Powell v. Lane

fails to note with what it believes those to be errors particularity what this court should grounds review. upon grant Although Appel- lee attached its for it ais identical petition rehearing, nearly copy review no additional petition gives citation to argument also attached its Brief in authority. Appellee Petition for Support to its review it in that document Rehearing petition, makes its substantive it Appellee argument the errors regarding believes the court made. Because Rule 2-4 appellate prohibits review, court from briefs we accepting petitions support cannot consider the made in the Brief in arguments Support Petition for Rehearing. Bar,

For of clarification to the this court will purposes only consider the Petition for Review filed with this court pursuant and, 2-4 Rule if attached to the review the Petition for petition, to the Court of It will not Rehearing а brief in Appeals. accept review and will not support consider a brief in rehearing petition. for review is denied. Appellee’s petition POWELL v. Felkel LANE Jason Joeseth

and Wendell Lane Ray 08-282 289 S.W.3d 440 Court of Arkansas

Supreme 11, 2008 delivered December Opinion Rawlins, M. Mary appellant. Keeter,

Bob for appellees. Jim Hannah, This an is an adoption Chief appeal Justice. Lane and decree Wendell Ray granted appellees, Lane, Wendell Davelynn’s Felkel permitting adopt D.P., son, she with Powell. minor whom conceived appellant Jason court in a and remanded to the circuit The court of reversed appeals Lane, 275 S.W.3d 666 5-4 decision. SeePowell review, Lanes court for which we granted petitioned Rule 2-4 Because this (2008). to Arkansas Court Supreme pursuant review, of the case us a for our is before on jurisdiction appeal petition the (2008). Court Rule l-2(e) Upon is Arkansas Supreme pursuant review, it case as had we consider the though of a for grant petition See, Child Tucker been filed in court. e.g., originally Office 481, We affirm Ark. 247 S.W.3d SupportEnforcement, and the for we the court’s order circuit granting petition adoption, the court reverse of appeals. 1996, 31, and that Davelynn

It is on December undisputed Pencil Bluff where Church in they went First Baptist Jason was Tidwell. The ceremony were Reverend Bruce married and at the head of the church in that stood traditional Jason a dress. When the aisle in creme-colored walked down Davelynn church, ex- she and the front of reached Davelynn Jason and friends witnessed vows while family marriage changed Dave- those mother was among present. ceremony. Davelynn’s with child at time of the lynn pregnant ceremony Jason’s son, D.P., 9, to a and later birth on 1997. and gave She July Jason wife, lived as husband and from the date of the together ceremony of2004, until their almost later. separation years sрring eight It also and obtained a Powell undisputed Davelynn license before the license was ceremony. marriage not Reverend Tidwell and was never returned to the signed by clerk for and have never obtained a filing. county divorce. Davelynn Jason 9, 2004, On Davelynn petitioned Montgomery June son, Circuit Court to establish of her County D.P. paternity ofD.P., was the natural father a minor Davelynn alleged Jason child who was out born of wedlock to her on 1997. July addition, she averred that she and were not married to each Jason other or other at the time of and birth any persons conception ofD.P. The and summons were served on but he petition Jason, failed to answer and default 2004. In the was entered on July order, the circuit court found that Jason D.P., natural father of and that were not Davelynn Jason married to each other or other at the time of the persons schedule, and birth ofD.P. Thе order set a visitation conception child in the amount of required dollars pay support seventy-five Jason week, one-half of D.P.’s per required pay Jason medical did not the default order. expenses. Subse- appeal Jason moved to set aside but that quently, judgment, motion was denied. and Wendell were married on 2004. Davelynn September 28, 2006, On March the Polk they petitioned Circuit County Court for a decree Wendell to allowing D.P. without the adopt consent of consented to the Davelynn adoption alleged Jason. had failed without cause to significantly justifiable communicate with or D.P. at least one year. Jason answered, denying consent to the allegations refusing adoption. 12, 2006, On filed a for divorce May in against Circuit Court in the

Davelynn same cause Montgomery County of action as the action. moved to dismiss the paternity issue had petition, asserting beеn resolved. The cases were consolidated in Polk already Circuit Court and heard on 2006. County July At the testified that Davelynn she was at hearing, pregnant the time of the She stated that she and wedding. were not Jason married; rather, a “went cer- she testified they through “You lots of added: do things play acting emony.” Davelynn that that wasn’t legal.” that’s not and it’s understanding legal my time, that, be married at did not want to She claimed Jason but that had because he felt already gotten they “trapped,” license, was was and she an her dying, marriage grandfather to did not know what do. overwhelmed who teenager pregnant file never intended to testified that she Davelynn Jason license. never In license and that saw preacher decision,” addition, a stated that she “made bad very Davelynn that she were never married. and Jason also her marriage provided testimony regarding Davelynn 4, 2004, on stated that were married Wendell. She they September Branson, had not Missouri. She further stated paid Jason and that he had not child since December 2004 paid any bills. of D.P.’s medical portion D.P. had been with testified that diagnosed aseptic Jason that he with stated optic hypopanpituitarism. dysplasia Jason medication-giver”

