{ "id": 1900903, "name": "Mary Anne STEPHENS v. Jackson T. STEPHENS", "name_abbreviation": "Stephens v. Stephens", "decision_date": "1991-06-10", "docket_number": "91-94", "first_page": "59", "last_page": "63", "citations": [ { "type": "official", "cite": "306 Ark. 59" }, { "type": "parallel", "cite": "810 S.W.2d 946" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "281 Ark. 152", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1742350 ], "weight": 2, "year": 1983, "opinion_index": 0, "case_paths": [ "/ark/281/0152-01" ] }, { "cite": "5 Ark. App. 300", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6143038 ], "weight": 2, "year": 1982, "opinion_index": 0, "case_paths": [ "/ark-app/5/0300-01" ] }, { "cite": "20 Ark. App. 209", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6650444 ], "weight": 2, "year": 1987, "opinion_index": 0, "case_paths": [ "/ark-app/20/0209-01" ] }, { "cite": "275 Ark. 210", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1753656 ], "weight": 2, "year": 1982, "opinion_index": 0, "case_paths": [ "/ark/275/0210-01" ] }, { "cite": "273 Ark. 32", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8717298 ], "weight": 2, "year": 1981, "opinion_index": 0, "case_paths": [ "/ark/273/0032-01" ] }, { "cite": "300 Ark. 435", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1886746 ], "weight": 2, "year": 1989, "opinion_index": 0, "case_paths": [ "/ark/300/0435-01" ] }, { "cite": "289 Ark. 373", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1875356 ], "weight": 2, "year": 1986, "opinion_index": 0, "case_paths": [ "/ark/289/0373-01" ] }, { "cite": "300 Ark. 126", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1886730 ], "weight": 2, "year": 1989, "opinion_index": 0, "case_paths": [ "/ark/300/0126-01" ] }, { "cite": "302 Ark. 154", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1884240 ], "weight": 2, "year": 1990, "opinion_index": 0, "case_paths": [ "/ark/302/0154-01" ] }, { "cite": "304 Ark. 671", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1881046 ], "weight": 2, "year": 1991, "opinion_index": 0, "case_paths": [ "/ark/304/0671-01" ] }, { "cite": "305 Ark. 49", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1916720 ], "weight": 2, "year": 1991, "opinion_index": 0, "case_paths": [ "/ark/305/0049-01" ] }, { "cite": "Ark. Code Ann. \u00a7 16-13-318", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 2, "year": 1987, "opinion_index": 0 }, { "cite": "264 Ark. 275", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1669003 ], "weight": 2, "year": 1978, "opinion_index": 2, "case_paths": [ "/ark/264/0275-01" ] }, { "cite": "Ark. Code Ann. \u00a7 16-10-105", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1987, "opinion_index": 2 }, { "cite": "Ark. Code Ann. \u00a7 16-13-318", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1987, "opinion_index": 2 } ], "analysis": { "cardinality": 597, "char_count": 8759, "ocr_confidence": 0.881, "pagerank": { "raw": 3.275369857577674e-07, "percentile": 0.8703324016187817 }, "sha256": "36314369a0d46327f0ae90cc95a217931d7faf8baee3240f10da94e0eae969f1", "simhash": "1:43ce52ad8c2a329d", "word_count": 1463 }, "last_updated": "2023-07-14T15:19:57.276738+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Glaze, J., concurs; Corbin, J., not participating." ], "parties": [ "Mary Anne STEPHENS v. Jackson T. STEPHENS" ], "opinions": [ { "text": "Per Curiam.\nAppellant Mary Anne Stephens (defendant below) brings this interlocutory appeal from the following orders;\nOrder of March 12, 1991\nOrder of March 14, 1991\nRestraining Order of April 1, 1991\nOrder for Attorney\u2019s Fees of April 11, 1991\nAppellant Jackson T. Stephens has moved to dismiss the appeal on the grounds that appellant\u2019s Notice of Appeal, filed on April 12,1991, is untimely as to the March 12 order. Moreover, he contends the orders appealed from are interlocutory and not appealable under Arkansas Rules of Appellate Procedure, Rule 2.