text:
    Jack LEAR v. STATE of Arkansas
    CR 82-110
    643 S.W.2d 550
    Supreme Court of Arkansas
    Opinion delivered December 20, 1982

      Smith, Stroud, McClerkin, Dunn <br Nutter, by: Robert S. McGinnis, Jr., for appellant.

      Steve Clark, Atty. Gen., by: Theodore Holder, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

A jury convicted the appellant of aggravated robbery (Ark. Stat. Ann. § 41-2102 [Supp. 1981]) and fixed punishment at life imprisonment. For reversal, the appellant, through court appointed counsel, first argues that all four of the principal witnesses against him, Tommy Lear, Jerry Lear, Brenda Taylor and Bobby Goleman, were accomplices as a matter of law, and that the other evidence was insufficient to corroborate their testimony as required by Ark. Stat. Ann. § 43-2116 (Repl. 1977). We disagree.

The appellant’s nephews, Tommy Lear and Jerry Lear, took money, at gunpoint, from the Commercial National Bank at Fouke, Arkansas. They pled guilty to aggravated robbery before appellant’s trial at which they were state witnesses. Jerry Lear testified that the appellant had planned the robbery three or four days before, enlisting his and Tommy’s aid, with the understanding they would receive $1,000 each. The appellant was to receive the balance of the robbery proceeds. Tommy Lear first testified that he and Jerry were to get $ 1,000 each, but he did not know where the rest was supposed to go because the appellant was not much involved in the robbery. Later, he admitted telling police that the appellant had hired him and Jerry for $1,000 to commit the robbery, and he was afraid to tell the whole truth at trial because of the danger of reprisal. The other principal witnesses against the appellant are Brenda Taylor and Bobby Goleman. The state concedes that the Lears, appellant’s nephews, are accomplices as a matter of law but contends that Taylor and Goleman, whose testimony is recited later, are not.

The trial court instructed the jury in the language of the statute on the definition of an accomplice and the necessity of corroboration. Ark. Stat. Ann. § 41-303 (1) defines accomplice:

A person is an accomplice of another person in the commission of an offense if, with the purpose of promoting or facilitating the commission of an offense, he:
(a) solicits, advises, encourages or coerces the other person to commit it; or
(b) aids, agrees to aid, or attempts to aid the other person in planning or committing it; or
(c) having a legal duty to prevent the commission of the offense, fails to make proper effort to do so.

Ark. Stat. Ann. § 43-2116 (Repl. 1977) provides:

A conviction cannot be had in any case of felony upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows that the offense was committed, and the circumstances thereof.

In Cate v. State, 270 Ark. 972, 606 S.W.2d 764 (1980), we stated that the defendant in a criminal case has the burden of proving that a witness is an accomplice whose testimony must be corroborated; whether a witness is an accomplice is usually a mixed question of fact and law; and the finding of the jury as to whether a witness is an accomplice is binding unless the evidence shows conclusively that the witness was an accomplice. As stated in Wilson & Dancy v. State, 261 Ark. 820, 552 S.W.2d 223 (1977), “[m]ere presence, or negative acquiescence and passive failure to disclose the crime are neither separately nor collectively sufficient to make one an accomplice.” Further, we reiterated: “The knowledge that a crime is being or is about to be committed cannot be said to constitute one an accomplice. Nor can the concealment of knowledge, or the mere failure to inform the offices of the law when one has learned of the commission of a crime.”

Taylor, who was also charged with aggravated robbery, testified that she was in appellant’s car when he followed his nephews to Fouke, Arkansas. She was aware of the plans to rob the bank. They drove toward a rendezvous point outside Fouke, where the nephews were to leave appellant’s share of the money. Following the robbery, they followed the Lears for about two miles until a police car appeared and then “we cut off.” Taylor denied any complicity or active participation other than the knowledge of the planned offense. Appellant argues that Taylor had a legal duty to make a proper effort to prevent the offense, about which she had knowledge, which she failed to do.

Goleman, 18 years of age, testified that he was present when plans were discussed by the appellant for the robbery. The appellant asked him to drive the automobile during the robbery, which he refused to do. Appellant offered him one-fourth of the total robbery proceeds and the remainder was to be split between the appellant and his two nephews. However, he did not think the Lears were serious about the robbery and did not notify the police. It is undisputed he declined any participation in the offense. He was not an accomplice as a matter of law. Wilson & Dancy v. State, supra.

As we recently stated in Walker v. State, 277 Ark. 137, 639 S. W.2d 742 (1982), corroborating evidence is sufficient if, independently of the testimony of the accomplice, it tends in some degree to connect the defendant with the commission of the crime. Here, the testimony of Goleman connected the appellant with the commission of the crime and sufficiently corroborated the essential point that the appellant actively participated in the bank robbery. This being true, we need not discuss whether Taylor was an accomplice as a matter of law.

The appellant next contends that the trial court erred by admitting into evidence a Rand McNally road atlas and two boxes of .22 shells, which were found in appellant’s car when he was arrested a few hours following the robbery. The atlas was open showing a map of Arkansas and Fouke, Arkansas, was encircled in red ink. The appellant consented to the search. He does not argue that the search was unconstitutional or that the evidence was inadmissible under the rules of evidence. Rather, his sole argument is that sanctions should be applied by prohibiting the evidence because the prosecutor failed to comply with discovery procedures as required by A.R.Cr.P., Rule 17.1, subject to Rule 19.4, which requires the prosecuting attorney to disclose to the defense evidence to be used at trial or acquired from or belonging to appellant.

Rule 19.7 provides in pertinent part:

(a) If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with an applicable discovery rule or with an order issued pursuant thereto, the court may order such party to permit the discovery or inspection of materials not previously disclosed, grant a continuance, prohibit the party from introducing in.evidence the material not disclosed, or enter such other order as it deems proper under the circumstances. (Italics supplied.)

The language of this rule obviously leaves the decision whether to exclude material, which was not disclosed, to the sound discretion of the trial court. Here, the trial court allowed appellant’s counsel time to inspect the atlas and .22 shells, which were first produced at trial. A continuance was not requested. Furthermore, the prosecutor stated that his entire case file had been given to appellant’s counsel who was advised that he could review at his convenience any evidence held at the Miller County sheriff’s office and that his case file indicated such a map existed. He did not have the map in his office. Appellant’s counsel replied that it was his understanding from the prosecutor that he had not seen a map and he would have to await the arrival of the arresting officers from Louisiana because the map was in their custody, if the map existed. Therefore, it appears there was a sufficient disclosure as to the existence of the map and where it was available for inspection if the appellant desired to inspect it before trial. In the circumstances, we find no abuse of the trial court’s discretion pursuant to Rule 19.7, supra. Thomerson v. State, 274 Ark. 17, 621 S.W.2d 690 (1981).

Finally, the appellant contends that the verdict of life imprisonment, in light of the evidence, is excessive especially since appellant’s nephews only received twenty year sentences each with ten years suspended. In Kaestel v. State, 274 Ark. 550, 626 S.W.2d 940 (1982), we answered a similar contention by observing: “As to the severity of a sentence, except in capital cases, we do not review the severity of a sentence within the lawful maximum and not affected by error in the trial, that determination having been committed to the jury by the Constitution and statutes.” Aggravated robbery is a Class Y felony. Ark. Stat. Ann. § 41-2102 (Supp. 1981). The range of punishment for a Class Y felony is not less than ten (10) years and not more than forty (40) years or life. Ark. Stat. Ann. § 41-901 (1) (a) (Supp. 1981). The sentence here is within the lawful maximum and unaffected by any demonstrated error in the trial so we have no authority to modify it.

Pursuant to the requirements of Ark. Stat. Ann. § 43-2725 (Repl. 1977), Rule 36.24 of the Rules of Criminal Procedure, and Rule 11 (f) of the Rules of the Supreme Court, we have reviewed the record and all objections and find no prejudicial error.

Affirmed.

Dudley, J., not participating.


source: Caselaw Access Project

author: Darrell Hickman, Justice.

license: Public Domain

text:
    Marsha MOFFITT v. BATESVILLE SCHOOL DISTRICT
    82-177
    643 S.W.2d 557
    Supreme Court of Arkansas
    Opinion delivered December 20, 1982

      Cearley, Mitchell & Roachell, by: Richard W. Roachell, for appellant.

      G. Ross Smith, P.A., for appellee.
   Darrell Hickman, Justice.

This is an appeal by Marsha Moffitt, a teacher in the Batesville School District, from a decision of the Independence County Circuit Court upholding the school board’s termination of her contract. The issue on appeal is whether the school board had any cause to dismiss her according to the Teacher Fair Dismissal Act of 1979. Ark. Stat. Ann. §§ 80-1264 through 80-1264.10 (Repl. 1980).

I

Mrs. Moffitt had been a teacher in the Batesville School District for twelve years when she was terminated. She was a nonprobationary teacher whose contract could only be terminated for “any cause which is not arbitrary, capricious or discriminatory, or for violating the reasonable rules and regulations promulgated by the school board.” Ark. Stat. Ann. § 80-1264.9 (b). Chapman v. Hamburg Public Schools, 274 Ark. 391, 625 S.W.2d 477 (1981).

Mrs. Moffitt’s contract was renewed in March of 1981. However, she was informed in writing by the principal on May 15, 1981, that because of problems she had had during the school year he would take a serious look at any future recommendation to rehire her. A few days later the principal decided that Mrs. Moffitt violated two rules of the school district. She had destroyed the final examinations of her students and she had failed to turn in on time a list of students who had lost or damaged their books.

After final examinations, several parents complained when they learned their children had received lower grades in Mrs. Moffitt’s class. Then they found that the final examination papers had been thrown out and they could not find out why. Mrs. Moffitt claimed that she did not understand the rule to apply to spring semester finals because the students would not be back in class. Because of Mrs. Moffitt’s actions it was necessary to reconstruct the grades of certain students. Those who had a higher grade before the final examination were given the benefit of the doubt and the higher grade. Those whose grades were raised by the final examination were allowed to keep the final higher grade.

