KOTORA v. FRANCO
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NOTICE: NOT FOR PUBLICATION.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:
EMILY MARIE KOTARA, Petitioner/Appellee,
v.
RICHARD DUEY FRANCO, Respondent/Appellant.
No. 1 CA-CV 12-0604
FILED 12-17-2013
Appeal from the Superior Court in Maricopa County
No. FC2006-005253
The Honorable Christopher T. Whitten, Judge
AFFIRMED IN PART; REVERSED AND REMANDED IN PART
COUNSEL
Fromm Smith & Gadow, P.C., Phoenix
By Stephen R. Smith, James L. Cork II
Counsel for Petitioner/Appellee
Escolar Law Office, Phoenix
By M. Philip Escolar
Counsel for Respondent/Appellant
KOTARA v. FRANCO
Decision of the Court
DECISION ORDER
Presiding Judge Peter B. Swann delivered the decision of the Court, in
which Judge Patricia K. Norris and Judge Samuel A. Thumma joined.
S W A N N, Judge:
¶1
This appeal was considered by Presiding Judge Peter
B. Swann and Judges Patricia K. Norris and Samuel A. Thumma during a
regularly scheduled conference held on October 15, 2013.
After
consideration, and for the reasons that follow,
¶2
IT IS ORDERED reversing and remanding the dismissal of
Richard Duey Franco’s (“Father[’s]”) request to modify child support,
affirming the dismissal of Father’s request to modify child custody and
parenting time, and affirming the award of attorney’s fees and costs to
Emily Marie Kotara (“Mother”).
¶3
Father and Mother are the divorced parents of two children,
an older son and a younger daughter. In February 2012, Father filed a
petition by which he sought modification of custody, parenting time, and
child support. Father requested modification of custody and parenting
time of the parties’ daughter based on allegations that Mother set a poor
moral example for the daughter with respect to premarital respect and
religion, disparaged the daughter, and acted irresponsibly by allowing the
daughter to obtain a navel piercing, travel to another state without
Father’s permission, and drive a car at age 14. Father sought modification
of child support based on the son’s 18th birthday and high school
graduation.
¶4
Mother filed a “Motion to Dismiss” in which she admitted
that she had allowed the parties’ daughter to pierce her navel, travel out
of state without Father’s permission, and learn to drive. Mother further
confirmed that the parties’ daughter continued to attend a church of a
faith different from Father’s, and she admitted that she had previously
allowed her oldest son (by another father) to reside in her home with his
girlfriend. Mother argued that these facts did not amount to changed
circumstances warranting modification of child custody or parenting time
of the daughter. She admitted, however, that the parties’ son was an 18-
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KOTARA v. FRANCO
Decision of the Court
year-old high school graduate who was “no longer subject to this court
order.”
¶5
In an unsigned minute entry filed on May 15, the superior
court granted Mother’s motion to dismiss and her request for attorney’s
fees and costs. The court denied Father’s subsequent motion for findings
of fact and conclusions of law on June 20. On June 25, Father filed a
“Request for Relief from Ruling.” Citing ARFLP 85(C)(1), Father argued
that the emancipation of the parties’ son was undisputed and “to the
extent [the] petition did not properly highlight or emphatically address
the age-of-majority issue, . . . it was a simple inadvertent oversight that
resulted in the custody issues overshadowing the support issues.” Father
did not challenge the dismissal of his claims for modification of child
custody and parenting time, but he requested that the award of fees and
costs to Mother be stayed pending full adjudication of the petition.
¶6
On July 5, the court entered a signed judgment awarding
Mother approximately $3,000 in attorney’s fees and costs. Father filed a
notice of appeal on July 27. A little over a week later, on August 7, the
court entered a minute entry by which it purported to partially grant
Father’s Request for Relief from Ruling by vacating the dismissal of
Father’s claim to modify child support. The court set the child support
matter for a status conference that it later stayed pending resolution of this
appeal.1 Father’s arguments on appeal are limited to the dismissal of his
child support claim and the award of fees and costs to Mother.
