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FORD v. FORD1/31/2002
In December 1998, Appellee Jon Ford filed for divorce from Appellant Rhonda Ford. In an order filed on February 5, 1999, the chancellor placed the children temporarily in the custody of Rhonda and, at Jon's request, ordered drug testing of both parties. On March 1, 1999, the chancellor changed custody of the children to Jon "until further orders of the Court" because Rhonda had tested positive for the use of drugs. The divorce decree entered on May 15, 2000, awarded custody of the two children to Jon, established child support and visitation for Rhonda, but reserved all issues of property division until the court received additional information. In a document entitled "Supplemental Decree" and filed on October 27, 2000, the chancellor addressed the issues of property division.
On November 27, 2000, Rhonda filed a notice of appeal "from a Divorce Decree entered in this Court on March 3, 2000 and from a Supplemental Decree entered in this Court on September 12, 2000." She raises three points on appeal: 1) the court erred in awarding custody to the father rather than granting joint custody; 2) the court erred in setting visitation; and 3) the court erred in setting the amount of the child support and in establishing the date to which it was made retroactive. This case also raises the issue of whether the appeal was timely, thereby granting jurisdiction to this court under our Rule of Appellate Procedure — Civil 2(d) (2001). The Arkansas Court of Appeals certified the case to this court as an issue of first impression, a significant issue needing clarification or development of the law, and a substantial question of law concerning the interpretation of a rule of this court. Thus, our jurisdiction is pursuant to Ark. R. Sup. Ct. 1-2(b)(1, 5, and 6) (2001). We hold that the appeal was timely filed and affirm the chancellor's rulings.
I. Jurisdiction
[1-3] The first question is whether Rhonda's appeal is properly before this court. Neither party raised the issue of jurisdiction based on the timeliness of the appeal; however, "it is well settled that it is our duty to determine that this court has jurisdiction." Haase v. Starnes, 337 Ark. 193, 194-95 987 S.W.2d 704, 705 (1998). The question of jurisdiction centers around a possible conflict between Ark. R. App. P. — Civ. 2(d) (2001) and the requirement of a final
appealable order. Arkansas Rule of Appellate Procedure — Civil 2(a)(1) (2001) limits our appellate review to final orders to avoid piecemeal litigation. Larscheid v. Arkansas Dept. of Human Services, 343 Ark. 580, 36 S.W.3d 308 (2001). Rule 2 establishes a number of exceptions, including Rule 2(d) that provides: "All final orders awarding custody are final appealable orders." The potential conflict is with Rule 54(b), which provides that " bsent the executed certificate required by paragraph (1) of this subdivision, any . . . order . . . which adjudicates fewer than all the claims . . . shall not terminate the action. . . ." Ark.R.Civ.P. 54(b) (2001). We have held that the exceptions identified in Rule 2 specify circumstances in which an issue is appealable even though the order of the chancellor was not final. East Poinsett City Sch. Dist. #14 v. Massey, 317 Ark. 219, 876 S.W.2d 573 (1994).
The issue here is whether Rule 2(d) permitted Rhonda to appeal directly from the May 15, 2000 divorce decree, and, if so, was she required to appeal within thirty days or forfeit her right to appeal. The resolution of this issue requires us to decide whether the phrase "final orders awarding custody" as used in Rule 2(d) means a final order as to all issues as required by Rule 54(b), or merely any order that is final in terms of custody. We hold that Ark. R. App. P.
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