text:
    IN RE: ADMINISTRATIVE ORDER NUMBER 2 — ARK. R. CIV. P., RULES 5 and 58
    Supreme Court of Arkansas
    Delivered June 24, 1999
   Per Curiam.

Our Committee on Civil Practice has recommended changes in Administrative Order Number 2 (b) and additions to the Reporter’s Notes to Ark. R. Civ. P., Rules 5 and 58.

Paragraph (b) (3) of Administrative Order Number 2 provides that judgments, decrees, and orders may be filed with the clerk by facsimile transmission if the court so directs.

Paragraph (b) (4) of Administrative Order Number 2 addresses emergency situations when an order needs to be effective immediately, but the clerk’s office is not open.

We thank the committee for its work and agree with its recommendations. Accordingly, we adopt, effective immediately, the changes to paragraph (b) of Administrative Order Number 2 and republish it.

We direct that the additions to the Reporter’s Notes to Rules 5 and 58 be added to the commentary.

ADMINISTRATIVE ORDER NUMBER 2 — Docket and Other Records

(a) Docket. ***

(b) Judgments and Orders. (1) The clerk shall keep a judgment record book in which shall be kept a correct copy of every final judgment or appealable order, or order affecting title to or lien upon real or personal property, and any other order which the Court may direct to be kept.

(2) The clerk shall denote the date and time that a judgment, decree or order is filed by stamping or otherwise marking it with the date and time and the word “filed.” A judgment, decree or order is entered when so stamped or marked by the clerk, irrespective of when it is recorded in the judgment record book.

(3) If the clerk’s office has a facsimile machine, the clerk shall accept facsimile transmission of a judgment, decree or order filed in such manner at the direction of the court. The clerk shall stamp or otherwise mark a facsimile copy as filed on the date and time that it'is received on the clerk’s facsimile machine during the regular hours of the clerk’s office or, if received outside those hours, at the time the office opens on the next business day. The date stamped on the facsimile copy shall control all appeal-related deadlines pursuant to Rule 4(e) of the Arkansas Rules of Appellate Procedure—Civil. The original judgment, decree or order shall be substituted for the facsimile copy within fourteen days of transmission.

(4) At any time that the clerk’s office is not open for business, and upon an express finding of extraordinary circumstances set forth in an order, any judge may make any order effective immediately by signing it, noting the time and date thereon, and marking or stamping it “filed in open court.” Any such order shall be filed with the clerk on the next day on which the clerk’s office is open, and this filing date shall control all appeal-related deadlines pursuant to Rule 4(e) of the Arkansas Rules of Appellate Procedure—Civil.

Rule 5, Ark. R. Civ. P.

Addition to Reporter’s Notes (1999): Subdivision(c)(2) of this rule does not authorize the filing of judgments, decrees or orders by facsimile transmission. However, Administrative Order No. 2(b), as amended in 1999, requires any clerk’s office with a facsimile machine to “accept facsimile transmission of a judgment, decree or order filed in such manner at the direction of the court.” The faxed judgment, decree or order is effective when entered by the clerk. To ensure the permanency of official court records, the original judgment, decree or order must be substituted for the facsimile copy within 14 days of transmission, but this step does not have any bearing on the effectiveness of the faxed document or the time for taking an appeal.

Rule 58, Ark. R. Civ. P.

Addition to Reporter’s Notes (1999): The second paragraph of this rule provides that a judgment or decree “is effective only when ... set forth [on a separate document] and entered as provided in Administrative Order No. 2.” As amended in 1999, Administrative Order No. 2(b) provides that a judgment, decree or order is “entered” when stamped or otherwise marked by the clerk with the time and date and the word “filed,” irrespective of when it is recorded in the judgment book. When the clerk’s office is not open for business, and upon an express finding of extraordinary circumstances, an order is effective immediately when signed by the judge. Such order must be filed with the clerk on the next day on which the clerk’s office is open, and this filing date controls all appeal-related deadlines.

The 1999 amendment to Administrative Order No. 2(b) also requires any clerk’s office with a facsimile machine to “accept facsimile transmission of a judgment, decree or order filed in such manner at the direction of the court.” The faxed judgment, decree or order is effective when entered by the clerk. To ensure the permanency of official court records, the original judgment, decree or order must be substituted for the facsimile copy within 14 days of transmission, but this step does not have any bearing on the effectiveness of the faxed document or the time for taking an appeal.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    IN RE: RULE 2, RULES of APPELLATE PROCEDURE—CRIMINAL
    Supreme Court of Arkansas
    Delivered June 24, 1999
   Per Curiam.

Rule 2 of the Rules of Appellate Procedure—Criminal is being amended to incorporate a recent change in the comparable provision of the civil appellate rules. Subsection (b)(1) is amended to provide that a premature notice of appeal is to be treated as if it had been filed after entry of the judgment, decree, or order. Previously, such a notice was ineffective. For additional explanation concerning the changes, refer to the Reporter’s Notes at the conclusion of the amended rule.

Below, subsections (a) and (b) are published with the changes highlighted for ease of reference. Then the rule as amended is republished in its entirety. This amendment is effective immediately.

[Highlighted changes to the rule]

Rule 2. TIME AND METHOD OF TAKING APPEAL

(a) Notice of Appeal. Within thirty (30) days from

(1) the date of entry of a judgment, or

(2) the date of entry of an order denying a post-trial motion under Ark. R. Crim. P. 33.3, or

(3) the date a post-trial motion under Ark. R. Crim. P. 33.3 is deemed denied pursuant to RAP-Giv-4-(c) subsection (b)(1) of this rule, or

(4) the date of entry of an order denying a petition for postconviction relief under Ark. R. Crim. P. 37, the person desiring to appeal the judgment or order or both shall file with the trial court a notice of appeal identifying the parties taking the appeal and the judgment or order or both being appealed. The notice shall also state whether the appeal is to the Court of Appeals or to the Supreme Court; and if to the Supreme Court, the appellant shall designate the applicable subdivision of Supreme Court Rule 1-2 (a) which gives the Supreme Court jurisdiction. This declaration shall be for the purpose of placing the case with one court or the other for preliminary administration. It shall not preclude the appellant from filing his or her Brief pursuant to Supreme Court Rules 4-3 and 4-4 in the alternative court if that is later determined by the appellant to be appropriate.

(b) Time for Filing, (i) A notice of appeal filed after the trial court announces a decision but before the entry of the judgment or order shall be treated as filed on the day after the judgment or order is entered. Amo tree of appeal is invalid if-filcd-at-any-time prior to the day that the judgment or order appealed-from isentcrcdmr-prior to the day herein. If a noticcmf-appeaHs-filcdmn-trhe-samc day that the judgtrial motion is deemed denicdwthcmotiecmfappeal-shall be cffcctiver-Amoticc of appeal filcd-within thirty-(36)-days-of-cntry-of the judgment of conviction-shall-bc- cfFcctivc-to-appeal the judgtrial motion is filed after the notice of-appcalr-it-shahmot-bemccefr to appeal an adverse ruling on a post-trial motion and-thc-appcl= lant has previously filed a notice of appeal of the judgment;.....the appellant must file a notico of-appcal regarding-the ruling-on-thc ■motion-within-tfac-time-provided-in subpart (a)(2) or (3) hereof.

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

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

[Rule, as amended, in its entirety]

Rule 2. TIME AND METHOD OF TAKING APPEAL

(a) Notice of Appeal. Within thirty (30) days from

(1) the date of entry of a judgment, or

(2) the date of entry of an order denying a post-trial motion under Ark. R. Crim. P. 33.3, or

(3) the date a post-trial motion under Ark. R. Crim. P. 33.3 is deemed denied pursuant to subsection (b) (1) of this rule, or

(4) the date of entry of an order denying a petition for postconviction relief under Ark. R. Crim. P. 37, the person desiring to appeal the judgment or order or both shall file with the trial court a notice of appeal identifying the parties taking the appeal and the judgment or order or both being appealed. The notice shall also state whether the appeal is to the Court of Appeals or to the Supreme Court; and if to the Supreme Court, the appellant shall designate the applicable subdivision of Supreme Court Rule 1-2 (a) which gives the Supreme Court jurisdiction. This declaration shall be for the purpose of placing the case with one court or the other for preliminary administration. It shall not preclude the appellant from filing his or her Brief pursuant to Supreme Court Rules 4-3 and 4-4 in the alternative court if that is later determined by the appellant to be appropriate.

(b) Time for Filing. (1) A notice of appeal filed after the trial court announces a decision but before the entry of the judgment or order shall be treated as filed on the day after the judgment or order is entered. Upon timely filing in the trial court of a post-trial motion, the time for filing a notice of appeal shall be extended for all parties. The notice of appeal shall be filed within thirty (30) days from entry of the order disposing of the last motion outstanding. However, if the trial court neither grants nor denies the motion within thirty (30) days of its filing, the motion shall be deemed denied by operation of law as of the thirtieth day, and the notice of appeal shall be filed within thirty (30) days from that date.

