                                   IN THE
             ARIZONA COURT OF APPEALS
                              DIVISION ONE


                            In re the Matter of:

                KRISTIN CAMASURA, Petitioner/Appellee,

                                     v.

       BRENDAN ANTONIO CAMASURA, Respondent/Appellant.

                            No. CV 14-0309 FC
                              FILED 8-27-2015


           Appeal from the Superior Court in Maricopa County
                             FC2012-052410
                 The Honorable Danielle J. Viola, Judge

                          APPEAL DISMISSED


                                   COUNSEL

Daly Law Firm, PLLC, Scottsdale
By Douglas A. Daly
Counsel for Petitioner/Appellee

Cosmas Onyia, P.C., Phoenix
By Cosmas Onyia
Counsel for Respondent/Appellant



                                   OPINION

Presiding Judge John C. Gemmill delivered the decision of the Court, in
which Judge Kenton D. Jones and Judge Donn Kessler joined.
                        CAMASURA v. CAMASURA
                           Opinion of the Court

G E M M I L L, Judge:

¶1            Brendan Antonio Camasura (“Husband”) appeals from a
decree of dissolution of marriage. Because Husband’s notice of appeal was
premature and ineffective to invoke our appellate jurisdiction, we dismiss
this appeal for lack of jurisdiction.

                             BACKGROUND

¶2            Kristin Camasura (“Wife”) filed a petition for dissolution of
non-covenant marriage, with children, in October 2012. After trial, the
family court ordered dissolution of the marriage by a signed minute entry
on March 12, 2014 (“March 12 order”). The March 12 order did not address
legal decision-making and parenting time, although those issues had been
addressed by a stipulation between the parties. The March 12 order also
did not determine the amount of attorney fees the court was going to award
from Husband to Wife. The court ordered Wife to submit, by March 24,
2014, a proposed form of decree of dissolution consistent with the March 12
order and an application for attorney fees.

¶3             On April 4, 2014, Husband filed a notice of appeal. On April
16, 2014, the family court issued an order advising the parties that the
March 12 order was “not intended to be a final order for purposes of appeal
because it does not address all of the issues anticipated to be included in
the Decree of Dissolution.” The court explained that it had not ruled on the
issue of legal-decision making, parenting time, and the amount of attorney
fees to be awarded. The court further concluded that the notice of appeal
did not divest it of jurisdiction, citing In re Marriage of Johnson & Gravino,
213 Ariz. 228, 293 P.3d 504 (App. 2012). Finally, the court noted that Wife
had lodged the proposed decree and application for attorney fees, and the
court extended the deadline for Husband to file objections.

¶4            On May 1, 2014, the court issued an order awarding attorney
fees to Wife and issued a thirteen page decree of dissolution (“Decree”).
The Decree included the substance of the March 12 order and also contained
the court’s ruling on parenting time, legal-decision making, and attorney
fees. Husband did not thereafter file a new or amended notice of appeal.

                                ANALYSIS

¶5            This court has an independent duty to examine whether we
have jurisdiction over matters on appeal. See Sorensen v. Farmers Ins. Co. of
Ariz., 191 Ariz. 464, 465, 957 P.2d 1007, 1008 (App. 1997). This court’s


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                       CAMASURA v. CAMASURA
                          Opinion of the Court

jurisdiction is created by the legislature and limited by statute. See A.R.S.
§§ 12-2101, 12-120.21; Campbell v. Arnold, 121 Ariz. 370, 371, 590 P.2d 909,
910 (1979). At our request, the parties submitted supplemental briefing
addressing whether we have jurisdiction over this appeal.

