author: Darrell Hickman, Justice. John A. Fogleman, Justice,

text:
    Helen BOTTENFIELD v. Thomas WOOD, Larry A. (Dank) MILLER and Marion MILLER
    78-78
    573 S.W. 2d 307
    Opinion delivered November 6, 1978
    (In Banc)
    [Rehearing denied December 18, 1978.]

      McKay, Chandler & Choate, for appellant.

      Anderson & Crumpler, for appellees.
   Darrell Hickman, Justice.

This appeal is from a decision of the Columbia Chancery Court regarding the ownership of about thirty-three acres in Columbia County. Helen Bottenfield, the appellant, claimed that a deed to this property required the appellees to hold the land in trust to be divided equally between all the heirs of Emma Payne Miller, the deceased mother of Helen Bottenfield.

The chancellor found that the trustees held title to the property in trust for the heirs of Emma Miller, to the exclusion of Mary Moses, a daughter. The court considered the value of sixty acres in Louisiana (which Emma Miller had conveyed in 1971 to three of her children, including Helen Bottenfield) and the value of the property in Arkansas, and arrived at a finding that Helen Bottenfield should have an undivided one-thirty-second interest in the Arkansas property, which would be a just and fair interest considering all the evidence. Mrs. Bottenfield contended that she was entitled to a one-ninth interest.

Mrs. Bottenfield appeals alleging three errors: the court lacked the legal authority to reduce the quantity of appellant’s beneficial interest; the court failed to give Full Faith and Credit to a Louisiana decree; and, the chancellor’s decision ignores the doctrine of res judicata.

Emma Payne Miller executed a will in May of 1968, leaving all her property to seven surviving children and one share to two children of a deceased son. The will specifically excluded her daughter, Mary Miller Moses, from sharing in any of the real property. Shortly thereafter, in July of 1968, she executed a quitclaim deed to about thirty-three acres to Thomas Wood, Larry Miller and Marion Miller as “Trustees”. Wood was a son-in-law, Larry Miller was a son, and Marion Miller was a grandson. The word “Trustees” was the extent of the description of the trust.

After Mrs. Miller died and executors were appointed for her estate, they filed suit in Louisiana to set aside the Louisiana deed alleging that it was executed without consideration. The deed recited a consideration of one hundred dollars. The probate court in Louisiana ruled that there was adequate consideration and quieted title in that land to the three daughters.

This suit in Arkansas originated when the three “trustees” filed suit for specific performance of a contract for sale of the land and to prevent Helen Bottenfield from claiming an interest in any of the Arkansas property. This claim was dismissed and the case proceeded to trial on Bottenfield’s counter-claim praying that title be quieted to her in an undivided one-ninth interest.

It was Mrs. Bottenfield’s burden, of course, to prove the existence of a trust. Kansas City Life Insurance Co. v. Taylor, 184 Ark. 772, 43 S.W. 2d 372 (1931).

A good deal of oral testimony was offered to prove the trust, but it was conflicting, and not clear and convincing as to the existence of the trust or its purposes. The quitclaim deed was executed in a lawyer’s office in Magnolia, Arkansas, and the witnesses who were present when the deed was signed gave varying testimony regarding what transpired.

Fay Miller Wood, the wife of Thomas Wood, one of the “trustees”, who was present when the deed was signed, testified that it was her mother’s intention that the Arkansas property be held in trust to be distributed according to her will; that is, to evenly divide the property but exclude the daughter, Mary Moses, who had received property during the lifetime of her mother. She said there was no distinction made between the Louisiana and Arkansas land. At one point she testified that it was her mother’s intention for the three grantees to make up their own minds how the property was to be distributed.

Marion Miller, listed as a “trustee”, testified that he was present when the deed was executed. He said that his grandmother wanted to get the property out of her name so she wouldn’t be bothered by it. He said that “she wanted to get it out of her name so she could live in peace, or something like that.” There was evidence Mrs. Miller was being pressured to favor one or more of her children by distributing her property before her death. He went on to state that he asked the lawyer in his grandmother’s presence to explain to her if she knew what she was signing; that if she signed it, those getting the property could sell it the next day. He said he was given no instructions whatsoever about the land.

Thomas Wood, one of the “trustees” who was not present when the deed was signed, said “I figured Mrs. Miller figured that I would give each one of the children a fair shake in the settlement”. He felt that since Mrs. Bottenfield had received an interest in the Louisiana land she was not entitled to any of the Arkansas land.

Larry Miller, another “trustee” who was not present when the deed was signed, said that he thought his mother’s purpose was to get the property out of her name so she wouldn’t have to worry about it. He went on to state that he never received any instructions.

Mrs. Bottenfield was not present when the deed was executed.

The so-called trust contained in the deed fails as an express trust because it violates the statute of frauds. Ark. Stat. Ann. § 38-106 (Repl. 1962); Restatement (Second) of Trusts, § 40 (1959). Parole evidence is not admissible to prove an express trust. Hawkins v. Scanlon, 212 Ark. 180, 206 S.W. 2d 179 (1947). (See, also, Ark. Stat. Ann. § 50-412 [Repl. 1971] on the effect of such language in an instrument when title is passed to a third party.)

The obvious question then is: Did the so-called trustees take the property in fee, or was the evidence sufficient to create a resulting or constructive trust, which may be proved by parole evidence? Ark. Stat. Ann. § 38-107 (Repl. 1962); Harbour v. Harbour, 207 Ark. 551, 181 S.W. 2d 805 (1944).

We find no evidence to support a finding that the trust would be a resulting trust. A resulting trust arises in one of the following situations: where a private or charitable trust fails in whole or in part; where a private or charitable trust is fully performed without exhausting the trust estate; and, where property is purchased and the purchase price is paid by one person and at his direction the vendor transfers the property to another person. Restatement (Second) of Trusts, § 404 (1959).

The evidence is insufficient to support a finding that there was a constructive trust. There must be clear, cogent and convincing evidence of fraud, or a confidential relationship to establish a constructive trust. Robertson v. Robertson, 229 Ark. 649, 317 S.W. 2d 272 (1958).

There was no such evidence in this case. There was no allegation of fraud or false inducement on behalf of any of the grantees. In fact, the evidence is to the contrary.

One grantee, the only one present when the deed was signed, said he wanted his grandmother to know that he, a grantee, understood the property could be disposed of the next day. The other two grantees, not present when the deed was signed, received no instructions, and had to surmise her intent. One arrived at his understanding of his duty by “figuring what she figured.”

Simply because the grantees were related to Mrs. Miller could not, alone, create a confidential relationship imposing a constructive trust on the land. See Jones v. Gachot, 217 Ark. 462, 230 S.W. 2d 937 (1950).

Consequently, we have a situation where the trust fails, is void and the grantees may dispose of the property in fee as they see fit. The grantees’ duty, if any such duty exists by virtue of the deed, would be moral and not legal. Bogert, The Law of Trusts and Trustees, § 69 (2d ed. 1965).

The trustees did not elect to dispose of the property in fee. They elected not to appeal the decision of the chancellor awarding Mrs. Bottenfield a one-thirty-second interest in the Arkansas property.

The net result of the appellees’ failure to appeal is that the decision of the chancellor will be affirmed. The appellant, Bottenfield, for the reasons stated herein, has failed to make a case that a trust existed and, therefore, her appeal must fail.

The arguments of the appellant regarding res judicata and Full Faith and Credit are irrelevant. The appellant’s entire case depends on whether or not she could prove, as the law requires, that the trust existed. Harbour v. Harbour, supra. She could not prove an express trust by parol; there is insufficient evidence to support a finding that there was a resulting or constructive trust; and, consequently, her claim must be denied.

Affirmed.

Fogleman, J., dissents.

John A. Fogleman, Justice,

dissenting. The defense to Helen Bottenfield’s counterclaim was that she had secured, for an inadequate consideration, an unfair and major portion of the property of Emma P. Miller and that it would be inequitable to allow her to share in any part of the property conveyed by Emma P. Miller to Thomas Wood, Larry A. (Dank) Miller and Marion Miller. There was no denial in the amended response of appellees, of appellant’s allegation that the only consideration for the quitclaim deed from Emma P. Miller to Thomas Wood, Larry A. (Dank) Miller and Marion Miller was the promise and covenant of the grantees that they would hold the property in trust for all of the heirs of Emma P. Miller. There was never any mention of the statute of frauds in any pleading filed by any party to this litigation. The case was not tried as if that was an issue. The chancellor’s opinion and decree do not treat it as an issue.

Helen Bottenfield testified that all three trustees named in the deed had testified on the taking of depositions that they held title in trust for all of Mrs. Miller’s children, except Mary Moses, and that at least one of them said that the property was to be distributed according to a will executed by Mrs. Miller and admitted to probate. This will was consistent with a division among all the children, except Mary Moses, who was excluded by the terms of the will, apparently because Mrs. Moses had been deeded other property and because her mother felt that Mrs. Moses was harassing her about the property in an effort to obtain more than her share.

A sister of appellant, Fay Miller Wood, wife of Thomas Wood, was present when the deed was signed. She also testified that the grantees were holding the property in trust for distribution of Mrs. Miller’s property according to her will and that it was the duty of the trustees to see that the will was carried out. Thomas Wood testified that it was his understanding that he and the other two trustees had title to the property as trustees for all the children, to be divided among them according to the terms of the will of Mrs. Miller. He stated that he recognized appellant as an owner of the Arkansas property and said that “before the will” she would own 1/9 of it and “after the will,” she would own her pro rata share of it and, that, in his opinion, she still owns it.

