2014 Ark. App. 63
Ark. Ct. App.2014Background
- Steven Wayne Jerry (Husband) and Jimmie Dell Jerry (Wife) divorced by decree on October 22, 2010; a property-settlement agreement was incorporated into the decree.
- Agreement split property and debt, provided equal sharing of Husband’s military retirement, alimony of $700/month for seven years, and required Husband to keep Wife on his military health insurance or notify her if he could not.
- Parties discovered Wife could no longer be covered; on March 28, 2011 they executed a written amendment splitting Wife’s $94/month insurance premium 50/50 (amendment not submitted to the court).
- Husband filed a petition (July 29, 2011) alleging contempt, seeking modification of alimony and military-retirement division, and asking to set aside the insurance-premium amendment as procured by duress. He also sought return of certain personal items.
- Trial court’s May 31, 2012 order directed production of invoices and return of one firearm, declined to divide cabinets (found to belong to a nonparty), refused to modify equal division of military retirement, and declined to modify alimony (no significant change; alimony contractual and not unilaterally modifiable).
- The trial court’s order did not rule on (1) validity/enforceability of the insurance-premium amendment or (2) return of Husband’s birth certificate, shot records, and DD Form 214; no Rule 54(b) certificate was entered.
Issues
| Issue | Husband's Argument | Wife's Argument | Held |
|---|---|---|---|
| Whether trial court could modify alimony and military-retirement division | Husband: Income decreased; alimony should be reduced and retirement divided only for years married during service | Wife: Agreement incorporated in decree; alimony contractual and not subject to unilateral modification; retirement was agreed equal | Court: Refused modification; no significant change shown and the contract as incorporated controlled |
| Validity of written amendment (insurance premium split) — duress/voidability | Husband: Amendment was signed under duress and without counsel and should be set aside | Wife: Parties agreed to amend; amendment is binding (implicitly) | Court: Did not decide; claim not addressed in order (left unresolved) |
| Contempt/return of specific items (birth certificate, shot records, DD214, firearm, cabinets) | Husband: Wife failed to return listed items and failed to provide invoice copies | Wife: Some items (cabinets) belong to third party (mother); otherwise contested | Court: Ordered invoices produced and one firearm returned; cabinets left undivided (nonparty ownership); did not address birth certificate, shot records, DD214 |
| Appealability — whether the order is final and appealable | Husband: Timely appealed after denial of motion for new trial | Wife: Order disposes of several claims but not all; no Rule 54(b) certificate | Court (Appellate): Appeal dismissed for lack of final, appealable order because not all claims were adjudicated and no 54(b) certificate was entered |
Key Cases Cited
- J-McDaniel Constr. Co. v. Dale E. Peters Plumbing Ltd., 2013 Ark. 177 (finality is jurisdictional; appellate court must raise sua sponte)
- Gartman v. Ford Motor Co., 2011 Ark. 454 (calculation of motion-for-new-trial denial date when deadline falls on weekend)
- Dodge v. Lee, 350 Ark. 480 (2002) (order that fails to adjudicate all claims/parties is not final under Ark. R. Civ. P. 54(b))
- Harrill & Sutter, PLLC v. Farrar, 2011 Ark. 181 (where no Rule 54(b) certificate attempted, an order disposing of fewer than all claims is not final)