Branch v. Carter

Annotate this Case
Betty Sue Carter BRANCH v. Kyle Dean CARTER

96-754                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered November 25, 1996


1.   Limitation of actions -- child support -- power of legislature
     over statute of limitations. -- The legislature may amend the
     statute of limitation for a cause of action that is not yet
     barred; however, the legislature cannot retroactively revive
     a cause of action that is already barred at the time the act
     is enacted. 

2.   Limitation of actions -- power of legislature to enlarge -- 
     retroactivity determined by legislative intent. -- No one has
     any vested right in a statute of limitations until the bar of
     the statute has become effective; the General Assembly may
     validly enlarge the period of limitations and make the new
     statute, rather than the old, apply to any cause of action
     that has not been barred at the time the new statute becomes
     effective; the critical question is one of legislative intent;
     the amendatory act does not extend the statutory period unless
     the legislative intention that it do so is expressly stated.

3.   Parent & child -- act clearly intended to be retroactive --
     causes of action already barred on act's effective date could
     not be revived. -- The General Assembly clearly mandated that
     the enlarged limitations period in Act 870 of 1991 would apply
     retroactively to all child-support orders then existing;
     however, the legislature only had the power to amend statutes
     of limitation affecting causes of action that were not yet
     barred; because the effective date of Act 870 was March 29,
     1991, any cause of action by the appellant for arrearages
     accruing prior to March 29, 1986 was barred and could not be
     revived by its passage.  

4.   Parent & child -- appellant entitled to recover additional
     support due to retroactive expansion of statue of limitations
     -- holding of court of appeals affirmed. -- Where appellant's
     cause of action for child-support payments due on July 19,
     1986, and thereafter was in existence at the time the statute
     of limitations was retroactively expanded on March 29, 1991,
     the chancellor erred in concluding that appellant's specific
     claim against appellee was barred by the five-year statute;
     appellant was entitled to recover additional support for the
     period of July 19, 1986, to July 19, 1989, plus the statutory
     attorneys fees and interest provided under Ark. Code Ann.  9-
     14-223 on the total arrearages owed; the holding of the court
     of appeals was affirmed. 


     Appeal from Logan Chancery Court, Northern District; Van
Taylor, Chancellor; affirmed.
     Dunham & Faught, P.A., by:  James S. Dunham, for appellant.
     Buddy Hixson, for appellee.

