Harley v. Dempster
2017 Ark. App. 159
Ark. Ct. App.2017Background
- OCSE (State) filed a child-support enforcement action in 2007 on behalf of Chelsea Harley (assignor) against Wyndham Dempster for two minor children; default support order entered in 2008.
- Dempster accrued substantial arrears (OCSE alleged $22,544 by 2015); OCSE moved to modify and obtain judgment for arrears in March 2015.
- Dempster appeared at the July 2015 hearing; the circuit court entered a modification order reducing arrears to $7,079 by (1) crediting $9,465 for 21 months Harley and Dempster lived together and (2) granting a $6,000 credit for private-school tuition paid by Dempster’s parents.
- Harley appealed the $6,000 tuition credit; appellate consideration required determining (a) whether Harley had standing to appeal and (b) whether the trial court erred in allowing the tuition payments as a setoff against arrears.
- Majority (Virden, J.) concluded Harley had standing as an assignor/custodial parent with a pecuniary interest and reversed the tuition-credit portion of the judgment as an abuse of discretion; remanded for entry consistent with Ark. Code Ann. § 9-14-233.
Issues
| Issue | Plaintiff's Argument (Harley/OCSE) | Defendant's Argument (Dempster) | Held |
|---|---|---|---|
| Standing to appeal | Harley is a party/assignor and has a pecuniary interest in arrears; thus she may appeal | Harley assigned rights to OCSE; OCSE is the real party in interest so Harley lacks standing | Majority: Harley had standing as a party/assignor with a pecuniary interest; dissent argued record insufficient and appeal should be dismissed |
| Preservation of affirmative defense (setoff) | OCSE/Harley argued setoff was not pleaded and was waived | Dempster relied on equitable offset at trial | Not preserved — Harley/OCSE failed to object below, so appellate review on this procedural ground is foreclosed |
| Applicability of Ark. Code Ann. § 9-14-236 (full arrearages recovery rule) | Harley argued statute bars the offset/reduction | Dempster sought recognition of payments as offset | Not preserved — statute’s applicability not raised below or ruled on, so appellate review denied |
| Whether grandparents’ tuition payments constitute support (merits) | Tuition payments were voluntary gifts by grandparents, not in lieu of child support; trial court’s $6,000 credit was unsupported | Trial court could equitably offset arrears based on benefit to children and parental intent | Held for Harley on merits: trial court’s $6,000 credit was clearly erroneous and an abuse of discretion because payments were not child support or made by Dempster or to Harley/OCSE |
Key Cases Cited
- Ward v. Doss, 361 Ark. 153, 205 S.W.3d 767 (review standard for child-support amounts)
- In re $3,166,199, 337 Ark. 74, 987 S.W.2d 663 (pecuniary-interest exception to standing)
- Swindle v. Benton Cty. Cir. Ct., 363 Ark. 118, 211 S.W.3d 522 (standing based on direct pecuniary obligation)
- Pulaski Cty. v. Carriage Creek Prop. Owners Improvement Dist. No. 639, 319 Ark. 12, 888 S.W.2d 652 (standing may be waived)
- Jackson v. Mundaca Fin. Servs., 349 Ark. 84, 76 S.W.3d 819 (affirmative defenses must be pleaded or are waived)
- Sloop v. Kiker, 2016 Ark. App. 125, 484 S.W.3d 696 (issues not ruled on below generally not preserved for appeal)