author: Tom Glaze, Justice. Ray Thorton, Justice.

text:
    Michael Scott CAMPBELL v. Bonnie CAMPBELL
    98-1288
    985 S.W.2d 724
    Supreme Court of Arkansas
    Opinion delivered February 18, 1999

      Appellant, pro se.

      Susan M. Johnson, for appellee.
   Tom Glaze, Justice.

This custody case commenced when the parties were when the parties were divorced in 1993. Michael Scott Campbell (hereafter Scott) was awarded custody of Natasha Nicole and Michael Scott (hereafter Michael), and Bonnie was given visitation and ordered to pay child support. Both parties were prohibited from having guests of the opposite sex overnight when the children were present. In 1996, Bonnie filed a motion alleging that a change of circumstances had occurred that warranted placement of the children with her, and after a two-day hearing, the chancellor agreed. Scott appealed the chancellor’s decision to the court of appeals, which by a 3-3 decision affirmed the chancellor. Campbell v. Campbell, 63 Ark. App. 136, 975 S.W.2d 869 (1998).

Scott petitioned for review, citing the court’s recent decision of Jones v. Jones, 326 Ark. 481, 931 S.W.2d 767 (1997), and arguing the court of appeals’ prevailing opinion failed to follow the Jones holding by allowing the chancellor to modify his original custody order by basing his modification only on changes that had taken place in the life of the noncustodial parent, Bonnie. We granted Scott’s petition because of the court of appeals’ divided vote and the obvious need to develop further the law adopted by this court in Jones.

The court of appeals’ prevailing opinion reflects the relevant circumstances that have occurred in the Campbells’ lives since their divorce, and commences by describing Bonnie’s serious mental depression resulting from the parties’ divorce and their first custody fight when Scott was awarded the children. See Campbell, 63 Ark. App. at 140, 975 S.W.2d at 871. We need not repeat those facts in detail again, but will allude to them as necessary when discussing applicable law in reaching our decision. Suffice it to say at this point, we believe the court of appeals’ recitation of the facts is correct. In summary, everyone can agree that Bonnie’s mental and personal welfare has improved to some degree since the parties’ divorce in 1993, and while the children appear to be suffering from some amount of emotional anxiety, they are happy and doing well in school and have no apparent physical problems. The parties and their separate witnesses opined that Scott and Bonnie each possessed a loving relationship with Nicole and Michael. Nicole and Michael were ages ten and eight years old when Bonnie filed this litigation in 1996.

The evidence presented showed that both parents have violated the court’s original order prohibiting them from having overnight guests of the opposite sex when the children were present. Furthermore, while the chancellor spent little or no time discussing Scott’s and Bonnie’s personal differences and the acrimonious conduct between them, the record reflects they both continue to treat each other contemptuously even when they are in the presence of the children.

At the conclusion of the two-day hearing, the chancellor made the following findings upon which he entered an order transferring custody to Bonnie:

[T]he court is convinced because of Michael’s desire to be with his mother that his best interest will be served by placing his custody with her. While the court believes Nicole’s best interest would not be harmed if she were left in the custody of her father, the court believes it is in the best interest of both children not to be separated.
* * *
In summary, this little boy wants and needs his mother, for whatever reason, and the court is convinced that for the court to thwart this desire would be emotionally damaging, if not devastating, to the child.
* * *
In regard to whether circumstances have changed since the last custody decision, there is no question that they have. Mrs. Campbell has a good job, she appears to be emotionally stable unlike before, and she is in an apparent stable relationship with a man, David Garner, notwithstanding the fact that the court has misgivings about this out of wedlock relationship. (Emphasis added.)

In his appeal before the court of appeals, Scott emphasized the chancellor’s foregoing findings and argued the chancellor had erroneously shifted the burden of proof to him, though he was the custodial parent. Scott premised his argument on our Jones decision, wherein this court adopted the majority rule that a change of circumstances of the noncustodial parent is not sufficient to justify modifying custody. Id. at 490, 931 S.W.2d at 770. The court of appeals, in its prevailing opinion, rejected Scott’s argument by distinguishing the Jones case as follows:

We do not read the Jones case to say that changes in the life of the noncustodial parent are never pertinent in determining whether a significant change of circumstances has occurred, but that they were insufficient under the facts of that case to modify custody. In the instant case, unlike Jones, the chancellor did not shift the burden of proof to the custodial parent.
Although the chancellor here cited only changes in appellee’s hfe as the basis for the change of custody, we find from our de novo review of the record that there was other evidence of changed circumstances and that appellee met her burden of proof. Dr. Barling [who interviewed the children at the chancellor’s request] stated that he was concerned about the emotional health of both children. He testified that Michael feared that his father would learn what the boy told the psychologist and that he exhibited unusual behavior by crying and climbing into the psychologist’s lap. He opined that Michael was in obvious emotional distress and that Nicole’s coping method of isolation could cause later problems. The chancellor, after interviewing the children, found Michael to be a tearful, stressed, almost frightened little boy with an overwhelming desire to be with his mother. There was also evidence that appellant [Scott] had been arrested for disorderly conduct in front of the children after pouring beer on a former girlfriend. Taken together, this constitutes evidence that circumstances of the children’s living with their father had changed sufficiently for the chancellor to consider whether the best interests of the children would be served by a change of custody to their mother.

Id. at 146, 975 S.W.2d at 874.

Arkansas law is well settled that a judicial award of custody will not be modified unless it is shown that there are changed conditions which demonstrate that a modification of the decree will be in the best interests of the children. Feight v. Feight, 253 Ark. 950, 490 S.W.2d 140 (1973). In order to avoid relitigation of factual issues already decided, courts will usually restrict evidence in a modification proceeding to facts arising since the prior order. The only other time a change is permissible is when there is a showing of facts affecting the best interests of the children that were either not presented to the chancellor or were not known by the chancellor at the time the original custody order was entered. Jones, 326 Ark. at 491, 931 S.W.2d at 772; Henkell v. Henkell, 224 Ark. 366, 273 S.W.2d 402 (1954) (stating that it is well settled that a decree fixing the custody of a child is final on conditions then existing and should not later be changed unless there are altered conditions since the decree was rendered or there were material facts existing at the time of the decree but unknown to the court, and then only for the welfare of the child). The party seeking modification of the custody order has the burden of showing a material change in circumstances. Jones, 326 Ark. at 491, 931 S.W.2d at 772.

Here, as pointed out by the court of appeals, the chancellor’s expressed findings dealt only with Bonnie’s change in circumstances since the parties’ 1993 decree which, under Jones, would be insufficient to warrant transfer of custody to her. Nonetheless, the court of appeals by de novo review considered other testimony that it believed was sufficient to support the chancellor’s transfer of custody to Bonnie. This court’s holding in Stamps v. Rawlings, 297 Ark. 370, 761 S.W.2d 933 (1988), supports such a review.

In Stamps, the chancellor failed to make a finding of fact about a change in circumstances, but under its de novo review of the record, the court related evidence from which the chancellor could have found a change in circumstances after the initial decree. Those circumstances were described as follows:

It includes testimony that the appellant [mother] screamed and yelled at the appellee [stepfather] in front of Tara; that appellant telephoned the appellee numerous times while appellee was attempting to visit Tara; that Tara was dirty when appellee picked her up; that she had an infected ear and a dirty scalp; that on four separate occasions she had bruises on her lower body, which could have been caused by appellant’s use of excessive force; that appellant forced Tara to eat in the garage on at least one occasion, and that when Tara rang the doorbell and asked for a glass of water she was spanked; and finally, that Tara wanted to five with appellee, and when told she had to go home with appellant, she suffered stomach problems.

Based on the circumstances above, the Stamps court upheld the chancellor’s decision to change custody.

The situation and circumstances in the instant case are in stark contrast to the ones listed by this court in Stamps. In the present case, and as mentioned earlier, the chancellor specifically found that he believed Nicole’s best interests would not be harmed if she were left in her father’s custody, but because Michael had a strong desire to live with his mother, the chancellor would not separate the children. Although it was appropriate for the chancellor to consider keeping the two children together, Larson v. Larson, 50 Ark. App. 158, 902 S.W.2d 254 (1995), the chancellor gave no reason why Michael’s removal from his father’s custody would relieve the son’s stress. In fact, the chancellor’s remarks at the end of the hearing were as follows:

This is a painful decision for this court because in many ways, the court believes the children’s father has done an outstanding job in raising these children against tough odds, being a student with a limited income and limited time.
He has been there for the children when their mother was not. I am impressed by the teachers, by the testimony of the children’s teachers who in summary said that the children are excellent students, cheerful and that their father has had a very concerned — has been a very concerned, involved parent.

Other remarks by the chancellor suggest that his ultimate decision to award Bonnie custody was based largely on Dr. Phillip Barling’s testimony as well as his own interview of the children. The chancellor, like Dr. Barling, found Michael “a tearful, stressed, almost frightened little boy who desperately wants to be with his mother, and when the chancellor reminded Michael of how hard his father had tried to be a good father ... he [started] crying and said, ‘He’s not going to let us go to Mom.’” In summary, the chancellor stated:

[T]his litde boy wants and needs his mother for whatever reason and I am convinced not to grant this desire would be emotionally damaging if not devastating to him.
My job is to do what is in the children’s best interest, not their parents, no matter how much sympathy I may have for one of those parents. (Emphasis added.)

We would point out that, while both Dr. Barling and the chancellor found that Nicole and Michael had experienced some emotional distress, neither Dr. Barfing nor the chancellor specifically assigned the sole blame to either parent. Dr. Barfing, who had only thirty minutes to visit and consult with each child, testified to the following various comments and views:

(1) Scott disciplined the children by making them write sentences, but this is not an unusual or inappropriate form of discipline. The children felt the “sentences” were harsh.
(2) Dr. Barling agreed that it is a distinct possibility this case could be one in which the “grass is greener on the other side.”
(3) The children’s stress had not interfered with their schooling. They were happy there and made “A’s” and “B’s.”
(4) The children’s general functioning while living with their father seemed okay.
(5) Nicole voiced concern about her father’s anger, but had developed a way to cope with it.
(6) Dr. Barling conceded that Bonnie possibly implanted improper suggestions in the children’s heads and those suggestions became a part of reality.
(7) One of the main problems in this case is the Campbells’ inability to deal with one another, and this inability, in part, had to do with Bonnie’s being overly emotional.
(8) Dr. Barfing had no opinion about custody in this matter and had insufficient contacts to form a custody evaluation.
(9) The children had been upset over an incident that occurred between their father and his former girlfriend at the county fair, which resulted in their father’s arrest.
(10) Michael crawled up in Dr. Barling’s lap and begged, “Don’t tell my father.” Dr. Barfing stated that he believed this was unusual but could not explain the dynamics or causes that came into play to lead Michael to act out in such a way. Dr. Barfing recommended further counseling for both children.
(11) Children being aware that a custody battle is going on between their parents can be a major stressor.
(12) Dr. Barling acknowledged another counselor’s (Gibbon’s) report, written in 1995, that described Nicole as perceiving her mother as someone who needs to be cared for and stated that [Nicole] has to be careful about her mother’s feelings. Nicole further was said to have played the role of mother in her relationship with Bonnie. The Gibbon report also reflected that Bonnie told the children she was “homeless and she had no children.” Dr. Barling stated that such a statement would be in poor judgment, would be a rejection, and would have a negative impact.

