Potter v. Potter

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

BETSY JO POTTER, Petitioner/Appellee,

v.

PHILLIP TERRY POTTER, Respondent/Appellant.

No. 1 CA-CV 24-0408 FC
FILED 04-29-2025

Appeal from the Superior Court in Maricopa County
No. FC2015-050659
The Honorable Andrew J. Russell, Judge

AFFIRMED

COUNSEL

Burggraff Tash Levy PLC, Scottsdale
By Michael J. Dinn, Jr., Randi Burggraff
Counsel for Petitioner/Appellee

Phillip Terry Potter, Scottsdale
Respondent/Appellant
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Decision of the Court

MEMORANDUM DECISION

Presiding Judge Brian Y. Furuya delivered the decision of the Court, in
which Judge D. Steven Williams and Judge Samuel A. Thumma joined.

F U R U Y A, Judge:

¶1 Phillip Terry Potter (“Father”) appeals the superior court’s
2020 child support and other orders, arguing they are void because the
court lacked subject matter jurisdiction. Because the court’s 2020 orders are
not void, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 Betsy Jo Potter (“Mother”) and Father married in 2005 and
divorced in 2017. Together they have one child, who has since emancipated.
Both parties participated in extensive litigation throughout these divorce
proceedings.

¶3 In 2017, Father filed a Petition to Modify Child Support
(“Petition”). In 2018, the superior court reduced Father’s monthly child
support to $356 based on imputed income and awarded $4,568 in attorney’s
fees. Father appealed, arguing the court erred in calculating income and
failed to credit him for health insurance payments.

¶4 In September 2019, we issued a memorandum decision
vacating the child support modification order and order awarding
attorney’s fees, remanding for the court to reconsider both parties’ income
and Father’s evidence of health insurance costs. Potter v. Potter, 1 CA-CV
18-0357 FC, 2019 WL 4643821 (App. Sept. 24, 2019) (mem. decision) (“Potter
I”). We issued our mandate in Potter I on January 15, 2020.

¶5 Meanwhile, in late October 2019—after our memorandum
decision issued but before we issued the mandate—Father requested a
hearing to resolve the issues we noted in Potter I to be addressed on remand.
Even though the mandate had not issued, the superior court held that
requested evidentiary hearing on January 3, 2020. Both parties testified and
submitted exhibits and, at the end of the hearing, the court ordered the
parties to submit written closing arguments.

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Decision of the Court

¶6 After the issuance of the mandate in Potter I and after the
parties submitted written closing arguments on the remand, the superior
court issued a March 3, 2020 minute entry resolving several pending
matters, including the issues raised to comply with the Potter I remand.
However, the minute entry did not resolve all issues and was not a final
judgment. The court issued additional orders resolving other disputes. And
after further litigation over child support overpayment and attorneys’ fees,
the court issued a final judgment on May 28, 2020. Father filed an untimely
notice of appeal from that final judgment, and we dismissed his appeal for
lack of jurisdiction.

¶7 More than three years passed. In 2024, Father filed two
motions for relief from the May 2020 judgment under Arizona Rule of
Family Law Procedure (“Rule”) 85, arguing the court’s orders issued March
3, 2020, April 17, 2020, April 24, 2020, May 5, 2020, and the May 28, 2020
final judgment (collectively the “Challenged Orders”) should be vacated
because the court lacked subject matter jurisdiction until the Potter I
mandate. The court denied Father’s motions. We have jurisdiction over
Father’s timely appeal from those rulings under Arizona Revised Statute
(“A.R.S.”) § 12-2101(A)(2).

DISCUSSION

¶8 We review denial of Rule 85 motions for an abuse of
discretion. Quijada v. Quijada, 246 Ariz. 217, 220 ¶ 7 (App. 2019). We will not
disturb a court’s discretionary act unless that act was “‘manifestly
unreasonable, or exercised on untenable grounds, or for untenable
reasons.’” Silence v. Betts, 125 Ariz. Cases Dig. 60 ¶ 7 (App. June 27, 2024)
(quoting Tilley v. Delci, 220 Ariz. 233, 238 ¶ 16 (App. 2009)).

