                                IN THE
            ARIZONA COURT OF APPEALS
                             DIVISION ONE


                          In re the Marriage of:

                 ARLENE NATALE, Petitioner/Appellee,

                                    v.

                 PAUL NATALE, Respondent/Appellant.

                         No. 1 CA-CV 12-0765
                           FILED 4-16-2014


          Appeal from the Superior Court in Maricopa County
                           FN2010-090627
               The Honorable Teresa A. Sanders, Judge

                              AFFIRMED


                               COUNSEL

Bishop & Martin Law Office, P.C., Phoenix
By William D. Bishop, Kristen A. Martin
Counsel for Petitioner/Appellee

The Murray Law Offices, P.C., Scottsdale
By Stanley D. Murray
Counsel for Respondent/Appellant
                          NATALE v. NATALE
                          Opinion of the Court



                               OPINION

Judge John C. Gemmill delivered the opinion of the Court, in which
Presiding Judge Maurice Portley joined and Judge Kent E. Cattani
specially concurred.


G E M M I L L, Judge:

¶1            Paul Natale (“Husband”) appeals the family court’s rulings
in favor of Arlene Natale (“Wife”) on her petition for contempt and for
enforcement of court orders and her application for attorneys’ fees. In a
separate memorandum decision issued contemporaneously with this
opinion, we affirm the family court’s rulings. In this opinion, we explain
our denial of Wife’s motion to dismiss a portion of Husband’s appeal for
lack of appellate jurisdiction.

                              Background

¶2            Husband and Wife were married in 1976. Wife filed for
dissolution in March 2010. The family court entered a decree of
dissolution of marriage in September 2011. Neither party appealed any
ruling in the decree.

¶3            On January 4, 2012, Wife filed a petition for contempt and
for enforcement of court orders. She asserted that Husband had not
completed various steps necessary for the division of marital assets. Wife
requested enforcement of several court orders and an award of attorneys’
fees resulting from litigation regarding the petition. In a separate
application filed on the same day, Wife also sought an award of attorneys’
fees for post-trial proceedings from June through December 2011. After
Husband responded in opposition, the family court set an evidentiary
hearing on Wife’s petition for contempt and enforcement and all
unresolved issues for July 9, 2012.

¶4            After the July 9 hearing, the court issued three rulings
pertinent to this appeal. First, in a signed minute entry filed August 9,
2012, the court resolved several issues regarding the division of the
marital property and accounts. The court indicated, however, that it
would resolve Wife’s requests for attorneys’ fees in separate rulings.
Although the August 9, 2012 minute entry was signed “as a formal order”


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                           Opinion of the Court

of the court “pursuant to Rule 81,” Arizona Rules of Family Law
Procedure (“Family Rules”), the ruling did not include a certification of
finality for appeal under Family Rule 78(B). Second, on August 24, 2012,
the family court entered a judgment awarding Wife attorneys’ fees for
post-trial proceedings. Third, on September 17, 2012, the court entered a
judgment awarding Wife additional attorneys’ fees for the enforcement
proceedings. These three rulings resolved all issues pending before the
court arising from Wife’s January 4, 2012 petition and application.


¶5             On September 24, 2012, Husband filed a notice of appeal,
stating that he was appealing the rulings entered on August 9, August 24,
and September 17, 2012. This notice of appeal comported with our ruling
in Ghadimi v. Saraya, 230 Ariz. 621, 285 P.3d 969 (App. 2012), which held
that a family court ruling is not final and appealable until all of the claims
pending before the court have been resolved or a Family Rule 78(B)
certification of finality is included.

        Wife’s Motion to Dismiss a Portion of Husband’s Appeal

¶6             During the pendency of this appeal, another panel of this
court issued its opinion in Reeck v. Mendoza, 232 Ariz. 299, 304 P.3d 1122
(App. 2013), addressing the finality of family court rulings and declining
to follow Ghadimi and another similar case, see In re Marriage of Kassa, 231
Ariz. 592, 593, ¶ 4, 299 P.3d 1290, 1291 (App. 2013) (holding that, absent
Family Rule 78(B) certification, an appeal is premature unless the court
“resolve[d] all issues raised in a post-decree petition”). The Reeck court
held that a ruling resolving the merits of a petition for child support is
“inherently final” and appealable even if the issue of attorneys’ fees
remains unresolved and the ruling does not contain a certification of
finality in accordance with Family Rule 78(B). Reeck, 232 Ariz. at 300-02,
¶¶ 1, 8-10, 304 P.3d at 1123-25.

