*1 v. OFFICE of CLEMMONS Stephen ENFORCEMENT CHILD SUPPORT 01-258 Court of Arkansas Supreme delivered
Opinion June *5 for Kenneth A. appellant. Hodges, Lamoureux, Douthit, & Michael by: Phillips appellee. L. Clemmons Appellant Stephen peti- Hannah, Jim Justice. tions from court of decision affirming for review appeals order court’s chancery awarding Appellee amount of Enforcement (OCSE) Office Child Support $20,775. court erred chancery Stephen argues ex-wife, Sheila, to collect maintained right his finding OCSE, after which she arrearages, assigned child-support son, also had reached majority. Stephen couple’s Christopher, of limita- court statute that the wrong chancery applied argues allow collect the entire amount of tions to OCSE to order. We affirm chancery due from 1978 support court of appeals.
Facts The of this has case been stated in the chronology previously two court of decisions in this See case. Child prior appeals of Office Clemmons, 84, Ark. Supp. App. Enforcem’t 443, (1999); Clemmonsv. Child SupportEnforcement, App. S.W.3d 687 These facts are restated here.
Sheila and Clemmons were married in state of Stephen 4, 1971, on 16, Missouri March divorced and there on October child, Clemmons, 1974. One was born of that Christopher Stephen union on The 1973. divorced in Missouri on Octo- couple June 16, 1974, ber and Sheila was awarded with custody Christopher, ordered to dollars month Stephen pay seventy-five per support until entered the first at which time Christopher grade, was support to increase to one hundred dollars month. per custody of this decree were modified the Missouri provisions by 7, 1976, court on with May Sheila of the minor having custody child for nine months during regular school term and Stephen summer, for three months having custody with each during party having reasonable visitation while the child was in the other’s Further, was custody. ordered to dollars Stephen pay seventy-five month child per which abated his three months of support, during custody. 7,
On Arkansas, September Washington County, Sheila, juvenile court with placed custody Christopher appar- based ently filed Sheila. On dependency-neglect petition by 9, 1976, the September juvenile that order and quashed However, with placed physical custody Sheila failed to Stephen. at that with appear hearing Christopher; would later learn Stephen that she had taken him to California. On November also an obtained order from the Stephen Missouri court awarding him custody temporary Christopher. In February located Sheila and in Stephen Christopher
California, but Sheila refused to allow him contact or commu- any nication with Law enforcement officials declined to Christopher. assist even Stephen gaining physical custody Christopher, he had the Arkansas and Missouri though orders. custody A was held California in hearing December 1977 on the visitation, issues of Both custody, were parties support. present an order was March counsel. On represented of Los County in the Court California entered Superior aas valid the Missouri decree foreign acknowledging Angeles credit; it full faith and finding decree giving *7 1977; December of from through $525.00 arrearage June Sheila, reasonable visita- with with of placing custody Christopher and awarded to modifying child-support tion Stephen; Stephen’s to one hundred dollars month from per obligation seventy-five 1, After the month of 1978. dollars as January twenty-five per entered, to continued move around was Sheila California order between continued to refuse contact Stephen and any California did not the order grant- and California Stephen Christopher. Sheila, did a citation to nor he ever custody pursue contempt ing his with which her denial of visitation concerning Christopher, have been the forum for these issues. would proper 1993, 5, Sheila turned on 1991. eighteen Christopher June in to the state of Missouri for assistance collect- her assigned rights Arkansas, in After ing arrearages. locating Stephen child-support to child- an interstate action enforce Missouri initiated Stephen’s the award. On under 1978 California February obligation support 1995, a OCSE filed the Arkansas Pope County, request Arkansas, for the California order Court of Chancery registration to child and a to reduce support judg- petition Stephen’s unpaid Court the Chancery ment. On November Pope County and brief- the as decree ordered entered California order foreign her non- two the mother’s of of rights of issues: assignment ing child, On minor and the statute of limitations. January proper an or Sheila the chancellor entered order OCSE estopping collect child- to any from and/or judgment attempting obtaining fact had the that Sheila willfully based support his from father. concealed Christopher order, the of reversed this and court appeals
OCSE appealed case, the contra- remanded the that chancellor holding directly and Act Family the of the Uniform Interstate Support vened purpose he to the collection of when refused allow past-due (“UIFSA”) visitation, to and that a failure allow ordering based upon support the of amount the chancellor “determine proper order, 1978, California to the March due arrearage pursuant the statute of limitations into consideration taking applicable of the mother’s the assignment.” propriety remand, reasons, without his the chancellor Upon elaborating 26, 1999, that, made the determination at on a hearing August into consideration the statute of limitations and “taking applicáble of the it is mother’s found that the propriety assignment, hereby Defendant’s child to sum be support delinquency [sic] $20,775 as 1999.” that ofjuly Stephen appealed ruling, arguing chancellor erred (1) considering propriety Sheila’s OCSE pursuant remand, instructions this court on (2) calculating the court of determination child-support arrearage. Despite appeals’ chancellor’s was and failed to opinion address “conclusory” remand, it issues before on the court put despite appeals that this was an issue of first recognition the court of impression, affirmed the chancellor’s appeals ruling, Stephen petitioned review to this court the same This arguing points appeal. review. accepted
Standard Review
review,
we
Upon
consider the case
petition
as
it were
though
filed
this court.
