Trial Court Retains Jurisdiction in Face of Clearly Premature Notice of Appeal

In re Marriage of Johnson, 650 Ariz. Adv. Rep. 4 (App. Div. II, December 19, 2012)

TRIAL COURT HAS JURISDICTION TO AWARD FEES AFTER "CLEARLY" PREMATURE FILING OF NOTICE OF APPEAL

The parties were divorced in 2005. This lawsuit concerns a fight over the interpretation of the property dissolution decree. The dispute revolves primarily around who gets what when certain real estate is ultimately sold. The trial court found the ex-wife had improperly obtained a default judgment against her ex and determined that it would award the ex-husband fees. However, before the court could issue an order setting the amount of the fees, petitioner ex-wife filed a notice of appeal. The Arizona Court of Appeals affirmed the trial court's determination that it had jurisdiction to award the fees after the notice of appeal.

The court of appeal recognized that the rule is that a notice of appeal divests a trial court completely of "jurisdiction of each and every matter connected with the case, except in furtherance of the appeal." However, there are recognized exceptions to this rule including, where it is clear that jurisdiction should remain in the trial court, the trial court may determine its own jurisdiction. Only when the issue of jurisdiction is "fairly debatable" must the trial court leave the determination of jurisdiction to the appellate court. Here where the court had expressly found the respondent to be entitled to fees, it was patently clear that petitioner's notice of appeal was premature and a nullity. There is further discussion of how to interpret a divorce degree for my family law friends which I will not discuss here.

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