Lester v. Lester

John B. Robbins, Judge.

Appellant Martha Lester Colby and appellee Dwight R Lester were divorced in Arkansas by decree entered in the Columbia County Chancery Court on October 17, 1991. The decree awarded Ms. Colby custody of the parties’ minor child, Kimberly Ann Lester, subject to Mr. Lester’s specified visitation rights. Shortly before the decree was entered, Ms. Colby moved with Kimberly to Shreveport, Louisiana and has lived there ever since. On August 23, 1993, Mr. Lester filed a petition to change custody in the Columbia County Chancery Court. On the basis of affidavits which accompanied the petition, the court immediately entered an ex parte order granting a temporary change of custody. Mr. Lester then removed Kimberly from Shreveport without Ms. Colby’s knowledge and brought her to his home in Magnolia, Arkansas. On September 7, 1993, Ms. Colby filed a motion to set aside the ex parte order, arguing that the Columbia County Chancery Court lacked jurisdiction. The court denied the motion, stating that the Columbia County Chancery Court had original jurisdiction in the divorce action and retained jurisdiction to make orders pertaining to the best interest of the child. Ms. Colby now appeals, arguing that the Columbia County Chancery Court lacked jurisdiction. Alternatively, she argues that even if the court had jurisdiction, the chancellor’s failure to decline jurisdiction due to an inconvenient forum was clearly against the preponderance of the evidence. Finally, Ms. Colby argues that proper notice of the custody action was not provided in accordance with the Uniform Child Custody Jurisdiction Act.

Although Mr. Lester has not raised the issue, we cannot review this case on appeal because the order appealed from, the denial of appellant’s motion to set aside the ex parte order for lack of jurisdiction, is not an appealable order. It is not a final decree within the meaning of Ark. R. App. R 2(a)(1). In order to be final for purposes of appeal, a decree must in some way determine or discontinue the action and put the chancellor’s directive into immediate execution, ending the litigation or at least a separable portion of it. Harper v. Harper, 21 Ark. App. 255, 731 S.W.2d 241 (1987). Nor does this order fit within any of the other provisions of Ark. R. App. R 2(a). While the trial court’s jurisdiction of the subject matter is essential to an action, a ruling by the trial court that it has proper jurisdiction, even if erroneous, does not render such order appealable. Signa Ins. Co. v. Brisson, 294 Ark. 504, 744 S.W.2d 716 (1988). Because a final order is a jurisdictional requisite the appellate court should raise the issue on its own motion. Id. And see Mueller v. Killam, 295 Ark. 270, 748 S.W.2d 141 (1988). Although some might characterize jurisdiction as only a technicality, without it we are powerless to act.

The temporary custody order which Ms. Colby sought to set aside was entered ex parte on the basis of affidavits submitted by Mr. Lester. An ex parte custody order, without notice, requires prompt notice and an opportunity for the absent party to present proof. Before a final custody determination is made, an opportunity to be heard must be given to the contestants, Ark. Code Ann. § 9-13-204 (Repl. 1993), and the matter must be given priority and handled expeditiously. Ark. Code Ann. § 9-13-224 (Repl. 1993). Ms. Colby has an absolute right to be heard on the merits of this custody dispute and, as far as we can determine from the record, she has not presented any proof on that issue. This appeal is dismissed without prejudice to Ms. Colby’s right to obtain review after a final order has been entered and filed.

Appeal dismissed.

Pittman and Rogers, JJ., concur. Mayfield, J., dissents.