Yee v. Yee

• Decision Date: 25 March 2021
• Docket Number: No. 1 CA-CV 20-0274 FC,1 CA-CV 20-0274 FC
• Citation: 251 Ariz. 71,484 P.3d 650
• Parties: In re the Matter of: Karen CHOY LAN YEE, Petitioner/Appellant, v. Martin Wayne YEE, Respondent/Appellee.
• Court: Arizona Court of Appeals

251 Ariz. 71

484 P.3d 650

In re the Matter of: Karen CHOY LAN YEE, Petitioner/Appellant,

v.Martin Wayne YEE, Respondent/Appellee.

No. 1 CA-CV 20-0274 FC

Court of Appeals of Arizona, Division 1.

FILED March 25, 2021

Potter Law Firm, Avondale, By Trail T. Potter, Co-Counsel for Petitioner/Appellant

Moshier Law Firm PC, Scottsdale, By Jennifer Kristen Moshier, Co-Counsel for Petitioner/Appellant

Burt Feldman & Grenier PLC, Scottsdale, By Mary K. Grenier, Counsel for Respondent/Appellee

Presiding Judge Samuel A. Thumma delivered the opinion of the Court, in which Judge D. Steven Williams and Judge David D. Weinzweig joined.

THUMMA, Judge:

¶1 This appeal turns on when a family court's resolution of post-decree petitions or motions are appealable. This opinion clarifies that:

(1) the family court's resolution of a post-decree motion is a "special order made after final judgment," Arizona Revised Statutes (A.R.S.) section 12-2101(A)(2) (2021),¹ and is appealable without certification under Arizona Rule of Family Law Procedure (Rule) 78 but only after the court resolves all relief sought in the motion; and

(2) a ruling on a Rule 85 motion for relief from judgment or order that does not result in the entry of a Rule 78(b) or (c) final judgment may not be challenged by a Rule 83 motion to alter or amend judgment.

Applying these standards, this court lacks appellate jurisdiction in this matter. The appeal is therefore dismissed.

FACTS AND PROCEDURAL HISTORY

¶2 In 2009, within a year of Karen Choy Lan Yee (Mother) petitioning for dissolution, the family court entered a consent decree dissolving her marriage to Martin Wayne Yee (Father). In the years that followed, the parties engaged in significant post-decree litigation. One such episode is relevant here.

¶3 In late 2016, after the family court had resolved various post-decree petitions, Mother filed for bankruptcy. That bankruptcy complicated the family court proceedings. In April 2018, Father filed a post-decree application for his attorneys’ fees and costs. In May 2018, when Mother did not object, the family court entered a "judgment and order" awarding Father more than $59,000 in fees and costs.

¶4 More than a year passed. Then, in August 2019, Mother filed a Rule 85 motion for relief from the May 2018 judgment. In December 2019, the court denied Mother's Rule 85 motion in a minute entry stating the motion was untimely, raised arguments that had been waived and was not supported by the record. This December 2019 minute entry also awarded Father fees for responding to Mother's Rule 85 motion in an amount to be determined. On January 14, 2020, the court entered a "judgment and order" awarding Father $2,825 in fees.

¶5 Meanwhile, in late December 2019, Mother filed a Rule 83 motion to amend the December 2019 minute entry. On January 21, 2020, the court issued a minute entry denying Mother's Rule 83 motion. On February 4, 2020, the court issued minute entries clarifying the January 14 judgment awarding fees and modifying the January 21 minute entry, nunc pro tunc.

¶6 In March 2020, Mother asked the court to enter a "final order" she submitted, which stated that "no further matters remain pending and that the judgment is entered under Rule 78(c)." In April 2020, the court entered Mother's proposed order containing this Rule 78(c) language, adding a handwritten reference to "medical expenses dated 3/10/2020 (entered 3/12/2020)," which are not part of this appeal. Two days later, Mother filed a notice of appeal, purporting to appeal from: (1) the May 2018 judgment awarding Father more than $59,000 in fees and costs; (2) the December 2019 minute entry denying Mother's Rule 85 motion; (3) the January 14, 2020 judgment awarding Father another $2,825 in fees; (4) the January 21, 2020 minute entry denying Mother's Rule 83 motion; and (5) the February 4, 2020 clarifying minute entries.

DISCUSSION

¶7 Father moved to dismiss the appeal for lack of jurisdiction. He argues appellate jurisdiction is lacking because (1) each of the post-decree rulings Mother challenges is a "special order made after final judgment," A.R.S. § 12-2101(A)(2), meaning they were immediately appealable when issued even though they lacked a Rule 78 statement of finality and (2) Mother failed to timely file a notice of appeal from any of those rulings. See ARCAP 9(a) (notice of appeal must be filed within 30 days after entry of the judgment from which the appeal is taken). Mother relies on A.R.S. § 12-2101(A)(1), which allows for an appeal from "a final judgment entered in an action ... commenced in a superior court." This, Mother argues, means her time to appeal did not begin to run until the court entered the April 2020 order containing the Rule 78(c) statement of finality. Because Mother filed her notice of appeal two days after entry of the April 2020 order, she argues her notice of appeal was timely. Whether this court has appellate jurisdiction is an issue of law reviewed de novo. See State v. Serrano , 234 Ariz. 491, 493 ¶ 4, 323 P.3d 774, 776 (App. 2014). That review begins with the recognition that this court has not spoken with one voice on the issues addressed here.²

I. Mother Seeks to Appeal from Post-Decree Special Orders Made After Final Judgment that Were Appealable Without a Rule 78 Statement of Finality.

