author: Richard L. Mays, Justice. John F. Stroud, Justice,

text:
    RANDALL, BURKART/RANDALL DIVISION of TEXTRON, INC. v. Charles L. DANIELS, Director, Arkansas Department of Labor; Henry L. McHENRY, Administrator Division et al
    79-302
    597 S.W. 2d 71
    Supreme Court of Arkansas
    Opinion delivered April 14, 1980

      Oscar Fendler and Dinsmore, Shohl, Coates & Deupree, by: Michael W. Hawkins, Cincinnati, Ohio, for petitioner.

      Youngdahl, Larrison & Agee, for respondents.
   Richard L. Mays, Justice.

This case arises from a special examiner’s award of unemployment compensation to claimants whom the petitioner contends are ineligible because of the “labor dispute” disqualification provision of the Arkansas Employment Security Act (Ark. Sat. Ann. § 81-1101, et seq. [Repl. 1976]). On appeal the award has been sustained by the Board of Review, the circuit court and the Court of Appeals. The case is here on a petition for certiorari, which we granted.

Petitioner, the Randall Company, is a manufacturing concern with a plant in Blytheville, Arkansas which employs more than 350 employees who are represented for collective bargaining purposes by the United Automobile Workers, Local 1249, In July of 1977, petitioner began negotiations with the union for renewal of a collective bargaining agreement which expired September 1, 1977. On September 9, 1977, after failing to reach an agreement, the union went on strike and set up a picket line at petitioner’s plant. The petitioner submitted an offer of settlement to the union which it first rejected and then accepted by mailgram on October 16, 1977, abandoning all strike activities and applying unconditionally for reinstatement of the striking employees. Although the petitioner contends that the offer of settlement had been withdrawn before the union accepted it, petitioner reinstated all of the striking employees for whom there was an available job and resumed normal operation. When those striking employees for whom there was no available job applied for unemployment compensation for the period after October 16, 1977, petitioner opposed their application arguing that since the petitioner and the union had not reached an agreement concerning a collective bargaining contract, the “labor dispute” had not ended and, therefore, the claimants were ineligible for benefits.

The petitioner’s contention hinges upon the meaning of the term “labor dispute” in the context of the unemployment compensation disqualification provision of the Employment Security Act which provides at Section 4(f) (Ark. Stat. Ann. § 81-1105(f) [Repl. 1976]) as follows:

If so found by the Director no individual may serve a waiting period or be paid benefits for the duration of any period of unemployment if he lost his employment or has left his employment by reason of a labor dispute other than a lockout at the factory, establishment, or other premises at which he was employed (regardless of whether or not such labor dispute causes any reduction or cessation of operations at such factory, establishment or other premises of the employer), as long as such labor dispute continues, and thereafter for such reasonable period of time (if any) as may be necessary for such factory, establishment, or other premises to resume normal operation. . . .

The general statutory purpose of unemployment compensation is to relieve the worker from the financial hardship of unemployment which he did not cause. Although an inquiry into fault usually precedes any denial of unemployment compenstation, the “labor dispute” provision eliminates a need for that inquiry by withdrawing, irrespective of fault, unemployment compensation benefits from thdse whose unemployment was caused by a labor dispute “as long as such labor dispute continues.” Recognizing that unemployment compensation might unnecessarily and inequitably undermine stable labor-management relations and be used to finance a labor dispute, the General Assembly wisely suspended entitlement to unemployment compensation during a labor dispute to preserve the state’s neutrality. Since it would be difficult to formulate a definition of “labor dispute” to adequately address every set of facts in which an award of unemployment compensation neither offends our public policy supporting unemployment compensation nor that supporting the labor dispute exception, the legislature deliberately failed to define the term “labor dispute” in the Employment Security Act. Therefore, the meaning of “labor dispute” in the context of the statute must be derived from a case by case approach, harmonizing the factual complexities of labor-management relation conflicts with the underlying public policies.

The petitioner contends that the factual situation involved in this appeal was addressed by this Court in Guinn v. Arkla Chemical Corp., 253 Ark. 1029, 490 S.W. 2d 442 (1973). In Guinn, supra, when the employer closed his plant during a strike after a “rock bottom” settlement offer from the union, citing adverse economic conditions, the union ceased its strike activities and suspended negotiations with the employer. Claiming that the labor dispute ended when the plant closed and strike activities ceased, the inactive strikers applied for unemployment compensation. They argued that since no jobs were available after the employer closed the plant, they were involuntarily unemployed because they could not return to work even if they wanted to. Perceiving the employer’s closing of the plant and the subsequent suspension of negotiations by the union as simply a further manifestation and continuation of labor dispute, this Court held that the labor dispute provision disqualified the claimants since the union and employer had not reached an agreement concerning the terms and conditions under which the employees would return to work if the plant were reopened.

In the fact situation before us today, the union ceased all strike activities and applied unconditionally for reinstatement of all striking employees even though the employer refused to stand by its last offer of settlement after the union tried to accept it. The employer has resumed normal operation, and no strike participant has refused to return to work when requested by the employer. The special examiner and Board of Review found that the labor dispute provision did not disqualify claimants from unemployment compensation benefits since the labor dispute had effectively ended. We find that there is substantial evidence to support the decision. When the employer disputed the union’s right to accept its offer of settlement, the employees did not renew strike activities or suspend negotiations; they stood by their unconditional offer to return to work. Although the union and employer continue to dispute the terms and conditions under which the employees should return to work, there is no dispute about the terms and conditions under which they will return to work. When employees in fact return to work after cessation of strike activities induced by a labor dispute, the absence of a collective bargaining agreement between the union and employer is probably irrelevant but is at best only one factor which the fact finder has a responsibility to weigh in determining whether a labor dispute has ended for the purposes of unemployment compensation eligibility.

The state has no interest in withdrawing unemployment compensation from strike participants who have unconditionally offered to return to work for an employer who would willingly reinstate them if he had a job for them. Since the fact finder’s decision has an adequate evidentiary basis, and the award of unemployment compensation does not offend the public policies underlying unemployment compensation or the labor dispute exception, we cannot disturb the award.

Affirmed.

Fogleman, C.J., concurs in the result.

Stroud, J., dissents.

John F. Stroud, Justice,

dissenting. Local 1249 of the United Automobile Workers went on strike and set up a picket line at petitioner’s plant on September 9, 1977. It is undisputed that the strike was called as the result of an inability of the union and the employer to agree on the terms of a new collective bargaining agreement following the termination of the prior agreement a few days earlier. Therefore, a labor dispute within the meaning of Ark. Stat. Ann. § 81-1105 (f) (Repl. 1976) arose on September 9, 1977, between the union and the employer. The sole question presented on this appeal is whether or not the labor dispute still continued on November 9, 1977, when the matter was heard by a Special Examiner for the Arkansas Employment Security Division.

Without requoting the entire section of the statute set forth in the majority opinion, the portion of the statute applicable to the facts in this case states, “. . . no individual may ... be paid benefits for the duration of any period of unemployment if he . . . has left his employment by reason of a labor dispute ... as long as such labor dispute continues . . .” (Emphasis added.) By use of the word such, the legislature made perfectly clear that so long as the labor dispute that caused the strike continues, the strikers are not entitled to unemployment benefits. In other words, if the same labor dispute existed on November 9, 1977, as existed on September 9, 1977, the individuals seeking unemployment compensation are precluded by the statute from receiving them. Any suggestion that the termination of a strike is the termination of a labor dispute was answered by this court in Guinn v. Arkla Chemical Corp., 253 Ark. 1029, 490 S.W. 2d 442 (1973). As pointed out in the majority opinion, the denial of unemployment benefits was sustained after the strike ended and the plant closed, because even if the plant reopened, there was no agreement between the employer and the union.

I disagree with the decision of the Special Examiner that the labor dispute ended on October 16, 1977, when the union ended its strike and sent a mailgram to petitioner accepting the company’s last contract offer and also advising that all strikers applied unconditionally for reinstatement. There was clearly no contract offer for the union to accept when it sent the mailgram. The testimony of witnesses representing the employer and the union is overwhelming that the employer had advised the union in the presence of the Federal Mediation Conciliation Service that its offer would be withdrawn on October 5, 1977, if not accepted by that date. No citation of authority is necessary for the basic premise of contract law that an offer cannot be accepted after it has terminated or been withdrawn. The evidence is clear that the employer withdrew the offer before the union accepted it. This is further evidenced by the letter the employer wrote the representative of the union on October 20, 1977. The letter acknowledged receipt of the mailgram, but pointed out that there was no offer on the table to be accepted and suggested a further meeting on October 25, 1977. That meeting was held and further negotiations took place in an effort to resolve the labor dispute, but no agreement was reached due to other developments unrelated to this appeal.

Mr. Jim Bunch, assistant personnel manager of petitioner, testified on Novermber 9, 1977, that the terms of the collective bargaining agreement had not been resolved and that the labor dispute continued. He also acknowledged that negotiations had continued after the union’s mailgram of October 16, 1977. Mr. Albert Hayes, president of the local union, also testified on the same day that the labor dispute that began on September 9, 1977, was still continuing and had not been settled.

In his written decision, the Special Examiner also stated that the termination of the labor dispute was confirmed by the fact that the company had begun to rehire strikers. The labor dispute giving rise to the strike was not a dispute between the company and some or all of its employees. The labor dispute was between the company and the union and concerned the terms of a new collective bargaining agreement. Likewise, the strike was not a wildcat strike, but was a strike called by the union due to its dispute with the employer. The labor dispute was admittedly unresolved at the date of the hearing before the Special Examiner, and the fact that the company had been able to reinstate some of the strikers is totally immaterial.

I would reverse the Court of Appeals because I find no substantial evidence to support the decision of the Special Examiner.


source: Caselaw Access Project

author: Richard L. Mays, Justice.

license: Public Domain

text:
    Paul A. SCHMIDT v. Violet Rachel SCHMIDT
    79-337
    596 S.W. 2d 690
    Supreme Court of Arkansas
    Opinion delivered April 14, 1980

      Howell & Price, P.A., for appellant.

