*1 PIERCE v. Melissa Kevin MARTIN 06-950 of Arkansas Court
Supreme 17, 2007 delivered May Opinion *2 for by: Hashem, PLC, Keith, Gibson & appellant. Paul P.A., for Law Firm, by; Richard appellee. Byrd Byrd, Jr., John Chief Hannah, Kevin Martin and Jim Appellant Justice. Pierce Lisa were married in Pierce 1988. filed for complaint 2,1997. uncontested, divorce 8, on The divorce was and on July June waiver, on Pierce’s Martin’s complaint decree entered, alia, children, M.M., inter that two C.M. finding, were born of the A marriage. settlement property agreement whereby Martin was to for C.M. and M.M. to Pierce was support into the decree reference. incorporated for Pierce filed contempt petition November On Martin failure to for his support. alleged Martin against for contempt that Pierce’s petition contending responded, that the marriage to him during fraud in barred her representing that, to the entry claimed child. Martin C.M. was his him, Pierce told an acquain- and unbeknownst divorce decree contended Martin also C.M.’s father. tance that Martin was not him, divorce, had stated Pierce angrily subsequent child. was not his C.M.’s C.M. presence, Pierce, fraud and filed a alleging counterclaim against as to C.M. He also test requested requesting paternity circuit court vacated. The order C.M. be concerning The results genetic testing. granted petition *3 father of could not be the establishedthat Martin biological testing C.M.
Later, his to include Martin amended counterclaim damages also and trial. Because Martin jury sought outrage requested C.M., filed a to with to Pierce vacate his legal obligations respect litem. Martin the of an ad motion for attorney appointment action, that, to no ad because C.M. was not a the party responded litem should an The circuit court ad appointed. appointed litem, he C.M. was not a named concluding although party, rendered in the case. stood to be affected decisions 13, 2006, the ad litem filed a motion for On attorney January circuit declare that court judgment, declaratory requesting father. Martin that contending Martin was C.M.’s responded, for a He relief was not declaratory appropriate nonparty. supple- that it mented his to the motion to include the argument response under law if divorced would be a violation of equal protection men were not to Ark. Code Ann. 9-10-115 permitted, pursuant to of children born 2002), during challenge previous marriage. Ann. 9-10- circuit court concluded that Code The case, it as was a was to part inapplicable present Code, which does not to divorce decrees. There- after, circuit entered an order the ad litem’s court granting thus, Martin declared to be motion for the was judgment; declaratory addition, the circuit court dismissed all of father C.M. In of C.M. Martin
Martin’s with challenges respect now this that the circuit court erred (1) arguing brings appeal, an ad litem not a for person party appointing attorney
action and affirmative to that granting (2) relief person; holding that Martin is foreclosed res from his judicata challenging of, for, C.M.; and child duty pay (3) support 9-10-115, that Ark. Code Ann. amended in did as finding not of, to allow Martin to operate challenge duty for, and, We find error C.M. no pay support accordingly, we affirm. first address
We Martin’s contention that the court circuit erred in ad litem for C.M. appointing because C.M. is attorney not a to the action. Martin that the circuit court party argues the claims embraced in the misapprehended pleadings this action. proper states that Pierce parties Specifically, filed the motion for for failure to contempt he that failure to was not wilful and counter- responded claimed for Pierce’s “fraudulent and conduct in mis- outrageous him into he father, leading C.M.’s believing asking orders Thus, be vacated and for pay support damages.” he contends that he and Pierce are alone the proper parties.