¶8 This court's appellate jurisdiction "is defined, and limited, by the Legislature." Brumett v. MGA Home Healthcare, L.L.C. , 240 Ariz. 420, 426 ¶ 4, 380 P.3d 659, 665 (App. 2016). Whether this court has appellate jurisdiction turns on compliance with (1) the applicable statute on which appellate jurisdiction is based and (2) any applicable procedural rules.

¶9 A.R.S. § 12-2101, titled "Judgments and orders that may be appealed," specifies many types of orders over which this court has appellate jurisdiction. Brumett , 240 Ariz. at 425 ¶ 2, 380 P.3d at 654. Mother argues appellate jurisdiction is proper under § 12-2101(A)(1), which states that "[a]n appeal may be taken ... [f]rom a final judgment entered in an action ... commenced in a superior court." Relying on that statutory provision, Mother argues she could not appeal until the family court entered the April 2020 order containing the Rule 78(c) statement of finality. See Rule 78(c) ("A judgment as to all claims, issues, and parties is not final unless the judgment recites that no further matters remain pending and that the judgment is entered under Rule 78(c)."); cf. Brumett , 240 Ariz. at 426 ¶¶ 4–6, 380 P.3d at 655 (holding Ariz. R. Civ. P. (Civil Rule) 54(b) and (c), analogs to Rule 78(b) and (c), "define what constitutes an appealable ‘final judgment’ " under § 12-2101(A)(1) ); Rule 1(c) ("If language in these rules is substantially the same as language in the civil rules, case law interpreting the language of the civil rules will apply to these rules.").

¶10 Mother's argument, however, does not account for the statute providing that a special order after entry of judgment is appealable without a certification of finality under Rule 78. Under A.R.S. § 12-2101(A)(2), this court has appellate jurisdiction over appeals "[f]rom any special order made after final judgment." See Brumett , 240 Ariz. at 426–27 ¶¶ 8–9, 380 P.3d at 665-66. To constitute such a "special order made after final judgment," an order (1) must involve different issues than "those that would arise from an appeal from the underlying judgment" and (2) must affect "the underlying judgment by enforcing it or staying its execution." Arvizu v. Fernandez , 183 Ariz. 224, 226–27, 902 P.2d 830, 832-33 (App. 1995) ; accord In re the Marriage of Dorman , 198 Ariz. 298, 300 ¶ 3, 9 P.3d 329, 331 (App. 2000) (quoting Arvizu ). In family court, such a special order made after final judgment is appealable regardless of whether it includes a statement of finality. Accord Brumett , 240 Ariz. at 428–29 ¶ 15, 380 P.3d at 667-68 (construing Civil Rule 54(b) and (c)).³

¶11 It is true that Rule 78 states " ‘Judgment’ as used in these rules includes a decree or an order from which an appeal lies." Rule 78(a). This definition could be read as requiring that any "order from which an appeal lies" would require finality language under Rule 78(b) or (c) before it could be appealed. But "[t]his court's appellate jurisdiction is defined, and limited, by the Legislature." Brumett , 240 Ariz. at 426 ¶ 4, 380 P.3d at 665 (citations omitted). For an appeal from a decree or a pre-decree order, it may be that a certification of finality would be required for such an order to become an appealable "final judgment" under A.R.S. § 12-2101(A)(1). See id. But for post-decree appellate jurisdiction over "any special order made after final judgment" under A.R.S. § 12-2101(A)(2), the inquiry focuses on the issues resolved in the order and whether it seeks to enforce or stay the decree, not whether the form of the order is a "final judgment" under Rule 78. See Dorman , 198 Ariz. at 300 ¶ 3, 9 P.3d at 331 (quoting Arvizu ). Similarly, a court rule "cannot expand appellate jurisdiction beyond any statutory grant." State v. Bayardi , 230 Ariz. 195, 197 ¶ 7 n.3, 281 P.3d 1063, 1065 (App. 2012). Rule 78 therefore does not instruct whether this court properly has appellate jurisdiction under A.R.S. § 12-2101(A)(2) in this post-decree matter.

¶12 Applying these principles here, an order resolving a motion for relief under Rule 85 addressing resolution of a post-decree matter is appealable as a special order after final judgment under A.R.S. § 12-2101(A)(2). See In re the Marriage of Dougall , 234 Ariz. 2, 5 ¶ 9, 316 P.3d 591, 594 (App. 2013) ; accord M & M Auto Storage Pool, Inc. v. Chem. Waste Mgmt., Inc. , 164 Ariz. 139, 141, 791 P.2d 665, 667 (App. 1990) (concluding a ruling on a motion to set aside a final judgment under Civil Rule 60(b), analogous to a Rule 85 motion, is appealable under § 12-2101(A)(2) as a special order made after final judgment). Because a ruling on a Rule 85 motion addressing a post-decree matter...