author: Robert L. Brown, Justice.

text:
    William J. McCUEN v. STATE of Arkansas
    CR 96-1228
    941 S.W.2d 397
    Supreme Court of Arkansas
    Opinion delivered April 7, 1997

      John Wesley Hall, Jr., for appellant.

      Winston Bryant, Att’y Gen., by: Kelly K. Hill, Deputy Att’y Gen., and Todd Newton, Ass’t Att’y Gen., for appellee.
   Robert L. Brown, Justice.

Appellant William J. McCuen appeals from a denial of a petition to vacate his sentence and from a denial of his motion to correct an illegal sentence. He argues multiple points on appeal, none of which, we conclude, has merit. We affirm the orders of the trial court.

On December 18, 1995, McCuen was charged with two counts of public servant bribery (Ark. Code Ann. § 5-52-103 (Repl. 1993)), one count of tax evasion (Ark. Code Ann. § 26-18-201 (Repl. 1992)), one count of accepting gratuities and kickbacks (Ark. Code Ann. § 19-11-707 (Repl. 1994)), and one misdemeanor count of trading in public office (Ark. Code Ann. § 5-52-101 (Repl. 1993)). The first count of public servant bribery involved a scheme for profit by awarding a contract to sell flags to the State. The second public servant bribery count concerned permitting Copy Services, a business in which McCuen had an interest, access to U.C.C. filings in exchange for compensation. The tax-evasion count involved the failure to pay taxes on the income from the Copy Services arrangement. The gratuities and kickbacks count stemmed from McCuen’s receipt of kickbacks from Business Records Corporation and M.C. Supply in exchange for state contracts. The trading-in-public-office count dealt with McCuen’s acceptance of benefits in exchange for agreeing to hire Madison W. Wilson, Jr., and/or William T. Finnegan as State employees.

On January 5, 1996, McCuen entered negotiated guilty pleas. Prior to entering the pleas, the trial court explained that McCuen could be sentenced to a maximum of 27 years and $40,000 for the crimes charged. McCuen stated at the time of his pleas that he had discussed the pleas with his attorneys, that he understood what he was doing, and that he was satisfied with the representation of his attorneys. The trial court explained to McCuen the rights that he was waiving by entering a guilty plea. McCuen stated that he had a masters degree and understood the plea statement. He denied being under the influence of alcohol or drugs.

At that point, the prosecuting attorney read into the record the supporting facts behind each of the charges. Following the reading of the supporting facts relating to public servant bribery in connection with the flag sale, counsel for McCuen, Q. Byrum Hurst, responded that the State could meet its burden in satisfying the elements of the crime. McCuen then stated that he was in fact guilty of the offense. The trial court accepted the plea to the first count and asked the prosecutor to tell the court about the second count. After reading the supporting facts relating to the sale of the U.C.C. filings, McCuen stated that he was guilty of this count of public servant bribery as well. On the third count of tax evasion connected to the U.C.C. filings, McCuen also admitted receiving income from the Copy Services operation, and he again pled guilty. The prosecuting attorney next described the facts of the fourth count relating to receipt of gratuities and kickbacks. McCuen again stated that he was guilty of this offense. The court then asked about the basis of the final count concerning trading in public office. McCuen pled no contest to this charge. A plea statement, which was dated January 5, 1996, was signed by McCuen and reflected that he understood he could receive the maximum sentence for each of the crimes to which he had pled guilty. The trial court requested a presentence report.

Throughout the hearing on the entry of the guilty pleas, McCuen was represented by counsel — Darrell F. Brown and Q. Byrum Hurst. Following the guilty pleas, the date of the sentencing hearing was discussed. Darrell Brown expressed concern over a conflict he had with another trial and asked that the sentencing hearing be set in late March 1996 due to his impending trial. The trial court suggested that such a long delay was not warranted, but the court stated that it would consider subsequent motions.

Thereafter, McCuen filed a motion for continuance, which was addressed at a hearing on February 22, 1996. Counsel Darrell Brown complained that he had only recently seen the pre-sentence report and that it had some problems. He stated that he needed additional time to address those problems. The trial court granted the continuance, and the sentencing hearing was set for April 29, 1996.

On April 24, 1996, McCuen filed a motion in limine which restated the terms of the negotiated plea agreement entered into on January 5, 1996, and which included a provision that the prosecuting attorney would offer no comments to the judge which would in any way affect the sentence. McCuen complained in the motion in limine that the State had indicated that it wanted a harsher sentence than that provided in the guidelines. For example, McCuen contended that the State had said in its response to an objection to the presentence report that it wanted to call its own witnesses at the sentencing hearing, and he complained that this would violate the plea agreement. He requested that the trial court enforce the plea agreement by issuing an order directing the prosecuting attorney to remain silent during the sentencing hearing and call no witnesses.

At the sentencing hearing on April 29, 1996, McCuen was represented by Q. Byrum Hurst and Robert Scull, III. The trial court first addressed another motion by McCuen asking for a continuance of the sentencing until counsel Darrell Brown could be present. Counsel Hurst explained that he agreed to associate with Darrell Brown in his representation of McCuen on a limited basis because of a potential conflict of interest that Brown had due to another trial. The State objected to the continuance because it had been nearly four months since the pleas had been entered. The prosecutor explained that he had had extensive discussions in the case with counsel Robert Scull, who was representing McCuen on behalf of Darrell Brown. The trial court denied the continuance motion and instructed the parties to proceed. The prosecuting attorney ultimately agreed to remain silent on the sentencing issue.

Counsel Hurst began by urging the court to use the sentencing guidelines. He then tracked McCuen’s work history which, Hurst maintained, demonstrated his life-long devotion to serving others. He next called a pre-sentence officer, James Shaw, to testify. Shaw agreed that the purpose of the sentencing grid was to make sentences more uniform across the state. He also agreed that without departure, none of the crimes charged would warrant prison time under the sentencing grid. Hurst then explored McCuen’s qualifications that militated in favor of alternative sanctions such as community service and probation. The State asked no questions. Hurst next called three witnesses in mitigation who testified to McCuen’s reputation for truthfulness and honesty, his public service and personal sacrifice, and his honesty in business dealings. In his concluding remarks, Hurst asked the trial court to consider a letter written on McCuen’s behalf from the Chief of Police of Hot Springs in which the police chief asked the court to give McCuen probation.

The State announced that it was ready for the sentence to be imposed. At that time, the trial court asked Hurst if he knew of any reason why sentence should not be imposed. Hurst stated that he did not, except for motions previously made. The trial court then asked: “Anything further from the Defense before sentencing in this matter?” After there was no response, the trial court imposed McCuen’s sentence: six years and a $10,000 fine on counts one and two (the bribery counts); three years on count three (the tax-evasion count); five years and a $10,000 fine on count four (the kickback count), and a $1,000 fine on count five (trading in public office). Counts one, two, and four were to run consecutively. Total prison time was 17 years and total fines were $30,000. After sentencing, Hurst asked the court to give McCuen thirty days so that he could get his affairs in order. The court denied the request.

On May 1, 1996, the judgment and commitment order was filed, reflecting McCuen’s 17-year sentence. The trial court’s departure report dated April 29, 1996, was also filed that same date, and it showed that the trial court had circled as aggravating factors (1) the offense was a major economic offense established by multiple incidents (underlined), (2) degree of sophistication or time (underlined), and (3) misuse of fiduciary duty (underlined). The trial court also circled “other” as an aggravating factor, and the following was typed in the space provided: “Defendant committed multiple major offenses as an elected State Executive Officer and sentencing guidelines are clearly too lenient.”

On May 3, 1996, McCuen filed a Petition to Vacate Sentence and Allow Withdrawal of Plea. The basis for his petition was that his primary counsel, Darrell Brown, was unable to attend the sentencing hearing and that a requested continuance had been denied. McCuen further asserted that the trial court was informed that his other attorney, Q. Byrum Hurst, “would likely be a prosecution witness in this matter if a trial becomes necessary” and, thus, had a conflict of interest. The petition asserted that Hurst had been contacted about an investigation into the prosecutor’s office. McCuen also contended that Robert L. Scull had appeared at the sentencing hearing in place of Darrell Brown and that Scull advised McCuen, pursuant to Brown’s instructions, to withdraw his plea, but Hurst advised McCuen to accept the plea despite having a conflict of interest. McCuen additionally alleged that Hurst’s conflict of interest rendered him ineffective as McCuen’s counsel at the sentencing hearing. Thus, the plea was involuntary, according to McCuen, because he had not been fully informed of the circumstances. He sought relief under Arkansas Rules of Criminal Procedure 37.1 (postconviction relief) and 26.1 (withdrawal of guilty plea). He alleged that he was denied due process due to Hurst’s ineffectiveness and that his sentence was illegal on its face and illegally imposed. The petition was signed by Darrell Brown.

In an order denying the petition, the trial court first recited the history of the case. Because the sentence had been placed into execution, the trial court considered the petition to be only one for postconviction relief under Ark. R. Crim. P. 37 and not one for withdrawal of a guilty plea under Ark. R. Crim. P. 26.1. The trial court observed that the pleas were entered by McCuen in the presence of his attorneys, Brown and Hurst, and he was represented at the sentencing hearing by Hurst and Scull.

With regard to Hurst’s apparent conflict of interest, the trial court stated in the order that there was never any request by McCuen for Hurst to be removed, to withdraw, or to be relieved as counsel for McCuen even though McCuen was aware of the alleged potential conflict. The court further observed that McCuen had already entered his guilty plea and that the State complied with the negotiated agreement at the sentencing hearing. The court noted that there was no argument or indication that the pleas entered on January 5, 1996, were anything but knowing, intelligent, and voluntary pleas made with the assistance of attorneys Brown and Hurst. Based on these factors, the trial court denied the petition.

On July 23, 1996, McCuen filed a pro se motion entitled Motion to Correct Illegal Sentences Imposed in an Illegal Manner. The first ground for the motion was an alleged error by the trial court when it departed upward from the sentencing guidelines. McCuen also complained that the trial court erred by using an element of the crimes — public service — as an aggravator. He further stated that he was denied his right to allocution prior to sentencing, and, accordingly, he was denied the opportunity at the allocution stage to withdraw his guilty plea and request a trial. McCuen contended, as another issue, that the trial court failed to inquire adequately into Hurst’s conflict of interest. He urged that if the trial court had so inquired, he would have told the court that the F.B.I. requested Hurst to wear a body microphone when he met with the prosecuting attorney, Mark Stodola. After consulting with McCuen, Hurst did not wear a body microphone. It was McCuen’s contention that Hurst told the prosecuting attorney that McCuen had information that was damaging to him. This was passed on to the trial court “in private” at one of the hearings.