Regarding the books, a notice was sent to the teachers about their various duties during the last week of school, May 18th through May 21st. On the notice was the following sentence: “Don’t forget to turn in the following on the day assigned if possible.” Listed thereafter were various reports due and one of them was the report of damaged or lost books. The report of damaged books was due May 19th and evidently Mrs. Moffitt turned hers in on May 20th. It was the school’s policy to retain the report cards of students who had lost or damaged texts until they reimbursed the school for the books. When Mrs. Moffitt turned her list in, the report cards had already been mailed and it was necessary for the secretary to mail out to all of the students’ parents, some seventy in this instance, a notice of fines owed. According to the school secretary this cost the school district about $300.00. There was evidence that no teacher had ever turned in a list of seventy damaged or lost books and that rarely had the number exceeded five or six.

Consequently, the superintendent of schools informed Mrs Moffitt by letter that he would recommend to the school board that her contract for the next year be terminated. In that letter four reasons were given:

(1) Deficiencies in your job performance as evidenced by our 1980-81 evaluation form and failure to improve in these areas as evidenced by the numerous counseling forms that your principal and assistant principal have written up from their observations in your classroom and upon recommendations that they have made to you as to ways you might improve.
(2) The principal’s final recommendation that unless improvement in your job performance was evidenced in the 1981-82 school year it would be doubtful that he could recommend re-employment.
(3) Violation of Policy IHA in that you destroyed semester test exams before students or parents had a chance to review them.
(4) Failure to follow the principal’s directive in sending students who had lost or damaged books to the office for corrective action.

At Mrs. Moffitt’s request a hearing was held before the school board. Documentary evidence was introduced reflecting the problems Mrs. Moffitt had during the school year. First, a counseling form dated September 25,1980 indicating that Mrs. Moffitt was late to school every day was introduced. Her explanation was deemed satisfactory by the principal. Another counseling form signed in October by Charles E. Knox, the principal, noted a discipline problem with her students in class; he said they threw paper wads, showed disrespect toward other students giving reports, were loud and misused study time. On February 14, 1981, Danny Yeager, Jr., the vice-principal, observed her class and noted four matters of concern: Students had drinks in her class, were without text books, were talking, and were making casual remarks during class. Mrs. Moffitt’s annual teacher evaluation form, dated February, 1981, showed four areas in which she needed improvement. They were: (1) evidences careful planning and organization; (2) demonstrates effective instructional procedures and creative teaching techniques; (3) handles behavior problems and disruptions efficiently and unobtrusively; (4) is punctual and regular in attendance. Finally, a counseling form dated May 21, 1981, was introduced indicating she violated the two school policies. Mrs. Moffitt testified to the board that she was not aware she was required to keep final examination papers and that she turned the list of books in on time. The school board voted unanimously to terminate Mrs. Moffitt and the matter was appealed to the Independence County Circuit Court. Additional testimony was offered and the appellant argued that the violated rules were vague or unreasonable, but even if they were not, Mrs. Moffitt was discharged for arbitrary and capricious reasons. The trial court found otherwise and we affirm his decision.

The school board had an adequate basis on which to terminate Mrs. Moffitt’s contract. There is no doubt that she was on notice that the superintendent had recommended renewal of her contract with reservations, and just a few days after that it was learned that she had disposed of the final test papers, causing considerable concern to some students and parents. The grades were adjusted to pacify some parents because there was no way to satisfactorily prove the grades were fair and correct.

The examination rule in question reads:

All examination papers will be returned in class to the students and the examination discussed within one week after the examination is given. Students missing any part or parts of the questions will be shown why their answers are incorrect. Teachers may let the students retain the examination or may take them up and keep them in their files. It is recommended that the papers be filed for ready reference to any future discussion.

A fair reading of the rule leads to the conclusion Mrs. Moffitt should not have disposed of the tests.

The violation of the administration’s request to timely report lost or damaged books might, standing alone, seem trivial even though the secretary of the school testified it cost the district $300.00 to mail out notices to all the parents. But we do not have before us the question of an isolated instance of neglect of duty. Before us is the question of whether she was terminated for any cause which was not arbitrary, capricious or discriminatory, or for violating the reasonable rules and regulations of the school board. Other teachers testified that the rule about keeping examinations was clear to them and often reiterated by the administration. We find that neither of those school directives violated by Mrs. Moffitt is unreasonable or confusing.

It is argued the board’s reasons were arbitrary in that the two main reasons for her discharge, the destruction of the examination papers and the late book list, were not “just cause” for discharging a nonprobationary teacher.

The depositions of all the school board members were taken and they were asked specifically why they discharged Mrs. Moffitt. These depositions and other evidence were offered to the circuit court by both parties in what amounted to a retrial of the case. (Since neither party questioned this procedure, which may not have been the kind of review contemplated in the Teacher Fair Dismissal Act, we do not rule on its propriety.) The board members generally said they were aware of Mrs. Moffitt’s problems during the year when they decided to renew her contract, and she was terminated mainlyfor the two infractions. One member said she did so for the reasons contained in the superintendent’s letter of June 19, 1981. Another said he only considered the two infractions of the rule. Regardless, the question to the trial court was whether the school board terminated Mrs. Moffitt for a reason permitted by the Teacher Fair Dismissal Act. The judge found the board did have cause and our review is limited to deciding if the circuit court was clearly wrong. ARCP, Rule 52. It is not our function to substitute our judgment for the circuit court’s or the school board’s. Williams v. Marianna School District, 274 Ark. 539, 626 S.W.2d 361 (1982). We find no error.

Affirmed.


text:
    Shelby B. HACKETT v. Peggy Nantz HACKETT
    82-220
    643 S.W.2d 560
    Supreme Court of Arkansas
    Opinion delivered December 20, 1982

      Ralph M. Cloar, Jr., for appellant and cross-appellee.

      E. Winton Mclnnis, for appellee and cross-appellant.
   Darrell Hickman, Justice.

This is a divorce case certified to us by the Court of Appeals because it involves an interpretation of Act 714 of 1981.

The chancellor awarded the appellee and cross appellant, Peggy Nantz Hackett, a divorce, custody of the parties’ children, child support of over $1,000 per month, the possession of the parties’ home and one-half of the marital property, both real and personal.

Both parties appeal seeking additional relief. The appellant, Shelby B. Hackett, complains that the chancellor refused to divide the parties’ debts and failed to designate the specific personal property each is to receive. Mrs. Hackett on cross-appeal seeks more than one-half of the property, alimony, more child support and an interest in Mr. Hackett’s part of a capital account with Southwestern Life Insurance Company where he is a salesman.

The decree is affirmed in every respect. In the matter of alimony and child support the chancellor is given wide discretion; in the former a power to grant or deny depends on the circumstances of the case and parties; in the latter, the chancellor may fix a sum that adequately provides for the support and maintenance of the minor children after considering all the circumstances of the case, including the parties’ station in life. Russell v. Russell, 275 Ark. 193, 628 S.W.2d 315 (1982); Gross v. Gross, 266 Ark. 186, 585 S.W.2d 14 (1979). In this case we cannot say the chancellor was clearly wrong in either regard.

Act 714 of 1981 provides the marital property of the parties shall be divided equally unless the chancellor, for detailed reasons, finds otherwise. He did not find otherwise and we will not substitute our judgment for his. There is no evidence in this case Mr. Hackett had a vested interest in the capital account with Southwestern Life Insurance Company that was fully distributive upon the date of the Hacketts’ divorce. Therefore, Mrs. Hackett is not entitled to any portion of that account as “property” defined by Act 714. Bachman v. Bachman, 274 Ark. 17, 621 S.W.2d 701 (1981); Paulsen v. Paulsen, 269 Ark. 523, 601 S.W.2d 873 (1980).

Mrs. Hackett complains part of the child support goes to make the mortgage, tax and insurance payments on the family home which she was granted possession of. This also was a matter of discretion with the chancellor which we cannot say was abused. McClain v. McClain, 222 Ark. 729, 263 S.W.2d 911 (1954).

The only aspect of the case that is troublesome is the fact the chancellor found Act 714 did not require him to divide the debts. The parties offered evidence that their outstanding debts, besides mortgage payments on real estate, were about $13,555. The list totalled over thirty different debts and in most instances it is not clear who incurred the debts. The chancellor was not required by Act 714 to divide the debts, that is, to consider each debt and assign a party to pay it. But he was obligated to consider those debts in deciding the questions of alimony, support for the children, and perhaps the division of the property, and the chancellor may well have done so. Debts of the parties have always been a circumstance to be considered in divorce cases in awarding alimony. Yoke v. Yoke, 238 Ark. 642, 383 S.W.2d 665 (1964); Shirey v. Shirey, 87 Ark. 175, 112 S.W. 369 (1908). Debts incurred on behalf of minor children can be ordered paid. Robbins v. Robbins, 231 Ark. 184, 320 S.W.2d 498 (1959). Debts incurred by the parties regarding 'marital property can be ordered to be settled as between the parties. Goodlett v. Goodlett, 209 Ark. 297, 190 S.W.2d 14 (1945). Parties can be enjoined from incurring debts that will encumber property. Howard v. Howard, 204 Ark. 929, 166 S.W.2d 12 (1943). Obligations jointly made by the parties can be ordered to be settled, as between the parties. Riegler v. Riegler, 243 Ark. 113, 419 S.W.2d 311 (1969). An award of realty to the wife, silent as to who shall pay the mortgage, is an award subject to the mortgage. Crosser v. Crosser, 121 Ark. 64, 180 S.W. 337 (1915).

Indeed it would be unrealistic for a chancellor to refuse to consider the debts of the parties in deciding a divorce case. But that does not mean the chancellor must divide the debts. He may leave the parties as he found them, obligated individually or jointly to the creditor who is not ordinarily a party to a divorce and cannot therefore be bound by an order regarding the parties’ debts.

The fact the chancellor in this case refused to divide the debts is not error. However, we remand the case only to ensure that he did consider those debts and the party or parties liable thereon when he made his decision regarding alimony, child support and the division of property.

Finally, Act 714 does not require every piece of personal property to be divided in kind. Russell v. Russell, supra. (The Hacketts had three cars and household items.) The chancellor expressed a desire that the parties divide the personal property among themselves and indicated if they could not he would order it all sold and the proceeds divided. That alternative is still available to the parties and it is not an improper one.