v.
Davis Child
originally
Support
349,
Enforcement,341 Ark.
I. Sheila’s to Propriety Missouri Assignment The first issue before this is whether Sheila’s assignment her Missouri, collection to which then or rights trans- assigned Arkansas, ferred those rights to was Within this is issue also proper. of whether a custodial question can to collect parent attempt for a child arrearages who has since reached age of majority.
A. Shelia’sAssignment Validityof Missouri and Arkansas
to issue, be noted that Sheila’s assign an initial it should As a valid to Missouri was of her collection ment rights Ann. 454.010 et law to Mo. Stat. seq. under Missouri pursuant §§ turn, orders for other states collection pursuant Arkansas recognizes Act found at Ark. Arkansas’sUniform Interstate Family Support to such, As there 1998). Ann. 9-17-101-9-17-902 (Repl. Code §§ to collect of Sheila’s assignment no issue legitimacy regarding that collection to OCSE and the transfer of right pursu and Arkansas law. ant to Missouri
B. to Collection Sheila’sAbility Assign to State
Rights as to the mechanics of Sheila’s assign- While there is no issue issue here is whether Sheila ment of her the real purported rights, no to that Sheña longer had argues actually rights assign. Stephen from him after Christo- to had right support arrearages pursue Sheila’s for collection. turned filing eighteen prior pher in the that the listed OCSE right belongs anyone applica- argues ble statute. Ann. 9-14-105 1998) that Ark. Code (Repl. argues
Stephen § “Petition for controls and dictates only Christopher Support” from him. This the action to collect child could initiate statute states: *9 in the several counties in this state
(a) The courts chancery relating in all civil cases and matters have exclusive jurisdiction shall child or owed to a person of a minor support support or older which accrued (18) during person’s eighteen minority. the noncus- The file a
(b) may petition require following a child to for support or of minor parents provide todial parent minor child: child; minor of a
(1) custody Any parent having physical (2) other or to whom Any person agency of a physical custody minor child has been or given relinquished; minor, friend;
(3) A his or next through guardian or The
(4) Office of Child Enforcement when the Support par- ent or to whom has been person physical custody or relinquished awarded is assistance in receiving the form of Aid to Families with Children, Medicaid, Dependent Title IV-E of the Social Security —(cid:127) Care, Act Foster or has contracted with the for the department collection of support.
(cid:127) (c) person or aboveto whom Any ageeighteen(18) was owed support his a a during minoritymay petition judgment against nonsup- file for or portingparent parents. Upon be entered hearing, judgment may proof by preponderance evidence the amount owed support added.) unpaid. (Emphasis This statute seems to indicate that the named in section people (b) initiate an action may child, to collect for a minor while support section indicates that (c) a child who has reached majority may initiate an action on his or her own behalf. also Stephen Ark. Code Ann. argues 9-14-236 § — — 1998)
(Repl. Child limited “Arrearages Limitations that a child who period” has reached requires rather than majority, the custodial or must parent guardian, collection of arrear pursue This statute states: ages.
