Lester v. Lester, CA

• Decision Date: 14 December 1994
• Docket Number: No. CA,CA
• Citation: 48 Ark.App. 40,889 S.W.2d 42
• Parties: Martha LESTER (Colby), Appellant, v. Dwight P. LESTER, Jr., Appellee. 93-1411.
• Court: Arkansas Court of Appeals

Page 42

889 S.W.2d 42

48 Ark.App. 40

Martha LESTER (Colby), Appellant, v. Dwight P. LESTER, Jr., Appellee.

No. CA 93-1411.

Court of Appeals of Arkansas,

En Banc.

Dec. 14, 1994.

Honey & Honey, Prescott, for appellant.

Tim A. Womack, Camden, for appellee.

ROBBINS, Judge.

Appellant Martha Lester Colby and appellee Dwight P. Lester were divorced in Arkansas by decree entered in the Columbia County Chancery Court on October 17, 1991. The decree awarded Ms. Colby custody of the parties' minor child, Kimberly Ann Lester, subject to Mr. Lester's specified visitation rights. Shortly before the decree was entered, Ms. Colby moved with Kimberly to Shreveport, Louisiana and has lived there ever since. On August 23, 1993, Mr. Lester filed a petition to change custody in the Columbia County ChanceryCourt. On the basis of affidavits which accompanied the petition, the court immediately entered an ex parte order granting a temporary change of custody. Mr. Lester then removed Kimberly from Shreveport without Ms. Colby's knowledge and brought her to his home in Magnolia, Arkansas. On September 7, 1993, Ms. Colby filed a motion to set aside the ex parte order, arguing that the Columbia County Chancery Court lacked jurisdiction. The court denied the motion, stating that the Columbia County Chancery Court had original jurisdiction in the divorce action and retained jurisdiction to make orders pertaining to the best interest of the child. Ms. Colby now appeals, arguing that the Columbia County Chancery Court lacked jurisdiction. Alternatively, she argues that even if the court had jurisdiction, the chancellor's failure to decline jurisdiction due to an inconvenient forum was clearly against the preponderance of the evidence. Finally, Ms. Colby argues that proper notice of the custody action was not provided in accordance with the Uniform Child Custody Jurisdiction Act.

Although Mr. Lester has not raised the issue, we cannot review this case on appeal because the order appealed from, the denial of appellant's motion to set aside the ex parte order for lack of jurisdiction, is not an appealable order. It is not a final decree within the meaning of Ark.R.App.P. 2(a)(1). In order to be final for purposes of appeal, a decree must in some way determine or discontinue the action and put the chancellor's directive into immediate execution, ending the litigation or at least a separable portion of it. Harper v. Harper, 21 Ark.App. 255, 731 S.W.2d 241 (1987). Nor does this order fit within any of the other provisions of Ark.R.App.P. 2(a). While the trial court's jurisdiction of the subject matter is essential to an action, a ruling by the trial court that it has proper jurisdiction, even if erroneous, does not render such order appealable. Cigna Ins. Co. v. Brisson, 294 Ark. 504, 744 S.W.2d 716 (1988). Because a final order is a jurisdictional requisite the appellate court should raise the issue on its own motion. Id. And see Mueller v. Killam, 295 Ark. 270, 748 S.W.2d 141 (1988). Although some might characterize jurisdiction as only a technicality, without it we are powerless to act.

The temporary custody order which Ms. Colby sought to set aside was entered ex parte on the basis of affidavits submitted by Mr. Lester. An ex parte custody order, without notice, requires prompt notice and an opportunity for the absent party to present proof. Before a final custody determination is made, an opportunity to be heard must be given to the contestants, Ark.Code Ann. § 9-13-204 (Repl.1993), and the matter must be given priority and handled expeditiously. Ark.Code Ann. § 9-13-224 (Repl.1993). Ms. Colby has an absolute right to be heard on the merits of this custody dispute and, as far as we can determine from the record, she has not presented any proof on that issue. This appeal is dismissed without prejudice to Ms. Colby's right to obtain review after a final order has been entered and filed.

Appeal dismissed.

PITTMAN and ROGERS, JJ., concur.

MAYFIELD, J., dissents.

PITTMAN, Judge, concurring.

I concur in the result reached in the majority opinion. However, I believe that the decision fails to explain that the appealability of the order denying the post-trial motion depends on whether appellant could have appealed from the ex parte order (which the post-trial motion had sought to set aside). Based on the facts presented, I believe the ex parte order would have been unappealable. See Chancellor v. Chancellor, 282 Ark. 227, 667 S.W.2d 950 (1984); Jones v. Jones, 41 Ark.App. 146, 852 S.W.2d 325 (1993). Therefore, I believe that the order denying the post-trial motion was unappealable.

