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ARKANSAS COURT OF APPEALS DIVISION III No. CV-14-974

MARTY FLOW Opinion Delivered JUNE 17, 2015 APPELLANT APPEAL FROM THE BOONE V. COUNTY CIRCUIT COURT [NOS. DR2011-264-4/DR2012-575-3]

KRISTI TURNER HONORABLE GORDON WEBB, APPELLEE JUDGE

APPEAL DISMISSED

CLIFF HOOFMAN, Judge

Appellant Marty Flow appeals from the circuit court’s May 2, 2014 order denying his

petition to modify visitation with his daughter, S.F. On appeal, Flow argues that the circuit

court erred in finding that there had not been a material change in circumstances since the

entry of the parties’ divorce decree. We must dismiss this appeal, however, because Flow’s

notice of appeal was untimely with respect to the May 2, 2014 order.

Flow and appellee Kristi Turner were divorced pursuant to a decree entered on

January 26, 2012. Turner was awarded primary custody of the parties’ only child, then

three-year-old S.F., and Flow received visitation rights. Flow’s visitation was restricted to

daytime visits for the months of January, February, and March 2012. The decree stated that,

starting in April 2012, he was to receive one four-day, three-night visit with S.F. each month

in either Harrison, Arkansas, or at the home of T.J. Noble in Branson, Missouri. The decree

specifically provided that Flow was not permitted to take S.F. to Louisiana or to any other Cite as

location other than Branson or Harrison.

On December 21, 2012, Turner filed a petition for contempt, to terminate visitation,

and for an ex parte order. She alleged that Flow had violated the terms of the divorce decree

by taking S.F. to Bradley, Arkansas, and to Louisiana; that he had refused to allow phone calls

between S.F. and Turner; and that he had failed to pay spousal support as ordered. Turner

further stated that she had obtained a protective order against Flow based on allegations that

S.F. had been abused during the October 2012 visitation, and she sought an emergency ex

parte order terminating Flow’s visitation.

On May 29, 2013, Flow filed a petition to resume visitation and to modify the

restricted visitation set forth in the parties’ decree. He asserted that the allegations against

him of maltreatment had been found to be unsubstantiated, that Turner was not justified in

obtaining the order of protection against him, and that Turner’s attempts to alienate S.F.

from him were having a detrimental effect on the child. Based on Turner’s conduct and on

his improved circumstances, Flow alleged that there had been a material change of

circumstances since the entry of the divorce decree.

On October 16, 2013, Flow filed an amended answer to Turner’s petition for

contempt, to terminate visitation, and for an ex parte order. He also attached the agency

decision finding that the allegations of maltreatment were unsubstantiated. Turner then filed

a second petition for contempt and a petition to review Flow’s child-support obligation on

October 22, 2013.

A hearing was held on November 4, 2013, and the circuit court addressed the issues

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of whether Turner was entitled to a permanent order of protection, whether Flow was in

contempt of the parties’ divorce decree by violating the visitation restrictions, and whether

Flow was entitled to a resumption or modification of his visitation with S.F. On May 2,

2014, the circuit court entered an order denying and dismissing Turner’s petition for a

permanent order of protection; finding that Flow was in willful contempt of the divorce

decree; finding that Flow had failed to meet his burden of proof to show that a material

change in circumstances had occurred to modify visitation; and reinstating the visitation

arrangements in the divorce decree. The court stated that the “Amended Answer to the

Petition for Contempt and a Petition to Terminate Visitation and a Petition for Ex Parte

Order” had been filed but was not being ruled upon because the issues were not ripe for

determination at that time. The court also directed Flow’s counsel to submit a proposed

order for Arkansas Rule of Civil Procedure 54(b) certification for its consideration, although

no such certificate is attached to the court’s order.

On July 18, 2014, Turner filed a motion to nonsuit her remaining claims, and the

circuit court granted her motion in an order entered the same day, dismissing all issues

pending before the court without prejudice. On August 14, 2014, Flow filed a notice of

appeal, stating that he was appealing “the Order dated November 4, 2013, and entered

herein on May 2, 2014.” Flow also indicated in his notice of appeal that he was abandoning

any pending but unresolved claims.

The sole issue presented by Flow on appeal is whether the circuit court erred in finding

that there had not been a material change in circumstances since the entry of the parties’

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divorce decree to warrant a modification of visitation. In her brief, Turner responds by

arguing that this appeal should be dismissed for lack of a final order, or in the alternative, that

it should be dismissed because Flow’s notice of appeal was untimely.

Pursuant to our supreme court’s decision in Sloan v. Arkansas Rural Medical Practice Loan

& Scholarship Board,

,

(2007), the issue of whether an order is

final and appealable pursuant to Arkansas Rule of Appellate Procedure–Civil 2 (2014) is

always secondary to whether a timely notice of appeal and record has been filed under

Arkansas Rule of Appellate Procedure–Civil 4(a) (2014). See also In re Estate of Stinnett,

,

; Fire Systems Tech., Inc. v. First Community Bank of Crawford Cnty.,

, ___ S.W.3d ___. Thus, we first determine whether this appeal must be

dismissed because Flow did not file a timely notice of appeal from the May 2, 2014 order.

Arkansas Rule of Appellate Procedure–Civil 4(a) states that “a notice of appeal shall

be filed within thirty (30) days from the judgment, decree or order appealed from.” The

timely filing of a notice of appeal is a threshold jurisdictional issue that we must raise even if

the parties do not. In re Estate of Stinnett, supra;

U.S. Bank, N.A. v. Milburn,

,

(2003).

Flow’s notice of appeal was filed on August 14, 2014, and it designated the only order

being appealed from as “the Order dated November 4, 2013, and entered herein on May 2,

2014.” Because the notice of appeal was filed more than thirty days from the order appealed

from, it was untimely under Rule 4(a). Although Flow argues that his notice of appeal was

timely with respect to the circuit court’s July 18, 2014 order dismissing Turner’s claims

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without prejudice, he did not designate the July 18 order in his notice of appeal. According

to Arkansas Rule of Appellate Procedure–Civil 3(e), a notice of appeal “shall designate the

judgment, decree, order or part thereof appealed from.” In interpreting this rule, our

appellate courts have held that orders not mentioned in the notice of appeal are not properly

before us. Lindsay v. Green,

,

; In re Estate of Reimer,

. Accordingly, because there was not a timely notice of appeal filed with respect to

the only order being challenged on appeal, we lack jurisdiction and must dismiss this appeal.

Appeal dismissed.

KINARD and WHITEAKER, JJ., agree.

Taylor Law Partners, LLP, by: Stevan E. Vowell, for appellant.

Flinn Law Firm, P.A., by: Jennifer Williams Flinn, for appellee.

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