dissenting. I respectfully dissent. My quarrel with the majority is not with the result that it would reach on the merits of the case. Rather, my disagreement is with its conclusion that we have jurisdiction to address the merits.
The parties were divorced in July 1995 by a decree that provided in part that they would share joint legal custody of their minor child, with physical custody to be shared equally to the extent possible. In January 1996, appellant moved to Stone County with the parties’ child. In December 1997, appellee filed a motion seeking to have the child returned to Arkansas County. Appellant answered and counterclaimed, praying that appellee’s motion be dismissed and asking that he be awarded primary physical custody of the child. In July 1998, appellee was diagnosed with Hodgkin’s disease. At the time of the hearing in December 1998, appellee was undergoing chemotherapy, which was to last at least another ten weeks and which left her in a weakened condition. After the hearing, the trial court ordered, inter alia, that legal custody remain joint; that appellant have primary physical custody “for the time being”; and that, “contingent upon the [appellee’s] health, primary custody will switch to the [appellee] on August 1, 1999.” (Emphasis added.)
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. As the majority states, to be final and appealable, an order must dismiss the parties from the court, discharge them from the action, or conclude their rights to the subject matter in controversy. Petrus v. The Nature Conservancy, 330 Ark. 722, 957 S.W.2d 688 (1997). The order must be of such a nature as to not only decide the rights of the parties, but also to put the court’s directive into execution, ending the litigation or a separable part of it. Id. As a general rule, a conditional judgment, order, or decree, the finality of which depends upon certain contingencies that may or may not occur, is not final for purposes of appeal. Corbit v. State, 334 Ark. 592, 976 S.W.2d 927 (1998); Mid-State Homes, Inc. v. Beverly, 20 Ark. App. 213, 727 S.W.2d 142 (1987). Whether a final judgment, decree, or order exists is a jurisdictional issue that this court has the duty to raise even when the parties do not do so. Smith v. Smith, 337 Ark. 583, 990 S.W.2d 550 (1999); Mid-State Homes, Inc. v. Beverly, supra.
Here, the order appealed from did not provide specific relief that could be immediately enforced. The relief to be granted was expressly conditioned upon the state of appellee’s “health” on a date then more than seven months in the future. The record does not reflect the state of appellee’s health as of that date or which of the two parties was, in fact, then entitled to custody of the child. The majority holds that the conditional language is mere surplusage because every custody order depends upon the continued health of the party who is to receive custody. One obvious problem with employing such reasoning in this case is that it ignores the factual context in which the chancellor used the language. This was not like every other case, but was one in which the appellee had Hodgkin’s disease and was at that very time undergoing a lengthy regimen of chemotherapy that, by her own admission, left her in a weakened condition. The effect of appellee’s illness upon her ability to properly care for the child was clearly before the court, and concern and uncertainty over that issue would appear to be the obvious reason that the chancellor expressly conditioned his order.
Since that part of the order that appellant appeals from depended upon a contingency that may or may not have occurred, I cannot conclude that it is final and appealable. See Mid-State Homes, Inc. v. Beverly, supra; see also Corbit v. State, supra. Consequently, I would dismiss the appeal.
ROAF, J., joins in this dissent.