author: LAVENSKI R. Smith, Justice. W.H. “Dub” Arnold, Chief Justice,

text:
    Martha S. DAVIS v. OFFICE of CHILD SUPPORT ENFORCEMENT
    99-1422
    20 S.W.3d 273
    Supreme Court of Arkansas
    Opinion delivered May 18, 2000

      Tom L. Hilburn, Chancellor;

      James & Bohanan, by: Dawn Bohanan, and Barrett & Deacon, BA., by: D. B. Marshall Jr., for appellant.

      Linda O. Bowlin, for appellee.
   LAVENSKI R. Smith, Justice.

Appellant Martha S. Davis petistice. review a court of appeals decision affirming a Randolf County child-support order. The chancellor ordered Davis to pay $70.00 per month in child support to her ex-husband for their two children. Davis’s sole source of income is a monthly Supplemental Security Income (“SSI”) check from the federal government in the amount of $494. Davis argues that federal law both expressly and impliedly preempts any Arkansas law that might impose a child-support obligation on her SSI benefits. We reverse.

Facts

Davis and her ex-husband Randy Davis (“Randy”) were married on January 31, 1981. The Davises had two children during the course of their marriage. In March 1988, Randy sued for divorce in Randolph County Chancery Court. Davis answered and counterclaimed for divorce. The couple ultimately reached a property-settlement agreement in the matter. In the property settlement, the parties agreed that Randy would have custody of the two children. They also agreed that Davis would not pay child support because she was unemployed. The chancery court entered the divorce decree on April 10, 1989.

Nine years later, on April 17, 1998, the Office of Child Support Enforcement (“OCSE”) intervened in the matter. In the interim Randy assigned his rights to OCSE to pursue child support from Davis. In its petition to set child support, OCSE requested that Davis pay current and past support, secure and maintain health insurance for the children, and be responsible for one-half of the medical costs not paid by insurance. Davis answered the petition on May 8, 1998, and alleged that she was disabled due to paranoid schizophrenia and only identified her sole income source as $494 per month in SSI benefits.

Chancellor Tom Hilburn held a brief hearing on June 16, 1998. Counsel for the OCSE questioned Davis about the use of her monthly SSI check. Davis testified that $400 of her monthly check is paid to her sister, with whom she lives, for rent, groceries, and cigarettes, while the remaining $94 is used for medication for her mental illness. No other witnesses were called nor other evidence submitted.

At the hearing’s conclusion, Davis’s attorney sought and received permission to brief the issue of SSI’s availability for child-support awards. In her brief, Davis noted the federal government’s purposes in creating the SSI program. She pointed out that Congress intended SSI to provide a minimum level of subsistence income to recipients. Davis also argued that federal law prohibits the garnishment, levy, execution on, or other legal process against benefits. Davis noted that Arkansas does not specifically require such a taking of SSI benefits, and that most other states prohibit the use of SSI benefits in child-support cases. OCSE responded by arguing that this Court, in a per curiam dated September 25, 1997, ordered that child-support payments could come out of “any form of payment” to an individual. OCSE argued that because SSI is “income” due Davis, it qualifies as a “form of payment” and should be subject to child-support withholding. OCSE argued that Davis uses her money for food, shelter, and luxuries such as cigarettes, but has failed to support her children. OCSE further argued that it is not trying to “execute, levy, attach, or garnish” Davis’s SSI, noting that 42 U.S.C. §§ 407(a) and 1383(d)(1) do not allow income withholding on SSI benefits, but that it is merely trying to set support payments from the “income” Davis receives.

The chancellor filed his order on August 4, 1998, requiring Davis to pay $70 per month in support, specifically noting that Davis smokes perhaps one pack of cigarettes a day. The court found that $70 was reasonable, and that $36 per year should be paid in administrative fees. The court further found that Davis should pay $35.75 in filing fees. Davis filed her notice of appeal on August 28, 1998.

On November 17, 1999, the court of appeals affirmed the chancellor’s Order of Support. Specifically, the court of appeals determined that income is “any form of payment, periodic or otherwise, due to an individual, regardless of source” citing this court’s per curiam order, which is now Arkansas Supreme Court Administrative Order Number 10. The court of appeals thus reasoned that SSI is income subject to child-support payments. The opinion compared SSI to veteran’s disability benefits, see Belue v. Belue, 38 Ark. App. 81, 828 S.W.2d 855 (1992), and social security disability benefits, see Kimbrell v. Kimbrell, 47 Ark. App. 56, 884 S.W.2d 268 (1994), which are subject to child-support awards. The appellate court thus struck a delicate balance between a child’s need for support and a parent’s need for a subsistence level of income in the child’s favor. Additionally, the court of appeals determined that federal law does not preempt state law in domestic-relations matters including child support taken from federal SSI benefits. Davis petitioned this court for review of this case, and the parties filed supplemental briefs for our consideration.

Standard of Review

Upon a petition for review, we consider the case as though it were originally filed in this court. Myrick v. Myrick, 339 Ark. 1, 2 S.W.3d 60 (1999); Minnesota Mining & Mfg. v. Baker, 337 Ark. 94, 989 S.W.2d 151 (1999); ERC Contractor Yard & Sales v. Robertson, 335 Ark. 63, 977 S.W.2d 212 (1998); Frette v. City of Springdale, 331 Ark. 103, 959 S.W.2d 734 (1998); Travis v. State, 331 Ark. 7, 959 S.W.2d 32 (1998). We have held many times that although we review chancery cases de novo on the record, we will not reverse a finding of fact by the chancellor unless it is clearly erroneous. Slaton v. Slaton, 336 Ark. 211, 983 S.W.2d 951 (1999). Further, in reviewing a chancery court’s findings, we give due deference to the chancellor’s superior position to determine the credibility of witnesses and the weight to be accorded to their testimony. Holaday v Fraker, 323 Ark. 522, 920 S.W.2d 4 (1996); Riddick v. Street, 313 Ark. 706, 858 S.W.2d 62 (1993); see also, Anderson v. Holliday, 65 Ark. App. 165, 956 S.W.2d 173 (1999); Jennings v. Buford, 60 Ark. App. 27, 958 S.W.2d 12 (1997).

Federal Preemption

In her petition for review, Davis argues that federal law expressly and impliedly preempts any Arkansas law which might impose a child-support obligation on Davis’s SSI benefits. Davis further argues that allowing a chancellor discretion over SSI benefits in child-support proceedings undermines the federal law, and the chancellor’s decision undercuts needed national uniformity in the law of child-support obligations. OCSE, in turn, argues that federal law does not preempt state law on this issue, and that Congress’s intent on this issue is ambiguous and unclear. Furthermore, OCSE again makes a distinction between allowing SSI benefits to be “garnished” and ordering that the parent pay child support out of those benefits without actual “garnishment,” reasoning that federal law does not prohibit such orders. Upon review, we hold that federal law does prohibit state court ordered child-support payments exclusively from SSI benefits.

As a rule, the federal government leaves domestic relations matters within the exclusive province of the states. See Rose u Rose, 481 U.S. 619 (1987). However, the Supreme Court in Rose acknowledged that in some“rare” occasions preemption does apply. Specifically, preemption is justified when Congress has “positively required by direct enactment” that state law be preempted. Rose, 481 U.S. at 625 (citing Hisquierdo v. Hisquierdo, 439 U.S. 572 (1979)). The Rose court noted that “before a state law governing domestic relations will be overridden, it “must do ‘major damage’ to ‘clear and substantial’ federal interests.” Rose, 481 U.S. at 625 (citing Hisquierdo, 439 U.S. at 581, quoting United States v. Yazell, 382 U.S. 341, 352 (1966)).

Although there is no direct enactment exclusive to SSI exempting it from state child-support orders, there is specific, clear federal law limiting state court authority generally with respect to SSI and Social Security Disability (“SSD”) payments. Congress expressly protected Social Security benefits from legal process in 42 U.S.C. § 407 and § 1383(d)(1). Section 407 states,

§ 407. Assignment; amendment of section
(a) The right of any person to any future payment under this subchapter shall not be transferable or assignable, at law or in equity, and none of the moneys paid or payable or rights existing under this subchapter shall be subject to execution, levy, attachment, garnishment, or other legal process, or to the operation of any bankruptcy or insolvency law.
(b) No other provision of law, enacted before, on, or after April 20, 1983, may be construed to limit, supersede, or otherwise modify the provisions of this section except to the extent that it does so by express reference to this section.
(c) Nothing in this section shall be construed to prohibit withholding taxes from any benefit under this subchapter, if such withholding is done pursuant to a request made in accordance with section 3402(p)(l) of the Internal Revenue Code of 1986 [§26 U.S.C.A. 3402] by the person entitled to such benefit or such person’s representative payee.

