Ford v. Ford

65 S.W.3d 432, 347 Ark. 485, 2002 Ark. LEXIS 52
CourtSupreme Court of Arkansas
DecidedJanuary 31, 2002
Docket01-554
StatusPublished
Cited by93 cases

This text of 65 S.W.3d 432 (Ford v. Ford) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ford v. Ford, 65 S.W.3d 432, 347 Ark. 485, 2002 Ark. LEXIS 52 (Ark. 2002).

Opinion

A NNABELLE CLINTON IMBER, Justice.

In December 1998, .Appellee Jon Ford filed for divorce from Appellant Rhonda Ford. In an order filed on February 5, 1999, the chancellor placed the children temporarily in the custody of Rhonda and, at Jon’s request, ordered drug testing of both parties. On March 1, 1999, the chancellor changed custody of the children to Jon “until further orders of the Court” because Rhonda had tested positive for the use of drugs. The divorce decree entered on May 15, 2000, awarded custody of the two children to Jon, established child support and visitation for Rhonda, but reserved all issues of property division until the court received additional information. In a document entitled “Supplemental Decree” and filed on October 27, 2000, the chancellor addressed the issues of property division.

On November 27, 2000, Rhonda filed a notice of appeal “from a Divorce Decree entered in this Court on March 3, 2000 and from a Supplemental Decree entered in this Court on September 12, 2000.” She raises three points on appeal: 1) the court erred in awarding custody to the father rather than granting joint custody; 2) the court erred in setting visitation; and 3) the court erred in setting the amount of the child support and in establishing the date to which it was made retroactive. This case also raises the issue of whether the appeal was timely, thereby granting jurisdiction to this court under our Rule of Appellate Procedure—Civil 2(d) (2001). The Arkansas Court of Appeals certified the case to this court as an issue of first impression, a significant issue needing clarification or development of the law, and a substantial question of law concerning the interpretation of a rule of this court. Thus, our jurisdiction is pursuant to Ark. R. Sup. Ct. l-2(b)(l, 5, and 6) (2001). We hold that the appeal was timely filed and affirm the chancellor’s rulings.

I. Jurisdiction

[1-3] The first question is whether Rhonda’s appeal is properly before this court. Neither party raised the issue of jurisdiction based on the timeliness of the appeal; however, “it is well settled that it is our duty to determine that this court has jurisdiction.” Haase v. Starnes, 337 Ark. 193, 194-95 987 S.W.2d 704, 705 (1998). The question of jurisdiction centers around a possible conflict between Ark. R. App. P.—Civ. 2(d) (2001) and the requirement of a final appealable order. Arkansas Rule of Appellate Procedure — Civil 2(a)(1) (2001) limits our appellate review to final orders to avoid piecemeal litigation. Larscheid v. Arkansas Dept. of Human Services, 343 Ark. 580, 36 S.W.3d 308 (2001). Rule 2 establishes a number of exceptions, including Rule 2(d) that provides: “All final orders awarding custody are final appealable orders.” The potential conflict is with Rule 54(b), which provides that “[a]bsent the executed certificate required by paragraph (1) of this subdivision, any . . . order . . . which adjudicates fewer than all the claims . . . shall not terminate the action. ...” Ark. R. Civ. P. 54(b) (2001). We have held that the exceptions identified in Rule 2 specify circumstances in which an issue is appealable even though the order of the chancellor was not final. East Poinsett City Sch. Dist. #14 v. Massey, 317 Ark. 219, 876 S.W.2d 573 (1994).

The issue here is whether Rule 2(d) permitted Rhonda to appeal directly from the May 15, 2000 divorce decree, and, if so, was she required to appeal within thirty days or forfeit her right to appeal. The resolution of this issue requires us to decide whether the phrase “final orders awarding custody” as used in Rule 2(d) means a final order as to all issues as required by Rule 54(b), or merely any order that is final in terms of custody. We hold that Ark. R. App. P. — Civ. 2(d) permits an appeal from any order that is final as to the issue of custody, regardless of whether the order resolves all other issues. Therefore, Rhonda could have appealed directly from the May 15, 2000 divorce decree under Rule 2(d) because it was final as to the award of custody.

Having determined that the divorce decree met the requirements of Rule 2(d), the issue then becomes whether Rhonda was required to file her appeal within thirty days of the divorce decree or lose her right to appeal. The resolution of this issue is found in Rule 2(b) that provides: “An appeal from any final order also brings up for review any intermediate order involving the merits and necessarily affecting the judgment.” Ark. R. App. P.— Civ. 2(b) (2001). In the instant case, while the May 15, 2000 divorce decree was a final award of custody, it was only an intermediate order with reference to property division issues, which were not addressed by the chancellor until the supplemental decree was entered on October 27, 2000. As such, the issues resolved in the divorce decree, as an intermediate order, were brought up for review along with the appeal from the supplemental decree. In summary, while Rhonda could have appealed directly from the May 15, 2000 divorce decree under Rule 2(d), she was not barred from raising the issues resolved in the divorce decree in her appeal from the October 27, 2000 supplemental decree. Therefore, Rhonda’s notice of appeal, filed on November 27, 2000, was timely filed, and this court has jurisdiction. 1

II. Custody

We review chancery cases de novo, but will only reverse if the chancellor’s findings were clearly erroneous or clearly against the preponderance of the evidence. Skokos v. Skokos, 344 Ark. 420, 40 S.W.3d 768 (2001). A finding is clearly erroneous when the reviewing court, on the entire evidence, is left with the definite and firm conviction that a mistake has been committed. Id. We give due deference to the chancellor’s superior position to determine the credibility of the witnesses and the weight to be given their testimony. Id. In cases involving child custody, great deference is given to the findings of the chancellor. “This court has held that there is no other case in which the superior position, ability, and opportunity of the chancellor to observe the parties carries a greater weight than one involving the custody of minor children.” Taylor v. Taylor, 345 Ark. 300, 304, 47 S.W.3d 222, 224 (2001). “The best interest of the child is the polestar in every child custody case; all other considerations are secondary.” Id. See also, Norwood v. Norwood, 315 Ark. 255, 866 S.W.2d 398 (1993).

For her first point on appeal, Rhonda argues that the chancellor erred in awarding custody to Jon rather than joint custody because (1) the chancellor gave too much weight to her failed drug test while giving too little weight to her husband’s former drug use; (2) the chancellor awarded custody without a home study for Rhonda; and (3) the chancellor did not factor in Jon’s propensity for violence. After awarding temporary custody to Rhonda, the trial court ordered both parties to submit to drug tests.

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Bluebook (online)
65 S.W.3d 432, 347 Ark. 485, 2002 Ark. LEXIS 52, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ford-v-ford-ark-2002.