Larry Miller, a son of Mrs. Emma Miller, testified that his mother wanted to get the property out of her hands, so she would not have to worry about it; that she wanted it divided among all the kids, but that Mary was not supposed to get any of the Arkansas property. He said that she never told him, after she made the deed, exactly what she wanted done with the property. He also testified that, after the quitclaim deed was executed, as far as he was concerned, the property was still her property, but under the control of the three trustees. It was his understanding that he' had held the property in trust for his mother and that he still did. According to him, the sole purpose of the deed was to prevent Mary Moses from getting the property, but he thought that Mary would share in the Louisiana property.

Marion Miller, a grandson of Mrs. Emma Miller, testified that she made the deed so she wouldn’t be worried about people, including him, taking it from her and that three people would have to agree with any disposition of that land. He said that, if it got down to legal aspects, the three grantees were trustees and that his grandmother had said that she wanted to put the land in the name of the three to keep Mary from getting any more of it.

The chancellor clearly recognized that the statute of frauds was not an issue. In his letter opinion, he expressed the opinion that Thomas Wood, et al, trustees in the 1968 quitclaim deed, hold title to said property in trust for the heirs of Mrs. Emma P. Miller to the exclusion of Mary Moses, without making any mention of the statute of frauds. He referred to the will of Mrs. Miller, by which she devised her real property to all of her nine children except Mary Moses. For some reason, the chancellor stated that, in order to determine whether Mrs. Bottenfield was entitled to any interest in the Arkansas property, it would be necessary to receive additional evidence as to the value of the Louisiana and Arkansas properties. He recited the fact that in September, 1971, Mrs. Emma Miller had conveyed her Louisiana land to Helen Bottenfield, Opal Smith and Mary Moses. He also recited that Mrs. Bottenfield had successfully defended a suit to set aside the deed to the Louisiana land, and recognized that the Louisiana court had found that the $100 paid for the Louisiana land was sufficient to support the conveyance and that there was additional valuable consideration for the deed in the form of personal services performed by Mary Moses and her children. (The chancellor overlooked the fact that the Louisiana court had found that, as a part of the consideration for the Louisiana deed, the grantees had promised that the grantor would not be put into a nursing home and that the promise had been kept.)

After hearing evidence on land values, the Arkansas court entered a decree, which in effect nullified the Louisiana deed and distributed the Arkansas property, not according to Mrs. Miller’s will, but as the chancellor seemed to think she should have done. The court found: the value of surface and mineral interests of the Louisiana property was $41,868.20; the value of the Arkansas property was $75,300; as a result of the deed conveying the Louisiana property, Helen Bottenfield, “one of the major heirs of Emma P. Miller, ” received an undivided 1/3 of an undivided 2/3 of the Louisiana property, which was valued at $9,304.04; if she acquired an undivided 1/32 of the Arkansas property, it would have a value of $2,353.13, making a total value of the Arkansas and Louisiana property to be received by Helen Bottenfield of $11,657.17; that each one of the “major heirs of Emma P. Miller,” except Helen Bottenfield and Mary Moses, receive 1/3 of 2/3 of 1/7 of the Louisiana property, having a value of $13,029.15; that if each of said “major heirs” receives 1/7 of 31/32 of the Arkansas property, their interest each will be a value of $10,420.19, which “added to the Louisiana property” would total $11,750.13. The court then found that Helen Bottenfield’s just and equitable interest in the Arkansas property should be an undivided 1/32 interest.

In his letter opinion, the chancellor had stated that there was testimony by some of the appellees, that, before Mrs. Bottenfield acquired the Louisiana deed, they recognized that she was entitled to an interest in the Arkansas land but thought that she had received her share, or more than her fair share, of the estate by her acquisition of the 20 acres in Louisiana. The chancellor apparently felt that the defense asserted by appellees was a good one.

The statute of frauds was not mentioned in the briefs in this case. It is notable that Mrs. Miller’s will only devised real estate of which the testatrix might be possessed at the time of her death. Mrs. Emma Miller had an absolute right to convey or dispose of any of her property as she chose, and one of the appellees so testified. She conveyed the Louisiana property to three of her children. There was no evidence that she was incompetent. One of the appellees, who was a party to the lawsuit, testified that, as far as he knew, Emma Miller was mentally all right on the date the Louisiana deed was executed. No issue as to her competency was made. There was no evidence of undue influence.

In appellant’s reply brief, she agrees with appellees that there was no express trust, because it was not reduced to writing. She does argue, however, that there was a resulting trust. With this argument, I agree, and, as a matter of fact, all the parties agreed and the chancellor so found. Although the implied trust is probably more properly denominated as a constructive trust, the general rules are found in §§44 and 45, Restatement of the Law, Trusts 2d 113, 118, and not in § 404. They are (including pertinent comments):

§ 44. Effect of Failure of Oral Trust for the Settlor.
(3)Where the owner of an interest in land transfers it inter vivos to another in trust for the transferor, but no memorandum properly evidencing the intention to create a trust is signed, as required by the Statute of Frauds, and the transferee refuses to perform the trust, the transferee holds the interest upon a constructive trust for the transferor, if
***
(b) the transferee at the time of the transfer was in a confidential relation to the transferor, or
***
(2) Where the owner of an interest in land transfers it inter vivos to another in trust for the transferor, and the transferor’s intention to create a trust but not the identity of the beneficiary is properly manifested, and the transferee refuses to perform the trust, the transferee holds the interest upon a resulting trust for the transferor.
Comment on Subsection (1, b):
c. Where transferee is in a confidential relation to transferor. *** Such a confidential relation exists not only where there is a fiduciary relation such as exists between attorney and client, trustee and beneficiary, guardian and ward, and the like, but also where because of family relationship or otherwise, the transferor is in fact accustomed to be guided by the judgment of the transferee or is justified in placing confidence in the belief that the transferee will act in the interest of the transferor. ***
Comment on Subsection (2):
e. Where conveyance is “in trust. ” Where the owner of land transfers it inter vivos to another by an instrument which states that the transfer is made “in trust,” or is made to the transferee “as trustee,” but the beneficiary is not designated in the instrument, and the transferee orally agreed with the transferor at the time of the transfer to hold the land in trust for the transferor, the transferee holds it upon a resulting trust for the transferor. In the case of such an instrument, however, the parol evidence rule does not exclude extrinsic evidence that no trust was intended to be created (see § 38, Comment d); and if the evidence shows that no trust was intended to be created, the transferee can keep the property and no resulting or constructive trust arises. As to the situation where the intended trust was for a third person, see § 45, Comment e.
Illustration:
6. A transfers Blackacre to B by a deed which recites that the transfer is to B “as trustee” but does not state who is the beneficiary or what is the purpose of the trust. At the time of the transfer B orally agrees to hold Blackacre in trust for A. B subsequently refuses to perform his promise. B holds Blackacre upon a resulting trust for A, and A can compel B to reconvey Blackacre to him.
§ 45. Effect of Failure of Oral Trust for a Third Person.
(1) Where the owner of an interest in land transfers it inter vivos to another in trust for a third person, but no memorandum properly evidencing the intention to create a trust is signed, as required by the Statute of Frauds, and the transferee refuses to perform the trust, the transferee holds the interest upon a constructive trust for the third person, if, but only if,
***
(b) the transferee at the time of the transfer was in a confidential relation to the transferor, or
(2) Except under the circumstances stated in Subsection (1, a, b, c), where the owner of an interest in land transfers it inter vivos to another in trust for a third person, and the transferor’s intention to create a trust but not the identity of the beneficiary is properly manifested, and the transferee refuses to perform the trust, the transferee holds the interest upon a resulting trust for the transferor.
Comment on Subsection (1):
a. Where the transferee orally agrees to hold land in trust for a third person. ***
As will appear in the Comments which follow, a constructive trust for the third person will be enforced where the transfer was wrongfully obtained (see Comment b); or where the transferee was in a confidential relation to the transferor (see Comment c); or where the transfer was made in anticipation of the death of the transferor (see Comment d). Where, however, there was merely an oral promise by the transferee which he later refuses to perform, the third person is not entitled to the property, since the promise is unenforceable because of the Statute of Frauds.
The question remains whether the transferee should be permitted to keep the property in spite of his promise, or should be compelled to hold it upon a constructive trust for the transferor or his successors in interest.
Although it is very generally held in the cases that the third person is not entitled to the property, except under the circumstances stated in this Section, it is not so clear that the transferee is entitled to keep the property. The argument for enforcing a constructive trust for the transferor is that the transferee would be unjustly enriched if, in spite of his promise, he were permitted to retain the property, and that evidence of the oral promise is admissible, not for the purpose of enforcing the intended trust for the third person, but for the purpose of restoring the property to the transferor.
Comment on Subsection (1, b):
c. Where transferee is in a confidential relation to transferor. Where the owner of land transfers it inter vivos to another in trust for a third person, but no memorandum properly evidencing the intention to create a trust is signed, the transferee will be compelled to hold the land upon a constructive trust for the third person, if the transferee at the time of the transfer was in a confidential relation to the transferor. This is true even though at the time of the transfer the transferee intended to perform the oral trust, and even though he was not guilty of undue influence or other abuse of his confidential relation to the transferor in procuring the transfer. In such a situation a wrong is committed not merely against the transferor but also against the third person; and a court of equity will specifically redress the wrong by putting the parties in the position in which they would have been if the wrong had not been committed.
Comment on Subsection (2):
e. Where conveyance is “in trust. ” Where the owner of land transfers it inter vivos to another by an instrument which states that the transfer is made “in trust,” or is made to the transferee “as trustee,” but the beneficiary is not designated in the instrument, and the transferee orally agreed with the transferor at the time of the transfer to hold the land in trust for a third person, the transferee will not be permitted to hold the land free of trust. Under the circumstances stated in Subsection (1, a, b, c), he will be compelled to hold the land upon a constructive trust for the third person.
In the absence of any of the circumstances stated in Subsection (1, a, b, c), he will be compelled to hold the land upon a resulting trust for the transferor, if he refuses to perform the oral trust for the third person or to execute a memorandum binding upon himself to perform the oral trust. See § 411, Comment p. If, however, he is willing to perform the oral trust, he can properly do so (see § 43), and in that event the transferor cannot enforce a resulting trust for himself. So also, if the transferee signs a memorandum properly evidencing the oral trust, the trust becomes enforceable by the third person (see § 42), and in that event the transferor cannot enforce a resulting trust for himself. If, however, the transferee signs a memorandum declaring that he holds the land upon a trust different from the oral trust, the memorandum is not sufficient to satisfy the requirements of the Statute of Frauds, and the trust so declared cannot be enforced (see § 42, Comment h), and the transferor can enforce a resulting trust for himself.
Illustration:
4. A transfers Blackacre to B by a deed which recites that the transfer is to B “as trustee,” but does not state who is the beneficiary or what is the purpose of the trust. At the time of the transfer B orally agrees to hold Blackacre in trust for C, and subsequently refuses to perform his promise. If B procured the transfer by fraud or other wrongful conduct, or if he was in a confidential relation to A, or if the transfer was made by the transferor in contemplation of death, B holds Blackacre upon a constructive trust for C, and C can compel B to convey Blackacre to him. In the absence of any of these circumstances, B holds Blackacre upon a resulting trust for A, and C cannot compel B to convey Blackacre to him, unless B signs a memorandum of the trust for C; but if B transfers Blackacre to C, A cannot enforce a resulting trust in his own favor.