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

(c) Certificate That Transcript Ordered. (1) If oral testimony or proceedings are designated, the notice of appeal shall include a certificate by the appealing party or his attorney that a transcript of the trial record has been ordered from the court reporter, and, except for good cause, that any financial arrangements required by the court reporter pursuant to Ark. Code Ann. § 16-13-510 (c) have been made. If the appealing party is unable to certify that financial arrangements have been made, then he shall attach to the notice of appeal an affidavit setting out the reason for his inability to so certify. A copy of the notice of appeal shall be mailed to the court reporter.

(2) Alternatively, the notice of appeal shall include a petition to obtain the record as a pauper if, for the purposes of the appeal, a transcript is deemed essential to resolve the issues on appeal.

(3) It shall not be necessary to file with either the notice of appeal or the designation of contents of record any portion of the reporter’s transcript of the evidence of proceedings.

(d) Notification of Parties. Notification of the filing of the notice of appeal shall be given to all other parties or their representatives involved in the cause by mailing a copy of the notice of appeal to the parties or their representatives and to the Attorney General, but failure to give such notification shall not affect the validity of the appeal.

(e) Failure to Pursue Appeal. Failure of the appellant to take any further steps to secure the review of the appealed conviction shall not affect the validity of the appeal but shall be ground only for such action as the Supreme Court deems appropriate, which may include dismissal of the appeal. The Supreme Court may act upon and decide a case in which the notice of appeal was not given or the transcript of the trial record was not filed in the time prescribed, when a good reason for the omission is shown by affidavit. However, no motion for belated appeal shall be entertained by the Supreme Court unless application has been made to the Supreme Court within eighteen (18) months of the date of entry of judgment or entry of the order denying postconviction relief from which the appeal is taken. If no judgment of conviction was entered of record within ten (10) days of the date sentence was pronounced, application for belated appeal must be made within eighteen (18) months of the date sentence was pronounced.

(f) Dismissal of Appeal. If an appeal has not been docketed in the Supreme Court, the parties, with the approval of the trial court, may dismiss the appeal by stipulation filed in that court or that court may dismiss the appeal upon a motion and notice by the appellant.

Reporter’s Notes: The rule has been revised to reconcile it with recent changes in the comparable Rule of Appellate Procedure— Civil, Rule 4.

Subdivision (a)(3) has been amended to reference (b)(1) of this rule which has been amended to incorporate the “deemed denied” language. Before this amendment, the rule merely referenced Rule 4(c) of the Rules of Appellate Procedure—Civil.

Subsection (b)(1) now provides that a premature notice of appeal is to be treated as if it had been filed after entry of the judgment, decree, or order. Previously, such a notice was ineffective. Additionally, the “deemed denied” language of Rule 4 of the Rules of Appellate Procedure—Civil is now contained in this rule so reference to the civil rules is no longer necessary.

Subdivision (b)(2) addresses the effect of post-trial motions on the timing of the notice of appeal. If there are multiple motions, the 30-day period for filing a notice of appeal begins to run from entry of the order disposing of “the last motion outstanding” or the date on which such motion is deemed denied by operation of law.

It further provides that a notice of appeal filed before disposition of a post-trial motion becomes effective on the day after a dispositive order is entered or the motion is deemed denied by operation of law pursuant to subsection (b)(1). The effect is to suspend a premature notice until the motion is ruled on or deemed denied, and a new notice is not necessary to appeal the underlying case. However, a party seeking to appeal from disposition of the post-trial motion must amend the original notice to so indicate. No additional fees are required in this situation, since the notice is an amendment of the original and not a new notice of appeal.

As directed in Rule 4 of the Rules of Appellate Procedure— Criminal, the time to file the record in a criminal case is governed by Rule 5 of the Rules of Appellate Procedure — Civil. Rule 5 provides that the record shall be filed and docketed “within 90 days from the filing of the first notice of appeal.” In light of the change in subsection (b)(1) of Rule 2 to treat a premature notice of appeal as filed on the day after the judgment or order is entered, it is intended that the 90 days runs from the effective date of the notice of appeal. Likewise, in other instances when the filing date of the notice of appeal is critical, it should run from the effective date of the notice.


text:
    IN RE: RULE 5.5, RULES of CRIMINAL PROCEDURE
    Supreme Court of Arkansas
    Delivered June 24, 1999
   Per Curiam.

Our Committee on Criminal Practice has recommended in light of the United States Supreme Court’s decision in Knowles v. Iowa (December 8, 1998) that Rule 5.5 of the Rules of Criminal Procedure be repealed. We agree. Accordingly, effective immediately, Rule 5.5 is repealed.

RULE 5.5. Lawful-Scardhesr

The issuance-o-fia-eitation in lieu of arrest or continued custody docs not affect the authority-of-a-lavr-cnforccmcnt officci-to conduct anothcrwisc-iawful search or any other-investigative procedure incidcnt--to-an-arrestT


text:
    IN RE: RULES of CRIMINAL PROCEDURE, NEW RULE 8.6
    Supreme Court of Arkansas
    Delivered June 24, 1999
   Per Curiam.

On April 15th, we announced the adoption of new Rule 8.6 and stated that it was to become effective July 1, 1999. The sixty-day period shall commence running on July 1, 1999. If a person is in custody on July 1, 1999, the prosecuting attorney should file charges within sixty days of that date.

       RULE 8.6. Time for Filing Formal Charge. If the defendant is continued in custody subsequent to the first appearance, the prosecuting attorney shall file an indictment or information in a court of competent jurisdiction within sixty days of the defendant’s arrest. Failure to file an indictment or information within sixty days shall not be grounds for dismissal of the case against the defendant, but shall, upon motion of the defendant, result in the defendant’s release from custody unless the prosecuting attorney establishes good cause for the delay. If good cause is shown, the court shall reconsider bail for the defendant.


text:
    IN RE: SUPREME COURT AD HOC COMMITTEE on FOSTER CARE and ADOPTION
    Supreme Court of Arkansas
    Delivered June 24, 1999
   Per Curiam.

In 1995 the Arkansas Supreme Court appointed an Ad Hoc Committee on Foster Care and Adoption (Committee) to assess dependency-neglect proceedings, make findings and recommendations and implement plans for improvement in court practice to enable children who are abused and neglected to be placed in safe and permanent homes in a timely fashion.

The Committee issued its report of findings and recommendations in 1997. In this report the committee found that, “ Children are not adequately represented in dependency-neglect cases in the state. Even when they are represented, the quality or representation is often minimal or poor.” As a result, the Committee recommended:

The creation of a state-sponsored system through the Administrative Office of the Courts for attorney ad litem representation of every child in a dependency-neglect proceeding.
The creation of a state-wide Court Appointed Special Advocate (CASA) Program to work with the attorney ad litem to represent the best interest of children.
The development of standards and manuals for attorneys who represent children.

Act 1227 of 1997 created a Division of Dependency-Neglect within the Administrative Office of the Courts (AOC), but the AOC did not receive sufficient funding to fully implement the committee’s recommendations. Consequently, the Committee established a Pilot Representation Program in the 13th Judicial District to demonstrate the effectiveness of having such representation. Further, Act 708 of 1999 established a statewide system of contracts for attorneys ad litem and provided that the Arkansas Supreme Court adopt standards of practice and qualifications for service for all attorneys who seek to receive contracts to provide legal representation to children in dependency-neglect proceedings.

Toward that end the Committee has submitted its recommendations for those qualifications and standards, and comment has been sought and received from the Juvenile Division Judges. We commend the Committee for its work and its dedication to improving dependency-neglect proceedings in our state. Having considered the Committee’s proposal and the juvenile judges’ comments, we adopt the following qualifications and standards of practice for attorneys ad litem who represent children in dependency-neglect cases, effective January 1, 2000.

Qualifications for Attorneys Ad litem in Dependency-Neglect Cases

I. Licensed attorney and in good standing with the Arkansas Supreme Court

II. Education to include mandatory specialized training of not less than 10 hours (live or video tape) within in the last two years prior to appointment. Prerequisite training must include:

1. Child development;
2. Dynamics of abuse and neglect;
3. Ad litem roles & responsibilities, including ethical considerations;
4. Relevant juvenile code, federal law, and case law;

Additional prerequisite training may include, but not be limited to:

5. Grief and attachment;
6. Child Maltreatment Act;
7. Family dynamics, including substance abuse and mental health issues;
8. Custody and visitation;
9. Resources and services; and
10. DCFS policies & procedures

III. Clinical prerequisite for new ad litem appointments to include but not be limited to:

1. Observation of an emergency hearing, an adjudication hearing and a review hearing;
2. Assistance in representation of a child in an emergency hearing, an adjudication hearing and a review hearing under supervision of an experienced attorney ad litem; and
3. Observation with an experienced ad litem in a TPR hearing prior to representing a child in a TPR hearing.

