subject to the right of appeal” in light of the distinction

between legislative authority and judicial rule-making authority. The

court addressed section 314(a) of the UMDA, 4 from which Arizona

derived § 25-325(A), and section 413(a) of the Illinois Marriage and

Dissolution of Marriage Act, which is substantially similar to § 25-325(A):

Thus, it was not the purpose of the language of section 314(a) of

the [UMDA] to make the judgments concerning marital status

final and immediately appealable. Rather, the purpose of such

language is to ensure that the parties not be subject to an

interlocutory period between the determination of the

grounds for divorce and the effective date of the decree.

Inasmuch as section 413(a) of our act substantially adopts

section 314(a) of the uniform act, the commissioner's note

supports an interpretation that the Illinois legislature, by enacting

section 413(a), was not attempting to define the appealability of the

order. Consistent with this interpretation, the language,

“subject to the right of appeal,” should be construed to mean

4 Section 314(a) of the UMDA provides:

A decree of dissolution of marriage or of legal separation is

final when entered, subject to the right of appeal. An appeal

from the decree of dissolution that does not challenge the

finding that the marriage is irretrievably broken does not

delay the finality of that provision of the decree which

dissolves the marriage beyond the time for appealing from

that provision, and either of the parties may remarry

pending appeal.

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Opinion of the Court

that an appeal may be taken from such a judgment if the

order is indeed appealable as a matter of right or by virtue of

a supreme court rule. Such a construction would be

consistent with the constitutional provisions placing in this

court the authority to adopt rules governing appeals.

403 N.E.2d at 1038 (emphasis added). The Montana Supreme Court

similarly concluded in State ex rel. Marlenee v. Dist. Court of Fifteenth

Judicial Dist., In & For Daniels Cnty., 592 P.2d 153 (Mont. 1979), as follows:

Here there was no express determination by the District

Court that there is no just reason for delay in judgment on

the claim for dissolution of the marriage nor is there an

express direction for entry of judgment thereon. Without

these prerequisites, relator wife cannot appeal from the order

dissolving the marriage at this time nor at any time prior to entry

of judgment or decree on all issues before the District Court. . . .

Respondent husband directs our attention to section 48-328,

R.C.M.1947, now section 40-4-108 MCA [analogous to

Arizona’s § 25-325(A)], providing that a decree of

dissolution of marriage is final when entered, subject to the

right of appeal and Rule 1, M.R.App.Civ.P. providing for any

appeal from a final judgment. Neither of these sections grant

the right of immediate appeal from a partial judgment. Instead the

right of immediate appeal from a judgment on a part but not all of

the claims for relief in a single action is governed by Rule 54(b),

M.R.Civ.P. . . .

592 P.2d at 155 (citation omitted, emphasis added).

¶19 The court in Reeck was concerned that the Ghadimi opinion

did not recognize the “stark differences” between family law cases and

civil cases. Reeck, 232 Ariz. at 301-02, ¶¶ 5-9, 304 P.3d at 1124-25. There

certainly are differences between civil cases and family law cases. And

these differences may justify consideration of amendments to the statutes

defining our appellate jurisdiction or to the procedural rules pertaining to

finality and appealability of judgments and orders. We are not persuaded

that the differences discussed in Reeck are determinative of the

jurisdictional issues faced in such cases as Ghadimi, Reeck, and this appeal.

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Opinion of the Court

In our view, Reeck’s concept of “inherent finality” is not justified in light of

existing statutes and rules. 5 Additionally, we note that Craig was a family

law case, and the Arizona Supreme Court in Craig cited and relied upon

cases arising under the Civil Rules and made no suggestion that issues of

appellate jurisdiction might be different under the Family Rules.

Conclusion

¶20 For these reasons, we decline to follow or apply the Reeck

case as requested by Wife. Consistent with Ghadimi, Kassa, and Family

Rule 78(B), we deny Wife’s motion to dismiss a portion of Husband’s

appeal. And for the reasons set forth in the memorandum decision filed

contemporaneously with this opinion, we affirm the family court’s

rulings.

C A T T A N I, J., specially concurring:

¶21 I concur in the decision of the court that Husband

timely appealed from the family court’s three rulings. I write separately

to express my view that, until the Arizona Supreme Court resolves the

conflict between the Ghadimi and Reeck decisions, an appellant who has

complied with either of those rulings should be deemed to have satisfied

the timeliness requirement for establishing jurisdiction in this court.

:MJT

5 The Arizona Supreme Court has granted review in Bollermann v. Nowlis,

CV-13-0279-PR, and may resolve the appealability and jurisdictional

issues addressed in Ghadimi, Kassa, and Reeck.

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