Ford v. Ford

• Decision Date: 31 January 2002
• Docket Number: No. 01-554.,01-554.
• Citation: Ford v. Ford, 347 Ark. 485, 65 S.W.3d 432 (Ark. 2002)
• Parties: Rhonda FORD v. Jon D. FORD.
• Court: Arkansas Supreme Court

65 S.W.3d 432

347 Ark. 485

Rhonda FORD v.Jon D. FORD.

No. 01-554.

Supreme Court of Arkansas.

January 31, 2002.

Sharp & Sharp, P.A., by J. Baxter Sharp III, Brinkley, for appellant.

Richard L. Proctor, Wynne, for appellee.

ANNABELLE CLINTON IMBER, Justice.

In December 1998, AppelleeJon Ford filed for divorce from AppellantRhonda Ford.In an order filed on February 5, 1999, the chancellor placed the children temporarily in the custody of Rhonda and, at Jon's request, ordered drug testing of both parties.On March 1, 1999, the chancellor changed custody of the children to Jon "until further orders of the Court" because Rhonda had tested positive for the use of drugs.The divorce decree entered on May 15, 2000, awarded custody of the two children to Jon, established child support and visitation for Rhonda, but reserved all issues of property division until the court received additional information.In a document entitled "Supplemental Decree" and filed on October 27, 2000, the chancellor addressed the issues of property division.

On November 27, 2000, Rhonda filed a notice of appeal "from a Divorce Decree entered in this Court on March 3, 2000 and from a Supplemental Decree entered in this Court on September 12, 2000."She raises three points on appeal: 1) the court erred in awarding custody to the father rather than granting joint custody; 2) the court erred in setting visitation; and 3) the court erred in setting the amount of the child support and in establishing the date to which it was made retroactive.This case also raises the issue of whether the appeal was timely, thereby granting jurisdiction to this court under our Rule of Appellate Procedure—Civil2(d)(2001).The Arkansas Court of Appeals certified the case to this court as an issue of first impression, a significant issue needing clarification or development of the law, and a substantial question of law concerning the interpretation of a rule of this court.Thus, our jurisdiction is pursuant to Ark. R. Sup.Ct. 1-2(b)(1, 5, and 6)(2001).We hold that the appeal was timely filed and affirm the chancellor's rulings.

I.Jurisdiction

The first question is whether Rhonda's appeal is properly before this court.Neither party raised the issue of jurisdiction based on the timeliness of the appeal; however, "it is well settled that it is our duty to determine that this court has jurisdiction."Haase v. Starnes,337 Ark. 193, 194-95, 987 S.W.2d 704, 705(1999).The question of jurisdiction centers around a possible conflict between Ark. R.App. P.—Civ. 2(d)(2001) and the requirement of a final appealable order.Arkansas Rule of Appellate Procedure— Civil2(a)(1)(2001) limits our appellate review to final orders to avoid piecemeal litigation.Larscheid v. Arkansas Dept. of Human Services,343 Ark. 580, 36 S.W.3d 308(2001).Rule 2 establishes a number of exceptions, including Rule 2(d) that provides: "All final orders awarding custody are final appealable orders."The potential conflict is with Rule 54(b), which provides that "[a]bsent the executed certificate required by paragraph (1) of this subdivision, any ... order ... which adjudicates fewer than all the claims ... shall not terminate the action...."Ark. R. Civ. P. 54(b)(2001).We have held that the exceptions identified in Rule 2 specify circumstances in which an issue is appealable even though the order of the chancellor was not final.East Poinsett County Sch. Dist. # 14 v. Massey,317 Ark. 219, 876 S.W.2d 573(1994).

The issue here is whether Rule 2(d) permitted Rhonda to appeal directly from the May 15, 2000 divorce decree, and, if so, was she required to appeal within thirty days or forfeit her right to appeal.The resolution of this issue requires us to decide whether the phrase "final orders awarding custody" as used in Rule 2(d) means a final order as to all issues as required by Rule 54(b), or merely any order that is final in terms of custody.We hold that Ark. R.App. P.—Civ. 2(d) permits an appeal from any order that is final as to the issue of custody, regardless of whether the order resolves all other issues.Therefore, Rhonda could have appealed directly from the May 15, 2000 divorce decree under Rule 2(d) because it was final as to the award of custody.