This section protects SSI and SSD benefits against transfer or assignment in law or equity and states that they are not subject to “execution, levy, attachment, garnishment, or other legal process.” (Emphasis added.). This would include state child-support withholding orders as the OCSE concedes. However, since the enactment of § 407, Congress has carved out a limited exception for child-support purposes in 2 U.S.C. § 659. There, Congress consented to income withholding, garnishment, and similar proceedings for enforcement of child-support and alimony obligations from federal moneys payable based on “remuneration from employment.” That statute states:

§ 659. Consent by the United States to income withholding, garnishment, and similar proceedings for enforcement of child support and alimony obligations
(a) Consent to support enforcement
Notwithstanding any other provision of law (including section 407 of this title and section 5301 of Title 38), effective January 1, 1975, moneys (the entitlement to which is based upon remuneration for employment) due from, or payable by, the United States or the District of Columbia (including any agency, subdivision, or instrumentality thereof) to any individual, including members of the Armed Forces of the United States, shall be subject, in like manner and to the same extent as if the United States or the District of Columbia were a private person, to withholding in accordance with State law enacted pursuant to subsections (a)(1) and (b) of section 666 of this title and regulations of the Secretary under such subsections, and to any other legal process brought, by a State agency administering a program under a State plan approved under this part or by an individual obligee, to enforce the legal obligation of the individual to provide child support or alimony. (Emphasis added.)

Notably, the exception created by 2 U.S.C. § 659 applies only to moneys “the entitlement to which is based upon remuneration for employment.” This exception could not apply to federal SSI benefits. SSI benefits are not remuneration for any past or present employment. No premiums, deposits, or other payments have been paid to qualify for them. Put simply, SSI is federal welfare for the poorest of the nation’s citizens.

The Supreme Court explained the purpose of SSI benefits in Schweiker v. Wilson, 450 U.S. 221 (1981). There, the court stated:

In October 1972, Congress amended the Social Security Act (Act) to create the federal Supplemental Security Income (SSI) program, effective January 1, 1974. 86 Stat. 1465, 42 U.S.C. § 1381 et seq. This program was intended “[t]o assist those who cannot work because of age, blindness, or disability,” S. Rep. No. 92-1230, p. 4 (1972), by “setfting] a Federal guaranteed minimum income level for aged, blind, and disabled persons,” id., at 12.
The SSI program provides a subsistence allowance, under federal standards, to the Nation’s needy aged, blind, and disabled. Included within the category of “disabled” under the program are all those “unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months.” § 1614 (a) (3) (A) of the Act, 42 U.S.C. § 1382c(a)(3)(A).

SSI, like SSD, requires that an applicant file for benefits and prove that he or she is disabled from performing any “substantial gainful activity” or sustained work for pay. However, SSI and SSD differ substantially. Under SSD, the applicant seeks “insurance” benefits based upon payments withheld from his paychecks. To qualify, the applicant must have paid into the program at least five out of the prior ten years, or twenty out of forty quarters. SSI recipients, however, either never paid this “premium” or never paid enough into the system to qualify for SSD. In other words, the benefits an SSI recipient receives are not based on how much he paid into the system, but instead how much he or she needs to maintain “a Federal guaranteed minimum income level for aged, blind, and disabled persons.” Schweiker, supra. Currently, for Davis, that amount is set at $494.00 monthly.

Although distinct, SSD and SSI can interrelate. This interplay illustrates the Congressional intent underlying SSI. For instance, if a disabled worker draws $300 per month in SSD based on their employment history, their monthly income is $194 below the Federal guaranteed minimum income level for aged, blind and disabled persons. Based upon the amount that the person paid into the Social Security system during the years they worked, he or she may also be entitled to an additional $194 to raise him or her to the “Federal guaranteed minimum income level” for a disabled person. Maintenance of this minimum income level is thus the fundamental purpose of SSI. As stated in the federal regulations governing SSI,

The basic purpose underlying the supplemental security income program is to assure a minimum level of income for people who are age 65 or over, or who are blind or disabled and who do not have sufficient income and resources to maintain a standard of living at the established Federal minimum income level. The supplemental security income program replaces the financial assistance programs for the aged, blind, and disabled in the 50 States and the District of Columbia for which grants were made under the Social Security Act. Payments are financed from the general funds of the United States Treasury. 20 C.F.R.. § 416.110.

Given its purposes, we find that subjecting SSI payments to state court child-support orders would do “major damage” to a clear and substantial federal interest.” Therefore, we hold that the sovereign immunity exception created by § 659 does not apply to SSI benefits. See, e.g., Tennessee Department of Human Services, ex rel. Young v. Young, 802 S.W.2d 594 (Tenn. 1990).

In Administrative Order of the Court Number 10, we defined “income” as:

Income means any form of payment, periodic or otherwise, due to an individual, regardless of source, including wages, salaries, commissions, bonuses, worker’s compensation, disability, payments pursuant to a pension or retirement program, and interest less proper deductions for:
1. Federal and state income tax;
2. Withholding for Social Security (FICA), Medicare, and railroad retirement;
3. Medical insurance paid for dependant children, and
4. Presently paid support for other dependents by Court order.

This definition is intentionally broad and designed to encompass the widest range of potential income sources for the support of minor children. The trial court and appellate court interpreted “income” under Order 10 to include SSI payments from the federal government.

We hold, however, that although SSI comes within the definition of income for child-support purposes, it is not subject to state court jurisdiction. Congress has made no sovereign immunity exception for non-remunerative federal benefits such as SSI. Hence, those benefits remain free from “execution, levy, attachment, garnishment, or other legal process.” We thus join the majority of the states that have addressed this issue and hold that Arkansas courts cannot order child-support payments based upon income from federal SSI disability benefits.

Reversed and remanded.

Arnold, C.J., dissenting.

W.H. “Dub” Arnold, Chief Justice,

dissenting. I disagree with the majority in holding that SSI payments are not income for purposes of child support under the Supreme Court’s Administrative Order No. 10. Section 2 of the order defines income as follows: “Income means any form of payment, periodic or otherwise, due to an individual, regardless of source, including wages, salaries, commissions, bonuses, Workers Compensation, disability, payments pursuant to a pension or retirement program, and interest less proper reductions . . . .” [Emphasis added.]

The facts in this case support that the appellant receives $494.00 per month in SSI benefits. I acknowledge that this is a meager sum of money that the appellant is receiving. However, this does not excuse her from her obligation to support her two children. She gave birth to these children, and she has a duty to love, nurture, and support them. The trial judge recognized this duty of support and took into consideration the limited funds in setting the proper amount of child support. Based upon the child support charts, one receiving $490.00 per month should pay $130.00 per month for support of two children. The trial judge reduced support to $70.00 per month. The facts are undisputed that the appellant smokes approximately one pack of cigarettes per day. The cost of her smoking habit alone would provide the support set by the trial judge. Is this too much to ask?

The majority has carved out an exception in defining income; SSI benefits are exempt. With this decision, the appellant has food, clothing, shelter, and continues the pleasure of smoking a pack of cigarettes each day, while her two children receive nothing — zero — not even a penny. Who will support them? If this court felt that $70.00 per month was too much for her to pay, why not seventy cents, at the very least? A mother and father should pay something.

The majority holds that SSI benefits are exempt from use as child support and, in doing so, reasons that' it is following the majority of the states that have addressed this issue; they then cite thirty-eight states that exempt SSI benefits. This does not impress me. Why shouldn’t Arkansas follow the other eleven states that are rightly requiring mothers and fathers to support their children, regardless of the source of their income?

My conscience would never allow me to say that a parent who has income from any source should not support their children. This is wrong, and no excuse is acceptable under any circumstance. I would, therefore, affirm the trial judge and the Court of Appeals. For these reasons, I respectfully dissent.

       We note that the responsibility of a parent to provide for the support of their minor children is as the supreme court has stated, “a moral imperative. ” Certainly, parents can do by choice what the law cannot command. In the case of disabled parents living exclusively on subsistence income, with rare exception, there is little choice.