We have gone to great lengths to recount what evidence the chancellor had before him when he transferred custody of the children to Bonnie. After carefully reviewing that evidence, we are unable to say material changes of circumstances affecting the children’s best interests and warranting the removal of the children from Scott’s custody have occurred since the chancery court’s 1993 order. Without even discussing the considerable favorable testimony given by the children’s five teachers and Scott’s other witnesses, the evidence reveals, as the chancellor said, that Scott has performed “an outstanding job” in raising the parties’ children against tough odds.

While the record reflects that Scott might have been too strict on occasions, the children appear to function well at school and with others. As to the genesis of the children’s emotional stress, Dr. Barfing was uncertain as to the exact cause, and gave several possible sources from which the children’s distress could have originated, not the least of which is the parents’ inability to deal with one another.

This case, reduced to its- core issue, is whether Michael’s apparent preference to be with his mother is sufficient to support the affirmance of the chancellor’s decision. We are mindful of the settled rule that the attitudes and wishes of the child, although not controlling, are proper for the consideration of the chancellor in making an award of custody. Moore v. Smith, 255 Ark. 249, 499 S.W.2d 634 (1973). In addition, we also recognize that the General Assembly has directed that the custody award “shall be made without regard to the sex of the parent, but solely in accordance with the welfare and best interests of the children.” Ark. Code Ann. § 9-13-101 (a) (Repl. 1998).

Here, we have an eight-year-old boy who wants to be with his mother, but when the award of custody was made, Scott was found to be the proper custodian. While Scott has made some mistakes in raising both children, the evidence reveals that Nicole and Michael are functioning quite well. Though we understand the chancellor’s sensitivity to young Michael’s expressed preference for his mother, we do not believe Michael’s wishes should be controlling in these circumstances, especially when testimony was presented indicating Bonnie may have implanted improper suggestions in the children’s minds. To uproot the children from Scott’s custody when the preponderant evidence shows they are doing well would be wrong. At the least, to countenance such a decision would be contrary to this court’s settled rule that custody changes are warranted only when material changes of circumstances are demonstrated, and changing this rule could permit a change of custody where only the slightest evidence of changed circumstances is presented.

It is well settled that chancery cases are reviewed de novo on the record, but we do not reverse a finding of fact by the chancellor unless it is clearly erroneous. Slaton v. Slaton, 336 Ark. 211, 983 S.W.2d 951 (1999). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed. Id.; AD-Razorback Ltd. Partnership v. B.G. Coney Co., 289 Ark. 550, 713 S.W.2d 462 (1986).

In conclusion, we note the children’s guardian ad litem voiced concerns about placing the children with Bonnie when Bonnie was shown to be violating the court’s order by living with a man without benefit of marriage. The chancellor explained that he weighed this as a negative factor and was concerned about the situation, but would not give Bonnie a length of time within which to get married or end her living arrangement. We merely point out at this stage that this court and the court of appeals have never condoned a parent’s promiscuous conduct or lifestyle when such conduct has been in the presence of a child. Ketron v. Ketron, 15 Ark. App. 325, 692 S.W.2d 261 (1995); see also Digby v. Digby, 263 Ark. 813, 567 S.W.2d 290 (1978); Walker v. Walker, 262 Ark. 648, 559 S.W.2d 716 (1978); Harmon v. Harmon, 253 Ark. 428, 486 S.W.2d 522 (1972); Northcutt v. Northcutt, 249 Ark. 228, 458 S.W.2d 746 (1970); Thigpen v. Carpenter, 21 Ark. App. 194, 730 S.W.2d 510 (1987); Scherm v. Scherm, 12 Ark. App. 207, 671 S.W.2d 224 (1984); Bone v. Bone, 12 Ark. App. 163, 671 S.W.2d 217 (1984); Homer H. Clark, Jr., The Law of Domestic Relations in the United States, § 19.9 at 845 (2d 1988).

The Ketron court stated that while the difficulty of enforcement of a court’s noncohabitation order is a factor to consider when determining the custody issues, it is not conclusive. Id. at 329, 692 S.W.2d at 264. The court further recognized appropriately that if the parent violating the chancellor’s order fails to heed his admonitions, the chancellor may take more drastic steps to ensure the children are raised in a proper custodial environment. Id. We would add that the purpose of'the prohibition of the overnight-guest order is to promote a stable environment for the children, and is not imposed merely to monitor a parent’s sexual conduct. Nonetheless, the parents in this case should be admonished once more that Arkansas’s settled law does not condone a parent’s promiscuous conduct or lifestyle.

We reverse and remand for the above reasons.

Arnold, C.J., Brown and Thornton, JJ., concur.

Ray Thorton, Justice.

Thorton, Justice. The de novo review conduct review conducted in the prevailing opinion of the Court of Appeals discloses that there was some evidence to support a finding that a material change in circumstances existed, and that this material change in circumstances called for a change in custody in the best interest of the minor children. Unfortunately the chancellor did not make findings disclosing how he evaluated this evidence. Rather than making such findings, the chancellor expressed concerns about the children’s insecurity and stress shown both by words and actions of the children, and ordered a change in custody based upon those concerns.

I want to affirm the chancellor’s decision because I am convinced that it was drawn from a careful and sensitive effort to advance the interest of the children. We defer to a chancellor on his findings of fact because the trial judge has the opportunity to evaluate the evidence and consider the credibility of the witnesses, and we should sustain those findings unless they are clearly erroneous or clearly against the preponderance of the evidence. Nicholas v. Wray, 325 Ark. 326, 333, 925 S.W. 2d 785, 789 (1996).

Here, we are not informed as to the particular findings of fact that may have led to the chancellor’s decision that the best interest of the children required a change of custody. If particular findings supporting the change of custody have been articulated by the chancellor, we should give great deference to those findings. Here, the chancellor appears to have concluded that it was in the best interest of the children to live with their mother based upon the desire of the eight-year-old son. That is not sufficient.

Under these circumstances, while expressing my belief that the chancellor is entitled to deference, I reluctantly concur in the result reached by the majority because the chancellor did not make sufficient findings of fact upon which an appellate court could rest an affirmance.

I am authorized to state that Chief Justice Arnold and Justice Brown join in this concurrence.

       We note that Bonnie apparently has had the children since 1996 when the chancellor entered his change-of-custody order, and there is nothing in the record to reveal what material changes may have occurred after entry of the chancellor’s last order. Suffice it to say, this court must rest its decision on what the record reflected in 1996.

       Scott, too, had a girlfriend who on past occasions (before their breakup) had stayed overnight, but because she left through a window, the children were unaware of her stay.


source: Caselaw Access Project

author: Tom Glaze, Justice.

license: Public Domain

text:
    Scott HAMM v. OFFICE OF CHILD SUPPORT ENFORCEMENT
    98-228
    985 S.W.2d 742
    Supreme Court of Arkansas
    Opinion delivered February 18, 1999

      John Wesley Hall, Jr., for appellant.
    G. Keith Griffith, for appellee.
   Tom Glaze, Justice.

This paternity suit resulted from two two children having sexual intercourse as young teenagers. Susan N. Atkinson was fifteen years old and Scott Hamm, the putative father, was thirteen years old when their sexual encounters occurred and when Susan conceived a male child, who was born on July 22, 1995, and named Keegan. Susan applied for and received financial assistance from Aid for Dependent Children through the State, and as a result, the State Office of Child Support Enforcement (OCSE) was obliged under Ark. Code Ann. § 9-14-201 (d) (Repl. 1998) to bring this paternity action to seek reimbursement of benefits from Scott as Keegan’s father. Scott’s parents pursued a separate criminal charge of statutory rape against Susan, and that charge resulted in Susan pleading guilty to second-degree sexual abuse, a Class A misdemeanor. See Ark. Code Ann. § 5-14-109 (Repl. 1995).

After a hearing was held in the paternity action, the chancellor found Scott to be Keegan’s father. However, the chancellor ordered that, because of Scott’s age, Scott need not pay child support at the time, and denied the OCSE reimbursement of birthing expenses. The chancellor further ordered Scott to pay OCSE the costs of genetic testing and to keep OCSE advised on whether health insurance coverage was available. Scott brings this appeal and argues the chancellor erred in (1) finding Scott to be the father of Keegan, (2) refusing to apply the equitable doctrine of clean hands to bar OCSE’s paternity claim because Scott was a victim of a crime, and (3) finding Scott had been personally served and had waived service of summons after the OCSE filed this lawsuit.

We first address Scott’s argument that OCSE had failed to serve him with the complaint and summons in this action, leaving the chancellor without authority to enter judgment against him. Scott refers to Ark. R. Civ. P. 4(d)(2) which requires that a copy of the summons and complaint must be served personally on a defendant who is fourteen years of age or older. He submits he was fourteen when OCSE filed this paternity action, but he denies he was personally served as is required under Rule 4(d). In fact, the record reveals that no proof of service was made and filed with the court clerk showing service was effected on Scott. See Ark. R. Civ. P. 4(g). Even so, the record does reflect that Scott filed a timely answer to OCSE’s complaint, denying the agency’s allegations that he is Keegan’s father.

Under Ark. R. Civ. P. 12(b), the defense of insufficiency of service of process shall be asserted in the responsive pleading or, at the option of the pleader, it may be made by motion. Lawson v. Edmondson, 302 Ark. 46, 786 S.W.2d 823 (1990). A motion making this defense [and others listed in Rule 12(b)] must be made before pleading if a further pleading is permitted. The defense of insufficiency of service of process is waived if it is neither made by motion under this rule nor included in the original responsive pleading. Id; see also Ark. R. Civ. P. 12(h)(1). In the instant case, Scott filed no timely motion raising the insufficiency-of-service-of-process defense, nor did he raise that defense in the answer he filed. Consequently, under the terms of Rule 12, Scott waived that defense.

