McNair v. Johnson

JOHN B. ROBBINS, Judge.

In this child-custody proceeding, appellant Rodney McNair has filed a motion seeking an order that would unseal a portion of the record containing the testimony of two of the three minor children of the parties. The trial court directed that the transcript of the children’s testimony be sealed, in keeping with an agreement by the parties and representations made by the trial judge to these children at the time they were interviewed in chambers.

The issue raised by appellant in his appeal is whether there was sufficient evidence for the trial court to change custody of the children to appellee. Rule 6(b) of the Rules of Appellate Procedure — Civil provides in pertinent part:

If the appellant intends to urge on appeal that a finding or conclusion is unsupported by the evidence or contrary thereto, he shall include in the record a transcript of all evidence relevant to such finding or conclusion.

Rule 4-2 (a) (6) of the Rules of the Supreme Court then requires that the appellant include in his brief an abstract of this designated record, which would necessarily include the testimony of these children. While this rule recognizes an exception to the abstracting requirement for maps, plats, photographs, and other similar exhibits, which cannot be abstracted in words, the exception would not include the testimony of children given in camera.

Nor do the rules cited above make exception for testimony that has been sealed by order of the trial court. A meaningful de novo review to determine whether the trial court’s findings were clearly against the preponderance of the evidence is not possible unless all relevant evidence upon which the chancellor relied is presented to us. Consequently, there does not appear to be a method available under existing law to permit children to testify on the record, whether in chambers or open court, yet exempt such testimony from the appellate rule requiring abstracting if it is designated as part of the record on appeal. We properly grant appellant’s motion.

Some judges on our court would grant appellant alternative relief by waiving the abstracting requirement and would review directly the transcripts of the sealed testimony. If we did so, not only would we err, we would risk compounding that error. First, as noted above, we would contravene Rule 4-2(a)(6) promulgated by our supreme court; a rule we are not at liberty to disregard. Second, if we held that the merits of the appeal required reversal of the judgment under appeal, we would violate a doctrine of Arkansas appellate procedure that is so basic that citation to authority is not necessary, i.e., we will not go to the record to reverse. Those judges would have us pull aside the cloak of secrecy surrounding the sealed testimony, yet would not, in order to maintain this secrecy, permit us to disclose in our written opinion what we may have seen, even if pivotal to our decision. Surely, we should run from such a procedure.

As a postscript, we note that, while there was a record made in the instant case, Administrative Order Number 4, 305 Ark. 613 (Appendix) (1991), and Ark. Code Ann. § 16-64-129(a)(2) appear to countenance a waiver of a record by the parties. However, for the following reason this would not appear to be a satisfactory solution to the problem of allowing children to testify with confidentiality. If the parties agree to waive a record and permit the child or children to be interviewed privately by the trial judge, and the aggrieved parent desires to appeal, the absence of a record virtually renders the judge’s decision irreversible. A statement of evidence as contemplated by Civil Rule of Appellate Procedure 6(d) is not possible because, under these circumstances, counsel were not privy to the testimony that was taken in chambers. The consequence of an appeal in this posture is an affirmance, because it is presumed that the matters presented in the unrecorded proceeding support the trial court’s findings. See Argo v. Buck, 59 Ark. App. 182, 954 S.W.2d 949 (1997); Rush v. Wallace, 23 Ark. App. 61, 742 S.W.2d 952 (1988); Wagh v. Wagh, 7 Ark. App. 122, 644 S.W.2d 630 (1983).

Unsealing of the record is ordered.

Hart, Bird, Griffen, Neal, Vaught and Roaf, JJ., agree. Stroud, C.J., Pittman, Jennings, Crabtree and Baker, JJ., dissent.