The 2016 nonpartisan judicial elections held in Arkansas on March 1st have resulted in two new Arkansas Supreme Court Justices, one new Judge on the Arkansas Court of Appeals, and one runoff election for a seat on the Arkansas Court of Appeals.  The following are results with nearly all precincts reporting:

Arkansas Supreme Court

Chief Justice Position 1

Association Justice Position 5

Arkansas Court of Appeals

Associate Judge District 2, Position 2

Associate Judge District 5

The runoff election between James McMenis and Mark Klappenbach for the Associate Judge District 5 position on the Arkansas Court of Appeals will take place during the general election on November 8, 2016.

There were also two uncontested races in the Arkansas Court of Appeals: Judge Rita W. Gruber will remain the Associate Justice for District 6, Position 1; and Judge Waymond Brown will keep his seat as District 7 Associate Judge.

Related Post: 2016 Arkansas Supreme Court & Arkansas Court of Appeals Election Roundup

Posted by: Tasha C. Taylor | February 1, 2016

Timeline of an Arkansas Civil Appeal

Introducing the new Timeline of an Arkansas Civil Appeal infographic, brought to you by Taylor & Taylor Law Firm, P.A.  If you would like to receive a copy of our custom timeline card for your office, just send us an email with your address and request and we’ll mail one out to you for free!  You can email us at Attorney@TaylorLawFirm.com.

TT-AppealsInfographic-Blog

 

Posted by: Tasha C. Taylor | January 20, 2016

In Memory of Chief Justice Hannah

The Arkansas Supreme Court issued a per curiam last week entitled In Memory of Chief Justice James R. Hannah, in which the Court recognized Justice Hannah’s 37 years of service to the Arkansas Judiciary.

I had the privilege and honor of starting my legal career at the Arkansas Supreme Court during the time when Chief Justice Hannah led the Court.  Much has been written about how he was an accomplished jurist, and rightfully so.  But, I was always most impressed by his gentle smile and soft voice with which he seemed to greet everyone he met.  It’s no wonder he was such a remarkable leader who aspired for a system of justice where all people would receive the same level of treatment.

“We have the best judicial system in the world. But if a person cannot walk through those courtroom doors because of their economic status or race, then having the best judicial system means absolutely nothing.” – Chief Justice Jim Hannah, June 2010.

* Hat tip to Amy Dunn Johnson for sharing the above quote and link to the following video where Justice Hannah speaks about access to justice during his first “State of the Judiciary Address” at the 2010 annual meeting of the Arkansas Bar Association.

 

Posted by: Tasha C. Taylor | December 21, 2015

2016 Arkansas Supreme Court & Arkansas Court of Appeals Election Roundup

The party primary and judicial general election will be held in Arkansas this year on March 1, 2016.  The judicial general election includes four contested races for seats on Arkansas’s appellate courts (two in each court).  The races for the open seats on the Arkansas Supreme Court will be elected in a statewide election.  The seats open on the Arkansas Court of Appeals will be elected only by voters in each seat’s district.

Arkansas Supreme Court

In the Arkansas Supreme Court, the contest for the position of Chief Justice (Position 1) resulted from former Chief Justice Hannah’s announcement earlier this year that he would retire early.  Position 5 is open because Justice Danielson decided not to seek re-election for that position.

The candidates for the two contested races on the Arkansas Supreme Court are as listed below along with a link to each candidate’s campaign site.

Chief Justice Position 1

Association Justice Position 5

Arkansas Court of Appeals

In the Court of Appeals, there are two races that are uncontested: Judge Rita W. Gruber will remain the Associate Justice for District 6, Position 1; and Judge Waymond Brown will keep his seat as District 7 Associate Judge.

The two contested races in the Court of Appeals are for District 2, Position 2 (currently occupied by Judge Cliff Hoofman, who was appointed to replace Justice Rhonda Wood when she was elected to the Arkansas Supreme Court) and District 5 (currently occupied by Mike Kinard, who was appointed to replace Justice Robin Wynne after Wynne was elected to the Arkansas Supreme Court).

The candidates for the two contested positions on the Arkansas Court of Appeals are listed below each position in the list that follows (along with a link to each candidate’s campaign site).