      Hoover, Jacobs & Storey, for appellee.
   Richard L. Mays, Justice.

On February 9, 1977, the Lonoke County Chancery Court entered a decree granting an absolute divorce to Violet Rachel Schmidt, appellee herein, from Paul A. Schmidt, appellant. Incorporated into the decree was a property settlement agreement which required appellant to pay to appellee $700.00 per month as alimony until appellee remarried or appellant’s death. On February 6, 1979, the appellee filed a petition in Lonoke Chancery Court to require appellant to comply with the terms of the divorce decree concerning alimony payments, for a judgment against appellant for back alimony in the amount of $3,700 and for reasonable attorney’s fees. At a hearing on the petition on May 3, 1979, arguing for the first time that the statute upon which alimony payments were based was unconstitutional, appellant objected to any further alimony payments and any judgment for arrearages. The Chancellor disregarded the appellant’s argument and ultimately granted the appellee’s requested relief, except for attorney fees. We agree with the Chancellor’s result and affirm.

Appellant contends that the alimony provision of the decree of divorce is unenforceable because it is based on an unconstitutional alimony statute, Ark. Stat. Ann. § 34-1211 (Repl. 1962). He argues that the alimony statute is unconstitutional because it is gender-based and, therefore, subject to the same equal protection infirmity which the United States Supreme Court enunciated in Orr v. Orr, 440 U.S. 268, 99 S. Ct. 1102, 59 L. Ed. 2d 306 (1979) and this Court addressed in Hatcher v. Hatcher, 265 Ark. 681, 580 S.W. 2d 475 (1979). We recently found this argument persuasive in Sweeney v. Sweeney, 267 Ark. 595, 593 S.W. 2d 21 (1980) when it was raised in the trial court before the granting of the final decree of divorce and held that Ark. Stat. Ann. § 34-1211 (Repl. 1962) was unconstitutional because of its gender-based classification. We also recently refused to reach the merits of a similar challenge to the constitutionality of the alimony statute in Boyles v. Boyles, 268 Ark. 120, 594 S.W. 2d 17 (1980) when it was raised for the first time after the granting of the divorce decree, stating at p. 126, “. . . [W]e consider a decree for alimony to be res judicata on the circumstances prevailing at the time of the decree.” We likewise perceive no reason to deviate in the case at bar from our well reasoned decision in Boyles v. Boyles, supra, and, therefore, hold that Paul A. Schmidt, like Dunavent Mason Boyles, waited too late to assert his constitutional argument concerning alimony payments for it to be considered today.

The appellee also complains on cross-appeal of the chancellor’s refusal to allow a reasonable attorney’s fee. This is a matter of discretion for the Chancellor and considerable weight is given to his opinion. Robinson v. Champion, 251 Ark. 817, 475 S.W. 2d 677 (1972). Since our review of the facts and the record reveals no abuse of discretion, we must sustain the Chancellor.

Affirmed.


author: Richard L. Mays, Justice. John A. Fogleman, Chief Justice, Darrell Hickman, Justice, John F. Stroud, Justice.

text:
    Leroy ALEXANDER v. STATE of Arkansas
    CR 79-180
    598 S.W. 2d 395
    Supreme Court of Arkansas
    Opinion delivered April 14, 1980
    Rehearing denied May 19, 1980

      Thomas G. Montgomery, Public Defender, for appellant.

      Steve Clark, Atty. Gen., by: Joseph H. Purvis, Deputy Atty. Gen., for appellee.
   Richard L. Mays, Justice.

Upon a charge of first degree murder, appellant was found guilty by a jury of second degree murder and sentenced to imprisonment for 20 years. For reversal on appeal appellant contends that he was denied a right to a speedy trial. We agree.

Appellant, Leroy Alexander, was arrested for first degree murder on August 12, 1978 and incarcerated in the Crittenden County jail without bail to await trial. As far as the record before us reveals, appellant continued to be held without bail after he was formally charged by information on September 5, 1978, and remained in jail without arraignment or any other action on his case for approximately six months, until February 7, 1979, when the prosecuting attorney’s office advised the circuit court clerk to notify the appellant that his trial had been set in circuit court for February 26, 1979. Before appellant was notified of a trial setting, however, the Circuit Court of Crittenden County had convened at regular terms on three separate occasions to schedule matters for trial. On February 9, 1979, when appellant received notice of his trial setting, the public defender, acting on appellant’s behalf, filed a motion to dismiss the murder charge against appellant for denial of a speedy trial. Before the appellant was actually tried on February 27, 1979, the circuit court convened at a regular term on February 19, 1979 for a fourth time.

Although both the state and federal constitutions guarantee a criminal defendant a right to a speedy trial, the meaning of that guarantee in terms of judicial administration is more specifically addressed by the Arkansas Rules of Criminal Procedure. Not only do the Rules of Criminal Procedure require courts to give priority to criminal cases over other matters in scheduling trials, they establish the highest priority for the scheduling of trials of criminal defendants who like appellant are incarcerated while awaiting trial. Moreover, the rules provide specific time limitations within which a defendant must be brought to trial to prevent his discharge. Since many of our trial judges travel a circuit in which they are required by statute to open court at specified times in various counties within their judicial district, the time limitation on bringing a defendant to trial is expressed in “full terms of court.” Rules 28.1(a) and (b) and 28.2(a) of the Arkansas Rules of Criminal Procedure provide:

RULE 28.1 Limitation.
(a) Any defendant charged with an offense in circuit court and committed to a jail or prison in this state shall be brought to trial before the end of the second full term of the court, but not to exceed nine (9) months, from the time provided in Rule 28.2, excluding only such periods of necessary delay as are authorized in Rule 28.3.
(b) Any defendant charged with an offense in circuit court and held to bail, or otherwise lawfully set at liberty, shall be brought to trial before the end of the third full term of court from the time provided in Rule 28.2, excluding only such periods of necessary delay as are authorized in Rule 28.3.
RULE 28.2 When Time Commences to Run.
The time for trial shall commence running, without demand by the defendant, from the following dates:
(a) from the date the charge is filed, except that if prior to that time the defendant has been continuously held in custody or on bail or lawfully at liberty to answer for the same offense or an offense based on the same conduct or arising from the same criminal episode, then the time for trial shall commence running from the date of arrest.

Rule 30 establishes the consequences for violation of the speedy trial rule and, excluding periods of necessary delay, provides for absolute discharge of a defendant who is not brought to trial before the expiration of three full terms of court.

Although quantifying the right to a speedy trial in terms of court provides a realistic standard for evaluating the conduct of prosecutors and courts in utilizing local judicial machinery to bring criminal cases to trial, it does not provide a fixed and uniform time period in which to determine violation of the speedy trial right. When the General Assembly established terms of courts for various jurisdictions by fixing the time of their beginning, it did not expressly fix the time for their ending or require that they last for any uniform period of time. In the absence of a fixed time for the termination of a term of court the general rule is that the term continues until the time fixed by law for the beginning of the next succeeding term of court. Since many of our jurisdictions also include courts with civil and criminal divisions and separate terms, determining which terms to count and when to count them presents further difficulty in assessing compliance with the speedy trial rule. Although Act 432 of 1977 abolished divisions in circuit courts, the act did not become effective until January 1, 1979, some five months after the appellant’s arrest. Even before Act 432 of 1977 became effective, however, civil divisions of the court shared the responsibility with criminal divisions for disposing of criminal cases. Therefore, before January 1, 1979, the Crittenden County Circuit Court had three divisions, one criminal and two civil, with each having responsibility for protecting a criminal defendant’s right to a speedy trial and with each division holding two terms a year as follows:

1st division (criminal), on the 3rd Monday in February; and the 3rd Monday in September;
2nd division (civil), on the 4th Monday in January and the 3rd Monday in November;
3rd division (civil), on the 2nd Monday in May; and the 4th Monday in June.

Although the Circuit Court of Crittenden County convened for its September, November, January and February terms before appellant was tried, the trial court held that appellant should not be discharged because only one “full term of court” had expired before his trial. Relying on our decisions in Gardner v. State, 252 Ark. 828, 481 S.W. 2d 342 (1972) and State v. Knight, 259 Ark. 107, 533 S.W. 2d 488 (1976), the trial court treated each division like a separate court and, although considering the expired terms of both the criminal and civil divisions, only added terms in any one division to determine how many terms had expired. Calculating terms by this method, the trial court determined that only the September term had expired in Division 1, only the November term had expired in Division II, and no term had expired in Division III. Therefore, the trial court concluded that since no more than one full term of court had expired in any single division, the speedy trial rule had not been violated. Although the trial court’s conclusion is consistent with our holding in Gardner and Knight, supra, it is inconsistent with our more recent decisions in Harkness v. Harrison, 266 Ark. 59, 585 S.W. 2d 10 (1979) and Beaumont v. Adkisson, Judge, 267 Ark. 511, 593 S.W. 2d 11 (1980). In Harkness, we not only recognized for the first time the need to add the expired terms of each division if the responsibility for expediting criminal cases was to be meaningfully shared by the judges of the criminal and civil divisions, but that after January 1, 1979, we could no longer calculate terms by any divisional method since divisions would no longer exist. In Beaumont, supra, we plainly recognized that Act 432 abolished divisions of circuit courts. Consequently, after January 1, 1979, the Crittenden County Circuit Court had three judges and held six terms a year with each term ending when the next succeeding term began instead of three divisions with each divisional term ending only when the next term within that division began. Therefore, under our decision in Harkness, the September term of Division I expired in January, 1979, the November term of Division II expired in January, 1979, and the January term of the Crittenden County Circuit Court expired on February 19, 1979 when the February term began, some nine days before appellant was tried. Since the record reveals no reason for the approximately six and one-half month delay in appellant’s trial, and more than three full terms of court expired before his trial, he must be discharged for violation of his speedy trial right.

