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Ellis v. Ellis

Court of Appeals of Arkansas, Division II

September 21, 2016

MIKE ELLIS, APPELLANT
v.
DENEE ELLIS, APPELLEE

         APPEAL FROM THE RANDOLPH COUNTY CIRCUIT COURT [NO.DR-2009-141] HONORABLE PHILIP SMITH, JUDGE

          Dick Jarboe, for appellant.

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

          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 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.

         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. ...


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