author: Robert H. Dudley, Justice. Tom Glaze, Justice,

text:
    Brenda Robinson WHITE v. Dennis WINSTON
    90-79
    789 S.W.2d 459
    Supreme Court of Arkansas
    Opinion delivered May 29, 1990

      George E. Butler, Jr., for appellant.

      Rose Law Firm, A Professional Association, by: Kenneth R. Shemin, for appellee.
   Robert H. Dudley, Justice.

On July 13, 1973, appellant, Brenda White, a single person, gave birth to a baby boy. In 1979, the County Court of Lee County found that appellee, Dennis Winston, was the father of the child and ordered him to pay child support. On de novo appeal the Circuit Court of Lee County affirmed the holding that appellee was the father of the child and owed a duty of support until the child reached the age of sixteen (16). At that time illegitimate children were entitled to child support only until they reached the age of sixteen (16). Ark. Stat. Ann. § 34-706 (Repl. 1962). In 1983, the law was changed to provide that illegitimate children are entitled to support until they reach the age of eighteen (18). Ark. Stat. Ann. § 34-706 (Supp. 1985).

In 1988, appellant, a resident of Florida, filed a petition in Florida pursuant to the Florida Revised Uniform Enforcement of Support Act, asking, among other things, that the period of time for child support be extended until the child reaches eighteen (18) years of age. The Florida circuit court, the rendering court, certified the appellant’s need for the prayed relief to the County Court of Washington County, the responding court. At that time, appellee Winston resided in Washington County.

After a hearing on the matter the county court ruled on the issues. The appellant appealed to the circuit court and that court, in turn, transferred the case to the Juvenile Division of Chancery Court of Washington County. The chancery court, on the appeal de novo, held that it did not have authority to extend the period of support payments. Appellant, Brenda White, appealed. The Court of Appeals certified the case to this court. We affirm.

Amendment 67 to the Constitution of Arkansas was adopted at the 1988 general election. Its effective date was January 1, 1989, but it was not self-executing. It provides:

The General Assembly shall define jurisdiction of matters relating to juveniles (persons under eighteen (18) years of age) and matters relating to bastardy and may confer such jurisdiction upon chancery, circuit or probate courts, or upon separate divisions of such courts, or may establish separate juvenile courts upon which such jurisdiction may be conferred, and shall transfer to such courts the jurisdiction over bastardy and juvenile matters now vested in county courts by Section 28 of Article 7 of this Constitution.

By the time the initial appeal of this case was heard, September 7, 1989, the implementing legislation had become effective. Among the implementing statutes is section 7 of Act 725 of 1989, found in the publisher’s notes to Title 9 Chapter 10 of the 1989 Supplement to the Arkansas Code Annotated. It provides that all paternity cases shall be heard in chancery court, and all cases pending in county court or on appeal to circuit court on July 1, 1989, were to be transferred to chancery court. Thus, the Washington County Circuit Court properly transferred the appeal to the Washington County Chancery Court.

The chancery court, in turn, correctly applied the 1989 statutes. Paternity had previously been established in the Lee County suit. Thus, Ark. Code Ann. § 9-10-109(a) (Supp. 1989) becomes applicable:

(a) Subsequent to the finding by the court that the defendant is the father of the child, the court shall follow the same guidelines, procedures, and requirements as set forth in the laws of this state applicable to child support orders and judgments entered by the chancery court as if it were a case involving a child born of a marriage in awarding custody, visitation, setting amounts of support costs and attorneys’ fees, and directing payments through the clerk of the court.

Thus, the chancery court is to treat this case just as though it were a child support proceeding subsequent to a divorce. In such a case, the chancery court that granted the divorce is the court that has continuing jurisdiction to modify the original allowance of child support. Rowe v. Rowe, 238 Ark. 423, 382 S.W.2d 370 (1964); Watnick v. Bockman, 209 Ark. 696, 192 S.W.2d 13 (1946). The reason is Ark. Code Ann. § 9-12-314 (Supp. 1989) provides: “The court, upon application of either party, may make such alterations. . . as to. . . maintenance, as may be proper. . . .’’The words “the court” in the above statute refer to the court that granted the divorce. Watnick v. Bockman, id. Since the original proceeding was in Lee County the modification must be in Lee County. There are exceptions to the foregoing rule, but they are not applicable to the facts of this case. See Ark. Code Ann. § 9-12-320 (Supp. 1989). A part of the Revised Uniform Enforcement of Support Act, Ark. Code Ann. § 9-14-311(b) (1987), provides in pertinent part that the complaint is to be “filed in the appropriate court of any state in which the obligee resides.” The appropriate court in this State, the State in which the obligee resides, is the court in Lee County.

The appellant contends that the Revised Uniform Enforcement of Support Act modifies the above stated law and places venue in Washington County. However, she does not favor us with a citation of statutory authority, and we are unable to find such. The appellant cites the cases of Elkind v. Byck, 67 Cal. Rptr. 404, 439 P.2d 316 (1968), and Olson v. Olson, 534 S.W.2d 526 (Mo. Ct. App. 1976), but those cases are not applicable to the case at bar.

Our research reveals only one case in point from other jurisdictions. In Northcutt v. Cleveland, 464 So. 2d 112 (Ala. Civ. App. 1985), the Alabama Circuit Court of Appeals held, as we do in this case, that the Revised Act defers to the venue statute of the responding state.

The dissenting opinion would reverse the trial court because, it contends, the appellee waived venue. We do not consider the issue because it was not argued below, and is not argued in this court. We do not reach out and find an unargued, issue on which to reverse a trial court.

Further, as previously set out, the chancery court is to treat this case just as though it were a child support proceeding subsequent to a divorce. In such a case, we do not allow venue to be waived unless specific conditions have been met. In Chappell v. McMillan, 296 Ark. 317, 756 S.W.2d 895 (1988), we wrote:

Chappell cites Arkansas State Racing Comm. v. Southland Racing Corp., 226 Ark. 995, 295 S.W.2d 617 (1956), for the proposition, with which we agree, that the objection to improper venue, unlike the objection to lack of subject matter jurisdiction, is waived by appearance. See Hargis v. Hargis, 292 Ark. 487, 731 S.W.2d 198 (1987), where we applied that concept in a divorce case. However, no case is cited where venue, once established, was held to have been changed by appearance, waiver, or consent of the parties. We hold that, to effect a change of venue for related proceedings subsequent to a divorce decree, there must be compliance with Ark. Code Ann. § 9-12-320(a) (1987), which provides specifically that the court in which the final divorce decree was rendered “may grant a change of venue for further action . . . when it is shown that both parties consent to a change of venue and the court of the chancery district to which the case is requested to be transferred is willing to accept the case for further proceedings.”

While the above statute was partially modified in 1989, see Ark. Code Ann. § 9-12-320 (Supp. 1989), the appellant has not qualified under the most recent change for a change of venue.

The dissenting opinion would also reverse the trial court for the reason that Ark. Code Ann. § 9-14-319 (1987) confers jurisdiction over appellee regardless of prior proceedings. Again, this statute was not argued by the appellant, and further, it is a contention we expressly reject.

Accordingly, we hold that the Juvenile Division of the Chancery Court of Washington County correctly refused to modify the support order from Lee County. The Washington County Chancery Court was not asked to transfer the case to Lee County.

Affirmed.

Hays and Glaze, JJ., dissent.

Tom Glaze, Justice,

dissenting. This court’s decision frustrates the purpose and operation of Arkansas’ Revised Uniform Reciprocal Enforcement Support Act (RURESA). RURESA’s chief purpose (and that of like Acts adopted in every state) is to accomplish an even-handed enforcement of support duties in all states. See H. Clark, Jr., Law of Domestic Relations § 6.6 (1968). The result reached here only serves, as Professor Clark puts it, to exhibit the vice of “hometowning” — the refusal to enforce the legitimate claims to support of a person from another state in order to protect the local domiciliary.

Here, under RURESA requirements and Arkansas laws, the Washington County Chancery Court acquired personal jurisdiction of the appellee, Dennis Winston, and Winston never questioned that court’s venue or jurisdiction over his person. Even if venue may have been a problem, as the majority suggests, this court has held recently that the venue of an action may be waived. Hargis v. Hargis, 292 Ark. 487, 731 S.W.2d 198 (1987).

Actually, this case was first heard and decided by the County Court of Washington County before the case was properly transferred to the Washington County Chancery Court in accordance with amendment 67 to the Arkansas constitution and its enabling laws. See Ark. Code Ann. §§ 16-13-601, 16-13-603 (Supp. 1989). The Washington County Court found it had jurisdiction of the parties and subject matter, but held Winston’s duty to support the parties’ child lasted only until the child reached the age of sixteen years. After this litigation was transferred to the chancery court, Winston appeared generally before that court, filed a brief and asked that the order and judgment of the Washington County Court be affirmed. Unquestionably, the Washington County Chancery Court had subject matter jurisdiction of this matter, as well as jurisdiction of the parties.

In accordance with RURESA’s provisions, and under Arkansas law, Winston’s duty to support his child is controlled or imposed by Arkansas law, since he was present in this state for the period during which support is sought. Ark. Code Ann. § 9-14-307 (1987). Unquestionably, Arkansas law, once paternity is established, provides support for a child until that child attains the age of eighteen years. Ark. Code Ann. § 9-10-111 (1987). Arkansas law further provides for the modification of any prior orders as justice may require and on notice given the defendant or father. See Ark. Code Ann. § 9-10-115 (1987). In sum, Winston and his attorney waived any venue issue by appearing before the Washington County Chancery Court; the court, having personal jurisdiction over Winston, erroneously held it had no power to extend his support obligations. On appeal, this court should declare that Arkansas law does provide Winston’s support obligations continue until his child is eighteen years old, and it should reverse and remand this case for further proceedings.

