Branch v. Carter

Betty Carter BRANCH v. Kyle Dean CARTER

CA 95-626                                          ___ S.W.2d ___

                  Court of Appeals of Arkansas
                          Division III
                 Opinion delivered June 12, 1996


1.   Family law -- child-support arrearages -- limitations period.
     -- Under Act 870 of 1991, codified at Ark. Code Ann.  9-14-
     236, any action seeking recovery of accrued child-support
     arrearages can be brought at any time up to and including five
     years beyond the date on which the child for whose benefit the
     initial support order was entered reaches the age of eighteen;
     the act also provides that this enlarged limitations period
     applies retroactively to all existing child-support orders.

2.   Limitation of actions -- legislature has power to amend
     statutes of limitations affecting causes of action not yet
     barred. -- 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.

3.   Family law -- child-support arrearages -- act enlarging
     limitations period retroactively applied to delinquent
     payments. -- Where the provisions of Act 870 of 1991, which
     was retroactively effective, applied to all delinquent child
     support that was not barred under previous statutes of
     limitations on the date of its enactment, and where, at the
     time Act 870 became effective by an emergency clause on March
     29, 1991, appellant could have brought an action for
     delinquent child support extending back to March 29, 1986,
     because an action for those accruals would not have been time-
     barred under prior law, the 1991 act retroactively applied to
     all delinquent payments that accrued after March 29, 1986.

4.   Family law -- child-support arrearages -- case reversed and
     remanded for award of support for additional period of time. -
     - Although only claims for arrearage that accrued prior to
     March 29, 1986, were time-barred, the appellate court agreed
     with appellant's specific claim that she was entitled to an
     award for unpaid child support that accrued between July 19,
     1986, and July 19, 1989; the appellate court, therefore,
     reversed and remanded the case to the trial court for an award
     of support to appellant for the additional period of time, and
     for the statutory attorney's fee and interest on the total
     child support owed.


     Appeal from Logan Chancery Court; Van B. Taylor, Chancellor.
     Dunham & Ramey, P.A., by: James Dunham, for appellant.
     Hixson & Cleveland Law Office, by: R.H. "Buddy" Hixson, for
appellee.

     John B. Robbins, Judge.*ADVREP*CA2*
                          DIVISION III









BETTY CARTER BRANCH
                     APPELLANT

V.


KYLE DEAN CARTER
                      APPELLEE



CA 95-626

                                                    JUNE 12, 1996


APPEAL FROM THE LOGAN COUNTY
CHANCERY COURT, [E-83-83.1]

HONORABLE VAN B. TAYLOR,
CHANCERY JUDGE


REVERSED AND REMANDED





                     John B. Robbins, Judge.


     Appellant Betty Carter Branch and appellee Kyle Carter
were divorced on July 19, 1983.  Pursuant to the divorce decree,
Ms. Branch received custody of their three-year-old daughter and
Mr. Carter was ordered to pay child support of $52.00 per week. 
For the first year following their divorce, Mr. Carter was current
on his child-support payments.  However, the court records indicate
that, since July 19, 1984, Mr. Carter has continued to fall behind
on his support obligation.  On May 18, 1994, Ms. Branch filed a
petition for relief alleging that Mr. Carter was delinquent on his
payments.  The parties stipulated that Mr. Carter was delinquent in
the amount of $12,251.50 for the time period between July 19, 1984,
and July 19, 1989, and $7,404.00 for the time period between July
20, 1989, and the date Ms. Branch's petition was filed.  The
chancery court ordered Mr. Carter to pay $7,404.00 in delinquent
child support.  However, the court found that collection of
delinquent child support which accrued prior to July 20, 1989, was
barred by the applicable statute of limitations.  Ms. Branch
acknowledges that collection of the delinquent child support which
accrued prior to July 19, 1986, is time-barred.  However, she
contends that the support which accrued between July 19, 1986,
and July 19, 1989, should not have been barred by the statute of
limitations.  The parties stipulated that the amount which accrued
during this three-year period was $5,562.00, and Ms. Branch
appeals, asserting entitlement to this amount.  We agree and
reverse.
     In addressing this issue we have reviewed the recent changes
that our legislature has made with regard to the limitations period
for the collection of delinquent child support.  Prior to 1989, the
applicable statute of limitations for arrearages occurring as a
result of failure to pay child support was five years.  Ark. Code
Ann.  16-56-115 (1987).  However, in 1989 the legislature changed
the limitations period to ten years.  This change was codified at
Ark. Code Ann.  9-14-236 (Supp. 1989).  In Sullivan v. Edens, 304
Ark. 133, 801 S.W.2d 32 (1990), the supreme court held that the
ten-year statute did not apply retroactively, and all child support
that had become due prior to the effective date of the 1989 act was
still subject to the five-year limitations period.  On March 29,
1991, the legislature again modified the limitations period through
enactment of Act 870.  This act, codified at Ark. Code Ann.  9-14-
236 (Repl. 1993), provides that any child-support action can 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 eighteen (18) years."  The act also provides that
the enlarged limitations period "shall retroactively apply to all
child support orders now existing."
     Act 870 of 1991 was discussed in Johnson v. Lilly, 308 Ark.
201, 823 S.W.2d 883 (1992).  In that case, the supreme court
acknowledged that the act applied retroactively.  However, quoting
Morton v. Tullgren, 263 Ark. 69, 563 S.W.2d 422 (1978), the court
stated:
     [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.

And see Chunn v. D'Agostino, 312 Ark. 141, 847 S.W.2d 699 (1993).

     In the present case, the child-support arrearage that accrued
between July 19, 1984, and the date the 1989 act became effective
was subject to the five-year statute of limitations because the
1989 act did not have retroactive application.  However, when the
1991 act, which was retroactive, became effective, its provisions
applied to all delinquent child support which was not barred under
previous statutes of limitations on the date of its enactment.  Any
cause of action for delinquent child support which was barred at
the time Act 870 went into effect could not be revived by the act. 
Chunn v. D'Agostino, supra; Johnson v. Lilly, supra.  Consequently,
at the time Act 870 became effective by an emergency clause on
March 29, 1991, Ms. Branch could have brought an action for
delinquent child support extending back to March 29, 1986, because
an action for these accruals would not have been time-barred under
prior law.  Therefore, the 1991 act retroactively applies to all
delinquent payments which accrued after March 29, 1986.
     In her brief, Ms. Branch argues that the applicable statute of
limitations does not bar recovery for any arrearage accrued after
July 19, 1986.  In actuality, only claims for arrearage that
accrued prior to March 29, 1986, are time-barred.  Nonetheless, we
agree with Ms. Branch's specific claim for relief.  She contends
that she is entitled to unpaid child support which accrued between
July 19, 1986, and July 19, 1989.  Based on our review, we agree
that she is entitled to such an award.  Therefore, we reverse and
remand to the trial court for an award of support to appellant for
this additional period of time, and for the statutory attorney's
fee and interest provided under Ark. Code Ann.  9-14-233 on the
total child support owed in the sum of $12,966.00.
     Reversed and remanded.
     Rogers and Neal, JJ., agree.