text:
    Michael ASHING, et al. v. STATE of Arkansas
    CR 85-182
    702 S.W.2d 20
    Supreme Court of Arkansas
    Opinion delivered January 21, 1986

      John W. Settle, for appellant Michael Ashing.

      Orville C. Clift, for appellant Brenda Taulbee.

      Steve Clark, Att’y Gen., by: Mary Beth Sudduth, Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

Appellants Michael Ashing and Brenda Taulbee were charged with first degree murder of Iris Taulbee, Brenda’s mother, who was shot and killed on August 23, 1984. A motion was made to transfer the cause to juvenile court on the grounds that Michael Ashing was sixteen and Brenda Taulbee was fourteen the date of the murder. The motion was denied after a hearing and appellants were tried in circuit court. The jury returned a verdict of guilty of murder in the first degree, and Taulbee and Ashing were each sentenced to fifteen years.

Act 390 of 1981 [Ark. Stat. Ann. § 45-420 (Supp. 1983)] deals with the procedure for transfer of a juvenile’s case and provides in part:

In making the decision whether to retain jurisdiction of the case or to transfer the case to another court having jurisdiction over the matter, the court shall consider only the following factors:
(a) The seriousness of the offense and whether violence was employed by the juvenile in the commission of the offense.
(b) Whether the offense is part of a repetitive pattern of adjudicated offenses which would lead to the determination that the juvenile is beyond rehabilitation under existing rehabilitation programs, as evidenced by past efforts to treat and rehabilitate the juvenile and the response to such efforts.
(c) The prior history, character traits and mental maturity, and any other factors which reflect on the juvenile’s prospects for rehabilitation.

On appeal appellants maintain that the court did not take into consideration all three elements of the statute. We reject the argument.

The first case to apply this statute was Franklin v. State, 7 Ark. App. 75, 644 S.W.2d 318 (1983). There the court noted that under an earlier act, Act 451 of 1975, the question of the transfer of a case of this nature to the juvenile court was discretionary with the trial judge and our cases had held the ruling would not be disturbed unless that discretion was abused. The Franklin court went on to say that under the current act, Act 390 of 1981, the judge shall, on his own motion or the motion of either party, conduct a hearing on the question of transfer and noted that the act narrowed the exercise of the judge’s discretion to a consideration of the three factors mentioned in the act.

In Franklin, the appellant had committed rape, aggravated robbery and theft. The court said the “seriousness of the crimes and the violence with which they were perpetrated would alone appear to be sufficient to sustain the court’s refusal to transfer these causes to the juvenile court.” The court found the second criterion not fully applicable, for there were no adjudicated offenses from which past efforts to treat and rehabilitate the juvenile could be evaluated. The court noted, however, there had been previous criminal activity. There was testimony that the prospects of appellant’s rehabilitation were poor — violent temper, hostility, and lack of remorse. And volition and premeditation were demonstrated by deliberate attempts to cover up the crime. In overruling the motion to transfer, the trial judge gave his reasons and demonstrated that consideration had been given to all of the criteria set forth in § 45-420.

In this case, it does not appear that proof of each factor was necessarily adverse to the appellants. However, there is no requirement in the statute that equal weight be given to each factor, or that proof on all factors must be against the appellants in order for the court to retain jurisdiction. Other jurisdictions with similar statutes have reached the same conclusions. People v. Taylor, 76 Ill.2d 289, 29 Ill. Dec. 103, 391 N.E.2d 366 (1979); Hazell v. State, 12 Md.App. 144, 277 A.2d 639 (1971).

Here the nature of the crime was given primary consideration by the trial court. The appellants were dating each other and Mrs. Taulbee disapproved. The appellants discussed how they might murder her so they could “get on with their lives,” and agreed that Michael would kill Mrs. Taulbee. He came to the Taulbee trailer late at night with a gun belonging to his father. Michael told Mrs. Taulbee there was some trouble at his house and while they discussed the matter he shot her in the back of the head. Michael and Brenda left the trailer but returned after a few minutes to see if Mrs. Taulbee was still alive. Michael then proceeded to shoot Mrs. Taulbee until the gun was empty. Michael and Brenda disposed of the murder weapon and spent several hours deciding how to conceal their participation in the murder. When initially questioned by police, Brenda relayed the story she and Michael had devised.

The seriousness and violence of this crime might alone be sufficient to sustain the refusal to transfer to juvenile court, but additionally, there was no significant showing on behalf of the appellants for the prospects of rehabilitation. Under the circumstances the trial court’s discretion in refusing to transfer the cases was not abused.

The appellant urges there is no “analysis” by the trial court in reaching its conclusion. There is no requirement in the act that a statement of reasons be given, even so, the record shows the foundation of the court’s finding and provides a sufficient basis for review. It is clear enough the trial court found that evidence in support of the motion to transfer did not outweigh the seriousness of the offense. Quoting from the record:

The Court just feels that after considering the evidence and the facts in this case that a charge of first degree murder as indicated by the facts in this case is not one that should be dealt with by the Juvenile court. Many of the matters that have been suggested by the attorneys. . . are matters that the Court feels can properly be made to a jury for its consideration. . . . The Court is going to hold that considering all the facts of this matter, and for the nature of the charge, that this is a case where the defendants should be brought to trial before a circuit court.

As the second point on appeal appellants take a novel approach to Ark. Stat. Ann. § 41-617, which provides for the charging of juveniles of certain ages in either circuit or juvenile court. That portion of the statute reads:

(2) If a person was at least fifteen (15) years of age but less than eighteen (18) years of age at the time of the conduct alleged to constitute an offense, he may be charged either in circuit, municipal or juvenile court. If he is charged in circuit or municipal court, such court may enter any order waiving jurisdiction and transfer the proceedings to juvenile court. If a person fourteen (14) years of age commits first degree murder, second degree murder, or rape [,] such person may be prosecuted by the prosecuting attorney at his discretion, or if the prosecutor does not choose to prosecute such person, proceedings shall be instituted against such person in the appropriate juvenile court. (Our italics).

Appellants argue that by using the word “commits,” the statute requires proof by the state that a person fourteen years of age is actually guilty of the crime charged before jurisdiction can be retained in circuit court. But that would require a strained interpretation of the statute. In the context of the act, the intent of the legislature is clear: If a person fourteen years of age is charged with first degree murder, the prosecuting attorney has the discretion to decide whether such person is charged in circuit court. It is our duty, when the context so indicates, to substitute one word for another to give effect to what was evidently the intention of the legislature. State v. Banks, 271 Ark. 331, 609 S.W.2d 10 (1980).

Here, the context alone is sufficient to make the intent clear, and that conclusion is bolstered by the language of the emergency clause to Act 793 of 1981, amending the original act which gave exclusive jurisdiction over fourteen year olds to juvenile court. The legislature determined that for certain offenses fourteen year olds could be prosecuted as adults, and the emergency clause of Act 793 indicates the intent was to adopt stronger measures than were provided by the existing law:

It is hereby found and determined by the General Assembly that the present Arkansas law provides that a person who is fourteen years of age at the time of commission of a crime may not be prosecuted for such offense; that there are many instances in which persons of fourteen years of age have committed premeditated murder but due to the present law can only be dealt with as juveniles; that this situation results in a mockery of justice and that the Act is immediately necessary to allow persons fourteen years of age to be prosecuted for criminal offenses. . .

Additionally, while recognizing that penal statutes áre given a strict construction, the rule is not so rigid that it does not give way to the obvious legislative intent or bow to the plain policy and purposes of the statute. Sutherland, Statutory Construction, § 59.06. The rule of strict construction is not the enemy of common sense and does not require a literal interpretation leading to absurd consequences. Such a reading should be discarded in favor of a more reasonable interpretation. Dollar v. State, 287 Ark. 61, 697 S.W.2d 868 (1985); Fairchild v. State, 286 Ark. 194, 690 S.W.2d 355 (1985);Hice v. State, 268 Ark. 57, 593 S.W.2d 169 (1980).

What appellant suggests would result in a clearly absurd procedure and common sense dictates the more reasonable interpretation, as stated above.

Affirmed.

Purtle, J., not participating.

       This approach appears to be constitutionally firm. See People v. Taylor, 76 Ill.2d 289, 29 Ill. Dec. 103, 391 N.E.2d 366 (1979) (discussing the constitutionality of its juvenile transfer procedures in light of Kent v. United States, 383 U.S. 541 (1966).


source: Caselaw Access Project

author: Steele Hays, Justice.

license: Public Domain

text:
    Charles D. RAGLAND, Commissioner of Revenues of the State of Arkansas v. Earl YEARGAN
    85-196
    702 S.W.2d 23
    Supreme Court of Arkansas
    Opinion delivered January 21, 1986

      Timothy J. Leathers, Wayne Zakrzewski, Kelly Jennings, John Theis, Ann Kell, Joe Morphew, and Michael D. Munns, by: Joseph V. Svoboda, for appellant.
    Appellee, pro se.

   Steele Hays, Justice.

The question raised by this appeal is whether the Commissioner of Revenues is required to disclose information concerning motor fuel taxes pursuant to the Freedom of Information Act (Act 93 of 1967) and the Arkansas Motor Fuel Tax Act (Act 383 of 1941), in light of the Arkansas Tax Procedure Act (Act 401 of 1979). Our jurisdiction attaches under Rule 29(l)(c).

Appellant, as Commissioner of Revenues, is the official custodian of all records filed under Arkansas tax laws. Earl Yeargan, appellee, is an individual residing in Pope County, Arkansas. On June 12, 1985 Yeargan asked the Commissioner for the names of persons, companies, or corporations that are licensed, bonded fuel dealers, wholesalers, or distributors currently on the Commissioner’s books. Noting that he was required to disclose the information under the Freedom of Information Act and the Arkansas Motor Fuel Tax Act, but prohibited from disclosing confidential tax records under the Arkansas Tax Procedure Act, the Commissioner filed a petition for declaratory judgment in the Pulaski Chancery Court.

