Jerry v. Jerry

Cite as 2014 Ark. App. 63

ARKANSAS COURT OF APPEALS
DIVISION I
No. CV-13-95

Opinion Delivered January 22, 2014

STEVEN WAYNE JERRY APPEAL FROM THE UNION
APPELLANT COUNTY CIRCUIT COURT
[NO. DR-10-288-2]
V.
HONORABLE MICHAEL R.
LANDERS, JUDGE
JIMMIE DELL JERRY
APPELLEE APPEAL DISMISSED

KENNETH S. HIXSON, Judge

Steven Wayne Jerry appeals from an order entered on May 31, 2012, wherein the trial

court made multiple findings concerning controversies that arose subsequent to the parties’

divorce. Because that order failed to dispose of all the claims presented, we conclude that the

order is not final and appealable and that this appeal must be dismissed.

Appellant Steven Wayne Jerry (Husband)and appellee Jimmie Dell Jerry (Wife) were

divorced by a decree entered on October 22, 2010. The parties had entered into a property

settlement agreement, and that agreement was approved by the trial court and incorporated

into the divorce decree.

The property settlement agreement contained various provisions dividing the real

and personal property of the parties, as well as the associated debt. The parties’ property

settlement agreement provided, inter alia, that Husband and Wife would share equally in
 Cite as 2014 Ark. App. 63

Husband’s military retirement benefits, but that Husband would retain as his separate property

the retirement accounts earned through his employment with the El Dorado Police

Department. Husband agreed to pay Wife $700 in monthly alimony for a period of seven

years. Husband also agreed to keep Wife covered under his military health insurance policy,

but in the event he could no longer cover Wife he was to notify Wife immediately. The final

paragraph of the parties’ property settlement agreement provides:

This Agreement represents the entire agreement between Wife and Husband, and
supercedes any verbal or written agreement heretofore or hereafter made. This
Agreement may be only amended in writing by mutual agreement of the parties and
evidenced by their signature before a Notary Public.

A few months after the divorce became final, the parties discovered that Husband was

no longer permitted to cover Wife under his military health insurance plan. On March 28,

2011, the parties executed a written amendment to the property settlement agreement,

whereby Husband and Wife each agreed to pay one-half of Wife’s health insurance premium

in the amount of $94 per month. This amendment was not submitted to the court for

approval.

On July 29, 2011, Husband initiated the present round of litigation when he filed a

“Petition for Citation of Contempt and for Other Relief.” In his petition, Husband alleged

that Wife was in contempt by failing to comply with the provisions of their property

settlement agreement as approved by the court. Specifically, Husband asserted that Wife had

failed to return to him one of his firearms, two china cabinets, his birth certificate, his shot

records, and his military DD Form 214. Husband also complained that Wife failed to provide

copies of the bills he needed to make payments under the terms of their agreement.

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In his petition, Husband also claimed that the parties’ financial circumstances had

changed and that his alimony obligation should be terminated. In addition, Husband asked

that Wife receive slightly less than half of his military retirement benefits, pointing out that

the parties were married for only nineteen years and nine months of the twenty-one years he

accrued those benefits. Finally, Husband alleged that Wife coerced him to sign the

amendment to their property settlement agreement requiring him to pay one-half of her

health insurance premiums. Husband contended that, because he signed the amendment

under duress and without the benefit of counsel, the amendment should be set aside.

After a hearing, the trial court entered an order on May 31, 2012. In its order, the trial

court directed Wife to deliver to Husband copies of invoices related to Husband’s financial

obligations, and further directed Wife to return the firearm. The trial court ruled that the two

cabinets were the property of Husband’s mother, who was not a party to the litigation, and

that therefore the court was without jurisdiction to divide that property. The trial court

refused to modify the parties’ agreement that Husband’s military retirement be divided

equally. The trial court further found that Husband’s responsibility for alimony was based on

an independent contract between the parties that was approved by the court and incorporated

into the divorce decree, and was not subject to modification except by consent of the parties.

Moreover, the trial court determined that Husband failed to show a significant change in

circumstances to justify a change in alimony.

On June 1, 2012, Husband filed a motion for new trial. Because the thirtieth day

therefrom fell on Sunday, July 1, 2012, the motion was deemed denied on Monday, July 2,

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2012. See Gartman v. Ford Motor Co., 2011 Ark. 454. Husband timely filed his notice of

appeal on August 1, 2012.

On appeal, Husband argues that the trial court erred in finding that it lacked the

authority to modify the divorce decree and the parties’ agreement that was incorporated

therein. Husband contends that he has had a significant reduction in income since the time

of divorce, and he asks that his alimony be reduced and that his military retirement be divided

in accordance with the length of the parties’ marriage during his military service. Husband

also contends that the parties’ property settlement agreement should be set aside on the bases

of fraudulent inducement, mistake, and duress. Finally, Husband argues that the amendment

to the property settlement agreement pertaining to the Wife’s medical insurance premium

should be determined to be a nullity, and he points out that the trial court’s order did not

address the issue of whether that amendment was valid and enforceable.

The question of whether an order is final and subject to appeal is a jurisdictional

question that the appellate court will raise on its own. J-McDaniel Constr. Co. v. Dale E.

Peters Plumbing Ltd., 2013 Ark. 177. Rule 2(a)(1) of the Arkansas Rules of Appellate

Procedure–Civil provides that an appeal may be taken only from a final judgment or decree

entered by the trial court. Under Arkansas Rule of Civil Procedure 54(b), an order that fails

to adjudicate all the claims as to all the parties, whether presented as claims, counterclaims,

cross-claims, or third-party claims, is not final for purposes of appeal. Dodge v. Lee, 350 Ark.

480, 88 S.W.3d 843 (2002). Although Rule 54(b) provides a method by which the trial court

may direct entry of a final order as to fewer than all the claims or parties, where there is no

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attempt to comply with Rule 54(b), the order is not final, and we must dismiss the appeal.

Harrill & Sutter, PLLC v. Farrar, 2011 Ark. 181.

Our review of this case reveals that there are claims that have not been disposed of by

the trial court. One of Husband’s allegations in his petition was that the written amendment

to the parties’ property settlement agreement, whereby he agreed to pay for half of Wife’s

health-insurance premiums amounting to $94 per month, was executed under duress and

without counsel and should therefore be set aside. However, the trial court’s order fails to

address or dispose of that claim. We further observe the trial court’s order fails to address

Husband’s request that Wife return to him his birth certificate, shot records, and military DD

Form 214. Nor was there any Rule 54(b) certificate filed in this case.

Our supreme court has repeatedly held that it is not enough to dismiss some of the

parties or to dispose of some of the claims; to be final and appealable, an order must cover all

of the parties and all of the claims. J-McDaniel Constr. Co., supra. Because a final order has not

been entered disposing of all of the claims, we lack jurisdiction of this appeal and it must be

dismissed.

Appeal dismissed.

PITTMAN and WALMSLEY, JJ., agree.

James E. McMenis, for appellant.

James B. Bennett, for appellee.

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