Kevin Cheri v. Laura Cheri

2024 Ark. App. 289

• Court: Court of Appeals of Arkansas
• Decided: May 1, 2024
• Status: Published

Opinion

Cite as 2024 Ark. App. 289 ARKANSAS COURT OF APPEALS DIVISION I No. CV-23-622

Opinion Delivered May 1, 2024 KEVIN CHERI APPELLANT APPEAL FROM THE BOONE COUNTY CIRCUIT COURT [NO. 05DR-20-376] V. HONORABLE JOHNNIE A. LAURA CHERI COPELAND, JUDGE APPELLEE DISMISSED

RITA W. GRUBER, Judge

Today, we hand down two separate opinions: Cheri v. Cheri, 2024 Ark. App. 288

(Cheri I) and this case Cheri v. Cheri, 2024 Ark. App. 289 (Cheri II).1 Each case stems from

the Boone County Circuit Court’s distribution of the parties’ personal property within their

divorce proceeding. Because the facts, issues on direct appeal, and arguments presented here

are identical to those presented in Cheri I, we find it unnecessary to restate them and set

forth only those facts necessary to dispose of this case.

Cheri I stems from the appeal of the parties’ February 11, 2022 divorce decree

(decree),2 the February 11 “order regarding civil service retirement system benefits” (annuity

1 There is a third appeal filed with this court involving these parties, case No. CV-23- 772. However, that case has not yet been submitted. 2 We are mindful that on March 2, the circuit court entered a decree of divorce nunc pro tunc to correct a clerical error. Because the nunc pro tunc decree neither substantively order), and the deemed denial of appellee’s motion for reconsideration (denial of

reconsideration motion) as well as the cross-appeal of the denial of the reconsideration

motion. This case stems from paragraph 10 of the decree, which divides appellant’s federal

thrift savings plan (TSP) equally between the parties. However, that paragraph also states that

the court “will issue a separate Order dividing the TSP account to satisfy the requirements

found in 5 USC §§ 845(c) and 8467, and 5 CFR part 1653, subpart A” (the TSP order). For

reasons irrelevant to either the analysis in Cheri I or here, the TSP order was not entered

until June 20, 2023.

In theory, both parties believed that the decree, the annuity order, and the denial of

the reconsideration motion were final, appealable orders—as reflected in motions filed in

both Cheri I and this case.3 However, appellant filed a “third amended notice of appeal” with

this court on July 20, 2023, to incorporate the TSP order into his appeal. But that notice of

appeal was filed after the Cheri I record had been lodged, after Cheri I was remanded, after

the Cheri I record was relodged, and after the parties had submitted their Cheri I briefs. Thus,

Cheri II was born. The record reflects that appellee did not pursue her cross-appeal in Cheri

amended the February 11 decree nor was an exercise of the circuit court’s judicial discretion, the February 11 decree constituted a final, appealable order. See, e.g., Francis v. Protective Life Ins. Co., 371 Ark. 285, 292–94, 265 S.W.3d 117, 122–23 (2007).

3 Appellant moved to consolidate the record in this case with the record in Cheri I, which we granted on November 18, 2023. Thus, the filings made within Cheri I are part of the record in this case.

2 II due to her—correct—belief that the at-issue orders in Cheri I were final, appealable orders,

and this court could and would address the substantive merits of her cross-appeal therein.

An appeal may be taken from a final judgment or decree that is entered by a circuit

court. Ark. R. App. P.–Civ. 2(a)(1). Matters that are collateral, supplemental, or ministerial

in nature to the circuit court’s judgment are left within the circuit court’s jurisdiction even

though an appeal has been docketed and do not affect the finality of the original, final order.

See Worsham v. Day, 2019 Ark. 160, at 5, 574 S.W.3d 150, 154 (finding attorney’s fees to be

collateral in nature); see also Dep’t of Fin. & Admin. v. Staton, 325 Ark. 341, 942 S.W.2d 804

(1996) (stating that collateral and ministerial orders need not be final for purposes of . . .

Arkansas Rule of Appellate Procedure–Civil 2).

The TSP order took the same information contained within the decree regarding the

TSP distribution and arranged it into a different format: it did not alter the distribution of

the TSP as set forth in the decree or impact the rights of the parties. The TSP order is

ministerial in nature, entered pursuant to the decree, in conformity with the decree, and in

execution of the decree. Thus, as set forth in Cheri I, the decree, the annuity order, and the

denial of the motion for reconsideration were all final, appealable orders that each party

timely and properly appealed. Because this court’s jurisdiction was invoked, we addressed

the merits of appellant’s five points on direct appeal and appellee’s point on cross-appeal in

Cheri I.

Because all five points on appeal raised by appellant in this case are identical to those

raised in Cheri I and are addressed by the opinion we hand down today in that case, this

3 appeal is moot. While neither party raises the issue of mootness, it is a jurisdictional issue

that we raise on our own motion. Black’s Law Dictionary 1027 (8th ed. 2004) defines “moot”

as “[h]aving no practical significance.” A case becomes moot if a controversy ceases to exist

between the parties at any stage of the legal proceedings, including the appeal. Generally, the

appellate courts of this state will not review issues that are moot. Gee v. Harris, 94 Ark. App.

32, 33, 223 S.W.3d 88, 88 (2006). Subject to two exceptions not applicable here, a case

becomes moot when any judgment rendered would have no practical legal effect upon a

then-existing legal controversy. Id., 223 S.W.3d at 89. We hold that no judgment rendered

in this case would have any practical legal effect, given our disposition of the very same issues

in Cheri I. Accordingly, we dismiss this case.

Dismissed.

GLADWIN and KLAPPENBACH, JJ., agree.

Jeremy B. Lowrey, for appellant/cross-appellee.

Taylor & Taylor Law Firm, P.A., by: Tory H. Lewis, Andrew M. Taylor, and Tasha C.

Taylor, for appellee/cross-appellant.