ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

CHIEF JUDGE JOHN F. STROUD, JR.

DIVISION IV

MARK E. CORNELISON

APPELLANT

V.

CHERYL L. CORNELISON

APPELLEE

CA 01-168

June 20, 2001

APPEAL FROM THE WASHINGTON

COUNTY CHANCERY COURT,

JUVENILE DIVISION [J-99-520]

HONORABLE STACY A.

ZIMMERMAN, CHANCERY

JUDGE

REVERSED AND REMANDED

Appellant, Mark Cornelison, and appellee, Cheryl Cornelison, were married on July 17, 1986. Cheryl filed for divorce in Washington County Chancery Court on August 11, 1988, alleging that she was the proper person to have custody of the parties' children: Ryan, born February 19, 1986, prior to the parties' marriage, and Keith, born on September 25, 1987, during the marriage. Because Ryan was born out of wedlock and his paternity had never been established, the parties filed a paternity action in the County Court of Washington County. The county court determined that Ryan was Mark's son and awarded custody of him to Cheryl. Cheryl was also awarded custody of Keith through the divorce proceedings in Washington County Chancery Court, which concluded in 1989.

In 1990, the parties apparently agreed that the children would live with Mark, but there was never a court order entered changing custody. In 1999, Mark filed a petition in juvenile court for a change of custody of Ryan (Case No. J 99-520), and he filed a petition for a change of custody of Keith in the chancery court that presided over the divorce proceedings and initially determined Keith's custody (Case No. E 88-1107). On July 23, 1999, the juvenile judge, after speaking with both children and counsel in chambers, determined that custody should remain with Cheryl but enlarged Mark's visitation. An order to that effect was filed of record on June 8, 2000. On June 15, 2000, Mark filed a motion for new trial, alleging that no record of the July 23, 1999, proceeding was made, and that the juvenile judge had no jurisdiction to determine the custody of Keith, as there was a pending change of custody petition in chancery court case E 88-1107. Mark now appeals this decision, arguing that the juvenile judge erred (1) by failing to maintain a verbatim record of the proceedings of July 23, 1999, absent a waiver on the record by the parties, and (2) by assuming jurisdiction over the custody of a minor whose custody had previously been determined in another division of chancery court. We reverse and remand.

With regard to his first point on appeal, Mark is correct that the juvenile judge erred in not maintaining a verbatim record of the July 23, 1999, proceedings. Administrative Order Number 4 of the Arkansas Supreme Court provides: "Unless waived on the record by the parties, it shall be the duty of any circuit, chancery, or probate court to require that a verbatim record be made of all proceedings pertaining to any contested matter before it." Arkansas Code Annotated section 16-13-510(a) (Repl. 1999) requires that a complete recordbe made of the proceedings in all cases before the circuit, chancery, or probate courts; however, subsection (b) of that statute only allows waiver of a complete record by the circuit court, not chancery or probate courts. In Mattocks v. Mattocks, 66 Ark. App. 77, 986 S.W.2d 890 (1999), this court held that the language of Ark. Code Ann. section 16-13-510(b) does not allow the parties to waive the making of a complete record in chancery cases, and there is no exception for matters of child custody and no exception for in camera interviews. In the present case, there was clearly no waiver on the record of the in camera interviews conducted by the juvenile judge; however, even if there was a waiver on the record, it would not be valid pursuant to the holding in Mattocks, supra, and the language of Ark. Code Ann. section 16-13-510.

Mark also contends on appeal that the juvenile judge did not have jurisdiction to determine the issue of Keith's custody. He does not argue on appeal that the juvenile court did not properly exercise jurisdiction over Ryan's case. Rather, he only argues that the juvenile judge had no jurisdiction over the determination of Keith's custody, the child born during the marriage, as that had been determined initially by the chancery court as a matter in the divorce proceedings, there had been no motion to consolidate the cases, and the petition for a change of Keith's custody was pending in the chancery court at the time the juvenile judge ordered that the boys' custody remain in Cheryl.

We think the jurisdictional issue will likely be moot on retrial due to the implementation of Amendment 80 to the Constitution of Arkansas, effective July 1, 2001.

Reversed and remanded.

Pittman and Jennings, JJ., agree.