In Barton v. Arkansas Department of Human Services, 2019 Ark. App. 239, the Arkansas Court of Appeals affirmed a circuit court’s termination of a mother’s parental rights to her three children. In doing so, the Court of Appeals gave an example of just how specific they expect objections to be at trial.

One of the pieces of evidence used against the mother in Barton was a psychological evaluation that recommended that the mother could not care for the children by herself. In the order terminating parental rights, the circuit court specifically stated that it had relied, at least in part, on the psychological evaluation.

On appeal, the mother argued that the psychological evaluation was inadmissible hearsay. The mother’s attorney had objected at trial, stating: “I will object unless the psychologist testifies,” and “[I]t’s my position that the psychologist needs to be here to testify.” Nevertheless, the Arkansas Court of Appeals refused to address the issue.

In refusing the address the issue, the Court of Appeals held that this objection was “vague.” Specifically, the Court of Appeals held that this objection could have been a hearsay objection, but it also could have been an authentication objection or a right-to-cross-examine objection.

This case shows the importance of being as specific as possible when raising objections. In fact, it is quite possible that this is one of those instances where everyone in the courtroom knew and understood what the objection was about, but it’s just not reflected in the record. Because Arkansas appellate courts are often very strict about objections, we always urge extreme caution when trying to preserve an objection for appeal.

The Second Annual 2019 Justice Donald L. Corbin Appellate Symposium will be held at the University of Arkansas School of Law in Fayetteville on Thursday, March 28th through Friday, March 29th, 2019.

Speakers this year include a number of federal and state court judges from courts across the country.  The speakers for the event are as follows:

  • Mr. Howard Bashman, Offices of Howard J. Bashman
  • Mr. Kannon Shanmugam, Williams & Connolly
  • Judge Ralph R. Erickson, Eighth Circuit Court of Appeals
  • Chief Judge Lavenski Smith, Eighth Circuit Court of Appeals
  • Judge Duane Benton, Eighth Circuit Court of Appeals
  • Judge Jane Stranch, Sixth Circuit Court of Appeals
  • Mr. A. Clifford Edwards, Edwards, Frickle & Culver
  • Judge James Graves, Fifth Circuit Court of Appeals
  • Judge Michael Brown, Arizona Court of Appeals
  • Judge Lucinda Jesson, Minnesota Court of Appeals
  • Judge Robert Gladwin, Arkansas Court of Appeals
  • Judge Mary Briscoe, Tenth Circuit Court of Appeals
  • Joe Regalia, King & Spalding
  • Lee Rudofsky, Wal Mart
  • Tasha Taylor, Taylor & Taylor Law Firm
  • Abigail Perdue, Wake Forest University School of Law
  • Tim Cullen
  • Brian Brooks

The event website where you can find more information about the event and the speakers is https://customxm.lpages.co/pcbf-symposium-registration-em/.

If you register to attend the event by March 1st, you will receive a $50 discount on your registration fee.

Posted by: Tasha C. Taylor | January 11, 2019

2019 Release: Timeline of an Arkansas Civil Appeal

The updated 2019 Timeline of an Arkansas Civil Appeal has just been released by Taylor & Taylor Law Firm, P.A.  We have edited the timeline to include rule changes that have occurred since the last release.

To receive your very own timeline card in the mail, just email us at Attorney@TaylorLawFirm.com to request yours today.

TT-AppealsInfographic-Blog2019

Posted by: Andy Taylor | May 9, 2018

Creating Hyperlinks in Adobe

One of the questions we receive quite frequently is about creating hyperlinks to the sections of a brief.  With electronic filing of briefs now required, and with hyperlinks required as part of electronic filing, this is something every attorney filing appellate briefs in Arkansas must know.

We’ve put together a short set of instructions for hyperlinking.  For this example, we are using the Supreme Court’s model brief.  We use Adobe Acrobat Pro DC, but any modern PDF editing program (such as Foxit PhantomPDF; Nuance Power PDF) has the same functionality, and works basically the same way.

Step 1: Open the Hyperlinks Toolbar

In the “Find Your Tools Here” box (which is in the upper right-hand corner), type “link.”

Creating Hyperlinks in Arkansas Appellate Briefs - Step 1

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The Pulaski County Bar Foundation is presenting the first annual Justice Donald L. Corbin Appellate Symposium at the UA Little Rock Bowen School of Law on Thursday, March 29, 2018 and Friday, March 30, 2018.  The complete brochure and online registration form can be found here.

