Corey Markel Alexander v. Billie Murray

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION IV

COREY MARKEL ALEXANDER

APPELLANT

V.

BILLIE MURRAY

APPELLEE

CA 05-132

AUGUST 31, 2005

APPEAL FROM THE PULASKI

COUNTY CIRCUIT COURT,

TWELFTH DIVISION,

[NO. DR 03-2724]

HONORABLE ALICE SPRINKLE

GRAY, JUDGE

REVERSED AND REMANDED

John B. Robbins, Judge

This is a one-brief appeal filed by appellant Corey Markel Alexander. Appellant filed a notice of appeal on November 5, 2004, seeking review of his deemed-denied motion for a new trial and motion to set aside a default judgment filed on September 7, 2004. Appellant filed a subsequent notice of appeal on November 8, 2004, seeking review of the trial court's order of paternity and awarding child support entered on August 26, 2004, the denial of his motion for a new trial and motion to set aside default judgment filed on September 7, 2004, and supplemental order of withholding filed on September 15, 2004. Appellant argues in his appellate brief that the trial court abused its discretion by not granting his motion for either a new trial pursuant to Ark. R. Civ. P. 59 or for relief via setting aside a default judgment pursuant to Ark. R. Civ. P. 55.

The facts are as follows. Appellee Billie Murray filed a petition to establish paternity and set child support in May 2003. The petition was filed by her attorney, Gail Anderson. The petition claimed that appellant fathered appellee's son, who was born in December 2001.

Appellee sought to require appellant to provide health and dental insurance and partial payment of child-care expenses. Appellee also requested that the trial court order that the child's birth certificate be corrected. Appellant filed a timely answer to the petition in June 2003 by his attorney, Tonya Alexander. The answer admitted that appellant engaged in sexual relations with appellee, requested paternity testing to determine if he was the father, and admitted that if testing proved that he was the father, then he should be ordered to pay child support in accordance with Arkansas law. Appellant denied all other allegations in the petition.

On March 3, 2004, appellee filed a Notice of Hearing stating that notice was given that she would present her case for paternity and child support on June 3, 2004, at 2:00 p.m. in the Twelfth Division of Pulaski County Circuit Court. The certificate of service stated that all parties of record were served by mail on February 24, 2004. On June 3, appellant and his counsel did not appear for the hearing.

Appellee's counsel stated to the court that she had spoken to appellant's counsel on June 2, whereupon she was informed that appellant's counsel would not be able to make it to court on June 3 and that appellant just started a new job, which was apparently why he was not in court. The trial court swore in appellee, and she testified that she and appellant had sexual intercourse during the time of conception and that she wanted appellant to pay child support, dating back to the petition, and to maintain health and dental insurance as well as pay one-half of expenses not covered by insurance.

At the conclusion of appellee's testimony, her counsel stated to the trial court that during her and opposing counsel's conversation on June 2, counsel verbally admitted paternity on behalf of her client. Appellee's counsel stated that she had left a message for opposing counsel to prepare an affidavit acknowledging paternity, which she expected to receive in a few days and which she asked to incorporate into the order. The trial judge said, "That's fine." Appellee's counsel also recited appellant's income information that she said was provided her by opposing counsel. Appellee's counsel told the trial court that appellant was working at the Arkansas Department of Correction and that his pay stub indicated a bring-home pay of $450 per week, which translated into $85 per week in child support to which both parties had agreed. Appellee's counsel requested that the trial court enter an order for one-year's worth of arrearages. The trial court announced that it would "go back two years" starting with June 2002, resulting in an arrearage judgment for $8,840. Appellee's counsel stated that appellant had asked for visitation through his attorney, to which appellee did not object. The judge asked appellee's counsel to prepare an order within ten days.

On June 15, the trial court conducted a telephone conference with appellant's counsel to determine why she and her client did not appear for the June 3 hearing. Counsel explained that she thought the case was settled, given that counsel had engaged in many discussions over several months. Counsel said that, "we had dropped our objection to a paternity action, and it was just a matter of determining child support." Counsel stated that she was expecting an agreed order, and that though she had received a notice of hearing from appellee, she had not been notified by the trial court or case coordinator that a hearing was set, as was her experience in the courts of eastern Arkansas. The trial judge expressed extreme displeasure with counsel, stating her intent to send the matter to the Committee on Professional Conduct as opposed to having counsel pay a $250 fine. Despite that statement, on July 1, the trial judge filed an order commanding appellant's counsel to pay $250 toward appellee's attorney fees by July 16, 2004.