       Thirty-eight states exempt SSI benefits from inclusion in a calculation of gross income for child support purposes. Those states are: California, Georgia, Iowa, Nebraska, New Mexico, Wisconsin, Rhode Island, Alabama, Alaska, Arizona, Colorado, Connecticut, Delaware, Hawaii, Indiana, Kansas, Louisiana, Maine, Maryland, Michigan, Missouri, Montana, New Hampshire, New Jersey, New York, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, South Carolina, Tennessee, Utah, Vermont, Virginia, Washington, West Virginia, Wyoming.


source: Caselaw Access Project

author: RAY Thornton, Justice. ROBERT L. Brown, Justice,

license: Public Domain

text:
    Jeannie B. NORRIS, Individually and as Mother, Natural Guardian, and Next Friend of Skye Thomas, a Minor v. STATE FARM FIRE & CASUALTY COMPANY
    99-1115
    16 S.W.3d 242
    Supreme Court of Arkansas
    Opinion delivered May 18, 2000
    [Petition for rehearing denied June 29, 2000 ]

      David B. Bogard, Judge;

      David H. Williams, for appellant.

      Matthews, Sanders, & Sayes, by: Doralee Idleman Chandler and Mel Sayes, for appellee.

       Brown, Imber, and Smith, JJ., would grant.

   RAY Thornton, Justice.

The issue in this case is whether stice. issued by the appellee, State Farm Fire & Casualty Company, excludes coverage of unintended or accidental results of its insured’s actions. The trial court granted State Farm’s summary judgment motion, finding that coverage was excluded. Because we have determined that State Farm’s policy language is ambiguous, we reverse and remand.

On May 17, 1996, fifteen-year-old Skye Thomas, the son of appellant, Mrs. Jeannie B. Norris, was walking home from school when Zack Rogers, aged fifteen, and two other boys confronted him. Skye “smarted off’ to Zack, who then hit Skye on his right jaw. Skye fell face first, without breaking his fall, onto the concrete pavement, fracturing the base of the skull and the bones around his left eye.

Zack and the other boys helped Skye up and walked with him to the nearby house of another friend. Skye’s left eye began to blacken and swell shut. When they arrived at the friend’s house, Zack gave Skye some pain medication and an ice pack for his eye. Zack, a small boy for his age, stated in his deposition that he did not intend to hit Skye so hard as to knock him over or cause him to hit the pavement.

Within a few hours, Skye was rushed to the hospital where he was diagnosed with mild to moderate brain damage. Skye sustained fractures to the base and roof of the left orbit, the left maxillary sinus, and the base of the skull. Dr. Charles Teo, the chief of pediatric neurosurgery at Arkansas Children’s Hospital, reviewed Zack’s deposition and formed an opinion within a reasonable degree of medical certainty that Skye’s injuries were caused by his head hitting the pavement and not by Zack’s punch to the right jaw. Four months later, Dr. Carolyn Patterson of Arkansas Children’s Hospital performed a neuropsychological evaluation, and determined that Skye suffered from long-term sequelae from the injury. Dr. Patterson diagnosed Skye with mild diffused inefficiency in the operations of the brain, short-term and long-term memory loss, and emotional instability.

Appellant filed an action against Zack Rogers through his mother, Zenda Griebel, who was insured under a homeowner’s policy written by State Farm. When State Farm contended it was not required to defend the litigation, or provide liability coverage for the injuries sustained by Skye Thomas, appellant filed an action for declaratory judgment against State Farm to have the trial court interpret the coverage language of the policy including its exclusionary provisions.

Appellant contended that State Farm owed a duty to defend and to provide liability coverage for the underlying tort action. State Farm was granted summary judgment on the basis of the exclusionary language. In reviewing summary judgment cases, we determine whether the trial court’s grant of summary judgment was appropriate based on whether the evidence presented by the moving party left a material question of fact unanswered. The moving party is entitled to summary judgment if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is not a genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Ark. R. Civ. P. 56 (1999); McCutchen v. Huckabee, 328 Ark. 202, 943 S.W.2d 225 (1997). Appellant brings this appeal from the grant of summary judgment, contending that the exclusionary language is ambiguous and against public policy.

Our law regarding the construction of an insurance contract is well setded. The language in an insurance policy is to be construed in its plain, ordinary, popular sense. CNA Ins. Co. v. McGinnis, 282 Ark. 90, 666 S.W.2d 689 (1984). Once it is determined that coverage exists, it then must be determined whether the exclusionary language within the policy eliminates the coverage. Exclusionary endorsements must adhere to the general requirements that the insurance terms must be expressed in clear and unambiguous language. Nationwide Mut. Ins. Co. v. Worthey, 314 Ark. 185, 861 S.W.2d 307 (1993).

We first consider the language of the policy that extends coverage to the insured. The policy defines “insured” as “you and residents of your household, any other person under the age of 21 who is in the care of a person described above.” The policy also defines “occurrence” as “an accident which results in: (a) bodily injury; or (b) property damage, during the policy period.” (Emphasis added.) The policy then provides, among other coverages, as follows:

COVERAGE M — MEDICAL PAYMENTS TO OTHERS. We will pay the necessary medical expenses incurred or medically ascertained within three years from the date of an accident causing bodily injury. (Emphasis added.)

It is apparent that the policy language clearly extends coverage for an accident causing bodily injury.

We next consider whether coverage is excluded for unintended or accidental results from an occurrence that is (a) expected or intended, or (b) willful and malicious. We addressed the question whether insurance coverage for unexpected or accidental results could be excluded by language stating that the policy did not cover an injury which is expected or intended in Talley v. MFA Mutual Ins. Co., 273 Ark. 269, 620 S.W.2d 260 (1981), and concluded that accidental or unintended results from intentional acts were not excluded.

In Talley, an altercation arose between a sixteen-year-old boy, Tony Davis, and two eighteen-year-old boys. The three boys attended a party. Davis consumed a considerable amount of alcohol, left the party late that evening, got a shotgun, and returned to the party. Davis shot out the rear windows of the two boys’ cars. He drove around the block and shot at the cars a second time. A third time, he shot toward the cars. The two boys were hit by the shotgun blast; one was totally blinded, and the other was partially blinded. Id.

Davis, the insured, had a homeowner’s policy that provided liability coverage for bodily injury caused by the insured. The exclusionary language stated that the policy did not cover “bodily injury . . . which is either expected or intended from the standpoint of the insured.” Id. We stated:

Many acts are intentional in one sense or another; however, unintentional results often flow from intentional acts (Emphasis added.)

Id. In Talley, we quoted 10 Couch on Insurance 2d § 41.6 (2d ed. 1985), which provides:

It is only the intended injuries flowing from an intentional act that are excluded . . . and a homeowner’s policy covers bodily injury from unintended results of an intentional act but not for an injury which was intended.
For the purposes of determining whether recovery can be had under an ‘accident’ provision of a liability policy, the resulting damage can be unintentional and therefore accidental even though the original acts were intentional.... If the consequences consisting of damages from intentional acts are not intended and are unexpected, they are ’accidental’ within a policy ...[.]

Talley, supra. We concluded that an exclusion of coverage of an accident insurance policy for the consequences of intentional acts did not support a summary judgment in favor of the insurance company, if the results of the intentional act were accidental or unintended. We returned the case to the trial court for a determination of whether “bodily injury” to the two boys was “expected or intended” from the “standpoint of the insured.” Id.

State Farm contends that the rationale of Talley is not applicable to this case, or should be overruled. In Talley, we established the principle that a policy insuring against accidental or unintended results did not exclude coverage for such results by an exclusionary clause for acts which were intentional.

The exclusionary clause before us in this case reads as follows:

SECTION II — EXCLUSIONS
Coverage L and Coverage M do not apply to:
A. Bodily injury or property damage:
(1) which is either expected or intended by an insured; or
(2) to any person or property which is the result of wilful and malicious acts of an insured.

State Farm contends that the second provision of this exclusion clause eHminates coverage for accidental or unintended results of willful and malicious acts. We disagree. Words excluding coverage for accidental or unintended results are not found in this clause. It would have been easy to include such language, if that had been State Farm’s intent. Such language might have stated:

SECTION II — EXCLUSIONS
Coverage L and Coverage M do not apply to:
A. Bodily injury or property damage:
(1) which is either expected or intended by an insured; or
(2) to any person or property which is the accidental or unintended result of wilful and malicious acts of an insured.

The policy promises to cover accidental results of an insured’s actions in its general language. To unambiguously exclude coverage for accidental or unintended results of willful and malicious acts of an insured, those words might have been used, but that was not done. It appears that there is an ambiguity between the general provision, extending coverage for accidents, and the exclusion clause as drafted in the policy.

If a provision is unambiguous, and only one reasonable interpretation is possible, we will give effect to the plain language of the policy without resorting to the rules of construction. Western World Ins. Co. v. Branch, 332 Ark. 427, 965 S.W.2d 760 (1998). If, however, the policy language is ambiguous, and thus susceptible to more than one reasonable interpretation, we will construe the policy liberally in favor of the insured and strictly against the insurer. Finally, whether the language of the policy is ambiguous is a question of law to be resolved by the court. Id.

