In Re the Marriage Of: Bollermann v. Nowlis

IN THE
SUPREME COURT OF THE STATE OF ARIZONA
IN RE THE MARRIAGE OF:
KAREN LYNN BOLLERMANN,
Petitioner/Appellant,
v.
STEPHEN MICHAEL NOWLIS,
Respondent/Appellee.
No. CV-13-0279-PR
Filed April 17, 2014
Appeal from the Superior Court in Maricopa County
The Honorable Danielle J. Viola, Judge
No. FC2006-050605
Order of the Court of Appeals, Division One
No. 1 CA-CV 12-0776
VACATED AND REMANDED
COUNSEL:
Yvette D. Ansel (argued), Jennifer B. Rubin, David B. Goldstein, Hymson
Goldstein & Pantiliat, PLLC, Scottsdale, for Karen Lynn Bollermann
Sandra Burt, Burt & Feldman, Scottsdale; and Melinda K. Cekander
(argued), Melinda K. Cekander PLLC, Flagstaff, for Stephen Michael
Nowlis
VICE CHIEF JUSTICE BALES authored the opinion of the Court, in which
CHIEF JUSTICE BERCH, JUSTICE PELANDER, JUSTICE BRUTINEL, and
JUSTICE TIMMER joined.
VICE CHIEF JUSTICE BALES, opinion of the Court:
¶1 We granted review to determine whether a party may
appeal a family court order that neither resolves a pending request for
attorneys’ fees nor includes language making the order appealable
pursuant to Arizona Rule of Family Law Procedure 78(B). Because we
BOLLERMANN V. NOWLIS
Opinion of the Court
interpret Rule 78(B) consistently with its civil counterpart, Arizona Rule of
Civil Procedure 54(b), we hold that such an order is not final for purposes
of appeal.
I.
¶2 Karen Lynn Bollermann (“Wife”) and Stephen Michael
Nowlis (“Husband”) divorced in 2006. Beginning in the fall of 2009 they
filed a flurry of post-decree petitions, culminating in a hearing before the
superior court on September 6, 2011. Four days before the hearing, Wife
filed a petition seeking reimbursement for certain 2010-11 expenses under
the terms of the decree of dissolution. Although the parties’ joint pretrial
statement noted that these expenses were in dispute, the court did not
consider them at the hearing.
¶3 On November 1, 2011, the court entered an order resolving
all of the other issues listed in the pretrial statement. Although the court
had instructed the parties that it would not decide attorneys’ fees until it
resolved the 2010–11 expenses, it denied Wife’s request for fees. Shortly
thereafter, the court vacated this fee ruling.
¶4 Some ten months later, on September 12, 2012, the court
entered an order that awarded Wife a judgment on the 2010–11 expenses
and again denied her request for attorneys’ fees. On October 11, 2012,
Wife filed a notice of appeal from both the November 1, 2011 and
September 12, 2012 orders. The court of appeals dismissed the appeal
from the November 1, 2011 order as untimely, citing Reeck v. Mendoza, 232
Ariz. 299, 304 P.3d 1122 (App. 2013). There is no dispute that Wife’s
appeal from the September 12, 2012 judgment is timely.
II.
¶5 We granted review because the appealability of family court
orders is a recurring legal issue of statewide importance. See, e.g., In re
Marriage of Kassa, 231 Ariz. 592, 299 P.3d 1290 (App. 2013); In re Marriage of
Johnson & Gravino, 231 Ariz. 228, 293 P.3d 504 (App. 2012); Ghadimi v.
Soraya, 230 Ariz. 621, 285 P.3d 969 (App. 2012). We review construction of
court rules de novo. State v. Payne, 233 Ariz. 484, 502 ¶ 49, 314 P.3d 1239,
1257 (2013).
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BOLLERMANN V. NOWLIS
Opinion of the Court
¶6 A party seeking to appeal a final family court judgment
must do so within thirty days after the judgment is signed and filed with
the clerk of the court. See ARCAP 9(a); Ariz. R. Fam. L. P. 81(A). With
limited exceptions not applicable here, a notice of appeal filed before the
entry of final judgment is “a nullity.” Craig v. Craig, 227 Ariz. 105, 107
¶ 13, 253 P.3d 624, 626 (2011); see A.R.S. § 12-2101(A)(1) (an appeal may be
taken from a “final judgment”).
