Davis v. Child Support Enforcement Unit

Charles DAVIS v. CHILD SUPPORT ENFORCEMENT
UNIT

95-641                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered November 25, 1996


1.   Jurisdiction -- appellant's argument without merit --
     appellant never claimed he was not resident of county in which
     order for support was entered. -- Although appellant claimed
     that the mother of the child for whom he was ordered to pay
     support was not a resident of the county, appellant never
     contended that he was not a resident of that county; the
     appellate court had no reason to suspect that the chancery
     court lacked jurisdiction of him.

2.   Constitutional law -- Sixth Amendment argument without merit -
     - appellant failed to use statutory provisions that afforded
     evidentiary protection. -- Appellant's argument that he was
     denied his right accorded by the Sixth Amendment to the
     Constitution of the United States to confront the affiants
     whose affidavits were used against him was without merit;
     where there was no attempt to utilize the provisions which
     were aimed by the drafters of the UIFSA at providing the best
     evidentiary safeguards permitted by the circumstances of
     interstate support litigation, no attempt to defend due to a
     misguided conclusion concerning jurisdiction, and no notice
     given to the Attorney General of the claimed
     unconstitutionality of the statute, the supreme court declined
     to give further consideration to the constitutional arguments
     made belatedly to the chancellor and on appeal.


     Appeal from Phillips Chancery Court; Baird Kinney, Chancellor;
affirmed.
     Wilson & Associates, by:  E. Dion Wilson, for appellant.
     Charles E. Halbert, Jr., for appellee.

     David Newbern, Justice.
     Jacqueline Sims, a Minnesota resident, executed a "Uniform
Support Petition" there.  She claimed that the appellant, Charles
Davis, was the father of her child, Jeremy Arnett, and sought $250
per month in support payments and "reimbursement" in the amount of
$3850.  Mr. Davis resides in Helena.  In accordance with Minnesota
Uniform Reciprocal Enforcement of Support Act provisions, the
petition was forwarded by a Minnesota district court to the
appellee, Arkansas Child Support Enforcement Unit, which filed
paternity and support claims against Mr. Davis in the Phillips
County Chancery Court.
     Mr. Davis submitted to a blood (DNA) test in which the
likelihood of his being the father of Jeremy Arnett was determined
to be 99.86% when compared with "an untested, unrelated man of the
North American Black population."  Pursuant to the Uniform
Interstate Family Support Act (UIFSA), Ark. Code Ann.  9-17-101
through 9-17-902 (Repl. 1993), a hearing was held on the petition. 
See  9-17-401(c) which gives an alleged support obligor the right
to "notice and opportunity to be heard."
     Mr. Davis objected to the proceeding on the basis that the
Court lacked jurisdiction, and he declined to present evidence. 
After the Court reached its decision finding Mr. Davis to be the
father of the child and entering its order of support, Mr. Davis
filed a motion challenging the constitutionality of the
proceedings.  The Court entered a further order overruling the
motion and rejecting the constitutional arguments made by Mr.
Davis.  We affirm the decision.
     
                         1. Jurisdiction
     Mr. Davis makes no argument which would seem to challenge the
Chancellor's jurisdiction of the subject matter, so we assume his
argument is directed to jurisdiction of the person.  He recites
that Ms. Sims is not a resident of Phillips County and cites Dobson
v. State, 69 Ark. 376, 63 S.W. 796 (1901).  The Dobson case is
completely inapposite, as the issue there was whether "the county
judge in vacation, as distinguished from the county court," had the
right to hear and determine "bastardy cases."  The judgment against
the putative father was affirmed, upholding statutory language
allowing the judge to hear such cases "in vacation."  Mr. Davis
does not contend that his residence is other than Phillips County,
and we have no reason to suspect the Court lacked jurisdiction of
him.

