Lowell v. Lowell

934 S.W.2d 540, 55 Ark. App. 211, 1996 Ark. App. LEXIS 771
Court of Appeals of Arkansas·Decided December 11, 1996·No. CA 95-875·Published·Cited by 7 cases

Opinion

JOHN F. Stroud, Jr., Judge.

Appellant, Michelle Lowell, has three sons by different former husbands, who are the appellees in this case. She was first married to appellee Brian Jackson. Their son is Joshua Scott Jackson. Appellant’s second husband was appellee Jimmy Smith. Their son is Brock Smith. Appellant’s third husband was appellee Robert E. Lowell. Their son is Robert A. Blake Lowell. Appellant was married to Robert Lowell when Jimmy Smith filed a petition in juvenile court for determination of dependency-neglect regarding his son, Brock Smith. Appellee Robert Lowell subsequently filed for divorce from appellant in chancery court. By temporary order filed October 22, 1993, the juvenile court found probable cause to believe the children were dependent-neglected. On that same day, the other two fathers, appellees Jackson and Lowell, filed motions to intervene in the juvenile proceeding and to consolidate their divorce actions with Smith’s juvenile proceeding. All three fathers sought custody of their respective sons. On November 12, 1993, the juvenile court granted Lowell’s and Jackson’s motions to intervene and consolidated the three actions. After several hearings, the juvenile court concluded that the children were dependent-neglected and that custody of the children should be vested with their respective fathers. Appellant raises six points on appeal, but finding no error we affirm.

Appellant’s first argument is that the juvenile court erred in assuming jurisdiction of appellee Smith’s dependency-neglect petition. She asserts that the chancellor in the Smiths’ divorce proceeding in the judicial district where the juvenile, Brock Smith, resided had previously determined that appellant should have custody of Brock, and this prior custody determination was open for modification and should be heard in that chancery court, rather than in the juvenile court. We find no error.

The juvenile courts of Arkansas are a division of chancery. Schuh v. Roberson, 302 Ark. 305, 788 S.W.2d 740 (1990). However, juvenile courts have exclusive original jurisdiction for proceedings in which a juvenile is alleged to be dependent-neglected. Ark. Code Ann. § 9-27-306(a)(l) (Supp. 1995). The juvenile code provides that petitions for dependency-neglect may be filed by any adult. Ark. Code Ann. § 9-27-310(b)(3)(A) (Supp. 1995). Appellant argues that the juvenile courts were not intended to assume jurisdiction over ordinary custody matters. The allegations of dependency-neglect, however, separated this case from those involving ordinary custody matters. Moreover, the trial judge was correct in reasoning that the consolidation of the three divorce proceedings with the juvenile action was appropriate to prevent conflicting custody orders within the same judicial district. See Henry v. Eberhard, 309 Ark. 336, 832 S.W.2d 467 (1992).

Appellant next argues that the juvenile court erred in allowing appellees Lowell and Jackson to intervene in the dependency-neglect proceedings because the motion to intervene was untimely, insufficient, and improper. We disagree.

The timeliness of the motion is a matter clearly within the trial court’s discretion, and it will be reversed only where that discretion has been abused. Employers Nat’l Ins. Co. v. Grantors to Diaz Refinery PRP Comm. Site Trust, 313 Ark. 645, 855 S.W.2d 937 (1993). The factors that we consider regarding the timeliness of a motion to intervene are: (1) how far the proceedings have progressed; (2) any prejudice to other parties caused by the delay; and (3) the reason for the delay. Cupples Farms Partnership v. Forrest City Prod. Credit Ass’n, 310 Ark. 597, 839 S.W.2d 187 (1992). Here, the original petition for determination of dependency-neglect was filed by appellee Smith on September 14, 1993. Appellees Jackson and Lowell moved to intervene on the day the temporary order finding probable cause for dependency-neglect was entered, October 22, 1993, which was just over a month after the original petition had been filed. Appellant has not shown that there was any prejudice as a result of the intervention. We find that the juvenile court did not abuse its discretion in finding that the motion was timely.

With respect to the propriety of the intervention, Arkansas Rule of Civil Procedure 24(b) deals with permissive intervention. It provides that intervention may be permitted when the main action and an applicant’s claim or defense have a question of law or fact in common. Here, the common facts and questions of law involved the proper care and custody of the three sons. As with timeliness, permissive intervention is also a matter within the trial court’s discretion, and we will reverse only for abuse of that discretion. Billabong Prods., Inc. v. Orange City Bank, 278 Ark. 206, 644 S.W.2d 594 (1983). We do not find that the trial court abused its discretion in allowing the intervention.

With respect to the sufficiency of the motion to intervene, appellant argues that Arkansas Rule of Civil Procedure 24(c) requires that the motion state the grounds for intervention and that it be accompanied by a pleading setting forth the claim or defense for which intervention is sought. She argues that no separate pleading was attached to appellee Jackson’s and Lowell’s motions to intervene, and therefore the trial court erred in allowing the intervention. We disagree.

Arkansas Rule of Civil Procedure 24(c) provides in pertinent part:

(c) Procedure. A person desiring to intervene shall serve a motion to intervene upon the parties as provided in Rule 5. The motion shall state the grounds therefor and shall be accompanied by a pleading setting forth the claim or defense for which intervention is sought.

(Emphasis added.) In Polnac-Hartman & Assoc. v. First Nat’l Bank, 292 Ark. 501, 731 S.W.2d 202 (1987), the supreme court affirmed the lower court’s denial of intervention, which had been based in part upon the appellant’s failure to file a pleading setting forth a claim or defense. In doing so, however, the supreme court explained:

The failure to file a pleading with a motion to intervene was the subject of our decision in Schact v. Garner, 281 Ark. 45, 661 S.W.2d 361 (1983). In that case a party moving to intervene refused to file a pleading setting forth its claim or defense as required by Rule 24(c) but insisted on being allowed to intervene in the litigation. The trial court denied the motion, and this court affirmed, noting that the movant had not shown entitlement to intervene as a matter of right or permissively. That, of course, is the purpose of filing a pleading. Without it, the court may not have any idea of the right asserted by the would-be intervenor. Although the appellant in this case attached the assignments to the motion, it did not state how or why they should be protected or what the claim of priority, if any, was.

Free access — add to your briefcase to read the full text and ask questions with AI

Lowell v. Lowell, 934 S.W.2d 540, 55 Ark. App. 211, 1996 Ark. App. LEXIS 771 (Ark. Ct. App. 1996).

934 S.W.2d 540 (Lowell v. Lowell) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

Adrienne Elaine Friedly v. Erik Christopher Friedly
2020 Ark. App. 167 (Court of Appeals of Arkansas, 2020)
Wartick v. United Services Automobile Ass'n
2017 Ark. App. 329 (Court of Appeals of Arkansas, 2017)
Mann v. Arkansas Department of Human Services
415 S.W.3d 45 (Court of Appeals of Arkansas, 2012)
Hunter v. Runyan
2011 Ark. 43 (Supreme Court of Arkansas, 2011)
McLane Co. v. Davis
33 S.W.3d 473 (Supreme Court of Arkansas, 2000)
Bharodia v. Pledger
990 S.W.2d 581 (Court of Appeals of Arkansas, 1999)
Ishmael v. Ismail
989 S.W.2d 923 (Court of Appeals of Arkansas, 1999)