     Andree Layton Roaf, Justice.
     Appellant Betty Carter Branch appealed an order of the Logan
County Chancery Court holding that appellee Kyle Dean Carter was
not liable for child-support arrearages which accrued prior to July
20, 1989, because they were barred by the five-year statute of
limitations in Ark. Code Ann.  16-56-115 (1987).  The Arkansas
Court of Appeals reversed the decision of the chancellor and held
that Act 870 of 1991, codified as Ark. Code Ann.  9-14-236 (Repl.
1993), applied retroactively to expand the statute of limitations
for causes of action for delinquent child-support payments not
barred on the date of its enactment.  Branch v. Carter, 54 Ark.
App. 70, 923 S.W.2d 874 (1996).  We granted Mr. Carter's request
for review of the Court of Appeals' decision pursuant to Ark. S.
Ct. R. 1-2(f).  We affirm the Court of Appeals.
     On July 19, 1983, Ms. Branch and Mr. Carter were divorced by
a decree in which Carter was ordered to pay child support at the
rate of $52 per week.  On May 18, 1994, Branch filed a petition for
citation and alleged that Carter was delinquent in his support
payments.  At a hearing on October 26, 1994, the parties stipulated
that Carter owed arrearages of $7,404 for the period of July 19,
1989 to the date of the hearing, and Branch was granted judgment
for this amount.  The order further provided that the parties would
stipulate as to the amount of arrearages that accrued prior to July
19, 1989, and would brief the court on the issue of the statute of
limitations as it applied to those arrearages.
     On March 2, 1995, the chancellor entered a final order which
stated that the parties had stipulated that child-support
arrearages had accrued between July 19, 1984 and July 19, 1989 in
the amount of $12,251.50.  The parties further stipulated that, of
this amount, $5,562 had accrued between July 19, 1986 and July 19,
1989.  The chancellor ruled that the action for arrearages accruing
prior to July 20, 1989 was barred by the statute of limitations.  
     On appeal, Branch argues in essence that Act 870 of 1991, now
codified as Ark. Code Ann.  9-14-236 (Repl. 1993), applies
retroactively so that all causes of action still in existence on
the date the Act became effective would benefit from an enlarged
statute of limitations.  She contends that the five-year statute of
limitations relied upon by the trial court only bars the recovery
of support payments due prior to July 19, 1986.  Although the
effective date of Act 870 was March 29, 1991, we agree that the Act
applies retroactively to all causes of action not barred on the
date of its enactment.  Branch made claim to the sum of $5,562
which accrued between July 19, 1986 and July 19, 1989, and we agree
that she is entitled to recover this amount.
     Because the legislature has in recent years twice changed the
statute of limitations with regard to collection of delinquent
child support, we must review these legislative enactments and the
cases in which we have recently considered the issue of the
limitations period applicable to actions for child-support
arrearages.
     In Sullivan v. Edens, 304 Ark. 133, 801 S.W.2d 32 (1990), we
recognized that prior to 1989 the collection of arrearages accruing
as a result of failure to comply with an order of child support was
governed by the general five-year statute of limitations.  Ark.
Code Ann.  16-56-115 (1987).  In 1989, the legislature established
a ten-year statute of limitations specifically for the collection
of child-support arrearages.  1989 Ark. Acts 525 (codified at Ark.
Code Ann.  16-56-129 (Supp. 1993)).  However, because Act 525 did
not repeal the general five-year statute and contained no
retroactivity provision, we held that the ten-year statute of
limitation did not apply retroactively, and that the former statute
of limitations controlled for all causes of action already accrued
on the date of enactment of Act 525. Sullivan, supra. Consequently,
we concluded that "the old five-year statute of limitation is
applicable to those support payments due prior to the effective
date of the new act, and the new ten-year statute of limitation is
applicable to payments accruing after the effective date of the new
act."  Id.
     In response, the General Assembly enacted Act 870 of 1991, 
which repealed Act 525 of 1989 and became effective on March 29,
1991.  The Act provides in relevant part:
          (b)  In any action involving the support of any
     minor child or children, the moving party shall be
     entitled to recover the full amount of accrued child
     support arrearages from the date of the initial support
     order until the filing of the action. 
          (c)  Any action filed pursuant to subsection (b) may
     be brought at any time up to and including five (5) years
     beyond the date the child for whose benefit the initial
     support order was entered reaches the age of eighteen
     (18) years.
          (d)  No statute of limitation shall apply to an
     action brought for the collection of a child support
     obligation or arrearage against any party who leaves or
     remains outside the State of Arkansas with the purpose to
     avoid the payment of child support.
          (e)  This section shall apply to all actions pending
     as of its effective date, and filed thereafter and shall
     retroactively apply to all child support orders now
     existing.
1991 Ark. Acts. 870 (codified at Ark. Code Ann.  9-14-236 (Supp.
1995))(emphasis supplied).  Thus, the statute of limitations for
child support now commences with an initial order of support and
extends until the child reaches the age of twenty-three.
