In re Johnson

• Decision Date: 19 December 2012
• Docket Number: No. 2 CA–CV 2012–0076.,2 CA–CV 2012–0076.
• Citation: 650 Ariz. Adv. Rep. 4,231 Ariz. 228,293 P.3d 504
• Parties: In re the MARRIAGE OF Edwin H. JOHNSON, Petitioner/Appellee, and Rose M. GRAVINO, Respondent/Appellant.
• Court: Arizona Court of Appeals

231 Ariz. 228

293 P.3d 504

650 Ariz. Adv. Rep. 4

In re the MARRIAGE OF Edwin H. JOHNSON, Petitioner/Appellee, and Rose M. GRAVINO, Respondent/Appellant.

No. 2 CA–CV 2012–0076.

Court of Appeals of Arizona,

Division 2, Department A.

Dec. 19, 2012.

Aboud & Aboud, P.C. by John Eli Aboud, Tucson, Attorneys for Petitioner/Appellee.

Law Firm of Marc Mauseth by Marc Mauseth, Tubac, Attorney for Respondent/Appellant.

OPINION

HOWARD, Chief Judge.

¶ 1 Appellant Rose Gravino appeals from the trial court's order denying her petition to enforce the community property provisions of a decree of dissolution entered in May 2005, claiming the court erred in interpreting the provisions. She also appeals from the court's order awarding appellee Edwin Johnson attorney fees, claiming the court erred by not providing a statutory basis for the award in its order. For the following reasons, we affirm in part and reverse in part.

Factual and Procedural Background

¶ 2 The underlying facts and procedural background are undisputed. Rose Gravino and Edwin Johnson's marriage was dissolved in May 2005. During the dissolution proceeding, the parties negotiated a property settlement agreement, which the court approved as a fair and equitable agreement and merged into the decree of dissolution. The agreement provided that Gravino would receive certain assets and liabilities, including property located on Glenn Street in Tucson pursuant to a quit claim deed. The provision regarding the Glenn property provided that Gravino “will assume payment of the mortgage taxes and insurance,” and the “mortgage will be paid off upon completion of construction and the sale of [property on] Ocean Lane,” located in Imperial Beach, California. The agreement also provided Johnson would receive a quit claim deed for the Ocean Lane property and he would “assume payment of the mortgage, taxes and insurance.” The agreement further stated Gravino would receive title to property on Ebony Avenue in Imperial Beach, California, which would be sold, with proceeds going to pay off another of her properties and the remainder being used for completion of two of Johnson's properties, including the Ocean Lane property.

¶ 3 In April 2011, Gravino filed a motion requesting the court to enter a judgment against Johnson for the balance of the mortgage on the Glenn property, plus interest at a rate of ten percent per annum, based on Johnson's sale of the Ocean Lane property in February 2011. Gravino also requested attorney fees pursuant to A.R.S. § 12–341.01(A) and costs. Because Johnson failed to respond, the court entered a default judgment in favor of Gravino.

¶ 4 Later, Johnson moved to set aside the default judgment and to quash Gravino's writs of garnishment initiated to collect the judgment, and requested a hearing. After further briefing by both parties, the trial court held a hearing, set aside the default judgment in its entirety, and quashed all writs of garnishment. The court also deemed Gravino's motion for judgment to be a petition to enforce the community property provisions of the decree. Both parties submitted additional briefs and a hearing was held in January 2012. The court took the matter under advisement and entered a ruling and order on March 22 denying the relief requested by both parties, but deciding Johnson should be awarded some of the attorney fees he incurred in setting aside the default judgment against him. The court based this decision on its reasoning that Gravino's motion for judgment did not comply with the Rules of Family Law Procedure. The court ordered Johnson to file affidavits regarding his fees, which he did, citing A.R.S. §§ 25–324 and 12–341 as the statutory bases for the award. Before the court decided the attorney fees issue, Gravino filed a notice of appeal on April 16. After additional briefing by both parties, on June 7 the court awarded Johnson $9,000 in attorney fees and entered a final judgment on June 19. As part of its ruling, the court determined the notice of appeal was premature and therefore did not divest it of jurisdiction. On June 29, Gravino filed a supplemental notice of appeal challenging the court's order denying her requested relief in her petition to enforce the community property provisions of the decree and its order awarding Johnson attorney fees.

Jurisdiction

¶ 5 Gravino provides only a cursory statement claiming we have jurisdiction over this appeal without citing to any authority as required by Rule 13(a)(3), Ariz. R. Civ.App. P., and Johnson claims we have jurisdiction pursuant to A.R.S. §§ 12–120.21(A)(1) and 12–2101(A)(1), (2).¹ However, we have an independent duty to determine our own jurisdiction, Sorensen v. Farmers Ins. Co. of Ariz., 191 Ariz. 464, 465, 957 P.2d 1007, 1008 (App.1997), which is prescribed by statute; we have no authority to entertain an appeal over which we do not have jurisdiction, see Hall Family Props., Ltd. v. Gosnell Dev. Corp., 185 Ariz. 382, 386, 916 P.2d 1098, 1102 (App.1995). Pursuant to § 12–2101(A)(1), we have jurisdiction for an appeal “[f]rom a final judgment,” which is one that “ ‘dispose[s] of all claims and all parties.’ ” Maria v. Najera, 222 Ariz. 306, ¶ 5, 214 P.3d 394, 395 (App.2009), quoting Musa v. Adrian, 130 Ariz. 311, 312, 636 P.2d 89, 90 (1981).

