Emis v. Emis ( 2016 )

Cite as 2016 Ark. App. 369
ARKANSAS COURT OF APPEALS
DIVISION IV
No. CV-15-993
Opinion Delivered August 31, 2016
ROBIN M. EMIS APPEAL FROM THE PULASKI
APPELLANT COUNTY CIRCUIT COURT,
SIXTEENTH DIVISION
[NO. 60DR-10-1616]
V.
HONORABLE MORGAN E. WELCH,
JUDGE
KEITH W. EMIS
APPELLEE AFFIRMED
PHILLIP T. WHITEAKER, Judge
This appeal arises from a child-custody modification. The Pulaski County Circuit
Court entered an order modifying the custody arrangement of the parties’ minor children,
placing primary custody in appellee, Keith Emis, and providing appellant, Robin Emis, with
visitation. Robin appeals the trial court’s decision, challenging the trial court’s finding that
a material change of circumstances existed to support modification. She also challenges the
trial court’s award of attorney’s fees to the attorney ad litem and opposing counsel; its denial
of her motion for recusal without benefit of a hearing; its decision to strike an affidavit in
support of the motion for recusal without a hearing and while the motion to recuse was still
pending; and its order denying her request to vacate the appointment of the attorney ad litem
without a hearing. We affirm.
Cite as 2016 Ark. App. 369
Before we can reach the merits of Robin’s appeal, there are several procedural matters
that must be addressed. Our first procedural matter pertains to whether we are vested with
jurisdiction to entertain the appeal of the court’s custody determination. To fully understand
this procedural issue, we must review the history of the actions of the parties and the court
below.
Robin and Keith divorced in September 2011. Robin was awarded full legal and
physical custody of their two minor children—twenty-two-month-old twins—with Keith
being awarded visitation.
In September 2014, Robin and Keith agreed to change the custody-and-visitation
arrangement.1 They caused an order to be entered specifying that the parties would have
“joint physical custody of the minor(s), with legal custody vested in [Robin].” The legal
effect of this language is at the crux of the pending litigation.
Approximately four months later, in January 2015, Robin filed a motion to modify the
decree and to relocate to Florida with the children.2 Keith responded, requesting a change
of custody and to prevent Robin’s relocation to Florida with the children.
The trial court received evidence concerning Robin’s motion to modify and relocate,
along with Keith’s competing motion for a change of custody, during a three-day hearing
beginning August 11, 2015. The court did not rule from the bench. Instead, at the request
of Robin’s counsel, the trial court on August 14, 2015, entered “Findings of Fact and
1
The order modifying support, custody, and visitation was, by agreement of the
parties, entered nunc pro tunc to May 1, 2012.
2
The motion also sought a finding of contempt and to compel payment, but those
matters are not at issue in this appeal.
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Cite as 2016 Ark. App. 369
Conclusions of Law” denying Robin’s motions, including her request to relocate, and
granting Keith’s motion for change of custody, thereby awarding custody of the children to
Keith subject to visitation by Robin. However, the court specifically directed in paragraph
30,
While this document is also an Order of the Court, [Keith] shall draft the Final Order
consistent with these findings and conclusions, approved as to form by [Robin] and
Attorney Ad Litem, and submit to the court within 11 days.
On August 27, 2015, the trial court entered a formal order denying Robin’s motions
and granting Keith’s request for a change in custody. The August 27 order acknowledged the
August 14 “Findings of Fact and Conclusions of Law,” incorporated it by reference, and
expounded on the issues of child support and visitation. The order then stated,
This order supersedes and replaces all previously entered orders of custody and/or
support entered in this matter.
On September 9, 2015, Robin filed her first notice of appeal. She designated the
“Findings of Fact and Conclusions of Law Order” entered on August 14, 2015, as the order being
appealed. (Emphasis in original.) Robin made no mention of the August 27 order in the
September 9 notice of appeal.
Robin amended her notice of appeal on November 17, 2015—more than thirty days
from the custody award. In her amended notice, she indicated that the initial September 9
notice of appeal was from the “Order entered following Findings of Fact and Conclusions of Law
entered . . . on August 14, 2015, as well as the Findings of Fact itself.” (Emphasis in original.)
The notice then proceeded to designate certain orders deciding posttrial motions, including
the October 27 and November 13, 2015 orders denying her request for recusal; the
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Cite as 2016 Ark. App. 369
November 2 order striking the affidavit; and the October 21 order granting attorney’s fees to
the attorney ad litem.
Robin filed a second amended notice of appeal on December 18, 2015. That notice
designated all orders identified in the previous notices of appeal and other posttrial orders,
including the November 19 order granting attorney’s fees to opposing counsel.
The question for our consideration is whether Robin’s notices of appeal are sufficient
to vest our court with jurisdiction to consider the trial court’s custody determination. More
specifically, was her failure to designate the August 27, 2015 custody order in her initial notice
of appeal fatal? For the following reasons, we find that Robin’s failure to properly designate
the August 27 final order awarding custody to Keith divests this court of jurisdiction to decide
her first two issues on appeal relating to the custody hearing or the trial court’s custody
determination.