Reversed.

Fogleman, C.J., concurs and Hickman and Stroud, J.J., dissent.

John A. Fogleman, Chief Justice,

concurring. The majority has reached a result that is inevitable and necessarily correct, however regrettable it may be that one who seems to have been guilty of the crime with which he was charged beyond a reasonable doubt will escape punishment. It is the primary function of the judicial system to preserve the rule of law, even if the guilty do escape punishment as a result of the courts’ facing up to their responsibility.

This court has spoken on the purpose of speedy trial rules in reference to Ark. Stat. Ann. § 43-1708 (Repl. 1977). In Ware v. State, 159 Ark. 540, 252 S.W. 934, we said:

*** But, as its manifest purpose is to promote dispatch in the administration of justice, it must commend itself to the enlightened judgment of every one who loves law and order as a wise as well as humane enactment. “Justice delayed is justice denied,” says Mr. Gladstone. It is highly important to the public weal that those accused of crime shall be brought to a speedy trial in order that, if guilty, public justice may be meted out without delay. This is as powerful a deterrent to the commission of public offenses as is the knowledge that condign punishment will follow when the lawbreaker is overtaken in his crime. It is also humane and just to the accused, who may be innocent, because it imposes upon the ministers of justice the obligation not to unnecessarily delay the trial of the charge which the State has lodged against him, and to afford him an opportunity to prove his innocence before he has been compelled to endure a prolonged punishment by imprisonment beyond the end of the second term of the court after the term in which he was indicted. These were doubtless the dominant considerations in the minds of the Legislature when they enacted this statute. It has been a part of our laws ever since the State had an existence. These sections are found in the Revised Statutes and in all our digests. They are consonant with that provision of our Bill of Rights, art. 2, § 10 of the Constitution, which declares that “in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial,” and also with art. 2, § 13, which declares that “he ought to obtain justice freely, and without purchase, completely, and without denial, promptly, and without delay, conform-ably to the laws.”

In referring to cases from other jurisdictions, which we said stated the law on the subject, we took a quotation from the opinion in In re Begerow, 133 Cal. 439, 65 P. 828 (1901). The following is an excerpt from that quotation:

“ *** The government cannot take property from the meanest inhabitant without just compensation paid or tendered in advance; but it takes his liberty, which, it has been justly said, is to some extent to take his life, upon a mere charge of crime. This is necessary that society may be protected. But necessity is the only excuse, and to imprison beyond what is absolutely necessary is tyrannous and oppressive. And that is precisely what the State has covenanted with each inhabitant that it will not do.” The prisoner was discharged.

The innocent can be protected only if everyone, even Leroy Alexander, benefits from the protection which we have related to our own constitution. Speedy trial rules are not for the benefit of the state or any of its subordinate jurisdictions. Quite the contrary. They are a check on the state, its jurisdictions and its officials.

I would call attention to the fact that Alexander registered his objection on February 9, 1979, which was prior to the time Aired Harkness raised the same question, which was treated in Harkness v. Harrison, 266 Ark. 59, 585 S.W. 2d 10 (1979). Harkness was discharged, even before trial. It would be extremely difficult for Leroy Alexander, or anyone else in his place, to understand if he were treated differently, even though he did not follow his objection with a petition for prohibition.

In order to explain my position and to respond to fallacies in the dissenting opinion, it is necessary to first review some fundamental principles.

The time of the termination of terms of circuit court in Crittenden County and the second judicial district has never been fixed by statute. Actually, the General Assembly has never specified any time for the term of any circuit court in Arkansas to end. When only one judge presided over the circuit courts in the second judicial district, the terms of court in Crittenden County ended when a term of court in another county in the judicial circuit began. Roberts & Schaeffer v. Jones, 82 Ark. 188, 101 S.W. 165; House v. McGehee, 188 Ark. 277, 65 S.W. 2d 21. In Thomas v. State, 196 Ark. 123, 116 S.W. 2d 358, the effect of Initiated Act No. 3 of 1936 was noted. Section 31 [Ark. Stat. Ann. § 43-1702 (Repl. 1977)] of that act, provided that when any circuit court is duly convened at a regular term, it should remain open for all criminal proceedings until its next regular term. This was a change in the law prior to the adoption of that act in that the terms of circuit court in Crittenden County would not end until the next regular term of that court began. The act clearly recognized, however, that the end of a term was determined by the beginning date of the next term. The act did not pertain to divisions of court at all. There was a restriction that prohibited a session of court in one county when its term was still open if it interfered with any other court to be held by the same judge. The judge of a court or of a division, in other words, could not hold a session of court in Crittenden County, when that court had recessed, if it interfered with his holding court in another county.

When the workload in the second judicial district had become too heavy for one judge to handle with dispatch, another division had been created by Act 138 of 1911. The divisions were designated as the first and second divisions. The act directed that the clerks of the various courts in the district should assign all civil cases to the first division and all criminal cases to the second division. The judges were authorized to divide the business in the courts of the district on a basis other than the civil-criminal division by written order if they deemed it expedient. It was not reversible error for a criminal case to be tried in the civil division. The beginning dates of terms of court for both divisions were fixed, not by dates, but by a designated Monday. The judges were not assigned to a particular division and the judges determined between themselves the division in which each would sit. The begining dates of terms of court were fixed for the divisions. First division courts in Crittenden County had terms beginning the twelfth Monday after the first Mondays in February and September. The second division court terms began on the first Mondays in February and September. See Ark. Stat. Ann. § 22-310 (Repl. 1962).

By 1965, two judges were overloaded in the second judicial district and by Act 505 of 1965, provision was made for a third judge. Three divisions of each circuit court in the district were established. The act provided for the election of judges by designated divisions for the first time, but specifically provided that this should not be deemed an enlargement nor a diminution of their power as circuit judges to try and dispose of any litigation or matter which fell within the jurisdiction of the circuit court. Clerks were required to keep separate dockets for criminal and civil cases. The judge of the first division was designated to preside over cases on the criminal docket and the judges of the second and third divisions to preside over cases assigned to the civil docket, but the presiding judge of a division was authorized to assign any case, civil or criminal, from one docket to the other “as may be deemed best for the dispatch of business.” The judges were directed to alternate in presiding over the three divisions. The act provided that on and after January 1, 1967, “the terms shall begin” at times and places fixed in the act. For the first division those terms in Crittenden County began as follows:

First division (criminal): on the third Monday in February and September.
Second division (civil): on the fourth Monday in January and the third Monday in November.
Third division (civil): on the second Monday in May and the fourth Monday in June.

It is clear from the act that all three divisions had jurisdiction to try criminal cases.

Act 505 was amended by Act 12 of 1967, insofar as it related to the second division. The beginning dates of the terms of that division in Crittenden County were designated as the fourth Monday in January and the third Monday in November. Thus, after the passage of the 1967 act, the terms of the circuit court of Crittenden County, Arkansas, began on the following days each year:

The fourth Monday in January (second division).
The third Monday in February (first division).
The second Monday in May (third division).
The fourth Monday in June (third division).
The third Monday in September (first division).
The third Monday in November (second division).

No change has been made in the beginning dates of terms of court in Crittenden County since the 1967 act. Termination dates were not fixed by that act or any other. Courts in the second judicial district have always operated under the general rule of law pertaining to termination of a term of court. This is succinctly stated at 21 CJS 233, Courts, § 151, viz:

A term of court continues until it is finally adjourned or expires by operation of law. The time for the expiration of a term of court by operation of law may be a definite date fixed by statute, or by an order made under constitutional or statutory authority, for its termination.
Where the time of beginning but not of ending of a term is fixed, the term, when it has been duly begun, will continue, and may for all general purposes be considered as in session, until it is adjourned sine die or, in the absence of a previous adjournment sine die, until the time fixed by law for the beginning of the next succeeding term; ***

Act 207 of 1951, Ark. Stat. Ann. § 22-312 (Repl. 1962), did not fix a termination date for any term. It was little more than an extension of the provision of § 31 of Initiated Act No. 3 of 1936 to civil cases. It specifically recognized the general rule of law by providing that the circuit court of each county, and of each division in each county, should be open, by “operation of law, at the beginning of each regular term of such court, as fixed by law, and shall remain open until the beginning of the next such term of the court.” [Emphasis mine.]

This was the state of the law when this court decided Gardner v. State, 252 Ark. 828, 481 S.W. 2d 342. In Gardner, we recognized the existence of the problem of crowded dockets. We spoke of the purpose and effect of Act 505 of 1965, saying:

Thus, it is abundantly clear that one of the main purposes and intended effect of the Act, was to permit the trial judges to transfer cases either civil or criminal from one division to the other so that the litigants in civil cases may obtain justice promptly and without delay, and so that the accused in criminal prosecutions may enjoy the right to a speedy and public trial. The various terms of the circuit courts are fixed by statute. ***

We were then dealing with the provisions of Ark. Stat. Ann. § 43-1708 (Repl. 1964), which do not materially differ from a very similar provision of Rule 28 of the Arkansas Rules of Criminal Procedure. This court had, on June 28, 1971, entered a per curiam order adopting rules to require that precedence be given criminal cases by circuit courts. That per curiam order was quoted and it reads:

Pursuant to the provisions of Act 470 of 1971 the following rules are hereby promulgated by the Supreme Court of Arkansas in order that the ends of justice may be more efficiently and expeditiously served.
I
All courts of this state having jurisdiction of criminal offenses shall henceforth, except for extraordinary circumstances, give precedence to the trials of criminal felony offenses over other matters before said courts.
II
All courts of this state having jurisdiction of criminal offenses shall henceforth, in the absence of unusual or exceptional conditions requiring the expeditious trial of an accused person free on bail, give precedence to the trials of those criminal offenses in which the accused person is incarcerated by the state pending said trial.