We have determined that the language of the policy is internally inconsistent, and in light of our decision in Talley, supra, and in accordance with the principle that in the event of ambiguity we will construe the policy liberally in favor of the insured, we conclude that the policy does not exclude accidental or unintended results of willful and malicious acts from coverage.

We note that other jurisdictions have interpreted similar exclusionary language by holding that coverage for accidental or unintended results was not excluded. In Baugh v. Redmond, 565 So. 2d 953 (La. Ct. App. 1990), the appellate court of Louisiana held that an intentional act exclusion in a softball player’s homeowner’s policy did not bar coverage of his liability for battery upon the umpire, where the insured’s striking the umpire was neither premeditated nor intended to inflict serious bodily injury, but was rather a provocative gesture. See also Vermont Mut. Ins. Co. v. Singleton by & through Singleton, 446 S.E.2d 417 (S.C. 1994) (holding that intentional-act exclusion did not apply to exclude coverage for injuries sustained in a fist fight); Schexnider v. McGuill, 526 So. 2d 513 (La. Ct. App. 1988) (holding that massive cheek bone injuries from a quick blow to the face were not the result of an intentional act, as the scope of the injury to the plaintiff far exceeded what any reasonable person would expect).

We now address the question of whether Zack’s actions resulted in unintended or accidental injuries. Zack admits to hitting Skye in the jaw, but stated that he had no intent to cause the severe injuries that Skye sustained in his fall to the concrete. In his deposition, Zack testified, “I mean, I just hit him. ... I didn’t wind up or anything.” Although Zack had the intent to hit Skye, he states that the injuries that flowed from the punch were unintended. He asserts that he had no intent to hit Skye so hard as to cause the severe injuries that Skye sustained. Under Couch’s language, if Skye’s injuries were not intended or were unexpected, that result would be “accidental” and, thus, should be covered under the homeowner’s liability policy.

From our review of the record in the present case, it seems that the serious injuries to Skye were possibly accidental or unintended. However, the trial court did not reach that issue. We conclude that the trial court’s decision to grant summary judgment to State Farm without consideration whether Skye’s bodily injury was an accidental or unintended result of Zack’s actions was in error. Talley, supra, controls the disposition of this case, and accordingly, we reverse and remand for a determination of whether the injuries suffered by Zack were unintended or accidental.

Appellant also argues that State Farm’s exclusion is void as a matter of public policy. Because we have concluded that the poficy is ambiguous, we need not specifically address the issue of public policy.

Reversed and remanded.

Brown, Imber, and Smith, JJ., dissent.

ROBERT L. Brown, Justice,

dissenting. I dissent because the reasoning of the majority is flawed. At issue in this case is the following exclusion in State Farm’s insurance policy:

SECTION II — EXCLUSIONS
Coverage L and Coverage M do not apply to:
A. Bodily injury or property damage;
(1) which is either expected or intended by an insured; or
(2) to any person or property which is the result of wilful and malicious acts of an insured.

The majority holds that this section of the policy is ambiguous. According to the majority, to be absolutely clear the exclusions should read this way:

SECTION II — EXCLUSIONS
Coverage L and coverage M do not apply to:
A. Bodily injury or property damage;
(1) which is either expected or intended by an insured; or
(2) to any person or property which is the result of wilful and malicious acts of an insured which result is specifically intended by an insured.

The majority’s conclusion is illogical. Section A(2) excludes all willful and malicious acts committed against a person, irrespective of whether the insured intended to actually inflict the precise injury. Why is that unclear? What the majority seeks to do is limit the exclusion only to malicious acts where the result of bodily injury is specifically intended by the insured. But that is not how the exclusion reads. And that is not what the policy provides or what Ms. Norris agreed to.

This is not the situation we dealt with in Talley v. MFA Mut. Ins. Co., 273 Ark. 269, 620 S.W.2d 260 (1981), where this court interpreted the language in A(l). In that case, the issue under Section A(l) was whether the “accident” policy covered unintended results from intentional acts of the insured. We held that the policy was ambiguous on that point. In the instant case, Section A(2) is clear that all results from willful and malicious acts are excluded. It does not make any difference whether those results were subjectively intended by the insured or not.

Our holding today makes our jurisdiction a minority of one. No other jurisdiction has interpreted comparable language to Section A(2) as ambiguous; nor has any jurisdiction added the limiting language that the majority seeks to add to the policy exclusion. See, e.g., State Farm Fire & Cas. Co. v. Martin, et al, 710 N.E.2d 1228 (Ill. 1999) (exclusion in liability policy for bodily injury that is the result of willful and malicious acts of the insured was not ambiguous and did not depend on the subjective intent of the insured); McCauley v. Estes, 726 So.2d 719 (Ala. Civ. App. 1998) (exclusion in homeowner’s policy for bodily injury resulting from willful or malicious acts of the insured focuses on the acts of the insured and not on whether the insured intended to cause the injury); Jeansonne v. Detillier, 656 So.2d 689 (La. Ct. App. 1995) (exclusion in homeowner’s policy for bodily injury resulting from willful and malicious acts of insured excludes damages for such injury regardless of whether the insured intended the specific injury or not); Keathley v. State Farm Fire & Cas. Ins. Co., 594 So.2d 963 (La. Ct. App. 1992) (reversed the trial court and held that exclusion in homeowner’s policy for bodily injury resulting from willful and malicious acts applied, even though insured did not intend the severity of the bodily injuries caused by his blow to plaintiff’s head). Rather, all of these jurisdictions refused to read into the exclusionary language a requirement that the insured specifically intend to cause the resulting bodily injury.

The majority does attempt to cite authority for its unique interpretation, but the cases cited are clearly distinguishable. In Baugh v. Redmond, 565 So.2d 953 (La. Ct. App. 1990), the court interpreted language similar to A(l), but not language similar to A(2). The Louisiana Court of Appeals specifically distinguished the Baugh case for that reason in Keathley v. State Farm Fire & Cas. Ins. Co., supra, and held in favor of State Farm’s position as has already been shown. The same is true of the second and third cases cited by the majority in that the appellate courts in those cases interpreted language that is not even remotely similar to the A(2) language in the instant case. See Vermont Mut. Ins. Co. v. Singleton, 446 S.E.2d 417 (S.C. 1994). Schexnider v. McGuill, 526 So.2d 513 (La. Ct. App. 1988).

The majority stands alone in its unprecedented interpretation, which is a patent rewrite of the policy language. I would affirm the trial court’s grant of summary judgment.

Imber and SMITH, JJ., join.


author: PER CURIAM.

text:
    James BOSTON, Ricky Lee Martin, Bridgett Potts, Jacob Oliver, Allen Dwayne Buchannan, Dwight T. McClendon v. STATE of Arkansas
    CR 99-605, CR 99-582, CR 99-817, CR 99-950, CR 00-174, CR 00-191
    16 S.W.3d 239
    Supreme Court of Arkansas
    Opinion delivered May 18, 2000

      Maxie G. Kizer, for appellant James Boston.

      Bart Ziegenhorn, for appellants Ricky Lee Martin and Bridgett Potts.

      Saxton & Ayres, by: S. Butler Bernard, Jr., for appellants Jacob Oliver, Allen Dwayne Buchannan, and Dwight T. McClendon.
   PER CURIAM.

On March 22, 2000, the Arkansas Court of IAM. denied motions for attorneys’ fees in the captioned cases. Between April 3, 2000, and April 7, 2000, motions for reconsideration were filed in the Court of Appeals by several state-salaried public defenders. On May 2, 2000, the Court of Appeals certified the motions for reconsideration to this court pursuant to Ark. Sup. Ct. R. l-2(b)(4)-(5) and (d)(2). We accepted certification, and, for the reasons stated below, we must deny the motions for reconsideration.

In Rushing v. State, 340 Ark. 84, 8 S.W.3d 489 (2000), we held that the public defender statutes and the Regular Salary Procedures and Restrictions Act prohibit this court from compensating state-salaried public defenders for work done on appeal. Counsel in the above-styled actions, all of whom are state-salaried public defenders, urge this court to reconsider its application of Rushing to their circumstances and grant compensation for appellate work in the above cases. Counsel, in their separate motions, urge three primary reasons for distinguishing Rushing. First, counsel argue that Rushing should not apply to the work for which they seek compensation because they are all part-time, trial public defenders. Second, they argue that Rushing should only be applied prospectively to cases which were not pending when it was handed down. Finally, counsel argue that the funds awarded by this court would not be used to compensate public defenders as in Rushing, but rather would be used to pay “ghost writers” or to compensate counsel for time and resources taken from their private practice. Although we regret that counsel may be caused some hardship by this court’s rulings, we cannot, consistently with the governing statutes, grant their motions for reconsideration.