In its opinion, the majority states the waiver of venue issue mentioned in this dissent was never raised below. I agree. However, the reason waiver went unmentioned is because the parties and courts below never specifically addressed a venue problem. As previously noted, the county court determined it had jurisdiction of the parties and subject matter. On the appeal of that court’s decision, Winston asked the chancery court to affirm the county court’s holding, which gave appellant a judgment for past support in the sum of $2,400.00, but also limited Winston’s duty of support to when his child reached sixteen years old. The reason the chancery court dismissed appellant’s action is somewhat cloudy, but the chancellor’s letter opinion requested that the appellee prepare a precedent so as to dismiss appellant’s petition “for want of equity.” It is this court — not the appellee or chancery court — that relies on the venue statute, Ark. Code Ann. § 9-10-109(a), to support the theory that appellant should have brought her RURESA action in Lee County rather than Washington County, where Winston resides. Thus, it is only the majority that uses the venue statute to support its holding that Lee County is where appellant must bring its action, and then complains because I suggest the appellant waived any such venue claim.

For the most part, my analysis above assumes Arkansas’ venue law in paternity matters could prevent, unless waived, the trial court from deciding this matter. RURESA actions are not so restrictive. In fact, such reciprocal support actions are designed to avoid such procedural and technocratic nonsense as is evidenced by the venue issue discussed above and in the majority opinion. RURESA is intended to cut through such obstacles, so that persons obligated to pay child support will be made to pay it. One only has to read the RURESA provisions in Ark. Code Ann. §§ 9-14-319 and 9-14-333 (1987) to learn the law’s enforcement powers are designed to locate where the obligor resides and the enforcement officer (prosecuting attorney or Child Support Enforcement Unit) of that county proceeds against the obligor in the appropriate court of that county.

If, however, the enforcement officer determines the obligor or his property is in another county, the officer then must inform the court of this fact and its court’s clerk must forward the obligee’s RURESA documents to the court in the other county for enforcement by that other county’s enforcement officer. See Ark. Code Ann. § 9-14-319. This same procedure has intrastate application. See Ark. Code Ann. § 9-14-333.

Under the provisions of § 9-14-319, the Washington County Chancery Court had personal jurisdiction over Winston regardless of any prior proceeding still pending in Lee County, Arkansas, where neither of the parties now live. Proceeding under RURESA is a separate, independent action to enforce support obligations, and remedies provided under that Act are in addition to and not in substitution for any other remedies. See People ex rel. Oetjen v. Oetjen, 92 Ill. App. 3d 699, 416 N.E.2d 278 (1981); see also Revised Uniform Reciprocal Enforcement of Support Act (U.L.A.) § 3 (1987). RURESA confers jurisdiction over child support matters, notwithstanding prior or contemporaneous action in other proceedings. Horch v. Ponik, 132 Wis. 2d 373, 392 N.W.2d 123 (Wis. Ct. App. 1986).

The purpose of RURESA is to compel obligors, such as Winston, to meet their support obligations, whether the parents and child are in two different states or two different counties within a state. The majority court, by its decision, frustrates this law. Winston is obliged by law to pay support until his child is eighteen years old, and the Washington County Chancery Court, in my view, clearly has the power to see that obligation is performed.

For the above reasons, I dissent.

Hays, J., joins this dissent.


source: Caselaw Access Project

author: David Newbern, Justice. Steele Hays, Justice,

license: Public Domain

text:
    George K. ROGERS, Sr. v. MERCHANTS & PLANTERS BANK of Newport, Arkansas
    89-350
    789 S.W.2d 463
    Supreme Court of Arkansas
    Opinion delivered May 29, 1990

      Boyce & Boyce, by: Wayne Boyce, for appellant.

      Timothy F. Watson, Sr., for appellee.
   David Newbern, Justice.

This case presents the question whether an accommodation maker of a promissory note is discharged from liability on the note when the payee extends the time for payment four times, twice with the agreement of the accommodation maker and twice without such agreement, and each extension is for a time in excess of that prescribed for payment in the original note. We hold that the extensions which were not authorized by the accommodation maker discharged him from liability.

George K. Rogers, Sr., the appellant, signed as accommodation maker a note made by Bonita Kinder to the appellee, Merchants & Planters Bank of Newport, Arkansas. The note was for $25,000 and was payable in 30 days at W/2% interest. It came due on February 13, 1983, and was not paid. Kinder and Rogers signed an agreement with the bank extending the date of payment until August 5, 1983. Again the note was not paid. On December 7, 1983, the bank agreed with Kinder, but without Rogers’ consent, to extend the time for payment for another six months. At the end of that period the note remained unpaid. A third extension, this one also for six months, was obtained with Rogers’ consent on November 8, 1984. Again the note was not paid when due, and yet a fourth extension, this one without Rogers’ consent, was obtained on June 4,1985. The note remains unpaid, Kinder has taken bankruptcy, and the bank has sued Rogers on the note.

The note provided that the guarantor waived “consent that the time of payment may be extended without notice.” Ark. Code Ann. § 4-3-118(f) (1987) provides, in part, that “[u]nless otherwise specified consent to extension authorizes a single extension for not longer than the original period.” Ark. Code Ann. § 4-3-606(l)(a) (1987) provides that a holder of an instrument “discharges any party. . . to the extent that without such party’s consent the holder. . .agrees to suspend the right to enforce. . .the instrument.”

In McIlroy Bank & Trust v. Maestri, 297 Ark. 130, 759 S.W.2d 808 (1988), we dealt with a situation very similar to this one. The note in that case contained this language: “You [the holder] may . . . renew this note . . . without affecting my obligation to pay the loan amount.” We held that language permitted only one unauthorized extension for a term no greater than that in the original note. The guarantor had authorized two extensions after which the bank had permitted two further extensions not authorized by the guarantor, thus the guarantor was held to have been discharged. In holding that the language of the original note permitted only one extension not authorized by the guarantor we distinguished our decision in Gentry v. First American National Bank, 264 Ark. 796, 575 S.W.2d 152 (1979), in which the note being considered had stated the guarantor’s liability was absolute and “not affected or impaired by any . . . renewal. . . [emphasis added].” In the Gentry case we held that the language of the note specifically permitted more than one extension. See also Germer v. Missouri Portland Cement Co., 301 Ark. 277, 783 S.W.2d 359 (1990), where we held a guarantor’s specific agreement to permit an “extension of credit” without affecting liability on an original obligation was enforceable. In this case, the trial judge based his decision on the Gentry holding which we find to be distinguishable because here there was no language in the note now before us suggesting multiple renewals in excess of the time for payment of the original obligation could be allowed without discharging the guarantor.

While this case is more like the Mcllroy Bank decision, there is a difference. Here we have one extension authorized by the guarantor or accommodation maker in between two extensions which were not authorized by him. The question thus becomes whether the third extension, which Rogers signed, had the effect of permitting an unauthorized fourth extension for the same period as the authorized third extension. The answer is no. Each of the extension agreements, both those signed by Rogers and those he did not sign, provided specifically: “It is also further agreed and understood by the makers that all conditions and obligations of the note . . . made in connection with this original note by any of the parties hereto will remain in full force and effect.” The only means by which the fourth extension could have been binding upon Rogers is § 4-3-118(f) which provides that “consent to extension authorizes a single extension for not longer than the original period [emphasis supplied].” By their specific terms, the extensions signed by Rogers had no effect on the original period. The original period was 30 days. The fourth extension was for six months.

This case was decided by the trial court on the bank’s motion for summary judgment. The issue joined on appeal is whether the trial court misapplied the law. There is no contention that there were remaining genuine issues of fact remaining to be decided. We agree that the trial court erred in concluding that the Gentry case controlled the decision.

Reversed and dismissed.

Hays and Turner, JJ., dissenting.

Steele Hays, Justice,

dissenting. I agree that under Ark. Stat. Ann. § 4-3-118(f) (1987) a bank may not unilaterally extend payment of a promissory note more than once, or for a period longer than the original note, without releasing an accommodation maker. However, § 118(f) is prefaced by the words “unless otherwise specified” and where, as here, there are five successive extensions, each for a period of six months, the second and fourth of which are approved in writing by the accommodation maker, I believe the parties have substituted a period of time other than specified in the original note and in that circumstance a single additional extension by the bank is within the ambit of § 118(f).

The majority finds this case “very similar” to McIlroy Bank & Trust v. Maestri, 297 Ark. 130, 759 S.W.2d 808 (1988). But I believe Maestri has material differences which render it distinguishable: In Maestri, the bank made not one but two unilateral extensions and, second, they were made after Maestri objected to further extensions and called on the bank to collect from the borrower. I would affirm the order appealed from.

Turner, J., joins in dissent.


author: David Newbern, Justice.

text:
    Eddie WILLIAMS v. STATE of Arkansas
    CR 89-199
    789 S.W.2d 732
    Supreme Court of Arkansas
    Opinion delivered May 29, 1990

      Hale, Young, Green & Nixon, by: Milas H. Hale III, for appellant.

      Steve Clark, Att’y Gen., by: Kelly K. Hill, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

Eddie Williams appeals from a conviction of burglary and attempted rape. He was sentenced to ten years in prison for the burglary and thirty years for attempted rape of a nine-year-old girl. The only point raised on appeal is the violation of Williams’s right to effective counsel. We affirm the conviction because lack of effective assistance of counsel did not become an issue at the trial, and it is therefore not an issue which can be raised on appeal.

The conviction occurred in 1984. The evidence favorable to the state showed that Williams was discovered by the mother of the victim and a friend of the mother while Williams was lying on top of the victim in her bed with his pants down. The friend held Williams until the police arrived and arrested Williams. The evidence of guilt was overwhelming.

Williams sought relief pursuant to Ark. R. Crim. P. 37, which has since been repealed, alleging ineffective assistance of his counsel. He contended his counsel failed to investigate the case properly and thus failed to call two witnesses. The persons he thought should have been called testified in a matter unfavorable to Williams’s cause, and the relief was denied.

Because Williams wanted to appeal his conviction but no timely appeal was taken, a federal court ordered that he be given a belated appeal or released. The appeal permitted in response to the federal court order is the appeal before us now. Williams alleges in his brief that his counsel was ineffective because no opening or closing statements were made by his counsel at the trial. A claim of ineffective assistance of counsel may not be raised on appeal. Sumlin v. State, 273 Ark. 185, 617 S.W.2d 372 (1981). See Dokes v. State, 299 Ark. 178, 772 S.W.2d 583 (1989); Bishop v. State, 294 Ark. 303, 742 S.W.2d 911 (1988). An exception is made if ineffective assistance of counsel was asserted as the ground for a new trial. Lasiter v. State, 290 Ark. 96, 717 S.W.2d 198 (1986). The exception does not apply in this case.