IV. Continuing education to include at least four hours per year related to ad litem representation in dependency-neglect cases. It is not required that this continuing education be certified as continuing legal education. Hours may be carried over for up to two years.

Standards of Practice for Attorneys Ad Litem in Dependency-Neglect Cases

1. An attorney ad litem shall conduct personally or in conjunction with a trained CASA an independent investigation consisting of review of all relevant documents and records including but not limited to: police reports, DCFS records, medical records, school records, and court records. The ad litem shall interview the child, and in conjunction with a trained CASA shall interview the parents, foster parents, caseworker, service providers, school personnel and others having relevant knowledge to assist in representation. Continuing investigation and regular contact with the child are mandatory.

2. An attorney ad litem shall determine the best interest of a child by considering such factors as the child’s age and sense of time, level of maturity, culture and ethnicity, degree of attachment to family members including siblings; as well as continuity, consistency, and the child’s sense of belonging and identity.

3. An attorney ad litem shall appear at all hearings to represent the best interest of the child. All relevant facts should be presented to the court and if the child’s wishes differ from the ad litem’s determination of the child’s best interest the ad litem shall communicate the child’s wishes to the court.

4. An attorney ad litem shall explain the court proceedings and the role of the ad litem in terms that the child can understand.

5. An attorney ad litem shall make recommendations for specific and appropriate services for the child and the child’s family.

6. An attorney ad litem shall monitor implementation of case plans and court orders.

7. An attorney ad litem shall file appropriate pleadings on behalf of the child.

8. An attorney ad litem shall review the progress of the child’s case and shall advocate for timely hearings.

9. An attorney ad litem shall request orders that are clear, specific, and, where appropriate, include a time line for assessment, services, placement, treatment and evaluation of the child and the child’s family.

10. Attorney-client or any other privilege shall not prevent the ad litem from sharing all information relevant to the best interest of the child with the court.

11. An attorney ad litem, functioning as an arm of the court, is afforded immunity against ordinary negligence for actions taken in furtherance of his or her appointment.

12. An attorney ad litem shall participate in prerequisite education prior to appointment which shall include 10 hours of training and shall participate in annual continuing education of four hours.

13. A full-time attorney shall not have more than 75 dependency-neglect cases, and a part-time attorney shall not have more than 25 dependency-neglect cases. Any deviations from this standard must be approved by the Administrative Office of the Courts who shall consider the following, including but not limited to: the number of counties in a judicial district, the experience and expertise of the attorney ad litem, area resources, and the availability of CASA volunteers. An attorney who is in within 5 cases of reaching the maximum caseload shall notify the Administrative Office of the Courts and the Juvenile Division Judge.


text:
    IN RE: ATTORNEY ENROLLMENT FEE
    Supreme Court of Arkansas
    Delivered September 30, 1999
   Per Curiam.

Act 960 of 1999 provides that the Supreme Court shall determine the amount of the fee to be paid by attorneys for enrolling and recording their licenses and fiirnishing them certified transcripts. These fees are deposited in the Supreme Court Library Fund for the purpose of maintaining and improving the Supreme Court Library.

Historically, this fee was set by the General Assembly, but with the passage of the reference Act, it is now our responsibility. Accordingly, effective January 1, 2000, the fee for attorney enrollment is set at $25.00.


text:
    IN RE: CERTIFICATION for FOREIGN LANGUAGE INTERPRETERS in ARKANSAS COURTS
    Supreme Court of Arkansas
    Delivered September 30, 1999
   Per Curiam.

All persons, whether or not able to understand or communicate adequately in the English language, must be afforded rights when they appear in court. See Ark. Code Ann. §16-64-111, §16-89-104, §16-10-102 and §25-15-101. It is the intent of this Per Curiam Order to provide for the certification, appointment and use of interpreters for non-English speaking parties or witnesses in all state and local court proceedings.

Ark. Code Ann. §16-10-102 established the Administrative Office of the Courts (AOC) subject to the supervision of the Supreme Court of Arkansas to be responsible for the administration of the nonjudicial business of the judicial branch. Ark. Code Ann. §16-10-127 authorizes and directs the AOC to establish a program to facilitate the use of interpreters and transliterators in all state and local courts in Arkansas and to prescribe the qualifications of and certify persons who may serve as certified interpreters in all courts in the state.

Therefore, pursuant to our superintending powers, we hereby authorize the AOC, with advice of the Arkansas Judicial Council Ad Hoc Foreign Language Interpreter Certification Committee, and in compliance with Administrative Order No. 11 and the rules of the Consortium for State Court Interpreter Certification, to prescribe requirements for the recruitment, testing, certification, evaluation, duties, professional conduct, continuing education, certification renewal, and other matters relating to interpreters.

When an interpreter is requested or when the judge determines that a party or witness has a limited ability to understand and communicate in English, a certified interpreter shall be appointed, using the most current roster of certified interpreters maintained by the AOC. Where possible, but particularly for more complex cases, an interpreter with Advanced Certification as denoted on the roster should be used.

The judge may appoint a non-certified interpreter only upon a finding that diligent, good faith efforts to obtain a certified interpreter have been made and none has been found to be reasonably available. Recognizing that the judge is the final arbiter of any interpreter’s qualifications, a non-certified interpreter may be appointed only after the judge has evaluated the totality of the circumstances including the gravity of the judicial proceeding and the potential penalty or consequence involved. Before appointing a non-certified interpreter, the judge shall make a finding that the proposed non-certified interpreter appears to have adequate language skills, knowledge of interpreting techniques, familiarity with interpreting in a court setting, and that the proposed non-certified interpreter has read, understands, and will abide by Administrative Order No. 11, the Arkansas Code of Professional Responsibility for Interpreters in the Judiciary. A summary of the efforts made to obtain a certified interpreter and to determine the capabilities of the proposed non-certified interpreter shall be made on the record or as a docket entry of the legal proceeding.

A non-English speaking party or witness may at any point in the proceeding waive the right to the services of an interpreter, but only when (1) the waiver is approved by the judge on the record or by docket entry after explaining to the non-English speaking party or witness through an interpreter the nature and effect of the waiver; (2) the judge makes a finding on the record or by docket entry that the waiver has been made knowingly, intelligently, and voluntarily; and (3) in cases where the non-English speaking party or witness has retained/appointed counsel or has the right to counsel, that party or witness has been afforded the opportunity to consult with his or her attorney. At any point in any proceeding, for good cause shown, a non-English speaking party or witness may retract his or her waiver and request an interpreter.

All interpreters, before commencing their duties, shall take an oath that they will make a true and impartial interpretation using their best skills and judgment in accordance with the standards and ethics of the interpreter profession.

Any of the following actions shall constitute good cause for the judge to remove an interpreter: (1) being unable to interpret adequately, including where the interpreter self-reports such inability; (2) knowingly and willfully making false interpretation while serving in an official capacity; (3) knowingly and willfully disclosing confidential or privileged information obtained while serving in an official capacity; (4) failing to adhere to the requirements prescribed by the AOC, including the Arkansas Code of Professional Responsibility for foreign language interpreters; (4) failing to follow other standards prescribed by law. The judge shall notify the AOC in writing whenever he or she removes an interpreter, setting forth the reason(s) for that action.

In all legal proceedings, the cost of providing interpreter services shall be assessed by the judge according to law. Provided, no non-English speaking party or witness shall be denied the services of an interpreter because he or she is unable to pay for those services.

This Per Curiam Order is effective January 1, 2000.


text:
    IN RE: RULES GOVERNING ADMISSION to the BAR of ARKANSAS
    Supreme Court of Arkansas
    Delivered September 30, 1999
   Per Curiam.

Rule I of the Rules Governing Admission to the Bar provides that members of the Board of Law Examiners (Board) shall be appointed to three-year terms, subject to reappointment for an additional three years. Due to resignations and subsequent reappointments this provision has led to an uneven distribution of conclusion of terms. For example, in September of 1998, three Board members were replaced, and in September of 2000, four terms will come to a conclusion.

The Board has asked this Court to consider an amendment to Rule I to provide for a single six-year term. The Board states that such an amendment, properly implemented, would result in two terms coming to a conclusion in each of five years, and one term coming to a conclusion in the sixth year. The Board argues that such an outcome would contribute to continuity of experience from year to year. We agree.

We adopt and publish Rule I of the Rules Governing Admission to the Bar as it appears on the attachment to this order.