¶7           Relying on Reeck, Wife filed a motion to dismiss that portion
of Husband’s appeal regarding the family court’s ruling entered August 9,
2012, arguing that the ruling was final and appealable under Reeck and
Husband’s notice of appeal filed on September 24, 2012 was thus
untimely. In civil and family law cases, a notice of appeal must be filed
within 30 days after entry of the judgment or order being appealed.
ARCAP 9(a). Because Husband’s notice of appeal was filed more than 30




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                           Opinion of the Court

days after the ruling, Wife’s motion is well taken if the August 9 ruling
was final and appealable when entered. 1 In response to Wife’s motion,
Husband contends that Wife waived her jurisdictional argument by not
asserting it in her answering brief and that, under the applicable Family
Rules and cases (including Ghadimi and Kassa), the August 9 ruling was
not yet final and appealable until entry of the September 17, 2012 ruling.
Wife filed a reply, and this court heard oral argument regarding this
jurisdictional issue as well as the merits of the appeal.

¶8            We reject Husband’s argument that Wife has waived the
jurisdictional argument. If this court lacks appellate jurisdiction, the
appeal — or that portion lacking in jurisdiction — must be dismissed. See
Baker v. Bradley, 231 Ariz. 475, 479, ¶ 8, 296 P.3d 1011, 1015 (App. 2013)
(”Our jurisdiction is defined by statute, and we must dismiss an appeal
over which we lack jurisdiction.”). Just as appellate jurisdiction cannot be
created by agreement of the parties, Ginn v. Superior Court, 1 Ariz. App.
455, 457, 404 P.2d 721, 723 (1965), the absence of appellate jurisdiction
cannot be waived, see Slaughter v. First Nat’l Bank, 34 Ariz. 26, 31-32, 267 P.
416, 418 (1928).

¶9             We deny Wife’s motion to dismiss that portion of Husband’s
appeal arising from the August 9, 2012 order. In so doing, we respectfully
decline to follow Reeck and choose instead to follow Ghadimi, Kassa, the
cases cited therein, and Family Rule 78(B). In accordance with Ghadimi,
Kassa, and Family Rule 78(B), a family court ruling that resolves some but
not all of the issues pending before the court and does not have a Family
Rule 78(B) certification of finality is not final and appealable.

¶10           The fact pattern presented in the instant case is analogous to
Ghadimi, except with respect to the timing of the notice of appeal. The
family court in Ghadimi issued a signed decree of dissolution that resolved
numerous issues but specifically reserved the issue of attorneys’ fees for
subsequent resolution. Ghadimi, 230 Ariz. at 622, ¶ 3, 285 P.3d at 970. The
decree did not have Family Rule 78(B) language of finality. The wife filed
a notice of appeal before the attorneys’ fees issue was resolved. Id. When
the attorneys’ fees had been determined and a final judgment entered, the


1 No issue is presented regarding the timeliness of the September 24, 2012
notice of appeal with respect to the August 24, 2012 judgment, because the
30th day after August 24 — September 23 — was a Sunday. The notice of
appeal was filed on Monday, September 24.



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                           Opinion of the Court

wife did not file a new or amended notice of appeal. Id. at ¶ 5. We
determined that the wife’s notice of appeal was premature and ineffective
to convey appellate jurisdiction under the Arizona Supreme Court
opinions of Craig v. Craig, 227 Ariz. 105, 253 P.3d 624 (2011); Smith v.
Arizona Citizens Clean Elections Commission, 212 Ariz. 407, 132 P.3d 1187
(2006); and Barassi v. Matison, 130 Ariz. 418, 636 P.2d 1200 (1981). Ghadimi,
230 Ariz. at 623-24, ¶¶ 11-14, 285 P.3d at 971-72. Therefore, we dismissed
the appeal for lack of jurisdiction. Id. at ¶ 15.