¶7 Rule of Family Law Procedure 78(B) states:
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.
Ariz. R. Fam. L. P. 78(B) (emphasis added).
¶8 That rule is nearly identical to Rule of Civil Procedure 54(b),
on which it is based. See Ariz. R. of Civ. P. 54(b); see also Ariz. R. Fam. L.
P. 78 cmt. Rule 54(b) prohibits the entry of final judgment absent a
determination of all issues, including attorneys’ fees, except upon express
direction from the trial court. Nat’l Broker Assocs. v. Marlyn Nutraceuticals,
Inc., 211 Ariz. 210, 217–18 ¶ 36, 119 P.3d 477, 484–85 (App. 2005). The
family rules provide 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.” Ariz. R. Fam. L.
P. 1 cmt. Thus, we hold that, absent Rule 78(B) language determining
there is no just reason for delay and directing entry of final judgment, a
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Opinion of the Court
judgment that does not dispose of a request for attorneys’ fees is not final
for purposes of appeal.
¶9 The civil rules are admittedly clearer on this point than are
the family rules. Civil Rule 58(g) specifies that no judgment shall be
entered that does not address attorneys’ fees, except as provided in Rule
54(b). Ariz. R. Civ. P. 58(g); see Nat’l Broker, 211 Ariz. at 217–18 ¶ 36, 119
P.3d at 484–85. Under the family rules, “the determination as to the
claimed attorneys’ fees shall be included with a decision on the merits of
the case or as otherwise ordered by the court.” Ariz. R. Fam. L. P. 78(D)(2)
(emphasis added). We read the latter phrase as an allusion to the
procedure set forth in Rule 78(B) for entry of final judgment on fewer than
all the claims.
¶10 Reeck held that a subset of family court decisions are
“inherently final” such that “the very act of entering them functions as an
express determination of finality by the court,” 232 Ariz. at 301–02 ¶ 8, 304
P.3d at 1124–25. This vague standard, however, offers little guidance for
determining which decisions are immediately appealable and is simply
unworkable in a context where clarity is of paramount concern.
¶11 Some family court decisions, as Reeck correctly recognizes,
take effect upon entry. The Reeck court drew the proposition that
dissolution decrees and child support orders are “inherently final” from
statutes plainly concerned with effectiveness rather than appealability.
See id. at 302 ¶ 9–10, 304 P.3d at 1125; see also A.R.S. §§ 25-325(A)
(providing that dissolution decrees are “final when entered,” that parties
may generally remarry pending appeals, and that child or spousal support
orders remain effective pending appeal), -327 (child support orders). An
order may be “final” for purposes of taking effect even though it is not an
immediately appealable “final” judgment. See Matter of Brother’s Estate,
134 Ariz. 536, 537, 658 P.2d 189, 190 (App. 1982) (“The obvious purpose of
[§ 25-325(A)] is to . . . allow the parties to marry during the pendency of an
appeal.”).
¶12 Finally, we seek to quell the concern voiced in Reeck that the
rule we adopt today might allow parties to delay appeals, and thereby
postpone finality of important family court orders, by declining to apply
for attorneys’ fees. The family rules lack a counterpart to Civil Rule 54(g),
which generally requires a motion for attorneys’ fees to be filed within
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BOLLERMANN V. NOWLIS
Opinion of the Court
twenty days of the clerk’s mailing of a decision on the merits.
Nonetheless, family courts can avoid unwarranted delay by requiring
parties to submit fee applications within a defined time period, see, e.g.,
Ghadimi, 230 Ariz. at 622 ¶ 2, 285 P.3d at 970, or by including Rule 78(B)
language in rulings on the merits. A party who wishes to appeal, or to
commence the running of time for the other party to appeal, should ask
the court to follow one or both of these approaches.
III.
¶13 We vacate the court of appeals’ order dismissing Wife’s
appeal of the November 1, 2011 family court order and remand the case to
the court of appeals for further proceedings consistent with this opinion.
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