\nThe order of March 12 contains findings of fact and conclusions of law in response to a request by the plaintiff for a protective order as to discovery matters and for closed hearings and trial. Citing Rule 26(c) of the Arkansas Rules of Civil Procedure, which gives the trial court broad authority to enter protective orders, and Ark. Code Ann. \u00a7 16-13-318 (1987), empowering chancery courts in domestic cases either upon application of all litigants or upon their own initiative, to hear such matters in chambers, the trial court found and concluded that such orders should be entered. The order of March 14, styled \u201cProtective Order\u201d constitutes the protective order adverted to in the March 12 order.\nThe order of April 1 is responsive to motions of both parties for restraining orders and generally enjoins either party from disposing of or removing from this jurisdiction any property belonging to the parties except by agreement, ordinary course of business or further orders of the court. \u201cOrdinary course of business\u201d is defined as including transactional moves in both parties\u2019 stock and bond trading accounts at Stephens, Inc., including buying and selling of stocks or bonds and payments of calls and dividends to prevent a loss or realize a gain and for the general preservation of the assets reflected by these accounts. The order directs Stephens, Inc. to hold all assets of either party in trust pending a final determination as to ownership.\nThe order of April 11 is in response to defendant\u2019s petition for attorney\u2019s fees and recites that some $80,000 has been expended to date on attorney\u2019s fees. The order recognizes the plaintiffs ability to pay suit money and the propriety of both parties having legal and accounting services. The order finds that $400 per hour for defendant\u2019s New York counsel is not reasonable by Arkansas standards, that the defendant will be responsible for such portion of attorney\u2019s fees from her separate assets but that such out-of-state fees would be considered by the court in the final disposition of assets. The order directs each party to submit monthly requests for fees and costs as they accrue and refers to the final disposition of the case as a determinant of fees.\nAppellee\u2019s motion to dismiss, as we have noted, is grounded on the premise that these orders merely establish the procedures by which the chancellor will administer this divorce case during discovery and trial and do not finally resolve any separable part of this action. Appellee cites John Cheeseman Trucking, Inc. v. Dougan, 305 Ark. 49, 805 S.W.2d 69 (1991); Ricks Pro Dive 'N Ski Shop v. Jennings-Lemon, 304 Ark. 671, 803 S.W.2d 934 (1991); Arkansas Department of Human Services v. Lopez; 302 Ark. 154, 787 S.W.2d 686 (1990); Tate v. Sharp, 300 Ark. 126, 777 S.W.2d 215 (1989); Budd v. Davis, 289 Ark. 373, 711 S.W.2d 478 (1986).\nAppellant responds that these orders are \u201cinjunctive in nature\u201d and therefore appealable under Rule 2. We disagree with that contention. We note that the orders restrain both parties from disposing of marital assets and do not purport to affect one party more or less than the other. They appear to be the type of preliminary order entered routinely in divorce suits and are expressly subject to further orders of the court as the case evolves. Appellant has not shown how the orders operate with finality in any sense and we can conceive of none.\nThere is a clear and distinct thread that binds our cases relative to appealability and that is that the order must end the litigation or some separable branch of it. See generally, Malone & Hyde, Inc. v. West & Co. of L.A., Inc., 300 Ark. 435, 780 S.W.2d 13 (1989); Cash v. Cash, 273 Ark. 32, 616 S.W.2d 13 (1981); Hyatt v. City of Bentonville, 275 Ark. 210, 628 S.W.2d 326 (1982); Bonner v. Sikes, 20 Ark. App. 209, 727 S.W.2d 144 (1987); Scoff v. Scoff, 5 Ark. App. 300, 635 S.W.2d 292 (1982).\nAppellant contends that Ark. Code Ann. \u00a7 16-13-318 (1987), permitting private hearings in divorce actions is unconstitutional, citing Arkansas Television Co. v. Tedder, 281 Ark. 152, 662 S.W.2d 174 (1983). But the issue in Tedder was the extent to which the media can be denied access to a criminal trial and has only scant relevance to this case. Suffice it to say that we are unwilling to address the constitutionality of a legislative enactment in the context of a summary review of the appealability of interlocutory orders, particularly when the Attorney General has been afforded no opportunity to defend those enactments. Arkansas Code Ann \u00a7 16-111 -106(b) (1987). If there is an appeal after this case is finally concluded at the trial level, and the defendant can demonstrate prejudicial error attributable to the orders of March 12 or March 14, we see no reason it cannot be corrected in conventional fashion, by reversal and remand.