Before passing from this point, we note Scott’s contention that his attorney could not waive any rights of Scott’s because of his minority. Scott initially argues that, under Ark. R. Civ. P. 17(b), the chancellor was obligated to appoint Scott a guardian ad litem to protect Scott’s interests in this case. Rule 17(b), however, actually provides that the court shah appoint a guardian ad litem for an infant or incompetent person not otherwise represented in an action or shall make such other order as it deems proper for the protection of the infant or incompetent. (Emphasis provided.) Here, Scott’s parents retained counsel to represent Scott, and Scott has been zealously represented throughout these proceedings, assuring that his interests were protected.

Scott also cites the case of Schrum v. Bolding, 260 Ark. 114, 539 S.W.2d 415 (1976), for the proposition that a minor cannot waive service by entering his or her appearance. We first point out that Schrum involved an adoption case and has limited value since Arkansas’s adoption law has changed, which would have affected the result reached in Schrum. See Temple v. Tucker, 277 Ark. 81, 639 S.W.2d 357 (1982). But more important, ARCP Rules 4 and 12, in issue here, were not considered or discussed by the court in Schrum or Temple. In short, our rules ensure that a minor is represented and that the minor’s interests are protected.

We now turn to Scott’s argument that OCSE failed to meet its burden of showing he is Keegan’s father. Because this proceeding is civil in nature, OCSE’s burden of proof is a mere preponderance of the evidence. Barnes v. Barnes, 311 Ark. 287, 843 S.W. 835 (1992). In a paternity case where the accused denies being the father of the child, the chancellor shall hear the evidence and decide the case as other issues at law. Ark. Code Ann. § 9-10-105 (Repl. 1998). Upon motion of either party in a paternity action, the trial court shall order the putative father, mother, and child to submit to scientific testing to determine whether or not the putative father can be excluded as being the biological father and to establish the probability of paternity if the testing does not exclude the putative father. See Ark. Code Ann. § 9-10-108(a)(l) (Repl. 1998). If the results of the paternity tests establish a 95% or more probability of inclusion that the putative father is the biological father of the child, after corroborating testimony of the mother in regard to access during the probable period of conception, such shall constitute a prima facie case of establishment of paternity, and the burden of proof shall shift to the putative father to rebut such proof. Ark. Code Ann. § 9-10-108(a)(6)(A) (Repl. 1998).

Pursuant to § 9-10-108(a)(1), OCSE requested the chancellor to appoint Laboratory Corporation of America (LabCorp) to conduct a test to determine paternity in this case, and LabCorp did so, reporting that there was a probability of 99.91% that Scott was Keegan’s father. At trial, OCSE presented the LabCorp report and Susan’s testimony that she and Scott had sex during the probable time of conception. Thus, under § 9-10-108(a)(6)(A), the OCSE had ostensibly presented evidence needed for a prima facie case, and it became Scott’s burden to rebut the OCSE’s proof. He did so.

Scott called a medical expert, Dr. Jerome Steven Mayersak, who offered the five following reasons why LabCorp’s testing results were unreliable:

1. The population database used by LabCorp for its comparison group to Scott failed to take into account that Scott has a substantial amount of Cherokee Indian in his blood.
2. There were several errors in the chain of custody of the test specimen which raised doubts about the test accuracy, and one error was the several day time gap between delivery of the specimen to LabCorp and the actual testing.
3. LabCorp should conduct periodic evaluations of its personnel, and the lab itself should be inspected.
4. The genetic markers used in the test (short tandem repeats) were too small for even the Caucasian database that was employed.
5. LabCorp did not participate in any random testing of its results by another independent lab, so that errors in evaluation could be checked, corrected, and would ensure reliability.

After hearing Dr. Mayersak testify, the chancellor doubted LabCorp’s testing results and concluded OCSE had not shown a prima facie case. Nonetheless, he found the other evidence presented by OCSE was sufficient to prove Scott’s paternity. On this point, the chancellor related that not only did Susan testify to having sex with Scott at the time of conception, but also Scott admitted to having sex with her during the probable time she became pregnant. While Scott submits that Susan had sex with two other teenagers before her relationship with Scott, Susan only agreed to having had sex with one other boy, who was of another race, and she testified that the relationship did not occur during the time of conception. Counsel for OCSE and Scott argued the evidence and the witnesses’ credibility before the chancellor, but at the end, the chancellor was convinced that Scott is Keegan’s father. While Dr. Mayersak voiced an opinion that, as a thirteen year old, Scott likely could not father a child because he was not producing mobile sperm, he conceded a thirteen-year-old male could produce a child.

On appeal, we consider the evidence in the light most favorable to the appellee, and although we try chancery cases de novo on the record, we will not reverse a finding of fact by the chancellor unless he is clearly erroneous. Roe v. State, 304 Ark. 673, 804 S.W.2d 708 (1991). We are unable to say the chancellor was clearly erroneous in finding Scott to be Keegan’s father. We do point out that, because the chancellor’s paternity determination did not include the results of scientific paternity testing, his finding is subject to a modification request that could require such scientific testing pursuant to Ark. Code Ann. § 9-10-115 (Repl 1998).

In Scott’s final argument, he submits that, because he is the underage consenting victim of Susan’s crime, Arkansas’s public policy should prohibit the State from establishing Scott’s paternity which resulted from that crime. He cites Miller v. State, 318 Ark. 673, 887 S.W.2d 280 (1994), for the rule that victims younger than fourteen are beneath the age of consent and cannot be willing accomplices to sexual intercourse. In other terms, Scott argues that one who comes into equity must come with clean hands, and no sane person should be permitted to profit or acquire property by his own wrong or criminal acts. See Womack v. Newman Fixture Co., 27 Ark. App. 117, 766 S.W.2d 949 (1989); Wright v. Wright, 248 Ark. 105, 449 S.W.2d 952 (1970).

The cases relied on by Scott are factually inapposite to the situation here. Those cases in no way establish a public policy that an underage consenting male victim who impregnates the sexual-abuse perpetrator, here a fifteen-year-old female, should be relieved from any responsibility for the child born of that sexual relationship. While Arkansas does not appear to have any case law directly on point, other jurisdictions have soundly ruled contrary to Scott’s contention.

As we have already mentioned, Arkansas law, § 9-14-201 (d), required the OCSE to bring this paternity action to seek reimbursement of benefits from Scott as Keegan’s father. Thus, there is no question that Scott has a legal liability to support his out-of-wedlock child, but the issue is whether Susan’s wrongful conduct obviated Scott’s duty to support Keegan.

The rule generally accepted in other jurisdictions is that a putative father who had been below the age of consent for sexual intercourse under criminal sexual conduct statutes at the time of conception is liable for supporting the child resulting from that union. Jevning v. Cichos, 499 N.W.2d 515 (Minn. App. 1993); see also Dept. of Rev., Bennett v. Miller, 688 So.2d 1024 (Fla. App. 5 Dist. 1997); State Ex Rel. Hermesmann v. Seyer, 847 P.2d 1273 (Kan. 1993); Mercer County Dep’t of Social Servs. V. Alf M., 589 N.Y.S.2d 288 (N.Y. Fam. Ct. 1992); In Re Paternity of J.L.H., 441 N.W.2d 273 (Wis. App. 1989); Schierenbeck v. Minor, 367 P.2d 333 (Colo. 1961); 14 C.J.S. Children Out-of-Wedlock § 42 (Supp. 1998).

In State Ex Rel. Hermesmann v. Seyer, the Kansas Supreme Court upheld its state’s Department of Social and Rehabilitative Services’ petition which sought to require Shane Seyer, a thirteen-year-old putative father, to reimburse the funds the state had paid to support his child. The facts show that Colleen Hermesmann was Shane’s babysitter when Colleen was sixteen years old and Shane was twelve years old. The two engaged in a consensual sexual relationship, and, as a result, Colleen conceived and gave birth to Melanie, a female infant. At the time of the child’s birth, Colleen was seventeen and Shane was thirteen years old. Colleen was charged with statutory rape, but pled guilty to the lesser offense of contributing to a child’s misconduct. The Kansas court recognized that, under the statutory and common law of that state, Shane owed a duty to support his minor child. The court further added the following:

This State’s interest in requiring minor parents to support their children overrides the State’s competing interest in protecting juveniles from improvident acts, even when such acts may include criminal activity on the part of the other parent. Considering the three persons directly involved, Shane, Colleen, and Melanie, the interests of Melanie are superior, as a matter of public policy, to those of either or both of her parents. This minor child, the only truly innocent party, is entitled to support from both her parents regardless of their ages. Seyer, 847 P.2d at 1279.

In Dept. of Rev., Bennett v. Miller, the Florida Court of Appeals announced its state’s public policy in these matters as follows:

A manifestation of public policy in favor of protecting children, the statute provides that the willingness or consent of a child is not a defense to the crime of sexual battery when the perpetrator is in a position of familial or custodial authority. The statute plainly pertains to the guilt of a person charged with sexual battery upon a child, while having nothing to do with the child support obligations of a biological parent. The statute does not create a defense for minor putative fathers in paternity actions. 688 So.2d at 1025.

Scott offers no legal authority contrary to the cases set out above, and we surmise that, if the General Assembly had wanted to exclude minor parents from responsibility for paternity and child support in circumstances like those now before us, it could have so provided.

In conclusion, we note that another case Scott cites, Reid v. Reid, 57 Ark. App. 289, 944 S.W.2d 559 (1997), also fails to make his point. In Reid, the court of appeals applied the clean-hands maxim, but in doing so, rejected the father’s request to abate his child-support payments because he was in prison and unable to earn income. The appellate court affirmed the trial court’s holding that a child-support obligation should not be modified where the means with which to pay support had been reduced or eliminated because of his criminal conduct. In so holding, the court considered the children’s best interests, not the father’s or mother’s, when ordering that the father’s child support should continue.

For the foregoing reasons, we affirm the chancellor on all three arguments presented by Scott in this appeal.

Corbin, J., dissents.

Donald L. Corbin, Justice,

dissenting. I dissent because because I have grave doubts about the soundness of the decision to order Scott, a child himself, to financially support the infant, Keegan, born as a result of an illegal sexual encounter. I take issue with the majority’s reference to Scott as “an underage consenting male victim,” as our law provides that a person under the age of fourteen is incapable of consenting to a sexual act. “Our public policy, as fixed by the General Assembly, is manifest that victims younger than age 14 are beneath the age of consent and cannot be willing accomplices to sexual intercourse.” Miller v. State, 318 Ark. 673, 677, 887 S.W.2d 280, 282 (1994). To require a person under fourteen to be responsible for a child born as the result of a sexual crime seems to thwart that public policy, which is clearly intended to protect young persons who are not capable of protecting themselves or making intelligent decisions about such matters.

