author: P. A. Hollingsworth, Justice. John I. Purtle, Justice.

text:
    Leo THOMPSON v. ARKANSAS SOCIAL SERVICES
    83-246
    669 S.W.2d 878
    Supreme Court of Arkansas
    Opinion delivered May 7, 1984
    [Rehearing denied May 7, 1984.]

      , David J. Manley, Legal Services of Arkansas, for appellant.

      Breck G. Hopkins, and Judieth P. Balentine, for appellee.

      Purtle, J., would grant rehearing.

   P. A. Hollingsworth, Justice.

This case involves the termination of appellant’s parental rights in his three year old son and the constitutionality of Ark. Stat. Ann. § 56-128 (Supp. 1983).

When the child, Jonathan, was less than a month old, a dispute over his custody arose. Subsequently, the child was determined to be dependent neglected and was placed in the foster care program. After several hearings in Miller County Juvenile Court, the appellee, Arkansas Social Services, filed a petition to terminate the parental rights of the appellant Leo Thompson and his wife Donna and place the child for adoption. The Miller County Probate Court granted the petition. This appeal is from that order.

The appellant raises three points on appeal. First he contends that the lower court’s findings of fact and conclusions of law were clearly erroneous. In his other two points, he challenges the constitutionality of the of the statute which provided the basis for the action on both substantive due process and vagueness grounds. We will address the points in that order.

The trial court’s findings of fact were that the child was born to Donna Faye Harrington with no father listed on the birth certificate. The mother married the appellant approximately four months after the child was born. The child was placed in the custody of the appellee after an incident investigated by the Texarkana Police and SCAN relating to a dispute between a babysitter and the mother as to custody of the child. Supervised visitation and home visits with some overnight and weekend visits were allowed between Donna and Leo and their son. The judge stated:

Numerous problems developed during this visitation period including problems with Donna and Leo complying with requests for administering the medication to the juvenile and feeding the juvenile foods necessary to his medical needs.

The appellant regularly attended the visitation at the appellee’s offices. Donna attended infrequently. The child has been hospitalized for diarrhea, suffered from a thrush infection and is being treated on an ongoing basis by the Developmental Clinic of Arkansas Children’s Hospital. The child has been found to have delayed motor development and has needed specialized therapy. He is presently enrolled in the Special Education Center. SCAN and the appellee provided a lay therapist to work with the appellant and his wife; psychological evaluations for the mother; counseling attempts with the mother were unsuccessful; case plans were developed for the mother; transportation to the hospital was provided the parents when the child was ill; and efforts were made for the mother and appellant to visit other special education programs to assist them in understanding their child’s needs. The Juvenile Court found that there has occurred no material change of circumstances sufficient to warrant return of 'the custody of the minor (child) to his mother and putative father, and that it is in the best interest and welfare of the juvenile that his custody remain in Arkansas Social Services.

The Court’s conclusions of law were that the above recited facts:

constitute clear and convincing facts for termination of parental rights of Donna Thompson, mother and Leo Thompson, putative father, due to the fact that they have failed and neglected without reasonable and lawful cause to provide or adjust their circumstances, conduct, or condition, so as to provide for the basic, essential, necessary physical, mental or emotional needs of the child and due to the fact that placing the child in the custody of the said Donna Thompson and Leo Thompson would raise a substantial risk of serious harm to the child due to the long standing and uncontrollable mental or emotional illness or a mental deficiency of the said Donna Thompson and Leo Thompson.

The trial court’s findings were not clearly erroneous. The evidence showed that both Donna and Leo are mildly retarded, falling in the borderline category of intellectual functioning. The father completed the sixth grade in school and the mother completed the seventh grade. They live on the money Leo makes selling blood and mowing yards, money Donna earns cleaning people’s houses, and food stamps. According to testimony by a social service worker, the couple’s home has no plumbing, water, or bathroom facilities, it is heated by a wood stove, and the ceiling is falling in the living room.

The custody dispute began when Donna left the baby with a woman who house she had just cleaned. The baby stayed there for nearly three weeks, visited occasionally by Donna. The woman caring for the baby called SCAN, and they picked up the child. Donna and Leo deny that they abandoned the child and claim instead that the woman was babysitting for them and then refused to return their baby.

After the appellee had custody of the child, the parents were allowed supervised visitation. During the visits when the couple was allowed to care for their son, they demonstrated an inability to understand the baby’s needs by failing to feed him the proper foods or give him proper medication. After nearly two years of working with SCAN and the appellee, the couple had not improved. The baby, however, has improved during the time spent in foster care out of the home and shows promise, with special care, of leading a near normal life. Although the appellant obviously loves his son, that is not enough. The best interests of the child are what this Court, the juvenile court and the probate court must be concerned with and the evidence is clear and convincing and supports the probate judge’s finding that the child’s needs would be better met out of the home.

The appellant’s second and third points deal with the constitutionality of the statute. In order to establish standing, a party must demonstrate that he is possessed of a right which the statute infringes and that he is within the class of persons affected by the statute. 16 C.J.S. Constitutional Law § 76 p. 226 (1956). The statute being challenged here deals with the termination of parental rights. Although the appellant is not listed on the birth certificate as the father of Jonathan and was not married to Donna when the child was born, this does not deny his parenthood, as "parent” has been defined as “one who generates a child.” 59 Am Jur 2d Parent and Child § 2 p. 84 (1971).

The word “parent” has been held to include the father of a statutorily legitimated child born of a void marriage but it may or may not include the father of an illegitimate child. . . .There are two classes of parents in the eyes of the law: natural parents and adopting parents. Consequently, the relation of parent and child may exists as a natural fact, but not as a legal relationship, or vice verse.

59 Am Jur 2d Parent and Child §§ 2 and 5 (1971).

In response to a request for admission during the discovery phase of this case, the appellee admitted that the appellant is the father of Johnathan. In addition, during the hearing on this case, the appellant testified that Jonathan is his son. Since neither party questions the appellant’s status and since the evidence indicates that Jonathan is his son, the appellant has standing to challenge the statute.

The appellant’s first contention is that the statute violates substantive due process. The test for subtantive due process is whether or not a compelling state interest is advanced by the statute and whether the statute is the least restrictive method available to carry out this state interest. In addition, the child’s best interests are of paramount importance. Ark. Stat. Ann. § 56-128 lists the conditions which permit a court to terminate a party’s parental rights. The only provisions of the statute affecting the appellant, and therefore the only provisions he has standing to challenge are (F) (1) and (H), the two sections found to be grounds for termination of appellant’s rights by the trial court in its order. Those provisions are:

(F) Placing the child in the custody of the parent would raise a substantial risk of serious harm to the child; provided however before grounds may be established under this subsection, the court must be satisfied that the parents have received for a period up to six (6) months in the discretion of the court, from the Division of Social Services remedial support services designed to reunite the child and the parents, and such services have failed to substantially reduce the risk of harm to the child. In determining the risk the court may consider, but shall not be deemed to be limited to one or more of the following:
1. Longstanding and uncontrollable mental or emotional illness or mental deficiency of the parent;
(H) The parent has failed or neglected without reasonable and lawful cause to provide or to adjust his circumstances, conduct, or condition so as to provide for the basic, essential and necessary physical, mental, or emotional needs of the child for a period of one (1) year immediately preceeding the filing of the petition. . . .

In Davis v. Smith, 266 Ark. 112, 583 S.W.2d 37 (1979), we held that an earlier version of this statute was unconstitutionally vague. In that case we said:

The concern of this court for the preservation of these [parental] rights has been expressed over a long period of time. . ,[W]e recognized the rights of parents of good moral character, however poor and humble they might be, if able to support their child in their own style of life, not as a cardinal principle of law and nature, to be deprived of parental privileges, except when urgently necessary to afford the child reasonable protection. Parental rights and the integrity of the family unit have always been a concern of this state and their protection regarded as a proper function of the court. They have been classified as essential rights, basic civil rights, and personal rights more precious than property rights. They have been said to be fundamental rights. . . .Certainly there reamins no lingering doubt about the fact that the rights of parents to the care, custody and upbringing of their children are the subject of constitutional protection on both due process and equal protection standards. Parental rights are not, however, beyond limitation in the public interest. The state’s constitutional interest extends to the welfare of the child. Parental rights are not immune from interference by the state in its role of parens patriae.

The statute is also not vague. For a statute to avoid being vague under due process standards, it must give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden and it must not be so vague and standardless that it leaves judges free to decide, without any legally fixed standards, what is prohibited and what is not on a case by case basis. Davis, supra.

In Davis, we decided that a statute terminating parental rights should be scrutinized with greater flexibility than that accorded criminal statutes. We explained:

This is because any parent should have some basic understanding of his obligations to his children, but many cannot be as alert to and aware of, prevailing practices basic to establishment of standards as those engaging in business would likely be to settled and well understood standards and practices. . .Flexibility and reasonable breadth, rather than meticulous specificity or great exactitude, in a statute are permissible, so long as its reach is clearly delineated in words of common understanding. . .It is not necessary that all kinds of conduct falling within the reach of the statute be particularized. A statute is not to be struck down as vague only because marginal cases could be put where doubts might arise.

