Cummings v. Cummings

2016 Ark. App. 375, 499 S.W.3d 221, 2016 Ark. App. LEXIS 403
CourtCourt of Appeals of Arkansas
DecidedSeptember 7, 2016
DocketCV-15-54
StatusPublished
Cited by3 cases

This text of 2016 Ark. App. 375 (Cummings v. Cummings) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cummings v. Cummings, 2016 Ark. App. 375, 499 S.W.3d 221, 2016 Ark. App. LEXIS 403 (Ark. Ct. App. 2016).

Opinion

ROBERT J. GLADWIN, -Chief Judge

11 This appeal returns to our court following our order for rebriefing. See Cummings v. Cummings, 2015 Ark.App. 517, 2015 WL 5734412. With the deficiency that necessitated rebriefing cured, we now address the merits of Harry Cummings’s domestic-relations appeal. On appeal, we must decide whether the trial court erred by holding Harry in contempt and with its award of alimony to Rebekah Cummings. Finding no error, we affirm.

I. Facts and Procedural History

On April 23, 2010, after nearly twenty years of marriage, Harry filed a complaint for divorce from Rebekah. Rebekah answered the complaint and counterclaimed for divorce requesting temporary and permanent alimony.

Following a final divorce trial, the trial court granted the parties’ divorce and ordered their personal property divided. The trial court took the remaining issues under advisement.. Later, the court issued a letter opinion outlining its ruling on the outstanding issues. For purposes of , our review, we note that the trial court’s letter opinion ordered (1) that the 12marital home would be listed with a realtor for three months, and if not -sold during that time, it would be sold at auction for an amount greater than 'or equal- to the parties’ indebtedness on the house; 1 (2) that Harry pay rehabilitative alimony in the amount of $500 per month for five years commencing after the marital home was sold; and (3) that Rebekah had a fifty-percent interest in Harry’s military retirement benefits. A final divorce decree memorializing the court’s ruling was entered on July 19, 2011.

The trial court entered an amended final decree on December 22, 2011, after the sale of the marital home. This decree set a date for alimony payments to commence and provided a formula for calculating the amount of Harry’s retirement benefits to which Rebekah was entitled.

On January 4, 2012, Harry filed a motion seeking to have his alimony reduced. In his motion, Harry asserted that the parties’ divorce decree awarded him $15,956 from Rebekah’s, share of the net sales proceeds of the house. But, based on the sales price of the house, only $3,329,90 was available. He petitioned the court for an offset in the amount of $12,626.10 and asked the court to reduce his rehabilitative alimony «payments to $289.56 per month for five years to satisfy this amount. Rebekah objected to this, but, in a second amended final decree, the trial court ultimately reduced Harry’s alimony obligation to $289.56 per month to offset the credit balance owed to him by Rebekah.

| ¡¡Following the entry of the second amended final decree, an issue regarding Harry’s retirement benefits arose. Around November 2012, Harry retired and, shortly thereafter, he was placed on full disability. The disability classification resulted in a loss of retirement benefits.

On March 20, 2013, Rebekah petitioned the trial court to modify alimony to compensate for the change in Harry’s retirement benefits. 2 Harry objected to any increase in alimony.

In her motion, Rebekah also argued that Harry was not providing her with information regarding his military benefits. On October 7, 2013, the trial court ordered Harry to provide retirement information and status to Rebekah. On November 5, 2013, Rebekah filed a motion for contempt alleging that Harry had failed to comply with her requests for information.

Ultimately, the trial court issued a letter opinion outlining its decision regarding Rebekah’s alimony. The court took into account Harry’s disability benefits and his lack of retirement benefits when it determined alimony.

On May 20, 2014, the trial court entered a “Military Pension Division Order.” This order directed the government to divide Harry’s military benefits. According to the March 2014 letter from the court, the division was ordered in response to Rebekah’s alimony request'. However, the order itself does not identify the payments to Rebekah as alimony. The automatic payments by the government to Rebekah did not commence.

|4On June 30, 2014, Rebekah filed a second motion for contempt. In this motion, she alleged again that Harry should be held in contempt of court for his failure to pay his court-ordered alimony. Following the filing of the motion, the trial court entered an “Amended Military Pension Division Order” on July 30, 2014. The only noticeable change from this order and the previous military pension division order is an increase in the amount Harry was delinquent with his payments. Once again, the automatic payments to Rebekah did not commence.

The trial court held a hearing on August 27, 2014, to consider all outstanding issues. An order memorializing the court’s ruling was entered on September 15, 2014. In that order, the court retroactively modified Rebekah’s alimony to $590.14 per month and awarded her a judgment for $33,685.73 in unpaid alimony plus interest. Harry was held in contempt for his failure to pay alimony as well as his failure to comply with court orders regarding discovery. Harry filed a notice of appeal of this order on October 2, 2014.

On November 5, 2014, Harry filed a motion to vacate previous orders of the court and rescind orders of contempt. The trial court denied the motion in an order file marked on December 19, 2014. That same day, Harry filed a second notice of appeal challenging the order denying the motion to vacate. Harry filed the record on appeal in this case on January 21, 2015.

II. Jurisdiction

We must begin by considering a jurisdictional issue that affects the scope of our review of this appeal. There are two notices of appeal before this court. The first notice, filed on October 2, 2014, followed the trial court’s order that gave Rebekah a judgment on | ¡¡Harry's retirement benefits, modified alimony, and held Harry in contempt of court. The second notice of appeal was filed on December 19, 2014, and challenges only the trial court’s order denying the motion to vacate.

Harry filed his record on appeal on January 21, 2015. He did not request any extensions for filing his record. Rule 5(a) of the Arkansas Rules of Appellate Procedure-Civil (2016) requires that the record on appeal be filed with the clerk and docketed therein within ninety days from the filing of the first notice of appeal. The timely filing of a record on appeal is a jurisdictional issue for the court, and strict compliance is required. Hickson v. Ark. Dep’t of Human Servs., 357 Ark. 577, 182 S.W.3d 483 (2004). The failure to strictly comply robs the court of jurisdiction to hear the appeal. Id.

In this case, the record was lodged more than ninety days after the first notice of appeal was filed. Because of this, our court is without jurisdiction to consider the propriety of the September 2014 order. However, the record was timely filed with respect to the second notice of appeal challenging the order denying the motion to vacate.

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Bluebook (online)
2016 Ark. App. 375, 499 S.W.3d 221, 2016 Ark. App. LEXIS 403, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cummings-v-cummings-arkctapp-2016.