Dorrell v. Dorrell

2014 Ark. App. 496, 441 S.W.3d 925, 2014 Ark. App. LEXIS 682
CourtCourt of Appeals of Arkansas
DecidedSeptember 24, 2014
DocketCV-13-1110
StatusPublished
Cited by5 cases

This text of 2014 Ark. App. 496 (Dorrell v. Dorrell) 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
Dorrell v. Dorrell, 2014 Ark. App. 496, 441 S.W.3d 925, 2014 Ark. App. LEXIS 682 (Ark. Ct. App. 2014).

Opinion

PHILLIP T. WHITEAKER, Judge.

| timothy Dorrell appeals an order of the Union County Circuit Court granting appellee Alanna Dorrell’s petition for modification of the couple’s joint-custody arrangement and awarding Alanna primary custody of their daughter. On appeal, Timothy raises three arguments, contending that the circuit court erred in (1) destroying joint custody in light of a new statutory provision favoring joint-custody agreements; (2) finding it to be in the child’s best interest to place custody with Alanna; and (3) not awarding Timothy judgment on unpaid medical expenses. For the reasons discussed below, we are unable to reach the merits of his first and third arguments. On Timothy’s second argument, we find no error and affirm.

pi. Factual Background

The Dorrells’ daughter, A.D., was born in 2007, and the couple was divorced in 2009 by consent decree. The consent decree of absolute divorce provided that Timothy and Alanna were awarded joint custody of A.D. A.D. was to alternate two days with each parent and then alternate three days with each parent, which would result in A.D.’s spending alternating weekends with each parent. By the terms of the consent decree, the Dorrells agreed that they would “agree on school choice when the time comes, depending on where each of the parties are living.”

Within months of the consent decree, Timothy filed an initial petition for change of custody; however, he never took action to prosecute his petition. 1 In 2013, Alanna filed a counterpetition for change of custody. In her counterpetition, she alleged that it was time for A.D. to begin kindergarten, but the parties could not agree on where to send her to school, despite the provision in the decree to reach an agreement on that issue. Aanna sought to have primary custody placed with her. In response, Timothy filed an amended petition for change of custody, asserting that it was in A.D.’s best interest for him to have primary custody. Essentially, both parties sought to have primary custody based on what they believed was in the child’s best interest. The circuit court granted Alan-na’s counterpetition in an order filed on August 19, 2013, finding that it was in A.D.’s best interest for Alanna to have primary custody of the child. It is from this order that Timothy appeals.

| aII. Procedural Issues

Timothy’s first point on appeal raises numerous arguments concerning the interpretation and application of Act 1156 of 2013. With this act, the General Assembly amended Arkansas Code Annotated section 9-13-101 to add subsection (a)(l)(A)(iii), which provides that, “[i]n an action for divorce, an award of joint custody is favored in Arkansas.” 2 Timothy argues that the circuit court failed to address the 2013 amendments to section 9-13-101 and that this failure constitutes reversible error. In his third argument on appeal, Timothy asserts that the court’s August 2013 order was erroneous in its failure to address certain issues; specifically, he notes that, in his amended petition for change of custody, he had asked for reimbursement from Alanna for certain medical bills. We are unable to reach these two arguments based on the history of this case.

Procedurally, Timothy did not raise the issue of the amendment to section 9-13-101 in his petition for change of custody, nor did he raise it in arguments before the circuit court at the hearing on the petition. As a result, the circuit court’s order entered on August 19, 2013, finding that it was in AD.’s best interest for Alanna to have primary custody of the child, did not address the issue now being argued on appeal.

This issue was raised for the first time in Timothy’s motion for stay and motion for reconsideration, which were filed on August 23, 2013. On September 12, 2013, Timothy |4filed a notice of appeal that designated the circuit court’s August 19 order modifying the custody arrangement. The circuit court did not rule on the motion for reconsideration within thirty days. However, on October 11, 2013, the circuit court entered an order in which it denied in part and granted in part Timothy’s motion for reconsideration. The court rejected Timothy’s argument that the 2013 amendment to section 9-13-101 was applicable, but it found that Alanna should pay him half of the medical expenses Timothy had incurred on A.D.’s behalf. Timothy did not file an amended notice of appeal at any point.

Because the circuit court did not rule on Timothy’s posttrial motions within thirty days, they were deemed denied by operation of law on the thirtieth day pursuant to Arkansas Rule of Appellate Procedure— Civil 4(b)(1) 3 (“If the circuit court neither grants nor denies the motion within thirty (30) days of its filing, the motion shall be deemed denied by operation of law as of the thirtieth day, and the notice of appeal shall be filed within thirty (30) days from that date.”). Rule 4(b)(2) goes on to provide, in pertinent part, as follows:

A notice of appeal filed before disposition of any of the motions listed in paragraph (1) of this subdivision shall be treated as filed on the day after the entry of an order disposing of the last motion outstanding or the day after the motion is deemed denied by operation of law. Such a notice is effective to appeal the underlying judgment, decree, or order. A party who also seeks to appeal from the grant or denial of the motion shall within thirty (30) days amend the previously filed notice, complying with Rule 3(e).

| ¡-.Because Timothy did not file an amended notice of appeal after the deemed denial of his posttrial motion, we are without jurisdiction to address the issues raised in those pleadings.

Our court has addressed this jurisdictional issue before. In Edwards v. Edwards,, 2010 Ark. App. 227, 2010 WL 816244, this court declined to address the circuit court’s denial of the appellant’s motion for new trial where appellant failed to file an amended notice of appeal that encompassed that denial: “We are without jurisdiction to address this issue. Appellant’s notice of appeal, filed after the decree but before disposition of the new-trial motion, was effective only to appeal the decree; the record fails to show that appellant ever filed a new or amended notice of appeal after the new-trial motion was deemed denied.” Id. at 3-4 (citing Ark. R.App. P.-Civ. 4(b)(2)); see also Wilson v. Ark. State Highway Comm’n, 2014 Ark. App. 130, 2014 WL 668211 (refusing to address issues pertaining to the denial of a new-trial motion where appellant never filed an amended notice of appeal from the order denying the motion); Troutman Oil Co. v. Lone, 75 Ark.App. 346, 57 S.W.3d 240 (2001). We reach the same conclusion in the instant case: we can address Timothy’s arguments only insofar as he challenges the circuit court’s order awarding primary custody to Alanna, but we are unable to reach his argument that the circuit court erred in failing to consider the amendments to section 9-13-101.

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Bluebook (online)
2014 Ark. App. 496, 441 S.W.3d 925, 2014 Ark. App. LEXIS 682, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dorrell-v-dorrell-arkctapp-2014.