Bobby Bell v. Office of Child Support Enforcement

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

TERRY CRABTREE, JUDGE

DIVISION I

BOBBY BELL

APPELLANT

V.

OFFICE OF CHILD SUPPORT ENFORCEMENT

APPELLEE

CA 00-856

MAY 23, 2001

APPEAL FROM THE ARKANSAS COUNTY CHANCERY COURT

[NO. E-93-55]

HONORABLE RUSSELL ROGERS,

CHANCERY JUDGE

DISMISSED

The appellant, Bobby Bell, and the appellee, the Office of Child Support Enforcement, are involved in a paternity dispute. We dismiss for lack of an appealable order.

On July 28, 1987, Ms. Cheryle Barber filed suit against Mr. Marvin Lewis in Arkansas County Chancery Court, alleging that Mr. Lewis was the father of her child, Eletlse Barber, born July 18, 1986. Mr. Lewis signed a "Waiver Of Service And Entry Of Judgment" in which he admitted paternity and agreed to pay child support. On July 31, 1987, a judgment was entered adjudicating Mr. Lewis as the father of Eletlse. In 1995, at a subsequent hearing to increase his child support, Mr. Lewis requested a paternity test. The Office of Child Support Enforcement (OSCE), as assignee of Ms. Barber, objected to the paternity test. Mr. Lewis was granted a paternity test, and the results of the paternity test

excluded him as the biological father of Eletlse.

Ms. Barber then informed OSCE that appellant, Bobby Bell, may be Eletlse's father. On February 1, 1999, appellant took a paternity test. The results of the paternity test listed the probability of paternity for appellant as 98.89%, thereby concluding that appellant could not be excluded as the biological father of Eletlse. On March 17, 1999, OSCE filed a paternity complaint against appellant in Prairie County Chancery Court. On March 30, 1999, OSCE filed a motion to set aside the July 31, 1987, judgment adjudicating Mr. Lewis as Eletlse's father. On April 1, 1999, the Arkansas County Chancery Court entered an order setting aside the July 31, 1987, judgment of paternity against Mr. Lewis.

On May 10, 1999, appellant filed a motion to dismiss OSCE's complaint arguing res judicata, and that Ark. Code Ann. § 9-10-115(c) deprived the Arkansas County Chancery Court of the authority to modify a judgment of paternity more than five years after an adjudication or acknowledgment of paternity. On May 25, 1999, appellant filed a motion in Prairie County Chancery Court seeking to join his case with the existing paternity case against Mr. Lewis in Arkansas County. On August 10, 1999, the Prairie County Chancery Court transferred appellant's case to Arkansas County Chancery Court, but refused to join appellant's case with the case against Mr. Lewis.

On October 25, 1999, appellant filed a motion in Arkansas County Chancery Court to set aside the court's April 1, 1999, order which set aside the July 31, 1987, judgment of paternity adjudicating Mr. Lewis as the father of Eletlse. On April 10, 1999, the Arkansas County Chancery Court entered an order denying appellant's motion to set aside the April1, 1999, order and ordered appellee to proceed with its action against appellant, to establish paternity. From the April 10, 1999, order, appellant brings this appeal.

An order is not final when it adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties. Norman v. Norman, 342 Ark. 493, 30 S.W.3d 83 (2000). For an order to be final, it must dismiss the parties from the trial court, discharge them from the action, or conclude their rights to the subject matter in controversy. Reed v. Arkansas State Highway Comm'n, 341 Ark. 470, 17 S.W.3d 488 (2000). An order must be of such a nature as to not only decide the rights of the parties, but also to put the court's directive into execution, ending the litigation or a separable part of it. Id.

Here, the April 10, 1999, order was not final. The chancellor stated in the order that appellee may proceed with its action against appellant, to establish paternity. There has been no final action as to appellee's original complaint against appellant filed on March 17, 1999. Appellee's original complaint sought to establish appellant as the father of Eletlse. Thus, the court's April 10, 1999, order does not adjudicate all of the rights and liabilities of all of the parties. Therefore, we dismiss this appeal.

Dismissed.

Stroud, C.J., and Hart, J., agree.