For his C.M. contends that the circuit part, court’s of an ad litem appointment within the attorney “certainly of the creation of ad spirit litem.” In of his attorneys he cites the argument, statute: “When a circuit following judge determines that the of an ad litem would appointment attorney facilitate case in which is an issue and custody protect further *4 child, the rights circuit a may to judge appoint private attorney the child.” Ark. Code Ann. represent 9-13-106(b) 2002) C.M. (emphasis added). while the issue acknowledges exact court, not have been in custody may in the circuit question issue of was raised below. He corresponding support states that Martin’s counterclaim Pierce for fraud and against outrage brought therefore, to issue his it was paternity; for prudent proper circuit court to an ad appoint litem to the indi attorney guard vidual a interests of child. minor We and we cannot that agree, say the circuit court abused its discretion in an ad appointing attorney litem the interests of protect C.M.
Martin next contends that a C.M. is not entitled to person action, intervene this and that to the extent that his motion for is a for declaratory child he judgment is not one petition statute as by a parties prescribed having standing bring
57 First, as a view the motion petition do not action. we child support child no for makes support because C.M. request for child support in motion.
Further, as a mo his while C.M. captioned pleading a it was it that actually for judgment, appears tion declaratory motion, stated that In his C.M. for motion summary judgment. Therefore, fact. there is no of law and not is a question “paternity that should be to the of C.M. of fact with issue regard be construed to finder of fact.” A should to the pleading presented than the rather form. effect to the substance of pleading give Rock, 96, 233 644 (2006). v. Little 366 Ark. S.W.3d City Wright Here, an effort to an end to the C.M. filed motion in bring there no fact at Because he that argued litigation. issue, question we will treat the motion as one summary judgment. ad to Martin’s litem As attorney argument not to file for C.M. in this should have been pleading permitted case, we The has the circuit court inherent disagree. authority an ad child’s litem to interests attorney represent appoint Kimmons, See v. between Kimmons disputes divorcing parents. an Ark. C.M. had interest in his App. ad continued and his An litem legitimacy. attorney support “should be allowed an investigate adequate opportunity case, should be at trial and to call his witnesses to cross permitted short, examine he those witnesses called should parties. client as his child he would client in permitted represent Kimmons, for and at trial.” at preparation App. Here, C.M., at
S.W.2d 114. on behalf of by filing pleading ad he litem C.M. as would client. attorney represented court it the circuit erred when held that argues of, he was foreclosed res from judicata challenging for, C.M. In Child duty support Support Officeof we (1999), Enforcement held that a former to a decree husband’s which agreement stated that children were and his born marriage signing order on child foreclosed later action to establish agreed that he not the father for purposes abating *5 case, on the instant the Williamsin circuit court support. Relying concluded because of C.M. had been established paternity decree, of Pierce’s divorce the issue C.M.’s pursuant never be In we could stated: relitigated. 58
Res
bars
of a
suit when:
first
judicata
relitigation
(1) the
subsequent
merits;
suit resulted in final
on the
was
judgment
(2)
first suit
based
the first suit
jurisdiction; (3)
was
contested
upon proper
fully
faith;
(4) both suits involve the same claim
of
good
or cause
action;
both
(5)
suits involve the same
or their
parties
privies.
88,
Inc.,
v.
SeeMiller
334 Ark.
971
County Opportunities,
S.W.2d 781
Comm’n,
(1998); Hamilton v. Arkansas Pollution Control & Ecology
370,
333 Ark.
969 S.W.2d
(1998).
653
Resjudicata
only
bars not
of claims that
suit
relitigation
actually
were
in the first
litigated
but also those that could have
litigated.
been
See Wellsv. Arkansas
Comm’n,
481,
Pub. Serv.
272 Ark.
S.W.2d
616
718
Where
(1981).
a case
on the
is based
same events as the
matter
subject
of a previous
lawsuit, res
will
even the
judicata
if
lawsuit raises
subsequent
new
issues and seeks
v.
legal
additional remedies. See Swofford
433,
Stafford,
(1988).
