author: Donald L. Corbin, Justice.

text:
    Jack M. CLARK, Norma G. Clark, and Gary Michael Clark, Trustee of the Jack M. Clark Trust v. BANK OF BENTONVILLE
    91-232
    824 S.W.2d 358
    Supreme Court of Arkansas
    Opinion delivered February 3, 1992

      John M. Blair, for appellants.

      Richard W. Hood, for appellee.
   Donald L. Corbin, Justice.

This case arises out of appellants Jack and Norma Clark’s conveyance of real property in Benton County, Arkansas, to appellant Gary Clark, trustee of the Jack M. Clark trust. The warranty deed conveying the property was executed on April 14,1986, and was filed for record on May 9, 1986. On January 7, 1987, appellee Bank of Bentonville, a creditor of Jack and Norma Clark, filed this action, along with lis pendens notice, to set aside the transfer as a fraudulent conveyance.

On August 10,1987, appellants Jack and Norma Clark filed a Chapter 7 bankruptcy petition in United States Bankruptcy Court for the Central District of California, San Bernardino Division. The bankruptcy court entered an order on December 30, 1987, granting Jack and Norma Clark a discharge in bankruptcy. At the close of the bankruptcy case, the bank proceeded with its previously filed fraudulent conveyance action. The chancellor denied appellants’ motion to dismiss this action, and determined that the conveyance of April 14, 1986, was fraudulent. The chancellor ordered a sale of the property with the proceeds applied to appellants’ debt to the bank. On June 19, 1991, the property was sold and the proceeds paid to the appellee bank.

On appeal, appellants raise two arguments in urging us to reverse the chancellor. First, they argue that the chancellor erred in denying their motion to dismiss because either appellants’ discharge in bankruptcy or the doctrine of res judicata should have precluded the bank from proceeding with this action. Second, appellants argue that the chancellor erred in denying their motion for a directed verdict because the bank did not prove fraudulent intent by a preponderance of the evidence. We find no error on the part of the chancellor, and affirm his decision.

Appellants’ initial argument is that the chancellor erred in allowing the bank to proceed with its fraudulent conveyance action after appellants obtained a discharge from the bankruptcy court. Appellants rely on both the discharge provisions of the bankruptcy code and the doctrine of res judicata. The bank does not dispute the validity of appellants’ bankruptcy discharge, but argues that the bank’s pre-petition filing of this action created a lien on the property at issue which survived the discharge of appellants’ debt to tl^e bank.

Under Arkansas law, a general creditor who files an action to cancel a fraudulent conveyance of a debtor acquires a specific lien on the property conveyed. Boyd v. Arnold, 103 Ark. 105, 146 S.W. 118 (1912); Stix v. Chaytor, 55 Ark. 116, 17 S.W. 707 (1891). While the afore-cited cases involved liens on personal property, we extend the rule to include liens on real property when notice of lis pendens is filed. In this case, the bank created a specific lien on the property at issue when it filed its fraudulent conveyance action on January 7, 1987. 11 U.S.C. § 522(c)(2) (1979 &Supp. 1991), provides that liens which are not avoided in the bankruptcy proceeding will be preserved notwithstanding the discharge of the debtor. Long v. Bullard, 117 U.S. 617 (1886); In re Dickinson, 24 B.R. 547 (Bankr. S.D. Cal. 1982). Since a discharge in bankruptcy does not defeat a valid lien, the chancellor did not err in denying appellants’ motion to dismiss merely because appellants’ underlying debt to the bank was discharged in the bankruptcy proceeding.

Appellants also rely on the doctrine of res judicata in arguing that the bank should have either objected to appellants’ discharge, established its status as a secured creditor, or pursued its fraudulent conveyance action during the bankruptcy proceeding. 11 U.S.C. § 727(a)(2) (1979) provides for objections to discharge based on a debtor’s fraudulent transfer of property. However, this section specifically requires that the alleged fraudulent conveyance occur within one year of the debtor’s bankruptcy filing. 11 U.S.C. § 727(a)(2)(A). See also Collier on Bankruptcy, ¶ 727.02(2) (15thed. .1988). In this case, the alleged fraudulent conveyance occurred on April 14, 1986, a date approximately fourteen months prior to appellants’ bankruptcy petition filing. Therefore, under section 727(a)(2), the bank could not have asserted a valid objection to discharge during the bankruptcy proceeding.

Appellants do not cite any authority to support their arguments that the bank had the duty to establish its secured status or pursue its fraudulent conveyance action during the bankruptcy proceeding. While the record in the case does not contain the bankruptcy proceedings, neither party disputes the fact that the bank was listed as an unsecured creditor in the bankruptcy schedule. The bankruptcy court in In re Dickinson, supra, addressed a similar situation. In the Dickinson case, a group of doctors filed a state court action to enforce a lien created prior to the debtor patient’s bankruptcy filing. The doctors were listed as unsecured creditors on the schedule, and the debt was discharged in the bankruptcy proceeding. When the doctors brought a state court action to enforce their pre-petition lien, the debtor filed an action in the bankruptcy court requiring the doctors to show cause why they should not be cited for contempt for violating the permanent injunction against any attempt to collect on a preexisting debt. Ultimately, the court held that the Dickinson creditors were not in contempt because the debtor’s discharge did not affect their valid pre-petition lien. The bankruptcy court also refused to consider the propriety of avoiding the lien since the debtor failed to contest the claim during the bankruptcy proceeding. The court noted that the debtor’s attorney was aware of the existence of the liens and could have taken action to avoid the liens during the bankruptcy proceedings.

In this case, appellants do not allege that they had no notice of the bank’s pre-petition filing of the fraudulent conveyance action. They merely assert that the bank should have taken affirmative action to preserve its lien in the bankruptcy proceeding. Appellants cite no authority to support their argument, and we believe the reasoning in the Dickinson case, supra, indicates that appellants, rather than the bank, had the burden of contesting the lien. In fact, 11 U.S.C. § 506(d) (Supp. 1991) specifically provides:

To the extent that a lien secures a claim against the debtor that is not an allowed secured claim, such lien is void, unless
(2) such claim is not an allowed secured claim due only to the failure of any entity tofile a proof ofsuch claim under Section 501 of this title. [Emphasis supplied.]

See also In re Weathers, 15 B.R. 945 (Bankr. D. Kan. 1981).

Appellants further argue that res judicata should bar the bank’s fraudulent conveyance action because the claim was not pursued in the bankruptcy proceeding. However, the bankruptcy code does not give a creditor the power to pursue a cause of action to set aside a fraudulent conveyance. Nebraska State Bank v. Jones, 846 F.2d 477 (8th Cir. 1988). In fact, 11 U.S.C. § 362(a) (1979) imposes an automatic stay that prohibits creditors from acting against a debtor’s property during the pendency of the bankruptcy proceeding. See also In re Weathers, supra. While a trustee may elect to pursue a creditor’s unsecured state law claim under 11 U.S.C. § 544(b) (1979), Nebraska State Bank, supra, such an action is an exercise of the avoidance power for the benefit of all creditors. Since the bank did not have standing as a single creditor to pursue the fraudulent conveyance action during the bankruptcy proceeding, id., res judicata did not prohibit the bank’s subsequent state court action.

For their second allegation of error, the appellants contend that the evidence does not support a finding of fraudulent intent, and that the chancellor erred in finding the transaction to be a fraudulent conveyance. The applicable statutes at the time of the allegedly fraudulent conveyance were set out in Ark. Stat. Ann. §§ 68-1301 and 68-1302 (Repl. 1979). Those statutes provided in pertinent part:

68-1301. Gifts and conveyances in trust to use of person making. — Every deed of gift and conveyance of goods and chattels in trust to the use of the person so making such deed of gift or conveyance, is declared to be void as against creditors existing, and subsequent purchasers.
68-1302. Conveyances or legal actions to defraud creditors void. — Every conveyance or assignment,... of any estate or interest in lands,... or of any rents issuing therefrom, and every charge upon lands, goods or things in action, or upon the rents and profits thereof,. . . made or contrived with the intent to hinder, delay or defraud creditors or other persons of their lawful actions, damages, forfeitures, debts or demands, as against creditors and purchasers prior and subsequent, shall be void.

Fraudulent intent is necessary to bring a conveyance within the purview of section 68-1302, Ralston Purina Co. v. Davis, 256 Ark. 972, 511 S.W.2d 482 (1974); Tipp v. United Bank of Durango, 23 Ark. App. 176, 745 S.W.2d 141 (1988), and the party who alleges and relies upon fraud bears the burden of proving fraud by a preponderance of the evidence. Killian v. Hayes, 251 Ark. 121, 470 S.W.2d 939 (1971); Ouachita Elec. Coop. Corp. v. Evans-St. Clair, 12 Ark. App. 171, 672 S.W.2d 660 (1984). Circumstances that are recognized as indicia of fraudulent intent to include insolvency or indebtedness of the transferor, inadequate or fictitious consideration, retention of property by the debtor, the pendency or threat of litigation, secrecy or concealment, and the employment of unusual business practices in the disputed transaction. Harris v. Shaw, 224 Ark. 150, 272 S.W.2d 53 (1954).

At the time appellants conveyed the property that is the subject matter of this suit, appellants owed the bank on three promissory notes totaling approximately $ 193,050. This debt was secured by two tracts of real estate, neither of which is at issue in this case.

Kenny Hancock, an officer at the bank, testified that the Clark loans were referred to his attention in November 1985, because Mr. Clark’s interest payments were past due. Mr. Hancock testified that he met with Mr. Clark in November of 1985 to discuss alternatives the bank would consider in resolving Mr. Clark’s delinquent payments. These alternatives included a voluntary conveyance of the mortgaged tracts of real estate which the bank would sell with the possibility of a deficiency. Another alternative involved the bank loaning interest if Mr. Clark would provide additional collateral.

