author: Jack Holt, Jr., Chief Justice.

text:
    Betty MASON v. James MASON
    94-568
    895 S.W.2d 513
    Supreme Court of Arkansas
    Opinion delivered March 13, 1995
    [Rehearing denied April 10, 1995.]

      Janice Wegener Vaughn, for appellant.

      Malcolm R. Smith. P.A., for appellee.
   Jack Holt, Jr., Chief Justice.

The appellant, Betty Mason, appeals the Arkansas County Chancery Court’s denial of her motion for new trial, amendment of judgment, and relief from the trial court’s division of marital property, accompanying a decree of divorce. The chancellor found, among other things, that appellee James Mason’s Riceland Foods disability benefits and Social Security benefits were not marital property subject to division between the parties under Ark. Code Ann. § 9-12-313(b) as amended by Act 676 of 1987 and Act 1167 of 1991. We accept jurisdiction of this case pursuant to Supreme Court Rule l-2(a)(3) because it involves the interpretation and construction of these two acts of the general assembly.

Mrs. Mason raises four points on appeal: (1) whether the chancery court erred in refusing to divide Mr. Mason’s Riceland Foods disability benefits; (2) whether the chancery court erred in not dividing the parties’ Social Security benefits; (3) whether the chancery court erred in awarding an unequal, and much smaller, portion of the parties’ marital assets to Mrs. Mason; (4) whether the chancery court erred in finding that the $75,000 James Mason Trust was funded with inherited funds and thus the separate property of Mr. Mason.

We hold that the chancellor erred in parcelling out the marital property by treating Mr. Mason’s disability retirement benefits as exempt from division and in ¿warding an unequal share of assets to the parties without providing a more detailed rationale for doing so. Consequently, we reverse and remand the matter for further proceedings consistent with this opinion.

Facts

James and Betty Mason were married on November 6,1946. Living in Stuttgart, Arkansas, they reared five children over a thirty-eight-year period. In addition to holding other jobs, Mr. Mason was employed for many years by Riceland Foods, Inc., where he rose to an executive position. During the early years of the marriage, Mrs. Mason worked at home as a housewife and mother but occasionally worked outside the home, as well. In 1975, she opened Mason Realty Company, a successful real estate business.

While serving in the South Pacific during World War II, Mr. Mason was wounded three times; one of the wounds resulted in fragmented vertebrae. A shrapnel injury subsequently required surgery. By the 1970s, when he was employed by Riceland Foods, Mr. Mason began having recurrent problems with pain. He lost the use of his left arm and ultimately underwent five operations. Two surgical procedures entailed the fusing of neck vertebrae and another two the fusing of lower-back vertebrae.

In 1980, after his fifth back operation, Mr. Mason applied for a disability determination under the Riceland Foods Disability Insurance Plan. He was approved and, having retired from the company, received disability payments until he reached actual retirement age.

Mr. and Mrs. Mason separated on September 21, 1984, and Mrs. Mason subsequently filed for divorce. At that time, she disposed of her real estate business and moved to Little Rock. Mr. Mason was then receiving monthly income from the Riceland disability plan as well as a monthly Social Security disability payment. Nine years later, when an absolute divorce was granted, most of the disability payments had been converted to a retirement plan, though some of the disability payments continued under what the chancellor termed in a letter opinion “a complicated company disability and retirement plan.”

Hearings in this matter began in September and October 1986. A trial on the merits was conducted on October 29, 1986. After some testimony was taken and some exhibits introduced, the parties announced that they had reached a settlement agreement, which later collapsed. Further hearings were held on March 1, 1988, and on August 1, 1988.

On November 7, 1988, the chancellor filed a letter opinion in which he found that Mrs. Mason was entitled to a divorce but not to an award of alimony. The letter opinion contained numerous findings concerning the parties’ income and assets, including a finding that Mr. Mason currently received $3,402.41 per month in Riceland disability benefits as well as $706 in monthly Social Security disability payments. The chancellor also found that Mason Realty Company, Mrs. Mason’s enterprise, had, as of March 1, 1988, $321,627.28 in liquid assets. Regarding the disability incomes, the chancery court found that the benefits constituted marital property under Ark. Code Ann. § 9-12-315(b)(6), not being based on either a workers’ compensation or personal injury claim and, in any event, not being for any degree of permanent disability or future medical expenses. Mrs. Mason, the court determined, was entitled to receive one-half of Mr. Mason’s Riceland and Social Security disability payments. The chancellor found that the Mason Realty assets were marital property subject to equal division, and that alimony was not warranted. Additionally, the court concluded that the James Mason Trust was funded with inheritance money received by Mr. Mason from his mother and was, therefore, not marital property.

Although the chancellor had stated in his letter opinion that Mrs. Mason was entitled to a divorce, a decree of divorce and property division was not entered of record. Instead, the chancellor granted Mr. Mason’s request that a Master be appointed to ascertain, for purposes of distribution, the assets of the parties based on the accumulation and expenditure of assets since the previous court orders. A Master was appointed on August 16, 1989, and completed his report on August 18, 1992.

Meanwhile, on September 25, 1991, Mr. Mason filed a motion requesting that the chancery court reopen the issue of whether the Riceland disability benefits were marital property in light of recent amendments to Ark. Code Ann. § 9-12-315(b)(6) regarding marital-property exemptions and allow the introduction of an evidentiary deposition of Mr. Mason’s physician for the purpose of showing that the disability was permanent. He asserted that, because Act 1167 of 1991, codified at § 9-12-315(b)(6), excluded benefits for Social Security claims from the statutory definition of marital property, the case should be reopened for additional evidence.

The chancery court reopened the matter, and, on August 24, 1992, further proceedings were held. At that time, Mr. Mason testified about the permanency of his disability. He was also permitted to introduce the deposition of his physician, Dr. Stephen D. Holt, who stated that Mr. Mason’s disability was permanent.

On January 26, 1993, the chancellor issued a second opinion letter, filed on February 1, 1993, in which he reiterated his view that Mrs. Mason was not entitled to alimony. He ordered the marital home and other real estate to be sold at public auction. Noting that no final order or decree had been filed granting a divorce to the parties or a division of their property and that the law on marital-property exemptions had changed since his November 1988 letter opinion, the chancellor revised his earlier conclusion, finding that, under the amended § 9-12-315(b)(6), Mr. Mason’s Riceland and Social Security benefits were for “permanent disability” and therefore outside the category of marital benefits to be evenly distributed.

Since, however, most of the disability payments had by then been converted to retirement benefits due to the fact that Mr. Mason had attained sixty-five years of age, the court found that the retirement-plan payments were marital property and were to be equally divided. Both parties were allowed to continue to draw their own Social Security payments.

As in the November 1988 letter opinion, the chancellor found that the Mason Realty Company assets were marital property to be divided equally and that the James Mason Trust was funded through an inheritance from Mr. Mason’s mother and thus not marital property. Regarding the apparently unequal distribution of property and incomes in Mr. Mason’s favor, the chancery court observed that it had considered Mr. Mason’s amounts and sources of income and his estate and liabilities, “along with the fact that Mrs. Mason has lived on a substantial amount of marital income during the pendency of the divorce.”

The court found it equitable that Mr. Mason should keep all of his non-marital property and his equal share of marital property, while allowing Mrs. Mason to have the use of marital income and her equal share of the marital property. The chancellor further found that, based on the entire record, there should be no equalization between the parties regarding expenditures and that Mrs. Mason would not be required to account to Mr. Mason for her expenditures, nor would he be required to account to her for his.

On October 18, 1993, a formal decree of divorce was entered. Mrs. Mason then filed a motion for new trial, amendment of judgment, and relief from decree, which was denied by the chancery court on November 24, 1993. From that order, this appeal arises.

/. Riceland Foods disability benefits

Mrs. Mason subdivides her first argument into three sub-points.

a. Whether the Riceland Foods disability plan fits within the statutory exceptions to marital property

According to Mrs. Mason, the Riceland Foods disability benefits do not fit within the exceptions to the definition of marital property set forth in Ark. Code Ann. § 9-12-315(b)(6) (Repl. 1993). Under Ark. Code Ann. § 9-12-315(a), at the time a divorce decree is entered, the chancery court must distribute all martial property “one-half (1/2) to each party unless the court finds such a division to be inequitable.” The term “marital property” is defined in § 9-12-315(b) as “all property acquired by either spouse subsequent to the marriage” with certain specified exceptions. Among those are the exceptions presently in question, listed in subsection (b)(6):

Benefits received or to be received from a workers’ compensation claim, personal injury claim, or social security claim when those benefits are for any degree of permanent disability or future medical expenses. . . .

This statutory subsection, on which the chancellor relied in his February 1993 letter opinion, incorporates two amendments. Act 676 of 1987 excepted workers’ compensation and personal injury claims when those benefits are for any degree of permanent disability or future medical expenses. Act 1167 of 1991 added an exception for Social Security claims.

As noted earlier, Mr. Mason began receiving disability payments from Riceland Foods in 1980. Dr. Stephen D. Holt characterized Mr. Mason’s condition as chronic pain syndrome due to arthritis, hypothyroidism, and nerve damage from scar tissue. The benefits were derived from a disability policy purchased by Riceland, with contributions from Mr. Mason, during the marriage of the parties. As previously indicated, at the time of the separation, Mr. Mason received, for his own use, monthly disability payments amounting to $3,401.21.