¶6              As a general rule, only final judgments are appealable. Musa
v. Adrian, 130 Ariz. 311, 312, 636 P.2d 89, 90 (1981). A notice of appeal filed
in the absence of a final judgment is premature. See Barassi v. Matison, 130
Ariz. 418, 421, 636 P.2d 1200, 1203 (1981) (referencing Arizona Rule of Civil
Procedure 58(a) and State Bar Committee Notes to the 1961 Amendment to
the Rule). If a notice of appeal is premature, this court lacks jurisdiction to
determine the appeal unless the prematurity of the notice of appeal is
overcome by the narrow “Barassi exception” or by recent amendments to
the Arizona Rules of Civil Appellate Procedure (“ARCAP”)—specifically
ARCAP 9(b)(2)(B), effective 2014, or ARCAP 9(c), effective 2015.1 See Smith
v. Ariz. Citizens Clean Elections Comm’n, 212 Ariz. 407, 415, ¶ 37, 132 P.3d


1 ARCAP 9(b)(2)(B) was the relevant rule in 2014 when this case was before
the family court. It stated:

       A notice of appeal filed after the court announces a decision
       or order—but before the entry of the judgment or order—is
       treated as filed on the date of and after the entry of the
       judgment or order.

Effective January 1, 2015, the rule was amended and the key sentence at
issue here is now set forth in ARCAP 9(c) as follows:

        A notice of appeal or cross-appeal filed after the superior
       court announces an order or other form of decision—but
       before entry of the resulting judgment that will be
       appealable—is treated as filed on the date of, and after the
       entry of, the judgment.

For the purpose of this analysis, we consider the 2014 version of ARCAP
9(b)(2)(B) and the 2015 version of ARCAP 9(c) to be substantively
equivalent. Furthermore, because the application note provides that the
“2015 amendment is applicable to all appeals filed on or after Jan. 1, 2015,
as well as all other appeals pending on that date,” this court will apply the
2015 language and refer to the provision as it is currently numbered.




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                           CAMASURA v. CAMASURA
                              Opinion of the Court

1187, 1195 (2006) (stating the Barassi exception applies when “no decision
of the court could change and the only remaining task is merely
ministerial”); Craig v. Craig, 227 Ariz. 105, 106, 107, ¶¶ 8–9, 13, 253 P.3d 624,
625 (2011) (characterizing the Barassi exception to the final judgment rule as
a “limited” or “slim” exception); ARCAP 9.

              The March 12 Order Was Not a Final Judgment

¶7             The March 12 order would constitute a final and appealable
judgment if it disposed of all claims and parties or if it had been
appropriately certified by the family court to be final and appealable in
accordance with Rule 78(B), Arizona Rules of Family Law Procedure.2
Husband contends the March 12 order resolved all issues and constituted a
final judgment because the parties had reached an agreement regarding
legal decision-making and parenting time and the court had ruled that Wife
would be entitled to an award of fees. We conclude the March 12 order was
not a final judgment, however, as it was not intended by the family court to
serve as the final decree because it did not determine the amount of attorney
fees to be awarded, did not specify legal decision-making or parenting time,
and did not contain an express determination complying with Rule 78(B).
See Ghadimi v. Soraya, 230 Ariz. 621, 622, ¶ 10, 285 P.3d 969, 970 (App. 2012)

2   Rule 78(B) provides:

        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.

(Emphasis added.)


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                        CAMASURA v. CAMASURA
                           Opinion of the Court

(holding that a decree of dissolution entered by the family court was not
final and appealable when “it neither determined the amount of Husband’s
attorneys’ fees and costs to be paid by Wife nor contained an express
determination complying with Rule 78(B)”).

¶8          Because the March 12 order was not final and appealable,
Husband’s notice of appeal filed on April 4, 2013 was premature.

                   The Barassi Exception Does Not Apply

¶9             The Barassi exception can save a premature notice of appeal
but is “limited to situations in which a notice of appeal is filed ‘after the trial
court has made its final decision but before it has entered a formal
judgment, if no decision of the court could change and the only remaining
task is merely ministerial.’” Ghadimi, 230 Ariz. at 623, ¶ 12, 285 P.3d at 971
(citing Craig, 227 Ariz. at 107, ¶ 13, 253 P.3d at 626). “In all other cases, a
notice of appeal filed in the absence of a final judgment, or while any party’s
time-extending motion is pending before the trial court, is ‘ineffective’ and
a nullity.” Craig, 227 Ariz. at 107, ¶ 13, 253 P.3d at 626 (citing Smith, 212
Ariz. at 415, ¶ 39, 132 P.3d at 1195).