his son’s “primary shot-giver” “primary that he of his son’s life. admitted the first during eight years Jason the Child Support support Davelynn through stopped paying but he denied he stating quit paying support, Clearinghouse, that, instead, a that he he into fund deposited payments he money for D.P. said that stopped paying maintaining Jason so cause the he knew that would because doing clearinghouse him court. Enforcement Office to into Child bring Support Jason court, into he believed that once he was brought stated that he all of the other issues with Davelynn. could resolve Powell, sister-in-law, testified that she wit- Melissa Jason’s were in which and Davelynn nessed the ceremony kissed, went they “We had they married. She stated: wedding, said, aisle, what I seen.” I do. That’s down the they married on that he and were testified Davelynn Wendell He child further and have one together. September since with him and they that D.P. had resided Davelynn testified D.P. stated that he wanted adopt were married. Wendell his like D.P. was son. and because he felt because he loved him received no he and had testified that Wendell also their for D.P. from since marriage. financial support divorce court dismissed petition. The circuit Jason’s so, were circuit court ruled that Davelynn doing who failed to have the because preacher never they married their the license and marriage ceremony performed sign marriage because also failed to file the license with clerk. they the county

The circuit court then the granted petition adoption and Wendell. In its order the the Davelynn granting petition, circuit court found that and were not married at Davelynn Jason the time D.P. was at conceived or time thereafter. The circuit that, court further concluded while was there much and testimony conflict over whether had to communicate with attempted Jason D.P., that, there was in no excess of one had year, dispute Jason cause, failed without child significantly, justifiable pay for D.P. the circuit court determined that Accordingly, Jason’s consent to the was not filed a motion for necessary. adoption Jason reconsideration, which was denied the circuit court. Jason the court which reversed and the remanded appealed appeals, circuit court. The court of held that and Davelynn appeals were married and that the circuit court erred in validly finding Powell, otherwise. See 101 Ark. at 275 S.W.3d at 667. Further, the court of held: “In that the trial court’s appeals finding were never married Davelynn was determi- [Jason] issues, factor we nating regarding reverse remaining Id., remand all issues 275 S.W.3d at 667. presented.” Davelynn now Wendell review. petition Validity Marriage first contends that the court circuit erred in concluding that he and were not married. claims Davelynn validly of the of the issue decided validity marriage circuit court’s 2004 default order. She out that July points took no he from order did not raise the issue appeal of the until two validity after the marriage nearly years entry order, of the in a for divorce. Accordingly, Davelynn contends that arguments regarding validity Jason’s are barred res his For asserts that judicata. part, Jason did not Davelynn’s address the paternity complaint and, therefore, the default order could not have resolved the issue.

Res bars of a claim in suit judiсata relitigation subsequent when five factors are These include: the first suit present. (1) merits; resulted ain final on the the first suit was (2) based the first suit (3) contested upon proper jurisdiction; fully faith; in good (4) both suits involve the same claim or cause of action; and both suits involve the same their privies. Further- 999 S.W.2d 678 (1999). Moon Marquez, more, not of claims that were res bars relitigation judicata only suit, also those that could have first but actually litigated to res is to an end been Id. The of judicata put litigated. purpose on a had one fair trial a matter who by party litigation preventing has time. Id. This court the matter a second from relitigating res in the of law. Id. family the of context judicata doctrine applied in terms of couches her While Davelynn argument to that she is that res it asserting challenge judicata, appears Jason’s issue barred collateral or the is estoppel, validity a elemеnts before four Collateral estoppel requires preclusion. the a (1) determination is conclusive in subsequent proceeding: in be the same as that involved issue to be must sought precluded that must have been actually the issue litigation; (2) litigated; prior final have determined a valid and the issue must been (3) to the must have been essential and determination judgment; Willis, v. 347 the Child State judgment. Support of Office Enforcement 6, whom collateral (2001). Ark. S.W.3d party against earlier action and is must have been a asserted party estoppel to the issue in that have full and fair must had a litigate opportunity acts to issues id. Unlike which bar first See resjudicata, proceeding. action, first collateral could have been that merely litigated Id. instance. actual first requires litigation estoppel served,1 The default states judgment properly Jason each not to other or and “were married and Davelynn Jason and birth.” The at the time of the other conception any persons “were not asserted that paternity married at the time of the or other each other persons Thus, of was on notice that and birth” D.P. conception decided, and he had of this be issue heard. He not be heard. to be chose a full fair opportunity However, does not the dissent that collateral estoppel states Arkansas, a default judgment just to default judgments. apply as v. on the merits. SeeState enforceable as a binding 117, $258, 035 352 Ark. 98 S.W.3d U.S. Currency, Nonetheless, does not dissent that collateral asserts because a default does not actually to default judgments apply of in its definition “actually The dissent errs issues. litigate served. The record shows was personally In the of context collateral liti- litigated.”2 estoppel, “actually otherwise, means that the issue was rаised in or gated” pleadings, heard, that the had defendant a full and fair to be that a decision was rendered on the issue. For in Bradley example, Arkansas, Ventures Farm Bureau Mutual Insurance Co. 264 S.W.3d 492 (2007), taking plea guilty decided a reckless but guilt charge burning, taking guilty not did decide the issue of intent to commit arson plea Bradley’s with which he was While this case not charged. does originally concern it is similar in that it involved judgment, a plea that resolved the case without a full trial. To the argument this court stated: estoppel,