Although I do not disagree with the majority’s recitation of case law from other jurisdictions or with the principle that the welfare of the infant child is of paramount consideration, I differ with the majority on the issue of who should support the child. Ordering Scott to support this child effectively punishes him for being the victim of a crime. To this end, I believe that this sitúa- . tion could better be handled like those in which the putative father is not known or is deceased. Otherwise, the message such a decision sends is that a victim of crime must pay for the criminal act of the perpetrator. For these reasons, I respectfully dissent.

       But note: “In no event shall the adjudication or voluntary acknowledgment of paternity be modified later than three years after such adjudication or voluntary acknowledgment.” Cf. Littles v. Flemings, 333 Ark. 476, 970 S.W.2d 259 (1998); Flemings v. Littles, 325 Ark. 367, 926 S.W.2d 445 (1996).


text:
    Millard James RUSSEY v. STATE of Arkansas
    CR 98-383
    985 S.W.2d 316
    Supreme Court of Arkansas
    Opinion delivered February 18, 1999

      Alvin Schay, for appellant.

      Winston Bryant, Att’y Gen., by: Mac Golden, Ass’t Att’y Gen., for appellee.
   Tom Glaze, Justice.

Appellant Millard James Russey was charged as a habitual offender charged as a habitual offender with the rape of a female victim who was fifteen years old at the time of the crime. A jury found Russey guilty and sentenced him to life imprisonment. On appeal, Russey raises two points for reversal, but neither point has merit.

Russey first argues the trial court erred in fading to grant his motion to suppress a blood sample taken from him soon after the police picked up Russey as the rape suspect. He points out that the State had the burden to show he had freely and voluntarily consented to the drawing of his blood and no actual or implied duress or coercion was exercised by the officers.

The law is settled that the taking of blood by a law enforcement officer does amount to a Fourth Amendment search and seizure, but a consensual search does not run afoul of the amendment. Mills v. State, 322 Ark. 647, 660, 910 S.W.2d 682, 689 (1995). We also have said that a consensual taking of blood does not require a court order when the drawing is voluntary. Id.; cf. Ark. R. Crim. P. 18.1(a)(vii). Here, then, the question is whether Russey voluntarily agreed to the taking of his blood. In resolving this issue, this court reviews the evidence in the light most favorable to the State and considers the totality of the circumstances in determining whether the State proved that consent to search was freely and voluntarily given without actual or implied duress or coercion. Mills, 322 Ark. at 660, 910 S.W.2d at 689; Scroggins v. State, 268 Ark. 261, 263, 595 S.W.2d 219, 220 (1980). We will affirm a finding of voluntariness unless that finding is clearly against the preponderance of the evidence. Id.

Russey claims that any consent that he gave to draw blood resulted from Gurdon City Marshall David Childres’s threat to take action against Russey on some “hot checks” he was previously alleged to have “forged” at the local Jiffy Mart. Russey said that Childres was armed with a gun when he picked up Russey as a rape suspect and took him to the Gurdon police station, where he met Wes Sossamon, a criminal investigator with the Clark County Sheriff’s Office. Russey claims Sossamon immediately transported him to an Arkadelphia hospital where his blood was drawn. He further asserts he did not sign any consent form for any blood samples until after Sossamon returned him to the police station. Russey emphasized that Officer Childres had been actively involved in working with Russey regarding the “hot check” problems and would give Russey a receipt for payments he made to pay off his bad checks. Russey testified that he only cooperated and consented to giving a blood sample because Childres had told him there was a new hot check and that Childers would turn the checks over to the prosecutor if he did not cooperate with Sossamon. He added, “I lied when I said on the tape that I voluntarily consented to the blood sample because Mr. Childres was standing in the door and had threatened me with this here and held this over my head and I did not want to go to jail.”

Officers Childres and Sossamon largely denied Russey’s version of what led to his signing the consent form to allow his blood to be drawn. Childres said that he did assist Russey in making his payments to pay off the Jiffy Mart checks, but related Russey had paid all but twenty dollars owed on them. Childres argued that, with Russey’s permission, he took Russey to the police station where Officer Sossamon, alone, interviewed him. Childres testified that he could not say what Sossamon and Russey “talked about.” Childres denied having told Russey that Childres would turn Russey’s checks over to the prosecutor if Russey did not cooperate with Sossamon.

Sossamon testified that when he interviewed Russey, he told Russey that he was free to go and was not required to cooperate with the investigation. He said that, at the time of the interview, he was aware of Russey’s bad checks. After telling Russey that he was a suspect, Sossamon said that Russey signed a consent form waiving his rights and authorizing his blood to be drawn. Sossamon related that Russey had a lengthy criminal record and was well acquainted with his legal rights in these circumstances. Sossamon also contradicted Russey’s version of when the blood was drawn, stating that Russey’s blood was drawn at the hospital after he had signed the consent form. Sossoman further related that Russey signed a Miranda waiver after the blood was drawn.

Faced with the different versions of what led to when and why Russey consented to his giving a blood sample to Officer Sossamon, the trial court was not required to believe Russey’s version of events. Wright v. State, 335 Ark. 395, 404, 983 S.W.2d 397 (1998). The credibility of the witnesses in this instance was for the trial court to weigh and assess. Mills, 322 Ark. at 661, 910 S.W.2d at 689, and in doing so here, the trial court obviously resolved the conflicts in testimony against Russey’s explanation of what had occurred, holding his consent had been given voluntarily and without duress or coercion. We cannot say the trial court was clearly erroneous.

In his second point for reversal, Russey argues the trial court erred in faffing to grant his motions for directed verdict. As we have often stated, motions for directed verdict are treated as challenges to the sufficiency of the evidence. Marta v. State, 336 Ark. 67, 983 S.W.2d 924 (1999). When reviewing the sufficiency of the evidence on appeal, this court does not weigh the evidence, but simply determines whether the evidence in support of the verdict is substantial, which is defined as direct or circumstantial evidence that is forceful enough to compel a conclusion and which goes beyond mere speculation or conjecture. Id. In determining whether there is substantial evidence, this court reviews the evidence in the light most favorable to the State. Id.

In this case, Russey was charged with engaging in sexual intercourse with a female by forcible compulsion in violation of Ark. Code Ann. § 5-14-103 (Repl. 1993). Sexual intercourse is defined as the “penetration, however slight, of the labia by a penis,” Ark. Code Ann. § 5-14-101(9) (Supp. 1995), and forcible compulsion is defined as “physical force or a threat, express or implied, of death or physical injury to or kidnapping of any person.” Ark. Code Ann. § 5-14-101(2) (Supp. 1995). This court has also held repeatedly that the uncorroborated testimony of a rape victim is sufficient to sustain a conviction. Freeman v. State, 331 Ark. 130, 959 S.W.2d 400 (1998).

At trial, the rape victim identified Russey as the man who attacked and forced her to have sexual intercourse while holding a knife to her throat. The State presented evidence that, after the victim reported that she had been raped, a physical exam was conducted and the medical findings were consistent with her having had a forceful sexual encounter. The examining physician testified that he performed a vaginal swab on the victim, and the semen sample collected was sent for DNA profiling. The forensic expert who performed the DNA testing testified that DNA on the vaginal swab from the victim was consistent with the DNA test performed on the blood sample recovered from Russey. This alone was substantial evidence to show that the victim sustained a rape and that Russey was the perpetrator. Therefore, we affirm the trial court’s ruling rejecting Russey’s motion for directed verdict.

Pursuant to Ark. Sup. Ct. R. 4-3(h), the record has been examined and reviewed for all errors prejudicial to Russey, and none was found.

       Childres made an audiotape during questioning on which Russey answered that he voluntarily gave a sample of his blood.


author: Donald L. Corbin, Justice.

text:
    Danny BURNS v. FIRST NATIONAL BANK of Eastern Arkansas
    98-717
    985 S.W.2d 747
    Supreme Court of Arkansas
    Opinion delivered February 18, 1999

      W. Frank Morledge, P.A., for appellant.

      John D. Bridgforth, P.A., for appellee.
   Donald L. Corbin, Justice.

Appellant Danny Burns appeals appeals the St. Francis County Chancery Court’s order, finding him in contempt of an order in favor of Appellee First National Bank of Eastern Arkansas. This appeal involves interpretation of Article 7, section 40, of the Arkansas Constitution, and Ark. Code Ann. §§ 18-60-801 to -822 (1987); hence, our jurisdiction is pursuant to Ark. Sup. Ct. R. l-2(a)(1) and (b)(6). Burns raises two points for reversal. We affirm.

Appellee filed suit in the chancery court, alleging that Appellant had defaulted on three promissory notes secured by pledges of both real and personal property. Appellee sought foreclosure of real property located in St. Francis County and replevin of the personal property pledged as security for the repayment of the notes. Appellee also filed an affidavit for delivery of the subject personal property, which consisted of farming equipment. The chancery court granted judgment for Appellee and ordered Appellant to deliver such property to the St. Francis County Sheriff. When Appellant later failed to deliver the property, Appellee filed a petition for contempt. The chancery court denied this petition, finding that its delivery order had not specified a date for delivery. The chancery court then directed Appellant to deliver the subject property on or by October 27, 1997. Appellant did not comply; thus, Appellee filed a second petition for contempt. The chancery court granted that petition and entered its contempt order on January 22, 1998, directing Appellant to report to the St. Francis County jail until he complied. It is from this order that Appellant appeals. Our review of a contempt finding is limited to examining the findings of the trial court, and we reverse only if the trial court’s decision is against the preponderance of the evidence. In Re Brown v. Brown, 305 Ark. 493, 809 S.W.2d 808 (1991).

Appellant first argues that the trial court did not have subject-matter jurisdiction to issue the first order for delivery. Appellant relies on section 18-60-804 and Article 7, section 40, which authorize jurisdiction for actions to recover personal property in circuit court and municipal court. Appellant essentially argues that these provisions mandate exclusive jurisdiction in the circuit court, and that the chancery court acted without subject-matter jurisdiction in granting relief for replevin. Appellant also urges us not to apply the equity clean-up doctrine, which provides “that once a chancery court acquires jurisdiction for one purpose it may decide all other issues.” Pryor v. Hot Spring County Chancery Courts, 303 Ark. 630, 633, 799 S.W.2d 524, 526 (1990).

