CourtListener opinion 6346091

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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

 SANDRA LYNN MILHAM, Petitioner/Appellee,

 v.

 MARK MILHAM, Respondent/Appellant.

 No. 1 CA-CV 21-0581 FC
 FILED 6-2-2022

 Appeal from the Superior Court in Maricopa County
 No. DR1998-001490
 The Honorable Suzanne M. Nicholls, Judge

 SPECIAL ACTION JURISDICTION GRANTED; RELIEF DENIED

 COUNSEL

Curry Pearson & Wooten PLC, Phoenix
By Daniel Seth Riley
Counsel for Petitioner/Appellee

Raymond S. Dietrich PLC, Phoenix
By Raymond S. Dietrich
Counsel for Respondent/Appellant
 MILHAM v. MILHAM
 Decision of the Court

 MEMORANDUM DECISION

Judge Jennifer M. Perkins delivered the decision of the Court, in which
Presiding Judge David D. Weinzweig and Judge Brian Y. Furuya joined.

P E R K I N S, Judge:

¶1 Mark Milham ("Husband") appeals a judgment for Sandra
Lynn Woll ("Wife"), formerly Milham, dividing Husband's military
retirement benefits. For the reasons stated below, we exercise special action
jurisdiction but deny relief.

 FACTUAL AND PROCEDURAL BACKGROUND

¶2 The parties' 1998 dissolution decree awarded Wife 32.43% of
Husband's military retirement benefits if and when he "retires from active
duty in the United States Air Force." The decree did not order Husband to
directly pay Wife her share of his retirement benefits, and the parties did
not stipulate to entry of a domestic relations order. In 2016, as Husband's
retirement date approached, Wife contacted the Defense Finance and
Accounting Service ("DFAS"), the entity responsible for administering
military retirement benefits, about receiving direct payments. In April 2020,
DFAS approved her application for direct payments. DFAS reversed its
decision two months later and denied Wife's claim, because Husband was
retiring from reserve duty, not active duty. DFAS instructed Wife to obtain
a clarifying court order before it could process her application. She
petitioned for a "military dividing order," and sought a judgment for her
share of retirement benefits Husband already received but refused to pay
her. She also sought attorneys' fees and costs under A.R.S. § 25-324.

¶3 The parties stipulated to a domestic relations order dividing
Husband's military retirement benefits ("Order"). After an evidentiary
hearing, the superior court entered judgment for Wife on August 18, 2021,
awarding her over $30,000—her share of the benefits Husband withheld.
The court also awarded Wife attorneys' fees and costs in an unspecified
amount and included Arizona Rule of Family Law Procedure 78(b) finality
language.

¶4 The superior court entered an unsigned order on September
10, 2021, that denied Husband's motion for reconsideration, noting "[t]he

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 MILHAM v. MILHAM
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issue of attorney's fees and costs award was dealt with by separate order."
Husband appealed the August 18, 2021 judgment on September 12, 2021.
The court entered judgment on September 14, 2021, awarding Wife $7,000
in attorneys' fees and costs. Husband did not amend his notice of appeal to
include the September 14, 2021 judgment.

¶5 Another panel of this court directed the parties to address
whether our court had jurisdiction based on the Rule 78(b) language in the
August 18, 2021 judgment. That panel correctly held that the inclusion of
Rule 78(b) language did not render the August 18, 2021 judgment
appealable because it did not resolve the issue of attorneys' fees and costs.
Yet that panel found Husband timely appealed because he filed his notice
after the September 10, 2021 order.

¶6 But the September 10, 2021 order did not set forth the amount
of the fee award. A claim for attorneys' fees and costs is not resolved until
the amount of the award is decided. See Ghadimi v. Soraya, 230 Ariz. 621,
623–24, ¶¶ 13–14 (App. 2012). Although the superior court signed the
September 14, 2021 judgment on September 9, a judgment from which an
appeal lies is not final until entered by the clerk. See Maricopa Cnty. Juv.
Action No. JS-8441, 174 Ariz. 341, 343 (1992) (latest official date on minute
entry commences appeal rights). Husband's notice of appeal is premature
and a nullity because he filed it before the superior court entered its order
resolving the attorneys' fees award. See Ghadimi, 230 Ariz. at 623–24, ¶¶ 13–
14 (a notice of appeal filed before resolution of attorneys' fees and costs is
premature and a nullity). "[T]his court lacks jurisdiction to determine the
appeal unless the prematurity of the notice of appeal is overcome by the
narrow ‘Barassi exception'" or by ARCAP 9(c). Camasura v. Camasura, 238
Ariz. 179, 181, ¶ 6 (App. 2015). Neither exception applies when the first
ruling does not determine the amount of attorneys' fees. See id. at 182–83,
¶¶ 10, 15. For these reasons, we disagree with the earlier order finding
appellate jurisdiction.

¶7 In the exercise of our discretion, we accept special action
jurisdiction over Husband's appeal. See Cicoria v. Cole, 222 Ariz. 428, 429,
¶ 4 (App. 2009) (acceptance of special action jurisdiction is "highly
discretionary"). Here, the time for filing an appeal from the final judgment
has passed and another panel of this court previously found we had
jurisdiction. In reliance on that order, the parties have fully briefed the
appeal. Given these extraordinary circumstances, and because appellant
now lacks "an equally plain, speedy, and adequate remedy by appeal," the
exercise special action jurisdiction is appropriate. Ariz. R.P. Spec. Act. 1(a);

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see also A.R.S. § 12-120.21(A)(4) (we have jurisdiction over special actions
without regard to our appellate jurisdiction).

