Douthitt v. Douthitt

Ralph DOUTHITT, Appellant v. Tammy DOUTHITT,
Appellee; Misty Wilson, Appellee-Intervenor

96-421                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered October 21, 1996


1.   Appeal & error -- argument raised for first time on appeal not
     addressed. -- An argument that is raised for the first time on
     appeal is not properly preserved for appellate review and will
     not be addressed; the supreme court declined to address the
     merits on appeal and affirmed the trial court's ruling
     concerning the division of marital property.

2.   Jurisdiction -- subject-matter jurisdiction -- parties cannot
     consent to or waive -- appellate court obligated to raise
     question on its own. -- The supreme court did not reach the
     merits of appellant's argument regarding the trial court's
     denial of his motion for a directed verdict on appellee-
     intervenor's claim of outrage because it concluded that the
     chancery court lacked subject-matter jurisdiction to hear the
     tort claim; parties may not consent to a court's subject-
     matter jurisdiction where no such jurisdiction lies, nor may
     the jurisdiction be waived; a court must determine if it has
     subject-matter jurisdiction of the case before it; similarly,
     the question of subject-matter jurisdiction is one that the
     appellate court is obligated to raise on its own, due to the
     fact that if the trial court lacked subject-matter
     jurisdiction, the appellate court also lacks jurisdiction.

3.   Jurisdiction -- chancery may obtain jurisdiction pursuant to
     clean-up doctrine -- not applicable in this case. -- A court
     of chancery or equity may obtain jurisdiction over matters not
     normally within its purview pursuant to the clean-up doctrine,
     the long-recognized rule that once a chancery court acquires
     jurisdiction for one purpose, it may decide all other issues;
     the clean-up doctrine did not apply in this instance.

4.   Jurisdiction -- no tenable nexus between remainder of divorce
     proceeding and third-party tort claim. -- Where the chancery
     court permitted appellant's stepdaughter to intervene, with
     the agreement of both appellant and appellee, but the court
     had already granted the divorce decree, and the only remaining
     issues to be decided concerned child support, visitation, and
     the distribution of marital property, there was no tenable
     nexus between what was left of the divorce proceeding and the
     third-party tort claim filed by appellee-intervenor; it simply
     could not be said that the outcome of either cause of action
     was dependent upon or had any bearing on the outcome of the
     other.

5.   Jurisdiction -- trial court lacked subject-matter jurisdiction
     over tort claim -- intervenor's tort claim ordered transferred
     to circuit court. -- Because the supreme court concluded that
     the trial court was wholly incompetent to grant the relief
     sought by appellee-intervenor and that the issue was not
     merely a matter of the chancery court's propriety, the issue
     of subject-matter jurisdiction was addressed even though it
     was not raised below; the supreme court held that the trial
     court lacked subject-matter jurisdiction over the tort-of-
     outrage claim and reversed and remanded the issue with
     directions to the trial court to transfer appellee-
     intervenor's tort claim to circuit court.


     Appeal from Independence Chancery Court, Sixteenth Judicial
District; Stephen Choate, Chancellor; affirmed in part; reversed
and remanded in part.
     Tiner & Hunter, by: Kenneth W. Haynes, for appellant.
     Leroy Blankenship, for appellees.

