Lade Thomas Conlee, Jr. v. Jennifer Conlee
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Lade Thomas CONLEE, Jr. v. Jennifer CONLEE
05743
___ S.W.3d ___
Supreme Court of Arkansas
Opinion delivered May 18, 2006
MOTIONS – MOTION TO DISMISS NOTICES OF APPEAL – MOTION DENIED. – Where the
appellant’s third and fourth notices of appeal were timely filed within the thirty days
of the orders from which he appealed, as required under Ark. R. App. P. – Civ. 4(a),
the supreme court concluded that appellant timely appealed the postdivorce decree
issues presented in the orders being appealed and denied the appellee’s motion to
dismiss, with directions to the parties that the divorce decree could not be disturbed
except to enforce its terms.
Motion to Dismiss Appellant’s Notices of Appeal Dated September 7, 2005, and
September 16, 2005; motion denied.
Dodds, Kidd & Ryan, by: Stephanie Chamberlin, for appellant.
Shepherd & Allred, by: Allison R. Allred, for appellee.
PER CURIAM. On March 17, 2006, appellee, Jennifer Conlee (“Jennifer”), filed a
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CONLEE v. CONLEE
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motion to dismiss the third and fourth notices of appeal filed by appellant, Lade Thomas
Conlee, Jr. (“Tom”). Jennifer requests that we grant her motion and asks that we dismiss the
two notices of appeal dated September 7, 2005, and September 16, 2005, respectively.
A full recitation of the facts in this case is provided in Conlee v. Conlee, ___ Ark.
___, ___ S.W.3d ___ (May 11, 2006). On March 8, 2005, the circuit court entered a divorce
decree, and on March 18, 2005, Tom filed a notice of appeal. On March 25, 2005, Tom,
who retained another attorney, filed a second notice of appeal. The circuit court invalidated
the first notice of appeal and ruled that the second notice of appeal was timely. On June 29,
2005, Tom filed the record, but our clerk refused to lodge the record, stating that the record
was due on June 16, 2005. We reversed and dismissed the circuit court’s ruling, holding that
the record should have been filed by June 16, 2005, within ninety days of the first notice of
appeal under Rule 5(a). Id. On July 6, 2005, Tom filed a motion for rule on clerk, which
we denied on May 11, 2006.
The parties continued to litigate postdecree issues. Tom filed a third notice of appeal
on September 7, 2005, appealing a September 2, 2005, contempt order and “any other
contempt orders filed prior to September 2, 2005.” There were two September 2, 2005,
orders. In the first September 2, 2005, order, filed at 9:05 a.m., the circuit court ordered and
directed Tom to appear at a showcause hearing, and the circuit court stated that Tom
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“agreed to tender a check for the sum of $11,640.62 . . . representing partial payment for
certain obligations” as set forth in the divorce decree. In the second September 2, 2005,
order, filed at 4:31 p.m., the circuit court ruled that Tom was in contempt of court and
ordered him to be incarcerated for a period of seven days.
On September 16, 2005, Tom filed an amended notice of appeal, his fourth notice of
appeal, which appealed an order of clarification entered on September 8, 2005. In the
September 8, 2005, order of clarification, the circuit court denied Tom’s motion to rescind
pick up order and body attachment and found that he had failed to comply with three
conditions in the divorce decree. The circuit court reduced his sentence to seven days rather
than the fourteen days ordered in the divorce decree. The court reserved ruling on Jennifer’s
motion for contempt and ordered Tom to sell his vehicle.
On November 30, 2005, Tom sought an order granting an extension of time to file the
record, and on December 1, 2005, the circuit court extended the time to January 31, 2006.
Tom tendered a supplemental record on January 31, 2006. On February 3, 2006, he filed a
motion for stay and a motion to supplement the record, as well as a motion to correct the
supplemental record, and we denied both motions by letter order on February 23, 2006.
In the present case, Tom’s third and fourth notices of appeal were timely filed within
the thirty days of the September 2 and September 8 orders, as required under Ark. R. App.
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CONLEE v. CONLEE
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P.–Civ. 4(a). Rule 3(e) of the Arkansas Rules of Appellate Procedure–Civil provides that
a notice of appeal or crossappeal “shall designate the judgment, decree, order or part thereof
appealed from . . . [.]” Id. Orders not mentioned in a notice of appeal are not properly before
the appellate court. Ark. R. App. P. – Civ. 3(e); see also Aka v. Jefferson Hosp. Ass'n, Inc.,
69 Ark. App. 395, 13 S.W.3d 224 (2000); Ark. Dep’t of Human Servs. v. Shipman, 25 Ark.
App. 247, 756 S.W.2d 930 (1988).
Here, the third notice of appeal designates the case number, “DR 20042590, together
with the transcript of all proceedings held on September 2, 2005,” and “any other contempt
hearings filed prior to September 2, 2005.” There were two orders entered on September 2,
2005; however, the language designating “all proceedings held on September 2, 2005" is
sufficient to include both September 2 orders. See Jasper v. Johnny’s Pizza, 305 Ark. 318,
807 S.W.2d 664 (1991). Further, Tom timely filed his amended, or fourth, notice of appeal
and appeals the order of clarification entered on September 8, 2005, pursuant to Ark. R. Civ.
P.–Civ. 3(e). The September 8, 2005, order contains rulings that relate back to the divorce
decree, as well as postdecree rulings.
Jennifer argues that the record is not timely filed. From the third notice of appeal, the
record would have been due on December 6, 2005. On December 1, 2005, the circuit court
entered an order extending the time to file the record to January 31, 2006, and the
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CONLEE v. CONLEE
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supplemental record was tendered on that date. While the record indicated that the contempt
matter began as early as February 8, 2005, prior to the divorce decree, the timeliness of the
appeal was not raised in Jennifer’s motion.
We conclude that Tom timely appealed the postdecree issues presented in the
September 2, 2005, and September 8, 2005, orders. Matters settled in the March 8, 2005,
divorce decree may not be the subject of the appeal in this case. See Conlee, supra. Thus,
Jennifer’s motion is denied with directions to the parties that the March 8 divorce decree may
not be disturbed except to enforce its terms.
Motion denied.
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PER CURIAM 10
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