The doctrine of collateral estoppel, issue bars preclusion, law relitigation issuesof ‍​‌​‌‌‌​​​​‌‌​‌‌‌​‌‌‌‌​‌‌‌‌​‌​​​​​​‌​‌‌​‌‌​‌‌​​‌​‍or fact actuallylitigatedby suit, the first provided against whom the party earlier decision is assertedhad a full and being fair to opportunity litigate the issue in that issuewas question essentialto the judgment. 234-35, 371 Ark. at 264 S.W.3d at 490. A or a Bradley, guilty plea default the of collateral judgment may satisfy rеquirement estoppel where the issue was essential and was raised judgment properly and decided the action. Both a and a by default guilty plea judgment heard, a full and fair to as in may the case. provide opportunity present chose not to the avail himself of be A heard. default determines the judgment as conven- rights just parties’ any 652, tional or decree. See Meisch v. judgment 270 Ark. 606 Brady, 112 S.W.2d (1980).

However, notes, as the dissent some in courts foreign hold that jurisdictions default are not to collat- judgments subject eral because default do not arise from estoppel actual judgments 2 meaning It that the confusion over the litigated” from arise appears of“actuaIly judicata the claim distinction between under res issue or collateral preclusion preclusion, judicata, Under including claim or res the entire claim estoppel. preclusion precludеd, might all or issues were have been raised; however, under issue or preclusion, collateral those adjudicated (actually issues were estoppel, only directly necessarily litigated) are See State, Mason v. 206 S.W.3d 869 From this precluded. distinction comes the under collateral to be issue requirement estoppel precluded litigated.” must litigated” have been nothing Thus, has do with whether “actually “actually judgment adjudication, the default, was obtained trial, rather, the otherwise; by summary adjudicated is whether the issue to be judgment at issue. question precluded Kest, 3d 34 (Cal. v. 46 Cal. see, But Gottlieb Rptr. e.g., litigation. hand, collateral accords on the other 2006) (“California, Ct. App. at least where judgment effect to default judgments, estoppel The courts on the an allegations.”).3 contains finding express to default does not judgments that collateral apply holding estoppel does, err, definition of dissent “actually litigated.” also as the the error an of how Iowa case serves as The citation of an example Sandoval, Ct. (N.M. 761 P.2d arises. In Blea v. dissent, Court New Mexico Supreme cited 1988), cases, relied, (Iowa 94 N.W.2d other on Lynch Lynch, among has no collateral that a default 1959), proposition stated, “Col- Court effect. In the Iowa Lynch, Supreme estoppel cases.” 94 N.W.2d not available in default lateral is usually estoppel the dissent’s This added). appears at 108 (emphasis does however, it is clear that further Lynch analysis, upon position; fail to satisfy requirements not hold that all default judgments collateral statement about of collateral making estoppel. the Iowa to default not judgments, usually applying estoppel Poncin, 132 N.W. 970 (Iowa cited to Matson v. Court Supreme not does not state that collateral estоppel apply Matson does 1911). Rather, “it must there we find that appear to default judgments. on in the considered and matter was passed that the particular suit, as a bar to not or the will operate former adjudication Matson, in Matson at 972. court action.” 132 N.W. subsequent (9th 2003), Cir. California citing Cantrell, In re 329 F.3d As the dissent notes against applying blanket rule that hold there is a not follow the courts does the court in Cantrell cited This dates back some time as judgments. authority not warrant the default does judgment the was secured indicates. “The fact that by issues judgment an as to all ‘A default is necessarily of a rule. estoppel application special ” judgment.’ Harmon, In re like other litigated therein and determined thereby exacdy any (Cal. 1941)). The 605, 608 116 P.2d (2001) (quoting Horton, Horton v. F.3d 1240, 1246 250 1933), (Cal. Ct. 532, 534 23 P.2d found in which is Harvey Griffiths, complete quote, is as follows: The was default. judgment which is assailed immaterial that the by It is procurеd their interest. and had an defendants in that action appear protect opportunity failing and their in court right waived the by appear day deliberately

They to all issues judgment is an as A default necessarily answer the estoppel complaint. judgment like other litigated therein and determined provided thereby exactly involved in the suit. subject-matter jurisdiction of the and the court parties acquired Judgments at A the Law (citing Freeman, 3 Treatise § P.2d at 534 A.C. 23 Harvey, of (5th 1925)). ed. matter, went on to state that “a not embraced in the and pleadings, which was not determined in could necessarily entering judgment Thus, not have been in issue.” Id. the “collateral directly phrase cases,” is not available in default meant usually estoppel really is not available the unless matter was raised in estoppel otherwise, or and decided. Default pleadings, directly judg- ments or not of collаteral may satisfy requirements must be considered on a basis. estoppel. question case-by-case The issue of collateral and default was estoppel judgments Insurance, also in discussed Lane v. Farmers Union 989 P.2d 309 There, (Mont. 1999) cited (also dissent). court consid- by ered the of whether a default served as a final question judgment this, on the merits. To decide judgment court concluded it had to determine whether the issue was and stated a actually litigated test: first,

This two analysis that the issue requires things: was effectively evidence, raised in the pleadings, through development and, motion; second, at trial or on argument that the losing had a full and fair party opportunity procedurally, substantively, evidentially contest the issue in a prior proceeding. Lane, P.2d at 317. as in Again, is Lynch, supra, question whether issue was raised and whether there a full properly fair to be heard.