The planning committee–consisting of Dorcy Kyle Corbin, Jennifer Corbin, and Judge Herbert T. Wright, Jr.–has put together an outstanding program, which includes an impressive list of speakers, as shown in the lineup below:

2018 Corbin Symposium Speakers

 

The Arkansas Supreme Court has recently issued a per curiam opinion making electronic filing of appellate briefs mandatory as of January 1, 2018.  In its per curiam, the Court made a few changes and clarifications to the pilot project (which had been in place since September 15, 2016).  The Court also slightly modified the method for requesting clerk’s extensions.  We’ve posted the details of these changes (along with a couple of forms) below.  As always, this is just a summary, so please refer to the text of the rules themselves when filing a brief.

Overview of Electronic Filing of Briefs

Here are the key points you need to know if you are filing a brief electronically:

  • Briefs are filed through the eFlex system.
  • The brief must be electronically filed prior to midnight on the due date.
  • The table of contents must contain hyperlinks to the beginning of each major section of the brief.  The “major sections” are:
    • Informational statement and jurisdictional statement;
    • Points on appeal;
    • Table of authorities;
    • Abstract;
    • Statement of the Case;
    • Argument; and
    • Addendum.
  • After the brief is accepted by the court, you must file six paper copies of the brief with the clerk’s office.  In our discussions with the clerk’s office, they have indicated that they prefer that attorneys simply print the file-marked copies (rather than printing clean copies and having the clerk’s office file-mark them).
  • The paper copies are due five calendar days after the brief is filed.  Note that this time period begins with the brief is filed, and not when the brief is accepted by the clerk’s office.
  • We are still serving paper copies of the brief on opposing counsel.  We believe that there is some ambiguity about this in the rules.  Rules 4-4(b)-(e) discuss “service upon opposing counsel,” and seem to imply that the service will be in paper format.  Administrative Order 21, on the other hand, states that “[r]egistered users of the electronic filing system consent to electronic service of electronic documents as the only means deemed to constitute service and such notice of filing is valid and effective service of the document on the registered users and shall have the same legal effect as service by conventional means.”  Until there is some clarity on this, we are continuing to serve opposing counsel in paper format.  We have included a sample of our certificate of service below.

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The Arkansas Rules of Appellate Procedure–Civil provide that “[a]n appeal may be taken from a circuit court to the Arkansas Supreme Court from . . . [a] civil or criminal contempt order, which imposes a sanction and constitutes the final disposition of the contempt matter.” Ark. R. App. P.–Civ. 2(a)(13).  But what about an order that imposes sanctions, but doesn’t hold anyone in civil or criminal contempt?

In Hancook Tire Co., LTD v. Philpot, 2016 Ark. App. 386, the parties were involved in an ongoing discovery dispute.  Eventually, the plaintiff (Philpot) filed a “Motion for Sanctions for Spoliation and Concealment of Evidence.”  A hearing was held on the motion, and the trial court eventually issued a letter opinion in which it stated that, because of “the multiple hearings that have been necessitated because of the Defendants obtuse and unnecessary abuse of the discovery process,” the trial court would impose Rule 37 sanctions (in the form of attorney’s fees) “to deter any future similar conduct.”

The trial court then entered an order awarding a total of $43,025 in attorney’s fees because Hankook’s “conduct in obstructing discovery has been egregious . . . . [and] to deter further such obstruction of discovery in this matter.”  In the order, the trial court stated that “[t]his Order is a final Order for purposes of appeal.” A purported Rule 54(b) certificate appeared at the end of the order.  (The Rule 54(b) certificate was rejected by the Court of Appeals in this case because it merely tracked the language of the rule, rather than making specific factual findings; we have previously blogged on this topic, and so therefore will not go into detail on that issue in this blog post.)

The question in the Hancock case is whether an order that imposes sanctions rises to the level of an order of contempt that would make that order a final order for purposes of appeal.  In Hancook, the Court of Appeals held that such an order was not an appealable order.  Specifically, the Court of Appeals held as follows:

Hankook’s notice of appeal cited to the contempt-with-sanctions provision as the basis to invoke appellate jurisdiction, but the trial court here did not hold Hankook “in contempt,” although it could have so determined as an appropriate sanction under Rule 37(b)(2)(D).  Rather, the trial court here entered an order for attorney fees for discovery obstruction.  This is not a final, appealable order.

This distinction is a fine line, so counsel must be careful when making the decision whether or not to file a notice of appeal from an order imposing sanctions.  It would appear that had the order simply added a few words (stating that one of the parties or counsel was being held “in contempt”), this order would have been considered a final, and, therefore, appealable order.  This is yet another reason that it is vital for counsel to closely and carefully read every order before deciding whether or not to file a notice of appeal from that order.

A cautionary note is in order, however.  As we have mentioned before, in light of the opinion in Massinelli v. Massinelli, 2016 Ark. App. 90 (and the cases upon which it relied), counsel should always be cautious about deciding not to file a notice of appeal from an order that is arguably final, even if it appears to be nonfinal.

