Thorn v. Thorn

• Citation: 691 Ariz. Adv. Rep. 31,330 P.3d 973,235 Ariz. 216
• Decision Date: 17 July 2014
• Docket Number: No. 2 CA–CV 2014–0022.,2 CA–CV 2014–0022.
• Parties: In re the MARRIAGE OF Stuart E. THORN, Petitioner/Appellant, and Susan Thorn, Respondent/Appellee.
• Court: Arizona Court of Appeals

235 Ariz. 216

330 P.3d 973

691 Ariz. Adv. Rep. 31

In re the MARRIAGE OF Stuart E. THORN, Petitioner/Appellant, and Susan Thorn, Respondent/Appellee.

No. 2 CA–CV 2014–0022.

Court of Appeals of Arizona, Division 2.

July 17, 2014.

The Murray Law Offices, P.C. By Stanley D. Murray, Scottsdale, Counsel for Petitioner/Appellant.

Slaton & Sannes, P.C. By Sandra Slaton, Scottsdale, Counsel for Respondent/Appellee.

Judge MILLER authored the decision of the Court, in which Judge VÁSQUEZ and Judge ESPINOSA concurred.

OPINION

MILLER, Judge.

¶ 1 Stuart Thorn appeals from the decree dissolving his marriage to Susan Thorn, arguing the family court erred in dividing real and personal property, ordering him to return Susan's stocks and bonds, and ordering him to repay a loan that had already been paid. For the reasons that follow, we determine we do not have jurisdiction to review the personal property arguments, and otherwise affirm the judgment as to the remaining items.

Factual and Procedural Background

¶ 2 We view the facts in the light most favorable to upholding the decree. See Gutierrez v. Gutierrez, 193 Ariz. 343, ¶ 5, 972 P.2d 676, 679 (App.1998). The parties were married in January 1992 after entering into a prenuptial agreement. Although that agreement does not direct the issues on appeal, it documents a variety of separate properties brought to the marriage, many of which maintained their separate character or affected the allocation and distribution of jointly held property. In January 2011, Stuart filed a petition for dissolution of marriage without children. The family court entered a decree of dissolution in April 2013, dividing the parties' property. We have jurisdiction, except as discussed below, pursuant to A.R.S. § 12–2101(A)(1).

I. Appellate Jurisdiction over Community Property Distribution

¶ 3 Stuart argues the family court failed to “make a fair and equitable distribution of community property” because Susan “was awarded all of the community personal property without an equalization payment.” This issue was not raised under Stuart's original notice of appeal; therefore, we first must examine whether we have jurisdiction to consider the court's community property distribution. See Baker v. Bradley, 231 Ariz. 475, ¶ 8, 296 P.3d 1011, 1014–15 (App.2013) (court has independent duty to determine jurisdiction).

¶ 4 Following the entry of the decree of dissolution on April 25, 2013, Stuart filed a timely notice of appeal on May 10, 2013. Stuart identified five specific orders and rulings in the decree to be appealed. Thirty-five days after the decree, Stuart filed an amended notice of appeal adding a sixth item to the list of orders and rulings contained in the decree, specifically “[t]he order distributing personal property.” On our own motion, we ordered simultaneous briefing, requesting the parties address whether this court has jurisdiction related to item six.

¶ 5 Rule 9(a), Ariz. R. Civ.App. P., requires a notice of appeal be filed “not later than 30 days after the entry of the judgment from which the appeal is taken.” The failure to file a notice within thirty days deprives the appellate court of jurisdiction except to dismiss the attempted appeal. James v. State, 215 Ariz. 182, ¶ 11, 158 P.3d 905, 908 (App.2007). In other words, the timely filing of a notice of appeal is “a prerequisite to appellate jurisdiction.” Wilkinson v. Fabry, 177 Ariz. 506, 507, 869 P.2d 182, 183 (App.1992). Accordingly, this court only acquires jurisdiction over those matters identified in a timely filed notice of appeal. Lee v. Lee, 133 Ariz. 118, 124, 649 P.2d 997, 1003 (App.1982).

¶ 6 Stuart concedes his amended notice of appeal was filed more than thirty days after entry of the decree of dissolution, but argues “that an amended notice of appeal relates back to the filing date of the original notice of appeal.” Stuart relies on Rule 34(A), Ariz. R. Fam. Law P., and several out-of-state cases to support this contention and characterizes his notice of appeal as a “pleading” under Rule 34(A). Stuart offers no authority for the proposition that Rule 34 either trumps or extends Rule 9(a). To the contrary, where two rules deal with the same subject, the more specific rule controls. See Pima Cnty. v. Heinfeld, 134 Ariz. 133, 134–35, 654 P.2d 281, 282–83 (1982) (“where two statutes deal with the same subject, the more specific statute controls”); Sierra Tucson, Inc. v. Lee ex rel. Cnty. of Pima, 230 Ariz. 255, ¶ 16, 282 P.3d 1275, 1279 (App.2012) (“We interpret procedural rules according to the same principles we apply to the interpretation of statutes.”). Rule 9(a) is more specific and applies directly to notices of appeal, whether original or amended.