We then stated the purpose of these rules, saying:

It was the purpose and intent of our per curiam order to facilitate by rules of this court, under the authority if not the mandate of Act 470 of 1971, speedy trials in criminal cases under the authority already vested in the trial courts and under the existing statutory law pertaining to the various divisions of multiple-division circuit courts. The only effect of our per curiam order was to require, except for extraordinary circumstances, that the trial of criminal felony cases take precedence over other matters before the courts and as between the criminal cases, those cases in which the accused is incarcerated while awaiting trial, take precedence over cases where the accused is free on bond.

The court then held that the expiration of the term, within the meaning of Ark. Stat. Ann. §§ 43-1708 — 43-1710, applied to terms in any one of the divisions in which the accused could be tried in a multi-division court and did not apply to the combined over-lapping terms of the combined divisions. This was a clear recognition that all three divisions of the circuit court of a county in the second judicial district had jurisdiction to try criminal cases and that they should be transferred from one division to another in order to guarantee a speedy trial to an accused. The appellant in that case was not discharged because the second term of no single division of the court had expired when his case was set for trial. Thus it is clear that, at that time, an accused would have been entitled to release if two full terms of any division had expired when his case come on for trial. It is also clear that this court regarded the divisions (not the judges, who alternate) as having separate and independent terms.

We were next confronted with the speedy trial situation in a multi-judge district in State v. Knight, 259 Ark. 107, 533 S.W. 2d 488, which arose in the Circuit Court of Crittenden County. We were again dealing with Ark. Stat. Ann. §§ 43-1708 — 43-1710, because the Arkansas Rules of Criminal Procedure had not become effective. Of course, we still treated the divisions as if they were separate courts, insofar as terms of court were concerned. We applied the rule of Gardner in determining that no two terms of any division had expired before Knight’s trial was set. It is also significant that we specifically pointed out that the end of a term in any division ended when the next term in that division began. Otherwise, divisions were not significant, because it was made clear that Knight could have been tried in any division of the court. It was urged by the two dissenters in that case that we should apply the rule as appellant seeks to have done here, even though, at the time Knight was decided, there were three divisions of the circuit court of Crittenden County.

Much has changed since Knight was decided. The first change was the adoption of the Arkansas Rules of Criminal Procedure, effective January 1, 1976. Although we had made it clear that the reservation of certain terms of court for civil cases could no longer be accepted because criminal cases were being held on the docket far too long, the effect of Criminal Procedure Articles I and II, quoted above, was preserved. Article VIII of the Arkansas Rules of Criminal Procedure is addressed to speedy trial. Rule 27.1 is the very first rule in that article. It was intended to retain the substance of the earlier rules adopted by this court in the per curiam order of June 23, 1971. See Commentary to Article VIII. The rule is as follows:

All courts of this state having jurisdiction of criminal offenses shall:
(a) except for extraordinary circumstances, give precedence to the trials of criminal felony offenses over other matters before said court; and
(b) in the absence of unusual or exceptional conditions requiring the expeditious trial of an accused person free on bail, give precedence to the trials of those criminal offenses in which the accused person is incarcerated by the state pending said trial. [Emphasis mine.]

Therefore, criminal cases were to take precedence in “civil” divisions, and the trials of those incarcerated were to take precedence over all other cases in any and all divisions.

We then undertook to establish standards to govern in determining when an accused was to be discharged for failure to accord him a speedy trial. The resulting rules were adopted in an effort to bring some measurable standards, in the form of specificity, to the rather indefinite balancing process mandated by cases such as Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972). See Commentary to Article VIII. The pertinent rules, like our statutes which they supplanted, require no showing of prejudice. The purpose of the rules was to eliminate the necessity for such a showing. When the time allowed has expired, the prejudice is presumed, and for good reason. For example, how does one show on motion to dismiss, how the memory of a witness has become befogged or untrustworthy by passage of time, in a way that this factor can be balanced in the scales with other pertinent factors? No showing of prejudice was ever required under Ark. Stat. Ann. §§ 43-1708 — 43-1710. A showing of prejudice has never been required in the application of our own speedy trial rules, as distinguished from those cases where Barker alone is applicable.

There was a prime example of the memory failure of a witness in this case, and the net result of a memory refreshment was unfavorable to appellant. On the other hand, it is possible that the witness, due to passage of time, might have given a version less favorable to appellant than her original statement. In order to make the governing periods of time specific, they were stated as limitations and they should be applied as an absolute bar to prosecution. See Ware v. State, 159 Ark. 540, 252 S.W. 934. We have held Rule 28.1 (b) is jurisdictional and that prohibition is available to an accused who has been denied the right to speedy trial. Callendar v. State, 263 Ark. 217, 563 S.W. 2d 467. This is also applicable to Rule 28.1 (a). See Harkness v. Harrison, 266 Ark. 59, 585 S.W. 2d 10 (1979). A reading of the rules makes this effect obvious and mandatory. Pertinent portions of the rules are as follows:

RULE 28. LIMITATIONS AND EXCLUDED PERIODS
RULE 28.1 Limitation
(a) any defendant charged with an offense in circuit court and committed to a jail or prison in this state shall be brought to trial before the end of the second full term of the court, but not to exceed nine (9) months, from the time provided in Rule 28.2, excluding only such periods of necessary delay as are authorized in Rule 28.3.
(b) any defendant charged with an offense in circuit court and held to bail, or otherwise lawfully set at liberty, shall be brought to trial before the end of the third full term of court from the time provided in Rule 28.2, excluding only such periods of necessary delay as are authorized in Rule 28.3.
RULE 28.2 When Time Commences to Run.
The time for trial shall commence running, without demand by the defendant, from the following dates:
(a) from the date the charge is filed, except that if prior to that time the defendant has been continuously held in custody or on bail or lawfully at liberty to answer for the same offense or an offense based on the same conduct or arising from the same criminal episode, then the time for trial shall commence running from the date of arrest;
(b) when the charge is dismissed upon motion of the defendant and subsequently the defendant is arrested or charged with an offense, the time for trial shall commence running from the date the defendant is subsequently arrested or charged, whichever is earlier;
RULE 28.3 Excluded Periods. [Not material to this case.]
RULE 30. CONSEQUENCES OF DENIAL OF SPEEDY TRIAL
RULE 30.1 Absolute Discharge.
(a) Subject to the provisions of subsection (b) hereof, a defendant not brought to trial before the running of the time for trial, as extended by excluded periods, shall be absolutely discharged. This discharge shall constitute an absolute bar to prosecution for the offense charged and for any other offense required to be joined with that offense.
(b) An incarcerated defendant not brought to trial before the running of the time for trial as provided by Rules 28.1 — 28.3 shall not be entitled to absolute discharge pursuant to subsection (a) hereof but shall be recognized or released on order to appear.
(c) The time for trial of a defendant released pursuant to subsection (b) hereof shall be computed pursuant to Rules 28.1 (b) and 28.2.
RULE 30.2 Waiver
Failure of a defendant to move for dismissal of the charges under these rules prior to a plea of guilty or trial shall constitute a waiver of his rights under these rules.

The next change to take place was the adoption of Act 432 of 1977. It was entitled:

AN ACT to Establish the Circuit Court and Chancery Court Circuits in this State; and for Other Purposes. [Emphasis mine.]

Section 1 provided that, effective January 1, 1979, the several circuit-chancery court circuits in the state should be constituted as specified in that statute. The second circuit was composed of one less county than the previous second judicial district had been, but the numbering of the district was a fortuitous circumstance as a comparison of the numbering of other districts will show. It was provided that the electors of that circuit should elect three circuit judges and three chancellors, without any reference whatever to divisions.

The premise of the dissenting opinion that Crittenden County has three divisions is unsound. There are no divisions of any circuit since the passage of Act 432, which was effective January 1, 1979. Beaumont v. Adkisson, Judge, 267 Ark. 511, 593 S.W. 2d 11 (1980). Few, if any of the judicial districts retained their identity when that act became effective. The General Assembly in a comprehensive rearrangement of judicial districts did not see fit to perpetuate the division concept. Instead of multi-division districts, we now have multi-judge districts. Where judges were formerly elected by divisions, they were elected by positions under Act 432. It was clearly recognized in Harkness v. Harrison, supra, that the laws distinguishing civil and criminal divisions were abolished by this act. We said that we would count the terms of court of each division when Rule 28 is in issue. Although we listed terms there by divisions, we said that it could readily be seen that unless excludable periods precluded the application of Rule 28, Harkness had not been timely brought to trial. I see absolutely no suggestion in that opinion that terms of court still related to divisions and that the termination date of a term of court had not been affected by Act 432. We did not make any calculation of terms in Harkness; that decision was based solely on the division concept, but we pointed out that the September 1978 term of Division I had passed. It had, under any system of calculation. We also said that the January 1978 and November 1978 terms of Division II had passed. They had, whenever the termination date might have been. But it is important to note that we granted prohibition and that Harkness would not have been entitled to prohibition unless three terms of court had passed. Therefore, it was necessary to consider that three terms had passed before the date set for his trial, or he would only have been entitled to release from custody. Harkness does not mandate a result different from that reached in the majority opinion.

There was no occasion to overrule either Gardner or Knight when Harkness was decided because there is absolutely no conflict or inconsistency among the three. Neither Gardner nor Knight held that if three terms in any one division had not run under Ark. Stat. Ann. § 43-1708 — 43-1710 (Repl. 1977) (not Rule 28 as indicated in the dissenting opinion, because it was not then effective), an accused would not be entitled to discharge. To the contrary, in both Gardner and Knight, we held that three terms had not passed in any one division.