As counsel asserts, we denied compensation for appellate work in Rushing v. State to a full-time, state-salaried public defender. Therefore, counsel argue that Rushing does not apply to part-time public defenders. We disagree. Certainly, public-defender positions may be either full-time or part-time. Ark. Code Ann. § 16-87-304(c) (Supp. 1999). However, we did not distinguish between part-time and full-time public defenders in Rushing v. State, supra. Nor did we limit our holding to only full-time public defenders. Rather, we held that state-salaried public defenders were not eligible for additional compensation by this court for work done on appeal. Rushing v. State, supra. It is true that a part-time public defender is authorized to engage in the general practice of law. Ark. Code Ann. § 16-87-304(c) (Supp. 1999). However, the General Assembly did not distinguish between full-time and part-time public defenders when it made the salaries of public defenders subject to the state pay plan. Ark. Code Ann. § 16-87-305 (Supp. 1999). For that reason, both full-time and part-time public defenders are subject to the restrictions of the Regular Salary Procedures and Restrictions Act, codified at Ark. Code Ann. § 19-4-1601 et seq. It is this restriction which causes us to deny counsels’ motions for attorneys’ fees:

No employee authorized by the General Assembly shall receive from appropriated or cash funds, either from state, federal, or other sources, compensation in an amount greater than that established by the General Assembly as the maximum annual salary for the employee unless specific provisions are made therefore by law.

Ark. Code Ann. § 19-4-1601(b)(3)(C) (Repl. 1998). The statute further states that:

no person drawing a salary or other compensation from one (1) state agency shall be paid salary or compensation, other than actual expenses, from any other agency except upon written certification to and approval by the Chief Fiscal Officer of the State and by the head of each agency, stating that: (1) the work performed for the other agency does not interfere with the proper and required performance of the person’s duties; and (2) combined salary payments from the agencies do not exceed the larger maximum annual salary of the line-item position authorized for either agency from which the employee is being paid.

Ark. Code Ann. § 19-4-1604 (Repl. 1998).

Specific provision has been made by law allowing part-time public defenders to engage in the general practice of law, and therefore receive compensation in addition to their state salaries for such work. Ark. Code Ann. § 16-87-304(c) (Supp. 1999). However, there is no specific provision allowing public defenders, whether part-time or full-time, to receive additional compensation from this court or any other state agency for work done in the performance of their duties as public defenders. Counsels’ argument that because they are authorized to receive additional compensation for work as private counsel they may also receive compensation from this court is without merit. Without specific authorization to the contrary, we cannot compensate state-salaried public defenders, either full-time or part-time, for work done in that capacity on appeal. See Rushing v. State, supra.

Counsel next argue that Rushing should be applied only prospectively, allowing compensation for appellate work performed by public defenders prior to that decision. They argue that we created a new rule in Rushing that cannot be applied retroactively to prevent compensation for work done in the above cases. Counsels’ argument is in error. It is true that prior to our decision in Rushing, we compensated public defenders for work done on appeal just as we compensated private counsel appointed to represent indigent criminal appellants under Ark. Sup. Ct. R. 6-6. Following Rushing, we no longer do so. However, we did not create a new rule in Rushing. The change in this court’s practice is the result of statute. The Regular Salary Procedures and Restrictions Act was in full force and effect at the time the appeals at issue were filed with this court. We are not applying it retroactively. Although counsel point this court to instances where we have applied new rules or changes in the rules only prospectively in order to prevent the working of a hardship following our decisions, those cases involved the application of common-law principles or rules promulgated by this court. See, e.g., Shannon v. Wilson, 329 Ark. 143, 947 S.W.2d 349 (1997); Oliver v. State, 323 Ark. 743, 918 S.W.2d 690 (1996); Wiles v. Webb, 329 Ark. 108, 946 S.W.2d 685 (1997). In this instance, we are faced with a duly enacted statute that prohibits the action sought by counsel. We cannot ignore the statute governing this matter. We must apply its provisions where applicable even if those cases arose prior to our decision in Rushing. The Regular Salary Procedures and Restrictions Act, in conjunction with the public defender statutes, is the law in this matter that prevents the compensation sought by counsel. It is being applied prospectively.

Finally, counsel argue that their motions for attorneys’ fees should be granted in these matters because the public defenders will not actually receive the compensation. They assert that individuals, variously described as “law clerks,” “briefing assistants,” or “ghost writers,” actually performed the appellate work at issue and will be given all of the compensation awarded by this court. The difficulty with this argument is that the court is not asked to compensate these “ghost writers.” Rather, we are asked to compensate the public defenders. What they do with that compensation once they receive it is not relevant under the statutes as we interpret them. The statute reads “No employee . . . shall receive . . . compensation. . . .” Ark. Code Ann. § 19-4-1601(b)(3)(C). Arkansas Code Annotated section 19-4-1604 (Repl. 1998) prohibits this court, as an agency of the state, from paying compensation to the public defenders in the absence of the conditions therein specified.

Nor is it persuasive that counsel at times diverted resources and time from their private practices in order to work on these appeals. The counsel before this court are not here as private counsel. They were appointed to represent indigent criminal defendants in their capacities as public defenders. The fact that these part-time public defenders also engage in private practice does not change the fact that they were acting in their capacities as state-salaried public defenders in the cases at issue. Consequently, they are governed by the public defender statutes and the Regular Salary Procedures and Restrictions Act. Ark. Code Ann. § 16-87-201 et seq. and § 19-4-1601 et seq.

The motions for reconsideration of motions for attorneys’ fees are denied.

       We do not attempt to interpret Ark. Code Ann. § 19-4-1604 (Repl. 1998) at this time except to note that there is no evidence that the requirements for receiving compensation from two state agencies have been met in the cases at issue.


text:
    Kevin Douglas CASEY v. STATE of Arkansas
    CR 00-388
    16 S.W.3d 239
    Supreme Court of Arkansas
    Opinion delivered May 18, 2000
    Joe Kelly Hardin, for appellant.
    No response.
   PER CURIAM.

Kevin Douglas Casey, by his attorney, has IAM. motion for rule on the clerk.

His attorney, Joe Kelly Hardin, admits in his motion that the record was tendered late due to a mistake on his part.

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

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


text:
    Bobby ROBERTS, Individually, and on Behalf of Arkansans to Protect Police, Libraries, Education and Services v. Sharon PRIEST, Secretary of State
    00-485
    20 S.W.3d 279
    Supreme Court of Arkansas
    Opinion delivered May 18, 2000

      Friday, Eldredge & Clark, by: Elizabeth Robben Murray and Robert S. Shafer, for complainant.

      Mark Pryor, Att’y Gen., by: Dennis Hansen, Ass’t Att’y Gen., for respondent.
   PER CURIAM.

On April 25, 2000, petitioner Bobby Roberts, individually, and on behalf of Arkansans to Protect Police, Libraries, Education and Services, filed a complaint and petition for review pursuant to Act 877 of 1999, now codified at Ark. Code Ann. § 7-9-501 through 506 (Repl. 2000). In his complaint and petition, Roberts challenges the Declaration by respondent Sharon Priest, as Secretary of State, that the initiative petition proposing to abolish ad valorem property taxes is fair, accurate, and valid. He alleges in his complaint and petition certain defects in the popular name and ballot title for the proposed amendment and further contends that the proposed amendment is unconstitutional because it would impair the obligation of contracts. He prays that we declare the initiative petition to be legally insufficient and enjoin its placement on the November 7, 2000 general election ballot. Roberts has also moved this court for an expedited scheduling order pursuant to Act 877 and Amendment 7 to the Arkansas Constitution.

We note initially that at this writing the sponsor of the proposed amendment has not intervened in this original action. It is the sponsor, of course, who has the real interest in opposing a challenge to the proposed initiative.

We grant the motion for an expedited scheduling order. The complainant’s abstract and brief will be due on June 1, 2000. All response briefs will be due on June 15, 2000. Oral argument is set for June 22, 2000. We direct Roberts to personally serve the sponsor of the proposed amendment with a copy of this per curiam.


text:
    Frank WILLIAMS, Jr. v. STATE of Arkansas
    99-1221
    16 S.W.3d 555
    Supreme Court of Arkansas
    Opinion delivered May 18, 2000

      Alvin Schay, for appellant.
    No response.
   PER CURIAM.

On April 27, 2000, we issued an order for AM. Schay to appear before this court at 9:00 a.m., Thursday, May 11, 2000, to show cause why he should not be held in contempt of court for failure to file an appellant’s brief after a final extension had been granted.

