Husband’s notice of appeal from divorce decree was premature, filed before the trial court resolved parenting time, legal decision-making, and attorney fee award in Arizona case summary.
In this Arizona divorce action, the wife filed her petition for dissolution of marriage with children in October 2012. The spouses had stipulated to a parenting plan. The court’s minute entry order dated March 12, 2014, did not rule on legal decision-making and parenting time (child custody), or the amount of attorney fees to be awarded. On April 4, husband filed his notice of appeal. On April 16, the court issued an advisory order stating that its March 12 order was “not intended to be final”; that the wife had lodged a proposed divorce decree; and that the time for husband to file objections was extended. On May 1, 2014, the court issued a decree of dissolution which included the substance of its March 12 order and rulings on legal decision-making, parenting time, and the attorney fee award. At no time did husband file a new or amended notice of appeal.
The appeal was dismissed for lack of jurisdiction. Husband’s notice of appeal was premature and ineffective. Furthermore, he failed to file a new or amended notice of appeal during the time allowed by law.
Premature Notice of Appeal Is Ineffective in Arizona Law
As a general jurisdictional matter, a notice of appeal is ineffective in Arizona law if filed before the trial court’s judgment is final. Appellate courts lack legal authority to review lower court decisions that are not final. There are two exceptions, however, that could save a prematurely filed notice of appeal:
- The Barassi exception; and
- Arizona Rules of Civil Appellate Procedure (ARCAP), Rule 9(c).
Court’s March 12 Order Was Not a Final Judgment
The first issue in the analysis is whether the judgment for which husband sought relief was final. The March 12 order was not a final judgment because, one, the court didn’t intend it to be its final decree. Two, the order did not determine the amount of attorney fees to be awarded. Three, the order did not specify legal decision-making and parenting time. And four, the order was not certified as final and appealable according to Arizona Rules of Family Law Procedure (ARFLP), Rule 78(B).
Arizona’s Narrow Barassi Exception Not Applicable
In determining whether it had jurisdiction, the Arizona Court of Appeals also looked at whether the Barassi exception to the requirement of a final judgment would save husband’s notice of appeal.
The narrow Barassi exception applies only when “‘no decision of the court could change and the only remaining task is merely ministerial.’” Citing Smith v. Ariz. Citizens Clean Elections Comm’n, 212 Ariz. 407, 132 P3d 1187 (Ariz. 2006); and Ghadimi v. Soraya, 230 Ariz. 621, 285 P3d 969 (Ariz. Ct. App. 2012).
Point one, determining the amount of attorney fees is not ministerial. It’s discretionary with the court. Point two, not resolving parenting time and legal decision-making, despite the parents’ stipulation to those terms, also prevented application of Barassi. The spouses’ stipulation to those child custody terms did not constitute final resolution of the parenting plan. The trial court must adopt and order the same based upon the best interests of the children, also not a ministerial act.
The trial court’s March 12 order did not fall within the slim Barassi exception. Barassi applies only where notice of appeal is filed after the trial court made its final decision, but had not yet entered the formal judgment. In every other instance, filing a premature notice of appeal is ineffectual and a nullity.
ARCAP Rule 9(c) Did Not Save Husband’s Notice of Appeal
Citing ARCAP Rule 9(c), husband posited that his April 4 notice of appeal should be treated as filed May 1 after the court entered its divorce decree. ARCAP Rule 9(c) states:
A notice of appeal or cross-appeal filed after the superior court announces an order or other form of decision – but before entry of the resulting judgment that will be appealable – is treated as filed on the date of, and after the entry of, the judgment.
Interpreting ARCAP Rule 9(c) to follow Rule 4(a)(2) of the Federal Rules of Appellate Procedure, the appellate court concluded that, because the March 12 order did not resolve all pending matters before the trial court, Rule 9(c) did not apply.
Dismissing husband’s appeal for lack of jurisdiction, the Arizona Court of Appeals instructed the parties on the better practice: “Husband should have filed another notice of appeal after entry of the Decree on May 1, 2014.” When in doubt, simply file a fresh request for appeal after the final judgment is entered.
Camasura v. Camasura, 1 CA-CV 14-0309 FC (August 27, 2015)
For precise language, read the court’s original opinion. Legal citations omitted.
To learn more, read about appealing the trial judge’s decision.