In order to implement the revised rule we will make appointments and reappointments to the Board in accord with the following schedule.

In September of this year the individual appointed to replace Blair Arnold will be asked to serve a seven-year term concluding in 2006. Present Board member Audrey Evans will be asked to serve an additional three-year term concluding in 2002.

In September, 2000, four members of the Board who have served at least six years will see their second terms come to a conclusion. Of that number, two new appointees will be asked to serve five-year terms concluding in 2005. Two of the present Board members will be asked to serve additional one-year terms concluding in 2001. Present Board member Jerry Pinson will be asked to serve an additional three-year term concluding in 2003.

In September, 2001, the initial three-year terms of three present Board members will come to a conclusion. Of that number, two will be asked to serve for three years concluding in 2004. One will be asked to serve for two years concluding in 2003.

Of the remaining three appointments due at that time, one new appointee will be asked to serve a five-year term concluding in 2006, and the remaining new appointees will be asked to serve six-year terms concluding in 2007.

RULE I.

COMPOSITION OF BOARD OF LAW EXAMINERS

The State Board of Law Examiners, (hereinafter Board), is hereby constituted, before whom all applicants for license must appear.

Said Board shall consist of eleven members: two from each Congressional District (as now or hereafter constituted), and the remainder from the State at large. Each appointment shall be for a term of six years, unless otherwise designated by the Supreme Court. Vacancies occurring from causes other than expiration of term of office will be filled by the Supreme Court as they occur, and the person so appointed shall serve the remainder of the term of his or her predecessor. The Board, from its members, shall annually select its own chair. Members shall continue to serve beyond their designated term until such time as their successor is qualified and appointed by the Court.

The Board, its individual members, Executive Secretary and employees and agents of the Board are absolutely immune from suit or action for their activities in discharge of their duties hereunder to the full extent of judicial immunity in Arkansas.

The Board may adopt regulations consistent with these rules, to be submitted to the Arkansas Supreme Court for approval prior to their implementation. Any regulations adopted by the Board and approved by the Court shall appear as an appendix to the Rules Governing Admission to the Bar. (Per Curiam Order, February 10, 1969; amended by Per Curiam Order, May 18, 1992; amended by per curiam July 17, 1995; amended by Per Curiam Order, September 30, 1999.)


text:
    IN RE: BOARD of CERTIFIED COURT REPORTER EXAMINERS
    Supreme Court of Arkansas
    Delivered June 17, 1999
   Per Curiam.

The Flonorable Leon Jamison of Pine Bluff and Ms. Jana Hawley of Pearcy are reappointed to our Board of Certified Court Reporter Examiners. Each term is for three years and expires on July 31, 2002.

The Court expresses its gratitude to Judge Jamison and Ms. Hawley for accepting reappointment to this important Board.


text:
    IN RE: SUPREME COURT COMMITTEE on the UNAUTHORIZED PRACTICE of LAW
    Supreme Court of Arkansas
    Delivered June 17, 1999
   Per Curiam.

Jim Coutts, Esq., of Russellville, Third Congressional District, and Ms. Catherine Conlin Duvall of Lewisville, At-Large Position, are hereby appointed to the Supreme Court Committee on the Unauthorized Practice of Law for three-year terms to expire on May 31, 2002.

The Court expresses thanks to Mr. Coutts and Ms. Duvall for accepting appointment to this important Committee.

The Court expresses its appreciation to Alex Streett, Esq., of Russellville, and Mr. Ernest Matkin of Fayetteville, whose terms have expired, for their years of dedicated service to the Committee.


text:
    IN RE: CLIENT SECURITY FUND COMMITTEE
    Supreme Court of Arkansas
    Opinion delivered June 24, 1999
   Per Curiam.

Bill W. Bristow, Esq., of Jonesboro, First Congressional District, is hereby appointed to the Client Security Fund Committee for a five-year term to expire on July 31, 2004.

The Court thanks Mr. Bristow for accepting appointment to this most important Committee.

The Court expresses its appreciation to Mr. Richard A. Jarboe, Esq., whose term has expired, for his years of service to this Committee.


text:
    IN RE: SUPREME COURT COMMITTEE on CIVIL PRACTICE
    Supreme Court of Arkansas
    Delivered July 8, 1999
   Per Curiam.

Katharine Day Wilson, Attorney at Law, of Batesville, Thomas H. McGowan, Esq., of Little Rock, and James M. Pratt, Jr., Esq., of Camden are reappointed to the Supreme Court Committee on Civil Practice for three-year terms to expire on July 31, 2002.

The Court thanks Ms. Wilson, Mr. McGowan, and Mr. Pratt for accepting reappointment to this important Committee.


text:
    IN RE: SUPREME COURT COMMITTEE on MODEL JURY INSTRUCTIONS—CIVIL
    Supreme Court of Arkansas
    Opinion delivered September 16, 1999
   Per Curiam.

William A. Waddell, Esq., of Little Rock is appointed, effective immediately, to the Committee on Model Jury Instructions—Civil to fill the unexpired term of Paula Storeygard, attorney-at-law, who has resigned from the Committee. This term expires on April 30, 2001.

The Court extends its thanks to Mr. Waddell for accepting appointment to this most important Committee.

The Court expresses its gratitude to Ms. Storeygard for her years of service to the Committee.


text:
    IN RE: CLIENT SECURITY FUND COMMITTEE
    Supreme Court of Arkansas
    Delivered September 23, 1999
   Per Curiam.

JoAnn Maxey, Attorney at Law, of Little Rock, is appointed, effectively immediately, to the Client Security Fund Committee to fill the unexpired term of Martha Miller Harriman, Attorney at law, who has resigned from the Committee. This term expires on July 30, 2001.

The Court extends its thanks to Ms. Maxey for accepting appointment to this most important Committee.

The Court expresses its gratitude to Ms. Harriman for her years of service to the Committee.


text:
    IN RE: Daniel Edward FORD, Arkansas Bar ID #81057
    Supreme Court of Arkansas
    Delivered July 15, 1999
   Per Curiam.

On recommendation of the Supreme Court Committee on Professional Conduct, we hereby accept the surrender of the license of Daniel Edward Ford, of Rogers, Arkansas, to practice law in the State of Arkansas. Mr. Ford’s name shall be removed from the registry of licensed attorneys and he is permanently barred from engaging in the unlicensed practice of law in this state.


text:
    IN RE: David Marion CLARK, Arkansas Bar ID #79034
    Supreme Court of Arkansas
    Opinion delivered September 16, 1999
   Per Curiam.

On recommendation of the Supreme Court Committee on Professional Conduct, we hereby accept the surrender of the license of David Marion Clark, of Batesville, Arkansas, to practice law in the State of Arkansas. Mr. Clark’s name shall be removed from the registry of licensed attorneys and he is permanently barred from engaging in the unlicensed practice of law in this state.


author: WH. “Dub” Arnold, Chief Justice. DONALD J. Corbin Annabelle Clinton Imber, Justice,

text:
    Kathryn Ann MYRICK v. Richard Dale MYRICK
    99-247
    2 S.W.3d 60
    Supreme Court of Arkansas
    Opinion delivered October 21, 1999
    [ Petition for rehearing denied December 2, 1999. ]

      D. Scott Hickam, for appellant.

      Hobbs, Garnett, Naramore & Strause, P.A., by: Ronald G. Naramore, for appellee.

       BROWN and Imber, JJ., would grant.

   WH. “Dub” Arnold, Chief Justice.

This case is before us spetition tice. Arkansas Court of Appeals. The appeal is brought from a divorce decree entered by the Garland County Chancery Court. The primary issue is whether the chancellor incorrectly divided certain assets between appellant and appellee. Other issues are raised concerning the chancellor’s award of alimony and his failure to rule on appellant’s request for attorney’s fees and a portion of appellee’s pension.

The Court of Appeals found no error and affirmed the trial court in an unpublished opinion, delivered on February 10, 1999. It is well settled that upon a petition for review, we consider the case as though it were originally filed in this Court. 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).

Appellant and appellee were married in 1982 when appellant was seventeen years old and appellee was twenty-one. At the time of the marriage, appellant’s mother, Martha Pearson, was the custodian of appellant’s trust fund. The fund consisted primarily of stock from an old family business and monetary contributions made over the years by Mrs. Pearson. Shortly after the marriage, appellant asked her mother to turn the trust fund over to her. Mrs. Pearson reluctantly complied. Although the details are not clear, it appears the fund was converted to an account at the A.G. Edwards office in Gulfport, Mississippi, where Mrs. Pearson resided. The value of the account was approximately $330,000.

After the trust fund was converted, it was transferred to the A.G. Edwards office in Hot Springs, where appellant and appellee resided. From the date the account arrived in Hot Springs, if not before, it bore the names of appellant and appellee, jointly.