We refute Appellant’s argument, as this court’s decision in Moore v. Price, 189 Ark. 117, 70 S.W.2d 563 (1934), direcdy controls this issue. In Moore, the appellant had first filed suit in chancery court, seeking foreclosure of personal property. While that suit was pending, he filed a separate replevin suit for the same property in circuit court. The circuit court granted the appellees’ motion to transfer the replevin action to chancery court. The two actions were then consolidated. This court affirmed the transfer and held that the chancery court, which had first acquired jurisdiction through the foreclosure suit, properly exercised jurisdiction over the entire matter. This court stated its rule:

Circuit courts and chancery courts are of equal dignity; and in cases where there is concurrent jurisdiction, the court that first acquires jurisdiction has the right and jurisdiction to conduct the matter to an end without interference of another court of equal dignity. Wright v. LeCroy, 184 Ark. 837, 44 S.W.2d 355 [1931].

Id. at 121, 70 S.W.2d at 565. Here, Appellee correctly filed a single complaint in chancery court, seeking foreclosure of the lien on the real property and replevin of the personal property. We therefore conclude that the chancery court properly exercised subject-matter jurisdiction over the entire action.

Appellant next argues that the chancery court erred in directing him to deliver the property, rather than directing the sheriff to seize the property pursuant to section 18-60-811. We summarily affirm on this point, as Appellant did not make this argument below. We do not address arguments made for the first time on appeal. Jenkins v. Bogard, 335 Ark. 334, 980 S.W.2d 270 (1998). In sum, we hold that the chancery court’s finding of contempt is not clearly against the preponderance of the evidence.

Affirmed.


author: Robert L.Brown, Justice. Tom Glaze, Justice, Donald L. Corbin, Justice,

text:
    The STATE BOARD of WORKFORCE EDUCATION and Career Opportunities; and The Capitol Arts and Grounds Commission v. Miles KING
    99-4
    985 S.W.2d 731
    Supreme Court of Arkansas
    Opinion delivered February 18, 1999

      Mark Pryor, Att’y Gen., by: Sherri L. Robinson, Ass’t Att’y Gen., for appellants.

      Riable Law Firm, by: Mark Riable, for appellee.
   Robert L.Brown, Justice.

The State Board of Workforce Workforce Education and Career Opportunities (referred to herein as Board of Workforce Education) and the Capitol Arts and Grounds Commission appeal from a summary-judgment order in favor of appellee Miles King. In their appeal, they assert that the trial court erroneously found that State Senator Nick Wilson’s service on both the Board of Workforce Education and the Capitol Arts and Grounds Commission constituted “civil offices” in violation of Article 5, Section 10, of the Arkansas Constitution. We disagree with the appellants’ contention and hold that service on the board and commission involved are civil offices and, further, that such service violates the constitutional mandate requiring separation of powers set forth in Article 4 of the Arkansas Constitution.

Senator Nick Wilson currently serves as a member of the Arkansas State Senate and was appointed to serve on several state boards and commissions, which include appellants Board of Workforce Education and the Capitol Arts and Grounds Commission. He also was appointed to serve on the State Commission on Child Support and the Workforce Development Commission, which are not parties to this appeal. On November 10, 1997, appellee, Miles King, filed suit against Senator Wilson and the board and three commissions named above where Senator Wilson was appointed as a member and claimed that those positions on the board and commissions were civil offices and, thus, violative of Article 5, Section 10 of the Arkansas Constitution. King prayed for an injunction to prohibit Senator Wilson from serving on the board and commissions and also sought to recover all expenses paid to Senator Wilson for attending meetings of the board and commissions as illegal exactions. On April 7, 1998, the board and commissions filed a motion for summary judgment. On April 27, 1998, King filed his own motion for summary judgment.

On October 6, 1998, the trial court granted partial summary judgment in favor of each side. The trial court first decided that Senator Wilson’s position on the State Commission on Child Support was not a civil office and, therefore, did not run afoul of the constitution. The trial court further found that King’s claim about Senator Wilson’s position on the Workforce Development Commission was moot because that commission ceased to exist before the motions for summary judgment were filed. The trial court next found that Senator Wilson’s positions on the Board of Workforce Education and the Capitol Arts and Grounds Commission were civil offices and were constitutionally impermissible. The trial court concluded by ruling that King’s illegal-exaction claim failed because there was no proof that Senator Wilson acted with fraudulent intent or that he knew he was holding an illegal office. Because of this, the court did not order Senator Wilson to reimburse the per diem expenses he received while illegally serving on the one board and one commission. Senator Wilson did not appeal the decision of the trial court, but the Board of Workforce Education and the Capitol Arts and Grounds Commission have appealed. King initially filed a cross-appeal concerning that part of the trial court’s order which was adverse to him but moved to dismiss it, which we granted. The appellants moved to expedite consideration of the appeal, which we also granted.

As an initial matter, we address King’s contention that this matter is moot because Senator Wilson did not appeal. We do not agree. The Board of Workforce Education and Capitol Arts and Grounds Commission have a clear interest in this matter in that they want Senator Wilson to continue his service unimpeded. Were we to reverse the trial court’s order with respect to the appellants, Senator Wilson’s service would resume, and the appellants would have achieved the desired result. Without question, that result would be far from meaningless and would have a profound practical effect. See Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998). We conclude that the fact that Senator Wilson did not join in the appeal does not diminish the active and very real interest of the appealing board and commission.

The core issue before this court is whether Senator Wilson’s positions on the Board of Workforce Education and the Capitol Arts and Grounds Commission constituted appointments to civil offices, contrary to Article 5, Section 10, of the Arkansas Constitution. The trial court found that both appointments were civil offices, and our standard of review is whether its findings were clearly erroneous. See Ark. R. Civ. P. 52(a); Office of Child Support Enforcement v. Troxel, 326 Ark. 524, 931 S.W.2d 784 (1996). In resolving the question, it becomes important for us to determine, first, what service on the relevant board and commission entailed.

The Board of Workforce Education has twenty members, six of whom are members of the Arkansas General Assembly. Ark. Code Ann. § 25-6-302 (Supp. 1997). Those six members serve in an ex officio, nonvoting capacity. The board is the successor board to the State Board of Vocational Education, and has general supervision of vocational education, including the administration of state funds. Ark. Code Ann. § 6-11-106 (Repl. 1993). The board develops and monitors a state plan for vocational and technical education and further establishes area vocational centers around the state and, together with the State Board of Education, formulates policy for public education. Ark. Code Ann. § 25-6-303 (Supp. 1997).

The Capitol Arts and Grounds Commission, on the other hand, has thirteen members, including one member of the state Senate and one member of the House of Representatives. Ark. Code Ann. § 22-3-502 (Supp. 1997), as amended by Act 1043 of 1997. It is chaired by the Secretary of State. Id. The legislative members are ex officio and nonvoting members, and they receive per diem payments and mileage reimbursement for attending commission meetings, both of which are paid by legislative appropriations. Id. The duties of the commission include collecting information from state agencies on need for space on the State Capitol grounds; recommending a Capitol Master Plan for capital improvement projects on the grounds; recommending acquisition of land for those purposes; filing an annual report with the Secretary of State; reviewing and recommending to the Secretary of State monuments, memorials, and fountains on the grounds; reviewing paintings and murals in the State Capitol; and accepting donations in funds or property for the Capitol Building and the expenditure of those funds. Ark. Code Ann. § 22-3-503 (Supp. 1997). Monuments on the State Capitol grounds must be authorized by the General Assembly. Id.

The question before us is whether the duties required of Senator Wilson on either the appealing board or commission are such that his position falls into the category of a “civil office.” The precise language of Article 5, Section 10, reads: “No Senator or Representative shall, during the term for which he shall have been elected, be appointed or elected to any civil office under this State.” Ark. Const, art. 5, § 10.

We have had occasion over the years to interpret this constitutional provision as applied to certain official positions occupied by state senators or representatives apart from their duties as members of the General Assembly. See, e.g., Martindale v. Honey, 259 Ark. 416, 533 S.W.2d 198 (1976) (deputy prosecuting attorney); Harvey v. Ridgeway, 248 Ark. 35, 450 S.W.2d 281 (1970) (delegate to the Constitutional Convention); Starnes v. Sadler, 237 Ark. 325, 372 S.W.2d 585 (1963) (member of State Board of Pardons and Paroles and Board of Southern State College); Jones v. Duckett, 234 Ark. 990, 356 S.W.2d 5 (1962) (County Election Commissioner); Smith v. Faubus, 230 Ark. 831, 327 S.W.2d 562 (1959) (member of State Sovereignty Commission); Fulkerson v. Refunding Bd. of Arkansas, 201 Ark. 957, 147 S.W.2d 980 (1941) (member of Refunding Board); Wood v. Miller, 154 Ark. 318, 242 S.W. 573 (1922) (municipal judge). In each case, except for the election to the Constitutional Convention, the position was deemed to be a civil office. Early on, we cited with approval a definition of “civil office” offered by the Iowa Supreme Court: “A civil office is a grant and possession of the sovereign power.” Wood v. Miller, 154 Ark. at 322-323, 242 S.W. at 575, citing State v. Spaulding, 72 N.W. 288 (Iowa 1897). Sovereign power is the authority of the State to act. Black’s Law Dictionary 1396 (6th ed. 1990). Later, we wrote that a civil office is “an office created by civil law within one of the only three branches of government provided for under the present Constitution of this state.” Harvey v. Ridgeway, 248 Ark. at 46, 450 S.W.2d at 287. We added in Harvey that Article 5, Section 10, “was designed and intended as a protection against the possible conflicts in interests a member of the legislature might have as an elected official with the power, influence and authority to create positions and offices, and the interest he might have as a private citizen who would desire to hold such civil office by appointment or election.” 248 Ark. at 48, 450 S.W.2d at 288.

This court has held over the years that a variety of official positions 'occupied by members of the General Assembly did not pass constitutional muster. In Fulkerson v. Refunding Board of Arkansas, supra, for example, we considered Act 4 of 1941 which provided that three senators and five representatives be appointed as members of the Refunding Board. The board was established to enable the State to refund its bonded road debt. We held in that case that the senators and representatives were not eligible to serve as members of the board and said:

Now, of course the General Assembly has the right to appoint such committees or commissions, to be composed, in part or wholly, of its own members, to make investigation and report upon any matter related to the discharge of their legislative duties. But the discharge and performance of the details of act No. 4 is not a legislative matter. It was the sole province of the General Assembly to enact the law. It is the duty of the judicial department to construe it, and it will be the duty of the executive department to enforce it; and we think it is beyond the power of the General Assembly to confer executive powers upon its members, and we think the appointment of members of the General Assembly to membership on the Refunding Board is in contravention of the spirit, if not the letter, of the sections of the Constitution above referred to.

