Collins v. Chase , 2016 Ark. App. 359 ( 2016 )

Cite as 2016 Ark. App. 359
ARKANSAS COURT OF APPEALS
DIVISION I
No. CV-15-723
DAVID COLLINS and CHERYL Opinion Delivered: August 24, 2016
COLLINS
APPELLANTS APPEAL FROM THE JEFFERSON
COUNTY CIRCUIT COURT
V. [NO.DR-2011-124-3]
JOSHUA CHASE and MILDRED HONORABLE EARNEST E.
CHASE HOLT BROWN, JR., JUDGE
APPELLEES
DISMISSED
WAYMOND M. BROWN, Judge
This appeal is the third appeal from the Jefferson County Circuit Court involving
appellants and appellee Joshua Chase 1 with regard to H.C., born 9-11-08; and K.C., born
9-15-09. 2 Appellants appeal from the circuit court’s separate orders denying them
grandparent visitation and denying their “motion in limine” asking the circuit court to
receive evidence and testimony from “at least July 1, 2013, and forward” to determine
whether to grant their motion for change of custody. We do not reach the merits of this
appeal for lack of a final, appealable order. We dismiss.
1
Appellee Mildred Chase Holt was a party below, but is not a party to this appeal,
though listed in the style of the case.
2
See Chase v. Ark. Dep’t of Human Servs., 2012 Ark. App. 311, 416 S.W.3d 252
(Chase I) and Chase v. Ark. Dep’t of Human Servs., 2013 Ark. App. 474, 429 S.W.3d 321
(Chase II).
Cite as 2016 Ark. App. 359
The facts of this case prior to July 1, 2013, being arduous, are not detailed here as
they were sufficiently set out in Chase I and Chase II. 3 Only the pertinent facts follow. Due
to allegations by appellants, stated to have occurred in July 2013, appellants filed an
emergency motion to cease visitation between Chase and his children on August 27, 2013.
Chase responded on September 20, 2013, requesting dismissal of appellants’ emergency
motion to cease visitation. The circuit court entered an ex-parte order ceasing visitation on
August 30, 2013. Following a hearing, the circuit court issued a temporary restraining order
on September 11, 2014, further prohibiting Chase from contact with his children. On the
same date, this court handed down its opinion in Chase II, reversing and remanding the
circuit court’s November 6, 2012 order awarding custody of H.C. and K.C. to appellants.
This court further ordered that custody of H.C. and K.C. was to be “immediately
transferred” to Chase.
The circuit court entered a status order on September 18, 2013, advising that custody
of the children would be returned to Chase, pursuant to this court’s mandate, if appellants
did not file a petition seeking rehearing or review of this court’s decision. Appellants filed a
petition for rehearing, a brief in support thereof, and a motion to stay implementation of
this court’s mandate on September 20, 2013. The same were denied by this court. This
3
Appellants have sought custody because of their allegation that Chase sexually
abused one of the children. Such a charge is the basis for a dependency-neglect finding.
Dependency-neglect cases are initiated, after a report of the allegation, in juvenile court by
the Arkansas Department of Human Services (DHS)—which has the affirmative duty to
protect children—not by grandparents in domestic-relations court by filing a petition for
custody. If need be, after a circuit court’s finding of dependency-neglect, it is DHS’s duty
alone to seek out relatives for placement and/or custody, and not the appellants’ prerogative
to nominate themselves based on their own unsubstantiated allegations.
2
Cite as 2016 Ark. App. 359
court’s mandate was filed September 26, 2013. On that same date, the circuit court entered
a status order directing that custody of H.C. and K.C. be “immediately transferred” to
Chase.
Within hours of the circuit court’s order, appellants filed a petition for immediate
change of custody seeking an award of temporary and permanent custody. Chase filed a
motion to dismiss appellants’ petition on March 6, 2014. The circuit court entered an order
on April 4, 2014, denying Chase’s motion to dismiss. The only other order in the record
referencing appellants’ custody petition is an order entered by the circuit court on May 26,
2015, in which it stated the following:
9. Third Party Defendants filed a Petition for Change of Custody and sought to
introduce evidence and testimony regarding a substantial change of
circumstances and testimony in the trial of this matter and seeking a change
of custody with regard to allegations of sexual abuse allegedly perpetrated by
the Defendant in July, 2013 while the children were visiting with him in the
State of Ohio.
