Rogers v. Rogers

• Decision Date: 05 February 2003
• Docket Number: No. CA 01-1192.,No. CA 01-1189.,CA 01-1189.,CA 01-1192.
• Citation: 80 Ark. App. 430,97 S.W.3d 429
• Parties: Edmundo ROGERS v. Cynthia ROGERS.
• Court: Arkansas Court of Appeals

97 S.W.3d 429

80 Ark. App. 430

Edmundo ROGERS v. Cynthia ROGERS.

No. CA 01-1189.

No. CA 01-1192.

Court of Appeals of Arkansas. Division I.

February 5, 2003.

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Rogers Law Firm, by: Edmundo G. Rogers, Rogers; and Bowden Law Firm, P.A., by: David 0. Bowden, Little Rock. AR, for appellant.

KAREN R. BAKER, Judge.

By entry of two separate orders, the Benton County Circuit Court held appellant Edmundo Rogers in contempt for failure to pay child support and failure to pay alimony. We affirm both orders.

Cynthia Rogers and Edmundo Rogers were divorced on February 26, 2001. The decree awarded custody of the parties' three children to Cynthia and directed Edmundo to pay $1,000 per month child support and $350 per month alimony. Edmundo appealed the divorce decree and, in an unpublished opinion, we reversed and remanded based on lack of corroboration of residency. Rogers v. Rogers, No. CA01-790, 2002 WL 1335654 (June 19, 2002).

While appeal No. CA01-790 was pending, the trial court issued two contempt orders. The first held Edmundo in contempt for failure to pay $1,080 in child support and ordered him jailed for fifteen days. The second held him in contempt for failure to pay $1,400 in alimony and ordered him jailed for fourteen days. Edmundo now appeals from both of those orders, the first being submitted to us as No. CA01-1189 and the second as No. CA01-1192. Because both appeals share several issues, we decide them together in this single opinion.

The first question we must address concerns the effect of our holding in No. CA01-790 on these contempt orders. Edmund) argues that our decision in that case rendered the entire divorce decree void and that he cannot be held in contempt of a void order. See generally Martin v. State, 162 Ark. 282, 257 S.W. 752 (1924). His reasoning is that, because we reversed the trial court's grant of divorce for lack of corroboration of residency, the divorce was granted without jurisdiction. See Hingle Hingle, 264 Ark. 442, 572 S.W.2d 395 (1978); Araneda v. Araneda, 48 Ark.App. 236, 894 S.W.2d 146 (1995). Therefore, he contends that the entire order is void because a judgment entered without jurisdiction is void. See Young v. South, 331 Ark. 525, 964 S.W.2d 781 (1998).

Edmundo's argument is based upon the flawed assumption that the trial court's lack of power to dissolve the parties' marriage rendered the court powerless to act upon matters that were incident to marriage such as custody, child support, and alimony. This assumption is in error.

A court that acts without. subjectmatter jurisdiction or in excess of its power produces a result that is void and cannot be enforced. Young v. Smith, 331 Ark. 525, 964 S.W.2d 784 (1998). Subjectmatter jurisdiction is the power to hear and determine the subject matter in controversy between the parties to the suit.

The rule of almost universal application is that there is a distinction between want of jurisdiction to adjudicate a matter and a determination of whether the jurisdiction should be exercised. Jurisdiction of the subject matter is power lawfully conferred on a court to adjudicate matters concerning the general question in controversy. It is power to act on the general cause of action alleged and to determine whether the particular facts call for the exercise of that power. Subject matter jurisdiction does not depend on a correct exercise of that power in any particular case. If the court errs in its decision or proceeds irregularly within its assigned jurisdiction, the remedy is by appeal or direct action in the erring court. If it was within the court's jurisdiction to act upon the subject matter, that action is binding until reversed or set aside.

Banning v. State, 22 Ark.App. 144, 149, 737 S.W.2d 167, 170 (1987) (citations omitted). Unless the trial court has no tenable nexus whatever to the claim in question, the appellate court will consider the issue of whether the claim should have been heard there to be one of propriety, which can be waived, rather than subject-matter jurisdiction, which cannot be waived. In re Adoption of D.J.M., 39 Ark.App. 116, 839 S.W.2d 535 (1992).

We reversed Rogers v. Rogers on the first appeal because the trial court had no authority to dissolve the parties' marriage. Marriage is a creature of statute and dissolution of marriage is likewise a creature of statute. The trial court did not have jurisdiction to dissolve the marriage because there was no corroboration of residence as is required by statute.