On August 26, 2004, the trial court entered a judgment of paternity and order of child support. The order recited that appellee and her counsel were present for the hearing but that appellant and his counsel were not, and it noted that the court considered argument of counsel and other evidence. The order found that appellant was the father of the minor child, that the mother was awarded custody, that appellant's take home pay was $462 bi-weekly resulting in a weekly support duty of $83, that appellant owed $8,840 in past-due child support; that appellee would continue to provide health and dental insurance until appellant was eligible to provide it; that the parties would divide evenly any healthcare costs not covered by insurance; that the Bureau of Vital Statistics was ordered to correct the birth certificate; and that appellant was entitled to reasonable visitation privileges.

Appellant timely filed the "Motion for New Trial, Motion to Set Aside Default Judgment" on September 7, 2004. The trial court did not act upon the motion, rendering it deemed denied thirty days later. Two notices of appeal were filed. Appellant contends that the trial court erred in not granting a new trial or in not setting aside a default judgment because irregularities prevented appellant's receipt of a fair trial and consequent entry of a valid judgment.

We first determine whether we have appellate jurisdiction. Farm Bureau Mut. Ins. Co. v. Running M Farms, Inc., 348 Ark. 313, 72 S.W.3d 502 (2002); Haase v. Starnes, 337 Ark. 193, 987 S.W.2d 704 (1999). The parties to an action may not confer subject-matter jurisdiction on this court. Vanderpool v. Fidelity Cas. Ins. Co., 327 Ark. 407, 939 S.W.2d 280 (1997).

We hold that this appeal is viable under both notices of appeal. The November 5, 2004, notice of appeal is timely from the "deemed-denied" date falling thirty days after filing of the motion on September 7, 2004. Likewise, the November 8, 2004, notice of appeal reiterated the appeal from the denial of the motion seeking a new trial or to set aside a default judgment. This notice is also timely because it was filed within thirty days of the deemed-denied date. Therefore, we have jurisdiction to hear this appeal.

We dispose of the appeal from what appellant considers to be a default judgment. The standard by which we review the granting of a default judgment and the denial of a motion to set aside the default judgment is whether the trial court abused its discretion. Southeast Foods, Inc. v. Keener, 335 Ark. 209, 979 S.W.2d 885 (1998); Arnold & Arnold v. Williams, 315 Ark. 632, 870 S.W.2d 365 (1994). Default judgments are not favorites of the law and should be avoided when possible. B & F Engineering, Inc. v. Cotroneo, 309 Ark. 175, 830 S.W.2d 835 (1992). Because of its harsh and drastic nature, which can result in the deprivation of substantial rights, a default judgment should only be granted when strictly authorized and when the party affected should clearly know he is subject to default if he does not act in a required manner. Southeast Foods, Inc. v. Keener, supra; Meeks v. Stevens, 301 Ark. 464, 785 S.W.2d 18 (1990).

Appellant contends that the trial court's discretion was abused because an order establishing paternity and setting child support was entered without his or his attorney's presence at a hearing. Appellant contends that this entitles him to the setting aside of a default judgment because he failed to defend against the petition on the day of the hearing. Appellant is mistaken that this was a default judgment.

In McCourt Mfg. Co. v. Credit Bureau of Ft. Smith, 319 Ark. 23, 888 S.W.2d 650 (1994), our supreme court dismissed an appeal on behalf of McCourt where it or its representative failed to show at trial, despite McCourt having answered the complaint and otherwise appeared in the matter by requesting a continuance. With McCourt's answer and other matters before it, the municipal court made findings and reduced Credit Bureau's claim to judgment. Such judgment was entered upon the merits, and as a consequence, the supreme court held that McCourt was not entitled to set it aside as a default judgment under Ark. R. Civ. P. 55(c), citing to M. v. Clark, 316 Ark. 439, 872 S.W.2d 410 (1994). The supreme court held that McCourt's remedy, if any, would have been under Ark. R. Civ. P. 60(c). However, McCourt did not pursue that remedy, presumably because none of the grounds listed in Rule 60(c) were present, and as a consequence, the appeal was dismissed.

