Miller v. Moore

Cite as 2017 Ark. App. 619

ARKANSAS COURT OF APPEALS
DIVISION III
No. CV-17-107
Opinion Delivered November 15, 2017

BROOKE ASHLEY MILLER AND
KERRY COLEMAN APPEAL FROM THE CRAWFORD
COUNTY CIRCUIT COURT
APPELLANTS [NO. 17PR-16-261]
V.
HONORABLE GARY COTTRELL,
JASON EDWARD MOORE AND JUDGE
MANESSEH BLYTHE MOORE
DISMISSED IN PART; REMANDED
APPELLEES FOR FURTHER PROCEEDINGS
CONSISTENT WITH THIS OPINION

DAVID M. GLOVER, Judge

This is an adoption case. Brooke Ashley Miller is the biological mother of B.A.M.,

who was approximately four years old at the time of the adoption. Kerry Coleman is

purportedly the child’s biological father. 1 The adoptive parents are Jason and Manesseh

Moore, and Jason is Brooke’s first cousin. The adoption decree was entered on November

2, 2016. Brooke and Kerry each filed timely notices of appeal challenging the adoption on

several bases. We are without appellate jurisdiction to consider the arguments raised by

Brooke in this appeal and dismiss her portion of the appeal; however, Kerry’s issues are

properly before us and have convinced us this case must be remanded to the trial court for

further proceedings consistent with this opinion.

1
Although it was alleged that Kerry filed a motion to intervene in this action, the
motion is not part of this record.
Cite as 2017 Ark. App. 619

It is undisputed Brooke initiated this adoption by contacting Jason Moore and asking

him and Manesseh to adopt B.A.M. On October 4, 2016, Brooke signed a document

entitled Consent to Adoption & Waiver of Service. B.A.M. has been living with the Moores

since that date. Brooke did not begin her attempts to withdraw her consent until after the

ten-day period for withdrawal had expired. On October 31, 2016, the Moores filed their

petition for adoption and attached the consent and waiver executed by Brooke.

The petition was presented to the trial court on November 2, 2016. Neither Brooke

nor Kerry was present. Brooke had waived her rights to notice along with her consent to

the adoption, but Kerry alleges he had no idea the adoption was even in motion. Before the

court was Brooke’s consent and waiver and representations that the child’s father was

unknown and that a search of the putative-father registry had revealed nothing. A

November 2, 2016 letter from the Arkansas Department of Health certified that there was

no information in the registry regarding a putative father for B.A.M. The adoption petition

was granted and the decree entered on November 2, 2016.

On November 8, 2016, Brooke filed an affidavit and revocation of consent to

adoption. On November 14, 2016, which was within ten days of entry of the decree,

Brooke filed a motion to vacate the decree of adoption pursuant to Rule 60(a) of the

Arkansas Rules of Civil Procedure. On November 21, 2016, Brooke filed her notice of

appeal from the November 2, 2016 adoption decree; Kerry filed a motion to set aside the

decree of adoption pursuant to Rule 60(a); and Kerry also filed a notice of appeal from the

November 2, 2016 decree. In his verified motion to set aside the decree, Kerry averred in

part that he is B.A.M.’s biological father and “was adjudicated the same in the Circuit Court

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of Lonoke County, in Case No. 43DR-2013-502.” On November 29, 2016, Brooke and

Kerry filed a joint petition for an expedited motion-hearing date, which was in addition to

e-mail correspondence that preceded the motion attempting to get a hearing date for the

motions. No hearing was ever set, and the trial court never ruled on either motion. These

appeals followed.

We begin with Brooke’s appeal, which raises six points: 1) the trial court failed to

obtain personal jurisdiction over Brooke; 2) the trial court erred in failing to hold a hearing

in accordance with Arkansas Code Annotated section 9-9-212; 3) the trial court erred in

finding the minor child’s father was unknown, absent documentary evidence, and that his

consent was not required, due to the fraudulent concealment on the part of the Moores and

their counsel; 4) the trial court erred when it found that a valid consent had been obtained

from the minor child’s mother and that no person had made any objection to the entry of

a final decree of adoption, due to the fraudulent concealment on the part of the Moores and

their counsel; 5) the Moores failed to comply with the mandatory, statutory requirements

before entry of the final decree; and 6) the trial court erred when it found the Moores met

their required burden of proof to show that the adoption was in the best interest of the

minor child. We lack appellate jurisdiction to address these issues.

All of the arguments Brooke makes to our court in her appeal were contained in her

motion to vacate pursuant to Rule 60(a) of our rules of civil procedure, which she filed

within ten days from the date of entry of the adoption decree. Arkansas Rule of Appellate

Procedure–Civil 4(b) provides in pertinent part:

(b) Extension of Time for Filing Notice of Appeal.

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(1) Upon timely filing in the circuit court of a motion for judgment notwithstanding
the verdict under Rule 50(b) of the Arkansas Rules of Civil Procedure, a motion
to amend the court’s findings of fact or to make additional findings under Rule
52(b), a motion for a new trial under Rule 59(a), or any other motion to vacate, alter,
or amend the judgment made no later than 10 days after entry of judgment, the time for
filing a notice of appeal shall be extended for all parties. The notice of appeal
shall be filed within thirty (30) days from entry of the order disposing of the last
motion outstanding. However, if the circuit court neither grants nor denies the motion
within thirty (30) days of its filing, the motion shall be deemed denied by operation of law
as of the thirtieth day, and the notice of appeal shall be filed within thirty (30) days from
that date.

