Morgan v. Morgan, CA

• Decision Date: 15 June 1983
• Docket Number: No. CA,CA
• Citation: 652 S.W.2d 57,8 Ark.App. 346
• Parties: Michael L. MORGAN, Appellant, v. Sandra J. MORGAN, Appellee. 82-409.
• Court: Arkansas Court of Appeals

Page 57

652 S.W.2d 57

8 Ark.App. 346

Michael L. MORGAN, Appellant, v. Sandra J. MORGAN, Appellee.

No. CA 82-409.

Court of Appeals of Arkansas.

June 15, 1983.

Ronald J. Bruno & Associates, Little Rock, for appellant.

Wallace, Hilburn, Clayton, Calhoon & Forster, Ltd., North Little Rock, for appellee.

COOPER, Judge.

The appellee, Sandra Morgan Griesdorn, brought this contempt of court action against the appellant, Michael L. Morgan, for failure to pay child support, major dental bills, and failure to provide medical insurance coverage for the parties' three minor children. After a hearing, the chancellor found that the appellant was in arrears for child support in the amount of $9,817.21 and that he owed $799.00 on three dental bills, and $1,029.60 for the medical insurance coverage premiums. From that decision, comes this appeal.

The appellant and the appellee were divorced on March 21, 1975. The appellant was granted specific visitation rights and ordered to pay $400.00 per month in child support and all major medical and dental expenses for the appellee and the parties' three minor children. The appellee subsequently remarried. As a result of the appellee's remarriage and the appellant's financial condition, the appellant petitioned in November, 1975, for a reduction in child support, clarification and reduction of his obligations for medical and dental expenses, and clarification of his visitation rights. On April 13, 1976, the chancellor reduced the child support payments, found the appellant responsible for the major medical and major dental expenses of the parties' three minor children, but eliminated the appellant's obligation for the appellee's medical and dental expenses, and ordered the appellant to carry hospitalization insurance on the children. In August, 1978, the appellee and the children moved to Illinois. On November 30, 1981, the appellee brought this contempt of court action against the appellant for failure to pay child support payments, dental expenses, and for reimbursement of insurance premiums for hospitalization coverage for the children which had been provided by the appellee.

For his first point for reversal, the appellant argues that the chancellor erred in awarding child support arrearages to the appellee for the years 1975 and 1976. The appellant contends that the five-year statute of limitations barred any recovery of that portion of the child support arrearages. We cannot reach the merits of this argument since there has never been a final order or judgment entered on the issue of arrearages. The chancellor's order calculated the amount which was owed by the appellant, and then stated:

4. That the Defendant should make a substantial amount of payments towards the arrearage or in the alternative arrangements satisfactory to the parties should be made so that the arrearage can be paid as expeditiously as possible, and in the event that neither of the two aforementioned alternatives are accomplished, the Court is to reduce the aforementioned amounts to Judgment for which garnishment or writs of execution may issue as Judgments in law. [Emphasis supplied.]

For an order to be appealable, it must in some way determine or discontinue the action. ARAP Rule 2. The final order must put the chancellor's directive into execution, ending the litigation or at least a separable portion of it. Festinger v. Kantor, 264 Ark. 275, 571 S.W.2d 82 (1978). See also Keith v. Barrow-Hicks Extensions of Water Improvement District No. 85, 275 Ark. 28, 626 S.W.2d 951 (1982).

Although the parties to this litigation have not raised the issue of the finality of the chancellor's order, we agree with the Arkansas Supreme Court's statement in Hyatt v. City of Bentonville, 275 Ark. 210, 628 S.W.2d 326 (1982) that:

Even though the parties do not raise the issue of the existence of a final order, it is a jurisdictional question which the appellate court has the right and duty to raise in order to avoid piecemeal litigation. Ark. S & L v. Corning S & L, 252 Ark. 264, 478 S.W.2d 431 (1972); McConnell v. Sadle, 248 Ark. 1182, 455 S.W.2d 880 (1970); Ark. State Highway Comm. v. Kesner, 239 Ark. 270, 388 S.W.2d 905 (1965); and Piercy v. Baldwin, 205 Ark. 413, 168 S.W.2d 1110 (1943). It is well established that before a judgment is final and appealable, it must dismiss the parties from the court, discharge them from the action or conclude their rights to the subject matter which is in controversy. McConnell v. Sadle, supra; Ark. State...