Affirmed and remanded.


text:
    Wallace FLOYD v. STATE of Arkansas
    CR 82-82
    643 S.W.2d 555
    Supreme Court of Arkansas
    Opinion delivered December 20, 1982

      John W. Settle, for appellant.

      Steve Clark, Atty. Gen., by: William C. Mann, 111, Asst. Atty. Gen., for appellee.
   Darrell Hickman, Justice.

Wallace Floyd confessed to burglarizing several homes in the Fort Smith area, claiming he was a drug addict and needed to steal to support his habit. He was convicted of two counts of burglary and three counts of theft. He was sentenced as an habitual criminal with two or more prior convictions. His total sentence imposed was fifty years imprisonment and a $30,000 fine. Floyd argues five reasons that his convictions should be overturned.

First, he argues his confession was involuntary because he was under the influence of drugs. He was arrested in Muskogee, Oklahoma, on a traffic offense on August 21, 1981. The Fort Smith authorities were called when certain evidence that had been-reported stolen was found in Floyd’s vehicle: A Pangburn High School ring, three savings bonds and some prescription medicine. Floyd had been under suspicion by the Fort Smith police for several residential burglaries. A warrant was issued out of Fort Smith August 24th, and Detective Mike Brooks went to Muskogee the next day. Floyd was arrested, waived extradition and Officer Brooks drove him back to Arkansas.

En route Brooks said he warned Floyd of his Miranda rights and Floyd acknowledged those rights in Arkansas before giving a full written statement involving himself in several burglaries, more than he was convicted of in this case.

Floyd’s argument of involuntariness is that he was addicted to cocaine, codeine and speed when he confessed. He said he had secreted a drug in his shoe and took it after he was in jail in Oklahoma. He said he told Brooks he was addicted and that that statement was a preface to his confession. He said he was “high” when he made the statement and, therefore, it was involuntary. He cites the case of Wright v. State, 267 Ark. 264, 590 S.W.2d 15 (1980), as authority and contends that his assertions were not contradicted at trial and must be accepted as true. Detective Brooks did offer contradicting testimony. He said although Floyd told him he was an addict, he observed no signs that Floyd was under the influence of drugs or suffering from withdrawal pain. He saw no needle marks, evidence of fever, chills or sweating, and Floyd did not ask for sweets or water. The trial court did not have to accept Floyd’s statement as true in view of this testimony. On review we consider the totality of the circumstances and the State must prove by a preponderance of the evidence that a statement made in custody was voluntary. State v. Branam, 275 Ark. 16, 627 S.W.2d 8 (1982). We so find in this case.

Floyd concedes that his second argument regarding the sufficiency of the evidence must fail if the statement is found admissible. We find the statement admissible so there is no need to address the second argument.

By a motion in limine, Floyd sought to prevent the State from using four prior convictions to impeach his credibility if he testified. His third argument is that the State simply sought to prove he was a “bad person,” and therefore prejudice the jury and insure conviction, rather than discredit Floyd’s veracity, citing Alford v. State, 223 Ark. 330, 266 S.W.2d 804 (1954). Alford is not controlling. Ark. Stat. Ann. § 28-1001, Rule 609 (a) (Repl. 1979) provides that a witness’ credibility can be attacked by proving certain prior convictions, and if the prior convictions are for false statements or dishonesty, the trial court does not determine whether the prejudicial effect of the prior convictions outweighs their probative value. Since Floyd’s convictions for burglary and theft were for crimes involving dishonesty, they were admissible without the weighing test. His convictions for delivery of a controlled substance and attempted escape were for crimes punishable by imprisonment in excess of one year and so the trial court was required to weigh their probative value against the possibility of prejudice. After argument of counsel the court ruled they could be used. We cannot say the court abused its discretion.

Fourth, it is argued that the trial court should have granted a mistrial when the prosecuting attorney said if the jury found that a residence was broken into, they must find Floyd guilty of burglary and not a lesser crime. The defense objected and the court admonished the jury to disregard the statements of the attorneys and to follow the court’s instructions as to the applicable law.

Floyd cannot complain for lack of a mistrial on appeal when none was requested. Fielder v. State, 206 Ark. 511, 176 S.W.2d 233 (1943). The judge admonished the jury without being asked to do so. If the admonishment was too weak Floyd should have complained to the trial court.

Fifth, Floyd argues that a statement made by the prosecutor in argument merited a mistrial. The prosecutor said:

Just one point. The testimony, I believe, was that the defendant was committing these burglaries to get money to buy drugs. If you do fine him and don’t send him to the pen I think we all know where the fine money will come from, so please don’t do that.

The trial court denied the motion for a mistrial but admonished the jury. It is well-settled that a prosecutor is allowed to argue any inference reasonably and legitimately deducible from the evidence. Gruzen v. State, 276 Ark. 149, 634 S.W.2d 92 (1982). Although similar, the remark is not comparable to the improper one in Mays v. State, 264 Ark. 353, 571 S.W.2d 429 (1978), where the prosecutor referred to the defendant as a dope pusher and there was not a shred of evidence to that effect. There was evidence that Floyd supported a drug habit by stealing.

In Miller v. State, 269 Ark. 341, 605 S.W.2d 430 (1980), we said: “A mistrial is an extreme and drastic remedy which should be resorted to only when there has been an error so prejudicial that justice could not be served by continuing the trial.”

Affirmed.

Purtle, J., not participating.


author: Robert H. Dudley, Justice. John I. Purtle, Justice,

text:
    Betty KING, d/b/a P.D.Q. PAWNSHOP, a/k/a KING’S IDEAL PAWNSHOP v. W. D. YOUNTS, Chief of Police in and for the City of North Little Rock, Arkansas
    82-156
    643 S.W.2d 542
    Supreme Court of Arkansas
    Opinion delivered December 20, 1982
    [Rehearing denied January 17, 1983.]

      R. W. Laster and Larry Carpenter, for appellant.

      Jim Hamilton, City Atty., for appellee.
   Robert H. Dudley, Justice.

Appellant, the owner of P.D.Q. Pawnshop in North Little Rock, filed suit in chancery court seeking injunctive and declaratory relief from the enforcement against her of Act 87 of 1981, codified as Ark. Stat. Ann. §§ 71-5401 — 71-5408, and North Little Rock Ordinance 5369. The act and ordinance regulate the purchasing for resale of precious metals or stones and require licensing, fees and record keeping. Appellant contends that her business does not come within the purview of the act or ordinance, that she should not be required to comply with them, and that she received a letter threatening prosecution under the penal provisions of the act and ordinance for her failure to comply.

The trial court in its decree recited that it had considered the matter on the pleadings, the testimony and evidence presented, the briefs and the argument of counsel. It found that pawnbrokers are included in Act 87 of 1981 and North Little Rock Ordinance No. 5369, that the business operation conducted by appellant is within the purview of the act and ordinance and that appellant must follow the requirements of the act. The trial court denied appellant’s request for a permanent injunction, and it is from this order appellant appeals. Jurisdiction is in this Court pursuant to Rule 29 (1) (c).

The burden was on appellant to bring up a record sufficient to show that the trial court was wrong. Armbrust v. Henry, 263 Ark. 98, 562 S.W.2d 598 (1978); A.R.A.P. 6 (b). No testimony and none of the evidence relied upon below have been included in the record. The record before us consists merely of briefs and pleadings. Appellant refers to a stipulation of facts introduced below, but none appears in the record. The answer filed by appellee denies the following: (1) that appellant has paid all privilege taxes or license fees, (2) that appellant is not in the business of buying precious metals for resale and (3) that threats of arrest were made. The answer admits that the statute and ordinance exist. Therefore, the answer admits no facts material to the basis of this appeal.

In Armbrust v. Henry, supra, we emphasized that an appellate court must presume that the missing testimony in a record on appeal supports the finding of the lower court. See also, Phillips v. Arkansas Real Estate Com’n., 244 Ark. 577, 426 S.W.2d 412 (1968). Without the benefit of the evidence from which the trial court made its findings, an affirmance of the trial court is imperative.

Affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. I do not feel that the record was insufficient to decide this case. This was obviously a test case brought before us to clarify the laws as presently exist in regard to precious metals dealers. The majority merely skirts the issues and forces additional litigation to decide what should properly be decided now. The pleadings and other material in the record expose the issues sufficiently to allow us to understand and decide the underlying controversy.

The appellant operates as a pawnbroker as defined in Ark. Stat. Ann. § 67-1130 (Repl. 1980); accepting pledges on various items, some of which admittedly contain or are composed of precious metals. She does not purchase items for resale because of their precious metal content and does not maintain equipment for weighing or assaying precious metals. As a pawnbroker, she is required to keep records to identify property pledged to her as well as records on the identity of individuals pledging such property. She uses forms provided by the Arkansas State Police and the City of North Little Rock. She is required to submit such records to the police and make her place of business available for inspection by the authorities at almost any time.

The statute in question here is Ark. Stat. Ann. § 71-5401 (Supp. 1981) which states in part:

No person including a pawnbroker shall engage in the business of buying . . . precious metals . . . for the purpose of reselling the same . . . without first obtaining a license . . .

Similar language appears in the contested city ordinance, North Little Rock Ordinance No. 5369. The language is designed to regulate persons in the business of buying precious metals for resale. These persons had not specifically been regulated by the state prior to the enactment of this legislation. The phrase “including a pawnbroker” would seem to me to mean that any pawnbrokers who enter into the business of buying and reselling precious metals would have to have a license to do so. If the legislature were to pass a bill stating “no person including a minister shall engage in the business of operating a gasoline service station without obtaining a license,” it would not mean that the minister would be obligated to be licensed unless he operated a service station. The legislation we are dealing with in this case would apply to a pawnbroker who set up a facility for buying and reselling precious metals, whether inside or outside his pawnshop. However, appellant did not set herself up as a “precious metals exchange” or in any way alter her presently ongoing business. It would be ridiculous to require still more licensing and regulation for one who is presently licensed, well regulated and reporting her activities regularly to the proper authorities.

