Barnes v. Newton

JOHN E. JENNINGS, Judge. The appellant Kenny Barnes and Gina Newton, the appellee, were married in July 1988. They had one child, Jacob, born in 1991. In 1995 the parties divorced. The decree awarded the parties joint custody, both legal and physical. For some seven months after the divorce, both Jacob and a child of Ms. Newton by a previous marriage lived with Mr. Barnes in Humphrey, Arkansas. In January 1996, Mr. Barnes and Jacob moved to Mountain View where he took a position as an aviation mechanic. Ms. Newton continued to live in Stuttgart. In December 1997, Ms. Newton filed a petition in Arkansas County Chancery Court asking that Jacob be returned to Arkansas County. By the time this case was heard in the trial court in December 1998, Jacob was in the second grade in Mountain View. In July 1998, Ms. Newton was diagnosed with Hodgkin’s Disease. Following the December 1998 hearing, the chancellor entered an order stating that custody of the child would remain “joint” but that “contingent upon the plaintiff’s health, primary physical custody will switch to the plaintiff on August 1, 1999.” On appeal Mr. Barnes’ sole contention is that the chancellor erred in awarding primary physical custody to Ms. Newton. We agree and reverse. The threshold issue is whether the chancellor’s order changing physical custody is final and appealable. This is a matter going to our own jurisdiction and is an issue which we have the duty to raise on our own motion. See Smith v. Smith, 337 Ark. 583, 990 S.W.2d 550 (1999). 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. Nature Conservancy, 330 Ark. 722, 957 S.W.2d 688 (1997). We recognize the general rule that a conditional 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). In the case at bar, the fact that the change in physical custody is to take place at some time in the future does not render the order unappealable. It is clear enough that no further hearing or decree was contemplated. The more serious problem is the apparent conditional nature of the transfer in custody, as being made contingent upon Ms. Newton’s health. When a chancery decree orders a transfer of physical custody to a party with the transfer to take place some time after the entry of the decree, the order is always contingent, in a sense, upon the continued health of the party. For that reason, it seems proper to treat the conditional language in the decree as surplusage — it adds nothing to the terms of the decree. Finally, it is reasonable to ask when the order changing custody might have become appealable if it is not appealable from the date of its entry. This question has no satisfactory answer. We conclude that the order appealed from is final for purposes of appeal. We also conclude that Mr. Barnes’ contention that the case must be reversed is correct. The law is clear that child custody may not be altered absent a material change in circumstances. Jones v. Jones, 326 Ark. 481, 931 S.W.2d 767 (1996). Here, the child had resided with his father since the time of the divorce. He was evidently happy and doing well in school. There is no allegation by either parent that the other is unfit. The chancellor’s order sets out no change in circumstances that would warrant a change of physical custody to the mother, and we can find none in the record. The order appealed from, therefore, must be reversed. Reversed. Bird, Neal, Crabtree, and Meads, JJ., agree. STROUD and Hart, JJ., concur in part; dissent in part. Pittman and Roaf, JJ., dissent.