Beginning in January of 1986, the bank sent letters to appellant Jack Clark and to appellants’ attorney repeating some of the alternatives the bank would consider in lieu of foreclosure, and informing Mr. Clark that the matter would soon be referred to legal counsel. Qn March 11,1986, appellants offered to convey the mortgaged property to the bank and consent to a deficiency equal to the accrued interest on the loans. At that time, the accrued interest totaled approximately $24,500. On March, 14, 1986, the bank sent a letter rejecting appellants’ proposal, and suggesting a larger deficiency or extension of time with additional collateral to be provided by appellants.

On April 14, 1986, appellants executed a trust agreement, and conveyed the property that is the subject matter of this suit to their son Gary Clark, trustee of the Jack M. Clark trust. This property was unencumbered. On May 16, 1986, the bank filed a foreclosure action which subsequently resulted in sales of the two tracts of property securing appellants’ bank loans. The bank also obtained deficiency judgments totaling $193,650.

At the conclusion of this action, the chancellor determined that appellants’ conveyance on April 14, 1986, was a fraudulent conveyance. He based his determination on the following findings of fact: 1) On the date of the conveyance, the Clarks were without sufficient liquid assets to make payments on the accrued and unpaid interest owed to the bank; 2) the consideration of “one dollar plus other good and valuable consideration” paid to Gary Clark, trustee of the Jack M. Clark trust, was nominal; 3) the trust agreement under which Gary Clark received title to the property allowed appellants to retain certain incidents of ownership over the property conveyed to the trust; and 4) the conveyance at issue was made after the bank made demands on the Clarks and advised them that their obligations were undercollateralized.

Appellants argue that the chancellor erred in finding fraudulent intent because they were not insolvent at the time of the April 14, 1986 conveyance. The trial court did not make a finding of insolvency, but found that appellants were without sufficient liquid assets to pay their debt at the time of the conveyance. In Lessman v. Dawson, 14 Ark. App. 285, 687 S.W.2d 860 (1985), the Arkansas Court of Appeals relied on United States v. Johnston, 245 F.Supp. 433 (W.D. Ark. 1965) in holding that the question of a debtor’s solvency for purposes of determining fraudulent intent, is not the ultimate question but is simply a matter for consideration in determining whether a conveyance was made with intent to delay, hinder, or defraud creditors. In United States v. Johnston, the court stated:

In a suit to set aside a conveyance as fraudulent, it is not indispensable for the plaintiff to prove that the transferor was insolvent at the time of the transfer or that he was made so by the transfer. If prejudice to creditors results, a transfer made with intent to hinder, delay or defraud them will be set aside even though the transferor was solvent at the time of the transfer and remained so thereafter ....

Id. at 440-41.

This court has held that conveyances by an embarrassed debtor to his near relatives are presumably fraudulent, and when the debtor’s condition proceeds, as here, to the point of insolvency, such conveyances are conclusively presumed fraudulent. Wilks v. Vaughan, 73 Ark. 174, 83 S.W. 913 (1904). In this case, the evidence shows that appellants conveyed the property at issue fourteen months before filing bankruptcy. At the time of the conveyance, appellants had become delinquent in their payments to the bank, and the bank had repeatedly threatened legal action. Appellants conveyed the property to their son Gary Clark, trustee of the Jack M. Clark trust for nominal consideration, and the trust agreement explicitly stated that the trustee was to pay Jack Clark from the proceeds of the trust whatever sums of money Jack Clark deemed “convenient.”

Although chancery cases are tried de novo on appeal, we will not reverse the chancellor’s findings of fact unless they are clearly erroneous. Hackworth v. First Nat’l Bank, 265 Ark. 668, 580 S.W.2d 465 (1979). From our de novo review, we cannot say that the findings of the trial court are clearly erroneous given the indicia of fraud implicated in the conveyance at issue. Accordingly, we affirm.


source: Caselaw Access Project

author: William R. Wilson, Jr., Special Justice. William H. Kennedy III, Special Justice,

license: Public Domain

text:
    Robert A. VOGEL and Luanne Vogel v. CRITTENDEN COUNTY, Arkansas
    90-220
    822 S.W.2d 382
    Supreme Court of Arkansas
    Opinion delivered February 3, 1992

      Hilburn, Calhoun, Harper, Prunisiki & Calhoun, Ltd., by: David M. Fuqua, for appellants.

      Hale, Fogleman, & Rogers, by: Joe M. Rogers, for appellee.
   William R. Wilson, Jr., Special Justice.

This is an appeal from a circuit court order which: (1) granted appellee’s motion to dismiss a condemnation proceeding after a consent judgment had been entered; (2) denied appellant’s motion to enforce the consent judgment; (3) denied appellants’ claim for damages; (4) denied appellants’ motion to reopen the record; and (5) awarded appellants an attorneys’ fee (the latter being the subject of a cross-appeal by appellee). We affirm on direct appeal and reverse on cross-appeal.

In July of 1986, appellee Crittenden County (County) filed an application with the Arkansas Industrial Development Commission (AIDC) for funds to expand and remodel the Crittenden County Health Facility. On December 14,1987, this facility was hit by a tornado and, thereafter, the County decided to purchase and renovate property owned by appellants, Robert and Luanne Vogel. A skating rink is located on this property. The County amended its AIDC application to seek funds for the purchase of this property, and it also decided to apply for funds from the Economic Development Agency (EDA) to renovate the property.

On May 11, 1988, the County offered to buy the Vogels’ property for $300,000.00, but this offer was rejected.

On May 25, 1988, the AIDC approved the County’s amended application.

The parties agreed that the County would pay $315,000.00 for the property, and also agreed that it would be acquired through a “friendly” condemnation action. On September 7, 1988, the County filed a complaint for condemnation; the Vogels answered, and on September 8, 1988, a judgment of condemnation was entered placing the fair market value of the property at $315,000.00.

Among other things, the judgment provided that:

. . .Upon the Plaintiff paying the Defendants the sum of $315,000.00, the fee simple title to the lands described herein above . . . (shall)... be and thereby is confirmed invested in the Plaintiff. . . .

In late November of 1988, the AIDC notified the County that, because an environmental assessment had not been completed before the entry of the condemnation judgment, the AIDC grant could not be used to purchase this particular facility. The environmental assessment was completed before the hearing in the trial court, which was conducted in July of 1989.

At the hearing, Mr. Robert Middleton, Director of Community Assistance for the AIDC, testified that, while it was placing “form over substance,” the AIDC grant could not be used for the purchase of the Vogels’ property even though a favorable environmental assessment had been received after the judgment of condemnation.

The Vogels argue that Mr. Middleton’s testimony, and other evidence, is open to the interpretation that the AIDC funds were still available for this project. Viewing the evidence as a whole, we disagree with this position; but, be that as it may, the applicable law discussed below renders this question moot.

In Selle v. City of Fayetteville, 207 Ark. 966, 184 S.W.2d 58 (1944), we held that a condemnor has an absolute right to discontinue a condemnation action until actual payment of the compensation. Other jurisdictions have held that such an action may not be discontinued after judgment, but in Selle we rejected the latter view.

Furthermore, in this case, the judgment of condemnation, approved by both parties, specifically provided that title would vest only upon payment of the $315,000,00.

The Vogels contend that this case can be distinguished from Selle because that case involved a jury trial, verdict, and judgment, whereas, in this case, there was a consent judgment. For this proposition, however, the Vogels cite no authority on point, and we find none. We, therefore, decline to make such a distinction.

As an alternative to their request for enforcement of the consent judgment, the Vogels asked for damages caused by the County’s failure to purchase their property. Since we hold that the County had the right to discontinue the proceedings, the Vogels are not entitled to damages as a result of the County’s exercising this right.

Next, after the order granting the County’s motion to dismiss was entered on August 11,1989, the Vogels filed a motion to reopen the trial record to allow the introduction of additional evidence and to set aside the order. Attached as an exhibit to this motion was a newspaper article indicating that the County had received an EDA grant to build a new health facility. Even assuming for the purposes of argument that a newspaper article could constitute a sufficient basis for setting aside a judgment or final order, we find that the trial court properly denied this motion. The evidence established that the purchase of the Vogels’ property was to be from funds provided by the AIDC grant (if approved). This grant was disapproved. The funds from the EDA were to be used for renovation, not purchase.

Finally, the County cross-appeals and asserts that the trial court erred in awarding attorneys’ fees to the Vogels. Under existing Arkansas law, a condemnee can recover damages in the form of attorneys’ fees only if the condemnor is found to have acted in bad faith. Housing Authority of the City of North Little Rock v. Amsler, 239 Ark. 593, 339 S.W.2d 268 (1965); Housing Authority of the City of North Little Rock v. Green, 241 Ark. 47, 406 S.W.2d 139 (1966).

The Vogels offered some evidence suggesting that the County dropped its effort to secure the AIDC grant because of public protest over the closing of the skating rink. The County’s evidence, on the other hand, reflected that the payment for the property was conditioned upon the procurement of the AIDC grant, and that the AIDC grant failed because of a snafu in the application process. The trial court credited the County’s evidence, and there is ample evidence in the record to support this finding.

Although the trial court specifically found that the County did not act in bad faith, it awarded the Vogels an attorneys’ fee of $1,719.95 (the trial judge stating that he was doing this “whether I had the authority to do it or not and . . . [I’ll] ... let the higher Court take care of it. . . .”). Since we uphold the trial court’s finding that the County did not act in bad faith, we reverse the award of attorney’s fees.

Affirmed on direct appeal and reversed and remanded on cross-appeal.

Special Justice William H. Kennedy, III, dissents.

Corbin and Brown, JJ., not participating.

