2016 Ark. App. 369
Ark. Ct. App.2016Background
- Robin and Keith Emis divorced in 2011; Robin received sole legal and physical custody of twin children and Keith visitation.
- In September 2014 the parties agreed to a modified order (nunc pro tunc to May 1, 2012) stating joint physical custody and legal custody vested in Robin.
- Robin filed in January 2015 to modify custody and to relocate to Florida; Keith counter-filed seeking primary custody and to prevent relocation.
- After a three-day hearing in August 2015, the trial court issued "Findings of Fact and Conclusions of Law" on August 14 awarding custody to Keith but directed Keith’s counsel to prepare a final order.
- The court entered a formal final custody order on August 27, 2015, superseding prior custody orders; Robin filed a notice of appeal on September 9 that designated only the August 14 findings (not the August 27 final order).
- The Court of Appeals held that because Robin failed to timely designate the August 27 final order her appeal lacks jurisdiction to reach the custody merits; it therefore declined to address recusal arguments as advisory and rejected other claims for inadequate briefing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a material change of circumstances supports custody modification (jurisdiction to review) | Robin contends the trial court erred in modifying custody and that the August 14 findings are appealable | Keith relied on the trial court’s rulings and the August 27 final order as the operative judgment | Court held Robin failed to appeal the August 27 final order; August 14 document was not an appealable final order (and was superseded), so court lacks jurisdiction to review custody merits |
| Adequacy/timeliness of notice of appeal | Robin argued her amended notices preserved appellate review of the custody decision | Keith argued the initial notice did not designate the final order and the amendment was untimely | Held amendment was filed more than 30 days after the final order; failure to designate August 27 order divests appellate jurisdiction |
| Recusal of trial judge | Robin asserted judicial bias and sought recusal after final order | Keith argued motion was filed post-judgment and she did not seek to vacate the custody order | Court held recusal motion filed after final order and without seeking to set aside custody makes recusal claim advisory; court declined to address it |
| Attorney’s fees, striking affidavit, vacating ad litem appointment | Robin challenged fees awarded to opposing counsel/ad litem, striking of her affidavit, and denial of vacatur of ad litem | Keith supported the trial-court rulings on those postjudgment matters | Court refused to address these issues because Robin’s briefing failed to develop arguments or cite authority, so issues were not preserved for appellate consideration |
Key Cases Cited
- Gilbert v. Moore, 364 Ark. 127, 216 S.W.3d 583 (discussing finality of custody orders decided on the merits)
- Sandlin v. Sandlin, 290 Ark. 366, 719 S.W.2d 433 (custody orders styled temporary may be final if decided on the merits)
- Chancellor v. Chancellor, 282 Ark. 227, 667 S.W.2d 950 (same principle on finality of custody determinations)
- Jones v. Jones, 41 Ark. App. 146, 852 S.W.2d 325 (appealability of custody orders)
- Wilson v. Pulaski Ass’n of Classroom Teachers, 330 Ark. 298, 954 S.W.2d 221 (court will not issue advisory opinions)
- Ligon v. Stilley, 2010 Ark. 418, 371 S.W.3d 615 (arguments not sufficiently briefed will not be considered on appeal)
- Hartness v. Nuckles, 2015 Ark. 444, 475 S.W.3d 558 (definition and limits of advisory opinions)