Lee v. Lee

Devolyn Kay LEE v. John William LEE, Jr.

97-338                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered October 23, 1997


1.   New trial -- newly discovered evidence as basis -- burden of
     proof. -- A new trial based on newly discovered evidence is
     not a favored remedy, and whether to grant a new-trial motion
     on such grounds is within the sound discretion of the trial
     court; in a hearing on a motion for new trial based on newly
     discovered evidence, the burden is on the movant to establish
     that he or she could not with reasonable diligence have
     discovered and produced the evidence at the time of the trial,
     that the evidence is not merely impeaching or cumulative, and
     that the testimony would have changed the result of the trial. 
     
2.   New trial -- new information could only impeach earlier
     testimony -- no abuse of discretion in denial of motion. --
     Where the statements attributed to appellee were denied by
     him, and the trial court was well within its province to
     disbelieve appellant's father; where the remarks attributed to
     appellee could only have been used to impeach his earlier
     testimony; and where the fact that new information has been
     discovered that might merely impeach or otherwise test the
     credibility of a witness is not sufficient reason to warrant
     a new trial, the trial court did not abuse its discretion in
     denying appellant's motion.

3.   Appeal & error -- issue could have been raised before trial
     commenced -- procedurally barred from review on appeal. --
     Where appellant could have raised the issue before trial
     commenced and failed to do so, she was procedurally barred
     from raising the issue for the first time on appeal. 

4.   Appeal & error -- new issue raised on appeal -- should have
     been raised below. -- Appellant's argument that the judge's
     appointment was limited to the trial on December 5, 1996, and,
     therefore, that his signing of the parties' decree and
     entering it on December 27, 1996, exceeded his authority, was
     without merit where appellant made no objection to the judge's
     having signed the December 27 decree; the supreme court's de
     novo review of chancery matters does not mean that the court
     can entertain new issues on appeal when the opportunity
     presented itself for them to be raised below and that
     opportunity was not seized.  

5.   Appeal & error -- appellant's argument moot -- validity of
     judge's order upheld. -- Appellant's suggestion that the judge
     committed reversible error when he signed the parties' initial
     decree even though he had not heard the case and her argument
     that once an order of assignment of another judge has been
     entered, the assignment deprives any other judge of authority
     to act in any proceeding related to that case, was moot; the
     supreme court upheld the validity of the judge's appointment
     and his signing and entry of the December 27 decree;
     appellant's argument became moot when the judge entered the
     December 27 decree.  


     Appeal from Crawford Chancery Court; Charles Clawson, Special
Chancellor; affirmed.
     Bagby Law Firm, P.A., by:  Philip A. Bagby, for appellant.
     Annie Powell and Eddie N. Christian, for appellee.

