Opinion
No. CV-17-397
02-13-2019
VICKY BASS (NOW HAYNES) APPELLANT v. BENTON NED BASS APPELLEE
Richard E. Worsham, for appellant. Legacy Law Group, by: Bryan J. Reis, Michelle Strause, and Philip B. Montgomery, for appellee.
APPEAL FROM THE GARLAND COUNTY CIRCUIT COURT
[NO. 26DR-07-1156] HONORABLE F. RUSSELL ROGERS, SPECIAL JUDGE MOTION TO DISMISS GRANTED; MOTION FOR ATTORNEY'S FEES DENIED KENNETH S. HIXSON, Judge
This is an appeal from a divorce between Vicky Bass Haynes and Benton Ned Bass that has been pending since 2007. In this appeal, Vicky challenges several of the circuit court rulings. Additionally, we are called to address two motions Ned filed with our court—a motion to dismiss based on lack of finality and a motion for attorney's fees based on Vicky's alleged failure to comply with our briefing rules. Because we have determined that Ned's motion to dismiss must be granted, we dismiss this appeal without prejudice and deny the motion for attorney's fees.
This case began on December 26, 2007, when Vicky filed a complaint for divorce against Ned. The divorce was highly contested, and for various reasons, a trial on the merits of the divorce was not held until September 2013.
The circuit court entered a decree of divorce on January 24, 2014. The decree contained detailed findings on many of the contested issues in the divorce including, but not limited to, the disposition of some marital property and the division of some marital debt. Importantly, one of the provisions in the decree required Vicky to reimburse Ned for one-half of the debt service and related expenses he had paid on the marital property during the lengthy pendency of the divorce. Because the amount of the debt service and related expenses paid by Ned, and therefore the amount of reimbursement owed by Vicky, was complicated and disputed, the circuit court appointed CPA Marla Lammers in another provision of the divorce decree as a receiver to determine and verify these amounts. Specifically, paragraph 7 of the decree orders CPA Lammers to prepare and submit a report to the court "to accurately establish the debt service, insurance, taxes and maintenance paid by the defendant while this divorce has been pending[.] . . . The court shall receive and approve the report of the receiver, whereupon the defendant shall receive reimbursement for one half[.]" However, before CPA Lammers submitted her report, Vicky filed a notice of appeal. Our court subsequently dismissed the appeal without prejudice in February 2015, due to lack of a final order.
After the case was remanded to the circuit court, CPA Lammers compiled her report and submitted it to the court on May 20, 2015. On June 16, 2015, the circuit court distributed copies of CPA Lammers's report to the parties and instructed them that they had ten days to submit any objections. Vicky disagreed with CPA Lammers's report, and on June 26, 2015, Vicky filed an objection. On August 12, 2015, Vicky filed a motion for new trial or, in the alternative, motion to amend the court's findings of fact, seeking relief from the divorce decree that was entered on January 24, 2014.
Ultimately, on January 27, 2017, the circuit court entered an order that, inter alia, discussed the amount Vicky owed Ned for reimbursement of the debt service and related expenses he made on the marital property during the pendency of the divorce. The circuit court relied heavily on CPA Lammers's report in reaching its calculation of the amount Vicky owed. However, despite the details contained in CPA Lammers's report, there remained unanswered questions concerning the amount of the marital debt, the source of the payments, and the amount of Vicky's responsibility for reimbursing Ned. To further assist the court in making a final determination, the circuit court ordered CPA Lammers to amend her report as follows:
7. The Special Master, Marla Lammers, is hereby ordered to amend her Report to include revenue for NV International Investments, Inc., Winston Cup and Bass Management, Inc. during the accounting period as shown by the tax returns and K1's. In addition, the Special Master is hereby ordered to amend her report to identify any instance when an expense was paid by NV International Investments, Inc., Winston Cup or Bass Management, Inc. with a brief explanation, including what was paid, the amount and entity which has paid the expense.Several pending motions were also disposed of in this order including, but not limited to, denying Vicky's motion to strike the special master's report, motion to disqualify the special master, and motion for new trial.
