dissenting. The majority opinion overlooks certain facts which, I believe, are determinative of the correct result in this case. Although appellant filed her motion for increased child support before appellee’s motion for change of custody, the trial court decided to hear appellee’s motion first. Hearing of this motion lasted two days and was still incomplete, with a third day scheduled two and one-half months later. Toward the end of the second day of testimony, the court interrupted appellant’s cross-examination of appellee, but stated that she could reserve the rest of her cross-examination of this witness.
Appellant asked for a ruling on her support motion even though she had not yet had the opportunity to present her case, because hearing of the motion had been delayed for over a year. Counsel for appellant stated: “That’s the only testimony we have regarding that motion, Your Honor.” Counsel for appellee then moved for a directed verdict on the support motion. The court announced that the record was closed on the issue of child support.
When the hearing resumed on February 14, 1996, appellant attempted repeatedly to offer proof of appellee’s income, but the court denied the proffer, stating again that the record was closed on the child-support issue.
I agree with the majority that the evidence in the record is insufficient on the issue of changed circumstances to justify a child-support modification. However, I agree with appellant that the chancellor should have allowed her to present her case and that the chancellor’s refusal to do so was an abuse of discretion. While appellant unwisely pressed for a ruling on the child-support motion before presenting her case, it appears that her insistence resulted from confusion, misunderstanding, and frustration over the inordinate delay in getting a proper hearing of the motion.
Our court has stated:
[F]ailure through inadvertence to place before the trier of fact important evidence is a basis for reopening the evidence, and that refusal to permit it to be reopened under such circumstances will result in reversal. The principle involved is that evidence should be reopened where to do so would serve the interests of justice and cause no undue disruption of the proceedings or unfairness to the party not seeking to have it reopened.
Many of the cases in which a trial court has been held to have exceeded its discretionary authority . . . involve inadvertent failures to produce evidence without which the court is forced to direct a verdict against the party whose inadvertence caused the lapse. (Citations omitted.)
H & M Realty v. Union Mechling Corp., 268 Ark. 592, 597, 595 S.W.2d 232, 235 (Ark. App. 1980).
Also, in Sugarloaf Development Co. v. Heber Springs Sewer Improvement Dist., 34 Ark. App. 28, 805 S.W.2d 88 (1991), appellant filed a motion for a new trial asking that the record be reopened for the taking of testimony. On appeal, appellant argued that the chancellor erred in denying its motion for a new trial, and at oral argument appellant’s counsel conceded that the evidence had inadvertently been omitted at trial, but urged that “in equity and good conscience” the chancellor should have allowed the reopening of the record for further proof. Our court noted that the evidence was necessary to appellant’s request for relief, and held the chancellor abused his discretion in not reopening the record for the presentation of the proof.
I believe these cases are analogous to the instant case and, therefore, even if the chancellor was correct in considering that counsel had concluded his evidence, I believe the chancellor abused her discretion in not allowing appellant to present proof on the issue of child support.
The evidence was necessary to appellant’s request for relief, no prejudice would have resulted to appellee, and the court would not have been inconvenienced by permitting the evidence to be admitted. Moreover, while it is true that appellant asked for a ruling on the motion for an increase in child support, it is also true that the motion had been pending for fifteen months; that appellant had not put on any witnesses; that counsel’s cross-examination of appellee was interrupted by the court; that cross-examination was not completed; and that appellant repeatedly asked to be allowed to present evidence on that issue. Under these circumstances I believe there was at least some confusion which contributed to appellant’s failure to submit evidence important to proving her case. Moreover, appellee would have suffered no prejudice by allowing appellant to present the evidence. Finally, because the interests of children are involved, I believe the chancellor should have allowed appellant to put on evidence regarding the issue of child support.
I would reverse and remand for the chancellor to take evidence of the issue of child support.
I respectfully dissent.