In addition, McCuen alleged that Hurst told him that he would get probation because the trial court had told Hurst that McCuen was not going to be treated differently from anyone else. He also complained about Hurst’s failure to object to the denial of allocution. He contended, in addition, that he would not have entered the pleas if his attorneys -had properly investigated and informed him that there were, in fact, no Federal charges pending. McCuen also accused the trial court of encouraging him to plead guilty by trickery because, according to McCuen, the trial court made it known to his counsel that he would receive probation if he did not withdraw his pleas. McCuen prayed that the trial court resentence him in accordance with the sentencing guidelines and without departure.

In an order entered on August 9, 1996, the trial court refused to reach the merits of the petition to correct an illegal sentence for the reason that McCuen was not entitled to file a second petition for postconviction relief. McCuen appealed from the denials of his two postconviction motions.

I. Effective Counsel For Withdrawal of Guilty Plea

McCuen first contends that he was entitled to effective counsel for purposes of withdrawing his guilty plea. He primarily contends that his trial counsel was ineffective by not including in his Petition to Vacate Sentence and to Allow Withdrawal of Plea all of the issues supporting the petition.

Arkansas Rule of Criminal Procedure 26.1 sets the procedure for withdrawal of guilty pleas and reads in pertinent part:

(a) Prior to pronouncement of sentence, the court shall allow a defendant to withdraw his plea of guilty or nolo contendere upon a timely motion and proof to the satisfaction of the court that withdrawal is necessary to correct a manifest injustice.

Rule 26.1 has been interpreted by this court to mean that a motion to withdraw a plea of guilty is untimely after the sentence is placed into execution. Rowe v. State, 318 Ark. 25, 883 S.W.2d 804 (1994); Malone v. State, 294 Ark. 376, 742 S.W.2d 945 (1988); Travis v. State, 286 Ark. 26, 688 S.W.2d 935 (1985). We have further stated that the trial court loses jurisdiction to set aside a guilty plea once it has been accepted and the sentencing has been completed. Scalco v. City of Russellville, 318 Ark. 65, 883 S.W.2d 813 (1994).

McCuen, nevertheless, argues that the petition to withdraw his guilty plea to correct a manifest injustice under Ark. R. Crim. P. 26.1(b) and (c) may be entertained after judgment is entered. Those subsections read in part as follows:

(b) A motion to withdraw a plea of guilty or nolo contendere to correct a manifest injustice is timely if, upon consideration of the nature of the allegations of the motion, the court determines that it is made with due diligence. Such motion is not barred because it is made after the entry of judgment upon the plea. If the defendant is allowed to withdraw his plea after judgment has been entered, the court shall set aside the judgment and the plea.
(c) Withdrawal of a plea of guilty or nolo contendere shall be deemed to be necessary to correct a manifest injustice if the defendant proves to the satisfaction of the court that:
(i) he was denied the effective assistance of counsel;

The trial court correctly ruled that McCuen could not withdraw his guilty pleas under Rule 26.1 because sentencing had already transpired and judgment entered at the time the petition to vacate was filed. As a consequence, the petition was untimely. After sentencing, such a petition could be treated as one for postconviction relief under Rule 37, regardless of its title, and this court has so held. See Rowe v. State, supra; Garmon v. State, 290 Ark. 371, 719 S.W.2d 699 (1986); Travis v. State, supra; Shipman v. State, 261 Ark. 559, 550 S.W.2d 424 (1977). The trial court was, therefore, correct in treating the petition to vacate as one for postconviction relief.

But even considering McCuen’s petition to vacate to be one for relief under Rule 37, the United States Supreme Court has held that there is no constitutional right to an attorney in state postconviction proceedings, and, as a result, there is no corresponding right to claim constitutionally ineffective assistance of counsel in those proceedings. Coleman v. Thompson, 501 U.S. 722, 752 (1991). Similarly, this court has held that the right to counsel ends in Arkansas after the direct appeal of the original criminal trial is completed, and the State is not obligated to provide counsel in postconviction proceedings. Fretwell v. State, 290 Ark. 221, 718 S.W.2d 109 (1986) (per curiam). Our reasoning has been that a postconviction proceeding is civil in nature and, thus, there is no constitutional right to appointment of counsel as part of a criminal proceeding. Id.

In sum, McCuen’s petition to withdraw his guilty pleas was untimely. Furthermore, he was not entitled to counsel to represent him for purposes of his Rule 37 petition. Hence, even assuming his counsel was ineffective in failing to include all grounds for relief in his Rule 37 petition, this is not a basis upon which his pleas can be vacated. Coleman v. Thompson, supra.

II. Counsel With Conflict of Interest Rendered Guilty Pleas Ineffective

McCuen next argues that the trial court should have allowed him to withdraw his guilty pleas because they were tainted and ineffective due to his lawyer’s conflict of interest. This argument was first raised on May 3, 1996, in McCuen’s Petition to Vacate Sentence and to Allow Withdrawal of Plea. The purported conflict was that counsel Hurst had information that apparently had to do with the prosecuting attorney’s negotiation tactics. The information supposedly stemmed from an F.B.I. investigation into the prosecutor’s office, and the asserted conflict was that Hurst would likely have to testify for the prosecution if the matter went to trial. Why Hurst would be a likely prosecution witness is not altogether clear in McCuen’s petition.

Again, in its order denying Rule 37 relief, the trial court noted that the guilty plea to each count was made by McCuen in the presence of his attorneys, Brown and Hurst, on January 5, 1996. The trial court further noted that there was no argument or indication that the pleas entered were anything but knowing, intelligent, and voluntary pleas made with the assistance of his counsel. McCuen stated when he entered his pleas that he was satisfied with his lawyers. Moreover, at the sentencing hearing McCuen was represented by counsel Hurst and Scull. The trial court observed that there was never a request for Hurst to be removed or to withdraw or to be relieved as counsel even though McCuen was aware of the circumstances of the alleged conflict. Comparable factors were deemed significant by the United States Supreme Court when it refused to vacate a guilty plea based on an alleged conflict of interest on the part of defendant’s counsel in Dukes v. Warden, 406 U.S. 250 (1971).

We agree that McCuen was entitled to effective assistance of counsel when he entered his guilty plea. However, in a case similar to the instant case, we set forth the applicable law regarding effectiveness of counsel in the context of a guilty plea:

The sole issue presented on appeal is whether trial counsel was ineffective and thereby prevented the appellant from intelligently and voluntarily entering the guilty plea. We stated in Huff v. State, 289 Ark. 404, 711 S.W.2d 801 (1986), that “[w]hen a guilty plea is challenged, as here, the sole issue is whether the plea was intelligently and voluntarily entered with the advice of competent counsel.” See Williams v. State, 273 Ark. 371, 620 S.W.2d 277 (1981). Specific errors on the part of the trial attorney are to be evaluated under the Strickland v. Washington, 466 U.S. 668 (1984), standard. Strickland requires the petitioner to demonstrate both that the defense counsel was not functioning as guaranteed by the Sixth Amendment and that his deficient performance resulted in depriving the petitioner of a fair trial. The burden upon the petitioner in such a case is extremely heavy. Crockett v. State, 282 Ark. 582, 669 S.W.2d 896 (1984).

Stobaugh v. State, 298 Ark. 577, 579-80, 769 S.W.2d 26, 27 (1989).

The standard of reviewing an attorney’s conduct under Strickland v. Washington, supra, has often been stated. First, counsel is presumed to be competent; thus, to prevail on an argument of ineffective assistance of counsel, the appellant must show that his attorney’s performance fell below the objective standard of competence and that but for those errors, there is a reasonable probability that the outcome of the trial would have been different. Johnson v. State, 321 Ark. 117, 900 S.W.2d 940 (1995). This court has further stated that prejudice will be presumed from a conflict of interest only when the defendant shows that his attorney “actively represented conflicting interests and that actual conflict of interest adversely affected his lawyer’s performance.” Johnson v. State, 321 Ark. at 123, 900 S.W.2d at 944. The burden is on the appellant to prove both prongs of this test. Id. In Johnson v. State, we rejected the defendant’s arguments because he did not prove that any alleged conflict had a “real and demonstrable effect on [his attorney’s] performance.” Johnson v. State, 321 Ark. at 124, 900 S.W.2d at 944.

McCuen questions Hurst’s loyalty to his defense and ultimately his competency because Hurst was asked to wear a body microphone for the F.B.I. in plea negotiations with the prosecuting attorney. He was not asked to wear a body microphone to gain evidence against McCuen, however. Rather, the wire was apparently intended to secure evidence against the prosecuting attorney. Thus, even if McCuen’s assertions are accepted at face value, there is no indication that Hurst’s interests were adverse to his client’s. In addition, the record is clear that McCuen knew of these circumstances but requested no relief. Finally, Hurst never actually wore the body microphone according to his motion to correct an illegal sentence. Thus, we conclude, as was the case in Johnson v. State, supra, that McCuen has not shown that the asserted conflict of interest had any real effect on Hurst’s performance as defense counsel for McCuen. See also Dukes v. Warden, supra (denying relief because defendant did not show that alleged conflict by his lawyer’s representation of two girls and the defendant in an unrelated criminal case affected his plea). Furthermore, Darrell Brown was present as co-counsel for McCuen when the plea was entered on January 5, 1996, and Robert Scull was present as co-counsel for the sentencing.

We affirm the trial court in denying relief on this point.

III. Petition to Correct Illegal Sentences

McCuen raises two additional points that were first argued to the trial court in his motion to correct sentences imposed in an illegal manner: (1) use of an element of the offense as an aggravating circumstance for departure purposes; and (2) denial of his right to allocution. The State, in response, submits that the trial court was correct in not addressing the issues raised in a second petition for relief because a second postconviction petition is precluded by Rule 37.2. We agree. Rule 37.2(b) reads:

All grounds for relief available to a petitioner under this rule must be raised in his or her original petition unless the petition was denied without prejudice. Any ground not so raised or any ground finally adjudicated or intelligently and understandingly waived in the proceedings which resulted in the conviction or sentence, or in any other proceedings that the petitioner may have taken to secure relief from his or her conviction or sentence, may not be the basis for a subsequent petition. All grounds for post-conviction relief from a sentence imposed by circuit court, including claims that a sentence is illegal or was illegally imposed, must be raised in a petition under this rule. (Emphasis ours.)