Alvin Schay appeared on May 11, 2000. At that time, he entered a plea of not guilty and requested a hearing. Therefore, we appoint the Honorable Jack Lessenberry as a master to conduct the hearing. After the hearing, we direct the master to make findings of fact and file them with the court. Upon receiving the master’s findings, we will decide whether Alvin Schay should be held in contempt.


author: Annabelle Clinton Imber, Justice.

text:
    OFFICE OF CHILD SUPPORT ENFORCEMENT v. Christopher WILLIS
    99-1147
    17 S.W.3d 85
    Supreme Court of Arkansas
    Opinion delivered May 25, 2000

      James Houston Gunter, Jr., Chancellor;

      Greg L. Mitchell, for appellant.

      Gilbert Law Firm, by: Melinda R. Gilbert, for appellee.
   Annabelle Clinton Imber, Justice.

The Arkansas Court sAppeals tice. captioned case to this court pursuant to Ark. Sup. Ct. R. l-2(b)(2) and (5). We accepted certification in order to determine whether the defenses of collateral estoppel or res judicata bar a paternity action against a third party following the entry of two divorce decrees that reflect inconsistent findings on the issue of the child’s paternity. We decline to reach the merits of this appeal because the trial court order did not cover all of the parties and their respective claims as required by Ark. R. Civ. P. 54(b). Accordingly, we must dismiss this appeal without prejudice.

John and Merigayle Triplett were married on February 13, 1982, and Megan Triplett was born on November 23, 1988. The Tripletts were subsequently divorced February 26, 1992, and Merigayle was granted custody of Megan. The divorce decree awarded John visitation rights and ordered him to pay child support and to be responsible for all of Megan’s ordinary medical and dental expenses.

On February 14, 1993, John and Merigayle remarried, but they divorced once again, pursuant to a decree filed on January 20, 1998. In the second divorce, John challenged his paternity of Megan. After DNA paternity testing was performed which excluded John as Megan’s biological father, the trial court found as a matter of fact that John is not Megan’s father.

On August 12, 1998, the Office of Child Support Enforcement (OCSE) filed a paternity action against appellee, Christopher Willis, based upon the results of a DNA paternity test which revealed a 99.98 percent probability that Willis is Megan’s biological father. Willis denied that he is the father of Megan and affirmatively pleaded the defenses of res judicata, collateral estoppel, and waiver based upon the February 26, 1992 Triplett divorce decree. Willis filed a cross-claim for damages and injunctive relief against Merigayle Triplett based upon allegations of fraud and outrage. He also requested that John Triplett be joined in the action so that he could try his cross-claims of fraud and outrage against both John and Merigayle Triplett simultaneously, and so that John’s paternity could be declared. The trial court agreed that paternity had been established by the 1992 divorce decree and dismissed the paternity action against Willis in an order entered on April 21, 1999. OCSE now appeals the trial court’s dismissal of its paternity action against Willis. '

An order that fails to adjudicate all of the claims as to all of the parties, whether presented as claims, counterclaims, cross-claims, or third party claims, is not final for purposes of appeal. Ark. R. Civ. P. 54(b); Shackelford v. Arkansas Power & Light Co., 334 Ark. 634, 976 S.W.2d 950 (1998); State v. Morrison, 318 Ark. 563, 885 S.W.2d 900 (1994); Maroney v. City of Malvern, 317 Ark. 177, 876 S.W.2d 585 (1994). Although Rule 54(b) provides a method by which the trial court may direct entry of final judgment as to fewer than all of the claims or parties, where there is no attempt to comply with Rule 54(b) the order is not final and we must dismiss the appeal. Ark. R. Civ. P. 54(b); State v. Morrison, supra; Maroney v. City of Malvern, supra. The failure to comply with Rule 54(b) is a jurisdictional issue that we are obligated to raise on our own. Shackelford v. Arkansas Power & Light Co., supra; State v. Morrison, supra; Maroney v. City of Malvern, supra.

In the case before us, the order from which appeal is taken dismisses OCSE’s paternity action against separate defendant Christopher Willis, appellee here. The order, however, does not address appellee’s cross-claims for fraud and outrage against separate defendant Merigayle Triplett. According to the plain language of Rule 54(b), an order which fails to dispose of pending cross-claims in an action is not final for purposes of appeal. Ark. R. Civ. P. 54(b); Maroney v. City of Malvern, supra. In a review of the record, we find no other orders entered by the trial court disposing of the cross-claims. Although there is some indication that appellee wished to abandon his cross-claims upon entry of an order dismissing OCSE’s paternity action against him, those cross-claims remain pending until the trial court enters an order disposing of them. Shackelford v. Arkansas Power & Light Co., supra. No such order has been entered in this case; nor has there been a Rule 54(b) certification. Consequently, we are without jurisdiction and must dismiss this appeal without prejudice so that the trial court may enter a final order as to the pending cross-claims.

Appeal dismissed without prejudice.


author: RAY THORNTON, Justice.

text:
    Sharon BOOTHE v. Michael David BOOTHE
    99-1381
    17 S.W.3d 464
    Supreme Court of Arkansas
    Opinion delivered May 25, 2000

      Oliver Lee Adams, Jr., Chancellor;

      Boyer, Schrantz, Rhoads, & Teague, PLC, by: Johnnie Emberton Rhoads, for appellant.

      Morris & Morris, PA., by: Tim R. Morris, for appellee.
   RAY THORNTON, Justice.

This appeal comes to us from a stice. denied standing to a grandmother seeking visitation rights under Ark. Code Ann. § 9-13-103(a)(l)(Repl. 1998). The trial court found that the grandmother, appellant in this case, lacked standing under the statute because appellee was her son and the primary custodian of the children. We hold that the trial court erred, and we reverse and remand the chancery court’s decision.

Appellant Sharon Boothe is the paternal grandmother of two grandchildren, Zachariah Andrew Case-Boothe, age six, and Haylee Marie Boothe, age four. Michael Boothe, appellee and the biological son of Sharon, is divorced from the children’s mother, Misty Michelle Case. Appellee has primary custody of Zachariah and Haylee, and he refuses to allow contact between appellant and the children.

Appellant filed a petition for grandparent visitation, alleging that it would be in the best interests of the children if grandparental visitation were granted. In her petition, she states that the last time she saw the children was in October 1998. Appellee denies this allegation, and later he filed a motion to declare Ark. Code Ann. § 9-13-103 unconstitutional, alleging that the statute invades the fundamental right of privacy of parents to determine with whom their children visit, and that it invades the right of parents to raise their children without undue state interference. The chancellor issued an order in which he denied appellee’s motion. He also found that appellant had no standing to pursue visitation under Ark. Code Ann. § 9-13-103. Appellant timely filed a notice of appeal. Appellee did not file a formal notice of cross-appeal, but seeks to raise two points on cross-appeal in his brief.

We will first address appellee’s constitutional challenge to the grandparent-visitation statute. The Attorney General was not notified of the challenge to the constitutionality of Ark. Code Ann. § 9-13-103, and the issue was not developed in the record of the proceedings before the trial court. The trial court ruled that the statute was not unconstitutional, and appellee did not file a notice of cross-appeal on this point. Under Ark. R. App. P. — Civil 3(d), a cross-appeal “may be taken by filing a notice of cross-appeal with the clerk of the court which entered the judgment, decree or order being appealed.” Id.

Ordinarily the failure to file a notice of cross-appeal would end the matter, but cross-appeals have been addressed even when no formal notice was filed. In Hasha v. City of Fayetteville, 311 Ark. 460, 845 S.W.2d 500 (1993), a notice of cross appeal was not filed. We pointed out that while a failure to file a notice of cross-appeal would ordinarily end the matter, the appellee in that case did not seek any relief it did not receive in the lower court, and we addressed the matter. Id. It is clear that a notice of cross-appeal is necessary when an appellee seeks something more than it received in the lower court. Moose v. Gregory, 267 Ark. 86, 590 S.W.2d 662 (1979).

In this proceeding, appellee is requesting relief he did not receive in the trial court. At the trial level, appellee requested the trial court to rule that Ark. Code Ann. § 9-13-103 is unconstitutional, and the trial court denied his motion. Without filing a notice of cross-appeal, appellee now requests us to provide additional relief by declaring that the trial court erred in failing to declare that the grandparent-visitation statute is unconstitutional because it invades his right to privacy. He requests something more than he received in the trial court. Therefore, we hold that his failure to file a notice of cross-appeal prevents us from considering this point on appeal.