Mr. Mason turned sixty-five during the course of the divorce proceedings, and most of the disability benefits were then converted into retirement benefits. Mrs. Mason contends that the chancellor erred in failing to find that the Riceland disability payments made to Mr. Mason, up to retirement age and that portion remaining since constitute marital property subject to equal distribution.

Mr. Mason counters that his physical problems had their origins in his World War II injuries, which were aggravated in the 1970s during his tenure at Riceland by his loss of the use of his left arm and a work-related fall. He asserts that the disability payments resulted from these injuries, sustained prior to and during his employment with Riceland, and insists that the benefits fall squarely within the exception set forth in Ark. Code Ann. § 9-12-315(b)(6). The implication is that the disability benefits were based on a “personal injury claim.”

This court held, in Day v. Day, 281 Ark. 261, 663 S.W.2d 719 (1984), that retirement benefits were marital property. In Morrison v. Morrison, 286 Ark. 353, 692 S.W.2d 601 (1985), we recognized that disability benefits also constituted marital property, analogizing them to the pension benefits in the Day case. “There is no meaningful distinction,” we noted, “between an annuity payable upon disability and one payable upon longevity.” 286 Ark. at 355, 692 S.W.2d at 602-3.

The court of appeals, in Dunn v. Dunn, 35 Ark. App. 89, 811 S.W.2d 336 (1991), reversed a chancellor’s finding that a divorced husband’s disability income was not marital property. Summarizing its view of the matter, the appellate court declared:

Under the circumstances, where the appellee’s employer during the marriage provided a long-term disability insurance plan for its executives; where these benefits were in lieu of workers’ compensation, and were not awarded as benefits for a permanent disability or for future medical costs; and where the disability entitling the appellee to collect the benefits provided by the plan occurred during the marriage; we hold that the property was acquired during the marriage and furthermore, is marital property as defined by the statute [Ark. Code Ann. § 9-12-315(b)].

35 Ark. App. at 93, 811 S.W.2d at 339.

In Clayton v. Clayton, 297 Ark. 342, 760 S.W.2d 875 (1988), this court reversed a chancellor’s finding that an unliquidated personal injury claim under the Federal Employers’ Liability Act (FELA) was not marital property under § 9-12-315(b)(6). We emphasized that Act 676 of 1987 “excepted from marital property only those benefits from an unliquidated personal injury claim that would be for any degree of permanent disability or future medical expenses.” 297 Ark. at 344, 760 S.W.2d at 877. Apart from those specific benefits, we continued, “the remaining benefits or elements of damage from one’s personal injury claim are subject to division as marital property pursuant to Ark. Code Ann. § 9-12-315(a)(1)(A).” Id. The case was remanded for a determination of which benefits from the FELA claim were to be considered marital property.

Clearly, then, the mere labeling of a claim as “personal injury” does not satisfy the requirement for exemption from marital property. It is necessary that the claim be for a degree of permanent disability or future medical expenses. At first glance, Mr. Mason’s claim would seem to fit the category. His physician, Dr. Holt, wrote in 1983 that Mr. Mason was “permanently impaired from any type of gainful employment at present or any time in the future.” He had not changed his opinion by the time he testified in 1992. Thus, it might be possible to distinguish Mr. Mason’s position from that of the appellee in Dunn v. Dunn, supra, where the court of appeals noted, in holding that disability payments were marital property, that the payments at issue were not for a permanent disability.

But the crux of the matter here lies in the antecedent term “personal injury,” which has been defined, in relevant part, as

a hurt or damage done to a man’s person, such as a cut or bruise, a broken limb, or the like, as distinguished from an injury to his property or his reputation. The phrase is chiefly used in this connection with actions of tort for negligence and under worker’s compensation statutes.

Black’s Law Dictionary 786 (6th ed. 1990). (Emphasis in original.)

The Clayton case involved an on-the-job injury for which the party had made a claim under FELA. In the present case, as Mr. Mason acknowledges, the ultimate source of his disability can be traced back to the wounds he suffered in World War II rather than to a specific “personal injury” sustained while in the employ of Riceland Foods or in consequence of a tortious act. Although he did experience a work-related fall at Riceland, that injury merely exacerbated the pain he already suffered and admittedly was not the principal cause of the permanent disability. The workers’ compensation exception in § 9-12-315(b)(6) addresses the aggravation of pre-existing conditions.

To equate Mr. Mason’s long-term physical condition with a “personal injury” would be to stretch the concept to the point of meaninglessness. Instead, the accounts given of his problems suggest the term “bodily injury,” which is defined as “[pjhysical pain, illness or any impairment of physical condition.” Black’s Law Dictionary 786 (6th ed. 1990).

For these reasons, we hold that Mr. Mason’s claim for his physical condition does not constitute a claim for “personal injury” as contemplated by Ark. Code Ann. § 9-12-315(b)(6) and therefore does not fall within the statutory marital-property exemption. We reverse and remand the matter to the chancellor for an equal division of Mr. Mason’s Riceland Foods disability benefits.

b. Whether the chancery court erred in finding that Mr. Mason’s disability benefits were for a permanent disability

The second subsection under Mrs. Mason’s first point for reversal is an argument in the alternative. She urges that, even if the Riceland Foods disability plan comes within the exceptions of Ark. Code Ann. § 9-12-315(b)(6), the chancellor erred in finding that Mr. Mason’s Riceland disability benefits were for a permanent disability.

In his 1988 letter opinion, the chancellor found that Mr. Mason had not provided any evidence that the Riceland and Social Security benefits were for permanent diability or future medical expenses. After reopening the case and receiving the deposition of Dr. Holt, the chancellor found, in his 1993 letter opinion and decree, that the benefits were for a “permanent disability.”

Mrs. Mason urges that the record shows that neither her former husband’s condition nor his treatment had undergone a major change since Dr. Holt’s first deposition in 1986 and that Mr. Mason continued to work (as Chairman of the Board of the Department of Correction) until 1992. These factors, she contends, indicate that Mr. Mason did not suffer from a “permanent disability.”

On the other hand, in the 1992 deposition, Dr. Holt described Mr. Mason’s neurological problems as “permanent in nature.” The purpose of treatment at this point, Dr. Holt opined, would be limited to assisting Mr. Mason in learning how to deal with a permanent injury.

Given the emphatic tone of the physician’s 1992 deposition and the chancellor’s position as finder of fact, it cannot be said that the chancery court erred in finding that Mr. Mason’s Riceland Foods benefits were for a permanent disability.

c. Whether the chancery court erred in reopening the case four years after a final decision strictly for the narrow purpose of allowing Mr. Mason to submit a second evidentiary deposition of his physician.

As recited earlier, on November 7, 1988, the chancellor entered his findings of fact and conclusions of law in the present case. No final decree was filed. Later, on August 24, 1992, the chancellor reopened the matter, in the light of the statutory changes, to allow Mr. Mason to introduce the deposition of his physician, Dr. Holt, concerning the permanency of the disability.

Mrs. Mason contends that the chancellor erred in reopening the case because the chancellor’s decision in 1988 was final, despite the absence of a formal entry of a divorce decree, which, she insists, was delayed by her former husband’s actions. Yet, as this court has explained:

The decisions, opinions, and findings of a court do not constitute a judgment or decree. They merely form the bases upon which the judgment or decree is subsequently to be rendered and are not conclusive unless incorporated in a judgment or a judgment be entered thereon. . . . They are more in the nature of the verdict of a jury and no more a judgment than such a verdict.

Thomas v. McElroy, 243 Ark. 465, 469-70, 420 S.W.2d 530, 533 (1967).

We have held that a chancellor is vested with the discretion to reopen a case before the entry of a final decree upon the record. Kennedy v. Kennedy, 243 Ark. 773, 421 S.W.2d 611 (1967). Before doing so, however, the court must afford both parties the opportunity to be heard on the matter. Tackett v. First Savings of Arkansas, 306 Ark. 15, 810 S.W.2d 927 (1991). Here, both parties briefed the issue. The chancellor, not having entered a final decree pursuant to Ark. R. Civ. P. 58, did not err in reopening the case to permit introduction of Dr. Holt’s deposition.

II. Social Security benefits

In her second point for reversal, Mrs. Mason contends that the chancery court erred in not dividing the parties’ Social Security benefits. The issue is readily resolved by an examination of Ark. Code Ann. § 9-12-315(b)(6), which plainly exempts from marital property “Benefits received or to be received from a . . . social security claim when those benefits are for any degree of permanent disability or future medical expenses.”

The chancellor did not make a finding with respect to the permanency of disability in the context of Social Security benefits, but it was unnecessary for him to do so as he had found Mr. Mason’s disability permanent in connection with the Rice-land Foods benefits. Therefore, the exemption requirement was satisfied for both purposes, and the chancery court did not err in not dividing the parties’ Social Security benefits.

III. Unequal division of marital assets

For her third point for her reversal, Mrs. Mason argues that the chancellor erred in awarding her an unequal, and much smaller, portion of the parties’ marital assets. She asserts that during the nine years that the divorce action was pending, the chancery court consistently ruled that the parties would be required to account for all income and assets acquired or spent during their separation. Yet, she maintains, while an accounting was required of her, Mr. Mason, who she alleges spent approximately $600,000 during the pendency of the action, was not compelled to account for his expenditures and was allowed to keep as his own separate property everything he purchased in that period.