Having determined that the divorce decree met the requirements of Rule 2(d), the issue then becomes whether Rhonda was required to file her appeal within thirty days of the divorce decree or lose her right to appeal.The resolution of this issue is found in Rule 2(b) that provides: "An appeal from any final order also brings up for review any intermediate order involving the merits and necessarily affecting the judgment."Ark.R.App. P.— Civ. 2(b)(2001).In the instant case, while the May 15, 2000 divorce decree was a final award of custody, it was only an intermediate order with reference to property division issues, which were not addressed by the chancellor until the supplemental decree was entered on October 27, 2000.As such, the issues resolved in the divorce decree, as an intermediate order, were brought up for review along with the appeal from the supplemental decree.In summary, while Rhonda could have appealed directly from the May 15, 2000 divorce decree under Rule 2(d), she was not barred from raising the issues resolved in the divorce decree in her appeal from the October 27, 2000 supplemental decree.Therefore, Rhonda's notice of appeal, filed on November 27, 2000, was timely filed, and this court has jurisdiction.¹

II.Custody

We review chancery casesde novo, but will only reverse if the chancellor's findings were clearly erroneous or clearly against the preponderance of the evidence.Skokos v. Skokos,344 Ark. 420, 40 S.W.3d 768(2001).A finding is clearly erroneous when the reviewing court, on the entire evidence, is left with the definite and firm conviction that a mistake has been committed.Id.We give due deference to the chancellor's superior position to determine the credibility of the witnesses and the weight to be given their testimony.Id.In cases involving child custody, great deference is given to the findings of the chancellor."This court has held that there is no other case in which the superior position, ability, and opportunity of the chancellor to observe the parties carries a greater weight than one involving the custody of minor children."Taylor v. Taylor,345 Ark. 300, 304, 47 S.W.3d 222, 224(2001)."The best interest of the child is the polestar in every child custody case; all other considerations are secondary."Id.See also, Norwood v. Robinson,315 Ark. 255, 866 S.W.2d 398(1993).

For her first point on appeal, Rhonda argues that the chancellor erred in awarding custody to Jon rather than joint custody because (1) the chancellor gave too much weight to her failed drug test while giving too little weight to her husband's former drug use; (2) the chancellor awarded custody without a home study for Rhonda; and (3) the chancellor did not factor in Jon's propensity for violence.After awarding temporary custody to Rhonda, the trial court ordered both parties to submit to drug tests.Jon's test results were negative, whereas Rhonda's test results were positive for amphetamines and methamphetamine.Rhonda first moved into her mother's home, and then into the home of her boyfriend.Jon's home study was favorable, and the Department of Human Services(DHS) attempted to conduct a home study for Rhonda.The DHS worker, Pat Nordan, testified that Rhonda asked that the home study not be conducted until she was in a more permanent environment.This testimony was disputed by Rhonda.Rhonda, Ms. Nordan, and Rhonda's mother all testified that Rhonda's living in her boyfriend's home was not in the children's best interest.The only independent witness to any violence between Jon and Rhonda observed Rhonda hitting Jon while he was holding one of their children.

Rhonda's final argument under this point is that the court should have given greater weight to her role as the primary caretaker of the children, relying on Milum v. Milum,49 Ark.App. 3, 894 S.W.2d 611(1995).In Milum, the chancellor awarded temporary custody to James Milum because Marcia Milum was not working and could not support the children.The chancellor also ordered Marcia to pay child support.Id.Marcia testified that she had never worked, but had stayed home with the children at James's parents' house where they lived.She changed the children's diapers and was the primary caregiver at the mother-in-law's request.Id.Marcia, however, did get a job and paid child support as directed by the court.Id.The chancellor in awarding custody to Marcia found that her role as the primary care giver should be given greater weight than the superior financial condition of the father, and the Arkansas Court of Appeals affirmed.Id.Milum provides little support for Rhonda's argument.Unlike the instant case, there were no issues of drug use or inappropriate living conditions in Milum.Furthermore, unlike Marcia Milum, Rhonda Ford did not get a job and made no effort to pay child support.

The chancellor explained her reasons for awarding custody to Jon and emphasized Rhonda's decision to move into her boyfriend's home when she knew it was a situation that was not in the best interest of her children.Rhonda's failed drug test and her failure to pay child support were also factors influencing the chancellor's decision.Giving deference to the trial judge's superior position to evaluate the credibility of the witnesses and the evidence, we cannot say the chancellor was clearly erroneous or that her findings were clearly against the preponderance of the evidence.Thus, we affirm the chancellor's award of custody to Jon.

III.Visitation

Rhonda next argues that because Jon works during the day and the children are placed in day care while she neither works nor pursues further education, the trial court erred by not allowing her to...