I would, therefore, reverse and remand this case for a proper order allowing appellant to continue in her business of pawnbroking without coming under this particular regulation until such time as she decides to engage in the business of buying and reselling precious metals.


author: Robert H. Dudley, Justice.

text:
    Emma HURST v. Ray Hullen RICE et al
    82-164
    643 S.W.2d 563
    Supreme Court of Arkansas
    Opinion delivered December 20, 1982

      Daily, West, Core, Coffeman & Canfield, by: Ben Core, for appellant.

      Swindell & Bradley, by: Benny E. Swindell, for appellees.
   Robert H. Dudley, Justice.

Both parties to this appeal claim forty acres of mineral rights in Johnson County. Gas and coal are now at stake.

In 1919 Rebecca Rogers Smith deeded her dower interest in the land to W. A. Hill. In 1920 he conveyed his interest in the surface “with all coal and mineral reserved, all right to mine, strip or enter and remove any and all coal is reserved.” Appellees, the Hills, claim their title to the minerals through W. A. Hill. The mineral rights were not properly subjoined with the surface rights on the tax books in the years material to this appeal and, in 1929, the “Mineral Titles” in the name of W. A. Hill were forfeited for nonpayment of the 1926 taxes.

Appellant, Emma Hurst, claims title to all minerals by virtue of a State mineral tax deed obtained by her husband in 1930 for non-payment of the 1926 tax on minerals. The tax deed was confirmed in 1938 in an ex parte proceeding.

In 1966, appellant, Emma Hurst, leased her interest to a drilling company as did others. Various leases were then pooled and unitized into a drilling unit and producing gas wells were drilled. In 1967 the producing gas companies filed a suit asking for a declaratory judgment between the parties to this appeal, and others, to determine ownership of the oil and gas and entitlement to royalties. After both parties to this appeal had answered, the trial court in 1967 decreed that appellant, Emma Hurst, and her husband, since deceased, “were the owners of oil and gas in and under” the tract.

In 1981 appellant, Emma Hurst, filed a petition to quiet title to the oil, gas and other mineráls. She alleged that coal was being removed pursuant to a lease with the owner of the surface lands. The defendant removing the coal and the defendants owning the surface lands were dismissed without prejudice and are not parties to this appeal.

The trial court held: (1) the 1967 decree decided only that appellant Hurst was entitled to oil and gas royalties that would accrue from the wells then producing; (2) the tax deed and confirmation, under which appellant claims, were invalid; and (3) the title to all coal, gas, oil and other minerals is owned by the heirs of W. A. Hill, under the mineral reservation, subject only to the right of appellant Emma Hurst to receive royalties from the then producing wells. Only Emma Hurst appeals. There is no cross-appeal.

Appellant first contends that the chancellor erred in interpreting the 1967 decree to establish in her only a right to receive a royalty on the wells then producing. We agree. Both of the parties to the present action were before the court in 1967, ownership of the oil and gas was at issue and there was a final adjudication on the merits. That judgment decreed that appellant and her husband were “the owners of the oil and gas in and under the lands described....” After that term of court lapsed, the trial court lost jurisdiction to modify the judgment except for grounds which are not applicable to this case. Ark. Stat. Ann. § 29-506 (Repl. 1962), superseded by ARCP Rule 60. The time to modify has passed. There was no appeal. The time to appeal has passed. The matter of ownership of the oil and gas is now res judicata. As we stated in Wells v. Heath, 269 Ark. 473, 602 S.W.2d 665 (1980):

The doctrine of res judicata is accepted as a rule of inflexible absolute law in practically every jurisdiction. If the judgment is entitled to res judicata, it is conclusive as to the cause of action involved no matter how “unfair” or “patently erroneous” it may now seem to the court examining the judgment. 65 Harv. L.R. 818. There must be an end to litigation at some point; and, if there has been one fair trial on the merits of a case, that is all that is required.

Thus, the trial court erred in modifying the 1967 decree. The distinction between the 1967 decree and the 1982 decree is significant. The 1967 decree gave appellant ownership of the oil and gas but the 1982 decree modified that ownership to a right to royalty from a lease. Appellant’s award under the 1967 decree gave her the incidents of ownership of oil and gas including the right to sell the same, to explore for and develop the minerals, to lease for exploration and development, to receive income therefrom in the form of delay rentals and royalties either for shut-in or production, to pass by will or inheritance and to occupy as much of the surface as is reasonably necessary for mining and drilling purposes. H. Williams & C. Meyers, Oil & Gas Law § 301 (1981). However, under the 1982 decree the rights of appellant were modified and appellant was held to possess a right only to receive payment of royalties from all wells producing in 1967. Thus, appellant would have only a right of contract to receive a payment based upon production under a lease and nothing more. Appellant’s interest would terminate when the lease terminated. Id. §§ 302 and 303; see also, Hickman, Oil and Gas Partition Interest of Lessee, 11 Ark. L. Rev. 186 (1957).

The decree now on appeal is modified to reflect that the appellant is the owner of the oil and gas.

The 1967 decree was the result of a suit for a declaratory judgment filed by the production companies. It involved only the ownership of oil and gas. It did not involve title to the coal and other mineral rights. In the 1982 decree now before us the appellees, as heirs of W. A. Hill, were held to be owners of the coal and other minerals. We affirm.

The claim of appellant, Emma Hurst, to the coal and mineral rights is based on the mineral tax deed. The mineral assessments for the year of the tax forfeiture were not subjoined to the assessments of the surface rights. For a mineral estate assessment to be valid, the mineral estate listing on the tax books must be subjoined to the surface estate. Adams v. Bruder, 275 Ark. 19, 627 S.W.2d 12 (1982). Therefore, the State mineral tax deed was void. The 1938 ex parte attempt to confirm the tax title did not constitute an adjudication against W. A. Hill because he was not made a party to that action and his reservation of mineral rights was of record. One seeking confirmation of a mineral title has constructive knowledge of a previous deed of record and is required to make that prior deed holder a party to the proceeding if the prior deed holder is to be bound. Union Sawmill Co. v. Rowland, 178 Ark. 372, 10 S.W.2d 858 (1928).

Appellant Emma Hurst also claims that she has been in adverse possession of the minerals. A void mineral tax deed can be sufficient color of title for the purpose of determining title by adverse possession. Skelly Oil Co. v. Johnson, 209 Ark. 1107, 194 S.W.2d 425 (1946). However, to constitute adverse possession of constructively severed minerals, there must be a continuous user of the minerals for the statutory period. Even a sporadic user is not sufficient. Skelly Oil Co. v. Johnson, supra, citing Claybrooke v. Barnes, 180 Ark. 678, 22 S.W.2d 390,67 A.L.R. 1436 (1929). Appellant’s only proof about mining was that “way back there” some people “around town went there and dug holes as they call them and got some [coal] out to burn.” Such limited use is not sufficient to start the running of the statute of limitations. See, e.g., H. Williams & C. Meyers, Oil & Gas Law § 224.4 n.6 (1981). There was no showing that the appellees or their predecessors in title were put on notice of a claim of adverse possession of all minerals by appellant. Laney v. Monsanto Chemical Co., 233 Ark. 645, 348 S.W.2d 826 (1961). See also, Brizzolara v. Powell, 214 Ark. 870, 218 S.W.2d 728 (1949), discussed in H. Williams & C. Meyers, Oil & Gas Law § 224.4 (1981). In addition, appellant contends that she has been drawing gas royalty for fifteen years and this production constitutes adverse possession for all minerals. We decline to so hold. Such a claim from gas production goes to the gas only and the drilling and production of a gas is not adverse to the mining or stripping of coal, a solid mineral. We need not decide if drilling and producing a gas or other liquid mineral is ever adverse to the drilling of any solid mineral. Nor need we decide whether the mining of one solid mineral is adverse to that mineral alone or to the mining of all other minerals. Likewise, we do not decide whether the mining or producing of one mineral will be treated as adverse to all minerals when a claim is made to all minerals. See H. Williams & C. Meyers, Oil & Gas Law § 224.4 (1981). We affirm the trial court’s holding that appellant, Emma Hurst, does not hold title to the coal and other minerals, other than oil and gas, by virtue of the 1967 decree, the State mineral tax deed or adverse possession.

In 1919 W. A. Hill purchased the dower interest of Rebecca Rogers Smith in the land. In 1920 he conveyed his interest in the surface “with all coal and mineral reserved, all right to mine, strip or enter any and all coal is reserved.” Although there is no testimony by or about those grantors or grantees, the Hill deeds are abstracted in a properly certified abstract of title. The abstract is prima facie evidence of the facts recited in it. Ark. Stat. Ann. § 71-111 (Repl. 1979). Thus the trial court was correct in ruling that appellee’s claim based upon the reservation must prevail as between these parties.

In oral argument appellant Emma Hurst pointed out that appellees, the alleged heirs of W. A. Hill, have failed to prove that he is dead or that they are his heirs. While such proof is lacking, it does not affect appellant’s title in this case. If W. A. Hill is in fact deceased, a determination of heirship may be had, but that issue is not now before us. All that is before us is whether the claim based on the reservation in W. A. Hill prevails as between appellant and appellees.

Appellant Emma Hurst also contends that the trial court erred in dismissing without prejudice the claim of appellees Rice to the coal. Since we affirm the ruling that appellant Emma Hurst owns no rights to the coal, the issue is moot to appellant. Appellees do not question the dismissal and therefore we do not address the point.

Affirmed as modified.

Purtle, J., not participating.


author: Steele Hays, Justice.

text:
    ARKANSAS LOUISIANA GAS COMPANY v. CENTRAL UTILITIES CONSTRUCTORS, INC.
    82-153
    643 S.W.2d 566
    Supreme Court of Arkansas
    Opinion delivered December 20, 1982

      Wallace, Hilburn, Clayton, Calhoon ér Forster, Ltd., by; David M. Fuqua, for appellant.

      Wright, Lindsey if Jennings, for appellee.
   Steele Hays, Justice.