In the present appeal, appellant filed a timely answer to the petition, which is a pleading. In addition, the trial court considered testimony at the hearing on the petition, such that the judgment entered was not a default judgment, but was one decided on the merits. See Diebold v. Myers General Agency, Inc., 292 Ark. 456, 731 S.W.2d 183 (1987); Fazeli v. Barnes, 47 Ark. App. 99, 885 S.W.2d 908 (1994); Mikkelson v. Willis, 38 Ark. App. 33, 826 S.W.2d 830 (1992).

What remains is the consideration of appellant's argument that the trial court abused its discretion in not granting a new trial because of irregularities preventing a fair trial. In the motion for new trial, appellant pointed out that the record was devoid of an acknowledgment of paternity or an affidavit of financial means; appellee's counsel had misrepresented the settlement negotiations and failed to notify appellant's counsel that a settlement hearing required her presence; and that the issue of arrearages was not settled but was nonetheless litigated at the hearing. Appellant's brief adds that the hearing is void of any testimony regarding appellant's income, but instead is only provided by statements of appellee's counsel, which are not evidence. Appellant further notes the plain language of Section IV of the supreme court's per curiam order, In re Administrative Order No. 10: Arkansas Child Support Guidelines, 331 Ark. 581 (1997), which mandates that Affidavits of Financial Means must be completed and exchanged prior to a hearing to establish child support. Regarding the judgment of paternity, appellant cites to Ark. Code Ann. § 9-10-108(a) (Repl. 2002), which mandates that "upon motion of either party in a paternity action, the trial court shall order that the putative father, mother, and child submit to scientific testing for paternity[.]" (Emphasis added.) We agree that appellant was entitled to a new trial.

A new trial is defined as a reexamination in the same court of an issue of fact after a verdict by a jury or a decision by the court. Midwest Lime Co. v. Independence County Chancery Court, 261 Ark. 695, 551 S.W.2d 537 (1977). Rule 59(a) permits relief to be granted in cases tried without a jury, whether the claims be legal or equitable. See Reporter's Notes to Rule 59. See also Midwest Lime Co., supra (holding that from a judgment of a trial court considering a "chancery" case, a new trial was more often named a "bill of review" or "petition for rehearing," which performed generally the same function as a motion for new trial in law). The trial court may grant a new trial when a miscarriage of justice has occurred. See Carlew v. Wright, 356 Ark. 208, 148 S.W.3d 237 (2004).

A decision on whether to grant or deny a motion for new trial lies within the sound discretion of the trial judge. Dodson v. Allstate Ins. Co., 345 Ark. 430, 47 S.W.3d 866 (2001). We will not reverse a trial judge's order denying a new trial unless there is a manifest abuse of discretion, that is, discretion exercised thoughtlessly and without due consideration. Montgomery Ward & Co. v. Anderson, 334 Ark. 561, 976 S.W.2d 382 (1998). We believe such an abuse occurred in this instance.

The absence of any evidence of income other than statements of opposing counsel demonstrate that this hearing was fraught with irregularities necessitating a new trial. See, e.g., Flentje v. First Nat'l Bank of Wynne, 340 Ark. 563, 11 S.W.3d 531 (2000) (holding that claims by counsel unsupported by evidence are not evidence). Moreover, the amount of income attributed to appellant in the order is substantially different than that proposed by appellee's counsel and has no basis in the evidence presented at the hearing.1 We are likewise concerned with the finding of paternity absent paternity testing, despite appellee's testimony that she engaged in sexual relations with appellant during the relevant time period, and despite appellant's attorney's comment in the telephone conference that appellant had "dropped his objection" to paternity. We are mindful of the fact that the trial court was displeased with appellant's counsel for her failure to be present at the hearing and punished counsel accordingly. Nonetheless, our inquiry is focused upon the rights of appellant. See Jones-Blair Co. v. Hammett, 326 Ark. 74, 930 S.W.2d 335 (1996). The judgment in this case was entered absent necessary evidence to support the findings made, regardless of appellant's failure to be present. We hold that the trial court abused its discretion by not granting a motion for new trial.

Reversed and remanded.

Pittman, C.J., and Vaught, J., agree.

1 The trial court further erred in calculating child support, assuming that the bi-weekly income figure set forth in the order was correct. The weekly child support set forth in the order is markedly higher than what the family support chart would dictate.