William H. Kennedy III, Special Justice,

dissenting. I dissent in part from the majority’s decision. I dissent solely from the majority’s reversal of the trial court’s award of attorney fees and expenses to appellants.

In this case, following negotiations for purchase of the subject property, Crittenden County’s condemnation action was apparently filed at the request of the Vogels, who perceived a tax benefit therein. Entry of judgment followed almost immediately. The complaint was filed on August 31,1988, an answer was filed on September 7, 1988, and a judgment of condemnation was entered on September 9, 1988. Crittenden County subsequently abandoned its condemnation action for the reasons stated in the majority’s opinion.

Although the action was abbreviated, when compared to the normal progression of such actions when tried, the Vogels incurred significant attorney fees therein which they were awarded by the trial court.

As the majority correctly states, a condemnor in Arkansas has an absolute right to discontinue a condemnation action until actual payment of compensation, Selle v. City of Fayetteville, 207 Ark. 966, 184 S.W. 2d 58 (1944), and attorney fees and expenses may be awarded in condemnation actions where the condemnor abandons the action in bad faith. The Housing Authority of the City of North Little Rock, Ark. v. Amsler, Judge, 239 Ark. 592, 393 S.W.2d 268 (1965).

Applying the rule of Housing Authority v. Amsler, supra, to this case, I concur with the majority in finding that Crittenden County did not act in bad faith. The record is, however, replete with examples of the mishandling of this action by Crittenden County, arguable rising to the level of negligence. The Vogels were indisputably poorly served by Crittenden County, and have been left holding a bag of significant fees and expenses apparently incurred in good faith and in reliance upon Crittenden County’s assurances.

I believe proving bad faith where a condemnor abandons an action of eminent domain an impossible burden for a citizen to uphold. I would hold, instead, that in actions such as this one where (i) a condemnation action is filed by a governmental agency, a quasi-governmental agency, or a private entity with the power to condemn; (ii) the cause proceeds to judgment, either by trial or by consent; and (iii) the action is subsequently abandoned by the condemnor, the landowner is entitled to recover attorney fees and expenses, such as costs of experts and appraisers, directly incurred in defending the action.

By so holding, I do not depart from the general rule that attorney fee awards are not authorized in the absence of a statute so providing. As set forth above, that departure has previously been made by this court in The Housing Authority of the City of North Little Rock, Ark. v. Amsler, Judge, supra. I would change only the standards of that case applicable to such awards.

While the majority view of this country is that no attorney fees or expenses in condemnation actions abandoned by the condemnor may be awarded without a statute providing therefor, in the absence of bad faith or unreasonable delay, Annot., 92 A.L.R. 2d 355, 366 (1963), there are cases to the contrary. Id. See Long v. Commonwealth, 37 Pa. D & C 702, 56 Montg. Co. LR 112 (1940); Fairmont & V. R. Co. v. Bethke, 37 S.D. 446, 159 N.W. 56 (1916); Marist Soc. of Georgia v. Atlanta, 212 Ga. 115, 90 S.E.2d 564 (1955).

Indeed, although the court does not follow this precedent, this court has held that a trial court has an inherent right to require the condemnor to pay such expenses, regardless of statutory authority:

It is certainly reasonable to assume that a property owner would be under great pressure to sell his property to [a condemning agency] for less money if he knows that otherwise he may have to spend hundreds or thousands of dollars and get absolutely nothing in return. When the [condemning agency] (which is supported by taxes) forces a property owner into a state court (which is also supported by taxes) to ask a jury to fix the price it must pay the owner and then chooses to renege simply bepause the jury verdict is not to its liking, then, we submit, the trial court must have the inherent right to require the [condemning agency] to reimburse the owner (for all legitimate and reasonable expenses), otherwise the court is powerless to protect its own processes, the property owners, and the constitution.

The Housing Authority of the City of North Little Rock, Ark. v. Amsler, Judge, 239 Ark. 592, 595, 393 S.W.2d 268, 270 (1965).

Evidently the majority view rests on the legal theory that all property is subject to actions of eminent domain by the government, and that damages which a landowner suffers incident to exercise of such power are damnum absque injuria, as the condemnor is exercising its legal right. 92 A.L.R. 2d 355, 358, supra. This is a fine statement of abstract principle, but hard to swallow in light of the way our adversarial legal system works.

I consider the minority view far the better position. The sovereign’s exercise of eminent domain is awesome. It is second in impact, in my opinion, only to the sovereign’s power to kill or imprison. The effect of an eminent domain action upon a citizen is so drastic that protections against the harm caused thereby have been set forth in the United States and Arkansas constitutions, which provide, of course, that property may not be taken by the sovereign without just compensation and due process of law. U.S. Const, amend. V; Ark. Const, art. 2, § 22.

An action of condemnation is a voluntary action of the sovereign, never compelled. It is something the sovereign may choose to do or forbear from doing, as it pleases. The citizen is thus at the mercy of the sovereign; the citizen may not initiate nor halt such proceedings. And there is generally a severe disparity of resources between the sovereign and the citizen. Even though current and historical governmental fiscal difficulties are well known, when a condemning agency drags a citizen to court, the agency generally has the hammer.

A citizen owning property the subject of a condemnation action, if not offered fair value therefor, has only two choices: he may either abandon the fight and accept less than he feels his due, or hire attorneys and experts and pursue the issue in the appropriate forum. This is often an expensive and draining endeavor. To hold, as the majority does, that a citizen choosing the latter course must bear the considerable expense of attorney fees and costs if he takes the agency to task and judgment, if the agency ultimately abandons the action before the citizen’s rights to compensation have vested, is a most unfair, and, in my opinion, unnecessary result.

To hold instead that a condemning agency abandoning a condemnation action after judgment must pay the attorney fees and costs which it has forced a citizen, by condemning his property, to spend in defense will not only recompense the damages suffered by the citizen but will also serve to ensure that the sovereign does not commence and then abandon such actions lightly.

Under the majority’s holding, and the Selle case, a citizen is at the dubious mercy of the essentially unfettered discretion of the sovereign. There is nothing in the majority’s holding to protect landowners from the “futile and unnecessary trouble and expense of condemnation proceedings which are ultimately abandoned,” State v. Nelson, 125 N.W.2d 166, 168 (Minn. 1963), nor is there anything “to prevent condemning authorities from bringing successive proceedings with a view to discontinuing and relitigating those in which the awards appeared excessive.” Id.

I agree with Judge McFaddin’s dissent in The Housing Authority of the City of North Little Rock, Ark. v. Amsler, Judge, supra:

My personal feelings are on the side of the landowner in this case, as in most other eminent domain cases. A citizen buys property with his own money, pays taxes, and improves his property under the belief that his home is his castle. Then one fair day some public agency — be it the Highway Commission, the Housing Authority or what not — decides to take the citizen’s property because the Legislature has granted such public agency the power of eminent domain!
And what happens? The citizens (sic) is hailed into court; the public agency, with the power of eminent domain, makes the citizen either accept the small amount determined ex parte by the public agency to be the value, or else the citizen, at his own expense, must employ an attorney and fight the public agency to get what the citizen feels he is entitled to receive. Finally, the citizen gets a jury verdict in his favor for the value of the property taken by the public agency; but the citizen does not recover from the public agency the amount the citizen has paid for attorney’s fees; so the citizen is never made whole! 239 Ark. at 597, 393 S.W.2d at 271.

In this case, the lower court was offended at the result imposed by the majority rule regarding attorney fees and costs, and awarded attorney fees to the landowner despite being unsure of its authority so to do. In so doing, the court addressed the majority’s position, and said: “I just don’t think it is right.”

Neither do I. I would affirm the trial court’s award of attorney fees.


author: Per Curiam.

text:
    Robert FELLOWS v. STATE of Arkansas
    CR 91-156
    823 S.W.2d 893
    Supreme Court of Arkansas
    Opinion delivered February 3, 1992

      Appellant, pro se.
    No response.
   Per Curiam.

This court issued a show cause order directing appellant’s counsel, John Hollis, to appear and show cause why he should not be held in contempt for failure to file a timely brief in this case. In July 1991, we granted a motion for rule on the clerk, noting that Mr. Hollis had admitted the record was tendered late in this case due to his neglect. Fellows v. State, 306 Ark. 257, 810 S.W.2d 338 (1991). Appellant’s brief was scheduled to be filed on August 10, 1991, but was not received. Mr. Hollis acknowledges having separate notices from the office of the Criminal Justice Coordinator and the Clerk of this Court during November and December prompting him to file a brief, but he again failed to do so. No brief had been filed at the time this court issued its shown cause order on January 13, 1992.

Mr. Hollis appeared before this court on Monday, January 27, 1992, and admitted to the foregoing facts. In addition to extending his apologies, he offered in mitigation his inexperience in these matters. He believed it was unethical to file a brief and statement of points to which he could not subscribe, and he was unaware that he could or should file a no-merit brief under such circumstances. As a consequence, Mr. Hollis says he allowed his lack of conviction in the merits of this appeal to supercede his duty to file a brief.

From the foregoing, we hold that Mr. Hollis is in contempt for failing to comply with this court’s directives and fine him $200.00. See Smith v. State, 295 Ark. 700, 750 S.W.2d 61 (1988). His brief is accepted and filed and his motion to withdraw is granted effective this date. On January 3,1992, appellant filed a motion reflecting his inability to communicate with Mr. Hollis, his request to have Mr. Hollis dismissed as counsel and to have another appointed for appeal purposes. We also grant appellant’s motion for new counsel and in doing so appoint Anne Orsi.


text:
    FIRST PYRAMID LIFE INS. CO. of America v. J.Michael STOLTZ, as Special Administrator of the Estate of J.P. Stoltz, Deceased
    92-4
    822 S.W.2d 389
    Supreme Court of Arkansas
    Opinion delivered February 34, 1992

      Peter G. Kumpe, for appellant.