Other courts have held thаt the of actual requirement met in a default litigation judgment: A taken judgment is conclusive in way to all such respect matters and facts as are well pleaded properly raised, and material to the case made by declaration or other and such issues cannot be pleadings, relitigated any subsequent action between the and their privies.[4] Bursack, In re 65 F.3d 54 (6th Cir. 1995) Lawhorn v. (quoting 168 S.W.2d Wellford, (Tenn. Still other 1943)). jurisdictions language originated This to have in 1 A Treatiseon Black, appears Henry Campbell Judgments (1891), the Law 87, at 126-27 where the language is found. § above-quoted goes Black on to state that “while a default alleged conclusive of all that is properly nothing it is conclusive general and as a rule more, it binds the defendant complaint, in the character in which he is sued.” Id. only and a means notice bear out this conclusion litigated” “actually heard rather than where full and fair to be litigation opportunity and introduction of evi- after matter is decided only development Motors, Inc. v. A discussion in Overseas Import dence both sides. by Ltd., Motors, 375 F. Mich. (D.C. 1974), helpful: Supp. — issues to those applies only

Default Collateral Judgment How- action. ‘fully prior which were or ‘actually’ litigated’ ever, rule does not refer to the or of quality quantity argument first, two evidence addressed to an issue. It requires only things: or action, either in has been raised the effectively prior issue of the evidence argu- or pleadings through development second, motion; has had ment at trial or on that the losing party evidentially’ substantively, ‘a fair opportunity procedural!/, to these subject contest the issue. The rule therefore is general do constitute res judgments judicata purposes restrictions (collateral estoppel). of both claim and issue preclusion preсlusion Inc., Bush, F.3d Motors, at in In re Overseas quoted Supp. Houston, 305 B.R. 111, 1319, 1323 118 (Bankr. re (11th 1995); Cir. Foster, S.D. Ohio (Bankr. M.D. Fla. In re 280 B.R. 2003); 2002). case, the issue of the of

In the present notice and a full decided in the default after was judgment personal to be heard. The determination Davelynn’s and fair opportunity action. marital status was essential to paternity that she was not married asserted in the action Davelynn paternity did not offer and birth. at the time of D.P.’s conception Jason to do he had the evidence to the although contrary, was not married to circuit court declared that so. The Davelynn Thus, time the issue of D.P.’s and birth. at conception The decision of marital was paternity status “actually litigated.” conclusive, that decision. Collateral is bound was hold otherwise would undermine in this case. To estoppel applies rule. Each There is no bright-line finality judgments. otherwise, default, must be examined takеn judgment, it meets the decided and whether determine what finally of collateral estoppel. requirements that his

In connection with his argument valid, void should be asserts adoption Davelynn and Wendell’s no home was conducted because study 9-9-212(b)(l)(A) section (Supp. home. Arkansas Code Annotated states: “Before of the child the home 2005) of the placement a home shall be conducted child welfare petitioner, study any by Act, licensed under the Welfare Child agency Agency Licensing et 9-28-401 licensed certified social worker.” seq., any § Pursuant to Arkansas Code Annotated section 9-9-212(c), “[t]he court also waive the for a home when a may study requirement is the asserts that because he and stepparent petitioner.” Jason divorce, never obtained a to Wen- Davelynn Davelynn’s marriage void; therefore, dell is Wendell is not D.P.’s and a stepparent, home could not study bе waived.

There ais deliberate longstanding against presumption Bruno, v. Bruno 221 Ark. 256 S.W.2d 341 bigamy, (1953), there is a common law of the second presumption validity Cole, Cole 249 Ark. marriage, S.W.2d The (1971). burden of of a is on the one disproving validity marriage Bruno, Here, it. advanced attacking supra. only argument is that second is void because he and Davelynn married, ‍​‌​‌‌‌​​​​‌‌​‌‌‌​‌‌‌‌​‌‌‌‌​‌​​​​​​‌​‌‌​‌‌​‌‌​​‌​‍were still an that he is validly argument collaterally from has failed to overcome the estopped asserting. pre between sumption Wendell. It follows that failed he has that Wendell was prove not D.P.’s at the time of the and that a stepparent home adoption in this case. study required

Consentto Adoption contends that the circuit court erred granting there because was insufficient petition adoption evidence that he had failed without justifiable cause communi- significantly cate with D.P. and to D.P. statutes are support Adoptiоn strictly construed, and a wishes who a child person must adopt prove consent clear and evidence. unnecessary In re convincing A.M.C., 246 S.W.3d 426 Adoption A circuit court’s that consent is because of a finding unnecessary failure to or communicate with the child will not be reversed unless erroneous. Id. clearly