The rule is clear, and this court has consistently upheld the rule that a petitioner is limited to one petition for postconviction relief unless the first petition was specifically denied without prejudice to allow the filing of a second petition. See, e.g., James v. State, 289 Ark. 560, 712 S.W.2d 919 (1986) (decided under old Rule 37.2(b) which contained comparable language to correct Rule 37.2(b)). There is nothing in the order denying McCuen’s first petition for postconviction relief to suggest that it was entered without prejudice. The trial court was correct in declining to consider these issues on procedural grounds.

Affirmed.

       The fines are not mentioned in the judgment and commitment order.

       The nature of what Hurst’s testimony might be is unclear from the record.

       McCuen’s counsel on appeal writes that Hurst did wear the body microphone. This contention is at odds with McCuen’s own motion to correct sentences imposed in an illegal manner which was signed by him.


source: Caselaw Access Project

author: Annabelle Clinton Imber, Justice.

license: Public Domain

text:
    William B. OLIVER v. WASHINGTON COUNTY, Arkansas
    96-381
    940 S.W.2d 884
    Supreme Court of Arkansas
    Opinion delivered April 7, 1997

      Law Offices of Ronald E. Bumpass, by: Bradley S. Lewis, for appellants.

      George E. Butler, Jr., and Stockland & Trantham, P.A., by: Gary L. Seymour, for appellee.
   Annabelle Clinton Imber, Justice.

This is an appeal from the Washington County Court’s condemnation of land owned by the appellants, William and Georgia Oliver, for the widening of County Road #55. On appeal, the Olivers argue that the County did not adhere to the statutory procedures for condemning their property, and that several provisions of the condemnation statute are unconstitutional. We affirm because the appellants’s abstract is flagrantly deficient.

On February 1, 1995, the Washington County Court issued an order whereby it condemned a parcel of land owned by William and Georgia Oliver for the widening of County Road #55. The County Court served notice of the condemnation upon the Olivers within ten days of the date of entry of the order as required by Ark. Code Ann. § 14-298-120(f) (1987). The Olivers received the notice and filed a response. On March 9, 1995, the County Court denied the relief requested by the Olivers.

Before the County Court determined the appropriate measure of compensation, the Olivers filed a de novo appeal in the Washington County Circuit Court. In their complaint for trial de novo and motion for injunction, the Olivers alleged that the appeal-bond requirement violated their constitutional rights to due process, that the County failed to follow the condemnation procedures contained in Ark. Code Ann. §§ 14-298-101 to 116 (1987), and that the condemnation procedures in Ark. Code Ann. §§ 14-298-101 to 116 (1987) violate the separation-of-powers doctrine. The Olivers’s complaint, however, is not included in the abstract. The Olivers also contended at a later hearing that the condemnation procedures set forth in Ark. Code Ann. §§ 14-298-120 to 121 (1987) violate the separation-of-powers doctrine.

At the conclusion of a hearing on the motion for summary judgment filed by the Olivers, the trial court found that the County Court condemned the property pursuant to the procedures mandated by Ark. Code Ann. §§ 14-298-120 to 122, and thus the court declined to address the Olivers’s arguments regarding sections 14-298-101 to 116. Moreover, the trial court ruled that the Olivers failed to demonstrate how the county judge’s dual roles caused him to be unduly influenced in the condemnation proceeding. Finally, the trial court acknowledged that the Olivers failed to notify the Attorney General’s Office, as required by Ark. Code Ann. § 16-lll-106(b) (Repl. 1994), of their constitutional challenge to sections 120 to 122. For these reasons, the court denied the Olivers’s motion for summary judgment. Although the abstract contains the trial court’s letter opinion, the Olivers failed to abstract the actual order denying the motion for summary judgment.

Prior to the jury trial, the Olivers properly notified the Attorney General’s Office of their intention to constitutionally challenge sections 14-298-120 to 122. Based upon the contents of an order entered on November 1, 1995, it appears that on the day of trial, October 25, 1995, the Olivers orally renewed their motion for summary judgment. However, the Olivers failed to abstract the orally renewed motion for summary judgment and the arguments presented in support of the renewed motion. The court denied the Olivers’s renewed motion in the order filed on November 1, 1995, and the case proceeded to trial. There is no abstract of the testimony at trial, or of the final judgment entered on November 21, 1995. The Olivers filed a notice of appeal from the final judgment entered on November 21, 1995, but they failed to abstract the notice of appeal.

In summary, the Olivers failed to abstract the following: 1) their complaint in the Washington County Circuit Court and request for a trial de novo; 2) the order denying the motion for summary judgment; 3) their orally renewed motion for summary judgment in which they properly questioned, for the first time, the constitutionality of Ark. Code Ann. §§ 14-298-120 to 122, and their arguments in support of the renewed motion; 4) the testimony at trial; 5) the November 21, 1995 final judgment from which they appealed; and 6) the notice of appeal filed on December 19, 1995.

This court has repeatedly held that a summary of the pleadings and the judgment appealed from are the bare essentials of an abstract. McPeek v. White River Lodge Enters., 325 Ark. 68, 924 S.W.2d 456 (1996); King v. State, 325 Ark. 313, 925 S.W.2d 159 (1996). The burden is clearly placed on the appealing party to provide both a record and abstract sufficient for appellate review. Cosgrove v. City of West Memphis, 327 Ark. 324, 938 S.W.2d 827 (1996). We have often written that the record on appeal is limited to that which is abstracted. Allen v. State, 326 Ark. 541, 932 S.W.2d 764 (1996). We will not examine the transcript of a trial to reverse a trial court. However, we will do so to affirm. Haynes v. State, 314 Ark. 354, 862 S.W.2d 275 (1993). The reason underlying our abstract rule has been stated as follows:

[T]here is only one transcript, there are seven judges on this court, and it is impossible for each of the seven judges to examine the one transcript.

King v. State, 325 Ark. at 315, 925 S.W.2d at 160 (1996).

Accordingly, we conclude that the Olivers simply failed to comply with Arkansas Supreme Court and Arkansas Court of Appeals Rule 4-2. We deem it flagrantly deficient, and thus we affirm the judgment. Ark. Sup. Ct. R. 4-2(b)(2).

Affirmed.


text:
    Mary R. SCHULTZ and Robert M. Schultz v. FARM BUREAU MUTUAL INSURANCE COMPANY
    96-1075
    940 S.W.2d 871
    Supreme Court of Arkansas
    Opinion delivered April 7, 1997

      Roy Danuser and Griffin Smith, for appellants.

      Davis, Cox & Wright, PLC, by: Don A. Taylor, for appellee.
   Annabelle Clinton Imber, Justice.

At issue in this property-insurance case is whether the insurer effectively cancelled a vacancy permit issued to the insured. The appellants argue that the trial court erroneously granted summary judgment to the appellee. The appellants also argue that the trial court misconstrued Ark. R. Civ. P. 56. We find no error and affirm.

On April 20, 1995, a building owned by the appellants, Mary and Robert Schultz, was damaged by fire. Prior to that date, the appellee, Farm Bureau Mutual Insurance Company of Arkansas, Inc., issued a policy of insurance on the property. Farm Bureau denied coverage, and filed a complaint for declaratory judgment in Marion County chancery court seeking declaratory relief to that effect.

Among other things, Farm Bureau asserted that the building was an unoccupied dwelling, and thus fell under the policy’s exclusion providing that “we will not be liable for any loss if the dwelling is vacant or unoccupied by you or a tenant for a period of sixty consecutive days.” The Schultzes in turn moved for partial summary judgment, maintaining that an endorsement to the policy, “Vacancy or Unoccupancy Permit FB-24,” prohibited Farm Bureau from using the policy’s vacancy provision to deny coverage.

The endorsement provided as follows:

VACANCY OR UNOCCUPANCY PERMIT FB-24
(Annual Renewable Coverage)
Permission is granted for the dwelling described in your latest declaration, and shown with this endorsement number, to remain vacant or unoccupied. (The terms “vacant” and “unoccupied” are defined in your policy booklet.)
As a condition for this coverage, during periods of vacancy or unoccupancy, the dwelling must be kept closed and secured to prevent the trespassing or entry of unauthorized persons. All other terms and conditions remain unchanged.
During times of vacancy or unoccupancy, there will be an increased chance of loss. Our charge for this increase of risk is $15.00 for each dwelling with endorsement FB-24. Such charge is non-refundable and becomes fully earned upon payment.
This permit is continuous until cancelled or until your policy expires, whichever occurs first.
Effective Date 1/16/90
Attached to and Forming Part of Policy Number F491524

(Underscoring in original.) The Schultzes also submitted a change in policy form executed in 1990 by Farm Bureau’s agent and Mary Schultz, which form requested the vacancy permit.

Farm Bureau responded and filed its own cross-motion for summary judgment. Farm Bureau’s position was that the endorsement had been “deleted” from the policy in November of 1994. As evidence supporting this proposition, Farm Bureau submitted the policy’s declaration page for the policy period covering October 18, 1993, and October 18, 1994. In the “schedule” section of the declaration page, under the heading “DESCRIPTION AND OCCUPANCY,” was the description, “ON THE TENANT OCCUPIED DWELLING. FB24 APPLIES.” Farm Bureau also submitted the declaration page for the policy period covering November 1, 1994, to October 18, 1995. On this declaration page, the corresponding description merely provided “ON THE TENANT OCCUPIED DWELLING.”

Farm Bureau additionally submitted two affidavits. The first was from Dwight Shipman, the Farm Bureau agency manager for Marion County, who stated that “on or about November 1, 1994, through conversations with the Schultzes and my office, the FB24 vacancy or unoccupancy permit was deleted from this policy, and to the best of my information and belief, a new declarations sheet was delivered to the Schultzes without the FB24 permit.” The second affidavit was from Gayle Holmes, the manager of the Farm Bureau policy services department. She stated that on November 1, 1994, Farm Bureau received a “change request form” from its Marion County office regarding the Schultzes’ policy. According to Holmes, this form requested the deletion of the FB-24 endorsement and a correction of the spelling of Mary Schultz’s name on the declaration page. Additionally, she stated that “a new declarations page deleting the FB24 endorsement to the insurance policy in question was mailed to the insureds” on November 2, 1994, and that the Schultzes were charged a lower premium because of the deletion of the endorsement.

Farm Bureau also attached excerpts of the sworn statement and deposition testimony of Mary Schultz. She stated that prior to the fire, the last time the budding had been rented out may have been “a couple of years ago.” Her son stayed in the building some the prior summer, and she also stated that about two weeks before the fire, some fisherman stayed there while fishing in some tournaments. When asked, “Was this something that it was somebody you knew, and you just loaned the place to them for a day or two?” Schultz answered, “Yes.”

