Holloway v. Holloway

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          APPEAL FROM THE BENTON COUNTY CIRCUIT COURT [NO. 04DR-16-2082], HONORABLE SCOTT JACKSON, JUDGE

         Cullen & Co., PLLC, by: Tim Cullen, for appellant/cross-appellee.

         Brian G. Brooks, Attorney at Law, PLLC, by: Brian G. Brooks, for appellee/cross-appellant.

         OPINION

         WAYMOND M. BROWN, Judge

          In this divorce action, Christopher S. Holloway (who is known as Shawn and will be referred to as such herein) appeals the order of the Benton County Circuit Court. He asserts that the court erred by "imposing an unreasonable financial burden on [him] by awarding retroactive and current support without any finding establishing [his] income, without the mandatory reference to the child support chart, and without considering applicable factors supporting a downward deviation." Shawn also challenges the division of the parties’ property. Tori D. Holloway (Tori) cross-appeals arguing (1) equal division of the marital home was erroneous, and (2) the award of additional visitation beyond what was exercised during the parties’ long separation was not in the children’s best interest. We affirm the circuit court’s order.

          Shawn and Tori were married on June 1, 2001, and filed for divorce in December 2016. The divorce decree entered on March 12, 2018, distributed the marital assets, debts, and property between the parties, and also established the custody, visitation, and child-support obligations of the parties with regard to the four children born of the marriage.

         Following the entry of the divorce decree, Shawn filed a motion for reconsideration urging the court to reconsider the child-support award due to the totality of the financial burden placed on him as a result of having to pay current and retroactive child support, half of the children’s private-school tuition, and also contribute toward their extracurricular activities and medical expenses. In response, Tori urged the circuit court to deny the motion stating that Shawn had "not complied with any recognized procedure to alter the decree" as required under Rule 59 or Rule 60 of the Arkansas Rules of Civil Procedure. Shawn replied, alleging that the child-support award was excessive and, although not explicitly stated, his motion for reconsideration should be considered a motion for a new trial under Arkansas Rule of Civil Procedure 59.

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          Arkansas Rule of Civil Procedure 59(b) provides

A motion for a new trial shall be filed not later than 10 days after the entry of judgment. A motion made after entry of judgment shall become effective and be treated as filed on the day after the judgment is entered. If the court neither grants nor denies the motion within 30 days of the date on which it is filed or treated as filed, it shall be deemed denied as of the 30th day.

          Here, the motion was filed on March 23 and was deemed denied thirty days later on April 24.^[1] Shawn filed his notice of appeal on April 9, which was prior to the deemed denial of his postjudgment motion. While a notice of appeal filed before disposition of any motion to alter, amend, or set aside a judgment shall be treated as filed on the day after entry of an order disposing of the last motion outstanding or the day after the motion is deemed denied by operation of law, such a notice is only effective to appeal the underlying judgment, decree, or order, not the postjudgment motion.^[2] Shawn’s ...