Associate Judge District 2, Position 2

Associate Judge District 5

Judge Mike Murphy

Judge Mike Murphy

Faulkner County Circuit Court Judge Mike Murphy announced this morning his plan to run for District 2, Position 2 of the Arkansas Court of Appeals on the March 1, 2016 election.  Judge Murphy was elected to serve as the 1st Division of the Faulkner County Circuit Court in May of 2014.  Prior to taking office for his elected position in January of 2015, Judge Murphy was appointed by Governor Mike Beebe to fill the vacancy left in the 2nd Division of the Faulkner County Circuit Court when the Arkansas Supreme Court removed Judge Mike Maggio from the bench last year.  After completing Maggio’s term through December 31, 2014, Judge Murphy took office in his elected (and current) position as 1st Division Circuit Court Judge in Faulkner County.  His term in that position expires on December 31, 2020.

The Court of Appeals position that Judge Murphy is seeking is currently occupied by Governor Beebe appointee Cliff Hoofman.  Judge Hoofman was appointed to that seat when Rhonda Wood was elected to the Arkansas Supreme Court and may not seek re-election to that position.

The press release issued this morning by Judge Mike Murphy follows:

(Conway, Arkansas) — Circuit Judge Mike Murphy of Conway has announced his candidacy for the Arkansas Court of Appeals, District 2, Position 2 in the March 1, 2016 nonpartisan judicial elections.

Murphy currently serves as the 1st Division circuit judge for the 20th Judicial District (Faulkner, Searcy and Van Buren counties).

“I’m grateful for the opportunity to serve our citizens as one of their trial judges.  It is an honor to seek this position on the appellate court bench.  If elected, I pledge to work hard and uphold our laws with fairness, honesty and integrity.”

A Faulkner County native, Murphy opened a private law practice in 1988 and worked as a deputy prosecutor.  Elected as Conway’s city attorney in 1990, he served for over 22 years before being elected circuit judge.  Murphy attended UCA and the University of Arkansas, receiving his law degree from the School of Law in Fayetteville in 1986.  He also served as law clerk for the United States Magistrate Judge in Springfield, Missouri.

Murphy was an adjunct instructor at UCA; member of the Arkansas Bar Association House of Delegates; a past-president of the Arkansas City Attorneys Association and former member of the Little Rock Air Force Base Community Council.  He is a member of the Arkansas Judicial Council, the Arkansas and Faulkner County Bar Associations and serves on the boards of the Conway Public Schools Foundation and the Faulkner County Museum Commission.

Murphy is the father of three teenagers and member of Conway’s First United Methodist Church.

District 2 of the Court of Appeals is comprised of 18 counties, including Baxter, Boone, Cleburne, Conway, Faulkner, Fulton, Independence, Izard, Jackson, Lawrence, Marion, Newton, Pope, Randolph, Searcy, Sharp, Stone, and Van Buren.

Arkansas Supreme Court Chief Justice Jim Hannah

Arkansas Supreme Court Chief Justice Jim Hannah

Earlier this month, Chief Justice Jim Hannah announced his plans to retire early from his position on the Arkansas Supreme Court due to health issues.  Justice Hannah was first elected as an Associate Justice on the Arkansas Supreme Court in 2000 and later was elected to the Chief Justice position in 2004.

The following is Chief Justice Hannah’s Resignation Statement:

The people of Arkansas elected me to our state’s highest court in year 2000. I will be forever grateful. It is with great pride and pleasure that I have served on the Arkansas Supreme Court for over fourteen years, the last ten in the role of Chief Justice. In recent weeks I have been challenged by a significant health issue. Having the utmost respect for my job as Chief Justice and the business of the court, I have made a decision to tender my resignation effective at the end of August 31, 2015 to focus full-time on addressing my immediate health condition. There is no greater honor that a person can receive than to have another person place his or her trust and confidence in you. I want to thank the people of Arkansas who placed their trust and confidence in me and allowed me to serve them on their Arkansas Supreme Court. I sincerely appreciate the excellent staff that has worked with me. I have been privileged to work with some of the best district court judges, circuit court judges, appellate court judges, and justices in the country. I have also been privileged to work with our excellent Administrative Office of the Courts, its leadership and dedicated employees. Lastly, thank you to my wife Pat for her sacrifice and support.

Prior to his retirement, Justice Hannah was the longest-serving member of the Arkansas judiciary, having served as a judge for more than thirty-seven years.