Affirmed.


author: Tom Glaze, Justice.

text:
    Brigiette DUHON v. Carroll GRAVETT, Pulaski County Sheriff; Tommie Miller, Pulaski County Deputy; Bobby Jones, Pulaski County Municipal Court Administrator; and Pulaski County
    89-271
    790 S.W.2d 155
    Supreme Court of Arkansas
    Opinion delivered May 29, 1990

      James Depriest and Griffin J. Stockley, Central Arkansas Legal Services,for appellant.
    No brief filed.

      Steve Clark, Att’y Gen., by: Oían W. Reeves, Asst. Att’y Gen., for intervenor State of Arkansas.
   Tom Glaze, Justice.

Appellant challenges Arkansas’s postjudgment execution laws set out in Ark. Code Ann. §§ 16-66-101 to -422 (1987 and Supp. 1989). She argues the laws violate the due process clause of the 14th Amendment to the United States Constitution because they fail to provide the required notice and hearing to judgment debtors. The trial court rejected the appellant’s arguments below, and she brought this appeal.

The facts are undisputed. Appellant took her car to the Firestone Tire and Rubber Company for repairs and a dispute resulted over the work performed. Appellant stopped payment on her check, and Firestone filed suit against her, alleging nonpayment. Firestone obtained a default judgment and subsequently had the sheriffs office serve a writ of execution on the appellant at her residence, where a deputy sheriff seized her personal property, including mostly household goods and furniture. The deputy told appellant that she had a right to redeem her property prior to its sale. Sometime after appellant’s property was seized but before it was sold, she obtained counsel and brought suit for declaratory relief against Firestone and the appellees, who were the officials involved in the issuance and service of the writ of execution on appellant. In the suit, she asked the trial court to declare Arkansas’s postjudgment execution laws to be unconstitutional. Ultimately, appellant paid Firestone’s judgment in full and regained her property. She then dismissed Firestone from the suit, but pursued her constitutional claims in her action against the appellees. She also amended her complaint alleging she was entitled to further relief under 42 U.S.C.A. § 1983 and 42 U.S.C.A. § 1988 (1981).

Although appellees prevailed against the appellant’s claims below, they chose not to participate in this appeal, however, we granted the attorney general’s request to intervene on appeal. While he fails to actually defend the constitutionality of writ of execution statutes in issue, he contends this court should not reach appellant’s constitutional arguments because no justiciable controversy exists. The attorney general points out that the appellant redeemed her property a few days after it was seized so, even if she had been entitled to certain notices which she did not receive, she was never harmed or damaged. In sum, the state concludes the appellant is not being threatened with enforcement of the statutes she now questions, so she does not have standing to request they be declared unconstitutional.

Undoubtedly, appellant’s redemption of her property rendered moot the justiciable controversy between her and Firestone. Nevertheless, where considerations of public interest or the prevention of future litigation are present, the choice remains ours as to whether we may elect to settle an issue, even though moot. Owens v. Taylor, 299 Ark. 373, 772 S.W.2d 596 (1989). Future litigation may well be curtailed by our decision to resolve the issues presented in this appeal even though the controversy between the parties is moot, but the main reason we are compelled to go forward is based on the fact that a substantial question exists underlying the constitutionality of Arkansas’ writ of execution laws that will affect countless numbers of Arkansans each year. We note that debtors, in prior actions, have successfully raised similar constitutional questions concerning flaws in Arkansas’ postjudgment garnishment statutes and its prejudgment attachment laws. See Davis v. Paschall, 640 F. Supp. 198 (E. D. Ark. 1986); McCrory v. Johnson, 296 Ark. 231, 755 S.W.2d 566 (1988).

The primary argument raised in this matter concerns appellant’s charge that Arkansas’ writ of execution laws fail to give judgment debtors, such as herself, written notice that they have a right to claim certain federal and state exemptions. Recently, we held Arkansas’ prejudgment attachment code provisions unconstitutional because those laws failed to provide that debtors be given notice of possible state or federal exemptions. McCrory, 296 Ark. at 236-240, 755 S.W.2d at 568-571. In reaching our decision in McCrory, we relied in part upon the holdings in Davis v. Paschall, 640 F. Supp. 198, and Dionne v. Bouley, 757 F.2d 1344 (1st Cir. 1985). The Davis court, in considering the constitutionality of Arkansas’s postjudgment garnishment statutes stated the following:

The court [in Dionne v. Bouley], agreed with the holdings in Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) and Brown v. Liberty Corp., 539 F.2d 1355 (5th Cir. 1976) that due process does not require notice or hearing before a postjudgment attachment but held that once the attachment is made, removing the possibility that the debtor will secrete his assets, the debtor must be notified and given a timely opportunity to challenge any sequestration of his property which the law makes unattachable. The court reasoned that this was required because an unlawful attachment of the debtor’s exempt property affects the debtor’s rights in a way in which the judgment does not, citing Griffin v. Griffin, 327 U.S. 220, 66 S.Ct. 556, 90 L.Ed. 635 (1945). Dionne, 757 F.2d at 1352. The court held that, in order for a postjudgment statute to pass constitutional muster, the debtor must be informed of the attachment and of the availability of a prompt procedure to challenge the attachment, together with the fact, generally stated, that there are certain exemptions under state and federal law which the debtor may be entitled to claim with respect to the attached property. Id. at 1354.

Davis, 640 F. Supp. at 202. (Emphasis added.)

In considering the above, the court in Davis determined our postjudgment garnishment statutes unconstitutional because, among other things, the statutes did not provide the judgment debtor with notice of the garnishment for possible state and federal exemptions, and they did not provide for a prompt hearing to allow the debtor to claim his or her exemptions.

In the present case, the writ of execution statutes provide for procedures, including provisions for hearings, whereby a judgment debtor may claim all exemptions to which he or she is entitled by law. See, e.g., Ark. Code Ann. §§ 16-66-211 to -218 and 16-66-301 to -304 (1987). These procedures further provide a debtor may select what property must be sold to satisfy the execution, and as stated in Wade v. Deniston, 180 Ark. 326, 21 S.W.2d 424 (1929), the Arkansas law in this respect contemplates that the judgment debtor shall have notice of the levy upon his property. See Ark. Code Ann. § 16-66-401 (1987). However, while case law appears to require that notice be given debtors of such a levy, Arkansas statutory law does not provide for it. Notwithstanding this notice of levy problem, Arkansas statutes clearly fail to provide debtors be given notice that they have a right to claim possible state or federal exemptions.

Thus, Arkansas postjudgment exemption laws adequately provide for procedures and hearings by which a judgment debtor may exercise his or her rights to exemption claims or the return of levied property. However, it is the lack of a requirement of notice to the judgment debtor that makes statutory provisions such as §§ 16-66-211 and 16-66-401 constitutionally deficient. With proper notice to the judgment debtor, that aspect of the due process mandate of the 14th amendment is satisfied.

In so holding, we add that the notice, to be constitutional, need not supply the judgment debtor with a “laundry list” of statutory or constitutional exemptions or inform him or her of all available exemptions. Dionne, 757 F.2d at 1354. Such notice need only inform the debtor that postjudgment execution is being levied and that state and federal exemptions may be available with respect to the property subject to the levy. Id.;see, e.g., Ark. Code Ann. § 16-110-402 (1987).

Finally, in anticipation she might prevail in this appeal, appellant requests that appropriate attorney’s fees be awarded her in accordance with 42 U.S.C.A. § 1988. We remand this matter to the trial court for its consideration of this request, since that court, as yet, has not properly been given the opportunity to pass on the issue of attorney’s fees.

For the reasons given above, we reverse and remand.


author: Tom Glaze, Justice. Dale Price, Justice,

text:
    Louella M. SCROGGINS v. Sammy Joe SCROGGINS
    90-23
    790 S.W.2d 157
    Supreme Court of Arkansas
    Opinion delivered May 29, 1990
    [Rehearing denied June 25, 1990.]

      Jack M. Lewis, for appellant.

      Elcan & Sprott, by: Frank C. Elcan II, for appellee.

      Turner and Price, JJ., would grant rehearing.

   Tom Glaze, Justice.

The case involves a modification and increase in child support awarded by the trial court. The appellant argues the chancellor erred by increasing the child support only $125.00 per month, failing to award the family chart amount required under Ark. Code Ann. § 9-12-312 (Supp. 1989), in awarding only $1,000.00 attorney’s fees and in allowing appellee to pay trust funds for the college expenses of the parties’ child, Letha Mae, directly to the child, college or the provider of services, rather than to the appellant. We affirm.

The parties were divorced in October of 1976 and by agreement the appellee was required to pay appellant “$400.00 per month for the support, maintenance, care, and education of the [parties’ two] children.” Appellee agreed to continue support “until the attainment of the childrens’ majority ages, or their death, except, however, if the children are full-time students at an institution of higher learning, then until the children are 21 years of age.” In 1979, the child support was increased to $475.00 per month. Apparently appellee paid the required support payments until August of 198 8 when Letha Mae turned 18 years old and enrolled in college. Appellee then divided the monthly support payments by paying Letha Mae one-half, or $237.50, and the other half to the appellant for the parties’ son. Appellant petitioned the court to hold the appellee in contempt, and requested an increase in child support as well as attorney’s fees. The issues surrounding the divided support payments and contempt charges were resolved and are not a part of this appeal.

First, we should point out that the issues concerning the child support award, the education payments and attorney’s fees were thoroughly considered by the court at several hearings. The trial court signed two separate orders containing lengthy detailed findings, that were entered respectively on October 10, 1989, and on November 7, 1989. The initial order contained four pages of findings and the second or amended order was eleven pages in length. Next, we should preliminarily note that this court has long held that ordinarily the amount of child support lies within the sound discretion of the chancellor, Meeks v. Meeks, 290 Ark. 563, 721 S.W.2d 653 (1986),and the chancellor’s finding will not be disturbed on appeal in the absence of a showing of an abuse of discretion. Grady v. Grady, 295 Ark. 94, 747 S.W.2d 77 (1988).

