Shara Susannah Vincent v. Tom Allen

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

CHIEF JUDGE JOHN F. STROUD, JR.

DIVISION II

SHARA SUSANNAH VINCENT

APPELLANT

V.

TOM ALLEN

APPELLEE

CA 01-550

March 6, 2002

APPEAL FROM THE

INDEPENDENCE COUNTY

CHANCERY COURT[E-98-1]

HONORABLE ANDRE E. McNEIL,

JUDGE

DISMISSED

This appeal arises from an order denying a motion to set aside a divorce decree. The order is not a final and appealable order, and consequently we must dismiss the appeal.

Appellant, Shara Susannah Vincent, and appellee, Tom Allen, were divorced in February 1998. It is undisputed that the parties agreed that they would have joint custody of their two children, with appellee serving as the primary custodian, and that appellant would not be required to pay child support at that time because she was not employed. On July 17, 1998, appellee filed a petition for child support, alleging, inter alia, that appellant was now employed and should pay child support. Appellant responded and counterclaimed for among other things, change of custody, removal of the children from the Sixteenth Judicial District, and child support. Appellee filed a motion to dismiss the counterclaim, contending that there had not been a significant change of circumstances to justify a change of custody.

Appellant responded in part that joint custody did not require a change in circumstances, although she subsequently amended her counterclaim to allege additional changes in circumstances.

On August 30, 1999, appellant filed a motion to set aside the 1998 divorce decree, alleging that appellee had perpetrated a fraud upon her and upon the court. A hearing was held on this motion on July 7, 2000, and the chancellor denied the motion. At the conclusion of the July 7 hearing, the following colloquy occurred:

[Appellant's Counsel]: Your Honor, we do have, I think we've agreed on three days coming up fairly soon, is that the Court's understanding?

Court: Let me get my calendar, because I'm not sure about that.

[Appellee's Counsel]: Your Honor, there is another matter before we - - - we had previously agreed on a one day for hearing, and if it was appropriate at the conclusion of the hearing on the motion to set aside decree, that then we would go into the matter of back and temporary support. We are prepared to proceed with that.

Court: I believe that's correct.

[Appellant's Counsel]: I remember that discussion, Your Honor, but, I mean, we've got two hours left before the Court, and again, I think this matter is coming up fairly soon when we will be before the Court with all the witnesses.

Court: Okay. Counsel, let me tell you what I'm inclined to do. First, that we have sufficient time. But by way of admonition, Mr. Dunlap, what little research I've done has shown that there is a provision for back child support.

[Appellant's counsel]: Yes, sir. Yes, sir.

Court: It would probably go back to the time that your client was served, or shortly after that, and I would ask that the attorneys sit down with pencil, paper and calculator and see what you can work out on that. Normally, back child support is paid at the normal rate of 10 percent on the arrears. So see what you can do on that.

(Emphasis added.) The order denying the motion to set aside the decree was subsequently entered on January 8, 2001, and stated in part: "Only limited reference was made to the child support issue which was not presented to the Court and the Court directs the parties to review the Arkansas Supreme Court per curiam opinion on the guidelines for child support."

Rule 2(a)11 of the Rules of Appellate Procedure - Civil provides:

(a) An appeal may be taken from a circuit, chancery, or probate court to the Arkansas Supreme Court from:

. . .

11. An order or other form of decision which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties in a case involving multiple claims, multiple parties, or both, if the trial court has directed entry of a final judgment as to one or more but fewer than all of the claims or parties, has made an express determination, supported by specific factual findings, that there is no just reason for delay, and has executed the certificate required by Rule 54(b) of the Rules of Civil Procedure[.]

(Emphasis added.) Here, the order appealed from leaves the issue of child support unresolved. Moreover, appellant's counterclaim in which she seeks a change of custody is also left unresolved. Yet the order appealed from does not contain a Rule 54(b) certification. Consequently, since the order disposes of fewer than all of the claims, and there is no Rule 54(b) certification, it is not final and appealable.

Dismissed.

Pittman and Vaught, JJ, agree.