In this case Alexander raised the question about a month earlier than Harkness did, but did not seek prohibition. Instead, he pursued the question on appeal, as he had a right to do. Harkness was arrested on August 12, 1978, and the information was filed on September 5, 1978. Both Harkness and Alexander were in a sort of twilight zone. It is quite clear that when Act 432 of 1977 became effective, there were no longer any divisions of the circuit courts. See Beaumont v. Adkisson, Judge, supra; Harkness v. Harrison, supra. Since those courts which had been multi-division courts became only multi-judge courts, the terms of circuit court in any county in a multi-judge district became terms of court for the circuit court of that county and not for divisions of the circuit court. Divisions previously had different terms, but judges did not, and do not, have terms of court in Crittenden County, or in any other county in the district, or anywhere else in the state. The beginning dates of the terms of court in Crittenden County were fixed by Ark. Stat. Ann. § 22-310 (Supp. 1979). They are:

1. The fourth Monday in January
2. The third Monday in February
3. The second Monday in May
4. The fourth Monday in June
5. The third Monday in September
6. The third Monday in November.

Therefore, when Act 432 of 1977 became effective each term of circuit court in Crittenden County ended when the next term began. But in the case of both Harkness and Alexander, the system used in Gardner and Knight was applicable until January 1, 1979. Consequently, we find that Alexander was arrested and charged during the February, 1978, term of Division I, the January, 1978, term of Division II, and the June, 1978, term of Division III. The first term of the Circuit Court of Crittenden County under Act 432 began on January 22, 1979. The effect of Act 432 of 1977 was that all terms of all divisions ended on that date. So, on January 22, 1979, two terms of Division I had expired, i.e., on September 18, 1978, and January 22, 1979. Two terms of Division II had expired, i.e., on November 20, 1978, and January 22, 1979. Although only one term of Division III had expired, Alexander was entitled to be discharged from custody because two terms of court had expired in two “divisions” but his trial was not barred until a third term expired. He was tried on February 27, 1978.

A new term of court had commenced on February 19, 1979, so a third term had expired on that date, and Alexander was entitled to absolute discharge. The bar was absolute so it was jurisdictional. It resulted from our own prescriptions of definite and ascertainable standards and from the abolishment of divisions of circuit courts.

I am unable to understand how it can be said there is no longer any provision for three divisions of the circuit courts in the second circuit (most of the counties of which were in the second judicial district) but only for three judges, as stated in the third paragraph of the dissenting opinion, and still be said “when another circuit judge from another division begins his term.” I would also point out that “two or more circuit courts of the same circuit” in Ark. Stat. Ann. § 22-312 (Repl. 1962) in the quotation in the tenth paragraph of the dissenting opinion are not the same as two or more circuit courts of the same county. There is only one Circuit Court of Crittenden County or of any other county in Arkansas. The Circuit Court of Crittenden County and the Circuit Court of Poinsett County, for instance, are two circuit courts of the same circuit, and both may be in session at the same time.

I find nothing in the majority opinion stating that terms of court begin by divisions after January 1, 1979. The situation in the second circuit is unique, only in that it is the only circuit in which there are three, rather than one or two or five circuit judges, and the regular terms of court occur more frequently.

I see no reason or necessity to change our rules to have an identical time period in every circuit, unless or until the General Assembly may establish a single annual term for each circuit court. The nine-month limitation is a protective outside limitation. Speedy trial standards must permit a balancing of the rights of an accused and the judicial resources of the state. In counties where there are frequent terms of court, judicial resources should permit a more expeditious disposition of criminal charges, particularly when the accused is held in jail for trial on a specific charge. New terms permit new docket settings on a clean slate.

The proposal that the term concept for speedy trial rules should be abandoned overlooks the fact that in many districts the nine months period is rather meaningless because the required two terms will have already expired. There has been a concerted effort to bring about a reduction of the time allowed to bring an accused to trial. The nine months period only comes into play in those districts where terms of court may last for more than four months. Some last as long as six months. Yet consideration must be given to the fact that in some districts a single circuit judge may have as many as five counties in which he must endeavor to maintain some degree of currency of both criminal and civil dockets. It is only reasonable that in a district having numerous terms of court and two or more judges, a quicker disposition of cases should be expected than in a single judge district. But in no district do we even approach the ultimate 100-day limit mandated by Congress for the federal courts. See 18 U.S.C. § 3161 (1976). But it is, of course, essential that we balance the rights of the accused and the ability of the courts to hold court and dispose of cases in any particular county.

I would reverse the judgment and dismiss the case.

Darrell Hickman, Justice,

dissenting. Alexander was brought to trial within three terms of court and I would affirm his conviction. He was tried during the third term of court as we count terms in Harkness v. Harrison, 266 Ark. 59, 595 S.W. 2d 10 (1979). It is my understanding that an individual incarcerated may apply for release from incarceration if he is not tried within two terms but is not entitled to an absolute discharge unless he is not brought to trial within three terms of court. Rules of Crim. Proc., Rule 30.1 Alexander did not apply for release.

The majority has, in my judgment, read into our decision in Harkness a manner of fixing terms that is not expressed, nor implied, in Harkness. Indeed, the majority’s method of computing terms of court in Crittenden County is contrary to our decision in Harkness.

Being the author of Harkness, I accept the responsibility for it, its clarity, and its soundness. Perhaps our decision should have specifically overruled two prior decisions, Gardner v. State, 252 Ark. 828, 481 S.W. 2d 342 (1972) and State v. Knight, 259 Ark. 107, 533 S.W. 2d 488 (1976), because there is no doubt Harkness overruled these cases as to counting terms of court in the Second Judicial Circuit. The reason Harkness gave for changing the determination of terms was the fact that Act 432 of 1977 no longer provided for three divisions of court in this circuit but only three judges. The three judges of this circuit had been designated as judges of a division of circuit court; Division I being a judge for criminal cases, and Divisions II and III were designated to try civil cases.

In applying Rules of Crim. Proc., Rule 28 to determine if a person has a speedy trial, it is usually necessary to count terms of court. In Gardner and Knight we only counted terms in any one division, never “overlapping” terms of the various divisions. If three terms had not run in any one division, then Rule 28 did not become effective.

Harkness changed that method of counting terms by providing that the terms of each division must be counted in applying Rule 28 and if a total of three terms of court had run in any of the divisions, whatever their designation, then Rule 28 would be applied.

However, we specifically said in Harkness that terms of the circuit court were not affected. Then, we went on to set out the terms as they exist in Crittenden County which are designated by divisions. This designation is by statute and we approved it. On rehearing, we were asked to clarify Harkness so the state would know exactly how to count terms after Harkness. We clarified our decision and related exactly what terms had run. We said:

. . . The 1978 Term of Division I had passed; the January, 1978 and November, 1978 terms of Division 2 had passed. All of these are full terms of circuit court that had lapsed without any action on the charge. [Emphasis added].

Consequently, it is clear to me that Harkness stands for the proposition that while divisions of circuit court no longer exist in that one can be designated criminal and another civil - there is but one circuit court, the terms of the court as set by the General Assembly were not affected.

It is a complicated procedure to count terms of court in Crittenden County. However, I think that Harkness is clear as to what method will be used. That is, as clear as it can be. Now, the majority is saying that while terms of court may begin in Crittenden County as provided by the General Assembly, they may not end as provided by the General Assembly. Now, the majority is saying that a term ends when another circuit judge from another division begins his term. While that may sound reasonable, that is not what the law provides.

Ark. Const. art. 7 § 12 says that the General Assembly has the authority to set terms of court. Ark. Stat. Ann. § 22-312 reads in part:

. . . The circuit court of each county, and of each division in each county having two [2] or more divisions of circuit court, shall be open, by operation of law, at the beginning of each regular term of such court, as fixed by law, and shall remain open until the beginning of the next such term of court;. . . [Emphasis added.]
The same statute goes on to state:
. . . Two [2] or more circuit courts of the same circuit may be concurrently in session. . . .

These laws, in my judgment, provide that a term of court begins and ends at the beginning of the next term of court in that division.

It is a paradox that the majority finds that the General Assembly can begin terms, by division, in Crittenden County but cannot end them by division.

There is no doubt that the situation in the Second Judicial Circuit is unique and it has given us some problems. We changed the rule in Harkness and for good cause. But to again change the rules, in my judgment, cannot be justified. Harkness, for good or ill, stands and it should stand unless it is overruled for good cause and that, I submit, the majority is not doing.

There are other considerations. The Rules of Criminal Procedure were adopted by this court and if they cannot be uniformly applied throughout the State of Arkansas, then they should be changed. What we have is a situation where a criminal defendant will have to be tried in Crittenden County in about six months whereas the same criminal defendant may not have to be tried in Pulaski County for over a year. Furthermore, we have the majority deciding that a term of court in Crittenden County may last only three weeks.

While we must deal with this specific case, we should address the total problem since we have authority to do so. We should change our rules. While that is not an easy task, since terms of court vary throughout the state, a uniform standard should exist so that all criminal defendants have the same right to a speedy trial in all parts of the state.

There is another alternative and that is that the General Assembly can deal with this matter by making terms of court uniform. For example, terms of court in the Second Circuit should be changed so that we do not have the problem of overlapping terms. In Pulaski County there are five circuit judges but all of the terms begin and end at the same time and the problem does not arise in Pulaski County as it does in Crittenden County.

There were other allegations of error in the case of Alexander but I find no merit to them and I would affirm the judgment.

John F. Stroud, Justice.

The majority has counted terms of Crittenden County Circuit Court in a manner so strained that I cannot agree with the opinion. For the first time this court is holding that, for purposes of applying the speedy trial rules, a term of court ends in multi-judge districts when the term of another circuit judge begins in that county. I think it is an interpretation that was never contemplated nor intended by the legislature when it adopted Act 432 of 1977 abolishing divisions in circuit court. As was pointed out in Harkness v. Harrison, 266 Ark. 59, 585 S.W. 2d 10 (1979), without dissent less than a year ago, the abolition of the distinction between civil and criminal divisions did not affect the terms of circuit court. The majority is using the date, set forth in Ark. Stat. Ann. § 22-310 (Repl. 1962) to determine the beginning of a term of circuit court in Crittenden County, but is not applying the date for the end of that term set forth in the same statute. The opinion of the majority is also inconsistent with the language of Rule 28 of the Rules of Criminal Procedure. The Rule requires the defendant to be brought to trial “before the end of the third full term of court.” (Emphasis added.) The reference to full term surely does not mean the early termination of the term because the term of another circuit judge begins.