Fulkerson, 201 Ark. at 969, 147 S.W.2d at 986. We concluded in Fulkerson by stating that the General Assembly has power to name persons to execute the laws it passes. But this power is different from creating a commission and then electing its members to the positions created. Id. at 969-970, 147 S.W.2d at 986.

This court has further held that service by legislators on either the State Board of Pardons and Paroles or the Board of Southern State College violated the constitutional proscription. See Starnes v. Sadler, supra. In Starnes, we also observed that Article 4, Sections 1 & 2, provide that the powers of government are divided into three district departments, and no person serving within the legislative, executive, or judicial departments may exercise power belonging to one of the other departments. We then determined that the legislators’ service on the boards in question violated the principle of separation of powers because “they are empowered to manage, control and supervise a considerable amount of state property, assets and funds . . . .” Starnes, 237 Ark. at 330, 372 S.W.2d at 588. Under the Arkansas Constitution, that power is reserved to the executive branch of state government.

Finally, in Smith v. Faubus, supra, we weighed the issue of whether members of the legislative branch could sit on the State Sovereignty Commission. We held that the Governor, Lieutenant Governor, and the Attorney General could serve on the commission because Article 5, Section 10, did not apply to officers of the executive branch but that members of the General Assembly, even though they were appointed in an ex officio role, were prohibited under our Constitution from serving on that commission.

Using this line of cases as a backdrop, there is no doubt that a position on the Board of Workforce Education constitutes an exercise of the sovereign power of the State and, thus, a civil office. The board functions on behalf of the sovereign state of Arkansas in overseeing vocational education and administering state funds. The same is true of the Capitol Arts and Grounds Commission. It develops a Master Plan for the needs of the State Capitol and its grounds and reviews proposals and makes recommendations, some of which go to its chair who is a constitutional officer of the Executive Branch — the Secretary of State. What is decisive on this point is that the commission is further authorized to raise private donations, enter into contracts, and spend money on monuments, fountains, artwork and the like. We do not see the commission’s function as being merely advisory but rather that of a direct decision-maker with enormous influence over the physical plant of the Capitol Building and its grounds as well as future expansion. We agree with the trial court that this, too, constitutes a civil office.

Despite our line of cases, the Board of Workforce Education and the Capitol Arts and Grounds Commission urge that Senator Wilson cannot be deemed to hold a civil office because he serves only as an ex officio and nonvoting member. As already mentioned, we held in Smith v. Faubus, supra, that ex officio status did not cure the illegality of a legislative appointment to a civil office. The same can be said about nonvoting status.

It is this last point that directly implicates the doctrine of separation of powers in our judgment. As already mentioned, the principle that a member of one branch of government shall not serve in another is fixed in no uncertain terms by the Arkansas Constitution: “No person, or coEection of persons, being one of these departments, shaE exercise any power belonging to either of the others, except in the instances hereinafter expressly directed or permitted.” Ark. Const, art 4, § 2. The legislator, in this case Senator Wilson, has been authorized by the General Assembly to occupy a position on the appealing board and commission. Hence, he serves with the imprimatur of the General Assembly which enacted the enabling legislation. With the fuE weight of this legislative authority behind him, he participates in debate, voices his opinions, and assesses the pros and cons of any given issue with the other members of the board and commission. His views are made known, and carry, no doubt, inordinate influence because of who and what he is. Under these circumstances, it makes little difference whether he actuaEy votes on the issue at hand. He is unmistakably exercising the power of the executive branch of government by his participation on the board and commission, and that is forbidden to him as a member of the General Assembly.

We have previously addressed the subtle yet palpable impact that intrusion by the legislative branch into the affairs of a state agency can have. See Chaffin v. Arkansas Game & Fish Comm’n, 296 Ark. 431, 757 S.W.2d 950 (1988). In Chaffin, the General Assembly had passed an act giving the Legislative CouncE the power to review and advise on aE professional or consultant contracts in amounts of more than $5,000 before a state agency could enter into the contract. The history of the act showed that no contracts had been approved when the Legislative CouncE had voiced its disapproval, even though the act was couched in terms of the CouncE’s merely giving its advice on the contracts. We noted in our opinion that it was unreasonable to expect that a state agency would defy the wiE of an arm of the General Assembly which had the power to undermine its very existence. We viewed the legislative act giving the Legislative CouncE this power as an encroachment and remarked specificaEy that a “subtle coercion exercised by a powerful branch of government can effectively tie the hands of a coordinate branch.” Chaffin, 296 Ark. at 444, 757 S.W.2d at 957.

The appellants make much of the fact that Senator Wilson is merely performing legislative duties when serving on the Board of Workforce Education and the Capitol Arts and Grounds Commission, which is clearly permitted in Fulkerson v. Refunding Board of Arkansas, supra. We disagree. In Fulkerson we did endorse in dicta the ability of the General Assembly to appoint its members to a committee or commission to investigate and report on a matter related to their legislative duties. This, however, was not a grant of blanket authority to serve on all boards and commissions of the executive branch that execute and implement laws passed by the General Assembly. That would make a travesty of the doctrine of separation of powers. We made that distinction clear in our Fulkerson decision but have stated emphatically since then that the separation-of-powers provisions in Article 4 of the Arkansas Constitution establish that the legislative power is to make laws but not enforce them. See, e.g., Clinton v. Clinton, 305 Ark. 585, 810 S.W.2d 923 (1991), quoting Springer v. Philippine Islands, 277 U.S. 189 (1928). In short, the execution of our state laws is simply beyond the ken of legislative power, and our State Constitution makes this abundantly clear.

The appellants, finally, contend that having Senator Wilson serve on their respective board and commission provides them with expertise and an information resource that otherwise would be lacking. This might be true but that same resource could be tapped by Senator Wilson’s attendance at the meetings as a member of the public and not as a member of the General Assembly serving on that board and commission. It is the fact that he fills both positions while simultaneously serving as a member of the state Senate that violates both Articles 4 and 5 of the Arkansas Constitution.

In sum, the trial court was not clearly erroneous. We affirm the summary-judgment order as it pertains to the Board of Workforce Education and the Capitol Arts and Grounds Commission.

Affirmed.

Glaze, J., concurs.

Corbin and Thornton, JJ., dissent.

Tom Glaze, Justice,

concurring. I agree with the majority opinion, but majority opinion, but write to point out that the dissent totally misses the issue when it expresses the view that General Assembly members can serve on legislative-created boards that have nothing to do with the discharge of legislative duties. This court prohibited such an unconstitutional practice in Fulkerson v. Refunding Board of Arkansas, 201 Ark. 957, 147 S.W.2d 980 (1 941). That constitutional concept was, is, and remains the law and cannot be avoided by saying that General Assembly members can serve on such boards or commissions when a member’s service “would benefit the legislature.” This is the very conflict the separation-of-powers doctrine is to guard against.

Here, the boards and commissions are laden with persons from the executive branch, and these members are empowered to discharge executive duties. These boards and commissions are not created for the purpose of discharging legislative duties. Pure and simple, it is the General Assembly member’s appointment as a member of the commissions and boards that is unconstitutional, and that unlawful appointment cannot be legitimized by placing a General Assembly member on the board or commission without giving him or her voting powers.

In conclusion, while this court was not presented with whether a General Assembly member could constitutionally serve on the other two commissions — the State Commission on Child Support and the Workforce Development Commission — that were in issue below, I see those positions no differently than the ones decided in this appeal. In short, the General Assembly members’ appointments to those two commissions violated the separation-of-powers doctrine, and in my view were unconstitutional.

Donald L. Corbin, Justice,

dissenting. I would reverse because because I do not agree that Senator Wilson’s appointments to either the Board of Workforce Education, or the Capitol Arts and Grounds Commission, constitute civil-office violations of Ark. Const, art. 5, § 10. I also disagree that Senator Wilson’s service rises to the level of a violation of separation of powers pursuant to Ark. Const, art. 4.

Clearly, Senator Wilson did not acquire sovereign powers by virtue of his appointment. Lacking voting power, Senator Wilson was totally powerless to participate meaningfully or to interfere with the major activities of these boards. In sum, he had no authority to act for the State; hence, he assumed no sovereign powers, which define civil offices. Wood v. Miller, 154 Ark. 318, 242 S.W. 573 (1992). Essentially, Senator Wilson was an observer and operated, at best, as a liaison between the legislative and executive branches. Had he had actual voting powers, I would agree with the majority that Senator Wilson should not serve as a “direct decision-maker with enormous influence[.]” While the majority makes much of Senator Wilson’s opportunity to express his opinion, it has conspicuously omitted any authority for bootstrapping the senator’s nonvoting status with our holding in Smith v. Faubus, 230 Ark. 831, 327 S.W.2d 562 (1959). I would hold that such nonvoting status effectively cured Senator Wilson’s appointment. Moreover, as a liaison between governmental branches, Senator Wilson’s representation and observation was of benefit to the legislature and directly linked to his legislative responsibilities. Fulkerson v. Refunding Board of Arkansas, 201 Ark. 957, 147 S.W.2d 980 (1941).

Because the facts in this case reveal no hint of intrusion, coercion, or usurpation of power between the respective governmental branches, I respectfully dissent.

Thornton, J., joins in this dissent.


author: Robert L. Brown, Justice.

text:
    Nikki ZINGER v. Jan TERRELL, Individually and as Administratrix of the Estate of Linda Sue Holley, Deceased
    98-998
    985 S.W.2d 737
    Supreme Court of Arkansas
    Opinion delivered February 18, 1999

      Ben Seay, for appellant.

      Keith, Clegg, & Epley, by: Michael G. Epley, for appellee.
   Robert L. Brown, Justice.

This appeal is from a grant of summary judgment in favor of appellee Jan Terrell individually and as administratrix of the estate of Linda Sue Holley, deceased. The issue before us is whether appellant Nikki Zinger’s judgment of conviction for the first-degree murder of her mother, Linda Sue Holley, precludes her claim to the life insurance proceeds on her mother’s life. The trial court found that it did and entered summary judgment accordingly. We agree with the chancery court and affirm.

