                                                                    FILED BY CLERK
                         IN THE COURT OF APPEALS                       NOV 20 2012
                             STATE OF ARIZONA
                                                                        COURT OF APPEALS
                               DIVISION TWO                               DIVISION TWO


In re the Marriage of:                )
                                      )
SILVIA FLORES,                        )              2 CA-CV 2012-0073
                                      )              DEPARTMENT B
                Petitioner/Appellant, )
                                      )              OPINION
          and                         )
                                      )
GILBERTO MARTINEZ,                    )
                                      )
               Respondent/Appellee. )
                                      )


           APPEAL FROM THE SUPERIOR COURT OF PINAL COUNTY

                              Cause No. DO200500361

                           Honorable Peter J. Cahill, Judge

                                  APPEAL DISMISSED


Underwood Law Office
 By Sonya E. Underwood                                                         Phoenix
                                                      Attorney for Petitioner/Appellant

Toledo Law Firm
 By Gustavo Toledo                                                          Avondale
                                                    Attorneys for Respondent/Appellee


V Á S Q U E Z, Presiding Judge.
¶1            In this post-dissolution, domestic relations case, Silvia Flores appeals from

the trial court’s March 18, 2012 denial of appellee Gilberto Martinez’s motion to amend a

post-decree modification order that reallocated certain property. For the reasons stated

below, we dismiss for lack of jurisdiction.

                          Factual and Procedural Background

¶2            Flores and Martinez were divorced in 2008.         Under the terms of the

dissolution decree, the trial court awarded Martinez the family residence and restaurant,

which are located on a single parcel of real property in Apache Junction (the mixed-use

property). The court awarded Flores $287,500 as her share of the mixed-use property and

$150,000 of the income from the restaurant business; it then reduced the total amount to

judgment. The remaining marital assets and debts were divided equitably. Neither party

filed a notice of appeal challenging the decree.

¶3            In May 2009, Flores filed a motion alleging that Martinez had fraudulently

avoided her attempts to collect the judgment by transferring the mixed-use property to

their daughter. After several hearings on the motion, the trial court signed an order on

April 27, 2011, modifying the decree by awarding Flores the mixed-use property and

granting Martinez a $287,500 judgment representing his share of the mixed-use property.

¶4            On May 12, 2011, Martinez filed a motion to amend the April 27, 2011

order pursuant to Rule 84, Ariz. R. Fam. Law P.1 Less than an hour later, Flores filed a


       1
       Although the motion cited “Rule 84 of the Arizona Rules of Civil Procedure,”
Martinez’s counsel subsequently clarified that it was brought pursuant to the Rules of
Family Law Procedure.

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notice of appeal from the same order. Although the trial court denied Martinez’s motion

to amend in an unsigned minute entry filed in July 2011, we nevertheless dismissed

Flores’s appeal for lack of jurisdiction because her notice of appeal had been filed while

Martinez’s motion to amend was pending in the trial court. Flores v. Martinez, No. 2

CA-CV 2011-0106 (memorandum decision filed Feb. 22, 2012).

¶5           A few days after our memorandum decision was filed, Flores requested the

trial court sign a fresh order denying Martinez’s motion to amend. The court granted

Flores’s request by signing an identical order on March 18, 2012. Flores then filed this

appeal on April 6, 2012. The mandate in the first appeal subsequently issued on July 31,

2012, directing the trial court “to conduct such proceedings as required to comply with

the Memorandum Decision of this Court.”