In her first two arguments, appellant questions the $125.00 per month increase awarded by the chancellor and contends the monthly amount should be more. She argues he abused his discretion in making the award and that he failed to follow the family chart amount, as required by law.

The statutory law relied on by appellant is set out in Ark. Code Ann. § 9-12-312. That section in relevant part provides as follows:

(a)(1) When a decree is entered, the court shall make such orders concerning the alimony of the wife or the husband and care of the children, if there are any, as are reasonable from the circumstances of the parties and the nature of the case. . . .
(2) In determining a reasonable amount of support, initially or upon review to be paid by the noncustodial parent, the court shall refer to the most recent revision of the family support chart. It shall be a rebuttable presumption for the award of child support that the amount contained in the family support chart is the correct amount of child support to be awarded. Only upon a written finding or specific finding on the record that the application of the support chart would be unjust or inappropriate, as determined under established criteria set forth in the support chart, shall the presumption be rebutted.
(3) The family support chart shall be revised at least once every four (4) years by a committee to be appointed by the Chief Justice of the Arkansas Supreme Court to ensure that the support amounts are appropriate for child support awards. The committee shall also establish the criteria for deviation from use of the chart amount.
(4) The Arkansas Supreme Court shall approve the family support chart and criteria upon revision by the committee for use in this state and shall publish same through per curiam order of the court.

Appellant argues that § 9-12-312 went into effect on October 1, 1989, and because the trial court’s orders here were entered on October 10 and November 7, 1989, the court failed either to apply and award the chart amounts required under § 9-12-312 or to set out its findings that would rebut the amount presumptively called for by the chart when considering appellee’s income. Appellant also contends the chancellor was wrong in refusing to apply the chart because the chart amount did not extend far enough to cover the amount of appellee’s income.

As already noted, the trial court awarded additional child support and no one questions that a material change in circumstances has occurred warranting such an increase. In fact, the chancellor went into great detail in his findings which reflect the appellant’s monthly budget, her income and the needs of the parties’ children. After specifically setting out these monthly figures, the chancellor determined the appellant needed $592.95 above her own income in order to care for the children, and he increased child support to $600.00 per month.

Appellant, however, contends the $600.00 amount is insufficient and the amount would have been greater if the chancellor had not refused to consider the family support chart. The chancellor, in fact, did consider the chart, and in doing so, he attempted, by using figures on the existing chart amounts, to project monthly support amounts that would cover a large income such as that earned by appellee. Appellee is a physician and apparently grosses approximately $300,000.00. The court considered appellee’s net annual income of $194,756.00 and calculated that the monthly chart amount would be $1,750.00 for one child. This amount deviated somewhat from the amount projected by appellant’s attorney, but regardless of whose projected chart amounts were used, the chancellor proceeded to explain in written detail why such projected chart amounts were inappropriate.

In addition to appellant’s monthly income and expense amounts which the chancellor detailed in his order, he specifically mentioned that appellant had presented no proof concerning any other things that the children needed or to which they were entitled, considering their station in life. The chancellor also pointed out that the appellant’s budget, presented at trial, included her own living expenses, which were not segregated from the total expenses. Nor did she show the expenses of the parties’ son, who lives with her or set out those lesser amounts she spends on Letha Mae, who comes home from college three or four nights per week. In fact, Letha Mae testified that she needed no increase in support. The trial court found further that the childrens’ medical, orthodontia, dental and hospital expenses are provided by the appellee, and in addition the chancellor recognized that appellee had voluntarily established an irrevocable trust fund for the childrens’ college education and the fund currently totaled $38,000.00 for each child. Further, the appellee provided both children with clothes, motor vehicles and provided the insurance and all maintenance costs. For these items and college expenses alone, appellee pays annually over $13,000.00 for Letha Mae only. This annual sum does not include the $600.00 support payment appellee pays each month.

Although the chancellor expressed uncertainty as to whether § 9-12-312, as amended by Act 948 of 1989, should apply to this case, he considered and correctly applied it anyway. Indeed, he made specific findings spelling out why the support chart was inappropriate considering the pertinent factors in this case.

On February 5, 1990, we issued, in accordance with § 9-12-312(a), our per curiam which adopted the most recent weekly family support chart. In Re: Guidelines for Child Support Enforcement, 301 Ark. 627 (1990). In that per curiam, we stated that it shall be sufficient in a particular case to rebut the presumption that the amount of child support calculated pursuant to the family support chart is correct, if the court enters in the case a written finding or specific finding on the record that the amount so calculated, after consideration of all relevant factors, is unjust or inappropriate. Again, the chancellor here did just that, and we cannot say he abused his discretion when considering those factors and applying them in written detail in this case.

In connection with support payments made by appellee, the appellant also argues the chancellor erred in providing appellee could pay all college expenses directly to Letha Mae, the college or provider of services. She claims this arrangement violates the parties’ earlier agreement under which appellee was required to pay appellant “for support, maintenance, care and education of the children.” We disagree.

The court ordered the $600.00 monthly child support payment made by appellee must be payable to appellant and paid through the clerk of the court. Appellant still furnishes Letha Mae a room while she attends college, and certainly the appellant is entitled to those support monies that aid in underwriting Letha Mae’s expenses. The chancellor, however, recognized appellee’s obligation to pay Letha Mae’s college expenses, and in addition to ordering appellee to do so, the chancellor determined that it was unnecessary, and would unduly delay matters, to pay these expenses through the appellant. We have, of course, recognized that a contract made for the benefit, and the college expenses, of a child past its majority is a contractual right which the child, upon reaching majority, may enforce in his or her own name. See Worthington v. Worthington, 207 Ark. 185, 179 S.W.2d 648 (1944).

Here, the chancellor carefully directed appellee to pay those monthly child support monies of $600.00 to appellant which would assure that Letha Mae’s ongoing monthly expenses would be met as she attended college. By the same token, the chancellor determined the appellee’s payments toward Letha Mae’s actual or direct college expenses should be made directly to her, the college or provider so no delay would occur. There is no evidence that this arrangement has been abused by Letha Mae or appellee. Accordingly, we find no abuse of discretion by the chancellor in this regard.

Finally, we consider appellant’s contention that the trial court erred in awarding only $1,000.00 in attorney’s fees. Appellant requested $2,094.20. In Ark. Code Ann. § 9-12-309(a) (Supp. 1989), the trial court is given authority during the pendency of the divorce to award a reasonable fee for the wife’s or husband’s attorney. Under provision (b) of that section, the court may allow either party additional attorney’s fees for the enforcement of support provided in the decree. In Wilson v. Wilson, 294 Ark. 194, 741 S.W.2d 640 (1987), we held that a trial court has considerable discretion in the allowance of attorney’s fees in a divorce case. We have also acknowledged that the chancellor is in a better position to evaluate the services of counsel than an appellate court, and, in the absence of clear abuse, the chancellor’s fixing of an attorney’s fee will not be disturbed on appeal. Id.

Appellant points to the disparity of the parties’ respective incomes when arguing she is entitled to the entire amount requested. Such factor, while relevant, cannot alone justify an award of attorney’s fees. Appellant submitted an itemized bill to the chancellor and the chancellor was in a better position to analyze that statement in light of the pleadings, motions, orders, conferences and hearings filed or conducted in this matter. From our review, we cannot say the chancellor erred in awarding the amount he did. As for appellant’s request for attorney’s fees in this appeal, we award an amount in the sum of $1,000.00

For the reasons stated above, we affirm the trial court in all respects.

Turner and Price, JJ., dissent.

Dale Price, Justice,

dissenting. I respectfully dissent. I am disturbed by the majority’s refusal to try this case de novo and require the non-custodial parent to pay child support, using the chart as a guide and taking into consideration the relative ability of each party to pay.

It is shocking to me that the relative income of the parties was not given any weight, either by the chancellor or this court, in determining whether the child support chart should be applied to the non-custodial parent. In my opinion, the bench, bar and public in general need to be instructed that, for those people with incomes above $3,000 per month, the chart may be interpolated to arrive at the correct amount of support. Thereafter, if the amount of support which would normally be payable is greater than the needs of the child or children, the chancellor, by written findings, may make such reduction as is reasonable.

In this case, the mother had asked for child support to help her with her claimed monthly household budget of $2,742.95. This figure included $850 per month for the oldest child’s college expenses. The chancellor found that the mother’s income was $ 1,300 per month. The father’s income was $ 194,756 per year, or, for chart purposes, $16,229.99 per month. The court found that the $850 should be deducted from the mother’s request because the child’s trust was providing for her college expenses. Next, the chancellor deducted the mother’s $1,300 monthly income from the request, leaving approximately $600 in expenses not covered by her budget. That amount was assessed to the father to pay as child support.

The chancellor’s holding requires the custodial parent to expend 100 % of her net monthly income, meager as it is, before the non-custodial parent is required to contribute to his children’s expenses. If the mother had earned an additional $600 per month, bringing her total income to $1,900 per month, under the judge’s ruling, the father would contribute nothing. Common sense and fairness dictate that this is not the intent of our support chart. It is not, or at least in my view should not be, the law with reference to child support.

The chancellor also stated that he did not use the support chart because it did not go as high as the father’s earnings, but that if he had, according to his interpretation, the father would be paying $1,750 per month for one child, or a total of $3,268 per month for two children as child support. That is a far cry from $600 per month for two children.

I do not wish to conclude this dissent without applauding the father, who has set up trust funds of approximately $38,000 for each child and purchased a car and paid the insurance on it for the oldest child. He had the ability to do so, and this is as it should be. However, it should not be required that the custodial parent be expected to expend all her earnings before the non-custodial parent kicks in to supply the basic day-to-day living expenses of the children.