In August of 1984, Mrs. Pearson decided to purchase a home in Gulfport. She obtained the money to do so by selling approximately twenty-four acres of lake-front property in Hot Springs to appellant and appellee, jointly, for $150,000. Appellant and appellee used $150,000 from the A.G. Edwards account to make the purchase. They put the money into their joint checking account, then wrote a check to Mrs. Pearson. A warranty deed was duly executed conveying the property to appellant and appellee as husband and wife.

After buying the lake-front acreage, appellant and appellee lived in a home on the property. Later, they constructed a new home using $100,000 to $125,000 from the A.G. Edwards account. The old home was converted to three apartments, which were rented out. In 1995, the parties constructed a four-unit apartment complex on the land. To finance the construction, they took a mortgage on their new home. Later, they consolidated other debts into that mortgage, bringing its total to approximately $140,000.

On March 6, 1996, appellant filed a complaint for divorce. She asked the court to make an equal division of the parties’ real and personal property in light of the inheritance and gifts given to her by her family. By amended complaint dated October 14, 1996, appellant alleged that appellee had taken control of her estate through coercion, fraud, duress, and undue influence. Several months later, appellee filed a counterclaim for divorce.

Trial was held in the case on July 9 and 10 and October 15 and 16, 1997. After hearing the testimony of witnesses, viewing the documentary evidence, and receiving letter briefs from the parties, the chancellor awarded appellant a divorce. He found that the lakefront acreage was marital property; he dissolved the tenancy by the entirety to a tenancy in common, pursuant to Ark. Code Ann. § 9-12-317 (R.epl. 1998), and ordered the property sold, with the net proceeds to be divided equally between the parties. However, he provided that appellant could retain use of the marital residence until the youngest of her four children either turned eighteen or graduated from high school, whichever occurs later.

The chancellor also found that the funds remaining in the A.G. Edwards account, approximately $87,000, were marital property to be divided equally. Finally, the chancellor ordered appellee to pay appellant temporary rehabilitative alimony in the form of tuition, books, fees, and expenses at an accredited college, vocational-technical school, or trade school until appellant completes a course of study or for five years, whichever is less. Despite the fact that evidence was presented at trial concerning appellee’s pension and the amount appellant spent on attorney’s fees, the chancellor made no ruling on these matters. Appellant now brings the instant appeal.

On appeal, appellant asserts the following:

1) The lower court erred by failing to rule upon a division of the appellee’s pension plan and the appellant’s request for an award of attorney’s fees;
2) The lower court erred by failing to award the appellant certain property as her separate estate or by making an unequal division;
3) The lower court erred by the manner and nature of its temporary rehabilitative alimony award.

I. Whether the lower court erred by failing to rule upon a division of the appellee’s pension plan and the appellant’s request for an award of attorney’s fees.

The appellant requested a division of property rights in her complaint for divorce, which included a division of appellee’s pension plan. Despite the fact that evidence was presented at trial concerning appellee’s pension, the chancellor made no ruling on this matter. The appellee agrees that the court should have divided his pension as of the date of the divorce; he further does not quarrel with appellant’s calculation of her portion of that benefit, which, when utilizing the summary of benefits formula and appellee’s actual contracts, would equal one-half of appellee’s monthly benefit of $149.49, or $74.75 per month to appellant. However, appellant’s failure to obtain a ruling on this issue, as well as her request for an award of attorney’s fees, precludes us from addressing these matters on appeal.

It is well settled that this Court will not address an argument where the abstract does not show that it was made in the trial court, Webber v. Webber, 331 Ark. 395, 400, 962 S.W2d 345 (1998), and ruled upon there. Sanders v. Bradley County Human Servs. Public Facility Bd., 330 Ark. 675, 683, 956 S.W2d 187, 191 (1997); see also Skokos v. Skokos, 332 Ark. 520, 968 S.W2d 26 (1998). Therefore, we hold that the issues upon which the trial court failed to make a ruling were not preserved for appellate review.

II. Whether the lower court erred by failing to award the appellant certain property as her separate estate or by making an unequal division.

Appellant contends that although the A.G. Edwards account was a joint one in both parties’ names, apparently from its inception, she is entitled to the account and the real property purchased with the money from the account as her separate nonmarital estate. Appellant makes this argument in spite of the fact that the account remained a joint account throughout the parties’ marriage and was used by the parties to acquire certain real estate from appellant’s mother in 1984, two years after appellant and appellee’s marriage. Appellant contends that the placing of her inheritance in a joint account with appellee and buying the real estate in joint names were not voluntary acts, but ones occasioned by coercion and duress on the part of the appellee.

We have held that once one spouse has shown that a confidential relationship existed with the other, and that the other was the dominant party in the relationship, it is presumed that a transfer of property from the former to the latter was invalid due to coercion and undue influence. In such a case, the spouse to whom the property was transferred bears the burden of rebutting the presumption by producing evidence showing that the transfers of property were freely and voluntarily executed. Dunn v. Dunn, 255 Ark. 764, 503 S.W.2d 168 (1973); see also Lyons v. Lyons, 13 Ark. App. 63, 679 S.W.2d 811 (1984); Chrestman v. Chrestman, 4 Ark. App. 281, 630 S.W.2d 60 (1982); Marshall v. Marshall, 271 Ark. 116, 607 S.W.2d 90 (Ark. App. 1980).

Appellant contends that, in light of the above-mentioned line of cases, as 'well as the fact that the trial court found appellee to be the dominant party in the relationship, the court then erred by leaving the burden of proving the involuntariness of the transfers with her, rather than requiring appellee, as the dominant party, to meet his burden of proving that the transfers were voluntary. Appellant’s argument is misguided for two reasons. First, the trial court, in its December 4, 1997, letter opinion, stated that appellee “appeared dominant”; the court did not go so far as to make a finding in this regard.

Second, while Dunn and its progeny do seem to indicate that the presumption of invalidity is immediately invoked upon a mere showing of dominance on one party’s part, when critically read, the requirement of proof of dominance is actually a bigger hurdle to overcome than the cases cited by appellant seem to indicate. Burns, Guardian v, Lucich, 6 Ark. App. 37 (1982), for example, better articulates the burden that appellant, as the purported donor, must overcome before the burden to prove voluntariness would shift to appellee, as the purported donee. Burns held that it is not the mere existence of a relationship of confidence which causes the gift to be deemed prima facie void, but only when the testimony further shows that the donee occupied such a superior position of dominance or advantage as would imply a dominating influence over his donor that this presumption arises. (Emphasis added.)

Indeed, in marriage, one party often asserts a dominant role. Logically, then, one party to the marriage occupying the dominant position must not be enough, in and of itself, to invoke the presumption that all transactions between the parties were the product of undue influence or coercion on the part of the dominant party. To simply hold that a mere showing of dominance meets the burden to invoke that presumption is ludicrous and is not, and has not been, the law in Arkansas.

To state it more clearly, the invocation of the presumption of invalidity is really the product of a two-pronged test. Before the presumption of invalidity would ever be invoked, the transferring party must not only claim that the receiving party was the dominant one, but must also establish that that party occupied such a superior position of dominance or advantage as would imply a dominating influence sufficient to amount to duress, coercion, or undue influence; once this has been established, the presumption of involuntariness on the part of the transferring party is invoked, and the burden then shifts to the donee to prove that the transfers were voluntary. In other words, the simple existence of a dominant party in the relationship does not, in and of itself, invoke the presumption of invalidity; rather, the party claiming duress or coercion must establish further sufficient evidence to invoke the presumption, after which the burden to prove otherwise rests with the dominant party.

In this case, although the court found that appellee “appeared dominant,” the appellant obviously failed to convince the chancellor that any duress or undue influence was exerted upon her by appellee, sufficient to establish that appellee enjoyed such a superior position of dominance or advantage over appellant as would imply a dominating influence in order to invoke the presumption of invalidity. We agree with the trial court that the first prong of adequately proving dominance was, therefore, never met by appellant in order to then shift the burden to appellee to prove voluntariness. There was some evidence that appellant was verbally abused by appellee, but there was no allegation or proof of incompetence on appellant’s part.

Further, the cases relied upon by appellant for the proposition that a donee in a confidential relationship must show transfers to be voluntary are very different from the case at hand. For example in Marshall v. Marshall, supra, the donor was in poor health and mentally confused when the property was transferred. Coercion was clear and the marriage was a short one. In Chrestman v. Chrestman, supra, the donor was incapable of exercising sound judgment and intoxicated when the transfer was made. It was clear that the donee wife entered the marriage with the intention of defrauding her husband of all his assets. Nothing in the case at bar rises to these levels.

