Office of Child Support Enforcement v. Frank

Annotate this Case
OFFICE of CHILD SUPPORT ENFORCEMENT v. Jimmy
Frank OLIVER

96-203                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
                 Opinion delivered May 20, 1996


1.   Judgment -- final order must have been entered for court to
     have jurisdiction -- what constitutes final order. -- The
     record must disclose a final adjudication of the matter in
     controversy between the parties for the court to have
     jurisdiction; for a judgment to be final and appealable, it
     must dismiss the parties from the court, discharge them from
     the action, or conclude their rights to the subject matter in
     controversy; to be final, an order must not only decide the
     rights of the parties, but also put the court's directive into
     execution, ending the litigation or a separable part of it.  

2.   Appeal & error -- no final order entered -- appeal dismissed.
     -- Where the order establishing arrearage did not finally
     resolve the amount of the arrearage owed by appellee or end
     the litigation concerning the claim for arrearage, the appeal
     was dismissed; an order that adjudicates fewer than all of the
     claims of the parties does not terminate the action. 


     Appeal from Columbia Chancery Court; Hamilton Singleton,
Judge; appeal dismissed.
     Greg L. Mitchell, for appellant.
     No response.


     Andree Layton Roaf, Justice.May 20, 1996









OFFICE OF CHILD SUPPORT
ENFORCEMENT,
                    APPELLANT,

V.

JIMMY FRANK OLIVER, JR.,
                    APPELLEE,






96-203



APPEAL FROM THE COLUMBIA COUNTY
CHANCERY COURT,
NO. 1CH-78-147,
HON. HAMILTON SINGLETON, JUDGE,




APPEAL DISMISSED.


                  Andree Layton Roaf, Justice.

     The appellant, Office of Child Support Enforcement ("OCSE")
appeals from an order establishing arrearage in child support owed
by the appellee, Jimmy Frank Oliver, Jr. ("Oliver").  OCSE asserts
that the trial court erred in 1) allowing Oliver to orally raise
the affirmative defense of statute of limitations in the hearing
held to establish the arrearage and 2) applying a five-year statute
of limitations against its claim for arrearage.  As the ruling by
the Chancellor does not constitute a final appealable order, we
dismiss the appeal.
     Oliver and his wife were divorced in 1978.  The decree
provided that Oliver would pay $28.50 per week in child support. 
The minor child was 15 months at the time of the divorce.  On April
10, 1995, two months before the minor child turned eighteen, OCSE
filed a motion for citation, asserting that Oliver owed $7,725.75
in delinquent support accrued since the entry of the divorce
decree.  Oliver filed no written response, but appeared pro se at
a hearing on the motion held on June 7, 1995.  In the hearing,
Oliver stated that he thought the claim for arrearage was too old
and that it was "beyond the legal time to do this."  The chancellor
subsequently found that he could, on his own motion, raise the
statute of limitations and determined that the applicable statute
of limitations would bar the arrearage accrued prior to five years
before the filing of the motion by OCSE on April 10, 1990.  On
November 10, 1995, the chancellor entered an Order Establishing
Arrearage, in which he found that the amount of child support
arrearage was not in controversy, and that five years prior to the
filing of the motion for citation was the only period of time for
which an arrearage may be assessed against Oliver.  The order
disposed of all of the additional relief requested by OCSE in its
motion, but did not fix the amount of the arrearage.  The order
provided that OCSE should certify within two weeks the arrearage
which accrued between April 10, 1990, and June 7, 1995, the date of
the hearing, so that judgment could be entered.
     OCSE filed its notice of appeal from this order on November
15, 1995.  Neither the abstract, nor the record shows that a
judgment has ever been entered establishing the amount of the
arrearage.  Although a docket entry in the record indicates that at
a further hearing conducted on January 1, 1996, OCSE and Oliver
agreed on the arrearage due pursuant to the trial court's order,
the docket sheet does not show the entry of judgment following this
hearing.
     We have long held that the record must disclose a final
adjudication of the matter in controversy between the parties for
this court to have jurisdiction.  State v. Morrison, 318 Ark. 563,
885 S.W.2d 900 (1994).  For a judgment to be final and appealable,
it must dismiss the parties from the court, discharge them from the
action, or conclude their rights to the subject matter in
controversy.  Tucker v. Lake View School District No. 25, 323 Ark.
693, 917 S.W.2d 530 (1996); Kelly v. Kelly, 310 Ark. 244, 835 S.W.2d 869 (1992); Jackson v. Yowell, 307 Ark. 222, 818 S.W.2d 950
(1991).  To be final, an order must not only decide the rights of
the parties, but also put the court's directive into execution,
ending the litigation or a separable part of it.  Kilgore v. Viner,
293 Ark. 187, 736 S.W.2d 1 (1987).  See also Bonner v. Sikes, 20
Ark. App. 209, 727 S.W.2d 144 (1987). 
     Here, the order establishing arrearage did not finally resolve
the amount of the arrearage owed by Oliver or end the litigation
concerning the claim for arrearage.  An order that adjudicates
fewer than all of the claims of the parties does not terminate the
action.  Ark. R. Civ. P. 54 (b); Morrison, supra.  Accordingly, we
dismiss this appeal.  
     Appeal dismissed.
     Dudley, J., not participating.


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