Nena Lee v. Victor Young
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DIVISION II
ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
R OBERT J. G LADWIN, Judge
CA06-509
F EBRUARY 21, 2007
NENA LEE
APPELLANT
APPEAL FROM THE HEMPSTEAD
COUNTY CIRCUIT COURT
[NO. E91-299-1]
HON. DUNCAN CULPEPPER,
JUDGE
V.
VICTOR YOUNG
APPELLEE
AFFIRMED
Appellant Nena Lee appeals the December 21, 2005, order of the Hempstead County
Circuit Court, which found that res judicata prevented the trial court from ordering payment
of back child support from appellee Victor Young to appellant. Appellant contends on
appeal that the trial court erred in applying res judicata and in denying her motion for
judgment on the pleadings. Upon de novo review we affirm but do not rely upon res
judicata.
I. Facts
The parties were divorced by decree filed February 11, 1992. The property-settlement
agreement awarded custody of the parties’ two children to appellant, who was to receive
$70.00 per week in child support. On October 11, 1993, an agreed order modifying the
decree was filed that decreased child support to $2000 for the time period August 9, 1993,
to August 9, 1994. The order further provided in paragraph five as follows:
At such time as the Plaintiff [appellee] ceases to be a full-time student, and no later
than August 9, 1994, the Plaintiff is to report to the Court his income, and his child
support shall be set commensurate with said income and the Family Support Chart in
use by this Court at that time, and said support will become due and payable
beginning the first week after August 9, 1994.
On August 19, 1997, an agreed order modifying the decree and property settlement
agreement was filed that suspended child support between August 13, 1997, and June 30,
1998. On November 2, 1998, an agreed order modifying the decree and property settlement
agreement was filed that suspended child support between October 19, 1998, and June 30,
1999.
On January 29, 2003, appellant filed her petition for modification of the divorce
decree asking that the current child support be modified.
Her attorney withdrew on
September 16, 2003. On February 12, 2004, the trial court denied appellant’s requested relief
of modification, finding that there had been no change of circumstances.
On June 18, 2004, appellant obtained another attorney and filed a motion for citation
to collect child support that had not been paid between August 10, 1994, to August 12, 1997;
July 1, 1998, to October 28, 1998; and July 1, 1999, to the present. On February 28, 2005,
appellee filed his amended response to the motion for citation and raised the defense of res
judicata. Appellant filed a motion to strike the amended response and motion for judgment
on the pleadings on March 14, 2005. The trial court held a hearing on November 17, 2005,
and ruled on the issue of res judicata and the motion for judgment on the pleadings. The
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December 21, 2005, order, which resulted from the November 17, 2005, hearing, stated that
the appellee was to pay $70 per week in child support and $300 in attorney’s fees to
appellant. Further, the trial court ordered that appellant’s request for back child support was
denied based upon res judicata, and the motion for judgment on the pleadings was denied.
This appeal followed.
II. Applicable law
The standard of review for questions of law is de novo. Sowders v. St. Joseph’s Mercy
Health Ctr., ___ Ark.___, ___ S.W.3d___ (Jan. 18, 2007). The award of child support is also
reviewed under the de novo standard. Hill v. Kelly, ___ Ark. ___, ___ S.W.3d ___, (Nov.
30, 2006). A trial court’s conclusions on a question of law are given no deference on appeal.
Murphy v. City of West Memphis, 352 Ark. 315, 101 S.W.3d 221 (2003). However, in the
absence of a showing that the trial court erred, its interpretation of the statute should be
accepted as correct on appeal. Middleton v. Lockhart, 344 Ark. 572, 43 S.W.3d 113 (2001).
Where a case is based on the same events as the subject matter of a previous lawsuit,
res judicata will apply even if the subsequent lawsuit raises new legal issues and seeks
additional remedies. Office of Child Support Enforcem’t v. King, 81 Ark. App. 190, 100
S.W.3d 95(2003) (citing Office of Child Support Enfcm’t v. Williams, 338 Ark. 347, 995
S.W.2d 338 (1999)). Res judicata bars relitigation of a subsequent suit when five factors are
present: (1) the first suit resulted in a final judgment on the merits; (2) the first suit was based
upon proper jurisdiction; (3) the first suit was fully contested in good faith; (4) both suits
involve the same claim or cause of action; (5) both suits involve the same parties or their
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privies. Id., (citing Moon v. Marquez, 338 Ark. 636, 999 S.W.2d 678 (1999)). Res judicata
bars not only the relitigation of claims that were actually litigated in the first suit but also
those that could have been litigated. Id. The policy of the doctrine is to prevent a party’s
relitigating a matter on which it has already been given a fair trial. Id.
