Petrocelli v. Anderson ( 2016 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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 Matter of:
MARTIN PETROCELLI, Petitioner/Appellee,
v.
IZABELA ANDERSON, Respondent/Appellant.
No. 1 CA-CV 15-0774 FC
FILED 12-30-16
Appeal from the Superior Court in Maricopa County
No. FC2009-007479
The Honorable Geoffrey H. Fish, Judge
APPEAL DISMISSED
APPEARANCES
Martin Petrocelli, Scottsdale
Petitioner/Appellee
Izabela Anderson, Avondale
Respondent/Appellant
MEMORANDUM DECISION
Presiding Judge Andrew W. Gould delivered the decision of the Court, in
which Judge Patricio A. Orozco and Judge Peter B. Swann joined.
PETROCELLI v. ANDERSON
Decision of the Court
G O U L D, Judge:
¶1 Izabela Anderson (“Mother”) appeals from the family court’s
post-decree orders denying (1) her petition for contempt and motion for
new trial and (2) Martin Petrocelli’s (“Father”) petition to modify parenting
time. For the following reasons, we dismiss the appeal.
FACTS AND PROCEDURAL HISTORY1
¶2 Mother and Father are the parents of a child born in
November 2009. After Father’s paternity was established in 2010, the
family court ordered the parties to share joint legal decision-making, with
Father having parenting time two afternoons per week and overnight on
Saturdays. In 2011, the court denied Mother’s request for sole legal
decision-making authority and increased Father’s parenting time.
Thereafter, both parties petitioned to modify legal decision-making
authority and parenting time. In 2014, the family court affirmed joint legal
decision-making, awarded Father final decision-making authority, and
reduced Mother’s parenting time to one mid-week overnight and every
other weekend (the “2014 Order”). Mother appealed, and this court
affirmed. Petrocelli v. Anderson, 1 CA-CV 14-0328 FC, 2015 WL 1849355
(Ariz. App. Apr. 21, 2015).
¶3 In 2015, Father filed a petition to modify parenting time, and
Mother filed a petition for contempt.2 Following an evidentiary hearing, the
family court denied both petitions (the “2015 Order”). Thereafter, the court
denied Mother’s motion for new trial, and she timely appealed.
DISCUSSION
A. The 2015 Order.
¶4 We have reviewed the record pursuant to our duty to
determine whether we have jurisdiction over Mother’s appeal. See Sorensen
1 Mother's statement of facts does not contain references to the record
on appeal as required by Arizona Rule of Civil Appellate Procedure
13(a)(5). Therefore, we rely on our review of the record for the recitation of
facts and procedural background. See State Farm Mut. Auto Ins. Co. v.
Arrington, 192 Ariz. 255, 257 n.1 (App. 1998).
2 Mother also filed a petition to modify parenting time and child
support. Father moved to dismiss the petition on several bases; Mother did
not respond, and the family court dismissed the petition.
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PETROCELLI v. ANDERSON
Decision of the Court
v. Farmers Ins. Co. of Ariz., 191 Ariz. 464, 465 (App. 1997). Because appellate
jurisdiction is defined by statute, we must dismiss any portion of an appeal
for which we do not have jurisdiction. See, e.g., Natale v. Natale, 234 Ariz.
507, 509, ¶ 8 (App. 2014) (citing Baker v. Bradley, 231 Ariz. 475, 479, ¶ 8 (App.
2013)). Additionally, “[a]n appeal may only be taken by a party aggrieved
by the judgment.” In re Estate of Friedman, 217 Ariz. 548, 551, ¶ 9 (App. 2008)
(citations omitted); accord Matter of Gubser, 126 Ariz. 303, 306 (1980); Ariz.
R. Civ. App. P. 1(d).
1. Petition to Modify.
¶5 The family court denied Father’s petition to modify, and
Mother concedes the 2015 Order did not modify parenting time. As a result,
Mother is not aggrieved by the 2015 Order to the extent she questions the
court’s parenting time orders. See Chambers v. United Farm Workers Org.
Comm., AFL-CIO, 25 Ariz. App. 104, 107 (1975) (stating that “mere
dissatisfaction” with the result of a judgment is insufficient to constitute
aggrievement for jurisdictional purposes). Accordingly, we dismiss that
portion of the appeal. See In re Estate of Friedman, 217 Ariz. at 552, ¶ 11.
¶6 Mother also reargues her previous challenges to the 2014
Order regarding legal decision-making and parenting time. However,
because our decision affirming the 2014 Order is law of the case on these
issues, we reject her argument. See Ziegler v. Super. Ct., 134 Ariz. 390, 393
(App. 1982); Copper Hills Enters., Ltd. v. Ariz. Dep't of Rev., 214 Ariz. 386, 390-
91, ¶ 15 (App. 2007).
2. Petition for Contempt.
¶7 Mother argues the family court erred in not holding Father in
contempt for certain violations of court orders. Specifically, Mother alleges
that Father violated vacation time orders, ended Skype calls early,
interfered with the child’s court-ordered counseling, and abused his power
as final decision-maker.
¶8 Civil contempt actions are not appealable. Elia v. Pifer, 194
Ariz. 74, 80, ¶ 30 (App. 1998); Berry v. Super. Ct., 163 Ariz. 507, 508 (App.
1989. Rather, such orders must be challenged by filing a petition for special
action. Stoddard v. Donahoe, 224 Ariz. 152, 154, ¶ 7 (App. 2010); Elia, 194 Ariz.
at 80, ¶ 30. Therefore, we lack jurisdiction to review Mother’s objections to
the court’s contempt decision. See Hurd v. Hurd, 223 Ariz. 48, 50 n.2, ¶ 9
(App. 2009). Accordingly, we dismiss that portion of the appeal. See Herzog
v. Reinhardt, 2 Ariz. App. 103, 105 (1965).
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PETROCELLI v. ANDERSON
Decision of the Court
B. Motion for New Trial.
¶9 Mother argues the family court erred in denying her motion
for new trial. See Ariz. R. Fam. Law P. 83. Although the denial of a motion
for new trial is generally appealable pursuant to Arizona Revised Statutes
section 12-2101(A)(5)(a), we look to the character of the order that gave rise
to the appeal to determine whether we have jurisdiction in a particular case.
Maria v. Najera, 222 Ariz. 306, 308, ¶ 9 (App. 2009) (citation omitted); see also
Green v. Lisa Frank, Inc., 221 Ariz. 138, 146, ¶ 14 (App. 2009).
¶10 For the reasons discussed above, Mother is not aggrieved by
the 2015 Order denying Father’s petition to modify parenting time, and the
underlying contempt order is not appealable. Therefore, we lack
jurisdiction to consider Mother’s appeal from the court’s order denying her
motion for new trial. See Maria, 222 Ariz. at 308, ¶ 12.
CONCLUSION
¶11 For the foregoing reasons, we dismiss Mother’s appeal. We
award costs to Father upon compliance with Arizona Rule of Civil
Appellate Procedure 21.
AMY M. WOOD • Clerk of the Court
FILED: JT
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