(cid:127) (a) As used in this section:
(1) motion, “Action” means any complaint, petition, or other pleading seeking of accrued child recovery support arrearages;
(2) “Moving means of the party” any following: (A) custodial parent;
(B) or Any person to whom agency of a minor child custody has been or given relinquished;
(C) friend; The minor child his through or next guardian *10 ordered, the was whose benefit
(D) support A for person his or (5) majority; five of years obtaining within Enforcement when the cus- of (E) Office Child Support has been or custody or to whom relinquished todial parent person to in the form of Aid is or has been assistance receiving awarded the or has contracted with Families with Children Dependent for the collection of support; of Child Enforcement Office Support child means (3) arrearages” delinquency “Accrued support of an under a court order or an order administrative process owed of child or children any established under state law for support due and unpaid; which is past order, means the earliest
(4) judgment, “Initial order” support administrative decree entered in the case the court or by or for which contains a for the provision payment money process child or children. any the care support minor child or (b) any action any involving support children, full shall be entitled to recover the moving party the date of the amount of accrued child from support arrearages until of the action. initial order support filing filed to subsection of this section (c) (b) action Any pursuant (5) years be at time five may brought any up including date child for whose benefit the initial support beyond (18) entered reaches the age eighteen years. order was in this case This statute is the statute because OCSE applicable for ordered in a collection of support arrearages support pursuing Had an initial OCSE sought petition support prior judgment. have Ark. Code Ann. 9-14-105 would applied. against Stephen, § statute, of child- This which collection specifically applies be the indicates can arrearages, “moving party” minor or to whom of a custodial custody any person agency parent, or a minor child’s child has been or guardian given relinquished, or friend, when have been next OCSE assigned, rights once he or she reaches majority. himself or herself age However, is the statute does not indicate whether anyone this an action. exclusive party pursue *11 342
While
that both of these statutes
Stephen argues
specifi
child,
allow
the
to
the
cally
collection
only
majority,
pursue
action,
would
this court to
Stephen’s proposition
require
interpret
and add
to the statute that is
there.
This court
language
reviews
novo,
issues of
construction de
as it is for this
statutory
court to
Blind,
decide what a statute means.
v.ArkansasSchool
the
Stephens
939,
Huckabee,
341 Ark.
In our case law such a conclusion. In supports cases, most of our the custodial of a minor child parent sought
343
Dodson,
See,
v.
264 Ark.
Sharum
arrearages.
e.g.,
Ark.
v.
503 (1978);
Cunningham,
568 S.W.2d
Cunningham
Ark.
v.
823 S.W.2d
(1988);
II. Calculation Child-supportArrearages
In the second issue on
*13
that the
appeal, Stephen argues
$20,775.00
court erred in
chancery
in
awarding
child-support
from the California
arrearages
order
Fie
establishing support.
argues
that the $525.00 awarded in the California order cannot be col
lected because the
statute of hmitations
ten-year
has run since it was
collected,
reduced to
and not
and the
judgment
rest of the pending
can
be collected to ten
monthly support
only
to Febru
years prior
6, 1995, when
ary
OCSE filed the action in Arkansas for collection
of
past-due
Arkansas statute of
support. Actually,
limitation bars
ah claims for
that have accrued
child-support arrearages
to
prior
March
1986. See
308 Ark.
823 S.W.2d
Lilly,
Johnson
Carter,
(1992); Branchv.
