author: Jim Hannah, Justice.

text:
    Jimmie Lou FISHER, Treasurer, State of Arkansas; and Richard Weiss, Director, Arkansas Department of Finance and Administration v. Mary R. CHAVERS
    02-665
    92 S.W.3d 30
    Supreme Court of Arkansas
    Opinion delivered December 12, 2002

      Mark Pryor, Att’y Gen., by: Lori Freno, Ass’t Att’y Gen., for appellant.

      Beth B. Carson, for appellant Barclay.

      The Rose Law Firm, A Professional Association, by: Garland J. Garrett, Kathryn Bennett Perkins and Craig S. Lair, for appellee.
   Jim Hannah, Justice.

This case concerns whether a Plan of Distribution entered by the Pulaski Circuit Court, Fourteenth Division, is a final order for the purposes of appellate jurisdiction. We hold that the Plan of Distribution is not a final, appealable order as required by Ark. R. App. P. — Civ. 2(a) (2002) and Ark. R. Civ. P. 54(b) (2002). We have jurisdiction of this matter pursuant to Ark. S. Ct. R. 1 — 2(a)(7) (2002).

Facts

On December 4, 2001, the circuit court entered a Plan of Distribution (“Plan”), which ordered Appellants Dick Barclay, Director of the Department of Finance and Administration (“DF&A”), and Jimmie Lou Fisher, Treasurer of the State of Arkansas, to pay back illegally exacted funds to certain taxpayers. Some time in December 2001, DF&A delivered copies of a motion to reconsider to the circuit court and to Appellee Mary Chavers. The motion was not filed with the circuit court. Chavers filed a response to DF&A’s motion to reconsider on December 14, 2001. The circuit court entered an order denying DF&A’s motion to reconsider on December 31, 2001.

Fisher filed a notice of appeal on January 28, 2002. Barclay filed a notice of appeal on January 29, 2002. The record was lodged on June 24, 2002. Subsequent to the record being lodged, the parties submitted several motions to this court. Since we find that the Plan entered on December 4, 2001, was not a final, appealable order, it is unnecessary for us to address the arguments contained in the parties’ motions.

Final Order Requirement

The Plan was not a final order of the circuit court; therefore, the appeal must be dismissed. In Payne v. State, 333 Ark. 154, 968 S.W.2d 59 (1998), we stated:

The requirement that an order be final to be appealable is a jurisdictional requirement. Wilburn v. Keenan Cos., Inc., 297 Ark. 74, 759 S.W.2d 554 (1988). The purpose of the finality requirement is to avoid piecemeal litigation. Lamb v. JFM, Inc., 311 Ark. 89, 842 S.W.2d 10 (1992). An order is final and appealable if it dismisses the parties from the court, discharges them from the action, or concludes their rights to the subject matter in controversy. Department of Human Services v. Lopez, 302 Ark. 154, 787 S.W.2d 686 (1990).

Payne, supra, 333 Ark. at 158 (citing K.W. v. State, 327 Ark. 205, 937 S.W.2d 658 (1997)). We have also held that an order that contemplates further action by a party or the court is not a final, appealable order. Payne, supra; K.W., supra; Kelly v. Kelly, 310 Ark. 244, 835 S.W.2d 869 (1992).

In making our determination that the Plan is not a final order, we looked to the language of the Plan. Throughout the Plan, reference is made to the “Final Order.” For example, the Plan states that computations will be made “within thirty (30) days after entry of a Final Order.” In addition, the Plan states that interest will accrue “from July 28, 1999, to the date of entry of a Final Order. ...” The Plan further states that DF&A is to issue refund checks “within forty (40) days after entry of a Final Order.” Also, the Plan orders that attorney’s fees “will be paid within thirty (30) days of the entry of a Final Order.” The circuit court does not state that the Plan is a final order. Rather, in the first sentence of the Plan, the circuit court states: “Pursuant to the Court’s Order dated September 14, 2001 (the ‘Order’), this Plan of Distribution (‘Plan’) is submitted, approved by the Court, and forms a part of the Order entered by the Court.” If the circuit court had intended for the Plan to be the “Final Order,” it would not have referred to the Plan and the final order using separate terms.

The Plan states that “[a]fter all sums have been disbursed, DF& A will file a final report with the Court,” and that “[u]pon approval of the final report, DF&A and the Administrator [Chavers’s counsel] will be discharged.” Clearly, the Plan does not discharge the parties from the action. The Plan plainly states that the circuit court intends to have jurisdiction of the matter until it approves the final report.

In addition, the Plan states that the circuit court “will retain jurisdiction over all issues regarding implementation of the Plan. All distributions are supervised and controlled by [the circuit court].” The Plan states that “[i]n the event the Administrator believes that the Plan is not being implemented, or in the event issues arise that are not covered by the Plan, the Administrator may petition the Court for appropriate relief.” Both statements indicate that the circuit court does not consider the Plan to be a final order.

In a case where a circuit court retains jurisdiction of a matter, it may certify a judgment for appeal pursuant to Rule 54(b) of the Arkansas Rules of Civil Procedure. Rule 54(b) provides, in part, that “[w]hen more than one claim for relief is presented in an action ... or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties. . . .” Ark. R. Civ. P. 54(b) (2002). If the trial court enters a final judgment as to one or more but fewer than all of the claims or parties, it must certify the judgment for appeal. Id. In the present case, the circuit court did not certify the Plan for appeal.

The plain language of the Plan indicates that the Plan is not a final, appealable order. As previously stated, since we have determined that the Plan is not ripe for appeal, it is unnecessary for us to address the arguments contained in the motions submitted by Chavers, Barclay, and Fisher. Our holding renders all motions moot.

Appeal dismissed.

       Appellants Dick Barclay, former director of DF&A, and Jimmie Lou Fisher, Treasurer of the State of Arkansas, are joined in their official capacities, pursuant to an amended complaint filed on August 5, 1999, and are collectively referred to as “DF&A.” Motions submitted to this court identified Barclay and Fisher as separate appellants. We will refer to the parties separately only when necessary.
      We note that Richard Weiss became Director of DF&A on May 1, 2002. Pursuant to Rule 25(d) of the Arkansas Rules of Civil Procedure, when a public officer is a party to an action in his official capacity and during its pendency resigns, the action does not abate and his successor is automatically substituted as a party. Ark. R. Civ. P. 25(d) (2002). Proceedings following the substitution shall be in the name of the substituted party. Id.

       Subsequent to the record being lodged, Barclay filed .this motion with the Pulaski County Circuit Court Clerk on July 10, 2002.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Robert McINTOSH v. STATE of Arkansas
    02-1266
    92 S.W.3d 46
    Supreme Court of Arkansas
    Opinion delivered December 12, 2002

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

Appellant Robert McIntosh, by and through his attorney, R.S. McCullough, has filed a motion for rule on the clerk. In actuality, however, the motion merely asks this court to “direct the Perry County Circuit Clerk to correctly compute the fee for this matter and to present the record to appellant or otherwise make the same available for appellant to be able to prosecute an appeal of this matter.” The essence of this motion is Appellant’s claim that the clerk was attempting to charge him a double fee for preparing the record in this case.

The response, filed by Perry County Circuit Clerk Barbara Lovell, reflects that the transcript was available to be picked up by Mr. McCullough on August 7, 2002, and that Ms. Lovell notified Mr. McCullough’s office on that same date. The response also reflects that no one even attempted to pick up the record before the deadline of August 10, 2002. The response reflects further that Ms. Lovell never indicated to Mr. McCullough or Appellant that the fee had to be paid before the transcript would be delivered. Finally, the response reflects that the transcript was delivered to Mr. McCullough on November 8, 2002, one day after Appellant filed this motion with our court clerk.

This court has repeatedly held that it will grant a motion for rule on the clerk in criminal cases when the attorney admits that the record was not timely filed due to an error on his or her part. Lewis v. State, 347 Ark. 438, 64 S.W.3d 753 (2002) (per curiam); Henderson v. State, 345 Ark. 355, 45 S.W.3d 846 (2001) (per curiam); Houff v. State, 345 Ark. 287, 45 S.W.3d 386 (2001) (per curiam). A statement that it was someone else’s fault or no one’s fault will not suffice. Id. The attorney is responsible for filing the record and cannot shift that responsibility to the trial judge, the court reporter, the circuit clerk, or anyone else. Id.

Here, Mr. McCullough acknowledges that the record has not yet been filed; however, he attempts to justify this failure by blaming the circuit clerk for charging too high a fee for the transcript. Accordingly, because Mr. McCullough fails to accept responsibility for not filing the record within the required time, Appellant’s motion must be denied.

Appellant’s attorney shall file within thirty days from the date of this per curiam order a motion and affidavit accepting full responsibility for not timely filing the record in this case. Upon filing same, the motion for rule on the clerk will be granted, and a copy of the opinion will be forwarded to the Committee on Professional Conduct. See In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).


text:
    Willie MUNN v. STATE of Arkansas
    CR 02-1246
    92 S.W.3d 63
    Supreme Court of Arkansas
    Opinion delivered December 12, 2002

      Danny R Rogers, for appellant.
    No response.
   Per Curiam.

