Johnson v. Gravino (CA2 12/19/12)

CA2 concludes that the trial court misinterpreted a divorce decree. But that isn’t the publishable part. The opinion exists to discuss, once again, appeal procedure.

The trial judge issued a substantive ruling and ordered Johnson, the prevailing party, to file a fee affidavit. Gravino filed an appeal before the court ruled on the fees. The trial court decided that the notice of appeal was premature, that it still had jurisdiction; it awarded Johnson’s fees. Gravino appealed again.

On appeal the parties didn’t argue jurisdiction; the court goes out of its way to raise the issue and write an opinion about it. It is further evidence that the recent spate of cases about appeal procedure reflects the appellate courts’ frustration about seeing so many botched appeals.

The thrust is this: a premature notice is a nullity. The trail court can disregard it (not strike it – that’s for the Court of Appeals) unless jurisdiction is “fairly debatable, in which case the trial judge should let the appellate court decide. If the appealing party believes the appeal timely but the trial court proceeds anyway, the answer is special action.

The trial court can respect even a clearly void notice, though, as the opinion points out by discussing its recent opinion in Flores v. Martinez, another divorce case used as a vehicle for an opinion about appeal procedure. (But before you think that the court is being hard on domestic-relations lawyers remember that those are most of the “civil” cases CA2 sees nowadays.)

The opinion says that a trial court proceeding despite a notice of appeal should notify the Court of Appeals that it is doing so, so that the appellate court can stay its proceedings pending some motion by the parties. Presumably that’s what will happen but this is a procedural rule that should go through the normal rule process.

(link to opinion)