Robert Andrew McCurdy v. Elaine Elizabeth McCurdy

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JUDGE JOSEPHINE LINKER HART

DIVISION IV

ROBERT ANDREW McCURDY

APPELLANT

V.

ELAINE ELIZABETH McCURDY

APPELLEE

CA01-397

November 7, 2001

APPEAL FROM THE BENTON COUNTY CHANCERY COURT

[NO. E 95-2150-2]

HONORABLE DONALD R. HUFFMAN, CHANCELLOR

APPEAL DISMISSED

Appellant, Robert Andrew McCurdy, appeals from the chancellor's denial of his petition to eliminate his obligation to pay alimony to his former spouse, appellee Elaine Elizabeth McCurdy. However, because there remain outstanding issues not decided by the chancellor, the order was not final, and we must dismiss the appeal.

A divorce decree granting a divorce was entered June 7, 1996. On July 11, 2000, appellant filed a pleading entitled "Petition To Modify Decree of Divorce." In his petition, appellant stated that according to the terms of the property settlement agreement entered into by the parties, appellant's alimony obligation terminated if appellee cohabited with another man. Appellant alleged that since the entry of the divorce decree, appellee had been cohabiting with another man, and thus, appellant's alimony obligation should be terminated. In a reply filed July 24, 2000, appellee denied appellant's allegations and asked that his petition be dismissed.

On September 14, 2000, appellee filed a counter-petition for contempt, asking the court to hold appellant in contempt for failing to pay alimony for the month of September 2000. Appellant filed on September 27, 2000, a response to the counter-petition, stating that he stood ready to bring current all alimony payments if the court determined that his petition for modification should not be granted. Appellant filed on September 19, 2000, a motion requesting that he be allowed to deposit the contested alimony payments into the court registry. On October 6, 2000, appellee filed a response, requesting that the court deny appellant's motion to deposit the funds in the court registry.

Also on October 6, 2000, appellee filed a counter-petition for modification, alleging that appellant had enjoyed a substantial increase in income that had not been reflected in his alimony payments to her. Appellee requested that the court order appellant to appear to determine the proper amount of his alimony obligation. Appellee further requested that the court modify the divorce decree to require that appellant provide proof of his income on a monthly basis. On October 10, 2000, appellant filed a response, requesting that appellee's petition for modification be dismissed.

On October 12, 2000, a hearing was held after which the court took matters under advisement. At the end of the hearing, the parties advised the court that alimony payments were being paid into a trust account of the attorney for appellant. On December 7, 2000, the court entered an order denying appellant's petition for termination of his alimony obligation. No other matters were addressed in the order. On January 8, 2001, appellant filed a notice of appeal from the court's order.

As is apparent from our recitation of the pleadings filed, there remain outstanding cross-claims by appellee, specifically, appellee's counter-petition for contempt and counter-petition to modify. As the Arkansas Supreme Court has stated:

An order that fails to adjudicate all of the claims as to all of the parties, whether presented as claims, counterclaims, cross-claims, or third party claims, is not final for purposes of appeal. Ark.R.Civ.P. 54(b); Shackelford v. Arkansas Power & Light Co., 334 Ark. 634, 976 S.W.2d 950(1998); State v. Morrison, 318 Ark. 563, 885 S.W.2d 900 (1994); Maroney v. City of Malvern, 317 Ark. 177, 876 S.W.2d 585 (1994). Although Rule 54(b) provides a method by which the trial court may direct entry of final judgment as to fewer than all of the claims or parties, where there is no attempt to comply with Rule 54(b) the order is not final and we must dismiss the appeal. Ark.R.Civ.P. 54(b); State v. Morrison, supra; Maroney v. City of Malvern, supra. The failure to comply with Rule 54(b) is a jurisdictional issue that we are obligated to raise on our own. Shackelford v. Arkansas Power & Light Co., supra; State v. Morrison, supra; Maroney v. City of Malvern, supra.

Office of Child Support Enforcement v. Willis, 341 Ark. 378, 380, 17 S.W.3d 85, 87 (2000). Thus, because the court's order in the case at bar failed to adjudicate appellee's counterclaims, and appellant did not attempt to certify this case under Rule 54(b), we are without jurisdiction and must dismiss this appeal without prejudice so that the chancellor may enter a final order as to the pending cross-claims.

Appeal dismissed.

Vaught and Baker, JJ., agree.