                      NOTICE: NOT FOR OFFICIAL PUBLICATION.
  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                  AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                     IN THE
              ARIZONA COURT OF APPEALS
                                 DIVISION ONE


                      In re the Marriage of:
           FRANCENE LAVERNE VINCENT, Petitioner/Appellee,

                                         v.

           PATRICK JUDE SHANOVICH, Respondent/Appellant.

                            No. 1 CA-CV 16-0431 FC
                                FILED 3-30-2017


            Appeal from the Superior Court in Maricopa County
                             DR2000-095278
               The Honorable Stephen M. Hopkins, Judge

               DISMISSED IN PART; VACATED IN PART


                                    COUNSEL

The Harrian Law Firm P.L.C., Glendale
By Daniel Riley
Counsel for Respondent/Appellant

Popp Law Firm, P.L.C., Tempe
By James S. Osborn Popp
Counsel for Petitioner/Appellee
                         VINCENT v. SHANOVICH
                           Decision of the Court



                       MEMORANDUM DECISION

Chief Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge Kenton D. Jones joined.


B R O W N, Chief Judge:

¶1            Patrick Shanovich (“Husband”) appeals the superior court’s
order denying his motion to set aside a Qualified Domestic Relations Order
(“QDRO”) for an alleged clerical error. He also appeals the judgment
awarding attorneys’ fees to his former spouse, Francene Vincent (“Wife”).
For the following reasons, we dismiss for lack of jurisdiction Husband’s
appeal of the order denying his motion to set aside the QDRO, and vacate
the award of attorneys’ fees.

                              BACKGROUND

¶2             After Wife filed a petition for dissolution of Husband and
Wife’s marriage, the superior court entered a decree of dissolution in
October 2002. The decree provided that Wife would be awarded one-half
of Husband’s “retirement including employer contribution and accrued
interest” as of the filing date of the petition. The decree also stated that Wife
was to submit a QDRO “stating such provisions.” In March 2004, Wife
lodged a QDRO, the content of which was stipulated to by both Husband
and Wife, which the court signed the following month.

¶3             In December 2015, more than eleven years later, Husband
filed a motion to set aside the QDRO, asserting it contained a “clerical error”
that would result in Wife receiving half of his entire pension upon his
retirement, rather than the amount accrued as of the date Wife filed the
petition for dissolution. Husband also argued the QDRO was void because
it did not include the decree’s limitation that Wife would receive half of his
retirement accrued as of the date she filed the petition for dissolution.

¶4           In response, among other things, Wife argued the motion was
untimely because the QDRO could only have been challenged by direct
appeal in 2004. She also requested attorneys’ fees under Arizona Revised
Statutes (“A.R.S.”) section 25-324 and sanctions under Arizona Rule of
Family Procedure 31 (“ARFLP”).




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                          Decision of the Court

¶5             The superior court denied Husband’s motion to set aside,
finding that (1) the decree and QDRO were unambiguous, (2) Husband had
cited no evidence of a clerical error, and (3) neither the decree nor the QDRO
had been appealed. The court entered judgment against Husband for
attorneys’ fees in the amount of $6,210 pursuant to A.R.S. § 25-324.
Husband then filed a notice of appeal from the minute entry denying the
motion to set aside and the judgment awarding attorneys’ fees.

                               DISCUSSION

       A.     Jurisdiction

¶6            Husband asserts that we have jurisdiction pursuant to A.R.S.
§ 12-2101(A)(1) because the superior court entered a final appealable order.
Wife counters that jurisdiction is not proper because Husband does not
raise any issues that are different from those that would have been included
in a timely appeal from the QDRO.

¶7            Concerning the superior court’s order denying Husband’s
motion to set aside the QDRO based on a clerical error, the final appealable
order was the QDRO, and thus the court’s order denying the motion to set
aside is not a “final judgment entered in an action” under A.R.S. § 12-
2101(A)(1). Instead, for this court to have appellate jurisdiction, the court’s
order would need to be a “special order made after final judgment” under
A.R.S. § 12-2101(A)(2).

