Opinion
2 CA-CV 2021-0131-FC
01-06-2023
In re the Marriage of Elma Norma Aboud, Petitioner/Appellee, and John Eli Aboud, Respondent/Appellant.
Fromm Smith & Gadow P.C., Phoenix By Stephen R. Smith and Christopher J. Torrenzano Counsel for Peitioner/Appellee Aboud &Aboud P.C., Tucson By John Eli Aboud In Propria Persona Law Office of Melissa Errico, Tucson By Melissa Errico and Berkshire Law Office PLLC, Tempe By Keith Berkshire and Alexandra Sandlin Counsel for Respondent/Appellant
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Pima County No. D20143041 The Honorable Patricia A. Green, Judge Pro Tempore
Fromm Smith & Gadow P.C., Phoenix By Stephen R. Smith and Christopher J. Torrenzano Counsel for Peitioner/Appellee
Aboud &Aboud P.C., Tucson By John Eli Aboud In Propria Persona
Law Office of Melissa Errico, Tucson By Melissa Errico and Berkshire Law Office PLLC, Tempe By Keith Berkshire and Alexandra Sandlin Counsel for Respondent/Appellant
Presiding Judge Eckerstrom authored the decision of the Court, in which Chief Judge Vasquez and Judge Cattani concurred.
MEMORANDUM DECISION
ECKERSTROM, Presiding Judge
¶1 John Aboud ("Husband") appeals from the trial court's rulings related to his motion for declaratory judgment in his ongoing dissolution of marriage proceeding. Specifically, Husband argues the court erred because it was required to hold an evidentiary hearing before ruling on his motion. And, he challenges the court's ruling over two years later striking his motion to withdraw the motion for declaratory judgment. For the reasons that follow, we dismiss this appeal for lack of jurisdiction.
Factual and Procedural Background
¶2 In 2014, Elma Aboud ("Wife") filed a petition to dissolve her marriage to John Aboud. In 2019, during the pendency of the dissolution action, Husband filed a motion for declaratory judgment. The motion requested that the trial court declare the parties' post-nuptial agreement (the "Agreement") valid, binding, and enforceable.
¶3 The trial court heard argument on Husband's declaratory- judgment motion midway through a hearing on his motion to modify spousal maintenance. The court denied the motion from the bench, specifically declining to hold "a separate trial on declaratory judgment" to consider the enforceability of the Agreement, in part because bifurcated trials are disfavored in Arizona.
¶4 Nearly two years later, Husband attempted to withdraw the motion for declaratory judgment. On Wife's motion, the trial court struck the motion to withdraw. Husband appealed from that order, as well as the court's denial of his motion for declaratory judgment, both of which were entered pursuant to Rule 78(b), Ariz. R. Fam. Law P.
On Husband's motion, we suspended this appeal and revested jurisdiction in the trial court to allow it to enter finality language, as required by Rule 78(b). The court then issued orders containing finality language on both the 2019 denial of declaratory judgment and the 2021 strike.
Discussion
¶5 Husband maintains we have jurisdiction over this appeal pursuant to A.R.S. § 12-2101(A)(1), (3), and (4). But nothing in § 12-2101, including the subsections Husband cites, provides us with jurisdiction over the attempted appeal.
Under § 12-2101(A)(1), (3), and (4), we may consider appeals from: (a) a final judgment entered in an action or special proceeding commenced in a superior court; (b) any order "affecting a substantial right made in any action when the order in effect determines the action and prevents judgment from which an appeal might be taken"; or (c) "a final order affecting a substantial right made in a special proceeding or on a summary application in an action after judgment."
¶6 To be appealable under § 12-2101(A)(1), a judgment must be final. Typically, the decree of dissolution constitutes the "final judgment" in a family law case for purposes of appellate jurisdiction under § 12-2101(A)(1). Yee v. Yee, 251 Ariz. 71, ¶ 2 &n.3 (App. 2021). However, Rule 78(b), Ariz. R. Fam. Law P., allows a trial court to certify a ruling as final even if other, separate claims in the proceeding remain pending. See Yee, 251 Ariz. 71, ¶ 11 ("For an appeal from a decree or a pre-decree order, it may be that a certification of finality would be required for such an order to become an appealable 'final judgment' under A.R.S. § 12-2101(A)(1).").
In August 2022, our supreme court adopted amendments to Rule 78. Ariz. Sup. Ct. Order R-22-0005 (Aug. 29, 2022). The amendments apply to "all cases pending in the superior courts and appellate courts on the filing date of this order," which includes the matter before us. Id. As relevant here, amended Rule 78(b) permits a trial court to "direct the entry of an appealable judgment as to one or more, but fewer than all, claims," but "only if the court expressly determines there is no just reason for delay and recites that the judgment is entered under Rule 78(b)."