236 Ark.
In UIFSA arrearage proceedings, applicable Arkan the statute of limitations under of limitations is the longer Ann. 9- the state order. Code sas law or issuing support § a determination 1998). Such 17-604(b) requires two-step (Repl. First, whether there are the court must consider differing analysis. on the time that a custodial or child of majority limitations parent Second, the initiate a to collect may proceeding support arrearages. far look at the of the two statutes how court must longer allowing back collection of is allowed. support arrearages issue, law
On the first both Arkansas California allow a child of or custodial an action for majority bring support parent child at least to five after the turns or up years eighteen, Ann. See Ark. Code 9-14-236(c); up through age twenty-three. § Fam. Code Cal. Fam. Code 1993); Cal. 4383 (Repealed § law, Under California prior judgment § could be enforced writ of execution without support by prior until five after the child reached years majority approval thereafter as to amounts that were not more than ten only years 4383; Garcia, overdue. Fam. In re Cal. Code 79 Cal. Marriage § frames, 2d these time the court (Ct. 1998). Beyond Rptr. App. had discretion to determine to allow enforcement of the whether take such laches could into account considerations as judgment California, or lack of Id. After 1993 in diligence. repeal the enactment of did not have judgments support § § renewed, to be became “enforceable until in full.” Id. they paid this, here Based on because Sheila filed the action within five years under either or Cal Arkansas birthday, Christopher’s eighteenth ifornia law she filed her action to collect timely arrearages. there, does not end however. Of more analysis importance the amount of here is how far back court can go determining due. California does not consider its or pre-1993 post-1993 as “statutes of limi- statutes for enforcement of orders *14 tation,” a for enforce- but instead as statutes procedure providing Garcia; In 508 (1989). ment. re 264 Cal. Wight, Rptr. Marriage of the first Whether the or statutes should pre- post-1993 apply statute, is no consideration. under the there Certainly, post-1993 that Sheila can collect entire amount support question until because the statute allows collection of the entire amount paid However, in full. Fam. 4502. based on the Cal. Code reasoning § statute to a Garcia pre-1993 judgment applying post-1993 retroactive, would be we believe the statute impermissibly pre-1993 applies. noted, statute, As allows collection pre-1993 §
in the five
between
years
of a
majority
age twenty-three by way
writ of execution without court
After
approval.
age twenty-three,
Here,
collection can
be had for the ten
only
years prior.
obviously,
the claim was made within the five
but Sheila did not have a
years,
However,
writ of execution.
according
reasoning Wight
Garcia,
the trial court still retained discretion to determine
such,
whether to allow enforcement of the
As
the chan
judgment.
cellor’s determination to allow collection of the entire support
law,
amount is lawful. Under California
the entire amount of child
until
was due. Because
Christopher’s eighteenth birthday
California allows for collection of the entire
arrear
the law of California is
in this
age,
UIFSA action. There
applicable
fore, we
find
do not
that the chancellor was
erroneous in
clearly
$20,775.
the entire amount of
granting
child-support arrearage
The
that the
concurring
trial court
opinion argues
should
be affirmed
the law-of-the-case
by applying
doctrine because the
trial court in its first order
ruled on the
seemingly
issues of the
However,
and statute of limitations.
the doctrine cannot
in this case. The
apply
law-of-the-case doctrine
that on
provides
second
the decision of the first
appeal
becomes the' law of the
appeal
case, and is conclusive of
of law or
every
fact decided in
question
the former
and also of
been,
those which
appeal,
have
but
might
not,
Slaton,
were
Slatonv.
presented.1
336 Ark.
1 It should be noted that while Slaton indicates that law of the case extends to issues
that were or couldhave beendecided in the first
in criminal cases we have held that the
appeal,
issue
must have been decided
or
before the
actually
doctrine can
explicitly
implicitly
apply.
e.g., King
(1999),
v.
See}
State,
338 Ark.
Camargo
337 Ark.
State,
105,
347 case, is conclusive of the law of the every becomes appeal fact in the former also appeal, of law or decided question not, been, but v. have were presented. those which might Griffin Bank, The (1994). Ark. 888 306 doc Nat’l 318 S.W.2d First Id. of constitutional law. trine extends to issues this the case doctrine this seem may trigger While history order, the 1998 the in court’s chancery original given language the doctrine cannot in there is a reason law-of-the-case why apply order The statements in the court’s 1998 regard- this case. chancery are and the of limitations obiter to OCSE statute ing assignment and cannot law-of-the-case dictum satisfy requirements doctrine. decided
The chancellor’s 1998 order
OCSE’s
only
due to
and the statements in
to collect arrearages
inability
estoppel,
the order
and statute-of-hmitations issues
regarding
such,
do
As
those statements
not
were obiter dictum.
qualify
State,
v.
under
law-of-the-case doctrine.
Green
recognition
this court discussed the
343 Ark.
The
doctrine does dictate that a decision
law-of-the-case
a
be
in
made
revisited
appeal may
subsequent appeal.
prior
State,
have
(1961).
Mode v.
234 Ark.
350
675
We
long
S.W.2d
becomes the law of
case.
held that a decision in a prior appeal
State,
(1909).
129
80
This is true even
Bowmanv.
93 Ark.
S.W.
v.
81
was
Rankin
Ark.
Schofield,
if the decision
decided.
wrongly
674
The
the court
one
(1905).