Mrs. Mason notes that, from the outset, Mr. Mason was permitted to live on his retirement income and his Social Security benefits as well as on one-half of the parties’ joint marital rental income. She states that she, on the other hand, was obliged to live on interest income from both her Mason Realty assets and the other marital assets in her hands as well as one-half of the joint marital rental income.

Arkansas family law provides that:

All marital property shall be distributed one-half (1/2) to each party unless the court finds such a division to be inequitable. In that event the court shall make some other division that the court deems equitable taking into consideration:
(i) The length of the marriage;
(ii) Age, health, and station in life of the parties;
(iii) Occupation of the parties;
(iv) Amount and sources of income;
(v) Vocational skills;
(vi) Employability;
(vii) Estate, liabilities, and needs of each party and opportunity of each for further acquisition of capital assets and income;
(viii) Contribution of each party in acquisition, preservation, or appreciation of marital property, including services as a homemaker; and
(ix) The federal income tax consequences of the court’s division of property.

Ark. Code Ann. § 9-12-315(a)(1)(A) (Repl. 1993).

The chancellor outlined and addressed each of these factors in his 1993 letter opinion. Based on the entire record and with particular reference to the nine statutory considerations, the chancellor found that “there should be no equalization between the parties as to expenditures. Mrs. Mason will not be required to account to Mr. Mason for her expenditures and he shall not be required to account to her for his.”

The chancellor weighed Mr. Mason’s amounts and sources of income and his estate and liabilities against the fact that Mrs. Mason had lived on a substantial amount of marital income during the progress of the divorce action. “When all things are considered,” he wrote, “equity should allow Mr. Mason to keep all of his non-marital property, while allowing Mrs. Mason to have the use of the marital income and her equal share of the marital property.”

It appears that the chancellor was endeavoring to balance the equities to the extent possible, granting the use of marital income to Mrs. Mason by way of compensation for allowing Mr. Mason to keep the disability benefits, rental income, and other non-marital property. Mrs. Mason insists, however, that despite having received the use of marital income, her income was still less than Mr. Mason’s ($293,205.64 compared to $803,325.68, according to her figures). Moreover, she points out, the chancellor only took into account income from September 1984, when the parties separated, through July 1991.

The chancellor is given broad powers to distribute all of the parties’ property in a divorce action in order to achieve an equitable distribution. Dunn v. Dunn, supra. In the Dunn case, the court of appeals noted that, having decided to remand the case, it was unnecessary to address the argument that the court had erred in making an unequal division of the parties’ joint savings account. The appellate court remanded the case to the chancellor for a full resolution of the issue of property rights.

In the present case, we have determined that the matter must be reversed and remanded on the issue of the Riceland Foods disability benefits. Although, on de novo review, we have conducted our own examination of the parties’ expenditures and the division of marital assets, scrutinizing the transcript of the proceedings, we have concluded that the record in this appeal does not provide sufficient evidence for us to reach a conclusion. In view of these circumstances, we are of the opinion that fairness requires our remand of this cause to permit both parties to develop their evidence regarding the equitable distribution of marital property. Wilson v. Wilson, 294 Ark. 194, 741 S.W.2d 640 (1987). We therefore remand this issue to the chancery court for a complete resolution of questions pertaining to the unequal distribution of marital assets.

Our decision to remand on the third point is based on other, compelling considerations. The chancellor’s findings with regard to the division of marital property are couched in general terms, with few figures cited. Further, as Mrs. Mason correctly notes, the chancellor relied on calculations in the Master’s report, which covered only the years 1984 to 1991.

To some extent, the division of Riceland Foods disability benefits will remedy any existing inequities in the chancellor’s distribution of assets. On remand, we direct the chancellor to extend the period for the income and expenditure calculation to the date of the divorce decree and to resolve all outstanding questions relating to the unequal distribution of marital property.

IV. Funding of James Mason Trust

Finally, Mrs. Mason argues that the chancery court erred in finding that “[t]he James Mason Trust was funded with funds and property received by Mr. Mason through his inheritance from his mother” and, therefore, not marital property. Property received by gift, bequest, devise, or descent is not marital property subject to equal division upon divorce. Ark. Code Ann. § 9-12-315(b)(l) (Repl. 1993); Gorchik v. Gorchik, 10 Ark. App. 331, 663 S.W.2d 941 (1984), overruled on other grounds in Liles v. Liles, 289 Ark. 159, 711 S.W.2d 447 (1986). Mrs. Mason cites Aldridge v. Aldridge, 28 Ark. App. 175, 773 S.W.2d 103 (1989), for the principle that the burden is on the party who asserts an interest in property to establish that it is in fact separate property not subject to division.

At the time that the chancery court’s decree was entered, the James Mason Trust contained the amount of $75,000. This figure, Mrs. Mason maintains, is substantially more than the $34,066.67 shown by the probate records to have been his share of his mother’s estate. Mrs. Mason urges that the chancery court should have required Mr. Mason to account for the funds over and above the $34,066.66 from his mother.

According to Mr. Mason’s testimony, he received $30,000 from his mother’s will, another $30,000 in cash from his father, and $15,000 from the sale of his mother’s house. On that basis, the chancellor made his finding. Although appellate courts review chancery cases de novo on the record, a decree is not reversed unless the chancellor’s findings are clearly erroneous or clearly against a preponderance of the evidence, and, because the question of preponderance turns heavily on the credibility of the witnesses, deference is accorded the superior position of the chancellor in this regard. Gorchik v. Gorchik, supra. It cannot be said that the chancellor’s finding that the James Mason Trust was Mr. Mason’s personal property was clearly erroneous.

Conclusion

The chancellor, in his decree, made particular note of the fact that the findings, conclusions, and divisions of marital property were based on the entire decision rendered in this case and that a change in the status of one could very well result in a change in the status of the other. “Should the case be appealed,” he declared, “and all or part of the decision is overturned, my opinion regarding the Findings, Conclusions, and division of property may be different.”

In a similar vein, in Wilson v. Wilson, supra, where we reversed and remanded a chancellor’s erroneous rulings on the division of a party’s incentive bonus and valued interest in a company for which he worked, we noted that “[b]ecause these property interests must be reconsidered by the chancellor, we are aware that any readjustment of these interests also might affect his earlier decision concerning the issue of alimony.” 294 Ark. at 206, 741 S.W.2d at 647.

In sum, we hold that the chancellor erred in finding that the Riceland Foods disability benefits were statutorily exempted from the category of marital property and that the matter must be reversed and remanded for an equal division of the benefits in question. As stated above, we review chancery cases de novo on the record. Williams v. Ashley, 319 Ark. 197, 890 S.W.2d 260 (1995). Here, we have examined the record at length in an effort to resolve all outstanding matters in this appeal. After careful study, we have determined that the record provides insufficient evidence to enable us to reach a conclusion and that, in fairness, we must remand as well for the purpose of allowing the parties to develop their evidence on the proper distribution of marital property. Wilson v. Wilson, supra.

Therefore, we reverse and remand this case to the chancellor for further proceedings consistent with this opinion, directing him to reconsider and remedy, if necessary, any existing inequities in the distribution of assets (extending the period for the income and expenditure calculations to the date of the divorce decree) and to resolve any and all remaining questions relating to the unequal distribution of marital property.

Corbin, J., not participating.


source: Caselaw Access Project

license: Public Domain

text:
    Ronald PENN and Toby Tia Ellis v. STATE of Arkansas
    CR 94-1198
    894 S.W.2d 597
    Supreme Court of Arkansas
    Opinion delivered March 13, 1995

      Rice, Adams & Pace, by: Kelly M. Pace, for appellant Penn.

      William R. Simpson, Jr., Public Defender, by: Sandra S. Cordi, Deputy Public Defender, for appellant Ellis.

      Winston Bryant, Att’y Gen., by: Kelly K. Hill, Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

The appellants, Ronald Penn and Toby Tia Ellis, were convicted of two counts of aggravated robbery and two counts of first-degree battery perpetrated against Garcia Horace and Dwayne Dolphus, for which Ellis was sentenced to a forty-year cumulative term of imprisonment, and Penn a thirty-year cumulative term. Although their arguments vary on appeal, both Penn and Ellis assert that the trial court erred in refusing to grant their motions for directed verdict. We affirm, as neither appellant properly presented or preserved the issues at trial which he now attempts to raise for purposes of his appeal.

In reaching our conclusion, we note that a directed verdict motion is treated as a challenge to the sufficiency of the evidence and requires the movant to apprise the trial court of the specific basis on which the motion is made. Campbell v. State, 319 Ark. 332, 891 S.W.2d 55 (1995). See also Daffron v. State, 318 Ark. 182, 885 S.W.2d 3 (1994); Walker v. State, 318 Ark. 107, 883 S.W.2d 831 (1994); Stricklin v. State, 318 Ark. 36, 883 S.W.2d 465 (1994).

Moreover, we have repeatedly held that arguments not raised at trial will not be addressed for the first time on appeal, and that parties cannot change the grounds for an objection on appeal, but are bound by the scope and nature of the objections and arguments presented at trial. Campbell v. State, supra; Stricklin v. State, supra. The reasoning underlying our holdings is that when specific grounds are stated and the absent proof is pinpointed, the trial court can either grant the motion, or if justice requires, allow the State to reopen its case and supply the missing proof. Brown v. State, 316 Ark. 724, 875 S.W.2d 828 (1994); Standridge v. City of Hot Springs, 271 Ark. 754, 610 S.W.2d 574 (1981). We have further held that to preserve the issue of the sufficiency of the evidence in a criminal case, the appellant must move for a directed verdict both at the close of the State’s case and at the close of all of the entire case. Jones v. State, 318 Ark. 704, 889 S.W.2d 706 (1994).