On March 8, 1991, Linda Sue Holley died as a result of stab wounds and several blows to the head. Law enforcement investígators determined that a burglary was staged after Holley was murdered, and they arrested the victim’s daughter, Zinger, and her boyfriend, Daniel Risher, for the crime. The prosecutor’s theory of the case was that the two defendants had killed Holley to collect the proceeds of her life insurance policies. On January 13, 1992, Zinger and Risher were convicted of first-degree murder, and Zinger was sentenced to fife imprisonment. We affirmed the conviction and sentence on direct appeal. See Zinger v. State, 313 Ark. 70, 852 S.W.2d 320 (1993). Zinger next filed a postconviction petition for Rule 37 relief. That was denied by the circuit court, and we affirmed.

Holley had two life insurance policies in effect at the time of her death. One was with State Farm Life Insurance Company, and a second was with Boston Mutual Life Insurance Company. On November 15, 1991, State Farm filed a complaint in inter-pleader in chancery court regarding the insurance proceeds on Holley’s life and alleged that under its policy Zinger was the primary beneficiary and Terrell was the successor beneficiary. The State Farm fife insurance proceeds were deposited into the registry of the court pursuant to court order. Named as party defendants in the interpleader lawsuit were Zinger, Terrell, and the personal representative of the Holley Estate. The initial defendant and administrator of the Holley estate was Gary Oiler, who died during the pendency of the proceedings. Terrell was appointed as successor administratrix on March 13, 1996. Boston Mutual also moved to intervene in the interpleader suit, and the chancery court granted the motion and allowed the insurance company to interplead its insurance proceeds. Under the Boston Mutual policy, Zinger was the only beneficiary named.

On March 13, 1996, Terrell moved for summary judgment based on the fact that Zinger had been convicted of murdering her mother and, accordingly, should not be a beneficiary of her mother’s life insurance policies. Terrell prayed instead that the court disburse the proceeds to her individually as the alternative beneficiary in the case of State Farm’s policy and to her as administratrix of the Holley Estate for the Boston Mutual policy. The chancery court granted the motion and found that Zinger, by virtue of her murder conviction, was precluded from receiving any life insurance proceeds arising from Holley’s death. That summary-judgment order was subsequently set aside in order to comply with Ark. R. Civ. P. 17(c), which requires appointment of counsel for prisoners in the penitentiary, if the prisoner has no counsel. An attorney was appointed for Zinger, and a response to Terrell’s motion for summary judgment was filed on her behalf. Attached to the response was Zinger’s affidavit in which she denied murdering her mother.

On February 11, 1998, the chancery court issued a letter opinion granting Terrell’s motion for summary judgment. In that letter opinion, the chancery court concluded:

Nikki Sue Zinger is collaterally estopped from asserting any interest in her mother’s estate as a result of her conviction for the first-degree murder of her mother. The judgment and conviction of the Circuit Court of Columbia County, as affirmed by the Arkansas Supreme Court, precludes her from re-litigating her guilt in the intentional death of her mother, and as a result thereof, her taking in the estate of her mother or from any insurance policies insuring the life of her mother.

Zinger now appeals and claims that the chancery court erred because its order is in direct conflict with the common law of Arkansas. Zinger is correct that the chancery court’s decision is contrary to our common law. In cases dating back to 1936, this court has held that a judgment in a criminal prosecution is neither a bar to a subsequent civil proceeding founded on the same facts nor proof of anything except its rendition. See, e.g., Smith v. Dean, 226 Ark. 438, 290 S.W.2d 439 (1956); Horn v. Cole, 203 Ark. 361, 156 S.W.2d 787 (1941); Washington Nat’l Ins. Co. v. Clement, 192 Ark. 371, 91 S.W.2d 265 (1936). The issue then is whether our common law is outmoded and should be overrifled.

We turn first to Washington Nat’l Ins. Co. v. Clement, supra. In that case, an insurance company denied disability benefits to Clement (its insured) because Clement had been driving his car while intoxicated in violation of state law. During the ensuing trial where Clement sued for disability benefits, the insurance company proved that he was convicted of driving while intoxicated. Because of this, the company sought a directed verdict. The trial court denied the motion and sent the case to the jury. The jury found for Clement. We affirmed the trial court’s decision not to grant a directed verdict to the insurance company, and in doing so, we cited Corpus Juris:

By the great weight of authority, and in the absence of any statute to the contrary, a judgment or sentence in a criminal prosecution is neither a bar to a subsequent civil proceeding founded on the same facts, nor is it proof of anything in such civil proceeding, except the mere fact of its rendition.

Clement, 192 Ark. at 373, 91 S.W.2d at 266 (citing 34 C.J. 970, § 1387).

Our next case in this line of cases dealt with an insurance beneficiary (the widow) who was tried and acquitted of murdering the insured (her husband). See Horn v. Cole, supra. In Horn, the widow sought to use this earlier acquittal to establish lack of wrongdoing in her subsequent civil proceeding to collect his life insurance proceeds. The chancery court ruled that it was not bound by the criminal judgment and that it had the right to determine in a separate civil action whether the beneficiary was guilty or innocent of murdering her husband. The court concluded that the widow had indeed engaged in wrongdoing and had caused her husband’s death. We affirmed, and repeated the common law in Arkansas: “Neither a conviction nor an acquittal of the appellant in the criminal case would have been binding upon the court in the trial of the issues here involved.” Horn, 203 Ark. at 367, 156 S.W.2d at 790.

Finally, in Smith v. Dean, supra, a widow was convicted of murdering her former husband. She petitioned in probate court to be awarded land as the surviving tenant by the entirety and also statutory allowances. The administrator for her husband’s estate introduced a certified copy of the criminal judgment of conviction, but the probate court ruled that that judgment was not determinative of wrongdoing in the civil matter. We agreed and relied on our prior caselaw that a criminal judgment is not admissible to prove the facts on which it was based. We noted that the soundness of this rule was not universally conceded and that Dean Wigmore in his treatise, Wigmore on Evidence, had argued that the rule should be relaxed in exceptional circumstances. We concluded by saying:

Since we are not convinced that our own precedents are demonstrably wrong we think it best to preserve certainty in the law by declining to overrule our earlier decisions.

Dean, 226 Ark. at 440, 290 S.W.2d at 440-41. We have not had occasion to reexamine our common law since the Dean decision in 1956.

We have no doubt that the point of view as expressed in these cases no longer prevails and that today in the vast majority of jurisdictions a judgment of criminal conviction may preclude a defendant from retrying the same issue of his or her culpability in a subsequent civil complaint. Hence, a criminal conviction now acts as a bar and collaterally estops the retrial of issues in a later civil trial that were actually litigated in the criminal trial. See, e.g., Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963); In re Marquardt, 778 P.2d 241 (Ariz. 1989); Teitelbaum Furs, Inc. v. Dominion Ins. Co., 375 P.2d 439 (Calif. 1962); People v. Tucker, 837 P.2d 1225 (Colo. 1992); Warmouth v. Delaware State Bd. of Examiners in Optometry, 514 A.2d 1119 (Del. Super. Ct. 1985); Tradewind Ins. Co. v. Stout, 938 P.2d 1196 (Haw. Ct. App. 1997); Rockford Mut. Ins. Co. v. Shattuck, 544 N.E.2d 843 (Ill. Ct. App. 1989); Ideal Mut. Ins. Co. v. Winker, 319 N.W.2d 289 (Iowa 1982) (guilty plea); Aetna Cas. & Surety Co. v. Niziolek, 481 N.E.2d 1356 (Mass. 1985); Jordan v. McKenna, 573 So.2d 1371 (Miss. 1990); Johnson v. Schmidt, 719 S.W.2d 825 (Mo. Ct. App. 1986); Aetna Life & Cas. Ins. Co. v. Johnson, 673 P.2d 1277 (Mont. 1984); Aubert v. Aubert, 529 A.2d 909 (N.H. 1987); In re Coruzzi, 472 A.2d 546 (N.J. 1984); Broer v. Smith, 658 N.Y.S.2d 447 (N.Y. 1997) (guilty plea); Lee v. Knight, 771 P.2d 1003 (Okla. 1989); McFadgon v. Memphis, 731 S.W.2d 530 (Tenn. Ct. App. 1986); McCormick v. Texas Commerce Bank Nat’l Ass’n, 751 S.W.2d 887 (Tex. Ct. App. 1988); Rice v. Janovich, 742 P.2d 1230 (Wash. 1987); see also 47 Am. Jur.2d § 733 (1995). This shift in attitude is also evidenced in the Restatement of Law. See Restatement, Second, of Judgments § 85(2)(a).

We have no doubt that one of the principal reasons for this change in the majority view is that the potential for an erroneous judgment in a criminal proceeding has been dramatically reduced by the full panoply of rights afforded to criminal defendants in the past forty years. See, e.g., Ark. R. Crim. P. 37 (postconviction relief); Mapp v. Ohio, 367 U.S. 643 (1961) (the exclusionary rule); Miranda v. Arizona, 384 U.S. 436 (1966) (mandatory that an accused be informed of constitutional rights prior to custodial interrogation); Brady v. Maryland, 373 U.S. 83 (1963) (requiring disclosure of material evidence by the prosecutor); Griffin v. California, 380 U.S. 609 (1965) (prohibiting the prosecution from commenting on the accused’s silence); Gerstein v. Pugh, 420 U.S. 103 (1975) (prompt determination of probable cause after an arrest); Illinois v. Gates, 462 U.S. 213 (1983) (standards for search warrants). The California Supreme Court emphasized this point in 1963 when it explained the basis for its departure from the traditional rule:

To preclude a civil litigant from relitigating an issue previously found against him in a criminal prosecution is less severe than to preclude him from relitigating such an issue in successive civil trials, for there are rigorous safeguards against unjust conviction, including the requirements of proof beyond a reasonable doubt and of a unanimous verdict, the right to counsel, and a record paid for by the state on appeal. Stability of judgments and expeditious trials are served and no injustice done, when criminal defendants are estopped from relitigating issues determined in conformity with these safeguards.

Teitelbaum Furs, Inc., 375 P.2d at 441 (citations omitted).