¶11          In its ruling of August 9, 2012, the family court here resolved
several issues of property division between the parties but specifically
reserved two requests by Wife for awards of attorneys’ fees. Because the
ruling did not have Family Rule 78(B) certification, it was not final and
appealable until the attorneys’ fees issues were resolved in a signed order
or judgment. Family Rule 78(B) provides:

      B. Judgment upon Multiple Claims or Involving Multiple
      Parties. When more than one claim for relief is presented in
      an action, whether as a claim, counterclaim, or third-party
      claim, or when multiple parties are involved, the court may
      direct the entry of final judgment as to one or more but
      fewer than all of the claims or parties only upon an express
      determination that there is no just reason for delay and upon
      an express direction for the entry of judgment. In the
      absence of such determination and direction, any order or
      other form of decision, however designated, that adjudicates
      fewer than all the claims or the rights and liabilities of fewer
      than all the parties shall not terminate the action as to any of
      the claims or parties, and the order or other form of decision
      is subject to revision at any time before the entry of
      judgment adjudicating all the claims and the rights and
      liabilities of all the parties. For purposes of this subsection, a
      claim for attorneys’ fees may be considered a separate claim
      from the related judgment regarding the merits of a cause.

In accordance with this rule, a judgment or order that resolves fewer than
all the claims is not final and appealable in the absence of “an express
determination that there is no just reason for delay and upon an express
direction for the entry of judgment.” Such an order is “subject to revision
at any time before the entry of judgment adjudicating all the claims and




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                           Opinion of the Court

the rights and liabilities of all the parties.” 2 Accordingly, the family court
must “resolve all issues raised in a post-decree petition before the filing of
an appeal,” Kassa, 231 Ariz. at 593, ¶ 4, 299 P.3d at 1291, in the absence of a
Family Rule 78(B) certification of finality for appeal. Id. at ¶ 5.

¶12           Wife’s petition for contempt and for enforcement of court
orders and her application for post-trial attorneys’ fees, both filed on
January 4, 2012, presented claims for substantive relief and attorneys’ fees.
The August 9, 2012 order did not resolve all of these claims. We disagree
with Wife’s position that Husband had to file his notice of appeal within
30 days of August 9. In accordance with Craig, Smith, Barassi, Ghadimi,
Kassa, Baker, Fields v. Oates, 230 Ariz. 411, 286 P.3d 160 (App. 2012), and
Santee v. Mesa Airlines, Inc., 229 Ariz. 88, 270 P.3d 915 (App. 2012), the
August 9 order was not final and appealable when entered. The claims
presented to the family court were resolved with finality by the judgments
entered on August 24 and September 17, 2012, and the August 9 ruling
became final and appealable on September 17, 2012. Therefore, as a result
of Husband’s September 24, 2012 notice of appeal, we have jurisdiction
under Arizona Revised Statutes (A.R.S.) section 12-2101(A) over
Husband’s appeal of the August 9 order as well the August 24 and
September 17 judgments.

¶13           The fact that the August 9, 2012 minute entry was signed “as
a formal order” of the court “pursuant to Rule 81” of the Family Rules
may impact the enforceability of certain rulings and the future
appealability of such rulings. But by signing a ruling “as a formal order”
“pursuant to Rule 81” of the Family Rules, the court has not thereby
imparted immediate finality and appealability to such ruling. To
conclude otherwise would be contrary to the language and intent of
Family Rule 78(B).



2   Family Rule 78(B) is virtually identical to Arizona Rule of Civil
Procedure (“Civil Rule”) 54(b), and therefore we may apply
interpretations of Civil Rule 54(b) to Family Rule 78(B). Kassa, 231 Ariz. at
593-94 n.1, ¶ 5, 299 P.3d at 1291-92 n.1 (quoting Family Rule 1 comment
that “[w]herever the language in these rules is substantially the same as
the language in other statewide rules, the case law interpreting that
language will apply to these rules” and citing Family Rule 78 comment
noting that this rule is “based on” Civil Rule 54).




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                           NATALE v. NATALE
                           Opinion of the Court

¶14           Wife’s reliance on Reeck is understandable but misplaced.
The new concept of “inherent finality” for appeal purposes recognized in
Reeck may be limited, even under Reeck itself, to dissolution decrees and
child support orders. This appeal involves neither. More importantly, we
believe Reeck is inconsistent not only with Ghadimi and Kassa but also with
the broader jurisprudence of our supreme court and this court regarding
the finality of orders or judgments for appeal purposes as well as the
language of Family Rule 78. Although we respect our colleagues who
decided Reeck, we decline to follow the Reeck opinion for several reasons.