The appellant’s argument turns on the lack of a clear definition of the terms “mental illness” and “emotional illness” and the absence of what the “basic, essential and necessary needs” of a child are. We said in Davis, supra, that mathematical certainty is notrequiredin a statute just so the language is capable of common understanding. Similar language has been upheld by courts in other jurisdictions. See The Matter of N. Children, 107 Misc. 2d 763, 435 NYS2d 1018 (1981); In re Sylvia M., 82 A.D.2d 217, 443 NYS2d 214 (1981); In re Doe, 465 A.2d 924, (N.H., 1983); Matter of Atkins, 112 Mich. App. 528, 316 N.W.2d 477 (1982). We agree with the appellee that, since the particular disabilities of parents are diverse, it would be impossible to catalogue each disability, and the statute must be cast in broad enough language to encompass all proscribed behavior. We follow the language used by the Connecticut court in State v. Anonymous, 179 Conn. 155, 425 A.2d 939, 945 (1979) where they said:

The conduct that is proscribed, while not enumerated specifically, is delineated as that resulting from “physical or mental incapability” or “conditions attributable to parental habits, misconduct or neglect.” It is true that these somewhat general phrases encompass a wide variety of conduct, but the process of parenting itself is multi-faceted and encompasses all of life’s activities. In view of the diversity of human nature, backgrounds and capabilities, and the differing aspirations of families in our society, it would be impossible to delineate specific conduct as acceptable or unacceptable. What might be totally unacceptable parental behavior in one situation (the deprivation of certain material goods) might be an unfortunate but unavoidable fact of life in a different family situation.

The statute is constitutional.

Affirmed.

Purtle, J., dissents.

John I. Purtle, Justice.

Adoption of a child over the objection of a natural parent is a most serious matter. We have adopted a rule in such cases which states that the facts justifying such action must be established by clear and convincing evidence that the parent has failed significantly and without j ustif iable cause to communicate with the child or to provide for his care and support. Harper v. Caskin, 265 Ark. 558, 580 S.W.2d 176 (1979). In Harper the adoption was rejected because it had not been shown that the father had conducted himself in such a manner as to deprive him of his parental rights. Natural rights of parents should not be passed over lightly. The integrity of the natural relation of parent and child must be given strong consideration. The determination to sever such relationship, being in derogation of the natural and common law, must be determined from extrinsic evidence before the judge. 2 Am. Jur. 2d Adoption § 60.

Adoption deprives the child and the parent of their relationship which nature bestowed upon them. It is more drastic and permanent than temporary custody. In temporary custody cases the parent and perhaps the child usually harbor and cherish the idea that they will at some time in the future be reunited. Adoption banishes such hope, and even if slowly, nevertheless destroys that love and affection usually existing between a child and his parent. The relationship of a parent and child should never be terminated unless there are compelling reasons for doing so.

I think the trial court and the Arkansas Social Services acted too hastily in requiring the father and son to forever relinquish their natural relationship. Before requiring any parent to absolutely relinquish and abandon his child without hope or expectation of ever again resuming the relationship, I would require the state to walk an extra mile.

How can it be said with any degree of certainty that it is in the best interest of this child to sever his natural relationship with his father? The child could not express his feelings at his tender age. How do we know how much he loves his father? Does he realize he most likely will never see his natural mother and father again? As I understood the record this child was living with his father in the house where the father was born and raised. Not every citizen of this state can afford a three bedroom air conditioned brick home in Little Rock. The pioneers of this state no doubt survived in less comfortable circumstances than they desired. I feel certain this father would much rather live in a modern home but his circumstances in life do not at this time allow him to do so. If we are to believe it is in the best interest of a child to transplant him into what we perceive to be a better environment, then we open the gate to the highest bidder. Children should never be for sale.

It is my opinion that the Social Services should have done more to encourage and teach these parents how to be good parents in their circumstances. The child was taken from the parents when he was only one month old. Before he was two years old the court had taken him from his parents under the allegation that the parents were “unfit” to properly care for him and that he was entitled to the love and affection of a normal home. How did the Social Services determine the child was not loved or that the parents were unfit? By allowing the parents to visit with their child under close scrutiny and apparently spasmodically. It is obvious from the record that the foster mother was as unpredictable as the natural mother. This child should have been placed in another foster home or returned to the natural parents under close supervision, in my opinion. I agree with appellant that the remedial support services designed to reunite this child and his parents as required by Ark. Stat. Ann. § 56-128(F) (Supp. 1983) were not provided in this case. A. B. v. Arkansas Social Services, 273 Ark. 261, 620 S.W.2d 271 (1981).

I would not grant the petition without proof of further rehabilitation attempts by the Social Services. In my opinion the proof, as it relates to the father, is not clear and convincing that this father has failed significantly without any justifiable cause to support and care for the child. The fact that a parent may be poor and ignorant is not by itself grounds for permanently destroying their natural relationship. It seems to me there must be more than this record reveals before a child and his parents are separated forever.


source: Caselaw Access Project

author: P. A. Hollingsworth, Justice. Steele Hays, Justice, dissenting.

license: Public Domain

text:
    John Charles ZOLLER v. STATE of Arkansas
    CR 84-104
    669 S.W.2d 434
    Supreme Court of Arkansas
    Opinion delivered May 7, 1984

      Wallace, Hilburn, Clayton, Calhoon ir Forster, Ltd., by: Joseph H. Purvis and John F. Forster, Jr., for appellant.

      Steve Clo.rk, Atty. Gen., by: Micho,el E. Wheeler, Asst. Atty. Gen., for appellee.
   P. A. Hollingsworth, Justice.

John Charles Zoller was arrested during the early morning hours of November 22, 1982 aboard an aircraft at the Hope Municipal Airport. The plane, piloted by the appellant and a co-defendant, contained 1875 pounds of marijuana and six gallons of hash oil. The airport was under surveillance by both Arkansas and Louisiana State Police when the plane landed. The appellant was charged with possession of a controlled substance with intent to deliver.

The case was originally set for trial on February 28, 1983. On February 24, appellant’s counsel withdrew from the case and appellant’s new counsel, three attorneys, filed several motions, including one for continuance. All of the motions were denied. During the hearing on the motions, the prosecuting attorney made a plea offer to the appellant. The terms of the offer were as follows: For a plea of nolo contendere, the sentence would be ten years with five years suspended, a $20,000 fine, and first offender treatment with sentencing in the summer of 1983 after it was anticipated that the Arkansas General Assembly would pass Act 344, (Ark. Stat. Ann. § 43-2340 (f)), the Alternative Service Act for first offenders. The trial court was told about the plea of nolo contendere but not about the terms and conditions nor the prosecutor’s recommendations on sentencing. The trial court continued sentencing to a later date.

During a court proceeding on April 4, the trial court advised appellant’s counsel, who happened to be present, that he should have appellant in court on the following Monday, April 11. The appellant filed a motion to withdraw his plea of nolo contendere. The motion was denied at the sentencing proceedings on April 11. The court then imposed a sentence of ten years with five suspended and a $20,000 fine, omitting the first offender portion of the agreement.

The appellant raises two points on appeal. First, he contends that he had a right to withdraw his plea before sentencing, as provided in Ark. R. Grim. P. 26.1, which reads in pertinent part:

(a) The court shall allow a defendant to withraw his plea ... of nolo contendere upon a timely motion and proof to the satisfaction of the court that withdrawal is necessary to correct a manifest injustice.
(c) Withdrawal of a plea of guilty or nolo contendere shall be deemed to be necessary to correct a manifest injustice if the defendant proves to the satifaction of the court that:
(iv) he did not receive the charge or sentence concessions contemplated by a plea agreement and the proecuting attorney failed to seek or not to oppose the concessions as promised in the plea agreement; or
(v) he did not receive the charge or sentence concessions contemplated by a plea agreement in which the trial judge had indicated his concurrence and he did not affirm his plea after receiving advice that the judge had withdrawn his indicated concurrence and after an opportunity to either affirm or withdraw the plea.

The appellant argues that he was denied his rights beacuse the judge was both aware of the plea agreement and had indicated he would go along with it, and because the prosecutor failed to seek the agreed-upon concessions.

When the appellant entered his plea of nolo contendere at the February 24 hearing, the following colloquy occurred:

Court: I assume that there has been some plea negotiation?
Purvis: That’s correct, Your Honor.
Court: And I assume that the Court will be made aware of that at some point, which I haven’t to this time. I have been advised in regard to Mr. Shearer [a co-defendant] what the recommendation would be.

Other pertinent portions of the February 24 hearing are as follows:

Court: Have you been extended any promise of reward to induce you to enter a plea of guilty?
Hall: Other than the plea negotiation?
Court: Other than the plea negotiation?
Zoller: No sir.
Court: Now if you gentlemen in behalf of Mr. Zoller feel that your statement to the Court is sufficient to carry out your recommendation under the plea negotiation then I’m satisfied. . .
But I think you know as well a.s the Stoie knows what your plea recommendation is tho.tyou expect the Court to accept is that correct?
Hall: Correct.

