SUPREME COURT OF ARIZONA

En Banc

In re the Marriage of: ) Arizona Supreme Court 

 ) No. CV-10-0397-PR 

SUE LYNN CRAIG, ) 

 ) Court of Appeals 

 Petitioner/Appellant ) Division One 

 Cross-Appellee, ) No. 1 CA-CV 08-0776 

 ) 

 v. ) Maricopa County 

 ) Superior Court 

ROGER THOMAS CRAIG, ) No. FN2004-092607 

 ) 

 Respondent/Appellee ) 

 Cross-Appellant. ) 

 ) O P I N I O N

__________________________________) 

Appeal from the Superior Court in Maricopa County 

The Honorable Dean M. Fink, Judge

________________________________________________________________

Opinion of the Court of Appeals, Division One

225 Ariz. 508, 240 P.3d 1270 (App. 2010)

AFFIRMED

________________________________________________________________

SLATON LAW OFFICE, P.C. Scottsdale

 By Sandra L. Slaton

 Douglas Lowden

Attorneys for Sue Lynn Craig

KEITH R. LALLISS, ATTORNEY AT LAW Mesa

 By Keith R. Lalliss

Attorney for Roger Thomas Craig

________________________________________________________________

H U R W I T Z, Vice Chief Justice

¶1 We stated thirty years ago that appellate courts 

should “dismiss for lack of jurisdiction the case where a 

litigant attempts to appeal where a motion is still pending in 
2 

the trial court.” Barassi v. Matison, 130 Ariz. 418, 422, 636 

P.2d 1200, 1204 (1981). At issue today is whether this dictum 

applies when the notice of appeal is filed by a non-moving 

party. 

I. 

¶2 On September 9, 2008, the superior court issued a 

decree dissolving the marriage of Sue Lynn Craig (“Wife”) and 

Roger Thomas Craig (“Husband”). Husband timely filed a motion 

for new trial or to amend the decree under Arizona Rules of 

Family Law Procedure 83 and 84. Before the court ruled on 

Husband’s motion, however, Wife filed a notice of appeal. 

Husband then cross-appealed. The superior court later denied 

Husband’s motion. Neither party filed a new or amended notice 

of appeal. 

¶3 Relying on Barassi, a divided court of appeals 

dismissed both fully-briefed appeals for lack of jurisdiction. 

Craig v. Craig, 225 Ariz. 508, 509 ¶ 1, 240 P.3d 1270, 1271 

(App. 2010). The majority noted that Performance Funding, 

L.L.C. v. Barcon Corp., 197 Ariz. 286, 3 P.3d 1206 (App. 2000), 

found the general Barassi rule inapplicable when a notice of 

appeal is filed by a party other than the one who filed the 

time-extending motion. Craig, 225 Ariz. at 509 ¶ 5, 240 P.3d at 

1271. However, the majority concluded that this Court 

“reaffirmed” Barassi in Smith v. Arizona Citizens Clean 
3 

Elections Commission, 212 Ariz. 407, 415 ¶ 38, 132 P.3d 1187, 

1195 (2006), and therefore dismissed the appeals. 

¶4 Judge Kessler dissented, perceiving “tension” between 

Performance Funding and Smith, as the latter did not deal with 

an appeal filed by a party who had not filed the time-extending 

motion. Id. at 509-10 ¶ 7, 240 P.3d at 1271-72 (Kessler, J., 

dissenting). Judge Kessler also believed that Wife had a right 

to rely on Performance Funding, because it “had not been 

overruled, questioned, or vacated” when she filed her notice of 

appeal. Id. at 510 ¶ 8, 240 P.3d at 1272. 

¶5 We granted Wife’s petition for review because the 

scope of appellate jurisdiction is a recurrent issue of 

statewide importance. ARCAP 23(c). We have jurisdiction under 

Article 6, Section 5(3) of the Arizona Constitution and A.R.S. 

§ 12-120.24 (2010). 

II. 

