Morse v. Austin , 2017 Ark. App. LEXIS 270 ( 2017 )

Cite as 2017 Ark. App. 257
ARKANSAS COURT OF APPEALS
DIVISION III
No. CV-16-958
Opinion Delivered April 26, 2017
ALEXANDER MORSE
APPELLANT APPEAL FROM THE MARION
COUNTY CIRCUIT COURT
V. [NO. 45PR-16-27]
HALEY AUSTIN AND MINOR CHILD HONORABLE DEANNA SUE
LAYTON, JUDGE
APPELLEES
DISMISSED WITHOUT PREJUDICE
N. MARK KLAPPENBACH, Judge
Appellant Alexander Morse appeals an order filed in July 2016 by the Marion County
Circuit Court that denied his motion to dismiss appellee Haley Austin’s petition to adopt his
daughter EAM. We dismiss the appeal for lack of finality.
Appellant and appellee are the unmarried biological parents of EAM, who was born
in April 2014. In March 2016, appellee filed a petition in Marion County, seeking to adopt
EAM without appellant’s consent. Appellee alleged that appellant had not had any contact
with EAM since 2014 and had made only two payments of child support in 2015. In April
2016, appellant filed a motion to dismiss the adoption petition, contending that her petition
did not comply with statutory mandates, that appellee was presently unable to meet the
requirements to obtain an adoption, that appellant had filed a separate petition in Conway
County to register a judgment issued by a North Carolina court that established his paternity
and gave him visitation rights, and that the Conway County case should proceed and the
Cite as 2017 Ark. App. 257
adoption case should be dismissed for failure to state facts on which relief could be granted.
Appellee filed a response in resistance to the motion to dismiss, asserting that Arkansas
statutory law and caselaw permits a natural parent to adopt her own child; that she had
substantially complied with presenting all the information required to be in an adoption
petition; that she and the child were residents of Marion County; and that appellant’s separate
cause of action had not yet been served on her.
In July 2016, the trial court entered an order that denied appellant’s motion to dismiss
the petition for adoption, finding venue and jurisdiction to be proper in Marion County. The
order recited that the adoption petition stated facts upon which relief could be granted and
that the allegations of misstatements of material facts and of misapplication of the law were
not proper bases to dismiss the petition but were proper for a hearing. Appellant filed a timely
notice of appeal from the order denying dismissal.
Rule 2(a)(1) (2016) of the Arkansas Rules of Appellate Procedure–Civil provides that
an appeal may be taken only from a final judgment or decree entered by the circuit court. The
requirement of a final judgment is the cornerstone of appellate jurisdiction, and the appellate
court reviews only final orders. Bayird v. Floyd, 2009 Ark. 455, 344 S.W.3d 80. For an order
to be final and appealable, it must dismiss the parties from the court, discharge them from the
action, or conclude their rights to the subject matter in controversy. Id. Stated another way,
for an order to be final and appealable, the order must put the judge’s directive into
execution, ending the litigation or a separable branch of it. City of Corning v. Cochran, 350
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Cite as 2017 Ark. App. 257
Ark. 12, 84 S.W.3d 439 (2002). By contrast, an order that contemplates further action by a
party or the court is not a final, appealable order. Blackman v. Glidewell, 2011 Ark. 23. Even
though the issue decided might be an important one, an appeal will be premature if the
decision does not, from a practical standpoint, conclude the merits of the case. Robinson v.
Villines, 2012 Ark. 211.
More specifically, an appeal may not be taken from an order denying a motion to
dismiss, with certain exceptions not applicable here. See Ark. State Claims Comm’n v. Duit
Constr. Co., 2014 Ark. 432, 445 S.W.3d 496; Searcy Cty. Counsel for Ethical Gov’t v. Hinchey,
2011 Ark. 533; Univ. of Ark. for Med. Scis. v. Adams, 354 Ark. 21, 117 S.W.3d 588 (2003);
Courtney v. Ward, 2012 Ark. App. 148, 391 S.W.3d 686. Appellant attempts to characterize
this order as one emanating from a “probate case,” which would be appealable at this point
under Ark. R. App. P.– Civ. 2(a)(12). This, however, is an adoption case, even if heard in
the probate division of circuit court. According to Arkansas Code Annotated section 9-9-
216(a) (Repl. 2015), “[a]n appeal from any final order or decree rendered under this
subchapter [the Revised Uniform Adoption Act] may be taken in the manner and time
provided for appeal from a judgment in a civil action.” Although Arkansas Rule of Civil
Procedure 54(b) provides a method by which a circuit court may direct that an immediate
appeal be permitted to proceed, where there is no attempt to comply with Rule 54(b), the
order is not final, and we must dismiss the appeal. Harrill & Sutter, PLLC v. Farrar, 2011 Ark.
181; Jacobs v. Collison, 2015 Ark. App. 420.
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Cite as 2017 Ark. App. 257
In summary, the order on appeal contemplates further action by the parties and the trial
court such that there is no final, appealable order before us. Consequently, we must dismiss
the appeal without prejudice. See Chitwood v. Chitwood, 2013 Ark. 195; Ford Motor Co. v.
Washington, 2012 Ark. 325; Crafton, Tull, Sparks & Assocs. v. Ruskin Heights, LLC, 2012 Ark.
56; Patil v. Hoover, 2012 Ark. App. 341.
Dismissed without prejudice.
MURPHY and BROWN , JJ., agree.
Aimie Lockwood, for appellant.
Ethredge & Copeland, P.A., by: Johnnie Abbott Copeland and David L. Ethredge, for
appellees.
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