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Emis v. Emis

Court of Appeals of Arkansas, Division IV

August 31, 2016



          Law Office of Kathryn L. Hudson, by: Kathryn L. Hudson; and Pinnacle Law Firm, PLLC, by: Matthew D. Campbell, for appellant.

          Ballard & Ballard, P.A., by: Andrew D. Ballard, for appellee.

          PHILLIP T. WHITEAKER, Judge.

         This appeal arises from a child-custody modification. The Pulaski County Circuit Court entered an order modifying the custody arrangement of the parties' minor children, placing primary custody in appellee, Keith Emis, and providing appellant, Robin Emis, with visitation. Robin appeals the trial court's decision, challenging the trial court's finding that a material change of circumstances existed to support modification. She also challenges the trial court's award of attorney's fees to the attorney ad litem and opposing counsel; its denial of her motion for recusal without benefit of a hearing; its decision to strike an affidavit in support of the motion for recusal without a hearing and while the motion to recuse was still pending; and its order denying her request to vacate the appointment of the attorney ad litem without a hearing. We affirm.

         Before we can reach the merits of Robin's appeal, there are several procedural matters that must be addressed. Our first procedural matter pertains to whether we are vested with jurisdiction to entertain the appeal of the court's custody determination. To fully understand this procedural issue, we must review the history of the actions of the parties and the court below.

         Robin and Keith divorced in September 2011. Robin was awarded full legal and physical custody of their two minor children-twenty-two-month-old twins-with Keith being awarded visitation.

         In September 2014, Robin and Keith agreed to change the custody-and-visitation arrangement.[1] They caused an order to be entered specifying that the parties would have "joint physical custody of the minor(s), with legal custody vested in [Robin]." The legal effect of this language is at the crux of the pending litigation.

         Approximately four months later, in January 2015, Robin filed a motion to modify the decree and to relocate to Florida with the children.[2] Keith responded, requesting a change of custody and to prevent Robin's relocation to Florida with the children.

         The trial court received evidence concerning Robin's motion to modify and relocate, along with Keith's competing motion for a change of custody, during a three-day hearing beginning August 11, 2015. The court did not rule from the bench. Instead, at the request of Robin's counsel, the trial court on August 14, 2015, entered "Findings of Fact and Conclusions of Law" denying Robin's motions, including her request to relocate, and granting Keith's motion for change of custody, thereby awarding custody of the children to Keith subject to visitation by Robin. However, the court specifically directed in paragraph 30,

While this document is also an Order of the Court, [Keith] shall draft the Final Order consistent with these findings and conclusions, approved as to form by [Robin] and Attorney Ad Litem, and submit to the court within 11 days.

         On August 27, 2015, the trial court entered a formal order denying Robin's motions and granting Keith's request for a change in custody. The August 27 order acknowledged the August 14 "Findings of Fact and Conclusions of Law, " incorporated it by reference, and expounded on the issues of child support and visitation. The order then stated,

This order supersedes and replaces all previously entered orders of custody and/or support entered in this matter.

         On September 9, 2015, Robin filed her first notice of appeal. She designated the "Findings of Fact and Conclusions of Law Order" entered on August 14, 2015, as the order being appealed. (Emphasis in original.) Robin made no mention of the August 27 order in the September 9 notice of appeal.

         Robin amended her notice of appeal on November 17, 2015-more than thirty days from the custody award. In her amended notice, she indicated that the initial September 9 notice of appeal was from the "Order entered following Findings of Fact and Conclusions of Law entered . . . on August 14, 2015, as well as the Findings of Fact itself." (Emphasis in original.) The notice then proceeded to designate certain orders deciding posttrial motions, including the October 27 and November 13, 2015 orders denying her request for ...

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