¶7
We have jurisdiction to consider this appeal under A.R.S.
§ 12-2101, and it is not moot. When a motion that extends the time for
appeal under ARCAP 9(b) is pending before the superior court, a notice of
appeal does not divest the superior court of jurisdiction. Craig v. Craig,
227 Ariz. 105, 107, ¶ 13, 253 P.3d 624, 626 (2011). But a motion for relief
from judgment under ARFLP 85(C) is not a time-extending motion. See
ARCAP 9(b). When an appeal has been perfected, the superior court lacks
jurisdiction to rule on a motion for relief from judgment absent
suspension or dismissal of the appeal. See Burkhardt v. Burkhardt, 109 Ariz.
419, 421, 510 P.2d 735, 737 (1973); Budreau v. Budreau, 134 Ariz. 539, 540-41,
658 P.2d 192, 193-94 (App. 1982); In re Estate of Condry, 117 Ariz. 566, 567The superior court’s stay order is not a part of the record before us. But
because the order is available in the superior court’s records, we take
judicial notice of it. See Ariz. R. Evid. 201; In re Sabino R., 198 Ariz. 424,
425, ¶ 4, 10 P.3d 1211, 1212 (App. 2000).
1
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KOTARA v. FRANCO
Decision of the Court
68, 574 P.2d 54, 55-56 (App. 1977). Here, jurisdiction never revested in the
superior court after Father filed his timely notice of appeal. The superior
court’s post-appeal ruling on Father’s Request for Relief from Ruling was
a nullity.2
¶8
The parties do not dispute, and we agree, that Father’s claim
for child support modification should have been resolved on the merits.
For purposes of child support, a child generally emancipates upon turning
18 years old or upon turning 19 years old if he or she is still attending high
school. A.R.S. §§ 25-320(F), -501(A), -503(O)(2). In the proceedings before
the superior court, the parties agreed that their son had turned 18, had
graduated from high school, and was no longer covered by the child
support order. Father properly applied to the court for modification of his
non-allocated obligation to provide child support to the parties’ children.
See Guerra v. Bejarano, 212 Ariz. 442, 444, ¶ 11, 133 P.3d 752, 754 (App.
2006). Summary dismissal of the application was error.
¶9
Father further contends that the superior court erred by
awarding attorney’s fees and costs to Mother. The award was necessarily
made under A.R.S. § 25-324(B) (rather than § 25-324(A)) because the court
was not provided information regarding the parties’ financial resources.
Section 25-324(B) provides that the court shall award reasonable attorney’s
fees and costs when it finds that a petition was filed in bad faith, filed for
an improper purpose, or not grounded in fact or based on law. We review
an award of attorney’s fees and costs for abuse of discretion. Gutierrez v.
Gutierrez, 193 Ariz. 343, 351, ¶ 32, 972 P.2d 676, 684 (App. 1998).
The Request for Relief from Ruling cannot be considered a timeextending motion for new trial because Father did not refer to the rule
governing new trial and the court did not indicate that it considered the
motion as one for new trial. See Farmers Ins. Co. of Ariz. v. Vagnozzi, 132
Ariz. 219, 221-22, 644 P.2d 1305, 1307-08 (1982).
2
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KOTARA v. FRANCO
Decision of the Court
¶10
Father argues that the award was unjustified because his
claim to modify child support should have proceeded. But though
Mother asked for dismissal of Father’s petition “in its entirety,” she
contested only his claims for modification of child custody and parenting
time of their daughter -- she immediately and unequivocally agreed that
their son had emancipated. The superior court did not abuse its discretion
by finding that Mother was entitled under § 25-324(B) to recover the
attorney’s fees and costs that she incurred in successfully defending
against the contested claims. In the exercise of our discretion, we deny
both parties’ requests for attorney’s fees and costs on appeal.
:mjt
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