Appellant Ellis

Appellant Ellis maintains that there was insufficient evidence to find him guilty of the aggravated robbery alleged to have been committed against Dolphus. In response, the State asserts, and we agree, that Ellis’s argument was not properly preserved for our review as his motion for directed verdict was not premised on the specific grounds now argued on appeal. In addition, we note that he did not properly renew his motion for directed verdict.

At the close of the State’s case, Ellis’s attorney stated as follows:

Your Honor, we would make the motion for a directed verdict. First of all — I mean, outright on both counts as to Mr. Ellis. The State has not met their burden of proof as to the charge of aggravated robbery or as to the charge of battery first or in the alternative a reduction on the counts from aggravated robbery to simple robbery and from battery first to battery in the second degree because there was no medical testimony. There was just the testimony of the two victims that stated the extent of their injuries.

In examining the content of this motion, it is clear to us that the specific ground articulated to the trial court related to the fact that there was no medical testimony concerning the victims’ injuries. Ellis did not argue, as he does now on appeal, that the State failed to establish a particular element of the aggravated robbery charge — that he committed or intended to commit a theft against Dolphus. In addition, at the close of all the evidence, counsel for Ellis merely stated, “At this time we rest and renew all our motions previously made,” to which the trial court replied, “All right. I show your motions made; same rulings.”

The failure of Ellis’s defense counsel to include the argument that he neither took nor intended to take property from Dolphus as a ground for directed verdict, or to renew the motion at the close of the entire case, rendered the motion insufficient to preserve his argument for our review. See Jones v. State, supra; Daffron v. State, supra.

Appellant Penn

Appellant Penn contends that the trial court erred in denying his motion for directed verdict and asserts two specific grounds on appeal in support of his position that the evidence was insufficient: (1) that the State failed to prove positively that he was Ellis’s co-defendant or that he perpetrated the crimes; and (2) that the State failed to prove that either victim sustained “serious physical injury” as a result of a gunshot fired by him.

Immediately following Ellis’s motion for directed verdict at the close of the State’s case, counsel for Penn stated as follows:

And, Your Honor, I would make the same motion as far as Ronald Penn with the addition that there’s been actually no testimony identifying Ronald — convincing testimony that Ronald Penn was the one that was there with Toby Ellis.

As Penn did not argue at the trial level the specific ground that the State failed to prove that either victim sustained “serious physical injury” as a result of a gunshot fired by him, this argument is not available to him for purposes of appeal. See Campbell v. State, supra; Stricklin v. State, supra. Granted, Penn did argue that there was insufficient evidence to identify him as the perpetrator, yet he did not renew his motion at the close of all the evidence. After testimony was received from the sole witness for the defense, Detective Randy Reaves, the following exchange took place:

ATTORNEY FOR ELLIS: That’s all the witnesses we have for Mr. Ellis, Your Honor. At this time we rest and renew all of our motions previously made.
THE COURT: All right. I show your motions made; same rulings. Ms. Pace?
ATTORNEY FOR PENN: Your Honor, I would ask that Detective Reaves testimony apply to Mr. Penn as well, and we have no further testimony.

Counsel for Penn did not renew her motion for directed verdict at the close of all the evidence, and, as such, her earlier motion is waived and will not be considered on appeal. See Jones v. State, supra.

Simply put, since neither Ellis nor Penn preserved his position challenging the sufficiency of the evidence on appeal, we do not reach the merits of their arguments.

Affirmed.


author: Robert H. Dudley, Justice.

text:
    James MASSENGALE v. STATE of Arkansas
    CR 94-1444
    894 S.W.2d 594
    Supreme Court of Arkansas
    Opinion delivered March 13, 1995

      Gardner, Putman & Miner, by: John Putman, for appellant.

      Winston Bryant, Att’y Gen., by: Kent G. Holt, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

Appellant was convicted in municipal court of driving while intoxicated and refusing to submit to a breathalyzer test. He appealed to circuit court where he was again convicted of both offenses. He appealed to the court of appeals where his convictions were affirmed in a nonpublished opinion. The holding of the opinion was that his evidentiary argument was not preserved for appeal because he failed to object to the admission of the evidence after the trial court declined to rule on his motion in limine. He petitioned the court of appeals for rehearing. Rehearing was denied on a tie vote. Massengale v. State, 48 Ark. App. 19, 21, 888 S.W.2d 317, 318 (1994) (supplemental opinion denying rehearing). Appellant petitioned this court for review. We granted a review because of the tie vote. See Ark. Sup. Ct. R. l-2(f). Appellant’s points of appeal go only to the conviction for driving while intoxicated. We affirm.

As appellant left a nightclub, a state trooper heard him race the engine of his pickup truck, heard his tires squeal, and saw him cross the center line of a highway. The trooper stopped him, smelled the odor of alcohol, and s.aw a half-empty case of beer in the bed of the truck. Appellant told the officer that he had only drunk three or four cans of beer.

The trooper told appellant that he would administer some field sobriety tests. Appellant responded that he could not perform tests that involved walking because of a problem with his leg. The trooper gave appellant a portable breathalyzer test which showed an “unsatisfactory result,” or a need for further testing. The trooper next administered a horizontal gaze-nystagmus test. Appellant failed to perform it satisfactorily. The trooper then gave appellant two fingertip tests. Appellant could not complete the second one because he said his leg hurt. At that point the trooper gave appellant a second portable breathalyzer test, which again showed an unsatisfactory result. The trooper arrested appellant for driving while intoxicated and took him to the local police station where appellant refused to take a breath test on a certified breathalyzer machine.

Prior to his trial in circuit court, appellant filed a motion in limine and sought to exclude evidence about the portable breathalyzer tests and the horizontal gaze-nystagmus test. His written motion and his argument were based upon the fact that the portable breathalyzer tests were not approved by the Arkansas State Board of Health, as required by statute for admission. See Ark. Code Ann. § 5-65-206(c) (Repl. 1993).

He additionally urged the trial court to prohibit any mention of the portable breathalyzer tests because such evidence would be more prejudicial than probative. Separately he argued that the horizontal gaze-nystagmus test has not been shown to be valid. Appellant now concedes that the horizontal gaze-nystagmus test is valid, see Whitson v. State, 314 Ark. 458, 863 S.W.2d 794 (1993), and we do not further discuss that test. Just before the trial commenced, in ruling on both motions, the trial court stated, “I’ll just take up the objection. It will be timely made. I’m not going to grant the motion in limine.”

The purpose of a motion in limine, sometimes called a threshold motion because in limine literally means “at the threshold,” is to obtain a ruling excluding given evidence before any mention of the evidence is made before the jury or until the trial court has sufficient legal and factual information to make a ruling on the admissibility of that evidence. A trial court has the requisite authority under A.R.E. Rules 401, 402, 403 and Rules 102, 103, and 104 to hear and rule on the motions. Many such motions are intended to exclude evidence, even though relevant, because it is likely to cause undue prejudice, or mislead the jurors.

When a motion in limine is filed, a trial judge will usually make one of three rulings. One, he may grant the motion, and the evidence will not be admitted. Two, he may decline to rule on the motion for various reasons; for example, the motion may be too broad. See, e.g., Schichtl v. Slack, 293 Ark. 281, 737 S.W.2d 628 (1987). In that case it is necessary for counsel to make a specific objection during the trial. Brown v. State, 316 Ark. 724, 875 S.W.2d 828 (1994). Third, he may deny the motion. A motion in limine which is denied preserves the issue for appeal and no further objection is required. Ward v. State, 272 Ark. 99, 612 S.W.2d 118 (1981).

While it is not clear whether the trial court’s ruling was a denial of both motions, or a refusal to rule on the motions, it was most likely a refusal to rule on the motions before the trial commenced. The trial court was probably aware that a portable breathalyzer test might be admissible as exculpatory evidence by a defendant, see Patrick v. State, 295 Ark. 473, 750 S.W.2d 391 (1988), or might be admissible to show probable cause, and thus chose to wait to hear all of the facts before ruling.

During the State’s case-in-chief, the prosecutor asked the trooper if results of field sobriety tests were confirmed with breathalyzers. Appellant’s counsel objected. The trial court sustained the objection. When the officer began to talk about requiring appellant to take a portable breathalzyer test, counsel again objected, and the trial court overruled the objection. Appellant did not object to the trooper’s subsequent statement that the result of appellant’s portable breathalyzer test was “unsatisfactory,” and he did not object to the trooper’s later statement that he gave a second portable breathalyzer test and the result of it was also unsatisfactory.

In summary, in his motion in limine, appellant made a specific objection about any evidence about use of the portable breathalyzer and then, at the first opportunity during the trial, made another specific objection about testimony of any use of the portable breathalyzer tests. The trial court’s rulings admitted the evidence. Under these facts we hold that appellant made a timely objection to the first portable breathalyzer test and the issue was preserved as to the first test.