¶10           In Ghadimi, this court held that the premature notice of appeal
was ineffective and did not come within the limited Barassi exception
because the remaining task of determining the amount of attorney fees and
costs to be awarded “was discretionary and not merely ministerial.” 230
Ariz. at 623–24, ¶¶ 13–14, 285 P.3d at 971. Similarly, Husband’s premature
notice of appeal in this case is not saved by the Barassi exception, because
the amount of attorney fees to be awarded was not yet determined. The
fact that the March 12 order did not resolve legal decision-making and
parenting time also defeats the Barassi exception. Contrary to Husband’s
argument, the parties’ stipulation regarding legal decision-making and
parenting time did not constitute a final resolution of those issues until
adopted and ordered by the court, based on the best interests of the
children. Such a determination is not ministerial.

       ARCAP 9(c) Does Not Save the Premature Notice of Appeal

¶11           The final question this court must answer is whether ARCAP
9(c) applies to prevent Father’s premature notice of appeal from being a
nullity. Rule 9(c) provides:




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                       CAMASURA v. CAMASURA
                          Opinion of the Court

       A notice of appeal or cross-appeal filed after the superior
       court announces an order or other form of decision—but
       before entry of the resulting judgment that will be
       appealable—is treated as filed on the date of, and after the
       entry of, the judgment.

Husband contends that this provision is applicable and therefore his notice
of appeal filed April 4 should be treated as filed on May 1 after entry of the
Decree.

¶12            Neither the Arizona Supreme Court nor this court has
interpreted ARCAP 9(c).3 This ARCAP 9(c) sentence mirrors Federal Rule
of Appellate Procedure (“FRAP”) 4(a)(2), which provides that “[a] notice of
appeal filed after the court announces a decision or order—but before the
entry of the judgment or order—is treated as filed on the date of and after
the entry.” This is an exception to the general rule that requires an appellant
to file a notice of appeal “within 30 days after the date of entry of the
judgment or order appealed from.” FirsTier Mort. v. Investors Mort. Ins. Co.,
498 U.S. 269, 272 (1991). The State Bar of Arizona petition requesting the
rule change that added ARCAP 9(b)(2)(B) in 2014 specifically referenced
and quoted FRAP 4(a)(2), encouraging the Arizona Supreme Court to adopt
a functionally equivalent sentence. We therefore presume the Arizona
Supreme Court purposely followed the language of FRAP 4(a)(2) when
adopting ARCAP 9(b)(2)(B), effective 2014, and ARCAP 9(c), effective 2015.

¶13           When interpreting state procedural rules based on and
adopted from analogous federal rules, Arizona courts generally accord
“great weight” to the federal interpretations of the rules. Edwards v. Young,
107 Ariz. 283, 284, 486 P.2d 181, 182 (1971); Hedlund v. Ford Mktg. Corp., 129
Ariz. 176, 178, 629 P.2d 1012, 1014 (App. 1981). Accordingly, we also
presume the Arizona Supreme Court, when adopting ARCAP 9(b)(2)(B)
and then ARCAP 9(c), was aware of and embraced the United States
Supreme Court’s definitive interpretation of FRAP 4(a)(2) in FirsTier
Mortgage Co. v. Investors Mortgage Ins. Co., 498 U.S. 269 (1991).



3 This court in Lopez v. Food City, 234 Ariz. 349, ¶¶ 6-7, 351, 322 P.3d 166,
168 (App. 2014), examined its own jurisdiction and in doing so considered
the possible application of ARCAP 9(b)(2)(B). The court, however, found
ARCAP 9(b)(2)(B) was not applicable and therefore did not resolve the
meaning of the first sentence thereof.