      Charles P. Boyd, Jr., for appellee.
   Per Curiam.

The appellee, J. Michael Stoltz, moves this court to dismiss the appeal filed by appellant, First Pyramid Life Insurance Company (First Pyramid), on the grounds that First Pyramid did not timely file a notice of appeal in accordance with Ark. R. App. P. 4(c). The motion was denied.

The pertinent facts are as follows:

1. On August 10,1991, a Pulaski County jury returned a verdict in favor of Stoltz.
2. On August 27,1991, First Pyramid filed various post-trial motions, specifically, a motion to stay entry of judgment, a motion for judgment notwithstanding the verdict, and a motion for a new trial.
3. On September 6, 1991, the trial court conducted a hearing in which it considered arguments pertaining to post-trial issues, including the above motions.
4. On September 9, 1991, the trial court entered a final judgment.
5. On September 10,1991, First Pyramid filed a notice of appeal from the judgment.

Rule 4(c) provides that when post-trial motions are filed, the time for appeal runs from the entry of the order granting or denying the motion provided, “that if the trial court neither grants nor denies the motion within thirty (30) days of its filing, the motion will be deemed denied as of the 30th day.” A notice of appeal filed before the expiration of the thirty-day period, when no action is taken by the trial court, is ineffective, and a new notice of appeal must be filed, measured from the expiration of the thirty-day period.

Stoltz contends that since the trial court never entered a formal order disposing of First Pyramid’s post-trial motions, the motions were not deemed denied until September 26,1991, thirty days from their filing, and thus First Pyramid’s notice of appeal, filed on September 10, 1991, was invalid. We disagree.

From a reading of the transcript of the hearing conducted on September 6,1991, for the purpose of considering the motion, it is clear that the trial court considered and rejected the arguments made in First Pyramid’s post-trial motions. The trial court should have entered a formal order in this regard; however, such was not the case. It is obvious to this court, and should have been obvious to all of the parties, that the trial court’s ruling was with regard to First Pyramid’s motions and that the trial court’s final judgment of September 9, 1991, was made in accordance with the court’s decision of September 6, 1991. Contrary to the cases cited by Stoltz, and to previous decisions in which we addressed this procedural issue, the final judgment, here, was entered after the filing of and hearing on the post-trial motions, rather than before, and incorporated, at least by implication, the ruling of the trial court as to First Pyramid’s post-trial motions. As a result, the filing of the notice of appeal on September 10, was appropriate. To hold First Pyramid to strict compliance with the thirty-day waiting period, in this instance, would go beyond what was contemplated by Rule 4(c).

The motion to dismiss the appeal is denied.


text:
    Freddie FREEMAN v. ARKANSAS STATE BOARD OF PAROLE AND COMMUNITY REHABILITATION
    91-350
    821 S.W.2d 480
    Supreme Court of Arkansas
    Opinion delivered February 3, 1992

      Appellant, pro se.
    No response.
   Per Curiam.

Appellant has filed a motion to permit the filing of a handwritten brief alleging that he is without access to a typewriter. We have held that such motions will be entertained upon a showing that there is substantial merit to the suit. Patterson v. State, 289 Ark. 564, 712 S.W.2d 922 (1986).

Appellant was sentenced in 1982 to forty years in the Arkansas Department of Correction for aggravated robbery, the sentence to run consecutively with a twenty-one year sentence, for a total of sixty-one years. Since 1986 appellant has been denied parole on several occasions and filed a declaratory judgment action. That action was dismissed upon motion of the respondent, Arkansas State Board of Parole and community Rehabilitation and appellant has brought this appeal.

Appellant has made no showing of substantial merit to his action for declaratory judgment. No constitutional issues are raised, he merely alleges that the Parole Board wrongfully denied parole. Because there is no showing of substantial merit we deny the motion.


author: PerCuriam.

text:
    Carlos GOMEZ v. Willis SARGENT, Warden, Cummins Unit, Arkansas Department of Correction
    91-341
    821 S.W.2d 480
    Supreme Court of Arkansas
    Opinion delivered February 3, 1992

      Appellant, pro se.

      Winston Bryant, Att’y Gen., by: Brad Newman, Asst. Att’y Gen., for appellee.
   PerCuriam.

Appellant Carlos Gomez has filed a pro se motion to file a handwritten brief alleging that he has no access to a typewriter. We have held that handwritten briefs, if legible, will be accepted provided the appellant makes a showing that there is substantial merit to his suit. Patterson v. State, 289 Ark. 564, 712 S.W.2d 922 (1986). No such showing has been made.

Appellant has appealed from the denial of a petition for habeas corpus in which he alleges that the information is void because it was signed by a deputy prosecuting attorney rather than the prosecuting attorney. He next alleges he was tried on an information rather than an indictment depriving the trial court of jurisdiction. Finally, he alleges that amendment 21 to the Arkansas Constitution is void.

These allegations are palpably without merit for the reason that relief by habeas corpus is proper only when it is shown that a commitment is invalid on its face or the trial court lacked jurisdiction. Wallace v. Willock, 301 Ark. 69, 781 S.W.2d 484 (1989). No showing of substantial merit having been made, the motion is denied.


text:
    Jorge B. GONZALES v. Marvin EVANS, Warden, Maximum Security Unit, State of Arkansas
    91-264
    822 S.W.2d 390
    Supreme Court of Arkansas
    Opinion delivered February 3, 1992

      Appellant, pro se.

      Winston Bryant, Att’y Gen., by: Gil Dudley, Asst. Att’y Gen., for appellee.
   Per Curiam.

Appellant has filed a motion to permit him to file handwritten briefs, alleging that he is without access to a typewriter. We have held that permission to file handwritten briefs will be granted when a litigant makes a showing that a typewriter is not available and that his suit has substantial merit. Patterson v. State, 289 Ark. 564, 712 S.W.2d 922 (1986). Appellant is incarcerated under concurrent sentences for aggravated robbery and criminal use of a prohibited weapon. The judgment of conviction was affirmed in Gonzales v. State, 301 Ark. 98, 782 S.W.2d 359 (1990).

Appellant is now appealing from the denial of a petition for habeas corpus, raising issues concerning his arrest, the trial court’s refusal to suppress evidence, the procedures by which he was identified prior to arrest and ineffective assistance of counsel. None of these alleged flaws are cognizable by habeas corpus. George v. State, 285 Ark. 84, 685 S.W.2d 141 (1985). Accordingly, appellant has failed to make a substantial showing of merit and his motion is denied.


text:
    Thomas GRISWOLD v. A.L. LOCKHART, Director, Arkansas Department of Correction
    91-342
    822 S.W.2d 388
    Supreme Court of Arkansas
    Opinion delivered February 3, 1992

      Appellant, pro se.

      Winston Bryant, Att’y Gen., by: Brad Newman, Asst. Att’y Gen., for appellee.
   Per Curiam.

Appellant seeks permission to file a handwritten brief which we will entertain upon a substantial showing of merit. Patterson v. State, 289 Ark. 564, 712 S.W.2d 922 (1986). This is an appeal from a denial of a petition for habeas corpus based on allegations that appellant was charged by information rather than indictment and that he was never afforded a “first appearance” before being bound over to circuit court. However, these are not matters cognizable by habeas corpus and, accordingly, appellant has failed to make a substantial showing of merit. Motion denied.


author:
Jack Holt, Jr., Chief Justice.
      Robert L. Brown, Justice,

text:
    Rodney Earl TOWNSEND and Tonda Ray Baker v. STATE of Arkansas
    CR 91-275
    824 S.W.2d 821
    Supreme Court of Arkansas
    Opinion delivered February 10, 1992

      William R. Simpson, Jr., Public Defender, by: Llewellyn J. Marczuk, for appellants.

      Winston Bryant, Att’y Gen., by: Teena L. White, Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

The appellants, Rodney Earl Townsend and Tonda Ray Baker, were convicted of breaking or entering, for which they were sentenced to six years imprisonment, and theft of property, for which they were sentenced to fifteen years imprisonment. The sentences are to run consecutively. The case was certified to this court from the court of appeals, as it involves interpretation of our statute on breaking or entering.

Townsend and Baker raise four points of error on appeal: 1) the evidence was insufficient to support a conviction for either appellant; 2) the trial court erred in requiring Townsend to wear leg irons in the presence of the jury; 3) the trial court erred in denying appellants’ proffered AMCI definition of “occupiable structure;” and 4) the trial court erred in denying appellants’ motion for a mistrial. We find merit in appellants’ second argument and reverse and remand for new trial.

We must first determine the appellants’ sufficiency argument, even though we reverse on other grounds. See Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984). We will also consider appellants’ contentions concerning their proffered jury instruction, as the issue may arise on retrial.

SUFFICIENCY OF THE EVIDENCE

Townsend and Baker made timely motions for directed verdict, both at the close of the State’s case and at the end of their own case-in-chief. They argue the evidence was insufficient to support the convictions and that our breaking or entering statute does not specifically cover the breaking or entering of a fence, as defined under that statute’s use of the word, “structure.” We disagree with both contentions.

Ark. Code Ann. § 5-39-202(a) (1987) states:

A person commits the offense of breaking or entering if for the purpose of committing a theft or felony he enters or breaks into any building, structure, vehicle, vault, safe, cash register, money vending machine, product dispenser, money depository, safety deposit box, coin telephone, coin box, or other similar container, apparatus, or equipment.