Relying on Section 6(a) of the Tax Procedure Act, the chancellor declared that Yeargan had the right to inspect and copy the motor fuel tax records requested except those pertaining to a natural person, that is, an individual taxpayer. The Commissioner has appealed. We affirm the chancellor.

The earliest of these acts is the Motor Fuel Tax Act of 1941 which provides in part:

Section 24. Public Inspection of Records. — The records of the Commissioner of Revenues pertaining to motor fuel taxes shall at all reasonable times be open to the public, with the approval of the Commissioner.

Next came the Freedom of Information Act in 1967 which expresses the public policy of Arkansas to be one of open government, in these terms:

Section 2. Declaration of Public Policy. It is vital in a democratic society that public business be performed in an open and public manner so that the electors shall be advised of the performance of public officials and of the decisions that are reached in public activity and in making public policy. Toward this end, this act is adopted, making it possible for them or their representatives, to learn and to report fully the activities of their public officials.

The Freedom of Information Act goes on to provide:

Except as otherwise specifically provided by laws now in effect, or laws hereafter specifically enacted to provide otherwise,... all records which by law are required to be kept and maintained shall be open to inspection and copying by any citizen of the State of Arkansas during the regular business hours of the custodian of records. (Our italics).

Elsewhere in the FOIA (Section 4) an exception from public inspection is made for state income taxes, medical, scholastic, and adoption records, and the like. But those exceptions have no bearing on the records involved here. Thus, the Motor Fuel Tax Act specifically, and the Freedom of Information Act generally, provide for the inspection and copying of motor fuel tax records kept by the Commissioner of Revenues. This was the status of the law for nearly forty years when the Arkansas Tax Procedure Act was enacted in 1979.

On appeal the Commissioner submits that language of the Tax Procedure Act, notably Section 6(a) and 6(c) suggests that all tax returns of any taxpayer are confidential. Section 6(a) of the act reads:

Records and files of Commissioner confidential and privileged — Exception—Inspection.—(a) The Commissioner is the official custodian of all records and files required by any State tax law to be filed with the Commissioner and is required to take all steps necessary to maintain their confidentiality. Except as otherwise provided by this act [§§ 84-4701 — 84-4744], the records and files of the Commissioner concerning the administration of any State tax law are confidential and privileged. These records and files and any information obtained from these records or files or from any examination or inspection of the premises or property of any taxpayer shall not be divulged or disclosed by the Commissioner or any other person who may have obtained these records and files. It is the specific intent of this act that all tax returns, audit reports and information pertaining to any individual tax returns not be subject to the provisions of Act 93 of 1967 [§§ 12-2801 — 12-2807], as amended.

Section 6(c) also uses inclusive language:

(c) The provisions of this section shall be strictly interpreted and shall not permit any other disclosure of information concerning a taxpayer contained in the records and files of the Commissioner relating to income tax or any other State tax.

Appellee Yeargan points out that the final sentence of Section 6(a) limits the application of the FOIA to individual tax returns, and on that basis the chancellor held that records of motor fuel taxpayers except those of individuals are not excluded from inspection and copying. While there is room for considerable doubt as to what was intended under the wording of the Tax Procedure Act, the only specific lifting of the disclosure requirements of the FOIA found in the Tax Procedure Act is limited to individual tax returns and we think that language must govern.

The Commissioner contends it would be incongruent to exempt the motor fuel tax returns of individuals, while denying that protection to corporations and partnerships. We concede some merit to the argument, though not enough to compel us to rewrite the enactment. The financial records of corporations and other business entities have traditionally enjoyed less privacy than individuals and that may have influenced the language used in the Tax Procedure Act.

We recognize the principle that enactments on the same subject are to be read in pari materia, with each to be given effect whenever possible, Vandiver v. Washington County, 274 Ark. 561, 628 S.W.2d 1 (1982). The only means by which we can give these enactments equal effect is to reach the same conclusion as the chancellor and limit the confidentiality of motor fuel tax records to those involving individual taxpayers. To do otherwise would require two things, equally undesirable: we would have to repeal by implication that portion of the Motor Fuel Tax Act making those records public, a form of judicial legislating which we do not favor, Nance v. Williams, 263 Ark. 237, 564 S.W.2d 213(1978), and we would have to apply a narrow construction to the Freedom of Information Act against a line of our cases and authorities urging the contrary. Baxter County Newspapers, Inc. v. Medical Staff of Baxter General Hospital, 273 Ark. 511, 622 S.W.2d 495 (1981); North Central Assn. of Colleges and Schools v. Troutt Bros., Inc., 261 Ark. 378, 548 S.W.2d 825 (1977); Ark. Gazette v. Pickens, 258 Ark. 69, 522 S.W.2d 350 (1975); Laman v. McCord, 245 Ark. 401, 432 S.W.2d 753 (1968); See “Access to Public Records Under the Arkansas Freedom of Information Act,” Professor John J. Watkins, 37 Ark. Law Review 742.

We conclude that the objectives of the FOIA are such that whenever the legislature fails to specify that any records in the public domain are to be excluded from inspection, or is less than clear in its intendments, then privacy must yield to openness and secrecy to the public’s right to know the status of its own affairs. We hold, therefore, that the burden of confidentiality rests on the legislation itself, and if the intention is doubtful, openness is the result.

The order appealed from is affirmed.

Purtle, J., not participating.

       These acts are codified, respectively, as Ark. Stat. Ann. § 12-2801 et seq., Ark. Stat. Ann. § 75-1101 et seq. and Ark. Stat. Ann. § 84-4701 et seq.


author: David Newbern, Justice.

text:
    Gail KIRTLEY v. DARDANELLE PUBLIC SCHOOLS
    85-187
    702 S.W.2d 25
    Supreme Court of Arkansas
    Opinion delivered January 21, 1986

      Cearley, Mitchell & Roachell, by: Paul J. Ward, for appellant.

      G. Ross Smith & Associates, P.A., by: G. Ross Smith and Richard L. Hughes, for appellee.
   David Newbern, Justice.

The question raised by the appellant is whether the court erred in finding that her dismissal as a teacher did not violate the Teacher Fair Dismissal Act, codified as Ark. Stat. Ann. §§ 80-1266 through 80-1266.11 (Supp. 1985). In particular the appellant argues the trial judge erred in failing to find the appellant’s nonrenewal was arbitrary, capricious or discriminatory. She claims the trial judge did not understand that § 80-1266.9(d) permitted him to go beyond the record compiled in the school board hearing and consider evidence presented in court on review of the school board’s decision. We disagree on both points and affirm the judgment of the trial court in which he refused to overturn the school board’s nonrenewal of the appellant’s teaching contract.

The appellant was a non-probationary special education teacher in the Dardanelle schools. She had taught there for some thirteen years with no unsatisfactory ratings from her superiors. In the school year 1982-1983 Larry May became principal of the school in which the appellant taught. In February, 1983, Mr. May expressed his disapproval of Mrs. Kirtley’s performance, and he began a series of meetings with her which lasted through May, 1984. He also corresponded with her through exchanges of memoranda. He notified Mrs. Kirtley as early as March 25,1984, that her contract would not be renewed.

Mrs. Kirtley challenged the recommendation of Mr. May, which was supported by the school superintendent, by appealing to the appellee school board. The record of the proceedings before the board and before the court contained strong overtones of political reasons for the nonrenewal. Mrs. Kirtley’s husband had at one time been a school employee and had engaged in disputes with the superintendent and had twice run, presumably unsuccessfully, for a position on the school board. There was evidence that a board member had spoken of wanting to get “a shot” at Mrs. Kirtley.

The testimony and exhibits, in the form of the memoranda between Mr. May and Mrs. Kirtley, also could easily have been interpreted as showing harassment of Mrs. Kirtley. However, Mr. May said specifically to the board that his reason for nonrenewal was that Mrs. Kirtley’s lesson plans failed to implement her individual education plans for her students. At the trial he testified that Mrs. Kirtley’s first problem was lack of organization which included her inability to plan individually for her special education students. Mrs. Kirtley testified that Mr. May did not give her sufficiently specific instruction on how he wanted her to organize her work.

Other evidence in Mrs. Kirtley’s behalf consisted of former students who praised her ability and Mrs. Kirtley’s former teacher who said she was capable of good planning. A former supervisor in another school system testified Mrs. Kirtley did well and was used as a model for new teachers in the late 1960’s to 1970’s but that he had not reviewed any of her lesson plans prepared to conform to the federal Education for Handicapped Act.

The appellant does not contend that there was a failure on the part of the school board to comply with any procedural requirement of the Teacher Fair Dismissal Act. Nor does she say that the factual determinations of the circuit court were clearly erroneous and thus to be overturned in accordance with Ark. R. Civ. P. 52(a). She does contend that the court erred because he failed to consider the trial testimony. For that proposition she cites the judge’s statements in the following colloquy:

BY THE COURT:
Arkansas Statute 80-1266 point 9 provides for appeal to Circuit Court and as I understand the case law, I’m limited to determining if the decision of the board was based upon substantial evidence. In other words, was it arbitrary, capricious or discriminatory. Section D provides additional testimony may be taken in the Circuit Court Appeal to show facts and circumstances showing that determination or non-renewal was lawful or unlawful. So as I understand it, the testimony we are to hear today would go to whether or not the non-renewal was lawful or unlawful. Now, is that what you are intending to show with this?
MR. WARD: [Attorney for the appellant]
Yes, Your Honor.
BY THE COURT:
It is my understanding that you have already stipulated that all procedures were correctly followed.
MR. WARD:
The procedures regarding the hearing?
BY THE COURT:
Yes.
MR. WARD:
That is correct.
BY THE COURT:
And it looks to me like you may have already stipulated to what I have to decide on appeal — that it was lawful or unlawful.
MR. WARD:
We did not stipulate to the District’s compliance with 1266 point 6, and then also the specific provisions of arbitrary and capricious, which is the—
BY THE COURT:
Well, I have to base my decision on arbitrary or capriciousness on the basis of the record as already made.
MR. WARD:
Y our Honor, that is part of the record. I think this trial today is also part of the record and-the Court is entitled to look at both when it determines whether substantial evidence exists or whether the non-renewal was arbitrary and capricious.
BY THE COURT:
The statute says — uses the word, “lawful” or “unlawful.” I am going to permit you to make a complete record on it. I just wanted to make that statement to give you some idea as to what I think it means.
MR. WARD:
Yes, Your Honor.
BY THE COURT:
I think they are talking about whether or not the school board followed correct procedures in arriving at their determination. I don’t think they meant for me to substitute my decision for that of the board. Go ahead.
MR WARD:
Yes, Your Honor.