The remaining issue to be resolved is whether appellant had standing to pursue visitation rights under Ark. Code Ann. § 9-13-103(a)(l). We have held that visitation rights existing in grandparents must be derived from statutes or conferred by a court of competent jurisdiction pursuant to statutes. Cox v. Stayton, 273 Ark. 298, 619 S.W.2d 617 (1981); Quarles v. French, 272 Ark. 51, 611 S.W.2d 757 (1981).

In 1975, the legislature provided for grandparent visitation in the event of divorce or custody proceedings. See Ark. Stat. Ann. § 34-1211.1 (Supp. 1983). A later amendment enacted a broad standard for grandparent visitation and allowed visitation to a grandparent “regardless of the marital status of the parents of the child or the relationship of the grandparents to the person having custody of the child.” See Ark. Stat. Ann. § 34-1211.2 (Supp. 1985). In 1987, the legislature again revised this area of statutory law and granted courts permissive authority to allow grandparents visitation in certain circumstances. Arkansas Code Annotated § 9-13-103 provides in pertinent part:

9-13-103. Visitation rights of grandparents.
(a)(1) Upon petition by a person properly before it, a chancery court of this state may grant grandparents and great-grandparents reasonable visitation rights with respect to their grandchild or grandchildren or great-grandchild or great-grandchildren at any time if:
(A)The marital relationship between the parents of the child has been severed by death, divorce, or legal separation
(2) The visitation rights may only be granted when the court determines that such an order would be in the best interest and welfare of the minor.

Id. A grandparent’s right to visit her grandchild is a right created by statute. Rudolph v. Floyd, 309 Ark. 514, 832 S.W.2d 219 (1992). This statute was amended in 1987 to provide visitation “if the marital relationship between the parents of the child has been severed by either death, divorce or legal separation.” Id.

Our rules of statutory construction and interpretation have often been repeated:

The first rule in interpreting a statute is to construe it just as it reads by giving words their ordinary and usually accepted meaning. Arkansas Vinegar Co. v. Ashby, 294 Ark. 412, 743 S.W.2d 798 (1988). Statutes relating to the same subject should be read in a harmonious manner if possible. All statutes on the same subject are in pari materia and must be construed together and made to stand if capable of being reconciled.... In interpreting a statute and attempting to construe legislative intent, we look to the language of the statute, the subject matter, the object to be accomplished, the purpose to be served, the remedy provided, legislative history, and other appropriate matters that throw light on the matter.

Board of Trustees v. Stodola, 328 Ark. 194, 942 S.W.2d 255 (1997) (citation omitted). On review of an issue of statutory interpretation, we are not bound by the decision of the trial court. In the absence of a showing that the trial court erred in its interpretation of the law, that interpretation will be accepted as correct on appeal. Bryant v. Weiss, 335 Ark. 534, 983 S.W.2d 902 (1998); Hazen v. City of Booneville, 260 Ark. 871, 545 S.W.2d 614 (1977).

Under the plain reading of Ark. Code Ann. § 9-13-103, the trial court has discretionary power to grant visitation to a “grandparent or great-grandparent ... if [t]he marital relationship between the parents of the child has been severed by death, divorce, or legal separation...[.]” In the present case, the marriage between the parents of the grandchildren has been severed by divorce. The statute does not exclude the parents of the parent with custody from standing to seek visitation. However, it is also clear that the decision whether to grant visitation is a matter of discretion for the trial court, based upon the best interest and welfare of the minor. Id.

We have expressed this principle in many cases. In Rudolph, supra, we affirmed a chancellor’s order to grant visitation to a paternal grandfather, after paternity was established, for a child born out of wedlock. We stated that the grandparent visitation statute does not exclude grandparent visitation after a paternity finding. Id.

There are limitations upon grandparent-visitation rights. For example, these rights may be terminated by an adoption proceeding. In Suster v. DHS, 314 Ark. 92, 858 S.W.2d 122 (1993), we held that grandparental rights are derivative of their children’s parental rights and that the derivative right is subject to divestment by adoption. In Vice v. Andrews, 328 Ark. 573, 945 S.W.2d 914 (1997), we stated that “if there had been no adoption[,] ... the provisions of Ark. Code Ann. § 9-13-103 permitting grandparent visitation privileges would be the controlling statute.” Id.

We conclude that in the case before us, appellant has standing to petition for visitation rights under Ark. Code Ann. § 9-13-103(a)(1). Of course, we do not adjudicate the question whether appellant should be granted visitation rights. Under the statute, the trial court has discretion to determine whether visitation rights are appropriate under a best-interest-of-the-child standard.

Accordingly, we hold that the trial court erred in denying appellant standing to petition for visitation rights under Ark. Code Ann. § 9-13-103, and reverse and remand for further proceedings.

Reversed and remanded.


text:
    Robert Paul REYNOLDS v. STATE of Arkansas
    CR 98-1184
    18 S.W.3d 331
    Supreme Court of Arkansas
    Opinion delivered May 25, 2000

      Robert McCorkindale, Judge;

      Richard R. Parker, Public Defender, for appellant.

      Mark Pryor, Att’y Gen., by: Vada Berger, Ass’t Att’y Gen., for appellee.
   RAY THORNTON, Justice.

Appellant Robert Paul Reynstice. first-degree murder and sentenced to life imprisonment for the shooting death of his neighbor, Michael Ramsey. Reynolds’s counsel filed a no-merit brief on appeal, and we affirmed the conviction and sentence in Reynolds v. State, No. CR 95-1343, slip op. (Ark., May 13, 1996)(per curiam). Reynolds subsequently filed a petition for postconviction relief pursuant to Arkansas Criminal Procedure Rule 37, raising two claims of ineffective assistance of counsel. The Boone County Circuit Court denied relief. Reynolds now appeals from that order, and, because we agree that the failure to object to erroneous jury instructions amounted to a denial of the Sixth Amendment right to effective counsel, we reverse the trial court’s findings and remand the case for a new trial.

The sufficiency of the evidence was not challenged on direct appeal or in the postconviction proceedings; the testimony was uncontradicted that Reynolds fired five shots from a semi-automatic rifle at his victim as he drove past Reynolds’s house. At trial, Reynolds’s defense was insanity: that at the time of the killing, as a result of mental disease or defect, he lacked the capacity to conform his conduct to the requirements of law or to appreciate the criminality of his conduct. See Ark. Code Ann. § 5-2-312 (Repl. 1997). Reynolds was charged with the crimes of first-and second-degree murder as well as manslaughter, and the jury returned a verdict of guilty of murder in the first degree. The erroneous instruction given to the jury on the first-degree murder charge was:

Robert Reynolds is charged with the offense of murder in the first degree. To sustain this charge, the State must prove beyond a reasonable doubt that Robert Reynolds, with the purpose of causing the death of or serious physical injury to Michael Ramsey, did cause the death of Michael Ramsey.
A person acts with the purpose with respect to his conduct or a result thereof when it is his conscious object to engage in conduct of that nature or to cause such a result.
Serious physical injury means physical injury that created a substantial risk of death or that causes protracted disfigurement, protracted impairment of health, or loss or protracted impairment of any function of any bodily member or organ (emphasis supplied).

This instruction does not require proof of the elements of the crime of first-degree murder in order to convict a person of that crime.

The pertinent elements of first-degree murder are set out in Ark. Code Ann. § 5-10-102 (Repl. 1997) as follows:

(a) A person commits murder in the first degree if:
% ‡ ‡
(2) With a purpose of causing the death of another person, he causes the death of another person....

Id.

By contrast, the required pertinent elements of second-degree murder are set out in Ark. Code Ann. § 5-10-103 (Repl. 1997) as follows:

(a) A person commits murder in the second degree if:
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(2) With the purpose of causing serious physical injury to another person, he causes the death of any person....

Id. (emphasis added). As given to the jury, this instruction would allow a conviction of first-degree murder to be rendered upon proof of only the elements required for a conviction of second-degree murder. Rather than allowing a choice between a conviction of first-degree murder or of the lesser offense of second-degree murder, the jury was instructed that it could convict Reynolds of first-degree murder upon a finding that the purpose required for second-degree murder had been proven. This erroneous instruction would allow Reynolds to be convicted of first-degree murder upon proof that his purpose was to cause “serious physical injury.” The fundamental issue presented to us in this appeal from the denial of a Rule 37 petition is whether counsel’s failure to object to the erroneous instruction, or to bring the issue forward on direct appeal, constituted a deficient performance that so prejudiced Reynolds that he was deprived of a fair trial.

Postconviction proceedings under Rule 37 provide a remedy against unjust imprisonment. The rule enables our courts to correct a manifest injustice. As we have stated, Rule 37 is a narrow remedy designed to prevent wrongful incarceration under a sentence so flawed as to be void. Nooner v. State, 339 Ark. 253, 4 S.W.3d 497 (1999). We will not reverse the trial court’s decision granting or denying postconviction relief unless it is clearly erroneous. A finding is clearly erroneous when, although there is evidence to support it, the appellate court after reviewing the entire evidence is left with the definite and firm conviction that a mistake has been committed. Id.

