Yee v. Yee

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

In re the Matter of:

KAREN CHOY LAN YEE,
Petitioner/Appellant,

v.

MARTIN WAYNE YEE,
Respondent/Appellee.

No. 1 CA-CV 20-0274 FC
FILED 03-25-2021

Appeal from the Superior Court in Maricopa County
No. FC2008-007465
The Honorable Katherine M. Cooper, Judge

APPEAL DISMISSED

COUNSEL

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
 YEE v. YEE
Opinion of the Court

OPINION

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

T H U M M A, 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.

1Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.

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Opinion of the Court

¶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.

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Opinion of the Court

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 (App. 2014). That review begins with the recognition that
this court has not spoken with one voice on the issues addressed here.2

2 For cases taking different approaches in finding appellate jurisdiction over
orders resolving post-decree motions or petitions, compare, e.g., Stock v.
Stock, 250 Ariz. 352, 354 ¶ 4 (App. 2020) (finding appellate jurisdiction
under A.R.S. § 12-2101(A)(1)) with Glassbrook v. Cleary, 2 CA-CV 2019-0100-
FC, 2020 WL 256426, at *1 ¶ 3 (Ariz. App. Jan. 15, 2020) (finding appellate
jurisdiction under A.R.S. § 12-2101(A)(2)) with State ex rel. McEvoy v.
McEvoy, 1 CA-CV 18-0694 FC, 2019 WL 6606189, at *2 ¶ 7 (Ariz. App. Dec.
5, 2019) (finding appellate jurisdiction under A.R.S. §§ 12-2101(A)(1) and
(A)(2)). For cases discussing the applicability of Rule 78 to orders resolving
post-decree motions or petitions, compare In re the Marriage of Ward, 2 CA-
CV 2019-0116-FC, 2020 WL 703552, at *1 ¶ 5 n.2 (Ariz. App. Feb. 11, 2020)
(finding ruling appealable without Rule 78(c) language) with Williams v.
Williams, 228 Ariz. 160, 167 ¶ 29 n.8 (App. 2011) (noting in dicta that “in
appropriate cases” Rule 78(b) certification was available) with Solorzano v.
Jensen, 250 Ariz. 348, 349 ¶ 4 n.4 (App. 2020) (finding Rule 78(c) was
improper, given unresolved issues, but that Rule 78(b) was proper).

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Opinion of the Court

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, LLC, 240 Ariz. 421, 426
¶ 4 (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. 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 (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. 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 (App. 1995); accord In re the Marriage of Dorman, 198 Ariz.
298, 300 ¶ 3 (App. 2000) (quoting Arvizu). In family court, such a special
order made after final judgment is appealable regardless of whether it

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Opinion of the Court

includes a statement of finality. Accord Brumett, 240 Ariz. at 428–29 ¶ 15
(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 (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 (quoting Arvizu). Similarly, a court rule “cannot
expand appellate jurisdiction beyond any statutory grant.” State v. Bayardi,
230 Ariz. 195, 197 ¶ 7 n.3 (App. 2014). 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 (App. 2013);
accord M & M Auto Storage Pool, Inc. v. Chem. Waste Mgmt., Inc., 164 Ariz.
139, 141 (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 falls within § 12-2101(A)(2), it is appealable even if it lacks finality
language under Rule 78(b) or (c). See Brumett, 240 Ariz. at 428–29 ¶ 15.

3 Classically, the decree is the “final judgment” in a family law case for
appellate jurisdiction purposes under A.R.S. § 12-2101(A)(1). When the
petition initiating the family law case seeks a determination of paternity
and/or legal decision making, the order resolving those issues is the “final
judgment” under A.R.S. § 12-2101(A)(1). Because this case involves post-
decree motion practice, the reference throughout is to motions filed after
entry of the decree.

