Bruchhagen v. Acord

Cite as 2015 Ark. App. 286
ARKANSAS COURT OF APPEALS
DIVISION III
No. CV-14-421
OPINION DELIVERED MAY 6, 2015
JOHN J. BRUCHHAGEN APPEAL FROM THE PULASKI
APPELLANT COUNTY CIRCUIT COURT, SIXTH
DIVISION
[NO. 60DR-2010-4717]
V.
HONORABLE TIMOTHY DAVIS
FOX, JUDGE
FELICIA WHEAT ACORD
APPELLEE APPEAL DISMISSED
ROBERT J. GLADWIN, Chief Judge
Appellant John J. Bruchhagen attempts to appeal a January 23, 2014 order filed by the
Pulaski County Circuit Court in favor of appellee Felicia Wheat Acord. Appellant argues that
the circuit court erred by denying his motion for sanctions against appellee’s attorney when
appellee had no chance of success and that the circuit court abused its discretion when it
awarded appellee’s counsel attorney’s fees despite having found that appellant was not in
contempt of court. Because this court lacks jurisdiction to hear the appeal pursuant to
Arkansas Rule of Appellate Procedure–Civil (3)(e)(ii) (2013), we dismiss.
The parties were divorced on March 24, 2008. On May 1, 2013, a hearing was held
on a contempt action filed by appellee, and the order resulting from that hearing was entered
by the circuit court on June 19, 2013. The circuit court found appellant in contempt of court
and awarded appellee an attorney’s fee for the contemptuous actions of appellant.
Cite as 2015 Ark. App. 286
Additionally, the circuit court ordered appellant to submit to extensive, monthly hair-follicle
tests and imposed certain requirements with respect to said drug testing. The circuit court
also imposed on appellant an affirmative obligation to ensure that appellee could
independently verify that his drug testing conformed with the court-ordered requirements.
The circuit court granted both parties reasonable telephone visitation and precluded either
party from hindering and/or interfering with the other party’s telephone visitation with the
minor child.
Appellant began engaging in conduct that appellee believed was in violation of the
June 19, 2013 order; specifically, appellee was unable to verify the drug-test results that
appellant was submitting to her. This issue, in conjunction with the fact that appellant had
been submitting results from various other laboratories, caused appellee to believe that
appellant was using illegal substances but submitting test results from various laboratories that
could not be verified in order to avoid being held in contempt of court and having his
visitation privileges suspended. Appellant also allegedly hindered and/or interfered with
appellee’s telephone visitation with the minor child while appellant was exercising his
summer visitation with the child.
Appellee filed a motion for contempt on August 26, 2013. Appellant filed his response
on August 29, 2013. The circuit court entered an order to appear and show cause for
appellant on August 30, 2013.
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Cite as 2015 Ark. App. 286
On September 16, 2013, appellant filed a motion to reconsider the June 19, 2013
order. On October 10, 2013, the circuit court filed an order denying appellant’s motion, and
no notice of appeal was timely filed as to this order.
Appellant filed a motion for Rule 11 sanctions on October 4, 2013, and appellee filed
her response on October 15, 2013. A hearing on the motion was held on November 8, 2013,
and it resulted in the January 23, 2014 order, from which this appeal is attempted. The circuit
court found that appellant’s actions had not quite warranted a finding of contempt, although
the circuit court did find that the actions appellant was engaging in were “contemptuous
indeed.” Based on appellant’s actions and the perception by the circuit court that appellant
was continuing to do whatever he wanted to do, the circuit court denied appellant’s motion
for Rule 11 sanctions and awarded appellee a $2,500 attorney’s fee.
A notice of appeal was timely filed on February 18, 2014, but the language of the
notice of appeal does not fairly and accurately inform us of the order being appealed from
as required by Rule 3(e)(ii). Appellant’s notice of appeal attempts to appeal from the
judgment entered against them in the Pulaski County Circuit Court regarding Case
No.: 60DR-2010-4717. Appellant designates the record from the Order entered June
19, 2013 and all proceedings, exhibits, evidence and testimony entered thereafter.
Based on our review of the record, no timely notice of appeal was filed from the June
19, 2013 order, or the October 10, 2013 order denying appellant’s petition to modify the June
19, 2013 order. Although it appears that appellant is attempting to appeal from the January 23,
2014 order—in which case the notice of appeal would be timely filed—there is no designation
or reference to the January 23, 2014 order whatsoever.
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Cite as 2015 Ark. App. 286
We acknowledge that under Arkansas Rule of Appellate Procedure–Civil 3(e) (2015)
absolute strict compliance is not always necessary; but, Arkansas appellate courts do require
substantial compliance. Recently, in Smith v. Freeman, 2014 Ark. App. 569, this court
dismissed an appeal for lack of substantial compliance with Rule 3(e), holding,
Normally, where an appellant attempts to designate the order and simply misidentifies
the order by date, our courts will find substantial compliance. Callaway v. Abshure,
2013 Ark. App. 21. The present situation, however, does not involve accidental
inaccuracy. Appellant made no attempt to designate the order appealed. He merely
requested “the case cited above be appealed.” Such an omission forecloses the
possibility of substantial compliance with Rule 3(e). Id. These deficiencies in
appellant’s notices of appeal prevent us from establishing whether appellant’s appeal
is timely and, accordingly, whether we have jurisdiction. A notice of appeal must be
filed within 30 days from the order appealed from. Ark. R. App. P.-Civ. 4(a). The
timely filing of a notice of appeal is a jurisdictional requirement. Stacks v. Marks, 354
Ark. 594, 127 S.W.3d 483 (2003).
Id. at 3.
Here, appellant’s notice of appeal likewise fails to substantially comply with Rule
3(e)(ii) in that it attempts to cover anything and everything occurring in this case from the
June 19, 2013 order and thereafter without any specification to any other order—and makes
no reference to the only order from which it was timely filed, the January 23, 2014 order.
Accordingly, because appellant’s notice of appeal failed to substantially comply with Arkansas
Rule of Appellate Procedure–Civil 3(e)(ii), we dismiss the appeal.
Appeal dismissed.
ABRAMSON and HARRISON , JJ., agree.
The Henry Law Firm, P.A., by: Matthew Henry, for appellant.
Lightle, Raney, Streit & Streit, LLP, by: Jonathan R. Streit, for appellee.
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