The Schultzes filed a reply to Farm Bureau’s motion for summary judgment, essentially arguing that a general condition of the policy required a separate, formal cancellation notice to effectively cancel the endorsement. They argued that the declarations page which omitted the reference to “FB-24” was “not tantamount to a cancellation, standing alone.” The Schultzes further alleged that “any evidence based on oral agreement canceling the permit would be inadmissible, leaving only a question of law the only issue.”

At the hearing on the Schultzes’s motion for partial summary judgment and Farm Bureau’s motion for summary judgment, the following documents were submitted as joint exhibits without objection:

1. Change-in-policy form executed in 1994 by Farm Bureau’s agent and Mary Schultz, which form requested that FB-24 be deleted.
2. The insurance policy’s general conditions entitled “Vacancy or Unoccupancy” and “Changes.”
3. The policy’s declaration page for the policy period covering October 18, 1993 and October 18, 1994.
4. The vacancy or unoccupancy permit FB-24.
5. The policy’s declaration page for the policy period covering November 1, 1994, to October 18, 1995.

On June 6, 1996, the trial court entered an order granting Farm Bureau’s motion for summary judgment, and denying the Schultz’s partial motion for summary judgment. The trial court held that the vacancy permit, though valid, had been effectively cancelled under the terms of the policy. The chancellor noted Shipman’s testimony that the Schultzes had requested that the endorsement be deleted. The chancellor ultimately found that the vacancy permit no longer applied to the Schultz’s policy because it was not noted on their last declaration page.

On June 12, 1996, the Schultzes filed a request for additional findings. One of their enumerated “requests” concerned Ship-man’s affidavit testimony submitted with Farm Bureau’s motion for summary judgment. The Schultzes denied that they had ever been in Shipman’s office or that they had ever discussed the issue of the endorsement’s deletion with him. They attached an affidavit executed by both of them containing their testimony substantiating this assertion. The Schultzes also requested that the chanceEor “make a specific ruling on this question”:

Is ARCP 56, (the rule on summary judgment procedure) to be construed as permitting the affidavit of a party to the proceeding to be classified as “undisputed” in determining whether there exists a genuine issue of material fact?

FinaEy, the Schultzes requested that the trial court enter an order finding that its June 6 order was not final for purposes of appeal, pending its decision on the request for additional findings.

On July 1, 1996, the trial court entered a second order. In this order, the chanceEor found that Shipman’s affidavit did not “recite personal knowledge of the facts which were stated,” thus the court modified its prior order to delete the foEowing:

The affidavit of Dwight Shipman says that “. . . about November 1, 1994, through conversations with the Schultzes in my office, the FB24 vacancy or unoccupancy permit was deleted from this policy . . . .”

The trial court nonetheless held that even without considering Shipman’s affidavit, Farm Bureau had effectively canceEed the FB-24 endorsement. The chanceEor also held that a party’s affidavit was not per se “disputed” under Ark. R. Civ. P. 56, and further declined to address the finality issue.

The Schultzes now bring the present appeal, and raise two points of error. The first is whether the trial court erroneously granted Farm Bureau’s motion for summary judgment. The second is whether the trial court misconstrued Ark. R. Civ. P. 56.

CANCELLATION OF VACANCY PERMIT

For their first point, the Schultzes argue that the trial court erroneously granted summary judgment for Farm Bureau on the issue of coverage. Essentially, this point revolves around whether Farm Bureau effectively cancelled the vacancy permit.

Summary judgment is a remedy that should be granted only when it is clear that there is no genuine issue of material fact to be litigated. Shackelford v. Patterson, 327 Ark. 172, 936 S.W.2d 748 (1997). The burden of proving that there is no genuine issue of material fact is upon the movant, and all proof submitted must be viewed in a light most favorable to the party resisting the motion. Id. Any doubts and inferences must be resolved against the moving party. Id. The burden in a summary-judgment proceeding is on the moving party and cannot be shifted when there is no offer of proof on a controverted issue. Id. When the movant makes a prima facie showing of entitlement, the respondent must meet proof with proof by showing a genuine issue as to a material fact. Id.

The Schultzes rely on one of the policy’s general conditions, entitled “Changes.” This provision provides as follows:

A waiver or change of any provision of this policy must be in writing by us and be shown on an endorsement or successive declaration page to be valid. If a premium adjustment is necessary, we will make the adjustment as of the effective date of the change.

According to the Schultzes, the mere deletion of the reference to “FB-24” on the November 1, 1994, declarations page was not sufficient to comply with this requirement.

By its express terms, the vacancy permit was “continuous until cancelled or until [the] policy expires, whichever occurs first.” This language is plain and unambiguous. Therefore, Farm Bureau must have effectively cancelled the endorsement in order to reinstate the policy’s exclusion for vacancies of sixty days. When an otherwise valid endorsement is issued, it becomes a part of the insurance contract as if it were actually incorporated therein. See 2 Couch on Insurance 3d §18:17 (1996). Thus, the general condition governing changes to the policy would appear applicable to the vacancy permit as well.

As stated above, any changes to the terms of the policy must be in writing by Farm Bureau and must be shown on an endorsement or subsequent declaration page. The record reflects that in 1990, a change-in-policy form was executed on the Schultzes’ policy. The signatures of both Mary Schultz and a Farm Bureau agent appear at the bottom of this form. On this form was the handwritten notation, “Please add vacant permit. This dwelling is not rented at this time.” On the row, “CHANGE APPLICABLE FORM NO(S) TO:” was the handwritten notation “FB24.” This form also showed that the annual premium for the policy was $273.00. On the Schultzes’ declaration page issued in 1993, under the column, “DESCRIPTION AND OCCUPANCY,” the description “ON THE TENANT OCCUPIED DWELLING. FB24 APPLIES,” was conspicuously noted. Under the heading “Subject to Attached Form No.(s),” the sheet listed “FB24.” The annual premium shown was $288.00. Thus, by its express terms, the 1993 declaration page required that the insured property be a tenant-occupied dwelling, but with the additional qualification that “FB-24” applied to the property.

In October of 1994, another change-in-policy form was executed on the Schultzes’ policy, and sent from the Marion County Farm Bureau office to the Little Rock office. The signatures of both Mary Schultz and a Farm Bureau agent appear on this form. The description of the insured property provided on this form was “ON THE TENANT OCCUPIED DWELLING. FB24 APPLIES.” However, also on this form was the handwritten notation, “Delete FB24.”

A new declaration page was issued on November 1, 1994. Under the column, “DESCRIPTION AND OCCUPANCY,” the description merely provided “ON THE TENANT OCCUPIED DWELLING.” Likewise, the space for “Subject to Attached Form No.(s)” omitted any reference to the FB-24 vacancy permit. The annual premium reflected for the policy was $216.00.

In their response to Farm Bureau’s motion for summary judgment, the Schultzes offered no affidavits or other evidence to suggest that they did not request that the vacancy permit be can-celled or deleted. Nonetheless, they argued that the policy’s general condition regarding “Changes” required that Farm Bureau notify them of the change with a separate form, separate and distinct from the mere omission contained on the declaration page. We agree with the Schultzes that the general condition’s use of the article “and” suggests that two writings must reflect any change in the policy. Not only must a waiver or change be shown in an “endorsement or successive declaration page,” it must also be noted “in writing by us [Farm Bureau].” Any other reading of the condition would render the “writing” requirement superfluous, given that an endorsement or declaration page would always be a “writing.”

That being said, we find that the above-described documents satisfied the policy’s general condition regarding changes. The change was noted in writing by Farm Bureau. Namely, on the 1994 change-in-policy form executed by Farm Bureau’s agent and Mary Schultz, which clearly noted the requested change, “Delete FB24,” in writing. Moreover, the cancellation was reflected on the 1994 declaration page, which conspicuously described coverage “ON THE TENANT OCCUPIED DWELLING.” Without the prior “FB-24” qualification, this description clearly references the policy’s general exclusion for unoccupied dwellings. Additionally, the evidence suggests that the Schultzes’ premium was decreased following the cancellation of the vacancy permit. Thus, we affirm, finding that the trial court correctly granted Farm Bureau’s motion for summary judgment.

CONSTRUCTION OF ARK. R. CIV. P. 56.

The Schultzes, for their second point, make a two-pronged argument. The first is that the trial court misconstrued Ark. R. Civ. P. 56 in determining that there were no disputed facts based on Farm Bureau’s affidavits. The second is that the trial court erred in considering Shipman’s affidavit because it contained inadmissible evidence. We need not reach the merits of these arguments because, as discussed above, the trial court had an adequate basis for granting summary judgment to Farm Bureau without considering Farm Bureau’s affidavits.

Affirmed.

Brown, J. not particpating.

Special Justice David B. Vandergriff joins in the opinion.

       The Schultzes also purport to appeal from the trial court’s denial of their motion for partial summary judgment. We do not review such rulings. See Ball v. Foehner, 326 Ark. 409, 931 S.W.2d 142 (1996).


author: Ray Thornton, Justice. Tom Glaze, Justice,

text:
    Darryl BROWN v. Angela CLEVELAND
    96-586
    940 S.W.2d 876
    Supreme Court of Arkansas
    Opinion delivered April 7, 1997
    [Petition for rehearing denied May 12, 1997.]

      Child Support Enforcement Unit of Pulaski County, by: Ann Dodson, for appellant.
    No response.

       Glaze and Brown, JJ., would grant.

   Ray Thornton, Justice.

In 1995, Darryl Brown, appellant, had physical custody of K.B., a minor child, and petitioned for an award of child support from K.B.’s mother, Angela Cleveland, appellee, who had legal custody of K.B. The matter was heard in the Pulaski County Chancery Court, tenth division, and the chancellor declined to award child support, pending a hearing for determination of legal custody. Mr. Brown urges that the court erred in ruling that Ms. Cleveland cannot be ordered to pay child support simply because she is the legal custodian of the minor child. We are not persuaded that this allegation of error accurately reflects the ruling of the court. The real issue is whether the chancellor’s exercise of discretion was appropriate under the circumstances of this case. We find that the chancellor did not abuse her discretion, and we affirm her decision.

In 1987, Ms. Cleveland instituted a paternity action against Mr. Brown, seeking to have him named as her daughter’s father, and seeking an award of child support and other relief. When the matter was heard in May of 1988 before Judge Joyce Warren, Mr. Brown admitted that he was K.B.’s father, and the court so found. However, no award of child support was made to Ms. Cleveland because K.B. was living with her paternal grandmother. In 1989, with the assistance of the Pulaski County Child Support Enforcement Unit (PCCSEU), Ms. Cleveland again sought an award of child support, but again the case was dismissed without prejudice because she did not have physical custody of the child.