     We were first presented with the opportunity to interpret Act
870 of 1991 in Johnson v. Lilly, 308 Ark. 201, 823 S.W.2d 883
(1992), in which we recognized that the legislature has the power
to amend statutes of limitation affecting causes of action which
are not yet barred.  See also Sullivan supra; Chunn v. D'Agostino,
312 Ark. 141, 847 S.W.2d 699 (1993).  However, in Johnson, at issue
was a complaint for arrearages filed on January 2, 1991, prior to
the enactment of Act 870, and a ruling by the trial court that Act
870 applied retroactively to revive a cause of action for
arrearages which accrued prior to January 2, 1986.  Id.  We held
that the action for arrearages which accrued prior to January 2,
1986 was already barred on the date the petition was filed, and
that Act 870 could not retroactively revive a cause of action
already barred on the date of its enactment.  Id.  We thus did not
consider the effect of Act 870 on a cause of action for arrearages
not yet barred on the date of enactment.  Id.  Furthermore, our
decision in Johnson did not turn on the fact that the complaint for
arrearages was filed prior to the passage of Act 870; the decision
would have been the same had the complaint been filed on or after
March 29, 1991. Id.
     We next considered the retroactive application of Act 870 of
1991, in Chunn, supra.  As in Johnson, supra, the appellants in
Chunn sought by petition filed in September 1991 to apply Act 870
retroactively to a claim for arrearages which accrued prior to July
16, 1981, more than nine years before the enactment of Act 870.  We
again held that the new statute could not revive a claim already
barred, even though the petition for arrearages was filed by the
children entitled to support and not the mother.
   Moreover, in both Johnson, supra, and Sullivan, supra, we relied
upon Morton v. Tullgren, 263 Ark. 69, 563 S.W.2d 422 (1978), where
we wrote:
          [N]o one has any vested right in a statute of
     limitations until the bar of the statute has become
     effective.  It is also true that the General Assembly may
     validly enlarge the period of limitations and make the
     new statute, rather than the old, apply to any cause of
     action which has not been barred at the time the new
     statute becomes effective.  
(Emphasis supplied.)  In Morton, supra, we noted that the critical
question is one of legislative intent.  We found that the
legislature had not made the new statute of limitations
retroactive, and that there was in fact nothing to indicate that
the legislature intended to do so.  Id.  We stated that "the
amendatory act does not extend the statutory period unless the
legislative intention that it do so is expressly stated."  Id.  We
further commented:
     The rationale of our holdings that a statute extending
     the period of limitations is applicable only to causes of
     action arising after the act becomes effective, unless
     expressly made retroactive, is not based upon any vested
     right in the statute of limitations.  It is based upon
     the strong presumption that a legislative act is not
     intended to operate retroactively.
Id.  See also Ragland v. Travenol Labs., Inc., 286 Ark. 33, 689 S.W.2d 349 (1985).
     In the instant case, the General Assembly has clearly mandated
that the enlarged limitations period in Act 870 of 1991 "shall
retroactively apply to all child support orders now existing." 
Thus, the legislature has expressly declared its intent to make the
enlarged limitations period retroactive.  The legislature, however,
only has the power to amend statutes of limitation affecting causes
of action which are not yet barred.  See Johnson, supra.  Because
the effective date of Act 870 is March 29, 1991, any cause of
action by Branch for arrearages accruing prior to March 29, 1986 is
barred, and cannot be revived by its passage.  As to support
payments due on or after March 29, 1986, the legislature may
retroactively expand the statute of limitation for causes of action
not yet barred, and that is precisely the effect of Act 870 of
1991.
     Carter argues that neither the ten-year statute in effect from
July 3, 1989 until the passage of Act 870, nor Act 870 applies
retroactively to the arrearages which accrued prior to July 19,
1989.  He relies on our holding in Johnson, supra, for this
interpretation.  However, he has failed to recognize the factual
distinction in Johnson, which involved a claim for arrearages which
accrued prior to January 2, 1986.  Our holding today, that Act 870
does not revive claims for arrearages accruing prior to March 29,
1986, is in harmony with both Johnson, supra, and Chunn, supra.
     In sum, it is black-letter law that the legislature may
retroactively expand a statute of limitations for a cause of action
still in existence at the time the limitations period is expanded. 
We have so stated in Johnson, supra; Chunn, supra; Sullivan, supra;
and Morton, supra.  Branch's cause of action for child-support
payments due on July 19, 1986, and thereafter was in existence at
the time the statute of limitation was retroactively expanded on
March 29, 1991.  Thus, the chancellor erred in concluding that her
specific claim against Carter for $5,562 was barred by the five-
year statute. 
     Accordingly, we agree with the Court of Appeals that Branch is
entitled to recover $5,562 additional support for the period of
July 19, 1986 to July 19, 1989, plus the statutory attorneys fees,
and interest provided under Ark. Code Ann.  9-14-223 on the total
arrearages owed of $12,966.  We affirm the holding of the Court of
Appeals.



     





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