Howard Brill

Professor Howard Brill

On Thursday of this week, Governor Asa Hutchinson appointed Professor Howard Brill to complete Chief Justice Hannah’s term on the Arkansas Supreme Court, which ends in 2016.  Professor Brill is the Vincent Foster University Professor of Legal Ethics and Professional Responsibility at the University of Arkansas School of Law.  He joined the law school in 1975.  Among his many achievements, Professor Brill is widely known in Arkansas as the author of Arkansas Law of Damages, which is routinely cited by Arkansas state and federal courts.  He has also authored Arkansas Professional and Judicial Ethics.  Professor Brill has previously served as a Special Justice on the Arkansas Supreme Court on several occasions.

Arkansas Supreme CourtJustice Paul Danielson announced last week that he does not plan to seek re-election as an Associate Justice of the Arkansas Supreme Court at the end of 2016.  Justice Danielson said that he was grateful for the opportunity to serve and commented that he would seek re-election were it not for an Arkansas law requiring judges to retire by age 70 so as not to lose their retirement benefits.

“I am eternally grateful to the people of Arkansas for allowing me the privilege of serving on this court for what will be ten years, after having served twelve years as a circuit judge,” Danielson said. “And it has been my honor and pleasure to work among such esteemed colleagues over the years. Were it not for the state law prohibiting me from seeking re-election without forfeiting my retirement benefits, I would continue to seek re-election as long as the good people of this State would have me.”

Within a few hours of Justice Danielson’s announcement, Circuit Court Judge Shawn Womack announced that he’ll run for Justice Danielson’s seat on the Arkansas Supreme Court in 2016.  Judge Womack, a former Arkansas lawmaker, is currently a circuit court judge in Mountain Home.

In re Guardianship of S.H., 2012 Ark. 245, 409 S.W.3d 307 (“S.H. I“) and In re Guardianship of S.H., 2015 Ark. 75 (“S.H. II“) both address the rule that applies when a parent who originally consents to a guardianship later seeks to terminate the guardianship.  In S.H. I (decided in 2012), the Arkansas Supreme Court set forth a two-step burden shifting analysis for determining whether to terminate a guardianship in such situations.  In S.H. II (which was the second appeal of the same case, decided in February 2015), the Arkansas Supreme Court clarified the burdens of proof that apply to each step in the analysis.  S.H. II was a split opinion, however, and for reasons that will be discussed in more detail below, there is some question as to which rule will apply in the future.  Therefore, this blog post analyzes the rule from both the majority opinion (which technically appears to be a plurality opinion) and the concurring opinion, along with a note regarding which rule might apply in the future.

I. Legal Background

SH II addresses situations where a parent consents to another person (typically a family member) serving as the guardian of his or her child, and then later that parent seeks to terminate that guardianship.  This can arise in a number of circumstances, such as when a parent must leave the country to serve in the military (Witham v. Beck, 2013 Ark. App. 351) or when a parent is overcoming a drug problem (Crenshaw v. Crenshaw, 2012 Ark. App. 695).

A. Abolition of the Material Change in Circumstances Standard

For many years, appellate courts in Arkansas had “equate[d] a petition to terminate a guardianship to a change of child custody among natural parents.” Smith v. Thomas, 373 Ark. 427, 432, 284 S.W.3d 476, 479 (2008).  As a result, in order for a parent to terminate a guardianship, the parent was required to prove that there had been a material change in circumstances. Graham v. Matheny, 2009 Ark. 481, 6, 346 S.W.3d 273, 277 (2009).  In Graham, the Arkansas Supreme Court recognized that “there is confusion regarding the standard to be used in termination-of-guardianship cases.” Id. at 14, 346 S.W.3d at 280-81.  Therefore, the Arkansas Supreme Court took the opportunity to set forth five principles that apply in termination of guardianship cases.  Perhaps the most significant of those principles was that “a change-of-custody analysis using the material-change-of-circumstances standard should not be done in termination-of-guardianship cases.” Id. at 15, 346 S.W.3d at 281.

The Court in Graham noted that the guardianship statute, which provides that “[a] guardianship may be terminated by court order . . . [if] the guardianship is no longer necessary or for the best interest of the ward,” is a disjunctive test. See Ark. Code Ann. § 28-65-401(b)(3).  Nevertheless, the Arkansas Supreme Court still held that even if there is evidence that a guardianship is no longer necessary, the best interests of the child must still be examined.  The concurrence in Graham, written by Justice Hannah, joined by Justice Danielson, made the point that the statute is a disjunctive statate and argued that “[u]pon remand, the circuit court should be ordered to determine whether if for any reason, the guardianship is no longer necessary or for some other reason it is no longer in the best interest of [the ward] that the guardianship continue.” Graham, 2009 Ark. 481, at 19, 346 S.W.3d at 283 (Hannah, C.J., concurring).

