Demontie Cross v. Erika Cross

2020 Ark. App. 110, 596 S.W.3d 528

• Court: Court of Appeals of Arkansas
• Decided: February 12, 2020
• Status: Published

Opinion

Cite as 2020 Ark. App. 110 ARKANSAS COURT OF APPEALS Reason: I attest to the accuracy and integrity of this document DIVISION I No. CV-19-291 Date: 2021-06-30 11:48:00 Foxit PhantomPDF Version: 9.7.5

Opinion Delivered: February 12, 2020

DEMONTIE CROSS APPELLANT APPEAL FROM THE GARLAND COUNTY CIRCUIT COURT V. [NO. 26DR-13-26]

ERIKA CROSS HONORABLE LYNN WILLIAMS, APPELLEE JUDGE REVERSED AND REMANDED

MIKE MURPHY, Judge

Demontie Cross appeals the decision of the Garland County Circuit Court dismissing

his motion to decrease his child-support obligation. The circuit court found that it lacked

jurisdiction to hear Demontie’s motion because a previous child-support order was pending

before our court. We reverse and remand.

This is the second time these parties have been before this court regarding child

support. In Cross v. Cross, 2019 Ark. App. 100, 572 S.W.3d 407, we considered arguments

associated with a January 25, 2018 order that increased Demontie’s child-support obligation

and awarded the appellee, Erika Cross, retroactive support. There, Demontie argued that

the circuit court lacked jurisdiction to enter the child-support award, or alternatively, the

calculation of retroactive support was incorrect, and the amount of child support ordered

was incorrect. While that case was pending with this court, on March 30, 2018, Demontie

filed a new motion in the circuit court to reduce his child-support obligation, alleging that he had taken a new job making significantly less money; thus, a material change in

circumstances existed to warrant modifying his child-support obligation.

Erika responded and argued that because the appeal from the January 25, 2018 court

order was still pending, the circuit court did not have jurisdiction to consider Demontie’s

new motion relating to child support. She argued that, in the alternative, the circuit court

should hold the issue in abeyance until this court could rule on the pending appeal. On

December 20, 2018, the circuit court entered an order dismissing Demontie’s March 30,

2018 motion, finding that it “lacks jurisdiction to hear this matter due to the pending

Arkansas Court of Appeals Case No. CV-18-370 and therefore dismisses without prejudice

the Plaintiffs Motion to Modify Child Support at this time.” Demontie timely appeals, and

his sole argument on appeal is that the circuit court erred in dismissing his motion.

We review appeals from child-support orders de novo, but we will not reverse a

finding of fact by the circuit court unless it is clearly erroneous. McDougal v. McDougal, 2011

Ark. App. 13, at 5, 378 S.W.3d 813, 816. That said, the narrow issue before us today is a

legal one, and on appeal we give no deference to a circuit court’s conclusions of law. Id.

The order before us today was dismissed without prejudice. It is still, however, a final

appealable order due to the significance of initial filing dates on child-support motions.

Namely, if Demontie were to prevail on his March 30, 2018 motion, retroactive

modification may be assessed from the time the petition for modification was filed. Ark.

Code Ann. § 9-14-107(d) (Supp. 2019) (“Any modification of a child support order that is

based on a change in gross income of the noncustodial parent shall be effective as of the date

of filing a motion for increase or decrease in child support unless otherwise ordered by the

court.”).

2 An appeal may be taken from a final judgment or decree entered by the circuit court

or from an order that, in effect, determines the action and prevents a judgment from which

an appeal might be taken or discontinues the action. Ark. R. App. P.–Civ. 2(a)(1) & 2(a)(2).

A final order is one that dismisses the parties from the court, discharges them from the

action, or concludes their rights to the subject matter in controversy. Hankook Tire Co., Ltd

v. Philpot, 2016 Ark. App. 386, at 6, 499 S.W.3d 250, 253. Here, Demontie filed his motion

to modify custody on March 30, 2018. It was dismissed nearly nine months later. During

that time, Demontie would have accrued approximately $56,000 in child-support

obligations. If he were to prevail on his motion, there is a chance that the circuit court could

award him some credit retroactive to the filing date. Thus, even though the dismissal is

styled as one without prejudice, Demontie’s rights to the subject matter in controversy are

concluded because he would not get any potential benefit from the filing date on the March

motion with any new motion filed.

Citing Gore v. Heartland Community Bank, Erika argues that once a record is lodged

in the appellate court, the circuit court loses jurisdiction to act further in a matter. 356 Ark.

665, 158 S.W.3d 123 (2004). She further argues that because a modification of child support

requires proof of a material change in circumstances, it could not be considered when

Demontie filed his March 2018 motion because the order he sought to modify was on

appeal.

It is true that as a general rule, the circuit court loses jurisdiction over the parties and

subject matter of a case once the record is lodged on appeal. See id. However, that rule is

not invariably applied in support cases. In fact, a circuit court has continuing power to

3 enforce decrees for support or child custody, even if that decree is the subject of an appeal.

Goodin v. Goodin, 240 Ark. 541, 542, 400 S.W.2d 665, 666–67 (1966).

Furthermore, the rule divesting the circuit court of jurisdiction while a case is on

appeal applies only to matters necessarily or directly involved in the matter under review.

Nameloc, Inc. v. Jack, Lyon & Jones, P.A., 362 Ark. 175, 179, 208 S.W.3d 129, 132 (2005).

It does not stay further proceedings with respect to rights not passed on or affected by the

judgment or decree from which the appeal is taken. Id. Matters that are independent of,

collateral to, or supplemental to those on appeal are left within the jurisdiction and control

of the circuit court. Id.

Here, the issues raised in the first appeal (which related to service of the motion, the

correct retroactive date, and whether Demontie was entitled to a downward deviation from

the chart amount) all related to the circumstances as they existed when Erika filed her prior

motion for modification. The issues raised in Demontie’s March 2018 motion relate to the

allegedly changed circumstances that existed when he filed his motion and is a matter

supplemental to those on appeal. The circuit court had jurisdiction to hear Demontie’s

motion to modify his child-support obligation.

Reversed and remanded.

GRUBER, C.J., and ABRAMSON, J., agree.

Taylor & Taylor Law Firm, P.A., by: Andrew M. Taylor and Tasha C. Taylor, for

appellant.

Michael H. Crawford, for appellee.