IN THE
SUPREME COURT OF THE STATE OF ARIZONA
IN RE THE MARRIAGE OF:
FRANCENE LAVERNE VINCENT,
Petitioner/Appellee,
v.
PATRICK JUDE SHANOVICH,
Respondent/Appellant.
No. CV-17-0175-PR
Filed December 6, 2017
Appeal from the Superior Court in Maricopa County
The Honorable Stephen M. Hopkins, Judge
No. DR2000-095278
Memorandum Decision of the Court of Appeals, Division One
1 CA-CV 16-0431 FC
Filed Mar. 30, 2017
VACATED AND REMANDED
COUNSEL:
James S. Osborn Popp (argued), Popp Law Firm, P.L.C., Tempe, Attorney
for Francene Laverne Vincent
Daniel S. Riley (argued), The Harrian Law Firm, Glendale, Attorney for
Patrick Jude Shanovich
VINCENT v. SHANOVICH
Opinion of the Court
JUSTICE TIMMER authored the opinion of the Court, in which CHIEF
JUSTICE BALES, VICE CHIEF JUSTICE PELANDER, and JUSTICES
BRUTINEL, BOLICK, GOULD, and LOPEZ joined.
JUSTICE TIMMER, opinion of the Court:
¶1 Rule 85(A) of the Arizona Rules of Family Law Procedure
authorizes the family court to correct a clerical error in a judgment at any
time. We hold that an order granting or denying a motion filed pursuant
to Rule 85(A) is a “special order made after final judgment” under A.R.S.
§ 12-2101(A)(2), which confers jurisdiction on the court of appeals to decide
whether the ruling was correct.
BACKGROUND
¶2 Francene Laverne Vincent and Patrick Jude Shanovich
divorced in 2002. During the marriage, Shanovich worked for the City of
Mesa and contributed to the Arizona State Retirement System (“ASRS”).
The dissolution decree awarded Vincent “a one-half (1/2) portion of
[Shanovich’s] retirement including employer contribution and accrued
interest as of the date of filing the Petition for Dissolution,” to be reflected
in “a Qualified Domestic Relations Order [(“QDRO”)] stating such
provisions.”
¶3 The parties stipulated to entry of a QDRO in 2004. But the
QDRO did not tie the calculation of Vincent’s retirement benefits to the
petition filing date, August 25, 2000, as required by the decree. Instead, it
provided that “[Vincent] is awarded 50% of [Shanovich’s] annuity, payable
at the time and in the manner payments are made to the member pursuant
to the retirement benefit elected.” Conversely, the QDRO stated that if
Shanovich withdrew from ASRS or died before retirement, Vincent would
receive 50% of the account balance or death benefit “as of August 25, 2000”
plus interest. Neither party appealed.
¶4 Shanovich discovered the discrepancy between the decree
and the QDRO as he prepared to retire from the City in 2015. He learned
from ASRS that the QDRO entitled Vincent to one-half of his total pension
upon retirement rather than one-half of his pension earned as of August 25,
2000, as set forth in the decree.
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VINCENT v. SHANOVICH
Opinion of the Court
¶5 Pursuant to Rule 85(A), which empowers a family court to
correct clerical errors “at any time” after judgment is entered, Shanovich
moved to replace the QDRO with one that complies with the decree. The
court denied the motion, reasoning that the decree and QDRO were “clear
and unambiguous” and because no appeal had been taken, the court could
not “consider extrinsic evidence regarding claims of clerical error.”
Shanovich timely appealed.
¶6 The court of appeals dismissed Shanovich’s appeal for lack of
jurisdiction. Vincent v. Shanovich, 1 CA-CV 16-0431, 2017 WL 1174317, at *1
¶ 1 (Ariz. App. Mar. 30, 2017) (mem. decision). It reasoned that Shanovich’s
motion “attacked the merits of the QDRO and thus failed to assert any
issues that could not have been raised in a timely appeal” from the QDRO.
Id. at *2 ¶ 8. We accepted review to clarify the court of appeals’ jurisdiction
over Rule 85(A) rulings. We have jurisdiction pursuant to article 6, section
5(3), of the Arizona Constitution and A.R.S. § 12-120.24.
DISCUSSION
I.
¶7 Absent a pertinent provision in the Arizona Constitution,
appellate jurisdiction is governed entirely by statute. Musa v. Adrian, 130
Ariz. 311, 312 (1981). Whether the court of appeals correctly dismissed
Shanovich’s appeal for lack of jurisdiction is a legal issue we review de
novo. See Bilke v. State, 206 Ariz. 462, 464 ¶ 10 (2003).
II.
A.
¶8 Before deciding whether the court of appeals has jurisdiction
over the family court’s order here, it is useful to distinguish between clerical
errors and judgmental errors. A clerical error occurs when the written
judgment fails to accurately set forth the court’s decision. See Ace Auto.
Prods., Inc. v. Van Duyne, 156 Ariz. 140, 142–43 (App. 1987) (addressing Ariz.
R. Civ. P. 60(a), the civil counterpart to Rule 85(A)). The error is inadvertent
and may be a misstatement or an omission. See Ariz. R. Fam. Law P. 85(A)
(describing clerical mistakes as those “arising from oversight or omission”).
