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In re Reeck

Court of Appeals of Arizona, First Division, Department A

June 27, 2013

In re the Matter of: BRIAN D. REECK, II, Petitioner/Appellant,
RACHEL MENDOZA, Respondent/Appellee.

Appeal from the Superior Court in Yavapai County Cause No. P1300DO20030512 The Honorable Warren R. Darrow, Judge Pro Tempore (Retired)

Brian D. Reeck, II Prescott Valley Appellant in propria persona


ROBERT CARTER OLSON, Judge Pro Tempore [*]

¶1 This family court case requires us to examine whether a final award of attorneys' fees is a prerequisite to appellate jurisdiction over a decision that resolves the merits of a petition for child support. A recent opinion by a different panel of this court held that a family court decision does not become final for purposes of appeal until the issue of attorneys' fees has been resolved. See Ghadimi v. Soraya, 230 Ariz. 621, 623-24, ¶¶ 13-15, 285 P.3d 969, 971-72 (App. 2012).[1] We reach the opposite conclusion with respect to the order at issue here.[2]

¶2 Appellant Brian D. Reeck, II appeals from the family court's child support award to Rachel Mendoza, arising from his petition to establish custody and parenting time.[3] On January 27, 2012, the court entered a signed child support order requiring Reeck to pay $475 per month in child support. On the same day, the court entered a separate, unsigned minute entry, explaining the basis for its determination of child support, awarding Mendoza her attorneys' fees, and authorizing her to "file and serve an application for attorney fees with an appropriate proposed form of judgment for fees." Reeck filed a timely notice of appeal in February 2012.[4] According to the family court's docket, [5] Mendoza has yet to file an application for attorneys' fees.


I. Jurisdiction

¶3 This court has an independent duty to determine whether it has jurisdiction to consider an appeal. Sorensen v. Farmers Ins. Co. of Ariz., 191 Ariz. 464, 465, 957 P.2d 1007, 1008 (App. 1997). Generally, only final judgments are appealable. Davis v. Cessna Aircraft Corp., 168 Ariz. 301, 304, 812 P.2d 1119, 1122 (App. 1991); Ariz. Rev. Stat. ("A.R.S.") § 12-2101(A) (Supp. 2012). In general, a notice of appeal - even from a signed decision on the merits -- is premature when matters remain to be decided by the family court, and we generally lack jurisdiction over appeals from such decisions. See Barassi v. Matison, 130 Ariz. 418, 422, 636 P.2d 1200, 1204 (1981). A narrow exception to this general rule is articulated in Barassi. See Smith v. Ariz. Citizens Clean Elections Comm'n, 212 Ariz. 407, 415, ¶¶ 37-40, 132 P.3d 1187, 1195 (2006) ("limited" Barassi exception applies when "no decision of the court could change and the only remaining task is merely ministerial"); Craig v. Craig, 227 Ariz. 105, 106-07, ¶¶ 8-9, 13, 253 P.3d 624, 625-26 (2011).

¶4Here, in its order instructing Reeck to pay child support, the court also awarded Mendoza her attorneys' fees, subject to her filing an application and proposed form of judgment. Reeck filed his notice of appeal even though Mendoza had not submitted (and still has not submitted) a fee application as authorized by the family court.

¶5 In Ghadimi, another panel of this court held that a wife's appeal from a divorce decree was premature and the court lacked jurisdiction because the decree "neither determined the amount of [h]usband's attorneys' fees and costs to be paid by [w]ife nor contained an express determination complying with Rule 78(B) that there was no just reason for delay coupled with an express direction for the entry of judgment." 230 Ariz. at 622-24, ¶¶ 10-14, 285 P.3d at 970-72. In support of its holding, the Ghadimi court relied on Arizona Rule of Family Law Procedure 78(B) ("Family Rule 78(B)"). Id. at 622-23, 10, 285 P.3d at 970-71. With respect, we disagree that in this context we lack jurisdiction because we do not believe the Ghadimi court was asked to consider the specific differences between the Arizona Rules of Family Law Procedure ("family rules") and the Arizona Rules of Civil Procedure ("civil rules") that we address herein nor was that court presented with any argument based on the potential application of A.R.S § 25-325(A) (Supp. 2012).

¶6Family Rule 78(B) is nearly an exact replica of Arizona Rule of Civil Procedure 54(b) ("Civil Rule 54(b)"), addresssing judgment on multiple claims or involving multiple parties. Like Civil Rule 54(b), Family Rule 78(B) states that a court has the discretion to enter final judgment as to "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." Ordinarily, under either rule, absent the requisite express determination, a judgment is not final unless it disposes of all claims and parties, including any claims for attorneys' fees.

¶7But this rule of finality in civil cases comes not only from Civil Rule 54(b), but also from Rules 54(g) and 58(g) of the civil rules. Rule 54(g)(2) requires a motion for attorneys' fees to be filed within twenty days from the clerk's mailing of a decision on the merits, and Rule 58(g) states that "[e]xcept as provided in [Civil] Rule 54(b), a judgment shall not be entered until claims for attorneys' fees have been resolved and are addressed in the judgment." Neither Rule 54(g) nor Rule 58(g) has a counterpart in the family rules because the family rules impose no time limit on the submission of an application for fees. The rule announced in Ghadimi could enable a successful party in a family law matter to delay or forever preclude an appeal simply by failing to submit an application. Further, because there is no requirement in the family rules that attorneys' fees be resolved before the entry of judgment, there is no reason to suppose that a judgment entered without a decision on fees is not "final" for purposes of appeal. We think these differences between the family rules and civil rules are critical, and we therefore depart from Ghadimi, which relied only on the similarity between Civil Rule 54(b) and Family Rule 78(B).

¶8 Apart from the differences in the family rules and civil rules, there are stark differences between civil cases, which are ordinarily resolved with a single judgment after litigating all of the issues in a case, and family court cases, which can remain open for many years, resolving multiple issues by independent decrees and judgments, while the underlying case proceeds. During the life of a family court case, certain milestone decisions by the court are inherently final in their operation and effect, independent of other outstanding issues. These decisions are final by nature, and the very act of entering them functions as an express determination of finality by the court.

¶9 One of these inherently final decisions is a decree of dissolution of marriage. In Ghadimi, the court did not consider the impact of A.R.S. § 25-325(A), which provides in pertinent part that "[a] decree of dissolution of marriage . . . is final when entered, subject to the right of appeal" and further authorizes parties to remarry after expiration of the time to appeal a dissolution. (Emphasis added). Given this statute, the decision of the family court to grant a decree of dissolution is always final, in nature and effect, subject to any time-extending motions. See Craig, 227 Ariz. at 107, ¶ 13, 253 P.3d at 626. When the decree is entered and the time for any relevant ...

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