On June 14, 1995, the State of Arkansas, Office of Child Support Enforcement (OCSE), sought to intervene in the case, seeking child-support payments from Ms. Cleveland to be effective retroactively to December 12, 1994. OCSE alleged that Mr. Brown, as physical custodian of K.B., had assigned to it his right to child support. The matter was set for hearing on September 20, at which time OCSE was granted permission to intervene. Ms. Cleveland was present, and the issue of who had custody of the child arose at the hearing; but because Mr. Brown was not present, the court reset the matter for December 20. On that date, Mr. Brown was present, but Ms. Cleveland was not. The court advised Mr. Brown that he could request a change in legal custody by a written motion, served upon the mother, and thereafter a hearing could be scheduled at which time custody could be changed based upon the testimony, or based upon default if the mother failed to appear.

On December 27, OCSE, the intervenor, requested findings and conclusions to support the court’s decision declining to make an award of child support pending a determination of legal custody of the child and referred the court to Ark. Code Ann. § 9-14-105 (Repl. 1993) which provides in part as follows:

(b) The following may file a petition to require the noncustodial parent or parents of a minor child to provide support for the minor child:
(2) Any other person or agency to whom physical custody of a minor child has been given or relinquished;
(d) As used in this subchapter, unless the context otherwise requires:
(2) “Noncustodial parent” means a parent who resides outside the household or institution in which the minor child resides.

Id. §§ 9-14-105(b)(2) and (d)(2). Clearly, the statute allows that parent who has physical custody of the child to seek child support from the parent who does not have physical custody; however, it does not address the legal-custodian issue raised here. On appeal, Mr. Brown, now represented by the PCCSEU, asserts that the chancellor erred in ruling that Ms. Cleveland cannot be ordered to pay child support simply because she is the legal custodian of the minor child. Mr. Brown claims that legal custody is not a prerequisite to qualify for child support under Ark. Code Ann. § 9-14-105 or any other statute. They claim the statute is “clear and unambiguous” in granting child support to one who holds physical custody only; therefore, the chancellor abused her discretion by resorting to statutory construction.

However, this assertion mistakes the thrust of Chancellor Joyce Warren’s findings of fact and conclusions of law entered in January 24, 1996. In her order, after specifically pointing out that in the 1988 hearings on paternity the mother had legal custody but that no child support was ordered, Chancellor Warren stated the following:

9. Pursuant to Rule 60 of the Arkansas Rules of Civil Procedure allowing the Court to modify its Order within ninety days, the Court concedes that Intervenor’s argument is well taken that the Court could possibly order support pursuant § 9-14-105 based on the fact that Mr. Brown does have physical custody and Ms. Cleveland would fit the definition of a non-custodial parent under that statute. However the Court does not agree that it is required to set support on a request such as this given the fact that Ms. Cleveland has legal custody. The Court has the authority to require the father to first effect a change of custody.
10. In orders entered in cases of divorce or paternity adjudication, the Chancery Court retains jurisdiction to make all necessary future orders regarding custody, child support, visitation, et cetera. It is not unreasonable or contrary to statute or case law to require a change of custody in this situation. To rule otherwise, the Court would have to interpret this enactment to mean that a parent need not bother with changing legal custody of a child, but could simply obtain physical custody through whatever means and then be entided to come to court and ask for child support.

(Emphasis in original.)

The issue before us is not whether the chancellor erroneously ruled that she was barred from awarding child support; she did not make that ruling. To the contrary, the chancellor correctly found that she had authority to award child support if such an award were appropriate. The issue is whether in exercising that authority, the chancellor may use discretion in determining that the need for an orderly procedure for changing legal custody prior to awarding support is in the best interest of the child and could reasonably be required.

It is well established that “[i]n custody matters the unyielding consideration is the welfare of the children.” Stephenson v. Stephenson, 237 Ark. 724, 726, 375 S.W.2d 659, 660 (1964). To a similar effect, as the court of appeals held in Johns v. Johns, 53 Ark. App. 90, 918 S.W.2d 728 (1996), the welfare and best interest of the child are of primary consideration in custody cases, with all other interests being secondary; and as it further noted in Lonigro v. Lonigro, 55 Ark. App. 253, 935 S.W.2d 284 (1996), child-custody decisions are within a chancery court’s broad discretion. Although we give deference to a chancellor in all chancery cases, “ [d] eference to the chancellor is even greater when dealing with child custody.” Norwood v. Robinson, 315 Ark. 255, 260, 866 S.W.2d 398, 401 (1993). This court has repeatedly held that “there are no cases in which the superior position, ability, and opportunity to view the parties carry as great a weight as those involving minor children.” Id. at 260, 866 S.W.2d at 401.

In determining custody of a minor child, it is essential that the interest of the child be given priority, and the selection of a custodian should provide stability and continuity in the child’s environment. While the plain language of Ark. Code Ann. § 9-14-105 provides for access to the court for purposes of petition and clearly authorizes the court to provide child support to anyone to whom physical custody of a minor has been given or relinquished, the statute does not prohibit the use of discretion in making awards of child support. It does not mandate the actions a court must take when presented with a support request under its provisions, nor does it require the court to grant such a request with use of such authoritative words as “the court shall” or “the court must.” It would be disingenuous to contend that the silence of the statute on the question of the chancellor’s use of discretion somehow prohibits the use of discretion.

This court has long allowed a chancery court latitude to “award the custody of the child to either parent and to make reasonable provisions for [the child’s] support.” Penney v. Penney, 210 Ark. 16, 18, 193 S.W.2d 811, 812 (1946); see also Clark v. Reiss, 38 Ark. App. 150, 831 S.W.2d 622 (1992) (addressing only child custody). The change of legal custody for a child should not be simply a matter of who is willing to let the child live with them, perhaps for the wrong reason of obtaining child support; but the change should be predicated upon consideration of which person, in the sound discretion and judgment of a chancellor, will best serve the interest of the child. Here the chancellor noted that based on hearing testimony, Mr. Brown has had physical custody of his child for nine of her eleven years and that there was nothing that would prohibit him from seeking a change of legal custody. The chancellor further suggested that the father will likely be awarded legal custody, and urged that notice be given and a hearing held for that purpose. So even though the statute set forth above gives Mr. Brown, as physical custodian, a right to seek child support from Ms. Cleveland, the chancellor did not clearly abuse her discretion by determining that it is in the best interest of this child to effectuate a change of legal custody to Mr. Brown before ordering Ms. Cleveland to pay child support.

In summary, the issue presented to this court is whether the chancellor abused her discretion, and we would only disturb the trial court’s decision if Mr. Brown could demonstrate that the chancery court’s decision was arbitrary or groundless. Holaday v. Fraker, 323 Ark. 522, 915 S.W.2d 280 (1996). Although child custody and child support are clearly separate and distinct issues, and Ark. Code Ann. § 9-14-105 only addresses child-support issues, we find that it was not an abuse of the chancery court’s discretion to require Mr. Brown to seek legal custody before it granted child support.

The decision of the chancellor is affirmed.

Glaze, and Brown, JJ., dissenting.

Tom Glaze, Justice,

dissenting. While Angela Cleveland has legal custody of the parties’ child, K.B., Angela has never had physical custody of K.B. K.B. has lived with Darryl or his mother, so Angela has never been awarded child support. The state has made medicaid payments in K.B.’s behalf, and the Pulaski County Child Support Enforcement Unit, obtaining assignment of Darryl’s rights, brought this action requesting that Angela should now be ordered to pay child support.

At the hearing in this matter on December 20, 1995, the chancellor determined that Darryl had had physical custody of K.B. since K.B. was two years old, but the chancellor held she could not require Angela to pay child support until Darryl filed a motion seeking legal custody of K.B. The chancellor’s ruling is in direct conflict with Ark. Code Ann. § 9-14-105 (Supp. 1995), which in pertinent part provides as follows:

(b) The following may file a petition to require the noncustodial parent or parents of a minor child to provide support for the minor child: (1) Any person having physical custody of a minor child;

The foregoing provision could not be clearer. Angela is a noncustodial parent, and Darryl indisputably has physical custody of K.B. . Thus, under § 9-14-105(b)(l), Darryl is authorized to seek child support from Angela.

The chancellor tried to explain away § 9-14-105(b)’s plain language by stating the statute’s purpose is to aid parents and other relatives who obtained physical custody of a child, but who did not have the opportunity or appropriate judicial forum available to obtain legal custody of a child. Section 9-14-105 simply contains no language which supports the chancellor’s construction of that provision and to accept such an explanation is merely judicial legislation. In addition, the chancellor’s suggestion that § 9-14-105 could be employed only by relatives who obtained physical custody of the child, but did not have access to the judicial forum to obtain legal custody, is a red herring. Nothing prohibits a relative, like Darryl’s mother, from seeking legal custody, even if she already has physical custody.

In conclusion, the majority court’s decision is contrary to modern-day child-support provisions, which are designed to make parents, not the state, responsible for the care of their children. Darryl meets the clear requirements of § 9-14-105, and should be permitted to request that Angela meet her responsibility of supporting K.B. Whether the chancellor decides Angela has the ability to pay child support is another issue; but irrespective of that issue, the chancellor was wrong in deciding § 9-14-105 automatically barred Darryl from seeking child-support payments until he obtained legal custody of K.B.

I respectfully dissent.

Brown, J., joins this dissent.

       K.B. was eleven years old at the time of this litigation.

       In the chancellor’s findings of facts and conclusions of law, she stated the following:
      [the court] is cognizant of Ark. Code Ann. section 9-14-105 but the Court doósn’t agree that it is required to set support since Ms. Cleveland has legal custody and it has the authority to require the father to first effect a change of custody and it is not unreasonable or contrary to statute or case law. (Emphasis added.)

       Section 9-14-105(d)(2) defines “noncustodial parent” as one who resides outside the household or institution in which the minor child resides.


author: Ray Thornton, Justice.

text:
    Warren Tom STEPHENS v. STATE of Arkansas
    CR 95-1098
    941 S.W.2d 411
    Supreme Court of Arkansas
    Opinion delivered April 7, 1997

      Mickey Buchanan, for appellant.

      Winston Bryant, Att’y Gen., by: Sandy Moll, Asst. Att’y Gen., for appellee.
   Ray Thornton, Justice.

