NOTICE: NOT FOR PUBLICATION.
UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT
AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
In re the Marriage of:
AMY JO DAURIO, Petitioner/Appellant,
v.
STEVEN L. DAURIO, Respondent/Appellee.
No. 1 CA-CV 12-0661
FILED 4-22-2014
Appeal from the Superior Court in Maricopa County
FC2010-004881 and FC2011-002723 (Consolidated)
The Honorable David J. Palmer, Judge
APPEAL DISMISSED
COUNSEL
Amy Jo Daurio, Maricopa
Petitioner/Appellant in Propria Persona
Philip A. Seplow, Phoenix
Counsel for Respondent/Appellee
DAURIO v. DAURIO
Decision of the Court
MEMORANDUM DECISION
Judge John C. Gemmill delivered the decision of the Court, in which
Presiding Judge Maurice Portley and Judge Kent E. Cattani joined.
G E M M I L L, Judge:
¶1 Amy Jo Daurio (“Wife”) appeals an order granting monetary
relief to Steven L. Daurio (“Husband”). Because Wife’s notice of appeal
was premature and ineffective, we have no jurisdiction and dismiss her
appeal.
Factual and Procedural History
¶2 During their divorce proceedings, the parties reached an
agreement in December 2011 resolving the disposition of community
property. Specifically, Wife would receive $35,000 from the parties’
retirement account, with Husband paying any taxes and penalties. Wife
would retain the personal property in her possession, and Husband
would receive the personal property remaining in the marital residence, as
well as the residence itself. The court accepted the agreement.
¶3 After the agreement, Husband conducted an inventory of
property left in the marital residence pursuant to their agreement. After
finding that Wife had removed numerous additional items of property not
previously agreed upon as belonging to her, Husband filed a notice of
theft and request for relief in December 2011. The trial court entered a
signed decree of dissolution on February 15, 2012, resolving many issues
but not Husband’s allegations of theft or the attorneys’ fees claims. 1 The
court set an evidentiary hearing for May 14, 2012, to address these
unsolved issues. After the evidentiary hearing, the court entered a signed
order on July 26, 2012, reducing Wife’s interest in the parties’ retirement
account from $35,000 to $25,000. The court also found that Wife had acted
unreasonably during the litigation and awarded Husband his reasonable
attorneys’ fees, which would be determined after he filed a fee
application.
1 Neither party attempted to appeal from the decree of dissolution
entered on February 15, 2012.
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DAURIO v. DAURIO
Decision of the Court
¶4 Husband filed a fee application and Wife responded. Before
the trial court ruled on the fee application, Wife filed a notice of appeal on
August 20, 2012, appealing the signed order of July 26, 2012, which
granted Husband monetary relief. The trial court in September 2012
entered an order awarding Husband attorneys’ fees and costs. Wife did
not file a new, amended, or supplemental notice of appeal.
Jurisdictional Analysis
¶5 Wife did not cite any authority supporting our jurisdiction
over her appeal, and Husband did not file an answering brief. This court
has an independent duty to ascertain whether we have jurisdiction over
an appeal. See Sorensen v. Farmers Ins. Co. of Ariz., 191 Ariz. 464, 465, 957
P.2d 1007, 1008 (App. 1997). Our jurisdiction is limited by statute. See
Ariz. Rev. Stat. (“A.R.S.”) § 12-2101(A) (Supp. 2012); see also Fields v. Oates,
230 Ariz. 411, 413, ¶ 7, 286 P.3d 160, 162 (App. 2012). A notice of appeal
filed prior to a final judgment is premature and, generally, a nullity. See
id. at 414, ¶ 8, 286 P.3d at 163 (citing Craig v. Craig, 227 Ariz. 105, 107, ¶ 13,
253 P.3d 624, 626 (2011)). See also Ghadimi v. Soraya, 230 Ariz. 621, 622, ¶ 8,
285 P.3d 969, 970 (App. 2012) (citing Barassi v. Matison, 130 Ariz. 418, 421,
636 P.2d 1200, 1203 (1981)).
¶6 An order that does not resolve all claims “shall not terminate
the action” unless the court directs entry of judgment “upon an express
determination that there is no just reason for delay[.]” Ariz. R. Fam. L.P.