(2) A notice of appeal filed before disposition of any of the motions listed in
paragraph (1) of this subdivision shall be treated as filed on the day after the entry
of an order disposing of the last motion outstanding or the day after the motion
is deemed denied by operation of law. Such a notice is effective to appeal the
underlying judgment, decree, or order. A party who also seeks to appeal from the
grant or denial of the motion shall within thirty (30) days amend the previously filed notice,
complying with Rule 3(e). No additional fees will be required for filing an amended
notice of appeal.
(Emphasis added.) Rule 4 was amended in February 2001 to add the language “any other

motion to vacate, alter, or amend the judgment made no later than 10 days after entry of

judgment.” The reporter’s note concerning this amendment explains:

Rule 4(b)(1) has been amended to clarify which post-trial motions extend the
time for filing the notice of appeal. Confusion has arisen in the past as to the effect
of a motion other than the three specified in the rule. See, e.g., McCoy v. Moore, 338
Ark. 740, 1 S.W.3d 11 (1999). Under the amended rule, timely motions under
Rules 50(b), 52(b), and 59(a) extend the time, as does “any other motion to vacate, alter,
or amend the judgment made no later than 10 days after entry of judgment.” For example,
a motion to set aside the judgment pursuant to Rule 60 extends the time for filing
the notice of appeal, so long as it is made no later than 10 days after the judgment is entered.
The 10-day period corresponds to the time frame for motions under Rules 50(b),
52(b), and 59(a).

(Emphasis added.) The notice of appeal Brooke filed was from the decree itself, but that

notice was not amended when her Rule 60(a) motion to vacate was deemed denied.

Consequently, we are without appellate jurisdiction to consider the arguments she raised in

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her motion to vacate because the deemed denial of those issues was not appealed. See

Worsham v. Day, 2017 Ark. 192, 519 S.W.3d 699. We therefore dismiss her appeal.

Turning to Kerry’s appeal, we consider the two points he raises: 1) he did not consent

to the adoption so the trial court lacked jurisdiction to grant the adoption decree, and 2)

the trial court did not strictly/substantially comply with the adoption statutes and the

noncompliance was so extensive it rendered the adoption decree void. As with Brooke’s

motion, the trial court did not enter a ruling on Kerry’s “Rule 60(a) motion” to set aside

the decree. However, because Kerry filed his motion outside the ten-day window following

entry of the decree, the “deemed-denied” prong in Ark. R. App. P.–Civ. 4 does not apply

to his motion, and Rule 60 itself contains no “deemed-denied” provision. See, e.g., Office

of Child Support Enf’t v. Dickens, 2009 Ark. App. 195, 300 S.W.3d 122. Even so, in Petrohawk

Energy Corp. v. Butler, 2014 Ark. App. 89, we described Rule 60(a)’s ninety-day deadline as

“a rule-imposed time period in which a court must act.” Id. at 4. It is not necessary for us

to decide whether the trial court would now be without jurisdiction to hear Kerry’s “Rule

60(a) motion” due to the expiration of the ninety-day period. That is because, even though

Kerry styled his motion as one pursuant to Ark. R. Civ. P. 60(a), the substance of his

argument was that the adoption decree itself was null and void because he had earlier been

adjudicated B.A.M.’s father, yet he never received notice of the adoption proceedings and

never gave his consent to the adoption as required by the adoption statutes and due process.

Among other authorities, he cites Arkansas Code Annotated section 9-9-206(a)(2)(E)

(petition to adopt may be granted only if written consent has been executed by the minor’s

father if . . . a court has adjudicated him to be the legal father prior to the time the petition

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for adoption was filed); and section 9-9-212(d)(1) (requiring notice of the filing of a petition

and of the time and place of hearing to any person whose consent to the adoption is required

but who has not consented).

In Mayberry v. Flowers, 347 Ark. 476, 485, 65 S.W.3d 418, 424 (2002), our supreme

court addressed the issue of a one-year limitation period, and the court balanced the need

for finality in adoptions with our basic notion of due process, explaining:

In holding as we do in this case, we are not unmindful of the need for finality
in adoptions and the strict construction that must be accorded the one-year limitation
period in section 9-9-216. We are, however, equally aware that the right of a natural
parent to the custody of his or her child is “one of the highest of natural rights.” Due
process requires, at a minimum, notice reasonably calculated to afford a natural parent
the opportunity to be heard before his or her parental rights are terminated through
adoption. Thus, before actual notice may be deemed an adequate substitute for the
notice required by section 9-9-212 and Rule 4, it must be gained prior to the entry
of the adoption decree. Knowledge after the decree is entered, even if it is gained
within the one-year limitations period, will not suffice.

(Citations omitted.) We do not decide the issues presented by Kerry because, through no

fault of his, the trial court never ruled on them, and the record before us is not sufficient to

address them. Instead, we remand this matter to the trial court for further proceedings

consistent with this opinion to address the substance of Kerry’s motion and to determine

whether the adoption decree is void.

Dismissed in part; remanded for further proceedings consistent with this opinion.

HARRISON and VAUGHT, JJ., agree.

Melikian Law Firm, by: Scarlett R. Melikian and Patrick D. Melikian, for appellant
Brooke Ashley Miller.

Greg Crumpton, P.A., by: Greg Crumpton; and Wilson & Haubert, PLLC, by: Stefan K.
McBride, for appellant Kerry Coleman.

Keith M. Kannett, for appellees.

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