State of California, Stanislaus County v. James F. West

State of CALIFORNIA, Stanislaus County v.
James F. WEST

CA 97-604                                          ___ S.W.2d ___

                  Court of Appeals of Arkansas
                           Division II
                 Opinion delivered March 4, 1998


1.   Parent & child -- child support -- appellant's reliance on
     case misplaced. -- Unlike the court in Jefferson County Child
     Support Enforcement Unit v. Hollands, 327 Ark. 456, 939 S.W.2d 784 (1997), the Pulaski County Chancery Court did not enter
     a support order or adjust appellee's current support
     obligation; it merely reduced the arrearage to judgment and
     ordered a monthly payment to amortize the judgment; the fact
     that an additional arrearage might or might not exist was not
     argued in Arkansas pursuant to either the 1991 or 1992 UIFSA
     petitions.  

2.   Courts -- doctrine of res judicata defined. -- The doctrine of
     res judicata is a final adjudication on the merits, without
     fraud or collusion, by a court of competent jurisdiction on a
     matter litigated or that might have been litigated.

3.   Parent & child -- appellant clearly had right to ask for
     interest on arrearage but failed to do so -- interest issue
     was res judicata. -- It was not disputed that the appellant
     state could have asked for interest at the time it transmitted
     its UIFSA petitions to Arkansas; indeed the form that
     California transmitted to Arkansas had a section for claiming
     interest payments that had not been filled in; the issue of
     whether interest was owed on the arrearage encompassed by the
     1993 order was res judicata. 

4.   Appeal & error -- record on appeal limited to that abstracted
     -- appellate courts will not examine transcript of trial to
     reverse trial court. -- The record on appeal is limited to
     what is abstracted and the burden is clearly placed on the
     appealing party to provide an abstract sufficient for
     appellate review; Arkansas appellate courts will not examine
     the transcript of a trial to reverse a trial court. 

5.   Appeal & error -- evidence absent as to manner in which
     arrearage calculated -- chancellor's finding not clearly
     against preponderance of evidence. -- Although the appellate
     court reviews chancery cases de novo, it will not disturb a
     chancellor's findings unless they are clearly against the
     preponderance of the evidence; absent clear evidence of how
     the appellant calculated the alleged arrearage, it was
     impossible to say that the chancellor's finding that appellee
     did not owe any more child support was clearly against the
     preponderance of the evidence; the chancellor was affirmed.  


     Appeal from Pulaski Chancery Court; Collins Kilgore,
Chancellor; affirmed.
     Charles Dirden, for appellant.
     Tripcony Law Firm, P.A., by:  James L. Tripcony, for appellee.

     Andree Layton Roaf, Judge.
     The State of California, which was assigned child support as
a condition for providing AFDC and Medicaid benefits, appeals a
Pulaski County Chancery Court order finding that appellee James F.
West had fully satisfied his past-due child-support obligation,
enjoining future collection attempts, and ordering that monies
collected through the interception of Westþs income tax refund and
through a wage assignment be refunded.  On appeal, California
argues that the chancellor erred in finding that West did not owe
any child-support arrearages and enjoining its collection attempts. 
We affirm.          
     On September 7, 1979, an order was entered in Stanislaus
County, California, granting custody of Westþs daughterto the birth
mother.  The order also granted to West "reasonable visitation" and
required that, commencing September 15, 1979, he pay child support
in the amount of $75 per month for his four-year-old daughter
Melissa, born August 12, 1975.  In addition, the order specified
that the support payments be made to the office of the Stanislaus
County District Attorney so long as Melissa's mother remained on
AFDC.  On November 7, 1979, the order was modified to deny West
visitation rights.  The amount of support, however, was not
changed.  
     West was not diligent in making his support payments. 
Pursuant to a UIFSA petition filed in California on April 16, 1991,
a motion for judgment on arrears was filed in Pulaski County
Chancery Court, alleging that an arrearage of $4,310.18 had accrued
from September 15, 1979, through April 30, 1990, and praying for
judgment in that amount.  At that time, California did not seek
interest on the arrearage.  On the same day, a consent judgment was
filed in which West agreed to the amount of the arrearage and a
payment of $50 per month. 
     On August 17, 1992, a second UIFSA petition was filed in
California alleging an arrearage of $3,485.18 as of July 31, 1992,
and asking that Pulaski County Chancery Court reduce it to
judgment.  The petition reflected that the total was calculated by
subtracting the $825 West had paid from the previous consent
judgment of $4,310.18.  Again, interest was not mentioned in the
petition.  On November 3, 1993, a second order was entered in
Pulaski Chancery granting judgment to the State of California in
the amount of $4,094, and stating that West agreed to amortize the
arrearage through payments of $100 per month, effective November 1,
1993.  The order also stated that no current support was due
because Melissa had become emancipated.  Melissa's eighteenth
birthday was August 12, 1993.  West subsequently paid the judgment
and a "Satisfaction of Judgment" was filed for record on January 9,
1996.
     Subsequent to West's satisfaction of the judgment, California
caused to be filed in Stanislaus County Superior Court a wage-
assignment order alleging that West owed $7,546.23 as of January
31, 1996.  The order required that West's employer pay over to
Stanislaus County $125 per month.  California also intercepted
West's $220 income tax refund.  
     On August 2, 1996, West filed in Pulaski County Chancery Court
a motion for declaratory and injunctive relief, alleging that he
had completely satisfied the judgment against him and praying that
the court find that he owed no additional child support, enjoin
California and his ex-wife from collecting any further monies, and
order California to disgorge his tax refund and the money it had
collected pursuant to the wage assignment.
     California opposed West's motion in a responsive pleading and
enlisted the Arkansas Office of Child Support Enforcement (OCSE) to
represent it at a January 14, 1997, hearing.  After filing
responsive pleadings, however, according to OCSE's trial counsel,
California was not very forthcoming with regard to specific
information upon which OCSE could offer a defense, and OCSE did
little on its own to oppose West's motion.  The following exchange
between OCSE's trial counsel, Ann Dodson, and the chancellor at the
hearing is illustrative:
     THE COURT:  All right, explain to me again.