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                        CAMASURA v. CAMASURA
                           Opinion of the Court

¶14           In FirsTier, the Supreme Court explained that FRAP 4(a)(2)
“permits a notice of appeal filed from certain nonfinal decisions to serve as
an effective notice from a subsequently entered final judgment.” 498 U.S.
at 274. The Court stated, however, that a premature notice of appeal relates
forward to the date of entry of a final “judgment” only when the ruling
designated in the notice is a “decision” for purposes of the rule, id. at 274,
n.4, and “only when a district court announces a decision that would be
appealable if immediately followed by the entry of judgment,” id. at 276.

¶15            Applying the United States Supreme Court’s construction of
FRAP 4(a)(2) to ARCAP 9(c), we conclude Rule 9(c) does not save
Husband’s attempted appeal. The March 12 order was not final and did
not dispose of all of the issues. See In re Jack Raley Const., Inc., 17 F.3d 291,
294 (9th Cir. 1994) (holding that a premature notice was not saved by FRAP
4(a)(2) because an issue of pre-judgment interest was not decided until after
the notice had been filed). As the family court made clear in its April 16
order, the March 12 order was not appealable because it did not finally
resolve all pending matters. Therefore, ARCAP 9(c) does not apply.4 To


4  A number of other states with rules substantively identical to FRAP
4(a)(2) have reached similar conclusions. See, e.g., Hall v. American Standard
Ins. Co. of Wis., 292 P.3d 1196, 1199 (Colo. Ct. App. 2012) (appellate court
lacked jurisdiction because no final judgment was entered when attorney
fees and court costs had not yet been determined); In re Marriage of Marez &
Marshall, 340 P.3d 520, 528 (Mont. 2014) (noting that a party may only
appeal from a final judgment, which is defined as a judgment that
“conclusively determines the rights of the parties and settles all claims in
controversy in an action or proceeding, including any necessary
determination of the amount of costs and attorney fees awarded or sanction
imposed”) (quoting Mont. R.App. P. 4(a)); Murray v. Stine, 864 N.W.2d 386,
391 (Neb. 2015) (appellate court lacked jurisdiction when “the absence of a
ruling on attorney fees left a portion of the judgment unresolved”); Ft. Frye
Teachers Assn. v. Ft. Frye Local School Dist. Bd. Of Educ., 623 N.E. 2d 232, 234
(Ohio Ct. App. 1993) (noting it is “well-settled law that a judgment
deferring final adjudication of a request for attorney fees is not a final
appealable order”). But see, e.g., Gonzalez, LLC v. DiVincenti, 844 So.2d 1196,
1202 (Ala. 2002) (concluding final order had been entered and thus
appellate court possessed jurisdiction even though motion for attorney fees
remained pending with the trial court); Blake v. Blake, 670 A.2d 472, 477 (Md.
1996) (noting that appeals court has jurisdiction over case despite the
pendency of attorney fees determination in trial court); Evans v. Moyer, 282



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                       CAMASURA v. CAMASURA
                          Opinion of the Court

preserve his appeal, Husband should have filed another notice of appeal
after entry of the Decree on May 1, 2014. See Jack Raley, 17 F.3d at 294
(“Where there is some doubt about the application of [the notice of appeal
rules and FRAP 4(a)(2)], the prudent course of action is merely to file a fresh
appeal after entry of final judgment.”).

¶16           To summarize, we conclude that ARCAP 9(c) should be
interpreted to mean the same as the nearly identical sentence in FRAP
4(a)(2). Accordingly, ARCAP 9(c) does not apply in this situation to save
Husband’s premature notice of appeal from being a nullity under the
applicable rules and cases.

                              CONCLUSION

¶17         Because Husband’s notice of appeal was premature and does
not come within the limited Barassi exception or ARCAP 9(c), this court
lacks appellate jurisdiction to consider this appeal.    Accordingly,
Husband’s appeal is dismissed for lack of jurisdiction.




                                  :ama




P.3d 1203, 1209 (Wyo. 2012) (holding that premature notice of appeal
entered before judgment on attorney fees was effective upon entry of
subsequent final appealable order).



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