Posted by: Andy Taylor | December 1, 2020

If You Don’t Incorporate It, It Didn’t Happen

In McKelvey v. McKelvey, 2020 Ark. App. 536, the wife filed a complaint for divorce, and the husband filed a counterclaim. They both sought custody of the minor child, and in addition, they both made various claims regarding marital property, child support, and disability payments paid to the child.

At the beginning of the divorce hearing, the parties announced that they had agreed to share joint legal and physical custody of the minor child. The circuit court subsequently entered a divorce decree that awarded the husband a divorce from the wife. The divorce decree also approved a separate property settlement agreement and stated that the property settlement agreement would be incorporated into a future order:

A little over a month later, the circuit court entered an amendment to the divorce decree that resolved the property issues and other contested issues. That amended order, however, did not incorporate the property settlement agreement. Further, although the parties had stated on the record that they had reached an agreement as to custody, neither the divorce decree nor the amended order addressed custody.

The husband appealed from some of the circuit courts financial rulings. Based on this record, however, the Court of Appeals held that “custody of [the minor child] is an issue the circuit court has not yet resolved.” Therefore, the Court of Appeals dismissed the appeal for lack of jurisdiction (because there was no final order).

Interestingly, the Court of Appeals noted that “the PSA is not included in the record, making it impossible for this court to ascertain its contents.” It is not entirely clear whether the property settlement agreement addressed custody. This language from the Court of Appeals seems, however, to leave open the possibility that had the property settlement agreement been included in the record, and had the property settlement agreement addressed custody, that perhaps the Court of Appeals would have addressed the merits. Nevertheless, the safest bet would be to make sure that property settlement agreement is not only included in the record, but also incorporated into a formal order.


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