The criteria for assessing the effectiveness of counsel were enunciated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984), which provides that when a convicted defendant complains of ineffective assistance of counsel he must show that counsel’s representation fell below an objective standard of reasonableness and that but for counsel’s errors the result of the trial would have been different. Id. We have adopted the rationale of Strickland and held that:

To prevail on any claim of ineffective assistance of counsel, the petitioner must show first that counsel’s performance was deficient. This requires a showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the petitioner by the Sixth Amendment. Secondly, the petitioner must show that the deficient performance prejudiced the defense, which requires a showing that counsel’s errors were so serious as to deprive the petitioner of a fair trial.

Thomas v. State, 330 Ark. 442, 954 S.W.2d 255 (1997).

Here, the trial court found, and the State does not contest, that an erroneous instruction of the law was given to the jury. The failure of Reynold’s counsel to object to the flawed instruction was a deficient performance of his duties as counsel. We then must ask whether the deficient performance prejudiced the defense. In Hall v. State, 326 Ark. 318, 933 S.W.2d 363 (1996), we held that in cases involving a trial court’s giving of an erroneous instruction in cases involving the trial mechanism, “we will not require the appellant to demonstrate prejudice.” Id. In the case before us, it is apparent that counsel’s deficient performance in not objecting to the erroneous instruction prejudiced the defense, because the jury was given an erroneous instruction that Reynolds could be found guilty of first-degree murder based upon a finding of a purpose to cause serious physical injury, as required for the crime of second-degree murder.

The next question is whether these errors were so serious as to deprive Reynolds of a fair trial. In Thomas v. State, supra, we said:

In reviewing the denial of relief under Rule 37, this court must indulge in a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. The petitioner must show that there is a reasonable probability that, but for counsel’s errors, the factfinder would have had a reasonable doubt respecting guilt in that the decision reached would have been different absent the errors. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial (citations omitted).

Id.

Here, the jury was given the elements of second-degree murder and instructed that it could find Reynolds guilty of first-degree murder based upon those elements. We have expressed the distinction between the analysis that takes place on direct appeal when an erroneous instruction is submitted to the jury, and the analysis that we apply to evaluate an ineffective assistance of counsel claim. Sasser v. State, 338 Ark. 375, 993 S.W.2d 901 (1999). On direct appeal from a case involving an erroneous instruction, the “harmless error” standard of review is appropriate, but in a postconviction challenge we must also consider whether, but for counsel’s error, there is a “reasonable probability” that the outcome of the trial would be different. See Thomas, supra.

In Hall, a case involving a postconviction challenge, we concluded that the defendant had failed to show that but for his counsel’s deficient performance, the jury would have reached a different decision. There we considered multiple instructions on charges including capital murder, second-degree murder, and other lesser charges. We cited with approval the language of the Eighth Circuit in United States v. West, 28 F.3d 748 (8th Cir. 1994):

This court’s precedent ... highlights the importance of reviewing an allegedly faulty jury instruction in context with the entire jury charge and the entire trial. See United States v. McMillan, 820 F.2d 251, 256 (8th Cir.), cert. denied, 484 U.S. 898, 108 S.Ct. 234, 98 L.Ed.2d 193 (1987). In McMillan, this court examined a criminal jury instruction that, if viewed in isolation, appeared to remove one element of the government’s burden of proof. Id. Nevertheless, this court determined that two other proper jury instructions and the context of the whole trial corrected any error in the isolated erroneous instruction, and thus the jury charge as a whole properly conveyed the government’s burden to the jury.

Id. We also observed that Hall, as well as the cases Cates v. Brown, 278 Ark. 242, 645 S.W.2d 658 (1983) and Moore v. State, 252 Ark. 526, 479 S.W.2d 857 (1972), involved circumstances where “the erroneous instruction was obviously cured by other instructions.” Id.

Similarly, in Sasser, we pointed out the distinction between that case and the facts in Sullivan v. Louisiana, 508 U.S. 275 (1993), which dealt with a structural defect in the constitution of the trial mechanism, more particularly an erroneous instruction upon the State’s burden of proof. In Sullivan the Court determined that the harmless-error standard of review could not be applied because to do so would force the appellate court, inappropriately, to speculate about what a jury would have done, had it been properly instructed. Id. In Sasser, we distinguished Sullivan because, in Sasser, there were multiple instructions, and the error was not so serious as to deprive the appellant of a fair trial and a reliable finding of guilt. Id.

In the case before us, instructions as to what elements must be proven to support a conviction for first-degree murder were flawed, not by omission of a required element for such a conviction, but by the addition of a specific instruction allowing the conviction for first-degree murder to be rendered upon the proof of only that lesser intent required for second-degree murder. For us to decide that there might have been sufficient evidence to support a conviction of the greater crime would deprive Reynolds of his right to a trial by jury on the charge of first-degree murder. Due process requires that an “accused shall enjoy the right to a speedy and public trial, by an impartial jury.” U.S. Const, amend. 6. The United States Supreme Court, in United States v. Gaudin, 515 U.S. 506 (1995), stated that:

We have held that these provisions require criminal convictions to rest upon a jury determination that the defendant is guilty of every element of the crime with which he is charged, beyond a reasonable doubt.

Id. (citing Sullivan, supra). The Gaudin Court continued: “The Constitution gives a criminal defendant the right to demand that a jury find him guilty of all the elements of the crime with which he is charged....” Id.

In the case sub judice, the jury was not required to decide whether Reynolds caused the death of another based upon his intent to cause another’s death. We can only speculate how the jury would have resolved this question if it had been instructed to do so. However, we recognize that the jury might have based its conviction for first-degree murder upon findings of only the elements required for second-degree murder.

It is not necessary for us to decide, whether this error was such a fundamental structural error that it would be inappropriate to even conduct a harmless-error analysis. Here the flawed instruction was not corrected or rendered harmless by other instructions as in Hall, supra, or Sasser, supra. Unlike those cases, the error here is not the omission of an element of the crime but the addition of an instruction that specifically allows conviction upon a lesser showing of intent, thereby denying Reynolds the right to a jury trial on the elements upon which a conviction for first-degree murder must be predicated.

An accused has the right to a jury verdict beyond a reasonable doubt on the elements of the crime. See Gaudin, supra. In Sullivan, the Supreme Court wrote the following: “The inquiry, in other words, is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in the trial was surely unattributable to the error.” Id., (citing Rose v. Clark, 478 U.S. 570 (1986)) (emphasis added).

Because of the flawed instruction, the State was relieved of the responsibility to prove beyond a reasonable doubt every element of the crime of first-degree murder. As recognized by the Arkansas Court of Appeals in Beasley v. State, 29 Ark. App. 104, 777 S.W.2d 865 (1989), an erroneous modification of a model jury instruction “telling the jury that actual ownership was not necessary to convict appellant on the possession of firearm charge was prejudicial and warrants reversal....” Id. To the same effect see Justice Scalia’s concurring opinion in California v. Roy, 519 U.S. 2 (1996), where he states:

As we held in Sullivan v. Louisiana, [supra] a criminal defendant is constitutionally entitled to a jury verdict that he is guilty of the crime, and absent such a verdict the conviction must be reversed, “no matter how inescapable the findings to support that verdict might be.” A jury verdict that he is guilty of the crime means, of course, a verdict that he is guilty of each necessary element of the crime. Formally, at least, such a verdict did not exist here: The jury was never asked to determine that Roy had the “intent or purpose of committing, encouraging, or facilitating” his confederate’s crime.
The absence of a formal verdict on this point cannot be rendered harmless by the fact that, given the evidence, no reasonable jury would have found otherwise. To allow the error to be cured in that fashion would be to dispense with trial by jury.

Id. (citations omitted).

We hold that the trial court’s finding denying Reynolds postconviction relief based on ineffective assistance of counsel was clearly erroneous. Counsel’s failure to object to the erroneous instruction ahowing conviction for first-degree murder upon proof of only the elements required for a conviction of second-degree murder is sufficient to undermine confidence in the outcome of the trial, and establishes a reasonable probability that the outcome of the trial would have been different but for counsel’s deficient performance. The erroneous instruction was not an error of omission cured or corrected by other charges to the jury so as to properly convey the State’s burden to the jury. Accordingly, we set aside Reynolds’s conviction and sentence without addressing his remaining allegations of error, remanding this case for a new trial.

Reversed and remanded.

BROWN, J., not participating.