Melissa Holcomb v. R. F. Holcomb

Melissa HOLCOMB v. R.F. HOLCOMB

97-972                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
                 Opinion delivered April 9, 1998


Appeal & error -- motion to dismiss appeal granted -- case remanded for 
     resolution of issues. -- Granting appellee's motion for dismissal
     of the appeal, the supreme court reinvested jurisdiction in
     the probate court for that court to resolve the issue of a
     settlement agreement between the parties, to resolve the
     conflicting allegations of the parties, and to decide any
     remaining issues of fact and law.


     Motion to Dismiss Appeal granted; appeal dismissed; case
remanded.
     Tom F. Donovan, for appellant.
     Boyce R. Davis, for appellee.

     Per Curiam. 
     Appellee R.J. Holcomb, by and through his attorney Boyce R.
Davis, moves for dismissal of the above-captioned appeal from an  
order entered by the Washington County Probate Court on March 21,
1997, and an order overruling reconsideration entered on April 28,
1997.  The cause involves the guardianship of two minor children,
Ryan Mart Holcomb and Zachary Alexander Holcomb.  Appellant Melissa
Holcomb, the children's natural mother, filed notice of this appeal
on both May 27, 1997, and again on July 3, 1997.
     In support of his motion to dismiss, Appellee states that on
January 5, 1998, the parties agreed to a settlement pursuant to a
November 12, 1997 hearing.  The settlement agreement included,
inter alia, dismissal of this appeal.  Appellee attached the trial
court's January 5, 1998 order to his motion for dismissal.  He
attached the transcript of the November 12, 1997 hearing to his
first amended motion for dismissal filed on March 25, 1998.
Appellee alleges that Appellant failed to initiate dismissal of the
appeal as stipulated in the agreement between the parties.
     Appellant, by and through her attorney Tom F. Donovan, argues
that we should deny this motion because Donovan was not a party to
the January 5, 1998 agreement, having entered his first appearance
for Appellant on March 31, 1997.  Attorney James Hornsey, who
represented Appellant at the November 12, 1997 hearing, signed the
January 5, 1998 agreement for Appellant.  In support of her
argument to deny the motion for dismissal, Appellant alleges that
significant issues of law remain to be decided, and further, that
the trial court lost jurisdiction in this case after notice of this
appeal was filed, thereby voiding all subsequent orders by the
probate court.
     We reinvest jurisdiction in the probate court in order for
that court to resolve the issue of the January 5, 1998 agreement
between the parties.  We further remand this case in order for the
probate court to resolve the conflicting allegations of the parties
and to decide any remaining issues of fact and law.  Gullett v.
Gullett, 251 Ark. 497, 473 S.W.2d 180 (1971); McCluskey v. Kerlen,
4 Ark. App. 334, 631 S.W.2d 18 (1982).   
     Motion granted; appeal dismissed; case remanded.  
     Glaze, would submit and ask for briefs.