I would amend the per curiam delivered February 5, 1990, In re: Guidelines for Child Support Enforcement, 301 Ark. 627, 784 S.W.2d 589 (1990), to require that in cases of those noncustodial parents whose income exceeds the amounts shown on the chart, support should be increased by 10% per $100 of earnings per child, not to exceed 50%. I would also require the chancellor to take into consideration the relative disposable income of each parent in setting child support.

For these reasons, I dissent.

Turner, J., joins the dissent.

       We noted the following relevant factors in the per curiam: food, shelter and utilities, clothing, medical and educational expenses, accustomed standard of living, insurance and transportation expenses.


text:
    Kirt Douglas WAINWRIGHT v. STATE of Arkansas
    CR 89-79
    790 S.W.2d 420
    Supreme Court of Arkansas
    Opinion delivered May 29, 1990

      Edward F. Cochran, and Malaby & Shumaker, by: David Malaby, for appellant.

      Steve Clark, Att’y Gen., by; Oían W. Reeves, Asst. Att’y Gen., and John D. Harris, Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

Appellant was convicted of capital murder for the robbery and shooting of Barbara Smith, a convenience store clerk in Prescott. He was sentenced to death by lethal injection. On appeal, appellant raises sixteen points for reversal, but we find none of the points have merit.

We first consider appellant’s contention that the trial court erred in denying his motion for directed verdict. Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984). In doing so, we note the state was required to prove (1) the appellant, acting alone or with one or more persons, committed or attempted to commit the crime of robbery; (2) in the course of and in furtherance of that crime or in the immediate flight therefrom, the appellant or a person acting with him, caused the death of Smith under circumstances manifesting an extreme indifference to the value of human life. See Ark. Code Ann. § 5-10-101 (a) (Supp. 1989). Here, robbery is the underlying felony, so the state had to prove the appellant, with the purpose of committing a theft or resisting apprehension immediately thereafter, employed or threatened to employ physical force upon another. Ark. Code Ann. § 5-12-102 (1987). In reviewing the sufficiency of the evidence, this court views the testimony in the light most favorable to the appellee, and affirms if there is any substantial evidence in support of the verdict. Williams v. State, 289 Ark. 69, 709 S.W.2d 80 (1986).

Although no one saw appellant shoot Smith, witnesses did see the appellant run from the Best Stop convenience store immediately after Smith was shot. Octavia Hardamon, who personally knew appellant, said that she saw appellant leave the store with a pistol in his hand. Pauline Henagen testified that, when she entered the store, she saw Ms. Hardamon. She also saw a tall, young black man, wearing red flowered shorts, leave the store, and while she never identified appellant’s face with that of the man who left the store, Henagen did identify the shorts the appellant was wearing when he was apprehended as the ones she saw on the man at the store. Sam Gatlin was outside the store when he saw appellant run from the store and enter a pink Cadillac.

Another witness, Patrick Flenory, age fourteen years, knew the appellant, and recognized him running out of the store and getting in a pink Cadillac, which afterwards was driven in a manner that caused it to almost run over Flenory. Elnora Hopson, whom appellant lived with, stated that, on the day of the crime and at near the time the shooting occurred, appellant entered her house, went into the bedroom, got his clothes and came out “pretty quick.” Hopson’s grandson later that same evening found checks stamped “Best Stop” in the Hopson house. Best Stop’s owner testified that $329.00 in checks and $374.00 in cash were missing.

On the night of the shooting, Hope police officers stopped a pink Cadillac, which contained appellant and two other black males. Appellant was in the back seat of the car, and was wearing the flowered shorts, which were later identified by Henagen. The officers found a .22 caliber pistol, money and a maroon bag in the car’s back seat. The pistol had some empty chambers, and although the state could not prove for sure that the gun found in the car fired the shot that fatally wounded Smith, the state’s expert witness did say that the fatal round was fired from a pistol just like the one found in possession of appellant.

The foregoing evidence, while circumstantial, clearly supports the state’s charge that the appellant killed Barbara Smith in the course or furtherance of a robbery. At this point, we mention that the appellant raised the defense that he did not commit the homicidal act and, in this vein, he mentions that no gunshot residue was found on him nor was blood found on his clothes. See Ark. Code Ann. § 5-10-101(b). An alleged accomplice, Dennis Leeper, on the other hand, had gunshot residue on his hand. Other evidence, however, indicated appellant may have had time to wash his hands after the shooting when he stopped to pick up his clothes, and that the residue on Leeper’s hand could have been caused merely by his having handled the gun after it had been fired. After the state met its burden in proving the elements of capital murder, appellant simply failed to meet his burden of proving his affirmative defense. See Fairchild v. State, 284 Ark. 289, 681 S.W.2d 380 (1984).

Next, we review appellant’s claim that the trial court erred in failing to grant a change of venue. Appellant offered three witnesses in support of his request for a new venue. Two witnesses were associated with area newspapers, and they related the various articles published regarding Smith’s murder. However, both witnesses opined that the appellant could obtain a fair trial in Nevada County. It was also shown that most of the publicity surrounding this murder ended about two months prior to the date of trial. While the third witness expressed doubts that the appellant could receive a fair trial in the county, she indicated she could be fair if she was selected as a juror. Most of the jurors admitted to some exposure to pretrial publicity, but on voir dire they all announced they could give the appellant a fair trial. Appellant had the burden of showing that a fair trial is not likely to be had in the county, and the trial court’s decision on the issue will be upheld unless it is shown the court abused its discretion. Gardner v. State, 296 Ark. 41, 754 S.W.2d 518 (1988). Again, appellant failed to meet his burden, and the trial court’s ruling must stand.

Citing Ake v. Oklahoma, 470 U.S. 68 (1985), appellant argues error resulted from the trial court’s denial of funds for him to hire a psychiatric expert. In Parker v. State, 292 Ark. 421, 731 S.W.2d 756 (1987), we held that the defendant’s right to an examination under Ake is adequately protected by the examination at the state hospital, an institution which has no part in the prosecution of criminals.

The state hospital’s evaluation of appellant showed he was competent, but suffered from cocaine abuse. Nonetheless, the trial court informed appellant that it would allow funds for further psychiatric evaluation if he could show it was necessary. Douglas Stevens, a clinical psychologist who subsequently examined the appellant, opined that while the state hospital properly assessed appellant’s capacity to stand trial, the hospital did not explore areas that impacted on mitigating circumstances. He said that appellant had an attention deficit disorder with hyperactivity as a child and that this disorder developed into associated behavioral problems, such as problems in conforming his behavior to the requirements of the law. Appellant proffered other testimony by Stevens indicating that Stevens, if paid, would have done more background work which might have resulted in raising the issue of appellant’s temporary insanity at the time of the crime.

In sum, the record reflects the appellant was provided $840.00 to pay Stevens for his evaluation even though appellant had been evaluated by the state hospital. Stevens, at trial, conceded that he was not saying that the appellant could not have kept from killing the victim. He added that the appellant was capable of helping his attorney, and he knew the difference between right and wrong.

We cannot say the trial court erred in refusing to furnish the appellant additional funds under these circumstances. We conclude this point by noting the appellant benefited from the funds that the trial court awarded by using Stevens’ testimony in the penalty phase of the trial as to appellant’s childhood behavioral problems and their effect on the appellant now. Furthermore, Stevens testified that he believed the appellant could benefit from the structured life of a prison.

We next review appellant’s claim regarding four statements he gave the police after his arrest on the night of July 29, 1988. His fourth statement was the only inculpatory one. He argues this statement (and the second one) introduced by the state should have been suppressed. In his fourth statement, the appellant admitted that he had been seen leaving the convenience store, and that, if he did anything, he did it himself and the others did not know about what happened. He concluded the statement by saying, “You got me man.”

In considering this argument, we must make an independent determination of the voluntariness of a confession, but do not set aside the jury’s finding unless it is clearly against the preponderance of the evidence. Jackson v. State, 284 Ark. 478, 683 S.W.2d 606 (1985). Some of the factors we have considered in determining whether a statement was voluntarily made include the youth of the accused, lack of education, low intelligence, lack of advice of constitutional rights, length of detention, repeated and prolonged questioning, and the use of physical punishment. Id. We have stated that conflicts in the testimony as to voluntariness are for the trial court to resolve. Id.

The appellant was read his rights upon his arrest, and before giving his first statement, he initialed and signed the rights form at about 10:08 p.m. on July 29, 1988. On July 30, 1988, at 1:00 a.m., he was shown the previously executed rights form again when he gave his second nonincriminating statement, which read much like his first. Appellant’s third statement was more detailed but still was nonincriminating like his first two. Before giving this statement, he executed a second rights form at 5:45 p.m. on July 31.

At 8:45 p.m. on July 31, he volunteered his fourth statement, which was the incriminating one. While the appellant did not execute a new rights form, an officer asked him if he remembered what his rights were, and the appellant said yes. Our court, in Cope v. State, 292 Ark. 391, 730 S.W.2d 242 (1987), held there is no requirement that the Miranda warnings, when properly given, must be repeated each time the defendant is questioned. Here, the record indicates the appellant was properly advised of his constitutional rights and that his statements were given after a relatively short period of detention and without undue or prolonged questioning.

Furthermore, on the voluntariness issue, the record shows the appellant was twenty-two years old, had a tenth grade education, and could read and write. According to the police officers’ testimony, the appellant appeared to be sober and coherent at the questioning sessions. The police officers testified that he was not coerced or threatened and that each time the appellant spoke he did so voluntarily, without asking for a lawyer. The appellant, himself, initiated the fourth statement. He asked to speak to Lt. Duvall and voluntarily gave his statement. The appellant was allowed to review his statements, and he crossed out several lines in the fourth statement. Although he did speak to the officers four times, there is no indication that these sessions lasted for a long time. Accordingly, we hold the trial court should be sustained on this issue.

Appellant raises two juror issues, the first concerning his charge that, after he had exercised all of his peremptory challenges, he should have been granted a motion to strike venireman Larry Gilleylen for cause. Gilleylen stated that he had read about the murder in the newspapers. He initially said that he felt the appellant was guilty unless he was shown evidence that would sway him the other way. However,-when the state explained that he would be instructed to give the appellant the presumption of innocence and that the state must prove his guilt, Gilleylen responded that he would give appellant the presumption of innocence and could give him a fair trial. Appellant also complains that Gilleylen was biased because he thought appellant should get the severest penalty if the evidence was sufficient. However, Gilleylen concluded that, under certain circumstances, life without parole would be an appropriate punishment. He stated that he would consider both penalties and wait for the facts “to tell him which one to apply.”

