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reversing and remanding for further consistent proceedings where other issues were affected by the reversal of the probate order regarding who should be appointed as the personal representative and administrator
Summary of this case from Patton v. FulmerOpinion
Dale Finley, Russellville, for appellant.
Jeff Mobley, Russellville, for appellee.
[298 Ark. 501-A] PER CURIAM.
Petition for rehearing denied.
GLAZE, Justice, dissenting.
Appellee's petition for rehearing should be granted. I expressed my views in this cause in my earlier dissent and would generally write no further. See Standridge v. Standridge, 298 Ark. 494, 499, 769 S.W.2d 12, 17 (1989) (Glaze, J., dissenting). I choose to write again in this instance mainly because I recently discovered certain legal authority that further demonstrates how off-the-mark the court was in interpreting ARCP Rule 58 and in reversing the trial court's decision.
To summarize, this court held that appellee's, Annie Standridge's, marriage to Carroll Standridge was invalid because at the time of that marriage, the court determined Annie was still married to Terry Thacker. The majority concluded that, although the chancellor had entered on his docket that the Thacker divorce was decreed, a separate written decree had not yet been filed or entered when the Standridge marriage took place. The court construed Rule 58 and Administrative Order 2 to mean that a court's order, decree or judgment is not final and effective until it is actually filed.
In my dissent, I referred to the Reporter's Notes to Rule 58 which related that the Rule's drafters intended to clarify that for appeal purposes, the date of entry or filing of the judgment or decree is the effective date, as opposed to the date of rendition. Rule 58 of the federal rules of procedure has been construed to this same effect. Although I failed to mention it in my dissent, the Supreme Court, in interpreting FRCP Rule 58, stated that the sole purpose of the separate-document requirement was to clarify when the time for appeals begins. Bankers Trust Co. v. Mallis, 435 U.S. 381, 98 S.Ct. 1117, 55 L.Ed.2d 357 (1978). Amplifying further, the Supreme [298 Ark. 501-B] Court stated the following:
The separate-document requirement was thus intended to avoid the inequities that were inherent when a party appealed from a document or docket entry that appeared to be a final judgment of the district court only to have the appellate court announce later that an earlier document or entry had been the judgment and dismiss the appeal as untimely. The 1963 amendment to Rule 58 made clear that a party need not file a notice of appeal until a separate judgment has been filed and entered. See United States v. Indrelunas, 411 U.S. 216, 220-222 [93 S.Ct. 1562, 1564-1565, 36 L.Ed.2d 202] (1973). Certainty as to timeliness, however, is not advanced by holding that appellate jurisdiction does not exist absent a separate judgment. If, by error, a separate judgment is not filed before a party appeals, nothing but delay would flow from requiring the court of appeals to dismiss the appeal. Upon dismissal, the district court would simply file and enter the separate judgment, from which a timely appeal would then be taken. Wheels would spin for no practical purpose.
In the Mallis case, the district court's decision, dismissing the action, had been recorded in the clerk's docket, but no separate judgment had been filed before an appeal was taken to the Court of Appeals. Nonetheless, the Court of Appeals decided the case on its merits and the Supreme Court held the Court of Appeals had jurisdiction to do so. See also Wrights&sMiller, Federal Practice and Procedure: Civil §§ 2781-2786 (1973). In sum, FRCP and ARCP Rules 58 establish that the appeal time commences when the court's judgment is filed; they are in no way intended to delay the effect of the court's decision once it is rendered.
To further emphasize the point, I note the case of Bethlehem Mines Corp. v. United Mine Wkrs. of Amer., 476 F.2d 860 (3rd.Cir.1973). There, the district court held several hearings during which it orally continued a temporary restraining order enjoining a strike. Subsequently, the district court, finding Local 1368 violated the court's restraining order, held Local 1368 in civil contempt. On appeal, Local 1368 challenged the court's contempt order, contending the court's restraining order had never been set forth on a separate document as required by Rule 58, and [298 Ark. 501-C] therefore the restraining order was ineffective. In holding the district court's failure to set forth its restraining order in a separate document did not preclude an adjudication of civil contempt, the Third Circuit Court of Appeals stated the following:
Rule 58, however, was intended primarily to clear up the uncertainties of determining when, for the purpose of appellate review, there is a final, appealable judgment. In addition, the purpose of Rule 58 is to insure that parties know what is required of them, that the public has notice of the entry of judgments, and that an appellate court has sufficient information upon which to base its review.
Under the facts of this case, none of these purposes of Rule 58 would be thwarted. There is no question involved of the time for filing an appeal or of any other matter dealing with an appeal. Defendant never attempted to appeal the granting of preliminary relief, nor has it alleged that it was in any way prevented from doing so. Moreover, the mere fact that the preliminary injunction was not in writing and set forth in a separate document has not been claimed, and, in the context of the present dispute, would not appear to prejudice anyone.
The parties were present in court, either personally or by counsel, during the hearings on the temporary restraining order, when the preliminary injunction was granted, and also in subsequent conferences with the judge. Because the oral preliminary injunction simply continued the earlier temporary restraining order which was set forth in a separate document, the record makes clear that the parties were fully aware of the existence and content of the injunction. No objection was made by the defendant to the granting of injunctive relief, nor was any appeal ever filed. Under these circumstances, we would be exalting form over substance if we were to hold that in failing to enter the preliminary injunction on a separate document, the district court thereby rendered itself powerless to adjudge violations in civil contempt. (Emphasis added.)
Bethlehem Mines Corp., 476 F.2d 860, 863 (citations omitted).
[298 Ark. 501-D] In the present case, the chancellor decreed Annie's divorce from Terry Thacker by entering it on the court's docket book. Both Annie and Terry understood they were divorced, no objection was made and no appeal was ever filed. The chancellor's decree included a custody award, and the chancellor's power to enforce the decree was not, and should not be, dependent upon a party or his or her attorney filing a separate document that merely reflects what the court previously decided. To give more effect to the separate-document requirement of Rule 58 was not intended and can only lead to a multitude of problems.
HOLT, C.J., and HAYS, J., join in this dissent.
PURTLE, J., not participating.