David Eversole v. Rita Eversole

Cite as 2020 Ark. App. 387
Reason: I attest to the accuracy
and integrity of this document
ARKANSAS COURT OF APPEALS
Date: 2021-07-08 09:29:03
Foxit PhantomPDF Version: DIVISION II
9.7.5
No. CV-19-542

Opinion Delivered September 9, 2020
DAVID EVERSOLE
APPELLANT APPEAL FROM THE SALINE
COUNTY CIRCUIT COURT
V. [NO. 63DR-16-61]

RITA EVERSOLE HONORABLE KENNETH CASADY,
APPELLEE JUDGE

REBRIEFING ORDERED

N. MARK KLAPPENBACH, Judge

David Eversole appeals from the Saline County Circuit Court’s order denying his

motion for a change in custody as well as his motions for contempt and modification of

child support. Eversole also appeals the circuit court’s attorney-fee award to appellee Rita

Eversole (now Miller). Due to deficiencies in Eversole’s abstract, we cannot reach the merits

of his appeal at this time.

As a threshold matter, an appellant must designate and bring forward a sufficient

record to allow determination of the issues on appeal. Doughty v. Douglas, 2016 Ark. App.

461, 503 S.W.3d 848. Arkansas Supreme Court Rule 4-2 directs an appellant to abstract

the material parts of all the transcripts in the record. Ark. Sup. Ct. R. 4-2(a)(5). Information

in a transcript is material if it is “essential for the appellate court to confirm its jurisdiction,

to understand the case, and to decide the issues on appeal.” Id.
Pursuant to Rule 4-2(b)(1), Miller has called several deficiencies to the court’s

attention. These include Eversole’s failure to abstract counsels’ opening and closing

statements, the attorney ad litem’s recommendations, the deposition testimony of the parties’

coparenting counselor, and the circuit court’s oral ruling. Eversole has also failed to

adequately abstract the attorney’s-fees hearing, where he has reduced thirty-five pages of

transcript to less than one page of abstract. Miller also notes instances in which Eversole has

failed to fully abstract the parties’ testimony. These omissions render the abstract deficient.

In his reply brief, Eversole argues that Miller has waived the issue of a deficient

abstract because she did not submit a supplemental abstract and did not identify the omitted

material or state why it is important. The rule, however, states that an appellee who calls

deficiencies to the court’s attention has the option to provide a supplemental abstract. Ark.

Sup. Ct. R. 4-2(b)(1). It is not required. Furthermore, Miller’s brief does explain, in most

instances, why the omitted information is material to the issues on appeal. Eversole claims

that in Brinker v. Forrest City School District No. 7, 342 Ark. 646, 29 S.W.3d 740 (2000), the

supreme court rejected the appellee’s argument that the abstract was deficient because the

appellee did not cite a specific deficiency and did not offer a supplemental abstract.

However, the Brinker court actually held that the abstract was deficient for a reason not cited

by the appellees, and it ordered the appellant to provide the omitted information. We do

the same here.

Eversole is ordered to file a substituted abstract, addendum, and brief to conform to

Rule 4-2 within fifteen days. Ark. Sup. Ct. R. 4-2(b)(3). The deficiencies we have noted

are not to be taken as an exclusive list.

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Rebriefing ordered.

GRUBER, C.J., and ABRAMSON, J., agree.

Owings Law Firm, by: Steven A. Owings and Tamm B. Gattis, for appellant.

Hope, Trice, O’Dwyer & Wilson, P.A., by: Kevin M. O’Dwyer and Christopher B.

Arnold, for appellee.

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