 DISCUSSION

¶8 The superior court entered judgment against Husband for
$30,852.82, which represents Wife's share of the military retirement benefits
Husband received but withheld. Husband challenges this judgment on
several grounds. He argues neither the decree nor the Order required him
to directly pay Wife her share of the benefits he has already received. He
also faults Wife for not asking the court, either in the 1998 decree or in the
Order, to command Husband to make direct payments. We review the
superior court's interpretation of an existing decree de novo. Cohen v. Frey,
215 Ariz. 62, 66, ¶ 10 (App. 2007).

¶9 Wife possessed an immediate and vested interest in her share
of the retirement benefits upon entry of the decree. See Koelsch v. Koelsch,
148 Ariz. 176, 181 (1986) (when community property is divided at
dissolution, each spouse receives "an immediate, present, and vested
separate property interest in the property awarded to him or her by the trial
court"). The decree entitles Wife to her share of the retirement benefits "if
and when" Husband retires. Contrary to Husband's contention, the failure
to enter a domestic relations order at the time of the decree does not
extinguish Wife's vested interest. See id. Instead, the lack of a domestic
relations order, or other payment provision in the decree, meant Wife
needed to proactively enforce her right to the benefits. She did exactly that
when she contacted DFAS in advance of Husband's retirement. Despite her
efforts, Husband initially received all the retirement benefits. The judgment
thus properly ordered Husband to return Wife's separate property to her.

¶10 Husband also argues that by entering a judgment, the
superior court improperly modified the decree to require direct payments
without considering whether Rule 85 permitted Wife's petition. We reject
Wife's contention that Husband waived this argument by not raising it
below. Without citing Rule 85, Husband's response to Wife's post-decree
petition argued that requiring him to make direct payments twenty-three
years later would be an improper modification of the decree. The superior
court found that Wife sought to enforce, not modify, the decree and did not
address Rule 85.

¶11 Yet the parties stipulated to the Order, which reduced Wife's
share from 32.43% to 31.51%, and so modified the decree. But because
Husband stipulated to the Order, he cannot challenge it on appeal. See

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Duwyenie v. Moran, 220 Ariz. 501, 506, ¶ 16 (App. 2009) (a party generally
cannot appeal from an order the party consented to). And because the
judgment separately enforced Wife's modified property rights, by ordering
Husband to return her separate property, Rule 85 does not apply to the
judgment.

¶12 Husband's analogy to Quijada v. Quijada also misses the mark.
246 Ariz. 217 (App. 2019). In Quijada, the decree provided that the wife's
share of the community pension benefits would be paid at the same time
and in the same manner as the husband's. Id. at 219, ¶ 3. The wife petitioned
to modify the decree and force the husband pay her directly because he
chose to continue working past his eligible retirement date. Id. at ¶ 4. In
Quijada, we held that because the wife agreed to the payment provision in
the decree, the court had no authority to order the husband to make
immediate payments. Id. at 221, ¶ 10. We recognized "Koelsch largely
disapproved of an arrangement" like the one in the parties' decree because
it was inequitable when entered over one party's objection. Id. at 220–21,
¶ 9. But we noted Koelsch did not prohibit such agreements. Id. Here, unlike
the spouse in Quijada, Wife did not seek pre-retirement payments under
Koelsch. Instead, Wife sought to recoup her share of the retirement benefits
already disbursed to Husband. Koelsch is thus inapplicable.

¶13 Finally, Husband argues Wife's claim is barred by the
equitable doctrine of laches. Laches will bar a claim "only upon a showing
by clear and compelling evidence that the obligee unreasonably delayed
bringing a claim . . . and the obligor was prejudiced by this delay." In re
Marriage of Yuro, 192 Ariz. 568, 573, ¶ 13 (App. 1998). Husband's contention,
that Wife waited twenty-three years to make a claim, mischaracterizes the
facts of this case. Although the decree did not include a corresponding
domestic relations order, Wife diligently asserted her right to the retirement
benefits by applying for direct payments from DFAS. And while she was
four years early, she acted reasonably in response to DFAS's
communications. Thus, any delay was not unreasonable.

¶14 Nor can Husband claim he was prejudiced. In July 2020, Wife
notified Husband that she was claiming her share of the retirement benefits.
Thus, he knew of Wife's claim and cannot show prejudice simply because
he spent her money. See Flynn v. Rogers, 172 Ariz. 62, 67–68 (1992)
(expenditure of other spouse's benefits alone does not constitute prejudice).

¶15 Both parties request attorneys' fees on appeal. Because of
Husband's superior financial resources, we award Wife her reasonable

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 MILHAM v. MILHAM
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attorneys' fees and costs upon compliance with ARCAP 21. See A.R.S. § 25-
324.

 CONCLUSION

¶16 We exercise special action jurisdiction over Husband's appeal
but deny relief.

 AMY M. WOOD • Clerk of the Court
 FILED: AA

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