At the April 11 hearing when the appellant was sentenced, the following took place:

Court: Let the record state that the Court was of the opinion at the time that the plea was entered on the. . . 24th of February, 1983, that there would be a recommendation of twenty thousand dollar fine, ten years, five of which to be suspended. To that recommendation the Court gave the impression I’m sure that the Court would accept that. The Court will accept that recommendation.

The prosecuting attorney, Mr. Johnson, also testified at the April 11 hearing as follows:

Johnson: [W]e agree that John Zoller be sentenced under the first offender act if said act applied.
Purvis: All right. Did you concur in that?
Johnson: Yes.
Purvis: And those were material terms were they not to our plea agreement1?
Johnson: From the defense side, perhaps so.
Purvis: Did you subsequently advise the Court of the terms of this agreement which had been struck?
Johnson: I believe the Court asked me in open court if the agreement was the same as for Mr. Shearer and I believe I replied in the affirmative.
Purvis: All right. Now, had in fact this same agreement been reached with Mr. Shearer?
Johnson: Yes.
Purvis: All right. Do you recaDadvising myself and Mr. Zoller at that time,... that you felt that the Court would be willing to go along with this particular agreement?
Johnson: Yes.
Purvis: And it was your opinion at that point that the Court would concur in our agreement?
Johnson: Well, I certainly hoped so.
Purvis: Was the Court also aware of this agreement that you struck with Mr. Shearer?
Johnson: 1 assume so since it was asked in open court.
Purvis: All right. Including the recommendation that he be sentenced under first offender should that act be passed?
Johnson: Yes.

The Judge’s knowledge of the plea and his indicated concurrence are demonstrated in the passages quoted above. The judge denied that he knew the exact terms of the plea when it was entered. Ark. R. Cr. P. Rule 24.5 requires the trial court to have the plea agreement stated for the record. This rule is mandatory, and this case demonstrates why. Since the failure to state the plea negotiation for the record allowed questions to be raised as to the court’s understanding of the agreement, the defendant should be allowed to plea anew to remove any possibility of prejudice. See Marshall v. State, 262 Ark. 726, 561 S.W.2d 76 (1978). The language of Rule 26.1 is also mandatory in that it provides that the withdrawal of the plea shall be deemed to be necessary when any of the enumerated factors are present. The ultimate decision in within the discretion of the trial court and we only reverse if we find an abuse of that discretion. Here, however, the proof is sufficient that the appellant did not receive the sentence concession contemplated by the plea agreement and in which the court had indicated its concurrence. Furthermore, it is apparent that the prosecuting attorney failed to seek the first offender treatment the appellant was promised. The importance of the first offender treatment is that the defendant’s record would be expunged after the sentence is served. Without first offender treatment, the appellant would remain a convicted felon after the completion of his sentence.

It is also pertinent that the appellant’s motion to withdraw his plea was filed before he was sentenced. The American Bar Association’s Standard’s for Criminal Justice, 2nd ed. Vol. Ill, (1982), chapter on pleas of guilty. Standard 14-2.1 states:

[Sjeveral substantive changes have been made to this standard. [T]he original standard, . . . provided that “the court in its discretion may allow” withdrawal. As revised, this provision states that before sentence “the court should allow” withdrawal . . . This change in emphasis reflects the belief that prior to sentencing when there is a basis for the defendant’s motion and the absence of compelling prosecutorial reason for its denial, withdrawal of a plea ... of nolo contendere should be allowed.
There are sound reasons for treating a defendant’s motion to withdraw a guilty plea differently when the request is made prior to sentencing rather than afterward. Delay between the taking of the plea and entry of sentence means that conviction is not yet final and no appeal from the conviction is possible. If the defendant thus has second thought about having pleaded guilty, this fact alone should place the judge and others on notice that the plea possibly was entered without sufficient understanding and contemplation. Assuming that the defendant establish a fair and just reason, the burden then shifts to the prosecution to establish substantial prejudice if the defendant’s plea were to be withdrawn.

Therefore, the appellant should have been allowed to withdraw his plea of nolo contendere when he realized that he was not going to be sentenced according to the plea agreement in which the judge had indicated concurrence.

The appellant’s second point on appeal is that the trial judge abused his discretion in not permitting him to withdraw the plea because it was fair and just to do so. Rule 26.1 also provides:

(e) At any time before sentencing, the court in its discretion may allow the defendant to withdraw his plea if it is fair and just to do so, giving due consideration to the reasons advanced by the defendant in support of his motion and any prejudice the granting of the motion would cause the prosecution by reason of actions taken in reliance upon the defendant’s plea.

In support of his second point, the appellant named the following factors: (1) he learned after the plea that he had a bona fide fourth amendment claim arising from an allegedly illegal search of his plane while it was in Louisiana; (2) the unperceived collateral effects of his plea on his professional license; (3) the fact that the state was more interested in fine money than a jail term; (4) the fact that the sentencing date was advanced fifty days; and (5) the fact that the statepolice admittedly failed to make proper disclosure of their case file. In addition, appellant argues that there would be no prejudice' to the state if his plea was withdrawn. We have held that if a plea of guilty is entered voluntarily and is not the result of ineffective assistance of counsel, any other possible defense, except for jurisdictional defects, are waived. Irons v. State, 267 Ark. 469, 591 S.W.2d 650 (1980). Here, since there was no allegation of ineffective assistance of counsel, the appellant’s only argument is that his plea was not voluntary. To be voluntary, a plea must be knowingly and intelligently made. The appellant argues that his plea was not knowing and intelligent, because, at the time it was made, he was unaware of the illegal entry into his airplane by the Louisiana authorities which would constitute a defense to the charge, and because he was unaware of the collateral affects of his plea, having been misadvised by an official with the Federal Aviation Administration that a plea of nolo contendere would result in the mere suspension of his pilot’s license, rather than revocation. In Morris v. State, 226 Ark. 472, 290 S.W.2d 624 (1956) we found that the refusal to permit the withdrawal of a guilty plea was within the sound discretion of the trial judge where there was nothing in the record to show that the defendant was induced to enter the plea improperly or that he did so in ignorance of his rights or under any misapprehension of the facts. Here a misapprehension of the facts was demonstrated. ABA Standard 14.2.1(a) provides that a fair and just reason to withdraw a plea prior to sentence is to allow the appellant to assert a defense that previously had been throught to be unavailable. Such was the case here. See also Miller v. State, 160 Ark. 245, 254 S.W. 487 (1923); and U.S. v. Joslin, 434 F.2d 526 (D.C. 1970).

At no time did the State present any evidence that they would be prejudiced if the appellant was allowed to withdraw his plea. Because of the lack of prejudice and because of the extreme importance accorded a defendant’s right to trial and to pursue all defenses available to him, the appellant should be permitted to withdraw his plea.

Reversed.

Dudley, J., concurs.

Hickman and Hays, JJ., dissent.

Steele Hays, Justice, dissenting.

The record in this case and to some extent the issues are about as confusing as it would be possible to create. However, some things are clear: having been charged in November 1982, with possession of 2,000 pounds of marijuana and six gallons of “hash oil,” appellant was scheduled to go to trial on January 31, 1983. Not wanting to go to trial on January 31, he managed to obtain a continuance using a purported conflict between his counsel and a co-defendant as the basis. The trial judge rescheduled the case for trial on February 28. Appellant still did not want to go to trial and so he resorted to a familiar tactic, he discharged his lawyer on the eve of trial and hired new counsel who, of course, needed time to prepare. The newly retained counsel for appellant appeared before the trial judge on February 24 to plead for another continuance. When it became clear the trial judge was not going to grant another continuance they entered into discussions with the prosecutor and arrived at a plea agreement in these terms:

We will recommend ten years with five suspended, Arkansas Department of Corrections, $20,000 fine payable on date of sentence.
Kirk D. Johnson
We will agree to John Zoller being sentenced under the first offender act, if said, act applies, (emphasis added).

The February 24 proceedings were lengthy and were interrupted by off-the-record discussions which add to the confusion. The trial judge did not require the parties to dictate the specific terms of the agreement into the record as required by A.R.Cr.P. Rule 24.5, which doubtless would have averted the problems which followed. He may have been told during unreported discussions that the plea agreement was ten years in prison with five years suspended and a $20,000 fine, and indicated that he would follow that agreement in sentencing. That much is supposition, but there is no indication whatever that he was told that if the first offender act applied, John Zoller would be sentenced under it, in spite of the fact that he gave counsel, for the appellant repeated opportunities to do so, or to express any reservations whatever about the tender of the plea recommendation. The following portions of the record are typical:

BY THE COURT: Mr. Forster, I appreciate your statement. I just want this record to be correct in the event that somewhere down the road here comes a Rule 37 or something else. I’m attempting to cover those basis. Now, if you gentlemen in behalf of Mr. Zoller feel that your statement to the court is sufficient to carry out your recommendation under the plea, negotiation then I’m satisfied.
BY MR. HALL: [defense attorney] Your Honor, it was my impression that at the time the law — that the law possibly could be construed to mean that he would be chargeable with everything that was in the plane even though it may not have been his. And if the law could have been so found, then he would have — the pecuniary gain could have been the value of everything in the plane and the plane itself maybe. But we do not contest it and we believe the record is adequate.
BY THE COURT: Then I'm wanting this record to be absolutely clear to any review by any one the basis upon which this Court can act on that recommendation. Do all of you agree that the record is so clear at this point?
BY MR. PURVIS: [defense attorney] Your Honor, I would simply, with the Court’s permission, I would simply add the fact that again and perhaps there is a misconception on my part and perhaps we are — our minds are not in a like channel. Nevertheless, I feel that in view of the nature of the nolo plea . . .
BY THE COURT: You believe that that covers it?
BY MR. PURVIS: I believe that in as much as the Court has established that the plea of nolo has been entered in a voluntary manner.
BY THE COURT: All right.