If you’ve followed this blog for very long, one of the topics that arises quite frequently is the issue of whether or not an order is a final, appealable order.  This question often arises in family law cases, because there are so many moving parts in those cases.  The decision of the Arkansas Court of Appeals in John v. Bolinder, 2016 Ark. App. 357, provides an example of such a case.

In John, an unmarried couple had one child together in 2010.  In 2012, the trial court awarded primary custody to mom, with dad to have visitation (one week per month plus extended summer visitation) and also to pay child support.  In 2014, the trial court modified the order to decrease dad’s nonsummer visitation to one weekend per month.

In late 2014, dad filed a motion for release of mom’s medical and psychological records.  A few months later, dad filed a motion to modify child support, confirm the length of summer visitation, or modify the summer visitation.  Dad also requested that his summer visitation be expanded, and that child support be reduced during the summer visitation.

At some point during this timeline, mom filed a motion for contempt against dad.  A hearing was held on these matter in May of 2015, at which hearing the parties mentioned that this contempt motion was unresolved.

In June 2015, the trial court entered an order denying dad’s motion seeking the medical/psychological records and denying the motion to modify summer visitation (although the trial court did slightly modify the summer visitation schedule).  The order did not address mom’s contempt motion, and it specifically reserved the issue of child support.

The question, then, is whether an order deciding visitation is final in a situation where a contempt motion and a motion to modify child support are outstanding.  Dad argued that these issues (contempt and child support) were merely collateral matters not affecting the finality of the order.  The Court of Appeals rejected this argument, relying on two cases: Burton v. Templeman, 2015 Ark. App. 101 (holding that an order denying a motion to modify visitation was not final where it specifically reserved a ruling on a motion for contempt) and Mitchell v. Mitchell,  98 Ark. App. 47, 249 S.W.3d 847 (2007) (holding that an order on “various post-divorce disputes” was not final where it specifically reserved a ruling on child support).

In light of this decision, there are two things to keep in mind when deciding whether to file a notice of appeal from a decision involving child custody and visitation.  First, keep in mind that had the facts been slightly different, this order likely would have been a final order pursuant to Rule 2(d) of the Arkansas Rules of Appellate Procedure-Civil, which provides that “[a]ll final orders awarding custody are final appealable orders.”  Second, in light of the opinion in Massinelli v. Massinelli, 2016 Ark. App. 90 (and the cases upon which it relied), counsel should always be cautious about deciding not to file a notice of appeal from an order that is arguably final, even if it appears to be nonfinal.  The best option in this situation would probably be to try to obtain a Rule 54(b) certification to any order that leaves unfinished business.

Suppose a mother consented to a guardianship of her child because she had a drug problem and was seeking treatment.1 Now suppose the mother, after putting her life back together, walks into your office and wants to terminate the guardianship. What standard applies to her petition to terminate the guardianship? This article attempts
to answer that question.

The Arkansas statute governing guardianships provides that “[a] guardianship may be terminated by court order . . . [if] . . . the guardianship is no longer necessary or for the best interest of the ward.”2 While this statute might appear to be straightforward, there have been four major Arkansas Supreme Court cases in the last six years or so dealing with this issue, each of them with a concurrence, a dissent, or both.

Some of the complexity arises because of a 2000 case from the Supreme Court of the United States dealing with grandparent visitation. This article will begin with a short synopsis of that case, and then move to the evolution of this area of law in light of that opinion.

Troxel v. Granville: “There is a presumption that fit parents act in their children’s best interests.”3

In Troxel v. Granville, the United States Supreme Court examined a Washington statute that allowed courts to award visitation of a child to any person if the visitation was in the best interest of the child. The Supreme Court held that the statute was unconstitutional because it gave no deference to a parent’s decision regarding visitation. The Court held that “[t]here is a presumption that fit parents act in their children’s best interests.”

Although the Troxel decision would eventually become important in termination of consensual guardianship cases in Arkansas, the first major Arkansas case on point that began to move the needle in favor of parental rights did so without relying on Troxel.

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The 2016 nonpartisan judicial elections held in Arkansas on March 1st have resulted in two new Arkansas Supreme Court Justices, one new Judge on the Arkansas Court of Appeals, and one runoff election for a seat on the Arkansas Court of Appeals.  The following are results with nearly all precincts reporting:

Arkansas Supreme Court

Chief Justice Position 1

Association Justice Position 5

Arkansas Court of Appeals

Associate Judge District 2, Position 2

Associate Judge District 5

The runoff election between James McMenis and Mark Klappenbach for the Associate Judge District 5 position on the Arkansas Court of Appeals will take place during the general election on November 8, 2016.

There were also two uncontested races in the Arkansas Court of Appeals: Judge Rita W. Gruber will remain the Associate Justice for District 6, Position 1; and Judge Waymond Brown will keep his seat as District 7 Associate Judge.

Related Post: 2016 Arkansas Supreme Court & Arkansas Court of Appeals Election Roundup

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