¶ 6 Once the appellant files a notice of appeal, the appeal is perfected.²SeeAriz. R. Civ.App. P. 8(a) & cmt. Our supreme court has held that once perfected, the trial court loses “jurisdiction of each and every matter connected with the case, except in furtherance of the appeal.” In re Lopez, 97 Ariz. 328, 330–31, 400 P.2d 325, 326 (1965), quoting Navajo Realty Co. v. County Nat'l Bank & Trust Co., 31 Ariz. 128, 135–36, 250 P. 885, 887 (1926). Because the lower court loses jurisdiction once the appeal is perfected, any action it takes after perfection, other than in furtherance of the appeal, is void. Id. (after perfection “ ‘no discretion in the trial court for a determination of any sort as to the merits, the grounds or the timeliness of the filing of the appeal’ ”), quoting Baragan v. Eyman, 93 Ariz. 227, 230, 379 P.2d 900, 902 (1963).

¶ 7 But our supreme court later has acknowledged the rule divesting the trial court of jurisdiction upon the filing of a notice of appeal is not absolute and there are “ ‘many equally well established exceptions.’ ” Continental Cas. Co. v. Indus. Comm'n, 111 Ariz. 291, 294, 528 P.2d 817, 820 (1974), quoting Castillo v. Indus. Comm'n, 21 Ariz.App. 465, 467, 520 P.2d 1142, 1145 (1974). In Continental, the supreme court adopted our reasoning in Castillo stressing the rationale behind the general rule, which we stated was meant to protect the “ ‘jurisdiction of this court when properly invoked.’ ” Id., quoting Castillo, 21 Ariz.App. at 467, 520 P.2d at 1144.

¶ 8 More recently, our supreme court held that a notice of appeal is premature if there are any unresolved claims when the notice is filed and all premature notices of appeal are ineffective and a nullity, with one exception not relevant here. Craig v. Craig, 227 Ariz. 105, ¶ 13, 253 P.3d 624, 626 (2011). We have noted the purpose behind this rule is to give trial courts a bright-line rule that will make their jurisdiction clear and easy to determine and avoid disruptions to the trial process. Santee v. Mesa Airlines, Inc., 229 Ariz. 88, ¶¶ 3–4, 270 P.3d 915, 916 (App.2012).

¶ 9 In considering our own jurisdiction, this court has held that, when no real question concerning the invalidity of the notice of appeal exists, the trial court may determine whether it has jurisdiction to proceed even after a notice of appeal has been filed. See Schultz v. Hinshaw, 18 Ariz.App. 557, 557–58, 504 P.2d 498, 498–99 (1972); Yaeger v. Vance, 20 Ariz.App. 399, 400–01, 513 P.2d 688, 689–90 (1973); see also Burke v. Gottfried, 7 Ariz.App. 96, 97, 436 P.2d 488, 489 (1968) (“The trial court does not lose jurisdiction in the face of an appeal from a non-appealable order.”). In Schultz, we reviewed whether the lower court has jurisdiction to strike a notice of appeal, thereby dismissing the appeal. 18 Ariz.App. at 557–58, 504 P.2d at 498–99. We found that directly dismissing the notice of appeal interfered with the appeal, which is not allowed under Lopez.Id. at 557, 504 P.2d at 498;see Lopez, 97 Ariz. at 331, 400 P.2d at 326–27. But we held that as long as the court was not striking the notice of appeal, the court may determine its own jurisdiction if the issue of jurisdiction is clear. Schultz, 18 Ariz.App. at 557–58, 504 P.2d at 498–99. But if the issue of jurisdiction is “ ‘fairly debatable’ ” the court “ ‘should wait for this court to rule.’ ” Id., quoting Burke, 7 Ariz.App. at 97–98, 436 P.2d at 489–90 (appellate courts must decide any issue about whether order appealable).

¶ 10 Our holding in Schultz is consistent with the majority of other jurisdictions that have considered this question. In Woznicki v. Musick, 94 P.3d 1243, 1246 (Colo.App.2004), the Colorado Court of Appeals reasoned appellate courts have no jurisdiction to consider the merits of an appeal in the absence of a final order or judgment, and therefore jurisdiction must remain in the trial court.³ Although the filing of a notice of appeal generally divests the trial court of jurisdiction, it continued, that rule need not require divesting the court of jurisdiction when any notice of appeal is filed. Id. To do so would hamper, rather than aid, the administration of judicial process by transferring control from the courts to the parties, leaving the courts “powerless to prevent delays” and dilatory tactics, “obstruct[ing] the nonappealing party's right to continuing trial court jurisdiction, and inhibit[ing] the smooth and efficient functioning of the judicial process.” Id. Accordingly, the court held premature notices of appeal do “not render void for lack of jurisdiction acts of the trial court taken during the interval between the filing of the invalid notice of appeal...