If we considered these remarks by themselves, we might agree that the court misperceived the law and his responsibility to make a determination beyond whether the procedural requirements of the Act were satisfied. When we combine the statements with the recitations of the court’s order, however, it becomes clear the court made a determination based upon “the record,” not necessarily excluding the trial record, and that there was sufficient evidence of a rational basis for Mrs. Kirtley’s nonrenewal. His order included a factual finding that Mr. May had told Mrs. Kirtley specifically the deficiencies in her performance. It also stated as a legal conclusion that there was substantial evidence to support the decision and that it had a rational basis. The order also contained the following:

A hearing was held by the Court on March 18, 1985 pursuant to § 80-1266.9(d) and additional testimony was taken.
I must determine if the nonrenewal was arbitrary or capricious and if the Board complied with § 80-1266.6.
An action is arbitrary or capricious only if it is not supportable on any rational basis. Lamar School District No. 39 v. Kinder, 278 Ark. 1, 642 S.W.2d 885 (1982).

It is thus apparent the judge went beyond finding the procedure was correct.

While we are troubled that the testimony of Larry May was mostly conclusory with respect to Mrs. Kirtley’s lack of organizational ability, the burden at the trial was on the appellant to show the board’s action was arbitrary, capricious or discriminatory. The bases of Mr. May’s conclusions were not sufficiently explored before the court to show that the board improperly relied on the conclusions he stated.

The appellant has argued that, as a general proposition, the changes in the Teacher Fair Dismissal Act which appear in the 1983 version were favorable to the teachers and that we therefore should depart from our previous interpretations. We have not, however, been cited to any language making a substantive change which would alter our decision in Lamar School District No. 39 v. Kinder, cited in the trial court’s order above, to the effect that if there is any rational basis the court need not find the board’s decision to have been arbitrary, capricious, or discriminatory. See also, Lee v. Big Flat Public Schools, 280 Ark. 377, 658 S.W.2d 389 (1983).

Affirmed.

Purtle, J., not participating.


author: Per Curiam.

text:
    Earnest L. BAKER v. LOCKHART, Director, Board of Pardons and Parole
    85-293
    702 S.W.2d 403
    Supreme Court of Arkansas
    Opinion delivered January 21, 1986

      Appellant, pro se.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellee.
   Per Curiam.

In July, 1985, appellant filed a pro se petition for writ of habeas corpus in the trial court on the ground that he had been denied due process and equal protection of law by being twice denied release on parole. The trial court concluded that a writ of habeas corpus was not the proper remedy to challenge the parole board’s action and dismissed the petition. Appellant filed a notice of appeal and lodged the record. He now requests appointment of counsel.

The motion is denied and the appeal dismissed. A petition for writ of habeas corpus is restricted to the questions of whether the petitioner is in custody pursuant to a valid conviction and whether the convicting court had proper jurisdiction. Bargo v. State, 279 Ark. 180, 650 S.W.2d 227 (1983); Mitchell v. State, 233 Ark. 578, 346 S.W.2d 201 (1961). As a writ of habeas corpus is not a remedy for attacking parole decisions, appellant could not prevail on appeal. For this reason, there is no good cause to appoint counsel or to continue with the appeal.

Motion denied & appeal dismissed.

Purtle, J., not participating.


text:
    Allan W. VIRGIN v. LOCKHART, Director, Arkansas Department of Correction
    85-283
    702 S.W.2d 9
    Supreme Court of Arkansas
    Opinion delivered January 21, 1986

      Appellant, pro se.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellee.
   Per Curiam.

Appellant who is an inmate of the Arkansas Department of Correction sought a writ of mandamus from the circuit court to compel the Department to reassess his parole eligibility status. The circuit court denied the petition and the record has now been lodged on appeal. We denied appellant’s first motion for appointment of counsel in this appeal because he stated no grounds. He has filed a motion to reconsider, contending that he has a right to counsel.

In criminal cases the accused has a constitutional right to counsel at trial. There is no corresponding right to counsel in a postconviction proceeding, Dyer v. State, 258 Ark. 494, 527 S.W.2d 622 (1975), or in a civil action. See Peterson v. Nadler, 452 F.2d 754 (8th Cir.1971); see also Johnson v. Teasdale, 456 F. Supp. 1083 (W. D. Mo. 1978). Since a petition for writ of mandamus challenging the computation of parole eligibility is a civil action, neither the circuit court nor this Court is obligated to provide an attorney to perfect an appeal if the petition is denied.

In those cases where the appellant is able to make a substantial showing that he is entitled to relief and that he cannot proceed without counsel, however, we will appoint an attorney on appeal. Appellant here has not established that the circumstances of his case require appointment of counsel.

Motion denied.

Purtle, J., not participating.


text:
    Earnest Lee WADE v. STATE of Arkansas
    CR 79-19
    702 S.W.2d 28
    Supreme Court of Arkansas
    Opinion delivered January 21, 1986
    Petitioner, pro se.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for respondent.
   Per Curiam.

Earnest Lee Wade was convicted of second degree escape and sentenced to ten years imprisonment and a $10,000 fine in Lincoln County Circuit Court. He was declared a pauper which entitles him to a record at state expense, and Betty Dickey was appointed to represent him on appeal. She has not yet filed a brief in his behalf. Wade asks that he be allowed to file a supplemental pro se brief, agreeing to fully comply with our rules on the form of such briefs.

Wade’s motion is premature. Since he has not read his attorney’s brief, he cannot say that it is deficient. If after reading the brief, Wade finds it inadequate, he may file a second motion to supplement. He should be aware, however, that unless he can clearly show that counsel’s brief is lacking, he will not be permitted to file a supplemental brief.

There has to be an orderly procedure and consistent rules governing all legal petitions for relief, whether it be by a member of the bar, litigants representing themselves, or an inmate of a penal institution. In our judgment counsel is necessary to effectively represent a person charged with a serious criminal offense. If counsel is not obtainable because of indigence, it will be provided, both at trial and on appeal. Counsel is presumed competent. Watson v. State, 282 Ark. 246, 667 S.W.2d 953 (1984). That does not mean that counsel will argue every conceivable issue in a case or should present frivolous issues. It is a matter of good judgment how to present an appeal and legal counsel is best able to do that. Jones v. Barnes, 463 U.S. 745 (1983).

Under the proper circumstances we will allow individuals to represent themselves, but they receive no special consideration of their arguments. See Green v. State, 277 Ark. 129, 639 S.W.2d 511 (1982).

Motion denied.

Purtle, J., not participating.


author: George Rose Smith, Justice.

text:
    John R. DEAL and William T. DEAL v. Martha Deal HUDDLESTON, Executrix, et al.
    85-213
    702 S.W.2d 404
    Supreme Court of Arkansas
    Opinion delivered January 27, 1986

      Gibson, Gibson & Hashem, by: C. C. Gibson, III, for appellants.

      Williamson, Ball & Bird, for appellees.
   George Rose Smith, Justice.

Mellie Nichols Deal, 88, a resident of Monticello, died testate in April, 1984, survived by two sons, the appellants, and two daughters, the appellees. The bulk of the estate, consisting of certificates of deposit and other liquid assets valued at about $125,000, was left equally to the testatrix’s four children and presents no problem. Two disputes, however, have arisen with respect to the testatrix’s furniture, household goods, and other personal effects.

First, in a paragraph to be quoted in a moment, the will left all such articles of tangible personal property to the two daughters as trustees, to be appropriately distributed by them among the four children. The sons questioned the validity of that trust, as being too indefinite to be enforceable. The probate judge held that the trust is valid, but that the discretion vested in the trustees “is not subject to control by any person or court.” The sons appeal from that decision, bringing the case to this court under Rule 29(l)(p).

Second, Martha Deal Huddleston, executrix of the will, filed a petition alleging that her two brothers had wrongfully taken various articles belonging to the estate, claiming ownership. She asked that the brothers be directed to return the property. The trial judge held that the probate court had no subject-matter jurisdiction of that petition, which was dismissed without prejudice. The executrix cross appeals from that decision. No proof has been submitted on either issue.

We first consider the validity of the trust. The paragraph creating the trust reads as follows:

Specific Bequest of All Household Goods and Personal Effects. I bequeath to my two daughters, Martha Deal Huddleston and Melanie Elizabeth Deal Dwyer, or to the survivor of them, as trustees and in trust, for the uses and purposes, with the authority and subject to the responsibilities and duties hereunder stated, all of the household furniture, appliances, fixtures, equipment, and all bedding, linens, tableware, silverware, china, cut-glass, vases, and other articles of household utility or adornment, and all wearing apparel, pictures, jewelry and other personal effects, owned by me at the time of my death. My two daughters, as trustees, shall be vested with the authority, and charged with the duty and responsibility, to distribute my household goods and personal effects among my surviving children (including my two daughters, also including the heirs of the body of any child of mine who shall have predeceased me) in such manner as my daughters, in the exercise of their own best judgment and discretion, consider to be most appropriate, fair, just and equitable, having due regard for any memoranda which I may leave indicating my wishes as to who shall have particular items of my household goods and personal effects.

The appellants, citing a number of cases and other authorities, argue that the proposed trust is too indefinite to be enforced by a court and involves an impermissible conflict of interest in that the two sisters have asserted they have the authority to distribute all the property to themselves if they wish. The trial court sustained the sisters’ position.

It is fundamental that when discretion is conferred upon a trustee with respect to the exercise of a power, a court may act to prevent an abuse of that discretion. Restatement of Trusts 2d, § 187 (1959). We have often recognized the authority of the chancery court to supervise a trustee’s conduct. Bieatt v. Echols, 181 Ark. 235, 35 S.W.2d 431 (1930), citing earlier cases. We have not considered the situation now presented.