The concurrence, in a footnote, made one other point: That the parties had not raised the question of whether the guardianship statute as written violated parents’ constitutional rights to the custody and control of children. Id. at 18, 346 S.W.3d at 282 (Hannah, C.J., concurring).  Specifically, the concurrence made reference to Troxel v. Granville, 530 U.S. 57, 120 Sup. Ct. 2054 (2000), in which the Arkansas Supreme Court had held in a grandparent visitation case that “there is a presumption that fit parents act in the best interests of their children.”  The Arkansas Supreme Court had also recognized this principle in a grandparent visitation case, holding that “a fit parent is given a presumption that he or she is acting in a child’s best interests.” Linder v. Linder, 348 Ark. 322, 72 S.W.3d 841 (2002).

Less than three years after the decision in Graham v. Metheny was handed down, the Arkansas Supreme Court would address head-on the issue of parental rights in the context of a termination of a consensual guardianship.

B. Application of Troxel to Termination of Guardianship Cases

As mentioned previously, S.H. I was the first appeal of the case that is the subject of this blog post.  The paternal grandparents in S.H. I filed a petition for guardianship making numerous allegations against the mother.  The mother and father then consented to guardianship of her daughter by the daughter’s paternal grandparents.  About a-year-and-a-half later, the mother sought to terminate the guardianship, but the circuit court denied the petition, and the mother appealed.

In S.H. I, the Arkansas Supreme Court held that the guardianship statute was unconstitutional as applied to a parent who consents to a guardianship and later seeks to terminate that guardianship.  Based upon Troxel, the Arkansas Supreme Court held that a natural parent who has not been deemed unfit is presumed to be acting in the child’s best interest, but the question was whether a parent who consents to a guardianship waives that presumption.  In S.H. I, the Arkansas Supreme Court “align[ed] [itself] with the majority view and [held] that parents who have not been found unfit do not relinquish their fundamental liberty interest in raising their children by consenting to a guardianship and, thus, they are entitled to the Troxel presumption in a proceeding to terminate that guardianship.” S.H. I, 2012 Ark. 245, at 14, 409 S.W.3d at 316.

Based on this holding, the Arkansas Supreme Court set forth a two-part rule, stated as follows:

[W]hen a natural parent, who has not been deemed unfit and who has consented to a guardianship, files a petition to terminate that guardianship, that parent must put forth evidence that the guardianship is no longer necessary. Once the court is satisfied that the conditions necessitating the guardianship have been removed, the guardians shoulder the burden of rebutting the presumption that termination is in the child’s best interest.

S.H. I, 2012 Ark. 245, at 15, 409 S.W.3d at 316.

There was a concurring/dissenting opinion in S.H. I, authored by Justice Goodson and joined by Justices Brown and Corbin.  That opinion made two basic points relating to the first prong of the test (regarding whether the guardianship is still necessary).  First, the concurring/dissenting justices argued that “the fundamental right at stake in this case must be protected by placing the entire burden of proof on those who seek to override the parent’s presumptively valid decision.” S.H. II, 2012 Ark. 245, at 22, 409 S.W.3d at 320 (Goodson, J., concurring/dissenting).  In other words, the guardian would not only have to rebut the best-interest presumption (the second prong of the test), the guardian would also have to prove that the guardianship remains necessary (the first prong of the test).

Second, the concurring/dissenting justices argued that the majority opinion had not made clear what burden of proof the natural parent would bear on the first prong of the test.  Particularly, the concurring/dissenting justices questioned whether the burden on the first prong of the test was a burden of going forward or a burden of proof.  The Arkansas Supreme Court’s decision in the second appeal of this case, S.H. II, would resolve this and other ambiguities that remained after S.H. I.

II. S.H. II: Explanation of the Burdens of Proof . . . And an Alternative Analysis?

On remand of S.H. I, the circuit court again denied the mother’s petition to terminate guardianship, and the mother appealed again.  The Arkansas Supreme Court reversed, this time directing the circuit court to return custody of the daughter back to the mother. S.H. II, 2015 Ark. 75.  The decision was a 3-2-2 decision, and both the majority opinion and the concurring opinion must be evaluated to determine how these cases will be handled in the future.