     MS. DODSON:  Well, we believe that California is claiming
     an interest, which is how they arrived at the Seven
     Thousand --

     THE COURT:  (Interposing)  But you don't know.  Is that
     right?

     MS. DODSON:  They have not sent us a transmittal.

     THE COURT:  Have you requested one from them?

     MS. DODSON:  Yes, they got notice of Mr. Tripcony's
     Motion, and Mr. Dirden was in touch with them about
     giving us a transmittal, and we haven't heard from them. 
     We believe they're relying on those cases, Tannebaugh
     (sic) versus Hall and Troxell, Arkansas Supreme Court
     cases saying that Arkansas Orders don't nullify another
     state's Order, and, therefore, they have the right to
     enforce it.

     THE COURT:  Yeah, but they're not here today.  What about
     that?

     MS. DODSON:  They don't have the information to us (sic)
     and I believe --- I'm just here to offer those cases on
     their behalf.  That's it, Your Honor.
      OCSE nonetheless attempted to explain how California arrived
at the arrearage italleged in its 1996 order, without success.  The
chancellor subsequently entered an order finding that West had
satisfied in full his child-support obligations and that no further
support was owed.  Additionally, the court ordered California to
pay over all monies confiscated from West since January 9, 1996,
and enjoined West's employer from paying any further money pursuant
to the wage assignment.
     On appeal, California argues that the chancery court was
clearly erroneous in ruling that West did not owe any child-support
arrearages or reimbursement for government assistance, and erred in
enjoining appellant from collecting the 1996 arrearage pursuant to
a wage-withholding order issued to West's employer.  California
acknowledges that a Satisfaction of Judgment was entered in this
case, but argues that it pertained only to the 1993 order entered
by Pulaski County Chancery Court and that the arrearage not
affected by the Satisfaction of Judgment remains valid until it is
paid in full.  Relying on Jefferson County Child Support
Enforcement Unit v. Hollands, 327 Ark. 456, 939 S.W.2d 784 (1997),
which it says stands for the proposition that, absent express words
of nullification, underlying support orders are unaffected by the
orders entered pursuant to URESA or UIFSA relating to the
enforcement of the support obligation, California contends that the
two Arkansas orders did not impair California's right to collect
interest on the arrearage in accordance with California law.  These
arguments fail to persuade.
     First, California's reliance on Jefferson County Child Support
Enforcement Unit v. Hollands, is clearly misplaced as this
authority addresses an issue not now before us.  Unlike the court
in Hollands, the Pulaski County Chancery Court did not enter a
support order or adjust West's current support obligation; it
merely reduced the arrearage to judgment and ordered a monthly
payment to amortize the judgment.  The fact that an additional
arrearage might or might not exist was not argued in Arkansas
pursuant to either the 1991 or 1992 UIFSA petitions.  
     Regarding California's arguments concerning the imposition of
interest on the arrearage, it is not disputed that California could
have asked for interest at the time it transmitted its UIFSA
petitions to Arkansas; indeed the form that California transmitted
to Arkansas had a section for claiming interest payments that had
not been filled in.  In Wells v. Arkansas Pub. Serv. Comm'n, 272
Ark. 481, 616 S.W.2d 718 (1981), our supreme court defined the
doctrine of res judicata as a final adjudication on the merits,
without fraud or collusion, by a court of competent jurisdiction on
a matter litigated or which might have been litigated. 
Accordingly, we find the issue of whether interest is owed on the
arrearage encompassed by the 1993 order is res judicata.
     Finally, as to California's argument that the chancellor was
clearly erroneous in ruling that West owed no additional child
support, we note from the transcript of the hearing that OCSE was
unable to tell the trial court how California had calculated the
arrearage, what portion of the arrearage was interest, and how that
interest was calculated.  Although we may surmise from the
abstracted comments of the chancellor and trial counsel that the
record of West's child-support payments were before the trial
court, California has failed to abstract any of those records. 
     It is axiomatic that the record on appeal is limited to what
is abstracted and the burden is clearly placed on the appealing
party to provide an abstract sufficient for appellate review.
Oliver v. Washington County, 328 Ark. 61, 940 S.W.2d 884 (1997).
Arkansas appellate courts will not examine the transcript of a
trial to reverse a trial court.  Id.   
     Although this court reviews chancery cases de novo, it will
not disturb a chancellor's findings unless they are clearly against
the preponderance of the evidence.  Harrington  v. Harrington, 55
Ark. App. 22, 928 S.W.2d 806 (1996).  Absent clear evidence of how
California calculated the alleged arrearage, it is impossible to
say that the chancellor's finding was clearly against the
preponderance of the evidence.  
     Affirmed.
     Bird and Meads, JJ., agree.