The majority opinion asserts that the plea agreement included a provision that sentencing would be deferred until the summer of 1983 after it was anticipated that Act 344 of 1983 amending Act 378 of 1975 (Youthful Offenders Alternative Service Act) would become effective if passed. But the record thoroughly refutes that assertion, in fact it is clear that sentencing was to be at any time on forty-eight hours notice. If sentencing were not to occur until June 1, that would surely have been included in the plea agreement memorandum quoted above, as otherwise the provision would have no meaning. But if not, then counsel was under a duty to so inform the court when the time for sentencing was being discussed during the February 24 proceedings — yet nothing to that effect appears in the record. To the contrary, the parties admittedly left the hearing on the understanding that the court would notify them to appear for sentencing on forty-eight-hour notice. Consistent with that understanding they were notified to appear on April 11 at which appellant presented a motion to withdraw his plea.

In spite of the omission with respect to Rule 24.5, this case should be affirmed because the appellant was not prejudiced by what occurred — in reality he received the specific sentence he bargained for — a ten year prison sentence, with five years suspended, and a $20,000 fine. The argument that first offender treatment was part of the plea agreement is, at best, an illusion. It was not a viable element of the agreement, as the court could have sentenced the appellant under the very terms of the agreement at any time on forty-eight hours notice, irrespective of the first offender act. Thus, the provision was conditioned on the mere hope that three unlikely future events would occur in sequence: 1) that Act 344 would pass; 2) that sentencing would not occur until after passage of the act; and, most importantly, 3) that counsel for the appellant could convince the trial judge at sentencing to exercise the discretion given him under the Youthful Offender Act to sentence appellant as an “eligible offender” (the equivalent of a youthful offender) under Act 344. But appellant’s argument thereby defeats itself, because if appellant were sentenced under Act 344 he would immedio,tely become eligible for release, for parole, or even for pardon, notwithstanding the stipulated sentence of five years in prison and, therefore, the basic element of the plea agreement would be a nullity. Since the trial court honored the only parts of the agreement that were material, the appellant should not have an absolute right to withdraw his plea to correct a manifest injustice under A.R.Cr.P. Rule 26.1 (a).

Hickman, J., joins in this dissent.

      Unexpectedly Act 344 became effective on March 8 because of an emergency clause.

      Record, pages 238-241.


author: Per Curiam.

text:
    James C. WALTERS v. STATE of Arkansas
    667 S.W.2d 959
    Supreme Court of Arkansas
    Opinion delivered May 7, 1984

      Dale Varner, for appellant.

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

Petitioner James C. Walters, by his attorney, has filed a second motion for a rule on the clerk. His attorney, Dale Varner, has by affidavit admitted it was his fault that the record was not timely tendered.

We find that the error, admittedly made by the criminal defendant’s attorney, is good cause to grant the motion for a rule on the clerk.

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


author: Per Curiam. John I. Purtle, Justice, P. A. Hollingworth, Justice,

text:
    Inez MAHAN v. The Estate of Basil Edwin MAHAN, Deceased
    668 S.W.2d 943
    Supreme Court of Arkansas
    Opinion delivered May 7, 1984

      H.G. Foster, for appellant.
    No Response filed by appellee.
   Per Curiam.

Inez Mahan has moved for a rule on the clerk to accept a record which was tendered late.

The order appealed from was entered on July 26,1983 in the Probate Court of Van Burén County. Notice of appeal was filed on August 16 and one timely extnsion of 120 days was obtained. Thus the record was due not later than 210 days from the judgment, or February 21, 1984. The record was tendered here on March 13, 1984 and was properly refused by the clerk.

The motion for a rule on the clerk mentions the flood which occurred in Clinton, Arkansas, in 1982 but makes no serious attempt to lay the cause for the late tender to that catastrophe. The motion states candidly that the delay occurred because “counsel for the appellant, court reporter, and the clerk of the court did all count the seven month period for filing the transcript mentioned in Ark. Stat. Ann. § 27-2127.1 from the date of filing the notice of appeal herein and not as would be proper from the date of the judgment appealed from, which would be July 26, 1983.” Thus, the late tender of the record in this case must be attributed to the miscalculation and not to an unavoidable casualty. We have repeatedly said the timely tender of the record is essential. The motion, therefore, is denied.

Purtle and Hollingsworth, JJ., dissent.

John I. Purtle, Justice,

dissenting. I would grant the rule on the clerk because of unavoidable casualty. The reason the record was not timely presented was because the clerk had trouble locating his files due to the devestating flood which struck the Van Burén County Courthouse in 1982. Records had to be reconstructed primarily by obtaining copies of documents from the files of interested attorneys. Affidavits from the reporter, clerk and attorney clearly reveal this delay was necessitated by a flood which I think was not due to the fault of anyone in connection with this case.

P. A. Hollingworth, Justice,

dissenting. I think the motion should be granted and we should accept the transcript tendered by the appellant on March 13,1984. Ark. R. Civ. P. 6 (b) provides that this Court for cause shown, may at any time in its discretion allow an act to be done “where the failure to act was the result of excusable neglect, unavoidable casualty or other just cause.” Here, appellant’s counsel proceeded initially under the assumption that his client was indigent. When that status was denied some forty-five to sixty days into the appeal period, counsel’s firm decided to pay the costs of appellant’s appeal. The transcript was subsequently ordered which necessitated obtaining the records and notes of a former court reporter now residing in Tennessee. Appellant’s counsel obtained a 120 day extension to file the transcript. Part of the records maintained by the clerk of the court had been preserved in the courthouse in Clinton which suffered a severe flood, destroying some of these records. The record was ultimately tendered within 210 days from the date of filing of the notice of appeal, but not from the date of the judgment appealed from, as required. I think appellant demonstrates both excusable neglect and unavoidable casualty and therefore shows cause why this motion should be granted.


author: Richard B. Adkisson, Chief Justice.

text:
    Johnie BASSETT v. CITY OF FAYETTEVILLE, ARKANSAS
    84-65
    669 S.W.2d 1
    Supreme Court of Arkansas
    Opinion delivered May 14, 1984

      F. H. Martin, for appellant.

      James N. McCord, City Atty., for appellee.
   Richard B. Adkisson, Chief Justice.

This appeal is from an order enjoining appellant, Johnie Bassett, from using property owned by him and zoned single family residential as a parking lot. Appellant’s son operates a private club situated on property which adjoins that here in question. Patrons of the club park their vehicles upon appellant’s adjoining property. The City of Fayetteville notified appellant of the zoning violation after which appellant applied to have the property rezoned to permit parking. This application was denied. The City of Fayetteville then initiated this suit seeking an injunction against appellant and his son to prohibit them from using or permitting the use of the property as a parking lot in violation of the zoning ordinances. The trial court dismissed the suit as to the son because he was not the owner or a tenant of the property, and no appeal was taken from this dismissal. However, appellant was enjoined from using the property as a parking lot following a finding by the trial court that although appellant did not actively invite the use of his property by others for a parking lot, he permitted and acquiesced in such use. On appeal we affirm.

At the outset appellant challenges the constitutionality of Ark. Stat. Ann. § 19-2829(h) (Repl. 1980) which confers jurisdiction upon the chancery court to grant an injunction for violation of a zoning ordinance. In so doing appellant alleges that this statute is in violation of the Constitution of Arkansas in that it enlarges the jurisdiction of the chancery court. Historically, courts of equity have had jurisdiction to grant relief when legal remedies are inadequate. Arkansas Cotton Growers’ Co-op Ass’n v. Brown, 168 Ark. 504, 270 S.W. 946(1925). In zoning enforcement cases the emphasis is on prevention rather than punishment; therefore, in such cases repeated prosecutions for violations of a zoning ordinance do not provide for an adequate remedy at law. Van Hovenberg v. Holman, 201 Ark. 370, 144 S.W.2d 718 (1940). This statute does not enlarge jurisdiction of chancery courts by permitting the city to enjoin violations of zoning ordinances.

In his second point for reversal, appellant argues that silent and knowing acquiescence is not conduct prohibited by the ordinance. The ordinance provides:

The owner ... of any . . . premises or part thereof. . . who commits, participates in, or maintains such violation may be found guilty . . .