A. The Majority Opinion: Explanation of the Burdens of Proof

As discussed above, there is essentially a two-part test in termination of consensual guardianship cases.  In the first part of the analysis, the parent seeking to terminate guardianship must establish that the conditions necessitating guardianship no longer exist.  In the second part of the analysis, the guardians then bear the burden of overcoming the presumption that termination of the guardianship would be in the child’s best interest.

(i) Step 1 of the Test from S.H.

As mentioned previously, the Arkansas Supreme Court in S.H. I did not indicate whether the burden in the first part of the test from S.H. I was a burden of going forward or a burden of proof.  In S.H. II, the Arkansas Supreme Court clarified that this is a burden of going forward, and not a burden of proof.  The Arkansas Supreme Court also set forth exactly how a parent meets this standard: “by revoking consent and informing the court that the conditions necessitating the guardianship no longer exist.” S.H. II, 2015 Ark. 75, at 5.  The Arkansas Supreme Court reasoned that this rule applies because a fit parent is presumed to act in the best interest of his or her child, including in making the decision to terminate a guardianship.

(ii) Step 2 of the Test from S.H.

With respect to the second prong of the test from S.H. I (the best interests of the child), the opinion in S.H. I did not indicate whether the guardian’s burden was by a preponderance of the evidence or clear and convincing evidence.  In S.H. II, the Arkansas Supreme Court held that the burden was by clear and convincing evidence. Ark. Code Ann. § 9–27–341(b)(3).  With respect to the mother in S.H. II, the Arkansas Supreme Court held that “while not an ideal parent, [she] remained a fit parent, which is all that matters for constitutional purposes.” S.H. II, 2015 Ark. 75, at 12.

B. Concurring Opinion — Statutory Interpretation

The concurring opinion agreed that a fit parent meets the first prong of the test from S.H. I simply by revoking consent to the guardianship.  Further, the concurring opinion agreed that the standard for the second prong of the test from S.H. I requires that the guardian bear the burden of proof by clear and convincing evidence.  Where the concurrence differs, however, is that the concurrence notes that the guardianship statute allows a guardianship to be terminated when “the guardianship is no longer necessary or for the best interest of the ward.” Ark. Code Ann. § 28-65-401.  The concurring opinion noted that this is a disjunctive test, meaning that once the parent meets the first prong of the test, the analysis should end.  The practical impact of this test would appear to be that once a fit parent who has consented to the guardianship informs the court that he or she revokes the guardianship, the guardianship would have to be terminated by the court.

Although it is sometimes tempting to ignore concurring opinions, this is not an opinion that should be ignored.  There are a couple of reasons for this.  First, the Court’s opinion (written by Justice Wood, joined by Justices Goodson and Wynne) was technically not joined by a majority of the court (the opinions all refer to the opinion as the majority opinion, however, so this blog post is using the same terminology).  The concurring opinion was written by Justice Baker, joined by Justice Hart, which gave the Court a majority.

Second, and perhaps more important, the majority opinion hinted that it would apply a different analysis in the future.  In fact, the majority opinion “acknowledge[d] [the two-step process from S.H. I] is not entirely consistent with the guardianship statutes, which provide that a court may terminate a guardianship ‘if, for any other reason, the guardianship is no longer necessary or for the best interest of the ward.'” S.H. II, 2015 Ark. 75, at 14.  The opinion further acknowledged that the decision in Graham v. Metheny had converted the statute from a disjunctive (“or”) statute in to conjunctive (“and”) statute.  This sounds very similar to the argument made by the concurrence.

So, why did the Court in S.H. II apply the two-step analysis in spite of these acknowledgments?  Recall that S.H. II was the second appeal of the same case, and that the first appeal (S.H. I) was where the Court had initially announced the burden-shifting procedure.  Therefore, the Court held that “[t]he constraints of the law of the case prevent this court from following the cardinal rule of statutory interpretation, which is ‘to construe the statute just as it reads, giving the words their ordinary and usually accepted meaning in common language.'” S.H. II, 2015 Ark. 75, at 15 (quoting McMillan v. Live Nation Entm’t, Inc., 2012 Ark. 166, at 4, 401 S.W.3d 473, 476.

