Darlene Carvin v. Melvyn Bell

DIVISION III

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN E. JENNINGS, JUDGE

CA 00-581

February 28, 2001

DARLENE CARVIN

APPELLANT APPEAL FROM PULASKI COUNTY

CHANCERY COURT

VS.

HONORABLE COLLINS KILGORE

CHANCELLOR

MELVYN BELL

APPELLEE DISMISSED

This post-divorce action began when appellee instituted contempt proceedings against appellant for her alleged violation of an order entered on October 20, 1999. This order incorporated the terms of a settlement agreement the parties had entered into on April 17, 1998, which required appellant to pay appellee $5,000 a month. In connection with the terms of this agreement, appellee executed a promissory note to appellant for $75,000 that was to become due on April 7, 1999. According to its terms, the note could be extended for another year if appellee paid the interest owed on the note by the due-date.

Appellee alleged that appellant was in contempt for failing to make the required payments of $5,000 a month. He also asked to bereimbursed for overdraft charges he incurred as a result of appellant's failure to pay. In response, appellant maintained that appellee had not paid the $75,000 note when due and that she was entitled to set off her monthly payments against the amount due on the note. She also defended on the ground of unclean hands in relation to the payment of child support. After two hearings, the chancellor entered an order on January 19, 2000. The order provided in pertinent part:

3. The Court finds as a matter of law that all defenses pled by [appellant] in her Amended Response to Motion for Contempt, if proved, would be insufficient to prevent this Court from holding her in contempt for failure to pay the monthly $5,000.00 payments to [appellee] pursuant to the Court's Order of October 20, 1999.

5. [Appellant] shall have until the close of business on January 11, 2000, to pay to [appellee] the October, November, December and January payments required by the October 20, 1999, Order in the amount of $20,000.00, or this Court will find her in contempt of the October 20, 1999, Order and shall forthwith hold a hearing on sanctions.

6. [Appellee] may pursue his claim for late-check charges in the hearing set for April 19th and 20th, 2000, on all Motions.

Because this is not a final order the appeal must be dismissed.

Whether a final judgment, decree, or order exists is a jurisdictional issue that we have the duty to raise, even if the parties do not, to avoid piecemeal litigation. Smith v. Smith, 337Ark. 583, 990 S.W.2d 550 (1999). To be final and appealable, an order must dismiss the parties from the court, discharge them from the action, or conclude their rights to the subject matter in controversy. Petrus v. Nature Conservancy, 330 Ark. 722, 957 S.W.2d 688 (1997). The order must be of such a nature as to not only decide the rights of the parties, but to put the court's directive into execution, ending the litigation or some separable part of it. Budget Tire & Supply Co. v. First Nat'l Bank, 51 Ark. App. 188, 912 S.W.2d 938 (1995).

As a general rule, a conditional judgment, order, or decree, the finality of which depends on certain contingencies which may or may not occurr, is not final for the purposes of appeal. Corbit v. State, 334 Ark. 592, 976 S.W.2d 927 (1998). Nor is an order appealable when it reflects that further proceedings are pending, which do not involve merely collateral matters. Roberts v. Roberts, 70 Ark. App. 94, 14 S.W.3d 529 (2000).

Although an order of contempt is considered a final, appeal able order, Young v. Young, 316 Ark. 456, 872 S.W.2d 856 (1994), the court in this instance did not hold appellant in contempt of court. The order stated, conditionally, that she would be held in contempt if she failed to pay and, if that came to pass, then the court would hold a hearing on sanctions. On this record, the final disposition of this matter was contingent and the outcome uncer tain, and it included the possibility of further hearing. In thisregard, the order is similar to the one considered in Kelly v. Kelly, 310 Ark. 244, 835 S.W.2d 869 (1992). There, the trial court found that the appellant had failed to execute a quitclaim deed in connection with a divorce proceeding, and the order directed the appellant to execute a deed or to appear on a later date to show cause why he should not be held in contempt, or why a commis sioner's deed should not be entered by the court. The supreme court held that this was not a final order from which an appeal could be taken.

In addition, the order in this case put off for later determination the question of appellant's responsibility for appellee's overdraft charges.1 For these reasons, we hold that this was not a final, appealable order.

Dismissed.

Hart and Crabtree, JJ., agree.

1 This also prevents the order from being considered a final order. See Mueller v. Killam, 295 Ark. 270, 748 S.W.2d 141 (1988).