III. Whether res judicata applies
Appellant argues that under King, supra, once child support debts fall due, they
become vested and constitute a judgment subject to garnishment or execution. Appellant
argues that appellee’s child support obligations were due and not paid for the time periods
of August 10, 1994, to August 12, 1997; July 1, 1998, to October 28, 1998; and July 1, 1999,
to present. She contends that appellee did not move to modify his obligation, and that the
agreed orders that were entered modified the obligation for only specified periods of time.
Appellant argues that a judgment, which is what appellee’s child support obligations became
after they were due, can be collected at any time, independent of what other related actions
are brought by the obligee, thus making res judicata inapplicable.
Appellee argues that the order of February 10, 2004, does address child support.
Appellee claims that the underlying motion was appellant’s petition for modification of the
decree.
In paragraph six of that pleading, appellant claims a material change in
circumstances since the entry of the divorce decree and the agreed orders modifying it. The
trial court ruled in the February 10, 2004, order: “That no change of circumstances has been
shown by Defendant [appellant]. That no child support is ordered to be paid by either party
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since there was not a change in circumstances that would warrant a change in this Court’s
previous orders.”
We agree and take the argument a step further for clarification. As stated earlier, the
agreed order of October 11, 1993, contains the following language in paragraph five:
At such time as the Plaintiff [appellee] ceases to be a full-time student, and no later
than August 9, 1994, the Plaintiff is to report to the Court his income, and his child
support shall be set commensurate with said income and the Family Support Chart in
use by this Court at that time, and said support will become due and payable
beginning the first week after August 9, 1994.
However, the trial court did not set appellee’s child support as pronounced in the above
order. That portion of the order was never enforced. Instead, an order was filed August 19,
1997, which reflected the parties’ agreement that through June 30, 1998, they would share
joint custody, with appellee as the primary custodian, and no child support was owed or paid
by either party. Finally, the order of November 2, 1998, reflects the parties’ agreement from
the August 19, 1997, order and extended it until June 30, 1999.
As stated above, the order of February 10, 2004, reflects that the trial court found no
change of circumstances when appellant moved for modification. The trial court ordered no
child support at that time, and because none had been set in accordance with the agreed order
of October 11, 1993, none was due. Appellant then moved for contempt against appellee
based on nonpayment of child support for certain time periods between August 1993 and the
present, which were not encompassed by the agreed-modification orders. However, no childsupport order was in effect after the expiration of the first agreed order because the
agreement that appellee would report his income to the court and have the support set by the
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Family Support Chart was not enforced. Appellee need not have argued res judicata as a
defense because child support was not established after the order of October 11, 1993.
Because res judicata does not apply, we need not address appellant’s arguments
regarding the timeliness of appellee’s res judicata argument, modified res judicata, whether
appellant’s motion for modification is distinct from her contempt motion, or whether the
application of res judicata improperly modifies the child support at issue.
IV. Judgment on the pleadings
Appellant contends that an amended pleading takes the place of the original pleading.
Edward J. DeBartolo Corp. v. Cartwright, 323 Ark. 573, 916 S.W.2d 114 (1996). She
argues that in the instant case, appellee filed an amended pleading that took the place of his
original response. The amended pleading did not contain any denials of the allegations made
by appellant. Therefore, appellant argues that appellee waived any denials and admitted them
as a matter of law. She claims that because appellee failed to deny the claims in the amended
pleading, the trial court erred in denying her judgment on the pleadings.
Appellee contends that appellant’s argument is flawed because DeBartolo, supra, is
distinguishable from the instant case.
In DeBartolo, the pleading at issue was the
complainant’s original complaint and amended complaint. Here, the pleading at issue is a
response and amended response. Appellee claims that under Farm Bureau Mutual Insurance
Co. v. Campbell, 315 Ark. 136, 865 S.W.2d 643 (1993), the supreme court held that the rules
of civil procedure do not contain a requirement that would compel any party to reallege his
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defenses. Therefore, we affirm the trial court’s decision denying appellant’s motion for
judgment on the pleadings.
Further, we affirm the trial court’s determination that appellee does not owe back
child support to appellant. However, we decline to base our opinion on res judicata; rather
we base it on our interpretation of the trial court’s orders.
Affirmed.
B IRD and B AKER, JJ., agree.
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