IN RE MARRIAGE OF FLOREZ & MUNOZ (pdf)

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IN THE ARIZONA COURT OF APPEALS DIVISION TWO IN RE THE MARRIAGE OF ANGELICA FLOREZ, Appellee, and TABER MUNOZ, Appellant. No. 2 CA-CV 2023-0042-FC Filed October 25,2023 THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. NOT FOR PUBLICATION See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Civ. App. P. 28(a)(1), (f). Appeal from the Superior Court in Pima County No. D20183528 The Honorable John J. Assini, Judge Pro Tempore APPEAL DISMISSED COUNSEL Karp & Weiss P.C., Tucson By Jennifer Manzi Counsel for Appellee Taber Munoz, Tucson In Propria Persona IN RE MARRIAGE OF FLOREZ & MUNOZ Decision of the Court MEMORANDUM DECISION Judge Kelly authored the decision of the Court, in which Presiding Judge Brearcliffe and Judge Eckerstrom concurred. K E L L Y, Judge: ¶1 Taber Munoz appeals from the superior court’s child support order and denial of his motion for clarification of that order. Because we conclude we lack jurisdiction, we dismiss the appeal. Factual and Procedural Background ¶2 In 2019, the superior court entered a consent decree dissolving Munoz’s marriage to Angelica Florez. As part of the decree and child support order, the court determined a deviation from the child support guidelines was appropriate and ordered that neither party was required to pay support for their three children. ¶3 In November 2022, Munoz filed a petition for modification of child support, and the superior court ordered a hearing on the petition. During the hearing, the parties disputed how their respective incomes would be determined for purposes of the child support calculation. The court ordered both parties to submit additional financial information and took the issue under advisement. On January 6, 2023, the court ordered Munoz to pay child support in the amount of $590 per month and certified the order as a final, appealable judgment under Rule 78(c), Ariz. R. Fam. Law P. ¶4 On January 20, 2023, Munoz filed a “Motion for Clarification,” asserting it had been “agreed upon that overtime would not be” included in the child support calculation and requesting that the superior court “review the child support amount.”1 See Ariz. R. Fam. Law P. 84. On 1Munoz titled his motion as one for clarification, but did not specifically cite Rule 84, Ariz. R. Fam. Law P. To the extent the lack of citation creates any confusion as to the basis for the motion, however, we note that Rule 84(d) prohibits a party from combining a motion for clarification with a motion for altering or amending a judgment under Rule 2 IN RE MARRIAGE OF FLOREZ & MUNOZ Decision of the Court February 6, 2023, the court denied the motion. On February 13, 2023, Munoz filed a notice of appeal identifying both the child support order and denial of his motion for clarification. On appeal, Munoz reiterates the same argument he made in his motion for clarification—that the court erroneously included his overtime earnings in its child support calculation. Analysis ¶5 Although neither party raises the issue, we have “an independent duty to examine whether we have jurisdiction over matters on appeal.” Camasura v. Camasura, 238 Ariz. 179, ¶ 5 (App. 2015). When we determine that we do not have jurisdiction, “we have no authority to entertain an appeal.” In re Marriage of Johnson & Gravino, 231 Ariz. 228, ¶ 5 (App. 2012). ¶6 After a final judgment entered pursuant to Rule 78(c), Ariz. R. Fam. Law P., a party must file a notice of appeal “no later than 30 days after entry of the judgment.” Ariz. R. Civ. App. P. 9(a). A motion for clarification does not extend the time for filing a notice of appeal. Ariz. R. Fam. Law P. 84(b). Here, the superior court’s January 6 child support order contained the appropriate finality language, stating that “no further matters . . . remain[ed] pending” and certifying the order as a “final judgment . . . for the purpose of an appeal” pursuant to Rule 78(c). Because Munoz did not file his notice of appeal within the rule’s timeframe, we lack jurisdiction to consider an appeal from the final judgment. See Ariz. R. Civ. App. P. 9(a). ¶7 We further conclude that we lack jurisdiction to review the denial of Munoz’s “Motion for Clarification.” A party may appeal “[f]rom any special order made after final judgment.” A.R.S. § 12-2101(A)(2). However, “[t]o be appealable, a special order after judgment must raise different issues than those that would be raised by appealing the underlying judgment.” In re Marriage of Dorman, 198 Ariz. 298, ¶ 3 (App. 2000). “This requirement prevents a delayed appeal from the judgment, and also prevents multiple appeals raising the same issues.” Arvizu v. Fernandez, 183 Ariz. 224, 227 (App. 1995). ¶8 A motion under Rule 84(a), Ariz. R. Fam. Law P., asks “the court to clarify a ruling if the ruling is confusing or is susceptible to more than one reasonable interpretation.” And, in ruling on a motion for 83, Ariz. R. Fam. Law P. clarification. We therefore treat the motion as one for 3 IN RE MARRIAGE OF FLOREZ & MUNOZ Decision of the Court clarification, a court may not reopen the judgment, is limited to clarifying the existing ruling, and must rule without resort to any additional evidence. Ariz. R. Fam. Law P. 84(a), (d). A ruling on such a motion cannot, therefore, within the scope of the rule, meet the standard for an appealable order under § 12-2101(A)(2). See Dorman, 198 Ariz. 298, ¶ 3. An appeal from the denial of a motion under that rule would therefore, by necessity, “present[] the same question as would be presented on an appeal from the judgment.” Reidy v. O’Malley Lumber Co., 92 Ariz. 130, 136 (1962). ¶9 Indeed, Munoz’s motion for clarification asked the superior court to clarify its inclusion of overtime payments in its child support calculation. He raises the same issue in this appeal, which purports to challenge both the ruling on that motion and the child support order, arguing “[t]he court should answer to the reasoning of including overtime and/or second job income when calculating child support.” Denial of the motion for clarification is therefore not independently appealable as a special order made after judgment, and we lack jurisdiction to review that ruling as well. See id. Attorney Fees and Costs ¶10 Florez requests her attorney fees and costs on appeal pursuant to A.R.S. § 25-324. In our discretion, we decline to award her attorney fees. See id. However, as the prevailing party, Florez is entitled to her costs on appeal upon compliance with Rule 21, Ariz. R. Civ. App. P. See A.R.S. § 12-341; see also Robinson v. Kay, 225 Ariz. 191, ¶ 8 (App. 2010) (appellee entitled to costs as prevailing party when appeal dismissed for lack of jurisdiction). Disposition ¶11 Because we lack jurisdiction, we dismiss the appeal. 4

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