\nFor the reasons stated, the appeal is dismissed.", "type": "majority", "author": "Per Curiam." }, { "text": "Newbern, J.,\ndissents and would permit the appeal on the basis of Ark. R. App. P. 2(a)(6);\nGlaze, J., concurs; Corbin, J., not participating.", "type": "dissent", "author": "Newbern, J.," }, { "text": "Tom Glaze, Justice,\nconcurring. Among other things, the appellant seeks to appeal the lower court\u2019s order closing all proceedings of the parties\u2019 divorce pursuant to Ark. Code Ann. \u00a7 16-13-318 (1987). She claims the closure is violative of her First Amendment rights to an open trial which, she argues, the state guarantees under Ark. Code Ann. \u00a7 16-10-105 (1987). Appellee responds the lower court\u2019s order is interlocutory, not final, and therefore not applicable. While I agree with the majority that the appellant has no right to appeal under ARAP Rule 2, I write to express my concerns.\nThe chancellor\u2019s rejection of the appellant\u2019s First Amendment argument effectively eliminates any right she might have to an open trial. True, if she chooses later to appeal from the chancellor\u2019s decree on the merits, appellant can then raise her First Amendment issue. But, even if this court agrees with her argument, this court generally decides chancery cases on de novo review, thereby avoiding further trial proceedings below. Thus, while appellant might prevail in her constitutional argument on appeal, the decision granting her an open trial, most likely, would prove moot as to her.\nAppellant suggests that, because the chancellor\u2019s closure ruling effectively precludes her from obtaining an enforceable decision granting her an open trial, she should be able to appeal under Rule 2(a)(2) of the Arkansas Rules of Appellate Procedure. However, that rule provides that an appeal may be taken from an order which in effect determines the action and prevents a judgment from which an appeal might be taken, or discontinues the action. Of course, the chancellor\u2019s closure order here in no way determines the parties\u2019 action even though it might be argued the appellant is effectively prevented from appealing the order. Such difficulty for appellant aside, her request to appeal under the circumstances described simply fails to come within the terms set out in Rule 2(a)(2). Nor can she appeal under the terms of Rule 2(a)(1) because the chancellor\u2019s order fails to put the court\u2019s directive into execution, ending the litigation or a separable branch of it. Festinger v. Kantor, 264 Ark. 275, 571 S.W.2d 82 (1978).\nFor the above reasons, I agree with the court\u2019s decision to dismiss the appeal. The parties, of course, are free to better develop below the First Amendment \u2014 Right of Privacy constitutional arguments posed in this attempted appeal so this court can consider the constitutionality of \u00a7 16-13-318 in any future appeal from the lower court\u2019s decree in this case.\nOf course, if appellant prevailed on appeal, the earlier closed trial proceeding, which is required to be reported in its entirety, would become open in the sense that a transcript would then be available. See In the Matter of Administrative Order Number 4, per curiam (May 6, 1991).", "type": "concurrence", "author": "Tom Glaze, Justice," } ], "attorneys": [ "Philip E. Dixon, W. Michael Reif, Norman Sheresky, and Lisa Roday, for appellant.", "C.J. Giroir, Jr., Sam Hilburn, Kenneth R. Shermin, Jerry C. Jones, and Judson C. Kidd, for appellee." ], "corrections": "", "head_matter": "Mary Anne STEPHENS v. Jackson T. STEPHENS\n91-94\n810 S.W.2d 946\nSupreme Court of Arkansas\nOpinion delivered June 10, 1991\nPhilip E. Dixon, W. Michael Reif, Norman Sheresky, and Lisa Roday, for appellant.\nC.J. Giroir, Jr., Sam Hilburn, Kenneth R. Shermin, Jerry C. Jones, and Judson C. Kidd, for appellee." }, "file_name": "0059-01", "first_page_order": 83, "last_page_order": 87 }