It is undisputed that a parking lot is not a use permitted by the zoning of this property. The sole question appears to be whether permitting others to use the property without actively inviting their use is prohibited by the ordinance. All persons having an interest in property are bound by the zoning of that property to the extent that they cannot “authorize, permit or require any use of it contrary to zoning.” McQuillin Mun. Corp. § 25.14 (3rd Ed.) Therefore, appellant’s knowing acquiescence in permitting the property to be used as a parking lot was a violation of the ordinance.

Appellant also argues that there is no support in the record for the findings by the chancellor that appellant provided an entry way to the property and that he prepared the property for vehicle parking. It is not necessary for us to reach this argument since the violation occurred by permitting the lot to be used for parking, and there is ample evidence to support this finding.

Also, appellant asserts that the trial court erred by admitting into evidence the attempt to rezone the property to permit parking. We agree that this evidence is irrelevant; however, we conclude that appellant could not have been prejudiced by the admission of this evidence.

The granting or denying of an injunction is a matter falling within the sound discretion of the trial court and its decision will not be reversed on appeal unless it is clearly erroneous. Riddell v. City of Brinkley, 272 Ark. 84, 612 S.W.2d 116 (1981); Ark. R. Civ. P. 52(a).

Affirmed.


author: George Rose Smith, Justice.

text:
    APPLEBY ROAD STREET IMPROVEMENT DISTRICT v. James W. POWELL et al
    84-3
    669 S.W.2d 3
    Supreme Court of Arkansas
    Opinion delivered May 14, 1984

      Davis, Cox & Wright, by: Constance G. Clark and William Jackson Butt, II, for appellant.

      Lisle & Watkins, by: Barry J. Watkins, for appellee.
   George Rose Smith, Justice.

On October 5, 1982, the Board of Directors of the City of Fayetteville, in compliance with a writ of mandamus issued by the circuit court, adopted an ordinance creating the appellant street improvement district. See Powell v. Bishop, 279 Ark. 365, 652 S.W.2d 9 (1983). The appellee Powell, in addition to taking an appeal in that case, also took a separate appeal to the chancery court from the Board’s action in creating the district, as permitted by the statute. Ark. Stat. Ann. § 20-108 (Supp. 1983).

One ground for Powell’s appeal to the chancery court was his assertion that at the time the Board acted in the matter, the landowners’ petition for the formation of the district no longer contained the signatures of the owners of a majority in value of the assessed property in the district, two of the original signers having conveyed their property to others by deeds that were of record. See Section 20-104 (Supp. 1983). The chancellor found Powell’s allegations to be true and accordingly held the ordinance creating the district to be invalid. The district’s appeal comes to us as presenting an issue of statutory construction. Rule 29 (1) (c).

The appellant does not question the trial court’s finding of fact, that the petition lacked a majority of signers at the time the Board acted. The appellant argues, however, that the question whether there was a majority of signers must be determined as of the time the petition was signed, not as of the time the city’s governing body acted upon the petition.

We have twice decided this issue contrary to the appellant’s contention. Smith v. Callahan, 175 Ark. 974, 1 S.W.2d 82 (1928); City of Malvern v. Nunn, 127 Ark. 418, 192 S.W. 909 (1917). The statute considered in those cases was nearly identical to the present one, which provides that the city’s governing body “shall be governed by the record of deeds in the office of the Recorder of the county and shall not consider any unrecorded instrument.” Section 20-108, supra. We reasoned in Nunn that since improvement districts are established by proceedings before the city council, it follows “that deeds of record in the recorder’s office in the county, at the time the council passes on the question, are the criterion in so far as the property represented by instruments subject to record is concerned.” In Callahan we quoted and adhered to that language.

The district presents two arguments in its effort to escape the controlling effect of our prior decisions. First, it is said that the statute construed in those cases was repealed by a new statute in 1929, which had the effect of repealing precedents based on the earlier law. That might be correct if the new statute had been materially different from the older one, as was true in the case principally relied upon by the appellant: Terral v. Terral, 212 Ark. 221, 205 S.W.2d 198 (1947). When, however, anew statute adopts the language of an earlier enactment, it also adopts prior interpretations of that language. Ark. Public Service Commn. v. Allied Tel. Co., 274 Ark. 478, 625 S.W.2d 515 (1981). Hence we adhere to the reasoning in Nunn- and Callahan.

Second, it is argued that the earlier case of Powell v. Bishop, supra, is res judicata as to this issue, because there it was stipulated in the circuit court that “said petition was signed by a majority in assessed value of the property owners . . . within the proposed and designated district.” True, but the stipulation made no reference to a majority at the time the Board acted on the petition, for that issue was not even raised in the mandamus proceeding. A question is concluded by a prior decision only if it was necessarily within the issues presented and thus might have been litigated in the earlier action. Hurst v. Hurst, 255 Ark. 986, 504 S.W.2d 360 (1974); Ark. State Highway Commn. v. Staples, 239 Ark. 290, 389 S.W.2d 432 (1965). The only issue in the mandamus case was whether property that would be equally benefited by the improvement had been left out of the district. Hence the doctrine of res judicata is not applicable.

Affirmed.


author: Darrell Hickman, Justice.

text:
    Alice ALLEN et al v. Louise SMITH
    84-7
    669 S.W.2d 5
    Supreme Court of Arkansas
    Opinion delivered May 14, 1984

      L. T. Simes, II, for appellant.

      Carl J. Madsen, P.A., for appellee.
   Darrell Hickman, Justice.

The appellee, Louise Smith, owns an interest in a lot in Clarendon, Arkansas, that Alice Allen, the appellant, claims as her homestead. Allen’s husband, who is deceased, was a tenant in common with two others, one of whom was Smith’s predecessor in interest. After Allen’s husband died, Smith filed suit for partition. Allen defended with the argument that the property was her homestead and could not be partitioned. The chancellor was right in holding that Allen could only claim homestead in her husband’s one-third interest and we affirm.

Article 9 § 6 of the Arkansas Constitution, which grants homestead rights to widows, does not bar partition in this case. The homestead right of a widow is a derivative one and she has only the homestead which the husband could have claimed. Therefore, her homestead right is controlled by whatever interest her husband had at his death. Sulcer v. Northwestern National Insurance Co., 263 Ark. 583, 566 S.W.2d 397 (1978); Stuckey v. Horn, 132 Ark. 357, 200 S.W. 1025 (1918). Where a man is a cotenant of property when he dies, then the other cotenants may seek partition after his death, even if the property is claimed by his widow as her homestead. See Best v. Williams, 260 Ark. 30, 537 S.W.2d 793 (1976). Since Allen’s husband was a cotenant at his death, only owning one-third interest, Allen’s homestead interest is in only one-third of the lot and the other cotenants have the right to seek partition of their interest.

This situation is distinguishable from that where the widow has an exclusive possessory interest because her husband died as the sole owner of the property in question. There partition is barred. Gibson v. Gibson, 264 Ark. 420, 572 S.W.2d 148 (1978); Henderson v. Henderson, 212 Ark. 31, 204 S.W.2d 911 (1947); Nichols v. Shearon, 49 Ark. 75, 4 S.W. 167 (1886); Harbour v. Sheffield, 269 Ark. 932, 601 S.W.2d 595 (Ark. App. 1980).

Since Alice Allen had no exclusive possessory right to the land, the cotenants of the property may seek partition.

Affirmed.


author: John I. Purtle, Justice. Steele Hays, Justice,

text:
    John Marvin BAGWELL v. Idell Gertrude BAGWELL
    84-2
    668 S.W.2d 949
    Supreme Court of Arkansas
    Opinion delivered May 14, 1984
    [Rehearing denied June 18, 1984.]

      Ramsay, Cox, Lile, Bridgeforth, Gilbert, Harrelson if Starling, by: William G. Bridgeforth, for appellant.

      Holmes if Trafford, by: Winfred A. Trafford and C. Norton Bray, for appellee.
   John I. Purtle, Justice.

This appeal challenges the Chancellor’s division of marital and nonmarital property in a divorce suit. The appellant husband claims the division violated Ark. Stat. Ann. § 34-1214 (Act 705 of 1979) by granting an unequal division of marital property and by awarding the wife possession of the home and a sizeable portion of the husband’s non marital property.

This is a second marriage of Marvin and Idell Bagwell. The parties are in their mid-sixties. Both are on Social Security. He is unemployable for health reasons and she is an unemployed nurse. They originally married in 1958, divorced in 1962 and remarried in 1964. The Chancellor changed the title to the home to a tenancy in common and, without objection from the appellant, gave the wife the furniture and possession of the dwelling. In lieu of alimony the Chancellor ordered the husband to pay the balance of a $6,400 mortgage on the home. One car was given to the wife; another car and a pickup truck to the husband.

The parties have children by earlier marriages, but none of their own. It is undisputed that Mr. Bagwell did not want Mrs. Bagwell to work, though she was trained as a nurse. She did work part of the time they were married and she kept all her earnings for herself. Her income from Social Security is $364 each month; his is $784. Mrs. Bagwell had $13,000 in savings, about a third of which came from nonmarital sources. She was the beneficiary of a $25,000 life insurance policy on Mr. Bagwell’s life which had a cash value of $11,500.

