McGarrah v. McGarrah

Natalie Ann McGARRAH, Appellant v. Joe
McGARRAH, Appellee; Johnny McGarrah and
Sharon McGarrah, Intervenors

94-680                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
                 Opinion delivered June 17, 1996


1.   Appeal & error -- chancery proceedings -- standard of review.
     -- The standard of review of chancery court proceedings is
     whether the chancellor's findings were clearly erroneous or
     clearly against the preponderance of the evidence.  

2.   Appeal & error -- record limited to that which is abstracted -
     - appellant's burden. -- The record on appeal is limited to
     that which is abstracted; it is appellant's burden to produce
     a record sufficient to demonstrate error.

3.   Appeal & error -- abstracting requirements. -- Pursuant to
     Ark. Sup. Ct. R. 4-2(a)(6), an appellant is required to
     compile an abstract containing material parts of the
     pleadings, proceedings, facts, documents, and any other
     matters that are necessary for an understanding of all
     questions presented to the appellate court; the orders of the
     lower court, as well as the notice of appeal, are encompassed
     in that requirement.

4.   Appeal & error -- deficient abstract -- merits of appeal not
     reached. -- Where appellant did not abstract any order that
     indicated the chancellor's rulings on the issue of the
     validity of several pre-divorce agreements; where,
     specifically, appellant omitted the final chancery court order
     and the notice of appeal; and where the appellate court could
     not discern from which order or orders the appeal was taken,
     it was impossible for the appellate court to determine whether
     or not the chancellor's rulings on the validity of certain
     pre-divorce agreements were clearly erroneous; because the
     abstract was insufficient for a review of the merits of the
     appeal, the chancellor's decision was affirmed.


     Appeal from Crawford Chancery Court; James Spears, Chancellor;
affirmed.
     Naif Samuel Khoury, for appellant.
     Paul R. Post, for appellee and intervenors.

     Donald L. Corbin, Justice.Associate Justice Donald L.
Corbin, 6-17-96   *ADVREP*SC4*





NATALIE ANN MCGARRAH,
               APPELLANT,

V.

JOE MCGARRAH,
               APPELLEE,

JOHNNY MCGARRAH and SHARON
MCGARRAH, 
               INTERVENORS,


94-680



APPEAL FROM THE CRAWFORD COUNTY
CHANCERY COURT,
NO. E-93-353,
HON. JAMES SPEARS, CHANCELLOR,





AFFIRMED.




     Natalie Ann McGarrah appeals a divorce decree from the
Crawford County Chancery Court.  We affirm the chancellor's
decision pursuant to Ark. Sup. Ct. R. 4-2(b)(2) due to appellant's
failure to sufficiently abstract the proceedings below.  
     The standard of review of chancery court proceedings is
whether the chancellor's findings were clearly erroneous or clearly
against the preponderance of the evidence.  Riddick v. Streett, 313
Ark. 706, 858 S.W.2d 62 (1993).  This we cannot determine with the
abstract we have been provided.  We have frequently held that the
record on appeal is limited to that which is abstracted, and that
it is appellant's burden to produce a record sufficient to
demonstrate error.  See, e.g., McAdams v. Automotive Rentals, Inc.,
324 Ark. 332, ___ S.W.2d ___ (1996); Burgess v. Burgess, 286 Ark.
497, 696 S.W.2d 312 (1985).  We find that the abstract submitted in
this case is a record too insufficient for a review of the merits
of appellant's arguments.  
     Pursuant to Ark. Sup. Ct. R. 4-2(a)(6), an appellant is
required to compile an abstract containing material parts of the
pleadings, proceedings, facts, documents, and any other matters
which are necessary for an understanding of all questions presented
to this court.  Chrysler Credit Corp. v. Scanlon, 319 Ark. 758, 894 S.W.2d 885 (1995).  Surely, the orders of the lower court, as well
as the notice of appeal, are encompassed in that requirement.    
     Both of appellant's arguments on appeal question the 
chancellor's rulings and orders concerning the validity of several
pre-divorce agreements entered into by appellant and appellee. 
Appellant has not, however, abstracted any order which indicates
the chancery court's ruling as to that issue.  Specifically,
appellant has omitted the final chancery court order.  We assume
that it is the holding contained in that final chancery court order
upon which appellant bases this appeal, although we cannot be sure
as appellant has failed to abstract the notice of appeal.  It is,
therefore, impossible for this court to determine whether or not
the chancellor's rulings were clearly erroneous when we have not
been provided with the rulings themselves and when we cannot
discern from which order or orders the appeal is taken.  For this
reason, we affirm the decision below.   
     Affirmed.
     BROWN and ROAF, JJ., dissent.
     DUDLEY, J., not participating.Associate Justice Robert L. Brown
June 17, 1996   *ADVREP*SC4-A*






NATALIE ANN MCGARRAH,
                    APPELLANT,

V.

