The parties so tangled this appeal that the court decided to take a Gordian Knot approach.

This is a divorce case. The parties were divorced in 2008. In 2011 the court modified the decree but in a way that nobody liked: Husband moved to amend that order and, less than an hour later, Wife appealed it. The trial court later denied Husband’s motion in an unsigned minute entry but, in a memo, the Court of Appeals dismissed because the motion had been pending when the appeal was filed.  After the memo came out Wife got the trial court to sign an identical minute entry and appealed it.

Yes, she appealed the denial of Husband’s motion rather than the modification order. She appealed the wrong order.

The court’s solution is to decide that her appeal is invalid anyway. The mandate from the first, dismissed, appeal hadn’t come down when Wife obtained the signed order and filed the second appeal. An appeal does not end until the mandate issues, no matter what the resolution of the appeal is. The trial court therefore had no jurisdiction to sign the order. The court concludes that Wife “could not appeal from it.” That elides the reasoning a bit since it suggests that a judgment entered without subject-matter jurisdiction isn’t appealable. But the alternative is to produce an appellate decision that either merely vacates the entry of the order, which accomplishes nothing and is an even bigger “gotcha” for Wife, or pretends that Wife appealed the right order, which she clearly and specifically didn’t.

Husband didn’t catch either of Wife’s mistakes; the court addresses jurisdiction sua sponte. Apparently he was vaguely aware that something was wrong with the second appeal but his response was to move to dismiss it on res judicata grounds. Generously, the court merely notes this without analyzing it.

Keep in mind, by the way, what happened here: the trial judge knew perfectly well that the case had gone up on appeal because that’s why he was being asked to sign another order. But nobody checked to see if the case had come back down yet. Nowadays you can’t rely on the court to know what its doing; the court will rely on you, instead – so you have to assume that the trial judge will sign anything that isn’t objected to.

(link to opinion)