More similarly, the Court of Appeals, in Lyons v. Lyons, supra, found no coercion where the husband, who had lost an eye as a result of a work-related accident and subsequently suffered depression, claimed his transfer of property to his wife to be involuntary because of his “condition.” The court therein held that although there was evidence that appellant was depressed, there was no allegation or proof of incompetence on his part.

A very important part of the trial court’s ruling was obviously based upon the credibility of the witnesses. We have held many times that although we review chancery cases de novo on the record, we do 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. Burford, 60 Ark. App. 27, 958 S.W.2d 12 (1997).

In the instant case, there was sharply conflicting testimony, for example, on matters concerning the behavior of the parties towards each other in reference to issues of fraud and coercion. Further, there was testimony from Andrea Williams Crawford, a witness close to both parties, that both parties tended to exaggerate. Perhaps the best evidence of the voluntary nature of the transfer of the A.G. Edwards account to the parties jointly is how the parties used it over the course of their marriage. Real estate was purchased with funds from this account; a new marital residence was constructed with it; and later the residence was mortgaged to build the apartments. After the divorce action was filed, all parties’ debts (which, too, were joint) were paid off with a consolidation loan and a mortgage on the residence. The trial court simply found no duress, but rather found the joint nature of the parties transactions to be voluntary. We agree.

In addition to her argument regarding the presumption of invalidity of the transfer, appellant further contends that because appellee failed to call his attorney, Mr. Crawford, as a witness at trial, then the absent-witness rule applies, thereby establishing the presumption that the witness’s testimony would be unfavorable to appellee. Mr. Crawford, according to the abstract, prepared at least one of the deeds to the lake-front property. We 'hold that his testimony would not have added anything of significance to the case, as neither appellant nor her mother testified to being forced or fraudulently induced into signing the deeds; in fact, they testified that they did not even read the deeds. Therefore, Mr. Crawford’s failure to be called by appellee as a witness was inconsequential.

Appellant suggests that Mr. Crawford possessed special knowledge of matters in the suit because he prepared at least one of the deeds, and that he would have been able to testify that neither she nor her mother wished to have the property transferred to appellee jointly. She relies on this Court’s holding in Canal Ins. Co. v. Hall, 259 Ark. 797 (1976), which states that where á party whose duty it is to call a witness who possesses special knowledge of matters involved in a suit fails to do so, there is a suggestion or presumption that the witness’s testimony would be unfavorable.

Appellant’s argument is not compelling. In fact, if appellant thought the witness had knowledge that would somehow tend to cast doubt on the real estate transactions, it would seem to be her duty to call him not appellee’s. Appellant’s assertion that Mr. Crawford undeniably had “peculiar or special knowledge concerning facts essential to appellant’s case” is tantamount to an admission of this very point.

In short, we find no error on the part of the trial court in its failure to award the appellant certain property as her separate estate; further, we find no error in Mr. Crawford’s failure to be called by appellee as a witness.

III. Whether the lower court erred by the manner and nature of its temporary rehabilitative alimony award.

The trial court’s written opinion and decree provides as follows with respect to appellant’s request for alimony:

The court awards no permanent alimony to the plaintiff although taking into consideration the appropriate facts, the court does order by way of temporary rehabilitative alimony that the defendant will pay the tuition, books, and fees expense of the plaintiff at an accredited college, vocational-technical school or trade school, until the plaintiff completed a course of study or five (5) years, whichever is less.

The statutory language authorizing the court to make such an award is contained in Ark. Code Ann. § 9-12-312 (Repl. 1998), which provides in pertinent part:

When a decree is entered, the court shall make such orders concerning the alimony of the wife or the husband and the care of the children, if there are any, as are reasonable from the circumstances of the parties and the nature of the case. . . .

(Emphasis added.) Appellant argues that the manner and nature of the court’s temporary rehabilitative alimony award is simply not reasonable from the circumstances of the parties and the nature of the case because appellant is a thirty-two year old mother of four, with a full-time job, and no time to “go off to school.” Appellant contends that any plausible feasibility of this would be more at the expense of the children than she or the appellee.

Appellant asserts that the evidence fully supports an award of alimony in some form or manner, and that the lower court has properly determined that the appellant was entitled to an award of alimony. Appellant requests, therefore, that this matter be remanded for the lower court to determine an award that is reasonable under the circumstances for the parties in a case of this nature.

Appellant’s argument is not compelling. The chancellor had broad discretion to award whatever (if any) alimony he felt was appropriate under the facts and circumstances unique to this case. We have held that an award of alimony lies within the discretion of the chancellor and will not be reversed absent an abuse of that discretion. Herman v. Herman, 335 Ark. 36, 977 S.W.2d 209 (1998); Burns v. Burns, 312 Ark. 61, 847 S.W.2d 23 (1993).

Here, the court’s alimony award, although not agreeable to the appellant, was perfectly reasonable, given the circumstances. Appellee is a school teacher, and appellant earns only slightly less income than appellee. Additionally, appellee pays more support than the support chart would indicate, as he pays child support to appellant for four children, even though he has custody of one of the children. Appellant pays no support to appellee.

In short, due to the chancellor’s broad discretion in this matter, we cannot say that he abused that discretion. Therefore, we hereby affirm the trial court on this and all issues presented by appellant.

Affirmed.

Corbin, J., concurs.

Brown and Imber, JJ., dissent.

DONALD J. Corbin

concurring

With a de novo review, I rbin

Annabelle Clinton Imber, Justice,

dissenting. My only disagreement ice, majority concerns its rejection of appellant’s argument that the chancellor erred when he failed to require that appellee, as the dominant party, prove his acquisition of an interest in certain assets was the result of voluntary acts by appellant. Based upon our case law and the chancellor’s findings in a letter opinion, I must conclude that appellant’s argument has merit.

Our court has recognized that when one party in a confidential relationship is dominant and the other party in that relationship has made a transfer of assets to the dominant party, the transfer is presumed invalid, and the dominant party has the burden of proving that the transfer was freely and voluntarily made. Dunn v. Dunn, 255 Ark. 764, 503 S.W.2d 168 (1973); Jamison v. Duncan, 233 Ark. 780, 348 S.W.2d 709 (1961); Norton v. Norton, 227 Ark. 799, 302 S.W.2d 78 (1957); Young v. Barde, 194 Ark. 416, 108 S.W.2d 495 (1937); Gillespie v. Holland, 40 Ark. 28 (1882). We have also recognized that “no greater confidential relationship is known to the law than that which exists between a husband and wife.” Dunn, supra.

Over the course of a four-day trial, the chancellor in this case heard the testimony of the witnesses and viewed the documentary evidence. The chancellor’s findings were then set forth in a letter opinion dated December 4, 1997. With regard to whether or not the appellee’s interest in the assets was acquired through fraud, coercion, or undue influence, the chancellor made the following findings:

The Court finds the evidence fails as to fraud, duress, or coercion. It is true in this relationship one of the parties appeared dominant and the other servile, but this alone does not prove fraud, coercion and duress. Greater weight could have been given Plaintiff’s argument of fraud, coercion, and duress had the grantor [donor] not been a third party.

Notwithstanding the chancellor’s finding that appellee was the dominant party in the relationship, the majority “agrees with the trial court that the first prong of adequately proving dominance was, therefore, never met by appellant in order to then shift the burden to appellee to prove voluntariness.” In order to reach this conclusion, the majority first attempts to minimize the chancellor’s finding by suggesting that no finding is in fact made by the statement that appellee “appeared dominant.” The majority discounts the finding because the chancellor selected the verb “appear” to describe what came to “be clear to the mind: be obvious or evident..: reveal itself to an observer or reader: be manifest.” Webster’s Third New International Dictionary 103 (1993). The plain and ordinary meaning of the chancellor’s finding belies the majority’s insinuation that no finding was made at all.

Next, the majority recognizes that Dunn, supra, and its progeny indicate that the presumption of invalidity is immediately invoked upon a showing of dominance on one party’s part. In spite of that recognition, the majority proceeds to create a two-pronged test for the invocation of the presumption of invalidity. Under this new test, the party claiming duress or coercion must prove more than is required by Dunn, supra. Not only must there be proof that the other party was the dominant party in a confidential relationship. The party claiming duress or coercion must also “establish further sufficient evidence to invoke the presumption, after which the burden to prove otherwise rests with the dominant party.” (Emphasis added.) With regard to this latter requirement, it appears that the party claiming duress or coercion must establish by further sufficient evidence that duress or undue influence was exerted by the dominant party in order to invoke the presumption of coercion. In other words, there must be proof of coercion in order to invoke the presumption of coercion. This two-pronged test created by the majority fails to honor the principle of law enunciated in Dunn, supra. Furthermore, to require proof of coercion in order to invoke a presumption of coercion makes absolutely no sense.