I urge amendment by this court of Rule 28 to create clarity and bring uniformity to its application throughout the state. I see no justification for a rule requiring a criminal trial in Crittenden County in half the time allowed in some other counties of Arkansas. I would amend the rule by specific reference to the calendar and not to terms of court. Rules 27/ 28,29 and 30 of the Rules of Criminal Procedure follow with very few exceptions the Standards, Speedy Trial published by the American Bar Association. The most notable exception, however, is the expression of time requirements in terms of court rather than by a fixed period of time. Whether the time limitations be nine months for an incarcerated defendant and twelve months for a defendant on bail, or some other time limitations, I feel this type of change would substitute stability and understanding for confusion. The rights of a criminal defendant to a speedy trial should be determined by how long he is incarcerated pending trial and how long he must wait for trial. I also believe the true concern of criminal defendants is with the length of time involved and not with how many terms of court have passed or how many judges have come to town.

We cannot expect the circuit judges and prosecuting attorneys of this state to abide by the rules governing speedy trials when this court keeps changing the rules by court interpretation and then applies them retroactively. In Harkness v. Harrison, supra, felony charges were dismissed due to the adoption of a new method of counting terms of court in Crittenden County. In the case here on appeal, a convicted murderer will be discharged from prison by the same retroactive application of a rules change. The defendant was tried on February 27, 1979, but the Harkness decision was not rendered until June 18, 1979. There is no question but that Alexander was given a speedy trial under the language of State v. Knight, 259 Ark. 107, 533 S.W. 2d 488 (1976), which was the latest pronouncement of this court concerning the counting of terms of court in Crittenden County at the time of his trial. Normally, we do not retroactively apply amendments made to the Rules of Criminal Procedure, and I think it wrong to amend the rules by court interpretation and apply that change retrospectively under the guise that it is jurisdictional. How can it be jurisdictional when our rules provide that a right to a speedy trial is waived if not raised before a plea of guilty or trial? Ark. Stat. Ann. Vol. 4A, Rules of Criminal Procedure, Rule 30.2 (Repl. 1977).

I would affirm the trial court because I feel the defendant was given a speedy trial under the applicable law of Arkansas, and because I find no merit to the other allegations of error raised by appellant.


author: John A. Fogleman, Chief Justice.

text:
    Nancy BETHELL v. John P. BETHELL, Jr.
    79-332
    597 S.W. 2d 576
    Supreme Court of Arkansas
    Opinion delivered April 21, 1980

      Brown & Etter, P.A., by: Robert J. Brown, for petitioner.

      Lanny K. Solloway, for respondent.
   John A. Fogleman, Chief Justice.

The parties were divorced after 14 years of marriage, by a decree of the Chancery Court of the Northern District of Arkansas County, entered on January 6, 1972. They had entered into a written settlement agreement dated January 4, 1972. The decree recited that the amounts set forth in the agreement with respect to alimony and maintenance to be paid to petitioner (plaintiff) by respondent (defendant) “as a means of dispensing with the proof upon those issues which are not now in dispute between the parties” were approved by the court to merge in the decree. Respondent was ordered to pay, subject to the further orders of the court, $700 per month alimony and $500 ($250 for each child) per month for support and maintenance of the two children born to the marriage.

On June 19, 1978, petitioner Nancy N. Bethell filed her “Motion for Contempt” alleging that respondent Dr. John P. Bethell, Jr., was $37,200 in arrears on the payments ordered and that he had failed to repay a loan of $4,200 for money she lent him. She asked that Dr. Bethell be held in contempt, that he be required to comply with the decree, that she recover the arrearage and the money lent, and that she be allowed attorney’s fees.

Dr. Bethell denied petitioner’s allegations and pleaded a private agreement between the parties reducing the alimony to $300 per month and alleged that Mrs. Bethell was es-topped from getting equitable relief and that she had waived her rights under the divorce decree. Dr. Bethell alleged that he had been regularly paying petitioner $800 per month, of which $300 was alimony and $500 child support. He also alleged that Mrs. Bethell came into court with unclean hands and that she was seeking to perpetrate a fraud on the court. He also asked that his liability for alimony be terminated. After a hearing, the chancellor denied petitioner any relief as to the alleged arrearages and remitted them. She appealed to this court on the ground that the parties had no power to modify either the agreement between the parties or the decree. We transferred the case to the Court of Appeals under Rule 29 (3), Rules of the Supreme Court and Court of Appeals (Ark. Stat. Ann. Vol. 3A, Repl. 1979). That court affirmed the decree of the Chancery Court. We granted certiorari to review the decision of the Court of Appeals on the ground that the case involved an issue of significant public interest and a legal principle of major importance. We affirm the decision of the Court of Appeals but do not fully agree with some of the opinion of that court.

It was stipulated that Dr. Bethell had paid $800 per month commencing about October, 1973, up through October 1, 1978 and that he had made a payment of $800 on November 15, 1978. Dr. Bethell paid the alimony and child support according to the terms of the decree for about 18 months. He said that Mrs. Bethell got all the money from the sale of their home and paid all the bills, leaving her about $20,000, which she referred to as her savings. He said that an irrevocable life insurance trust of $75,000 had been established for the benefit of Mrs. Bethell and their two male children. According to him, his gross income at the time of the divorce was $4,250 per month, before, and $2,500 per month after, taxes. He said that he could not continue paying $1,200 per month, keep the boys in private schools, pay his other obligations, and still pay his own living expenses. He testified that at the time of the divorce, he and Mrs. Bethell had a verbal agreement, resulting from her asking him, and his agreeing, to pay $1,200 per month, until she started teaching school, and then she would take a cut. Dr. Bethell testified that she suggested $400 per month alimony and $500 per month child support, but that when he suggested that the alimony be only $300 per month, she agreed. He said that it was implicit in that agreement that he would pay for the private schooling of the two boys, which he estimated amounted to $3,600 per year. He stated that in October, 1973, he reduced the payments to Mrs. Bethell in accordance with their verbal agreement. He said that, prior to that time, he had paid for private schooling for both boys, bus fares for visitations, clothes, shoes and insurance.

The written agreement between the Bethells is not fully abstracted, so we rely in part upon the terms of the agreement as they are disclosed by the decree of divorce and the testimony of the parties. We do know that there was a settlement of property rights and that a life insurance trust of some sort was involved.

Mrs. Bethell is 43 years of age. She had not wanted to strap Dr. Bethell forever with paying alimony if she could work and had agreed that, at the time she started working, he could cut the alimony back to $300 per month. She said that Dr. Bethell verbally agreed to pay tuition for both boys at the time that the total monthly payment was reduced to $800 per month, but that the educational requirement was not mentioned in the written agreement.

Petitioner asserts that the trial court erred in refusing to render judgment for the alleged arrearages in the payment of alimony to her as a result of the reduction of the payments from $700 to $300, contending that the reduction by Dr. Bethell was voluntary; that the parties had no power to tamper with the court’s decree; that the agreement between the parties violated the statute of frauds because it was not in writing; and that there was no consideration for the agreement running to her.

Because of the admitted agreement between the parties, this case is not really a case in which the husband reduced alimony payments by his own unilateral action. Of course, he could not relieve himself of his obligation in this respect. See Jerry v. Jerry, 235 Ark. 589, 361 S.W. 2d 92; Thompson v. Thompson, 254 Ark. 881, 496 S.W. 2d 425. Furthermore, it is not a case where the trial court’s powers of modification are barred because of the written agreement fixing the amount to be allowed, due to the fact that this was not an agreement independent of the decree; to the contrary, the agreement merely established an amount which the court should fix as alimony for the wife, without any intention of conferring upon the wife an independent cause of action on the contract. See Lively v. Lively, 222 Ark. 501, 261 S.W. 2d 409; Adams v. Adams, 223 Ark. 656, 267 S.W. 2d 778. The written agreement specifically provided that it would merge into the divorce decree.

We do not think petitioner’s points for reversal are actually pertinent to the real issues. Even though the chancellor in his opinion pointed out the parties made an oral agreement for reduction of the alimony, he based his remission of the arrearages upon the equities in the case on the bases of that agreement and Dr. Bethell’s reliance upon it.

Our treatment of the question of an ex-wife’s entitlement to judgment for arrearages in alimony and child support in cases presented to us, has not resulted in guidelines that are a model of clarity, nor has it provided a straight and easily recognizable path to be followed by trial courts, but the holdings in the various cases involving the question are not as inconsistent as they may seem upon superficial examination and “proof-text” reading.

Insofar as dealing with arrearages in payments is concerned, it has been pointed out that there is an analogy in cases involving alimony and those involving child support. Brun v. Rembert, 227 Ark. 241, 297 S.W. 2d 940. Within limitations attributable to the overriding concern of the courts for the welfare of children, cases involving child support arrearages have been considered as precedential in cases involving alimony arrearages and vice versa.