Jurors are presumed unbiased, and the burden of proving actual bias is on the party challenging the juror. Gardner, 296 Ark. 41, 754 S.W.2d 518. The question of a juror’s qualifications rests within the sound discretion of the trial court, and the proper test is whether the prospective juror can lay aside his impression or opinion and render a verdict based upon the evidence in court. Swindler v. State, 264 Ark. 107, 569 S.W.2d 120 (1978). Here, the trial court found Gilleylen could reach a fair verdict based upon the evidence, and we are unable to say the trial court erred in doing so.

Appellant’s other juror issue involves his contention that his mistrial motion should have been granted because a systematic exclusion of blacks existed in violation of the principle set out in Batson v. Kentucky, 476 U.S. 79 (1986). In Batson, the Supreme Court held that a criminal defendant has the right to be tried by a jury whose members are selected pursuant to nondiscriminatory criteria. It further held that the Equal Protection Clause guarantees the defendant that the state will not exclude members of his race from the jury venue on account of race or on the false assumption that members of his race as a group are not qualified to serve as jurors. A defendant, under the Batson decision, must establish a prima facie case of purposeful discrimination, and if such a showing is made, the burden then shifts to the state to give a neutral explanation for the questioned challenges. Smith v. State, 294 Ark. 357, 742 S.W.2d 936 (1988). The prima facie case may be made by showing one of the following: (1) the totality of the relevant factors gives rise to an inference of discriminatory purpose; (2) the total or seriously disproportionate exclusion of Negroes from the jury venires; or (3) a pattern of strikes, or questions and statements by a prosecuting attorney during voir dire. Ward v. State, 293 Ark. 88, 733 S.W.2d 728 (1987).

Here, appellant is a black man, who was accused of killing a white woman. The jury seated for trial had one black juror. Nine black veniremen were on the panel at the time individual voir dire began, but the trial court excused seven of them because of their beliefs about the death penalty. Of the remaining panelists, Margaret Jones was seated and Gladys Blakely was the only black excluded by peremptory challenge. The state struck her because of her expressed views on the death penalty. Blakely, expressing her religious views, said that she did not believe in the death penalty. After questioning by the defense, she later stated that it was possible that she could consider the death penalty and that she did not oppose it. From these facts, we conclude the appellant failed to establish a prima facie case, but even if he had done so, the state clearly offered a neutral explanation for challenging Mrs. Blakely.

Appellant also argues the trial court should have granted a mistrial because the state seated the victim’s family on the front row of the courtroom. Before the jury was seated, the prosecutor remarked to the judge that a group of students were on the front row and that certain family members of the victim should have those seats so they could hear. Appellant objected, and the court took no action on the request. Sometime later, an associate of the prosecutor apparently got the students to move and the family members sat on the front row before the jury. Appellant moved for a mistrial. The court concluded that it had not ordered the prosecutor not to move the family; however, the court then told the prosecutor not to sit them in any particular place in the courtroom and to tell them they may sit wherever they could find empty seats.

Appellant cites the case of Booth v. Maryland, 482 U.S. 496 (1987), but here, unlike in Booth, nothing in the record reflects the victim’s family members acted emotionally during the trial. In fact, we find nothing that even indicates the jury was aware the people, occupying the front row, were family members of the victim. The appellant showed no prejudice that may have resulted from the seating of the family members, so he has no ground for complaint. Webster v. State, 284 Ark. 206, 680 S.W.2d 906 (1984).

Citing A.R.Cr.P. Rule 17.1(a)(ii), appellant next urges that the trial court erred in denying the appellant’s mistrial motion based upon the nondisclosure of two oral statements allegedly made by the appellant. As to one statement offered through officer Lt. Duvall, who testified concerning a trace metal test given appellant, the trial court was confronted with a swearing match. The purported statement attributed to appellant was that Duvall “would not get anything off his hands.” Appellant’s counsel said that he was never furnished this statement. The prosecutor answered that counsel for appellant knew about the statement at least two weeks before trial and that the parties discussed the statement the day before the appellant’s objection was made. It is the trial court’s function to resolve such conflicts, and the court determined that the state disclosed the statement as soon as the prosecutor learned about it. We hold the trial court did not abuse its discretion by denying the appellant’s motion for mistrial. Furthermore, appellant showed no prejudice since appellant’s statement that Duvall would not find anything by the test could also mean the appellant knew he was innocent.

The second oral statement was offered by the state during the punishment phase of the trial. The state asserts it learned of this statement only after the appellant testified. Robert Johnson, a trustee at the county jail on a work-release program, approached the prosecutor and told him the appellant had lied when he claimed he signed the statement, implicating himself of the murder, only after he was beaten by the police. Johnson told the prosecutor that he had been posted to guard Leeper, an alleged accomplice, and Johnson claimed that, when appellant was taken to give his final, incriminating statement, appellant looked Leeper in the eyes and said, “Don’t worry I’m fixing to send you home.”

After learning of Johnson’s story, the prosecutor offered Johnson as a rebuttal witness. The trial court allowed Johnson to testify stating the prosecutor could not have known what the appellant was going to say during his testimony and that the state’s proof was proper rebuttal testimony. The trial court was correct.

In Parker v. State, 268 Ark. 441, 597 S.W.2d 586 (1980), we held that the state was not required to furnish the defense counsel the names of witnesses he was going to call in rebuttal. In so holding, we stated that there is no way a prosecuting attorney can anticipate whom he will call in rebuttal until the defense presents its case. Likewise here the state did not know of the statement until Johnson apprised the state of it after the appellant testified. Nor did the state know what it needed to prove until the appellant told his story. The trial court did not abuse its discretion by admitting this oral statement into evidence.

Appellant contends the trial court erred in allowing the prosecutor to cross-examine him about certain forged checks. Under A.R.E. Rule 608(b), specific instances of conduct of a witness can be used to attack his credibility if it is probative to truthfulness or untruthfulness. This court, in David v. State, 286 Ark. 205, 691 S.W.2d 133 (1985), stated that most forms of forgery in the second degree are probative of truthfulness or untruthfulness. Although the appellant testified that he had been convicted of forgery and rape, he stated that he had been straightening his life out in the past few years. In rebuttal, the state wanted to show the appellant had committed an untruthful act, forgery, just ten days before the murder. Under these circumstances, the state’s cross-examination was proper.

In his next point, appellant challenges the trial court’s admission into evidence another statement attributed to him by Johnson, the jail trustee, and Chief Deputy Tom Birdsong. During the penalty phase of trial, appellant testified that he had never said that he had killed the victim. On rebuttal, Johnson and Birdsong related that appellant got angry because his jail cell had been searched, and he had to be restrained. During the scuffle or altercation, appellant said, “I killed the white honky woman and I wish it had been your mother [wife] ,” Appellant argues appellant’s purported remarks were involuntary and should have been excluded because he had not recently been given Miranda warnings. As previously discussed, appellant had been properly given his rights on prior occasions and as stated in Cope, those rights need not be given repeatedly. Cope, 292 Ark. 391, 730 S.W.2d 242. Nonetheless, the trial court here concluded the appellant’s statements were spontaneous and not the result of interrogation. In this respect, we have held that spontaneous, voluntary and unsolicited statements, made when an accused, although in custody, is not being interrogated, are admissible. Beed v. State, 271 Ark. 526, 609 S.W.2d 898 (1980). Thus, we hold the trial court was correct in permitting Johnson’s and Birdsong’s testimony regarding the spontaneous remarks made by appellant.

In his next point, appellant relies on our recent case of Moore v. State, 299 Ark. 532, 773 S.W.2d 834 (1989), where we held it was improper for the court to permit policemen, who had testified against the defendant, to sit within the rail during the closing argument. Here, the appellant moved for a mistrial because two police officers stood near him during his testimony. The record shows that the trial court had the two police officers present to provide security throughout the trial, and that the officers were no closer to the appellant than they were during the rest of the trial. Unlike in Moore, here the officers never testified, and the court stated that a conscious effort was made to ensure the officers never blocked the jury’s view of the appellant. The trial judge had the discretion to take security measures, and the measures taken in this case in no way resulted in prejudice to the appellant.

In appellant’s next issue, he argues he should have been allowed to strike one of the aggravating circumstances because it was not supported by any evidence. He is clearly wrong. Here, the jury found that the murder was committed for the purpose of avoiding or preventing appellant’s arrest. The state’s evidence supported this assertion. Best Stop’s manager, Ms. St. Clair, testified that, on or about a few days before the murder, the appellant had tried to cash a two-party check, and she had told the victim, Barbara Smith, not to cash the check. Smith rejected a second attempt by appellant, as well. Obviously, the appellant had prior dealings with the victim, and knowing his name, Smith could have identified him as having committed the robbery. If there is any evidence of the aggravating circumstance, however slight, the matter should be submitted to the jury. Miller v. State, 269 Ark. 341, 605 S.W.2d 430 (1980). The state’s evidence here was clearly sufficient to allow the jury to consider this aggravating circumstance.

Appellant, citing Caldwell v. Mississippi, 472 U.S. 320 (1985), questions certain remarks made by the prosecutor in closing argument. Those intermittent remarks summarized are the following:

You are not sentencing this man to death, you did not make his bed. There is no better example for young people than people to say Kirt Wainwright got on cocaine. He went and murdered that woman, and he died for it. That’s a good example. That’s the kind of example that the State of Arkansas wants to set for them. If this isn’t a case for death penalty in Nevada County, Arkansas, there never will be one.

In Caldwell, the Supreme Court vacated a death sentence because it was based on a determination made by a sentencer who was led to believe that the responsibility for determining the appropriateness of the defendant’s death sentence rests not with the jury but with the appellate court that later reviews the case. In that case, the prosecutor told the jury not to view itself as determining whether the defendant would die, because a death sentence would be reviewed for correctness by the state supreme court.