Danny P. Rodgers, Managing Public Defender for the Eighth Judicial District — North and court-appointed counsel for Appellant Willie Munn, has filed a motion to be relieved as counsel on appeal and for appointment of substitute counsel. The motion reflects that Mr. Rodgers was originally appointed to represent Appellant by the Hempstead County Circuit Court on charges of possession of a controlled substance and possession of drug paraphernalia. He then assigned the case to another public defender due to a conflict of interest. Appellant was tried and found guilty on October 23, 2002, and was sentenced to eight years. After the trial, the assigned public defender ceased working in the office. The circuit court entered an order appointing Mr. Rodgers for the sole purpose of filing a notice of appeal on behalf of the appellant. That was done. The judgment and commitment order was filed on October 31, 2002, and the notice of appeal was filed on November 1, 2002.

Mr. Rodgers now seeks to be relieved as counsel on appeal. He asserts that because he is a full-time public defender with a state-funded secretary, he is ineligible for compensation for work performed regarding this appeal, pursuant to this court’s holdings in Rushing v. State, 340 Ark. 84, 8 S.W.3d 489 (2000), and Williams v. State, 347 Ark. 233, 60 S.W.3d 485 (2001) (per curiam). He therefore requests this court to relieve him of his duties on appeal. We grant Mr. Rodgers’s motion to be relieved for good cause shown. See Williams v. State, 347 Ark. 369, 65 S.W.3d 401 (2002) (per curiam). Mr. Danny Williams will be substituted as appellant’s attorney in this matter.

Motion granted.


author:
Per Curiam.
      Robert L. Brown, Justice,

text:
    Melton SMITH v. STATE of Arkansas
    CR 02-1108
    97 S.W.3d 380
    Supreme Court of Arkansas
    Opinion delivered December 12, 2002

      Dennis R. Morlock, for appellant.
    No response.
   Per Curiam.

Appellant Melton Smith was convicted of “Exchanging Money for a Non-Cash Prize,” an unclassified misdemeanor that violated Ark. Code Ann. § 26-57-403. Appellant’s counsel, Dennis Molock, has requested that the clerk accept the record tendered as a result of his notice of appeal. Pursuant to Ark. R. App. P. — Crim. 4(a) (2002), the docketing of the record is governed by the Arkansas Rules of Appellate Procedure — Civil. The clerk has refused to file the record because it was not tendered in conformance with Ark. R. App. P. — Civ. 5(a) and (b) (2002).

Rule 5(a) provides in pertinent part as follows:

The record on appeal shall be filed with the clerk of the Arkansas Supreme Court and docketed therein within 90 days from the filing of the first notice of appeal, unless the time is extended by order of the circuit court as hereinafter provided.

Ark. R. App. P. — Civ. 5(a) (2002). Rule 5(b) provides in pertinent part as follows:

In cases where there has been designated for inclusion any evidence or proceeding at trial or hearing which was stenographically reported, the circuit court, upon finding that a reporter’s transcript of such evidence or proceeding has been ordered by appellant, and upon a further finding that an extension is necessary for the inclusion in the record of evidence of proceedings stenographically reported, may extend the time for filing the record on appeal, but the order of extension must be entered before the expiration of the period for filing as originally prescribed or extended by a previous order.

Ark. R. App. P. — Civ. 5(b) (2002) (emphasis added).

The relevant dates in this case are as follows:

January 15, 2002 Judgment entered
February 8, 2002 First notice of appeal filed timely by appellant
February 8, 2002 Letter sent by appellant (treated as posttrial motion by trial court)
March 4, 2002 Order denying posttrial motion entered timely
March 5, 2002 Effective date of first notice of appeal
March 15, 2002 Second notice of appeal filed that included appeal of denial of posttrial motion
May 16, 2002 Motion for extension of time to file transcript filed
June 6, 2002 Order granting extension of time to file record to 10/4/02
October 2, 2002 Record tendered to the Supreme Court Clerk

On January 15, 2002, a judgment was entered and filed in Arkansas County. Appellant timely filed his first notice of appeal on February 8, 2002. Appellant also sent a letter to the trial court on February 8, 2002, in which he asked for reconsideration of his sentence. The trial court treated this letter as a posttrial motion, and on March 4, 2002, the trial court timely denied this motion, thus making the first notice of appeal’s effective date March 5, 2002, pursuant to Ark. R. App. P. — Crim. 2(b)(2) (2002).

Without the posttrial motion, the record would have been due to be filed on or before May 9, 2002; but if the letter was correctly interpreted as a post-trial motion, the record was accordingly due to be filed on or before June 3, 2002, which would be ninety days from the effective date of the filing of the first notice of appeal, pursuant to Ark. R. App. P. — Civ. 5(a). At this point, any order by the trial court for an extension to file the record would also have been required to be filed on or before June 3, 2002, pursuant to Ark. R. App. P. — Civ. 5(b) as quoted earlier.

After the trial court’s denial of the “post-trial motion” letter, appellant filed a timely second notice of appeal on March 15, 2002. In reading this second notice of appeal, it is apparent that it is merely verbatim the first notice of appeal with an additional clause to add an appeal of the denial of the posttrial motion. Ark. R. App. P. — Crim. 2(b)(2) allows a party who seeks to appeal from the grant or denial of a posttrial motion to amend a previously filed notice of appeal. That is exactly what happened in this case. As stated earlier, Mr. Molock filed a first notice of appeal after the judgment was entered, appealing the judgment. Because of the filing of the posttrial motion, however, the first notice of appeal was not made effective until March 5, 2002, pursuant to Ark. R. App. P. — Crim. 2(b)(2):

A notice of appeal filed before disposition of any post-trial motions shall be treated as filed on the day after the entry of an order disposing of the last motion outstanding .... Such a notice is effective to appeal the underlying judgment or order. A party who also seeks to appeal from the grant or denial of the motion shall within thirty (30) days amend the previously filed notice. . . .

Thus, the first notice of appeal was effective to appeal the judgment. Nothing that happened later — the posttrial motion, the denial of the posttrial motion, or the filing of a second (amended) appeal — served to nullify the first notice of appeal. The second notice of appeal served only to amend the first notice so as to add an appeal of the denial of the posttrial motion, as allowed by Rule 2(b)(2). For this reason, the second notice of appeal is of no consequence in this motion for rule on clerk because the Arkansas Rules of Appellate Procedure are clear that the tendering of the record is clocked from the date of the filing of the first notice of appeal. See Street v. Kurzinski, 290 Ark. 155, 717 S.W.2d 798 (1986) (“The reference to the ‘first’ notice of appeal removes any possible doubt . . . when [the] party files notices of appeals from different orders. Here the 90 days began to run from the filing of the first notice of appeal . . .”).

Rule 5 of the Arkansas Rules of Appellate Procedure— Civil further provides that the trial court may order an extension of time to file the record, but the order must be entered before the expiration of the ninety-day period provided in subsection (a). Ark. R. App. P. — Civ. 5(b). See also Smith v. State, 341 Ark. 252, 15 S.W.3d (2000). Appellant filed a motion for extension of time to file transcript pursuant to Rule 5(b) on May 16, 2002. The trial court entered an order granting the extension, but that order was entered and filed on June 6, 2002, which was more than ninety days after the effective date the first notice of appeal was filed.

The dissent incorrectly states that the majority would start the running of the mandatory ninety-day record-filing period on March 5, 2002. This is because the mandatory ninety-day period begins with the date of the filing of the first notice of appeal, although the date of that notice of appeal is not effective until the day after the granting or denial of the posttrial motion if the first notice of appeal was filed before disposition of a posttrial motion. Once again, that is exactly what happened in this case. The running of the ninety-day time period would have begun on February 8, the date the first notice of appeal was filed, if appellant had not filed his posttrial motion. However, because the posttrial motion was filed, the first notice of appeal was not considered filed until the day after the denial of the motion — March 5. In a case in which there is no notice of appeal filed before disposition of a posttrial motion, the first notice of appeal would be the notice filed after the grant or denial of the posttrial motion pursuant to Ark. R. App. P. — Crim. 2(b)(1), which states in pertinent part:

. . . Upon timely filing in the trial court of a post-trial motion, the time for filing a notice of appeal shall be extended for all parties. The notice of appeal shall be filed within thirty (30) days from entry of the order disposing of the last motion outstanding. However, if the trial court neither grants nor denies the motion within thirty (30) days of its filing, the motion shall be deemed-denied by operation of law as of the thirtieth day, and the notice of appeal shall be filed within thirty (30) days from that date.

Ark. R. App. P. — Crim. 2(b)(1).

The dissent also states that it “seems bizarre that a notice of appeal from a judgment would be presumed to be a notice of appeal from the order denying the motion for reconsideration.” This statement, however, is inaccurate. The first notice of appeal did nothing more than appeal the judgment, but the first notice of appeal was not made effective until the day after the denial of reconsideration. The second notice of appeal acted as an amended notice of appeal and simply added an appeal of the denial of the posttrial motion. The majority is well aware that only the March 15 notice appealed both the judgment and the denial of the posttrial motion. However, because Ark. R. App. P. — -Civ. 5(a) specifically states that the running of the mandatory 90-day record-filing period begins with the date of the filing of the first notice of appeal, and because the effective date of that first notice was March 5, we simply have no choice but to follow that rule. To follow the dissent’s reasoning would be to find the term “first” superfluous, and would in effect mean that the notice of appeal filed latest would begin the running of the 90-day period. That reasoning is in direct conflict with Rule 5(a).

