Emis v. Emis
2017 Ark. 52
| Ark. | 2017Background
- Robin and Keith Emis divorced in 2011; Robin was initially awarded custody of their twin sons.
- An agreed order (nunc pro tunc to May 1, 2012) later described the parties as having "joint physical custody" with legal custody to Robin.
- After contested proceedings, the trial court issued Findings of Fact and Conclusions of Law on August 14, 2015, construed the agreed order as true joint custody, denied Robin’s relocation request, and modified custody to Keith; a final order was entered August 27, 2015, which stated it superseded prior orders.
- Robin filed a notice of appeal on September 9, 2015, referencing the August 14 findings (not the August 27 final order); she later filed amended notices adding posttrial orders.
- The court of appeals dismissed aspects of the appeal as jurisdictionally defective for failing to designate the final custody order; this Court granted review.
- The Supreme Court held Robin’s notice of appeal substantially complied with Rule 3(e) because the notice was timely as to the final order, the findings were incorporated into the final order, and appellee suffered no prejudice; the Court vacated the court of appeals opinion and remanded for further consideration.
Issues
| Issue | Plaintiff's Argument (Emis) | Defendant's Argument (Keith) | Held |
|---|---|---|---|
| Whether notice of appeal that references the August 14 findings (not the August 27 final order) confers appellate jurisdiction | The notice substantially complies with Ark. R. App. P.–Civ. 3(e) because it was timely as to the final order and the findings challenged were incorporated into the final order | The notice is jurisdictionally defective for failing to designate the final appealable order (August 27), so the court of appeals lacks jurisdiction over custody issues | Court: substantial compliance; notice was timely as to final order, no prejudice to appellee; remand to court of appeals |
| Whether the court of appeals should have declined to reach recusal issues as advisory | Robin argued recusal and related motions were properly before the court and intertwined with custody relief | Appellee argued recusal issues were moot/ advisory because Robin did not seek to vacate the custody award for bias | Court did not resolve recusal on merits here; remanded for court of appeals to consider remaining issues after finding jurisdiction |
| Whether defects in designation for Rule 3(e) can be treated as scrivener’s errors allowing substantial compliance | Emis: defect is not fatal when it’s clear which order is appealed and no prejudice results | Keith: failure to designate final order (not a scrivener’s error) is fatal because August 14 was superseded by August 27 | Court: applied substantial-compliance doctrine (citing precedent) and found no prejudice; upheld jurisdiction |
| Whether appeal should be dismissed for failure to designate a final, appealable order | Emis: timely appeal and incorporation of findings into final order cure the omission | Keith: August 14 was superseded; designating it is not a mere scrivener’s error and requires dismissal | Court: did not dismiss; vacated court of appeals opinion and remanded for merits consideration |
Key Cases Cited
- Jewell v. Moser, 2012 Ark. 267 (defines/limits substantial-compliance review of Rule 3(e))
- Mann v. Pierce, 2016 Ark. 418 (notice may substantially comply when timely as to final judgment and appellee not prejudiced)
- Kelly v. Kelly, 2016 Ark. 72 (remand for further consideration after threshold jurisdictional ruling)
- Mason v. Mason, 319 Ark. 722 (letter opinions/findings are not final judgments absent incorporation)
- Thomas v. McElroy, 243 Ark. 465 (same principle regarding non-final nature of findings of fact and opinions)
- Duncan v. Duncan, 2009 Ark. 565 (scrivener’s-error line of cases permitting relief where notice references non-existent order)