State Office of Child Support Enforcement v. Willis
59 S.W.3d 438
Ark.
2001
Check Treatment

*1 of CHILD SUPPORT STATE of Arkansas OFFICE WILLIS ENFORCEMENT Christopher 01-238 Court of Arkansas Supreme delivered November

Opinion *3 for appellant. Mitchell, L. Greg Melinda R. Gilbert and Robert T by: Firm, Gilbert Law James, appellee. R .The This involves L. Justice. OBERT BROWN, is whether sole chancery question presented court erred in complaint appellant, dismissing Enforce- is the State of Arkansas Office believe that the court did err in dis- ment (OCSE). chancery and we reverse the dismissal order and missing complaint, the case for further associated with the remand pater- proceedings nity complaint. 13, 1982, On married. February Merigayle Triplett 23, 1988, had a

On November On daughter, Megan. 26, 1992, divorced. divorce February Tripletts resulting decree entered the court (1992 decree), parties’ agreement regarding custody Megan. approved Spe- the decree stated: cifically, child, (1) The have one Elizabeth parties hereby Triplett, 23, 1988, and the

born November Plaintiff [Merigayle Triplett] shallhave sole of said child with Defendant custody Triplett] [John reasonable and seasonablevisitation having rights. $60.00 The Defendant shall child for the said child of pay week. per doctor,

The Defendant shallbe for all ordinary responsible hospital, dental and bills for the child. prescription drug *4 14, 1993, On and married for a February Merigayle John second time. At some the late summer of point during father, told he that not be and Merigayle might Megan’s John named Willis as Merigayle appellee Christopher Megan’s putative father. In of called Willis and confronted September John later, him about the 1988 affair. Two called Willis days Merigayle and told him that he was father. Megan’s

When Willis first knew of his to biological relationship Megan is a matter of factual in this case. to Willis’s dispute According affidavit, Willis and had a romantic Merigayle relationship lasted from March 1988 to of 1988. saw January Willis Although at various social and restaurants after March Merigayle engagements 1988, he asserts that the two did not until speak again September 1997. Willis claims that it was not until of 1997 that he September first knew of a link with possible biological Megan. this in her affidavit. avers that she She told

Merigayle disputes that she the child was his as Willis as six thought early May time, months after was born. asserts that at She that Willis matters, called her to discuss and he heard a child personal crying He asked about the told him background. baby, Merigayle of her indicated that the child was his. timing pregnancy to Willis was shocked hear to this hur- According Merigayle, off the adds that she and Willis riedly got telephone. Merigayle discussed the situation in the winter months of 1992. Accord- again to the next time she with Willis ing Merigayle, spoke concerning his father was in of 1997. being Megan’s biological September 14, 1997,

On March filed her for divorce Merigayle complaint divorce, from In his answer to for Merigayle’s petition John. John father, asserted that he was not and he Megan’s biological requested DNA to establish his to Mer- testing did not biological relationship Megan. to this The igayle object his testing. chancery granted and the excluded as father. request, testing Megan’s biological John this in a divorce decree entered Following testing, January 1998 (1998 court found decree), father. The decree Megan’s did not order biological to child No reference pay was made in the support Megan. 1992 decree. did not the 1998 Merigayle decree, decree. After the 1998 OCSE paid support Merigayle. 4, 1998, On averred in an affidavit to Merigayle OCSE June 22, 1998, that Willis was father. On Megan’s biological OCSE June Willis, ordered to submit to Megan, genetic testing to determine 22, 1998, Willis did not On challenge testing. July returned, the test results were which showed that there was a 99.98% Willis was probability father. Megan’s biological 12, 1998, results,

On after August test learning OCSE filed a Willis to its paternity complaint against pursuant statutory Ark. See Code Ann. authority. 9-10-104(a)(4) 1998); (Repl. § Code Ann. 9-12-210(d)(2) 1998). Willis’s amended (Repl. § answer to OCSE’s he denied that he was father petition, Megan’s and raised affirmative defenses to the petition, including and collateral Both affirmative defenses were based on the estoppel. *5 1992 decree. Willis also named as a defendant to the John and cross-claimed and for fraud complaint against John and the tort of He relief and outrage. sought injunctive money and Willis concluded with damages against Merigayle multi- John. relief, a that the ple prayers including prayer paternity complaint him be dismissed. against