JOE MCGARRAH,
                     APPELLEE,

JOHNNY MCGARRAH AND SHARON
MCGARRAH,
                  INTERVENORS,

94-680




APPEAL FROM THE CRAWFORD COUNTY
CHANCERY COURT,
NO. E-93-353,
HON. JIM SPEARS, JUDGE,




DISSENTING OPINION.





     The majority affirms on grounds of a deficient abstract and
concludes that it is "impossible for this court to determine
whether or not the chancellor's rulings were clearly erroneous when
we have not been provided with the rulings themselves and when we
cannot discern from which order or orders the appeal is taken."  I
disagree.  Both parties abstracted the ruling made by the
chancellor on April 21, 1994, regarding the invalidity of Joe
McGarrah's relinquishment of his parental rights, and the appellee
and intervenors abstracted the ruling relating to the visitation
rights of the intervening paternal grandparents.  The appellant
makes it clear that she is appealing from these rulings.
     On pages 16 and 17, appellant Natalie Ann McGarrah included
this ruling by the chancellor:
          Plaintiff is granted a Decree of Divorce on the
     grounds of general and personal indignities.  Custody
     would be with the mother.  We're going to start today
     with a completely clean slate. ... Now, let me make
     another statement about this document where the parental
     rights were given up in anticipation of the divorce. 
     It's unfortunate that it occurred, but it has no legal
     effect, not yet, not just the signing of it.  But, the
     Court is the only person or the only entity that can
     terminate someone's right as a parent.  He could sign -
     he could have red, white and blue ribbons put on it, it
     still doesn't -- isn't effective.  (Emphasis ours.)
     The same ruling, as well as the ruling regarding grandparental
visitation rights, was abstracted by the appellee and intervenors
on pages 10 and 11 of their supplemental abstract:
          THE COURT: Plaintiff is granted a divorce and
     custody of the child to be with the mother.  You (Natalie
     McGarrah) were treading on very thin ice trying to
     substitute your judgment for that of the Court.  There
     will be unsupervised visitation according to the Standard
     Order of Visitation.  Visitation will be overnight for
     one weekend a month but visitation will begin every
     Saturday from 9:00 a.m. until 5:00 p.m.  Starting in June
     we are going to use the Standard Order allowing weekend
     visitation on the first weekend of each month.  Make sure
     the house is safe and that the child is never left
     unattended.  While the child is in the home, no smoking
     around the child.  Visitation will be the right of the
     father.  The grandparents and the father can exercise
     that jointly, or if the father is not available the
     grandparents can exercise it.  Visitation is to be in the
     home of the Defendant and unsupervised.  Let me make
     another statement about this document were (sic) the
     parental rights were given up in anticipation of divorce. 
     It is unfortunate that it occurred, but it has no legal
     effect, not just the signing of it.  It's not a piece of
     property.  We are talking about a human being and
     parental rights.  The Court is the only entity that can
     terminate someone's rights as a parent.  It isn't
     effective.  (Emphasis ours.)
     In short, both parties to this appeal agree essentially on the
chancellor's rulings from the bench.  The chancellor's rulings were
later memorialized in two orders: the Divorce Decree entered June
2, 1994, and the Contempt Order entered August 31, 1994, and it is
true that the formal Divorce Decree and Contempt Order were not
abstracted.  But where the rulings are abstracted by both parties
and where both parties agree on what the rulings were, I cannot
conclude that the abstracting is fatally deficient under Ark. Sup.
Ct. R. 4-2(b) or that this court cannot discern the issue on appeal
from the abstract.
     This court has affirmed on grounds of a fatally deficient
abstract, when the order appealed from has not been abstracted. 
See, e.g., Winters v. Elders, 324 Ark. 246, ___ S.W.2d ___ (1996). 
But this is not such a case.  The rulings from the bench are
abstracted, and the parties agree on what those rulings were. 
Under these facts, to decide the appeal on (1) the failure to
abstract the two orders, which merely duplicate the chancellor's
rulings, and (2) the failure to abstract the notice of appeal is
unduly technical.  I would reach the merits of the case.  For that
reason, I respectfully dissent.
     Roaf, J., joins.