A judgmental error occurs when the court’s decision is accurately set forth
but is legally incorrect. See Egan-Ryan Mech. Co. v. Cardon Meadows Dev.
Corp., 169 Ariz. 161, 166 (App. 1990); Ace Auto. Prods., 156 Ariz. at 142–43.
The family court can correct clerical errors at “any time” pursuant to Rule
85(A). But the court may correct judgmental errors only within limited time
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VINCENT v. SHANOVICH
Opinion of the Court
frames under Rules 83 (new trial/amended judgment), 84
(reconsideration/clarification), and 85(C) (mistake, etc.). When clerical
error is asserted, the family court should examine the record to determine
whether the judgment accurately recorded the court’s intent. If not, the
judgment should be corrected. See Ariz. R. Fam. Law P. 85(A).
B.
¶9 The court of appeals has jurisdiction pursuant to A.R.S. § 12-
2101(A)(2) if the family court’s order denying Shanovich’s Rule 85(A)
motion is a “special order made after final judgment.” An order falls within
this provision if two requirements are met. First, the issues raised on appeal
from the order must be different from those that could have been raised on
appeal from the underlying judgment. See Reidy v. O’Malley Lumber Co., 92
Ariz. 130, 136 (1962); Arvizu v. Fernandez, 183 Ariz. 224, 226–27 (App. 1995).
“This requirement prevents a delayed appeal from the judgment, and also
prevents multiple appeals raising the same issues.” Arvizu, 183 Ariz. at 227.
Second, to avoid “innumerable appeals of anything denominated an
‘order,’” the order must either affect the judgment or relate to its
enforcement. Id. (“[A]n order that is merely ‘preparatory’ to a later
proceeding that might affect the judgment or its enforcement is not
appealable.”).
¶10 The family court’s order satisfies both requirements. The
issue raised on appeal from the family court’s order — whether the QDRO
contains a clerical error warranting correction — could not have been raised
in a prior, timely appeal. Instead, whether the QDRO has a clerical error
first had to be raised and decided by the family court. See Ariz. R. Civ. App.
P. 13(a)(7)(B) (requiring appellant’s opening brief to specify where in the
record “the particular issue was raised and ruled on”); Crowe v. Hickman’s
Egg Ranch, Inc., 202 Ariz. 113, 116 ¶ 16 (App. 2002) (stating that the failure
to raise an issue to the superior court waives the argument on appeal). That
did not occur until Shanovich filed a motion under Rule 85(A). Thus, we
are not confronted with a delayed or successive appeal, which Reidy and its
progeny sought to avoid. See Reidy, 92 Ariz. at 136; Arvizu, 183 Ariz. at 227.
¶11 The family court’s order also affects the QDRO and its
enforcement. See Arvizu, 183 Ariz. at 227. Absent correction of the QDRO,
it will be used to provide Vincent with a share of Shanovich’s pension
benefits that apparently conflicts with the family court’s intent as expressed
in the dissolution decree.
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VINCENT v. SHANOVICH
Opinion of the Court
¶12 The court of appeals misperceived the correct jurisdictional
inquiry. Specifically, it reasoned that its jurisdiction turned on whether
Shanovich’s motion sought to correct a clerical error or a judgmental error.
See Vincent, 1 CA-CV 16-0431, 2017 WL 1174317 at *2 ¶¶ 8, 10. Because the
court determined that Shanovich raised the latter challenge, which could
have been asserted in a prior appeal, it dismissed the appeal for lack of
jurisdiction. Id. Consequently, the court confusingly decided the merits of
the Rule 85(A) motion in concluding it lacked jurisdiction to decide its
merits. Id. at *2 ¶ 10 (“[A]lthough [Shanovich’s] motion to set aside was
couched in terms of ‘clerical mistake’ . . . the motion essentially challenged
the merits of the QDRO . . . .[And so] we lack jurisdiction to consider his
appeal . . . .”). Because rulings on Rule 85(A) motions are special orders
after judgment under § 12-2101(A)(2), the court of appeals has jurisdiction
to decide a timely appeal from the family court’s denial of a Rule 85(A)
motion to correct a clerical error. The court of appeals should determine
whether the family court erred in finding the error was judgmental and not
clerical. If the court of appeals concludes that clerical error exists, it should
reverse and remand for the family court to correct the error. If it concludes
that the error asserted is judgmental, it should affirm the denial of the
Rule 85(A) motion.
III.
¶13 The only issue before this Court is whether the court of
appeals has jurisdiction to decide whether the family court correctly denied
Shanovich’s Rule 85(A) motion. We hold it does and, at Shanovich’s
request, we remand to the court of appeals to address the merits of the
appeal. In doing so, the court should consider whether the QDRO
accurately reflects the family court’s intent expressed in the dissolution
decree to award Vincent a one-half portion of Shanovich’s retirement “as of
the date of filing the Petition for Dissolution.” The court is not bound on
remand by conclusions reached in its first decision.
CONCLUSION
¶14 We vacate the court of appeals’ decision and remand for
consideration of the appeal. We deny Vincent’s request for attorney fees.
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