Insofar as the ultimate outcome of the case is concerned, it makes little difference whether a confidential relationship existed. The evidence in this case shows that there was a family relationship between the grantor and grantees in the quitclaim deed, and that Emma Miller was justified in the belief that the grantees would act in her interest. If so, Helen Bottenfield was entitled to enforce the oral trust and to have the property which had been conveyed to the trustees distributed according to the will of Emma Miller. If a confidential relation did not exist, the trustees were not entitled to do as they wished with the property, but rather held as trustees for Mrs. Miller. In this event, the property would revert to Mrs. Miller’s estate and would also pass under the terms of her will. Appellant only sought 1/9 of the property. It seems to me that she was entitled to that much at least.

Although I might agree that the simple fact that the grantees in the deed were relatives was not sufficient to create a resulting or constructive trust, I think that the reference to Jones v. Gachot, 217 Ark. 462, 230 S.W. 2d 937, is inappropriate. In that case, it is pointed out in the second sentence of the opinion that there was nothing in the deed involved there to indicate, or even suggest, that the grantees (nephews of the grantor) received the title in any way except as the owners thereof. This court stated that there was nothing more than an effort to establish an oral express trust. This fact was emphasized in the concurring opinion in that case. Here, there was no effort to establish an express trust. The word “trustees” following the names of the grantees is a clear indication that the grantor placed her confidence in the grantees to accomplish some purpose. This should be treated as a confidential relation. We have, subsequent to Jones, said, in upholding an alleged constructive trust, after referring to Restatement, Trusts, § 44, that the relation between relatives (brother and sister) is, in the absence of estrangement or other unusual circumstances, one of confidence. See Walker v. Biddle, 225 Ark. 654, 284 S.W. 2d 840. See also, White v. White, 254 Ark. 257, 493 S.W. 2d 133.

The problem presented here is not without difficulty and it is solved in different ways in different jurisdictions. According to Scott on Trusts (3d Ed.), § 45, in a situation where the proof is insufficient to establish the existence of an oral trust in land, most jurisdictions hold that the title to the property is vested in the grantee, or alleged “trustee”.

* * * If A conveys land to B upon an oral trust for C or upon an oral contract to convey to C, it is clear that the Statute of Frauds prevents the enforcement of the express trust or contract. What then shall be done with the land? There are three possible views: (1) that B should be allowed to retain the land; (2) that a constructive trust should be raised in favor of C; and (3) that a constructive trust should be raised in favor of A.
It would seem clear that B would be unjustly enriched if he were allowed to retain the land. The only argument in favor of the retention of the land by B is that the Statute of Frauds forbids proof of the oral trust or contract, not merely for the purpose of enforcing it, but also for the purpose of preventing unjust enrichment. This is the view which is taken by most of the American courts; and they allow B to keep the land.1 As has been shown, however, in the cases where the oral trust was in favor of the transferor, there is no sound objection to showing the oral trust for the purpose of preventing unjust enrichment .... (1Fenter v. First National Bank, 182 Ark. 89, 30 S.W. 2d 820; Jones v. Gachot, 217 Ark. 462, 230 S.W. 2d 937; Robertson v. Robertson, 229 Ark. 649, 317 S.W. 2d 272.)

Section 45.4 of the same work deals with conveyances to “trustees,” where there is no further reference to the trust or its purposes.

* * * Where the conveyance is made to the grantee “in trust” or “as trustee,” and the purposes of the trust do not appear in the instrument, but it is shown by oral evidence that the grantee agreed to hold the land in trust for a third person, it is clear that the grantee will not be permitted to keep the land. He cannot be compelled to perform the trust, however, since to compel him to do so would be in violation of the Statute of Frauds. Accordingly, if the grantee refuses to perform the trust, he can be compelled to reconvey the land to the grantor. The intended trust failing, the grantee holds the land upon a resulting trust for the grantor.

Appellant has always taken the position that this is a resulting trust.

Dr. (then Justice) Leflar, agreeing with the majority in Jones that the establishment of a constructive for the benefit of the grantor, or his successors, had not been sought and that the statute of frauds would not have applied to a constructive trust, recognized that there were various approaches and pointed out the weight of authority on the subject in his concurring opinion. He said:

The great weight of American authority recognizes the validity of constructive trusts under the circumstances set out in the Restatement of Trusts, § 45, as quoted in the majority opinion. Unless constructive trusts are enforced in those circumstances the statute of frauds will be made an instrument for achieving fraud, by vesting in nominal grantees the title to lands for which they have paid nothing and to which in equity and good conscience they are not entitled. Under § 38-107 it is clear that this was never the intent of the statute of frauds.
Whether the constructive trust in such circumstances should run in favor of the ones for whom the oral trust was declared, as the Restatement suggests, thus effectuating it as though it were an express trust, or should run in favor of the grantor or his successors, on the theory that the parties should be restored as nearly as possible to the position they were in prior to the making of the deed, is another matter. Certainly, the latter disposition of the property would be more nearly in keeping with the law of constructive trusts generally. See 3 Bogert, The Law of Trusts, p. 215; 1 Scott, the Law of Trusts, p. 269. This form of relief, however, was not sought in the present case.

In my opinion, Dr. Leflar was right. The effect of the majority opinion in this case is to vest the fee simple title in a grantee in land conveyed to him “as trustee.” There are jurisdictions where this is done. Arkansas should not be one of them. It results in an unconscionable, unwarranted and unintended unjust enrichment of such a grantee — a highly undesirable result, regardless of how the “fireside” equities may appear in this case. Either of the other options available to us is highly preferable. Either would redound to the benefit of appellee and require reversal of the decree.

I would reverse the decree and award appellant 1/9 of the property, or 1/8 of it, subject to any debts of the estate which might require resort to the real estate.

      The text of Mrs. Miller’s will is as follows: “I give and bequeath to my following named children: Opal Miller Smith, Floy Miller Dodson, James Ralph Miller, Marion Miller and Ricky Miller grandchildren and children of Woodrow Miller, deceased, Faye Miller Wood, Hazel Miller Rakes, Larry A. Miller, Sr., Helen Miller Bottenfield share and share alike all my personal property, real property, oil and gas mineral interests that I may be possessed of at the time of my death. My two grandchildren, Marion Miller and Ricky Miller to receive the interest in my estate that would go to my deceased son, Woodrow Miller. My other daughter, Mary Miller Moses, to receive the same share in my estate as the other children mentioned herein, save and except an interest in the real estate that I should be possessed of at the time of my death to which I leave no interest, she already having received her interest in real estate by deed from me in former years. I hereunto set my hand this 27th day of May, 1968.” Signed Emma Payne Miller.

      Mrs. Opal Smith conveyed her interest in the Louisiana property to herself and the other children, except for Helen Bottenfield and Mary Moses.

      Regardless of the absence of an issue as to the statute of frauds, we find ourselves in the same position we would be in if it had been raised, i.e., what happens to the property when it is conceded that an express trust has not been established.


source: Caselaw Access Project

author: George Howard, Jr., Justice.

license: Public Domain

text:
    HOUSING AUTHORITY OF THE CITY OF TEXARKANA, ARKANSAS v. E. W. JOHNSON CONSTRUCTION COMPANY, INC.
    78-86
    573 S.W. 2d 316
    Opinion delivered November 6, 1978
    (Division I)

      Young, Patton & Folsom, by: David Folsom, for appellant.

