NOTICE: NOT FOR OFFICIAL PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL

AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

In re the Marriage of:

FRANCENE LAVERNE VINCENT, Petitioner/Appellee,

v.

PATRICK JUDE SHANOVICH, Respondent/Appellant.

No. 1 CA-CV 16-0431 FC

Appeal from the Superior Court in Maricopa County

DR2000-095278

The Honorable Stephen M. Hopkins, Judge

DISMISSED IN PART; VACATED IN PART

COUNSEL

The Harrian Law Firm P.L.C., Glendale

By Daniel Riley

Counsel for Respondent/Appellant

Popp Law Firm, P.L.C., Tempe

By James S. Osborn Popp

Counsel for Petitioner/Appellee
VINCENT v. SHANOVICH

Decision of the Court

2

MEMORANDUM DECISION

Chief Judge Michael J. Brown delivered the decision of the Court, in which 

Presiding Judge Samuel A. Thumma and Judge Kenton D. Jones joined.

B R O W N, Chief Judge:

¶1 Patrick Shanovich (“Husband”) appeals the superior court’s 

order denying his motion to set aside a Qualified Domestic Relations Order 

(“QDRO”) for an alleged clerical error. He also appeals the judgment 

awarding attorneys’ fees to his former spouse, Francene Vincent (“Wife”). 

For the following reasons, we dismiss for lack of jurisdiction Husband’s 

appeal of the order denying his motion to set aside the QDRO, and vacate 

the award of attorneys’ fees. 

BACKGROUND

¶2 After Wife filed a petition for dissolution of Husband and 

Wife’s marriage, the superior court entered a decree of dissolution in 

October 2002. The decree provided that Wife would be awarded one-half 

of Husband’s “retirement including employer contribution and accrued 

interest” as of the filing date of the petition. The decree also stated that Wife 

was to submit a QDRO “stating such provisions.” In March 2004, Wife 

lodged a QDRO, the content of which was stipulated to by both Husband 

and Wife, which the court signed the following month.

¶3 In December 2015, more than eleven years later, Husband 

filed a motion to set aside the QDRO, asserting it contained a “clerical error” 

that would result in Wife receiving half of his entire pension upon his 

retirement, rather than the amount accrued as of the date Wife filed the 

petition for dissolution. Husband also argued the QDRO was void because 

it did not include the decree’s limitation that Wife would receive half of his 

retirement accrued as of the date she filed the petition for dissolution. 

¶4 In response, among other things, Wife argued the motion was 

untimely because the QDRO could only have been challenged by direct 

appeal in 2004. She also requested attorneys’ fees under Arizona Revised 

Statutes (“A.R.S.”) section 25-324 and sanctions under Arizona Rule of 

Family Procedure 31 (“ARFLP”).
VINCENT v. SHANOVICH

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¶5 The superior court denied Husband’s motion to set aside, 

finding that (1) the decree and QDRO were unambiguous, (2) Husband had 

cited no evidence of a clerical error, and (3) neither the decree nor the QDRO 

had been appealed. The court entered judgment against Husband for 

attorneys’ fees in the amount of $6,210 pursuant to A.R.S. § 25-324. 

Husband then filed a notice of appeal from the minute entry denying the 

motion to set aside and the judgment awarding attorneys’ fees.

DISCUSSION

A. Jurisdiction

¶6 Husband asserts that we have jurisdiction pursuant to A.R.S. 

§ 12-2101(A)(1) because the superior court entered a final appealable order. 

Wife counters that jurisdiction is not proper because Husband does not 

raise any issues that are different from those that would have been included 

in a timely appeal from the QDRO. 

¶7 Concerning the superior court’s order denying Husband’s 

motion to set aside the QDRO based on a clerical error, the final appealable 

order was the QDRO, and thus the court’s order denying the motion to set 

aside is not a “final judgment entered in an action” under A.R.S. § 12-

2101(A)(1). Instead, for this court to have appellate jurisdiction, the court’s 

order would need to be a “special order made after final judgment” under 

A.R.S. § 12-2101(A)(2).

¶8 To qualify as a “special order” within the context of A.R.S. 