C. The Dissent

The dissent was written by Justice Danielson, joined by Chief Justice Hannah.  Although the dissent argued that the opinion in S.H. II was a reversal of the opinion in S.H. I, the dissent seemed more concerned with the majority’s decision to order the circuit court to enter an order returning custody to the mother, rather than remanding the case for further proceedings.

III. Practical Implications of S.H. II

At this time, the law on this issue isn’t entirely clear, although S.H. II certainly answered several questions.  It will be worth watching to see what analysis the Arkansas Supreme Court applies when it reviews a case in which the Court is no longer bound by the law of the case doctrine that applied in S.H. II.  Based on the last part of the majority opinion, it is certainly possible that the majority will adopt the reasoning of the concurrence, but we won’t know for certain until the Arkansas Supreme Court hands down another case on this topic.

So, there are two practical takeaways from this case: (1) This case clarifies a trend that began several years ago of providing more and more protections to fit parents who consented to guardianship; and (2) In order to preserve all arguments for appeal, trial attorneys representing such parents should make arguments based both on the analysis applied by the majority and the analysis applied by the concurrence.

* Our firm was honored to represent the appellant in S.H. II, but would also like to acknowledge the hard work of the trial attorneys (and previous appellate attorneys in S.H. I), Teresa Wineland and Bonnie Johnson, for laying the groundwork and preserving the issues that led to this outcome.

Strother v. Strother

In Strother v. Strother, 2015 Ark. App. 196, the Arkansas Court of Appeals recently held that a decree that “does not contain a final award of custody” is not an appealable order.  A review of Strother, along with several other cases on this topic, reveals that the line between a final custody order and a temporary custody order is not always clear, so attorneys should be cautious before choosing not to appeal from what might appear to be a temporary custody order.

In Strother, the dad and mom had married in 2001, and the mom had filed for divorce in 2013.  In her complaint for divorce, the mom sought joint legal custody, with her having primary physical custody.  The court appointed an attorney ad litem, and eventually held a hearing “on the divorce and custody issues.”  The court then issued a letter opinion in which it granted the couple joint legal custody, and granted the mom primary physical custody.

With respect to custody issues, the circuit court’s order stated as follows:

[T]his court finds that the aforesaid orders of this court in regards [to] custody and other issues concerning the aforesaid two (2) minor children are temporary in nature; that an attorney ad litem will be appointed to represent the aforesaid two (2) minor children; that Defendant shall be solely responsible for payment of all attorney fees and expenses which will [be] owed to the attorney ad litem; and that issues concerning permanent orders in regard [to] custody and other issues concerning the aforesaid two (2) minor children will be determined in the future by agreement of the parties or by order of the court.

The Court of Appeals in this case examined whether this was an appealable order.  Rule 2(d) of the Arkansas Rules of Appellate Procedure–Civil provides that “[a]ll final orders awarding custody are final appealable orders.”  In other words, even if an order granting divorce isn’t otherwise considered a final order, if the order is final with respect to custody, then it will be final for purposes of appealing the custody determination.

In Strother, the Court of Appeals held that the order was not a “final order[] awarding custody.”  The Court of Appeals noted that “the order specifically states that issues of custody ‘are temporary in nature’ and that ‘issues concerning permanent orders in regard [to] custody . . . will be determined in the future.'”  Therefore, the Court of Appeals dismissed the appeal until a final custody award is entered.

In its opinion in Strother, the Court of Appeals cited to an Arkansas Supreme Court case, Gilbert v. Moore, 364 Ark. 127, 216 S.W.3d 583 (2005).  In that case, the trial court had entered an emergency ex parte order granting temporary custody of the couple’s child to the father.  Four days later, the trial court held a short hearing and ordered the custody of the child remain with the father, and that the mother was to receive weekend visitation.  The trial court stated from the bench:

I signed an Ex Parte Order a few days ago which placed the temporary custody in the Plaintiff, the father. I really don’t know where this child is better off long term. I guess that’s something that is going to have to be resolved at a later date. I presume both of these parties want long term custody of this child. I may or may not be right about that. In the meantime I’m going to leave the Ex Parte Order in effect; however, the child shall spend each weekend with his mother beginning 6:00 p.m. on Friday and ending on 6:00 p.m. on Sunday. And when counsel and the parties are ready for this case to be heard in its entirety on its merits thoroughly by myself or somebody, probably somebody else, and hopefully make the right decision on where this child should grow up, then that’s what will happen.