By this appeal we are urged as a matter of first impression to adopt a rule of strict liability based on trespass, in place of liability based on fault, against one who has damaged an underground utility line. We decline, because it would be inappropriate to apply strict liability to the facts in this case.

Central Utility Constructors, Inc., appellee and defendant below, was awarded a contract to install a sanitary sewer system within the boundaries of Sewer Improvement District No. 144. Arkla and other utilities were consulted in the preparation of the construction plans to learn where utility lines were located within the district. Some of the information obtained from Arkla was inaccurate, but the plans accurately reflected where the lines were thought to be. During construction a number of breaks occurred in the gas lines and eventually Arkla sued Central, alleging some nineteen separate incidents of damage to its lines by reason of Central’s negligence. The complaint was later amended to add that Central committed trespass in violation of Arkla’s property rights in the lands occupied by its gas mains and therefore Central was liable irrespective of negligence.

The trial court declined to submit the issue of trespass to the jury, but did submit twelve of the nineteen counts (seven were non-suited) on the issue of negligence. The jury found that in six instances Central did not damage the lines and in four that Arkla’s negligence was equal to Central’s in causing the breaks. On the remaining two counts, the jury apportioned the negligence at 60% to Central and 40% to Arkla, returning a verdict of $439.20.

On appeal, Arkla contends the trial court erred in denying Arkla the right to try its case on the theory of trespass, arguing that although Central was not a trespasser to the easement, it committed a trespass to the chattels when it intentionally interfered with Arkla’s gas lines. To illustrate the argument, Arkla points to one of the instances of damage, this one occurring on April 19, 1979 at 4611 Foster Street in Little Rock. At that location Central encountered a two-inch cast-iron gas main running perpedicularly to the path of the sewer line. The plans showed the gas line to be in another location. Central employees called Arkla and were told “they didn’t have time to fool with it.” Central’s crew then stripped dirt from the gas line for some distance, attempting to gain enough slack to raise the line about six inches to permit the sewer to pass underneath. In so doing, the gas line snapped and damage resulted.

Arkla cites the Restatement of Torts, Second, § 217, and Cover v. Phillips Pipeline Co., 454 S.W.2d 507, 512 (Mo. 1970), for the rule that one who commits trespass to a chattel is subject to liability if the chattel is impaired as to its condition, quality or value. Other cases are cited supporting the same view, that liability for trespass to another’s property, both real and personal, exists irrespective of negligence: New York Steam Co. v. Foundation Co., 195 N.Y. 43, 87 N.E. 765 (1909); United Electric Light Co. v. Deliso Construction Co., 315 Mass. 313, 52 N.E.2d 553, 556 (1943); Mountain States Telephone and Telegraph Co. v. Vowell Construction Co., 161 Tex. 432, 341 S.W.2d 148 (1960); Wisconsin Telephone Co. v. Reynolds, 2 Wis.2d 649, 87 N.W.2d 285 (1958); Illinois Bell Telephone Co. v. Chas. Ind. Co., 3 Ill. App. 2d 258, 121 N.E.2d 600 (1954).

We readily concede the existence of the rule áppellant relies on and its support by respectable authority. Although it has ancient origins in the common law, in specific application it is the minority view, as a decided majority of jurisdictions hinge the right of recovery on negligence rather than on strict liability. Of the cases compiled at 73 ALR 3d 987, six jurisdictions apply the rule of strict liability for trespass, while at least twelve require fault as a basis of recovery.

In a fitting context, there is something to be said for both views, and we decline to commit to either position in this case because we find it unnecessary to do so. Whether we will want to apply strict liability arising from trespass in an appropriate case, we leave open, as there are distinguishing factual differences between the case before us and those relied upon in appellant’s brief where strict liability has been imposed.

Appellant leans heavily on Mountain States Telephone and Telegraph Co. v. Vowell Construction Co., supra. There, the Texas Supreme Court reversed the Court of Appeals and affirmed the trial court, where the telephone company had recovered a judgment against Vowell Construction Company for damaging its underground cable. The telephone company had buried its cable in the streets of El Paso under a franchise from the city which specified no particular depth. Some years later the city contracted, indirectly, with Vowell to pave and curb portions of the streets and in so doing Vowell’s scraper snagged and severed the cable. The Court held that molesting the cable was a violation of a property right which gave rise to a cause of action regardless of negligence. In supporting its position (and in contrast to the case before us) the Supreme Court made due note of the fact that neither the city nor Vowell made any request of the telephone company to check its lines and, if necessary, remove and relay them.

In Wisconsin Telephone Company v. Reynolds, supra, also relied on, the telephone company had installed its cable under an easement on private property and later received notice from the owner that he intended to have the grade of the land lowered. After the notice the telephone company had stakes placed on the land to indicate the location and depth of its cable. The defendant was engaged to perform the grading and the telephone company asked the shovel operator to notify it when the grading operation reached within ten feet of the cable — saying it would then send its crew to assist in the excavation and relocation of the cable. When the grading company reached the designated depth the telephone company was called and responded by saying its crew would be on hand shortly, instructing the grader not to go any closer to the cable. The shovel operator continued to remove earth in the vicinity of the cable and finally broke it. Relying on Restatement, 1 Torts, pp. 555 and 556, § 218, the Court applied strict liability for trespass, at the same time discussing elements of negligence by the operator, but noting that the telephone company’s request to the contractor to be notified when grading reached a certain level was reasonable under the circumstances. Obviously, there are material differences between the Reynolds case and the case before us. Accepting Central’s version of the facts, unlike Reynolds, Arkla declined to involve itself in the problem at 4611 Foster Street. We don’t suggest that that gave Central a right to deliberately damage the gas line, but we do believe that forced to choose between the rigid rule of strict liability and the more flexible rule of negligence the trial court was correct in permitting the jury to decide what was reasonable under the circumstances.

Similarly, in New York Steam Co. v. Foundation Co., supra; Illinois Telephone and Telegraph Co. v. Chas. Ind. Co., supra; Cover v. Phillips Pipeline Co., supra; and United Electric Light Co. v. Deliso Construction Co., supra, the utility company had no notice of the work, and consequently no opportunity to prevent the occurrence.

Appellant cites Pioneer Natural Gas Co. v. K & M Paving Co., 374 S.W.2d 214, 219 (Tex. 1963) and Southwestern Bell Telephone Co. v. Davis, 247 Ark. 381, 445 S.W.2d 505 (1969), but those cases have little value here, as they involve suits by contractors against utility companies for personal injury and damage to the contractors’ operator and machinery resulting from contact with buried utility lines.

We have drawn a careful distinction between the cases cited and the case before us because we prefer to leave open the question of liability for trespass. There may be cases where liability without negligence is appropriate, cases where a utility company bears no part of the responsibility for damage inflicted on its system by the work of someone else (Deliso and New York Steam are fitting examples.) But we believe the trial court was correct on the evidence here in submitting the case to the jury on the appropriate negligence instructions. It is significant that the jury found Arkla’s negligence to equal Central’s in four instances and to be 40% of the total negligence in two others. It would, we think, be entirely unfitting to adopt a rule of strict liability here.

The judgment is affirmed.


author: Per Curiam.

text:
    Patricia Ann BURRIS v. Dennis William BURRIS
    643 S.W.2d 570
    Supreme Court of Arkansas
    Opinion delivered December 20, 1982

      William B. Howard, for appellant.
    No response for appellee.
   Per Curiam.

Appellant has petitioned for reconsideration of her motion for rule on the clerk to lodge the transcript. The record was refused by the clerk, and appellant’s motion for a rule denied by us, because Notice of Appeal was not timely filed. Appellant urges that we treat the failure as an unavoidable casualty, which we have done on occasion when the record was unavoidably tendered out of time. However, the rule of unavoidable casualty applies to the lodging of the record on appeal and not to the failure to file Notice of Appeal, the latter being jurisdictional. City of Hot Springs v. McGeorge Contracting Company, Inc., 260 Ark. 636, 543 S.W.2d 475 (1976) and Ward v. Universal C.I.T. Credit Corp., 228 Ark. 275, 307 S.W.2d 73 (1957).


text:
    Clay Anthony FORD v. STATE of Arkansas
    CR 81-104
    644 S.W.2d 252
    Supreme Court of Arkansas
    Opinion delivered December 27, 1982

      Pat Goss, for petitioner.

      Steve Clark, Atty. Gen., by: Leslie M. Powell, Asst. Atty. Gen., for respondent.
   Per Curiam.

On December 20, 1982, we denied the petition of Clay Anthony Ford for relief pursuant to A.R.Cr.P. Rule 37.2 and for stay of execution, which is set for January 6, 1983. Petitioner attempted to file an amendment to his petitions on December 22,1982. His amendment was untimely because we had already ruled on the original petition. Furthermore, the proposed amendment does not assert any grounds which were not treated on direct appeal. The amendment, like the original petition, does not allege grounds upon which relief could be granted and is without merit.

Amended petition dismissed.

Petition for stay of execution denied.


text:
    Roy Chester HENDERSON v. STATE of Arkansas
    643 S.W.2d 107
    Supreme Court of Arkansas
    Opinion delivered December 20, 1982

      Appellant, pro se.

      Steve Clark, Atty. Gen., by: Alice Ann Burns, Asst. Atty. Gen., for appellee.
   Per Curiam.

Roy Chester Henderson was convicted in the Circuit Court of Columbia County of aggravated robbery and sentenced to a term of forty years imprisonment. At trial he was represented by retained counsel Wayne Jewell. No appeal was taken. Petitioner has now filed a pro se motion for belated appeal in which he asserts that he made known his desire to appeal to Mr. Jewell who did not take steps to perfect an appeal or otherwise advise him of how to perfect an appeal. He states that his representation of petitioner came to an end when he was convicted.

Criminal Procedure Rule 36.9 provides that all motions for belated appeal must originate in the Supreme Court. Gray v. State, 277 Ark. 442, 642 S.W.2d 306 (1982). A belated appeal may be granted for good cause even if no notice of appeal was filed. We have consistently held that the failure of counsel to perfect an appeal in a criminal case where the defendant desires an appeal amounts to a denial of the defendant’s right to effective assistance of counsel. Surridge v. State, 276 Ark. 596, 637 S.W.2d 597 (1982). Even though Criminal Procedure Rule 36.26 states that counsel, whether retained or appointed, shall continue to represent a convicted person throughout appeal unless permitted to withdraw by the trial court or this Court, we recognize that a convicted defendant may waive his right to appeal.