      David J. Potter, of Potter & Potter, for appellee.
   George Howard, Jr., Justice.

The paramount issue for resolution in this appeal is whether the trial court committed reversible error in awarding a judgment, sitting without a jury, to appellee-contractor in the sum of $12,938.12, including interest at the rate of 10%, predicated upon the following findings:

1. Appellant breached its contract with appellee in requiring a duplicate bond prior to releasing the retainage.
2. Appellant breached the warranty of the plans and specifications submitted to the appellee resulting in cardinal changes in the contract, causing a delay of sixty-eight days in the completion of the job, although the work to be performed was completed five days ahead of the scheduled completion date contained in the contract.

Stated another way, we are to decide if the holding of the trial court is supported by substantial evidence. An affirmative response to this question requires an affirmance, while a negative response imposes a duty to reverse.

THE FACTS

On March 12, 1973, appellant, the Housing Authority of the City of Texarkana, Arkansas, hereafter referred to as owner, entered into a contract with appellee, E. W. Johnson Construction Company, Inc., hereafter referred to as contractor, whereby the owner would pay to the contractor the sum of $620,000.00, subject to additions and deductions as provided in the specifications, for the following services:

“The contractor shall furnish all labor, material, equipment and services, and perform and complete all work required for the Modernization of 80 Low Rent Housing Units ... as defined by the name of Ozane Courts located in Texarkana, Arkansas in strict accordance with the Specifications for modernization . . . and, the Drawings referred to herein ...”

Essentially, the work to be performed by the contractor consisted of remodeling the interior of the housing units with a small amount of sidewalk work, refurbishing some porches, installing some parking blocks in the parking area, and constructing a few planters. The major outside work consisted of the construction of a day care center, after the contractor had demolished two existing apartments down to the floor level in order to make way for the day care center, which was regarded by the parties as virtually a new construction. Testimony offered by the contractor specified that 90 to 95% of the total construction work to be performed by him involved the remodeling of the interior of the housing units.

Under the terms of the original contract, the owner was to repair, what was assumed to be minor in nature, leaky water lines, broken windows, deteriorated floors and doors under its own auspices.

On March 12, 1973, the contractor called a preconstruction conference with all of his subcontractors and although the contract designated March 5, 1974, as the completion date, the contractor and the subcontractors projected November 21, 1973, as the completion date, allowing time for slippage and weather problems. Crews were set up for sheet rock, electrical, carpentry and plumbing work. The only roofing work to be performed by the contractor was a roof in connection with the construction of the day care center. Construction commenced on March 21, 1973, in accordance with the terms of the contract, which contains standard government contract provisions granting the owner the right to make changes in the job specifications within the general scope of the contract and as necessitated by changed conditions.

On April 20, 1973, the contractor discovered leaks in the roofs of the units under repair and between April 20, 1973, and May 4, 1973, there were consultations between the contractor and the owner regarding the amount of work and cost involved in the repairs required to stop the leaks. On May 3, 1973, the contractor received a change order from the owner, in accordance with the terms of the contract, calling upon the contractor to make the necessary roofing repairs which the contractor rejected because there was no provision for extension of time for the completion of the contract in view of the fact the contractor’s subcontractors indicated that a minimum of six weeks, with perfect weather, would be required for the completion of the roofing work; that there was no allowance for extra labor or materials and that the proposed work, under the change order, would create a financial hardship on the contractor which he could not absorb and, consequently, he could not waive his rights for damages.

On or about June 4, 1973, the owner’s architect advised the contractor that until a decision had been reached regarding the roofing work, the contractor would have to cease work under the contract in order to avoid damage to the interior that was being performed by his various crews. Consequently, the contractor was unable to proceed with the sheet rock, trim, painting, cabinet and floor work in accordance with the pre-construction schedule agreed upon by contractor and his subcontractors. Moreover, the contractor was compelled to release approximately one-half of his work force which he never recouped.

As a further consequence of the delay caused by the roofing defects and other change orders received from the owner either adding or deleting certain items of repair and the failure of the owner to make timely decisions involving changes and corrections in the defective plans and specifications, the contractor alleges that he experienced a sixty-eight day delay resulting in the completion of the job on February 28, 1974, instead of the projected date of November 21, 1973.

The contractor testified that the total dollar amount of net changes after additions and deductions to the contract, amounted to $49,000.00, while the percentage of the change overall was approximately 37%.

HOLDING OF THE TRIAL COURT

The trial court, in rendering a judgment in behalf of the appellee-plaintiff, made the following findings:

“That Defendant, Housing Authority of the City of Texarkana, Arkansas, breached its contract with the plaintiff in two particulars: First, in requiring a duplicate bond prior to releasing the retainage, said requirement being outside the terms of the contract to Plaintiff’s damage in the amount of Seven Hundred Fifty-Two Dollars ($752.00), for which Plaintiff is entitled to judgment; and, secondly, Defendant breached the contract made the subject to this cause by breach of warranty of the plans and specifications submitted to the contractor resulting in cardinal changes to the contract consisting of changes in the roof, floors, and plumbing which were not within the scope of the original contract and which forced the contractor to more costly operations and forced the contractor into an undertaking different from the original contract. Defendant further breached the contract in failing to make timely decisions concerning changes and corrections to the defective plans and specifications. The breaches of the Defendant caused a delay in the completion of the original contract of sixty-eight (68) days at a cost for extended job and pro rata share of home office overhead of $233.21 per day for a total of Fifteen Thousand, Eight Hundred Fifty-Eight and 28/100 Dollars ($15,858.28), reduced by a release executed by the Plaintiff to Twelve Thousand One Hundred Eighty-Six and 12/100 Dollars ($12,186.12), for which plaintiff is entitled to judgment.”

CONTENTIONS OF APPELLANT FOR REVERSAL

1. The court erred in denying defendant’s jury demand filed on the 19th day of May, 1977.
2. The court erred in denying defendant’s motion for a directed verdict at the close of plaintiff’s case.
3. The court erred in allowing plaintiff to introduce testimony and exhibits to vary the terms of the contract made the subject of this cause in violation of the parol evidence rule.
4. The court erred in finding defendant breached the contract made the subject of this cause by breach of warranty of the plans and specifications submitted to the contractor resulting in cardinal changes to the contract.
5. The court erred in allowing damages to plaintiff for delay in completion of the contract made the subject of this cause, even though plaintiff completed the contract within the specified time.

THE DECISION

Appellant’s points for reversal of the trial court’s holding shall be considered seriatim.

DEMAND FOR JURY TRIAL

Article 2, Section 7, of the Arkansas Constitution, in material part, is as follows:

“The right of trial by jury shall remain inviolate, and shall extend to all cases at law, without regard to the amount in controversy; but a jury trial may be waived by the parties in all cases in the manner prescribed by law; . . . ." (Emphasis added)

The record before us reflects that this action was instituted February, 1975. On March 24, 1977, pursuant to agreement by counsel of record, the matter was scheduled for non-jury trial on March 24, 1977, during pre-trial proceedings and the case was set for trial before the court on June 13, 1977. On May 19, 1977, appellant-defendant filed its motion demanding a jury trial and appellee-plaintiff filed its objections to the jury trial demand on May 31, 1977. On the date of the scheduled trial, appellant presented its motion for the court’s consideration and the trial court denied appellant’s request stating that appellant had waived its right to a jury trial during the pre-trial proceeding and that the matter would be heard as scheduled.

Under the circumstances involved, we are unable to say the trial court abused its discretion in denying appellant’s belated request for a jury trial after having waived it during the pre-trial proceeding.

MOTION FOR A DIRECTED VERDICT

It is well recognized that upon a defendant’s motion for a directed verdict, at the close of plaintiff’s case, the evidence, including all reasonable inferences thereto, must be viewed in the light most favorable to the plaintiff and will be granted only when there is no evidence tending to establish an issue in plaintiff’s favor. Accordingly, in considering the totality of the evidence adduced by the plaintiff in support of its case, we are persuaded that the trial court did not err in not granting a directed verdict. Southern Pipe Coating, Inc. v. Spear & Wood Mfg. Co., 235 Ark. 1021, 363 S.W. 2d 912; Barrentine v. The Henry Wrape Co., 179 S.W. 328.

Moreover, the record does not clearly show that the appellant really made a motion for a directed verdict at the close of appellee-plaintiff’s case. It seems plain that appellant-defendant indicated to the trial court a desire to make a motion for a directed verdict, but, instead, sought and received leave of the court to submit a written motion supported by a brief which, according to the record before us, was never filed.

PAROL EVIDENCE RULE

Appellant argues that the trial court committed reversible error in permitting the appellee to offer evidence concerning appellee’s damages purportedly realized as a result of the delays and indecisions on the part of appellant relative to changes in the project which prevented appellee from completing the job on the projected completion date, namely, November 21, 1973; and further objected to the “sequencing of the job at issue.” Appellant’s objection was grounded on the theory that the parties had entered into a written contract where the terms were written in clear and unambiguous language; and that the evidence offered by appellee varied the terms of the contract in violation of the parol evidence rule. In support of its posture, appellant cited Hoffman v. Late, 222 Ark. 395, 260 S.W. 2d 446, where we emphasized that the parol evidence rule declares that certain kinds of facts are legally ineffective in the substantive law; and that this results in forbidding the fact to be established at all. We further stressed that the practical justification for the rule lies in the stability that it gives to written agreements, otherwise either party might avoid his obligation by testifying that a contemporaneous oral agreement released him from the duties that he had assumed in the written document.