The trial court went on to state from the bench that the order would be “on a temporary basis the child should stay with the father during the week and the mother during the weekends until this case can be resolved on its merits.”  The order itself was not quite as specific as to the temporary nature of the order, but did state that custody would remain with the father “at this time.”

In Gilbert, the Arkansas Supreme Court held that the custody order was a temporary order and therefore not appealable.  This, however, is where the note of caution comes in.  The Arkansas Supreme Court held that “[w]hether a custody order is final or temporary is not dependent upon the style of the order,” and that “custody orders styled as temporary may be nonetheless final for purposes of appeal if the issue of custody was decided on the merits and the parties have completed their proof.”  In Gilbert, the basis of the holding appears to have been that “the issue of custody ha[d] yet to be determined on its merits and . . . the parties ha[d] not completed their proof on the issue.”

This seems to be consistent with previous cases cited by the Arkansas Supreme Court in Gilbert.  Although those cases predate the addition of “final orders awarding custody” to the list of appealable orders (that amendment was adopted in 1999), the holdings are still informative.  In those three cases, the key issue seems to whether there has been a final hearing on the merits.  In Sandlin v. Sandlin, for example, the Arkansas Supreme Court held that the order in that case was not appealable because “the main issue, that of custody,” had not been decided. 290 Ark. 366, 719 S.W.2d 433 (1986).  The Arkansas Supreme Court noted that it had previously held that “there can be no appeal . . . until the proof has been completed and the order entered.” Similarly, in Jones v. Jones, the Arkansas Court of Appeals held that a custody order “is final for purposes of appeal if the the issue of custody was decided on the merits and the parties have completed their proof.” 41 Ark. App. 146, 852 S.W.2d 325 (1993).

In Chancellor v. Chancellor, 282 Ark. 227, 667 S.W.2d 950 (1984), the Arkansas Supreme Court held, based on the following, that the custody order was not final:

The record reflects that appellant has not yet completed her proof. The order in the present case did not terminate any cause or right, dismiss any party from the action or conclude their rights. By its very terms it is a temporary order. The court ordered an investigation of the respective homes and ordered that a report be made to the court. It is obvious the court did not intend to take final action on this matter based solely upon the fact that the mother may be living in adultery.

This brings us back to Strother.  In that case, it appears that there had, in fact, been a hearing on the merits.  The order, however, appears to have left custody open until an attorney ad litem could be appointed and could report back to the court.  In that sense, the issue of custody was still open.

The Takeaway

Based on these cases, attorneys should never assume that a custody order is temporary based solely on the fact that the order is styled as a “temporary” order. These cases make clear that there’s more to the analysis than simply what the order is styled.  Sometimes, it might not be entirely clear to counsel whether or not a custody order constitutes a “final order[] awarding custody.”  In those situations, the best course of action is probably to file a notice of appeal as a precaution.  Otherwise, the attorney risks allowing what appears to be a temporary order become a permanent, nonappealable order.

Arkansas Supreme Court An investiture ceremony is being held at the Arkansas Supreme Court today at 1:00 p.m. for the swearing in of three justices: Arkansas Supreme Court Justice Karen Baker, Arkansas Court of Appeals Judge Rhonda Wood, and Arkansas Court of Appeals Judge Robin Wynne.

Supreme Court Justice Karen Baker was originally elected to the Arkansas Supreme Court in 2010. She was re-elected last May to serve an eight-year term on that Court.

Court of Appeals Judge Rhonda Wood was elected to Position 7 on the Arkansas Supreme Court in May of 2014.  Judge Wood replaces Justice Hoofman, who was appointed to fill that position with the retirement of Justice Robert L. Brown at the end of 2012.  Justice Hoofman will, in turn, fill the vacancy left by Judge Wood on the Arkansas Court of Appeals.

Court of Appeals Judge Robin Wynne was elected to Position 2 on the Arkansas Supreme Court in May of 2014.  Judge Wynne will replace Justice Donald Corbin, who has held that position since 1990.  Governor Beebe has appointed Mike Kinard of Magnolia to replace Judge Wynne on the Arkansas Court of Appeals.

As we’ve previously discussed, the addition of Judge Rhonda Wood to the Arkansas Supreme Court will result in Arkansas being one of only a few states with a female majority court of last resort, which is a first for Arkansas as well.

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