11 21, 1999, the court dismissed OCSE’s On chancery April dismissal, and Willis. OCSE the against appealed petition the to Ark. R. Civ. P. 54(b), this court dismissed appeal pursuant did tort the court’s order of Willis’s because chancery dispose and Child claims See against Merigayle Support John. Office of 378, Willis, 341 Ark. 17 S.W.3d 85 (2000). v. Enforcement the first Willis After dismissal of agreed voluntarily appeal, the nonsuit cross-claims against Merigayle pursuant 2000, 11, the court R. Civ. P. On November 41(a).1 Ark. chancery this nonsuit and found as follows: entered an order reflecting That the of a 1992 Divorce Decree establishing based upon entry child, as the father of the Elizabeth Triplett legal 23, 1998, born November the Court finds hereby Triplett, [sic] Thus, that of the child was established in 1992. action for is pending paternity, improper.2 The court dismissed OCSE’s chancery paternity complaint.

OCSE’s sole on is court point chancery erred in as on dismissing paternity complaint improper OCSE’s had been established under the decree. 1992 grounds we refer to the our review. review Initially, precepts govern record, cases de novo on the but we do not reverse a chancery of fact unless it court is erroneous. finding by chancery clearly 636, Moon v. 999 S.W.2d 678 (1999); Marquez, Office of 51, Ark. 336 Eagle, Enforcement A of fact court is erroneous (1999). finding clearly when, it, there is evidence to although reviewing entire evidence is left with a definite and firm conviction Fisher, 58, that a mistake has been committed. Huffman against This court has held that a cannot nonsuit certain claims a defendant plaintiff 54(b). Light in order to circumvent Rule See Haile v.Arkansas Power & Co., (1995); (1973). S.W.2d 122 v. Franz 500 S.W.2d The Foods, Ratzlaff underlying against reason is that the all claims a defendant principle requires arising brought, nonsuiting out common facts to be certain claims would lead to splitting nonsuiting a cause of action. We have also held that claims piecemeal appeals against 54(b) joining defendants to avoid a Rule dismissal is because separate permissible, judicata. Driggers under defendants is not of res See v. Locke, separate mandatory Ark. 63, Here, Willis’s nonsuited claims are and it cross-claims, 13(f). 54(b) brought. Accordingly, is not mandated that be See Ark. R. Civ. P. Rule they not circumvented. Megan’s The date of birth misstated in the Her November 2000 order. date of birth was November 1988. *6 987 S.W.2d 269 RAD-Razorback Ltd. v. (1999); B.G. Partnership Co., 550, 289 Ark. 713 S.W.2d 462 It is this court’s Coney if to reverse its own review of record is in marked duty disagree ment with court’s v. chancery findings. Dopp SugarloafMining Co., 18, Dunn, v. (1986) S.W.2d Rose (citing 679 S.W.2d 180 WaltBennettFordv. Pulaski (1984); County Dist., Sch. Special (1981)). reversal, of its OCSE support argument emphasizes Nor, decree did not address the issue of it contends, Moreover, was an issue in that divorce. OCSE claims when the remarried in this had the effect of the 1992 decree as it related to OCSE cites annulling Megan. in Oliphant Oliphant, (1928), Furthermore, maintains, of this OCSE when proposition. blood in 1997 to determine whether he requested was testing father, did not to that or raise res Megan’s Merigayle object judicata as a bar to the It was not until the testing. paternity complaint filed in 1998 Willis that he raised the against affirmative defenses of this, res and collateral Because of judicata OCSE contends estoppel. that res based on the 1992 decree judicata does not bar the paternity action. The further contends that agency because did not raise this affirmative defense as of part paternity testing decree, which led to the 1998 she waived that defense and collateral This, OCSE, as well. resulted in the 1998 estoppel according decree, which was inconsistent with the 1992 decree on the issues and his obligation support Megan. Only John’s control, later divorce decree should OCSE that later urges, only be should effect. OCSE concludes that it given judicata the 1998 decree that left with no father and no legal sup the door to a action. port, opened Willis relied on the responds really of collateral not res in estoppel dismissing OCSE’s and that collateral paternity complaint estoppel applies case, this case. Collateral he governs estoppel argues, sup- reliance on the 1992 decree rather than ports OCSE’s theory inconsistent decrees. He maintains that Oliphant Oliphant, supra, case, does not control this because that case dealt awith change circumstances caused a second and the effect on child marriage decree, he that the 1992 custody. Finally, as it related to urges could not be modified after three under paternity, Ann. Ark. Code years 9-10-115(f) 1998). (Repl. § case Willis that the does with Oliphant

