Nix v. Nix
The Arkansas Court of Appeals recently handed down its decision in Nix v. Nix, 2014 Ark. App. 162. Nix was a divorce case in which the husband appealed, arguing that the trial court had erred: (1) in finding that a car was his wife’s nonmarital property; and (2) in failing to equitably divide his pension payments. The Arkansas Court of Appeals was not able to reach the merits of the husband’s arguments, however, because of a finality problem with the order.
In Nix, the Arkansas Court of Appeals found two paragraphs in the divorce decree to be problematic. The first problematic paragraph stated as follows:
The Court further finds that the parties owned certain real estate which constitutes the marital home. This property should be listed for sale immediately with an agreed upon realtor and listing price. The parties shall be equally responsible for the major repairs pending a sale however Ms. Nix will be responsible for any ordinary wear and tear and utilities. . . .
The second problematic paragraph stated as follows:
The Court finds that all of the property including but not limited to the Montana Fifth Wheel, the 2012 Arctic Cat, Ranger Boat motor and trailer all of which are on Schedule C are marital property. The parties shall have thirty days to reach an agreement regarding the division of marital personal property listed in Schedule C, otherwise the property shall be sold at private auction.
In holding that the divorce decree was not a final order, the Arkansas Court of Appeals held that “[s]everal matters have been left undecided between the parties.” In particular, the Court of Appeals highlighted the following unresolved questions:
- whether the husband and wife will agree on a realtor and listing price;
- whether the husband and wife will agree on what constitutes a major repair and what constitutes ordinary wear and tear;
- whether the husband and wife will reach an agreement regarding the remaining personal property; and
- whether the husband and wife will agree on a date, place, and terms of sale for a private auction.
In reaching its conclusion that the divorce decree in Nix was not a final order, the Court of Appeals relied on Wadley v. Wadley, 2010 Ark. App. 733. In Wadley, the divorce decree had provided as follows:
Unless otherwise specified herein, the parties shall have sixty (60) days from entry of this DECREE OF DIVORCE to agree upon a disposition of the remaining items of marital property. Any property division not agreed upon within the sixty (60) days shall be sold by public auction, with the parties responsible for hiring an auctioneer and advertising said sale. Any and all proceeds from the sale of the property, after the costs of the auctioneer and advertising shall be equally divided between the parties.
As in Nix, the court in Wadley had determined that there were simply too many unresolved questions left open by the order. Therefore, the Court of Appeals had held that the order in Wadley was not a final order.
There have been a number of cases lately dealing with finality, and although lack of a final order means that there is still the opportunity to appeal (once the final order is entered), there are still significant costs involved in having to rebrief a case. Therefore, the best option when attempting to pursue an appeal is to try to make certain that the trial court enters a final order.