During the first marriage the Bagwells had begun purchasing a 360 acre farm in Woodruff County now valued at between $360,000 and $430,000. At the first divorce Mrs. Bagwell’s interest terminated because Mr. Bagwell purchased her interest. After the second marriage a part of the remaining debt on the farm was paid off with marital funds. Before the second marriage Mr. Bagwell had purchased 160 acres in Jefferson County. Part of the debt on the land was paid with marital earnings.

Mr. Bagwell had farmed his entire life and in 1977, after suffering a heart attack, he began farming with his son and assumed his son’s outstanding farming debt of $246,092 to Farmers and Merchants Bank of Stuttgart. His son’s debt, added to his own, totaled $440,000 as of December 30, 1981. This obligation has been reduced to $233,494, as of the date of trial.

The court found other assets to consist of a lump sum Social Security settlement to Mr. Bagwell in the sum of $10,912, which had been received and mostly spent before this divorce and which was ruled marital property; a $ 13,000 savings account of Mrs. Bagwell’s, about two-thirds of which was marital; the $25,000 life insurance policy mentioned earlier; personal property in the form of “certificates and reserves” held by Riceland Foods approximating $50,000; and some $70,000 in trust subject to court orders derived from the sale of farm machinery and crop income from Producer’s Rice Mill. The court apparently intends for these sums to be applied to the balance owed on the Woodruff farm.

In addition to awarding Mrs. Bagwell possession of the home and ordering Mr. Bagwell to pay the mortgage payments, the Chancellor found that since the farms had been paid for partially with marital funds the two farms should be sold with the proceeds applied first to the indebtedness due Farmers and Merchants Bank and then divided, seventy percent of the Woodruff County lands to Mr. Bagwell and thirty percent to Mrs. Bagwell, and sixty-five percent of the Jefferson County lands to Mr. Bagwell and thirty-five percent to Mrs. Bagwell, with Mr. Bagwell responsible for all taxes due as a result of the sales. Mrs. Bagwell’s savings account was offset against Mr. Bagwell’s Social Security settlement and Mr. Bagwell was ordered to pay the premiums on the life insurance policy payable to Mrs. Bagwell.

Mr. Bagwell insists the division is grossly unfair. He also argues that it was error to distribute the marital property disproportionately and to award Mrs. Bagwell part of Mr. Bagwell’s nonmarital property. The arguments are dealt with as one. The marital property in this case had the lesser value in relation to the two farms, and it would serve no good purpose to deal with each item. Some assets, the cars for example, were divided in kind and were offsetting. Sometimes marital property cannot be divided exactly equally in kind. It may become necessary to cause one party to pay some amount from separate funds in order to abide by the law. If marital property is not divided equally the reasons must be explained. In this case the Chancellor gave careful attention to the factors listed in § 34-1214 and outlined the reasons for his conclusions in his opinion. We have noted that our statute, § 34-1214, does not dictate an inflexible rule; rather it allows latitude for the exercise of the Chancellor’s best judgment in complying with the statute. Day v. Day, 281 Ark. 261, 663 S.W.2d 719 (1984); Williford v. Williford, 280 Ark. 71, 655 S.W.2d 398 (1983). We believe the end result here was unfair and the Chancellor’s method of dividing the property was clearly erroneous. The rule, as appellant points out, that we will not reverse the Chancellor unless his findings are clearly erroneous applies to findings of fact, but we have gone on to say that under ARCP Rule 52 we will not reverse the Chancellor’s division of property in divorce unless that division can be said to be clearly against the preponderance of the evidence. Russell v. Russell, 275 Ark. 193, 628 S.W.2d 315 (1982). We think the division of the property in this case is clearly against the preponderance of the evidence.

It was not error for the Chancellor to find that Mrs. Bagwell was entitled to some benefit by reason of marital funds having been used to pay off debts on the two nonmarital farms. However, her interest should be limited to half of the increase in value of the farms during the second marriage because she had been paid for her interest at the time of the first divorce.

We have doubts about the ultimate fairness of the decree’s imposition of the entire tax liability of the sales of real and personal property on Mr. Bagwell. When that liability is determined it may be that the end result is unfair to appellant. Based on certain assumptions, Mr. Bagwell’s accountant testified that a sale of the Woodruff County farm at $ 1,000 an acre would create a tax liability of $ 11.7,811, and a tax liability of $137,255 at $1,200 per acre, enabling the appellant to argue that after paying the $163,494 due the bank, the terms of the decree would net $19,743 to Mr. Bagwell and $58,952 to Mrs. Bagwell, a pronounced disparity. Of course, these figures were merely projections based on assumptions that might not prove out. They do illustrate, however, that tax consequences of court ordered sales of property may appear to be equitable today but be rendered inequitable by later developments. We have recognized more than once that the tax consequences which subsequently evolve should not be permitted to operate inequitably, and the legislature has recognized that hazard by amending § 34-1214 to expressly include tax consequences as one of the criteria for consideration. See Day v. Day, supra; McMurtray v. McMurtray, 275 Ark. 303, 629 S.W.2d 285 (1982). In McMurtray we were able to allocate the tax liability, whereas in Day we simply recognized the possibility of tax inequities and modified the decree to reserve jurisdiction in the trial court to make such adjustments as the final tax consequences indicated. We think that course is appropriate to this case and we modify the decree accordingly. On remand the Chancellor should make a determination of the tax liability if it can be done at that time. If the tax results are not ascertainable at that time, the court should retain jurisdiction until the appropriate time. The tax liability and apportionment of nonmarital property are so closely tied together it will be necessary for the Chancellor to redetermine both issues.

Affirmed in part and reversed in part and remanded.

Hays, J., dissents.

Steele Hays, Justice,

dissenting. I take no exception to reserving jurisdiction in the trial court to permit the Chancellor to modify the decree with respect to the tax liability resulting from the sale of properties, if that seems appropriate. But I disagree that the overall division of property in this case can be said to be clearly erroneous. The Chancellor’s division of the two farms, ostensibly non-marital assets, is entirely equitable since marital funds were used in part to acquire them. Too, if the equities favor allowing a portion of the farms to the appellee, there is no logical reason why a proportionate share of the appreciated value should not also be awarded her. The Chancellor doubtless took these factors into account, as well as the fact that the appellant committed $246,092 in marital funds to pay off farming liabilities of his son, a material aspect of the overall division which the majority opinion disregards.

We have construed Act 705 of 1979 as investing broad discretion in the Chancellor to divide properties equitably in divorce [Day v. Day, 281 Ark. 261, 663 S.W.2d 719 (1984); Williford v. Williford, 280 Ark. 71, 655 S.W.2d 398 (1983)] and I see no compelling reason why we should revise his division in this case.


author:
Robert H. Dudley, Justice.
      Darrell Hickman, Justice,

text:
    Teresa KELLY, Individually and as Administratrix of the Estate of John A. KELLY, Deceased v. Raymond M. CESSNA and Alta Louise CESSNA, Husband and Wife
    84-57
    668 S.W.2d 944
    Supreme Court of Arkansas
    Opinion delivered May 14, 1984

      Smith ir Smith, by: Raymond C. Smith, for appellant.

      Jones, Gilbreath & Jones, by: Kendall B. Jones, for appellee.
   Robert H. Dudley, Justice.

John A. Kelly, a pedestrian, was killed when he was struck by an automobile driven by appellee, Raymond Cessna. Appellant, Teresa Kelly, administratrix of her husband’s estate, brought a wrongful death action against Raymond Cessna and his wife Alta, who was a passenger in the car. At the close of appellant’s proof the trial court granted a directed verdict for the appellees. The sole question is whether the appellant made a case for the jury. Jurisdiction of this tort case is in this court. Rule 29(1 )(o).

At 8:50 on the night of October 3, 1980, the appellees were in their automobile driving south on highway 71 near Winslow. They crossed a bridge and entered a left curve. There is a “Reduce Speed” sign in the curve. The curve ends and the road becomes straight .2 mile from a lighted ball park where a football game was in progress. At the entrance to the ball park there is a “45 m.p.h.” sign. The ball field is approximately 200 yards off the highway.

Appellee Raymond Cessna testified that he observed the “Reduce Speed” sign in the curve and reduced his speed by disengaging the automatic speed control. He testified that at a point near the 45 m.p.h. sign he was in the right lane of the two-lane highway and was going approximately 45 m.p.h. when he saw John Kelly in front of him “a half a second” before impact. The left front fender and the left headlight of the car struck Kelly. Appellee testified that his headlights were on bright beam and that he was looking in the path of his headlights as well as to the left of the highway where the ball field lights were shining. The appellee and a truck driver following him testified that he did not see any pedestrians on the highway prior to the accident. A reasonable inference is that Kelly was just to the right of the center of the southbound lane of the highway in line with the left headlight of appellee’s automobile at the moment of impact.

Procedurally, a directed verdict is proper only when the evidence is so insubstantial as to require that a jury verdict for the non-moving party be set aside. On appeal, we determine whether there is substantial evidence by giving the evidence, and all reasonable inferences deducible from that evidence, the highest probative value in favor of the non-moving party. Green v. Gowen and Gowen, 279 Ark. 382, 652 S.W.2d 624(1983).

