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Owen KELLY, Appellant v. Mandy KELLY, Appellee

Arkansas Supreme Court2016-02-25No. No. CV-15-231
483 S.W.3d 2962016 Ark. 72

Summary

Holding. The court vacated the court of appeals' opinion and remanded the case for further consideration, holding that the divorce decree constituted a final, appealable order because the circuit court's sale instructions for the marital home did not require additional judicial action.

Owen Kelly appealed a divorce decree in which the circuit court awarded his ex-wife Mandy Kelly alimony payments that would automatically increase as his child support obligations decreased over time. The circuit court calculated Mandy's monthly expenses at $16,659 and initially ordered Owen to pay $9,131 in alimony after accounting for $7,528 in child support. The decree contained escalation provisions: alimony would rise to $11,293 when child support for their daughter ended, and would further increase to $16,659 when all child support obligations ceased. The court of appeals had dismissed Owen's appeal, concluding the decree was not final because it required further action regarding the marital home. The state supreme court reversed this dismissal, holding that the divorce decree was final and appealable because the circuit court had made a complete disposition of the home by ordering its sale with specific procedures and timelines.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

  • Whether a divorce decree is final and appealable when it addresses alimony with automatic escalation provisions
  • Whether provisions directing property disposition with contingent alternative procedures require further judicial action

Procedural posture

Owen Kelly appealed from a circuit court divorce decree awarding alimony with automatic escalations; the court of appeals dismissed for lack of finality, and the state supreme court granted review.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion

majority opinion

HOWARD W. BRILL, Chief Justice

11 Appellant Owen Kelly appeals an order of the Washington County Circuit Court awarding alimony in two automatic escalations to appellee Mandy Kelly. For reversal, Owen- argues that the circuit court abused its discretion by ordering alimony in this manner. We vacate the opinion of the coprt of appeals and remand the appeal for further consideration.

Owen Kelly and Mandy Kelly married in April 1994. The parties have two children, a daughter born in November 1999, and a son born in October 2002. In June 2013, the Kellys separated and divorced by a decree entered on April 24, 2014. The circuit court awarded Mandy primary custody of the children and ordered Owen to pay $7,528 a month in child support beginning April 1, 2014. The circuit court ruled that Mandy’s monthly expenses totaled $16,659. The circuit court then subtracted the $7,528 award in child support afrom $16,659 and ordered Owen to pay $9,131 in alimony to begin April 1, 2014. The circuit court further stated as follows:

[I]f [Owen’s] child support obligation is subsequently reduced to $5,366.00 per month when he is no longer obligated to pay child support for [the parties’ daughter], his alimony obligation to [Mandy] shall increase to $11,293.00 per month, which is calculated as deducting $5,366.00 in child support from the monthly need of $16,659.00. Finally, when [Owen] no longer has a child support obligation for either of the minor children his monthly alimony obligation to [Mandy] shall then be $16,659.00 per month.

Additionally, with regard to the marital home, the circuit court ruled,

The court was requested to make disposition of the following marital assets and divides .the property as follows:

A. The former marital residence ... shall be reduced to tenants in common and continued to be offered for sale under the current listing agreement- until July • 15, 2014. If the home sells during this listing period, the parties shall each receive one-half of any net proceeds realized after payment of the outstanding mortgages, commissions and closing costs. If the home does not sell by July 15, 2014, then the circuit clerk of Pope County, Arkansas is appointed as Commissioner for purposes of public sale and after proper advertisement, the asset will be sold by auction on the courthouse steps. Likewise, the proceeds realized from said public auction shall be divided equally between the parties after the costs of the sale and payments of encumbrances.

On May 5, 2014, Owen timely filed his notice of appeal and sought to appeal the circuit court’s award of alimony. The. court of appeals held that the divorce decree was not final for purposes of appeal because it contemplated further action in regard to the residence and dismissed without prejudice. See Kelly v. Kelly, 2015 Ark.App. 147, 2015 WL 1000809. On March 19, 2015, Owen filed both a petition for rehearing in the court of appeals and a petition for review with this court. On July 23, 2015, we granted Owen’s petition for review.

We address the threshold issue of whether the circuit court’s order was a final, aappealable order. We deem it unnecessary to reiterate in this case the reasoning in the companion case bearing on these points, and we adopt and incorporate herein by reference the reasoning set forth in Davis v. Davis, 2016 Ark. 64, 2016 WL 675465. Here, the circuit court ordered a sale of the parties’ marital home by July 15, 2014, with equal division of the proceeds after payment of the outstanding mortgages, commissions, and closing costs, and included an. alternative; contingent disposition of a public sale by auction if the home did not sell by July 15, 2014. The instant decree does not specifically contemplate further judicial action nor does it direct the- parties to return to court for final resolution on any issue. Because the court made a final disposition regarding the parties’ marital home, we hold that the divorce decree was a final, appealable order.

Notwithstanding our grant of Owen’s petition for review, we now decline to consider the present appeal in light of our holding in Davis, 2016 Ark. 64, 2016 WL 675465. We therefore remand the appeal to the court of appeals.

Court of= appeals opinion vacated; remanded to the court of appeals for reconsideration.

Special Justices Daniel Greenberg and Chad Atwell join.

Danielson and Goodson, JJ., not participating.