There are instances where it can be determined from the motion and affidavits whether the defendant waived appeal, but in the case before us, the allegations of petitioner and counsel are in direct conflict. Since it is apparent that there are questions of fact which cannot be resolved on affidavits, we must deny petitioner’s request for a belated appeal. Schuster v. State, 261 Ark. 730, 551 S.W.2d 210 (1977). The denial, however, is without prejudice to his applying to the trial court for a belated appeal evidentiary hearing on the question of whether, when sentence was imposed and judgment entered, he was informed of his right to appeal in accordance with A.R.Cr.P. Rule 36.4; and, if so, whether he voluntarily waived that right by his failure to communicate to counsel his desire to appeal. If the trial court finds that petitioner was properly informed of his appeal right, it shall be incumbent on petitioner to show that he made known to counsel his desire to appeal.

In the event a hearing is held, the trial court shall make written findings of fact and conclusions of law. The petitioner may appeal from an adverse ruling. If the ruling is favorable, he may file the findings and conclusions and the record of the hearing in support of a second motion for belated appeal in this Court.

Purtle, J., not participating.


text:
    Leonard E. RIDENHOUR v. STATE of Arkansas
    643 S.W.2d 570
    Supreme Court of Arkansas
    Opinion delivered December 20, 1982

      Wayland A. Parker, for appellant.

      Steve Clark, Atty. Gen., by: Alice Ann Burns, Asst. Atty. Gen., for appellee.
   Per Curiam.

Appellant, Leonard E. Ridenhour, by his attorney, has filed for a rule on the clerk.

His attorney, Wayland A. Parker, admits that the record was tendered late due to a mistake on his part.

We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See our Per Curiam opinion dated February 5,1979, In Re: Belated Appeals in Criminal Cases, 265 Ark. 964.

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


author: Richard B. Adkisson, Chief Justice. Darrell Hickman, Justice,

text:
    NEWARK SCHOOL DISTRICT et al v. CORD-CHARLOTTE SCHOOL DISTRICT #8 et al
    82-157
    644 S.W.2d 110
    Supreme Court of Arkansas
    Opinion delivered January 10, 1983

      /. Winston Bryant, for appellants.

      Bill W. Bristow, P.A., for appellees.
   Richard B. Adkisson, Chief Justice.

The Independence County Chancery Court: granted the request of Cord-Charlotte School District for injunctive relief, holding that both the sending and receiving district must approve of student transfers, regardless of claim for state aid, from which Newark School District appeals; denied Cord-Charlotte’s request for damages, holding that the remedy in this state for the correction of improper student attendance is by injunctive relief only, from which Cord-Charlotte cross appeals. We affirm on direct and cross appeal.

The dispute between the two adjoining districts began in 1979 when Newark allowed students residing in Cord-Charlotte to attend its school. Cord-Charlotte filed suit in chancery for injunctive relief and damages. Before the chancery court could decide the case, the Independence County Board of Education and Newark approved the transfer of the students. The chancery court then held the action of the school board constituted a legal transfer and could only be challenged by appeal to circuit court, but reserved a ruling on the issue of damages. The circuit court likewise approved the legality of the transfer, which was appealed to this court. We reversed, holding that in the case of adjoining districts both the receiving district, Newark, and the sending district, Cord-Charlotte, must approve the transfer. Cord-Charlotte Sch. Dist. No. 8 v. Independence Co. Educ. Bd., 271 Ark. 217, 608 S.W.2d 12 (1980).

While the case was pending on appeal to this court, Cord-Charlotte and Newark were able to reach an agreement whereby both districts consented to the students attending Newark for the 1980-81 school years. Efforts to renew this agreement for the 1981-82 school year failed; nevertheless, Newark again accepted students from Cord-Charlotte for the 1981-82 school year.

Thereupon, Cord-Charlotte filed suit in chancery court requesting Newark be enjoined from accepting the students. Cord-Charlotte also asked for damages for the 1981-82 school year and asked the court to revive the 1979 action in which it reserved ruling on damages for the 1979-80 school year.

Ark. Stat. Ann. § 80-1501 (Supp. 1981) sets out the place of enrollment for children attending public school:

The public schools of any school district in this State shall be open and free through completion of the secondary program, to all persons between the ages of six (6) and twenty-one (21) years who are domiciled in the district or, in the case of minors, whose parents or legal guardians are domiciled in the district, or to all persons between these ages who have been legally transferred to the district for education purposes.

Ark. Stat. Ann. § 80-1528 (Supp. 1981) allows children to transfer from one school district to another school district if the board of directors of both districts agree:

Upon the petition of any person residing in any particular school district (resident district), to transfer the children or wards of such person to another school district (receiving district), the Board of Directors of the resident district may enter into an agreement with the Board of Directors of another school district transferring the children to the receiving district for purposes of education. . . . After the petition has been approved by the Board of Directors of the resident district and the Board of Directors of the receiving district, copies of such written consent shall be filed in the office of the County Clerk, with the person filing the petition and in the administrative office of the respective school districts. This legal transfer of children from one school district to another places the responsibility for the education of the children on the receiving district and permits the receiving district to count these children in average daily membership for state aid purposes. . . .

Newark argues, however, that as long as it does not claim state aid money, it can accept students from Cord-Charlotte even though there is no “mutual agreement” between the two districts. In making this argument Newark attempts to distinguish between a “legal transfer,” where the receiving district claims state aid money, and a mere “transfer” of students where, as here, the receiving district makes no claim to state money. Under Newarks’ theory, the rule of Cord-Charlotte, supra, which is that both districts must consent to a transfer, applies only when state aid is claimed. However, these contentions ignore the fact that without a legal transfer neither Cord-Charlotte nor Newark can claim state funds for the students. As this court noted in Cord-Charlotte, supra, a mass transfer from one district to another “would have a ruinous effect upon the district’s finances and, thus, adversely affect the quality of the educational program for the balance of the students in the district.” Not only does an economic loss occur to Cord-Charlotte due to the reduction in the number of their students, but also no economic gain occurs to Newark since it receives no state money for these students. In fact, Newark will expend funds to educate the Cord-Charlotte students; funds which would otherwise presumably be spent on Newark students. Therefore, we adhere to our rule that there must be a legal transfer of students, whereby both districts consent to the transfer, even if the receiving district is not attempting to claim state money. For these reasons, the trial court’s decision to enjoin Newark from accepting the students is affirmed. See Bell v. Howard County Training Sch., 236 Ark. 742, 368 S.W.2d 266 (1963) and Gillham Sch. Dist. No. 47 v. Millard, 203 Ark. 1121, 160 S.W.2d 215 (1942), where this court either upheld or directed that the nonresident students be enjoined from attending a certain school district.

Cord-Charlotte argues on cross appeal that the trial court erred in failing to award them $16,000 in damages against Newark arising from the misapplication of state funds for the 1979-80 school year. Cord-Charlotte also claims damages against Newark for a sum representing the amount which they would have received from the state had the students attended Cord-Charlotte. Damages, in either situation, are inappropriate as reflected by our cases which state:

This court is committed to the doctrine that school taxes erroneously levied and distributed, pursuant to the levy, to a school district and consumed in educational purposes, cannot be recovered by the school district rightfully entitled thereto. The district to which the taxes rightfully belonged should have proceeded by injunction or other proper remedy to prevent the wrongful assessment, levy and distribution of taxes, or else have brought suit for the recovery of such taxes before they were expended for educational purposes by the district wrongfully receiving them.

McCrory Special Sch. Dist. v. Rural Special Sch. Dist. No. 22, 181 Ark. 345, 26 S.W.2d 570 (1930); Lepanto Sch. Dist. v. Marked Tree Sch. Dist., 173 Ark. 82, 291 S.W. 1006 (1927). Here, the trial court found that Newark had actually expended the monies received from the state for the education of the Cord-Charlotte students for the 1979-80 school year. Also, Cord-Charlotte has not joined in this action the agency disbursing the funds. The proper remedy by one school district against another for illegal student enrollment is by injunction, not by a suit for damages.

Affirmed.

Hickman, J., dissents.

Darrell Hickman, Justice,

dissenting. The issue in this case is narrow, but the choices are not good. The issue is whether parents of children in public schools may be prevented from sending their children to a school in another district when the accepting school district will not attempt to use the students to collect state aid. The majority has held they may not because to do so would deprive the first district of state aid it would otherwise receive.

I would permit it simply because it is not forbidden by law and it is permitted by policy of the State Department of Education. I recognize that beneath this issue lies the question of what to do when a school district fails to provide an adequate or minimum opportunity for education; or possibly whether a small district, struggling to offer an adequate curriculum should lose students who simply want to attend school in a flush financial district. These, and perhaps other underlying considerations, exist in the two cases we have had between the Cord-Charlotte District and the Newark District.

The problem of transferring students from one public district to another is not one simply or easily solved. When first confronted with the problem we probably made the wrong decision. In Bell v. Howard County Training School, 236 Ark. 742, 368 S.W.2d 266 (1963), we held both the sending and receiving district had to consent to the transfer, although the statute which governed the situation did not clearly require that. Later cases reinforced our decision. But those cases were, as was the first Cord-Charlotte case, concerning a receiving district claiming the student for purposes of receiving turnback money from the state. Cord-Charlotte School District No. 8 v. Independence County Board of Education, 271 Ark. 217, 608 S.W.2d 12 (1980). Newark does not seek to claim state aid for these students. They will merely accept them. According to the testimony of Truett Goatcher, a State Department of Education employee, that procedure is not prohibited by the Education Department regulations. Even so, the chancellor found that merely because school districts must provide a public school education to resident patrons (Ark. Stat. Ann. § 80-1501 [Supp. 1981]), it follows that parents must send their children to that school and no other.

The majority relies on our first Cord-Charlotte case, and Ark. Stat. Ann. § 80-1528 (Supp. 1981), but those relate to the situation where the receiving district claims the students for purposes of state aid.