Appellant Warren Tom Stephens was convicted of first-degree murder and sentenced to life imprisonment for the shooting death of Michael McNeal, whose body was found near DeQueen a few days after his family reported him missing. Evidence connecting appellant to the crime led to a search warrant for his home, and on May 5, 1994, during the search, appellant was arrested, taken to jail, advised of his Miranda rights, and questioned. Early the next morning, he gave a tape-recorded confession admitting to the killing. He led officers to the location where the gun, which was wrapped in plastic, was buried, and recounted how he had used paper sacks to mark his trail into the woods so he could return to the victim’s truck and drive it back to town. Over the next few days, he gave various other accounts implicating others, but these statements were inconsistent and contradictory. On appeal, he argues that (1) the court should have suppressed the taped confession and statements; (2) the court erred in admitting irrelevant and prejudicial testimony; (3) the court erred in limiting inquiries into juror relationships with a former prosecuting attorney during voir dire; (4) the court erred by commenting on the Governor’s power to pardon during deliberation upon the sentence.

We have considered each of these arguments charging error; and the transcript and abstracts have been reviewed to determine whether any rulings decided adversely to appellant involve prejudicial error. We find no error, and affirm.

Each of the assignments of error raises issues relating to factual circumstances surrounding the allegations of error; therefore, we will address each argument separately.

Appellant first argues that his taped confession and subsequent statements should have been suppressed because they were taken in violation of his constitutional rights under the Fifth Amendment. His argument is twofold. He alleges that his confession was coerced, rendering all subsequent statements “fruit of the poisonous tree.” Further, he contends that one of the subsequent statements was taken after he had asked for an attorney, violating his right to counsel.

Statements made while in custody are presumed to be involuntary, and the burden is on the State to show that the statements were made “voluntarily, freely, and understandingly, without hope of reward or fear of punishment.” Scherrer v. State, 294 Ark. 227, 234, 742 S.W.2d 877, 881 (1988). In determining whether a statement is voluntary, the reviewing court makes an independent review of the totality of the circumstances, and will not reverse unless the trial court’s findings are clearly against the preponderance of the evidence. Weger v. State, 315 Ark. 555, 869 S.W.2d 688 (1994). However, all doubts are resolved in favor of individual rights and safeguards. Davis v. State, 275 Ark. 264, 630 S.W.2d 1 (1982).

We have written that there are two components to the totality-of-the-circumstances test for determining the voluntariness of custodial statements. First, we examine the statements of the interrogating officers. Second, we consider the vulnerability of the defendant, weighing such factors as age, education, intelligence, repeated or prolonged nature of questioning, delay between receiving Miranda warnings and giving a confession, length of detention, use of physical punishment, and the defendant’s physical and emotional condition. Scherrer, 294 Ark. at 234-34, 742 S.W.2d at 881. Though the second factor is important in determining whether an interrogation is improper in a particular situation, the United States Supreme Court’s directive is explicit in that the defendant’s physical or mental conditions, in and of themselves, cannot render a confession involuntary. A finding of police misconduct is essential. Colorado v. Connelly, 479 U.S. 157, 164, 167 (1986).

The facts surrounding the confession are as follows. Appellant was arrested during a search of his home on May 5, 1994. He and his wife were taken to the courthouse, leaving his two stepchildren at home. He was questioned for about four hours. He was wearing a tank top, shorts, and shoes with no socks. He said that he was very tired, under the influence of drugs and alcohol, and worried about his family. He argues that his being questioned while under physical and mental stress amounted to coercion. The trial court held a Denno hearing and found no evidence of coercion, threats, or any improper behavior by police officers. We do not find this determination to be against the preponderance of the evidence.

The officers who interrogated appellant testified that he was mirandized at approximately 9:07 p.m. and a statement was tape recorded at 1:27 a.m. During the time he was being interrogated, they took four breaks, which the officers said were taken whenever appellant said he needed to go to the bathroom or get a drink. They said that appellant was offered soft drinks, candy, and coffee but did not ask for anything except water. At appellant’s request, the sheriff took appellant’s wife home about midnight.

Appellant never indicated that he wanted a lawyer on the date of his first statement. Shortly after 1:00 a.m., upon returning from a bathroom break, appellant seemed anxious to talk, and he gave his confession at 1:27 a.m. The officers said that appellant did not give the impression of being fatigued, only anxious. Further, they said that appellant never complained of being cold or otherwise uncomfortable.

Appellant does not argue that he was physically harmed by police or that they made threats or promises to him in exchange for a confession, and no evidence of coercion is apparent from the record. Although appellant testified at the Denno hearing that he was not offered food and that it was obvious to him that he was going to be questioned until he confessed, this court has repeatedly held that it will defer to the trial court’s finding of fact when the only determination is credibility of a witness. Weger, 315 Ark. at 558, 869 S.W.2d at 690. Further, we note that appellant admitted on cross-examination at trial that his statement was voluntary, as follows:

[Prosecutor]. Okay. On direct examination you talked about back on May 5th when you were brought here to the courthouse and indicated that you had not eaten yet.
[Appellant], That’s right.
[Prosecutor]. Are you telling us today that in any way you feel that the police coerced you in making any of the statements that you made?
[Appellant]. No, sir.
[Prosecutor]. Would you have any other different statement but for the facts that you had not eaten or done something different? [Appellant]. No, sir. I don’t know.

In sum, there is a preponderance of evidence that the confession was voluntary. The trial court did not err in admitting the confession at trial, nor did it err in admitting the three subsequent statements, as they are not fruit of the poisonous tree.

Appellant’s second Fifth Amendment argument is that the trial court should not have admitted a statement that was taken after he had asked for an attorney. These are the facts surrounding this statement.

On May 9, appellant asked to speak to the sheriff, and the sheriff brought him to his office. At this time, he said he wanted an attorney. The sheriff tried unsuccessfully to locate two attorneys. He told appellant that he could not ask him any more questions until an attorney was found. When no attorney could be found, appellant said he wanted to continue the interview. The sheriff then gave him a supplemental warning, which stated that appellant was previously apprised of his Miranda rights and had exercised his right to have an attorney present during questioning, but that he was rescinding this request and voluntarily initiated the request that the questioning continue without an attorney.

In determining whether a statement made by an accused after he has asked for counsel, but then waived this request, is admissible, the proper focus is not upon the voluntariness of the statement itself, but upon whether waiver of the right to counsel is intelligently and voluntarily made. Edwards v. Arizona, 451 U.S. 477 (1981). In Edwards, the Supreme Court, after noting that “an accused’s request for an attorney is a per se invocation of his Fifth Amendment rights, requiring that all interrogation cease,” stated that an accused is not “powerless to countermand his election” and can initiate further statements. Id. at 485.

Recently, in Esmeyer v. State, 325 Ark. 491, 930 S.W. 302 (1996), we held that a statement of an accused, which is made after he asks for a lawyer, will be admissible only if the accused initiates further contact, and in doing so knowingly and intelligently waives his right to counsel. Id. The right may be considered waived when an accused initiates contact with police after having requested counsel. Id.; see also Franks v. State, 306 Ark. 75, 811 S.W.2d 301 (1991). Fiere, appellant initiated the contact with police and signed a waiver-of-rights form that clearly stated that he had been advised of his rights, was rescinding his request for an attorney, and was voluntarily continuing to speak with the sheriff. Thus, the trial court’s determination that his waiver was knowing, intelligent, and voluntary was not against the preponderance of the evidence.

Appellant’s second point on appeal is that the trial court erred in overruling his relevancy objections to the sheriff’s testimony about statements he made during his confession that concerned “matters not connected to the case.” These matters included his explanation why he purchased a shotgun, field glasses, and handcuffs; his explanation as to where he was when threatening phone calls were made to the victim’s family; and evidence of an extramarital affair and his marijuana use. These arguments have no merit.

During the State’s case-in-chief, the sheriff testified that appellant went to a pawn shop on the day of the murder and purchased a shotgun, field glasses, and handcuffs. The sheriff questioned him about this, and appellant said that he got the field glasses for peeking in windows and the handcuffs to use on his wife during sex. Fie argues on appeal that this testimony was irrelevant and that its admission was prejudicial. We do not address this argument because it is not preserved for our review.

Earlier in the trial, appellant objected to the pawn shop owner’s testimony about the gun, but he did not object to the sheriff s testimony about the gun and the other purchases. When a question previously objected to is repeated, and there is no second objection, the matter is waived on appeal. Walker v. State, 301 Ark. 218, 783 S.W.2d 44 (1990). Also, appellant testified on cross-examination about the shotgun himself without objection. Therefore, as the sheriffs testimony was cumulative of appellant’s own, he cannot show prejudice. Echols v. State, 326 Ark. 917, 936 S.W.2d 509 (1996).

His next argument under this point is preserved for our review, and it came about as follows. On the day a threatening phone call was made to the victim’s family from a phone in Oklahoma, appellant had stated that he was in Oklahoma at a doctor’s office. He had called in sick to work and reported this to his employer. When asked by the sheriff if he was in Oklahoma that day, he said that he had lied to his employer and was actually at home by himself watching pornographic movies. Appellant complains that this evidence is irrelevant and prejudicial. We disagree. Appellant made this statement when he was being questioned about the threatening phone calls. A trial court’s ruling on relevance will not be reversed absent abuse of discretion, and we find no abuse here. Dixon v. State, 311 Ark. 613, 846 S.W.2d 170 (1993). The evidence was relevant, as a defendant’s false and improbable explanations of incriminating circumstances are admissible as proof of his guilt. Surridge v. State, 279 Ark. 183, 650 S.W.2d 561 (1983).

Appellant contends that the trial court erred in admitting evidence of an extramarital affair that he had while he was married to his first wife. The State’s theory of the case was that appellant murdered McNeal in order to be with McNeal’s wife, Candy, with whom he was obsessed. Evidence of prior, similar bad acts may not be introduced to show that a defendant acted in conformity with those acts at the time of the offense. Ark. R. Evid. 404(b). However, appellant testified himself that he wanted to have a sexual relationship with Candy and that he had no problem with extramarital affairs if the timing were right. Therefore, appellant’s bad character regarding marital infidelity was before the jury without objection, and he cannot claim prejudice. We have often said that to obtain reversal, an appellant must show not only error, but also prejudice. Wallace v. State, 326 Ark. 376, 931 S.W.2d 113 (1996).

Appellant also complains that admission of evidence regarding marijuana use was irrelevant and prejudicial. The sheriff testified that appellant told him that he used marijuana two or three times a week. However, appellant requested and received a cautionary instruction by the trial court. Therefore, he cannot complain on appeal because he received all of the relief he asked for at trial. Davasher v. State, 308 Ark. 154, 823 S.W.2d 863 (1992).

