Berry v. Decker ( 2015 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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:
SONJA ANN BERRY, Petitioner/Appellee,
v.
TERRY B. DECKER, Respondent/Appellant.
No. CA-CV 14-0368 FC
FILED 10-15-15
Appeal from the Superior Court in Maricopa County
No. DR1999-014781
The Honorable James T. Blomo, Judge
APPEAL DISMISSED
COUNSEL
Terry B. Decker, Mesa
Respondent/Appellant
Sonja Berry, Gilbert
Petitioner/Appellee
BERRY v. DECKER
Decision of the Court
MEMORANDUM DECISION
Judge Maurice Portley delivered the decision of the Court, in which
Presiding Judge Margaret H. Downie and Judge Patricia A. Orozco joined.
P O R T L E Y, Judge:
¶1 Terry Decker (“Father”) appeals the family court’s order
denying his motion to correct the factual findings of a 2011 minute entry.
For the following reasons, we dismiss the appeal.
FACTS AND PROCEDURAL HISTORY
¶2 Father and Sonja Ann Berry (“Mother”) divorced in 2001.
Mother was awarded sole custody of their two children. In 2009, the court
appointed a therapeutic interventionist (“TI”) and gave the TI the authority
to arrange psychological examinations for the children.1
¶3 The TI set up medical testing for the younger child at the
Melmed Center (“the Center”) in 2011. Mother objected to testing at the
Center and, instead, arranged for the child to be tested by a child
psychologist. The TI sent a report to the court, and the court issued a
minute entry stating the child shall attend the testing sessions scheduled by
the TI. In its findings, the court stated that before the TI had made any
testing arrangements, the TI “sought to determine if testing had been
arranged by the [parents]” and “learned that it had not.” Neither parent
objected to the ruling or its findings.
¶4 Three years later, Father filed a “motion to correct” the 2011
minute entry, alleging he had indeed scheduled the testing by “bifurcating
the various parts of the Melmed tests in lieu of doing all test phases without
interruption.” Father argued the minute entry “could reflect poorly and
incorrectly upon [him] in any future reference[s]” to the minute entry. The
court denied the motion, stating Father “waited almost three years” to file
the motion. Father appealed the court’s denial of his motion to correct.
1 The court reappointed the TI in 2010.
2
BERRY v. DECKER
Decision of the Court
DISCUSSION
¶5 We have an independent duty to determine if we have
jurisdiction over an appeal. Musa v. Adrian, 130 Ariz. 311, 312, 636 P.2d 89,
90 (1981). Unless a constitutional or statutory provision makes a judgment
or order appealable, we “do not have jurisdiction to consider the merits of
the question raised on appeal.” Id. (citation omitted). Arizona Revised
Statutes (“A.R.S.”) section 12-2101(A)(2) allows appeals from “any special
order made after final judgment.”2 However, “not every order following a
final judgment is appealable.” Arvizu v. Fernandez, 183 Ariz. 224, 226, 902
P.2d 830, 832 (App. 1995) (citation omitted).
¶6 To be appealable, a post-judgment order must meet two
requirements. Williams v. Williams, 228 Ariz. 160, 164, ¶ 11, 264 P.3d 870,
874 (App. 2011). First, the order must raise different issues from those that
would arise in an appeal from the underlying judgment. Id. And the order
must either affect the judgment or relate to it by enforcing or staying its
execution. Arvizu, 183 Ariz. at 833, 902 P.2d at 227.
¶7 Even if we assume for argument the 2011 minute entry was a
final judgment,3 the denial of Father’s motion to correct the record in 2014
is not appealable. First, Father did not challenge the findings or substance
of the 2011 ruling, and now seeks to challenge the findings. His appeal of
the 2014 ruling, as a result, does not raise any issue that could not have been
raised in an appeal from the 2011 order. See Engel v. Landman, 221 Ariz. 504,
510, ¶ 20, 212 P.3d 842, 848 (App. 2009).
¶8 Moreover, the 2014 ruling does not affect the decree that gave
rise to the 2011 ruling. Arvizu, 183 Ariz. at 227, 902 P.2d at 833 (“[A]
postjudgment order that does not affect the judgment or relate to its
enforcement [is] not appealable.” (alteration in original) (quoting Lakin v.
Watkins Associated Indus., 863 P.2d 179, 183 (Cal. 1995))). In fact, the issue
giving rise to the 2011 ruling is now moot; the child was tested in 2011 and
the TI was relieved of her duties in 2013. As a result, the mootness doctrine
prevents us from deciding an issue that is “no longer in existence because
of changes in the factual circumstances.” Flores v. Cooper Tire & Rubber Co.,
218 Ariz. 52, 57, ¶ 24, 178 P.3d 1176, 1181 (App. 2008) (internal citation and
2We cite to the current version of the statute unless otherwise noted.
3The minute entry was not signed and “[a]n unsigned minute entry is not
a final judgment.” Sysco Ariz., Inc. v. Hoskins, 235 Ariz. 164, 166, ¶ 10, 330
P.3d 354, 356 (App. 2014); see Ariz. R. Fam. Law P. 81 (“All judgments shall
be in writing and signed by a judge . . .”).
3
BERRY v. DECKER
Decision of the Court
quotation marks omitted). Consequently, the 2014 ruling does not meet the
requirements to be an appealable post-judgment order.
COSTS
¶9 Father seeks costs on appeal. Because he did not prevail, his
request is denied. See A.R.S. § 12-341.
CONCLUSION
¶10 Because the denial of Father’s motion to correct the minute
entry is a non-appealable post-judgment order, we dismiss the appeal for
lack of jurisdiction.
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