Following the 2019 amendment to Rule 78 that superseded Yee v. Yee, even post-decree orders must include a Rule 78(b) or (c) recitation to be appealable. Until a final appealable order is entered, the trial court can modify a non-appealable order entered in the same case. Here, a non-appealable order absolving Father of all child support arrears was revisited more than a year later after Mother submitted a corrected arrears calculation.
Father was ordered to pay child support in the parties’ 1993 dissolution case. Father paid intermittently over the years, and the court entered an arrears judgment in 1998 that accrued interest at 10% per year. After the parties’ child turned 18 in 2009, the court terminated Father’s current obligation for support and ordered him to make payments towards arrears of $100 per month.
Father petitioned the court in 2019 to terminate the income withholding order, and attached an unofficial letter from the clerk stating that he had overpaid support as of June 2018. Mother did not respond. In February 2020, the court entered an order stopping the withholding order and declaring all child support “fully paid and satisfied, including all past due support, arrearage judgments and interest.” Notably, the order did not include Rule 78(b) or (c) language.
A year later, Father requested reimbursement of almost $17,000 in child support overpayments. This time, Mother objected and argued that Father still owed interest on the prior arrears judgment. Both parties made arguments under Rule 85, but the court ultimately agreed with Mother, finding that the previous arrears calculation was incorrect and did not include interest. Father appealed.
First, a brief recap of Rule 78:
Rule 78 was amended effective January 1, 2019 to require that a judgment include specific language before it is appealable. If a judgment resolves all issues, it must state that “no further matters remain pending” and be entered under Rule 78(c). A judgment resolving fewer than all claims must state that “there is no just reason for delay” and be entered under Rule 78(b).
In Yee v. Yee (2021), the court held that fully-resolved post-decree orders are “special orders made after final judgment” and are appealable under A.R.S § 12-2101(A)(2), even if they don’t include Rule 78 language. The court also suggested in Yee that a rule change may be necessary to avoid uncertainty and confusion about appealable orders.
Rule 78 was amended on August 29, 2022 to specifically include post-decree orders within the definition of “judgment.” The order adopting the amendment states that it applies to all future cases and “all cases pending in the superior courts and appellate courts on the filing date of this order.” Now, in order to be appealable, even post-decree orders must include the Rule 78(b) or (c) recitation. The 2022 rule change has therefore superseded the analysis in Yee that post-decree orders lacking Rule 78 language are still appealable.
Relying on the new Rule 78, the court of appeals in Motley upheld the trial court’s judgment against Father. The original February 2020 order absolving Father of all child support arrears was not certified under Rule 78(b) or (c). The Motley appeal was pending at the time the amendment was adopted, and therefore the new Rule 78 applied. Absent a Rule 78(b) or (c) recitation, the court had the authority to enter a new judgment that correctly reflected Father’s remaining child support obligation.
The court of appeals cited other cases holding that the trial court can modify a non-appealable order issued in the same case, such as Courtney v. Foster, 235 Ariz. 613, 616, ¶¶ 9–10, 334 P.3d 1272, 1275 (App. 2014) (recognizing that a court has “inherent authority to modify its own order”). Indeed, even Rule 78(b) itself notes that an order lacking the express language “is subject to revision at any time before the entry of a judgment adjudicating all the claims and all the parties’ rights and liabilities.” Here, Mother never had the ability to appeal the February 2020 order, and therefore it was subject to revision until a final appealable order was entered.
Motley v. Simmons, 1 CA-CV 22-0541 FC, 2023 WL 6566749 (App. Oct. 10, 2023).