(Emphasis added.) Our criminal code does not define the term “structure,” it only provides the specifics of the term “occupiable ■structure,” which is included in the greater offense of burglary. See Ark. Code Ann. § 5-39-201 (1987). Black’s Law Dictionary (5th Ed. 1979) defines “structure” as “any construction, or any production or piece of work artificially built up or composed of parts joined together in some definite manner.” That same authority defines “fence” as “a hedge, structure, or partition, erected for the purpose of inclosing a piece of land. . . .” (Emphasis added.) In light of these definitions and our statutory definition of breaking or entering, which broadly includes anything from buildings to coin boxes, we have no hesitancy in holding that a fence comes within the meaning of the word “structure”, as that term is used in the statute.

As to the evidence, itself, we find ample support in the record to uphold both convictions.

The test for determining the sufficiency of the evidence is whether there is substantial evidence to support the verdict. Substantial evidence must be forceful enough to compel a conclusion one way or another beyond suspicion and conjecture. On review, it is only necessary to ascertain that evidence which is most favorable to the appellee and, if there is substantial evidence to support the verdict, the finding must be affirmed. Gillie v. State, 305 Ark. 296, 808 S.W.2d 320 (1991).

Around midnight, on August 18, 1990, Mr. Howard Dale was awakened by the barking of his German Shepherds and went to his front porch where he observed a white Chevrolet pickup truck stop in front of his house on Colonel Glenn Road. Mr. Dale saw two black males emerge from the truck; one of them tall and wearing a red shirt, and the other short, wearing a brown or green shirt. The truck then left. The two men crossed the street and walked south along a fence surrounding Aimco Wholesale. Mr. Dale observed the fence shaking and, in a few minutes, saw the men enter the fence and go onto the Aimco property. He then observed the men pulling a trailer loaded with two all-terrain vehicles through a hole in the fence. After they pulled the trailer through the fence, the men walked along the outside of the fence and crossed the street. Mr. Dale was in his backyard at this time, observing the parties through bushes. Mr. Dale testified that while the parties were standing there, a deputy’s car came by and the men crept into the ditch until the deputy passed. A minute or two later, the white truck came back and picked them up. Mr. Dale dialed 911 and reported a break-in when the men first entered the fence.

Pulaski County Deputy Sheriff Mike Kesterson testified he drove by Aimco Wholesale at approximately 12:40 a.m. He saw a black male wearing a red shirt and shorts standing on the side of the road, dusting his hands. He came within three feet of the man, as he passed by. Continuing on, Deputy Kesterson saw a white truck parked in a farmer’s supply store lot (which is in the area near Aimco) with the engine running. The driver of the truck, a black male, saw the police car, turned his headlights on, and fell in behind Deputy Kesterson at the stop sign. The officer turned west and the truck turned and continued east. Deputy Kesterson was running low on fuel so he radioed the police department to convey his “suspicions,” but was told that another unit was “headed that way.”

After refueling his car, Deputy Kesterson returned to Aimco Wholesale, whereupon police officers were holding three men in their squad cars. Deputy Kesterson identified Baker as the man he saw standing by the ditch and another man, Michael Raglin, as the driver of the truck.

Officer Robert Lusk testified that he responded to a call about 12:55 a.m., regarding a burglary in progress at Aimco Wholesale. Based on the information he received, Officer Lusk followed a white pickup truck travelling east on Colonel Glenn Road and, a few blocks later, pulled the truck over. The driver got out of the truck and identified himself as Michael Raglin. The two passengers identified themselves as appellants, Townsend and Baker. Baker was wearing a red shirt and shorts and Townsend was wearing a brown t-shirt.

The owner of Aimco Wholesale, Mr. Don Thompson, testified the property is completely enclosed by a fence and that when he left on the evening of August 17, the gates were closed and locked.

At trial, Baker and Michael Raglin denied the charges and testified Raglin and Townsend were driving Baker to some apartments in the area, when they were pulled over by the police.

The credibility of witnesses lies within the province of the jury. Prater v. State, 307 Ark. 180, 820 S.W.2d 429 (1991). Furthermore, circumstantial evidence may be sufficient to sustain a conviction provided where circumstantial evidence alone is relied upon, it indicates the accused’s guilt and excludes every other reasonable hypothesis. Black v. State, 306 Ark. 394, 814 S.W.2d 905 (1991).

We find the evidence here, though largely circumstantial, was sufficient to sustain the convictions.

RESTRAINTS

The appellants next argue the trial court erred in requiring Townsend to wear leg restraints in the presence of the jury. We agree, and reverse on this basis.

Prior to trial, the bailiff of the court sated he had heard, secondhand, from one of the deputies, that Townsend stated he would flee if given the opportunity. The bailiff wished to place Townsend in leg irons. Townsend’s attorney objected, stating Townsend was currently in the penitentiary on a parole violation stemming from a prior burglary conviction, a non-violent offense, and that Townsend had shown no dangerous propensities. Earlier, Townsend had been allowed to walk down the hallway, unrestrained, without incident.

The trial court overruled the objection, stating it was not willing to take the risk, and that “we always live in danger of some inmate getting a female hostage. We’d just be stymied because we couldn’t do anything.” The trial court stated another option would be to place six or seven police officers around the courtroom, which would be even more obtrusive. The trial court further denied Townsend’s attorney’s request that the courtroom be cleared before Townsend was brought in wearing the restraints or, in the alternative, that Townsend not be restrained until the jury left on break, following voir dire. The trial court conceded that it had made such an allowance in the past, but refused to do so here. The trial court did offer to instruct the jury to disregard the restraints for purposes of determining guilt or innocence.

Townsend was escorted into the courtroom, through the front door and wearing the leg irons, after the jury was seated. A second request, that Townsend be allowed to walk back into the courtroom, unrestrained, prior to jury instructions and closing arguments, was also denied.

It is not prejudicial, per se, when the defendant is brought into a courtroom handcuffed (or, in this case, legcuffed), Hill v. State, 285 Ark. 77, 685 S.W.2d 495 (1985), and a trial court may take such reasonable steps as are necessary to maintain order. See Ark. R. Crim. P. 33.1. However, almost without exception, our prior decisions, in which we have upheld the use of restraints, have involved defendants charged with violent offenses or who have engaged in disruptive behavior, or attempted escape. See e.g. Hill v. State, supra (rape, aggravated robbery, and kidnapping); Gillie v. State, 305 Ark. 296, 808 S.W.2d 320 (1991) (capital felony murder); Terry v. State, 303 Ark. 270, 796 S.W.2d 332 (1990) (aggravated robbery); Johnson v. State, 261 Ark. 183, 546 S.W.2d 719 (1977) (escape). Furthermore, in a number of these cases, we noted that there was no evidence of anything but a brief, inadvertent sighting by only some of the jurors. See Gillie v. State, supra; Williams v. State, 304 Ark. 218, 800 S.W.2d 713 (1990); Hill v. State, supra; Barksdale v. State, 255 Ark. 272, 499 S.W.2d 851 (1973). Here, we can safely assume that Townsend’s comings and goings in leg irons, through the front door of the courtroom and in full presence of the jury, did not go unnoticed.

Although there is sufficient circumstantial evidence to convict both Townsend and Baker, we should view the effect, if any, that the placing of Townsend in leg restraints, and parading him in front of the jury, might have had upon the jury’s assessment of punishment for the two parties.

Under our criminal justice system, we call upon the jury to make findings of guilt and to assess punishment in the same proceeding, Ark. Code Ann. § 5-4-103 (1987), unless there is an exception which is cause for bifurcation. See e.g. Ark. Code Ann. § 5-4-602 (1987). In this instance, each appellant received the maximum sentence of six years for breaking or entering, and fifteen years, out of a range of five to twenty years, for theft of property. Although Townsend had a prior burglary conviction, this information was not disclosed and both appellants were regarded by the jury as first offenders. Obviously, the placing of Townsend in restraints, throughout the trial and for no compelling reason, within full view of the jury, had a telling effect on the jury in assessing punishment.

Our reasoning follows that in Moore v. State, 299 Ark. 532, 773 S.W.2d 834 (1989), where policemen who testified against the defendant were seated within the railing normally reserved for parties in closing arguments. We held that the resulting prejudice was clear in that the jury gave the maximum sentences for kidnapping and theft to a first offender. Similarly, the resulting prejudice, here, warrants a new trial for both appellants.

JURY INSTRUCTION

Lastly, since it may arise on retrial, we address appellants’ argument that the trial court erred in denying their proffered AMCI definition of “occupiable structure.” The assertion is meritless.

At trial, the appellants requested, and received, the giving of AMCI 2004, which defines the lesser included offense of criminal trespass. The instruction, which tracks the language of Ark. Code Ann. § 5-39-203(a) (1987), states that the jury must find the defendants “purposely entered or remained unlawfully upon the premises of another person.” The instruction defines “premises” as “occupiable structures and any real property.” The trial court gave the entire instruction, including the definitions of “premises” and “enter or remain unlawfully.”

The appellants object, however, that the jury should have been instructed on the definition of “occupiable structure.” The proffered definition read, in pertinent part: “a vehicle, building or other structure where any person lives or carries on a business or other calling where people assemble. . . .”

The trial court, the prosecutor, and the defense attorney all agreed that the definition was not applicable in this case; however, the appellants theorized that, if provided the definition, the jury would recognize its inapplication to the entering of a fence, and conclude that the only other applicable definition was “real property,” thereby placing the offense within criminal trespass. (The appellants apparently hoped the jury would also apply the definition of “occupiable structure” to the undefined term, “structure” in breaking or entering.)

The cases cited by the appellants are irrelevant since they involve instances in which the trial court refused to give the lesser offense instruction. Here, the trial court instructed the jury on the lesser included offense of criminal trespass, but refused to give the clearly inapplicable definition of “occupiable structure.” There is no error in refusing an instruction which may have misled or confused the jury. Mosier v. State, 285 Ark. 67, 684 S.W.2d 810 (1985). In sum, the trial court was correct in rejecting the proffered definition.