98 S.W.
conclusion
subsequent
the law of the case on
proceedings
becomes
opinion
v. Little Rock &
Perry
the same cause
the matter
res judicata.
(1884).
44 Ark.
doctrine
Railway
Fort Smith
Cp.,
first
be
appeal
matters decided
considered
requires
is not inflexible and does not absolutely
concluded. The doctrine
error,
an issue already
but
it prevents
correction of
preclude
in a
unless
evi
being
decided from
raised
subsequent
State,
v.
appeals. Carmargo
dence
varies between the two
materially
consistency
to maintain
Courts
the doctrine
developed
during
matters once decided
course
avoid reconsideration of
Norris,
Ark.166,
Fairchild
continuing lawsuit.
single
*16
doctrine
that
in a
(1994).
requires
S.W.2d 588
matters decided
State,
be considered concluded.
v.
337 Ark.
Camargo
prior
State,
105, 987
680
Davis v.
325 Ark.
925
(1999);
S.W.2d
State,
768
v.
314 Ark.
270
(1996);
S.W.2d
865 S.W.2d
Mauppin
of
be
While a decision
the court will not
disturbed because
(1993).
it is law of the case under res
the court is
bound
a
judicata,
by
not
dictum,
conclusion stated as obiter
even if couched in
that
terms
infer the court reached a conclusion on a matter.
is so
This
because
court,
obiter dictum is mere comment and not a decision
the
and therefore not
as the law of the case under res
binding
judicata.
the
In an
court
sustain
opinion,
may
by comment an argument
State,
obiter dictum.
v.
305
presented by
Ark.
808
Peeples
However,
(1991).
331
the
S.W.2d
comment on
evidence does not
rise
a decision or holding by
to
the court. Smith v.
Little
City of
Rock,
(1983).
Ark.
Where discussion or comment in an
necessary
is not
opinion
therein,
to
decision
the
reached
the discussion or
an
comment is
Cox,
obiter dictum. NashvilleLivestockCommonv.
302 Ark.
State,
664 (1990).
S.W.2d
v.
Couch
stated,
the
(1981),
court noted that even
the
as
though
opinion
dictum,
obiter
that
retrial
an instruction
mur
first-degree
ought
der
to be
given, that was not
issue
not
point
and thus
binding. Dicta consists of statements and comments in an opinion
some rule
law
concerning
legal
or
proposition
necessarily
hand,
involved nor essential
the
to determination of
case in
Andrews,
the
lack
force of an
v.
they
adjudication. Garrett
294 Ark.
160,
The concurring opinion argues limited remand order issued a the court appeal, appeals *17 did award and not the trial court to reopen instructing its remand the issues and limitation in order. of assignment is The court of first decision mistaken. appeals’s concurring opinion directive reversal on the issue with specific included estoppel only of due to “determine the amount child-support arrearage proper order, into March California to the taking pursuant of limitations and the the statute consideration applicable propriety the Child Supp. of mother’s assignment.” of Office Enforcement Clemmons, S.W.2d That is plain App. trial court determine of directed the The court language. appeals Because is the amount of arrearage. child-support estoppel proper the trial had to decide the of the court propriety applicable, first, of to decide the statute and then had applicable child- it could determine the amount of limitations before proper trial two issues were to be decided the Those by support arrearages. that of this directive indicates the court court on remand. Clearly, issues, were that which not necessary did not find these two appeals been the had conclusively trial court’s finding estoppel, doctrine. decided trial court to the law-of-the-case the trigger by the Otherwise, would have directed merely the court of appeals to enter the for arrears. trial court on remand judgment is that also mistaken arguing The concurring opinion of remand refused to the issue the trial court on assignment. reopen the court to take further did not direct trial The court of appeals what the court of remand did evidence. The trial court on exactly the of it to The trial court decided instructed do. propriety appeals limitations, of the amount the statute the assignment, applicable court, the trial Those issues were before of arrearages. In its decision from which decided them. second and the trial court arises, out court after review the of setting this appeals, petition from the first stated: the remand directive appeal, reasons, remand, without his the chancellor elaborating Upon the made determination that into consideration conclusory “taking the of limitations and the applicable statute the propriety it found the hereby mother’s that Defendant’s child assignment, $20,775 to be the sum of as of 1999.” support delinquency July This statement the court of indicates that clearly appeals recognized anew, that it the trial consider these instructed court to issues then trial court had done so. recognized Because law- of-the-case doctrine court first only applies appeals’s order, decision rather than trial court’s 1998 law of “case bar does not our consideration these on the issues merits this appeal.