Substantively, pedestrians as well as motorists are entitled to use the public highways and each must act with regard to the presence of the other. Haralson v. Jones Truck Lines, 223 Ark. 813, 270 S.W.2d 892, 48 A.L.R. 2d 248 (1954). The driver of a motor vehicle must anticipate the presence of pedestrians on streets and highways and use ordinary care to avoid injuring them. AMI Civil 2d, 909. The driver, appellee Raymond Cessna, had a duty to anticipate the presence of a pedestrian on the highway. He had a duty to keep a lookout for pedestrians. The fact that he did not see John Kelly until immediately before the impact is substantial evidence that he was not keeping a proper lookout for pedestrians. Therefore we reverse and remand the directed verdict in favor of appellee Raymond Cessna.

There is no substantial evidence of negligence on the part of the passenger, Alta Cessna. The directed verdict in her favor was proper.

Reversed and remanded as to appellee Raymond Cessna; affirmed as to appellee Alta Cessna.

Hickman, J., dissents.

Darrell Hickman, Justice,

dissenting. Taken literally, the majority opinion holds that pedestrians have just as much right to the middle of a state highway as a vehicle, and that pedestrians have the right-of-way or an equal right-of-way when crossing a state highway at an unmarked intersection. That is, of course, a perversion of the law and the decision in this case is wrong in my judgment.

The appellee did absolutely nothing wrong, and there is no evidence that he did, only the speculation that he could have somehow foreseen and avoided the accident. The evidence showed that the appellees were driving in a safe and prudent manner on a busy highway when the deceased evidently darted in front of their car, giving the appellees no chance at all to take any evasive measures.

The part of the highway in question is cleared for traffic; that is, it is not a school zone, a marked crossway, or an intersection. The duty to keep a lookout is not always the same in every instance. It depends on the place and the circumstances. For example:

Every pedestrian crossing a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right-of-way to all vehicles upon the roadway: (Italics supplied.)

Ark. Stat. Ann. § 75-628 (a) (Repl. 1979). A driver is ordinarily free to assume that others will exercise proper care. As Prosser states, “It would not be easy to move traffic if motorists could not assume that other cars will keep to the right, and drove accordingly; or that those who use the highway will be reasonably intelligent, competent and careful, and will look out for themselves.” W. Prosser, Law of Torts § 33 (1971). The duty to keep a lookout increases with the presence of children or incapacitated people. Ark. Stat. Ann. § 75-628 (d) (Repl. 1979) states:

Notwithstanding the provisions of this section, every driver of a vehicle shall exercise due care to avoid colliding with any pedestrian upon any roadway and shall give warning by sounding the horn when necessary and shall exercise proper precaution upon observing any child or any confused or incapacitated person upon a roadway.

Where is the substantial eyidence that the appellees did not keep a proper lookout? Where is the evidence that the deceased had been walking along the highway, or standing there apparently ready to dart across this busy highway? Where is the evidence that the driver should have been constantly searching the side of the highway on this night, while driving in relatively heavy traffic, anticipating that a grownup would dart in front of him or be in the middle of the road? That evidence does not exist.

The only evidence at all is the statement by the driver, corroborated by the truck driver behind him, that he was driving in a very careful and prudent manner. There is no testimony by anyone else who witnessed the accident. We cannot affirm verdicts based on speculation and theoretical possibilities — only on substantial evidence. Nichols v. International Paper Co., 278 Ark. 226, 644 S.W.2d 583 (1983).

The majority opinion actually somewhat distorts the law. The case of Haralson v. Jones Truck Line, 223 Ark. 813, 270 S.W.2d 892 (1954), cited as authority for the ruling, concerned a pedestrian walking on the left edge of the highway, who could have been seen, certainly if the lights on the vehicle striking him had been on bright. In turn that decision was based on two cases which involved children in or along the highway. Oliphant v. Hamm, 167 Ark. 167, 267 S.W. 563 (1925); Morel v. Lee, 182 Ark. 985, 33 S.W.2d 1110 (1930). If pedestrians do have an equal right-of-way on a state highway, then the law is badly out of date — today highways are primarily for vehicles, not as they once were hundreds of years ago, for use by anyone.

There is no evidence at all, not one scintilla, that this driver should have anticipated a man would dart across this busy state highway. I would affirm the trial court’s decision to dismiss the case.


author: James A. McLarty, III, Special Justice. Darrell Hickman, Justice, John I. Purtle, Justice,

text:
    Darnelle GENTRY v. Leffel GENTRY
    83-109
    668 S.W.2d 947
    Supreme Court of Arkansas
    Opinion delivered May 14, 1984
    [Rehearing denied June 18, 1984.]

      Gill ir Johnson, by: Marion S. Gill, for appellant.

      Bailey, Trimble, Pence & Sellars, by: R. Eugene Bailey, for appellee.

      Adkisson, C.J., would grant rehearing; Hays, J., not participating.

   James A. McLarty, III, Special Justice.

This is a divorce case. The parties resolved by stipulation all issues except the two in dispute. The wife claimed alimony and a marital interest in the husband’s civil service retirement benefits. The chancellor denied the wife alimony and held that the retirement benefits were not marital property. We disagree and reverse.

The parties married in 1949. The wife worked outside the home until 1961. The husband, an attorney, spent his final professional years as an administrative law judge for the Social Security Administration. A portion of the husband’s wages were held back to help fund a pension payable on his retirement. The husband retired in October, 1980. He has drawn retirement benefits during all times relevant to this case.

The division of property upon divorce is controlled by Ark. Stat. Ann. § 34-1214, which reads in relevant part:

“ ‘marital property’ means all property acquired by either spouse subsequent to the marriage....” (Exceptions not relevant here; emphasis added.)

Until recently we were of the view that pension benefits vested but not yet due and payable, were not subject to distribution in a divorce. Sweeney v. Sweeney, 267 Ark. 59,, 593 S.W.2d 21 (1980) (construing our earlier statute). The same view was taken when we, construing Act 705 of 1979, considered a military pension which the husband was receiving. Paulsen v. Paulsen, 269 Ark. 523, 601 S.W.2d 873 (1980).

That view was changed in Day v. Day, 281 Ark. 261, 663 S.W.2d 719 (1984). Dr. Day, a U of A physics professor, contributed ten percent of his salary to the University’s pension plan which in turn invested the funds. Dr. Day was fully vested but was not drawing benefits at the time of his divorce. We held that his interest in the pension plan was marital property subject to distribution under Act 705 of 1979. The same result should apply here.

All requirements for receiving benefits, required years of service and contributions, occurred during the marriage. Here, as in Day, the recipient was fully vested. Our facts, however, go beyond Day in that in this case the husband was actually receiving benefits at the time of divorce.

The husband’s retirement plan is subject to division. Congress has wisely anticipated that this treatment would be given by the various state courts (see 94 A.L.R. 3d 176) through the passage of 5 U.S.C. § 8345(j)(l) (1976), to-wit:

Payments under this subchapter which would otherwise be made to an employee, member or annuitant based upon his service shall be paid (in whole or in part) by the Office to another person if and to the extent expressly provided for in the terms of any court decree of divorce, annulment, or legal separation, or the terms of any court order or court-approved property settlement agreement incident to any court decree of divorce, annulment or legal separation. Any payment under this paragraph to a person bars recovery by any other person.

By holding these retirement benefits to be marital property, we are not laying down a rigid and inflexible rule for the future. Section 34-1214 expressly provides for equal distribution “unless the court finds such a division to be inequitable.” Any exception to the rule of equal distribution will always depend upon the specific facts as reflected by the trial court’s findings and conclusions. ^

The chancellor and the parties did not have the benefit of our holding in Day when this case was heard. Equity and fair play require a remand to the trial court. Given our ruling as to the pension, we do not reach the question of alimony.

Reversed and remanded.

Adkisson, C.J., Hickman and Purtle, JJ., dissent.

Hays, J., not participating.

Darrell Hickman, Justice,

dissenting. I adhere to the views expressed in the dissent in Day v. Day, 281 Ark. 261, 663 S.W.2d 719 (1984); otherwise, I concur with the dissent filed in this case by Justice Purtle.

Adkisson, C.J., joins in this dissent.

John I. Purtle, Justice,

dissenting. I do not believe the majority realize the consequences of this opinion. I am in full accord with the opinion in Day v. Day, 281 Ark. 261, 663 S.W.2d 719 (1984). I note with interest the statement by the majority that “we are not laying down a rigid and inflexible rule for the future.” What does that statement mean? Will we follow it only in the present case or will we pick and choose when to apply it? I would follow the statute and our prior cases and hold to the plain and obvious wording that marital property is property acquired subsequent to the marriage. In my opinion a pension with no guarantee of any future payment is not acquired.

By this opinion a wife is awarded a property interest in her husband’s pension. Her heirs will inherit her interest if she fails to survive him. This is more than the man’s own heirs are entitled to. They can expect absolutely nothing from the pension when the husband dies. This type of pension is not vested. If it were the type which had a cash loan, mortgage or surrender value it would be subject to division.