For the reasons enunciated in point II, the case is reversed and remanded for a new trial.

Corbin and Brown, JJ., dissent.

Robert L. Brown, Justice,

dissenting. I would affirm the convictions.

We tread on shaky ground when we second-guess a trial judge’s decision on security matters. We have, said as recently as 1990 that the use of restraints on a defendant was appropriate when dangerous conditions existed. See Clemmons v. State, 303 Ark. 265, 795 S.W.2d 927 (1990); Terry v. State, 303 Ark. 271, 796 S.W.2d 332 (1990). In both Clemmons and Terry, we weighed the prejudicial effect to the defendant occasioned by the use of restraints against the state’s interest in safety, security, and order. In Clemmons, the defendant was placed in leg irons with a deputy sheriff seated directly behind him. This was due to the defendant’s criminal record and the fact that he had injured his mother shortly’before the trial. He had also threatened the judge and was found to have a hidden metal plate in his shoe. We held that the protective measures were warranted.

In Terry, the defendant was disruptive and ignored the judge’s warning that he return to his seat. There was a scuffle in front of the jury, and the defendant was removed from the courtroom in handcuffs. He subsequently returned for trial and was convicted. Again, we upheld the use of the handcuffs under these circumstances.

The United States Supreme Court has recognized using restraints for unruly defendants where it is essential to maintain dignity, order, and decorum in the courtroom. See Illinois v. Allen, 397 U.S. 337 (1970). Our court has further held that it is not prejudicial per se for a defendant to be brought into the courtroom in handcuffs. See Hill v. State, 85 Ark. 77, 685 S.W.2d 495 (1985); Johnson v. State, 261 Ark. 183, 546 S.W.2d 719 (1977). In Johnson, for example, the handcuffs were used because the defendant was charged with escape from the penitentiary, and we affirmed their use. That is precisely the issue in the case before us.

Subsequent to Illinois v. Allen, supra, this court adopted Rule 33.1 of the Arkansas Rules of Criminal Procedure:

Defendants and witnesses shall not be subjected to physical restraint while in court unless the trial judge has found such restraint reasonably necessary to maintain order. If the trial judge orders such restraint, he shall enter into the record of the case the reasons therefor. Whenever physical restraint of a defendant or witness occurs in the presence of jurors trying the case, the judge shall upon request of the defendant or his attorney instruct the jury that such restraint is not to be considered in assessing the proof and determining the guilt.

The rule clearly leaves the issue of restraints to the discretion of the trial judge who is authorized to restrain as is reasonably necessary to maintain order in the courtroom.

In this case, Townsend was an inmate in the state penitentiary owing to a parole violation for a burglary conviction. Information was passed to the court’s bailiff that the defendant would escape. This concerned the trial judge, as it should have, and he opted to place Townsend, who was dressed in civilian clothes, in leg irons. He further offered to instruct the jury that this should have no bearing on its assessment of proof or its determination of guilt, as the rule provides. Defense counsel rejected this.

The case is a close one, and as trial judge I might well have placed Townsend in leg irons after he was seated at the table and with the jury out of view. But in close cases regarding security matters in the courtroom, the trial judge is in a better position to evaluate the potential for danger and disruption than this court on appeal. Here, the danger of escape by a man already incarcerated in the state penitentiary existed with the collateral risk of hostage-taking. Plus, the trial judge was informed that he intended to escape. The judge had no other choice than to take some precautions. I do not believe that he overstepped his bounds.

Corbin, J., joins.


author: Robert H. Dudley, Justice.

text:
    Leonard HUNTER v. Burgess WILLIAMS
    91-277
    823 S.W.2d 894
    Supreme Court of Arkansas
    Opinion delivered February 10, 1992

      Robert P. Remet, for appellant.

      Odell C. Carter, for appellee.
   Robert H. Dudley, Justice.

The plaintiffs brief, written in a lighter vein, states that the defendant owned a wandering bovine, which roamed the roads as well as the fields, and, upon being struck by plaintiffs car, caused damage as it somersaulted over the top of the car. The plaintiff sued the defendant. The municipal court dismissed his complaint. He appealed. The circuit court dismissed his complaint. He again appeals. Unfortunately, we must affirm under Rule 9(d).

Plaintiffs only argument on appeal is: “Plaintiff was not negligent; defendant was negligent.” In his statement of the case he tells us that the circuit court found both the plaintiff and the defendant negligent. However, he does not tell us the reason the circuit judge found him, the owner but not the driver of the car, negligent. More important, he does not supply us with copies of, or an abstract of, the trial court’s order. Without that document we cannot decide the case, and we must affirm under Rule 9(d) of the Rules of the Supreme Court and Court of Appeals. See Meyers Gen. Agency v. Lavender, 301 Ark. 503, 785 S.W.2d 28 (1990). In the recent case of Zini v. Perciful, 289 Ark. 343, 344, 711 S.W.2d 477, 478 (1986), we set out the reason for Rule 9:

It is impossible for us to consider the appellants’ contentions, because counsel have not provided us either with an exact quotation of the instrument in question or with an abstract of it. We have no idea how it reads. We are referred by the appellants to Exhibit 2 in the transcript, but for a hundred years we have pointed out, repeatedly, that there being only one transcript it is impractical for all members of the court to examine it, and we will not do so. An early case, among scores of such cases, is Shorter University v. Franklin, 75 Ark. 571, 88 S.W. 974. There we noted, in 1905, that the rule (now Rule 9) had been promulgated twenty years earlier. Accordingly, we affirm pursuant to Rule 9(d).


author: David Newbern, Justice. Donald L. Corbin, Justice,

text:
    Waymond STEWART v. Linda WINFREY
    91-126
    824 S.W.2d 373
    Supreme Court of Arkansas
    Opinion delivered February 10, 1992

      McCullough Law Firm, by: R.S. McCullough, for appellant.

      Charles Dirden, for appellee.
   David Newbern, Justice.

This is a paternity and child support case in which the appellant, Waymond Stewart, was found to be the natural father of Rokeshia Lafaye Winfrey and was required to pay $70 weekly child support. He argues: (1) there was insufficient evidence that he was the natural father of the child; (2) the separation of powers doctrine was violated in the adoption of the child support chart; (3) the child support chart discriminates against legitimate non-divorce children in contravention of the equal protection clause.

A blood test showing a 99.27 % probability that Stewart was the father, coupled with the mother’s testimony that she and Stewart were living together during the probable period of conception, constitutes sufficient evidence of paternity. Stewart failed to present adequately the separation of powers issue to the Trial Court, and we will not consider it on appeal. Given the discretion chancellors may exercise in its application, the child support chart does not discriminate against legitimate non-divorce children. The judgment is affirmed.

Waymond Stewart and Linda Winfrey began seeing each other socially in late 1977 or early 1978, and they lived together from June until September of 1978. Both parties testified to having a sexual relationship when they lived together. Winfrey moved out of the apartment she shared with Stewart in September of 1978, and at that time she realized she was pregnant. Winfrey stated that Stewart was the only man she was sexually involved with for a month and a half before and after she became pregnant. The child, Rokeshia Lafaye Mosley, was born on May 22,1979, approximately nine months from the time Stewart and Winfrey lived together.

Winfrey testified that when she realized she was pregnant, she told Stewart he was the child’s father. In November of 1978, she began dating Herbert Winfrey, and they married two months after Rokeshia was born. In September, 1989, Herbert Winfrey’s name was placed on the child’s birth certificate as that of the natural father. Apparently, Rokeshia’s name was changed from Mosley to Winfrey around the same time. Winfrey testified her husband’s name was placed on the birth certificate because she believed it was necessary to keep her marriage together. Her husband wanted everyone in the house to be a Winfrey. Herbert and Linda Winfrey lived together for eleven months and later divorced.

Stewart testified that at first Linda Winfrey told him he was Rokeshia’s father. He stated she later told him he was not the father, and she refused to let him see the child at the hospital shortly after the birth. Joyce Perry, Stewart’s niece, testified that Linda Winfrey also told her that Stewart was not the father. Winfrey admitted telling several people that Stewart was not Rokeshia’s father. She stated she did so because Stewart refused to support the child.

Stewart works for Yellow Freight Systems, Inc., and earns $473.19 weekly net pay. At the time of suit, Stewart was married and had two other children. Linda Winfrey works for Arkansas Power and Light and earns $18,500 yearly gross salary. She receives no financial support from her ex-husband.

In March of 1990, Winfrey filed this paternity suit in Pulaski County Chancery Court claiming Stewart was the natural father of her child and that he should be required to pay child support. Stewart denied the allegations. Prior to trial, the parties agreed that a blood test would be administered and would be admissible as evidence of paternity. The agreement stated “if the probability of paternity, as reflected by the blood test, is 95 % or higher, the Trial Court will rule that paternity is established and support will be set.” The blood test, which was admitted as evidence, showed a 99.27 % probability that Stewart was the father.

After the evidence was presented, Stewart argued the blood test could only be used as evidence of paternity and should not be dispositive of the case. He argued other evidence indicated he might not be the father. For example, Winfrey told others Stewart was not the father, and another man’s name was placed on the birth certificate. The Chancellor held Winfrey was entitled to a presumption that Stewart was the father based on the blood test results, and Stewart failed to introduce sufficient evidence to rebut the presumption.

On the child support issue, Stewart argued the Chancellor should consider his other children in setting the amount of child support for Rokeshia. The child support chart specifically takes into account payments made under court order to support other children and allows these payments to be deducted from weekly take home pay. In re: Guidelines for Child Support Enforcement, 301 Ark. 627, 784 S.W.2d 589 (1990). The chart does not refer to support of children not under court order.