¶15            Reeck’s concept of “inherently final” decisions is based
primarily on the first sentence of A.R.S. § 25-325(A), which states: “A
decree of dissolution of marriage or of legal separation is final when
entered, subject to the right of appeal.” 3 Reeck concluded that this statute
declares that every decree of dissolution is final and appealable upon entry
and the expiration of the time for the filing any time-extending motions,
even in the absence of a certification under Family Rule 78(B). 232 Ariz. at
301, ¶ 5, 304 P.3d at 1124. We respectfully disagree. The qualifying words
in the statute, “subject to the right of appeal,” mean that the Arizona
statutes and rules pertaining to the right to appeal are applicable,
including the requirement of a final judgment that resolves all issues of all
parties, except when certified as final under Family Rule 78(B) when one
or more claims raised by the petition is yet to be resolved.

¶16            The reference to “final when entered” in § 25-325(A) is
intended to remove a one-year prohibition upon remarriage imposed by
the predecessor statute. As explained by this court in Matter of Brother's
Estate, 134 Ariz. 536, 658 P.2d 189 (App. 1982), in resolving an assertion
that the statute precluded an appeal from a dissolution decree:

      He contends that jurisdiction to vacate a dissolution decree
      is foreclosed by A.R.S. § 25–325(A):

             “A decree of dissolution of marriage or of legal
             separation is final when entered, subject to the
             right of appeal. An appeal from the decree of
             dissolution that does not challenge the finding


3 As noted in Reeck, § 25-325 was not cited or argued to this court in
Ghadimi and was not considered. Reeck, 232 Ariz. at 302, ¶ 9, 304 P.3d at
1125.



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                           Opinion of the Court

              that the marriage is irretrievably broken does
              not delay the finality of that provision of the
              decree which dissolves the marriage beyond
              the time for appealing from that provision, and
              either of the parties may remarry pending
              appeal.”

       We do not read this provision to deprive the court of
       jurisdiction over the portion of the decree that dissolves the
       marriage relationship. The obvious purpose of this statute is to
       remove the one-year prohibition upon remarriage imposed by its
       predecessor, former A.R.S. § 25–320, and allow the parties to
       marry during the pendency of an appeal.

134 Ariz. at 537, 658 P.2d at 190 (emphasis added). When the first
sentence of § 25-325(A) is considered in context with the entire
subsection, we believe the statute is assigning finality to the dissolution
decree for purposes of allowing most parties to move forward with their
lives, knowing they are divorced. The first sentence of § 25-325(A) does
not change what is or is not “final” for appeal purposes, because the decree
remains “subject to the right of appeal.” In short, the first sentence of
A.R.S. § 25-325(A) addresses enforceability, not appealability.

¶17           Several cases from other jurisdictions support our
interpretation of A.R.S. § 25-325(A). The statute was adopted in Arizona
in 1973 from the Uniform Marriage and Divorce Act (“UMDA”). The
same subsection, including the same or similar language in the first
sentence, has been enacted in states that also have procedural rules similar
to Family Rule 78(B) or Civil Rule 54(b). Appellate courts in several states
have addressed the issue of whether the language of the first sentence —
“final when entered, subject to the right of appeal” — makes a decree
immediately appealable even though it does not resolve all claims and has
not been certified as final and appealable under a rule equivalent to
Family Rule 78(B). In Estate of Burford v. Burford, 935 P.2d 943 (Colo. 1997),
the Colorado Supreme Court explained its interpretation of Colorado
Revised Statute section 14-10-120(1), which is essentially identical to
A.R.S. § 25-325(A):

       In summary, we hold that section 14-10-120(1) provides that
       when a dissolution decree is entered by the district court, it
       is a final order concerning the marital status of parties even
       though the decree is not treated as final for the purposes of



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                              Opinion of the Court

        appellate review. We hold that a decree of dissolution granted
        in accordance with section 14-10-120 may be immediately
        appealed when one party challenges the findings of the
        district court that the marriage is irretrievably broken or
        contests the jurisdiction of the court, and the district court
        acting pursuant to its discretionary authority certifies the decree as
        a final order for purposes of appeal under C.R.C.P. 54(b).