295 Ark.
The Vermont Supreme favor this principle: erations which the tme ascertaining interest in plaintiffs we understand
Although child, jurisdictions with the many the we agree genetic makeup child, the and welfare of financial and emotional holding must relationship, an established parent-child preservation of the presumed the interests .... Whatever remain paramount a child’s origins, they “truth” of in ascertaining genetic state, and family, the interests of the remain subsidiary and psycho- financial continuity, support, child in maintaining There- relationship. of an established security parent-child logical fore, it would serve the convincing showing absent a clear child, best interests of the
conclusive.
Godin, The Vermont (citations omitted). Supreme A.2d at 910 who might would deter holding parents further noted that its Court for financial or for other to dissolve their bonds parental seek 395 N.W.2d Hackley, reasons. See v. self-serving Hackley of child in (best maintaining stability interests (Mich. 1986) 913-14 over unfairness to trauma must prevail and preventing psychological father; humiliation); In would result chaos decision contrary 1256, 1265 KB, 1991) & P.2d (Wyo. re Paternity of JRW effect that of a relitigation (“Because damaging potentially children, the on innocent determination have might collateral are rigorously of res judicata estoppel doctrines context.”). in the paternity observed us, the children decree stated that In the case before divorce court awarded cus- chancery and the marriage, were bom visitation. The issue of pater- and set ordered tody, McCormac, decided. SeeMcCormacv. supra; accordingly, nity, Anderson, (Mass. 1990) (a v. 552 N.E.2d Anderson of the marriage); of a child decree is an adjudication Godin, determined in necessarily original Godin supra (paternity Moreover, which awarded support). divorce proceeding, issue, to raise and litigate had the opportunity appellee evidence, there was some he failed to do so. this regard, but that the two that he knew testimony, on Brenda Williams’s based not earlier. were much He also boys biologically signed he order that was the father of the agreed admitting circumstances, Under children. these we hold that the principle *7 res and that court erredin to do judicataapplies chancery fading so.
Williams, 347, 350-52, 338, Ark. 339-41 (1999). case, In the failed instant Martin to contest issues in the divorce, of C.M. That issue decided including in Nevertheless, the divorce decree. Martin that the fraud argues committed him Pierce excuses from the in by finding that, the divorce decree. Martin claims to Specifically, pursuant 60, Arkansas Civil Procedure he entitled Rule is to relief. Rule that a be set aside time 60(c)(4) provides after judgment may or fraud ninety days (whether heretofore misrepresentation “[f]or denominated intrinsic or an adverse extrinsic) Martin by party.” Fletcher, 244, out that in Dicksonv. points this (2005), court extended of Rule to 60(c)(4) operation include constructive fraud where husband failed to disclose his of securities in his and the divorce ownership discovery responses decree entered in 1994 did not address division of the nondisclosed that, securities as marital like the property. argues appellant Dickson, in he should have an to his divorce opportunity modify decree because his committed fraud. ex-spouse C.M. contends that Dicksonis to the facts inapplicable of the instant case because the the bastardiza public policy against tion of a child is not to the intentional sixteen-year-old analogous concealment of marital We and we decline to property. agree, Dickson, extend our decision to the facts of the instant case. supra, In considerations light discussed policy we supra, bar, hold under the facts of the case at Rule cannot 60(c)(4) as a used means a divorce decree. modify
We now turn to Martin’s that the circuit argument court erred its reliance on Williams because case has been Act 1736 of which abrogated amended Ark. substantially Code Ann. 9-10-115 to allow father have an absolute legal § to a test have right child-support obligation terminated if it is determined that he is not father. In biological Williams,we addressed a version of Ark. Code Ann. 9-10- § 115, stating: it isnot briefed
Although
by OCSEand
not relied
seemingly on
court,
we feel
chancery
constrainedto
Ark.
address
Code
of a
modification
Arm.
addresses
which
9-10-115(d) (Supp.1995),
§
that a
suit
in paternity
when it is determined
order
child-support
See,
Littles
e.g.,
of a child.
man is not
Littles, this
970 S.W.2d
Flemings,
had been
that a man who
and held
9-10-115(d)
on
court relied
suit was entitled
child in a
the father of a
scientific testing
after
future child-support obligations,
relief from
said:
father. We
not the child’s biological
that he was
proved
father in Mr. Littles’s
that an adjudicated
statute mandates
“[T]he
judg-
relief from child-support
receive prospective
position
Littles,
at 262.
