Mamolen v. Mamolen

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

SUSAN MARIE MAMOLEN, Petitioner/Appellee,

v.

MARCUS PAUL MAMOLEN, Respondent/Appellant.

No. 1 CA-CV 24-0149 FC
FILED 05-08-2025

Appeal from the Superior Court in Maricopa County
No. FC2022-001019
The Honorable James N. Drake, Judge

DISMISSED

COUNSEL

The Cavanagh Law Firm, PA, Phoenix
By Christina S. Hamilton, Daniel P. Beeks
Counsel for Plaintiff/Appellee

Jaburg & Wilk, PC, Phoenix
By Kathi M. Sandweiss
Counsel for Respondent/Appellant
 MAMOLEN v. MAMOLEN
Decision of the Court

MEMORANDUM DECISION

Judge David D. Weinzweig delivered the decision of the Court, in which
Presiding Judge Michael S. Catlett and Judge Daniel J. Kiley joined.

W E I N Z W E I G, Judge:

¶1 Marcus Mamolen (“Husband”) appeals the superior court’s
order denying reconsideration of an earlier denial of Rule 85 relief. We
conclude that we lack appellate jurisdiction and dismiss this appeal.

FACTS AND PROCEDURAL BACKGROUND

¶2 Susan Mamolen (“Wife”) petitioned to divorce Husband.
Husband failed to appear, so the court entered a default decree. Based on
valuations offered by Wife and her expert, the court valued the marital
estate at $35 million and awarded half to each spouse.

¶3 Husband moved to set aside the default decree, arguing he
had not been properly served and the resulting default decree overvalued
the marital estate. The court denied his motion, finding he had been
properly served and failed to demonstrate how the valuation was incorrect.
Husband did not appeal that ruling.

¶4 Husband paid Wife about $9.1 million of the $17.5 million
owed to her. Because Husband did not pay the full amount, Wife petitioned
the court to find him in contempt and enter judgment against him for the
unpaid amount. At the contempt hearing, Husband claimed he could not
pay because the marital estate was overvalued.

¶5 The superior court requested briefing on whether it had
authority under Rule 85(b)(6), Ariz. R. Fam. Law P., to reconsider its earlier
denial of Husband’s motion to set aside the default decree. In his brief,
Husband again urged the court to set aside the default decree because of
Wife’s alleged overvaluation. He also offered nearly 300 pages of new
exhibits, including an expert report. We treat Husband’s brief to the
superior court as a motion for reconsideration.

¶6 The court refused to reconsider its denial of Husband’s
motion to set aside, finding that Husband failed to prove the decree was

2
 MAMOLEN v. MAMOLEN
Decision of the Court

inequitable, and granting Wife judgment for $8,387,930. Husband timely
appealed.

DISCUSSION

I. Appellate Jurisdiction.

¶7 Our jurisdiction is limited to that specifically provided by
statute, Brionna J. v. Dep’t of Child Safety, 247 Ariz. 346, 349, ¶ 7 (App. 2019),
and “[w]e have an independent duty to determine whether we have
jurisdiction over an appeal,” Desert Palm Surgical Grp. v. Petta, 236 Ariz. 568,
576, ¶ 15 (App. 2015).

¶8 Husband argues the superior court’s denial of his motion for
reconsideration is an appealable final judgment, but the court entered the
final judgment when it denied Husband’s motion to set aside the default
decree in January 2023. Husband never appealed that order, so we lack
jurisdiction. A “special order made after final judgment” is appealable only
if “the issues raised by the appeal from the order [are] different from those
that would arise from an appeal from the underlying judgment.” Arvizu v.
Fernandez, 183 Ariz. 224, 226 (App. 1995). Husband raises no different
issues here.

¶9 Huband contends he presented new evidence, so he raised
different issues, but Husband’s new evidence addressed same issue—
whether the marital estate was overvalued. We have no jurisdiction.

II. Special Action Jurisdiction.

¶10 We may still accept special action jurisdiction under Rule
11(e) of the Rules of Procedure for Special Actions if “consistent with Rule
12.” Ariz. R.P. Spec. Act. 11(e). Rule 12 emphasizes the key consideration
for special action review is whether an equally plain, speedy and adequate
remedy by appeal exists. See Ariz. R.P. Spec. Act. 12(a). Rule 12 also lists
non-exclusive factors that favor accepting or declining jurisdiction. Ariz.
R.P. Spec. Act. 12(b)–(c).

¶11 We decline special action jurisdiction. Husband had an
equally plain, speedy and adequate remedy—namely, he could have
appealed the denial of his motion to set aside the default decree. He never
did. And all Rule 12 factors weigh against accepting special action
jurisdiction. Ariz. R.P. Spec. Act. 12(b)–(c).

3
 MAMOLEN v. MAMOLEN
Decision of the Court

CONCLUSION

¶12 We lack appellate jurisdiction, decline special action
jurisdiction and thus dismiss this appeal.

¶13 Both parties request their attorney fees and costs incurred on
appeal under A.R.S. § 25-324(A), which requires us to consider “the
financial resources of both parties and the reasonableness of the positions
each party has taken throughout the proceedings.” Having considered
these factors, we exercise our discretion to award Wife her reasonable
attorney fees and taxable costs incurred on appeal upon compliance with
ARCAP 21.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

4