Stewart’s counsel first objected to applying the support chart at all because of an unconstitutional violation of separation of powers, giving neither reason nor citation of authority. He next stated the chart violated the equal protection clause because a child benefitted by being illegitimate, as opposed to being the child of a marriage. The Chancellor did not rule on these issues but stated “the child support chart does not make a provision for a reduction based on other children.” The Chancellor awarded $70 weekly child support to Winfrey.

1. Sufficiency of the evidence

In a paternity proceeding brought against a living putative father, the mother’s burden of proof is a mere preponderance of the evidence, as the proceeding is civil in nature. McFaden v. Griffith, 278 Ark. 460, 647 S.W.2d 432 (1983); Ross v. Moore, 25 Ark. App. 325, 758 S.W.2d 423 (1988). Furthermore, Ark. Code Ann. § 9-10-108(a)(4) (Supp. 1991) provides:

If the results of the paternity tests establish a ninety-five percent (95%) or more probability of inclusion that the defendant is the natural father of the child and 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 defendant to rebut such proof.

The blood tests showed a 99.27% probability that Stewart was the father, and he was living with Winfrey during the probable period of conception. Winfrey also stated she was not involved with anyone else at this time. This evidence gave her a statutory presumption of paternity. Winfrey explained that she told people Stewart was not the father because he refused to support the child, and she put Herbert Winfrey’s name on the birth certificate because she wanted to stabilize her marriage. The Chancellor found insufficient evidence to rebut the presumption of paternity, and we cannot say this decision was clearly erroneous. Ark. R. Civ. P. 52(a) (1991).

2. Separation of powers

Stewart argues that Act 948 of 1989, which established the child support guidelines, violates the separation of powers doctrine in Article 4, Section 2, of the Arkansas Constitution. Stewart’s counsel cited no authority for this proposition in the Trial Court. Counsel did not address how the General Assembly might have improperly delegated legislative power to the judiciary and gave no arguments supporting his contention. He thus discusses this issue for the first time on appeal. There is nothing in the record to indicate the Chancellor ruled on the issue.

Failure to state the specific grounds of a motion or objection below waives that argument on appeal. A.R.E. 103(a)(1) (1991); Mine Creek Contractors, Inc. v. Grandstaff, 300 Ark. 516, 780 S.W.2d 543 (1989); Bonds v. State, 296 Ark. 1, 751 S.W.2d 339 (1988). Although the separation of powers issue was raised as a “standing objection,” it was essentially a constitutional defense to paying a certain amount of child support. For this reason, the cases involving specific objections to evidence are not entirely on point.

We have held, however, that a trial court must be presented with a constitutional issue before we will consider it on appeal. May v. Barg, 276 Ark. 199, 633 S.W.2d 376 (1982); Wilson v. Wilson, 270 Ark. 485, 606 S.W.2d 56 (1980). A constitutional issue will not be addressed if it was not brought to the Trial Court’s attention for a ruling during trial or at some point prior to the entry of final judgement. Seyller v. Pierce & Co., 306 Ark. 474, 816 S.W.2d 577 (1991). Stewart did not sufficiently present the issue to the Trial Court for resolution, and we will not consider his argument on appeal. The fleeting reference to separation of powers without any citation of authority, argument, or even any reference to the basis for the reference was insufficient to present the issue to the Chancellor for ruling.

3. Equal protection

There is a rebuttable presumption that the amount specified in the child support chart is the appropriate amount of child support. This presumption is rebutted if a written finding is made that the chart amount is unjust or inappropriate, as determined under criteria established in the chart. Ark. Code Ann. § 9-12-312(a)(2) (Supp. 1991). In In re: Child Support Enforcement Guidelines, supra, this Court set out the factors for determining whether an amount specified by the chart is unjust or inappropriate. These factors do not include payments made to support other children, although the list is not exclusive.

The chart also defines weekly take home pay as “income” as defined in the federal income tax laws, less proper deductions for:

1. Federal and state income tax;
2. Social security (FICA) or railroad retirement equivalent;
3. Medical insurance; and
4. Presently paid support for other dependents by Court order.

The failure to allow credit for support of children, usually non-divorce children, when such support is required and given, but not pursuant to a court order, is the basis of Stewart’s equal protection claim.

We have recently held that the child support chart and the criteria used for deviating from it are not mandatory. There may be other matters in addition to the support chart that have a strong bearing upon determining the amount of support. The factors listed in the per curiam order are examples of these other matters. Black v. Black, 306 Ark. 209, 812 S.W.2d 387 (1991). The financial ability to pay child support could be one factor in determining whether a deviation from the chart is appropriate. Reference to the chart is mandatory, but applying the specific chart amounts is not mandatory if it would be unjust or inequitable, and if written findings are made to that effect.

The Court of Appeals has also recognized that a payor spouse’s other children, even if not supported under a court order, may be considered in determining the financial ability to support another child. Waldon v. Waldon, 34 Ark. App. 118, 806 S.W.2d 387 (1991).

The Chancellor’s decision in this case that other children may not be considered under the support chart could have been error if taken to mean the Chancellor could not look beyond the chart to determine the appropriate support amount. Stewart, however, does not argue this aspect of the issue in his brief and only contends the chart violates the equal protection clause. After figuring the child support amount under the chart, a chancellor has the discretion to adjust the amount if equitable and if written findings are made to that effect. In making the decision, the chancellor can consider a parent’s ability to pay. This would necessarily include a consideration of other children the parent is legally obligated to support. The family support chart thus poses no equal protection clause violation.

Affirmed.

Corbin, J., dissents.

Donald L. Corbin, Justice,

dissenting. I dissent only to the third issue as to whether the chancellor erred in not considering appellant’s children by another marriage, not subject to the court ordered support, when utilizing the family support chart. It would seem that a failure by the court to consider the children of another marriage would certainly violate their right to equal protection under the law.


author: Tom Glaze, Justice. Tom Glaze, Justice.

text:
    Issac McKINNEY, David S. Wilkins, D.A. Ellison, Jerry D. Drummond, Torrance L. Thompson, on Behalf of Themselves and All Persons Similarly Situated v. CITY OF EL DORADO
    91-256
    824 S.W.2d 826
    Supreme Court of Arkansas
    Opinion delivered February 10, 1992
    [Supplemental Opinion on Denial of Rehearing March 2, 1992.]

      Anthony J. Sherman and Timothy Davis Fox, for appellants.

      Henry C. Kinslow, for appellee.

      Holt, C.J., not participating.

   Tom Glaze, Justice.

Appellants filed this action as an illegal exaction suit against appellee. Appellants assert that they, and the class they represent, have been illegally assessed fees and costs by appellee’s municipal court and should be entitled (1) to retaxation of costs under Ark. Code Ann. § 16-68-409 (1987), (2) to damages for the violation of their due process rights and (3) for an injunction to prevent further illegal activities. Appellee moved to dismiss under ARCP Rule 12(b)(6), and also answered denying appellants’ claims. The trial court dismissed appellants’ complaint, but did so for want of equity, stating appellants had an adequate and complete remedy at law. Our primary concern in this appeal is to decide whether the trial court was correct in holding it had no jurisdiction.

Jurisdiction must be determined entirely from the pleadings, and if jurisdiction is not established by the pleadings, the court is not to proceed further. Department of Human Services v. Crunkleton, 303 Ark. 21, 791 S.W.2d 704 (1990). Because jurisdiction is determined by a review of the pleadings, we first look to the settled rule that a complaint must allege facts that state a prima facie cause of action, and that such a cause cannot be stated by using conclusory allegations. Howard v. Craighead County Court, 278 Ark. 117, 644 S.W.2d 256 (1983). Under Rule 12(b)(6), a party’s pleading may be dismissed for failure to state facts upon which relief can be granted. Spires v. Members of the Election Commission, 302 Ark. 407, 790 S.W.2d 167 (1990); Ratliff v. Moss, 284 Ark. 16, 678 S.W.2d 369 (1984).

As previously mentioned, appellants bring this action as an illegal exaction, and as their primary premise for doing so, they cite the case of Parker v. Lewis, 249 Ark. 632, 460 S.W.2d 337 (1970). There, they say, this court addressed the specific issue of assessment of unauthorized and illegal court costs in criminal actions as a form of an illegal exaction. In Parker, the taxpayer brought suit to require the deputy prosecuting attorney to account for some $7,000 in fees alleged to be illegal. The illegal fees were shown to have resulted from a practice initiated by a circuit judge who required defendants in criminal cases to make certain cash payments as a condition in some instances to obtaining suspended sentences and in others to obtaining a dismissal of the charges. It was also shown that, if a defendant failed to make the payment, he or she would either stand trial or be sentenced to the penitentiary. The Parker court held that in such instances not only was there no sentence being suspended, but also the exaction was contrary to the rule of law stated in Thomas v. State, 243 Ark. 147, 418 S.W.2d 792 (1967), to the effect that an order assessing court costs against the defendant upon dismissal of the indictment is void and a denial of due process of law. Parker, 249 Ark. at 637, 460 S.W.2d at 339.

Viewed in the light most favorable to the appellants, McAllester v. Forrest City St. Imp. Dist., No. 11, 274 Ark. 372, 626 S.W.2d 194 (1981), we are unable to conclude their complaint alleges sufficient facts upon which the relief they seek can be granted. Particularly, their complaint fails to reflect facts to establish an illegal exaction action. Suffice it to say, such an action is cognizable in chancery court when a party’s pleadings sufficiently establish it.

Appellants’ complaint is quite lengthy, but their allegations are conclusory in nature, claiming they have been illegally assessed fees and costs by appellee’s municipal court which had no statutory or legal authority to assess them. The complaint further lists numerous acts and statutes that the appellants allege the municipal court improperly applied when making the assessments, but it fails to set out how the court misapplied these laws. Appellants certainly fall short of describing facts such as the ones in Parker. Nor do the appellants allege the foregoing acts and statutes themselves to be illegal.