                    2. Right of confrontation
     Mr. Davis points out that the evidence against him consisted
of two affidavits, that of the expert who conducted the blood test
and that of Ms. Sims.  He contends he was denied his right,
accorded by the Sixth Amendment to the Constitution of the United
States, to confront the affiants.  His argument is that the
affidavits of those persons should not have been introduced into
evidence and considered by the Court.  He is aware that the Sixth
Amendment is, by its language, limited to "criminal prosecutions,"
but he argues that the proceeding against him is "quasi-criminal,"
and he contends he is thus entitled to the same confrontation right
as a criminal defendant. 
     The Dobson case is ancient and does not stand for the
proposition for which it is cited, but it may display the manner in
which Mr. Davis has been misled into this argument.  In 1901 we
used terminology like "complaint charging [a] ... person with being
the father of a bastard child" and "conviction" of being the father
of a "bastard child."  The terminology was suggestive of criminal
prosecution.  Mr. Davis supports his argument with references to
Ark. Code Ann.  9-10-110 and 9-17-316 (Repl. 1993), contending
that, like a criminal, he faces incarceration if he disobeys the
support order.  
     We find nothing in  9-17-316 suggesting incarceration, but we
do find it in  9-10-110(b), which would allow the court to commit
the "accused person to jail until the lying-in expenses are paid
with all costs."  The predicate for such an action, however,
according to  9-10-110(a), is a judgment for lying-in costs "if
required or claimed."  Here we have no evidence that there was any
such claim or judgment, and there has been no attempt to hold that
Mr. Davis has refused to pay any lying-in cost.
     In Connecticut there were laws similar to  9-10-110 and
language in the paternity law such as that alluded to above from
our Dobson decision making a paternity action seem like a criminal
prosecution.  The Supreme Court, in Little v. Streater, 452 U.S. 1
(1981), then referred to the Connecticut law as having "quasi-
criminal" overtones, despite the State's characterization of it as
"civil."  The Supreme Court held that refusal of the State of
Connecticut to pay the cost of blood-grouping tests sought by an
indigent putative father denied his right to due process of law. 
The decision was a straightforward application of the Due Process
Clause of the Fourteenth Amendment, applying the general criteria
set out in Mathews v. Eldridge, 424 U.S. 319 (1976).  It did not
even suggest that the defendant was entitled to all or any of the
procedural safeguards to which criminal defendants are especially
entitled.  
     In Connecticut, the law was that a woman's testimony that a
man was the father of her child established a prima facie case, and
in order to prevail, the putative father was required to produce
evidence other than, or in addition to, his own testimony to the
contrary.  The Supreme Court based its decision upon the
evidentiary hurdle faced by a Connecticut paternity defendant and
the need of such a defendant to have access to evidence other than
his own testimony to show the accusations were untrue.  The Supreme
Court limited its decision to the "specific circumstances" extant
in Connecticut.
     Mr. Davis's argument ignores the statutory provision which
would have entitled him to have present the expert who conducted
the blood test upon filing of notice of such a request thirty days
in advance of the trial.   9-10-108(a)(3)(A).  He states only that
the statute would have required him to post a bond to pay the costs
of the personal appearance of the expert.  In the Court's first
order of judgment it is specifically recited that the bond
requirement was struck by the Court and that only notice was
required.  Mr. Davis does not contest that statement, and there is
no evidence that any such notice was given.
     Also ignored is  9-17-316(f) which provides:

          In a proceeding under this chapter, a tribunal of this
     state may permit a party or witness residing in another state
     to be deposed or to testify by telephone, audiovisual means,
     or other electronic means at a designated tribunal or other
     location in that state.  A tribunal of this state shall
     cooperate with tribunals of other states in designating an
     appropriate location for the deposition or testimony.

Mr. Davis apparently made no attempt to "confront" Ms. Sims by the
method provided in the statute.
     In these circumstances, where there has been (1) no attempt to
utilize the provisions which were aimed by the drafters of the
UIFSA at providing the best evidentiary safeguards permitted by the
circumstances of interstate support litigation, (2) no attempt to
defend due to a misguided conclusion concerning jurisdiction, and
(3) no notice given to the Attorney General of the claimed
unconstitutionality of the statute, see Ark. R. Civ. P. 24(c); Ark.
Code Ann.  16-111-106(b) (1987); Arkansas Dept. of Human Serv. v.
Heath, 307 Ark. 147, 817 S.W.2d 885 (1991),  we decline to give
further consideration to the constitutional arguments made
belatedly to the Chancellor and in this appeal.
     Affirmed.                          
     Dudley, Glaze, and Corbin, JJ., not participating.
     Special Justices Claibourne W. Patty, Jr., LeRoy Autrey, and
Jay Shell join in the opinion.