At some point in the litigation, CPA Marla Lammers was referred to both as a receiver and a special master. We draw no distinction from the use of either moniker. --------
Instead of waiting for CPA Marla Lammers to amend her report as ordered by the court, Vicky filed another notice of appeal. One of Vicky's arguments in her brief on appeal in support of reversal is that the amount the circuit court ordered her to reimburse Ned for his expenses servicing the marital debt amounted to reversible error.
After the appeal was lodged with our court, Ned filed a motion to dismiss, arguing that our court is without jurisdiction to decide the merits of Vicky's appeal because the circuit court's orders are not final. He also filed a motion for attorney's fees based on Vicky's alleged noncompliance with Arkansas Supreme Court Rule 4-2.
We begin our analysis by considering Ned's motion to dismiss and acknowledge that this motion was originally presented to our court for a determination at a motion conference, and our court passed the motion to the panel. After a thorough review of the entire record by the panel, we hold that the motion is meritorious and dismiss this appeal for lack of finality.
Rule 2(a)(1) of the Arkansas Rules of Appellate Procedure-Civil governs finality and provides that an appeal may be taken from a final judgment or decree entered by the circuit court. This requirement is jurisdictional and necessary to avoid piecemeal litigation. Davis v. Davis, 2016 Ark. 64, 487 S.W.3d 803. For a judgment to be final and appealable, it must dismiss the parties from the court, discharge them from the action, or conclude their rights to the subject matter in controversy. Id. An order must not only decide the rights of the parties but also put the court's directive into execution, ending the litigation or a separable part of it. Id.
In his motion to dismiss, Ned argues that certain provisions in the January 2017 order preclude our court from exercising jurisdiction, and we agree. In particular, we are persuaded that paragraph seven of the January 2017 order results in a finality problem. That provision provides:
The Special Master, Marla Lammers, is hereby ordered to amend her Report to include revenue for NV International Investments, Inc., Winston Cup and Bass Management, Inc. during the accounting period as shown by the tax returns and K1's. In addition, the Special Master is hereby ordered to amend her Report to identify any instance when an expense was paid by NV International Investments, Inc., Winston Cup or Bass Management, Inc., with a brief explanation, including what was paid, the amount and the entity which has paid the expense.
In the January 2017 order, the circuit court requires Vicky to begin making payments to reimburse Ned for servicing the marital debt during the pendency of their divorce action and includes a specific sum of money owed by Vicky. CPA Lammers's report was used to reach the sum owed by Vicky. Irrespective of this finding, paragraph seven of the January 2017 order required Ms. Lammers to amend her report. Specifically, the circuit court sought clarification on whether certain expenses were paid by Ned or by corporations in which Ned was associated. The answer to this inquiry directly affected the amount that Vicky owed Ned for payments toward the marital debt service that he allegedly made. This provision contemplates further action by the circuit court in that CPA Lammers's report could be amended in a way that affected the amount Vicky was ordered to pay Ned. Thus, Vicky's and Ned's rights as they relate to the amount of money Vicky owes Ned for servicing the marital debt have not been fully adjudicated.
This is particularly problematic because, on appeal, Vicky challenges the amount of expenses awarded to Ned. It is impossible to fully dispose of that point on appeal if the circuit court has ordered an amendment to CPA Lammers's report, which may affect the amount Vicky owes Ned. Accordingly, we must dismiss the appeal without prejudice on this basis.
With this conclusion reached, we briefly turn our attention to Ned's motion for attorney's fees based on Vicky's alleged noncompliance with Arkansas Supreme Court Rule 4-2. In his motion, Ned contends that both Vicky's abstract and addendum were deficient and that he expended fees and costs to supplement the abstract and addendum such that our court could reach the merits of the appeal.
We deny Ned's motion for attorney's fees without engaging in any analysis on the merits of his motion. Arkansas Supreme Court Rule 4-2(b)(2) provides that in instances in which an appellant's abstract or addendum is insufficient, our court may, on motion, impose attorney's fees to compensate either party for noncompliance when the case is considered on the merits. Because we do not reach the merits of this appeal, Ned's motion for attorney's fees is denied.
Motion to dismiss granted; motion for attorney's fees denied.
GRUBER, C.J., and BROWN, J., agree.
Richard E. Worsham, for appellant.
Legacy Law Group, by: Bryan J. Reis, Michelle Strause, and Philip B. Montgomery, for appellee.