Jeffrey McLain v. State of Arkansas, Office of Child Support Enforcement

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION III

CA05-249

OCTOBER 26, 2005

JEFFREY MCLAIN AN APPEAL FROM THE GARLAND

APPELLANT COUNTY CIRCUIT COURT [E-2001-4-III]

V.

STATE OF ARKANSAS HONORABLE DAVID B. SWITZER,

OFFICE OF CHILD SUPPORT JUDGE

ENFORCEMENT

APPELLEE AFFIRMED

Olly Neal, Judge

Appellant Jeffrey McLain appeals from a decision of the Garland County Circuit Court that ordered him to pay a child-support arrearage of $7620 for a child born during the marriage but later determined not to be his. For reversal, appellant assigns three points of error. He alleges that (1) in accepting the DNA paternity test results, the trial court essentially set aside the paternity provisions of the divorce decree; (2) the extrinsic and intrinsic fraudulent conduct of the mother should prevent her from collecting the child-support judgment from him; and (3) the circumstances in this case mandate a reversal of the all-consuming presumption of paternity in cases involving children born during a marriage. Finding no error, we affirm the trial court.

Appellant and Cynthia McLain were married on October 3, 1992. On July 1, 1994, the District Court of Harris County, Texas entered a default decree of divorce in favor of Cynthia McLain. The decree ordered appellant to pay two hundred fifty dollars a month in child support for Breanna McLain, born on April 10, 1993. Although unclear in the record,appellant and his ex-wife subsequently moved to Arkansas.

In January 2001, the Office of Child Support Enforcement (OCSE) filed petitions to register and enforce the foreign support order in Garland County. The petition alleged that, as of November 24, 2000, appellant owed $7621.27 in arrears. In response, appellant requested the Garland County Circuit Court to set aside the provisions of the divorce decree that named him the father of Breanna and that ordered him to pay support. He requested the opportunity to obtain scientific testing for paternity pursuant to Ark. Code Ann. § 9-10-115(c)(1) (Repl. 2002). Appellant also denied that $7621.27 remained unpaid, asserting that he submitted to continuous withholdings of his child support obligation and that, if there was any arrearage, it would be less than $2000.

On April 29, 2004, the court entered an order requiring the parties to submit to DNA testing. On July 1, 2004, the court entered an order determining that the DNA test excluded appellant as the father. Therefore, the court abated appellant's obligation to pay support and reserved the issue of the arrearage for a future date, subject to the parties filing letter briefs. After reviewing the letter briefs filed by the parties, the trial court entered an order on November 10, 2004, in which it determined, among other things, that appellant owed the arrearage amount of $7620. Appellant timely filed his notice of appeal.

Our standard of review for an appeal from a child-support order is de novo on the record, and we will not reverse a finding of fact by the circuit court unless it is clearly erroneous. Ward v. Doss, ___ Ark. ___, ___ S.W.3d ___ (Mar. 24, 2005). A finding is clearly erroneous when, even though there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. Adametz v. Adametz, 85 Ark. App. 401, 155 S.W.3d 695 (2004). In reviewing a circuit court's findings, we give due deference to that court's superior position to determinethe credibility of the witnesses and the weight to be accorded to their testimony. Evans v. Tillery, ___ Ark. ___, ___ S.W.3d ___ (Mar. 3, 2005).

For his first point, appellant contends that, in accepting the DNA paternity test results, the trial court essentially set aside the paternity provisions of the divorce decree, and therefore, the payment of child support never "came due." In response, appellee asserts that the Garland County Circuit Court lacked subject-matter jurisdiction, and therefore, could not grant appellant any relief from the Texas judgment. Alternatively, appellee argues that, even if the court did have jurisdiction, res judicata prevented it from re-litigating the issue of paternity. We need not consider appellee's alternative res judicata argument because it did not file a cross-appeal and now seeks some relief on a ground other than what it requested in the lower court. See Boothe v. Boothe, 341 Ark. 381, 17 S.W.3d 464 (2000). Further, appellee made no objection below to appellant's ability to re-litigate the issue of paternity, and we do not consider arguments made for the first time on appeal. See Lovelace v. Office of Child Support Enforcement, 59 Ark. App. 235, 955 S.W.2d 915 (1997). Nevertheless, we now turn to appellee's subject-matter jurisdiction argument, as it can be raised at any time by the parties or sua sponte by our court. Dorothy v. Dorothy, ___ Ark. App. ___, ___ S.W.3d ___ (Dec. 1, 2004).