This type of pension should.be considered for alimony and support money. Both the state and federal laws are designed to protect anyone who receives a court order for payments of part of such a pension. The laws are not geared to deal with heirs and relatives and it is doubtful that such an order is legal. The laws were no doubt intended to enforce alimony and support payments.

It is my understanding that there is a guarantee of something like the amount contributed in civil service pension cases. Certainly any guaranteed amounts should be treated as marital property because such sums are vested within the meaning of Ark. Stat. Ann. § 34-1214 (Supp. 1983).


text:
    Donald Ray BURTON v. STATE of Arkansas
    669 S.W.2d 1
    Supreme Court of Arkansas
    Opinion delivered May 14, 1984

      James W. Haddock, for appellant.

      Steve Clark, Atty. Gen., by: Theodore Holder, Asst. Atty. Gen., for appellee.
   Per Curiam.

Appellant, Donald Ray Burton, by his attorney, has filed for a rule on the clerk.

His attorney, James W. Haddock, admits that the record was tendered late due to a mistake on his part.

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

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


author: Richard B. Adkisson, Chief Justice. P. A. Hollingsworth, Justice,

text:
    KOHN et al v. PEARSON et al
    83-291
    670 S.W.2d 795
    Supreme Court of Arkansas
    Opinion delivered May 21, 1984

      Bob Scott, for appellant.

      Herby Branscum, Jr., for appellee.
   Richard B. Adkisson, Chief Justice.

Appellants, Kohn etal, trustees of a charitable trust established by deed in 1913, bring this appeal from a decree of the Perry County Chancery Court which held that the trust had failed, that the doctrine of cy pres was inapplicable, and that the res of the trust should revert back to the grantors and by succession to appellees, heirs in succession to the grantors. On appeal we reverse.

In 1913 for a consideration of four dollars received by R. C. Chappell, W. C. Cody, and S. Smith, “commide”, J. L. Mitchell and his wife deeded “unto the said Commity for Church House site, and the Citizens of Rosecreek” a two-acre tract of land. In 1916 the deed was recorded. Pursuant to this deed the Rosecreek community erected a church building which was used as a church until about 1960 and for community affairs, including use as a polling precinct, up to 1982.

In creating a charitable trust the settlor must describe a purpose of substantial public interest. The presence or absence of words of trusteeship in the conveyance is not necessarily determinative as to the existence of an intent to establish a trust. G. G. Bogert and G. T. Bogert, The Law of Torts § 66(1973). In any event, all the parties acknowledged that the 1913 deed established a charitable trust.

Appellants argue that the charitable trust for the Rosecreek community has not failed because the church house has been used continuously for a Rosecreek Community Center, and for secular meetings, and “up in the sixties” for religious meetings. An eighty-year-old witness, son of one of the original members of the committee, testified the church was built by the citizens of Rosecreek, including J. L. Mitchell, the grantor, and the building was used by the Missionary Baptists, the Free Will Baptists, and Cumberland Presbyterians for church services and for funeral services until “up in the sixties.” He further testified the building was used for 4-H meetings, as a lodge for Woodsmen of the World, as a site for political speeches, and as a polling precinct for primary and general state and federal elections up through the 1982 elections. He stated that J. L. Mitchell, the grantor, attended the secular meetings of the community as well as the religious meetings. He also testified that the grounds were used'for dinner on the ground after funeral services. He further testified that he, along with two others, had been elected by the citizens of Rosecreek community to serve as the committee for the administration of the trust. This evidence supports the conclusion that although the trust may have failed for the purpose of maintaining religious services, it has not failed for the purpose of benefiting the citizens of Rosecreek. We conclude the chancellor erred in finding the trust had completely failed.

Even if the trust had failed, the res of the trust should not revert back to the grantors and by succession to the heirs. When the specific charitable purpose of the trust fails, “if the trustees paid consideration for the transfer to them they are allowed to retain the property on failure of the trust.” G. G. Bogert and G. T. Bogert, The Law of Trusts § 147 (1973). The 1913 deed clearly states that the grantors conveyed the property “unto the said Commity,” the trustees, “for and in the consideration of the sum of $4.00, Four Dollars.” Once property is conveyed for consideration, the grantor, or his heirs in succession, can no longer claim an interest in the land. Accordingly we conclude the chancellor erred in finding that the property should revert to the grantors and by succession to their heirs.

Appellants further argue that it is possible for the equity court to reform a mutual mistake in the 1913 deed. In an amended response, appellants prayed the chancery court to correct a mistake on the deed which described the two-acre church house site as lying on the south forty (S40) rather than the north forty (N40) of a larger tract of land where the church was actually built. The error in the deed was not discovered until appellee’s suit had been filed. For more than sixty-seven years, appellants, appellees, and the residents of Rosecreek had assumed the two-acre tract had been correctly described in the 1913 deed.

When parties come to an agreement, but by fraud or mistake fail to write it down to truly reflect their contract, equity will reform the writing to make it reflect the parties’ true intention. D. Dobbs, Remedies § 4.3 (1973). “The mistake of a draftsman, whether he is one of the parties or merely a scrivener, is adequate grounds for relief, provided only that the writing fails to reflect the parties’ true understanding.” D. Dobbs, supra, § 11.6. It is well-established Arkansas law that equity will reform a deed upon clear, convincing, and decisive evidence that a mutual mistake has been made in the drawing of the instrument. Warner v. Eslick, 239 Ark. 157, 388 S.W.2d 1 (1965); Booe v. Booe, 210 Ark. 709, 197 S.W.2d 474 (1946); Goodrum v. Merchants & Planters Bank, 102 Ark. 326, 144 S.W. 198 (1912). There is no requirement that the proof be undisputed. Winkle v. Grand Nat’l Bank, 267 Ark. 123, 601 S.W.2d 559 (1980); Meeks v. Borum, 240 Ark. 805, 402 S.W.2d 408 (1966). The testimony of both appellants and appellees establishes that for over sixty-seven years both parties erroneously presumed the 1913 deed correctly described the tract deeded in trust and used throughout that period for the church house site. Such conduct proves beyond reasonable controversy that the mistake was mutual. See Gastineau, et al v. Crow, 222 Ark. 749, 262 S.W.2d 654 (1953). Under the circumstances of this case, we conclude there was clear, cogent, and convincing evidence to warrant the reformation of the deed by the chancery court.

Since we review equity cases de novo, we hold that the charitable trust has not failed, and we order the deed to be reformed to conform to the two-acre tract in use as a church building site.

Reversed.

Hickman, J., concurs in the results.

George Rose Smith, Dudley and Hollingsworth, JJ., concur.

P. A. Hollingsworth, Justice,

concurring. The majority holds that the charitable trust has not failed and that therefore, the chancellor erroneously ruled that the res of the trust should revert to the grantors. While I agree with the result reached by the majority, I would hold that way for a different reason. I do not think a charitable trust ever existed. Rather, I think the grantor’s entire interest in the property was conveyed by warranty deed in 1913.

The property was sold by an instrument entitled “Warranty Deed With Lien and Relinquishment of Dower.’’ It recited that J. L. Mitchell and W. J. Mitchell, his wife:

for and in consideration of the sum of $4.00 Four Dollars paid and to be paid by R. C. Chappell, W. C. Cody and S. Smith, commitie, ... do hereby grant, bargain, and sell, unto the said Commity for Church House site, and the Citizens of Rosecreek, and unto. . . heirs and assigns, forever the following lands . . . To have and to hold the same unto the said Committie and unto their Successors and unto his heirs and assigns, forever, with all appurtenances thereunto belonging. And we hereby covenant with the said Commitie that we will forever warrant and defend the title to the said lands against all lawful claims whatsoever and lands are free from all liens and incumbrances. It being hereby expressly understood that a lien is hereby retained upon said lot or parcel of land to secure the payment of residue of the purchase money he*nbefore mentioned. And I, J. L. Mighell, wife of the said M. J. Mitchell, for and in consideration of the said sum of money, do hereby release and relinquish unto the said Commitie, all my right of dower and homestead in and to said lands.

This is nothing more than a warranty deed, selling the described property to the committee to build a church for the sum of four dollars. There is no mention of how long the property must be used as a church or what happens if it is not. To the contrary, the deed says the grantors do “grant, bargain and sell” to the committee members and their heirs and assigns “forever.” The only interest retained by the grantor was in the nature of a lien until the purchase price was fully paid. To establish a charitable trust, the donor first must make a gift of something for a charitable purpose. 15 Am Jur 2d Charities § 6 (1976). Here, the grantor sold his property. He did not give it to the committee. Another distinguishing feature of any type of trust is that it involves a separation of equitable interest and legal title. 76 Am Jur 2d Trusts § 5 (1975). Here, the entire interest held by the grantor was conveyed to the grantee with this warranty deed. Since no trust existed, it is irrelevant whether or not the property is still being used as a church. I would reverse for the reasons stated above.

Smith, George Rose, J., joins in this concurrence.