10. This Court previously ruled after a hearing that the last Order affecting
custody of the children was the Arkansas Court of Appeals mandate issued in
September, 2013 and was not the Juvenile Court order granting permanent
custody, the subject of the appeal, which was issued on the 17th day of
December, 2012.
11. That upon the trial of this matter, Third Party Defendants [sic] Counsel
renewed his Motion to be permitted to offer evidence and testimony prior to
the issuance of the Court of Appeals Mandate and arguing that the last
operable custodial Order was the Order of Permanent Custody in the Juvenile
proceeding which was subsequently overturned on appeal. Again, the Court
made its finding that the last operable Order with regard to custody of the
children was the Court of Appeals Mandate issued on or about September 26,
2013 and denied again Third Party Defendant’s request to present evidence
and testimony prior to that date. Therefore this Court hereby affirms its oral
decision by the entry of this Order precluding the Third Party Defendants
from offering any evidence or testimony on any actions of the Defendant,
Joshua Chase, prior to September 26, 2013. Third Party Defendants were
3
Cite as 2016 Ark. App. 359
permitted to proffer evidence and testimony after the conclusion of the trial
of this matter.
Though mentioned, it is clear that the circuit court failed to rule on appellants’ petition,
ruling only that they would not be able to include evidence prior to this court’s mandate. 4
There is mention of a hearing on appellants’ petition, but there is no order in the record
ruling on appellants’ petition. Accordingly, because appellants’ September 26, 2013 petition
for change in custody is still outstanding, the orders appellants appeal from are not final
orders. While neither party has raised this issue, the question of whether an order is final
and subject to appeal is a jurisdictional question that this court will raise sua sponte. 5
The circuit court attempted to circumvent the issue of finality by putting a “Rule 52
Certificate” at the bottom of the order. Assuming this was a scrivener’s error, we treat this
as a Rule 54(b) certificate. Pursuant to Arkansas Rule of Civil Procedure 54(b), when 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
and upon an express direction for the entry of judgment. 6 The presence of a Rule 54(b)
certificate is necessary to grant finality to a judgment that otherwise would not be final under
4
This court notes that it does not conduct fact-finding inquiries on a petition for
rehearing.
5
Edwards v. Ark. Dep’t of Human Servs., 2015 Ark. 402, at 4, 474 S.W.3d 58, 60
(citing Chitwood v. Chitwood, 2013 Ark. 195).
6
Id., 2015 Ark. 402, at 6, 474 S.W.3d at 61 (citing Ark. R. Civ. P. 54(b) (2015)).
4
Cite as 2016 Ark. App. 359
our rules. 7 In order for this court to acquire jurisdiction over an appeal, a trial court’s
certificate must comply with the requirements of Rule 54, and in the present appeal, we
cannot reach the merits because of noncompliance. 8
Rule 54(b) states that upon an express determination by the circuit court that there
is no just reason for delay, “it shall execute the . . . certificate, which shall appear immediately
after the court’s signature on the judgment, and which shall set forth the factual findings
upon which the determination to enter the judgment as final is based[.]” 9 With respect to
the requirements of Rule 54(b), we have observed that merely tracking the language of
Rule 54(b) will not suffice; 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. 10 Not only must the record show such facts, but
also “[w]e have consistently held that the rule requires the order to include specific findings
of any danger of hardship or injustice that could be alleviated by an immediate appeal and
to set out the factual underpinnings that establish such hardship or injustice.” 11 The circuit
court’s certificate details no facts that establish a hardship or injustice, nor does it give any
findings of any danger of hardship or injustice that could be alleviated by an immediate
7
Branch v. Branch, 2015 Ark. App. 712, at 2, 479 S.W.3d 566, 567.
8
Id.
9
Ark. R. Civ. P. 54(b)(1) (2015).
10
Edwards, supra (citing Fisher v. Citizens Bank of Lavaca, 307 Ark. 258, 819 S.W.2d
8 (1991)).
11
Id. (citing Holbrook v. Healthport, Inc., 2013 Ark. 87, at 4).
5
Cite as 2016 Ark. App. 359
appeal. Accordingly, the certificate is insufficient to give this court jurisdiction to hear the
appeal.
Dismissed.
GLADWIN, C.J., and HOOFMAN, J., agree.
Gray Allen Turner, for appellants.
Glen Hoggard and Leah Lanford, for appellee.
6