This court has long held that we will grant a motion for rule on the clerk when the attorney admits that the record was not timely filed due to an error on his part. Owen v. State, 342 Ark. 6, 26 S.W.3d 122 (2000); Beavers v. State, 341 Ark. 649, 19 S.W.3d (2000). Here, Mr. Molock does not admit fault, but instead states that he “relied in good faith upon the time schedule set forth in the Order of the Circuit Court entered June 6, 2002 and tendered the record for filing within the time period established by such Order.” However, because that June 6 order was untimely, it was ineffective, and the record had to be filed either by May 9, 2002, or by June 3, 2002, depending upon whether or not the February 8, 2002, letter was effective as a posttrial motion.

We have held that an attorney’s statement that it was someone else’s fault, or no one’s fault, that a record was submitted untimely will not suffice. See Owen v. State, supra. Furthermore, this court has held that the attorney is responsible for filing the record and cannot shift that responsibility to another. Owen v. State, supra. Because Mr. Molock fails to accept responsibility for not filing the record within the required time, appellant’s motion must be denied.

Appellant’s attorney shall file within thirty days from the date of this per curiam order a motion and affidavit in this case accepting full responsibility for not timely filing the record in this case, and upon filing same, the motion for rule on the clerk to accept the record will be granted.

Motion denied.

Brown, Thornton, and Hannah, JJ., dissent.

Robert L. Brown, Justice,

dissenting. I do not know what defense counsel did wrong in this case. Yet, the majority concludes he was negligent and refers him to the Committee on Professional Conduct for disciplinary proceedings. I disagree and would grant the motion for rule on clerk.

On January 15, 2002, judgment was entered against Melton Smith for operating an amusement game which provided cash rewards for the winner, which is a misdemeanor. See Ark. Code Ann. § 26-57-403(b) (Repl. 1997). He was sentenced to nine months in the county jail. On February 8, 2002, he filed his notice of appeal from that judgment. Also, on February 8, 2002, a copy of a letter from Smith written to the circuit judge was received by the circuit clerk asking for reconsideration of his sentence and specifically for a suspension of sentence. This letter was treated as a post-trial motion by the circuit judge. On March 4, 2002, the circuit judge entered an order denying Smith’s motion for reconsideration. On March 15, 2002, Smith filed a notice of appeal, appealing both the judgment of conviction and the denial of his motion for reconsideration.

The majority concludes, erroneously in my judgment, that the only effective notice appeal was the one filed February 8, 2002, and that this notice was effective under our rules the day after the order was entered denying the motion for reconsideration, which would be March 5, 2002. Smith’s counsel obtained an order extending the time to file the record, and that order was entered on June 6, 2002. If you count the 90 days for filing the record or extension from March 15, 2002, that order was timely. If you count the 90 days from March 5, 2002, the order was untimely.

It is, as an initial matter, somewhat ironic that we use a rule that was designed to avoid a procedural pitfall for early filings of notices of appeal as a trap for this defense counsel. Clearly, the rule for considering the notice of appeal to be filed after the date of judgment was for the purpose of eliminating a procedural default. See Ark. R. App. P. — Crim. 2(b)(2). It also had its origin in the fact that some notices of appeal were being filed after oral denial of a post-trial motion but before entry of the written order. That, of course, is not the situation in the case before us.

It next seems bizarre that a notice of appeal from a judgment would be presumed to be a notice of appeal from the order denying the motion for reconsideration. It does not even purport to be an appeal from the latter. Only the notice of appeal filed on March 15, 2002, states that it is giving notice of an appeal from both the judgment and the denial of the motion for reconsideration.

The operable rule appears to be Ark. R. App. P. — Crim. 2(b)(2), which reads:

A notice of appeal filed before disposition of any post-trial motions shall be treated as filed on the day after the entry of an order disposing of the last motion outstanding or the day after the motion is deemed denied by operation of law. Such a notice is effective to appeal the underlying judgment or order. A party who also seeks to appeal from the grant or denial of the motion shall within thirty (30) days amend the previously filed notice, complying with subsection (a) of this rule. No additional fees will be required for filing a notice of appeal.

It appears to me that counsel for Smith did precisely what was required of him. He timely filed a new notice of appeal from both the judgment and the denial .of the reconsideration motion for a suspended sentence. This is not a second notice of appeal from the same judgment but rather an amended notice of appeal from the judgment and a subsequent denial of the motion to suspend his sentence.

In addition, the majority cites to inapposite authority. See Street v. Kurzinski, 290 Ark. 155 717 S.W.2d 798 (1986). In Street, the post conviction motion was filed before entry of judgment and was deemed denied before entry of judgment. Thus, the first notice of appeal filed after entry of judgment was an appeal from both the judgment and the deemed-denied motion. In the instant case, we have a notice of appeal solely from the judgment and a notice of appeal from the judgment and denial of the motion for reconsideration.

The majority would start the running of the mandatory period of 90 days for filing a record on March 5, 2002, the day after denial of the motion for reconsideration. The majority does this by treating the first notice of appeal as effective the day after the order of denial, though the first notice of appeal had nothing to do with the denial of the reconsideration motion. The defendant’s amended notice of appeal was filed on March 15, 2002. Defense counsel believed, correctly in my judgment, that he had 90 days from the March 15 notice of appeal to file his record since that amended notice of appeal was from both the judgment and denial of reconsideration. The ultimate effect of the majority’s interpretation of our rules is to shorten the 90 days available for filing the record. That is not right. I would grant the motion for rule on clerk and, for that reason, I dissent.

Thornton and Hannah, JJ., join in this dissent.


author: Tom Glaze, Justice.

text:
    ARKANSAS HEALTH SERVICES COMMISSION; Arkansas Health Services Agency; Sandra Winston, in Her Official Capacity as Director of the Arkansas Health Services Agency, v. REGIONAL CARE FACILITIES, INC.
    01-1106
    93 S.W.3d 672
    Supreme Court of Arkansas
    Opinion delivered December 19, 2002

      Mark Pryor, Att’y Gen., by: Warren T. Readnour, Ass’t Att’y Gen., for appellant.

      Pam Roberts; and Hilburn, Calhoon, Harper, Pruniski & Calhoon; Ltd., by: Sam Hilburn, for appellee.
   Tom Glaze, Justice.

The State has appealed from the trial court’s granting of summaiy judgment in favor of Regional Care Facilities, Inc., a Benton County-based company that applied for a permit to construct a nursing home in Benton County. This appeal presents a question of whether a rule adopted by the Arkansas Health Services Commission constitutes special or local legislation in violation of Ark. Const, amend. 14; our jurisdiction arises under Ark. Sup. Ct. R. l-2(a)(l).

The Commission is vested with the authority to approve permits of approval for the construction of new nursing homes in the state. See Ark. Code Ann. § 20-8-104(d) (Repl. 1991). In order to determine whether new nursing home beds are needed in a particular county, the Commission has adopted certain “methodologies” that look at populations and occupancy rates in the county. At a meeting on March 19, 1999, the Commission adopted an “emergency rule” to create a one-time exception to its population-based methodology. Prior to the change, this population-based methodology allowed the Commission to determine the need for additional nursing home beds merely by determining the difference between the total beds that exist for an area and the projected need for beds in the future. For a “need” for new nursing home beds to exist, a county’s population figures must show a projected bed need, and the occupancy levels of existing facilities in the county must show that the facilities have been, on average, at least 94.5% occupied during the previous fiscal year.

At least part of the reason for adopting the March 1999 emergency rule was to respond to repeated requests for additional nursing home beds in the Bella Vista area of Benton County. Residents of Bella Vista, members of the Bella Vista Long Term Care Committee, representatives of Washington Regional Medical System (a Benton County-based nursing home company doing business as Bella Vista Health Care) and members of the Arkansas General Assembly from Benton and Washington Counties had all made such requests. Indeed, from 1996 until the filing of this lawsuit, Washington Regional had worked in conjunction with the Bella Vista Long Term Care Committee to seek a permit for Washington Regional to construct a new nursing home in Benton County. In fact, Washington Regional in 1996 had applied for, and the Commission granted, a permit to construct a new nursing home, but the Commission’s decision to award it a permit was later reversed by a Pulaski County .court in 1997.

Thereafter, Washington Regional submitted a proposal to the Commission in the form of a new rule change that would create an exception whereby the 94.5% occupancy requirement could be disregarded. Washington Regional’s proposal was subsequently adopted by the Commission in March 1999, and that new rule permitted the occupancy requirement to be disregarded one time in order to approve a new 70-bed facility in a county where the projected need for the county exceeded the “existing” (i.e. licensed and approved) beds by 150 or more beds. When this new rule was adopted in March 1999, the Commission believed that Benton County was the only county in the state that fell within the provisions of the new rule. The Commission later learned that other counties could comply when, in May of 1999, two separate applicants applied to construct new nursing homes in Garland and Pulaski counties.

In June of 1999, the Commission repealed the March 1999 emergency rule on the expressed grounds that an improper notice had been given. After repealing the March 1999 rule, the Commission then adopted a modified version on August 19, 1999, which read as follows:

The Commission may disregard the overall county occupancy one time in order to approve a 70-bed facility in a county where the projected need for the county exceeds the “existing” (i.e. licensed and approved) beds by 250 or more beds. This rule could be used every three (3) years.

(Emphasis added.) The effect of this change was to make the rule applicable only to Benton County, since that county was the only one whose projected need exceeded 250 or more beds. In this respect, the Commission’s August 1999 rule excluded Garland and Pulaski counties by increasing the earlier 150-bed requirement to 250 or more beds. It also added that the rule could be used only every three years. The Commission expressed no explanation for this increase in beds. In sum, under the permanent August 1999 version of the rule, only one new 70-bed facility could be added in a county showing a need for over 250 additional beds.