§ 12-2101(A)(2), the order “must raise different issues than those that would 

be raised by appealing the underlying judgment.” In re Marriage of Dorman,

198 Ariz. 298, 300, ¶ 3 (App. 2000) (citing Arvizu v. Fernandez, 183 Ariz. 224, 

226–27 (App. 1995)) (emphasis added). “This requirement prevents a 

delayed appeal from the judgment, and also prevents multiple appeals 

raising the same issue.” Arvizu, 183 Ariz. at 227. In his motion to set aside,

Husband attacked the merits of the QDRO and thus failed to assert any 

issues that could not have been raised in a timely appeal. 

¶9 This court recently addressed a similar jurisdictional issue in 

Sotomayor v. Sotomayor-Muñoz, 239 Ariz. 288 (App. 2016). In that eviction 

case, the superior court ordered defendant Muñoz to vacate plaintiff 

Sotomayor’s property. Id. at 289. The same day the court entered a final

judgment, Muñoz filed a motion to set it aside, based on Rule 15, Ariz. R. P. 

Eviction Actions, which allows a party to request relief from judgment. Id. 

After the court denied the motion to set aside, Muñoz filed a notice of 

appeal from both the final judgment as well as the order denying the 
VINCENT v. SHANOVICH

Decision of the Court

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motion to set aside. Id. at 290. Citing Arvizu, we analyzed whether the 

superior court’s order on the Rule 15 motion was appealable as a special 

order after judgment:

Muñoz’s motion, although couched in part as a question of 

jurisdiction, essentially challenged the merits of the 

judgment. In it Muñoz argued there was no evidence of a 

landlord-tenant relationship and no lease and that a dispute 

as to ownership of the property existed. These claims were 

the bases for Muñoz’s defense at the hearing below. The 

balance of the argument is a direct challenge to the judgment. 

We therefore conclude that the order at issue here fails the 

first part of the test for determining whether an order qualifies 

as an appealable, special order made after final judgment. . . . 

To allow Muñoz to separately appeal from the denial of her 

Rule 15 motion under the circumstances presented would 

allow her a delayed appeal from the judgment. 

239 Ariz. at 291, ¶ 12 (internal quotations omitted).

¶10 Similarly, although Husband’s motion to set aside was 

couched in terms of “clerical mistake” and alleged the QDRO was void for 

being beyond the court’s statutory authority, the motion essentially 

challenged the merits of the QDRO. Husband had the opportunity to 

challenge either the decree or the QDRO by filing a timely appeal after they 

were entered but did not do so. See Dorman, 198 Ariz. at 300, ¶ 3. Because 

Husband is precluded from filing a delayed appeal challenging the merits 

of the QDRO, we lack jurisdiction to consider his appeal of the court’s order 

denying his motion to set aside the QDRO.

B. Attorneys’ Fees 

¶11 The final judgment awarding attorneys’ fees is a final 

appealable order under A.R.S. § 12-2101(A)(1). Thus, we have jurisdiction 

to consider Husband’s argument that the court erred because it failed to 

consider the financial resources of the parties under A.R.S. § 25-324. 

¶12 A court may award attorneys’ fees “after considering the 

financial resources of both parties and the reasonableness of the positions 

each party has taken throughout the proceedings.” A.R.S. § 25-324(A) 

(emphasis added). In awarding Wife her attorneys’ fees, the superior court 

based its decision on “unreasonableness of positions,” and concluded it 

could “award fees based upon either financial disparity or 

unreasonableness of positions,” noting that no evidence had been 
VINCENT v. SHANOVICH

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presented to the court regarding the parties’ financial resources. 

Notwithstanding the court’s finding that Husband acted unreasonably, it is 

undisputed that the court did not consider the financial resources of the 

parties as required by statute. We therefore vacate the judgment awarding 

attorneys’ fees to Wife.

¶13 Both parties have requested attorneys’ fees on appeal under 

A.R.S. § 25-324, as well as sanctions under ARFLP 31. In the absence of any 

current evidence of the financial resources of the parties, we decline to 

award fees or costs to either party. In our discretion, we also decline to 

impose sanctions against either party.

CONCLUSION

¶14 The appeal from the superior court’s order denying 

Husband’s motion to set aside the QDRO is dismissed for lack of 

jurisdiction. The court’s judgment awarding attorneys’ fees to Wife is 

vacated.