First of all, Caldwell is distinguishable from the instant case because Arkansas provides no automatic appeal from a death penalty case and the prosecutor’s remarks in no way suggested that the jury’s decision would be reviewed for correctness. Instead, the prosecutor’s comment made here merely reflected that the appellant was the one who robbed and murdered the victim, not the jurors. In fact, the prosecutor, in his own words during his closing argument, said “[Appellant] put a bullet in Barbara, not you ... he is the one who got himself here.”

Appellant also complains of the closing remarks by the prosecutor where the prosecutor stated that this case is an appropriate case for the death penalty and that giving the appellant such a sentence will set a good example. The trial court has discretion to control closing argument and is in a better position to determine the possibility of prejudice by observing the argument first hand. Williams v. State, 294 Ark. 345, 742 S.W.2d 932 (1988). Here, the appellant failed to show the prosecutor’s remarks were prejudicial and that his argument denied appellant a fair trial. See Henderson v. State, 281 Ark. 406, 664 S.W.2d 451 (1984).

Appellant next asserts the trial court incorrectly denied his motion for judgment notwithstanding the verdict, which was based upon his argument that the jury made inconsistent findings on a mitigating circumstance. On one form the jury unanimously found the appellant did not resist when arrested and on another form it found this same mitigating factor did not exist. Although the jury may have been inconsistent on this factor, it was clear in unanimously finding that three aggravating circumstances existed at the time appellant committed the murder. On the other hand, even giving the appellant the benefit of the mitigating circumstance discussed above, the jury only determined that two mitigating circumstances existed. Upon individual polling, each juror stated that he or she had voted for the death penalty. Obviously, the jury found the aggravating circumstances outweighed those mitigating factors, and the trial court was correct in so holding.

Finally, appellant raises two other arguments, but for reasons given hereafter, we need not discuss them. Those arguments are as follows: (1) appellant contends Arkansas’ capital murder statute is unconstitutional because it overlaps its first degree murder statute and (2) appellant argues the trial court should have excluded pecuniary gain as an aggravating circumstance because of “double counting.” We have rejected these arguments in earlier cases. We decided the first issue in Sellers v. State, 300 Ark. 280, 778 S.W.2d 603 (1989); Cromwell v. State, 269 Ark. 104, 598 S.W.2d 733 (1980), and the second argument was resolved in O’Rourke v. State, 295 Ark. 57, 746 S.W.2d 52 (1988). Nevertheless, appellant now requests that we overrule those cases — a request we choose to decline.

As required by Ark. Sup. Ct. R. 11 (f), we have reviewed the entire record for other reversible error and find none. Therefore, we affirm the verdict and sentence of the jury.

      Birdsong testified that after Johnson left appellant’s cell, appellant made the remark but used the term “wife”.


author: Otis H. Turner, Justice.

text:
    Lewis SMITH and Dorothy Smith v. Jerry FERGUSON and Charlene Ferguson, Individually and The Crest Corporation
    90-123
    790 S.W.2d 162
    Supreme Court of Arkansas
    Opinion delivered May 29, 1990

      Ralph M. Patterson, for appellants.

      Vowell & Atchley, P.A., for appellees.
   Otis H. Turner, Justice.

This case is before the Supreme Court on certification from the Court of Appeals pursuant to Supreme Court Rule 29(1 )(c) as a case involving interpretation of the Arkansas Rules of Civil Procedure.

Jerry and Charlene Ferguson were the owners of a liquor store in Eureka Springs. In March, 1983, Lewis and Dorothy Smith, Illinois residents, came to Arkansas looking for a business investment with the intention of relocating. Mr. Smith was a retired banker, and his wife was a secretary for an Illinois real estate business.

The Smiths initiated negotiations for the purchase of the Fergusons’ liquor store. Mrs. Ferguson conferred with Hollis Spencer, an Alcoholic Beverage Control agent, about the sale of the liquor store to non-residents. The Fergusons informed the Smiths that a liquor store permit would not be issued to any person until a two-year residency requirement, including Arkansas voter registration, was met. Mrs. Ferguson advised Mrs. Smith to register to vote and to obtain an Arkansas vehicle license. The ABC agent indicated, and the Smiths were made aware, that a transaction would be permissible if the Fergusons retained an interest in the store and held the permit in their names until the new purchasers met the residency requirement. This procedure appears to have been followed in similar sales in the area.

After the parties had reached a tentative agreement, Mrs. Ferguson had a change of mind and notified the Smiths she did not wish to sell the business. The Smiths then threatened legal action unless the sale was completed as agreed upon.

The negotiations between the parties culminated in both a written contract providing for the sale of the property and an oral agreement concerning the retention of a nominal interest by the sellers.

The contract for the sale of the business included the inventory, fixtures, building, and real property for a total purchase price of $ 150,000. The Smiths agreed to pay $40,000 in cash, with the balance to be evidenced by a promissory note secured by a mortgage on the property. It was orally agreed that the Fergusons would retain a one-percent interest in the business and would assist in its management in order to satisfy the licensing requirements until the Smiths could qualify.

In April, 1983, Lewis Smith moved to Arkansas and was followed by Dorothy Smith a few months later. Their son, Scott, joined them and actively managed the store. The Smiths ultimately became disenchanted, and Mrs. Smith returned to Illinois in October, 1984. She was followed by her husband about a month later. Their son remained in Arkansas to operate the store. Lewis Smith died prior to the initiation of this action. None of the Smiths ever applied for an Arkansas liquor license or permit.

In 1986, the Alcoholic Beverage Control Division found the store to be in non-compliance, and the Fergusons were given thirty days to resolve the matter. Mrs. Smith, now a resident of Illinois, did not comply with the Alcoholic Beverage Control Division order. Scott Smith refused to apply for the license in his name and subsequently closed the store.

A suit was then filed in circuit court, alleging that the contract was illegal as a violation of Arkansas law and ABC regulations and seeking cancellation of the contract of sale and damages. The Fergusons counterclaimed for the balance due on the promissory note and sought a foreclosure on the mortgage.

A trial was held in Carroll County Circuit Court, and at the close of evidence, the appellants moved for partial declaratory judgment, seeking a declaration that the contract was illegal and void. The appellees responded, and the court, treating the motion and response as a motion for a directed verdict, found that the appellants had failed to sustain the allegations of the complaint and therefore directed a verdict for the appellees.

Though not abstracted, the record reveals that the circuit court then transferred the counterclaim for judgment and foreclosure to chancery court for further proceedings.

We affirm the trial court’s action.

At first blush it would appear that a resolution of this appeal requires consideration of Arkansas Rules of Civil Procedure Rule 13(a), Rule 13(h), Rule 42(b), and Rule 54(b), together with the relationship between those sections as they might apply to this case.

The appellant’s complaint for cancellation of the contract and damages and the appellees’ counterclaim for judgment on the note and for foreclosure of the mortgage arose from the same transaction; thus, the appellees’ counterclaim was compulsory pursuant to Arkansas Rules of Civil Procedure Rule 13(a). When, however, the trial court granted a directed verdict for the defendants/counterclaimants on the plaintiffs’ complaint and transferred the counterclaim for foreclosure to chancery court, the proper forum, there was nothing remaining in the circuit court, which then lost any further jurisdiction. The judgment became a final and appealable order without the necessity of the trial court making a formal bifurcation of the case and without the necessity of complying with the formal requirements of Rule 54(b) of the Arkansas Rules of Civil Procedure. See Purser v. Corpus Christi State National Bank, 256 Ark. 452, 508 S.W.2d 549 (1974).

For reversal, the appellants raise six alleged errors: First, the contract was illegal under Ark. Code Ann. § 3-5-215 (1987); second, the contract was illegal under Ark. Code Ann. § 3-4-301 (1987); third, the contract was illegal under Ark. Code Ann. § 3-4-217 (1987); fourth, the contract was illegal under the regulations of the Alcoholic Beverage Control Division; fifth, it was error to treat the appellants’ motion for partial declaratory judgment as a motion for summary judgment; and sixth, the trial court should have declared that the agreement was illegal as a matter of law.

The appellants’ first through fourth and sixth points for reversal may be considered together because they all deal with the appellants’ assertion that the contract was “illegal” under the statutes and regulations and was therefore void.

Arkansas Code Annotated § 3-5-215 provides that a liquor permit shall not be granted to a person not a resident of this state for at least two years.

Arkansas Code Annotated § 3-4-301 provides that a permit must be revoked if it is transferred, assigned, or hypothecated by the permit holder.

Arkansas Code Annotated § 3-4-217 prohibits the assignment or transfer of the liquor permit.

Subtitle G of the Alcoholic Beverage Control Regulations prohibits transfer or assignment (Section 12) and the pledging or hypothecating or depositing of a permit for collateral (Section 13).

The record is clear that, at the time of purchase, the appellants knew that as non-residents a liquor permit could not be transferred or issued to them. However, that does not mean that the liquor store could not have been sold, or could not have been operated by a qualified permit holder. Also, the record is completely devoid of any indication that the liquor permit issued to the Fergusons was in any manner intended to be or was in fact transferred, assigned, or hypothecated, or that it was deposited as collateral. The evidence to the contrary was overwhelming, and the appellants’ arguments are without merit.

With regard to the remaining point, we find no reversible error in the granting of a directed verdict by the trial court. The appellants allege error in the manner by which the trial court disposed of the issues but cite no authority in support of the allegation. The argument made by the appellants is not convincing. McGuire v. Bell, 297 Ark. 282, 761 S.W.2d 904 (1988).

Affirmed.


author: Dale Price, Justice.

text:
    Loren D. BUTTOLPH TRUST, Richard D. Buttolph, Trustee v. Larry JARNAGAN
    89-285
    789 S.W.2d 466
    Supreme Court of Arkansas
    Opinion delivered May 29, 1990

      Thurman Ragar, Jr., for appellant.

      Kincaid, Horne, Trumbo & Hogue, by: Hugh R. Kincaid, for appellee.
   Dale Price, Justice.