     Donald L. Corbin, Justice.
     Appellant Ralph Douthitt appeals the judgment of the
Independence County Chancery Court providing for distribution of
marital property between himself and his former wife, Appellee
Tammy Douthitt, and awarding $75,000.00 compensatory damages to his
stepdaughter, Appellee-Intervenor Misty Wilson, pursuant to her
tort claim of outrage.  Because this case presents us with a
question on the law of torts, jurisdiction is pursuant to Ark. Sup.
Ct. R. 1-2(a)(15).  Appellant raises two points on appeal:  (1) The
trial court erred in making a disproportionate division of the
marital property; and (2) the trial court erred in granting
monetary damages to his stepdaughter on her intervening tort
complaint.  For separate reasons detailed below, we do not reach
the merits of either point.  
        I.  Disproportionate Division of Marital Property
     For his first point on appeal, Appellant argues that the trial
court erred in awarding a disproportionately large amount of the
marital property to Appellee Tammy Douthitt.  In response, Appellee
asserts that because Appellant did not raise this issue below in
the trial court, he is now procedurally barred from doing so on
appeal.  We agree.  
     Our review of the proceedings below reveals that no objection
was made by Appellant and that this issue was not brought to the
attention of the chancellor.  This court has repeatedly stated that
an argument which is raised for the first time on appeal is not
properly preserved for appellate review and will not be addressed. 
Sebastian Lake Pub. Util. Co., Inc. v. Sebastian Lake Realty, 325
Ark. 85, 923 S.W.2d 860 (1996); Marsh & McLennan of Arkansas v.
Herget, 321 Ark. 180, 900 S.W.2d 195 (1995).  Hence, we decline to
address the merits on appeal, and we affirm the trial court's
ruling.   
                  II.  Intervenor's Tort Claim
     For his second point, Appellant argues that the trial court
erred in denying his motion for a directed verdict on Appellee-
Intervenor's tort claim of outrage, as there was insufficient proof
as to any type of damages.  Again, we do not reach the merits of
his claims because we conclude that the chancery court lacked
subject-matter jurisdiction to hear the tort claim.  This court has
previously stated that parties may not consent to a court's
subject-matter jurisdiction where no such jurisdiction lies, nor
may the jurisdiction be waived.  Priest v. Polk, 322 Ark. 673, 912 S.W.2d 902 (1995).  A court must determine if it has subject-matter
jurisdiction of the case before it.  Id.  Similarly, the question
of subject-matter jurisdiction is one that this court is obligated
to raise on its own, due to the fact that if the trial court lacked
subject-matter jurisdiction, the appellate court also lacks
jurisdiction.  Id.  A court of chancery or equity may, however,
obtain jurisdiction over matters not normally within its purview
pursuant to the clean-up doctrine, our long-recognized rule that
once a chancery court acquires jurisdiction for one purpose, it may
decide all other issues.  Pryor v. Hot Spring County Chancery
Court, 303 Ark. 630, 799 S.W.2d 524 (1990).  We have determined
that the clean-up doctrine does not apply in this instance.  
     In Liles v. Liles, 289 Ark. 159, 711 S.W.2d 447 (1986), this
court established a test for determining when a chancery court's
jurisdiction over a legal claim pursuant to the clean-up doctrine
is proper.  The court wrote:
     [W]e have come to the position that unless the chancery
     court has no tenable nexus whatever to the claim in
     question we will consider the matter of whether the claim
     should have been heard there to be one of propriety
     rather than one of subject matter jurisdiction. 

Id. at 175-76, 711 S.W.2d  at 456 (emphasis added).  Also in Liles,
this court stated that "when the court of equity is 'wholly
incompetent' to consider the matter before it we will permit the
issue of competency to be raised for the first time on appeal." 
Id. at 175, 711 S.W.2d  at 456.  Similarly, in Bright v. Gass, 38
Ark. App. 71, 831 S.W.2d 149 (1992), the court of appeals observed: 
     Generally, the chancery court, having acquired
     jurisdiction for equitable purposes, may retain all
     claims in an action and grant all relief, legal or
     equitable, to which the parties in the lawsuit are
     entitled. Unless equity is wholly incompetent to grant
     the relief sought, objection to its jurisdiction is
     waived if no motion to transfer to law is made.

Id. at 80, 831 S.W.2d  at 155 (citations omitted).
     According to the record below, the chancery court permitted
the stepdaughter to intervene, and both Appellant and Appellee
agreed to the intervention.  By that time, however, the court had
already granted the divorce decree and the only remaining issues to
be decided were the support and visitation of the parties' minor
child, and the distribution of the marital property.  There was no
"tenable nexus" between what was left of the divorce proceeding and
the third-party tort claim filed by the eighteen-year-old
stepdaughter.  It simply cannot be said that the outcome of either
cause of action was dependent upon or had any bearing on the
outcome of the other.  We may have reached a different result had
the Intervenor been a minor child, as her interests would have been
directly affected by the chancellor's decisions as to custody,
visitation, and support in the divorce action.
     Because we conclude that the trial court was wholly
incompetent to grant the relief sought by the Intervenor, and that
the issue was not merely a matter of the chancery court's
propriety, the issue of subject-matter jurisdiction must be
addressed by this court on appeal even though it was not raised
below.  We hold that the trial court lacked subject-matter
jurisdiction over the tort claim.  We thus reverse and remand on
Appellant's second point with directions to the trial court to
transfer Intervenor's tort claim to circuit court.
     Affirmed in part; reversed and remanded in part.