Hernandez v. Athey

                               IN THE
            ARIZONA COURT OF APPEALS
                            DIVISION ONE


                          In re the Matter of:

        MIGUEL ANTHONY HERNANDEZ, Petitioner/Appellant,

                                   v.

             LINDSEY MARIE ATHEY, Respondent/Appellee.

                       No. 1 CA-CV 22-0660 FC
                            FILED 12-21-2023


          Appeal from the Superior Court in Maricopa County
                         No. FC2011-002285
                The Honorable Glenn A. Allen, Judge

                             DISMISSED


                              COUNSEL

Cantor Law Group PLLC, Phoenix
By Nicholas Boca, Amanda Szpakowski
Counsel for Petitioner/Appellant

Schmillen Law Firm PLLC, Scottsdale
By James R. Schmillen, Erica Leavitt
Counsel for Respondent/Appellee
                         HERNANDEZ v. ATHEY
                          Opinion of the Court



                                 OPINION

Presiding Judge James B. Morse Jr. delivered the opinion of the Court, in
which Judge Cynthia J. Bailey and Judge Brian Y. Furuya joined.


M O R S E, Judge:

¶1             This appeal stems from a September 2022 superior court order
modifying parenting time and decision-making authority.1 In its order
resolving those issues, the superior court also determined that Mother was
entitled to attorney fees incurred for a portion of the litigation and ordered
Mother to submit a fee application.2 Pursuant to Arizona Rule of Family
Law Procedure ("ARFLP" or "Rule") 78(b), the court certified the entire
September 2022 order, including Mother's entitlement to attorney fees
("entitlement decision"), as a "final judgment" for which there was "no just
reason for delay." See ARFLP 78(b). Father appealed from the September
2022 order and raises arguments about the entitlement decision. Because
an award of attorney fees is a single claim, the superior court improperly
certified the entitlement decision as a separate appealable order.

                               DISCUSSION

¶2             Appellate jurisdiction is defined and limited by statute.
Moreno v. Beltran, 

 (App. 2020). If we lack appellate
jurisdiction, an appeal cannot proceed. Jessicah C. v. Dep't of Child Safety,

, 205, ¶ 8 (App. 2020).

¶3             We have an independent duty to examine whether
jurisdiction exists over matters on appeal. Ghadimi v. Soraya, 

 (App. 2012). "[W]ith certain exceptions, jurisdiction of appeals is
limited to final judgments which dispose of all claims and all parties. Public




1      We have addressed Father's other arguments in a separate
unpublished memorandum decision issued simultaneously with this
opinion. See Hernandez v. Athey, 1 CA-CV 22-0660 FC (Ariz. App. Dec. 21,
2023) (mem. decision); Ariz. R. Sup. Ct. 111(b), (h).
2      The record on appeal does not include any judgment as to all claims,
issues, and parties.


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                           HERNANDEZ v. ATHEY
                            Opinion of the Court

policy is against deciding cases piecemeal." Musa v. Adrian, 

 (1981).

¶4           One such exception is Rule 78(b), which provides for an
appealable judgment before "all of the claims pending before the court have
been resolved," Natale v. Natale, 

 (App. 2014), if "the
court expressly determines there is no just reason for delay and recites that
the judgment is entered under" ARFLP 78(b).

¶5              But Rule 78(b) certification is improper for an unresolved or
partially resolved claim. See In re Marriage of Chapman, 

, 43, ¶ 10
(App. 2021) ("[T]he inclusion of Rule 78 language alone does not make a
judgment final and appealable; 'the certification also must be substantively
warranted.'" (quoting Sw. Gas Corp. v. Irwin, 

 (App.
2012))); see also Gold v. Helvetica Servicing, Inc., 

 (App.
2012) ("A trial court's [Ariz. R. Civ. P.] 54(b) determination will not render
an unadjudicated claim appealable.").3 "[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, 

 (1981) (quoting Curtiss-Wright Corp. v. Gen.
Elec. Co., 

 (1980)).