Prior to the Commission’s adoption of the August 1999 rule, Regional Care Facilities, Inc. had filed an application for a permit to construct a new nursing home in the Bella Vista area of Benton County, but the Commission voted to deny Regional Care’s application in May of 1999. In early November of 1999, Washington Regional submitted an application for a permit of approval under the August 1999 rule, but prior to the Commission’s acting on that application, Regional Care filed a complaint on November 30, 1999, seeking a declaratory judgment to have the August 1999 rule declared invalid as special or local legislation. In the complaint, Regional Care asserted that the issuance of a permit to Washington Regional would affect and jeopardize the feasibility and existence of Regional Care’s proposed facility; for that reason, Regional Care sought both a declaration that the new rule was invalid and a preliminary injunction restraining the Commission from applying the rule and accepting or acting upon applications under the rule.

The trial court denied the preliminary injunction, finding that Regional' Care had failed to establish that it would be irreparably harmed in permitting the Commission to hear and consider Washington Regional’s application. Subsequently, Regional Care filed a motion for summary judgment, contending that it was entitled to a judgment as a matter of law on the basis that the Commission had acted arbitrarily and in violation of Ark. Const, amend. 14, which prohibits special and local legislation.

The circuit court granted Regional Care’s summary judgment motion, finding .there was no rational basis for excluding from the rule other counties, such as Garland and P.ulaski, that showed a population-based net numerical need but low occupancy. The court further noted that, if the Commission’s recent August 1999 rule was intended to meet a need for additional beds, then there was no rational basis for excluding Garland and Pulaski and other counties showing a net numerical need from the rule. The Commission has appealed the trial court’s order, arguing the court erred in two respects: 1) in concluding' that the rule was special or local legislation; and 2) in considering the deposition testimony of members of the Commission regarding their opinions bearing on the intent and purpose of the rule.

The first issue we address is whether the amended rule adopted by the Commission in August of 1999 constitutes special or local legislation in violation of Amendment 14 to the Arkansas Constitution. This Amendment states that “[t]he General Assembly shall not pass any local or special act.” In Arkansas Game & Fish Comm’n v. Clark, 192 Ark. 840, 96 S.W.2d 699 (1936), this court determined that the General Assembly could not grant a state agency the authority to promulgate regulations contrary to Amendment 14.

When considering the validity of a regulation, the court must give the regulation the same presumption of validity as it would a statute. National Park Med. Ctr., Inc. v. Arkansas Dep’t of Human Servs., 322 Ark. 595, 911 S.W.2d 250 (1995). In reviewing the adoption of regulations by an agency under its rule-making procedures, a court is limited to considering whether the administrative action was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law. Department of Human Servs. v. Berry, 297 Ark. 607, 764 S.W.2d 437 (1989) (citing Arkansas Pharmacists Assoc. v. Harris, 627 F.2d 867 (8th Cir. 1980)). A court will not attempt to substitute its judgment for that of the administrative agency. Id. (citing Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971)). A rule is not invalid simply because it may work a hardship, create inconveniences, or because an evil intended to be regulated does not exist in a particular case. Id.

An act is special if, by some inherent limitation or classification, it arbitrarily separates some person, place, or thing from those upon which, but for such separation, it would operate, and the legislation is local if it applies to any division or subdivision of the state less than the whole. Hall v. Tucker, 336 Ark. 112, 983 S.W.2d 432 (1999); Fayetteville Sch. Dist. v. Arkansas State Bd. of Educ., 313 Ark. 1, 852 S.W.2d 122 (1993); Owen v. Dalton, 296 Ark. 351, 757 S.W.2d 921 (1988). Merely because a statute ultimately affects less than all of the state’s territory does not necessarily render it local or special legislation. Boyd v. Weiss, 333 Ark. 684, 971 S.W.2d 237 (1998); Littleton v. Blanton, 281 Ark. 395, 665 S.W.2d 239 (1984). Instead, we have consistently held that an act of the General Assembly (or, as here, an administrative agency) that applies to only a portion of the state is constitutional if the reason for limiting the act to one area is rationally related to the purposes of that act. McCutchen v. Huckabee, 328 Ark. 202, 943 S.W.2d 225 (1997). Although a law may be limited in effect only to a few classifications, it is not necessarily special or local legislation if the classification is not arbitrary and bears a reasonable relation to the purpose of the law. Foster v. Jefferson County Bd. of Election Comm’rs, 328 Ark. 223, 944 S.W.2d 93 (1997).

Here, the State concedes that the application of the rule affects only Benton County. The question, therefore, is whether this separation of Benton County was done arbitrarily. Other cases striking statutes as special or local legislation have discussed what constitutes an arbitrary classification. For example, in Littleton v. Blanton, supra, the law in question, Act 616 of 1975, provided that any municipality of the first class located in any county having a population of not less than 26,500 nor more than 28,000 according to the 1970 Federal Census could establish a municipal court with the same jurisdiction as courts of the Justice of the Peace, which jurisdiction shall be coextensive with the township. Further, the mayor of the municipality could designate any qualified elector of the township, or any licensed attorney, to serve as judge of the court. The stated purpose of the Act was to “provide an alternative procedure for the creation of the municipal court by a city of limited financial means and lacking a local attorney.” Littleton, 281 Ark. at 397.

The Littleton court reversed the lower court’s finding that Act 616 did not violate the Constitution. Noting that the Act could only apply to Marked Tree, in Poinsett County, the court first cited the rule that “generality ends and specialty begins where the class established by the Act has no reasonable relation to the purpose or subject matter of the enactment and omits from its operation persons or areas which would fall naturally into the class to which the act is limited.” Id. at 399. The court then went on to conclude that Act 616 was local because of its arbitrariness, writing as follows:

Act 616 can never apply to any county other than Poinsett County. The announced purpose of the Act is to enable a city of the first class but of limited financial means and lacking a local attorney an alternative means of creating a municipal court; but a population classification applying only to a county of not less than 26,500 nor more than 28,000 according to the 1970 Federal Census is arbitrary and has no reasonable relationship to cities of limited financial means or lacking a local attorney. According to the 1970 census, Marked Tree had a population of 3,208; there were 32 municipalities in Arkansas with a population of between 2,500 and 5,000 in 1970. There could well have been cities of limited financial means and lacking a local attorney in counties other than Poinsett County.
# jfi íjí
Whether or not Act 616 was passed for the benefit of [the then-sitting judge in Marked Tree], limiting the Act to Poinsett County is arbitrary and bears no reasonable relation to the announced intention of the Act to provide an alternate procedure for the creation of a municipal court by a city of limited financial means and lacking a local attorney. 2jf there was in fact a real need for such a court, it is arbitrary and unreasonable to assume that such a need existed only in Poinsett County. Act 616 is a shining example of the type of local and special legislation which the people sought to stop by the adoption of Amendment 14.

Id. at 404 (emphasis added).

Another case where an act was found arbitrary and special legislation is Knoop v. City of Little Rock, 277 Ark. 13, 638 S.W.2d 670 (1982). There, this court invalidated an act that directed cities with populations over 100,000 and a city manager form of government to elect the mayor by a majority vote. Only Little Rock met this criteria. The chancellor had ruled that the purpose of the act was to make the legislative body and mayor of larger cities more responsive to the voters, and that the Act was therefore not special or local legislation. This court, however, reversed, emphasizing that, in determining whether an act is general, local, or special, we “look to its substance and practical operation, rather than to the form or phrasing of the act; otherwise, the prohibition against special and local legislation . . . could easily be circumvented.” Knoop, 277 Ark. at 15. Because the act granted to one city powers in the election of its governing officials not granted to other cities with the same form of government, this court was unable to discern that there was any reasonable connection between a city having a population in excess of 100,000 and the desirability of the act’s electoral provisions. On this question, the court wrote as follows:

[The powers of a mayor] are the same whether the mayor is selected by the directors or by direct election with a majority vote. In the absence of reasonable statutory difference in the powers or functions of the mayors of cities of different sizes, we cannot, although the act is accorded presumptive validity, find any reasonable basis for granting to one city but not others the power of directly electing its mayor and holding runoff elections for the positions of mayor and city directors two weeks after the general election.

Id. at 16-17.

Further, our court in Humphrey v. Thompson, 222 Ark. 884, 263 S.W.2d 716 (1954), invalidated Act 273 of 1953, because there was no rational basis for singling out one particular county. In Humphrey, the General Assembly passed Act 273, which was intended to establish a vocational school “in all counties having a population of less than 6,000 according to the 1950 Census.” Perry County was the only county that fit within that classification. Testimony was introduced in the case that showed there was no reason why Perry County, and not other counties, should have been singled out for the construction of a vocational school; one witness testified that he knew of “no reason for Perry County having any special need over these counties [such as Montgomery County, which had a population of 6,680] that have a few more population than Perry County.” Humphrey, 222 Ark. at 889. Because the population of a county afforded no basis on which to justify the classification, and because the “local act affects only one locality arbitrarily selected,” the court held that Act 273 violated the prohibition against special and local legislation. Id. at 890 (emphasis added).

However, we also are mindful of cases where legislation that obviously applied to only one locality was held valid, because a legitimate reason existed for singling out one particular city. For example, in Boyd v. Weiss, 333 Ark. 684, 971 S.W.2d 237 (1998), the law in question, Act 48 of 1977, permitted residents in border cities divided by a “street state line” to pay an additional one percent sales tax in exchange for an exemption from the state sales tax. The stated purpose of Act 48 was to equalize the tax burden for residents in these border cities, thereby offering tax inducements to people to locate their homes and businesses in Arkansas. The only city divided by a street state line was Texarkana, Arkansas. Boyd, 333 Ark. at 687.