Elsewhere, a few cases have arisen in which, as here, one or more trustees have been given the discretionary power to distribute trust property among the members of a group that includes the trustees. The courts have almost invariably upheld such trusts, but have taken steps appropriate to the particular case to avoid adverse results from the conflict of interest. In some instances the superintending court has substituted its own discretion for that of the trustee. In Re Peabody’s Will, 277 App. Div. 905, 98 N.Y.S.2d 614 (1950); Armington v. Meyer, 103 R.I.211, 236 A.2d 450 (1967). In other circumstances the appointment of a cotrustee or a new trustee has been found to be proper. Rogers v. Rogers, 111 N.Y. 228, 18 N.E. 636 (1888); Estate of Kagan, 118 Misc.2d 1084, 462 N.Y.S.2d 128 (1983).

As is always the rule in the interpretation of a will, we must if possible give effect to the intention of the testatrix. It will not do for us to adopt either of the courses chosen in the above cases, displacing the trustees, for here Mrs. Deal unquestionably meant to have the benefit of her daughters’ best judgment in the matter. For the same reason we reject a suggestion made by the appellants, that the articles be sold and the proceeds divided. That sort of disposition is exactly what the testatrix wanted to avoid.

On the other hand, Mrs. Deal did not mean for her daughters to take all the articles themselves or to make an arbitrary distribution, for she expected the division to be “appropriate, fair, just and equitable.” We think the most sensible solution is for the appellees to put down in writing, within a reasonable time to be fixed by the trial judge if necessary, just what articles they propose to award to each of the four heirs. The appellants must then be given an opportunity to present their specific objections, with the points of disagreement to be submitted to the probate court if the brothers and sisters are not able to reach an agreement. We realize that all four are nonresidents, living in four other states, but that is a difficulty they must overcome.

The will directs the trustees to have “due regard” for any memoranda the testatrix may leave indicating her wishes. That language is not mandatory, but her wishes should have much weight. The appellants argue that no such memorandum made after the execution of the will can be effective. That was formerly our rule, but in 1979 the legislature approved the use of signed memoranda, with certain restrictions. Ark. Stat. Ann. § 60-419 (Supp. 1985). Whether any such memoranda were left by Mrs. Deal is for the trial court to decide if the issue is disputed. A memorandum was attached to the inventory, but the signature in the margin has not been verified.

The cross appeal concerns the trial court’s disclaimer of jurisdiction to determine the ownership of articles assertedly taken by the appellants, at least some of which they claim to have owned before their mother’s death. For a long time there was uncertainty in our statutory and case law about the jurisdiction of the probate court to determine questions, arising in administration proceedings, with respect to the ownership of personal property. In Snow v. Martensen, 255 Ark. 1049, 1056, 505 S.W.2d 20 (1974), we discussed several of our pertinent decisions and concluded that “the better rule would be that the probate courts do have jurisdiction to determine the ownership of property ... as between personal representatives claiming for the estates and heirs or beneficiaries claiming adversely to the estates.” More recently, in Keenan v. Peevy, 267 Ark. 218, 233, 590 S.W.2d 259 (1979), we echoed the statement in Snow that “the better rule” is for the probate courts to have that jurisdiction. As a practical matter it is plain that the dispute should be determined in one court, not in two. We accordingly adopt without equivocation this better rule and recognize that the probate court’s jurisdiction should and does exist.

Reversed on direct and cross appeal and remanded.

Purtle, J., not participating.


text:
    James JOHNSON v. STATE of Arkansas
    CR 85-163
    702 S.W.2d 2
    Supreme Court of Arkansas
    Opinion delivered January 27, 1986
    [Rehearing denied March 3, 1986.]

      Joel W. Price, for appellant.

      Steve Clark, Att’y Gen., by: Joel O. Huggins, Asst. Att’y Gen., for appellee.

       Purtle, J., not participating.

   George Rose Smith, Justice.

The appellant was charged with incest, in that he had sexual intercourse with his daughter, then 19 years old. The appellant’s defense, voluntary intoxication, was submitted to the jury in AMCI 4005.1. The jury found the defendant guilty and imposed a five-year prison sentence. The case was transferred to us as presenting an issue of statutory construction. Rule 29(l)(c). The five points for reversal relate to the voir dire of the jury and to the admissibility and sufficiency of evidence. We do not find any basis for disturbing the conviction.

The prosecutrix testified that she had a baby when she was twelve and living with her family. Shortly after that her father began fondling her and eventually had sex with her. That continued until she was seventeen, when she married and moved to an apartment with her husband. She and her husband separated, but she kept the apartment.

About a week before the offense the defendant let his daughter know that he wanted to have sex with her again. She testified that she did not intend to permit it and enlisted the aid of a friend, who called the police. The officer said that the police do not act unless a complaint is made. The prosecutrix testified that when her father telephoned her that he was coming to the apartment, she again called her friend. He testified that he drove over there and watched the defendant arrive in his car. The prosecutrix testified that her father entered the apartment, began fondling her, and eventually laid her on a pallet and accomplished his purpose. She said that in the past he had threatened to kill her if she told anyone. She said he was not intoxicated that morning.

The appellant testified that he had been an alcoholic for many years. He professed to remember nothing about the earlier incidents and did not see how they could have happened. He said that on the morning of the alleged offense he had drunk beer and whisky. His daughter, according to his version, called him and asked him to come to her apartment. He drove over there. She explained that she was worried about some bills her husband had incurred. After some conversation she asked to borrow his car that night, but he refused because he had no insurance on it and she did not have a driver’s license. “And that’s all that I can remember.”

The appellant first complains that the trial judge unduly restricted his voir dire of the jurors. Counsel sought to ask a number of hypothetical questions about situations that could not arise during the trial. For example, his first question to one juror was: “Mr. Patterson, if you were asked to cast your vote at this minute, of guilt or innocence of James Johnson, how would you vote?” Other impermissible questions were so long and involved that we do not set them out. When the prosecutor objected to the method of examination, the trial judge noted that the questions were confusing to the jurors. The judge also explained in a general way what questions would be allowed. The hypothetical questions counsel sought to ask were much too detailed and might easily have confused the jury. We find no unnecessary limitation of counsel’s right to examine the veniremen.

Second, it is argued that the court should not have permitted the prosecutrix to testify about her father’s earlier incestuous relations with her. Uniform Evidence Rule 404(b) excludes proof of a defendant’s other crimes to prove his character in order to show that he acted in conformity with that character. The Rule then gives examples of permissible purposes in proving other crimes, such as proof of motive, opportunity, intent, and soon. We have long held that proof of prior incestuous acts with the same person is admissible. Adams v. State, 78 Ark. 16, 92 S.W. 1123 (1912). Our reasoning was explained in a carnal abuse case involving proof of prior similar acts between the parties, Williams v. State, 103 Ark. 70, 146 S.W. 471 (1912):

The testimony in question was not introduced for the purpose of proving a substantive crime, but to show the relation and familiarity of the parties, their disposition and antecedent conduct towards each other, and as corroborative of the testimony of the prosecuting witness touching the crime charged in the indictment. It showed the intimacy of the parties, and was admissible as characterizing the previous acts and conduct of the parties in regard to the particular offense charged.

Another incest case so holding is Carmen v. State, 120 Ark. 172, 179 S.W. 183 (1915). The appellant cites Alford v. State, 223 Ark. 330, 266 S.W.2d 804 (1954), where we put an end to a developing practice of saying loosely that proof of recent, similar crimes is admissible to show intent. See Gerlach v. State, 217 Ark. 102, 229 S.W.2d 37 (1950); Hummel v. State, 210 Ark. 472, 196 S.W.2d 594 (1946); Hearn v. State, 206 Ark. 206, 174 S.W.2d 452 (1943). In the Alford opinion, however, we adhered to the rule applicable to prior incestuous acts between the same parties, citing Adams, supra. The trial court correctly applied that rule in the present case.

The appellant’s third argument is that the trial judge should have directed a verdict for Johnson, because his daughter was an accomplice and her testimony was not corroborated. In the first place, there was no motion for a directed verdict, and the trial judge is not required to take that action on his own initiative. In the second place, the Criminal Code provides that the victim of a crime is not an accomplice. Ark. Stat. Ann. § 41-305 (Repl. 1977). It is argued that the prosecutrix was not a victim, because it is asserted she was trying to lay a trap for her father, to prove that he had abused her sexually in the past. That is an unrealistic interpretation of her testimony, for she said she tried to prevent her father’s impending visit and said positively that she had not intended to have sex with him. Thus whether she was a victim was at the very least a disputed issue of fact; so a directed verdict would have been wrong.

A fourth argument is that the defendant should have been allowed to testify, as part of the defense of intoxication, that after his arrest he had taken Antabuse for months and participated in counseling in an effort to correct his alcoholism. The trial court correctly refused to allow such testimony by the defendant.

Voluntary intoxication is not a statutory defense under the Criminal Code, but is recognized as a common-law defense when a crime, such as burglary, requires the formation of a specific intent. Varnedare v. State, 264 Ark. 596, 573 S.W.2d 57 (1978). AMCI 4005.1, which was given, is based on that case. In the case at hand the instruction told the jury that voluntary intoxication is a defense only if as a result of it James Johnson lacked the capacity to form the purposeful mental state necessary to commit the offense. AMCI2403, which was also given, told the jury that the State must prove that James Johnson had sexual intercourse with a person he knew to be his descendant. Thus the only specific knowledge required is that Johnson knew that the prosecutrix was his daughter. There has never been even the slightest suggestion that he did not recognize her as his daughter. To the contrary, his own testimony showed that immediately before the commission of incest he drove to her house and-discussed her lack of a driver’s license. Johnson’s proffered testimony about his attempted rehabilitation after his arrest was not relevant to the issue of guilt or innocence. It must be kept in mind that even if the jury believed that he had no memory of the incident, that alone would not establish his innocence.