We perceive that appellant’s conception of appellee’s reason for offering the evidence is misplaced. We do not view the appellee’s reason for offering the evidence as for the purpose of varying the terms of the contract, but, on the contrary, the evidence was submitted for the purpose of establishing a fact that cardinal changes were made in the contract that were not contemplated in paragraph 8 of the general conditions of the contract. It is the contention of the appellee that the appellant breached its contract by issuing various stop orders and making various changes in the work outside of the terms and scope of the original contract which were caused as a direct consequence of defective plans and specifications adopted by the owner and submitted for bids.

We are persuaded that the trial court was eminently correct in admitting the evidence offered since this evidence was relevant to the interpretation of the original contract in order to determine if appellee was performing changes that were substantial or, on the other hand, changes that were the type contemplated under the terms of the original contract. Indeed, it was appropriate for the trial court to view the entire undertaking.

BREACH OF WARRANTY AND DAMAGES

Appellant argues persistently that the trial court erred in finding that the changes to the contract constituted a breach of the original contract; and further erred in allowing damages to appellee. Appellant reasons that appellee inspected the premises prior to the bidding and further inspected the premises several times before the work commenced; and that Jack Miller, the inspector for the project, testified that it is not uncommon for changes to be made in a construction job. Moreover, appellant argues, Jack Miller testified, the contractor could readily see that the roofs of the units that he was to repair were vulnerable to leaks; that the doors had been vandalized prior to the bidding and that the units were in a dilapidated condition generally. Further, appellant insists that the contract permits the owner to make changes in the work of the contractor without invalidating the contract.

On the other hand, the contractor contends that a delay, as in the instant case, caused by defective plans and specifications give rise to damages in favor of the contractor.

We are persuaded that where, as here, the owner supplies plans and specifications to a contractor detailing the work to be performed, the owner implicitly warrants the adequacy and suitability of the plans and specifications for the purpose for which they are tendered. We are further persuaded that this implied warranty is not nullified by any stipulation requiring the contractor to make an on-site inspection where the repairs are to be made and a requirement that the contractor examine and check the plans and specifications. However, a competent and experienced contractor cannot rely upon submitted specifications and plans where he is fully aware, or should have been aware, that the plans and specifications cannot produce the proposed results. Therefore, where delays result, as here, because of faulty specifications and plans, the owner will have to respond in damages for the resulting additional expenses realized by the contractor. Moreover, the owner’s breach of its implied warranty may not be cured by simply extending the time of the performance of a contractor’s assignment. See: J. D. Hedin Construction Co. v. United States, 347 F. 2d 235 (1965); Litchfield Mfg. Corp. v. United States, 338 F. 2d 94 (1964); Centex Const. Co., Inc. v. Worth James, d/b/a Worth James Const. Co., et al, 374 F. 2d 921 (1967).

It is clear from the evidence in this record before us that the delays occasioned by the owner’s changes and indecisions prevented an early completion date of the project. Moreover, Paul C. Kinsey, Sr., representative of the United States Department of Housing and Urban Development, who met in conference with the parties in'an effort to resolve the complaints of the contractor, admitted, in his Memorandum Report, that the contractor’s claim that the owner was delaying the job progress by failing to make timely decisions with reference to changes was true. Further, Mr. Kinsey observed in his report that the two changes that seriously affected the progress of the contractor were the roofs and plumbing work.

It must be remembered that appellant-owner had assumed the responsibility to make the necessary repairs to the roofs and plumbing which were not within the scope of the original contract, but as a consequence of appellant-owner’s failure to carry out this responsibility, the contractor was required to accept this undertaking. These cardinal changes resulted in additional expenses to the appellee and a delay in the completion of the original contract of 68 days at a rate of $233.21 per day, aggregating a total of $15,858.28, minus a release executed by the contractor of all sums in excess of $12,186.12.

The appellant-owner’s basic and fundamental defense to the contractor’s action for damages is essentially that the contractor completed the project within the allotted time under the contract, namely, 350 days after receipt of notice to proceed with construction. However, we are not impressed with appellant’s argument. Indeed, an owner may not prevent a contractor’s early completion of his assignment with impunity.

We believe that the following observations made by the court in Metropolitan Paving Co. v. United States, 325 F. 2d 241 (1963), involving an action by the contractor for damages, under a government construction contract, is an appropriate response to appellant-owner’s assertion:

“In order to recover, plaintiff must surmount three hurdles. First, it must prove that defendant’s employees did unnecessarily cause delay. It must then establish that such delays constituted a breach of contract. Finally, it must establish that it suffered damages due to the breach.
“. . . While it is true that there is not an ‘obligation’ or ‘duty’ of defendant to aid a contractor to complete prior to completion date, from this it does not follow that defendant may hinder and prevent a contractor’s early completion without incurring liability. It would seem to make little difference whether or not the parties contemplated an early completion. Where defendant is guilty of ‘deliberate harassment and dilatory tactics’ and a contractor suffers damages as a result of such action, we think that defendant is liable.”

Although appellant-owner’s notice of appeal is an appeal from the holding of the trial court which found that appellant breached its contract with appellee by also requiring a duplicate bond prior to releasing the retainage, appellant makes no argument in his brief relative to this finding; consequently, we take the position that appellant has abandoned this finding as a point for reversal.

Accordingly, we find that the trial court’s holding is supported by substantial evidence and the trial court’s judgment is affirmed.

Affirmed.

We agree.

Harris, C.J., and George Rose Smith and Holt, JJ.

      Section 8 of the contract relating to changes in the work provides, in part, as follows:
      “a. The LHA [Local Housing Authority] may make changes in the work of the Contractor by making alterations therein, or by making additions thereto, or by omitting work therefrom, without invalidating the Contract, and without relieving or releasing the Contractor from any guaranty given by him pursuant to the Contract provisions, and without affecting the validity of the bond(s) and without relieving or releasing the surety or sureties of said bond(s). All such work shall be executed under the conditions of the Contract.

        “b. Except in an emergency endangering life or property, no change shall be made by the Contractor unless he has received a prior written order from the LHA, countersigned by the Architect, and approved on its face by HUD, authorizing the change. Any change in the work shall be ordered and the ádjustment of the contract price or time shall be determined by one of the following methods:

        Method-1 — Adjustment before Performance

      By issuance of a Change Order providing for an agreed lump-sum adjustment and supported as provided in sub-paragraph 8f.

        Method-2 — Adjustment after Performance

      By prior issuance of a Proceed Order, authorizing the Contractor to proceed with the change by the most economical method. If net extra cost is anticipated such order shall state the maximum sum, including all items of overhead and profit. If such sum is exhausted prior to the completion of the change, the Contractor shall not proceed with the work without an additional and separate Proceed Order. If a credit is anticipated the Proceed Order shall state the amount of anticipated credit.”
      Section 9, paragraph d of the contract provides, in relevant part, as follows:
      “If the Contractor claims that any instructions by drawings or otherwise involve extra cost or extension of time, he shall, within ten days after receipt of such instructions, and in any event before proceeding to execute the work, submit his protest in writing to the LHA.”

      Numerous change orders were issued by the owner, some of which granted extensions and specified additional sums to be allotted to appellee for the work. However, we deem it unnecessary to document these change orders for a resolution of the issue before us. Moreover, for purposes of this appeal, the delay which the contractor complains of, may be considered as attributable entirely to the change orders.

      Paragraph IV of the rules of the Miller County Circuit Court, on file in the offices of the Circuit Clerk of Miller County and the Clerk of the Arkansas Supreme Court, which was adopted pursuant to Ark. Stat. Ann. 22-309 (Repl. 1962), provides as follows:
      “All attorneys who desire jury trials for pending litigation shall notify the Court and opposing counsel at least fifteen (15) days prior to pre-trial dates. After service is ripe and/or the issues have been joined the failure to request a jury trial either as plaintiff or defendant will constitute a waiver of jury trial.”


author:
George Howard, Jr., Justice. George Rose Smith, Justice,
      John A. Fogleman, Justice,

text:
    Charles R. GARNER v. Honorable John G. HOLLAND, Circuit Judge of Sebastian County, et al
    78-269
    572 S.W. 2d 589
    Opinion delivered November 6, 1978
    (In Banc)
    Petitioner, pro se.

      Charles Karr, Pros. Atty., by: J. Lamar Porter, Deputy Pros. Atty., for respondents.
   George Howard, Jr., Justice.

We are to determine if the trial court’s holding, which finds that petitioner’s residence, in order to stand for election as a delegate for the Arkansas Constitutional Convention in the November 7, 1978, General Election, is 11023 Hunters Point, Legislative District 16, instead of 3017 Free Ferry Road, Legislative District 15, where appellant sought to run, resulting in a decree approving the action of the Sebastian County Election Commission in refusing to place the petitioner’s name on the ballot, is supported by substantial evidence.

THE FACTS

The essential facts in this case, which are not in dispute, are:

On September 28, 1978, after petitioner had filed his nominating petition and paid the necessary filing fee, the Secretary of State certified petitioner as a candidate for delegate, Position Number One, District 15, Sebastian County, to the Constitutional Convention of 1979, to be voted on November 7, 1978.