¶8            To qualify as a “special order” within the context of A.R.S.
§ 12-2101(A)(2), the order “must raise different issues than those that would
be raised by appealing the underlying judgment.” In re Marriage of Dorman,
198 Ariz. 298, 300, ¶ 3 (App. 2000) (citing Arvizu v. Fernandez, 183 Ariz. 224,
226–27 (App. 1995)) (emphasis added). “This requirement prevents a
delayed appeal from the judgment, and also prevents multiple appeals
raising the same issue.” Arvizu, 183 Ariz. at 227. In his motion to set aside,
Husband attacked the merits of the QDRO and thus failed to assert any
issues that could not have been raised in a timely appeal.

¶9            This court recently addressed a similar jurisdictional issue in
Sotomayor v. Sotomayor-Muñoz, 239 Ariz. 288 (App. 2016). In that eviction
case, the superior court ordered defendant Muñoz to vacate plaintiff
Sotomayor’s property. Id. at 289. The same day the court entered a final
judgment, Muñoz filed a motion to set it aside, based on Rule 15, Ariz. R. P.
Eviction Actions, which allows a party to request relief from judgment. Id.
After the court denied the motion to set aside, Muñoz filed a notice of
appeal from both the final judgment as well as the order denying the


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                        VINCENT v. SHANOVICH
                          Decision of the Court

motion to set aside. Id. at 290. Citing Arvizu, we analyzed whether the
superior court’s order on the Rule 15 motion was appealable as a special
order after judgment:

       Muñoz’s motion, although couched in part as a question of
       jurisdiction, essentially challenged the merits of the
       judgment. In it Muñoz argued there was no evidence of a
       landlord-tenant relationship and no lease and that a dispute
       as to ownership of the property existed. These claims were
       the bases for Muñoz’s defense at the hearing below. The
       balance of the argument is a direct challenge to the judgment.
       We therefore conclude that the order at issue here fails the
       first part of the test for determining whether an order qualifies
       as an appealable, special order made after final judgment. . . .
       To allow Muñoz to separately appeal from the denial of her
       Rule 15 motion under the circumstances presented would
       allow her a delayed appeal from the judgment.

239 Ariz. at 291, ¶ 12 (internal quotations omitted).

¶10           Similarly, although Husband’s motion to set aside was
couched in terms of “clerical mistake” and alleged the QDRO was void for
being beyond the court’s statutory authority, the motion essentially
challenged the merits of the QDRO. Husband had the opportunity to
challenge either the decree or the QDRO by filing a timely appeal after they
were entered but did not do so. See Dorman, 198 Ariz. at 300, ¶ 3. Because
Husband is precluded from filing a delayed appeal challenging the merits
of the QDRO, we lack jurisdiction to consider his appeal of the court’s order
denying his motion to set aside the QDRO.

       B.     Attorneys’ Fees

¶11           The final judgment awarding attorneys’ fees is a final
appealable order under A.R.S. § 12-2101(A)(1). Thus, we have jurisdiction
to consider Husband’s argument that the court erred because it failed to
consider the financial resources of the parties under A.R.S. § 25-324.

¶12           A court may award attorneys’ fees “after considering the
financial resources of both parties and the reasonableness of the positions
each party has taken throughout the proceedings.” A.R.S. § 25-324(A)
(emphasis added). In awarding Wife her attorneys’ fees, the superior court
based its decision on “unreasonableness of positions,” and concluded it
could “award fees based upon either financial disparity or
unreasonableness of positions,” noting that no evidence had been


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                       VINCENT v. SHANOVICH
                         Decision of the Court

presented to the court regarding the parties’ financial resources.
Notwithstanding the court’s finding that Husband acted unreasonably, it is
undisputed that the court did not consider the financial resources of the
parties as required by statute. We therefore vacate the judgment awarding
attorneys’ fees to Wife.

¶13           Both parties have requested attorneys’ fees on appeal under
A.R.S. § 25-324, as well as sanctions under ARFLP 31. In the absence of any
current evidence of the financial resources of the parties, we decline to
award fees or costs to either party. In our discretion, we also decline to
impose sanctions against either party.

                              CONCLUSION

¶14           The appeal from the superior court’s order denying
Husband’s motion to set aside the QDRO is dismissed for lack of
jurisdiction. The court’s judgment awarding attorneys’ fees to Wife is
vacated.




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




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