                                       Discussion

¶6           Flores’s April 6, 2012 notice of appeal states that she appeals from the trial

court’s “Order dated March 18, 2012.”2 Although she asserts that we have jurisdiction

pursuant to A.R.S. § 12-2101(A)(1) and (A)(5), and Martinez does not dispute this




      2
        Although Flores’s notice of appeal states she is appealing from the “Order dated
March 18, 2012,” it can only be referring to the trial court’s signed order denying
Martinez’s motion to amend because the record reflects it is the only order bearing that
date. Additionally, Silvia’s notice of appeal refers only to the March 18, 2012 order and
not the April 27, 2011 order challenged in the prior appeal. See Ariz. R. Civ.
App. P. 8(c) (notice shall designate the judgment appealed from); see also Ruesga v.
Kindred Nursing Ctrs. W., L.L.C., 215 Ariz. 589, ¶ 38, 161 P.3d 1253, 1263 (App. 2007)
(appellate review limited to rulings specified in notice).

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assertion,3 “[t]his court has the duty to review its jurisdiction and, if jurisdiction is

lacking, to dismiss the appeal.” Davis v. Cessna Aircraft Corp., 168 Ariz. 301, 304, 812

P.2d 1119, 1122 (App. 1991); see also Kim v. Mansoori, 214 Ariz. 457, ¶ 5, 153 P.3d

1086, 1088 (App. 2007) (appellate court may examine its jurisdiction sua sponte).

¶7            Our jurisdiction is derived wholly from statute, Garza v. Swift Transp. Co.,

222 Ariz. 281, ¶ 12, 213 P.3d 1008, 1010 (2009), and “the types of judgments and orders

from which appeals may be taken are set forth in A.R.S. § 12-2101,” Eaton v. Unified

Sch. Dist. No. 1, 122 Ariz. 391, 392, 595 P.2d 183, 184 (App. 1979). See also Ariz.

Const. art. VI, § 9. “The general rule is that an appeal lies only from a final judgment.”

Davis, 168 Ariz. at 304, 812 P.2d at 1122; see also A.R.S. § 12-2101(A)(1). But there

are exceptions to the general rule.

¶8            For example, in the prior appeal, we assumed without deciding that the trial

court’s April 27, 2011 order was a “special order made after final judgment” that was

appealable upon being entered on May 4, 2011, pursuant to § 12-2101(A)(2). See Ariz.

R. Fam. Law P. 78 and 81 (specifying requirements for entry of judgment or appealable

order); In re Marriage of Dorman, 198 Ariz. 298, ¶ 3, 9 P.3d 329, 331 (App. 2000)

(setting forth criteria for appealable special orders under § 12-2101); see also

Haroutunian v. Valueoptions, Inc., 218 Ariz. 541, ¶¶ 7, 10, 189 P.3d 1114, 1117-18,


       3
        Martinez initially filed a motion to dismiss this appeal for lack of jurisdiction on
res judicata grounds. He claimed, “This matter has been previously litigated and
dismissed for lack of jurisdiction,” and the present appeal is an attempt to “side step” this
court’s prior memorandum decision. In an order dated September 10, 2012, this court
denied Martinez’s motion. However, we now conclude that we lack jurisdiction on other
grounds.
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1118-19 (App. 2008) (entry of judgment, for purposes of determining time to file notice

of appeal, “occurs when the judgment is file-stamped by the clerk”). We noted however

that Martinez’s motion to amend pursuant to Rule 84 had been filed timely before

Flores’s notice of appeal. See Ariz. R. Civ. App. P. 9(b)(3) (filing of Rule 84 motion

extends time for appeal). “[A] notice of appeal filed . . . while any party’s time-extending

motion is pending before the trial court . . . is ineffective and a nullity.” Craig v. Craig,

227 Ariz. 105, ¶ 13, 253 P.3d 624, 626 (2011) (internal quotation omitted); see also

Smith v. Ariz. Citizens Clean Elections Comm’n, 212 Ariz. 407, ¶ 39, 132 P.3d 1187,

1195 (2006) (“Requiring timely notices of appeals following entry of final judgments

also prevents two courts from assuming jurisdiction and acting at the same time.”).

Accordingly, we dismissed Flores’s appeal for lack of jurisdiction.