In the appellant’s brief counsel states that a doctor and a counselor were available to testify at the trial about the blackout problems common to alcoholics and would have given their opinions about the appellant’s alcoholism and his amnesia when intoxicated. Counsel concedes that his proffers “could have been more specific,” but actually there was no proffer of what the doctor or the counselor might have testified; they were not even mentioned. Their opinions were submitted to the trial judge at a sentencing hearing six weeks after the trial, and were considered, but with respect to their possible testimony there was no error at the trial.

Finally, appellant complains that the prosecutrix was permitted to testify that as a result of the earlier incidents with her father she had a slight nervous breakdown, was in the hospital, and saw a psychiatrist. The point was raised at a bench conference requested before the witness had answered the first question about these matters. Counsel objected, saying: “I think he’s getting into counseling she might have had afterwards.” If the objection was meant to refer to counseling after the offense on trial, there was no such testimony. If it referred to problems she had after the earlier occurrences, that testimony did have some probative value in tending to show that the prior incidents of incest had actually taken place. Whatever prejudicial effect the testimony might have had did not so clearly outweigh its probative value as to enable us to say that the trial judge abused his discretion in admitting the testimony into evidence.

Affirmed.

Purtle, J., not participating.


author: Darrell Hickman, Justice.

text:
    David SOLOMON, et al. v. VALCO, INC.
    85-202
    702 S.W.2d 6
    Supreme Court of Arkansas
    Opinion delivered January 27, 1986

      Thomas B. Keys, Chris O. Parker and Robert L. Wilson, for appellant.

      Huey & Vittitow, for appellee.
   Darrell Hickman, Justice.

The decision is reversed because this is a suit against the state, and the chancery court had no jurisdiction.

Valeo contracted with the Arkansas Highway Commission to improve about one mile of Highway 71 in Scott County. The contract called for the removal of several existing bridge structures. After Valeo obtained the contract, a dispute arose regarding the removal of two bridges, one over Fouche LaFave River and the other over Fouche LaFave Relief. Valeo insisted it was not in the contract to remove these two bridges. The chief engineer for the Highway Commission ruled pursuant to the contract, that Valeo had to remove the bridges.

Valeo filed a suit in the Pulaski County Chancery Court against the Arkansas Highway Commission’s chief engineer, a former member of the commission and the director of the Arkansas Highway and Transportation Department to enjoin the Highway Commission from requiring the removal of the bridges. Contemporaneously, a claim was filed by Valeo with the state’s Claims Commission for compensation for the work.

The chancellor found the contract ambiguous regarding the two bridges, ruled that the chief engineer was arbitrary in resolving the matter against Valeo and issued the injunction. We only need to address the question of jurisdiction. This was simply a suit against the state, prohibited by the Ark. Const. Art. 5 § 20, which provides: “The State of Arkansas shall never be made defendant in any of her courts.” The fact that the state Highway Department director, commission board members, and chief engineer were named parties instead of the state itself is not determinative of whether the state is the defendant. We look beyond the named parties to see if the real claim is against the state. McCain v. Crossett Timber Co., 206 Ark. 51, 174 S.W.2d 114 (1943). Obviously, the issue here is the business of the state and the defendants, though individuals, were named in their official capacities.

Another factor is whether the suit directly or indirectly coerces the state. Watson v. Dodge, 187 Ark. 1055, 63 S.W.2d 993 (1933). This j udgment directly orders the state not to enforce its contract.

Exceptions to the rule prohibiting suits against the state are few. Two instances which are not considered suits against the state are when an agency or officer acts illegally or ultra vires, which means beyond the agency’s or officer’s legal power or authority. Federal Compress & Warehouse Co. v. Call, 221 Ark. 537, 254 S.W.2d 319 (1953); Ark. Game & Fish Comm. v. Eubank, 256 Ark. 930, 512 S.W.2d 540 (1974). Condemnation cases are also not considered suits against the state. Ark. Highway Comm. v. Flake, 254 Ark. 624, 495 S.W.2d 855 (1973).

This suit is not within any of these or other exceptions; it is simply a suit directly against the state which is prohibited by the constitution.

Reversed and dismissed.

Purtle, J., not participating.


author: Robert H. Dudley, Justice.

text:
    William PARKER v. SALINE COUNTY and Wayne BISHOP, Saline County Judge Willie G. BAKER, Ruth BAKER, George IVIR, and Randy BAILEY (Intervenors)
    85-215
    702 S.W.2d 7
    Supreme Court of Arkansas
    Opinion delivered January 27, 1986

      Dan Kroha, for appellant.

      Joe Kelly Hardin, for appellees.

      James L. Sloan, for intervenors.
   Robert H. Dudley, Justice.

The incorporation of the Town of Alexander was granted in 18 87 by the County Court of Pulaski County. In 1982, the Town of Alexander, ex parte, petitioned the Circuit Court of Saline County for an order declaring that the town was incorporated in both Saline and Pulaski Counties. The petition was filed in order to obtain turnback funds from Saline County as well as from Pulaski County. Although there was no notice of any type, the Circuit Court granted the order and held that Alexander was incorporated in both counties. In 1984, appellant, William Parker, filed the instant suit against Saline County and the County Judge of Saline County. It was filed in the Chancery Court of Saline County and the prayer recites:

WHEREFORE, plaintiff prays that this Court immediately issue its Order declaring that the Saline County Circuit Court Order of May 17; 1982 is correct, that the corporate limits of Alexander extend into Saline County as shown by the plat filed with the Secretary of State, that the County Judge and his agents, servants and employees should recognize the established limits of Alexander, costs and all proper relief.

The Chancery Court took jurisdiction of the case and ruled that the County Judge would not be compelled to follow the Circuit Court order because Alexander exists only in Pulaski County. We reverse and remand since the Chancery Court was completely without subject matter jurisdiction.

The petition praying that the County Judge be compelled to do an act is a petition for a writ of mandamus. A writ of mandamus is defined as “an order of the Circuit or Chancery Court granted upon the petition of an aggrieved party or the State when the public interest is affected, commanding an executive, judicial, or ministerial officer to perform an act, or to omit to do an act, the performance or omission of which is enjoined by law.” Ark. Stat. Ann. § 33-102 (Repl. 1962). Without question, we have often held that a county judge may be compelled by mandamus to perform an act. See, e.g., Merritt v. School District, 54 Ark. 468, 16 S.W. 287 (1891). However, that part of Ark. Stat. Ann. § 33-101 (Repl. 1962), which declares that the Chancery Court shall have subject matter jurisdiction to hear a petition for a writ of mandamus is unconstitutional. Nethercutt v. Pulaski County Special School Dist., 248 Ark. 143, 450 S.W.2d 111 (1970) overruling Higgins v. Barnhill, 218 Ark. 466, 236 S.W.2d 1011 (1951). The reason it is unconstitutional is the Arkansas Constitution gives the General Assembly the authority to create courts of chancery, but only authorizes the General Assembly to vest chancery courts with such jurisdiction as was known at the time the constitution was adopted, and the writ of mandamus was a common law writ, unknown to equity, at the time of the adoption of the Constitution of Arkansas. Nethercutt v. Pulaski County Special School Dist., supra. The Chancery Court, therefore, was wholly without subject matter jurisdiction to hear the petition in the case now before us.

The decree rendered by a court wholly without subject matter jurisdiction is vacated and set aside, but the original petition is not dismissed. See Taylor v. Bay St. Francis Drainage District, 171 Ark. 285, 284 S.W. 770 (1926). The original petition may be transferred to circuit court.

Reversed and remanded.

Purtle, J., not participating.


text:
    Irma Jean WATSON v. Richard L. DIETZ, Administrator, Arkansas Social Services
    85-211
    702 S.W.2d 407
    Supreme Court of Arkansas
    Opinion delivered January 27, 1986

      Rose Law Firm, A Professional Association, by: Phillip

      Carroll, for appellant.

      Stephen C. Sipes, for appellee.
   Robert H. Dudley, Justice.

Appellee, the Administrator of Adoption Services for Arkansas Social Services, filed a petition in probate court for appointment of a guardian with power to consent to adoption without notice to, or consent of, the natural parent. The trial court granted the petition and terminated the parental rights of appellant. We affirm.

The petition alleged, and the trial court found, that placing three of appellant’s illegitimate children in her custody would raise a substantial risk of serious harm to the children. The trial court recited three reasons for his decision. Each of the three. reasons constitutes a valid reason to grant the petition. See Ark. Stat. Ann. §§ 56-128(F)2.a.i.; 56-128(F)3.; and 56-128(H) (Supp. 1985). The appellant contends that the evidence is insufficient to show that she is an unfit mother. We affirm on the issue of the sufficiency of the evidence, and we need discuss only one of the three reasons given, since any one of them is sufficient to uphold the ruling.

One of the reasons given by the trial court to show that appellant is unfit is that placing the children in the custody of the appellant would raise a substantial risk of serious harm to the children because the appellant is irremediably unable to provide for the basic needs of the children over an extended period of time. See Ark. Stat. Ann. § 56-128(F)3. (Supp. 1985).

A summary of the family members and their ages is as follows. The appellant was born on July 20,1964. Her first child, Tichia, was born on July 12,1976, a few days before the appellant reached her twelfth birthday. The putative father lives in Chicago and does not contribute to the child’s support. Tichia, now nine years old, was first placed in a foster home at fifteen months of age, and now has lived in a foster home for over seven of her nine years. The second child, Visa, was born June 5, 1978, when appellant was thirteen years old. The putative father is in the penitentiary and does not contribute to the support of the child. Visa is now seven years old and has been in a foster home for all but six months of her life. The third child, Mary Ann, was born July 23,1979, when appellant was fifteen. Her putative father is also in the penitentiary and does not contribute to her support. She is six years of age and has been in a foster home for all but ten months of her life.