Subsequent 2001, entitled, Act 1736 of “AN ACT TO PROVIDE bly passed ENTITLED THAT AN FATHER IS TO ADJUDICATED PATERNITY TEST AT ANY TIME DURING THE ONE Act PERIOD OF HIS CHILD SUPPORT OBLIGATION.” include the 1736 amended Ark. Code Ann. 9-10-115 to follow- relevant ing provisions: man has been to be the father of a (e)(1)(A) When any child to an child or is deemed to be the father of a pursuant of without the benefit of scientific acknowledgment paternity testing as a result was ordered to test, 9-10-108, he shallbe entitled to one (1) pursuant at time time of that he is during period required of a motion or support upon filing challenging of in a court of acknowledgment jurisdiction. competent If the (f)(1) test administered under subdivision (e)(1)(A) of this section excludes the adjudicated father or man deemed to be the to an as the pursuant acknowledgment finds, father of the child and the court so the court shall set aside the establishment of previous finding or and reheve him of future as of the obligations date of the finding. Ark. Code Ann. 9-10-115 2002).
The issue before us is one of construction. This statutory court reviews issues of construction under a de novo statutory Barnes, Clinic, standard. P.A. v. Cooper 237 S.W.3d 87 (2006). Because it is for this court to decide the meaning statute, we are not bound the circuit court’s determination the statute’s Id. The rule basic meaning. construction statutory is to effect to the intent General give Id. The first Assembly. rule in of a statute is to construe it as determining meaning just reads, it the words their giving ordinary usually accepted in common Id. This court will meaning language. construe void, statute so that no word is left superfluous insignificant, with and effect meaning word in the statute if given every Id. When the of the statute possible. and unam- language plain *9 a clear and definite biguous, conveying we need not meaning, resort to the rules of construction. Id. A statute statutory is constructions, where it is ambiguous only two or more or open where it is of such obscure or doubtful that reasonable meaning minds or be uncertain might as to its disagree Id. meaning. 2001, review of the in Act 1736 of
Upon language we are not convinced that the General intended to overrule Assembly Williams, our decision in Williams. In we made it clear that Ark. Code Ann. 9-10-115 is a of the Code and is part Paternity § intended of or apply only judicial findings paternity of both acknowledgments under Ark. paternity by Code parents Williams, 353, Ann. 9-10-120 1995). 338 Ark. at (Supp. 995 Further, S.W.2d at 341. we stated that there is 9-10- nothing
63 353, decrees. Id. at 995 it to divorce to indicate that applies amended since we the statute has been at 341.1 Although the fact remains that decision in handed down our is Code. The legislature of the Paternity statute still part court, it will to know the decisions of supreme presumed a statute that be legislature not construing presumed where its a subject intended to the court to pass again upon require Books-A-Million, in unmistakable intent is not language. expressed 467, Co., 340 Ark. 10 S.W.3d Inc. v. Ark. & Painting Specialties court made a distinction the fact Williams (2000). Despite between fathers under Code adju- Paternity decrees, did not see fit dicated fathers under divorce the legislature to enact outside the Code legislation Paternity regarding adjudi- cated fathers. hold that Act 1736 of 2001 did not our We abrogate 9-10-115, 2001, Section as amended in does decision Williams.2 not to a determination as a matter of arising apply paternity under a divorce decree. presumption that if he is not allowed to
Finally,
argues
sire,
of a child he did not
but was deceived
question
he,
man,
into
as divorced
will
denied
acknowledging,
equal
Pierce,
of the law. Fie states that
as the
protection
biological
mother, has a
to Ark. Code
right
challenge paternity, pursuant
Ann.