However, on September 29, 1978, at approximately 3:00 p.m., petitioner was advised that the Sebastian County Election Commission would conduct a meeting at 4:00 p.m. to examine petitioner’s qualifications to be a candidate in Legislative District 15. Because of a prior commitment, petitioner was unable to make the meeting. The Election Commission met and, after considering an opinion rendered by its attorney, Charles Karr, that petitioner did not possess the qualifications to run as a delegate in District 15, concluded that petitioner’s name would not be printed on the ballot.

In accordance with Ark. Stat. Ann. § 3-612 (Repl. 1976), petitioner filed an affidavit in the Sebastian County Circuit Court seeking to have the Commission show cause why his name should not be printed on the ballot. On October 9, 1978, the Circuit Court of Sebastian County conducted a hearing and, after considering all evidence adduced, made a finding that appellant’s residence for purposes of the Constitutional Convention was 11023 Hunters Point, Legislative District 16 as opposed to Legislative District 15 where appellant sought to run; and further held that the Sebastian County Election Commission was justified in not placing petitioner’s name on the ballot as a candidate for the position of delegate to the Constitutional Convention.

On October 11, 1978, petitioner filed his petition and motion in this Court praying essentially for a writ of mandamus requiring the Sebastian County Election Commission to include his name on the printed ballot; and that the order of the Circuit Court of Sebastian County, in effect, should be stayed or set aside, and that time being of the essence, the matter should be advanced on this Court’s docket for a speedy disposition.

It is conceded by the appellees that the petitioner is an attorney who maintains his office for the general practice of law at 3017 Free Ferry Road in Fort Smith which is located in Legislative District 15; and that petitioner is registered to vote in Legislative District 15 and has voted in Precinct 1-H for many years which is located in Legislative District 15; and that his office address is designated as his residence and has been certified as his legal address for numerous personal reasons. For example, petitioner’s driver’s license, fishing and hunting licenses, passport, bank accounts, tax and assessment records, medical insurance policies, automobile registration certificate and a variety of other personal matters all indicate and designate 3017 Free Ferry Road as petitioner’s address.

Petitioner also testified that his wife and son lived at 11023 Hunters Point which is located in District 16; and that although he regards 3017 Free Ferry Road, which is located in District 15, as his residence, 90% of his sleeping is done at 11023 Hunters Point and approximately 10% of his sleeping hours are spent at 3017 Free Ferry Road; that he and his wife own the dwelling house at 11023 Hunters Point; and that his son attends the Woods Elementary School which is located in Legislative District 16. Moreover, petitioner testified that he does not own the building where he maintains his law office at 3017 Free Ferry Road and that two separate firms share the same building.

THE DECISION

Inasmuch as absentee ballots were scheduled to be placed in the hands of the Sebastian County Clerk twenty-five days prior to the General Election and concluding that time was of the essence, we entered our order denying petitioner’s request for a writ of mandamus on October 16, 1978, but indicated that an opinion would follow.

After carefully reviewing the record before us, we are persuaded that the only issue tendered to the Circuit Court of Sebastian County was the question of residency of the petitioner. To put it another way, the trial court was called upon to determine petitioner’s official residence. Consequently, the trial court had before it a factual issue.

However, petitioner, for the first time, in this Court has sought to raise an issue as to whether or not the langugage contained in Section 4 of Act No. 3 of the Extraordinary Session of the Arkansas General Assembly of 1977, calling for a Constitutional Convention, mandatorily requires the Sebastian County Election Commission to include his name on the ballot of the General Election of 1978, inasmuch as the Secretary of State has certified the petitioner as being eligible to run as a delegate.

It is well settled that an issue raised for the first time at the appellate level will not be considered by this Court.

The posture that we take in finding that only the issue of residency was tendered to the trial court is supported by the following exchange that took place in the trial court:

“THE COURT: ... I do wonder if all the evidence shouldn’t be presented to the Election Commission first before it comes here, the same evidence I guess we are presenting here today?
“MR. KARR: Well, Your Honor, they have made a factual determination and that was based partly on my representation to them which followed a conversation that I had with Mr. Garner. . . . There may be a dispute as to the significance of some of those facts and wh^t residence means.
“THE COURT: Do you want to go ahead and proceed here, Mr. Garner?
“MR. GARNER: You mean — ?
“THE COURT: Do you want to go ahead and present everything and have me make my decision?
“MR. GARNER: Yes.”

After all of the evidence had been presented by petitioner and respondents to the trial court, the following exchange took place between the court, counsel for the election commission and petitioner, Mr. Garner:

“THE COURT: . . . There is one thing that neither of you have mentioned, and I would like some comment on, and that is Section 4, 202-104, Constitutional Convention.
“MR. GARNER: What is it, Judge? Section what?
“THE COURT: Section 4 of Arkansas Statutes 2-104, which is calling the Constitutional Convention. It says, ‘A county election commission shall include on the ballot of the General Election of 1978 the names of all candidates for Delegate to the Constitutional Convention as certified by the Secretary of State. ’ Now, it has been admitted by all parties that Mr. Garner has been certified by the Secretary of State. If you all need a little time to think about that — Of course, this decision needs to be made today because I imagine one side or the other is going to the Supreme Court, 1 don’t know, and it is going to take a while to get the transcript. I may be —
“THE COURT: Well, I agree it ought to be settled, but you are saying Section 4 is really not —
“MR. GARNER: — Doesn’t mean what it says?
“THE COURT: Do you all want any more time to look up Section 4?
“MR. GARNER: I don’t Your Honor. I think the facts are plain.
“MR. KARR: Your Honor, we stand on our Brief and argument.
“MR. GARNER: We stand on the facts, Your Honor.”

We are convinced that petitioner waived the opportunity extended to him by the trial court to assert applicable provisions under Section 4 of Ark. Stat. Ann. 2-104 (Repl. 1976).

In Shephard v. Hopson, 191 Ark. 284, 86 S.W. 2d 30, we made the following observation:

“In Duval v. Johnson, 39 Ark. 182, it was held that the term ‘usual place of abode’ is synonymous with ‘residence’. It is generally understood that one’s usual place of abode or residence is where (if he is a married man) he abides with his wife and family. Therefore, the house in which one’s wife and children are living is presumed to be a man’s ‘usual place of abode’ ...”

We are convinced that the rule in Shephard v. Hopson, supra, is dispositive of the issue raised in this case. We are further persuaded that the holding of the trial court is supported by substantial evidence. Accordingly, the petition for writ of mandamus is denied.

George Rose Smith, J., concurs.

Fogleman and Byrd, JJ., would grant the writ.

George Rose Smith, Justice,

concurring. I think it reasonable to believe that Mr. Garner deliberately chose not to raise the issue discussed in the dissenting opinion. He has actively practiced law for many years. He has evidently been conscious of a possible question about his legal residence, for he has taken extraordinary precautions to try to fix that residence at his rented office rather than at his home.

The act providing for the constitutional convention requires candidates to possess the qualifications of a member of the House of Representatives, which includes residence in the district to be represented. We may assume that the members of the convention will abide by that requirement in seating or refusing to seat delegates. It is to Mr. Garner’s advantage, and certainly to that of the voters in the district, for the question of Mr. Garner’s eligibility to be settled before the election. It would also be to Mr. Garner’s advantage, if elected, to go to the convention with a court decision upholding his right to represent the district. He himself has filed this suit, not attacking the power of the board of election commissioners to act, but insisting instead on his own qualifications to be a candidate. I do not think it “hypercritical” to construe his pleadings to mean he wants exactly what he is asking for and that he does not intend to raise a point not mentioned in his pleadings. Moreover, even if the point had been raised in the trial court, which in my opinion it was not, Mr. Garner has not argued it either in his brief in this court or in his oral argument in this court. A point not argued in this court on appeal is waived. Thus the point in question is actually raised for the first time by the dissenting justice in this court. I am convinced that Mr. Garner neither raised it nor intended to raise it.

John A. Fogleman, Justice,

dissenting. I cannot agree that the determinative statute in this case may be ignored as having been raised for the first time on appeal. In considering whether this issue was before the trial court, we should not view the matter hypercritically. Litigation of this sort cannot be approached as deliberately as the usual lawsuit, either by litigants, attorneys, trial judges or appellate courts. By the nature of things, decisive action must be taken very rapidly.

The election at which petitioner desired to be a candidate is to be held on November 7. The chairman of the board of election commissioners gave petitioner a one-hour notice that the board was about to hold a meeting at 4:00 p.m. on September 29 on the question of his qualifications to be a candidate for delegate to the upcoming Arkansas Constitutional Convention of 1979, a question which was of no concern to that board, as I will presently demonstrate. It should have come as no surprise to anyone that petitioner’s time was committed to that hour and that he could not be present. Petitioner, however, moved to correct the omission and error of the board by commencing this proceeding under Ark. Stat. Ann. § 3-612 (Repl. 1976) on October 5, 1978, less than a week after the board’s action. The nature of the proceeding established by this statutory provision is itself indicative of the hurried process involved. The “litigation” is initiated by affidavit by the complaining party. Petitioner’s affidavit in the trial court included a statement that, in due course, and in due time, he had prepared and filed the necessary papers and paid the necessary fee to the Secretary of the State of Arkansas, in order to have his name placed on the ballot in District No. 15, and, in due course, received notice that he had met the requirements for having his name on the ballot. Petitioner concluded thus:

Since it is apparent that said Election Commission has acted erroneously, this Court, by and through its Order, should require the Sebastian County Election Commissioners to immediately correct their error and show cause why the same should not be done, and this Court should require them to print the name of Chas. R. Garner upon the Ballot as a Delegate for the Constitutional Convention; and Chas. R. Garner, being a duly qualified and acting elector, does hereby request same.