The dynamics of the family life which led to this case are as follows. In October 1977, Social Services received a report that appellant and five other children were destitute and alone in the home of appellant’s mother. Upon investigating, a representative of the agency found appellant, then thirteen, with her brothers, sisters, and her own one year old child, Tichia, in her mother’s house without gas, water, or food. At the time, appellant’s mother was incarcerated. Foster placement was ordered, but, when the mother was released from jail, appellant and her child were returned to appellant’s mother. In February, 1978, appellant, then fourteen, and her child were ordered placed in foster care. At that time, it was learned that appellant and Tichia both had a social disease, and that appellant was again pregnant. Appellant was placed in the Florence Crittenden Home for Unwed Mothers. She soon ran away from the home. Shortly thereafter, she entered the University Medical Center, where Visa was born. Her first child, Tichia, was then placed in one foster home, while appellant and Visa were placed in another. Appellant took her new baby and ran away. The baby was later located and returned to foster care.

Appellant, who by this time was 14 years old, began living with a 33 year old man by whom she soon had her third child, Mary Ann.

The evidence which demonstrates the inability of the appellant to meet the needs of the children is summarized as follows. In 1980, Social Services attempted to stabilize the family situation. Custody of the two older children was returned to appellant, with the agency retaining supervisory custody. At that point, the appellant had not lost custody of the youngest child. The arrangement soon gave the employees of Social Services cause for apprehension. One testified, “The on-going safety of proper supervision was of great concern to me. No amount of discussion with Ernestine [appellant’s mother] or Irma [appellant] produced any real changes for the better.” The agency representative described some of the causes for concern: She had purchased safety gates for the kitchen and stairwells since there were several toddlers, and she had also secured two baby beds for the youngest, yet, none of these items were ever used. She visited the home almost daily and many times found “Mary Ann left unattended on the sofa or stuck in a box off in the corner getting no attention from anyone,” On one occasion, she caught Mary Ann just as she was about to roll off of the sofa onto the concrete floor. She discovered there had been a grease fire in the kitchen which had caused extensive damage. It had been caused by leaving the gas jets on full blast to heat the house.

The Social Services’ representative testified that Visa received splash and dip burns to her foot and leg while playing unsupervised with the younger children in an upstairs bathroom. Visa was hospitalized for several weeks and she also received treatment for an old burn on her arm the size of a quarter. She required follow-up care at the burn unit of Children’s Hospital. The representative stated, however, that “it was impossible to get Ernestine or Irma to see the importance of the follow-up appointments, and they missed several.”

During this period Tichia had to be hospitalized for a staph infection all over her body. The Social Services’ representative testified that she helped get funds for medicine upon the child’s release and tried to monitor the administration of medicine on her daily visits, but subsequently she found the bottle half full because appellant had not given the child the prescribed amount.

The representative of the agency testified that the cribs were full of dirty bedding, and were never used. When the gas for heating was turned off by the utility company, an electric hot plate was continuously left on the high setting for heat. “Another matter of great concern was the male traffic, the drinking and the violence in the home.”

During the period following Visa’s release from the hospital, appellant and the representative of Social Services discussed a rehabilitation plan for Irma. Appellant decided she wanted to go back to school, and she enrolled in Booker Junior High School where she stayed for only five days. The representative stated that the deciding factor in the decision to remove the children came on April 15,1980, when she made a routine home visit and found the children at home alone. Tichia was playing with fish hooks and a tackle box. The electrical hot plate was sitting on the coffee table and was red hot. She found Visa, in diapers, sitting on an electrical cord with a dishpan of dirty water next to her. Mary Ann was in the same room in a playpen. She was crying. She had a thick mucous caked under her nose and a pus-like substance on her neck. She had a circle around her neck of what appeared to be a raw-type infection. She was hot to the touch, flushed, and appeared sick.

Appellant later took the children to her aunt’s house. While there, there were almost daily reports from the aunt to Social Services that appellant was not participating in the care of the children. Instead, the Aunt said, she was going to see her boyfriend for two or three day periods. Appellant only attended three of the six basic child care classes which a representative of Social Services arranged.

When appellant was 16 years old she had a miscarriage, but did not seek help. While she has received CETA job training, she has not had a job. She moved from house to house until she finally moved in with her boyfriend, by whom she has had another baby. The appellant had eight visits with her children over the three years immediately before trial, and the children were frightened of her during the visits.

From the foregoing evidence we affirm the probate court’s finding that placing the children in the custody of appellant would raise a substantial risk of serious harm to the children because appellant is irremediably unable to provide for the basic physical, mental, and emotional needs of the children over an extended period of time.

Ark. Stat. Ann. § 56-128(F), the section of the statute under which we affirm this case, provides that before grounds may be established under this subsection, the parent must be given remedial support services designed to reunite the child and parent. The services must last at least six months. Appellant contends that she did not receive sufficient remedial services. We find no merit in the argument.

A Permanency Planning Specialist, Sandra Walters, was assigned to appellant’s family. She testified to numerous visits, and her initial goal was to return the children to appellant. In order to accomplish that goal, she helped appellant and her mother locate a home, secured the rent and utility deposit money, and secured furniture and bedding. Immediately afterwards, the children were returned to appellant’s care.

The Social Services’ representative discussed appellant’s future with her, and then assisted her in enrolling in junior high school, where appellant remained for five days. The representative assisted appellant in enrolling in a CETA funded program and later assisted her in enrolling in a Job Corps program. The representative testified to numerous, almost daily, visits with appellant. Despite those offers and provisions of assistance, appellant was unable to provide for the basic, essential, and necessary physical, mental, and emotional needs of her children.

With regard to the final point of appeal, it is beyond question that the standard of proof constitutionally required by due process in termination of parental rights cases is the standard of clear and convincing evidence. Santosky v. Kramer, 455 U.S. 745 (1982); Harper v. Caskin, 265 Ark. 558, 580 S.W.2d 176 (1979); and A.B. v. Arkansas Social Services, 273 Ark. 261, 620 S.W.2d 271 (1981). Appellant contends that Ark. Stat. Ann. § 56-128, the termination of parental rights act, is unconstitutional because it does not require that unfitness of a parent be found by clear and convincing evidence. While the argument, without more, has merit, we reject it in this case because the trial judge did apply the clear and convincing standard. The trial court expressly ruled:

4. Prior to the presentation of the instant cause of action before this Court, said Court has previously determined, of its own and in light of decisions of the Supreme Court of the United States and the State of Arkansas and of other courts of competent jurisdiction, that the standard of clear and convincing evidence is the required standard of proof and evidence to be employed when considering actions wherein Guardianship with power to consent to adoption is sought.
5. Consistent and in compliance with the decision of the United States Supreme Court in Santosky v. Kramer, 102 S.Ct. 1388 (1982), this Court has applied the clear and convincing evidence standard of proof in its determination of this cause of action, thus according due process in a constitutional matter to the parties before it.

The Probate Judge in this case was the sole factfinder. The quotation demonstrates that he was impressed with the importance of the decision, and that he would not terminate the parental rights solely on a few isolated instances of unusual conduct or idiosyncratic behavior. He understood the degree of confidence our society thinks he should have in the correctness of factual conclusions for this type of case. The proper function of the standard of proof was fully implemented. The statute is constitutionally valid as applied in this case.

While we affirm this case, we are concerned at the length of time the Probate Judge took to decide this case. The case was heard on October 3, 1983, but a finding was not made until February 4,1985, a period of sixteen months. The sixteen month delay violated Ark. Stat. Ann. § 56-127(c) (Supp. 1985).

Affirmed.

Purtle, J., not participating.


text:
    Joe Willie STEWART v. STATE of Arkansas
    702 S.W.2d 2
    Supreme Court of Arkansas
    Opinion delivered January 27, 1986

      John Norman Warnock, for petitioner.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for respondent.
   Per Curiam.

Petitioner, Joe Willie Stewart, by his attorney, John Norman Warnock, has filed a motion for rule on the clerk. His attorney admits that the record was tendered late due to his miscalculation of the ninety-day limit for filing the record in this Court. See Ark. R. App. P. 5(a).

We find that such error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See per curiam dated February 5, 1979, 265 Ark. 964; Terry v. State, 272 Ark. 243 (1981).

A copy of this opinion will be forwarded to the Committee on Professional Conduct.

Purtle J., not participating.


author: Jack Holt, Jr., Chief Justice.

text:
    Robert ORR v. STATE of Arkansas
    CR 85-145
    703 S.W.2d 438
    Supreme Court of Arkansas
    Opinion delivered February 3, 1986

      Joe Villines, Jr., for appellant.

      Steve Clark, Att’y Gen., by: Charles R. Lucas, Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

The appellant, Robert Orr, was convicted by a jury of first degree murder and sentenced to life imprisonment. It is from that conviction that this appeal is brought. Our jurisdiction is pursuant to Sup. Ct. R. 29(1)(b). We affirm.

Testimony at the trial indicated that appellant and the victim, Loretta Daniels, had been having an affair for several years. At about 1:30 a.m. on May 16,1984, Mrs. Daniels and her five-year-old daughter, Patty, were sitting in their car outside the entrance to the Mar-Bax Shirt Factory in Gassville, Arkansas. They were waiting for Bill Daniels, Mrs. Daniels’ husband, to get off of work when a pickup truck pulled alongside the car. A shot was fired from the truck which hit the car and then struck Mrs. Daniels on the top of her head, killing her. Later that morning, Orr and his wife and son arrived at the Mountain Home Police Department, where Orr turned himself in. He was transported to the Baxter County Sheriffs Office where he was given a Miranda warning and signed a rights waiver form. He then gave a statement confessing the shooting. Trace metal detection tests were performed on Orr with positive results. After a preliminary hearing, the trial judge ruled the confession and the trace metal test results were admissible.

The appellant’s first argument on appeal is that it was error to admit into evidence his statement because it was involuntary, and the trace metal detection tests, as they were performed without notification to Orr of his Miranda rights.

We independently review the totality of the circumstances surrounding a confession to determine whether an accused knowingly, voluntarily and intelligently waived his constitutional rights. Cessor v. State, 282 Ark. 330, 668 S.W.2d 525 (1984). Among the factors considered in determining the validity of a confession are the age, education, and intelligence of the accused, the advice or lack of advice of his constitutional rights, the length of detention, the repeated or prolonged nature of the questioning, or the use of mental or physical punishment. Id.

