McIntosh v. McIntosh , 2014 Ark. App. 723 ( 2014 )


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  •                                 Cite as 
    2014 Ark. App. 723
    ARKANSAS COURT OF APPEALS
    DIVISION I
    No. CV-14-436
    CHARLES McINTOSH                                 Opinion Delivered   December 17, 2014
    APPELLANT
    APPEAL FROM THE PULASKI
    COUNTY CIRCUIT COURT,
    V.                                               FIFTEENTH DIVISION
    [NO. 60CR2011-2584]
    HONORABLE RICHARD MOORE,
    KIM McINTOSH                                     JUDGE
    APPELLEE
    APPEAL DISMISSED
    PHILLIP T. WHITEAKER, Judge
    Appellant Charles McIntosh and appellee Kim McIntosh were married in 1996 and
    had one daughter, K.M. Kim filed a complaint for divorce from Charles in 2012 and sought
    primary physical custody of K.M. Following a trial, the Pulaski County Circuit Court
    granted Kim’s complaint for divorce. Charles timely appealed and now argues to this court
    that the circuit court erred in (1) setting child support based on a draft of a 1099 tax form;
    and (2) not awarding him standard visitation, which would have included extended summer
    visitation. Because we lack a final, appealable order, we dismiss Charles’s appeal.
    Rule 2(a)(1) of the Rules of Appellate Procedure–Civil provides that an appeal may
    be taken from a final judgment or decree entered by the trial court. When the order appealed
    from is not final, this court will not decide the merits of the appeal. Wadley v. Wadley, 2010
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    2014 Ark. App. 723
    Ark. App. 733. Whether a final judgment, decree, or order exists is a jurisdictional issue that
    we have the duty to raise, even if the parties do not, in order to avoid piecemeal litigation.
    
    Id. For a
    judgment to be final, it must dismiss the parties from the court, discharge them
    from the action, or conclude their rights to the subject matter in controversy. 
    Id. Thus, the
    order must put the trial court’s directive into execution, ending the litigation or a separable
    branch of it. 
    Id. An order
    is not final when it adjudicates fewer than all the claims or the
    rights and liabilities of fewer than all the parties. 
    Id. Moreover, where
    the order appealed
    from reflects that further proceedings are pending, which do not involve merely collateral
    matters, the order is not final. 
    Id. In the
    divorce decree, the circuit court granted Kim a divorce and awarded her
    custody of K.M., subject to Charles’s visitation. The court calculated Charles’s child-support
    obligation and determined that he owed child-support arrearages. The court further found
    that Kim and Charles had sold their marital home by agreement; that Kim’s attorneys held
    the proceeds from the sale in trust; and that the proceeds were marital property to be split
    evenly between Kim and Charles, subject to Charles’s obligation to reimburse Kim for
    certain expenses, set out in a chart in the decree. With respect to the couple’s personal
    property, the decree provided as follows:
    20. Personal Property. That the parties own [several enumerated categories of]
    personal property[.]
    ....
    2
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    2014 Ark. App. 723
    That the parties shall, within two (2) weeks from the entry of this Decree
    exchange complete lists of all the personal property mentioned in the above category
    for the purposes of compiling an inventory for auction. The parties shall each have
    one (1) week to dispute the accuracy of the inventory provided by the other party.
    That within one (1) week following the exchange of inventories and the
    agreement on the accuracy of the same, then these items shall be advertised for sale
    at auction.
    That any proceeds received as a result of the auction of the personal property
    shall be divided equally between the parties except, however, from [Charles’s] share
    of the proceeds shall first be paid to [Kim] any sums left due to her from him as listed
    in the chart concerning the disbursements, above, and then any amounts owing for
    child support arrearages shall be paid to her from his share of the proceeds.
    ....
    The parties are free to divide the personal property mentioned herein by other
    means at any time by mutual agreement prior to the sale of the property.
    In several recent similar cases, this court has held that such an order is not a final order
    for purposes of appeal. White v. White, 
    2014 Ark. App. 628
    ; Sanders v. Passmore, 2014 Ark.
    App. 237; Colley v. Colley, 
    2014 Ark. App. 194
    ; Nix v. Nix; 
    2014 Ark. App. 162
    ; Carroll v.
    Carroll, 
    2013 Ark. App. 286
    ; Wadley v. Wadley, 
    2010 Ark. App. 733
    . In these cases, this court
    noted that the divorce decrees left “matters undecided between the parties and tasks yet to
    be performed.” Sanders, 
    2014 Ark. App. 237
    , at 2. For example, in White v. White, the decree
    ordered the parties to divide the personal property remaining in the marital home within
    thirty days, and any property to which the parties could not agree was to be auctioned off.
    White, 
    2014 Ark. App. 628
    , at 3. Similarly, in Nix v. Nix, the divorce decree directed the
    parties to reach an agreement on the division of marital property within thirty days of the
    court’s order or, failing that, to sell the property at a private auction. Nix, 
    2014 Ark. App. 3
                                     Cite as 
    2014 Ark. App. 723
    162, at 3. In Wadley v. 
    Wadley, supra
    , the divorcing couple was ordered to agree on the
    disposition of remaining items of marital property or sell the property at auction. There, this
    court noted that the circuit court’s decree
    left matters undecided between the parties, e.g., whether they will agree on
    identification of “the remaining items of marital property”; whether they will agree
    to a division; and if not, whether they will agree on which auctioneer to be selected
    and commission arrangement; and whether they will agree on the sale date, place and
    terms of sale. The relief granted was in part conditioned upon the actions of the
    parties, and the record does not show what actions the parties have taken with respect
    to the disposition of the remaining items of marital property. As a general rule, a
    conditional judgment, order, or decree, the finality of which depends on certain
    contingencies that may or may not occur, is not a final order for purposes of appeal.
    See Mid-State Homes, Inc. v. Beverly, 
    20 Ark. App. 213
    , 
    727 S.W.2d 142
    (1987).
    Because there has been no final, appealable order entered in this case, the appeal and
    cross-appeal are dismissed.
    Wadley, 
    2010 Ark. App. 733
    , at 2–3.
    Likewise, here, the court’s order leaves matters undecided between the parties: what
    items of personal property will be included in each party’s list; whether the parties will agree
    on each other’s list; and whether they will agree to divide the property by some means prior
    to an auction. Accordingly, because the relief granted was in part conditioned upon the
    future actions of the parties that may or may not occur, we lack a final, appealable order.
    Appeal dismissed.
    GLOVER and PITTMAN , JJ., agree.
    Worsham Law Firm, P.A., by: Richard E. Worsham, for appellant.
    Satterfield Law Firm, PLC, by: Cynthia S. Moody, for appellee.
    4
    

Document Info

Docket Number: CV-14-436

Citation Numbers: 2014 Ark. App. 723

Judges: Phillip T. Whiteaker

Filed Date: 12/17/2014

Precedential Status: Precedential

Modified Date: 4/17/2021