We are convinced that the time has come to overrule our caselaw and join the prevailing view that a prior criminal conviction for murder acts as a bar to relitigating the same issue for the same defendant in civil court. The doctrine of collateral estoppel or issue preclusion bars the relitigation of issues of law or fact actually litigated by the parties in the first suit, provided that the party against whom the earlier decision is being asserted has a frill and fair opportunity to litigate the issue in question and that issue is essential to the judgment. See Huffman v. Alderson, 335 Ark. 411, 983 S.W.2d 899 (1998). The following elements must be shown in order to establish collateral estoppel: (1) the issue sought to be precluded must be the same as that involved in the prior litigation; (2) the issue must have been actually litigated; (3) the issue must have been determined by a final and valid judgment; and (4) the issue must have been essential to the judgment. See Miller County v. Opportunities, Inc. 334 Ark. 88, 971 S.W.2d 781 (1998) (citing Hill v. State, 331 Ark. 312, 962 S.W.2d 762 (1998)). We hold that a defendant who has been adjudged guilty of murdering a person is collaterally estopped from relitigating that same issue in a later civil proceeding to inherit or take the victim’s property.

We do not overrule our common law cavalierly or without giving considerable thought to this change. Zinger appropriately raises the doctrine of stare decisis, and we certainly concur that this court historically has been reluctant to overturn precedent. Indeed, we have recently said that precedent governs until it gives a result so patently wrong, so manifestly unjust, that a break becomes unavoidable. See McGhee v. State, 334 Ark. 543, 975 S.W.2d 834 (1998) (citing Parish v. Pitts, 244 Ark. 1239, 1252, 429 S.W.2d 45, 52 (1968)). We also said in Sanders v. County of Sebastian, 324 Ark. 433, 922 S.W.2d 334 (1996):

While we do have the power to overrule a previous decision, it is necessary, as a matter of public policy, to uphold prior decisions unless a great injury or injustice would result. The United States Supreme Court has recognized that adherence to precedent promotes stability, predictability, and respect for judicial authority. (Citations omitted.)

Id. at 435-436, 922 S.W.2d at 335.

On the other hand, we have said that precedent “should not implicitly govern, but discreetly guide.” Parish v. Pitts, 244 Ark. at 1252, 429 S.W.2d at 52 (quoting Roane v. Hinton, 6 Ark. 525, 527 (1846)). The Supreme Court of the United States has stated its position along the same lines: “Nevertheless, when governing decisions are unworkable or are badly reasoned, this Court has never felt constrained to follow precedent. Stare decisis is not an inexorable command; rather, it is a principle of policy and not a mechanical formula of adherence to the latest decision.” Payne v. Tennessee, 501 U.S. 808, 828-29 (1991) (internal citations omitted). As this court stated recently, one of the reasons to change the common law is when it becomes outmoded and unjust, out of joint with the times and no longer reflective of the economic and social needs of society. See Shannon v. Wilson, 329 Ark. 143, 947 S.W.2d 349 (1997). We are convinced that that has become the situation in the case at hand.

We, accordingly, overrule Smith v. Dean, 226 Ark. 438, 290 S.W.2d 439 (1956), with regard to its holding that a prior criminal conviction for murder does not preclude relitigating the same issue of culpability against the same defendant in a later civil proceeding. We further hold that the dictum in Horn v. Cole, 203 Ark. 361, 156 S.W.2d 787 (1941), to that same effect is no longer the common law in Arkansas.

We leave intact, however, the holding in Horn v. Cole, supra, that an acquittal in a criminal trial for murder does not act as a bar to a subsequent trial in a civil proceeding relating to that defendant’s culpability. The reason is simple. A criminal acquittal for murder where the proof does not convince a jury beyond a reasonable doubt should not prohibit a civil trial where proof of wrongdoing may well be proved by a preponderance of the evidence. Because we are not called upon in the instant case to address the issue of collateral estoppel for criminal convictions other than murder, we do not overrule Washington Nat’l Ins. Co. v. Clement, 192 Ark. 371, 91 S.W.2d 265 (1936).

Affirmed.


author: Lavenski R. Smith, Justice.

text:
    Mattie ALLISON v. Alvin LONG and Shirley Long, Husband & Wife; the Unknown Heirs at Law of Grant Long, Jr., Deceased; the Unknown Heirs at Law of Jo Ann Long, Deceased; John A. Eason; Ruby J. Eason; and Any Other Person Who Might Claim An Interest
    98-126
    985 S.W.2d 314
    Supreme Court of Arkansas
    Opinion delivered February 18, 1999

      Robert l. Depper, Jr., for appellant.

      Daggett, Van Dover, Donovan & Perry, PLLC, by: J. Shane Baker, for appellees Alvin and Shirley Long.
   Lavenski R. Smith, Justice.

Appellant, Mattie Allison, appeals the Lee County Chancery Court’s judgment quieting title to three parcels of real property in favor of Alvin and Shirley Long, appellees. The Court of Appeals certified this case pursuant to Ark. Sup. Ct. R. 1-2(b)(l) and (5). Appellant assigns three errors to the court below. We disagree and affirm.

The first and principal alleged error is the trial court’s denial of appellant’s motion to dismiss counterclaim. Appellant filed this action on March 4, 1996. Appellees responded by separate answer on March 26, 1996, accompanied by initial discovery requests to appellant. After receipt of appellant’s discovery responses, appellees filed a counterclaim on August 5, 1996, that stated with particularity appellees’ position regarding title to the subject real property. Three days later, appellant answered the counterclaim and simultaneously filed a motion to dismiss counterclaim. Appellant’s only stated basis for dismissal was that as a compulsory counterclaim it must, therefore, have been “raised on the date the counterplaintiffs filed their answer.” The trial court first addressed the motion to dismiss on December 5, 1996, at the beginning of the hearing below. The court took the motion under advisement and proceeded to hear the matter on the merits. On July 28, 1997, the court issued its letter opinion denying appellant’s dismissal motion and quieting tide to the subject real property in appellees. The trial court found no prejudice to appellant in permitting the supplemental pleading and entered its judgment to that effect on October 29, 1997.

On appeal, Allison restates her argument below that the compulsory nature of appellees’ counterclaim made it mandatory that it be filed in appellees’ original answer citing Ark. R. Civ. P. 13(a). Appellant attempts to support this argument by citing four cases that reflect the policy rationale for compulsory counterclaims; McJunkins v. Lemons, 52 Ark. App.1, 913 S.W.2d 306 (1996), citing In re: Estate of Goston v. Ford Motor Co., 320 Ark. 699, 705-706, 898 S.W.2d 471 (1995); Bankston v. McKenzie, 288 Ark. 65, 67, 702 S.W.2d 14 (1986); Golden Host Westchase, Inc. v. First Service Corp., 29 Ark.App. 107, 117, 778 S.W.2d 633 (1989). However, none of the cited cases support appellant’s contention. Instead, these cases illustrate the true policy purpose for compulsory claims, i.e. avoidance of multiple lawsuits on the same facts with the same parties. Appellant argues that a compulsory counterclaim must be filed with the answer or the party loses the right to plead it. Appellant misapprehends the ‘compulsory’ nature of a Rule 13(a) claim. It is compulsory in the sense that it must be raised within the pending action, not that it must necessarily be raised within the defendant’s answer.

Appellant’s argument also ignores the plain provision of Rule 13(e) which enables a pleader to assert his counterclaim by amended or supplemental pleading subject to the requirements of Rule 15. Rule 15(a) states in pertinent part “[w]ith the exception of pleading the defense mentioned in Rule 12(h)(1), a party may amend his pleadings at any time without leave of the court. Where, however, upon motion of an opposing party, the court determines that prejudice would result or the disposition of the cause would be unduly delayed because of the filing of an amendment, the court may strike such amended pleading or grant a continuance of the proceeding.” In the instant case, appellees amended their answer by supplemental pleading to assert a counterclaim. Such an amendment our rules manifestly permit. Appellant objected to that amendment but made no showing of prejudice or delay. Clearly, the chancellor ruled correctly in denying appellant’s motion to dismiss.

Appellant’s other two assignments of error will not be addressed by this court due to the inadequacy of appellant’s abstract. Morse v. Sentry Life Ins. Co., 332 Ark. 605, 967 S.W.2d 557 (1998). Appellant contends that the trial court should have tolled the prescriptive period for adverse possession because of a bankruptcy proceeding. He also asserts that the trial court misapplied the law of adverse possession to the facts of the instant case. Yet, appellant failed to abstract the court’s letter opinion which outlined the factual and legal basis for the court’s actions. Appellant did not abstract any bankruptcy orders relevant to this case. Appellant did abstract the judgment but condensed it to an unhelpful one paragraph summary referring to the unabstracted letter opinion. Nat’l Enterprises, Inc. v. Rea, 329 Ark. 332, 947 S.W.2d 378 (1997). Moreover, appellant failed to abstract the necessary real property records and documents needed to review a case where title to the property is at issue. Fulkerson v. Calhoun, 58 Ark.App. 63, 946 S.W.2d 714 (1997). As we have stated, when an abstract is flagrantly deficient, we will affirm the judgment or decree of the trial court. Hooker v. Farm Plan Corp., 331 Ark. 418, 962 S.W.2d 353 (1998).

Affirmed.


author: Per Curiam.

text:
    Charles GREEN v. STATE of Arkansas
    CR 99-126
    985 S.W.2d 319
    Supreme Court of Arkansas
    Opinion delivered February 18, 1999

      Thomas A. Young, for appellant.
    No response.
   Per Curiam.

Charles Green, by his attorney, has filed a motion for rule on the clerk.

His attorney, Thomas A. Young, admits in his motion that the record was tendered late due to a mistake on his part.

We find an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).

The motion for rule on the clerk is, therefore, granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct.


text:
    Bill THOMPSON v. STATE of Arkansas
    CR 98-1243
    985 S.W.2d 319
    Supreme Court of Arkansas
    Opinion delivered February 18, 1999

      Robert W. Bush, for appellant.
    No response.
   Per Curiam.

Appellant’s attorney of record, Robertert W. Bush, represented appellant in a jury trial before the Faulkner County Circuit Court. On June 22, 1998, appellant filed a pro se notice of appeal from his conviction. On February 8, 1999, Mr. Bush filed a motion in this court seeking to be relieved as appellant’s counsel, but there is no evidence in the record indicating that Mr. Bush was relieved from filing a notice of appeal on appellant’s behalf or from representing appellant in his appeal.

Rather than granting Mr. Bush’s motion in the absence of a record demonstrating what, if any, action the trial court may have taken regarding this issue, we remand this matter to the trial court to settle the record in accordance with Ark. R. App. P. — Civil 6(d), made applicable to criminal proceedings pursuant to Ark. R. App. P. — Crim. 4(a). See Finch v. State, 329 Ark. 319, 319-20, 947 S.W.2d 11 (1997) (citing West v. State, 322 Ark. 114, 907 S.W.2d 133 (1995) (per curiam)). Further, we direct that the record, as setded, be filed with this court’s clerk within thirty-five days.