¶9 As he did in his Rule 85 motions, Father argues that the
superior court lacked subject matter jurisdiction during the January 3, 2020
hearing. He observes, correctly, that at that time the mandate in Potter I had
not yet issued. But he further reasons that, because the court held the
January 3, 2020 hearing before the mandate issued, it lacked jurisdiction to
hold the hearing and this claimed error tainted the subsequent entry of all
rulings, orders, and judgments based on, or related to, what occurred at that
hearing, rendering them likewise void for lack of subject matter
jurisdiction. Not so.

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Decision of the Court

¶10 “‘Subject matter jurisdiction is the power of a court to hear
and determine a controversy.’” Medina v. Est. of Cody, 256 Ariz. 335, 337 ¶ 7
(App. 2023) (quoting Grosvenor Holdings, L.C. v. Figueroa, 222 Ariz. 588, 594
¶ 13 (App. 2009)). “We review de novo whether a superior court has subject
matter jurisdiction over a civil action.” Id.

¶11 “A judgment or order is ‘void’ if the court entering it lacked
jurisdiction: (1) over the subject matter, (2) over the person involved, or (3)
to render the particular judgment or order entered.” In re Marriage of
Dougall, 234 Ariz. 2, 6 ¶ 12 (App. 2013) (quoting Martin v. Martin, 182 Ariz.
11, 15 (App. 1994)). “By contrast, a judgment or order is voidable ‘when the
trial court has subject matter jurisdiction but errs in issuing an order.’” Id.
(quoting State v. Bryant, 219 Ariz. 514, 518 ¶ 14 (App. 2008)).

¶12 Although our decision in Potter I was issued on Sept. 24, 2019,
the mandate did not issue until January 15, 2020. Thus, the superior court
did not have jurisdiction when it held the evidentiary hearing on January
3, 2020. See Nicaise v. Bernick, 256 Ariz. 568, 570 ¶ 9 (App. 2024) (“[A]n
appeal generally divests the trial court of jurisdiction to proceed except in
furtherance of the appeal.”); In re Marriage of Johnson & Gravino, 231 Ariz.
228, 232 ¶ 13 (App. 2012) (observing that once an appeal has commenced,
jurisdiction does not revest in the trial court until our mandate issues). But
we disagree that any error in holding the hearing 12 days before the
mandate issued rendered the Challenged Orders void.

¶13 Here, because Father appeals the Challenged Orders, we
examine whether the court had jurisdiction when it issued them to
determine whether they are void. We issued our mandate in Potter I on
January 15, 2020, which revested jurisdiction in the superior court as of that
date. Ariz. R. Civ. App. P. (“ARCAP”) 24(a). The superior court did not
decide the issues remanded by Potter I until its March 3, 2020 minute entry
and did not enter final judgment on them until May 28, 2020. Both of these
dates were well beyond the point where the court reacquired jurisdiction
and the court had jurisdiction over the parties and the case when it entered
them. Id.; see also Medina, 256 Ariz. at 337 ¶ 7 (delineating that court has
subject matter jurisdiction where it has power to hear and determine the
controversy).

¶14 To the extent Father argues the Challenged Orders were
voidable, he failed to timely challenge them. And as noted, Father failed to
timely appeal from the March 3, 2020 minute entry or the May 28, 2020 final
judgment and may not do so now. See Dougall, 234 Ariz. at 5 ¶ 7.

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Decision of the Court

CONCLUSION

¶15 Because Father has shown no abuse of discretion, we affirm
the court’s denial of Father’s Rule 85 motions.

¶16 Mother requests reasonable attorneys’ fees and costs arguing
Father’s positions have been objectively unreasonable throughout the
litigation. We agree. Father’s arguments to this court are objectively
unreasonable and we grant Mother her reasonable attorneys’ fees and costs
in accordance with A.R.S. § 25-324(A) upon her compliance with ARCAP
Rule 21.

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

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