¶9            In our memorandum decision, we suggested that Flores should have waited

to file the notice of appeal until after the trial court had ruled on Martinez’s motion to

amend. Upon receipt of our decision, Flores attempted to correct the procedural misstep

by requesting that the court sign an order denying Martinez’s motion to amend, claiming

that its earlier, unsigned order from July 2011 was not final. See Ariz. R. Fam. Law P.

81(A). Pursuant to Flores’s request, the court signed an order on March 18, 2012,

denying Martinez’s motion to amend. But the court was without jurisdiction to enter that

order. Although our memorandum decision was filed in the prior appeal on February 22,

2012, the mandate did not issue until July 31, 2012.

¶10           “[A] court always has jurisdiction to determine its own jurisdiction.” Steel

Co. v. Citizens for a Better Env’t, 523 U.S. 83, 118 (1998); see also Todd v. Todd, 137

                                             5
Ariz. 404, 407, 670 P.2d 1228, 1231 (App. 1983); Morgan v. Hays, 102 Ariz. 150, 152,

426 P.2d 647, 649 (1967). Thus, the filing of a notice of appeal, even one ultimately

determined to be a nullity, divests the trial court of jurisdiction to proceed other than to

issue orders in furtherance of the appeal and to address matters unrelated to the appeal.

Sw. Gas Corp. v. Irwin, 229 Ariz. 198, ¶ 8, 273 P.3d 650, 653-54 (App. 2012). And an

appellate proceeding, including one in which an appeal is dismissed for lack of

jurisdiction, does not terminate until the appellate court’s mandate issues. Borrow v. El

Dorado Lodge, Inc., 75 Ariz. 218, 220, 254 P.2d 1027, 1028-29 (1953) (“[A]ppellate

court’s judgment or order becomes effective [as of] the date of issuance of the

mandate.”); Owen v. Shores, 24 Ariz. App. 250, 253, 537 P.2d 978, 981 (1975).

¶11           Simply put, the requirement for a mandate is the same whether an appeal is

dismissed for lack of jurisdiction or decided on the merits. In both situations, a party can

seek reconsideration, see Ariz. R. Civ. App. P. 22, petition for review, see Ariz. R. Civ.

App. P. 23, or both. Moreover, a party’s claim for attorney fees and costs on appeal also

could be pending. See Ariz. R. Civ. App. P. 21. Thus, there is little utility in returning a

case to the trial court until all matters related to the appeal are resolved. The requirement

for issuance of the mandate avoids the risk that the trial and appellate courts could

assume jurisdiction of the same case simultaneously. See Smith, 212 Ariz. 407, ¶ 39, 132

P.3d at 1195. Indeed, this case illustrates the potential conflict. After receiving our

memorandum decision and asking the trial court to sign an order denying Martinez’s

motion to amend, Flores then filed a motion for reconsideration with this court.



                                             6
¶12           Because this court retained jurisdiction until the mandate issued in

accordance with Rule 24, Ariz. R. Civ. App. P., the trial court lacked jurisdiction to issue

the March 18, 2012 order, and Flores could not appeal from it. See Bates v. Bates,

1 Ariz. App. 165, 170, 400 P.2d 593, 298 (1965) (to enter valid order, court must have

jurisdiction); Klebba v. Carpenter, 213 Ariz. 91, 93, 139 P.3d 609, 611 (2006) (without

signed written order, notice of appeal ineffective to confer appellate jurisdiction).

                                        Disposition

¶13           For the reasons stated above, this appeal is dismissed for lack of

jurisdiction. Both parties have requested an award of attorney fees and costs on appeal,

pursuant to A.R.S. §§ 12-349 and 25-324. Because we do not find either party’s actions

on appeal to be unjustified or otherwise unreasonable, we deny both requests.


                                               /s/ Garye L. Vásquez
                                               GARYE L. VÁSQUEZ, Presiding Judge

CONCURRING:


/s/ Virginia C. Kelly
VIRGINIA C. KELLY, Judge


/s/ Philip G. Espinosa
PHILIP G. ESPINOSA, Judge




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