This court rejected claims that Act 48 constituted special or local legislation, because the Act “ha[d] a valid purpose . . . to protect the border city by removing the inducement for that city to settle across the state line.” Id. at 691. This court dismissed the argument that the Act arbitrarily treated Texarkana more favorably than a city like West Memphis, pointing out that West Memphis and Memphis, Tennessee, are separated by several miles and by the Mississippi River, but Texarkana, Arkansas, and Texarkana, Texas, were separated merely by a simple fine on the map. Our court observed that “moving a home across one city street in what is essentially a combined city is categorically different from moving some distance away across a major waterway into a completely different urban environment.” Id. at 692. For that reason, the legislature’s decision to limit the effect of Act 48 to Texarkana was not arbitrary. Because the geographical limitation was rationally related to the purposes of the Act, the court declined to hold that Act special or local legislation. Id. at 694.

Our court decided the case of McCutchen v. Huckabee, 328 Ark. 202, 943 S.W.2d 225 (1997), utilizing the same reasoning. There, the challenged law was Act 739 of 1995, which appropriated $20 million to the Department of Finance and Administration to defray the cost for construction of a multipurpose civic center in Pulaski County. McCutchen, 328 Ark. at 205. The purpose of Act 739 was to “provide funds for the construction of a multipurpose civic center which would increase tourism, recreation, and economic development throughout the entire state.” Id. at 209. This court found the singling out of Pulaski County for the location of the civic center to be rationally related to the purposes of the Act, because Pulaski County was the most populous county in the state, was centrally located, and was the seat of state government. These reasons, the court held, were “[n]either arbitrary [n]or capricious,” and therefore, concluded that the decision to construct the civic center in Pulaski County was rationally related to the intended purposes of Act 739. Id.

In the present case, as noted above, the question is whether or not the August 1999 amendment was rationally related to the purpose of the rule, since the rule affected only Benton County. In viewing the facts in a light most favorable to the Commission, the trial court held yes, finding the legitimate purpose for the August 1999 amended rule was to meet a need for additional nursing home beds. The court stated that, for purposes of summary judgment, it accepted as true the Commission’s contention that the amended rule applied to every county in the State because, in the future, other counties may have net numerical bed needs of 250 or more and have less than 94.5% occupancy. However, the trial court then concluded that it found no rational basis for excluding from the rule other counties showing a population-based net numerical need but low occupancy, stating that it could find no reason “for disregarding low occupancy in only one county when other counties showed net numerical need for additional nursing home beds in excess of 70 beds.”

We disagree with the trial court’s ruling. We first reiterate our standard of review in matters such as these: this court will presume that legislation is constitutional and that it is rationally related to achieving a legitimate governmental objective. See Streight v. Ragland, 280 Ark. 206, 655 S.W.2d 459 (1983). Further, it is not the court’s role to discover the actual basis for the legislation; rather, our role is merely to consider if any rational basis exists which demonstrates the possibility of a deliberate nexus with state objectives so that the legislation is not the product of utterly arbitrary and capricious government and void of any hint of deliberate and lawful purpose. Id. When dealing with agency rules, we recognize that administrative agencies are better equipped by specialization, insight through experience, and more flexible procedures than courts to determine and analyze issues affecting their agencies. See Arkansas Health Services Agency v. Desiderata, 331 Ark. 144, 958 S.W.2d 7 (1998).

It is not arbitrary to conclude that, regardless of the occupancy rate requirement the population-based methodology, a nursing home is needed in any county where the projected bed need exceeds the existing bed need by 250 or more beds. It is within the discretion and expertise of the Commission to determine the criteria necessary for determining whether a nursing home is needed in any county. Additionally, it is reasonable to set the number at 250 in order to ensure that there is truly a need for new nursing home beds before overriding the occupancy-rate requirement. Both before the trial court and at oral argument, counsel for the State described the August 1999 rule as a “relief valve” that does not dispense with the occupancy requirement altogether, but instead permits the Commission to disregard the occupancy rate in a county where the projected need for that county exceeded the existing number of beds by 250 or more. By granting a permit for one new 70-bed nursing home in the face of a county’s projected need for 250 beds over the next five years, even though the occupancy rate in that county is still below 94.5%, the Commission can determine whether the need is eased and can plan for future needs accordingly.

On the subject of future needs, and in further support of its argument that the classification is reasonable, the State cites the cases of Murphy v. Cook, 202 Ark. 1069, 155 S.W.2d 330 (1941), and McLaughlin v. Ford, 168 Ark. 1108, 273 S.W. 707 (1925), wherein this court validated population-based statutes that were open-ended, that is, while the acts applied to only one county at the time of their enactments, it was conceivable that other counties could grow into that population bracket in the future. This prospective operation of the acts in issue in these two cases saved them from being unreasonable and arbitrary. For instance, in McLaughlin, a pre-Amendment 14 case, a 1923 act applied to “cities [with a commission form of government] which [had] a population of 25,000 or more according to the latest census taken by authority of the United States government.” When the 1923 act was enacted, Fort Smith was the only city to meet the criteria. However, the McLaughlin court held that, “although it may happen that but one city may fall within the class named by the Legislature, it does not follow that other cities may not in the future come within the class and thereby be governed by the provisions of the act.” McLaughlin, 168 Ark. at 1113. The Murphy court, faced with a similar situation, relied on McLaughlin to approve a statute that applied only to cities that had a population of 5,000 or more. There, Act 41 of 1941 stated that it was “intended to apply to all the counties of the state which now have cities of a population of 5,000 inhabitants or which may hereafter have cities of 5,000 population.” Because other cities could easily come within this classification in the future, the Murphy court held Act 41 valid.

The State urges that the Commission’s rule at issue here could, in the future, apply to other counties. Particularly, the State points out that “an applicant in any county in the State where the projected nursing home bed need exceeds the number of existing licensed beds in that county by 250 or more beds may apply for and receive a permit of approval to operate a seventy-bed facility.” Further, the State urges, under the rule in question, other counties in the state where the projected bed need has not yet exceeded the existing bed need by 250 or more could subsequently come under the provisions of the regulation. The State notes that, at the time of the summary-judgment hearing, there was one county at 209 and one county at 160, and contends that both counties likely will meet the criteria within the next few years.

We agree. Under the August 1999 rule, it is conceivable that other counties in the State will, in the future, come under its provisions. At the time the circuit court heard this matter, Garland County was projected to have a need for 209 beds by the year 2005, and Pulaski County was projected to have a need for 160 beds by that time. Clearly, as the need for more nursing home beds increases in this state, counties other than Benton County will come within the ambit of the August 1999 rule. As in McLaughlin and Murphy, it is not unreasonable to expect that other counties will come within the rule’s classification in the future, and therefore, we conclude that the Commission did not act arbitrarily in singling out Benton County.

The State raises as a second point on appeal that the trial court’s alleged error in granting summary judgment, at least in part, on the basis of the depositions of numerous Commission members who testified about the intent and purpose of the August 1999 rule. However, because we reverse on the point discussed above, it is unnecessary for us to consider this second issue further.

For the reasons above, we reverse and remand the trial court’s decision.

       In Wagnon v. Arkansas Health Services Agency, 73 Ark. App. 271, 40 S.W.3d 849 (2001), the court of appeals affirmed the Commission’s decision that the emergency rule adopted in March of 1999 was invalid. That lawsuit was filed by a Garland County resident who applied for a permit to construct a nursing home on May 3, 1999. The reason that the court held the rule invalid was because the emergency rule failed to state its reasons for finding that there was an “imminent peril to the public health, safety, or welfare.” Wagnon, 73 Ark. App. At 372; Ark. Code Ann. § 25-15-204(f) (Supp. 1999).

       In January of 2000, a Pulaski County court reversed the Commission’s denial of Regional Care’s application and awarded Regional Care a permit to construct a new nursing home in Bella Vista.

       Neither Regional Care nor any nursing home other than Washington Regional had applied for a 70-bed permit when this suit was filed.


author: Robert L. Brown, Justice.

text:
    Amanda LEWELLYN v. Tim LEWELLYN
    02-752
    93 S.W.3d 681
    Supreme Court of Arkansas
    Opinion delivered December 19, 2002

      Mobley Law Firm, by: Jeff Mobley, for appellant.

      Dunham & Faught, P.A., by: James Dunham, for appellee.
   Robert L. Brown, Justice.

Appellant Amanda Lewellyn-Fleming appeals the trial court’s order awarding sole custody of their children to appellee Tim Lewellyn. She contends that changing joint custody of the children in both parents to sole custody in Tim constituted an abuse of discretion by the trial court and urges, instead, that she should have sole custody, as she relocates with a new husband from RusseEviEe to FayetteviEe. She further contends that substantial evidence does not exist for placing sole custody of the children in Tim and, thus, the trial court’s finding that a change of custody was in the best interests of the children was clearly erroneous. We disagree on both points and affirm the trial court.

On June 18, 1988, Tim and Amanda Lewellyn married. They had two chEdren during their twelve-year marriage: KeEy born in 1991, and Jake born in 1997. On December 5, 2000, the trial court granted the LeweEyns an uncontested divorce. With respect to child custody, the divorce decree provided that the parties would be bound by the court’s standard visitation order, as modified by the decree. The divorce decree designated Amanda as the “custodial parent” and Tim as the “non-custodial parent.” The decree also provided that Tim and Amanda would have joint custody of KeEy and Jake, with each parent enjoying physical custody of the chEdren on alternating months, and, for the noncustodial parent, weekly visits at midweek and every other weekend on off-months. Holidays were to be equally divided between the parties.