A chemical analysis that has not been certified by the Department of Health is not admissible as evidence of driving while intoxicated. Ark. Code Ann. § 5-65-206(c) & (d) (Repl. 1993); see also Patrick, 295 Ark. at 477, 750 S.W.2d at 393. Portable breathalyzer tests have not been certified by the Department of Health. Thus, the ruling of the trial court admitting the evidence of the portable breathalyzer test was erroneous. However, the error was harmless.

Section 5-65-102(1) of the Arkansas Code Annotated makes it unlawful to be in physical control of a vehicle while “influenced or affected by the ingestion of alcohol,... to such a degree that the driver’s reactions, motor skills, and judgment are substantially altered, and ... the driver constitutes a clear and substantial danger of physical injury or death to himself and other motorists or pedestrians.” Id..; see also § 5-65-103(a). In this case, the trooper testified that appellant operated the vehicle in an erratic manner by spinning his tires and crossing the center line and that appellant smelled of alcohol. The trooper testified to appellant’s erratic behavior, which ranged from cooperative to belligerent. There was a half-empty case of beer in the bed of the truck. Appellant admitted that he drank three or four cans of beer. The evidence of the horizontal gaze-nystagmus test was admissible as evidence of some impairment due to alcohol. See Whitson, 314 Ark. at 464, 863 S.W.2d at 797. Appellant could not satisfactorily perform a simple fingertip test. Finally, appellant refused to take the certified breathalyzer test, which can be considered as circumstantial evidence showing consciousness of guilt. Spicer v. State, 32 Ark. App. 209, 799 S.W.2d 562 (1990). Under these facts showing overwhelming evidence of guilt, we have no hesitancy in holding that the ruling admitting evidence of an “unsatisfactory result” from a portable breathalyzer test was harmless.

This case is similar to Tallant v. State, 42 Ark. App. 150, 856 S.W.2d 24 (1993), where the appellant argued that his conviction for negligent homicide as the result of driving while intoxicated should be reversed because the court erroneously admitted results of blood samples that were not taken in accordance with health department guidelines under Ark. Code Ann. § 5-65-204 (Repl. 1993). Tallant, 42 Ark. App. at 152, 856 S.W.2d at 25. Without definitively holding error was committed, the court of appeals declared that any error in the admission of the tests was harmless, as appellant admitted that he had been drinking, smelled like alcohol, exhibited altered behavior, and had fourteen or fifteen beer cans and an ice chest in his car. Id. at 153, 856 S.W.2d at 26.

Similarly, in Boyd v. City of Montgomery, 472 So. 2d 694 (Ala. App. 1985), the Alabama Court of Appeals ruled that the trial court erred in admitting portable breathalyzer test results. Id. at 697. The court held that the results should not have been admitted because they were not admissible under Alabama’s chemical test for intoxication statute. However, the court held that the error was harmless in light of the fact that appellant admitted that he had been drinking, his blood alcohol content as measured by an admissible test was above the legal limit, and there was evidence that he was driving in a hazardous manner. Id. at 698; see also State v. Smith, 352 N.W.2d 620, 624 (Neb. 1984).

Affirmed.

Brown, J., concurs because he would hold that the trial court denied the motion in limine.


author: David Newbern, Justice.

text:
    ARKANSAS DEPARTMENT OF HUMAN SERVICES v. STATE of Arkansas and Gary Harbin, A Minor and Roberta Joseph, His Parent
    94-1070
    894 S.W.2d 592
    Supreme Court of Arkansas
    Opinion delivered March 13, 1995

      Breck G. Hopkins, Deputy Counsel for ADHS, for appellant.

      Winston Bryant, Att’y Gen., by; Angela S. Jegley, Senior Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

The issue in this case is whether the Chancellor erred in ordering that a juvenile offender committed to a youth services center be placed in a serious offender program. Although the Chancellor clearly had the authority to commit the youth to a youth services center, he lacked authority to order commitment to a serious offender program within the youth services center. We thus reverse and remand the judgment.

Gary Harbin, aged 16, pleaded guilty in the Juvenile Division of Garland Chancery Court to a violent kidnapping and first degree battery in which serious injury was inflicted upon the victim. In paragraph four of his amended adjudication order, in which Mr. Harbin was found to be delinquent, the Chancellor stated: “It is the finding of this court that the minor defendant is a serious offender under any definition, real, imagined or potential, and the Department of Human Services, Youth Services Center, is hereby ordered and directed to place this defendant in a serious offender program.”

The record does not demonstrate the manner in which the Department of Human Services (DHS) became a party to the case, but we presume it intervened upon receipt of the commitment order. DHS moved for a new trial on the ground that the decision recited in paragraph four of the order was contrary to law.

1. Placement

In its supporting brief to the Chancellor and in its brief before this Court, DHS points out that there is no statutory authority permitting the Chancellor to commit a youth to a serious offender program within a youth services center.

Arkansas Code Ann. § 9-27-330, most recently amended by Act 61 of 1994, provides the dispositions the court may enter with respect to a juvenile found to be delinquent. It states the Court may “commit the juvenile to a youth services center operated by the Youth Services Board,” and that the Court may recommend placement of the juvenile in a “community-based” program. It makes no provision for placement in a serious offender program.

Arkansas Code Ann. § 9-28-208(a) (Repl. 1993) requires the Board to establish a diagnostic center for evaluation and classification of committed youth. Arkansas Code Ann. § 9-28-209, most recently amended by Act 44 of 1994, provides in subsection (c)(2) that the Youth Services Board is to decide if a youth committed to a youth services center is to remain in a state institution, “and if so, which institution.” Subsection (a)(2) of that statute provides “The board has the authority to move a youth at any time within its system of youth services facilities and community-based programs.” Subsection (d)(2) provides “If the board determines that the youth is not suited for detention in the youth services centers of the state, it shall report its findings and recommendations to the committing court along with recommendations, if any, regarding the appropriate disposition for the youth.”

The omission of any reference to placement of a youth within a youth services center beyond the mention of authority of the Court to recommend placement in a community-based program is significant. In Arkansas Dep’t of Human Servs. v. State, 312 Ark. 481, 850 S.W.2d 847 (1993), we considered an order requiring DHS to pay a probation fee pursuant to a statute requiring.payment of costs and restitution by a parent or guardian in a juvenile proceeding. We held the Court lacked authority to order such a payment because it was not provided for in the statute under consideration.

We have no doubt it was the General Assembly’s intent to confer upon the Youth Services Board the authority to determine the program or institution suitable for a youth committed to a youth services center.

2. Mootness

The record contains a letter from a DHS official to the Chancellor stating that Mr. Harbin was placed in a serious offender program. The State argues the case is therefore moot. That is. not so because, as DHS points out, the order continues to inhibit the Youth Services Board from performing in accordance with its obligation of continuing evaluation with the option of moving Mr. Harbin from one institution to another within the system of youth services facilities which it is authorized to do pursuant to § 9-28-209(a)(2).

Reversed and remanded for entry of orders consistent with this opinion.


author: Tom Glaze, Justice.

text:
    Corey LUCAS v. STATE of Arkansas
    94-208
    894 S.W.2d 891
    Supreme Court of Arkansas
    Opinion delivered March 13, 1995

      William R. Simpson, Jr., Public Defender, by: Martha Erin O ’Farrell, Deputy Public Defender, for appellant.

      Winston Bryant, Att’y Gen., by: Clint Miller, Acting Deputy Att’y Gen., for appellee.
   Tom Glaze, Justice.

On May 4, 1993, at about 9:00 p.m., Corey Lucas, then fifteen years old, was standing near or alongside a car parked at the curbside in front of Lucas’s home. He was talking to the driver of the car. Police officers drove by and one of the officers saw a pistol sticking out of Lucas’s back, right pocket. The officers returned to where Lucas stood and identified themselves. Officers said that Lucas moved his hand to his pistol so they drew their service weapons, ordered him to raise his hands and when he refused, they instructed him to get on the ground. One of the officers then was required to physically push Lucas to the ground. They then handcuffed him and took the pistol, a loaded .38 revolver, from his back pocket.

The state filed a petition in juvenile court to adjudicate Lucas a delinquent because he was a juvenile found in possession of a handgun in violation of Ark. Code Ann. § 5-73-119(a)(1)(A) (Repl. 1993), a class A misdemeanor. At trial, Lucas raised the affirmative defense provided under § 5-73-119(c)(1) that, although he might be found a juvenile in possession of a handgun, he was on property in which he had a possessory interest and therefore was not guilty of the handgun charge. The juvenile court found that, at the time of the offense, Lucas was in the yard on property where he lived with his mother and in which she had a possessory or proprietary interest. However, the trial court rejected Lucas’s argument that he was entitled to the defense provided under § 5-73-119(c)(1), reasoning that, although Lucas may have had some possessory interest in his mother’s property, such interest was not intended to serve to cloak him with immunity from committing the handgun offense. On November 3, 1993, the juvenile court declared Lucas a delinquent, ordered him to nine months’ probation and directed him to participate in the Diversion program. Lucas duly appealed from the trial court’s order, but no stay appears to have been entered during the pendency of this appeal.

We first address the juvenile court’s jurisdiction of this case. Under Ark. Code Ann. § 9-27-306(a)(l), the juvenile court has exclusive original jurisdiction of proceedings in which a juvenile is alleged to be delinquent or dependent neglect. A juvenile is defined by the Juvenile Code to be an individual under the age of eighteen years, whether married or single. Ark. Code Ann. § 9-27-303(l)(A) (Repl. 1993). In 1993, when Lucas was charged under § 5-73-119, § 9-27-303(11) of the Code defined “delinquent juvenile,” in pertinent part, as meaning any juvenile ten years or older who has committed an unlawful act which, if such act had been committed by an adult, would subject that adult to prosecution for a felony, misdemeanor, or violation under the criminal laws of the state.

