If you’ve followed this blog for very long, one of the topics that arises quite frequently is the issue of whether or not an order is a final, appealable order.  This question often arises in family law cases, because there are so many moving parts in those cases.  The decision of the Arkansas Court of Appeals in John v. Bolinder, 2016 Ark. App. 357, provides an example of such a case.

In John, an unmarried couple had one child together in 2010.  In 2012, the trial court awarded primary custody to mom, with dad to have visitation (one week per month plus extended summer visitation) and also to pay child support.  In 2014, the trial court modified the order to decrease dad’s nonsummer visitation to one weekend per month.

In late 2014, dad filed a motion for release of mom’s medical and psychological records.  A few months later, dad filed a motion to modify child support, confirm the length of summer visitation, or modify the summer visitation.  Dad also requested that his summer visitation be expanded, and that child support be reduced during the summer visitation.

At some point during this timeline, mom filed a motion for contempt against dad.  A hearing was held on these matter in May of 2015, at which hearing the parties mentioned that this contempt motion was unresolved.

In June 2015, the trial court entered an order denying dad’s motion seeking the medical/psychological records and denying the motion to modify summer visitation (although the trial court did slightly modify the summer visitation schedule).  The order did not address mom’s contempt motion, and it specifically reserved the issue of child support.

The question, then, is whether an order deciding visitation is final in a situation where a contempt motion and a motion to modify child support are outstanding.  Dad argued that these issues (contempt and child support) were merely collateral matters not affecting the finality of the order.  The Court of Appeals rejected this argument, relying on two cases: Burton v. Templeman, 2015 Ark. App. 101 (holding that an order denying a motion to modify visitation was not final where it specifically reserved a ruling on a motion for contempt) and Mitchell v. Mitchell,  98 Ark. App. 47, 249 S.W.3d 847 (2007) (holding that an order on “various post-divorce disputes” was not final where it specifically reserved a ruling on child support).

In light of this decision, there are two things to keep in mind when deciding whether to file a notice of appeal from a decision involving child custody and visitation.  First, keep in mind that had the facts been slightly different, this order likely would have been a final order pursuant to Rule 2(d) of the Arkansas Rules of Appellate Procedure-Civil, which provides that “[a]ll final orders awarding custody are final appealable orders.”  Second, in light of the opinion in Massinelli v. Massinelli, 2016 Ark. App. 90 (and the cases upon which it relied), counsel should always be cautious about deciding not to file a notice of appeal from an order that is arguably final, even if it appears to be nonfinal.  The best option in this situation would probably be to try to obtain a Rule 54(b) certification to any order that leaves unfinished business.

Suppose a mother consented to a guardianship of her child because she had a drug problem and was seeking treatment.1 Now suppose the mother, after putting her life back together, walks into your office and wants to terminate the guardianship. What standard applies to her petition to terminate the guardianship? This article attempts
to answer that question.

The Arkansas statute governing guardianships 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.”2 While this statute might appear to be straightforward, there have been four major Arkansas Supreme Court cases in the last six years or so dealing with this issue, each of them with a concurrence, a dissent, or both.

Some of the complexity arises because of a 2000 case from the Supreme Court of the United States dealing with grandparent visitation. This article will begin with a short synopsis of that case, and then move to the evolution of this area of law in light of that opinion.

Troxel v. Granville: “There is a presumption that fit parents act in their children’s best interests.”3

In Troxel v. Granville, the United States Supreme Court examined a Washington statute that allowed courts to award visitation of a child to any person if the visitation was in the best interest of the child. The Supreme Court held that the statute was unconstitutional because it gave no deference to a parent’s decision regarding visitation. The Court held that “[t]here is a presumption that fit parents act in their children’s best interests.”

Although the Troxel decision would eventually become important in termination of consensual guardianship cases in Arkansas, the first major Arkansas case on point that began to move the needle in favor of parental rights did so without relying on Troxel.

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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.



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.

Read More…

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