This dispute, whether to accept these students, is a matter between the Newark School District and its patrons. Whether it can do so in fairness, without charge or for what charge, is not before us. (The nonresidents’ ad valorem taxes would, of course, continue to go to Cord-Charlotte). Furthermore, it is ignored that the parents who can afford to send their children to private or parochial schools will do so and Cord-Charlotte will still lose the money for those students; only those who cannot afford that luxury or choice will be forced to accept an educational opportunity they choose to reject.

The majority decision not only imposes its judicial will on these parents, it protects and fosters an institution that may well not deserve protection and preservation. It is common knowledge some small districts in Arkansas are not providing a minimum educational opportunity. I do not imply that Cord-Charlotte is one of those districts, but it may well be — there is no evidence in that regard and that question is not directly involved. But the majority decision will not only prolong the existence of such districts, it may also promote mediocre public education.

The State Department of Education has said it would not stop the transfer and neither would I.


author: George Rose Smith, Justice.

text:
    Charles Kirk HOWARD v. COUNTY COURT OF CRAIGHEAD COUNTY, Arkansas, and Roy C. BEARDEN, Judge
    82-170
    644 S.W.2d 256
    Supreme Court of Arkansas
    Opinion delivered January 10, 1983

      Barrett, Wheatley, Smith ir Deacon, for appellant.

      Dennis Zolper, for appellees.
   George Rose Smith, Justice.

This is the second bastardy proceeding filed in the county court by Janine Sipa, a resident of Jonesboro, against Charles Kirk Howard, a resident of Crestview, Florida. The first proceeding was brought under the Uniform Interstate and International Procedure Act, Ark. Stat. Ann., Title 27, Ch. 25 (Repl. 1979), and was dismissed because the fathering of an illegitimate child is not a tortious act within the substantive jurisdiction contemplated by that act. Howard v. County Court of Craighead County, 272 Ark. 205, 613 S.W.2d 386 (1981).

The second complaint was then filed in the county court under Act 119 of 1963, which provides that “[a]ny cause of acton arising out of acts done in this State by an individual in this State . . . may be sued upon in this State, although the defendant has left this State,” with a provision for service of process on the Secretary of State. Ark. Stat. Ann. § 27-339.1 (Repl. 1979), construed in Bunker v. Bunker, 261 Ark. 851, 552 S. W.2d 641 (1977), noted in 31 Ark. L. Rev. 541 (1977). Howard’s motion to dismiss for want of personal jurisdiction was denied. This appeal is from the ensuing refusal of the circuit court to prohibit the maintenance of the proceeding in the county court.

Our decision turns upon the sufficiency of the mother’s complaint in the county court. When an issue of jurisdiction arises under a broad long-arm statute such as Section 27-339.1, “the plaintiff must first establish the validity of his substantive cause of action.” Leflar, American Conflicts Law, p. 68 (3d ed., 1977). The complaint must allege facts bringing the case within the long-arm statute and must state a prima facie cause of action. See Texair Flyers v. District Court, 180 Colo. 432, 506 P.2d 367 (1973); Wuertz v. Garvey, 287 Minn. 353, 178 N.W.2d 630 (1970); United States Dental Inst. v. American Assn. of Orthodontists, 396 F. Supp. 565 (D.C. Ill., 1975). Conclusory allegations do not suffice. Nacci v. Volkswagen of America, 297 A.2d 638 (Del. Super. Ct., 1972).

In the present case the complaint alleges that the mother and her child reside in Jonesboro, that at the time of the child’s birth in 1969 the defendant was a resident of Jonesboro, and that the defendant “is the father of this child.” The complaint is fatally deficient in its failure to allege at least that the act of coition occurred in Arkansas, such an allegation being essential to bring the proceeding within Act 119 of 1963, encompassing causes of action “arising out of acts done in this State.” Here no such act is alleged. The county court should have quashed the service, a new service of process being required when the complaint is amended to state a cause of action for the first time. Arbaugh v. West, 127 Ark. 98, 192 S.W. 171 (1917).

The appellant’s plea of res judicata is without merit, for in the first case we merely held, without reaching the merits, that the cause of action was not within the Uniform Act. Nor is there any merit in the plea of limitations as a complete bar to the proceeding. Dozier v. Veasley, 272 Ark. 210, 613 S.W.2d93 (1981).

Reversed and remanded for further proceedings.


author: George Rose Smith, Justice. Richard B. Adkisson, Chief Justice,

text:
    Theodore JONES et al v. Steve CLARK, Attorney General of the State of Arkansas
    82-193
    644 S.W.2d 257
    Supreme Court of Arkansas
    Opinion delivered January 10, 1983

      Henry Clay Moore, for appellants.

      W. Russell Meeks, III, for appellee.
   George Rose Smith, Justice.

This suit was brought by the appellants, as citizens and taxpayers, to obtain a declaratory judgment holding that the appellee, Steve Clark, is in violation of Article 6, Section 22, of the Constitution of Arkansas as long as he serves as attorney general and simultaneously holds a commission as a captain in the United States Army Reserve. (By an amended pleading the plaintiffs sought alternative relief in quo warranto, but we need not explore that avenue.) The appellee raises assorted defenses to the suit: That the plaintiffs lacked standing to sue, that a declaratory judgment is not appropriate, that there is in fact no violation of Article 6, Section 22, and that if there is such a violation then Section 22 is void under two clauses of the United States Constitution.

The pertinent facts were established at a brief trial. In 1968 Mr. Clark was appointed by the President of the United States as “a Reserve Commissioned Officer in the Army of the United States.” Mr. Clark then went to law school. After that he served several tours of active duty as a reserve officer before entering the practice of law in 1976. As a reserve officer he still attends a monthly drill assembly and a two-week period of summer training, for which he is paid by the United States. He was elected attorney general in 1978 and was serving in his second term when this case was tried. He has since been elected to a third term.

The circuit judge recognized the plaintiffs’ standing to bring this suit, but he held that, procedurally, a declaratory judgment would not settle the controversy and, substantively, no violation of Article 6, Section 22, exists. We disagree with both his conclusions.

Procedurally, the taxpayers’ complaint asserts that it is filed under Article 16, Section 13, of our constitution, which provides that any citizen may bring suit to protect the public against the enforcement of illegal exactions. In a similar situation involving dual office-holding we decided that under this constitutional provision complaining taxpayers are entitled to injunctive relief against the illegal spending of public funds. Starnes v. Sadler, 237 Ark. 325, 372 S.W.2d 585 (1963). That suit for an injunction was properly in the chancery court, but the constitution does not specify the court in which the taxpayer’s cause of action may be asserted nor the form of action that is available to him. When, as here, there will be an established illegal exaction if the public officer persists in a constitutional violation, an action in the circuit court for a declaratory judgment is well chosen. A declaratory judgment is “a remedy peculiarly appropriate to controversies between private citizens and public officials about the meaning of statutes.” Culp v. Scurlock, 225 Ark. 749, 284 S.W.2d 851 (1955). That statement applies equally to controversies about the interpretation of the constitution. Moreover, as we went on to say in Culp: “Since the effect of a declaratory judgment in this case will be to terminate an actual controversy in a matter of public interest, it is manifestly desirable that the case be decided on its merits.” Here too that is true.

Substantively, the language of Article 6, Section 22, is too simple, too clear, too pointed, to be misunderstood:

The Treasurer of State, Secretary of State, Auditor ■ of State and Attorney General shall perform such duties as may be prescribed by law; they shall not hold any . other office or commission, civil or military, in this State or under any State, or the United States, or any other power, at one and the same time ....

Here Mr. Clark seeks to hold at one and the same time the office of attorney general and a military commission under the United States. There could be no more clear-cut violation of the constitutional prohibition, if it stood alone. There must also be considered, however, the language of Article 19, Section 26:

Militia officers, officers of the public schools and notaries may be elected to fill any executive or judicial office.

The question is, does the reference to “militia officers” include a United States army reserve officer, who is appointed by the president and is not subject to any control by the State of Arkansas? The answer must be, No. The first significant reference to the militia is in the United States Constitution, Article 1, Section 8, which declares that Congress shall have the power:

To provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers .... [Our italics.]

By the explicit language of the Constitution the president cannot appoint an officer of the militia. Mr. Clark’s presidential appointment therefore did not make him an officer of the militia.

Additionally, Article 6, Section 6, of our own constitution makes the governor the commander-in-chief of the state’s military forces, except when in federal service. Article 11, Section 1, defines the militia as consisting of all able-bodied male residents of the state between the ages of 18 and 45. The implementing statutes distinguish between the organized militia (the National Guard) and the unorganized militia (the other specified resident males). Ark. Stat. Ann. § 11-102 (Repl. 1976). Neither category embraces the United States army reserve. Thus both the United States Constitution and the Arkansas Constitution compel the conclusion that Mr. Clark is not a militia officer as contemplated by Article 19, Section 26. (We do not reach the appellants’ argument that the statement in that section that militia officers “may be elected” to any executive or judicial office means that they as candidates may be elected but cannot serve without relinquishing their office in the militia.)

Finally, there is no substance to the appellee’s argument that Section 22 of Article 6 violates the United States Constitution. Since the militia is ordinarily an arm of the state government, the state may without any denial of the equal protection of the laws permit a militia officer to seek or hold an elective office while denying that privilege to an officer whose allegience is to some other sovereign. Such a classification is manifestly reasonable. Moreover, Mr. Clark voluntarily sought the office of attorney general, as defined by the constitution, and is not in a position to accept the benefits of the office and at the same time disclaim its restrictions. See Johnson v. Darnell, 220 Ark. 625, 249 S. W.2d 5 (1952). The argument that the limitation upon the four constitutional officers impairs the nation’s ability to wage war is not of sufficient merit to call for discussion.

This opinion will serve as a judgment declaring the law. The trial court’s judgment is reversed, and the cause is remanded for any further proceedings that may be appropriate if the declared violation of the constitution continues.

Reversed and remanded.

Adkisson, C.J., dissents.

