Grubb v. Thrailkill

• Decision Date: 15 September 2016
• Docket Number: No. 1 CA-CV 15-0761 FC,1 CA-CV 15-0761 FC
• Parties: In re the Matter of: KARLA SUE GRUBB, Petitioner/Appellant, v. TRENT NEAL THRAILKILL, Respondent/Appellee.
• Court: Arizona Court of Appeals

In re the Matter of:KARLA SUE GRUBB, Petitioner/Appellant, v. TRENT NEAL THRAILKILL, Respondent/Appellee.

No. 1 CA-CV 15-0761 FC

ARIZONA COURT OF APPEALS DIVISION ONE

September 15, 2016

NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

Appeal from the Superior Court in Maricopa County

Nos. FC2006-050409, FC2012-002703 (Consolidated)

The Honorable Jennifer C. Ryan-Touhill, Judge

VACATED AND REMANDED

COUNSEL

Karla Sue Grubb, Tempe

Petitioner/Appellant

Trent Neal Thrailkill, Mesa

Respondent/Appellee

MEMORANDUM DECISION

Judge Kenton D. Jones delivered the decision of the Court, in which Presiding Judge Andrew W. Gould and Chief Judge Michael J. Brown joined.

JONES, Judge:

¶1 Karla Grubb (Mother) appeals the family court's order: (1) dismissing her petition to modify legal decision-making authority and parenting time, and (2) awarding attorneys' fees to Trent Thrailkill (Father). For the following reasons, we lack jurisdiction to review the award of fees, vacate the order of dismissal, and remand for a hearing on the merits of Mother's petition.¹

FACTS AND PROCEDURAL HISTORY

¶2 Mother and Father were divorced in 2012. Within the decree, Father was awarded sole legal custody of the parties' only child in common (Child) and designated the primary residential parent. The family court granted Mother supervised parenting time until she "ha[d] six months of clean drug results through TASC," after which she could petition the court for unsupervised parenting time. Father later petitioned for modification of parenting time, and, following an evidentiary hearing in July 2014, the court entered an order suspending Mother's parenting time until she passed three consecutive weekly drug tests. The court added "[o]nce Mother passes three consecutive weekly random tests at TASC, Mother shall have supervised parenting time." As a practical matter, while the record does not appear to indicate the court terminated Mother's supervised parenting time, the court's order suspended visitation between Mother and Child with its renewal contingent upon Mother's provision of three consecutive, clean weekly drug tests.

¶3 In October 2014, Mother, in propia persona, filed a "Request For Ruling Regarding Prescription For Adderall," seeking a determination that any positive drug test results for amphetamine were the product of her prescribed and lawful use of Adderall. She additionally attached both the prescription for Adderall and records of her test results. The family court ordered Mother to submit to ETG/alcohol testing instead of full screen testing at TASC. After Father objected on the grounds he had not been provided notice of Mother's request, the court vacated the order in its entirety.

¶4 In February 2015, Mother, again as a self-represented litigant, filed a "Request For Ruling To End The Supervised Visitation Requirement," stating she had "submitted to full-panel random weekly urine tests at TASC from Aug 2014 to Jan 2015."² Father disputed Mother's clean drug tests and objected to the form of Mother's request, contending she should have filed a petition to modify parenting time rather than a request for ruling. In April 2015, after the matter was fully briefed, the family court dismissed Mother's request and ordered she pass three consecutive weekly random tests through TASC before it would modify her parenting time. At this juncture, the record contained orders requiring Mother complete three consecutive, clean weekly drug tests both: (1) to continue exercising supervised visitation, and (2) "prior to any modification of her parenting time."

¶5 In June 2015, Mother, through counsel, filed a petition to modify legal decision-making and parenting time. Citing the 2012 divorce decree, Mother specifically requested joint legal decision-making authority and unsupervised visitation on the grounds that she had completed six months of drug-free testing. Mother attached three consecutive weekly TASC Drug Detection Laboratory Reports; one was negative for any substances and the other two were positive for amphetamine. She also attached a letter from her physician confirming she had a lawful prescription for Adderall and an email from a TASC liaison explaining that her "Adderall prescription could certainly cause a positive result for amphetamine." Father then filed a motion to dismiss, arguing that "[w]hether or not Mother is testing positive for a prescription of Adderall . . . is irrelevant. The reality is that Mother is a poly-substance abuser who can . . . abuse prescription drugs as well."