Arkansas does not follow the federal rule which allows “notice pleading;” instead, our rule, ARCP Rule 8(a), requires what we have already stated above, i.e., a statement of facts showing the pleader is entitled to relief. Treat v. Kreutzer, 290 Ark. 532, 720 S.W.2d 716 (1986). Even when reviewing the appellants’ argument made below in response to the appellee’s Rule 12(b)(6) motion, appellants merely summarized its complaint to say they were (1) charged with traffic violations by appellee’s municipal court, (2) assessed improperly with fees and costs under certain statutes and (3) were made to pay such fees and costs under “the threat or actual deprivation of their liberty.”

We note that the illegal exaction remedy is afforded in equity to taxpayers to prevent the misapplication of public funds, Samples v. Grady, 207 Ark. 724, 182 S.W.2d 875 (1944), and any illegal tax or exaction. McCarroll v. Gregory-Robinson-Speas, Inc., 198 Ark. 235, 129 S.W.2d 254 (1939); see generally C. Garner, Taxpayers’ Suits to Prevent Illegal Exactions in Arkansas, 8 Ark. L. Rev. 129 (1954); see also Taber v. Pledger, 302 Ark. 484, 791 S.W.2d 361 (1990), and Starnes v. Sadler, 237 Ark. 325, 372 S.W.2d 585 (1963).

On the other hand, our decisions do not support the theory that a flaw in the assessment or collection procedure, no matter how serious from the taxpayers’ point of view, makes the exaction itself illegal. Schuman v. Ouachita County, 218 Ark. 46, 234 S.W.2d 42 (1950). Our point in setting out these examples reflecting when illegal exaction actions have been sustained and rejected is to illustrate the difficulty in deciding such an issue in view of the few facts alleged in the appellants’ complaint before us in this appeal.

In short, to decide the issue of whether appellants have alleged sufficient facts to state a claim for any illegal exaction is to resolve, as well, the question on whether the chancellor had jurisdiction to award the relief requested. Because appellants’ complaint fails to set out the factual basis upon which their claim for relief can be granted, we are unable to reach the jurisdiction issue raised by the chancellor’s dismissal on that basis. Instead, we affirm the chancery court’s dismissal because appellants fail to meet the requirements of ARCP Rule 12(b)(6), but the dismissal is without prejudice. Spires, 302 Ark. 407, 410, 790 S.W.2d 167, 169 (1990).

In conclusion, we mention that, besides appellants’ illegal exaction argument, appellants offer other reasons they believe the chancery court in this case should have retained jurisdiction. Briefly stated, they argue the chancery court could take jurisdiction to avoid a multiplicity of suits, to award attorneys’ fees and an injunction, to apply a longer statute of limitations which is not otherwise available, and to permit an estoppel defense. As now presented, we see little merit in such contentions, but like appellants’ combined illegal exaction/equity jurisdiction argument, we simply hold the trial court’s dismissal of appellants’ complaint was proper under Rule 12(b)(6) and consider appellants’ other arguments premature at this stage.

For the above reasons, we affirm the lower court’s dismissal of appellants’ complaint, but do so without prejudice.

Holt, C.J., not participating.

Anthony J. Sherman and Timothy Davis Fox, for appellants.

Henry C. Kinslow, for appellee.

SUPPLEMENTAL OPINION ON DENIAL OF REHEARING MARCH 2, 1992

Tom Glaze, Justice.

In their petition for rehearing, appellants better explain their legal theory for claiming refunds as illegal exactions. Simply put, they argue criminal offenses are now defined as felonies, misdemeanors and violations. See Ark. Code Ann. § 5-1-105 (1987). While certain traffic offenses remain misdemeanors, see Ark. Code Ann. §§ 27-50-302 and 303 (1987), other particular traffic offenses, e.g., failure to yield, running a stop sign, are merely designated violations as provided under Ark. Code Ann. § 5-1-108 (1987). Appellants contend court costs statutorily authorized only in misdemeanor cases have been illegally imposed by appellee against appellants when they committed violation-traffic offenses rather than misdemeanor-traffic offenses.

■. Appellants now argue this court’s reference in footnote 1 of its opinion to Ark. Code Ann. § 27-49-104 (1987) is wrong because that statute was superseded by §§ 27-50-302 and 303. Section 27-49-104 has not been specifically repealed, but whether or not it has been affected by any of the other above-cited provisions is not the controlling issue in this appeal. We do, however, point out that, in their original briefs, appellants never argued or discussed the foregoing statutory provisions, much less the effect, if any, the passage of each provision has on the others. But more important, they failed to set out facts that specifically reflect the traffic offense they committed or the sentences that were imposed. The importance in setting out such factual allegations bears not only on whether appellants’ complaint stated a cause of action, but also on whether appellants have standing to assert such a cause. None of the paragraphs in appellants’ complaint adequately set out facts showing either standing or entitlement to relief.

Appellee correctly rejoins appellants’ petition by stating the arguments now made by appellants can best be addressed in a new complaint if they chose to file one. Accordingly, we deny appellants’ request for a rehearing.

Holt, C.J., not participating.

       At one point, the appellants seem to assert that they were assessed fines and costs for traffic violations when the statutory authority was limited to crimes. Instead, appellants set out in their complaint various laws that impose fees for felonies, misdemeanors and traffic violations and never mention which ones were applied (or how they were applied) in their situations. Also, a number of the laws set out by appellants refer to fees in misdemeanor cases which is clearly the category under which traffic offenses fall. See Ark. Code Ann. § 27-49-104. To further confuse the matter, appellants refer to members of a subclass without factually describing how they differ from the appellants.


author: Tom Glaze, Justice.

text:
    STATE of Arkansas v. Ernest C. KERFOOT
    91-226
    823 S.W.2d 895
    Supreme Court of Arkansas
    Opinion delivered February 10, 1992

      Mark Woodville, for appellant.

      Eddy R. Easley, for appellee.
   Tom Glaze, Justice.

This case involves the Revised Uniform Reciprocal Enforcement of Support Act (RURESA). Ernest and Nora Kerfoot obtained a divorce in Oklahoma in 1981, and Nora was awarded custody of their two children. Ernest Kerfoot, appellee, was ordered to pay child support in the amount of $400.00 per month, which amount was reduced to $250.00 per month in 1982. Appellee moved to and now resides in Arkansas, and Nora changed her residence to Texas, where she became a recipient of Aid to Families with Dependent Children. Under RURESA, specifically Ark. Code Ann. § 9-14-308 and -314 (1987), the State of Texas initiated this action requesting. the responding court in Arkansas to reimburse Texas for the child support arrearages it has paid, to adjudicate support arrearages and enforce current support under the Oklahoma decree and to require appellee to maintain medical health insurance on the children.

During the hearing on the Texas petition, the chancellor ruled the appellee was not precluded from asserting certain affirmative defenses to the petition seeking reimbursement and payment of the child support arrearages. In this respect, the chancellor allowed appellee to testify that Nora told him that her new husband had adopted appellee’s children and appellee believed he was no longer liable for child support. Appellee further said that Nora refused him visitation with his children, and he also related the oldest child had lived with him since August 1990. In view of appellee’s testimony, the chancellor found that Nora had unclean hands and therefore she and Texas were estopped to claim only arrearages. Accordingly, he denied Texas’s RURESA petition. On appeal, the sole issue is whether the chancellor erred in allowing appellee to assert the affirmative defenses he presented at the RURESA hearing.

This court has recognized that the purpose of RURESA, Ark. Code Ann. §§ 9-14-301 to 9-14-344 (1987),is to facilitate the enforcement of support orders rendered in other states by way of an ex parte proceeding whereby a duly rendered valid support decree is prima facie evidence of the obligor’s duty. Kline v. Kline, 260 Ark. 550, 542 S.W.2d 499 (1976). In Kline, we reversed the trial court’s ordering, in a RURESA action, child support payments contingent upon the father’s being allowed visitation with his children. Later, in Iowa v. Reynolds, 291 Ark. 488, 725 S.W.2d 847 (1987), we clearly ruled that an obligor cannot raise an affirmative defense to contest his or her liability to pay accrued child support because such a defense is a collateral matter not to be considered in a RURESA proceeding.

In holding that collateral matters such as visitation cannot be raised as a defense in a RURESA proceeding, Arkansas is among the majority of states. Todd v. Pochop, 365 N.W.2d 559 (1985); see also J. Atkinson, Modern Child Custody Practice, § 10.42 (1986). The policy supporting this rule is best stated by the South Dakota Supreme Court in the Todd decision as follows:

The very purpose of the URESA requires that it be procedurally and substantively streamlined. Interstate enforcement of support obligations will be impaired if matters of custody, visitation, or custodial parent’s contempt are considered by the responding court. The introduction of such collateral issues will burden the URESA mechanism. Moreover, permitting the resolution of other family matters in a URESA proceeding may deter persons from invoking the URESA.

Of course, the appellee must have a forum for the parties to argue about violations of visitation rights, but that forum should be where the parties obtained their divorce or, as stated in Scinta v. Markward, 266 Ark. 976, 588 S.W.2d 456 (1979), where the custodial parent and the children reside. In any event, such defenses are not cognizable in a URESA proceeding.

In sum, the appellee is unable to assert the defenses he has raised in this RURESA proceeding, and the chancellor erred in relying on those defenses when dismissing Texas’s petition. Thus, we reverse and remand with directions to reinstate the petition and to consider it on its merits.

       The chancellor did order the appellee to pay future child support pursuant to the Oklahoma divorce decree In the amount of $250 per month for his daughter, who still lives with her mother.