Arkansas Code Annotated section 9-9-206 (a)(2) (Supp. in relevant 2005) provides part: 9-9-207, (a) Unlessconsent is not under required § a minor be if

adopt only written consentto a granted particular hasbeen executed adoption by: fatherof the if the minor fatherwasmarried the to mother at the time the minor wasconceivedor at time thereafter.... Arkansas Code Annotated section 9-9-207(a)(2) (Supp. 2005) provides:

(a) Consent to is not of: adoption required another, (2) a of a child parent if the for a custody parent of at least period (1) one has failed year without significantly cause justifiable (i)to communicatewith the (ii) to provide child for the care and of the child as support law or requiredby judicial decree[.] that,

The circuit court concluded while there was much and conflict over whether had testimony to attempted Jason D.P., communicate with there was no last child dispute Therefore, was in December 2004. support paid the circuit court found that consent was not The failure to child necessary. pay alone, support, standing justifies consent is unnec finding 5, At the essary. July admitted that he had hearing, Jason child to He “quit paying support claimed he had [Davelynn].” child over here in a fund.” The support record reveals that “sitting last of child payment support clearinghouse Jason’s 6, recorded on December 2004. There was no evidence that he Thus, had otherwise child it is clear that paid failed support. Jason to in excess of one Failure to pаy support without year. pay support willful, cause means a failure that is justifiable voluntary, arbitrary, and without excuse. See In re K.F.H. & adequate Adoption of K.F.H., 311 Ark. 844 S.W.2d 343 Bemis v. (1993) (citing Hare, Swim, 19 Ark. 718 S.W.2d 481 (1986); Robertsv. App. 597 S.W.2d 840 (Ark. voluntar 1980)). ily, without willfully, arbitrarily, excuse failed to adequate pay child in excess of one support reason for not year. paying Jason’s get Davelynn — that it was an support back into court attempt — is not cause for his justifiable child. The failing support circuit court did err not that consent to the finding adoption because failed to child unnecessary excess of pay support one year. to Cure

Opportunity contends that the circuit court erred in granting his under the adoption terminating parental rights provisions of Arkansas Code Annotated section 9-9-207 be- 2005) (Supp. cure as cause he was not by given provided 2005), Arkansas Code Annotated section 9-9-220(c)(l) (Supp. which provides: law, addition to other any any proceeding provided by child terminated be court order

relationship parent by under law issued on other subchapter ground provided for termination of the or on relationship, following grounds: (1) Abandonment. A child

(A) order shall notice to non-custodial support provide that failure to child or to visit the child for at least parent pay support one shall the custodial with the year provide parent right initiate to terminate the of the non- proceedings parental rights custodial parent.

(B) If the notification clause subdivision (c)(1)(A) of required order, this section is not in the child the custodial parent, to termination of shall the non-custodial prior parental rights, notify that he or she intends to the court to terminate parent petition parental rights.

(C)(i) (3) non-custodial shall have three months from parent a filing to substantial amount of due petition pay past owed and to establish a with his or her child payments relationship or children. Once the

(ii) (c)(1)(C)(i) under subdivision of this requirements met, section are the custodial shall not be to parent permitted with the nor the proceed termination of adoption parental rights the non-custodial parent. The court terminate

(iii) of the non-custodial parental rights that: parent upon showing

(a) Child have not been made for one payments year the non-custodial has not visited the child in the parent preceding and the non-custodial has not fulfilled the year parent requirements section; of subdivision (c)(1)(C)(i) of It would be in the best interest of the child (b) to terminate parental relationship. The record reveals had the Jason

“cure” his failure to child pay to section support, pursuant but he 9-9-220(c)(l)(C), chose not to do so. The in this petition case was filed on March 2006. Under section 9-9-220(c)(l)(C), date, had three 28, 2006, months from that or until Jason June a substantial amount pay due owed and past payments establish a with his child. No were relationship made. payments contended, 5, 2006, at the Although on that he hearing July account, the funds into ‍​‌​‌‌‌​​​​‌‌​‌‌‌​‌‌‌‌​‌‌‌‌​‌​​​​​​‌​‌‌​‌‌​‌‌​​‌​‍a paid he never separate those deposited funds into the of the court nor did he registry of those pay any funds to the mother. Even after notice that an receiving adoption filed, he still petition refused to with the court order comply actions, child his regarding own support. By did nothing enforce he have had to right “cure” his failure might to pay child support. sum, the circuit court found that consent was not Jason’s for the and that

necessary it would be adoption in D.P.’s best interest to for grant We petition adoption. recognize conclude, do, circuit court did not as we is collaterally from estopped It challenging marriage. axiomatic that this court can affirm a circuit court if the result right is reached even if it is for a different See, reason. e.g., Alphin Alphin, S.W.3d 160 We affirm circuit court’s granting adoption. reversed;

Court of circuit court appeals affirmed. dissent. JJ., Wills,

Brown

Elana CunninghamWills, Justice, Because I dissenting. do not that the default agree entered in the action has effect under paternity the doctrine of preclusive I dissent. estoppel, respectfully out,