The response to petitioner’s affidavit was to the effect that petitioner was not qualified to be a candidate because he did not reside in District 15. The response of the board of election commissioners concluded thus:

The Commission found as a matter of law that residence for voting registration purposes and qualification to run for public office is one’s usual place of abode and in the case of a married man where he lives with his wife and family.
Wherefore, the Sebastian County Election Commission has determined that Charles R. Garner is not a resident of Legislative District No. 15 and is, therefore, not qualified to be a candidate for the Constitutional Convention from Legislative District No. 15, Position 1, and is prepared to present proof and argument on all of the factual and legal issues raised herein at the Court’s earliest convenience.

The issue as to the applicability of Act 3 of 1977 was raised by the pleadings.

Hearing was had on October 9. The trial court held that Garner’s residence for the purpose of the constitutional convention was at 11023 Hunter’s Point, which is in District 16, rather than District 15, and affirmed the action of the board in not placing Garner’s name on the ballot.

The record discloses that Garner was duly certified to the Sebastian County Election Commissioners by the Secretary of State as a candidate for delegate to the constitutional convention. This should have concluded the matter, insofar as the election commissioners were concerned and as far as the trial court was concerned. The only evidence presented at the board’s “hearing” was an affidavit (or opinion) of the prosecuting attorney. The board’s finding was based entirely on the opinion of this official. That opinion was based in substantial part upon Ark. Stat. Ann. § 3-615 (Repl. 1976), which has no application whatever. That section applies only to candidates for public office. Delegates to a constitutional convention do not hold public office. Harvey v. Ridgeway, 248 Ark. 35, 450 S.W. 2d 281.

The exchange between the circuit judge and the petitioner quoted in the majority opinion does not appear to me to demonstrate that the applicability of § 4 of Act 3 of 1977 was not an issue. As a matter of fact, it demonstrates to me that Garner did contend that the act controlled. The mere fact that Garner did not want further delay for research certainly does not detract from his previous statement as to the conclusive effect of the act. How could he have asserted reliance on this section of the statute more emphatically than to say, “Doesn’t it mean what it says?”? If the answer was in the affirmative, no research was necessary.

The first erroneous premise of the prosecuting attorney and the election commissioners is that appellant was a candidate for public office. This is simply not so. See Harvey v. Ridgeway, supra. Although the board relied heavily upon § 2 of Act 3 of 1977, it totally ignored other sections of the same act. It should have read further, for other sections of the act were controlling.

It is clear that the General Assembly intended that the selection of delegates be conducted, and the results determined, much the same as elections to the General Assembly before the adoption of Ark. Stat. Ann. § 3-615. The pertinent portions of Act 3 read:

Section 2. Representation. One hundred (100) delegates shall be elected from the same districts and on the same basis as members of the House of Representatives of the General Assembly. *** Candidates for office of delegate to the Constitutional Convention of 1979 shall be qualified electors of the district in which they are a candidate and shall possess the qualifications required by law for a member of the House of Representatives of the Arkansas General Assembly, *** Provided that neither the holding of an elective or appointive office under this State or a political subdivision thereof nor the fact that a person is a candidate for such office shall disqualify such person to run for and serve as delegate to the Constitutional Convention provided for herein. The Convention shall fill vacancies in delegate positions by appointment of a qualified person from the district in which the vacancy occurs.
Section 3. Nomination of delegates. Every person desiring to stand for election as a delegate shall file a nominating petition with the Secretary of State containing at least fifty (50) signatures of qualified electors of the district in which said person stands for election. In addition, a filing fee of Twenty-Five Dollars ($25.00) must be paid to the Secretary of State at the time said petitions are filed. A candidate must designate the position being sought at the time nominating petitions are filed with the Secretary of State *** Such petitions shall be filed with the Secretary of State no earlier than the third (3rd) Tuesday in August 1978, and no later than the first (1st) Tuesday in September 1978, and upon verification of the nominating petitions and receipt of the filing fee, the Secretary of State shall certify the names of all candidates and the position which each is seeking to the County Election Commissioners not later than September 28, 1978.
Section 4. Election of delegates. The County Election Commissioners shall include on the ballots of the General Election of 1978 the names of all candidates for delegate to the constitutional convention as certified by the Secretary of State. The candidate receiving a majority of the votes for a particular position in said General Election shall be declared elected as a delegate to the convention ***
Section 5. Conduct of the convention. The elected delegates shall assemble at the State Capitol Building, or at some other appropriate place designated by the Governor, at 10:00 a.m. on the second Monday in December next after their election for an organizational meeting of no longer than three (3) days duration. ***
Section 6. Secretary of State presides at organizational meeting. *** The convention shall elect its own officers and shall be the sole judge of the qualifications and election of its own membership. [Emphasis mine.]

That Ark. Stat. Ann. § 3-615 was a novelty in Arkansas was clear to the General Assembly when it was adopted. The emergency clause recognized that this was a drastic change in Arkansas law. In pertinent part, it reads:

It is hereby found and determined by the General Assembly that under the present laws of this State, a person may, under certain circumstances, become a candidate for a public office which such person is not qualified and eligible to hold even if such person were elected to the office; that it is essential to the proper administration of the election laws of this State that legislation be enacted immediately to prohibit inclusion on the ballot of the name of any person as a candidate for any public office, if such person would not be qualified and eligible to fill such office if elected, and that this Act is designed to correct this situation. ***

The legislature was right. Election officials had never had any authority to question the qualifications of a candidate who met filing requirements, because their duties were purely ministerial, even though this court recognized that there was an argument that it would be a vain and useless proceeding to permit one to be a candidate for an office which he could not fill if he were elected to it. Irby v. Barrett, 204 Ark. 682, 163 S.W. 2d 512. Language peculiarly appropriate to this case is to be found in Irby. We said:

If the chairman and secretary of the committee have the right to say that because of the decision of this court petitioner is ineligible to be a candidate for office, they may also say, in any case, that for some other reason a candidate is ineligible. For instance, it has been held by this court in many election contests that one must pay his poll tax; that he must do so after proper assessment in the time and manner required by law, and that otherwise he is not eligible even to vote, and unless he were a voter he could not hold office. So with other qualifications, such as residence. May this question be considered or decided by the chairman and secretary of the committee? It may be that such power can be conferred upon them by laws of this state or the rules of the party; but it is certain that this has not yet been done. If this can be done, and should be done, the door would be opened wide for corrupt and partisan action. It might be certified that a prospective candidate has sufficiently complied with the laws of the state and the rules of a political party to become a candidate, and, upon further consideration, that holding might be recalled; and this might be done before that action could be reviewed in a court of competent jurisdiction and reversed in time for the candidate to have his name placed on the ticket. It would afford small satisfaction if, after the ticket had been printed with the name of the candidate omitted, [to] have a holding by the court that the name should not have been omitted.

Irby was a candidate for the state senate. This court pointed out that the senate was the tribunal in which Irby’s qualifications would be determined, if he were elected, pointing out that Art. 5, § 11 of the Constitution of Arkansas provides that “Each house [of the General Assembly] shall appoint its own officers, and shall be the sole judge of the qualifications ... of its own members.” Obviously, the General Assembly borrowed from this constitutional language in wording § 4 of Act 3 of 1977. When this language is read in the light of the other language of the act I have italicized, the legislative intent that the matter of election and qualification of delegates be handled exactly as it had been prior to the adoption of § 3-615 is absolutely clear. Although party officials were involved in Irby, the same rules and principles have been applied with the same force and effect when the election commissioners are the election officials involved. See Carroll v. Schneider, 211 Ark. 538, 201 S.W. 2d 221. They should have the same impact here.

When the statutory language such as that italicized is used, the duties of the election commissioners were ministerial, not judicial, and they had no function to perform, other than to put Garner’s name on the ballot after it was certified by the Secretary of State. Carroll v. Schneider, supra. To the same effect, Higgins v. Barnhill, 218 Ark. 466, 236 S.W. 2d 1011; Cox v. Wentz, 231 Ark. 205, 329 S.W. 2d 413; Ridgeway v. Catlett, Chairman, 238 Ark. 323, 379 S.W. 2d 277.

As recently as 1964, this court followed Irby, refusing to overrule it, saying that it was sound. Ridgeway v. Catlett, Chairman, supra. In Ridgeway, we held that one who had met the requirements prescribed for placing his name on the ballot was entitled to a writ of mandamus to require the State Democratic Central Committee to place his name on the ballot, even if he was ineligible to hold the office.

The Sebastian County Board of Election Commissioners should not have inquired into Garner’s qualifications to serve as a delegate to the constitutional convention. Neither the circuit court nor this court should have done so. The matter was one for the constitutional convention only. It would be free to agree or disagree with the Sebastian County Board of Election Commissioners, the Circuit Court of Sebastian County, and even with this court, on the question of Garner’s eligibility. Irby v. Barrett, supra.