The appellant trust owns property situated outside the city limits of Winslow, Arkansas. The appellee is the mayor of Winslow. The question we must answer in this case is whether the trial court was correct in denying the appellant’s petition seeking a writ of mandamus and damages against the appellee.

The trust obtained the property at a foreclosure sale. Even though the property was located outside the Winslow city limits, the city had extended its water mains to the property and had provided water service to the former owners. However, when the appellant requested water service, the city replied that service would not be resumed until the prior owners’ delinquent water bill was paid.

The trust refused to make the payments and brought this action seeking a writ of mandamus and damages. The petition alleged that requiring payment of a previous owner’s delinquent bill as a prerequisite to obtaining water service violated various state constitutional provisions. The trust moved to have the case heard within seven days, as provided by Ark. Code Ann. § 16-115-104 (1987).

The appellee answered and filed a motion to dismiss. The trial court granted the motion, dismissing both the mandamus and the claim for damages. We affirm the result reached by the trial court.

The court held that it was within the appellee’s discretion to refuse to supply water to a non-resident customer. Recognizing that mandamus does not lie to control a discretionary act, the court dismissed the mandamus petition. The dismissal of the petition was correct but for a different reason. Mandamus may not be used to establish a legal right. Springdale Bd. of Education v. Bowman, 294 Ark. 66, 740 S.W.2d 909 (1987); Bunting v. Bedford, 261 Ark. 638, 550 S.W.2d 439 (1977). In its petition, the appellant sought to establish its right to receive water service unencumbered by the previous tenants’ unpaid bill. It is argued that, because the city operates the waterworks in a governmental capacity, Ark. Code Ann. § 14-234-110(a) (1987), it cannot arbitrarily refuse to supply water service once its mains have been extended. We need not address this argument because mandamus simply is not the proper remedy in this case; therefore, the petition was properly dismissed. The appellant should have sought relief under Ark. Code Ann. § 16-111-103 (1987) by filing a petition for declaratory relief.

The trial court was also correct in dismissing the appellant’s damages claim. Once again, we employ a different line of reasoning than the trial judge but reach the same result.

The trial judge dismissed the damages claim on the ground that it had been improperly joined with the mandamus action. See Rastle v. Marion County Rural Sch. Dist. No. 1,260 Ark. 740, 543 S.W.2d 923 (1976). This line of reasoning is incorrect. The trial court should have severed the damages claim from the mandamus action. ARCP Rule 18(b). The appellant could then have proceeded on the damage portion of his petition. However, we find the trial court’s dismissal was ultimately correct. The appellant sought damages against the appellee for actions taken in the appellee’s capacity as mayor/waterworks manager. The appellee is immune from liability under Ark. Code Ann. § 21-9-301 (1987).

We affirm since the correct result was reached. See Ratliff v. Moss, 284 Ark. 16, 678 S.W.2d 369 (1984).

Affirmed.


author: Per Curiam.

text:
    William A. GRAHAM v. STATE of Arkansas
    RC 90-19
    788 S.W.2d 742
    Supreme Court of Arkansas
    Opinion delivered May 29, 1990

      Witt Law Firm, P.C., by: Ernie Witt, for appellant.
    No response.
   Per Curiam.

Appellant, William A. Graham, by his attorney, has filed for a rule on the clerk.

His attorney, Ernie Witt, 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, 265 Ark. 964.

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


text:
    James TOWE v. STATE of Arkansas
    RC 90-25
    788 S.W.2d 743
    Supreme Court of Arkansas
    Opinion delivered May 29, 1990

      Robert C. Marquette, for appellant.
    No response.
   Per Curiam.

Petitioner James Towe, by his attorneys, has filed a motion for a rule on the clerk. His attorney, Robert C. Marquette, 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.


text:
    Jimmy ABBOTT, Et Al. v. James V. SPENCER III, Circuit/Chancery Judge, Thirteenth Judicial District
    89-309
    790 S.W.2d 171
    Supreme Court of Arkansas
    Opinion delivered June 4, 1990

      Shackleford, Shackleford & Phillips, P.A., for petitioners.

      Steve Clark, Att’y Gen., by: John D. Harris, Asst. Att’y Gen., for respondent.
   Robert H. Dudley, Justice.

The respondent, a circuit and chancery judge for the Thirteenth Judicial District, which is comprised of Dallas, Calhoun, and Cleveland Counties, issued an order setting the salaries of the judicial district’s probation officer and intake officer at $18,000.00 per year. Petitioners, the members of the Dallas County Quorum Court, voted to pay Dallas County’s share of the salary, but at the rate of only $ 15,000.00 per year. Respondent then ordered petitioners to show cause why they should not be held in contempt for not complying with his order. Petitioners moved this court for a writ of prohibition. We granted a temporary writ and now make that writ permanent.

Act 273 of 1989, the Juvenile Code of 1989, codified as Ark. Code Ann. §§ 9-27-301 to -344 (Supp. 1989), provides in Section 7, Ark. Code Ann. §9-27-308, that the judge of the juvenile court, which respondent is, shall appoint at least one intake officer and at least one probation officer as personnel of the court. Act 418 of 1989, codified at Ark. Code Ann. §§ 16-13-327 and 328 (Supp. 1989), implements the provision of Section 7 of Act 273. It provides that the juvenile intake and probation officers are to be employees of the juvenile division of chancery court. Their salaries are to be paid by the counties until August 1,1990, when the State will begin paying a portion of the salaries. Unfortunately, the Act inadvertently fails to fix the amount of these salaries.

Petitioners argue that respondent did not have the authority to set the salaries of the probation and intake officers, and therefore, is without authority to hold them in contempt for failure to appropriate the money to pay those salaries. The argument is meritorious.

The Constitution of the State of Arkansas provides for three separate but equal branches of government. Ark. Const. Art. 4, § 1. The legislative branch is to fix the amount of salaries. Ark. Const. Art. 16, § 4. One branch of government shall not exercise any power belonging to another branch, except as expressly permitted by the constitution. Ark. Const. Art. 4, § 2. Thus, judges do not have the authority to set salaries of court personnel, unless that authority has been properly delegated to them by the legislative branch. Venhaus v. State, 285 Ark. 23, 684 S.W.2d 252 (1985); Pulaski County ex rel Mears v. Adkisson, 262 Ark. 636, 560 S.W.2d 222 (1978). Act 418 does not delegate that authority to judges and, therefore, under our constitution, the respondent does not have the authority to fix these salaries. If we were to accept respondent’s theory of the case, a judge would have the unbridled discretion to hire as many officers as he desired at salaries of $18,000.00, or $80,000.00 or more per year. Quite simply, that is not our law.

Respondent argues that a judge has the power to order expenses paid which are necessary and essential for a court to operate. This is often referred to as the inherent power of the court doctrine, but it is not applicable to this case. The doctrine, in summary, is that the constitution mandates that there be three separate but equal branches of government, and therefore, inherent in the constitution is the principle that when one of the other branches fails to fund a court that court has the power to order those acts done which are necessary and essential for the court to operate. See Turner, Ex Parte, 40 Ark. 548 (1883). Here, the petitioners have not failed to fund the court; they have funded the court, and there is no showing that the level of funding is so low that the court cannot effectively operate. Thus, the inherent authority doctrine does not apply. Accordingly, the writ is made permanent prohibiting respondent from holding a hearing to determine if petitioners are in contempt.

Petitioners present other points of appeal, but it is not necessary that we rule on them. Respondent invites us to overrule Venhaus v. State, supra, and, in effect, give judges unbridled authority to set salaries of court personnel. We decline the invitation.

Writ granted.

Holt, C.J., and Glaze, J., concurring.

Tom Glaze, Justice,

concurring. Uncharacteristically, the court refuses to rule Act 418 of 1989 unconstitutional, even though that Act clearly fails to meet the dictates of Ark. Const. Art. 16, § 4, which provides as follows:

The General Assembly shall fix the salaries and fees of all officers in the State, and no greater salary or fee than that fixed by law shall be paid to any officer, employee or other person, or at any rate other than par value; and the number and salaries of the clerks and employees of the different departments of the State shall be fixed by law.

Act 418 fails to fix the salaries of the probation and intake officers for the respective juvenile divisions of our chancery courts. In fact, the Act is so vague that one cannot tell by its language how many officers can be hired or how much those officers can be paid. There is simply no limiting language provided.

This court should hold Act 418 unconstitutional; instead it timidly cites Venhaus v. State, 285 Ark. 23, 684 S.W.2d 252 (1985), and Pulaski County ex rel Mears v. Adkisson, 262 Ark. 636, 560 S.W.2d 222 (1978), and says simply that the respondent chancery judge did not have the authority to fix the $18,000 annual salaries he did when acting under Act 418. The judge is left now to look to the quorum courts in his judicial districts to underwrite whatever salaries they will for his state court officers.

This case reflects merely another saga that perpetuates, rather than resolves, the problems that arise because the General Assembly creates state court positions that eventually become funded by the counties. Questions, legal and administrative, continue to hover over these county funded state court position situations. Whether the state actually has authority to require counties to pay salaries for such state positions remains undecided. See Beaumont v. Adkisson, 267 Ark. 511, 593 S.W.2d 11 (1980). Also remaining unanswered is whether a court can order a county to pay expenses regarding the administration of justice where the county refused to pay those necessary expenses. Id.

Nonetheless, the General Assembly added to these questions by its enactment of Act 418, which establishes state court probate and intake officers to be chosen by juvenile judges and to be paid for by the respective counties. As previously noted, the Act contains no limiting provision regarding (1) the number of officers that may be provided a judge or (2) the salary amount each officer may be paid. Our court adds to the existing questions surrounding these state/county positions by choosing to ignore the unconstitutionality of Act 418, its vagueness and the confusion it presently causes judges and quorum courts. These problems will never be resolved so long as we allow unconstitutional laws, such as Act 418, to remain in effect. This court should do its job and rule Act 418 unconstitutional. The General Assembly then should meet its constitutional obligation under Ark. Const. Art. 16, § 4, and fix and fund the state court positions that it is required to establish under our state’s constitutional and statutory laws.

Holt, C.J., joins this concurrence.