Ellis v. Ellis

Cite as 2016 Ark. App. 411

ARKANSAS COURT OF APPEALS
DIVISION II
No. CV-15-625

OPINION DELIVERED: SEPTEMBER 21, 2016
MIKE ELLIS
APPELLANT APPEAL FROM THE RANDOLPH
COUNTY CIRCUIT COURT
[NO.DR-2009-141]
V.
HONORABLE PHILIP SMITH,
JUDGE
DENEE ELLIS
APPELLEE DISMISSED

ROBERT J. GLADWIN, Chief Judge

This appeal arises out of a divorce case involving Denee Ellis and Mike Ellis. Both

parties appeal from the circuit court’s rulings. However, we must dismiss the appeal because

our court lacks jurisdiction.

I. Background

Denee and Mike Ellis married on November 30, 1996, and had two children during

their marriage. In July 2009, Mike filed for divorce from Denee. In his complaint, Mike

conceded that Denee was the appropriate party to be the custodial parent for their two

minor children. Denee answered Mike’s complaint. Later, Mike filed an amended

complaint for divorce requesting an unequal division of the marital property. Denee

answered the amended complaint and disputed Mike’s entitlement to an unequal division

of the marital property.

The circuit court held a trial on the parties’ divorce over the course of seven days in

2011—May 10–11, June 14–15, June 24, June 28, and July 19. The trial focused primarily
Cite as 2016 Ark. App. 411

on the disposition of the parties’ property. Ultimately, the circuit court adjudicated the

issues in this case in a piecemeal fashion and issued several orders.

First, the circuit court granted the parties’ divorce in an order entered June 20, 2011.

The decree of divorce specifically provided that it did not adjudicate custody, visitation,

support, alimony, or the division of property. The court retained jurisdiction to dispose of

these matters.

Later, on August 19, 2011, the circuit court entered an order entitled “Visitation

Order,” setting out Mike’s visitation schedule with the two minor children. This order

provided only for Mike’s visitation with the minor children and did not award custody of

the children to either party. Again, the court retained jurisdiction to adjudicate the issues

that remained unresolved.

On March 26, 2012, the circuit court entered an order to show cause. This order

was entered in response to Mike’s February 23, 2012 motion for contempt against Denee

wherein he accused Denee of lying under oath.

On February 11, 2015, three and one half years after the trial, the circuit court

entered an order that set Mike’s child-support obligation and purported to equally divide

the parties’ property. Both parties appealed from this order. The circuit court entered

another order on April 27, 2015. This order attempted to fully and finally resolve all

pending issues before the court—including several posttrial motions. The order also

contained a Rule 54(b) certificate. Both parties subsequently appealed the February 11 and

April 27 orders.

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II. Jurisdiction

It is well settled that, in order to be appealable, an order must be final. Liberty Life

Ins. Co. v. McQueen, 364 Ark. 367, 219 S.W.3d 172 (2005). An order is final if it dismisses

the parties from the court, discharges them from the action, or concludes their rights to the

subject matter in controversy. Id. The question of whether an order is final and subject to

appeal is a jurisdictional question which this court will raise sua sponte. Moses v. Hanna’s

Candle Co., 353 Ark. 101, 110 S.W.3d 725 (2003). Our review revealed that there are two

issues still pending before the circuit court—custody of the minor children and Mike’s

motion for contempt.

First, we address the issue of custody. Absent from this case is any order adjudicating

custody of the parties’ two minor children. In his statement of the case, Mike refers to the

circuit court’s August 19, 2011 visitation order as a visitation and custody order, and both

parties seemed to operate under the assumption that this order adjudicates custody.

Nevertheless, nothing in the visitation order or any other order specifically addresses the

issue of custody.

We acknowledge that Mike conceded in his initial complaint for divorce that Denee

was the proper party to have custody of the children. Subsequent orders of the circuit court

indicate that the circuit court intended to grant custody to Denee—the visitation order

refers to Mike’s visitation schedule with the children and the April 2015 order sets Mike’s

child-support obligation. Regardless of the circuit court’s intentions, we hold that the

absence of a specific provision naming Denee as the custodial parent prevents this court

from exercising jurisdiction.
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While this may seem as though our court is being overly critical, this deficiency must

be cured. An award of custody is always modifiable. Alphin v. Alphin, 90 Ark. App. 71,

204 S.W.3d 103 (2004). When evaluating a motion to modify custody a circuit court must

determine whether there has been a material change of circumstances since the previous

custody order. Walker v. Torres, 83 Ark. App. 135, 118 S.W.3d 148 (2003). Should issues

arise that result in a motion to change custody, the circuit court would be without a custody

order by which to evaluate the motion. Additionally, we have concerns in the event that

an agent of an outside entity such as a school or a police department, were to be charged

with interpreting the rights of the parties as they relate to custody.