We agree *7 two In even issue. though marriages control Oliphant, paternity involved, the issue was whether a rede and two divorces were also The that a father termination of child custody necessary. urged held, however, This court that the second review was unnecessary. a of circumstances which warranted constituted change marriage the issue. The redetermination of changed principle custody circumstances, however, is not a relevant factor in matters. the court’s order whether the It is not clear from the doctrine of res or collateral in court relied on judicata estoppel the the 1992 decree rendered action deciding we will discuss both doctrines in our Accordingly, “improper.” in even Willis relies on collateral his brief analysis, though estoppel the of whether on We turn first to appeal. question judicata action. bars of a OCSE’s Res prevents judicata relitigation in a final suit when: the first suit resulted (1) judgment subsequent merits; on the first suit was based (2) (3) proper jurisdiction; faith; contested in both suits involve (4) first suit was fully good action; the same claim or cause of both suits involve the (5) same or their Child v. parties privies. Support Officeof Enforcement Williams, 347, Ark. 995 S.W.2d 338 Miller (1999) (citing Inc., 88, v. Ark. 971 S.W.2d 781 (1998); County Opportunities, Comm’n, Hamilton v. Pollution & Arkansas Control 333 Ark. Ecology 370, 969 S.W.2d 653 Res bars not (1998)). judicata only relitiga tion of claims that were in the first suit but also actually litigated Williams, those have been that could Wellsv. Arkan litigated. supra; Comm’n, sas Pub. Serv. 616 S.W.2d (1981). Where a case based on the same as the events matter of a subject lawsuit, res will even if the lawsuit previous judicata apply subsequent Williams, raises new issues seeks additional remedies. legal supra; The Stafford, (1988). Swofford of the doctrine is to issues on policy prevent parties’ relitigating have been a fair trial. McCormacv. McCor they already given mac, 799 S.W.2d 806 (1990). We conclude of res based on the principle judicata could the outcome of this case for one govern reason: the 1992 divorce action and the 1998 simple action do not involve same or their While privies. OCSE, be in with due to arguably, might privity was not in with either Willis or payments, privity Merigayle. John the interests of Willis and were not Certainly, aligned Indeed, 1992 divorce was unaware that he was not proceeding. father. Nor can Willis claim that his biological successfully interests and were the same in the 1992 divorce. Willis Merigayle’s was not a and did not party litigation participate any way. circumstances, Under similar our court of has held that appeals there was no substantial identification between the mother and an father who did not in the divorce alleged biological participate Whiteaker, See Scallionv. litigation. App. aware, course, areWe that this court has applied of res based on a purposes deciding paternity divorce decree in two recent cases. previous See fairly Officeof Williams, McCormac, McCormacv. supra; supra. Enforcement Williams, we held that a former husband’s to a divorce agreement decree which stated that children were born of the and his marriage *8 an order on child signing agreed foreclosed a later action to establish he that was not the father for biological of abat purposes McCormac, child we ing support. held that the mother aof child was barred from her former contesting husband’s in a paternity over visitation when subsequent the mother had dispute previously in the settlement agreed that one child property had agreement Thus, been born of the it is clear that marriage. does bar judicata issue between the relitigation former husband and wife when the have in the divorce action that a agreed child was born of the We note in this marriage. did regard Merigayle not the res effect argue of the 1992 decree in the 1998 and, indeed, divorce did proceedings not to object request John’s for blood to establish testing Nor did she Megan’s paternity. result, the 1998 decree. As a the 1998 leaves without a father. biological case, In the instant Willis was not a to the divorce party decree and was not in with a to the privity divorce decree. party hold that the 1992 decree does not bar a subsequent paternity action between OCSE and Willis under the of res judicata. The next is whether OCSE is question collaterally estopped from the bringing Willis. Willis complaint against relies on this doctrine of issue heavily preclusion contends vigorously was resolved in question the 1992 decree and cannot be raised a second time. OCSE’s retort is that the 1992, and, thus, never question in actually collateral litigated does estoppel pertain.