78(B). The order from which Wife appealed did not resolve the attorneys’
fees claim, nor did it include Rule 78(B) language; it instructed the parties
to submit additional pleadings regarding attorneys’ fees. Therefore, the
order on appeal was not a final judgment and could not be appealed until
the pending attorneys’ fees claim was resolved. See In re Marriage of Kassa,
231 Ariz. 592, 594, ¶ 6, 299 P.3d 1290, 1292 (App. 2013) (holding order
resolving some post-decree claims but not resolving issues of child
support modification or attorneys’ fees was not final and appealable);
Fields, 230 Ariz. at 414, ¶ 10, 286 P.3d at 163 (holding that an order that did
not resolve the attorneys’ fees claim and failed to contain necessary Ariz.
R. Civ. P. 54(b) language was not final and appealable); Ghadimi, 230 Ariz.
at 622-23, ¶ 10, 285 P.3d at 970-71 (holding that a decree was not final and
appealable when it failed to determine the amount of attorneys’ fees
awarded or contain Rule 78(B) language).
¶7 Because the trial court’s order was not final, Wife’s notice of
appeal was premature and did not come within the Barassi exception
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DAURIO v. DAURIO
Decision of the Court
within which some premature notices of appeal are effective. See Fields,
230 Ariz. at 415, ¶ 13, 286 P.3d at 164; Ghadimi, 230 Ariz. at 624, ¶ 14, 285
P.3d at 972. The family court’s determination of the attorneys’ fees issue
was not merely “ministerial” as that term is used in Smith and Craig.
Craig, 227 Ariz. at 107, ¶ 13, 253 P.3d at 626 (quoting Smith, 212 Ariz. at
415, ¶ 37, 132 P.3d at 1195) (Barassi is limited to situations in which a
notice of appeal is filed “after the trial court has made its final decision,
but before it has entered a formal judgment, if no decision of the court
could change and the only remaining task is merely ministerial.”). “In all
other cases, a notice of appeal filed in the absence of a final judgment, or
while any party's time-extending motion is pending before the trial court,
is ‘ineffective’ and a nullity.” Craig, 227 Ariz. at 107, ¶ 13, 253 P.3d at 626
(citing Smith, 212 Ariz. at 415, ¶ 39, 132 P.3d at 1195). Accordingly, Wife’s
notice of appeal was ineffective and a nullity, and we lack jurisdiction.
¶8 We recognize the recent opinion in Reeck v. Mendoza, 232
Ariz. 299, 304 P.3d 1122 (App. 2013), reached a different conclusion
regarding jurisdiction over a family court appeal. The Reeck court
concluded that certain family court rulings could be “inherently final” and
appealable even if all claims and issues had not been resolved and the
court had not added the certification of finality allowed under Family
Rule 78(B). Reeck, 232 Ariz. at 301-02, ¶ 8, 304 P.3d at 1124-25. The
Arizona Supreme Court, however, has rejected the Reeck approach in
Bollermann v. Nowlis, ASC-CV-13-0279 (Ariz. Apr. 17, 2014). See also Natale
v. Natale, 1 CA-CV 12-0765 (Ariz. App. Apr. 16, 2014).
¶9 Finally, we have also considered the potential application of
newly amended Arizona Rule of Civil Appellate Procedure (ARCAP)
9(b)(2)(B), which became effective January 1, 2014. This court in Lopez v.
Food City, 2 CA-CV 13-0105, 2014 WL 739811, at *2, ¶¶ 6-7 (Ariz. App. Feb.
25, 2014), recently held that this new subsection of ARCAP 9 is not
applicable to premature and ineffective notices of appeal filed before the
effective date of the new rule. Id. at ¶¶ 6-7. The order Wife seeks to
appeal was entered on July 26, 2012, and her notice of appeal was filed on
August 20, 2012, prior to the final judgment or order resolving the
attorneys’ fees issue. In accordance with Lopez, new ARCAP 9(b)(2)(B) is
not applicable.
¶10 The order Wife seeks to appeal did not resolve the issue of
attorneys’ fees and did not contain a Family Rule 78(B) certification of
finality for appeal. As a result, Wife’s notice of appeal from the order was
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DAURIO v. DAURIO
Decision of the Court
premature and ineffective under Bollermann, Craig, Smith, Natale, Ghadimi,
and Kassa to trigger this court’s appellate jurisdiction.
Conclusion
¶11 We lack jurisdiction and therefore dismiss Wife’s appeal.
:MJT
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