The divorce decree further contained an agreement that Kelly and Jake were to remain in the Russellville School District. To enforce this agreement, the decree contained a change-of-residency provision, which read:

Neither of the parties shall remove their primary residence more than 25 miles from the Pope County Courthouse without prior approval of the opposite party. Any change of residence more than 25 miles from the Pope County Courthouse without approval of the opposite party shall constitute a change of circumstances to be considered by the Court with respect to the issue of custody.

The divorce decree prohibited overnight “romantic partner[s]” while the children were present.

On June 16, 2001, Tim filed a show-cause petition in the trial court in which he alleged that Amanda had an overnight romantic guest in violation of the divorce decree. Amanda answered and stated that she had married a man named Denis Fleming. She attached a copy of her marriage license in support of her answer. On July 24, 2001, Amanda filed an “Exparte (sic) Petition for a Change in Custody and Other Relief.” She stated that Denis Fleming worked in Fayetteville and that she had found work in that city at a higher rate of pay — between $2.50 and $3.00 per hour — than what she had in Russellville. Citing the change-of-residency clause in the divorce decree, she argued that a material change in circumstances had taken place and asked for sole custody of the children and permission to move them to Fayetteville. In support of her petition, she argued for an emergency change in custody so that she could enroll Kelly and Jake in the Fayetteville public schools. Tim counterclaimed for custody of Kelly and asserted that the reason the change-of-residency clause was included in the divorce decree in the first place was because Kelly wished to stay in the Russellville school district. On August 8, 2001, the trial court denied Amanda’s motion.

On August 9, 2001, Amanda filed a petition for a change in the custody of the children, repeating the reasons she had given in the request for an ex parte order. Tim amended his counterclaim with an allegation that Mr. Fleming had mistreated Kelly, and asked for sole custody of both children.

On August 30, 2001, the trial court held a hearing on the parties’ motions for change in custody. The first witness called was Dr. Dan Ott, a licensed psychologist, who testified for Tim by way of a deposition. Fie testified about several counseling sessions that he had had with the Lewellyns, both before and after their divorce. According to Dr. Ott, after the divorce, Tim brought Kelly to him for counseling to help her cope with the divorce. He then testified generally about the negative effects of divorce on children and related the tumultuous school experiences of Kelly. She attended Westside Elementary School in Jonesboro for the first grade, was home-schooled for second grade after the random murders occurred at that school, and then went to Crawford Elementary in Russellville for the third grade. He testified that Kelly expressed a desire to say in the Russellville School District.

Dr. Ott also testified that he was concerned about the emotional impact on Kelly in moving to Fayetteville and adjusting to life there. He expressed concern about the new environment in Fayetteville with Mr. Fleming, and stated that Kelly had told him of her conflict with Mr. Fleming. He further testified that Kelly complained that her mother spent excessive time on her computer. Dr. Ott recommended that the court give “serious consideration” to Kelly’s desire to stay in Russellville.

Amanda testified on her own behalf and told the court that her new husband worked as a vice-president of a real estate and construction firm and that she and her husband lived in a two-bedroom apartment in Fayetteville. She characterized Kelly and Jake as “obedient, polite, very loving children.” She expressed a willingness to afford Tim liberal visitation. On cross examination, she admitted that the children slept in a converted computer room in the new apartment and stated that she did not agree with Dr. Ott’s assessment of the effect a move would have on Kelly. She admitted to having some behavioral problems with Kelly and added that she had taken her to another therapist to help deal with the stress of divorce.

Betty Hefner, Kelly and Jake’s day-care provider, testified for Amanda. She told the court that she had known Tim and Amanda for two years. She characterized Amanda as a good mother and added that she had seen Kelly and Jake interact with Mr. Fleming and that they seemed to like him. On cross examination, she characterized Tim as a good father who was concerned and loving toward his children. She related one incident when Kelly became sick at day care and Tim decided to leave her there. She testified that the children seemed settled and happy in Russellville.

Gretchen Douthit, a licensed professional counselor, testified for Amanda. She testified that Amanda’s goal in counseling was to develop a better relationship with Kelly following the divorce. In her opinion, Kelly showed progress over the course of the sessions in resolving problems related to the divorce. She concluded that Amanda was a “very concerned, involved parent,” who was worried about a “temporary deterioration in her relationship with her daughter.” She said that they were able to resolve some of the problems between Kelly and Amanda.

Two of Tim’s coworkers from Waste Management testified on his behalf. The first was Leslie Bartlett. She testified that Tim had a flexible work schedule at his job, which was oriented around his obligations to Kelly and Jake. She added that she considered Tim trustworthy and that she had let Tim watch her children from time to time. The second coworker was Wesley Sutherlin, a comptroller at Waste Management. He testified that Tim’s work schedule was a flexible eight-to-five position and that Tim’s salary was approximately $38,000 a year.

Tim testified on his own behalf and referred to the custody arrangement and the do-not-relocate provision in the divorce decree. He related an incident where, according to Kelly, Mr. Fleming had dangled her over a balcony. He said that he found out that his wife had remarried by calling the Washington County Circuit Clerk. He testified that Kelly had friends in her class at Crawford Elementary in Russellville. He told the court about the activities that he engaged in with his children, including trips to vacation spots like Sea World and Silver Dollar City. On cross examination, he denied having anything to do with Dr. Ott’s opinion that Kelly should stay in the Russellville School District.

On August 30, 2001, the trial court issued a letter opinion granting sole custody of the two children to Tim. The court concluded in its opinion that it would be in the best interest of the children to stay with Tim. Specifically, the court wrote: “My decision essentially is based on the fact that I believe that these children have had enough trauma and change in their lives over the last year and a half that a further relocation to a different area would be extremely traumatic to them.” The court stated that Amanda would be entitled to standard visitation and would be required to pay child support. The standard visitation schedule entitled the non-custodial parent to visitation every other weekend, on the parent’s birthday, six weeks .in the summer, and alternating holidays.

The trial court issued an order to this effect on September 11, 2001, and a nunc pro tunc followed on October 12, 2001. This second order specified that the children would be exchanged for visitation purposes at the town of Alma. The order further directed Amanda to produce pay stubs so that her child support could be set. Amanda timely filed a notice of appeal to our Court of Appeals.

In an unpublished opinion, the Court of Appeals reversed the trial court’s orders. See Lewellyn v. Lewellyn, 2002 WL 1376214 (Ark. App. June 26, 2002). The court of appeals first held that the trial court erred in finding that Amanda’s relocation to Fayetteville, by itself, was a change in circumstance which affected the best interest of the children. The court of appeals then held that the trial court should have analyzed the case not as a change-of-custody case, but as a relocation case. It remanded the case to the trial court and directed that court to reexamine the matter in light of the relocation factors adopted in Staab v. Hurst, 44 Ark. App. 128, 868 S.W.2d 517 (1994). Tim petitioned for review to this court, which we granted.

I. Procedural Points

a. Standard of Review.

When this court grants a petition to review a decision by the court of appeals, this court reviews the appeal as if it had been originally filed in this court. E.g., Marcum v. Wengert, 344 Ark. 153, 40 S.W.3d 230 (2001). This court has traditionally reviewed matters that sounded in equity de novo on the record with respect to fact questions and legal questions. Con-Agra, Inc. v. Tyson Foods, Inc., 342 Ark. 672, 30 S.W.3d 725 (2000); Ferguson v. Green, 266 Ark. 556, 587 S.W.2d 18 (1979). We have stated repeatedly that we would not reverse a finding by a trial court in an equity case unless it was clearly erroneous. Con-Agra, Inc. v. Tyson Foods, Inc., supra. We have further stated that a finding of fact by a trial court sitting in an equity case is clearly erroneous when, despite supporting evidence in the record, the appellate court viewing all of the evidence is left with a definite and firm conviction that a mistake has been committed. Id. These common law principles continue to pertain after the adoption of Amendment 80 to the Arkansas Constitution, which was effective on July 1, 2001.

b. Final Order.

Tim, as appellee, argues a procedural point for dismissal of this appeal. He contends that this court lacks appellate jurisdiction due to the absence of a final order. According to Tim, the trial court’s nunc pro tunc order, dated October 12, 2001, is not final because it did not fix the amount of Amanda’s child support payments but instead directed her to produce pay stubs so that the amount could be determined in the future. In support of his position, Tim cites Beverly Enterprises-Arkansas v. Hiller, 341 Ark. 1, 14 S.W.3d 487 (2000) (stating the rule that a final order is a jurisdictional requirement for appellate review), as well as Arkansas Rule of Civil Procedure 54(b) (stating that an order which adjudicates fewer than all of the claims in an action is not an appealable absent a required certificate from the trial court).

Tim’s argument, however, overlooks our Rule of Appellate Procedure — Civil 2(d) (“All final orders awarding custody are appealable final orders.”). We have interpreted Rule 2(d) to permit “an appeal from any order that is final as to the issue of custody, regardless of whether the order resolves all other issues.” Ford v. Ford, 347 Ark. 485, 490, 65 S.W.3d 432, 436 (2002). The trial court’s order changes custody from joint custody in both parents to sole custody in Tim and, thus, is final on the issue of custody. We hold the order is final for purposes of this appeal.

c. Procedural Bar.

