Carruth v. Carruth

BILL H. WALMSLEY, Judge.

|, Appellant James David Carruth appeals from the Union County Circuit Court’s order denying relief with respect to his child-support obligation. Appellant’s primary argument on appeal is that the trial court erred in denying his motion to modify child support. We dismiss the appeal.

Although neither party raised the issue of jurisdiction, this court’s subject-matter jurisdiction is one that we are obligated to raise on our own motion. Seay v. C.A.R. Transp. Brokerage Co., Inc., 366 Ark. 527, 237 S.W.3d 48 (2006). The failure to file a timely notice of appeal deprives this court of jurisdiction. See, e.g., Harold Ives Trucking Co. v. Pro Transp., Inc., 341 Ark. 735, 19 S.W.3d 600 (2000). Arkansas Rule of Appellate Procedure— Civ. 4(a) provides that a notice of appeal generally must be filed within thirty days from the entry of the judgment, decree, or order from which an appeal is taken. If a party files any type of motion to vacate, alter, or amend the judgment within ten days after entry of the judgment, |2the time for filing the notice of appeal is extended to thirty days after the entry of the order disposing of the last motion outstanding. Ark. RApp. P. — Civ. 4(b)(1). If the circuit court neither grants nor denies such motion within thirty days of its filing, the motion shall be deemed denied by operation of law as of the thirtieth day, and the notice of appeal must be filed within thirty days from that date. Ark. RApp. P. — Civ. 4(b)(1).

Following the parties’ divorce proceedings on August 12 and 18, 2009, the trial court issued a letter opinion on October 7, 2009, in which the trial court, among other things, set child support. On November 6, 2009, appellant filed “Defendant’s Motion for Reconsideration of Alimony Arrearage and for Reconsideration or Modification of Child Support.” The divorce decree was subsequently entered on November 24, 2009. The trial court held a hearing on appellant’s motion on May 4, 2010, and entered an order denying the motion on July 8, 2011, concluding that the “calculation of [child support set forth in the divorce decree] will therefore stand.” Appellant filed a timely notice of appeal from the July 8, 2011 order.

Appellant filed no notice of appeal from the divorce decree, which memorialized the amount of child support ordered. Although appellant’s subsequent motion purported to be one “for reconsideration or modification of child support,” the substance of appellant’s motion indicates that it was solely a motion to reconsider the child-support award from the divorce decree, and not a motion to modify based on changed circumstances, given that appellant’s motion was filed before the decree was entered.¹ A change of circumstances must be shown Rbefore a court can modify an order for child support, and the party seeking modification has the burden of showing a change in circumstances. Evans v. Tillery, 361 Ark. 63, 204 S.W.3d 547 (2005). Appellant alleged no change in circumstances in the motion. He argued that the trial court had used incorrect or outdated figures in initially setting child support and had failed to examine all the exhibits. Thus, appellant’s petition was a motion to reconsider the award set forth in the divorce decree.

When appellant’s motion for reconsideration was not ruled on in a timely manner, it was deemed denied pursuant to Rule 4(b)(1), as well as Ark. R. Civ. P. 52(b).² As with the divorce decree, appellant filed no notice of appeal from the deemed denial of his motion for reconsideration.

By the time of the hearing in May 2010, the trial court had lost jurisdiction to consider appellant’s motion to reconsider because it had long since been deemed denied by operation of law.³ The July 8, 2011 order was consequently void and of no effect, leaving this court with nothing to review on appeal. See Eubanks v. Eu-banks, 2009 Ark. App. 844, 2009 WL 1152979. We therefore dismiss the appeal.

^Dismissed.

WYNNE, HIXSON, and BROWN, JJ., agree. GLADWIN, C.J., and GLOVER, J„ dissent.

1 . See Martin v. Pierce, 370 Ark. 53, 257 S.W.3d 82 (2007) (pleadings should be construed to give effect to the substance rather than the form).

2 . Rule 52(b) provides that, upon motion of a party made not later than ten days after entry of judgment, the court may amend its findings of fact previously made or make additional findings and may amend the judgment accordingly. A motion made before entry of the judgment shall become effective and be treated as filed on the day after the judgment is entered. If the court neither grants nor de-mes the motion within thirty days of filing, it shall be deemed denied as of the thirtieth day.

3 . To the extent the trial court attempted to modify the divorce decree, Arkansas Rule of Civil Procedure 60(a) provides that the court may modify a decree on motion of the court or any party, with prior notice to all parties, within ninety days of its having been filed with the clerk. More than ninety days had passed since the divorce decree was entered in November 2009 and when the court heard and ruled on appellant’s petition.