ROGERS, Judge, concurring.

Reluctantly, I concur in the dismissal of this appeal although I commend the dissenting opinion's recitation of the law with regard to custody cases. However, I believe that, under existing law, dismissal is in order here since the award of custody was temporary in nature with a final decision pending, upon further presentation of proof.

Historically, cases which focused on the appealability of custody orders concerning children held that a decree awarding or changing custody of children is a final decree from which an appeal may be taken. See Walker v. Eldridge, 219 Ark. 35, 240 S.W.2d 43 (1951) and Wood v. Wood, 226 Ark. 52, 287 S.W.2d 902 (1956). However, beginning with the decision in Chancellor v. Chancellor, 282 Ark. 227, 667 S.W.2d 950 (1984), and later in Sandlin v. Sandlin, 290 Ark. 366, 719 S.W.2d 433 (1986), this rule has been modified such that a temporary order of custody is not appealable if further presentation of proof on the issue of custody is contemplated. Unfortunately, these decisions focus more on legalities, and less on the family.

Cases of this kind should be subject to an immediate appeal. Permanency in the eyes of a child is a much shorter and meaningful period than we as adults may realize. At issue is the best interest of the child, which is best served by proceeding expeditiously.

The majority in the instant case chooses to continue placing ever expanding technical rules over substance, and therefore, further widens the gap between justice and law, especially in the area of children's interests. Moreover, the instant case now seems to tacitly approve of an ex parte change of custody even after a "final" custody award in a divorce decree.

MAYFIELD, Judge, dissenting.

I cannot agree to the dismissal of this appeal. The majority opinion states "we cannot review this case on appeal because the order appealed from, the denial of appellant's motion to set aside the ex parte order for lack of jurisdiction, is not a final order."

Before discussing the merits of this statement, I would point out that at the hearing on the appellant's motion, evidence was presented which disclosed that the parties had been divorced by the trial court in October of 1991, and the appellant had been awarded custody of a child who was then ten years old; that the appellant then moved to Louisiana with the child, and in August of 1993 the appellee obtained the ex parte order which granted temporary custody of the child to the appellee who resides in Arkansas.

After hearing the evidence and the arguments presented by the attorneys--which focused upon the application of Ark.Code Ann. § 9-13-203 (Repl.1991) and the jurisdiction of the Arkansas court to decide custody of the child involved--the trial court denied the appellant's motion.

The appellant's notice of appeal states that she "hereby appeals ... from the Order Denying Motion to Set Aside Ex Parte Order entered herein on September 29, 1993." Her argument in this court is that (1) the Arkansas court did not have jurisdiction to enter the ex parte order, (2) alternatively, if it did have such jurisdiction, it should have declined to exercise it because Arkansas was an inconvenient forum to make the custody determination and the case should have been transferred to Louisiana, and (3) the ex parte order should be set aside for failure to give the appellant proper notice of the hearing which granted the order.

Thus, the appeal to this court does not involve the issue of which parent should have custody of the child of the parties in the case. Moreover, the chancellor's order does not touch on the merits of the custody question. The order finds the Arkansas court did not lose jurisdiction because the appellant moved to Louisiana with the child or because of the passage of time since the move. It also states that there was no pending custody action in Louisiana when the ex parte order was granted in Arkansas. The order concludes:

IT IS, THEREFORE, THE OPINION AND ORDER OF THIS COURT that the Court of original jurisdiction, the Columbia County Chancery Court, retained and retains jurisdiction of these proceedings to make such Orders pertaining to the best interest of the child, Kimberly Ann Lester, until such time as it declines to assert continuing jurisdiction. The Motion to Set Aside Ex Parte Order is, therefore, denied.

I think this is an appealable order. The majority opinion concludes with the statement that this appeal is dismissed without prejudice to appellant's right to obtain review after a final order has been entered and filed. But the record does not disclose that there is anything pending before the trial court which asks that an additional order be entered. It seems clear enough that the appellee is content with the ex parte order granting him custody of the child. Although the order states the custody is temporary, unless the appellant files a motion in the Arkansas court seeking to change that order the appellee's temporary custody is in fact as permanent as a child custody order can be. Of course, every custody order is temporary in the sense that it is subject to change under proper circumstances.

Here, there is no issue, no pleading, no case, in which a decision as to "final" custody is pending. The majority opinion states that "in order to be...