In his letter opinion, the chancellor found that appellee’s position as the dominant party in the relationship did not prove fraud, coercion and duress. This finding that appellant had not proven fraud, coercion or duress should convince us that the chancellor erroneously failed to shift the burden of proof to appellee after finding that appellee was the dominant party in the relationship. Pursuant to our holding in Dunn, supra, appellee had the burden of proving that his acquisition of an interest in the trust fund and the lake property was the result of voluntary acts by appellant. The chancellor noted that greater weight could have been given to appellant’s argument had the grantor or donor not been a third party. This may have been true with respect to the lake property deeded by appellant’s mother to appellant and appellee, as husband and wife. However, as noted in the majority opinion, appellant asked her mother to turn the trust fund over to her shortly after the marriage. The details cpncerning the initial transfer in Gulfport, Mississippi, are not clear with regard to whether appellee received his interest in the trust fund from appellant or from a third party, appellant’s mother. Under these circumstances, all transfers to appellee were not necessarily made by a third party. Appellee, as the dominant party in the marriage, would still have the burden of proving that any transfers by appellant were freely and voluntarily made.

In Jones v. Jones, 326 Ark. 481, 931 S.W.2d 767 (1996), we held that the chancellor erroneously relieved the noncustodial parent of the legal burden to prove that a material change of circumstances and the best interest of the child warranted modification of the initial custody order. Similarly, in this case the chancellor erroneously failed to shift the burden of proof to appellee after finding appellee to be the dominant party in the relationship. This case should be reversed and remanded in order to allow the chancellor to review the evidence and determine whether appellee has met his burden of proving that the transfer of assets was voluntary.

For these reasons, I must respectfully dissent.

BROWN, J., joins in this dissent.


text:
    Calvin PORTER v. STATE of Arkansas
    CR 96-1477
    2 S.W.3d 73
    Supreme Court of Arkansas
    Opinion delivered October 21, 1999

      Jack, Lyons & Jones, P.A., by: Curtis L. Bowman, for appellant.

      Winston Bryant, Att’y Gen., by: O. Milton Fine II, Ass’t Att’y Gen., for appellee.
   WH. “Dub” Arnold, Chief Juvin Porter, was convicted of

The appellant, Calvin Porter, was convicted of capital murder and sentenced to die by lethal injection. We affirmed his conviction and sentence in Porter v. State, 321 Ark. 555, 905 S.W.2d 835 (1995). Porter subsequently sought a stay of the mandate while he petitioned the Supreme Court for a writ of certiorari. We granted the stay on October 23, 1995.

The Supreme Court denied certiorari in Porter v. Arkansas, 517 U.S. 1108, 116 S.Ct. 1329 (1996), on March 25, 1996. Consequently, this court issued the mandate from the direct appeal on April 1, 1996. Porter sought postconviction relief pursuant to Rule 37, but did not file his petition until June 17, 1996, which was after the sixty-day limitation period, provided by Rule 37.2(c), had expired.

In the trial court, the State filed a motion to dismiss Porter’s petition as untimely. The court granted the motion. Porter appealed the dismissal of his petition to this Court. In his brief, Porter contended that his petition should not have been considered untimely because he did not receive “actual notice” from the Clerk of the Arkansas Supreme Court or from the Jefferson County Circuit Clerk that the appellate mandate was issued on April 1, 1996. He argued that due process required this Court to change its practice in order to insure that the appellant receives actual notice of the issuance of the mandate.

In Porter v. State, 332 Ark. 186, 964 S.W.2d 184 (1998), we declined Porter’s invitation to change the clerk’s established practice for issuance of the appellate mandate. We were concerned, however, about the circumstances that surrounded Porter’s legal representation at the time the mandate was issued. Our opinion summarized these circumstances as follows:

Specifically, Porter’s brief indicates that the Director of the Arkansas Capital Resource Center, A1 Schay, represented Porter before the Supreme Court. While Porter’s petition for a writ of certiorari was pending, however, funding for the Arkansas Capital Resource Center was terminated. Under these circumstances, it may well be that Mr. Schay’s representation of Porter ended when the funding for the resource center ceased, and that Porter did not have an attorney at the time the mandate was issued. More importantly, it may well be the case that the delay in filing Porter’s petition was caused by his belief that Mr. Schay, as his attorney, would notify him of the disposition of his certiorari petition and the issuance of the mandate and would file the necessary Rule 37 petition.

We also recognized that since the date of Porter’s conviction, Rule 37.5 had been promulgated and put into practice. Rule 37.5 requires, within twenty-one days of the issuance of the appellate mandate, an assessment of the availability of counsel for defendants sentenced to death. The existence of this rule, coupled with the ambiguous circumstances of Porter’s representation at the time the mandate was issued from his direct appeal, motivated us to remand the case for a hearing to develop facts surrounding the status of Porter’s legal representation on April 1, 1996, and his understanding regarding the status of that representation.

On August 26, 1999, the Jefferson County Circuit Court entered an order in which it summarized the facts that were developed during the hearing. The court essentially found that because A1 Schay had not taken any formal steps to withdraw as the attorney of record for Porter, he was still representing Porter at the time that the appellate mandate was issued. The court also found that while Mr. Schay believed that the closing of the Resource Center terminated his representation of Porter, Porter himself did not share that understanding. The court’s order stated that “Mr. Schay never told [Porter] that he did not represent him until June 11, 1996, after the time for fifing the Rule 37 had expired.” The court further found, however, that despite Porter’s justifiable reliance on Mr. Schay, his petition was untimely filed, and that the court, according to the jurisdictional nature of the rule, had no choice but to take the harsh action of dismissing the petition. Porter has now appealed that decision and the case is submitted once again to this Court to determine whether the trail court erred in holding that it lacked jurisdiction over the appellant’s petition for relief which was filed pursuant to Rule 37 of the Arkansas Rules of Criminal Procedure.

Rule 37.2(c) clearly states that if an appeal was taken of the judgment of conviction, a petition claiming relief under this rule must be filed in the circuit court within sixty days of the date the mandate was issued by the appellate court. We have held that the filing deadlines imposed by this section are jurisdictional in nature and that if they are not met, a circuit court lacks jurisdiction to consider a Rule 37 petition or a petition to correct an illegal sentence on its merits. Petree v. State, 323 Ark. 570, 920 S.W.2d 819 (1995).

However, while there is no constitutional right to a post-conviction proceeding, when a State undertakes to provide collateral relief, due process requires that the proceeding be fundamentally fair. See Larimore v. State, 327 Ark. 271, 938 S.W.2d 818 (1997) (quoting Robinson v. State, 295 Ark. 693, 751 S.W.2d 335 (1988)). Here, the question becomes whether it is “fundamentally fair” to require an inmate on death row to abide by the stringent filing deadlines when he was under the impression he was represented by counsel and that said counsel was timely fifing the proper pleadings (such as a petition under Rule 37) on his behalf.

In the instant case, appellant was on death row; further, his petition was filed only seventeen days late and under ambiguous circumstances surrounding his legal representation. As previously stated, this Court was concerned with the unusual circumstances in this case when it remanded the case to the circuit court for a fact-finding hearing. Porter v. State, 332 Ark. 186, 964 S.W.2d 184 (1998) . We noted that the importance of determining the status of Porter’s legal representation at the time the mandate was issued is highlighted by our new Rule 37.5 relating to death sentences. See In Re: Adoption of Rule 37.5 of the Rules of Criminal Procedure, 329 Ark. 641 (1997). Had Rule 37.5 been in effect, Porter would have been called before the circuit court within 21 days of the mandate’s issuance and the availability of counsel for Rule 37 purposes would have been assessed by the Circuit Court.

Rule 37.5 evolved from Act 925 of 1997, now codified at Ark. Code Ann. §§ 16-91-201 to -206 (Supp. 1997) (Arkansas Effective Death Penalty Act of 1997), where the General Assembly expressly noted that the purpose of the Act was to comply with federal law by instituting a comprehensive state court review. Ark. Code Ann. § 16-91-204 (Supp. 1997). The purpose of a meaningful state review is to eliminate the need for multiple federal habeas corpus proceedings in death cases. We held, in Porter v. State, 332 Ark. 186, 964 S.W2d 184 (1998), that in death cases where a Rule 37 petition is denied on procedural grounds, great care should be exercised to assure that the denial rests on solid footing. We obviously recognized, even in our prior review of Porter’s petition, the potential unfairness facing the appellant in this situation..