15 ele Collateral or issue four estoppel, preclusion, requires in a ments before a determination is conclusive subsequent pro as the issue to be must be same (1) ceeding: sought precluded that issue must have been that involved (2) prior litigation; have been determined a (3) issue must valid actually litigated; and final the determination must have been (4) judgment; essential to the Palmer v. Arkansas Council on Economic judgment. 461, Educ., 344 Ark. Fisher 311 Ark. (2001); Jones, 450, Lines, East TexasMotor (1993); S.W.2d Inc. v. Freight Freeman, 539, 289 Ark. 713 S.W.2d 456 (1986). Collateral be asserted a to the first estoppel may by stranger decree, or but the whom it is asserted must judgment party against have been a to the earlier action and must have had a full and party fair to issue that first opportunity litigate 47 Am. proceeding. 2d Arkansas Judgments Human Servs. (citing Dep’t §§ Jur. Dearman, It (1992)). App. apparent rule, that our court of has appeals this Court adopted though Ctr., FDIC, has not. In Coleman’sServ. Inc.v. App. S.W.2d 289 court said: (1996), appellate

Collateral is based estoppel upon policy limiting litigation one fair trial on an issue and is when the applicable only party whom the earlier against decision is being asserted had a full and fair opportunity litigate issue in question.

Coleman’s, at at S.W.2d App. Arkansas (citing *9 Dearman, Human Servs.v. We Dep’t with this state- supra). agree of ment our court of as do a by of appeals, majority jurisdictions, this of collateral hereby adopt estoppel. There are two reasons collateral not why does estoppel First, to the case at bar. this apply case does not the Dearman satisfy rule in that did not have the to opportunity fully fairly John the issue of his in the

litigate 1992 divorce paternity At proceeding. time, accounts, that all factual had no that inkling Megan John was not affidavit, his child. to her had dis Merigayle, according Thus, cussed this with Willis but not with had no reason John. John to contest the was his. presumption Megan the fourth element of collateral Secondly, that of estoppel, “actual is not met in this case. Unlike litigation,” judicata, acts to bar issues that could have been in merely the first litigated action, collateral actual in the first estoppel requires litigation Alderson, instance. v. 983 S.W.2d 899 (1999); Huffman 16 Wilson, Brown,

Crockett & P.A. v. S.W.2d See also v. 999 S.W.2d (1993). Swadley Krugler, App. Further, this court element in this cursorily applied Inc., Miller County Opportunities, and held that no issue was before the (1998), “actually litigated” court when on we could not determine that the lower appeal, court’s order was based on actual any proceedings. means,

To discern what we turn to “actually litigated” Black’sLaw That defines as “The Dictionary. dictionary “litigation” lawsuit; of on a a lawsuit itself.” Black’sLaw Dic process carrying ed. (7tb 1999). We tionary emphasize necessity trying the issue to be that the matter sought must be estopped by stating In the 1992 divorce litigated. neither nor actually proceeding, issue; in hence Merigayle put no Megan’s paternity adversary of evidence on this were made. The presentations point court’s of in the 1992 decree finding was not result of paternity time, At that had doubts that litigation. only Merigayle child, and she had not those doubts to imparted John’s John. We hold that the failure of to actually the issue of his litigate 1992 divorce paternity proceedings Willis’s of prevents collateral to the later application estoppel pater action. nity there is Willis’s

