DIVISION II

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

WENDELL L. GRIFFEN, JUDGE

CA00-676

April 4, 2001

MERIDETH THOMAS AN APPEAL FROM LONOKE

APPELLANT COUNTY CHANCERY COURT

[E99-287]

V. HON. PHILLIP T. WHITEAKER,

CHANCELLOR

MIKE and CAROLYN THOMAS

APPELLEES APPEAL DISMISSED

Merideth Thomas appeals from the chancery order awarding temporary custody of her son to his paternal grandparents, Mike and Carolyn Thomas, appellees. She argues that the chancery court erred in finding that she was an unfit parent. We dismiss the appeal because the order appealed from is not final.

Appellant's former husband, Bobby Thomas, filed a divorce action on April 12, 1999, in which he sought custody of their son, Brandon, d.o.b. November 14, 1996. Appellant counterclaimed in the divorce action and also sought custody of their son. A hearing was held on the father's request for temporary relief on May 3, 1999. The chancellor found that it was in Brandon's best interest to continue to reside with his father in the Thomas's home until the final hearing. The court scheduled another hearing on February 3, 2000.

Prior to the February 3 hearing, appellees and Brandon's maternal grandparents filed motions to intervene, both of which were granted by the chancery court. At the February 3 hearing, Bobby Thomas withdrew his request for custody. On March 8, 2000, the chancellor entered an order finding that appellant and the father were unfit parents, and awarding temporary custody of Brandon to appellees until the court could schedule an additional hearing to determine which set of grandparents would be awarded permanent custody.

Although neither appellant nor appellee raise the issue, this cases presents the initial issue of whether the order entered on March 8 awarding temporary custody to appellees is a final, appealable order. Whether a final judgment, decree, or order exists is a jurisdictional issue that we have the duty to raise, even if the parties do not, to avoid piecemeal litigation. See Smith v. Smith, 337 Ark. 583, 990 S.W.2d 550 (1999). To be final and appealable, an order must dismiss the parties from the court, discharge them from the action, or conclude their rights to the subject matter in controversy. See Petrus v. Nature Conservancy, 330 Ark. 722, 957 S.W.2d 688 (1997). The order must be of such a nature as to not only decide the rights of the parties, but to put the court's directive into execution, ending the litigation or some separable part of it. See Budget Tire & Supply Co. v. First Nat'l Bank, 51 Ark. App. 188, 912 S.W.2d 938 (1995).

It is clear that a temporary custody order may be final for purposes of appeal where the parties have submitted their proof and there is no trial on the merits pending. See Walker v. Eldridge, 219 Ark. 594, 243 S.W.2d 638 (1951). In Eldridge, our supreme court held that an order awarding temporary custody to the a father was final for purposes of appeal, eventhough the order expressly stated it was temporary and subject to the court's further orders and its "own investigation." The Eldridge court found that was not a case in which the court awarded temporary custody pending a trial on the merits, because the parties had completed their proof and had submitted the matter to the chancellor for determination. Therefore, the chancellor's attempt to condition his decision on the outcome of his own investigation was in error and the court treated the order as final. See id.

By contrast, in Chancellor v. Chancellor, 282 Ark 227, 667 S.W.2d 950 (1984), the supreme court found a temporary custody order was not appealable where a trial on the merits was pending, where the mother had not been permitted to give all of her testimony, and where the court ordered a guardian at litem for the children and also ordered that home studies be conducted.

Here, the chancellor made it clear in his oral findings that he was reserving the issue of which set of grandparents should be awarded final custody of Brandon. We recognize that appellant has presented all of her proof, and that a trial on the merits of her fitness to have custody of Brandon has concluded. However, when the appeal was filed the chancellor had yet to determine which set of grandparents would have permanent custody of Brandon. Therefore, unlike the custody issue in Eldridge, and more akin to the custody issue in Chancellor, the issue of permanent custody had not been conclusively determined when appellant filed her appeal. We do not want to encourage piecemeal litigation in cases where the chancellor enters temporary custody orders. Therefore, we hold that the temporary custody order in this case was not a final, appealable order and we dismiss theappeal.

Appeal dismissed.

Crabtree and Baker, JJ., agree.