¶ 7 We also find unpersuasive the out-of-state cases cited by Stuart. None of them stands for the proposition that an untimely amended notice of appeal confers jurisdiction upon the reviewing court. See Chan v. Chan, 7 Haw.App. 122, 748 P.2d 807, 811–12 (1987) (husband timely filed five amended notices of appeal, each appealing from orders entered after previous notice of appeal was filed); In re Marriage of Betts, 200 Ill.App.3d 26, 146 Ill.Dec. 441, 558 N.E.2d 404, 415 (1990) (appellant's failure to list orders appealed by original notice of appeal in subsequent amended notice of appeal did not bar appeal of those orders); Herman v. Hamblet, 81 Ill.App.3d 1050, 36 Ill.Dec. 835, 401 N.E.2d 973, 977 (1980) (“While an appellant may amend a notice of appeal ... such an amendment may not be used to avoid the requirement that a subsequent order be timely appealed.”).

¶ 8 Stuart further contends that “amended notices of appeal have been recognized and indeed encouraged in a number of published appellate cases.” We agree that amended notices of appeal have been recognized and at times implicitly encouraged, particularly when the initial notice of appeal was premature, rendering it a nullity. See generally Craig v. Craig, 227 Ariz. 105, ¶ 13, 253 P.3d 624, 626 (2011); In re Marriage of Kassa, 231 Ariz. 592, ¶¶ 5–6, 299 P.3d 1290, 1292 (App.2013). The case law cited by Stuart, however, does not stand for the proposition that this court has jurisdiction to review rulings identified in an untimely amended notice of appeal. For instance, in Engel v. Landman, 221 Ariz. 504, ¶ 14, 212 P.3d 842, 847 (App.2009), the initial appeal was premature because the notice of appeal had been filed while a motion for new trial was pending, but a timely supplemental notice of appeal conferred jurisdiction. There was no timely supplemental notice here.

¶ 9 Stuart's reliance on Craig also is unavailing. We agree that the court ostensibly suggested that a supplemental notice might have cured the problem caused by the parties' failure to wait for the family court to rule on a time-extending motion before filing their original notices. Craig, 227 Ariz. 105, ¶¶ 2, 6–8, 253 P.3d at 624, 625. More telling, the court approved the parties' post-appeal decision to file a stipulated motion pursuant to Rule 85(C)(1)(f), Ariz. R. Fam. Law P., to reinstate the final judgment, which would permit the parties to file “fresh notices of appeal.” Id. ¶ 16. There is no indication in this record that Susan would stipulate to a new judgment that would allow Stuart to file a timely notice.

¶ 10 We conclude that because the amended notice of appeal was untimely filed, we lack jurisdiction to consider Stuart's claims of error pertaining to personal property. See James, 215 Ariz. 182, ¶ 11, 158 P.3d at 908 (“[W]here the appeal is not timely filed, the appellate court acquires no jurisdiction other than to dismiss the attempted appeal.”).

II. Order Directing Return of $940,000 in Stocks and Bonds

¶ 11 Stuart contends the family court erred in ordering the return of certain securities to Susan because: (1) Susan's transfer of securities to him should have been classified as a gift; (2) the court lacked jurisdiction to order return of Susan's securities; and, (3) Stuart should not be required to reimburse the full value of Susan's securities.

¶ 12 In February 2010, Susan transferred approximately $940,000 in stocks and bonds to Stuart. The parties presented conflicting testimony as to her motivation for the transfer, with Stuart contending it was a gift and Susan asserting it was made under duress. Whatever the motivation, Stuart prepared and Susan signed a document transferring $940,000 in securities from Susan to Stuart. Stuart also prepared an additional document, which he described as “like a proxy,” that allowed Susan to repossess her transferred securities in case she had “buyer's remorse.” Shortly after the initial securities transfer, Susan requested Stuart transfer back some dividend-bearing bonds and Stuart complied. Upon leaving the marital residence, Susan requested Stuart return the remaining stocks and bonds. The family court found that Susan's transfer of the securities to Stuart was not a gift and ordered Stuart to return the stocks and bonds to Susan, “less those sums or the value of such stock already returned to [Susan].”

A. Gift Determination

¶ 13 We first address Stuart's contention that the family court abused its discretion in finding that Susan's transfer of the stocks and bonds was not a gift because resolution of this issue informs our treatment of Stuart's subsequent arguments pertaining to Susan's securities. Stuart contends, “[Susan] admitted that when she made the transfer she did so voluntarily and was not expecting repayment or anything in return for her ... transfer of stock.” The determination of whether a gift was made is a question of fact. Hrudka v. Hrudka, 186 Ariz. 84, 92, 919 P.2d 179, 187 (App.1995). “We review a trial court's findings of fact for abuse of discretion and reverse only when clearly erroneous.” In re Marriage of Gibbs, 227 Ariz. 403, ¶ 6, 258 P.3d 221, 224 (App.2011); see also Engel, 221 Ariz. 504, ¶ 21, 212 P.3d at 848.

¶ 14 The necessary elements of a gift are ...