Opinion
1 CA-SA 13-0051
03-28-2013
MARTIN B. BEALER, Petitioner, v. THE HONORABLE TERESA A. SANDERS, Judge of the SUPERIOR COURT OF THE STATE OF ARIZONA, in and for the County of MARICOPA, Respondent Judge, JOYCE M. BEALER, Real Party in Interest.
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24
Maricopa County
Superior Court
No. FN2010-091387
DECISION ORDER
This is a special action from a divorce case. The parties were married in 1988. Joyce Bealer ("Wife") filed a petition for legal separation in 2010, and the parties entered into a property settlement agreement. The court signed their consent decree of legal separation in October 2010.
Two months later, Martin Bealer ("Husband") filed a petition for dissolution. In addition to a divorce, he also sought to modify the separation decree because he wanted an award of spousal maintenance and to divide a retirement account Wife forgot about when they entered into their property settlement agreement. The parties were unable to settle any issues, and the court issued a scheduling order that included the filing of pretrial motions and a trial date. Wife then filed a motion for partial summary judgment arguing that the earlier property settlement agreement resolved the issues. Husband filed a motion to strike the partial summary judgment motion as untimely. The court tacitly denied his motion by setting oral argument on the partial summary judgment motion.
On the day of trial, May 9, 2011, the motion was argued and Husband testified. The court granted Wife partial summary judgment and set a hearing to resolve the spousal maintenance issue. Wife filed a motion to correct the order nunc pro tunc, which the court granted. Similarly, Wife filed a motion asking the court to reconsider its partial summary judgment ruling, and the court did so over Husband's objection. As a result, the court found that the property settlement agreement, which had not merged into the decree, had resolved all issues, including spousal maintenance, and the court did not find any conditions that justified reopening the separation decree. The court signed the divorce decree on September 9, 2011.
In his notice of appeal, Husband challenged the June 2010 consent decree of legal separation, the unsigned minute entry granting partial summary judgment, and the unsigned minute entry granting reconsideration. He did not, however, appeal from the signed divorce decree, and Wife filed a motion to dismiss his notice of appeal. After briefing, the superior court dismissed Husband's notice of appeal in October 2011.
Husband then filed a notice of appeal from the order dismissing his appeal. After he filed his opening brief, Wife moved to strike it. After reviewing the pleadings, this court dismissed the appeal for lack of jurisdiction. See Bealer v. Bealer, 1 CA-CV 11-0697 (Ariz. App. Apr. 2, 2012) (order). The order suggested Husband could seek relief by special action but noted that it did "not constitute an expression . . . about whether jurisdiction will be accepted on a petition for special action review." Id.
Nearly eleven months later, Husband filed this special action petition challenging the family court's order striking his September 2011 notice of appeal. He also contends that the court erred by refusing to reopen the consent decree of separation pursuant to Arizona Rules of Family Law Procedure 85(C), and by denying his request for attorneys' fees and costs.
Special action jurisdiction is highly discretionary. Cicoria v. Cole, 222 Ariz. 428, 429, ¶ 4, 215 P.3d 402, 403 (App. 2009). Generally, special action jurisdiction is appropriate when a petitioner does not have an "equally plain, speedy, and adequate remedy by appeal," Ariz. R.P. Spec. Act. 1(a), or if the case presents an issue of first impression, is of statewide importance, and is likely to recur. State ex rel. Montgomery v. Woodburn (Schmeissing), 231 Ariz. 215, ¶ 4, 292 P.3d 201, 202 (App. 2012).
Husband does not have a remedy on appeal because of the procedural posture of this case. We, however, must first address whether to decline jurisdiction because Husband waited nearly eleven months after our April 2012 order to file his special action. Although there are no special action filing time limits in statutes or rules, Cicoria, 222 Ariz. at 429, ¶ 6, 215 P.3d at 403; State v. Mahoney (DeRoon), 25 Ariz. App. 217, 219, 542 P.2d 410, 412 (1975) (citing Felix v. Superior Court, 92 Ariz. 247, 249-50, 375 P.2d 730, 732 (1962)), "the normal period granted to file an appeal will apply unless circumstances of extraordinary character justifying the delay are shown." Mahoney, 25 Ariz. App. at 219, 542 P.2d at 412; Moulton v. Napolitano, 205 Ariz. 506, 516, ¶ 33, 73 P.3d 637, 647 (App. 2003) (stating that laches "is the only time limit imposed on special actions"). In Mahoney, we concluded that "[s]ince the petitioner has waited for a period of time which is almost 3 times the normal appeal period and has failed to justify the delay, we decline to grant relief." 25 Ariz. App. at 219, 542 P.2d at 412; Cicoria, 222 Ariz. at 430, ¶ 8, 215 P.3d at 404 (stating that "[w]ithout some explanation, a four- month delay in seeking special action relief would typically be unreasonable").
Here, Husband has not explained the nearly eleven-month delay before he filed this special action petition. The delay is some ten times more than the normal appeal. See Arizona Rule of Civil Appellate Procedure ("ARCAP") 9(a) (stating a notice of appeal has to be filed within thirty days of the entry of the judgment). As a result, we find the delay unreasonable and, in the exercise of our discretion, decline jurisdiction.
In spite of Husband's reliance on Klapprott v. U.S., 335 U.S. 601 (1949), we find it inapplicable. Klapprott, a naturalized United States citizen, had his citizenship revoked by default judgment while he was in prison. Id. at 603. He challenged the revocation four years later, but the district court dismissed his petition to set aside his revocation. Id. After reviewing his unchallenged facts, the Supreme Court reversed the dismissal and remanded the case for a hearing on the merits. Id. at 615. Husband, unlike Klapprott, has not provided any reason why he waited nearly eleven months to file his petition.
Moreover, even if we accepted jurisdiction we could not grant Husband relief. First, more than thirty days had passed between the entry of the consent decree of legal separation in October 2010 and the September 2011 notice of appeal. Consequently, Husband could not appeal from the decree of legal separation after his divorce.
Similarly, the two unsigned minute entries of May 9, 2011 and June 27, 2011 could not be appealed because they were not signed and were not final orders. See Eaton Fruit Co. v. Cal. Spray-Chem. Corp., 102 Ariz. 129, 130, 426 P.2d 397, 398 (1967) (finding that an unsigned order was not appealable); Hall Family Prop. v. Gosnell Dev. Corp., 185 Ariz. 382, 387, 916 P.2d 1098, 1103 (App. 1995). Although Husband could have challenged the rulings leading up to the decree, including the denial of his Rule 85(c) request, in an appeal from the signed divorce decree, Dowling v. Stapley, 221 Ariz. 251, 263 n.12, ¶ 36, 211 P.3d 1235, 1247 n.12 (App. 2009) (citing Arizona Revised Statutes ("A.R.S.") § 12-2102(A) (West 2013)), he did not appeal and the time to do so has long expired. Consequently, we could not grant Husband relief even if we accepted special action jurisdiction.
Wife seeks her attorneys' fees and costs. Citing A.R.S. § 25-324 (West 2013), Ariz. R.P. Spec. Act. 4(g), and ARCAP 25, she argues that she is entitled to recover her fees and costs because this action was frivolous and otherwise barred. We agree that this special action was frivolous in light of existing case law. Accordingly, we will award Wife her costs in this special action and a portion of her reasonable attorneys' fees upon compliance with ARCAP 21(c).
CONCLUSION
Based on the foregoing, the court, by Presiding Judge Margaret H. Downie and Judges Maurice Portley and Philip Hall, declines special action jurisdiction.
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MAURICE PORTLEY, Judge