O'Donoghue v. O'Donoghue

Cite as 2016 Ark. App. 29
ARKANSAS COURT OF APPEALS
DIVISION IV
No. CV-15-506
Opinion Delivered January 20, 2016
ANDREA O’DONOGHUE
APPELLANT APPEAL FROM THE PULASKI
COUNTY CIRCUIT COURT,
V. SIXTEENTH DIVISION
[NO. 60DR-12-2066]
BRIAN PATRICK ALOYSIUS
O’DONOGHUE HONORABLE MORGAN E. WELCH,
APPELLEE JUDGE
APPEAL DISMISSED
M. MICHAEL KINARD, Judge
Appellant Andrea O’Donoghue appeals from an order of the trial court interpreting
the parties’ German divorce decree. Andrea argues that the trial court erred in its findings
regarding the division of retirement benefits. Because we lack a timely notice of appeal, we
must dismiss the appeal.
The parties were married in 1998. In 2006, Brian was in the United States Air Force,
and the parties lived in Germany. Andrea was granted separate maintenance by a judgment
of the County Court of Bitburg in Germany on August 11, 2006. Andrea appealed to the
Circuit Court of Appeals–Koblenz, which entered a judgment partially altering and revising
the Bitburg order on March 14, 2007. On February 28, 2008, an order was entered by the
County Court of Bitburg divorcing the parties and making certain findings regarding
retirement benefits and postmarital support. In 2013, the Koblenz and second Bitburg
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judgments were confirmed and registered in the state of Arkansas.
On April 8, 2013, Andrea filed a motion for contempt in the Pulaski County Circuit
Court, alleging that Brian had paid only a fraction of the money awarded to her in the
divorce. After a hearing, the trial court entered an order finding that Brian owed $63,629.54.
The order also stated that the “court reserves judgment on whether the German Courts
awarded [Andrea] a portion of [Brian’s] retirement.”
On July 29, 2014, the court held a hearing on the subject of Brian’s Air Force
retirement benefits. The parties disputed whether the final Bitburg judgment awarded
Andrea a portion of Brian’s retirement benefits totaling 2000 euros or whether Andrea’s share
of the retirement benefits had not yet been determined and the 2000 euros represented only
a fee. The trial court stated that it was making a qualified finding that, while an award of
2000 euros seemed too low, the benefits had been divided, and the issue was barred by res
judicata as argued by Brian. The court said that it would stay the ruling and grant Andrea
sixty days to seek clarification from the German court to determine if there was a
misunderstanding or ambiguity. An interim order was entered on August 12, 2014, finding
that the German decree was not ambiguous and that Andrea was awarded 2000 euros for her
share of the retirement benefits. The order also stated the following:
2. Plaintiff is given 60 days from the date of this order to consult with German
counsel and to obtain a clarification from the German court regarding this issue.
3. After 60 days this order shall become final.
On October 8, 2014, Andrea filed a motion for reconsideration of the interim order.
She attached two letters from the presiding judge of the County Court of Bitburg, stating
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that the Bitburg order did not order compensation for retirement benefits but instead
reserved the issue for future determination because the court could not make decisions
concerning foreign retirement plans. The letters stated that the 2000 euros amount only
served as a basis for the computation of costs and fees. Andrea requested that the trial court
rescind the interim order and determine her entitlement to Brian’s retirement benefits. Brian
filed a response. On January 9, 2015, the trial court entered an order denying the motion
for reconsideration. On February 6, 2015, Andrea filed a notice of appeal from the August
12, 2014 and January 9, 2015 orders.
Before reaching the merits of Andrea’s appeal, we must determine whether her notice
of appeal was timely, thereby giving us jurisdiction to hear the appeal. Brian raises this issue
in his brief and contends that the appeal should be dismissed. We agree. The August 12,
2014 interim order stated that Andrea had sixty days to obtain clarification from Germany
and that the order would become final in sixty days, which would have been October 11,
2014. Andrea did not file a notice of appeal within thirty days from either of these dates, but
she did file a motion for reconsideration on October 8, 2014. Under Arkansas Rule of
Appellate Procedure–Civil 4(b)(1), Andrea’s motion for reconsideration was a motion “to
vacate, alter, or amend the judgment made no later than 10 days after entry of judgment.”
Rule 4(b)(1) provides in pertinent part as follows:
Upon timely filing in the circuit court of a motion for judgment notwithstanding the
verdict under Rule 50(b) of the Arkansas Rules of Civil Procedure, a motion to
amend the court’s findings of fact or to make additional findings under Rule 52(b),
a motion for a new trial under Rule 59(a), or any other motion to vacate, alter, or
amend the judgment made no later than 10 days after entry of judgment, the time for
filing a notice of appeal shall be extended for all parties.
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Pursuant to the rules cited therein, a motion made before entry of judgment shall become
effective and be treated as filed on the day after the judgment is entered. Ark. R. Civ. P.
50(b)(2); Ark. R. Civ. P. 52(b)(1); Ark. R. Civ. P. 59(b). Thus, Andrea’s motion is treated
as filed on October 12, 2014, the day after the interim order became final on October 11,
2014. Rule 4(b)(1) further provides that
[t]he notice of appeal shall be filed within thirty (30) days from entry of the order
disposing of the last motion outstanding. However, if the circuit court neither grants
nor denies the motion within thirty (30) days of its filing, the motion shall be deemed
denied by operation of law as of the thirtieth day, and the notice of appeal shall be
filed within thirty (30) days from that date.
Andrea’s motion was neither granted nor denied within thirty days of October 12, 2014.
Therefore, the motion was deemed denied as of the thirtieth day, November 11, 2014.
Andrea had thirty days from this date to file a notice of appeal, but she did not file a notice
of appeal until February 6, 2015. By the time the motion for reconsideration was denied on
January 9, 2015, the trial court had lost jurisdiction to act on the motion. See Allen v. Allen,
2013 Ark. App. 292.
Andrea contends that because she submitted clarification from Germany to the trial
court within sixty days of the interim order, the order did not become final and was subject
to revision at any time. Contrary to Andrea’s arguments, however, the interim order stated
that it would become final after sixty days; it did not state that this was contingent on Andrea
presenting a clarification. By delaying the finality of the order for sixty days, the court gave
Andrea time to obtain clarification from Germany and to file a timely posttrial motion within
ten days after the entry of judgment. Because Andrea failed to file a notice of appeal within
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thirty days of the date her motion was deemed denied, this court is without jurisdiction to
decide her appeal. Allen, supra. Accordingly, we dismiss the appeal.
Appeal dismissed.
VIRDEN and GLOVER, JJ., agree.
McDaniel, Richardson & Calhoun PLLC, by: Scott P. Richardson, for appellant.
Worsham Law Firm, P.A., by: Brooke F. Steen, for appellee.
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