As the one element majority points of collat- required eral is that the issue to be estoppel must have sought precluded been “The of “actually litigated.” whether an issue has question been is previously litigated for interpreted very narrowly purposes of collateral Co., In re Estate Gostonv. Ford Motor estoppel.” 320 of 699, 705, 471, Ark. Roane, 898 S.W.2d 473 (1995) Smith v. (citing 568, 284 Ark. 683 S.W.2d 935 This court (1983)). held recently means “actually litigated” Ventures “actually litigated.” Bradley Bureau, 229, 237, v. 485, Farm 371 Ark. 264 S.W.3d 492 (2007) a criminal in a criminal case is not equivalent (guilty plea been State Similarly, conviction has “actually litigated”). Willis, 6, 16, 347 Ark. v. Child Support of Enforcement Office 438, held that where the trial stated we (2001), judge S.W.3d child,” decree that “the have one (1)

in a divorce hereby neither at issue and no but adversary presenta- party put paternity made, of were the court’s tions of evidence on this finding point that the “was not the result of litigation.” By stating paternity “ matter must be we necessity actually litigated, emphasize [d] Willis, 16, to be 347 Ark. at for issue sought trying estopped.” that a default at 445. This court has never before held 59 S.W.3d of the collateral satisfies the litigated” judgment “actually prong have held default conclusive for doctrine. We judgments estoppel see, BrunsFoods of the related doctrine of resjudicata, e.g., purposes Hawkins, 416, Morrilton,Inc. v. 944 S.W.2d 509 (1997); however, res does not the doctrine of judicata require matter have been “actually litigated.” the courts of our sister

There is some among disagreement effect of default states on the of the preclusive judgments question of collateral The view” been has estoppel. “majority purposes that, with default described as nothing finding judgments, Kest, v. 46 Cal. 3d 7 Ct. (Cal. Gottlieb “actually litigated.” Rptr. Ins., seealsoLane v. FarmersUnion 989 P.2d 309 2006); (Mont. rule” that a default 1999) judgement (acknowledging “general The courts to this effect). carries no collateral adhering estoppel view cite the Restatement to this (Second) often Judgments Sandoval, 432, effect. The case of Blea v. 761 P.2d 435-36 (N.M. is illustrative: 1988), Ct. App. for the that a default There is ample authority proposition judge effect. See Restatement (Second) ment has no collateral estoppel v. IllinoisTool 27e, Inc. Grip-Pak, (1982); at 257

Judgments § Inc., denied, Works, cert. (7th 1982), 694 F.2d 466 Cir. 461 U.S. McMillan, In re 579 F.2d (1983); 103 S.Ct. 77 L.Ed.2d 1317 Lynch Lynch, Iowa 94 N.W.2d 105 (3d 1978); Cir. (1959). The Restatement formulation and the cases foregoing effect, but judicata that dеfault do have res recognize judgments collateral from res The basis of the distinguish judicata. estoppel consideration, in a distinction is the doctrine that res bars judicata suit, have been raised of all matters could subsequent properly case, while bars consideration only prior and determined a valid and final actuallylitigated issues and the federal cases recognize .... Restatement foregoing

195 that in a default judgment, issuesare not actuallylitigated. Restatement alsostatesthat the policy endless preventing litiga- tion doesnot as in the apply strongly collateral context asit estoppel does when are to repeatedly attempting same relitigate Hence, cause of action. while it be accord res proper effect to a judicata it is not judgment, appropriate give such a judgment effect. estoppel of cases to the Examples rule are Lee ex rel. adhering general States, Lee v. United 124 F.3d McMillan, 1291 Cir. (Fed. In re 1997); 579 F.2d 289 Cir. (3d State ex rel. 1978); Economic Department of Powers, v. 908 P.2d 49 Security Ct. (Ariz. Burns v. A 1995); App. Bond, Cash Lane, ConstructionLien 8 P.3d 795 (Mont. 2000); supra; McNair, McNair v. 856 A.2d 5 (N.H. Slowinski v. 2004); Valley Bank, National 624 A.2d 85 Ct. Div. (N.J. Super. App. 1993); York, Chambers v. New 764 N.Y.S.2d City 708 (N.Y. Div. Poole, Martin 2003); v. 336 A.2d 363 (Pa. Ct. 1975); McGill Super. Co., v. Southwark 828 A.2d 430 Realty (Pa. Cmmw. Ct. State 2003); Bacote, v. Morrison, S.E.2d 161 Horton (S.C. 1998); v. S.E.2d 629 Sizemore, (Va. 1994); Christian v. 407 S.E.2d 715 (W. Va. see 1991); also 50 fudgment (“Although party § C.J.S. whom a default against is entered judgment had an certainly most courts have litigate, concluded that an oppor- should not tunity be the same litigate effect as actual given unless the litigation, to some application subse- estoppel was forseeable when the quent proceeding default was entered.”); Note, Collateral Abolition, The Case Estoppel fudgments: Default 70 Colum. L. Rev. 522 (1970).1 Some courts have carved out limited exceptions rule, “where the general whom collateral is party аgainst estoppel to be invoked has sought action or appeared prior proceed- has, action, deliberate ing refused to defend or litigate 1 As indicated there including above, are some states, California and Tennessee, that adhere to a different majority rule. The cites the decisions of e.g., these states. minority See, (Tenn. 1943). Gottlieb, Lawhorn v. 168 S.W.2d 790 The two Iowa cases cited supra; Wellford, majority distinguishable, are (Iowa 1959), however. 94 N.W.2d Lynch Lynch, which stated that collateral not available in default turned cases, estoppel usually upon judicata of res rather than collateral and the court refused to application estoppel, apply doctrine of collateral ‍​‌​‌‌‌​​​​‌‌​‌‌‌​‌‌‌‌​‌‌‌‌​‌​​​​​​‌​‌‌​‌‌​‌‌​​‌​‍(Iowa 1911), Matson v. 132 N.W. Poncin, did not involve estoppel. judgment a default and the issue was whether the finding court suit had made a previous on the sought issue tо be rulings These Iowa do not from particular estopped. clearly depart general rule that a default carries no collateral effect.

