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In re Marriage of Mosteller

Court of Appeals of Arizona, Second Division

September 30, 2015

In re the Marriage of Margaret E. Mosteller, Appellee, and Cody E. Whitaker, Appellant.

Not for Publication – Rule 111(c), Rules of the Arizona Supreme Court

Appeal from the Superior Court in Pima County No. D20024486 The Honorable Deborah Pratte, Judge Pro Tempore

Margaret E. Mosteller, Ballston Lake, NY In Propria

Persona Cody E. Whitaker, Tucson In Propria Persona

Presiding Judge Miller authored the decision of the Court, in which Chief Judge Eckerstrom and Judge Espinosa concurred.

MEMORANDUM DECISION

MILLER, Presiding Judge:

¶1 In this dissolution proceeding, Cody Whitaker appeals from the denial of his motion for new trial filed after the trial court denied his motion for an order finding his former wife, Margaret Mosteller, in civil contempt for her conduct pertaining to a court order. For the reasons that follow, we dismiss the appeal for lack of jurisdiction.

Factual and Procedural Background

¶2 Cody and Margaret were married in November 1986, and their marriage was dissolved in October 2003. Margaret received custody of their minor children, and Cody was granted parenting time.[1] In June 2014, Cody filed a "Petition to Prevent Relocation of Minor Child, " stating that Margaret had recently informed him she intended to move to New York with their youngest daughter, who was almost sixteen years old. After a hearing, the trial court found the daughter was old enough for her wishes to be taken into consideration regarding the relocation, and ordered that she be interviewed. The court also ordered the parties not to discuss "the issues of this case, including legal decisionmaking and parenting time" before her interview.

¶3 After a hearing, the trial court found the daughter wished to move to New York and ordered that Margaret could relocate with her. Cody then filed a "Notice of Petitioner's Contempt of Order, " stating Margaret had violated the order not to discuss the interview with the daughter. After an evidentiary hearing, the court declined to hold Margaret in contempt. Cody then filed a motion for new trial arguing evidence had been improperly excluded at the hearing and the court should have found her in contempt. The court denied the motion, and this appeal followed.

Jurisdiction

¶4In his opening brief, Cody contends we have jurisdiction over the trial court's denial of his motion for new trial pursuant to A.R.S. § 12-2101. But we have an independent duty to review our jurisdiction, and, if found lacking, to dismiss the appeal. In re Marriage of Flores & Martinez, 231 Ariz. 18, ¶ 6, 289 P.3d 946, 948 (App. 2013).

¶5 Cody's notice of appeal states he is appealing from the ruling on his motion for new trial, "as the [ruling is] related to the Respondent's Petition to Prevent Relocation of the Minor Child . . . and the Petitioner's Request for Child Interview . . . and all subsequent orders pertaining to the disputed matters in the above captioned action." His opening brief is based solely on the motion for new trial.

¶6 Generally, an order denying a motion for new trial is appealable, see A.R.S. § 12-2101(A)(5)(a), but a party may not appeal such an order when the underlying judgment is not a final, appealable order, see Santa Maria v. Najera, 222 Ariz. 306, ¶¶ 10-11, 214 P.3d 394, 396 (App. 2009). Because Cody's motion for new trial contested the trial court's ...


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