9-10-104
and that a
to be
2002),
person claiming
father of a child to a married woman who was not his
wife when the child was conceived is entitled to
challenge
B.M.,
347 Ark.
See
presumption
paternity.
R.N. v. J.M.
Martin fails to
develop
equal-protection
therefore, we do not address it. This court will not
argument;
Seealso
v. Willis,
Affirmed. Brown,
Corbin dissent. JJ., Brown, Robert L. Because Justice, the Gen- dissenting. eral has Assembly relieved expressly unambiguously father of the adjudicated child after obligation pay support, father, scientific shows he is not the I dissent testing from the majority opinion.
The holds that once there is a majority divorce decree father, a man to be the adjudicating is irrevocable adjudication of future scientific regardless the man could not be testing showing the father. I Act 1736 of 2001 disagree. amended Ark. Code Ann. 9-10-115 1999), (Supp. in an adding following language Code: attempt clarify
(e)(1)(A) When man has been to be the father of a child or is deemed to be the father of a child to an pursuant of acknowledgment without benefit of scientific testing and as a result was ordered to test, he shallbe 9-10-108, entitled to one (1)paternity pursuant at time of during period time that he is required of a motion upon fifing challenging or of in a acknowledgment court of competent jurisdiction. If the (f)(1) test administered under subdivision (e)(1)(A) of this section excludes adjudicated father or man deemed to be the to an pursuant acknowledgment of as the finds, father of the child and the court so the courtshall set asidethe previous establishment finding and relieve him any future as the date obligations support thefinding. Ark. Code Ann. 9-10-115(e)(l)(A) (f)(2) (Repl. 2002) (empha- sis added). Act 1736 of 2001 was at the next passed general legislative session after this court’s decision in Child Support Office of Enforce- ment v. Williams, we held: *11 (cid:127) where of paternity bars relitigation Resjudicata decree. in the divorce
established (cid:127) of child addressesmodification 9-10-115(d),which Previous § not to be the father is proven when an adjudicated support child, is testing, afterscientific part an adjudication Code and is differentfrom vastly in a divorcedecree. (cid:127) father should The child of the adjudicated support obligation
continue. The broad added to 9-10-115 Act 1736 states language by to man” to be the father that section applies “any adjudicated McCormac, of a minor child. In 304 Ark. McCormac this court said that a divorce decree S.W.2d 806 (1990), specifically is an Section is un- adjudication paternity. 9-10-115(e)(l)(A) and we construe it their words ambiguous, and by giving ordinary See Weissv. usually accepted meaning. Maples, The man” indicate words “any clearly that the General intended for the subsection to Assembly apply child, man be the father of a whether adjudicated previously in a action or as of a divorce To draw part proceeding. distinction between the in the two flies face of clear and exact Act 1736. language
Furthermore, Act the General Assembly expanded the time frame for Under the challenging paternity adjudication. statute, version of the could be previous only modified within three of its See Code Ann. years entry. Act 1736 now that an 10-115(f) 1999). (Supp. provides § 9— be “at time adjudication may challenged during period time that adjudicated required pay support.” [the father] Ark. Code Ann. The statute 9-10-115(e)(l)(A) 2001). Martin, thus to Mr. as he was still applies obligated at the time he his support challenged paternity. Martin,
The General has now mandated that Mr. Assembly decree, father in a relieved of though future child under Act 1736 obligation section to man.” The expanding pertinent “any breadth of the in Act 1736 language manifestly encompasses divorce decrees. The circuit court did not act new interpret but instead dismissed Mr. to the Martin’s way, challenge Yet, This was error in obligation.
child-support my judgment. affirms the error. majority
I dissent. respectfully
Corbin, this dissent. J., joins
STATE of Arkansas v. GRISBY Quincy CR 06-1269 Court of Arkansas
Supreme 17, 2007 delivered Opinion May denied [Rehearing 21,2007.] June