196 of the that is the preclusion request.” or subject allegation charge accord Div. 2005); Treglia 651 (N.Y. 800 N.Y.S.2d App. In re Abady, can, ex MacDonald, 1999) (“We N.E.2d 249 (Mass. 717 v. utilize so in which a circumstances litigant envision ample, be de but nonetheless court procedures, our system pretrial reason, and rationale behind that the principle faulted for some Gober, F.2d re 100 would (citing collateral apply.”) estoppel sanc issued as discovery 1996) (default judgments 1195 Cir. (5th seealsoIn Bush, Cir. 1995) (fraud)); 62 F.3d 1319 (11th In re tions); Bursack, F.3d 51 In re 1997); Cir. (3d 133 F.3d 210 re Docteroff, Kramer, 591 N.Y.S.2d Telecom v. Int’l 800 1995); Corp. Cir. (6th here.2 have no such circumstances We 1992). Ct. (N.Y. Super. Here, in its 2006 order ruled July the trial court correctly not, not, resolve and could “was the default judgment that the issue The concludes of marital status.” majority questions of for declaration because: (1) was “actually litigated” that the assertion the bald and included disingenuous paternity the time of the other ... at not married to each “were birth”; full fair had a opportunity conception he was after the issue of the to be heard on suit, avail himself of the and chose not to served with paternity does little more than restate This recitation of facts opportunity. albeit one in which a default factors judgment, ordinary creating notice. The doctrine of received actual the defendant under to such judgments normally inapplicable estoppel Instead, is akin rule. holding position majority’s general California, of the Ninth Circuit Court as described by adopted by Cantrell, 1119, 1124 Cir. (9th 2002): 329 F.3d in In re Appeals was secured default does not by mere fact that “judgment does, law rale.” California of special warrant howеver, application The first on this generalprinciple. two limitations

place “has been if the defendant only collateralestoppelapplies is that actual knowledge with summonsor has served personally therefore, only this Collateral litigation.” estoppel, existenceof of collateral one has the doctrine Although our court of estoppel appeals applied 861 S.W.2d involving judgment, case a default Reyes Jackson, weight or matters (1993), without it did so authority depth analysis judgment to a of collateral above command. The by addressed estoppel application majority in this case. lightly, either the court of not decreed so should be appeals to a default applies to the extent that the defendant has actual notice of the and a “full and proceedings fair litigate.” Heiser, citations (Intеrnal But see omitted.)3 Walter W. California’s Doctrine, Collateral Confusing Estoppel (Issue 35 San L. Preclusion) Diego

Rev. 556 (1998) that if the California (suggesting Supreme Court adheres to the really four-factor test of the second Restatement it “should Judgments, those decisions disapprove that have extended collateral to default I do not judgments”). agree that this court should adopt without minority position, especially more as to its or analysis to the facts desirability particular applicability of this case.4 The majority relies on the opinion fact that repeatedly

had a “full and fair be to heard on the opportunity” existence or of his I validity marriage. with this disagree compliance satisfies the requirement of “actually litigated” prong under Arkansas law. The estoppel of a “full and fair requirement to opportunity” a litigate as due “apparently developed process around the time the safeguard was mutuality requirement dropped Shore, in Parklane Falk, Co. v. 439 U.S. 322 Hoisery Falk v. (1979).” 88 B.R. 962 n.5 D. (Bankr. Minn. The 1988). requirement has mutuality been eliminated in estoppel most jurisdictions, Id.; Willis, Arkansas. Moore, see also including H. supra; Mary Arkansas’ Position Collateral Regarding and the Estoppel Defensive Doctrine, 47 Ark. L. Rev. 701 Mutuality to the first Strangers decree assert collateral as as the estoppel long person against whom it is asserted had a “full and fair to opportunity litigate.” This is due necessary concerns. See Parklane satisfy process However, Hoisery, supra. does not obviate the requirement of collateral “actually litigated” in prong Arkansas. See estoppel Willis, supra. Falk, As noted the court in B.R. at supra, “[t]he demise of the doctrine and the of the full mutuality development and fair have lead opportunity to some litigatе concept [sic] 3 The second factor that California finding is that there be an on the requires express at issue. point among jurisdictions Even view, it does not apply minority appear jurisdiction has held that a judgment, where the lack direcdy custody paternity a valid is indicated, can litigating from preclude subsequendy under the collateral doctrine. the elements with necessary successfully