935 P.2d at 955 (emphasis added).

¶18          Additionally, the Illinois Supreme Court in Marriage of Lentz,
403 N.E.2d 1036 (Ill. 1980), considered the meaning of the words “final
when entered, subject to the right of appeal” in light of the distinction
between legislative authority and judicial rule-making authority. The
court addressed section 314(a) of the UMDA, 4 from which Arizona
derived § 25-325(A), and section 413(a) of the Illinois Marriage and
Dissolution of Marriage Act, which is substantially similar to § 25-325(A):

        Thus, it was not the purpose of the language of section 314(a) of
        the [UMDA] to make the judgments concerning marital status
        final and immediately appealable. Rather, the purpose of such
        language is to ensure that the parties not be subject to an
        interlocutory period between the determination of the
        grounds for divorce and the effective date of the decree.
        Inasmuch as section 413(a) of our act substantially adopts
        section 314(a) of the uniform act, the commissioner's note
        supports an interpretation that the Illinois legislature, by enacting
        section 413(a), was not attempting to define the appealability of the
        order. Consistent with this interpretation, the language,
        “subject to the right of appeal,” should be construed to mean


4   Section 314(a) of the UMDA provides:

        A decree of dissolution of marriage or of legal separation is
        final when entered, subject to the right of appeal. An appeal
        from the decree of dissolution that does not challenge the
        finding that the marriage is irretrievably broken does not
        delay the finality of that provision of the decree which
        dissolves the marriage beyond the time for appealing from
        that provision, and either of the parties may remarry
        pending appeal.



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                            Opinion of the Court

       that an appeal may be taken from such a judgment if the
       order is indeed appealable as a matter of right or by virtue of
       a supreme court rule. Such a construction would be
       consistent with the constitutional provisions placing in this
       court the authority to adopt rules governing appeals.

403 N.E.2d at 1038 (emphasis added). The Montana Supreme Court
similarly concluded in State ex rel. Marlenee v. Dist. Court of Fifteenth
Judicial Dist., In & For Daniels Cnty., 592 P.2d 153 (Mont. 1979), as follows:

       Here there was no express determination by the District
       Court that there is no just reason for delay in judgment on
       the claim for dissolution of the marriage nor is there an
       express direction for entry of judgment thereon. Without
       these prerequisites, relator wife cannot appeal from the order
       dissolving the marriage at this time nor at any time prior to entry
       of judgment or decree on all issues before the District Court. . . .

       Respondent husband directs our attention to section 48-328,
       R.C.M.1947, now section 40-4-108 MCA [analogous to
       Arizona’s § 25-325(A)], providing that a decree of
       dissolution of marriage is final when entered, subject to the
       right of appeal and Rule 1, M.R.App.Civ.P. providing for any
       appeal from a final judgment. Neither of these sections grant
       the right of immediate appeal from a partial judgment. Instead the
       right of immediate appeal from a judgment on a part but not all of
       the claims for relief in a single action is governed by Rule 54(b),
       M.R.Civ.P. . . .

592 P.2d at 155 (citation omitted, emphasis added).

¶19            The court in Reeck was concerned that the Ghadimi opinion
did not recognize the “stark differences” between family law cases and
civil cases. Reeck, 232 Ariz. at 301-02, ¶¶ 5-9, 304 P.3d at 1124-25. There
certainly are differences between civil cases and family law cases. And
these differences may justify consideration of amendments to the statutes
defining our appellate jurisdiction or to the procedural rules pertaining to
finality and appealability of judgments and orders. We are not persuaded
that the differences discussed in Reeck are determinative of the
jurisdictional issues faced in such cases as Ghadimi, Reeck, and this appeal.




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                            Opinion of the Court

In our view, Reeck’s concept of “inherent finality” is not justified in light of
existing statutes and rules. 5 Additionally, we note that Craig was a family
law case, and the Arizona Supreme Court in Craig cited and relied upon
cases arising under the Civil Rules and made no suggestion that issues of
appellate jurisdiction might be different under the Family Rules.

                                 Conclusion

¶20          For these reasons, we decline to follow or apply the Reeck
case as requested by Wife. Consistent with Ghadimi, Kassa, and Family
Rule 78(B), we deny Wife’s motion to dismiss a portion of Husband’s
appeal. And for the reasons set forth in the memorandum decision filed
contemporaneously with this opinion, we affirm the family court’s
rulings.


C A T T A N I, J., specially concurring:

¶21                  I concur in the decision of the court that Husband
timely appealed from the family court’s three rulings. I write separately
to express my view that, until the Arizona Supreme Court resolves the
conflict between the Ghadimi and Reeck decisions, an appellant who has
complied with either of those rulings should be deemed to have satisfied
the timeliness requirement for establishing jurisdiction in this court.




                                  :MJT




5 The Arizona Supreme Court has granted review in Bollermann v. Nowlis,
CV-13-0279-PR, and may resolve the appealability and jurisdictional
issues addressed in Ghadimi, Kassa, and Reeck.



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