Perhaps the beginning point for all considerations of the power of the court to remit accumulated payments is Sage v. Sage, 219 Ark. 853, 245 S.W. 2d 398. We held then, and have consistently held thereafter, that entitlement to payment of either alimony or child support vests in the person entitled to it, as the payments accrue, as the equivalent of a debt due. See Brun v. Rembert, supra; Riegler v. Riegler, 246 Ark. 434, 438 S.W. 2d 468; Kirkland v. Wright, 247 Ark. 794, 448 S.W. 2d 19; Holley v. Holley, 264 Ark. 35, 568 S.W. 2d 487. Sage is sometimes cited and relied upon as authority holding that the chancery courts have no power to remit past due payments. Perhaps some of the language of that opinion can be taken argumentatively to support that position. It is very significant, however, that we clearly said that the courts have no power to remit accumulated payments under the circumstances prevailing in that case. We did quote and rely upon a textbook statement that the court, on application to modify a decree of divorce, is without authority to reduce the amounts or modify the decree with reference thereto retrospectively, unless some reservation is made in the decree itself. A little later we decided Antonacci v. Antonacci, 222 Ark. 881, 263 S.W. 2d 484, in which we affirmed the chancery court’s refusal to allow the mother judgment for unpaid installments of maintenance of the minor child of the parties. There was no mention of Sage and the reasons for the denial of the judgment were not clearly stated, although we said that there was no doubt the chancery court took into consideration the fact that permission was granted the mother to take the child to California and that there might be some expense to the father in the event he wished to visit the child in California. Shortly thereafter we decided Pence v. Pence, 223 Ark. 782, 268 S.W. 2d 609. This decision was by a fragmented court and that fact has undoubtedly led to some of the confusion on the question involved here. Three dissenting judges found no basis for denial of a judgment for past due child support, taking the position that the mother was entitled to the full amount she claimed. The prevailing plurality of three held that the mother had waived her right to claim repayment of the sums that she had expended for support of the child during the time the father was delinquent in payments. The payments according to the allowance in a 1942 decree had been stopped in May of 1945 and the mother sought judgment for the full period. This court gave judgment for the payments accruing between June 15, 1950, the date the mother brought the child back to Arkansas after an extended absence from the state, and October 29, 1953, the date of the hearing in the chancery court. This three-judge plurality justified denial of judgment for the period prior to June 15, 1950 on the basis that the mother kept the child outside the jurisdiction of the Arkansas court and thereby prevented the father from exercising visitation rights which had been agreed upon by the parties outside the divorce decree. The chancery court had denied judgment in any amount. Even the plurality opinion is not an overruling of Sage. That plurality stated that the issue in Pence was whether the law and facts in Sage required that the mother be given judgment for all the payments due and unpaid from 1945 to 1953. That plurality said that equity could not aid the mother in the situation that existed due to her deliberate decision to take the child to the Pacific Northwest without the permission of the chancery court and to the unsuccessful efforts of the father to find and visit the child. The plurality pointed out that, in a similar situation, a judgment had been denied in Antonacci v. Antonacci, supra. The seventh justice concurred and dissented on the basis that to require the father to pay the entire arrearage would be wholly inequitable. It was his position that the mother was barred by laches, as a species of estoppel, and upon the basis of several equitable maxims. He was of the opinion that the ex-wife should never have judgment for accumulated arrearages for more than one year prior to. the commencement of an action to collect them. As a result, all that Pence really stands for as precedent is that judgment for arrearages can be denied where the party seeking a judgment has, by her conduct, barred herself from the aid of equity.

Another case that is often relied upon, along with Sage, is Carnahan v. Carnahan, 232 Ark. 201, 335 S.W. 2d 295. Carnahan is no more an absolute bar to denial of judgment for unpaid installments of alimony or child support than is Sage. In Carnahan, we took Pence to have modified Sage, but we were careful to point out that in Sage we held that the chancery court had no power to remit accumulative payments under the circumstances of that case. In Carnahan, we found that the facts did not justify withholding of judgment for past due child support because the father at all times knew the whereabouts of his child in the State of Mississippi, only 35 miles from the father’s home, and visited the child there; that the mother did not refuse the father the right of visitation; and that the father continued to make support payments after the child had been removed. Thus we found the case distinguishable from Pence. We referred to Allison v. Binkley, 222 Ark. 383, 259 S.W. 2d 511, where we had held that a father was not relieved of his obligation under a court order to make child support payments merely because the child had been taken out of the state. Riegler v. Riegler, 246 Ark. 434, 438 S.W. 2d 468, has also been relied upon as holding that the trial court had no power to remit accumulated payments which had become vested as they became due, overlooking the qualification that this holding was “under the circumstances of this case.” The circumstance that had been relied upon by the chancellor to deny judgment for the full amount of arrearages was the fact that the daughter who was the subject of support had lived with her father for a year. The chancellor felt that this fact warranted relieving the father of a part of the arrearages. We did not agree.

In spite of the result in Kirkland v. Wright, 247 Ark. 794, 448 S.W. 2d 19, that case is sometimes cited as being contrary to our holdings in Sage and Riegler. In Kirkland, we reviewed some of our previous decisions and repeated our position that Sage was consistent with the majority rule and quoted the statement from that opinion that the rule that the courts have no power to remit accumulated payments “under the circumstances here” is a sound one and reviewed some of those circumstances. We again pointed out that we had recognized in Carnahan that Pence had modified Sage but we emphasized that the decision in Sage was still the general rule and that Pence should be treated as a modification and not as an overruling case, citing Nicholas v. Nicholas, 234 Ark. 254, 351 S.W. 2d 445, along with Carnahan and Brun v. Rembert, 227 Ark. 241, 297 S.W. 2d 940. In Brun, we had repeated the rule that once a child support payment falls due, it becomes vested and a debt due the payee, but that past due child support payments were not a judgment but only the right to a judgment. We said in Kirkland that circumstances may arise, as they did in Pence, where the equities in a given case require further deviation from the general rule in Sage because “ ‘under the circumstances’ in that case it appeared to be sound.” We held, however, in Kirkland that the mother was entitled to judgment for the unpaid accruals from February, 1967, the date when payments were suspended, up to the date of trial.

In Sharum v. Dodson, 264 Ark. 57, 568 S.W. 2d 503, we recognized that a mother was entitled to judgment for unpaid installments of child support as a matter of right, except during such periods of time when she rendered the father’s rights nugatory. While the language there used would seem too restrictive as a generality, it was pertinent in the particular case because of the defense asserted. Kirkland v. Wright, supra, was one of the authorities cited for this statement. In Sharum, the chancery court had awarded judgment for arrearages over a period of three years but had restricted the payments required on the judgment to $5 a month. Judgment had been sought for $11,180 for the period between October 11, 1966 and August 11, 1977. We recognized that there were periods when appellant would not have been entitled to enforce the support payments and that the chancellor had the option of awarding any amount that was justified by the evidence. Later, in Holley v. Holley, 264 Ark. 35, 568 S.W. 2d 487, we pointed out that in Sharum the basis for denial of judgment for the full amount of arrearages could have only been attributable to the actions of the mother. We also reiterated that ordinarily the chancery court has no power to remit accumulated court-ordered support payments. We further recognized in Holley that there are circumstances in which the chancery court is justified in withholding judgment for unpaid child support installments, such as the mother’s depriving the father of temporary custody or visitation rights, citing Pence and Massey v. James, 251 Ark. 217, 471 S.W. 2d 770. We also again recognized that the conduct of a custodial parent might justify disallowance of judgment for the full amount of arrearages in child support payments.

From Sage, Pence and our subsequent decisions, we can say that, as a general rule, an ex-spouse is entitled to judgment for all past due installments of alimony awarded by a decree of divorce, not barred by the statute of limitations, unless equity cannot lend its aid because of the actions or conduct of the ex-spouse seeking judgment. We also take it to have been established that the spouse entitled to alimony can waive the right to recover the full amount of payments prescribed by the decree of divorce.

Dr. Bethell pleaded both waiver and estoppel as defenses. If either is established, then petitioner is not entitled to the aid of equity to collect the amounts she alleges to be arrearages. We have spoken not too long ago on the subject of waiver and its relationship to estoppel. In Continental Ins. Cos. v. Stanley, 263 Ark. 638, 569 S.W. 2d 653, we said:

Waiver is the voluntary abandonment or surrender by a capable person of a right known by him to exist, with the intent that he shall forever be deprived of its benefits. It may occur when one, with full knowledge of material facts, does something which is inconsistent with the right or his intention to rely upon the right. *** The relinquishment of the right must be intentional. ***
Perhaps the term “waiver” in [this] context would more properly be termed estoppel, but the terms are often used interchangeably with reference to insurance contracts. Sovereign Camp, Woodmen of the World v. Newsom, 142 Ark. 132, 219 S.W. 759, 14 A.L.R. 903. A distinction was pointed out in that case, in which we recognized authority that estoppel against an insurance company may arise when the company’s course of dealing with the insured and others known to the insured have been such as to induce a belief upon the part of the insured that a policy provision will not be insisted upon by the company. We quoted from Sovereign v. Putnam (Tex. Civ. App.) 206 S.W. 970-972 (1918) as follows:
“The terms ‘waiver’ and ‘estoppel’ are often used indifferently in the same sense, as if they were interchangeable terms; but there is a distinction which it is often important to keep in mind. Waiver presupposes a full knowledge of a right existing and an intentional surrender or relinquishment of that right. *** It contemplates something done designedly or knowingly, which modifies or changes existing rights, or varies or changes the terms and provisions of a contract; but not so with estoppel.
“ ‘Waiver is the voluntary surrender of a right; estoppel is the inhibition to assert it from the mischief that has followed. Waiver involves both knowledge and intention; an estoppel may arise where there is no intent to mislead. *** Waiver involves the acts and conduct of only one of the parties; estoppel involves the conduct of both. A waiver does not necessarily imply that one has been misled to his prejudice, or into an altered position; an estoppel always involves this element. *** Estoppel arises where, by the fault of one party, another has been induced, ignorantly or innocently, to change his position for the worse in such manner that it would operate as a virtual fraud upon him to allow the party by whom he has been misled to assert the right in controversy.’ 40 Cyc. pp. 256, 257.”
Furthermore, a waiver to be binding must operate either by way of estoppel or be based upon some consideration. *** [Citations omitted.]