Tim next argues that Amanda’s petition to change custody before the trial court admitted a material change in circumstances and as a result, the custody issue is not preserved for appellate review. Tim appears to be contending that Amanda cannot argue a change in circumstances at the trial court and then claim no change of circumstances at this level. We take issue with Tim’s characterization of what occurred before the trial court. Both parties litigated the issue of a material change in circumstances to the trial court and both parties presented evidence on that issue. Amanda maintained that her move to Fayetteville constituted a material change in circumstances, which justified placing sole custody in her. Tim argued that the relocation of one parent in a joint-custody divorce resulted in a change in circumstances. The trial court disagreed with Amanda and found that her relocation justified changing the relationship with the children from joint custody in both parents to sole custody in Tim. The fact that Amanda may argue on appeal that a material change of circumstances has not occurred does not mean that the issue is not preserved. We hold that Tim’s preservation argument has no merit.

II. Custody

a. Change in Circumstances.

For a trial court to change the custody of children, it must first determine that a material change in circumstances has transpired from the time of the divorce decree and, then, determine that a change in custody is in the best interest of the child. Lloyd v. Butts, 343 Ark. 620, 37 S.W.3d 603 (2001).

Amanda’s first contention on appeal is that there was no material change in circumstances from the time of the divorce decree sufficient to set aside joint custody in the parents and to place sole custody in Tim. She argues, as a specific matter, that her relocation, standing alone, cannot constitute a material change in circumstances. For authority, she cites the court to Jones v. Jones, 326 Ark. 481, 931 S.W.2d 767 (1996). See also Gerot v. Gerot, 76 Ark. App. 138, 145-146, 61 S.W.3d 890, 896 (2001) (“ [Relocating in order to obtain better employment itself does not constitute a material change in circumstances.”); Hollinger v. Hollinger, 65 Ark. App. 110, 986 S.W.2d 105 (1999) (holding that the combined effect of the mother’s move, the desires of the children to stay in their original location, and the long passage of time between the divorce decree and the modification, amounted to a material change in circumstances.).

The problem with Amanda’s case authority is that the Jones case did not involve joint custody in the parents where physical custody alternated on a month-to-month basis. Indeed, the Jones-Gerot-Hollinger line of cases all involved mothers with sole custody of a child or children who sought to relocate. That is not what we have in the case at hand. Here, both parents had custody, and each parent petitioned for sole custody, with Amanda being the parent who wished to relocate.

Joint custody has traditionally been premised on the mutual ability of the parents to cooperate in decisions that affected the child’s welfare. Our court of appeals has recognized this fundamental principle. See Thompson v. Thompson, 63 Ark. App. 89, 974 S.W.2d 494 (1998). In the instant case, however, that ability to cooperate has eroded due to Amanda’s remarriage and relocation to Fayetteville. Kelly and Jake are school-age children and, clearly, joint custody is no longer practical with Tim and Amanda living in different cities. We have no doubt that a material change in circumstances has occurred. We next inquire into what now is in the best interest of the children with respect to their custodial parent and residence.

b. Best Interest of the Children.

Amanda contended in her Reply Brief that the trial court should have employed the factors set out in Staab v. Hurst, supra, in its custodial analysis. The trial court had not used the Staab factors in any sense but instead had analyzed the case as purely one involving change of custody. The trial court was correct.

The facts in Staab v. Hurst, supra, involved a custodial mother who wished to relocate with her child from Fort Smith to Wellington, Texas for a better educational opportunity that would lead to a better job. At issue in Staab was whether the non-custodial father would effectively be denied visitation because the geographical distance from the mother’s new home rendered visitation impossible or impractical. The court of appeals, following a decision from the New Jersey Superior Court (D’Onofrio v. D’Onofrio, 144 N.J. Super. 200, 365 A.2d 27 (N.J. Super. Ch: Div. 1976), aff’d 144 N.J. Super. 352, 365 A.2d 716 (N.J. Super. Ct. App. Div. 1976)), adopted a framework for deciding such cases. That framework placed the burden on the custodial parent to show some real advantage to the new family unit resulting from the move. If the custodial parent met that threshold burden, then the trial court should analyze the case using certain factors:

1) the prospective advantages of the move in terms of its likely capacity for improving the general quality of life for both the custodial parent and the children; (2) the integrity of the motives of the custodial parent in seeking the move in order to determine whether the removal is inspired primarily by the desire to defeat or frustrate visitation by the non- custodial parent; (3) whether the custodial parent is likely to comply with substitute visitation orders; (4) the integrity of the non-custodial parent’s motives in resisting the removal; and (5) whether, if removal is allowed, there will be a realistic opportunity for visitation in lieu of the weekly pattern which can provide an adequate basis for preserving and fostering the parent relationship with the non-custodial parent.

Staab, 44 Ark. App. at 134, 868 S.W.2d at 520.

The Staab factors are irrelevant to the instant case in that visitation between Fayetteville and Russellville is neither impossible nor impractical. The trial court ordered the exchange of the children to take place at Alma, which is roughly where 1-40 and 1-540 intersect between Russellville and Fayetteville. The time of travel from either city to Alma was not objected to as being unduly burdensome. This case is simply not a relocation case where the Staab factors should be applied. Moreover, the Staab case involved relocation of the custodial mother to Texas, which was objected to by the non-custodial father. Those facts are distinguishable from the case at hand where joint custody is the issue.

III. Sufficient Evidence

We next turn to Amanda’s argument that the trial court clearly erred in finding that transferring sole custody to Tim was in the best interest of the children. We hold that he did not.

The following evidence was presented to the trial court in support of placing sole custody of the children in Tim:

• Kelly’s elementary education had taken place in Jonesboro, at home, and then in Russellville. Changing schools again and residence would have a negative emotional impact on Kelly.
• Both children appeared happy and settled in Russellville, and Kelly desired to stay there.
• There had been some problems between Kelly and Mr. Fleming.
• Tim was a fit father and had the flexibility at work to take care of both children.

We cannot say that in light of this evidence, the trial court clearly erred (1) in finding that the children had had enough trauma and change in their lives over the last year and a half or, (2) in concluding that an award of sole custody to Tim was in the best interest of the children.

Affirmed.

       Amanda couches her argument in terms of both an abuse of discretion by the trial court and clear error. We conclude that the standard is whether the trial court was clearly erroneous. See, eg., Campbell v. Campbell, 336 Ark. 379, 985 S.W.2d 724 (1999).


author: Annabelle Clinton Imber, Justice.

text:
    Sean ALEXANDER, by and through his Court-Appointed Guardian and Parent Charmaine Alexander v. The ESTATE OF Ray Edward ALEXANDER, Deceased

    02-847
    93 S.W.3d 688
    Supreme Court of Arkansas
    Opinion delivered December 19, 2002

      Wood, Smith, Schnipper & Clay, by: John T. Vines and Philip M. Clay, for appellant.

      Steven B. Davis, for appellee.
   Annabelle Clinton Imber, Justice.

The sole issue on appeal is whether Sean Alexander is a pretermitted child under the will of his late grandfather, Ray Edward Alexander, pursuant to Ark. Code. Ann. § 28-39-407(b) (1987). The facts in this case are undisputed. Sean is the issue of the testator’s deceased son, James Edward Alexander. The will did not specifically mention or provide for Sean. Nonetheless, the circuit court held that a reference in a rule-against-perpetuities clause to “the last survivor of my issue on the date of my death” was sufficient mention of Sean as a member of a class to remove him from the status of a pretermitted child under section 28-39-407(b). We disagree and reverse and remand.

Ray Edward Alexander executed his last will and testament on June 19, 1997. He died on September 12, 2000. At the time of his death, Ray had no surviving spouse but left as his heirs-at-law two children, Charles Frederick Alexander and Judy Rae Currie, and one grandchild, Sean Alexander, the child of a deceased son, James Edward Alexander. Appellee Charles Frederick Alexander, who was named as executor in his father’s will, promptly filed a petition for probate of the will. The will was duly admitted to probate on September 19, 2000, and Charles was appointed executor of the estate. The court’s order also listed Sean as an heir.

The decedent’s will left the entire estate to Charles, but if he did not survive, the estate would devolve to his issue per stirpes. If none of these survived, the will provided that the estate would then vest in Judy Rae Currie; but, if she failed to survive, her issue would inherit the estate per stirpes. A specific provision of the will mentioned Ray’s former spouse and excluded her as a beneficiary. However, the will did not specifically mention either James Edward Alexander, Ray’s other child who was deceased at the time of the will’s execution, or Sean Alexander, James’s son and Ray’s grandson.

On June 4, 2001, Appellant Charmaine Alexander, as guardian of Sean Alexander, petitioned the probate court for a determination of Sean’s heirship as a pretermitted child pursuant to Ark. Code Ann. § 28-39-407 (b). In his reply to the petition, Charles denied Sean’s status as a pretermitted child. Both parties then filed motions for summary judgment on the matter. Charmaine asserted that the decedent’s last will and testament made no mention of either James or Sean. In contending to the contrary, Charles argued that Sean was sufficiently mentioned by class in the will.

The probate division of circuit court entered a detailed order on March 25, 2002, finding that the record showed there was no genuine issue as to any material fact and that Sean Alexander was not a pretermitted child. In its order, the court held the following language in the will to be dispositive:

Notwithstanding anything herein to the contrary, any gift, devise or bequest hereunder shall vest not later than (21) years after the death of the last survivor of my issue living on the date of my death.

