Arkansas Department of Human Services v. Lopez , 302 Ark. 154 ( 1990 )

Tom Glaze, Justice.

This is an appeal from the probate court’s May 23, 1989 order setting aside the Arkansas Department of Human Services’s guardianship of Cordell Luis Lopez with the power to consent to adoption. In so holding, the probate court found that the Department of Human Services (DHS) failed to give notice of the guardianship hearing to Jose Lopez, the putative father. In this same order, the probate court stated that a hearing would be held on June 28,1989, to decide paternity in regard to Jose Lopez and Carol Lopez. On June 28, the record reflects a hearing on motions made by DHS, including a motion for paternity blood testing to be ordered. The probate court granted the motion stating that “the blood tests may conclude this, resolve this, or do something with it.” The court ordered that it would take up the matter in a proceeding when the blood test results were received. The record is void of any indication of the results of the blood tests or the outcome of a paternity hearing.

Because of the above facts, we must conclude that the probate court’s order is not a decree from which an appeal may be taken under Ark. R. App. P. 2.¹ In pertinent part, Rule 2 provides the following:

(a) An appeal may be taken from a circuit, chancery, or probate court to the Arkansas Supreme Court from:

1. A final judgment or decree entered by the trial court.

2. An order which in effect determines the action and prevents a judgment from which an appeal might be taken, or discontinues the action;

We have repeatedly held that we will not decide the merits of an appeal when the order appealed from is not a final order. See, e.g., Tapp v. Fowler, 288 Ark. 70, 702 S.W.2d 17 (1986). In order for a judgment to be final, it must dismiss the parties from the court, discharge them from the action, or conclude their rights to the subject matter in controversy. See, e.g., Sevenprop Assocs. v. Harrison, 295 Ark. 35, 746 S.W.2d 51 (1988). In addition, whether a final judgment, decree, or order exists is a jurisdictional issue which we have the duty to raise, even if the parties do not, in order to avoid piecemeal litigation. See Mueller v. Killam, 295 Ark. 270, 748 S.W.2d 141 (1988).

Clearly, here the probate court’s May 23, 1989 judgment ordering a paternity hearing on June 28,1989 is not final. As the probate judge admitted, this hearing could resolve the whole case. Because this matter is still pending before the probate court, we must dismiss the appeal.

Hays, J., dissents.

1 In so stating, we note Ark. Code Ann. § 28-1 -116(a) (1987), which allows an appeal from an order of the probate court except those orders set out under provision (b). However, provision (g) clearly states these appeals are determined by the law and rules of appellate review applicable to equity cases.