¶6 An appeal may be filed from “a final judgment entered 

in . . . superior court.” A.R.S. § 12-2101(B). The dissolution 

decree in this case was indisputably a final judgment. Appeal 

also lies from an order granting or denying a new trial. A.R.S. 

§ 12-2101(F)(1).1

 

                                                           

1

 Because Arizona Rule of Family Law Procedure 78(A) defines 

“judgment” as “a decree and an order from which an appeal lies,” 

an order granting or denying a new trial is also an appealable 

“judgment” for purposes of Arizona’s procedural rules. See also 
4 

¶7 After “the entry of the judgment from which the appeal 

is taken,” a notice of appeal must be filed within thirty days 

“unless a different time is provided by law.” ARCAP 9(a). 

However, if any party files any of a series of specified postjudgment motions – including a motion for a new trial - the 

“time for appeal for all parties is extended” and does not begin 

to run until the entry of an order disposing of such motions. 

ARCAP 9(b).

¶8 The interplay of the appeals statute and our 

procedural rules has periodically required Arizona courts to 

address appellate jurisdiction when a notice of appeal was filed 

before the entry of an order disposing of a time-extending postjudgment motion. In Barassi, the notice of appeal was filed 

after the superior court issued a minute entry denying a motion 

for a new trial, but before the formal entry of that order under 

Arizona Rule of Civil Procedure 58(a), which requires that all 

judgments “be in writing . . . and signed by a judge.” 130 

Ariz. at 419, 636 P.2d at 1201. We therefore characterized the 

notice of appeal as “premature.” Id. at 420, 636 P.2d at 1202. 

¶9 In Barassi, we did not dismiss the premature appeal. 

Rather, we reinstated the appeal and noted: 

The underlying rationale of requiring a final judgment 

for appealability is to avoid the constant disruption 

__________________________

Ariz. R. Civ. P. 54(a) (containing identical definition of 

“judgment”). 
5 

of the trial process, to prevent appellate courts from 

considering issues that may be addressed later in 

trial, and to promote efficiency . . . . To permit an 

appeal in the instant case does not circumvent these 

concepts. 

Id. at 421, 636 P.2d at 1203. We expressly cautioned, however, 

that this exception to the final judgment rule was limited, 

stressing that ordinarily, appellate courts lack jurisdiction if 

“a litigant attempts to appeal where a motion is still pending 

in the trial court.” Id. at 422, 636 P.2d at 1204. 

¶10 The court of appeals applied this principle in Baumann 

v. Tuton, in which a party moved for a new trial but filed a 

notice of appeal while the motion was pending. 180 Ariz. 370, 

371, 884 P.2d 256, 257 (App. 1994). Citing Barassi, the court 

held that a notice of appeal filed under those circumstances 

“disrupt[s] the trial process and require[s] [the court of 

appeals] to consider issues that are more appropriately 

considered by the trial court.” Id. at 372, 884 P.2d at 258. 

Accordingly, the court found that it lacked jurisdiction, 

characterizing the notice of appeal as a “nullity.” Id. at 372-

73, 884 P.2d at 258-59. 

¶11 In Performance Funding, however, the court of appeals 

sustained jurisdiction over an appeal filed by one party while 

the other party’s time-extending motion was still pending, 

declining to follow the Barassi dictum. 197 Ariz. at 288 ¶ 7, 3 

P.3d at 1208. Performance Funding also distinguished Baumann,
6 

noting the “party there filed a notice of appeal while his own 

time-extending motion was pending.” Id. at 289 ¶ 10, 3 P.3d at 

1209. 

¶12 Six years later, we flatly stated that Barassi

“create[d] only a limited exception to the final judgment rule,” 

allowing a notice of appeal to be filed “after the trial court 

has made its final decision, but before it has entered a formal 

judgment,” and that the Barassi exception applied only “if no 

decision of the court could change and the only remaining task 

is merely ministerial.” Smith, 212 Ariz. at 415 ¶ 37, 132 P.3d 

at 1195. Because Smith involved an appeal by the same party who 

had filed the post-hearing motion, our opinion did not discuss 

Performance Funding. In Engel v. Landman, however, the court of 

appeals observed that Smith’s “reprise of the cautionary 

language concerning time-extending motions in Barassi” meant 

that the language could no longer be “dismiss[ed] . . . as mere 

dictum.” 221 Ariz. 504, 509 ¶ 13, 212 P.3d 842, 847 (App. 