Richard B. Adkisson, Chief Justice,

dissenting. The majority has interpreted Article 6, Section 22 of the Arkansas Constitution as prohibiting a reserve officer from serving as attorney general, even though Article 19, Section 26 of our constitution expressly allows a “militia officer”, (defined by Ark. Stat. Ann. § 11-102 [Repl. 1976] as a national guardsman) to hold that same office. The majority has erroneously concluded, without discussion, that such is not a violation of the equal protection clause of the United States Constitution. I cannot agree with that conclusion since both a reserve officer and a national guardsman are citizen soldiers and, therefore, within the meaning of “militia officer” under Article 19, Section 26.

The equal protection clause requires that persons in similar circumstances be treated alike. Hartford Steam Boiler Inspection & Ins. Co. v. Harrison, 301 U.S. 459(1937). There is a “federal constitutional right to be considered for public service without the burden of invidiously discriminatory disqualifications.” Turner v. Fouche, 396 U.S. 346 (1970). The privilege of holding public office cannot be denied to some while extended to others on the basis of distinctions that violate federal constitutional guarantees. Turner v. Fouche, supra.

In refusing to accord a reserve officer the same right to serve as attorney general as a national guardsman, the majority totally ignores the fact that the functions and purposes of the reserves are consistent with those of the National Guard. Both are made up of citizen soldiers, trained to military duty, who may be called out in certain cases but who may not be kept on service like standing armies. Cf. United States v. Miller, 307 U.S. 174(1938). Both are composed of men ordinarily occupied in the pursuits of civil life but who can be called into the field for temporary military service when the exigencies of the country require it. Cf. State Ex. rel. McGaughey v. Grayston, 349 Mo. 700, 163 S.W.2d 335 (1942). Service in the National Guard and the reserves can be distinguished from service in the regular army which denotes professional permanent soldiery; i.e., those who have chosen the military as a career. Cf. Critchlow v. Monson, 102 Utah 378, 131 P.2d 794 (1942). To treat the two differently clearly violates the equal protection clause of the United States Constitution.

The majority attempts to justify its disparate treatment of the two by classifying the National Guard as state and the reserves as federal and cites various constitutional provisions in an effort to highlight the distinction. But the fact of the matter is that the National Guard is so intertwined with the federal defense system that any alleged federal/state distinction is without merit. Article 1, Section 8 of the United States Constitution and Ark. Stat. Ann. § 11-204 (Repl. 1976) provide that the National Guard shall be organized, equipped, armed, disciplined, governed, administered and trained as prescribed by the laws of the United States; the pay is the same for both under Ark. Stat. Ann. § 11-901 (Repl. 1976). Both national guardsmen and the reserve branches of the armed forces are allowed two weeks with pay from state employment for annual training in addition to regular vacation time. Ark. Stat. Ann. § 12-2370 (Repl. 1979).

Furthermore, Article 1, Section 8 of the United States Constitution expressly provides that the militia (National Guard) “may be employed in the service of the United States . . . ” And, Article 6, Section 6 of our own constitution expressly recognizes that the militia can be in federal service. Therefore, the majority’s attempted distinction between a militiaman with supposed state loyalties and a reserve officer “whose allegience is to some other sovereign” is unrealistic, particularly where both take an oath to uphold the Constitution of the United States.

The equal protection clause of the 14th amendment to the United States Constitution requires that Steve Clark, as a reserve officer, be afforded the same right to serve as attorney general as would an officer of the National Guard.


author: Frank Holt, Justice.

text:
    Kenneth LOVELESS et ux v. Theresa Gale MAY
    82-179
    644 S.W.2d 261
    Supreme Court of Arkansas
    Opinion delivered January 10, 1983

      Haley ir Clay comb, by: Robert Stark Ligón, for appellants.

      Gibson ir Gibson, P.A., by: R. Bynum Gibson, Jr., for appellee.
   Frank Holt, Justice.

The appellants seek to adopt two and a half year old Jennifer Neighbors, the natural child of the appellee, of whom they have custody pursuant to a juvenile court order. The issue presented to the probate court was whether the consent of the appellee should be dispensed with pursuant to Ark. Stat. Ann. § 56-207 (a) (2) (Supp. 1981), which provides:

Consent to adoption is not required of: a parent of a child in the custody of another, if the parent for a period of at least one [1] year has failed significantly without justifiable cause (i) to communicate with the child or ... to provide for the care and support of the child as required by law or judicial decree;

The probate court held that the appellants failed to show by clear and convincing proof that the appellee had, unjustifiably, for a period of one year failed to communicate with or support Jennifer Neighbors, and therefore, her consent to adoption could not be dispensed with. The natural father of Jennifer is deceased. Appellants first contend these two findings are erroneous. We find no merit in these or other contentions and affirm. We first note that findings of fact by the trial court shall not be set aside unless clearly erroneous (clearly against the preponderance of the evidence) and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses. ARCP Rule 52.

Appellee was twenty-two years old when Jennifer was born on July 9,1979. Jennifer lived with the appellee for the first four months of her life and then with the appellants for four months before being returned to her mother for two months. In May 1980 the appellee went to Florida to seek employment, leaving Jennifer with baby sitters. On May 23, 1980, the juvenile court entered a temporary order and on July 2, 1980, a permanent order declaring Jennifer to be a dependent/neglected child within the meaning of Ark. Stat. Ann. § 45-403 (Repl. 1977). The court placed her in the legal custody of the appellants, who are relatives of the appellee. Jennifer has resided with the appellants continuously since May 23, 1980. In February 1981, the appellee petitioned the juvenile court for visitation rights, which were awarded. She exercised her visitation rights on five or six occasions between February and May, 1981, when she returned to Florida to find employment. She also saw Jennifer when she returned for a family reunion on July 4, 1981. The only support provided for Jennifer by the appellee since May 23, 1980, consisted of Christmas gifts in 1980 and presents on July 4, 1981. The appellee testified that she could find no employment locally and had no funds. Her husband, Jennifer’s father, abandoned them at Jennifer’s birth. The only evidence of her employment between June 1, 1980, and June 1,1981, is that she was employed at a nursing home for three months during the summer of 1980. There was no testimony with respect to her salary or expenses during this time. There was no testimony that she was employed at any other time during the year from June 1,1980, to June 1,1981, the time during which the appellants argue she failed significantly to provide for her daughter’s care. Furthermore, it appears undisputed that all parties understood the juvenile court order placed upon the appellants the duty of providing for Jennifer’s care and support. The appellants testified that they never expected any contributions toward Jennifer’s support from the appellee. This was in accord with appellee’s understanding. The appellee testified that she sought advice from the juvenile court judge and from a legal aid lawyer as to what she should do to regain custody of her infant daughter. She was told to stabilize her homelife. She has secured a divorce from Jennifer’s father, now deceased, and has remarried. She was not advised that she should contribute to Jennifer’s financial support.

Unlike Pender v. McKee, 266 Ark. 18, 582 S.W.2d 929 (1979), relied upon by the appellants, here appellee was led to believe, in view of the previous court order and advice given to her, that she was not expected to furnish support for Jennifer. In fact, appellants acknowledge that they understood Jennifer’s support was their responsibility. Parties seeking to adopt a child without the consent of the natural parents bear the heavy burden of proving by clear and convincing evidence facts which justify dispensing with the required consent of the natural parents. Harper v. Caskin, 265 Ark. 558, 580 S.W.2d 176 (1979); Henson v. Money, 273 Ark. 203, 617 S.W.2d367 (1981). Here, we cannot say that the trial court clearly erred in holding that the appellants had failed to meet their burden of proving by clear and convincing evidence that no justifiable cause existed for the. appellee’s asserted failure to communicate with or provide support for her infant child.

The appellants argue that the probate court erred in refusing to grant a new trial on the ground that Ark. Stat. Ann. § 56-214 (c) (Supp. 1981) requires that the issues of parental consent and the best interest of the child be adjudicated simultaneously; that the probate court erred in failing to grant a new trial on the ground of newly discovered evidence relevant to the issue of the best interest of the child; and that the probate court erred in bifurcating the hearing and failing to receive evidence on the issue of whether the adoption would be in the best interest of the child. We cannot agree. At the beginning of the hearing, the probate judge proposed to conduct a bifurcated hearing whereby the issue of whether the appellee’s consent could be dispensed with would be heard immediately. If that issue were decided in the appellants’ favor, then the issue of whether the adoption would be in the best interest of the child would be adjudicated at a later date. The attorneys for both parties agreed to this procedure. Since the attorney for the appellants agreed to the procedure without objection, these points are not properly preserved for appeal and will not be considered. Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980).

Appellants next insist that the trial court erred in refusing to consider the issue of whether the appellee’s parental rights should be terminated pursuant to Ark. Stat. Ann. § 56-220 (c) (2) and (c) (3) (Supp. 1981) and in refusing to admit evidence on this issue. It does not appear that relief pursuant to § 56-220 was sought in the appellants’ petition for adoption, nor does it appear that any evidence on this issue was offered. As indicated, counsel for the appellant agreed to proceed solely on the issue of whether the consent of the appellee could be dispensed with pursuant to § 56-207 (a) (2). Since this issue was not raised in the probate court, it will not be considered on appeal. Wicks v. State, supra.

Appellants’ final point is that the probate court erred in neither having the individual to be adopted present at the hearing nor excusing her presence as required by Ark. Stat. Ann. § 56-214 (a) (Supp. 1981). The record is silent as to whether the child sought to be adopted was present. Here, unlike Nelson v. Shelly, 268 Ark. 760, 600 S.W.2d 411 (Ark. App. 1980), upon which the appellants rely, the parties standing in loco parentis and having custody of the child were present, and it is they who now complain that the required presence of the child was not obtained. In these circumstances and in the absence of a clear showing that the statute was not complied with, we will indulge in the presumption that the court below had jurisdiction and acted correctly. See Wright v. Midland Valley Rd. Co., 111 Ark. 196, 163 S.W. 1151 (1914); Davie, Executrix v. Smoot, 202 Ark. 294, 150 S.W.2d 50 (1941); and Black v. Clary, 235 Ark. 1001, 363 S.W.2d 528 (1963).

Affirmed.