Finally, OCSE is foreclosed argument from the determination of modifying the 1992 decree paternity because the modification did occur not within three of the years decree as Ark. Code Ann. required by 9-10-115(f) 1998). (Repl. § little credence give argument because we do not what view occurred in the 1992 divorce either as an adjudication or voluntary as acknowledgment under the required Code. See Ark. Code Paternity Ann. 9-10-101 through §§ 1998). See also (Repl. Williams, Officeof Enforcement of the Code do supra (provisions Paternity apply determinations as a matter of under a arising divorce presumption It stands to decree). reason that without a prior adjudication same, or an there can be acknowledgment no modification of What occurred in 1998 with the pater OCSE, nity was not an complaint by accordingly, action modify *10 but an action to establish original See Bean v. Officeof Child 9 S.W.3d Support Erforcement, (2000). of who conclude that no

Because we adjudication we hold that 9-10- father is has biological transpired, Megan’s § that the case.3All that has occurred is is to instant 115(f) inapposite decree. as the father was eliminated biological result, father, no as a is without a currently Megan, that a modification of has Because we hold paternity being paid. matter, we need not address Willlis’s not occurred in this argument that action is time-barred. OCSE’s remanded.

Reversed and concur. Hannah,

Thornton JJ. J I am While Justice, concurring. compelled HANNAH, IM case, it must be noted this concur in the result that facts, set of and reliance on this case turns a unique opinion should take those facts into account. have before us a couple case, who married and divorced twice. In this we are also faced who, in the a with a chancellor second divorce of despite divorce decree that was born of the mar- out prior setting Megan allowed DNA and then riage, testing prior finding disprove There no declared was not father of Triplett Megan. and, therefore, from this divorce decree this issue was not Thus, to this court. when faced with its brought statutory obliga- benefits, tion of to secure locating proper party repayment the Office of Child Enforcement was faced with a court Support order that declared that the declared father presumed previously Therefore, was not the father. OCSE found no had been established as to and filed an action under Ark. Code Ann. to establish after the 9-10-104(4) 1998) (Repl. § court bastardized Megan. It is not view that this decision the door to my opens dispute divorce decree out that children born typical setting of the are the children of the husband and wife. See marriage Office Williams, 995 S.W.2d Enforcement I am concerned that under analysis majority and collateral create the estoppel may impression divorce decrees are not the have been orders binding they found to be. previously 3 The modification section of the Code has been amended three times in Paternity differing six time in which determinations can be to establish past years periods (five (three years); years);

modified. SeeAct 1091 of 1995 Act 1296 of 1997 Act 1736 of2001 (no limit). time *11 It is as well to in mind that absent the important keep there would have been no need to bastardizing Megan, establish had been set out in paternity. Paternity the 1992 decree. Therefore, case, in such a action OCSE would be of any by by way of assignment to OCSE. OCSE would not rights by Merigayle be allowed to because OCSE would stand challenge Megan’s paternity shoes as contractual her Merigayle’s of entitlement assignee 330 Ark. support. Sup. Ragland, Officeof Enforcem’t divorce, the 1992 decree of By Merigayle Further, was born of the acknowledged an Megan marriage. 17, 1993, affidavit dated swore under oath that Merigayle June was born of Megan marriage. statutes Nothing creating action to do with the purports away of presumption of a Freeman, child born legitimacy Ark. Hall v. during marriage. Further, 936 S.W.2d 761 (1997). has altered the nothing bar to to a divorce decree of challenging finding pater stated Williams, therein. nity It should be also noted that there supra. affidavit, the above noted false only but another affidavit yet the truth. 15, 1998, There is an stating affidavit dated wherein May declares Willis Merigayle is the father of has lied Megan. Merigayle in an affidavit in 1993. It is difficult to this court would imagine countenance into court after Merigayle under oath going affirming was the child of to assert she was not. This Triplett would be so of The Grable, simply grounds public policy. integrity the court would be Grable v. impugned thereby. 410, 821 S.W.2d 21 (1991). so, Because could not do OCSE under could Merigayle’s assignment not do so. As rights this court stated in Inc., Nat’l Ins. Roller, v.Denver Guaranty 128, 854 S.W.2d 312 Hernreich, Nat’l (1993), Bank v. (citing Pacific “It is (1966)). well settled that ” can receive ‘assignees no better than their right had.’ assignors Thus, while I must concur in the outcome on this set unique facts, I must concern that this express my decision not be read too broadly. in this concurrence.

THORNTON, J., joins