Next, we turn our attention to whether the circuit court disposed of Mike’s

contempt motion. In February 2012, Mike filed a motion requesting that Denee be held

in contempt for lying under oath, and the court entered a show-cause order. In a posttrial

hearing held on April 6, 2015, the circuit court orally announced its refusal to hold Denee

in contempt of court. Irrespective of that announcement, it is well settled that an oral order

announced from the bench does not become effective until reduced to writing and filed.

Nat’l Home Centers, Inc. v. Coleman, 370 Ark. 119, 257 S.W.3d 862 (2007).

The April 2015 order that followed the posttrial hearing attempted to fully and finally

dispose of all pending issues. However, it did not specifically address Mike’s contempt

motion. The opening paragraph of the order enumerated the motions being addressed in

the order, and the contempt motion was not listed. The April 2015 order also included a

provision that “any and all relief sought by either party in the above described motions not

specifically granted or addressed herein is denied.” Because the contempt motion was never
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described in this order, this provision is ineffective to dispose of the motion. Finally, the

April 2015 order includes language that the court “adopts and incorporates herein each and

every statement of reasoning and oral ruling it made from the bench during the hearing on

April 6, 2015, as if restated herein word for word.” We caution the circuit court that we

will not condone the usage of such catch-all language. This language does not comply with

the requirements or spirit of Arkansas Rule of Appellate Procedure–Civil 2, and it is not

effective to adjudicate Mike’s motion for contempt.

Based on our conclusion that the circuit court failed to dispose of all pending issues,

we direct our attention to whether the Rule 54(b) certificate attached to the April 2015

order is effective to give this court jurisdiction over the appeal.

Rule 54(b) of the Arkansas Rules of Civil Procedure provides, in pertinent part, that

[w]hen more than one claim for relief is presented in an action . . . the
court may direct the entry of a final judgment as to one or more but fewer
than all of the claims . . . only upon an express determination, supported by
specific factual findings, that there is no just reason for delay.

In order for a Rule 54(b) certificate to be effective, “the record must show facts to

support the conclusion that there is a likelihood of hardship or injustice which would be

alleviated by an immediate appeal rather than at the conclusion of the case.” Edwards v.

Ark. Dep’t Human Servs., 2015 Ark. 402, at 4, 474 S.W.3d 58, 60. Our rules also require

that an order include specific findings of any danger of hardship or injustice that could be

alleviated by an immediate appeal and that the order set out the factual underpinnings that

establish such hardship or injustice. Id.

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The certificate executed by the circuit court is woefully inadequate. It merely

provides that “the parties would endure hardship, injustice and prejudice if they were not

allowed appellate review at this point, given the efforts of the parties, counsel, and the Court

to reach a final order.” The circuit court seems to suggest that, because so much time has

passed during the pendency of this litigation, an appeal is appropriate regardless of whether

there is a final order. Even if this certificate complied with Rule 54(b), we do not find this

statement persuasive. Our review shows that the circuit court took three and one half years

to reach decisions regarding the division of the parties’ property and Mike’s child-support

obligation, and often during this time, the parties were merely waiting for the court to issue

its ruling. Accordingly, we are without jurisdiction to reach the merits of this appeal. 1

Dismissed.

VIRDEN and GLOVER, JJ., agree.

Dick Jarboe, for appellant.

Womack, Phelps & McNeill, P.A., by: Tom D. Womack and Ryan M. Wilson, for

appellee.

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Issues on appeal in this case relate to whether the circuit court erred in determining
Mike’s child-support obligation. We do not offer an opinion on the propriety of the figures
utilized by the circuit court to calculate child support. However, our cursory review
indicates that, regardless of whether the figures the circuit court used to calculate child
support were correct, the circuit court did not utilize the mathematical formula required by
Administrative Order No. 10 when calculating Mike’s obligation. We strongly suggest that
the circuit court review its child-support determination.
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