We affirm
court
the court of
chancery
appeals.
Imber,
Brown
concur.
JJ.,
Justice,
agree
concurring.
Annabelle Clinton
I
Imber,
however,
with the
result reached
I
by
would
majority;
affirm
trial
the doctrine
law of the case.
applying
That doctrine bars
consideration in
second
issues
were or should have been decided in the first
where there
appeal,
has been a decision
on the merits
the first
Vandiverv.
appeal.
*18
Banks,
386,
331 Ark.
prior appeal. whereas otherwise the have been Norris, would barred. Fairchildv. 317 Ark. appeal, appellant (1994). 166, This the case at does bar because no new exception apply change evidence has materialized that would the outcome of this case. substantially Court Chancery County Pope
On January that: finding entered an Order of to the Office Child Clemmons Mrs. Shelia by
1. the assignment was proper; Enforcement Support was filed unless the action is ten years of limitations 2. the statute then all arrearages years age, child becoming to the prior collectible; and, would be both Mrs. Clemmons findings, preceding
3. regardless for arrearage obtaining judgment from were estopped OCSE of the concealment of Mrs. Clemmons’ because child support father, Clemmons. Stephen from its biological minor child Mr. Stephens the trial court’s of estoppel. finding OCSE appealed the trial court’s findings assign- from proper filed no cross-appeal determined The of limitations. Court Appeals ment and statute an order for child to enforce erred in refusing that the trial court based the amount owed arrearage and determine support and remanded court reversed appellate theory estoppel. trial court “to determine proper case with instructions the March due arrearage pursuant amount of child-support order, into consideration applicable taking California mother’s and the of the assignment.” limitations statute of propriety Clemmons, 65 Ark. App. Child Support Enforcement Officeof 984 S.W.2d that Mr. remand, determined Stephens the trial court Upon $20,757.00 refused to in the amount of owed support then filed the Mr. appeal Clemmons the issue of assignment. reopen in not trial court erred that the us that is before today, arguing of child of Mrs. Clemmons’ assignment considering propriety to OCSE. in the first been raised appeal that could have An argument the law of barred until a is not made subsequent *19 (1989); S.W.2d 744 Ark. 771 v. 299 Alexander case. Chapman, Hawkins, (1994). S.W.2d. 649 Ark. v. McDonald’s Corp. which the order from cross-appeal there is no When cross-appeal, Pritchard, 315 Houten v. the case. Van the law of becomes not taken Robertson, 244 Ark. Moore v. 377 (1994); 870 S.W.2d Robertson, Robertson In Moore supra, (1968). S.W.2d 796 of the that the decision trial court favor alleged cross-appeal of his co-defendants have enured to his benefit his should despite file failure to an answer in the case. The failure to answer ultimately resulted in a default him. We refused to address against judgment because it issue should have been raised in the by cross-appeal of the first case. In to address the merits of Robert- declining appeal son’s we stated: argument, case at
The bar confirms the wisdom of rale. [law-of-the-case] — If the contention has a appellee’s merit which we do not point — n its decide assertion on the would first have done appeal away a with for second trial and a second with their necessity appeal, attendant of time Such can expenditure money. waste be a effectivelyprevented only strict adherence to the by principle are not urged first availablelater on. points upon appeal Robertson, Robertson, Moore v. 244 Ark. at As in case at 839-40. bar demonstrates wisdom of the law-ofi-the-case doctrine. Had Mr. Clemmons trial court’s adverse cross-appealed assignment and limitations those issues have been could addressed rulings, and, successful, the first if have would done with the away a remand and second Because Mr. necessity Clemmons appeal. around, failed to first time the trial cross-appeal the court’s findings with to the of the statute regard propriety assignment applicable of limitations became the law of the case. remand, the trial court noted that it had deter-
Upon already mined that Mrs. Clemmons’ to OCSE was proper that the action was within the limita- statute of brought applicable tions. these the trial denied relief in the first Despite findings, trial based the affirmative defense of estoppel. majority that the concludes rendered the first two find- finding estoppel dicta not ings unnecessary the law-of-the-case doctrine. subject That conclusion the defensive nature of an ignores claim. estoppel ais which judicial remedy