Appellant’s third assignment of error is that the trial court erred when it commented before the jury on the Governor’s power to pardon. After the jurors returned a verdict of guilty to first-degree murder, they were instructed and heard testimony as to aggravating and mitigating circumstances from which they were to determine punishment, and retired to deliberate on punishment. In the original record filed on appeal there was an issue of what happened when the jury returned to the courtroom to ask their questions. Upon the motion of both parties, we remanded to the trial court to settle the record. A supplemental record settling the issue was filed.

The original record shows that the foreman asked the court what the difference was between the community punishment facility and parole. The court, after explaining the difference, then said:

What was the second question? Life — does life mean life? Life •— the only way anybody can be eligible for parole would be if the governor granted clemency and commuted a sentence to a number of years, and that’s not impossible. There’s probably just one or two cases in the last 20 years, to my recollection, so you couldn’t count on anybody every being eligible to get out if they got a life sentence, but it wouldn’t be impossible, but it would be next to the way things stand for the last 20 years.

Appellant did not object to the answer to the juror’s question at the time the court gave it. After appellant was sentenced, the judge told the jury that he needed to do a bit of housekeeping because he did not notice that the court reporter was not in the room, and that she did not record both questions. The court asked if anyone disagreed that the question was whether community punishment was the same as parole. Appellant answered, “I know and you got the second.”

At the hearing to settle the record, appellant complained to the trial court that there was “a lot of information there and conversations between the court and counsel and jury that were just not on this record,” making it impossible to reconstruct. He did not argue, as he does on appeal, that the court’s remarks to the jury about the Governor’s power to pardon constitutes reversible error.

It is well settled that an appellant may not change the basis of his argument on appeal. Stewart v. State, 320 Ark. 75, 894 S.W.2d 930 (1995). However, we note that it is not error for a trial court to inform the jury of the Governor’s power to pardon. Arkansas Code Annotated § 16-97-103, which went into effect on January 1, 1994, provides in pertinent part:

Evidence relevant to sentencing by either the court or a jury may include, but is not limited to, the following . . .
(1) The law applicable to parole, meritorious good time, or transfer. . . .

Id. § 16-97-103(1) (Supp. 1995); see also Owens v. State, 318 Ark. 61, 883 S.W.2d 471 (1994). The law applicable to parole is set out in part in Ark. Code Ann. § 16-93-607, providing that inmates sentenced to life imprisonment may not be released unless their sentence is commuted to a term of years by the Governor. Therefore, it is not error to so instruct the jury.

Appellant’s final point is that the trial court erred in prohibiting the defendant from questioning potential jurors about any connections or relationships they may have had with Jim Bob Steel, former prosecuting attorney, who filed the charges against him, but was not trying the case. However, the record is devoid of any such attempted questioning. During voir dire, appellant’s attorney made repeated references to Mr. Steel, but did not ask any of the panel if they had any connections or relationships with him. He told the trial court he wanted to show “how the charge came about.” The court said it saw no reason for reference to Mr. Steel unless appellant desired to show that the charge was politically motivated, and told him to refrain from further reference to Mr. Steel.

Again, we reiterate that an appellant may not change the basis of his argument on appeal. Stewart v. State, supra. Furthermore, the decision to restrict voir dire examination will not be reversed on appeal absent abuse of discretion. Henry v. State, 309 Ark. 1, 828 S.W.2d 346 (1992). There is no abuse of discretion when the trial court restricts questions that do not touch upon qualifications of venirepersons to serve as jurors, or that are potentially confusing to them. Id. Further, an appellant cannot complain about losing a peremptory challenge without showing that a biased juror was actually seated. Pickens v. State, 301 Ark. 244, 783 S.W.2d 341 (1990). Without such a showing, he can get no relief from this court. Appellant’s argument is without merit.

In accordance with Rule 4-3 (h) of the Rules of the Supreme Court, the record has been reviewed for rulings decided adversely to appellant but not argued on appeal, and no reversible errors were found.

Affirmed.


author: Per Curiam.

text:
    Craig BURKHALTER v. STATE of Arkansas
    CR 96-278
    940 S.W.2d 496
    Supreme Court of Arkansas
    Opinion delivered April 7, 1997

      John I. Purtle, P.A., for appellant.

      Winston Bryant, Att’y Gen., by: Brad Newman, Asst. Att’y Gen., for appellee.
   Per Curiam.

Craig Burkhalter was convicted of first-degree sexual abuse, rape, and violation of a minor. Mr. Burkhalter’s counsel filed a notice of appeal and thereafter sought to withdraw from the case. Counsel’s motion to withdraw was denied. On April 15, 1996, counsel moved to allow Mr. Burkhalter to proceed informa pauperis. The motion did not present the necessary affidavit of indigence, and it was denied. A motion for reconsideration was made, again presenting no affidavit of indigence, and the motion was denied on June 10, 1996.

Mr. Burkhalter’s counsel has now filed a motion to remand the case to the Circuit Court for a determination of indigence. We deny the motion because there is no need to remand the case in view of the provisions of Ark. Sup. Ct. R. 6-6. We have been given no reason why the affidavit provided in the Rule has not been presented.

If compliance with Rule 6-6 occurs, and Mr. Burkhalter is thus shown to be indigent, we will proceed with the appeal. If no affidavit is filed prior to May 2, 1997, we will consider taking further action with respect to the appeal and to counsel for Mr. Burkhalter.


text:
    COCA-COLA BOTTLING COMPANY of Memphis, Tennessee v. Terry PRIDDY
    96-657
    940 S.W.2d 497
    Supreme Court of Arkansas
    Opinion delivered April 7, 1997

      Friday, Eldredge & Clark, by: Donald H. Bacon, for appellant.

      J.R. Nash, for appellee.
   Per Curiam.

The appellee, seeking to advance the scheduling of this case for submission, moves that oral argument be waived and states that the issues to be presented are not complex or new, that the issues have been briefed thoroughly by the parties, and that it is unlikely that oral argument can add to the information already provided to the court. Appellant responds by stating its belief that oral arguments will be beneficial to the court.

Our rule provides that “[i]f it appears that attempts to schedule oral argument may result in undue delay, the Court may decide any case without oral argument.” Ark. Sup. Ct. R. 5-1 (i). The practice of the court has been to schedule oral arguments upon written request by counsel, and the court has not heretofore developed a process for screening cases to determine which cases present issues or circumstances for which oral argument should be called for or granted. We will review this matter and consider whether it is appropriate to change our rules to establish criteria to determine which cases should be orally argued on appeal.

In the case before us, it appears that the oral arguments already noted can be scheduled within the next two months. We find that this scheduling will not present undue delay, and we deny appellee’s motion.


text:
    Jerry HAYES v. STATE of Arkansas
    CR 96-1363
    940 S.W.2d 886
    Supreme Court of Arkansas
    Opinion delivered April 7, 1997

      Pro Se Motion for Belated Appeal; dismissed.
    Petitioner, pro se.

    No response.
   Per Curiam.

In 1992, Jerry Hayes was found guilty by a jury of murder in the first degree and sentenced to life imprisonment. We affirmed. Hayes v. State, 312 Ark. 349, 849 S.W.2d 501 (1993). Mr. Hayes subsequently filed in the trial court a pro se petition for postconviction relief. The trial court denied the petition in an order entered April 11, 1995. No appeal was taken.

On September 20, 1996, Mr. Hayes tendered to this court a pro se motion for belated appeal of the order. The motion could not be filed at that time because Hayes failed to tender with the motion a partial record of the lower court proceedings which included a certified copy of the order from which he desired to appeal. On November 18, 1996, the certified partial record was received from Hayes and the motion was filed.

Before any examination of the merits of the motion for belated appeal can be undertaken, it must be determined whether the motion was timely filed. We conclude that it was not, and dismiss the motion.

Belated appeals in criminal cases are governed by Rule 2(2) of the Rules of Appellate Procedure — Criminal. The rule provides in pertinent part that “no motion for belated appeal shall be entertained by the Supreme Court unless application has been made to the Supreme Court within eighteen (18) months of the date of entry of. . .the order denying postconviction relief. . . .” When petitioner Hayes tendered the motion for belated appeal in September 1996, seventeen months after the order was entered, he was promptly informed of the need to provide a certified copy of the order so that the motion could be filed. He did not provide the certified copy until November 18, 1996, which was approximately nineteen months after the order was entered.

It is incumbent on a petitioner to file the motion for belated appeal in a timely manner. The petitioner here did not act with diligence and thus waived his right to appeal from the order. See Shuffield v. State, 292 Ark. 185, 187, 729 S.W.2d 11, 12 (1987).

Motion dismissed.


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

text:
    Christine M. JONES v. Jerry A. JONES
    97-212
    940 S.W.2d 881
    Supreme Court of Arkansas
    Opinion delivered April 7, 1997

      McNutt Law Firm, by: Mona J. McNutt, for petitioner.

      Lueken Law Firm, by: Patty J. Lueken, and Helen Rice Grinder, for respondent.
   Per Curiam.

On November 4, 1996, this court held that the chancellor erred in finding material changes in circumstances existed that warranted the modification of the parties initial custody order. We reversed the chancellor’s order changing custody of the parties’ child to Dr. Jones and remanded with instructions to reinstate the original custody order which awarded Christine Jones custody of the child. See Jones v. Jones, 326 Ark. 481, 931 S.W.2d 767 (1996). The court’s mandate in Jones was issued on November 22, 1996, but for some reason, the chancery court delayed reinstating the original custody order, prompting Ms. Jones’s filing a petition on December 12, 1996, requesting enforcement of this court’s mandate. On December 13, 1996, we issued a per curiam directing the chancery court to reinstate the original custody order forthwith. Jones v. Jones, 326 Ark. 828, 933 S.W.2d 810 (1996). The chancery judge reinstated the order.

Subsequently, the parties entered a consent order establishing certain, but not all, visitation rights sought by Dr. Jones. A hearing on the disputed visitation matters was held on February 11, 1997. However, before the February 11 hearing commenced, Dr. Jones filed a petition for change of custody and served it on Ms. Jones. The petition largely rehashed the custody-dispute history between the parties beginning in the early 1990’s to this court’s decisions on November 4, 1996, and December 13, 1996. Dr. Jones’s petition added the following:

That since custody has been reinstated to the [Ms. Jones] as per the original custody order, [Dr. Jones] has attempted to contact the minor child by telephone, to no avail on many occasions. When Dr. Jones does reach the child, the child acts totally out of character in the conversation either by being reluctant to talk with Dr. Jones or simply putting the telephone down.

