Danny Lee Morton v. Judy Karon Morton

Danny Lee MORTON v. Judy Karon MORTON

CA 97-418                                          ___ S.W.2d ___

                  Court of Appeals of Arkansas
                       Divisions I and IV
                 Opinion delivered April 1, 1998


1.   Judgment -- finality of -- necessary for appeal. -- With some
     exceptions, an appeal may be taken only from a final judgment
     or decree entered by the trial court.  [Ark. R. App. P.--Civ.
     (2)(a)(1).]

2.   Judgment -- finality of -- requirements. --  An order is not final
     and appealable merely because it settles the issue as a matter
     of law; to be final, the order must also put the court's
     directive into execution, ending the litigation or a separable
     branch of it.

3.   Judgment -- finality of -- computation of amount. -- The amount of a
     final judgment must be computed, as near as may be, in dollars
     and cents, so as to be enforced by execution or in some other
     appropriate manner.  

4.   Appeal & error -- interlocutory appeal -- significant issue not sufficient
     for appellate jurisdiction. -- The fact that a significant issue is
     involved is not sufficient, in itself, for an appellate court
     to accept jurisdiction of an interlocutory appeal.     

5.   Appeal & error -- chancellor's order not appealable -- appeal dismissed. -
     - Where the chancellor made no determination that there was no
     just reason for delay so as to permit an interlocutory appeal
     under Ark. R. Civ. P. 54(b), which is applicable to property-
     division issues in divorce cases, the chancellor's order was
     not appealable, and the appellate court dismissed the appeal.


     Appeal from Crawford Chancery Court; Jim Spears, Chancellor;
dismissed.
     Gean, Gean & Gean, by: Roy Gean, Jr., for appellant.
     Eddie N. Christian, by: Joe D. Byars, Jr., for appellee.

     John Mauzy Pittman, Judge.
     The appellant filed a complaint against appellee seeking a
decree of divorce.  After a hearing, an order was entered granting
appellant a divorce, providing for child custody and support, and
dividing the bulk of the marital property.  However, the chancellor
held in abeyance any determination on alimony or division of
appellant's military retirement.  The chancellor found that
appellant participated in two such retirement plans, one of which
was vested and one of which was not, but that appellant could not
draw benefits from both.  Consequently, when the second retirement
vests on June 4, 1998, appellant will need to make an election
between the two plans.  The chancellor reserved jurisdiction of the
division of the military retirement until appellant made an
election between the two plans.  From that decision, comes this
appeal.
     For reversal, appellant contends that the chancellor erred in
holding in abeyance his decision regarding the division of the
military retirement until appellant elects between the two
retirement plans for which he will be qualified on June 4, 1998. 
Appellee has filed a motion to dismiss this appeal, asserting that
the chancellor's order is not final for purposes of appellate
review.  We grant appellee's motion and dismiss for lack of an
appealable order.
     With some exceptions not applicable here, an appeal may be
taken only from a final judgment or decree entered by the trial
court.  Ark. R. App. P.--Civ. (2)(a)(1).  An order is not final and
appealable merely because it settles the issue as a matter of law;
to be final, the order must also put the court's directive into
execution, ending the litigation or a separable branch of it. 
Scaff v. Scaff, 5 Ark. App. 300, 635 S.W.2d 292 (1982).  Our
supreme court has said that the amount of a final judgment must be
computed, as near as may be, in dollars and cents, so as to be
enforced by execution or in some other appropriate manner.  Estate
of Hastings v. Planters and Stockmen Bank, 296 Ark. 409, 757 S.W.2d 546 (1988).  Furthermore, the fact that a significant issue is
involved is not sufficient, in itself, for the appellate court to
accept jurisdiction of an interlocutory appeal.  Scheland v.
Chilldres, 313 Ark. 165, 852 S.W.2d 791 (1993).
     Finally, we note that the chancellor made no determination in
the case at bar that there was no just reason for delay so as to
permit an interlocutory appeal under Ark. R. Civ. P. 54(b).  Rule
54(b) provides that:
     When more than one claim for relief is presented in an
     action, whether as a claim, counterclaim, cross-claim, or
     third party claim, or when multiple parties are involved,
     the court may direct the entry of a final judgment as to
     one or more but fewer than all of the claims or parties
     only upon an express determination, supported by specific
     factual findings, that there is no just reason for delay
     and upon an express direction for the entry of judgment.
     In the absence of such determination and direction, any
     order or other form of decision, however designated,
     which adjudicates fewer than all the claims or the rights
     and liabilities of fewer than all the parties shall not
     terminate the action as to any of the claims or parties,
     and the order or other form of decision is subject to
     revision at any time before the entry of judgment
     adjudicating all the claims and the rights and
     liabilities of all the parties.

This rule is applicable to property division issues in divorce
cases.  Cook v. Lobianco, 8 Ark. App. 60, 648 S.W.2d 808 (1983). 
Under these circumstances, the chancellor's order was not
appealable, and we dismiss.
     Appeal dismissed.
     Arey and Neal, JJ., agree. 
     Jennings, J., concurs.
     Stroud and Griffen, JJ., dissent.


     John E. Jennings, Judge, concurring.  I agree with the majority
that this is not a final appealable order and concur separately
only to note that appellant may have had a remedy by way of
mandamus.  See Toney v. White, 31 Ark. App. 34, 787 S.W.2d 246
(1990).

     John F. Stroud, Jr., Judge, dissenting.  I dissent from the
majority opinion in this case because I believe it should be
certified to the Arkansas Supreme Court.  Our research has not
revealed a case involving facts similar to those presented in the
instant case.  Here, the appellant participated in two military
retirement plans, one of which was vested at the time of the
divorce and one of which was not.  The chancellor held in abeyance
his decision regarding the division of the military retirement
until appellant elects one of the plans as he will not be entitled
to draw benefits from both.
     This case presents an issue that is of first impression, that
is of substantial public interest, and that needs development of
the law.  Accordingly, in my opinion it should be certified to the
Arkansas Supreme Court pursuant to Rule 1-2(a)17(i),(iv), and (v)
of the Rules of the Supreme Court and Court of Appeals.  I am
authorized to state that Judge Wendell Griffen joins in this
dissent.
     Griffen, J., agrees.