The lower court ruled that “the mention of [Sean] as a part of the class of lawful issue living at the date of the testator[’s death] is sufficient under the law to avoid pretermitted status.” Charmaine then moved for the court to amend its findings pursuant to Ark. R. Civ. P. 52, or in the alternative, to order a new trial pursuant to Ark. R. Civ. P. 59. Her motions were denied, and Charmaine now appeals from the circuit court’s summary judgment ruling on Sean’s status as a pretermitted child.

Probate cases are reviewed de novo on appeal. Witt v. Rosen, 298 Ark. 187, 765 S.W.2d 956 (1989). Also, in an appeal from the granting of summary judgment, all of the facts and circumstances are viewed in a light most favorable to the party against whom the motion is directed. Mangum v. Fuller, 303 Ark. 411, 797 S.W.2d 452 (1990). In this case, all of the material facts have been stipulated by the parties. Thus, there only remains the question of whether the moving party here is entitled to judgment as a matter of law. Wallace v. Broyles, 322 Ark 189, 961 S.W.2d 712 (1998).

Charmaine’s primary contention is that because neither Sean nor his deceased father was mentioned in the will, Sean is a pretermitted child as contemplated by Ark. Code. Ann. § 28-39-407(b) (1987). The crux of her appeal is that the language cited by the circuit court is technical, and not sufficient to mention Sean for purposes of section 28-39-407(b). Charles, on the other hand, argues that the mention of Sean as a member of a one-person class was sufficient under the statute to avoid pretermitted status. Charles adds that the circuit court’s order should be affirmed because it carries out the clearly expressed intention of the testator.

The law in Arkansas as to pretermitted heirs is well-established. The statute reads as follows:

Pretermitted Children. If, at the time of the execution of a will, there is a living child or issue of a deceased child of the testator, whom the testator shall omit to mention or provide for, either specifically or as a member of a class, the testator shall be deemed to have died intestate with respect to the child or issue. The child or issue shall be entitled to recover from the devisees in proportion to the amounts of their respective shares, that portion of the estate which he or they would have inherited had there been no will.

Ark. Code Ann. § 28-39-407(b). The pretermitted-child statute applies to both omitted children of the testator and omitted issue of a deceased child of the testator. Mangum v. Fuller, 303 Ark. 411, 797 S.W.2d 452 (1990); Holland v. Willis, 293 Ark. 518, 739 S.W.2d 529 (1987). Extrinsic evidence is not admissible to show that a testator intended to disinherit a pretermitted child. Mangum v. Fuller, supra; Holland v. Willis, supra. The purpose of the pretermitted-child statute is to avoid the inadvertent or unintentional omission of children or issue of deceased children unless an intent to disinherit is expressed in the will. Holland v. Willis, supra; Robinson v. Mays, 271 Ark. 818, 610 S.W.2d 885 (1981). In Arkansas, there is a strong presumption against disherison. Robinson v. Mays, supra. When a will fails to mention a child or the issue of a deceased child, that omission operates in favor of the pretermitted child without regard to the real intention of the testator. Armstrong v. Butler, 262 Ark. 31, 553 S.W.2d 453 (1977). Furthermore, this court has stated that the object of the statute is “to prevent injustice to a child or descendant from occurring by reason of the forgetfulness of a testator who might, at the time of making his will, overlook the fact that he had such child or descendant.” Petty v. Chaney, 281 Ark. 72, 73 661 S.W.2d 373, 374 (1983) (quoting Culp v. Culp, 206 Ark. 875, 178 S.W.2d 52 (1944)).

As a general rule, the testator’s mention of children, or issue of predeceased children, as a class is sufficient to preclude the application of the pretermitted-child statute. Ark. Code Ann. § 28-39-407(b); Cisco v. Cisco, 288 Ark. 552, 707 S.W.2d 769 (1986). In Dykes v. Dykes 294 Ark. 158, 741 S.W.2d 256 (1986), this court held that the testator clearly mentioned his children by class by stating in his will that, “ [m]y children know that my wife and I love them dearly.” Id. at 159, 741 S.W.2d at 256. However, words used in a technical, legal sense are not sufficient to avoid the pretermitted status of a child or issue of a predeceased child. Robinson v. Mays, 271 Ark. 818, 610 S.W.2d 885 (1981).

In Robinson v. Mays, 271 Ark. 818, 610 S.W.2d 885 (1981), the will made no mention of the decedent’s children by a first marriage; it left the entire estate to the child of a second marriage, but if that child failed to survive, then the estate would go to her husband and their two sons in equal parts. If none of these survived, paragraph 4(c) of the will provided that the estate would “devolve to those persons who would be entitled to share in the distribution of the estate in accordance with the laws of descent and distribution of the State of Missouri.” 271 Ark. at 820, 610 S.W.2d at 886. This court held that the quoted language was technical and not sufficient to overcome Arkansas’s strong presumption against disherison. 271 Ark. 818, 610 S.W.2d 885. In so holding, we reiterated that the purpose of the pretermittedchild statute is not to interfere with the testator’s right to dispose of property, but to avoid the inadvertent or unintentional omission of a child unless the will expresses an intent to disinherit. Id. We also declined to further extend the reasoning of our decisions in Taylor v. Cammack 209 Ark. 983, 193 S.W.2d 323 (1946), and Powell v. Hayes, 176 Ark. 660, 3 S.W.2d 974 (1928), where we held that each testator contemplated his children by use of the term “heirs” in the will. Robinson v. Mays, supra.

In contrast, where the complaining child conceded that she was entitled to assistance from a trust created by the will, we held that the provision directing the trustee to distribute income and principal to “my wife and my descendants” was sufficient language to avoid pretermitted status. Petty v. Chaney, 281 Ark. 72, 73, 661 S.W.2d 373, 374 (1983). Based upon the precedent established in Taylor and Powell, this court subsequently held in Young v. Young, 288 Ark. 199, 200, 703 S.W.2d 457, 458 (1986), that language in the will stating, “I am mindful of the fact that I have willingly and intentionally omitted to provide for all my heirs or other relatives not specifically mentioned herein” was sufficient to mention the testator’s children. Likewise, in Leatherwood v. Meisch, 297 Ark. 91, 759 S.W.2d 559 (1988), we held that the word “heirs” was sufficient where used by the testator in a “colloquial” sense to refer to children, of descendants.

The testator’s will in this case uses the term “issue” in three separate provisions. The term first appears in Item IV where it refers to the issue of (a) the son Charles Frederick Alexander and (b) the daughter Judy Rae Currie. Clearly, this reference does not include Sean, the issue of the deceased son, James Edward Alexander. Item X of the will also uses the term “issue” and states:

For purpose of this will, “children” means the lawful blood descendant of the first degree of ancestor designated, provided, however, that if a person has been adopted, that person shall be considered a child of such adopting parent and such adopted child and his issue shall be considered as issue of the adopting parent or parents and of anyone who is by blood or adoption an ancestor of the adopting parent or either of the adopting parents. “Issue” means that lawful blood descendant of any greater degree of the ancestor designated; provided, however, that if a person has been adopted, that person shall be considered issue of such adopting parent and such adopted child and his issue shall be considered as issue of the adopting parent or parents and of anyone who is by blood or adoption an ancestor of the adopting parent or either of the adopting parents. The terms “child”, “children” and “issue” , or those terms preceded or followed by the terms “surviving,” “living” or “then living” shall include the lawful blood descendants in the first degree of the parent designated even though such descendant is born after the death of such parent.

Sean is the issue of the testator’s predeceased child. Nonetheless, as the circuit court correctly concluded, this provision does not sufficiently mention Sean for purposes of Ark. Code Ann. § 28-39-407(b). Clearly, the language in Item X is used to define terms in the will and as a general reference to undesignated persons. See Petty v. Chaney, supra.

The third and final provision in the will that mentions the term “issue” is Item VIII, which states:

Notwithstanding anything herein to the contrary, any gift, devise of bequest hereunder shall vest not later than twenty-one (21) years after the death of the last survivor of my issue living on the date of my death.

The inclusion of this provision in the will was an obvious effort to avoid application of the rule against perpetuities. Similar to Item X, Item VIII uses a general reference to undesignated persons and does not show that the testator had his grandson in mind. See Petty v. Chaney, supra. As such, we hold that it is technical language and insufficient to overcome Arkansas’s strong presumption against disherison. See Robinson v. Mays, supra.

This language clearly fits our description of technical language as “terminology of the technician, the cant of the legal profession . . . .” Leatherwood v. Meisch, 297 Ark. at 94, 759 S.W.2d at 561 (1988). As in Robinson v. Mays, supra, we are unable to say that Sean Alexander, the issue of a predeceased child, was contemplated by the insertion of a rule-against-perpetuities clause in the testator’s will; that is, we cannot with confidence arrive at the conclusion that Ray Edward Alexander had his grandson so clearly in mind as to have met the requirements of the statute. See Robinson v. Mays, supra. Additionally, as we stated in Armstrong v. Butler, supra., our statute “operates in favor of the pretermitted child without regard to the real intention of the testator in regard to the omission.” 262 Ark. at 39, 553 S.W.2d at 459.

Reversed and remanded.

       A provision for the incorporation of any directions delivered to the executor regarding the division of tangible personal property, pursuant to Ark. Code Ann. § 28-25-107 (1987), is not at issue.

       By virtue of Amendment 80 to the Arkansas Constitution, which became effective on July 1, 2001, our state courts are no longer “probate courts” and “circuit courts”. These courts have merged and now carry the designation of “circuit court.”