Dr. Jones’s petition concluded, asking for his petition to be heard by a judge who will apply the proper standard of proof so the minor child’s best interest will be addressed and Dr. Jones would be afforded due process. He further asked that a neutral expert and attorney ad litem be appointed and that Ms. Jones’s mental health and stability be addressed.

During the February 11, 1997 visitation hearing, Ms. Jones asserted the chancellor revealed that he had already set a hearing to consider Dr. Jones’s custody petition. Ms. Jones also complained that, during the visitation hearing, Dr. Jones’s expert witness, Dr. Becky Porter, was permitted to testify at the visitation hearing to opinions she had formed and related at the parties’ earlier custody proceeding. While the chancellor indicated he did not want to go through and rehash everything right now (“We’ll have to do that at some point in the future”), the chancellor permitted Porter to opine her views on the parties’ child and Ms. Jones’s instability.

Ms. Jones brings this petition for writ of prohibition, stating that the chancery court is wholly without jurisdiction to rehear the custody issue already decided by this court. She further argues that the chancery court has no power to redetermine the “emotional needs” issue previously decided. Basically, she suggests that Dr. Jones intends to retry and appeal the same custody issue a third time.

Dr. Jones responds, asserting that whatever errors this court found occurred at the parties’ last (and second) custody hearing resulted from the chancellor’s actions, not Dr. Jones’s. He says he should not be punished because the chancellor erred in improperly imposing the burden of proof on Ms. Jones and that he should now be allowed to have a chancellor correctly address the “emotional needs” and “best interests” of the child issues not correctly tried by the prior chancellor. Finally, Dr. Jones cites Earney v. Brantley, 309 Ark. 190, 828 S.W.2d 832 (1992), for the proposition that res judicata is an affirmative defense to be raised in the trial court and presents no question of jurisdiction. Further, absent a showing that the trial court is acting without or in excess of its jurisdiction, Dr. Jones claims a writ of prohibition may not be granted.

We agree with Dr. Jones that Earney controls here and that Ms. Jones’s remedies must be sought below. We add that Rule 11 sanctions may also be requested at trial and now on appeal if the attorney or party initiates a frivolous proceeding or appeal in violation of the dictates of those rules. See ARCP Rule 11 and Ark. R. App. P. — Civil 11 (326 Ark. 1134).

While we deny Ms. Jones’s petition, we are obliged to underscore certain matters contained in this court’s previous decision handed down on November 6, 1996, especially since this court had to take the extraordinary step to enforce its mandate by a subsequent per curiam. That per curiam was necessary because, for whatever reason, the chancery court failed to reinstate the parties’ original custody order. Because we believed that this court’s opinion and instructions were perfectly clear, we issued a simple “forthwith” order directing the chancery court’s compliance. The chancery court then complied.

Because of the continuing controversies involving this matter, we reiterate the well-established rule that when this court remands a case to chancery court with directions, the chancery court has no power to enter any decree except that directed, and it has no power to change or extend this court’s mandate. See Ferguson v. Green, 266 Ark. 556, 587 S.W.2d 18 (1979). In this same vein, we remind the parties that, in the appeal decided November 4, 1996, this court conducted a de novo review of the chancellor’s custody decision, and in doing so, the court specifically stated that child custody is determined by what is in the “best interests” of the child, and it is not altered absent a material change in circumstances. In deciding the child custody issue, this court reviewed in lengthy detail the evidence offered at trial, including Ms. Jones’s move to Little Rock, Dr. Jones’s remarriage, and the child’s emotional needs. In considering the child’s emotional needs, the opinion related the competing views and opinions of four expert witnesses, concerning Ms. Jones’s mental and emotional stability. After a full discussion of the parties’ respective evidence, this court concluded as follows:

In sum, when viewing together the repeated entry of ex parte orders, the erroneous shift of the burden to Christine Jones to prove her emotional stability, and the chancellor’s faulty reliance on her move to Litde Rock and Dr. Jones’s remarriage as material changes in circumstances, we must conclude that the chancellor’s decision to change custody to Dr. Jones was clearly erroneous.

Simply put, this court held the chancellor was clearly wrong in ruling Dr. Jones had proven that a material change of circumstances existed, and a transfer in custody was warranted.

Our reasons for requiring more stringent standards for modifications than for initial determinations of custody are to promote stability and continuity in the fife of the child, and to discourage the repeated litigation of the same issues. As one commentator has recognized, the improper use of custody proceedings is more likely if parents are allowed to relitigate their relative fitness without the addition of significant new facts. Jeff Atkinson, Modern Child Custody Practice, § 9.02 at 452 (1986).

Having given the foregoing salutary statements, we remain of the opinion that evidence regarding Dr. Jones’s petition for modification must first be appropriately addressed below. In deciding the modification question, we emphasize that the chancellor should only consider facts arising since the last custody order, or evidence that has not been previously presented to the chancellor. See Jones, 326 Ark. at 491; Stamps v. Rowlins, 297 Ark. 370, 761 S.W.2d 933 (1988). We deny Ms. Jones’s petition.

Brown, J., concurs.

Robert L. Brown, Justice,

concurring. While I certainly agree that the writ of prohibition should be denied, I disagree with that part of the per curiam opinion that holds that Jerry Jones is limited in arguing his son’s emotional needs as a reason to change custody. This court did not reach the merits of that issue in Jones v. Jones, 326 Ark. 481, 931 S.W.2d 767 (1996) (Jones I). Rather, we decided the emotional-needs issue based on faulty and improper procedure, that is, the chancellor wrongfuEy shifted the burden of proof in the custody matter to Christine Jones and engaged in ex parte communications with mental health experts for Jerry Jones. We held in Jones I:

In sum, when viewing together the repeated entry of ex parte orders, the erroneous shift of the burden to Christine Jones to prove her emotional stability, and the chanceUor’s faulty reliance on her move to Litüe Rock and Dr. Jones’s remarriage as material changes in circumstances, we must conclude that the chancellor’s decision to change custody to Dr. Jones was clearly erroneous.

Jones, 326 Ark. at 494, 931 S.W.2d at 774. Thus, on de novo review, this court took a clear position on the merits with respect to Christine Jones’s move to Little Rock and Jerry Jones’s remarriage. We did not do so with respect to the issue of the boy’s emotional needs but pointed to the procedural deficiencies.

The per curiam opinion is correct in asserting that repeated litigation of the same issues between former spouses does not promote stabüity and continuity in the life of the minor chEd. This policy is adeptly promoted by this court’s rule that custody should be modified only when there are changed circumstances since the last award of custody or when there is proof affecting the best interests of the chEd that was not previously known by the chanceEor. See Stamps v. Rawlins, 297 Ark. 370, 761 S.W.2d 933 (1988). However, in holding that this court’s reinstatement of custody in Christine Jones forecloses evidence pertinent to the chEd’s emotional needs that occurred prior to Jones I, the majority hamstrings Jerry Jones and prevents him from presenting any history on this matter. He should not be penalized by wrongful procedures employed by the trial court.

On de novo review, this court has been clear that we decide matters on the merits. Fye v. Tubbs, 240 Ark. 634, 401 S.W.2d 752 (1966). In Fye, which was a child custody dispute, Justice George Rose Smith wrote:

At the hearing in the court below both parties developed their testimony fully. More than a dozen witnesses testified. There is no reason to think that a second hearing is needed. It is appropriate for us to try the matter de novo, as is our practice in equity, and reach a decision upon the merits.

Fye, 240 Ark. at 635-36, 401 S.W.2d at 753 (emphasis added).

Because there has been no final decision since the original decree vesting custody in Christine Jones on whether Cameron’s emotional needs mandate a change in custody, Jerry Jones should be allowed to fully develop the issue. The per curiam opinion truncates his ability to do so.

       We note that, while the concurring opinion suggests this court did not consider the parties’ child’s emotional needs, the court thoroughly dealt with this issue in its original opinion under the caption “Cameron’s emotional needs.” See Jones, 326 Ark. at 491, 931 S.W.2d at 772.


text:
    Timothy MOSES v. STATE of Arkansas
    CR 96-680
    940 S.W.2d 496
    Supreme Court of Arkansas
    Opinion delivered April 7, 1997

      Richard H. Young, for appellant.
    No response.
   Per Curiam.

Appellant, Timothy Moses, by his attorney, Richard H. Young, has filed a motion for rule on the clerk. His attorney “excepts full responsibility for the late filing.” We assume he means he “accepts” responsibility for the error.

We find that such error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See per curiam order dated February 5, 1979. In re: Belated Appeals in Criminal Cases, 265 Ark. 964; Terry v. State, 272 Ark. 243, 613 S.W.2d 90 (1981).

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


author: Per Curiam. Tom Glaze, Justice,

text:
    Damond SANFORD v. STATE of Arkansas
    CR 96-908
    940 S.W.2d 497
    Supreme Court of Arkansas
    Opinion delivered April 7, 1997

      William M. Howard, Jr., for appellant.
    No response.
   Per Curiam.

The procedural background in this matter is set forth in our per curiam opinion delivered on March 17, 1997. Sanford v. State, 327 Ark. 678, 939 S.W.2d 310 (1997). Attorney William M. Howard, Jr., counsel for appellant Damond Sanford, was ordered to appear before this court on March 31, 1997, to show cause why he should not be held in contempt for his failure to file Sanford’s brief in a timely manner.

Mr. Howard appeared on March 31, 1997, entered a plea of guilty to the contempt citation, and accepted full responsibility for fading to file Sanford’s brief in a timely manner. In mitigation, he stated that he had been troubled with hypertension and headaches, and that he had been affected by the death of a close friend. Mr. Howard apologized for his inaction, and assured this court that Sanford’s brief would be ready for filing within ten days.

Based on the foregoing, we hold that Mr. Howard is in contempt for failing to file Sanford’s brief in a timely manner. We fine him $250.00, and will allow him ten days from the date of this opinion to file a belated brief in this matter. A copy of this opinion will be forwarded to the Committee on Professional Conduct.

Glaze, J., concurs.

Tom Glaze, Justice,

concurring. Appellant Damond Sanford’s attorney is about four months past his final extension date for filing Damond’s brief in this cause. Considering the ten days granted by today’s per curiam, counsel has received a total of 214 days to file his brief. I join in granting Sanford another extension, but write to continue to point out this court’s unfair treatment of the State in the same situations and requests. One day, hopefully, we will overrule State v. Tien, 326 Ark. 71, 929 S.W.2d 155 (1996), which requires this court’s dismissal of the State’s case in these situations. See also State v. Bowden, 326 Ark. 266, 931 S.W.2d 104 (1996).