     Tom Glaze, Justice.
     This case involves a custody dispute over the two sons of
appellant Devolyn Kay Lee and appellee John William Lee.  Crawford
County Chancery Judge Jim Spears, by ex parte order of protection,
initially awarded temporary custody of the boys to Devolyn. 
However, Chancery Judge Charles Clawson was later assigned to hear
Judge Spears's cases, and after hearing the Lees' divorce case on
December 5, 1996, Judge Clawson granted Devolyn a divorce, but
awarded permanent custody of the two boys to John.  Judge Spears
actually signed the initial divorce decree, which was entered on
December 19, 1996, but after Devolyn filed a motion for a new trial
on December 20, 1996, Judge Clawson signed a second decree, which
was entered on December 27, 1996.  Other than reflecting Judge
Clawson's signature, in place of Spears's, the second decree read
the same as the first decree.  When the trial court failed to rule
on Devolyn's new-trial motion, Devolyn filed a timely notice of
appeal on January 23, 1997.  On appeal, Devolyn raises four points
for reversal, but none has merit.
     In her first argument, Devolyn contends that, immediately
after Judge Clawson heard and decided the Lees' case, she had
acquired newly discovered evidence entitling her to a new trial. 
Devolyn alleged in her motion for new trial that John had informed
Devolyn's father, Donald Love, that he did not have adequate
housing for the boys, that it would be impossible for him to keep
the boys in their present school district, and that neither Devolyn
nor Mr. Love and his wife would see the boys again.  Based on these
remarks attributed to John, Devolyn asserted John had not been
forthright with the court and had shown it was not in the best
interest of the boys to be awarded to John.  In his response, John
denied having made any of the statements.
     It is settled law that a new trial based on newly discovered
evidence is not a favored remedy, and whether to grant a new-trial
motion on such grounds is within the sound discretion of the trial
court.  Piercy v. Wal-Mart Stores, Inc., 311 Ark. 424, 844 S.W.2d 337 (1993).  This court has also established that, in a hearing on
a motion for new trial based on newly discovered evidence, the
burden is on the movant to establish that he or she could not with
reasonable diligence have discovered and produced the evidence at
the time of the trial, that the evidence is not merely impeaching
or cumulative, and that the testimony would have changed the result
of the trial.  Id.  
     Here, the statements attributed to John were denied by him,
and the trial court was well within its province to disbelieve
Donald Love.  In addition, the remarks attributed to John could
only have been used to impeach his earlier testimony.  The fact
that new information has been discovered which might merely impeach
or otherwise test the credibility of a witness is not sufficient
reason to warrant a new trial.  Accordingly, we hold the trial
court did not abuse its discretion in denying Devolyn's motion.
     For her second point, Devolyn argues that Judge Clawson's
assignment in this case, made pursuant to Ark. Code Ann.  16-10-
101 (Repl. 1993), violated Art. 7,  13, of the Arkansas
Constitution and Ark. Code Ann.  16-13-2003 (Repl. 1993).  The
constitutional provision cited provides for the establishment of
judicial circuits and for judges who shall be elected and reside
within each circuit.  Section 16-13-2003, establishes the number of
judges and chancellors to be elected in the Twelfth Judicial
Circuit, which includes the Crawford County Chancery Court.  In
sum, Devolyn submits that, contrary to Art. 7,  13, Judge Clawson
was never elected to serve in the Twelfth Judicial Circuit, and
other judges who had been elected within the circuit could have
served if they had been given the opportunity.  See Ark. Code Ann.
 16-13-403 (Repl. 1993).  Devolyn further argues that Judge
Clawson's appointment or assignment under Ark. Code Ann.  16-10-
101 (Repl. 1993) was not proper because there was no showing his
assignment was necessary "for the efficient and proper
administration of justice," as is required by the statute.  
     The short answer to Devolyn's argument is that, while Devolyn
argues she had no opportunity to object to Judge Clawson's
appointment on December 4, 1996, the record belies her charge. 
Judge Clawson was appointed on December 4, 1996, so she could have
raised this issue either on December 4 or before trial commenced on
December 5, 1996.  Thus, Devolyn is procedurally barred from
raising this issue for the first time on appeal.  See Jones v.
Jones, 320 Ark. 449, 898 S.W.2d 23 (1995); see also Neal v..
Wilson, 321 Ark. 70, 900 S.W.2d 177 (1995) (court held it is the
parties' or trial court's responsibility to apprise the supreme
court as to whether an assignment is necessary under Act 496 [now
codified as  16-10-101], and once that assignment is made, that
responsibility continues).    
     Devolyn next argues that Judge Clawson's appointment was
limited to the trial on December 5, 1996, and therefore his signing
of the parties' decree and entering it on December 27, 1996,
exceeded his authority.  Again, Devolyn made no objection to Judge
Clawson's having signed the December 27 decree.  Our de novo review
of chancery matters does not mean that this court can entertain new
issues on appeal when the opportunity presented itself for them to
be raised below and that opportunity was not seized.  Jones, 320
Ark. 449, 898 S.W.2d 23.
     In her final point, Devolyn suggests Judge Spears committed
reversible error when he signed the parties' initial decree even
though he had not heard the case.  She cites Waddle v. Sargent, 313
Ark. 539, 855 S.W.2d 919 (1993), and argues that once an order of
assignment of another judge has been entered, the assignment
deprives any other judge of authority to act in any proceeding
related to that case.  Of course, we have already upheld the
validity of Judge Clawson's appointment and his signing and entry
of the December 27 decree in this case.  Consequently, Devolyn's
argument became moot when Judge Clawson entered the December 27
decree.  
     For the reasons above, we affirm.