White v. White , 2014 Ark. App. 628 ( 2014 )

Cite as 2014 Ark. App. 628
ARKANSAS COURT OF APPEALS
DIVISION IV
No. CV-14-352
KATHLEEN F.'WHITE opinion Delivered: November 5, 2014
APPELLANT
APPEAL FROM THE GARLAND COUNTY
V. CIRCUIT COURT
lNo. DR-2012-i20 IIII
RRIAN WHITE
APPELLEE HONORABLE LYNN WILLIAMS, JUDGE
DISMISSED
\VAYMOND M. BROVN,Judge
Appellant Kathleen White appeals from the circuit court's December 30, 2013
divorce decree granting appellee Brian White's complaint lor divorce. On appeal'
appellant argues that the circuit court (1) abused its discretion in denying her claim for
alimony and (2) erred by failing to divide the properry and retirement benefits of the
parries in an equitable manner.'W'e dismiss the appeal forlack of a final, appealable order'
Rule 2(a)(1) of the Rules ofAppellate Procedure-Civil provides that an appeal may
'Whether an order is
be taken from a final judgment or decree entered by the trial court.
final and appealable is a matter going to our jurisdiction;jurisdiction is an issue that we are
obligared to raise on our own motio.r.1 For a judgment to be final, it must dismiss the
parries from the court, discharge them from the action, or conclude their rights to the
1
Dobbs u. Dobbs, 99 Ark. App. 156, 1.57, 258 S.W.3d 414, 41.5 (2007) (citing Capitol Life
& Acc. Ins. Co. u. Phelps,72 Ark. App. 464, 37 s.w.3d 6e2 Qa}D).
Cite as 2014 Ark. App. 628
subject matrer in controve.sy.' Thus, the order must put the trial court's directive into
execurion, ending the litigation or a separable branch of it.3 An order is not final when it
adjudicates fewer than all the claims or the rights and liabilities of fewer than all the
parties.r When the order appealed from is not final, this court will not decide the merits of
the appeal.s
In Nix u. Nix, this court quoted a section of a divorce decree from Wadley u.
Wadley, which stated the following:
(Jnless orherwise specified herein, the parties shall have sixry (60) days from entry
of this DECREE OF DIVORCE ro agree upon a disposition of the remaining
irems of marital properry. Any properry division not agreed upon within the sixry
(60) days shall be sold by public auction, with the parties responsible for hiring an
aucrioneer and adverrising said sale. Any and all proceeds from the sale of the
properry, after the costs of the auctioneer and advertising shall be equally divided
between che parties.6
The decre e in Wadley hzd been deemed not final "because rhe relief granted was in part
conditioned upon the acrions of the parties, and the record did not show what actions the
parries had taken with respect to the disposition of the remaining items of marital
properry."T
,Colley v. Colley,2014 Ark. App. 1.94, et1-2 (citing Roberts u. Roberts, T0 Ark. App.94,
14 S.W.3d s2e (2000)).
3
1d.,2014 Ark. App. 1.94, at 2.
a Careku. Carek,2011 Ark. hpp.770, at2 (cittngFarrellu, Farrell,359 Ark. 1,193 S.W'3d
734 (2004)).
5 Ni, u. Nix,2074 Ark. App. 1.62, at 1 (citing Wadlel, u. Wadley,2010 Ark. App' 733)'
6
Id. ZOt4 Ark. App. 162, at 2 (quoting Wadley u. Wadley,2010 Ark. App' 733, ar 2)'
7
Id.
Cite as 2014 Ark. App. 628
In Nir, the divorce decree at issue stated "[t]he parties shall have thirry days to
reach an agreement regarding the division of marital personal property listed in Schedule
C, otherwise the properry shall be sold at private auction." This court held there that the
decree left several matters undecided between the parties, specifically noting that "whether
they will reach an agreement regarding the remaining personal property; and whether they
will agree on a date, place, and terms of sale for a private auction" were left undecided.
In the instant case, paragraph six of the divorce decree provides in pertinent part:
The parties own a home at 4823 Park Avenue, Hot Springs, Arkansas as tenants by
the enrirery. The said residence shall be sold, at public auction, to the highest
bidder. The proceeds of the sale shall be first applied to the costs of sale, then to
satisfli the indebtedness to Chase Financial. Any remaining net proceeds of the sale
shall be divided equally berween the Plaintiff and Defendant. The sale of the
residence shall occur within thirry (30) days of entry of the Decree of Divorce.
Paragraph nine states that:
The parties shall have thirry (30) days to divide the personal properry located in the
mariral home. All properry not agreed to be divided by the pafiies shall be
auctioned by the Garland Counry Circuit Clerk within ninery (90) days of this
Decree and the proceeds equally divided between parties.
As a general rule, a conditional judgment, order, or decree, the finaliry of which
depends on certain contingencies that may or may not occur, is not a final order for
purposes of appeal.8 As in Nir and Wadley, the relief granted in the divorce decree
presently before this court was, in part, conditioned upon the agreement and future
actions of the parties that may or may not occur. Thus, there is no final, appealable order.
Appeal dismissed.
8 Wadley u. Wadley,2010 Ark. App. 733, at 2 (citing Mid-State Homes, Inc. v. Beuerly, 20
Ark. App. 21,3,727 S.W.2d 1,42 (1,987)).
J
Cite as 2014 Ark. App. 628
WuIrnRx-gR and HIxsoN,lJ., agree.
4