Colley v. Colley

Cite as 2014 Ark. App. 194

ARKANSAS COURT OF APPEALS
DIVISION II
No. CV-13-826

Opinion Delivered March 19, 2014

APPEAL FROM THE SEBASTIAN
KENNETH COLEMAN COLLEY II COUNTY CIRCUIT COURT,
APPELLANT GREENWOOD DISTRICT
[NO. DR-2011-332G]
V.
HONORABLE ANNIE POWELL
HENDRICKS, JUDGE
AUDREY HAMILTON COLLEY
APPELLEE DISMISSED

ROBIN F. WYNNE, Judge

Kenneth Coleman “K.C.” Colley II appeals from a decree of divorce entered by the

Sebastian County Circuit Court. On appeal, he alleges a number of errors by the circuit court

in its calculation of his child-support obligation. Because the decree is not final, we dismiss

the appeal without prejudice.

The circuit court’s decree of divorce granted custody of the parties’ minor child to

appellee and set appellant’s child-support obligation at $900 per month. The decree also

awarded the parties certain items of property. However, Paragraph XIII of the decree states

[t]hat the Court finds that [appellee and appellant] shall have thirty (30) days to divide
the personal property acquired during the marriage. That, in the event [appellee and
appellant] fail to reach an agreement as to the division of the personal property, the
Court shall enter an Order directing the parties to sell all the personal property by
private auction.
Cite as 2014 Ark. App. 194

For a judgment to be final, it must dismiss the parties from the court, discharge them

from the action, or conclude their rights to the subject matter in controversy. Roberts v.

Roberts, 70 Ark. App. 94, 14 S.W.3d 529 (2000). Thus, the order must put the trial court’s

directive into execution, ending the litigation or a separable branch of it. Id. Here, the

decree is not final because it does not fully dispose of the parties’ property. Instead, it directs

them to come to an agreement, and requires them to return to the court for an order for the

property to be sold at auction if no agreement is reached.1 This renders the order not final

for the purpose of appeal. See Wadley v. Wadley, 2010 Ark. App. 733 (holding that a divorce

decree was not final when it ordered the parties to divide the remaining items of marital

property and to sell any property not divided within sixty days at public auction); see also Nix

v. Nix, 2014 Ark. App. 162, __ S.W.3d __. Therefore, we must dismiss the appeal without

prejudice for lack of a final order.

Dismissed.

GRUBER and WOOD, JJ., agree.

Ronald W. Metcalf, P.A., by: Ronald W. Metcalf, for appellant.

Gean, Gean & Gean, by: Roy Gean, III, for appellee.

1
The decree also states that K.C. shall continue to pay child support as ordered in the
temporary order until the court addresses the issue of child support on a final basis, despite the
fact that the award of child support in the decree appears to be a final determination and the
amount awarded in the decree differs from the amount awarded in the temporary order.

2