¶7 Notwithstanding a trial court's certification that its ruling is appealable under Rule 78(b), such certification must be correct for us to exercise jurisdiction over an appeal. See Grand v. Nacchio, 214 Ariz. 9, ¶ 17 (App. 2006); see also Ariz. R. Fam. Law P. 1(c) ("If language in these rules is substantially the same as language in the civil rules, case law interpreting the language of the civil rules will apply to these rules."); Ariz. R. Civ. P. 54(b) (substantially similar to Rule 78(b) after 2022 amendment); Brumett v. MGA Home Healthcare, L.L.C., 240 Ariz. 420, ¶¶ 4-6 (App. 2016) (Ariz. R. Civ. P. 54(b)-(c) "define what constitutes an appealable 'final judgment'" under § 12-2101 (A)(1)). We review such certification for abuse of discretion. See Grand, 214 Ariz. 9, ¶ 17.
¶8 As relevant here, certification under Rule 78(b) does not provide us with jurisdiction to consider an appeal if the ruling does not dispose of at least one claim in a multi-claim action. Id. "[A] claim is separable from others remaining to be adjudicated when the nature of the claim already determined is 'such that no appellate court would have to decide the same issues more than once even if there are subsequent appeals.'" Cont'l Cas. v. Superior Court, 130 Ariz. 189, 191 (1981) (quoting Curtiss-Wright Corp. v. Gen. Elec. Co., 446 U.S. 1, 6 (1980)). Further, the trial court should "certify the order or judgment" as final under Rule 78(b) "only in those cases in which some hardship or injustice would result from a delay in entering a final judgment." S. Cal. Edison Co. v. Peabody W. Coal Co., 194 Ariz. 47, ¶ 19 (1999).
¶9 Here, the trial court applied Rule 78(b) language to both rulings in question, at least to some extent in response to our observation that the orders did not previously contain such language and we unquestionably lacked jurisdiction without it. Even with the inclusion of Rule 78(b) language, however, neither ruling is appealable under Rule 78.
¶10 Although the material question underlying Husband's motion for declaratory judgment-whether the Agreement is enforceable- arguably contains a separable claim as contemplated by Grand and Continental Casualty, the trial court's decision to defer consideration until the dissolution trial does not dispose of the issue on the merits. Rather, it defers resolution of the ultimate issues addressed in the Agreement, a decision squarely within the traditional purview of the trial court to regulate its own trial docket. See Powers Reinforcing Fabricators, L.L.C. v. Contes, 249 Ariz. 585, ¶¶ 17-18 (App. 2020) (recognizing "power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants" (quoting Landis v. N. Am. Co., 299 U.S. 248, 254 (1936))). We see nothing in this record that would justify our interference in the court's management of what is, ultimately, an interlocutory decision of when to resolve the issue raised by Husband. See Brumett, 240 Ariz. 420, ¶ 9 (legislature has made clear most interlocutory orders not appealable). Indeed, to exercise jurisdiction here would run afoul of the "public policy 'against deciding cases piecemeal,'" thus undermining judicial efficiency both here and in the still-pending trial court proceeding. Grand, 214 Ariz. 9, ¶ 16 (quoting Musa v. Adrian, 130 Ariz. 311, 312 (1981)). For the same reason, we can identify no hardship or injustice that arises from the mere delay of Husband's request to have the Agreement's validity considered, particularly when more than three years have already passed since that request was denied, without any evidence of ensuing hardship or injustice.
The record belies Husband's suggestion that the trial court's use of the term "denial" rather than "dismissal" of his motion somehow rose to a denial on the merits. Furthermore, at other times Husband also notes- correctly-that the ruling was not on the merits.
¶11 Likewise, the trial court's ruling striking Husband's motion to withdraw his motion for declaratory judgment is not appealable under Rule 78(b). Husband has made multiple attempts to litigate the enforceability of the Agreement below prior to trial. Were we to accept jurisdiction at this stage, we would risk deciding a claim that could plausibly reappear before us on appeal. See Cont'l Cas., 130 Ariz. at 191. For example, were we to find error in the court's ruling, Husband's motion to withdraw would remain pending. Nothing would prevent Husband from appealing from a subsequent denial of that motion or from filing a new motion to dismiss or to withdraw his motion for declaratory judgment, and again attempting to challenge those rulings on appeal, all during the pendency of the dissolution proceedings. In short, nothing about our policies supporting judicial economy, including those policies against piecemeal litigation and presiding over matters likely to recur on appeal from final judgment, favor accepting jurisdiction under § 12-2101(A)(1). See Grand, 214 Ariz. 9, ¶ 16.