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Opinion of the Court

¶13 More broadly, family court rulings that fully resolve post-
decree petitions are appealable special orders entered after final judgment
under A.R.S. § 12-2101(A)(2). See, e.g., Cone v. Righetti, 73 Ariz. 271, 275
(1952) (post-decree order affecting custody and support of minor children);
Williams v. Williams, 228 Ariz. 160, 165–66 ¶¶ 19–20 (App. 2011) (post-decree
order modifying spousal maintenance); Sheehan v. Flower, 217 Ariz. 39, 40
¶ 8 (App. 2007) (post-decree order on grandparent visitation); Merrill v.
Merrill, 230 Ariz. 369, 371–72 ¶¶ 5–6 (App. 2012) (post-decree order on
military retirement benefits).4

¶14 But not every family court order addressing a post-decree
motion or petition is appealable. Far from it. Although a special order made
after final judgment in family court does not require a Rule 78 statement of
finality to be appealable, the family court must have fully resolved all issues
raised in a post-decree motion or petition before an appeal can be taken
under A.R.S. § 12-2101(A)(2). See Williams, 228 Ariz. at 165–67 ¶¶ 20–29
(citing, among others, Dorman, 198 Ariz. at 301 ¶ 4 for the proposition that
an order was appealable because it resolved all issues “raised in the
petition,” and In re Estate of McGathy, 226 Ariz. 277, 280 ¶ 17 (2010) for the
proposition “that an order completely resolving a particular [probate]
petition is appealable notwithstanding the fact that the case may be
ongoing,” and noting the “court’s reasoning in McGathy applies with just
as much force to orders resolving post-decree petitions”).5

4 A request for post-decree relief in family court may be made by filing a
petition under Rule 23(a) (“A ‘petition’ is the initial pleading that begins a
family law case or a post-decree matter”), or a motion under Rule 35(a)(1)
(“A party must request a court order in a pending action by motion, unless
otherwise provided by these rules.”). The rulings Mother challenges appear
to have been initiated by post-decree motion. The parties, however, do not
argue that the form of the request is relevant to whether this court has
appellate jurisdiction.

5The current Rules do not reflect the requirement that the family court must
have fully resolved all of the relief requested in a post-decree motion or
petition before an appeal can be taken from such rulings. To avoid
uncertainty and confusion, the court suggests the Arizona Supreme Court
consider a rule change directing the family court to state when it has fully
resolved a post-decree motion or petition, thereby putting the parties on
notice that the time to take any appeal has begun. The resolution of this
case, however, does not turn on the lack of such a rule.

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Opinion of the Court

¶15 Applying these principles, the May 2018 judgment awarding
Father more than $59,000 in fees and costs resolved the entirety of the then-
pending post-decree motion. Thus, that ruling was appealable as a special
order after final judgment under A.R.S. § 12-2101(A)(2) even though it
included no Rule 78 statement of finality. See Williams, 228 Ariz. at 165–67
¶¶ 20–29. Mother, however, failed to timely file a notice of appeal within 30
days of the entry of the May 2018 judgment. Moreover, as discussed below,
her other motions did not extend her time to appeal from the May 2018
judgment. For these reasons, this court lacks appellate jurisdiction to review
the May 2018 judgment.

¶16 The December 2019 minute entry denying Mother’s Rule 85
motion also was a special order after final judgment under A.R.S. § 12-
2101(A)(2). By no later than the entry of the January 14, 2020 judgment
awarding Father fees, the family court had resolved the entirety of that
motion. Thus, by that date, the denial of Mother’s Rule 85 motion was
appealable under A.R.S. § 12-2101(A)(2) even though the family court had
not issued a Rule 78 statement of finality. See Williams, 228 Ariz. at 165–67
¶¶ 20–29. Mother, however, failed to timely file a notice of appeal within 30
days of that January 14, 2020 judgment. Thus, unless Mother’s Rule 83
motion extended the time for her to file a notice of appeal, this court lacks
appellate jurisdiction over the January 14, 2020 judgment.

II. Because Mother’s Rule 83 Motion Was Improper, It Did Not
Extend the Time for Appeal.

¶17 Mother argues her Rule 83 motion to amend the December
2019 ruling extended the time to appeal the ruling on her Rule 85 motion.
The filing of certain post-judgment motions can delay the beginning of the
30-day time to appeal until the entry of “a signed written order” resolving
such motions. ARCAP 9(e)(1). One such time-delaying motion is a Rule
83(a) motion to alter or amend a judgment. ARCAP 9(e)(1)(C). Mother relies
on this provision to argue that her Rule 83 motion to amend the December
2019 ruling on her Rule 85 motion extended the time for appeal. On this
record, however, Mother misconstrues Rule 83.