It is suggested that the juvenile court in this matter did not have jurisdiction of Lucas because, unless he had committed a criminal offense for which an adult could have been prosecuted, he could not be declared a delinquent as defined in § 9-27-303(11). The argument then is made that, under Arkansas law, an adult cannot be prosecuted for the mere possession of a handgun absent some other factor, thus, Lucas cannot be found a delinquent for such an offense.

Regardless of an adult’s immunity from prosecution for the mere possession of a handgun, the General Assembly has clearly made the possession of a handgun a misdemeanor offense for juveniles. Under the plain language of Ark. Code Ann. § 9-27-305 (Repl. 1993), any juvenile may be subjected to the care, custody, control, and jurisdiction of the juvenile court. If this statute is not clear enough in placing jurisdiction with the juvenile court when § 5-73-119 is violated, one need only look to other statutory provisions enacted by the General Assembly to determine its intent in such matters.

Besides its declared general jurisdiction pronouncement in § 9-27-305, the General Assembly has made it clear that juvenile court has exclusive jurisdiction of all the offenses charged against a juvenile, with the exception of those listed in Ark. Code Ann. § 9-27-318(b)(l) (Repl. 1993). See Banks v. State, 306 Ark. 273, 813 S.W.2d 257 (1991). Suffice it to say, the mere possession of a handgun by a juvenile is not one of those crimes listed permitting the state the discretion to file charges in circuit rather than juvenile court. In addition, the General Assembly, by enacting Act 36 of 1994 Second Extraordinary Session, amended the Code definition of “delinquent juvenile” to include a juvenile who possesses a handgun, thus again reflecting its intent that juvenile, not circuit, court is the forum to decide juvenile cases where juveniles are charged with possession of handgun violations under § 5-73-119(a)(1)(A).

Having concluded the juvenile court had jurisdiction of this cause, we now turn to the merits of the case. As discussed above, Lucas’s argument simply relies on his affirmative defense that, although he possessed a handgun while seen in his mother’s front yard, he had a possessory interest in the property thereby nullifying any guilt of the handgun charge. He cites Black’s Law Dictionary, Fifth Edition, and its definition of “possessory interest” which defines it to mean “a right to possess property by virtue of an interest created in the property though it need not be accompanied by title.” That definition further relates that “a possessory interest in land exists in a person who has a relation to the land of a kind which gives a certain degree of physical control over the land, and an intent so as to exclude other members of society in general from any present occupation of the land.” In sum, Lucas argues that, in residing on his mother’s property and maintaining access to it at all times, he has a certain degree of control over the property, bringing him within the “possessory interest” language used and intended in the' affirmative defense provided in § 5-73-119(c)(1). Citing Amason v. City of El Dorado, 281 Ark. 50, 661 S.W.2d 364 (1983), Lucas further contends that, if the General Assembly had meant to limit the affirmative defense language to apply only when a parent permitted or had knowledge their minor had a handgun, it could have easily so provided.

In this appeal, the state generally ignores the juvenile court’s rationale for rejecting Lucas’s reliance on the affirmative defense language, and instead argues Lucas was not entitled to such defense because this court should not interpret the “possessory interest” language in § 5-73-119(c)(1) as broadly as Lucas argues. The state cites a number of old Arkansas cases in support of its view. See Lemmons v. State, 56 Ark. 559, 20 S.W. 404 (1892); Jones v. State. 55 Ark. 186, 17 S.W. 719 (1891). Interestingly, the Lemmons case involved a defendant who was charged with unlawfully carrying a weapon when he was on some woodland belonging to his father. Lemmons was unmarried and living with his father, and he contended that he could lawfully carry a pistol on his (or his father’s) premises. However, the court determined that, while Lemmons lived with his father, he was a mere licensee when entering upon his father’s adjacent wooded tract. As Lemmons did not show any interest in or control over the woodland, the court held he was not entitled to the statutory exception permitting a person to carry a weapon upon his own premises. Although unnecessary to the court’s ultimate decision reached in Lemmons, the state conceded that, as an inmate of his father’s house, Lemmons could have lawfully carried a pistol on the grounds or curtilage habitually used in immediate connection with the dwelling house. In this respect, the Lemmons decision would seem to support Lucas’s argument here rather than the one urged by the state.

The state asks us to place special emphasis on the term “dwelling” set out in the affirmative defense language and suggests that defense should be limited only to when a juvenile is in the house or other structure in which a person lives. However, such an interpretation wholly ignores the disjunctive phraseology contained in § 5-73-119(c)(1). In this respect, the provision provides that it is a defense to prosecution under § 5-73-119 that, at the time of the act of possessing a handgun, the person (juvenile) is in his own dwelling or place of business or property in which he has a possessory or proprietary interest. It appears abundantly clear that, in enacting § 5-73-119(c)(1), the General Assembly availed the foregoing affirmative defense to all persons, including juveniles, who violated the handgun crimes defined in the statute.

In conclusion, we take special note of the state’s speculative comment that, in enacting § 5-73-119, the General Assembly did not intend to bestow on minors the right to hang out in their yards with .38 revolvers stuck in their back pockets. That, of course, seems sensible. However, we would also think that the General Assembly would not have intended for juveniles to possess loaded pistols inside dwellings where they reside; nonetheless, the state concedes, by its argument, § 5-73-119 allows that to happen as well. In short, we find it difficult to know exactly what the General Assembly intended by wording § 5-73-119, and § 5-73-119(c)(1) in particular, as it did. If the General Assembly mistakenly availed the affirmative defense in § 5-73-119(c)(1) to juveniles when it intended it to apply only to adults, it can quickly correct that error through remedial legislation.

As we previously mentioned, Lucas obtained no stay of the trial court’s order pending this appeal, so it may be he has completed his probationary period. Nonetheless, we reverse and dismiss.

       Section 5-73-119(c)(1) reads as follows: (c) It is a defense to prosecution under this section that at the time of the act of possessing a handgun:
      (1) The person is in his own dwelling or place of business or on property in which he has a possessory or proprietary interest; or ... .

      We note that of the nine offenses, § 9-27-318(b)(l) does include a fourteen or fifteen year old’s possession of a handgun when on school property.

      The statute involved was later compiled in Ark. Stat. Ann. § 41-4501 (Repl. 1964) which, among other things, made it unlawful for any person to carry certain weapons except upon his premises.

        See § 5-73-119(a)(l)(A) (no person under the age of eighteen years shall possess a handgun); (2)(A) (no person shall possess a handgun upon the public property of the public schools, on a school bus or at a designated bus stop); (3)(A) (no person shall possess a handgun upon the property of the publicly supported institutions of higher education or on or about his person, in a vehicle occupied by him or otherwise available for use with a purpose to employ it as a weapon against a person). Other affirmative defenses provided in § 5-73-119, not relevant here, are set out in provisions (c)(2) through (9).


author: Donald L. Corbin, Justice. Andree L. Roaf, Justice,

text:
    CHRYSLER CREDIT CORPORATION v. Patricia SCANLON, Scott Scanlon, and Steven Blankinchip d/b/a/ Mobilinix of Fort Smith
    93-1369
    894 S.W.2d 885
    Supreme Court of Arkansas
    Opinion delivered March 13, 1995

      Faber D. Jenkins, for appellant.
    No response.
   Donald L. Corbin, Justice.

This appeal involves competing claims to an automobile owned by appellees, Patricia Scanlon and Scott Scanlon (“the Scanlons”), presented by appellant, Chrysler Credit Corporation, as assignee of the automobile vendor’s installment sale agreement, and appellee, Stephen Blankinchip d/b/a Mobilinix of Fort Smith (“Blankinchip”), the owner of a towing and storage business, as holder of a statutory lien for his towing and storage fee incurred with respect to the automobile. Appellant appeals the Sebastian County Circuit Court’s order filed September 21, 1993 holding Blankinchip has the superior claim and is entitled to recover certain towing and storage costs from appellant before surrendering the automobile (or the proceeds of its sale) to appellant. The Arkansas Court of Appeals certified this appeal to this court because it presents an issue of statutory construction involving an issue of significant public interest. Our jurisdiction, therefore, is proper pursuant to Ark. Sup. Ct. R. l-2(a)(3) and l-2(d). Because of a flagrantly deficient abstract, we affirm the trial court’s order, without considering the merits of the appeal. Ark. Sup. Ct. R. 4-2(b)(2).

In April 1993, the Scanlons purchased the automobile pursuant to a retail installment sale agreement which was assigned by the seller, a local automobile dealer, to appellant. On August 18, 1993, appellant filed a complaint in the Sebastian County Circuit Court designating the Scanlons and Blankinchip as defendants. In its complaint, appellant alleged that, pursuant to the retail installment sale agreement, the Scanlons were in default of payment and, therefore, the secured debt was accelerated and appellant was entitled to possession of the automobile. Appellant alleged that its lien had been perfected by filing “a direct lien” and that any claim of Blankinchip was inferior to that of appellant, and attached a notice of filing replevin complaint.