Although the wisdom of the action of the General Assembly, within the scope of its broad powers, is not a matter for judicial consideration, it may well be asked why the legislative branch, after making a drastic change in 1971, would make a change in 1977 which was applicable only to the constitutional convention provided for by its Act. 3. Constitutional conventions are peculiar to the American system and are an American institution. There is nothing else like them in our system of government, or perhaps any other. They are not a branch of government. They exercise no governmental powers. Harvey v. Ridgeway, supra; 16 Am. Jur. 2d 202, Constitutional Law, § 31. They are different and properly so. The position of delegate is derived from the power inherent in the people to alter, reform or abolish their government in such manner as they see fit. Pryor v. Lowe, 258 Ark. 188, 523 S.W. 2d 199; Harvey v. Ridgeway, supra. They are agents of the people for the purpose of acting in their stead in the exercise of their inherent, solemn power to propose alteration, reform or even abolition. Harvey v. Ridgeway, supra.

The legislature, in calling a constitutional convention, exercises powers in its role as the only agency through which an authorized consent of the ultimate sovereign, the whole people, the entire state, may lawfully be obtained. 16 Am. Jur. 2d 202, Constitutional Law, § 30. Having plenary power to call a convention, it has the power to provide for the election of delegates. 16 Am. Jur. 2d 202, Constitutional Law, § 30; 16 CJS 45, Constitutional Law, § 8. The manner in which the names of candidates for delegates to the convention shall be placed on the ballot is a matter controlled by applicable constitutional and statutory provisions. 16 CJS 45, Constitutional Law, § 8. Neither the Sebastian County Board of Election Commissioners nor the courts should invade the province of the General Assembly, or that of the constitutional convention, in matters pertaining to selection of delegates and determining their qualifications and eligibility.

I find the premises of the concurring opinion no more acceptable than those of the majority opinion. In the first place, the argument that the board of election commissioners had no authority to act in the matter was not, in my opinion, waived on appeal. Here again, the brief of appellant was filed on October 13, only four days after the hearing in the trial court. Appellant’s brief contains this argument:

Also, we should point out to the Court that Section 4 of Act No. 3 of the Extraordinary Sessions of 1977 provides that “the county election commissioners shall include on the ballots of the General Election of 1978 the names of the candidates for delegates to the Constitutional Convention as certified by the Secretary of State.” The Election Commission, in this case, has taken it upon themselves to “decertify” Petitioner after said Commission received its letter of certification from the Secretary of State.

This was sufficient argument, in my opinion, to raise the issue in a case such as this.

In the next place, I reiterate that a judicial decision in this case would not have been binding on the constitutional convention, so the board of election commissioners should have left the determination of the question to the convention.

I would have reversed the judgment with directions to the trial court to direct the board of election commissioners to put Garner’s name on the ballot.

I am authorized to state that Mr. Justice Byrd joins in this opinion.

      Ark. Stat. Ann. § 3-612 provides, in material part, as follows:
      “Whenever it shall appear by affidavit that an error or omission has occurred in the publication of names of [or] description of candidates nominated for office, or in the printing of ballots, the Circuit Court of any County, or the Judge thereof in vacation, or if the Circuit Judge be then absent from the County, the Judge of the County Court, shall, upon the application of any elector, by order, require the County Election Commissioners to immediately correct such error or omission, or show cause why the same should not be done.”

      Section 4 of Act No. 3 of the Extraordinary Session of the General Assembly of 1977, in material part, is as follows:
      “The County Election Commissioners shall include on the ballots of the General Election of 1978 the names of all candidates for delegate to the constitutional convention as certified by the Secretary of State. ...”

      The word “qualifications” includes eligibility. State, Ex rel., Evans v. Wheatley, 197 Ark. 997, 125 S.W. 2d 101.


author: Carleton Harris, Chief Justice.

text:
    William E. PROVIN v. Carole Ann PROVIN
    78-103
    572 S.W. 2d 853
    Opinion delivered November 13, 1978
    (In Banc)

      Howell, Price, Howell & Barron, P.A., by: Gary P. Barket, for appellant.

      Bailey, Trimble & Pence, by: R. Eugene Bailey, for appellee.
   Carleton Harris, Chief Justice.

This is a domestic relations case involving the custody of two children, ages 7 1 /2 and 6 1 /2, born to William E. and Carole Ann Provin. The appellee, Mrs. Provin, obtained a decree of divorce in the chancery court of Pulaski County on June 15, 1977, the order entered nunc pro tunc on February 2, 1978. On the issue of child custody, the chancellor found that each of the parties was a fit and proper person, but granted exclusive custody to the appellee. The appellant, Mr. Provin, takes exception to this finding and brings this appeal. The sole issue before the court is whether the chancellor abused his discretion by not granting joint custody to the parties after finding that both were fit and proper persons to have custody.

Mr. Provin apparently has no complaints over the visitation order, and, in fact, he stated that he was not trying to gain physical custody of the children. He does intensely argue that since the court found that both parents were fit and proper persons to have custody, he is ipso jado entitled to an award of joint custody. Appellant cites our case of Kirby v. Kirby, 189 Ark. 937, 75 S.W. 2d 817 (1945), where we stated:

“It is the well-settled doctrine in this state that the chancellor, in awarding the custody of an infant child or in modifying such award thereafter, must keep in view primarily the welfare of the child, and should confide its custody to the parent most suitable therefor, the right of each parent to its custody being of equal dignity.”

Mr. Provin refers to the “equal dignity” statement and, accordingly, argues that “the court must make a finding that the parent to which custody has been awarded is more fit and able to care for the children than the parent to which custody has been denied.” We cannot agree with that statement. The repeated finding throughout our dozens and dozens of custody cases is that the “polestar” or most important fact in granting custody is the welfare of the child or children. In Stepehnson v. Stephenson, 237 Ark. 724, 375 S.W. 2d 659 (1964), we said:

“In custody matters the unyielding consideration is the welfare of the children. It matters not to this court which of the parties ‘wins’ custody, so long as the children are the ultimate winners of good care and home.”

A custody matter is not a contest between the father and mother for the purpose of determining who can prevail in obtaining custody; rather, the decision of the court is based upon the welfare of the youngsters.

Appellant seems to have the idea that the court, having found both parents fit and proper for custody, and then placing such custody in the mother, had given him figuratively “a slap in the face saying I am not a fit father.” This conclusion is, of course, erroneous. There are numerous cases decided by this court where we have held that both parents were fit and proper persons, but we still approved exclusive custody (except for visitation rights) in one of the parents.

Mr. Provin says that he desires a voice in “major” decisions affecting the children, and, under the circumstances of this case, we agree he is entitled to that consideration. Such matters as whether a child should have an operation, what doctor should perform the operation, where the child will attend college, etc., are major decisions and, in fact, Mrs. Provin testified that she would consult appellant with regard to such matters. Of course, the word “major” is a relative term, meaning one thing to some persons and something entirely different to others. For instance, there is a swimming pool a few blocks from the home where Mrs. Provin and the children live. Suppose the children desire to go swimming — or visit a neighbor friend — or go to the picture show. Of course, it should not be necessary to find the parent who does not have physical custody and gain permission for these day to day acts. The children would never know whom to look to for guidance, and unreasonableness on the part of either parent could mean nothing except more court visits.

Appellant cites three out of state cases which he contends support his position. There is really no discussion of the issue of joint custody in these cases, but it is interesting to note that all three courts mentioned, and decided, the case on the basis that the controlling factor was the best interest of the child. It also appears that, generally speaking, joint custody is a term used where the children stay alternately with both parents, and as pointed out in the law review article quoted, is usually agreed upon. Here, Mrs. Provin was very much opposed to such an arrangement.

In the case before us, Mr. Provin never did ask for physical custody of the children. He testified that he was, and he seemed, perfectly satisfied with the physical custody being placed in the mother, and with the visitation rights granted him.

We are unable to say the court’s finding under the circumstances herein, that it was to the best interest of the children that their “custody be awarded to one of the parties so that the parent having physical custody and supervision of the children may better regulate the daily lives of the children” was erroneous. The court even added that such award did not lessen appellant’s responsibility relative to the children, nor did it affect his right as a parent to provide guidance and to participate in decisions affecting the welfare of the children.

Affirmed.

      According to Bodenheimer, Progress Under the Uniform Child Custody Jurisdiction Act and Remaining Problems: Punitive Decrees, Joint Custody and Excessive Modifications, 65 Calif. L. Rev. 937 (1977):

      “Joint custody, sometimes referred to as divided custody, gives both parents legal responsibility for the child’s care and alternating companionship of the child. The concept is not new, but in the past an award'of joint custody was often a matter of form rather than substance; it was often combined with an award of physical custody to one of the parents so that actual custody was in fact lodged in one parent. In the past, courts have generally resisted true joint custody arrangements, in which both parents actually have equal responsibility and alternating companionship and control of the child, finding such plans detrimental to the child’s interests. Today courts are under increasing pressure to recognize parental equality by permitting joint legal and physical custody, and they are awarding joint custody in a somewhat larger number of cases. Such an award is most likely when both parents join in presenting a plan of cooperative parenthood, but joint custody has occasionally been won in adversary contests. Professional and popular opinion on the desirability of joint custody is divided, but most psychiatrists and many family law practitioners seem to oppose it. Unquestionably, some exceptionally mature parents are able, through a great deal of effort, self-discipline and emotional control, to handle a joint custody arrangement. The effect upon the children, however, is not at all clear. ...”

        Winn v. Winn (Cal.) 299 P. 2d 721; Zinni v. Zinni (R.I.), 283 A. 2d 373; Henning v. Henning (Ariz.), 362 P. 2d 124.

      We have generally considered this to be divided custody.