¶6             In several memorandum decisions, our Court has found we
lack appellate jurisdiction over an award of attorney fees alone despite a
Rule 78(b) certification of the entitlement decision. See Milham v. Milham, 1
CA-CV 21-0581 FC, 

, at *1, ¶ 6 (Ariz. App. June 2, 2022)
(mem. decision) ("Husband's notice of appeal is premature and a nullity
because he filed it before the superior court entered its order resolving the
attorneys' fees award."); Moore v. Moore, 1 CA-CV 18-0786 FC, 

, at *3, ¶ 14 (Ariz. App. Sept. 24, 2019) (mem. decision) (finding
appellant filed his appeal after judgment on the petition but before
judgment on the attorney fees and the court was without jurisdiction over
the fees issue); Woehler v. Stough, 1 CA-CV 17-0264 FC, 

, at
*3, ¶ 11 (Ariz. App. Mar. 22, 2018) (mem. decision) ("Husband's notice of
appeal relating to Wife's attorneys' fees was premature."); McManus v.
Hagen, 2 CA-CV 2016-0166, 

, at *2, ¶ 6 (Ariz. App. Mar. 8,
2017) (mem. decision) ("McManus did not file another amended notice after
the entry of final judgment. Accordingly, McManus's premature notice of
appeal was a nullity over which we lack jurisdiction."); Grubb v. Thrailkill, 1

3      See Natale, 

, ¶ 11 n.2 (noting that cases interpreting
Ariz. R. Civ. P. 54(b) also apply to Rule 78(b)).


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                         HERNANDEZ v. ATHEY
                          Opinion of the Court

CA-CV 15-0761 FC, 

, at *3, ¶ 10 (Ariz. App. Sept. 15, 2016)
(mem. decision) (finding the court lacked jurisdiction to consider the
attorney-fees issue after the appealed order resolved only the entitlement
to attorney fees). Those cases correctly determined that we lacked appellate
jurisdiction but failed to address the Rule 78(b) certification's validity.

¶7            As with Ariz. R. Civ. P. 54(b), Rule 78(b) allows "an
accommodation between the policy against piecemeal appeals and the
problems that have arisen under the liberalized joinder of claims" in one
suit. Cont'l Cas., 130 Ariz. at 191 (cleaned up) (quoting Stevens v. Mehagian's
Home Furnishings, Inc., 

 (1961)). Although Rule 78(b) allows
the court to certify fully resolved claims for appeal when other claims
remain unresolved, Rule 78(b) does not permit appeal of an unresolved
claim. Pursuant to Rule 78(b), a claim for attorney fees is "considered a
separate claim from the related judgment regarding the merits of the
action." ARFLP 78(b). Finding a party is entitled to attorney fees, without
awarding a specific amount, does not allow certification under Rule 78(b)
because the claim is not fully resolved.

¶8            The entitlement decision can precede the fees award, but they
remain two components of a single "claim" for attorney fees. See ARFLP
78(e)(2)–(3) (describing a "claim" for fees and requiring supporting fee
affidavits and a judgment with a fee determination). Until the court makes
the entitlement decision and awards an amount, the court cannot certify
any portion of the attorney-fees claim under Rule 78(b). See Ghadimi, 230
Ariz. at 623–24, ¶ 13 (determining the attorney-fees award is a discretionary
decision and not a ministerial act that might excuse a premature notice of
appeal).

¶9              By certifying the attorney-fees claim under Rule 78(b), the
judgement here improperly bifurcated the entitlement decision from a later
determination of the fees award. Parties may appeal an award of attorney
fees only when the entire claim has been resolved. Thus, even though the
court certified the entitlement decision under Rule 78(b), we lack
jurisdiction to consider that issue. See In re Marriage of Chapman, 251 Ariz.
at 43, ¶ 13 (dismissing appeal for lack of jurisdiction despite Rule 78(b)
certification).




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                        HERNANDEZ v. ATHEY
                         Opinion of the Court

                             CONCLUSION

¶10         We dismiss Father's appeal of the portion of the court's order
finding Mother was entitled to an attorney-fees award.




                          AMY M. WOOD • Clerk of the Court
                          FILED: AA




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