Subject-matter jurisdiction relates to the competence of a court to hear a matter, see id., and it is well settled that subject-matter jurisdiction may not be stipulated by the parties and "if lacking, cannot be induced simply because there is no objection." Parker v. Sebourn, 351 Ark. 453, 456, 95 S.W.3d 762, 765 (2003). Under Arkansas Code Annotated section 9-17-601 (Repl. 2002), a support order issued by a tribunal of another state may be registered in this state for enforcement. Furthermore, if all of the parties reside in this state and the child does not reside in the issuing state, a tribunal of the State of Arkansas has jurisdictionto enforce and to modify the issuing state's child-support order in a proceeding to register that order. Ark. Code Ann. § 9-17-613(a) (Repl. 2002). When jurisdiction is exercised pursuant to section 9-17-613(a), the procedural and substantive laws of this state apply. Ark. Code Ann. § 9-17-613(b). In the instant case, because all of the parties, including the child, had at the time of registration moved to Arkansas, Arkansas had jurisdiction to enforce and modify the Texas child-support order. Accordingly, the court acquired subject-matter jurisdiction to hear this matter.

Once a child-support payment falls due, it becomes vested and a debt due the payee. Chitwood v. Chitwood, ___ Ark. App. ___, ___ S.W.3d ___ (June 29, 2005). However, enforcement of child-support judgments are treated the same as enforcement of other judgments, and a child-support judgment is subject to the equitable defenses that apply to all other judgments. Id. If the obligor presents to the court or administrative authority a basis for laches or an equitable-estoppel defense, there may be circumstances under which the court or administrative authority will decline to permit enforcement of the child-support judgment. Id.

Moreover, under Arkansas substantive law, when a man has been adjudicated to be the father of a child without the benefit of scientific testing for paternity and as a result was ordered to pay child support, he is entitled to one paternity test "at any time during the period of time that he is required to pay support upon the filing of a motion challenging the adjudication or acknowledgment of paternity in a court of competent jurisdiction." Ark. Code Ann. § 9-10-115 (e)(1)(A) (Supp. 2005). The duty to pay child support and other legal obligations is not suspended while the motion is pending. Ark. Code Ann. § 9-10-115(e)(2).

It is undisputed that appellant was without the benefit of scientific testing when the default divorce decree was entered. The test results excluded appellant as the father, and thetrial court abated appellant's child-support obligation as a result. Appellant is correct that the court, in accepting the test results, essentially set aside the paternity provisions of the divorce decree; however, appellant is incorrect in asserting that, as a result of the set aside, the support obligation never "came due." Pursuant to Ark. Code Ann. § 9-10-115(f)(1), "If the test administered . . . excludes the adjudicated father . . . and the court so finds, the court shall set aside the previous finding or establishment of paternity and relieve him of any future obligation of support as of the date of the finding." (Emphasis added.)

Here, the Texas default-divorce decree adjudicated appellant as the father of Breanna McLain and ordered him to provide support. Appellant never appealed that finding and paid support until 2004 when the court abated his obligation due to the paternity test results. As the statute prescribes, this abatement relates to appellant's future obligation of support only. The Texas decree ordered support beginning July 15, 1994, and once those payments became due, they were vested and a debt due. Therefore, we hold that the trial court's finding that appellant owed an arrearage was not clearly erroneous, and we affirm on this point.

Appellant argues next that the extrinsic and intrinsic fraudulent conduct of Cynthia McLain should prevent her from collecting the arrearage. Appellant contends that, under Rule 60 of the Arkansas Rules of Civil Procedure, he was entitled to vacation of the arrearage judgment because Cynthia McLain perpetrated fraud by misrepresenting the biological father's identity. Appellant's reliance upon Rule 60 is misplaced because the divorce decree was a default judgment, to which Rule 60 does not apply. See Graves v. Stevison, 81 Ark. App. 137, 98 S.W.3d 848 (2003).1

Finally, it is well-settled in Arkansas that there is a legal presumption that a child born during a marriage is the legitimate child of the parties to that marriage. Hall v. Freeman, 327 Ark. 148, 936 S.W.2d 761 (1997); see also Kennedy v. State, 117 Ark. 113, 173 S.W. 842 (1915). This presumption is present even when the child born in wedlock is conceived before the marriage. See Kennedy, supra. The presumption must be adhered to for the protection of the rights of those who are attempted to be bastardized without any fault on their part, to preserve the peace of families, and to promote the interest of society. Id. This presumption, however, may nevertheless be rebutted and does not preclude a party from litigating the issue of paternity. See R.N. v. J.M., 347 Ark. 203, 61 S.W.3d 149 (2001). Appellant requests that we reverse this long-standing precedent established by our supreme court. However, as counsel is well aware, even if we were so inclined, we have no authority to overrule a decision of the supreme court. See Box v. State, 348 Ark. 116, 71 S.W.3d 552 (2003); Tolson v. Dunn, 48 Ark. App. 219, 893 S.W.2d 354 (1995).

Affirmed.

Pittman, C.J., and Bird, J., agree.

1 We note that appellant does not argue that the judgment should have been set aside pursuant to Rule 55 (c), which allows, upon motion, the court to set aside a default judgment previously entered for the reason of fraud. Nor does he argue any reason besides fraud as a basis for setting aside the decree.