“Equitable estoppel by party may be its own act or from omission precluded asserting right entitled, which it otherwise would have been or or prov- pleading Waiver, an otherwise fact.” 28 ing important Estoppel AM.JUR.2d The trial determined court’s findings effectively § a claim Thus, OCSE had that could be asserted. properly contrary conclusion, have did to do majority’s findings something with the trial court’s order and were not obiter dicta. The merely *20 if had been moot OCSE would have
affirmative defense estoppel toas assignment The trial court’s findings to be asserted. no right therefore, were, ultimate to its holding integral and limitations evidence. on the comments not merely in the first but these issues appeal, did not raise Mr. Clemmons court based to the trial the issues remand to reopen upon sought court refused to The trial instructions. the court appeals’ remand, wherein the fol- in the the issues proceedings reopen occurred: exchange lowing
By Well, Mr. wants Hodges basically THE Court: Okay. earlier, that I made that says propriety the findings relitigate of the interest was improper, or the assignment, of the run because of the improper the statute of limitations has and that we to. I think what are basically getting that’s assignment. Yes, I the decision of the following HODGES: sir. was just MR. of Appeals. Court
By Well, either one of you, I don’t with agree THE COURT: that want to you might and I don’t want to cut off any argument — make, this. In decision Letter my let me tell how I see you but (10) limitations was ten I found that the statute of decision to you n — Well, of the time that that it’s in excess would cause years. that the And based on cut off some of the support period. would Thousand dol- would be Fifteen ten years arrearages, the issuesthat I decisionon my you had made ($15,000.00). already lars the assignment Mr. in regard propriety raisedagain, Hodges, limitations, mind about my I’m notgoing change statue (sic) I that all was that, on that. think do I want to hear anymoreproof nor at the trial. produced
Now, there else? anything — — the, Honor, uh the letter ruling Helms: Your I Mr. referred to— you
By uh-huh. the Court: You said under —I I’m reading wrong. Helms: guess
Mr. unless the (10) is ten years, limitations in this case the statute of (24) filed becoming action was to the child prior twenty-four years of age—
By the Court: Yes. Helms: all would
MR. —and then accrued be arrearage collectible.
* * [*] By THE COURT: about I wrong Unless I’m his believe he age, — ’73, he was born 5th was and it was filed in ’95. June twenty-two (22). That’s You be Mr. Helms. may right, math,
Mr. Helms: I never to be good claimed at Honor. your — By "Well, head, I was it in doing on my my THE COURT: it and I on the He would calculator. have been put twenty-two in that (22). So case as to the would be your figures correct.... Thus, the court added.) trial that the issues of
(Emphasis recognized and limitations had been determined at the assignment conclusively first trial did not those issues in its deliberations on reopen remand. into account the of the Taking propriety assignment statute of as had been limitations deter- applicable previously mined, so, court the trial awarded the trial arrearages. By doing which, court, court followed directive of the appellate contrary conclusion, not did the issues of majority’s reopen assign- ment and limitations its remand order. order,
The court issued a limited remand appeals instructing trial court determine “the amount of proper so, court did instruct the trial arrearage....” doing appellate court to into considerationthe of the propriety assignment “tak[e] statute did limitations.” proper appellate instruct the trial court to redetermine of the propriety and the statute of Those limitations. issues had been proper already determined. The remand order issued the court of was appeals no more than directive to the trial court to it findings apply had made in of child amount previously determining proper to award If Mr. Clemmons those arrearage. thought error, were made in he could findings have submitted the issues to the court of for determination on appeals cross-appeal pre- served those issues in he case lost on direct He failed to do appeal. so. Mr. Clemmons cannot now that could have reopen findings been addressed in the first of this matter because he is appeal simply dissatisfied with the manner in which those are now findings being applied.
Because I believe that the law-of-the-case doctrine bars the from in this appellant second an raising issue that could have been raised in the first I concur with the appeal, majority the trial court. affirming in this J., joins concurrence.
BROWN, *22 HENDERSON v. STATE of Arkansas Jacinto CR 01-616 Court of
Supreme Arkansas delivered Opinion June