Opinion
CA09-65
Opinion Delivered September 2, 2009
Appeal from the Pulaski County Circuit Court, Ninth Division [DR-04-698], Honorable Mary Mcgowan, Judge.
Dismissed.
Before us is an appeal from both the order addressing a contempt motion and the order denying post-trial relief. We dismiss the appeal because the orders appealed from are not final and appealable.
Appellant, Lisa Young, and appellee, Carey Young, were divorced by decree entered on June 21, 2004. The parties negotiated a dissolution agreement that was incorporated, but not merged, into the decree. By the agreement, Lisa received custody of the parties' only child, and Carey agreed to make certain designated support and alimony payments and assume other specified financial obligations. Thereafter, numerous contempt motions and orders followed until January 22, 2007, when the parties entered into an agreed order, modifying portions of their original dissolution agreement.
This appeal is from Lisa's fifth motion for contempt filed on June 16, 2008, which followed entry of the last agreed order. After the hearing, the trial court entered an order on October 28, 2008. Then, on November 10, 2008, Lisa filed her motion for amended order and additional findings, and on December 10, 2008, the trial court denied the post-trial motion. On January 6, 2009, Lisa filed her notice of appeal from both the October 28, 2008 order concerning her motion for contempt and the November 10, 2008 order denying her post-trial motion.
The finality of an order is a jurisdictional question that we have the right and duty to raise in order to avoid piecemeal litigation. Toney v. White, 31 Ark. App. 34, 787 S.W.2d 246 (1990). For an order to be appealable, it must in some way determine or discontinue the action. Id.; Ark. R. App. P.-Civil 2. The order must dismiss the parties from the court, discharge them from the action, or conclude their rights to the subject matter in controversy to be final. Toney, supra.
According to the terms of the parties' January 22, 2007 agreed order, Lisa was entitled to judgment against Carey for $145,308.01 for other unpaid obligations, plus interest at the rate of ten percent until paid, and awarded attorneys' fees in the amount of $10,000 against him. Carey was relieved of certain obligations under the original dissolution agreement, but he was ordered to continue other payments and remedy certain unpaid debts to Lisa. For example, he was to continue his bargained-for weekly alimony payment of $300 through December 31, 2008, as well as make weekly child-support payments of $200. In addition, Carey's obligation to maintain health insurance in the premium amount of $51.01 per week for their child, and to reimburse Lisa for medical and related expenses not covered by insurance remained in effect.
The testimony from the contempt hearing can be briefly summarized. Lisa testified about the ways in which Carey had failed to live up to his obligations under their several previous agreements, and Carey, appearing pro se, explained how his adverse financial circumstances as a home builder/developer had prevented him from meeting his agreed-upon obligations.
In ruling from the bench, the trial court emphasized to Carey that it was in his best interest to get a job, stop relying upon the sale of his houses to produce income because they were not selling, stop borrowing money, and talk to a lawyer and a financial advisor. The judge also stated:
I'm not going to reduce the amount today to judgment because it's just going to stay whether or not you're going to get picked up, and then you have to pay it to get out of jail.
. . . .
The order will reflect the arrears. It can be reduced to a judgment, but then you won't have anything for him to pay if he goes to jail. In that instance, you have it recited that there's no arrears, and then if he doesn't pay what he's supposed to pay for a certain amount of time, he's picked up, then he's ordered to pay what the figure is for the arrears. You can always have it reduced to judgment at a later date.
[Carey's] going to be ordered to pay $500 a week. If he doesn't have $500 to the Clerk's office by 4:30, October 31, 2008, there will be a pick-up order that will be entered. If there is not $500 in the Clerk's office by November 7 by 4:30 p.m., there will be a pick-up order that will issue. If there is not $500 in the clerk's office by November 14, 4:30, there will be a pick-up order that will issue. Each time, if it's not there by 4:30, and each time then, what he will have to pay to get out of jail is not $500. He will have to pay the arrears, the Court's finding today that he is in.
If [Carey] continues to pay his obligations going into the future, the remedy then for the arrearage is to write a letter to the Court and ask the Court to reduce it to judgment, a copy to [Carey] and a copy to the other attorney.
The trial court, in its October 28, 2008 order, found that Carey was in arrears on additional child support and alimony for a total of $22,000 for 2007 and through October 2008, and was behind a total of $918.18 for health-insurance premiums. The trial court ordered Carey to pay $500 per week by 4:30 p.m. on each and every Friday, specifying the dates of October 31, 2008, November 7, 14, 21, and 28, 2008, December 5, 12, 19, and 26, 2008, or a pick-up order would issue for his incarceration. The court's order also provided:
Should [Carey] miss a payment and be incarcerated, his key to get out of jail will be payment of the entire arrearage. The arrearage will be reduced to judgment at a future date upon request by [Lisa].
The issue of contempt is reserved but will be found if [Carey] misses a weekly payment.
All other issues are reserved.
At the conclusion of the contempt hearing, it is obvious the trial court was faced with a situation in which Carey's financial condition was dire, and his monetary obligations under the court's previous orders were difficult to satisfy. The court gave certain interim relief to Lisa, but reserved a final ruling on the primary issue of contempt, and also reserved any ruling on "all other issues." Lisa's post-trial motion then sought rulings from the court on all of the issues; the trial court denied the motion.
An order of contempt is a final, appealable order. Thelman v. State, 375 Ark. 116, ___ S.W.3d ___ (Nov. 13, 2008). Here, however, the trial court reserved ruling on contempt and "all other issues" — clearly contemplating a future review of the situation, probably at the end of December 2008 when Carey's alimony obligation would end. At the same time, the trial court also left open for Lisa the option of having the arrearage amounts reduced to judgment — an option which still remains open. In short, faced with the harsh realities of the situation, the experienced trial court plotted a reasonable course of action that would give Carey time to get his financial affairs in order so that he could meet his huge arrearages, while at the same time retaining the threat of jail time over his head to keep his alimony and child-support payments current, while holding in abeyance rulings on the other issues in the case. By design, the trial court crafted an order that was not final, that kept Carey's actions under its review, and that gave Lisa as much relief as the situation could afford. The trial court clearly did not dismiss the parties from the court, discharge them from the action, or conclude their rights to the subject matter in controversy. We are, therefore, without jurisdiction to hear this appeal.
Appeal dismissed.
HART and MARSHALL, JJ., agree.