2009). Engel therefore found Performance Funding no longer 

controlling, id., and dismissed an appeal filed by a party while 

a time-extending motion filed by the other party was still 

pending, id. at 509-10 ¶ 16, 212 P.3d at 847-48. 

III. 

¶13 The majority below and the unanimous panel in Engel

had it right. We repeat what we said in Smith: Barassi 
7 

“create[d] only a limited exception to the final judgment rule 

that allows a notice of appeal to be filed after the trial court 

has made its final decision, but before it has entered a formal 

judgment, if no decision of the court could change and the only 

remaining task is merely ministerial.” 212 Ariz. at 415 ¶ 37, 

132 P.3d at 1195 (emphasis added). In all other cases, a notice 

of appeal filed in the absence of a final judgment, or while any 

party’s time-extending motion is pending before the trial court, 

is “ineffective” and a nullity. See id. at 415 ¶ 39, 132 P.3d 

at 1195; Engel, 221 Ariz. at 509 ¶ 13, 212 P.3d at 847 

(“[O]utside the slim exception announced in Barassi, premature 

notices of appeal are ineffective because they disrupt the court 

process and prevent two courts from assuming jurisdiction and 

acting at the same time.”). 

¶14 We reject Wife’s suggestion that we should resuscitate 

Performance Funding, which turned on which party had filed the 

time-extending motion. Even the dissenting judge below conceded 

that this distinction “make[s] little sense.” Craig, 225 Ariz. 

at 512 ¶ 18, 249 P.3d at 1274 (Kessler, J., dissenting). No 

matter who files it, a premature notice of appeal “disrupt[s] 

the trial process” in the same way, leaving the superior court 

uncertain as to its jurisdiction to decide a pending motion. 

Baumann, 180 Ariz. at 372, 884 P.2d at 258. 
8 

¶15 We also reject Wife’s suggestion that we today read 

ARCAP 9(b) as in haec verba with Federal Rule of Appellate 

Procedure 4(a)(4)(B)(i). The federal rule provides: 

If a party files a notice of appeal after the court 

announces or enters a judgment - but before it 

disposes of any motion listed in Rule 4(a)(4)(A) - the 

notice becomes effective to appeal a judgment or 

order, in whole or in part, when the order disposing 

of the last such remaining motion is entered. 

Whatever the conceptual merits of the federal rule, the language 

of ARCAP 9(b) is different, and Arizona jurisprudence 

interpreting our rule has taken a diametrically opposite 

approach for some thirty years. A dramatic change to Arizona 

appellate procedure should occur through rulemaking, not through 

an opinion effectively rewriting our appellate rules and 

abandoning settled precedent. See Ariz. R. Sup. Ct. 28(A) 

(providing for amendment of procedural rules). 

IV. 

¶16 At oral argument, Husband did not oppose Wife’s 

argument that the two appeals should be considered on the 

merits. Accordingly, Husband and Wife agreed to file a 

stipulated request in the superior court under Arizona Rule of 

Family Law Procedure 85(C)(1)(f), seeking temporary relief from 

– and immediate reinstatement of – the dissolution decree and 

the order denying Husband’s motion for new trial. Because these 

appeals relate only to the division of property, we are 
9 

confident that the trial court will grant such a stipulated 

motion, allowing both parties to file fresh notices of appeal. 

The court of appeals can then reinstate the previously dismissed 

appeals and consider them on the briefing already submitted. 

V. 

¶17 For the reasons above, we affirm the opinion of the 

court of appeals. 

 _____________________________________

 Andrew D. Hurwitz, Vice Chief Justice

CONCURRING:

_____________________________________

Rebecca White Berch, Chief Justice

_____________________________________

W. Scott Bales, Justice

_____________________________________

A. John Pelander, Justice

_____________________________________

Robert M. Brutinel, Justice