¶6 Without awaiting a response, the family court issued an order to appear at a resolution management conference (RMC) scheduled for September 25, 2015. After Mother filed a response to Father's motion to dismiss, the court, on its own motion, rescheduled the RMC for October 8, 2015. When Father advised he had a calendar conflict with that date, the court vacated the RMC and dismissed Mother's petition. Within its five-page order, the court stated:

On July 29, 2014, the Court ordered Mother to submit to random, weekly UA testing. Once Mother had three consecutive weeks of clean tests, Mother could ask for supervised time with the minor child. This Order makes no reference to unsupervised time. . . . Mother has asked this Court to modify her parenting time and rescind the order for supervision. When Mother first made this request in February 2015, Father argued Mother had failed to comply with both prior court orders and procedural requirements in her requests; the Court agreed with Father and dismissed Mother's action. Mother again makes her request for modification in July 2015, after Mother provided three consecutive clean drug tests. Mother has misunderstood prior Court Orders; the three clean drug tests would allow Mother to have supervised time with her daughter, not provide a basis for modification.

¶7 The family court thus relied entirely upon its July 2014 order without explaining, clarifying, or even referencing its subsequent April 2015 order that seemingly permitted modification of parenting time after Mother provided three consecutive, clean weekly tests through TASC. The court also granted Father's request for attorneys' fees and directed he provide supporting documentation for the particular amount sought. Mother filed a notice of appeal on October 22, 2015. On November 13, 2015, after reviewing the documentation submitted by Father, the court entered an order awarding Father his attorneys' fees in the amount of $1733.92.

JURISDICTION

¶8 Mother timely appealed the family court's dismissal of her petition for modification but did not timely file a notice of appeal from the court's order granting Father his attorneys' fees. This Court has an independent duty to examine its own jurisdiction. Riendeau v. Wal-Mart Stores, Inc., 223 Ariz. 540, 541, ¶ 4 (App. 2010) (citing Abril v. Harris, 157 Ariz. 78, 80 (App. 1987)). Because appellate jurisdiction is defined by statute, we must dismiss any portion of an appeal for which we do not havejurisdiction. See, e.g., Natale v. Natale, 234 Ariz. 507, 509, ¶ 8 (App. 2014) (citing Baker v. Bradley, 231 Ariz. 475, 479, ¶ 8 (App. 2013)). Generally, a party may appeal a final judgment. See Ariz. Rev. Stat. (A.R.S.) § 12-2101(A)(1).³ Pursuant to the Arizona Rules of Family Law Procedure (ARFLP):

When more than one claim for relief is presented in an action, . . . the court may direct the entry of final judgment as to one or more but fewer than all of the claims . . . only upon an express determination that there is no just reason for delay and upon an express direction for 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.

ARFLP 78(B). Thus, "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." Natale, 234 Ariz. at 509, ¶ 9.

¶9 The procedural history in the present case is nearly identical to that in Ghadimi v. Soraya, 230 Ariz. 621 (App. 2012), where the family court issued a signed decree granting the husband's attorneys' fees but left the specific amount of those fees to be determined. Id. at 622, ¶ 3. The wife appealed the decree before the amount of attorneys' fees was resolved, and when the amount of fees was later ordered, she failed to file an amended notice of appeal. Id. at ¶¶ 3, 5. This Court dismissed the wife's appeal for lack of jurisdiction after it determined that her notice of appeal was premature because the decree, which had not been certified as final under Rule 78(B) and left the amount of attorneys' fees unresolved, was not a final judgment. Id. at 623, ¶ 11. Moreover, we held that a determination of the amount of an award of attorneys' fees is discretionary and not ministerial, and the exception enumerated in Barassi v. Matison, 130 Ariz. 418 (1981), didnot apply. Ghadimi, 230 Ariz. at 623-24, ¶ 13 (quoting Bryant v. Bryant, 40 Ariz. 519, 521 (1932)).

¶10 Here, Mother filed a notice of appeal from the family court's signed minute entry dismissing her petition for modification of legal decision-making authority and parenting time and granting Father's request for attorneys' fees. Although the court certified the order as final under Rule 78(B), it did not resolve the amount of the award...