Blankinchip filed an answer and objection to the issuance of the writ of replevin without a hearing. Blankinchip alleged that he held a possessory first lien upon the automobile for towing, storage and processing, pursuant to Ark. Code Ann. § 18-45-201 (1987) and Ark. Code Ann. §§ 27-50-1201 etseq. (1987 & Supp. 1989). Blankinchip alleged that he had towed and stored the automobile at the direction of the Fort Smith Police Department, that the automobile had been subject to a “police hold” from May 19, 1993 to July 2, 1993, and that he was entitled to the sum of $1,009.75 plus an additional per diem storage fee of $10.00 after August 20, 1993. Blankinchip alleged that he had corresponded with appellant in July 1993 regarding their dispute as to the amount of and liability for payment of his fees, and that, on August 4,1993, he had mailed a certified letter to appellant.

On September 2, 1993, an evidentiary hearing was held. Testimony, which is abstracted, was presented by Blankinchip and by an employee of appellant’s customer service department. Also abstracted is the trial judge’s statement that he thought, because of the police action, that Blankinchip was not required to give any notice prior to the release of the police hold, and that Blankinchip was entitled to a $45.00 towing fee and a separate storage fee of $550.00 representing the 45-day period from May 19,1993 to July 2, 1993, plus ten days th<U>ereafter, at $10.00 per day.

On September 21, 1993, the trial court filed the order here appealed. The trial court found that appellant had filed its lien with the Arkansas Department of Finance and Administration, that Blankinchip had towed and stored the automobile, that Blankinchip’s regular fee was $45.00 for towing and $10.00 per diem for storage, that a police hold on the automobile was released on July 2, 1993, that appellant had offered to pay Blankinchip a towing and storage fee of $150.00 by letter dated July 16, 1993, and that, on August 4, 1993, Blankinchip had mailed a letter to appellant notifying it of Blankinchip’s lien and its amount. The trial court held that Blankinchip had a first lien and that appellant was entitled to possession of the automobile upon paying the sum of $595.00 to Blankinchip.

No responsive pleading or appearance by the Scanlons at the trial court level is abstracted. No defendant filed a brief in this appeal.

In its brief, appellant presents two arguments for reversal. First, appellant argues the trial court erred in finding that no notice was required to be given by Blankinchip prior to release of the police hold. Appellant argues Blankinchip was required to give notice to appellant, a holder of a lien on the automobile, within ten days of the date Blankinchip obtained possession of the car, or be limited to a lien for ten days’ storage fee only. Appellant bases its argument on the laws governing a lien for towing and storage fees for abandoned or unattended automobiles set forth in section 27-50-1201 et seq. and, by incorporation, Ark. Code Ann. §§ 27-50-1101 and -1102 (Repl. 1994). Appellant argues that no notice was given to it by Blankinchip prior to the August 4, 1993 letter, and, therefore, the ten-day notification requirement was not met. Second, appellant argues that, pursuant to Ark. Code Ann. § 18-45-202(b) (1987), an automobile storageman’s statutory lien for his storage fees is subject to the lien of a vendor of the automobile for the balance of purchase money due thereon.

It is impossible to reach the merits of this case because the abstract is flagrantly deficient. Appellant failed to abstract any exhibit to its complaint, most importantly, the retail sale agreement and its assignment to appellant. This document is the foundation for appellant’s contractual claims and its standing to sue. Appellant failed to abstract any document or testimony from the State of Arkansas, Department of Finance and Administration, evidencing appellant’s perfection of its security interest in or the state of title to the automobile. Appellant failed to abstract its notice of filing a replevin complaint, identifying the property to be replevied. Appellant failed to abstract any exhibit to Blankinchip’s answer, most importantly, his August 1993 notification letter. Appellant failed to abstract any argument made by it or by Blankinchip to the trial court at the evidentiary hearing regarding the legal basis or lien statutes relied upon in support of their respective claims. Appellant failed to abstract any document or testimony from the Fort Smith Police Department regarding the terms of the vehicle’s seizure.

Our review of this appeal is upon the record as abstracted. Appellant is required to abstract such material parts of the pleadings, proceedings, facts, documents, and other matters in the record as are necessary to an understanding of all questions presented to this court for decision. Ark. Sup. Ct. R. 4-2(a)(6). In this case, we find the abstract to be flagrantly deficient in this respect and, pursuant to Ark. Sup. Ct. R. 4-2(b)(2), we affirm the trial court’s judgment for noncompliance with the rule. Sturch v. Sturch, 316 Ark. 53, 870 S.W.2d 720 (1994); Davis v. Peebles, 313 Ark. 654, 857 S.W.2d 825 (1994); Samples v. Samples, 306 Ark. 184, 810 S.W.2d 951 (1991).

Affirmed.

Brown and Roaf, JJ., dissent.

Andree L. Roaf, Justice,

dissenting. I do not agree with the majority that the appellant’s abstract is so deficient as to require affirmance on that basis. The items which the majority has identified as missing from the abstract are irrelevant to the understanding and resolution of the issue presented by the appeal. We have consistently held that the abstract should have only what is necessary for us to decide the issues presented. Montgomery v. Butler, 309 Ark.491, 834 S.W.2d 148(1992).

We have also held that when a necessary item is not in the abstract, we can get the information from other portions of the abstract, such as motions by the parties, Integon Indem. Corp. v. Bull, 311 Ark.61, 842 S.W.2d 1(1992), and letter opinions of the judges, Ransopher v. Chapman, 302 Ark.480, 791 S.W.2d 686(1990).

The validity of appellant’s lien was not at issue or even disputed in the proceedings below. The issue was the priority as between two competing liens and is one of statutory interpretation. All that this court needs to know concerning these liens and the “hold” put on the vehicle by the police, can be found in appellant’s abstract.

I would reach the merits of the case.

Brown, J., joins.


author: Donald L. Corbin, Justice.

text:
    Terrance JONES v. STATE of Arkansas
    94-1084
    894 S.W.2d 591
    Supreme Court of Arkansas
    Opinion delivered March 13, 1995

      Williams Warren, Chancellor; affirmed.

      William R. Simpson, Jr., Public Defender, by: Fernando Padilla, Deputy Public Defender.

      Winston Bryant, Att’y Gen., by: David R. Raupp, Asst. Att’y Gen., for appellee.
   Donald L. Corbin, Justice.

Appellant, Terrance Jones, appeals the judgment of the Juvenile Division of the Pulaski County Chancery Court adjudicating him a delinquent for, inter alia, one count of minor in possession of a handgun in violation of Ark. Code Ann. § 5-73-119(a)(1)(A) (Repl. 1993), and the disposition order committing him to the Division of Youth Services. His sole point for reversal is that the juvenile court was without jurisdiction to adjudicate him a delinquent on the charge of minor in possession of a handgun. We find no merit to his argument and affirm.

Appellant was adjudicated a delinquent by an order entered May 4, 1994. In addition to the handgun charge now at issue, appellant was also adjudicated a delinquent on a charge of disorderly conduct. After undergoing evaluation at the State Hospital, he was committed to the custody of the Department of Human Services, Division of Youth Services, by ordered entered July 25, 1994. We observe that there is nothing in the record indicating appellant objected to the juvenile court’s jurisdiction in the proceedings below. However, his argument for reversal is a jurisdictional one that this court will address even in the absence of an objection below. Indeed, it is an argument this court will raise on its own. Lucas v. State, 319 Ark. 752, 894 S.W.2d 891 (1995).

Appellant contends that when section 5-73-119(a)(1)(A) is construed in tandem with the grant of jurisdiction to juvenile courts in Ark. Code Ann. § 9-27-306(a)(l) (Repl. 1993) and the definition of “delinquent juvenile” in Ark. Code Ann. § 9-27-303(11) (Repl. 1993), it is clear and unambiguous that the juvenile court lacked jurisdiction of the handgun charge against him because the conduct criminalized by section 5-73-119(a)(1)(A) is not an act that would subject an adult to prosecution. He argues that because the statutes are clear and unambiguous, we must give the statutes their plain and ordinary meaning.

We have recently rejected the jurisdictional argument advanced by appellant in this appeal. In Rosario v. State, 319 Ark. 764, 894 S.W.2d 888 (1995), and Lucas, 319 Ark. 752, 894 S.W.2d 891, we held we would not construe the Arkansas Juvenile Code of 1989 to achieve absurd results patently contrary to the clear legislative intent expressed in Ark. Code Ann. § 9-27-305 (Repl. 1993) to subject any juvenile to the jurisdiction of the juvenile court. Rosario and Lucas are controlling of the present case. For the reasons stated in those two cases, juvenile courts have jurisdiction to adjudicate charges under section 5-73-119(a)(1)(A).

Accordingly, we affirm the judgment and disposition.


text:
    Raymond ROSARIO v. STATE of Arkansas
    94-843
    894 S.W.2d 888
    Supreme Court of Arkansas
    Opinion delivered March 13, 1995

      William R. Simpson, Jr., Public Defender, by: Phyllis A. Edwards, Deputy Public Defender, for appellant.

      Winston Bryant, Att’y Gen., by: David R. Raupp, Asst. Att’y Gen., for appellee.
   Donald L. Corbin, Justice.