¶18 Rule 83 is one of a cluster of family court rules that a party
may invoke to seek changes to rulings of various types in various contexts.
See Rule 82(b) (allowing party to file motion to amend or make additional
findings and amend judgment); 83 (“Altering or Amending a Judgment”);
84 (“Motion for Clarification”); 85 (“Relief from Judgment or Order”); 91
(“Modification or Enforcement of a Judgment”). Each of these rules
addresses different issues and contains unique and specific requirements

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Opinion of the Court

and limitations. As applicable here, Rule 83 is limited to a specific subset of
all judgments a family court may enter. See Rule 78(a)(1) (defining judgment
as including “an order from which an appeal lies”).

¶19 As discussed above, the family court denied Mother’s Rule 85
motion in a December 2019 minute entry. Mother then filed a Rule 83
motion to amend that minute entry. Rule 83, however, is limited to a motion
to alter or amend a Rule 78(b) or (c) judgment. Indeed, a Rule 83 motion
must be filed within 25 days “after the entry of judgment under Rule 78(b)
or (c).” Rule 83(c)(1). This express language means that a Rule 83 motion
challenging a post-decree order or any ruling other than a Rule 78(b) or (c)
judgment is improper and can provide no basis for relief. As a result, the
family court lacked the authority to grant Mother’s self-styled Rule 83
motion, and this court will not review that ruling. Cf. McHazlett v. Otis Eng’g
Corp., 133 Ariz. 530, 533 (1982) (if the superior court lacks “jurisdiction to
issue an order[,] an appeal from that order gives the appellate court no
jurisdiction except to dismiss the appeal.”).

¶20 Mother cites Desmond v. J.W. Hancock Enterprises, Inc., 123
Ariz. 474 (1979), and Tripati v. Forwith, 223 Ariz. 81 (App. 2009) in support
of her appeal. Those cases, however, are distinguishable. In both cases, the
courts reasoned that a motion for new trial under Civil Rule 59 directed to
the denial of a motion for relief from a judgment or order under Civil Rule
60 extended the time to appeal the ruling. Desmond, 123 Ariz. at 475–76;
Tripati, 223 Ariz. at 85–86 ¶¶ 18–22. Desmond and Tripati construed and
applied the Civil Rules, which in this regard contain different language
than the Rules applicable in family court. Unlike Rule 83, which links the
filing of a motion to alter or amend to the entry of a final judgment certified
under Rule 78(b) or (c), Civil Rule 59(a) allows a motion for new trial
whether or not a judgment has been entered. Compare Rule 83(a) & (c)(1)
with Civil Rule 59(a)(2).6 Compare Rule 83(c)(1) with Civil Rule 59(d). Given

6 Maria v. Najera, 222 Ariz. 306 (App. 2009), which held there is no
jurisdiction to review a ruling on a motion for new trial directed to a partial
summary judgment ruling unless such a ruling contains Civil Rule 54(b)
language, does not compel a different result. Maria holds a non-appealable
order cannot be turned into an appealable order by filing a motion for new
trial and appealing from the decision on the new trial motion. And unlike
Rule 83(c)(1), which requires that motions to alter or amend a judgment in
family court target judgments reciting they are final under Rule 78(b) or (c),
Civil Rule 59 allows new trial motions in civil court proceedings to target
both prejudgment decisions and judgments. See Civil Rule 59(a).

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Opinion of the Court

the lack of any finality requirement in Civil Rule 59(b), Desmond and Tripati
do not apply here.

CONCLUSION

¶21 Mother did not timely appeal from the May 2018 judgment,
the December 2019 ruling on the Rule 85 motion or the January 14, 2020
attorneys’ fees judgment. Moreover, this court will not address the ruling
on her Rule 83 motion because the superior court lacked the authority to
address that motion. Accordingly, the court dismisses this appeal. In the
court’s discretion, after considering the record, Father’s request for
attorneys’ fees pursuant to A.R.S. § 25-324 is granted contingent on his
compliance with ARCAP 21. His request for taxable costs on appeal also is
granted, again, contingent on his compliance with ARCAP 21.

AMY M. WOOD • Clerk of the Court
FILED: HB

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