ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN B. ROBBINS, JUDGE

DIVISION IV

KATHY LAINE GORDON

HERRIMAN

APPELLANT

V.

ALFRED YEOMAN GORDON, JR.

APPELLEE

CA 00-1366

MAY 23, 2001

APPEAL FROM THE WASHINGTON

COUNTY CHANCERY COURT

[NO. E-92-1105]

HONORABLE WARREN O.

KIMBROUGH,

SPECIAL CHANCERY JUDGE

DISMISSED

Appellant Kathy Laine Gordon Herriman appeals an order of the Washington County Chancery Court entered on August 8, 2000, regarding her request for a retroactive modification of the amount of child support payable by her ex-husband, appellee Alfred Y. Gordon, and judgment for child support arrearages. Appellee cross appeals the order. However, because the order appealed from is not final, and thus we lack jurisdiction to hear it, we dismiss.

Upon the parties' divorce in 1993, the parties' only child was entrusted to appellant's custody, and appellee was ordered to pay child support in the amount of $400 per month. An agreed modification of the divorce decree was entered on January 18, 1995, and filed on May 9, 1995, increasing appellee's child support obligation to $565 per month beginning on

February 1, 1995. The 1995 agreed order further provided that because of appellee'suncertain income level during the following two years (1995-1996) due to a subsidized employment agreement, appellee would provide proof of his income, taxes, and withholding at the expiration of two years (1997) so that his child support obligation could be recalculated.

The years 1997 and 1998 passed, but pertinent income information was not forthcoming nor was any agreement reached as to the proper amount of child support then due. Appellant moved to modify the last order, filing her petition on July 13, 1999, and asked for an increase to $1078 per month in child support. She amended her petition in a pleading filed on September 30, 1999, requesting a determination of arrearage and for a judgment in the amount of $24,156 in retroactive child support regarding the years 1997, 1998, and 1999, that she alleged was contemplated by agreement in the 1995 order. Appellant also claimed that appellee had not complied with the agreed order by failing to provide income documentation as requested in 1997 or 1998. Appellee resisted the motion, arguing that appellant could not be entitled to any modification in child support earlier than July 13, 1999, when she filed for a modification. Appellee further disagreed on what his actual income for child support purposes was.

Appellee filed a motion for summary judgment, which appellant resisted. The motion was denied, and a hearing was conducted on the merits. The parties agreed prior to the hearing on what the prospective child support would be and on the amounts due for 1999 and 2000. Thus, the hearing was limited to a determination of what arrearage, if any, wasdue for the years 1997 and 1998. When the hearing concluded, the matter was taken under advisement.

On August 8, 2000, the chancellor issued the order from which both take appeal. In that order, the chancellor found that appellee failed and refused to comply with the agreed order of 1995 to provide documentation to appellant relative to appellee's income; that the child support was to be recalculated in 1997 and made retroactive to the date of the modification order dated January 18, 1995; that appellee should provide appellant documentation of his income for that period so that child support could be recalculated and that documentation in support of any credits or adjustments could be subtracted from amounts owing; and that appellant was awarded judgment therefor through the date of the filing of the petition for modification together with attorney's fees of ten percent and her costs. Appellee was ordered to keep appellant informed of his earnings income annually thereafter in order that child support can be verified to be current. Jurisdiction was "continued accordingly."

Appellant appeals and requests us to perform a de novo review and enter an order defining the amounts currently and past due, stating that all relevant information is before the court. Her arguments on appeal are that the chancellor clearly erred (1) in failing to order appellee to pay $1078 per month in prospective child support, and (2) in failing to render a judgment on child support arrearage for the years 1997 and 1998 in the amount of $17, 795. Appellee argues that the chancellor erred in ordering that he be responsible for anyretroactive child support prior to the July 13, 1999, petition for modification. Appellee does not contest that he agreed to prospectively pay $1078 per month.

Though neither party brings the issue to our attention, we lack jurisdiction to consider this appeal because the order is not final. Although some might characterize jurisdiction as only a technicality, without it we are powerless to act. See Lester v. Lester, 48 Ark. App. 40, 889 S.W.2d 42 (1994). For an order to be appealable, it must in some way determine or discontinue the action. Ark. R. App. P. - Civ. 2(a)(2). The final order must put the chancellor's directive into execution, ending the litigation or at least a separable portion of it. Petrus v. Nature Conservancy, 330 Ark. 722, 957 S.W.2d 688 (1997); Festinger v. Kantor, 264 Ark. 275, 571 S.W.2d 82 (1978); Morgan v. Morgan, 8 Ark. App. 346, 652 S.W.2d 57 (1983). The order must dismiss the parties from the court, discharge them from the action, or conclude their rights to the subject matter that is in controversy. Morgan, supra. Even though the parties do not raise the issue, the finality of an order for purposes of appeal is a jurisdictional issue that we have a right and duty to raise in order to avoid piecemeal litigation. Hyatt v. City of Bentonville, 275 Ark. 210, 628 S.W.2d 326 (1982); Roberts v. Roberts, 70 Ark. App. 94, 14 S.W.3d 529 (2000).

In Morgan, supra, we dismissed an appeal regarding a child support arrearage dispute when, even though the chancellor clearly arrived at a figure of past-due support, the decree on appeal failed to render judgment for that agreed amount; the order was not final. Likewise, in Office of Child Support Enforcement v. Oliver, 324 Ark. 447, 921 S.W.2d 602 (1996), the supreme court held that an order establishing that an arrearage existed did notfinally resolve and conclude the proceeding, even though there was no controversy as to the amount of the arrearage. The appeal was dismissed as lacking finality.

In the order before us now, the chancellor failed to render judgment on the agreed prospective support rate and failed to render a judgment in a sum certain for the support arrearage. Thus, the decree is not final for purposes of appellate review, and we lack the power to act upon it.

Appeal dismissed.

Jennings and Baker, JJ., agree.