In reaching this conclusion, we have considered the finality of the orders entered by
the trial court as pertaining to custody. Our rules of procedure provide that only final orders
of custody are appealable orders. Ark. R. App. P.–Civ. 2(d) (emphasis added). We have held
that whether a custody order is final or temporary is not dependent on the style of the order.
Rather both this court and our supreme court have consistently held that custody orders
styled as temporary may be nonetheless final for purposes of appeal if the issue of custody was
decided on the merits and the parties have completed their proof. See Gilbert v. Moore, 364
Ark. 127, 129, 216 S.W.3d 583, 584–85 (2005); Sandlin v. Sandlin, 290 Ark. 366, 719 S.W.2d
433 (1986); Chancellor v. Chancellor, 282 Ark. 227, 667 S.W.2d 950 (1984); Jones v. Jones, 41
Ark. App. 146, 852 S.W.2d 325 (1993).
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Cite as 2016 Ark. App. 369
Here, the trial court issued two rulings pertaining to the award of custody of the
children to Keith: one designated as “Findings of Fact and Conclusions of Law,” and the
other is the August 27 order. Is the document entitled “Findings of Fact and Conclusions of
Law” a final order? The document states that it is an order of the court and awards custody
of the children to Keith. However, the order specifically directs Keith’s counsel to draft the
“Final Order,” which was entered on August 27. Therefore, the custody award in the
“Findings of Fact and Conclusions of Law” was, at the most, temporary until the entry of the
August 27 “Final Order,” and at the least, was something akin to a letter opinion, which we
have previously stated is not a final order for purposes of appeal. Wilkinson v. Smith, 2012
Ark. App. 604, at 3 (“The decisions, opinions, and findings of a court—including those
expressed in a letter opinion—do not constitute a judgment or decree; they merely form the
bases upon which the judgment or decree is subsequently to be rendered and are not
conclusive unless incorporated in a judgment.”). In either case, the document entitled
“Findings of Fact and Conclusions of Law” is not an appealable order.
However, even if the August 14 order could somehow be construed as an appealable
award of custody, it was superseded by the August 27 order. The August 27 order specifically
provides that it supersedes all previous orders of custody, which would include the “Findings
of Fact and Conclusions of Law.” Therefore, the issues regarding the validity of the August
14 order were rendered moot by the subsequent custody order. Moreover, the August 27
order was not properly appealed. Robin failed to designate the August 27 order in her initial
notice of appeal filed on September 9. She did file an amended notice stating that the initial
September 9 notice was from the “Order entered following Findings of Fact and Conclusions
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Cite as 2016 Ark. App. 369
of Law.” However, this language is contrary to the language contained in the September 9
notice, and the amended notice was filed more than thirty days from the custody award.
We now turn to those issues discussed in Robin’s third point on appeal: recusal,
attorney’s fees, evidentiary rulings, and the failure to vacate the ad litem appointment. Those
issues also suffer from procedural difficulties. Robin sought to have the trial court recuse.
However, the motion to recuse was filed after the final order had been entered. The motion
only sought the trial court’s recusal; Robin never requested a new trial or to have the custody
award set aside on the basis of judicial bias or appearance of impropriety. On appeal, Robin
spends the majority of her argument on the recusal issue. She goes into great detail regarding
how the judge’s alleged bias and impropriety affected, or could have affected, his decision on
the merits and the evidentiary matters leading up to his custody determination. However, as
noted above, she has failed to properly appeal the custody determination. And, because she
never requested that the custody award be vacated or set aside due to bias, any discussion of
recusal would have no effect on the custody determination and would amount to an advisory
opinion.3 It is well settled that this court does not render advisory opinions or answer
academic questions. Wilson v. Pulaski Ass’n of Classroom Teachers, 330 Ark. 298, 954 S.W.2d
221 (1997).
Finally, Robin devotes one paragraph to her remaining issues on appeal: the award of
attorney’s fees to opposing counsel and the ad litem; the order striking her affidavit in support
of the recusal motion; and the order denying her request to vacate the ad litem appointment.
3
“An advisory opinion is . . . an interpretation of the law without binding effect.”
Hartness v. Nuckles, 2015 Ark. 444, at 13, 475 S.W.3d 558, 567 (Hart, J., dissenting)(quoting
Black’s Law Dictionary 35–36 (6th ed. 1990)).
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Cite as 2016 Ark. App. 369
She cites no facts or authority to support her arguments; in fact, she makes no independent
argument in her brief whatsoever other than to incorporate her trial motions and briefs by
reference. That is not proper. Our supreme court has specifically stated that allowing counsel
to incorporate trial arguments by reference would eviscerate our rules regarding briefing
length and would render meaningless our holdings that we do not address arguments that are
not sufficiently argued or briefed to this court. See Ligon v. Stilley, 2010 Ark. 418, at 20, 371
S.W.3d 615, 632. As a result, we cannot reach these issues on appeal.
For the foregoing reasons, we affirm.
KINARD and HIXSON, JJ., agree.
Law Office of Kathryn L. Hudson, by: Kathryn L. Hudson; and Pinnacle Law Firm, PLLC,
by: Matthew D. Campbell, for appellant.
Ballard & Ballard, P.A., by: Andrew D. Ballard, for appellee.
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