ARCHIBALD v. ARCHIBALD

 Annotate this Case
Download PDF
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION TWO In re the Marriage of: RUTH ANN ARCHIBALD, Petitioner/Appellee, and STEPHEN V. ARCHIBALD, Respondent/Appellant. ) ) ) ) ) ) ) ) ) ) ) ) FILED BY CLERK MAY 15 2012 COURT OF APPEALS DIVISION TWO 2 CA-CV 2011-0192 DEPARTMENT A MEMORANDUM DECISION Not for Publication Rule 28, Rules of Civil Appellate Procedure APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY Cause No. D20044077 Honorable Frederic J. Dardis, Judge Pro Tempore DISMISSED Stolar & Pollins, P.C. By Merle L. Stolar Law Offices of Carl D. Macpherson By Carl D. Macpherson Tucson Attorneys for Petitioner/Appellee Tucson Attorney for Respondent/Appellant H O W A R D, Chief Judge. ¶1 Appellant Stephen Archibald appeals from the trial court s October 2011 denial of his request to modify spousal maintenance awarded to appellee Ruth Ann Archibald in the decree dissolving their marriage entered in April 2006, and its denial of his motion to reconsider. Because we do not have jurisdiction, we dismiss. Factual and Procedural Background ¶2 Ruth Ann filed a petition for dissolution of marriage without children in November 2004. After a bench trial, the trial court ordered Stephen to pay Ruth Ann spousal maintenance in the amount of $2,500 per month. In 2011, Stephen filed a request to modify that amount and Ruth Ann responded, objecting to the requested modification and seeking her attorney fees. After holding a hearing, the court issued a ruling on October 21, denying Stephen s request. Stephen subsequently filed a motion for reconsideration, which the court denied on November 3, 2011. ¶3 On November 14, 2011, Stephen filed a notice of appeal from the trial court s ruling denying his request for modification of spousal maintenance and motion to reconsider. On November 28, 2011, the trial court issued a ruling awarding Ruth Ann costs and attorney fees in the amount of $5,000, stating the court will sign this ruling in lieu of a formal judgment. It also entered a final judgment on December 8, 2011. Stephen did not file another notice of appeal. Discussion ¶4 Stephen does not cite any authority for our jurisdiction over this appeal, as required under Rule 13(a)(3), Ariz. R. Civ. App. P. However, we have an independent duty to determine whether we have jurisdiction. Sorensen v. Farmers Ins. Co. of Ariz., 191 Ariz. 464, 465, 957 P.2d 1007, 1008 (App. 1997). Our jurisdiction is prescribed by statute, and we have no authority to entertain an appeal over which we do not have 2 jurisdiction. See Hall Family Props., Ltd. v. Gosnell Dev. Corp., 185 Ariz. 382, 386, 916 P.2d 1098, 1102 (App. 1995). And [w]herever the language in [the Arizona Rules of Family Law Procedure] is substantially the same as the language in other statewide rules, the case law interpreting that language will apply. . . . Ariz. R. Fam. Law P. 1 cmt. ¶5 Section 12-2101(A)(1) vests jurisdiction in this court [f]rom a final judgment. Generally we do not have jurisdiction over an appeal unless a judgment has disposed of all claims of all parties. Musa v. Adrian, 130 Ariz. 311, 312, 636 P.2d 89, 90 (1981). If an order does not adjudicate all claims among all parties it is not appealable unless it satisfies the requirements of Rule 78(B), Ariz. R. Fam. Law P. See Musa, 130 Ariz. at 313, 636 P.2d at 91 (interpreting Rule 54(b), Ariz. R. Civ. P.). Compare Ariz. R. Fam. Law P. 78(B), with Ariz. R. Civ. P. 54(b). Rule 78(B) only applies if the trial court enters a final judgment upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. Further, under Rule 78(B), a claim for attorneys fees may be considered a separate claim from the related judgment regarding the merits of a cause. Unless only ministerial acts remain to be performed, a notice of appeal filed in the absence of a final judgment . . . is ineffective and a nullity. Craig v. Craig, 227 Ariz. 105, ¶ 13, 253 P.3d 624, 626 (2011), quoting Smith v. Ariz. Citizens Clean Elections Comm n, 212 Ariz. 407, ¶ 39, 132 P.3d 1187, 1195 (2006). ¶6 Here, Stephen filed the notice of appeal after the trial court issued rulings denying his request to modify spousal maintenance and motion for reconsideration. However, the court had not addressed Ruth Ann s pending request for attorney fees in 3 either of these rulings. Thus, neither of the October 21 and November 3 rulings were final appealable judgments. And, because substantive issues remained to be resolved, the notice of appeal was a nullity. See Craig, 227 Ariz. 105, ¶ 13, 253 P.3d at 626. We therefore do not have jurisdiction over the appeal. See § 12-2101(A)(1); Musa, 130 Ariz. at 312, 636 P.2d at 90. Conclusion ¶7 For the foregoing reasons, we dismiss for lack of jurisdiction. Ruth Ann requests an award of costs and attorney fees pursuant to A.R.S. § 25-324, and Rule 21, Ariz. R. Civ. App. P. Section 25-324 requires us to examine the financial resources of both parties and the reasonableness of the positions each party has taken throughout the proceedings. The trial court found that Stephen had more resources than Ruth Ann and should be required to pay some of her attorney fees. And Stephen attempted to appeal prematurely, causing an invalid appeal. Accordingly, we will award Ruth Ann some portion of her fees, after she complies with Rule 21. /s/ Joseph W. Howard JOSEPH W. HOWARD, Chief Judge CONCURRING: /s/ Peter J. Eckerstrom PETER J. ECKERSTROM, Presiding Judge /s/ J. William Brammer, Jr. J. WILLIAM BRAMMER, JR., Judge 4

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.