Applying this test, the appellant is 36. There is no specific testimony about his education or intelligence, but he testified that he had worked at Travenol Laboratories in Mountain Home for eight and one half years as an assembly worker in the needle department, and he wrote songs as a hobby. He also indicated he could read, since he stated during his testimony that he read his statement over before the trial. Orr was advised of his constitutional rights and signed a rights waiver form. He was detained about three and one half hours, an hour of which was spent setting up and conducting the trace metal test, and he was questioned twice, once informally before the trace metal test, and once after. There was no evidence of or testimony about mental or physical punishment.

The appellant bases his argument for exclusion of the confession on the fact that he was so upset at the time the statement was made that he did not fully understand his constitutional rights. In fact, the appellant testified that he did not even remember if he was read the Miranda warnings, nor did he remember signing the rights waiver form. Appellant also points to the testimony of the officers that some of his answers to questions were not responsive, and the fact that at the conclusion of the confession he refused to sign the statement and requested a lawyer, as evidence that he did not understand that he was giving testimony against himself.

The officer who read appellant his rights testified, however, that when he signed the rights waiver form and by the time the interview began, Orr “had settled down” and was not shaking anymore and was giving responsive answers.

Examination of Orr’s seven page statement reveals a step by step narrative of Orr’s activities on the evening in question and detailed information as to his relationship with the victim. Although he refused to sign this confession, he was asked by an officer if he wanted to make corrections. The officer testified that Orr did, and that both he and Orr placed their initials on the various pages where corrections appear. This scenario is sufficient to support a conclusion that the appellant’s statement to the investigating officers was given knowingly, intelligently and voluntarily.

The trial court found the appellant knowingly and intelligently waived his right to remain silent after being given the standard Miranda warnings. The court also found the confession was voluntary. The court recognized that there was evidence that at one or two points the appellant experienced rather substantial emotional upset but that there was not evidence indicating “the emotional upset occurred at the time that he was advised of his rights or even occurred during the interview. . . The Court can’t help but believe that [it was] a conscious and deliberate act on his part in giving that statement and that it was voluntary. That his present posturing of amnesia, the Court does not find particularly credible.”

When testimony as to the circumstances surrounding the taking of a confession is conflicting, it is for the trial court to weigh the evidence and resolve the credibility of the witnesses and we do not disturb the court’s finding unless it was clearly against the preponderance of the evidence. Fuller v. State, 278 Ark. 450, 646 S.W.2d 700 (1983). The court’s decision was not clearly against the preponderance of the evidence. The confession was properly admitted.

The appellant’s contention that the results of the trace metal test should have been excluded is also without merit. Physical tests, such as the trace metal test, are not within the purview of the fifth amendment protection against self-incrimination. Weatherford v. State, 286 Ark. 376, 692 S.W.2d 605 (1985).

The admission into evidence of state’s exhibits 1,5 and 19, all photographs, is next challenged by the appellant. He contends these three photographs have no substantial evidentiary value and unfairly prejudiced or inflamed the jury.

Exhibit 1 is a photograph of the back of the victim’s shaved head showing the wound area. The other two pictures show a portion of the victim’s skull and hair stuck to the car headliner. Exhibit 1 was used by Dr. Donna Brown, a forensic pathologist, to explain the wound received by the victim and the manner in which it caused her death. The question of admissibility of photographs lies largely in the sound discretion of the trial court. Hill v. State, 275 Ark. 71, 628 S.W.2d 285 (1982), rehearing denied. Even inflammatory pictures are admissible “if they tend to shed light on any issue or are useful to enable a witness to better describe the objects portrayed or the jury to better understand the testimony or to corroborate testimony.” Prunty v. State, 271 Ark. 77, 607 S.W.2d 374 (1980) (quoting Sumlin v. State, 266 Ark. 709, 587 S.W.2d 571 (1979)). The photograph of the wound was permissible since it corroborated Dr. Brown’s testimony. Fuller v. State, supra.

Exhibits 5 and 19 were admitted into evidence without an objection by appellant as to unfair prejudice, thus this argument cannot be raised for the first time on appeal. Nevertheless, the trial judge did not abuse his discretion in admitting the pictures since they were used by investigating officers in their testimony to demonstrate where the bullet hit the car and deflected.

Appellant next contends that the statements made by 5-year-old Patty Daniels to the police were hearsay and were therefore inadmissible. Auxiliary Deputy Larry Haskins testified that he questioned Patty about what happened and she told him, “Yes this man shot my mommy.” She said a brown truck pulled up beside their car and her mother told the man to go home and she also said the man wore dark rimmed glasses. Patty told Deputy Sheriff Major McPherson that a man in a brown truck with dark framed glasses shot her mommy in the head.

Patty’s statements to the police were hearsay and it was error to admit them. They do not fall within the Unif. R. Evid. 803(3) exception governing statements of then existing states of mind, because that exception does not include “a statement of memory or belief to prove the fact remembered or believed.” Patty’s quoted declarations were inadmissible as they were statements of her memory about the past, not statements of an existing state of mind. State v. Abernathy, 265 Ark. 218, 577 S.W.2d 591 (1979).

Although we find that Patty’s comments to police officers should have been excluded, the trial court’s error was harmless. Before the police testimony was offered at the trial, seven witnesses testified without objection that Patty ran by after the shooting saying “somebody shot my mommy”. Patty was heard by one witness to say that a man pulled up in his truck and shot her. momma, and Bill Daniels, Patty’s father, testified she told him “Momma got shot” and “Robert done it daddy. Momma told him to go away, go home and leave me alone and he wouldn’t do it and he shot mommy.” The only new information given to the police by Patty was that the truck was brown and the man wore glasses. The fact that the pickup truck parked next to the victim’s car was brown was attested to by the other witnesses in the parking lot that night. Since the same evidence was introduced by other witnesses and was properly before the jury for its consideration, it was harmless error to allow the officers to testify as to Patty’s statements to them. See Mackey v. State, 279 Ark. 307, 651 S.W.2d 82 (1983). The appellant also claims Patty’s statements were inconsistent. That, however, was a matter for the jury to resolve when it weighed the credibility of the witnesses.

The final two issues raised by appellant are that the court erred by limiting testimony about statements made by Loretta Daniels to Patsy Gwenn Estes on the night of the shooting concerning her relationship with appellant, and by not allowing defense counsel to explore the history of that relationship.

As to the first limitation on testimony, appellant stated that Ms. Estes would have testified that on the night of the shooting, the deceased had a date with the appellant but later made a second date with a man named Bill and was going to break the date with appellant. This information, according to appellant, would have corroborated his testimony. The court ruled that the defense could elicit statements from Ms. Estes that “the decedent said that she was supposed to meet Robert that night and that she was wishing to avoid meeting Robert that night.” That is substantially what Ms. Estes said in her testimony. Inasmuch as the appellant was allowed to inquire into the subject he indicated a desire to pursue, no error was committed.

We need not reach the second limitation on testimony claimed by appellant. He argues that he was denied the opportunity to explore the relationship between appellant and the decedent, but he did not proffer the evidence he would have presented. We have held that “where error is assigned in the refusal of the court to hear testimony of a witness, the record must disclose the substance or purport of the offered testimony, so that this court may determine whether or not its rejection was prejudicial.” Williams v. State, 258 Ark. 207, 523 S.W.2d 377 (1975), (quoting Latourette v. State, 91 Ark. 65, 120 S.W. 411 (1909)). Here, the appellant did present testimony by several parties that the appellant and Loretta Daniels were apparently having an affair. Without knowing what additional testimony was refused, we cannot address its exclusion.

Pursuant to Ark. Stat. Ann. § 43-2725 (Repl. 1977) and Sup. Ct. R. 11(f) we have reviewed all objections brought to our attention in the abstract and briefs. We find no prejudicial error.

Affirmed.

Purtle, J., not participating.


text:
    Desmond BRYAN v. STATE of Arkansas
    CR 85-165
    702 S.W.2d 785
    Supreme Court of Arkansas
    Opinion delivered February 3, 1986

      Atchley, Russell, Waldrop & Hlavinka, by: JohnR. Mercy, for appellant.

      Steve Clark, Att’y Gen., by: Joel Oliver Huggins, Asst. Att’y Gen., for appellee.
   George Rose Smith, Justice.

The appellant, Desmond Bryan, now aged 67, was charged with rape in that he had engaged in deviate sexual activity with a six-year-old boy. Ark. Stat. Ann. § 41-1803(l)(c) (Repl. 1977). The jury found Bryan guilty and imposed a life sentence. Three points for reversal are argued.

The only evidence introduced by Bryan’s court-appointed trial counsel was a report of a psychological evaluation of Bryan made in September, 1984, three months after the offense. The examining psychologist stated in his report that Bryan was vague about the various charges of sexual misconduct that had resulted in his being in prison for 11 years. It is argued that the trial court should have excluded that reference to prior offenses, even though defense counsel offered the report and made no such request. Not only was the asserted error invited by the defense, doubtless in the belief that the reference was offset by the rest of the evaluation; it was not the trial judge’s responsibility to censor the five-page report before it was admitted, by stipulation.

A second argument questions the sufficiency of the evidence. For several weeks before the day of the offense the child’s parents had allowed him to associate with Bryan. On that day the parents were alerted by a stranger to the possibility of misconduct by Bryan. The father ran to Bryan’s nearby residence and entered the back door without knocking. Upon a bed by the door the child was lying on his back with his pants down to his knees. The father at first testified that Bryan was performing oral sex on the boy, and when the door opened “he started to raise up and . . . as he got his head about this far from what he was doing, he took his hand and wiped his mouth across like this.” When the witness was then asked if he could see whether Bryan’s mouth was actually in contact with the child’s penis, he could only say that the best picture he had in his mind was that Bryan’s mouth was about two inches above it and was in the motion of coming up.

That evidence is sufficient to support the conviction for rape by deviate sexual activity, which must under the statute have involved a penetration, however slight, of Bryan’s mouth by the child’s penis. AMCI 1803, which was given. When the jury considered the two-inch distance described by the witness, the upward movement of Bryan’s head, and his action in wiping his mouth, the jury could have been convinced that the necessary physical contact had occurred. There was substantial evidence to support that conclusion.