Appellant, Raymond Rosario, appeals an order of the Pulaski County Chancery Court, Juvenile Division, filed March 14, 1994, adjudicating him a delinquent for one count of possession of a handgun, a Class A misdemeanor, in violation of Ark. Code Ann. § 5-73-119 (Repl. 1993). Because this appeal requires our construction and interpretation of statutory provisions pertaining to the jurisdiction of the juvenile court in delinquency proceedings, our jurisdiction is proper pursuant to Ark. Sup. Ct. R. l-2(a)(3). We find the juvenile court had jurisdiction of this case and affirm the trial court’s ruling.

The facts in this case are not disputed. The state filed a petition dated February 23, 1994 in juvenile court charging appellant, a minor, with one count of “the crime of violating Arkansas Code Annotated 05-73-119, HANDGUNS - POSSESSION BY MINOR, A CLASS A MISDEMEANOR” arising from his possession on February 19, 1994 of a Davis .380 caliber automatic pistol. Appellant’s conduct occurred on 35th Street near Valley View in North Little Rock, according to the trial testimony of the arresting officer.

Appellant filed a pretrial motion to dismiss the petition for lack of jurisdiction; the motion was denied. On March 10, 1994, at the bench trial of this cause, appellant renewed his dismissal motion. The motion was again denied, and appellant was found guilty as charged. On March 14, 1994, the juvenile court’s order adjudicating appellant’s delinquency was filed, and, on April 13, 1994, its disposition order was filed.

In October 1994, the state filed a motion to dismiss this appeal based on alleged errors in appellant’s notice of appeal. By letter order dated October 31, 1994, this court denied the state’s motion and ruled that the appeal be “treated as a belated appeal of the March 10, 1993 [sic] order.” Thus this appeal is taken from the juvenile court’s order rendered in open court on March 10, 1994 and filed on March 14, 1994.

Appellant’s sole point for reversal is that the juvenile court erred in denying his motion to dismiss for lack of jurisdiction. The juvenile court’s jurisdiction derives from Amendment 67 to the Constitution of Arkansas, which provides:

The General Assembly shall define jurisdiction of matters relating to juveniles (persons under eighteen (18) years of age) and matters relating to bastardy and may confer such jurisdiction upon chancery, circuit or probate courts, or upon separate divisions of such courts, or may establish separate juvenile courts upon which such jurisdiction may be conferred, and shall transfer to such courts the jurisdiction over bastardy and juvenile matters now vested in county courts by Section 28 of Article 7 of this Constitution.

Among the statutes implementing this constitutional grant of jurisdiction.is Act 273 of 1989, codified as Ark. Code Ann. §§ 9-27-301 to -368 (Repl. 1993), known as the “Arkansas Juvenile Code of 1989.” Section 9-27-306 sets forth the jurisdiction of the juvenile courts, in pertinent part, as follows:

(a) The juvenile court shall have exclusive original jurisdiction of and shall be the sole court for the following proceedings governed by this subchapter:
(I) Proceedings in which a juvenile is alleged to be delinquent or dependent-neglect as defined in this sub-chapter[.] [Emphasis added.]

The définitions section of the juvenile code does not define the term “delinquent,” although it defines the term “delinquent juvenile” as follows:

(II) “Delinquent juvenile” means any juvenile ten (10) years or older who has committed an act other than a traffic offense or game and fish violation which, if such act had been committed by an adult, would subject such adult to prosecution for a felony, misdemeanor, or violation under the applicable criminal laws of this state. [Emphasis added.]

Section 9-27-303.

Applying these statutes to the instant case, we observe appellant was adjudicated a delinquent because he committed the act of possession of a handgun as a minor, which act is criminalized by section 5-73-119(a)(1)(A) in these words: “No person in this state under the age of eighteen (18) years shall possess a handgun.” We find no statute, however, which criminalizes the act of possession of a handgun as an adult, absent proof of additional elements of the crime, none of which are applicable in this case. See section 5-73-119(a)(2) (possession of a handgun by any person on public school property, on a school bus or at a school bus stop); section 5-73-119(a)(3) (possession of a handgun by any person on property of state-supported higher education facility or in vehicle or otherwise readily available for use against a person)-, Ark. Code Ann. § 5-73-120 (Repl. 1993) (possession of a handgun by any person with a purpose to employ it as a weapon against a person).

Under a strict construction of sections 9-27-303(11) and 9-27-306(a), then, we would conclude that the juvenile court lacked jurisdiction of appellant’s delinquency adjudication because it was grounded on a particular act (possession of a handgun by a person under age 18 years) which, if committed by an adult, would not subject the adult to prosecution. Said another way, pursuant to the foregoing analysis, we would conclude the juvenile court lacked jurisdiction of appellant’s delinquency adjudication because it was based on an act which may punish no one other than a juvenile.

Plainly,, this construction of sections 9-27-303(11) and 9-27-306(a) achieves an absurd result that was not intended by the General Assembly. Statutory construction requires a common-sense approach. Hutton v. Arkansas Dep’t of Human Servs., 303 Ark. 512, 798 S.W.2d 418 (1990). It would defy common sense to find that the General Assembly, by means of its definition of the term “delinquent juvenile,” intended to exclude from the juvenile court’s jurisdiction delinquency adjudications based on a juvenile’s simple possession of a handgun, when a plethora of more violent offenses are clearly within its jurisdiction. See, e.g., Ark. Code Ann. § 9-27-318.

And, in fact, shortly after appellant’s case was decided, the General Assembly amended section 9-27-303(11) to redefine the term “juvenile delinquent” to read as follows:

(11) “Delinquent juvenile” means any juvenile ten (10) years or older who has committed an act other than a traffic offense or game and fish violation which, if such act had been committed by an adult, would subject such adult to prosecution for a felony, misdemeanor, or violation under the applicable criminal laws of this state, or who has violated § 5-73-119. [Emphasis added.]

Acts 11 and 36 of the Second Extraordinary Session of 1994. This amendment was enacted by emergency clause, effective August 22, 1994, in these words:

SECTION 5. EMERGENCY. It is hereby found and determined by the Seventy-Ninth General Assembly of the State of Arkansas, meeting in the Second Extraordinary Session of 1994, that the current definition of “delinquent juvenile” in the Juvenile Code does not include a juvenile who possesses a handgun and, possession of a handgun being a delinquent act, it is necessary immediately to amend the definition. Therefore, in order to amend the definition of “delinquent juvenile” to include a juvenile who possesses a handgun, an emergency is hereby declared to exist and this act being necessary for the immediate preservation of the public peace, health and safety shall be in full force and effect from and after its passage and approval. [Emphasis added.]

This court adheres to the basic rule of statutory construction which is to give effect to the intent of the legislature, making use of common sense. S.T. and C.B. v. State, 318 Ark. 499, 885 S.W.2d 885 (1994). Although this court is hesitant to interpret a legislative act in a manner contrary to its express language, this court must do so when it is clear that a drafting error or omission circumvents legislative intent. State v. McLeod, 318 Ark. 781, 888 S.W.2d 639 (1994); Neely v. State, 317 Ark. 312, 877 S.W.2d 589 (1994). To this end, we have acknowledged that changes made by subsequent amendments to the statute may be helpful in determining legislative intent. State v. McLeod, 318 Ark. 781, 888 S.W.2d 639; S.T. and C.B. v. State, 318 Ark. 499, 885 S.W.2d 885.

In this case, we find that the intent of the General Assembly was to include violations of section 5-73-119 as delinquent acts, and that the omission of the language “or who has violated § 5-73-119” in the statutory definition of “delinquent juvenile” which was enacted in 1989 was a drafting error which was corrected by the 1994 legislation. To find otherwise would override the General Assembly’s obvious intent in this matter as stated in the emergency clause quoted above. We will not interpret our statutes to reach a result contrary to the clear intent of the legislature. S.T. v. State, 318 Ark. 499, 885 S.W.2d 885.

Finally, we refer to our decision known as Lucas v. State, 319 Ark. 752, 894 S.W.2d 891 (1995), also handed down today. In Lucas, on facts nearly identical to those of the instant case, we raised the identical issue presented in the instant case, the juvenile court’s jurisdiction of a delinquency adjudication for a violation of section 5-73-119(a)(1)(A), and held that the juvenile court did have jurisdiction. We reasoned in Lucas that, regardless of whether or not an adult is vulnerable to prosecution for mere possession of a handgun, the General Assembly clearly made possession of a handgun a misdemeanor offense for a minor, and placed jurisdiction of the offense in the juvenile court, under the plain language of section 9-27-305. Section 9-27-305 provides that any juvenile may be subjected to the care, custody, control, and jurisdiction of the juvenile court. In addition, we again confirmed in Lucas that, pursuant to section 9-27-318, the General Assembly granted to the juvenile court exclusive jurisdiction of all offenses charged against a juvenile, other than those offenses specifically excepted in that statute. State v. Gray, 319 Ark. 356, 891 S.W.2d 376 (1995); Webb v. State, 318 Ark. 581, 886 S.W.2d 624 (1994); Banks v. State, 306 Ark. 273, 813 S.W.2d 256 (1991). A violation of section 5-73-119(a)(1)(A) is not an offense which is excepted from the juvenile court’s exclusive jurisdiction under section 9-27-318. Our reasoning and conclusion, as stated in Lucas, that the juvenile court has jurisdiction of delinquency adjudications based on a violation of section 5-73-119(a)(1)(A) is also applicable to the instant case.

For the reasons stated above, we find that the juvenile court had jurisdiction of the instant case. The trial court’s order is affirmed.