confusion respect The court as follows: assert collateral explained estoppel.” elementsbasedon the Restatement courts use the traditional Some to be must be the (1) The issue sought precluded Judgments: (2) That issue must litigation; same as that involved prior determined a (3) It must have been actuallylitigated; have been have (4) and final The determination must valid judgment; courts, however, to the Other judgment. apply been essential (1) differentelements: The issuewas identical tо one somewhat merits; There was a final on the (2) a adjudication; prior or in with a party The (3) estopped party privity party a full and given adjudication; estoppedparty prior issue. fair to be heard on adjudicated opportunity Falk, B.R. at 962 (citations omitted).5 Instead, not, until the latter view.

We have today, adopted ele- adhered to the traditional Restatement we have previously ments, must have been liti- that the matter “actually including Ventures, After the demise of See mutuality, gated.” Bradley supra. the bare mini- the full and fair to litigate represents of due concerns. I mum that must be afforded light process test in this would not from our historical litigated” “actually depart in the of 27 (Second) As noted Restatement Judgments regard. § difficult the cmt. e when (1982), regarding approaching questions . considerations. . “policy weigh “actually litigated” requirement, and it is in the interest of in favor of strongly nonpreclusion, such a result to obtain and uniformly,” predictability simplicity interests are not fostered a These “case-by-case” approach the favored by majority. also relies the of the

The validity majority upon presumption the a and states that “failed to overcome of second marriage between of the validity marriage Davelynn presumption The concludes that the ad- Wendell.” “only argument majority he and vanced is that the second is void because marriage by Jason married, which he is were still an Davelynn validly argument above, I from As set out asserting.” disagree collaterally estopped these facts. the doctrine of collateral is on applicable addition, of a second of legal validity presumption 5 Lane, (discussed supra view the law of Montana. See majority). The latter is

199 that, a be overcome with which marriage just presumption, may Palmer, 178, v. 219 Ark. 240 875 Watson S.W.2d positive proof. one, is a rebuttable be over (The (1951) “presumption come with sufficient . . and must when give way reality proof. facts are opposing presumption presented.” (quoting Gray 152, 133 Ark held that the 199 S.W.2d 874 We have (1939)). Gray, can be over second validity presumption marriage come with to the first ceremonial proof parties marriage Cole, 824, See, never obtained a divorce. Colev. 249 Ark. e.g., there S.W.2d 213 is not as where (1971). presumption strong not been a time the two has considerable between lapse Bruno, 759, Bruno v. 221 Ark. S.W.2d marriages, Here, it from the record that and Wendell were Davelynn appears married two after from years Davelynn’s approximately separation and the trial court dismissed divorce in its Jason, Jason’s order, even it held that it was “clear that the July though did in a ceremony.” participate mattеr how claims to No or irreverently lightly Davelynn union, have entered the the facts show that she procured, license; minister; of: a (2) (3) participated procurement dress; a “creme-colored” and thereafter marched down the aisle in front of and friends and said “I do.” In this is family my judgment, meet the test for under Arkansas law sufficient to “solemnization” and to overcome the of the second presumed validity marriage. it The fact that the minister did not the license or return is not sign and the trial erred in so fatal marriage, judge Roberts, See 57 S.W.3d 727 (2001).6 holding. Fryar v. Because the in this instance could not potential adoptive parents married, I have been would reverse trial court’s validly grant Bruno, and remand for further adoption petition proceedings. 221 Ark. at at 343 to a (ceremonial S.W.2d been never obtained who has married who previously person noted, the trial a divorce is As the court of void). appeals judge’s decision was based the erroneous conclusion that upon were never married. validly together eight wife lived as husband and for over Additionally, Davelynn Wallis, after their ceremonial and birth of their son. Allen v. years (1983), 650 S.W.2d this court stated that there is cohabitation “[w]here strong arises which increases with the matrimonial, a presumption apparently during together lived as where passage time, wife, which the husband especially legitimacy of a child is concerned.” The doctrine of collateral should not be expanded,

and the of a second presumption marriage given effect, conclusive in order to resolve a case in which the Arkansas side, law is on one and the governing marriage perceived equities are on the other. I dissent. Accordingly, respectfully

Brown, this dissent. J., joins A. BRYANT and Carol Sue as Trustees of the Bryant, Bryant James Trust, ‍​‌​‌‌‌​​​​‌‌​‌‌‌​‌‌‌‌​‌‌‌‌​‌​​​​​​‌​‌‌​‌‌​‌‌​​‌​‍HENDRIX, Revocable P. Family Bryant James J.W. Treadwell, Mark and Shawn Treadwell 08-828 289 S.W.3d 402 Court of Arkansas

Supreme 11, 2008 delivered December Opinion

Case Details

Case Name: Powell v. Lane

Court Name: Supreme Court of Arkansas

Date Published: Dec 11, 2008

Citation: 289 S.W.3d 440

Docket Number: 08-282

Court Abbreviation: Ark.