Third, the father was permitted to testify over objection that right after the occurrence he questioned his son, who made statements which the trial court admitted into evidence as excited utterances. Uniform Evidence Rule 803(2). It is now argued, as it was below, that such utterances should not have been introduced without a preliminary showing that the six-year-old child was competent to testify. No such showing was necessary, as we explained in Beal-Doyle Dry Goods Co. v. Carr, 85 Ark. 479, 108 S.W. 1053, 14 Ann. Cas. 48 (1908). The reason is that although the hearsay statement lacks the safeguard of having been made under oath, the probability of truth inherent in an excited utterance supplies a reliable safeguard.

We find no prejudicial error in other rulings that have been brought to our attention.

Affirmed.

Purtle, J., not participating.


author: George Rose Smith, Justice. Steele Hays, Justice,

text:
    Robert Michael LAWYER v. Linda Lorraine LAWYER
    85-212
    702 S.W.2d 790
    Supreme Court of Arkansas
    Opinion delivered February 3, 1986

      William W. Benton, P.A., for appellant.

      Edward M. Owens, for appellee.
   George Rose Smith, Justice.

In this divorce suit both parties asked for a divorce, for indignities. The couple were married in 1967 and separated in 1983. They have two children, Robert, now 15, and Janessa, now 11. After hearing much testimony the chancellor entered decrees granting a divorce to the wife, awarding custody of the children to her for nine months of each year and to the husband for the summer months, leaving the matter of visitation to the parties, awarding Mrs. Lawyer monthly alimony of $300 and monthly child support of $700, dividing the property, finding that Lawyer’s termination benefits under his contract of employment are marital property, and dividing those benefits in a manner to be detailed later in this opinion.

Lawyer has appealed, arguing (1) that he should have been given custody of the children and therefore possession of the family residence, and (2) that his possible termination benefits do not constitute marital property. The case comes to us for construction of the marital property statute. Rule 29(l)(c).

On the first issue we do not find the chancellor’s decision to be clearly erroneous. Most of each spouse’s proof was offered to show the other’s misconduct. Neither has been a faithful partner in the marriage, but nothing would be accomplished by a recitation of the testimony in detail. The chancellor observed that both the father and the mother had been excellent parents. In deciding that an award of custody to the mother would be in the best interest of the children, the chancellor considered it important that she had been at home much of the time and thus had had a close relationship with the children. We note, too, that a number of neighbors testified from their own observation that Mrs. Lawyer had been a fine mother. In custody cases especially we attach great weight to the conclusions reached by the trial judge. Here we cannot say that he was clearly wrong.

The other issue is whether Lawyer’s possible termination pay is marital property subject to division. In 1973, six years after the marriage, Lawyer began working as a local agent for the State Farm insurance companies and was still so employed when the case was tried in 1984. His employment contract provides that if the contract is terminated by either party, he will be entitled to 60 monthly installments of termination pay, based upon a specified percentage of his earnings during his final year of employment. The trial court, relying on Day v. Day, 281 Ark. 261, 663 S.W.2d 719 (1984), and Gentry v. Gentry, 282 Ark. 413, 668 S.W.2d 947 (1984), held that the payments will be marital property if received. By request, State Farm calculated that if Lawyer’s contract were terminated at the time of trial, he would be entitled to receive $1,288 a month for five years. The decree provides that if termination payments are made, Mrs. Lawyer, if still living, will receive half of each payment, not to exceed $644 (half of Lawyer’s $1,288).

Lawyer argues that the termination pay has not been acquired during the marriage and that its eventual receipt is too speculative for it to constitute marital property.

We must consider the payments in their proper setting. When an insurance agent sells a policy of automobile, fire, or life insurance, it is to be expected that the policy will remain in force indefinitely. For that reason it is a settled practice for the agent to receive a commission not only on the original premium but also on the renewals. Indeed, renewal commissions are so commonplace as to be discussed at length in treatises on insurance law. Appleman, Insurance Law & Practice, Ch.313 (1981);Couchon Insurance, §§ 26A:232 et seq. (2d ed., 1984). Hence when an insurance agent stays with the same company, as Lawyer has done, his renewal commissions increase as he writes more and more policies; they become a growing part of his regular earnings.

Lawyer’s printed contract with State Farm fixes initial and renewal commissions varying with the type of insurance sold. For automobile policies, for example, his commission is 55% of the first premium and 10% of renewals. He is required to solicit applications for insurance, collect initial premiums, countersign and deliver policies, assist policyholders, and cooperate with adjustors in handling claims. The contract recites that the renewal commissions are compensation for the agent’s required servicing of the policies he has written.

The contract may be terminated by either party at any time and will terminate if Lawyer dies. The five-year termination benefits, described earlier, begin at termination if the agent has been employed for two years or more. There is also a true retirement plan, entitled Extended Termination Payments. That plan takes effect if the contract is terminated after the agent reaches age 65 and has at least 20 years of service. The retirement benefits begin as in the five-year plan and then continue at the same monthly rate until the agent’s death. In any case of termination the agent must return all property and not solicit State Farm’s policyholders competitively for a year, but those restrictions are within the agent’s control and not relevant here.

We are unable to agree with the chancellor’s ruling that the five-year termination payments are vested marital property in this case. We are not concerned with State Farm’s true retirement plan, only with the 60-month stopgap that is evidently intended to compensate the agent for lost renewal commissions when the contract is terminated by the employer or by the agent himself. Lawyer was born in 1946 and will not reach 65 until the year 2011, twenty-five years in the future. When the suit was filed he had been with State Farm for ten years. His annual commissions had increased to about $80,000 (from which he must pay his staff and office expenses, not detailed in the testimony). There is no indication he is likely to terminate his association with State Farm. It would be next to impossible to put a present value on the possibility that Lawyer will receive termination payments before he reaches retirement age. Certainly no such estimate is in the record as abstracted. If, on the other hand, Lawyer retires after reaching 65, as presumably he will, the decree requires that up to $644 of his retirement benefits must be paid to his wife of 25 years earlier, though his earnings so long ago will have little to do with the amount of his retirement income. We are unwilling to extend our holdings in Day and Gentry to the facts of this case.

Before closing we should mention a case, not cited in the briefs, in which the California Supreme Court, on facts identical to those in the case at bar, held that five-year termination benefits under the same State Farm contract are divisible as community property, upon divorce. Skaden v. Skaden, 19 Cal. 3d 682, 139 Cal.Rptr. 615, 566 P.2d 249 (1977). The opinion, however, supplies no guidance; for the court made no suggestion about the division, declaring instead that in all such cases the proper division should be left to the sound discretion of the trial court, to which the case was remanded.

Affirmed in part, reversed in part.

Purtle, J., not participating.

Dudley and Hays, JJ., dissent.

Steele Hays, Justice,

dissenting. In Day v. Day, 281 Ark. 261, 663 S.W.2d 719 (1984), this court took a significant step forward in interpreting marital property under Ark. Stat. Ann. § 34-1214 (1985 Supp.), modelling our approach after the case of In re Marriage of Brown, 15 Cal.3rd 838, 126 Cal.Rept. 633, 544 P.2d 561 (1976). In Day v. Day we pointed out that we were not adopting an inflexible rule with respect to pension plans, but that our marital property law allows leeway for the exercise of the chancellor’s best judgment in providing that “all marital property shall be divided equally unless the court finds such a division to be inequitable,” adding:

What we do hold is simply that earnings or other property acquired by each spouse must be treated as marital property, unless falling within one of the statutory exceptions, and neither one can deprive the other of any interest in such property by putting it temporarily beyond his or her own control, as by the purchase of annuities, participation in a retirement plan, or other device for postponing full enjoyment of the property.

We have followed the Day decision in several later cases: Young v. Young, 288 Ark. 33, 701 S.W.2d 369 (1986); Gentry v. Gentry, 282 Ark. 413, 668 S.W.2d 947 (1984); Marshall v. Marshall, 285 Ark. 426, 688 S.W.2d 279 (1985), as has the Court of Appeals, Womacks v. Womack, 16 Ark.App. 139 (1985). Thus, in Day, we departed from earlier decisions that had looked largely to the question of vesting in determining whether one spouse had a marital interest in personal property of the other spouse: Hackett v. Hackett, 278 Ark. 82, 643 S.W.2d 560 (1982); Sweeney v. Sweeney, 267 Ark. 595, 593 S.W.2d 21 (1980); Paulsen v. Paulsen, 269 Ark. 523, 601 S.W.2d 873 (1980); and Potter v. Potter, 280 Ark. 38, 655 S.W.2d 382 (1983).

Here, the chancellor held that the termination benefits were marital property to be divided in kind, as in Day v. Day, supra, so that Mrs. Lawyer would receive her share of the benefits only when and if, Mr. Lawyer receives them.

These termination benefits, which became vested in 1975 though not mature until Mr. Lawyer’s employment terminates, are nothing more than deferred compensation, accruing, at least in part, during the marriage of these parties. That was the factor which prompted the court to hold as it did in In re Marriage of Brown, supra, and which should guide us to the same conclusion.

I disagree that Skaden v. Skaden, 19 Cal.3d 679, 139 Cal. Rept. 615, 566 P.2d 249 (1977) can be so easily disregarded as the majority opinion suggests. It has precedence for us in light of our dependence on Brown. The trial judge in Skaden held that termination benefits virtually identical to the benefits in this case were not divisible property. The Supreme Court reversed, finding on the strength of the Brown decision that the benefits were a form of deferred compensation as opposed to a mere expectancy, leaving only to the trial court on remand whether to divide the benefits in kind as received, or on the basis of present value. We should, I submit, adopt a similar position.

We have said that chancellors are given broad powers under § 34-1214 to distribute property in divorce, Williford v. Williford, 280 Ark. 77, 655 S.W.2d 398 (1983) and that the legislative purpose behind § 34-1214 should not be frustrated by drawing controlling differences between pensions vested and currently payable and those that are vested but payable in the future. Day v. Day, supra. If we are to be consistent, we should affirm the chancellor.