However, the trial court did have authority to enter orders regarding child support and alimony. Arkansas Code Annotated sections 9-14-105(a) (Repl.1998) and 16-13-201(a) (Repl.1999) give chancery courts exclusive jurisdiction in all cases and matters relating to the support of minor children. See also Granquist v. Randolph, 326 Ark. 809, 934 S.W.2d 224 (1996); Boren v. Boren, 318 Ark. 378, 885 S.W.2d 852 (1994). We cannot say that the trial court had "no tenable nexus" to the issue of child support when exclusive jurisdiction of that issue is vested with that court. Regardless of the context in which a support order is entered, whether divorce, paternity, abandonment, or any other situation, a trial court has the power to enter a child-support order. We remand to the trial court rather than reversing and dismissing for lack of jurisdiction in this situation, precisely because there are often orders in place addressing separate issues, distinct and independent of the trial court's authority to dissolve the marriage. Not only was child support entered pursuant to the court's authority, but the amount of child support ordered was not challenged by Mr. Rogers on appeal.

A court's jurisdiction to grant a divorce is distinct from its jurisdiction to award child support and alimony. In Heckathorn v. Heckathorn, 77 N.M. 369, 423 P.2d 410 (1967), the New Mexico Supreme Court held that although the parties could not be granted a divorce due to lack of proof of residency, it did not follow that provisions in the divorce decree pertaining to support were void. In Larson v. Dunn, 474 N.W.2d 34, 39 (N.D.1991), the North Dakota Supreme Court declared that, "jurisdiction over the marital status and the incidences of a marriage, such as support, involve distinct and separate jurisdictional foundations." Our case law recognizes and applies this jurisdictional distinction specifically articulated in Heckathorn and Larson. In Adams v. Adams, 224 Ark. 550, 274 S.W.2d 771 (1955), the trial court dismissed a divorce complaint "for want of equity" but nevertheless awarded child custody to appellee. Appellant contended that the trial court had no authority to enter a custody order, having denied appellee a divorce. The supreme court disagreed and stated:

We held, in effect, against this contention of appellant in Horton v. Horton, 75 Ark. 22, 86 S.W. 824: "Though a chancery court denies a divorce, it may recognize an existing separation by awarding custody of the infant children during one month to the husband and during the following month to the wife, and in such case may award the wife a monthly allowance for support and maintenance of the children...."

Id. at 552, 274 S.W.2d at 772. (Emphasis added.) In Hadden v. Hadden, 320 Ark. 480, 897 S.W.2d 568 (1995), the trial court denied appellee's petition for divorce but nevertheless entered alimony and child support orders, stating:

In Mason v. Mason, 248 Ark. 1177, 455 S.W.2d 851 (1970), a divorce decree was denied by the Chancellor due to failure of the plaintiff to present corroboration of grounds. The Chancellor nonetheless retained jurisdiction to enter a support order in favor of Mrs. Mason and held Mr. Mason in contempt for violation of it. We affirmed....

Id. at 482, 897 S.W.2d at 569.

Our supreme court has recognized a trial court's power and duty to enter orders regarding support of individuals regardless of its power to terminate the marriage. In Gabler v. Gabler, 209 Ark. 459, 462-63, 190 S.W.2d 975, 977 (1945), the supreme court reversed a trial court's grant of a divorce for lack of corroboration of grounds, and simultaneously held that the chancery court should have awarded alimony, stating: "Since there was no corroboration, the divorce should have been denied. Notwithstanding the denial of the divorce, the chancery court had jurisdiction, and we have on appeal, to award suit money and alimony to the wife." Accordingly, the appellate court entered an order for alimony while reversing and dismissing the divorce action. See also Kesterson v. Kesterson, 21 Ark.App. 287, 731 S.W.2d 786 (1987) (holding that an award of alimony will lie independent of a divorce proceeding, and affirming the award of spousal support while reversing the grant of divorce).

As these cases illustrate, the trial court in this case had jurisdiction to enter and enforce the child support and alimony provisions of the decree, despite the trial court's lack of jurisdiction to grant a divorce. This principle embodies sound public policy. Support awards are often crucial to the well-being of the children and spouses who receive them, and they should not be rendered unenforceable merely because of a technical failure to prove entitlement to a divorce.

We next address whether the contempt orders were unenforceable because, at the time each was entered, Edmundo had filed a $30,000 supersedeas bond. Generally, a trial court has continuing jurisdiction over support orders. See generally Maxwell v. State, 343 Ark. 154, 33 S.W.3d 108 (2000); Slusher v. Slusher, 73 Ark.App. 303, 43 S.W.3d 189 (2001). However, Edmundo contends that the court's continuing jurisdiction ceased when the supersedeas was filed.

The function of a supersedeas is to stay the execution of a judgment and maintain the status quo pending the period the judgment is superseded. Searcy Steel Co. v. Mercantile Bank of Jonesboro, 19...