In Re the Marriage of Kassa

FILED BY CLERK
APR 12 2013
IN THE COURT OF APPEALS
STATE OF ARIZONA COURT OF APPEALS
DIVISION TWO
DIVISION TWO

In re the Marriage of: ) 2 CA-CV 2012-0114
) DEPARTMENT A
SCOTT KASSA, )
) OPINION
Petitioner/Appellant, )
)
and )
)
KAZUMI KASSA, )
)
Respondent/Appellee. )
)

APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

Cause No. D20040576

Honorable Peter J. Cahill, Judge

DISMISSED

Scott Kassa Vail
In Propria Persona

Kazumi Kassa Tucson
In Propria Persona

H O W A R D, Chief Judge.

¶1 Appellant Scott Kassa appeals from the trial court’s grant of an extension of

spousal maintenance payments to his former wife, Kazumi Kassa. Because we do not

have jurisdiction, we dismiss this appeal.
 Factual and Procedural Background

¶2 The record reflects the following procedural background. Scott and

Kazumi Kassa’s marriage was dissolved in December 2006. In September 2011, Kazumi

filed a petition requesting a finding of contempt for Scott’s failure to pay a previous

judgment, an increase and extension of spousal maintenance, a judgment on spousal

maintenance arrearages, a modification of child support, and attorney fees. The trial court

first denied her contempt request and granted her claim for arrearages. Then, in a

separate ruling on May 22, 2012, the court granted her continuing spousal maintenance

but denied her request to increase it. The court noted other issues were pending and set

an additional hearing. Scott filed a notice of appeal on June 5 regarding the May 22

ruling. Both parties filed briefs on the merits.

Jurisdiction

¶3 Neither Scott nor Kazumi cite any authority for our jurisdiction over this

appeal, as required under Rule 13(a)(3), Ariz. R. Civ. App. P. However, we have an

independent duty to determine whether we have jurisdiction. See Sorensen v. Farmers

Ins. Co. of Ariz., 191 Ariz. 464, 465, 957 P.2d 1007, 1008 (App. 1997). Our jurisdiction

is prescribed by statute, and we have no authority to entertain an appeal over which we do

not have jurisdiction. See Hall Family Props., Ltd. v. Gosnell Dev. Corp., 185 Ariz. 382,

386, 916 P.2d 1098, 1102 (App. 1995). We have jurisdiction to review special orders

made after judgment. A.R.S. §§ 12-120.21(A)(1); 12-2101(A)(4).

¶4 The Arizona Rules of Family Law Procedure require the trial court to

resolve all issues raised in a post-decree petition before the filing of an appeal. When an

“action” presents more than one claim for relief, any order of the court “that adjudicates

fewer than all the claims or the rights and liabilities of fewer than all the parties shall not
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terminate the action . . . and the order or other form of decision is subject to revision at

any time before the entry of judgment” unless the court directs entry of judgment “upon

an express determination that there is no just reason for delay.” Ariz. R. Fam. Law P.

78(B). An “action” under the rules “is commenced by filing a petition.” Ariz. R. Fam.

Law P. 23. A “petition” includes “the initial pleading . . . that commences a post-decree

matter.” Rule 3(B)(5), Ariz. R. Fam. Law P. A petition in a post-decree matter must

“set[] forth with specificity all relief requested.” Ariz. R. Fam. Law P. 91(A)(1).

¶5 Therefore under the Rules of Family Law Procedure, a post-decree petition

begins an action that includes various claims for relief. Unless the court certifies a ruling

on fewer than all of the claims raised in the post-decree petition using the language of

Rule 78(B), that ruling does not terminate the action and is subject to subsequent

modification. Because Rule 78(A) defines a judgment as “a decree and an order from

which an appeal lies,” a ruling that does not contain the required language does not

qualify as a final, appealable “judgment” under the rules. See Maria v. Najera, 222 Ariz.

306, ¶¶ 6-7, 214 P.3d 394, 395 (App. 2009) (under Rule 54(b), Ariz. R. Civ. P., judgment

not final for purpose of appeal until it disposes of all claims and all parties).1 Further, a

notice of appeal filed before entry of a final judgment is premature, ineffective, and a

nullity. See Craig v. Craig, 227 Ariz. 105, ¶ 13, 253 P.3d 624, 626 (2011); Ariz. R. Fam.

Law P. 1 cmt.

1
Rule 78(B) is substantially the same as Rule 54(b), and therefore we may apply
interpretations of Rule 54(b) to Rule 78(B). See Ariz. R. Fam. Law P. 1 cmt. (“Wherever
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.”); Rule 78 cmt.
(rule based on civil Rule 54).

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¶6 Although the trial court resolved Kazumi’s claims regarding contempt,

arrearages, and spousal maintenance, it left unresolved her claims for modification of

child support and attorney fees. In its April order, the court stated it had “insufficient

information to grant [or] deny” the request for child support and deferred ruling on that

claim. The court never addressed Kazumi’s request for attorney fees. The court

specifically set further hearings to resolve these issues. Thus, the court may ultimately

modify these initial determinations in light of its final decision on the remaining two

issues concerning child support and attorney fees. Because the court did not resolve all of

the issues raised in the petition or use the required language to terminate the action as to

fewer than all claims for relief, its order is not final and appealable as a special order after

judgment. See Rule 78(B); see also Fields v. Oates, 230 Ariz. 411, ¶¶ 10-13, 286 P.3d

160, 163-64 (App. 2012) (judgment not final and appealable in the absence of Rule 54(b)

certification); In re Marriage of Dorman, 198 Ariz. 298, ¶¶ 3-4, 9 P.3d 329, 331-32 (App.

2000) (special order appealable when it resolves “all the issues raised in the petition”).

Thus Scott’s notice of appeal was premature, ineffective, and a nullity. See Craig, 227

Ariz. 105, ¶ 13, 253 P.3d at 626. Accordingly, we dismiss this appeal for lack of

jurisdiction.

Attorney Fees

¶7 Kazumi requests her costs and attorney fees on appeal.2 However, she does

not cite any authority providing a basis for this request. Rule 21(c)(1), Ariz. R. Civ.

App. P., requires that a request for attorney fees state “the statutory or contractual basis

2
We note Kazumi is unrepresented on appeal.

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for the award.” Roubos v. Miller, 214 Ariz. 416, ¶ 21, 153 P.3d 1045, 1049 (2007). A

“general request that [a party] be awarded attorneys’ fees does not constitute a claim

‘pursuant to statute, decisional law or contract[.]’” Ezell v. Quon, 224 Ariz. 532, ¶ 31,

233 P.3d 645, 652 (App. 2010), quoting Rule 21(c)(1). Because Kazumi’s request does

not cite any basis for an award of fees and costs, we deny it.

Conclusion

¶8 For the foregoing reasons, we dismiss the appeal and deny Kazumi’s

request for attorney fees and costs.

/s/ Joseph W. Howard
JOSEPH W. HOWARD, Chief Judge

CONCURRING:

/s/ Peter J. Eckerstrom
PETER J. ECKERSTROM, Presiding Judge

/s/ Michael Miller
MICHAEL MILLER, Judge

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