We have previously granted an appellant leave to file a belated appeal when counsel assumed full responsibility for the delay. See Whitney v. State, 334 Ark. 581, 976 S.W2d 391 (1998); Jones v. State, 334 Ark. 577, 976 S.W.2d 391 (1998). While this is not a case wherein the attorney has accepted full responsibility, it is a case where a circuit court found that an attorney’s mistake contributed to the untimeliness of appellant’s petition. This court has previously held that it will grant a belated appeal of an order denying a petition for postconviction relief if good cause is shown for the petitioner’s failure to adhere to time requirements. Chiasson v. State, 304 Ark. 110, 798 S.W2d 927 (1990); Peterson v. State, 289 Ark. 452, 711 S.W.2d 830 (1986).

We hold that good cause has been established in the instant case for petitioner’s failure to timely file his petition for postconviction relief under Rule 37. In light of the fact that this is a case involving the death penalty and the fact that Rule 37.5 has in effect cured the instant situation from recurring, coupled with the ambiguous circumstances surrounding appellant’s legal representation, and the requirements of due process, we hereby hold that fundamental fairness, in this narrowest of instances where the death penalty is involved, dictates an exception in the present matter to allow appellant to proceed with his Rule 37 petition.

Reversed and remanded.


author: TOM GLAZE, Justice.

text:
    Pearl ANTHONY v. STATE of Arkansas
    CR 98-1471
    2 S.W.3d 780
    Supreme Court of Arkansas
    Opinion delivered October 21, 1999

      Marsha Basinger, for appellant.

      Mark Pryor, Att’y Gen., by: James R. Gowen, Jr., Asst. Att’y Gen., for appellee.
   TOM GLAZE, Justice.

Appellant Pearl Anthony was previously tice. Anthony v. State, 332 Ark. 595, 967 S.W.2d 552 (1998), wherein she appealed from convictions of two counts of delivery of cocaine. She was sentenced to thirty years on each count, to be served consecutively. On appeal, we held the trial court had erred in allowing the State to introduce certain rebuttal testimony, and reversed and remanded the case. On remand and retrial of the drug counts, Anthony was again found guilty of both counts, but this time she received sentences of seventeen years on each count, to be served consecutively. Anthony brings this second appeal, raising one point for reversal - whether the trial court erred in denying Anthony’s motion for continuance. We hold the trial court’s ruling was correct, and, therefore, affirm.

On remand, Anthony’s appointed counsel was allowed to withdraw as attorney of record, and the deputy public defender, Marsha Basinger, was appointed at a pretrial hearing on July 15, 1994, to represent Anthony. Trial was set for August 10, 1998 - twenty-six days from the date of Basinger’s appointment. While Basinger entertained the idea of moving for a continuance immediately after her appointment, Anthony disagreed. Anthony also refused to give Basinger the names and addresses of potential witnesses. In her efforts to prepare for trial, Basinger sought a copy of the transcript of the first trial, but Anthony’s original counsel apparently misplaced his copy, and Basinger claims she determined the prosecuting attorney had checked out the only copy the court clerk had in his office. Basinger obtained a copy of the record two days prior to the Monday, August 10 trial. On Sunday, August 9, 1999, Anthony approved Basinger’s suggestion to pursue a continuance, which Basinger attempted to do on the day of trial prior to jury selection. Basinger apprised the trial judge that Anthony had just authorized her to seek a continuance, that Basinger still had not obtained the names of any witnesses from Anthony, that Basinger had only recently received a copy of the transcript of Anthony’s first trial, and that she simply had insufficient time to prepare for trial. The prosecuting attorney countered, stating the State was ready for trial and if Basinger had thought she needed more time for preparation, she could have done so earlier since she was not required to obtain Anthony’s permission to move for a continuance. The prosecutor also disputed that a copy of the first trial’s transcript was not available earlier than Basinger claimed.

After hearing counsel’s argument, the trial judge denied Anthony’s request for continuance, and the parties proceeded to trial. The case was tried on August 10th and 11th, with the State calling seven witnesses and Anthony one. As previously mentioned, the jury returned a verdict finding Anthony guilty.

In reviewing the case, the law is well established that the granting or denial of a motion for continuance is within the sound discretion of the trial court, and that court’s decision will not be reversed absent an abuse of discretion amounting to a denial of justice. Dirickson v. State, 329 Ark. 572, 953 S.W.2d 55 (1997). When deciding whether a continuance should be granted, the following factors are to be considered by the trial court: (1) The diligence of the movant; (2) the probable effect of the testimony at trial; (3) the likelihood of procuring the attendance of the witness in the event of a postponement; and (4) the filing of an affidavit, stating not only what facts the witness would prove, but also that the appellant believes them to be true. Id.; see also Turner v. State, 326 Ark. 115, 931 S.W.2d 86 (1996). Additionally, the appellant must show prejudice from the denial of the continuance, and when a motion for continuance is based on a lack of time to prepare, we will consider the totality of the circumstances; the burden of showing prejudice is on the appellant. Davis v. State, 318 Ark. 212, 885 S.W.2d 292 (1994). Finally, the court has also held that a lack of diligence alone is sufficient cause to deny a continuance. Id.

Here, Anthony simply waited until the last minute to apprise the trial court that she needed more time to prepare for trial. As already mentioned, she failed' to cooperate with her counsel in seeking a continuance, and, by counsel’s argument, failed to offer names of any witnesses. In addition, while Anthony’s counsel complains that she was unable to obtain a transcript of Anthony’s first trial until two days prior to the second trial, counsel fails to relate when she commenced looking for the transcript. The prosecutor, in fact, took issue with defense counsel’s assertion that the transcript was unavailable. Consistent with the State’s view, there is nothing in the record now before us that reflects that the prosecutor withheld or refused Anthony a copy of the earlier trial record. In sum, Anthony’s lack of diligence alone is sufficient to affirm the trial court’s denial of her request for continuance.

Anthony also fails to show that she was prejudiced by the trial court’s ruling. She neither filed an affidavit nor argued how her case would have been different. Instead, Anthony offered only conclusory statements that counsel needed more time to “go over” the first trial, to probe deeper into the realm of witnesses, and to talk more with Anthony about a plea she refused to consider. Although Anthony eventually obtained the names of the State’s witnesses and their testimonies given at the first trial, defense counsel did not particularize any testimony she believed needed further investigating for impeachment purposes. Anthony simply failed to specify, other than in general terms, what her defense counsel had failed to do that could have been done or what counsel did that she would not have done, if she had been afforded more time. Davis, 918 Ark. at 216, 885 S.W.2d at 294. Because she failed to do so, the trial court did not abuse its discretion in denying Anthony’s motion.

We must address Anthony’s strong reliance on Gonzales v. State, 303 Ark. 537, 798 S.W.2d 101 (1990), where this court reversed the trial court’s denial of the defendant’s motion for continuance for lack of preparation time. There, defense counsel learned only the day before trial that he had been appointed to represent Gonzales, and he immediately requested a continuance, informing the trial court that Gonzales was a Latin American who spoke little English. Gonzales’s counsel was also confronted with the difficulty in obtaining a competent interpreter in a timely fashion so counsel could even speak with Gonzales in order to prepare for the next day’s trial. In short, in contrast to Anthony’s situation, Gonzales’s counsel not only acted diligently when seeking a postponement, he also showed that he had been prejudiced because of Gonzales’s inability to speak with and to assist counsel in preparation for trial.

Although not cited or argued, .we also distinguish our more recent case of Greene v. State, 335 Ark. 1, 977 S.W.2d 192 (1998), where, in a capital murder case, the court held it was an abuse of discretion to permit Greene’s new counsel less than a month to prepare for a resentencing trial. This court stated that this was especially true since defense counsel had requested, but had not received as late as eleven days prior to trial, the record of Greene’s pretrial hearings that were conducted prior to counsel’s appointment. Nor could Greene’s new attorney obtain the trial court’s earlier rulings on motions and objections. Significandy, the court held the trial court had committed reversible error by having failed to hold a hearing on Greene’s objections to a mental evaluation report filed with the trial court prior to the appointment of Greene’s new counsel. Again, although this court has acknowledged that a last minute change in counsel may occasion, or require, a continuance in order to give the attorney time to prepare, such new counsel must still act with diligence in seeking a continuance, and demonstrate that the denial of a continuance would prejudice his or her case. Id. at 31. In Greene, defense counsel, upon his appointment, promptly requested a continuance, and the trial court denied the request. However, Greene’s counsel continued to renew his requests for postponement even though he was met with the same denials. In sum, Greene’s counsel acted with due diligence and specifically related to the trial court the rulings and record that were unavailing and how their absence, and the trial court’s refusal to give Greene time to obtain them, prejudiced Greene’s case. Anthony’s counsel has not shown such to be the case here.

For the reasons set out above, we uphold the trial court’s decision denying Anthony’s motion for continuance.

       The trial court stated Greene’s continuance motion would be denied because of the earlier delays caused by his hiring and firing counsel so often.