It has been recognized that a wife may waive her right to a portion of the alimony and support provided her by a decree of divorce. Graham v. Graham, 174 Cal. App. 2d 678, 345 P.2d 316 (1959). The right of the wife to collect delinquent installments of alimony ordered by a divorce decree can be waived by the wife by agreement. Gottesman v. Gottesman, 202 So. 2d 775 (Fla. App., 1967); Axelrad v. Axelrad, 285 App. Div. 903, 138 N.Y.S. 2d 40 (1955). See also, Oritzland v. Oritzland, 6 App. Div. 2d 808, 175 N.Y.S. 2d 230 (1958). There may also be waiver by acquiescence, or it may be inferred from the circumstances. Davis v. Davis, 123 So. 2d 377 (Fla. App., 1960); Graham v. Graham, supra. It has also been held that the court has the power to ratify an agreement between the parties for a reduction in support payments. Royster v. Royster, 339 Ill. App. 250, 89 N.E. 2d 279 (1950).

The failure of a wife to take steps to enforce payment of alimony in accordance with the terms of a divorce decree for a long period of years is certainly an important fact to be considered in determining whether there has been a waiver of her right to enforce the decree according to its terms. Graham v. Graham, supra; Axelrad v. Axelrad, supra; Brant v. Brant, 23 Misc. 2d 646, 200 N.Y.S. 2d 643 (1960); Schnierle v. Schnierle, 33 Ohio Law Abstract 212, 33 N.E. 2d 674 (Ct. App., 1940). See also, Royster v. Royster, supra. It has been held that the courts will be inclined to find waiver if there is an undue delay by a wife in seeking to collect arrearages in alimony. Herman v. Herman, 17 N.J. Misc. 127, 5 A. 2d 768 (1939). Long delay by a wife in invoking the process of the court to enforce a decree, may also give rise to an estoppel against her claiming accrued alimony. Sonenfeld v. Sonenfeld, 331 Mich. 60, 49 N.W. 2d 60 (1951); Brant v. Brant, supra.

This court has considered agreements between divorced parents for modification of decrees for payment of child support to be significant in determining whether there should be a judgment for arrearages on the basis of the difference in the amount provided for in the decree and the amount paid according to the agreement of the parties. In Ray v. Manatt, 250 Ark. 230, 465 S.W. 2d 111, we affirmed the action of the trial court denying judgment for such arrearages, largely on the basis that the evidence showed that there had been an agreement between the parties for a reduction. Even though there were facts which would have justified a reduction in the support payments if an application had been made to the court, the appellant wife in that case sought a reversal on the ground that the chancery court was without jurisdiction to allow retroactive cancellation of support money obligations. Obviously, we did not consider the limitation on chancery court jurisdiction in that regard to be absolute. Later, in Thompson v. Thompson, 254 Ark. 881, 496 S.W. 2d 425, we affirmed the trial court’s action in granting a judgment for arrearages, in spite of the fact that there was an alleged agreement to reduce child support payments, on the basis that we could not say that the chancellor’s finding with reference to the disputed agreement was contrary to a preponderance of the evidence. If the court’s power to deny judgment for arrearages when there has been an agreement between the parties had been limited as petitioner contends it is in alimony cases, that case would have been much more easily disposed of without any consideration of the question of the preponderance of the evidence.

A sufficient consideration for waiver is afforded by the husband’s failure to go to court to seek a reduction in the amount of the monthly payment in reliance upon the wife’s agreement. Schnierle v. Schnierle, supra. The chancellor pointed out that the evidence indicated that Dr. Bethell would have sought relief from the court for a reduction in alimony had it not been for the agreement of the parties.

An agreement of the parties relating to the modification of a decree as to alimony should certainly be accorded no less favor than an agreement for reduction of child support payments. If the agreement here and petitioner’s long delay are not sufficient to constitute a waiver by petitioner ^f the arrearages claimed, then there were both consideration and elements of estoppel. There should be no doubt about the right of Dr. Bethell to have obtained a reduction of alimony when Mrs. Bethell obtained employment. Dr. Bethell’s reliance upon the agreement and the acquiescence of Mrs. Bethell certainly must have been instrumental in his not applying to the chancery court for a reduction in alimony payments. Furthermore, there have been changes in the circumstances of the parties, other than the full-time employment of Mrs. Bethell. Because of concern for his health, Dr. Bethell, who had practiced family medicine in Stuttgart, moved to North Little Rock in January, 1976, where he first worked in the emergency room of Memorial Hospital. After private practice with a group of physicians for a time, he returned to the emergency room as director. He found it necessary to borrow money to keep his children in school. He has remarried and his present wife is not now employed. They have one young child and were expecting another at the time of the hearing.

Mrs. Bethell has entered into a relationship she describes as very, very close with a gentleman 46 years of age, who is a bachelor and has been her constant companion for some seven years. He has assumed a great deal of responsibility for the Bethell boys, exerts a good influence over them and disciplines them. Mrs. Bethell, this gentleman and the boys go places together as a family. Trips taken by Mrs. Bethell and this gentleman have included journeys from Memphis, where they live, to Cape Hatteras and to Canada, on which either the boys or Mrs. Bethell’s sister accompanied them. This gentleman takes many of his evening meals at Mrs. Bethell’s residence and brings the food half the time. He does not contribute any money to the family or to its support and has no “set income.” He thought that the parties might have become close again if he had not come along. He said that his relationship with Mrs, Bethell was more than casual, but not sordid. He thought that “most any normal people” would have a romantic relationship. He felt that his attitude toward marriage would be more favorable than that of Mrs. Bethell, which he described as most guarded.

A party who by his acts, declarations or admissions, or by his failure to act or speak under circumstances where he should do so, either with design or willful disregard of others, induces or misleads another to conduct or dealings which he would not have entered upon, but for such misleading influence, will not be allowed, because of estoppel, afterward to assert his right to the detriment of the person so misled. Hester v. Chambers, 264 Ark. 941, 576 S.W. 2d 195; Bowlin v. Keifer, 246 Ark. 693, 440 S.W. 2d 232. He who, by his language or conduct, leads another to do what he would not otherwise have done shall not subject such person to injury by disappointing the expectation upon which he acted. Peoples Nat’l. Bank v. Linebarger Const. Co., 219 Ark. 11, 240 S.W. 2d 12. If one, by his statements as to his intended abandonment of existing rights, designedly induces another to change his condition in reliance upon such statements, the person so stating will afterwards be estopped in his efforts to enforce his rights contrary to his declared intention to abandon them. Peoples Nat’l. Bank v. Linebarger Const. Co., supra. The whole principle of equitable estoppel is that, when a man has deliberately done an act or said a thing, and another, who had a right to do so, has relied upon that act or word and shaped his conduct accordingly, and will be injured if the former repudiates the act or recalls the word, it shall not be done. Gambill v. Wilson, 211 Ark. 733, 202 S.W. 2d 185. A party claiming estoppel must prove that he has relied in good faith on the conduct of the party against whom the estoppel is asserted to his detriment. Christmas v. Raley, 260 Ark. 150, 539 S.W. 2d 405.

Dr. Bethell has clearly shown a waiver by Mrs. Bethell which is supported by both consideration apd estoppel upon the basis of his reliance upon her actions. His detriment is found in his forbearance from instituting legal proceedings for the reduction of alimony based upon the obvious changes of circumstances and in his actions pertaining to his career and his personal life.

The decision of the Court of Appeals is affirmed.

       Later the amount demanded was reduced to $24,000, probably in recognition of the five-year statute of limitations.

       We pointed out in Brun that the facts in Pence were vastly different from those in Brun.


author: George Rose Smith, Justice.

text:
    Willie Steve HARRIS, Sammy Davis HARRIS, and Sampson HARRIS v. STATE of Arkansas
    CR 80-17
    597 S.W. 2d 75
    Supreme Court of Arkansas
    Opinion delivered April 21, 1980

      John W. Walker, by: David E. Parker and John W. Walker, for appellants.

      Steve Clark, Atty. Gen., by: Catherine Anderson, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

Count 1 of the information charged three brothers, Willie Steve Harris, 22, Sammy Davis Harris, 20, and Sampson Harris, 18, with having raped Lori McCleary, 15, on September 2, 1978. Count 2 charged Willie Steve Harris and Sampson Harris with having also raped Teresa Ann Burns, 16, on that date. The jury found the defendants guilty of all the charges and imposed a 10-year sentence for each of the five offenses. Two points for reversal are argued, but they are without merit.

On the evening in question the five young people, together with Darlene Straw, 15, drove to the Harrises’ mother’s house in Sweet Home, where they danced for a while. All three girls testified that Sampson threatened to shoot them if they did not “give up something,” which was understood to be a reference to sexual intercourse. Darlene submitted voluntarily, but the State’s proof was that the other two girls were raped, as charged in the information.

It is first argued that the defendants’ trial attorney was ineffective in failing to seek separate counsel for each defendant and that the trial judge should have raised that issue on his own motion. Ineffectiveness of counsel cannot be asserted for the first time on direct appeal, for the reasons explained in Hilliard v. State, 259 Ark. 81, 531 S.W. 2d 463 (1976). There is no invariable constitutional prohibition against an attorney’s joint representation of codefendants. To the contrary, it may be to their advantage: “A common defense often gives strength against a common attack.” Holloway v. Arkansas, 435 U.S. 475, 98 S. Ct. 1173, 55 L. Ed. 2d 426 (1978). In the other case cited on this point, the court merely held that a trial judge, in appointing counsel for codefendants, should consider the possibility of a conflict of interest among the defendants. United States v. Williams, 429 F.2d 158 (8th Cir. 1970). In the case at bar there was apparently no appointment of counsel. No conflict whatever is suggested by the testimony, because all three of the brothers testified that they did not have intercourse with any of the girls. That Sampson alone may have threatened to shoot the girls does not in itself indicate a conflict of interest.

It is also argued that the evidence is insufficient to support the verdicts, because certain details about the rapes were not stated, there were minor inconsistencies in the proof, and other witnesses might have been called by the defense. Such arguments might properly have been made to the jury, but there is an abundance of substantial evidence to support the convictions, which concludes our inquiry.

Affirmed.

Mays, J., not participating.