¶12 We also lack jurisdiction under the plain language of § 12-2101(A)(3). That section provides that an appeal may be taken "[f]rom any order affecting a substantial right made in any action when the order in effect determines the action and prevents judgment from which an appeal might be taken." Neither ruling affected a substantial right of either party. Cordova v. City of Tucson, 15 Ariz.App. 469, 470-71 (1971) (grant of partial summary judgment decreeing city could take property by eminent domain did not affect substantial right that effectively determined action or prevented judgment); cf. Hill v. Alfalfa Seed &Lumber Co., 38 Ariz. 70, 71, 73, 76-77 (1931) (denial of primary contract holder's motion to intervene affected substantial right, including ability to mitigate indemnity expenses).
¶13 Additionally, the trial court's orders in no way determined the action, nor do they prevent judgment from which an appeal might be taken. See S. Cal. Edison, 194 Ariz. 47, ¶¶ 1, 21 (order compelling arbitration neither determines action nor prevents judgment from which appeal might be taken); Yaeger v. Vance, 20 Ariz.App. 399, 400 (1973) (same as to order granting mistrial); Hanania v. City of Tucson, 123 Ariz. 37, 38-39 (App. 1979) (order granting class action status "does not in effect determine the action"). As we have reasoned above, both parties retain the right to challenge the trial court's determination as to the Agreement's validity in an appeal upon resolution of the dissolution proceeding.
¶14 Section 12-2101(A)(4) likewise does not provide us with jurisdiction to consider either ruling. Under that subsection, appeal may be taken from "a final order affecting a substantial right made in a special proceeding or on a summary application in an action after judgment." Even assuming the rulings implicate some substantial right of the parties, the refusal to issue the requested declaratory judgment did not occur in a "special proceeding." See Proceeding, Black's Law Dictionary (11th ed. 2019) (special proceeding is one "that can be commenced independently of a pending action and from which a final order may be appealed immediately"). Nor is it "in an action after judgment." See, e.g., AEA Fed. Credit Union v. Yuma Funding, Inc., 237 Ariz. 105, ¶ 17 (App. 2015) (order denying motion to set aside appointment of receiver in loan action "is not and cannot be 'after judgment' where no judgment has yet entered"); MCA Fin. Grp., Ltd. v. Enter. Bank, 236 Ariz. 490, ¶¶ 1, 9-11 (App. 2014) (finding jurisdiction over trial court order that non-party must disgorge fees entered during pendency of court-managed loan default proceeding). The same reasoning applies to Husband's motion to strike. The objected-to orders pertain to standard pretrial litigation and do not fall within this subsection's special circumstances that would make jurisdiction appropriate.
Arguably, had the trial court entered a declaratory judgment as to the Agreement's enforceability, such judgment may have conferred jurisdiction under § 12-2101(A)(4), as the validity of a contract may be contested in an independent declaratory judgment action. See, e.g., A.R.S. § 12-1833. But here, no such judgment was entered. In any event, it would have been improper for Husband to have brought a separate action to consider the validity of the Agreement during the pendency of the dissolution proceedings. See Merritt-Chapman & Scott Corp. v. Frazier, 92 Ariz. 136, 139 (1962) ("It was never intended that the relief to be obtained under the Declaratory Judgment Act should be exercised for the purpose of trying issues involved in cases already pending.").
Attorney Fees Related to Notice of Withdrawal
¶15 Husband also challenges the trial court's award of attorney fees related to his notice of withdrawal of the motion for declaratory judgment. However, that fee request remains pending, as the court suspended finalizing the award during the pendency of this appeal. Therefore, no appealable ruling has been entered with respect to attorney fees and costs, and we will not consider Husband's complaint on that matter at this time.
¶16 Husband and Wife both request their attorney fees on appeal. Although we lack jurisdiction to consider this appeal, we may nevertheless enter an award for attorney fees and costs, at our discretion. See Carlson v. Carlson, 75 Ariz. 308, 311 (1953). Husband is not the prevailing party, and, by filing this appeal, he has imposed unnecessary and fruitless financial burdens on both parties. We therefore deny his request for fees. And, because we find unreasonable Husband's attempt to appeal, without explanation, from a ruling made more than three years ago, see A.R.S. § 25-324(B)(3), we award Wife her fees and costs on appeal, upon her compliance with Rule 21, Ariz. R. Civ. App. P. See A.R.S. § 12-341.
Disposition
¶17 For the foregoing reasons, we dismiss this appeal for lack of jurisdiction.