Harold D. White v. Office of Child Support Enforcement and Laura I. Hogan

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

LARRY D. VAUGHT, JUDGE

DIVISION IV

HAROLD D. WHITE

APPELLANT

V.

OFFICE OF CHILD SUPPORT ENFORCEMENT, and

LAURA I. HOGAN

APPELLEES

CA01-253

October 10, 2001

APPEAL FROM THE BENTON COUNTY CHANCERY COURT

E-98-1218-2

HON. DONALD R. HUFFMAN, JUDGE

AFFIRMED

This is an appeal from a chancery court order finding that Harold White failed to comply with a March 10, 1999, child support order and that he was in arrears in the amount of $1522.80. Appellant raises four issues on appeal that relate to whether the trial court erred in denying his motion to vacate the March 10th order. He argues that the order did not comply with Ark. Code Ann. § 9-17-305(c) & (e)(Repl. 1998), which require the trial court to specifically include the calculations on which the support is based and to send a copy of the order to the parties. We affirm.

Laura I. Hogan and Harold D. White were married on August 6, 1984, in Mountain Home, Arkansas. Their daughter, Yolanda White, was born February 22, 1986. On October 20, 1995, Ms. Hogan obtained an in rem divorce from Mr. White in Kansas. The Kansas court lacked personal jurisdiction over Mr. White because his whereabouts were unknown. It therefore granted sole custody of Yolanda to Ms. Hogan, but did not order Mr. White to pay child support.

On July 1, 1998, Ms. Hogan and the Support Enforcement Services of Louisiana, through the Central Interstate Registry, Arkansas Child Support Enforcement Unit, filed a petition forestablishment of child support against Mr. White in Benton County Chancery Court. The petition was filed pursuant to the Uniform Interstate Family Support Act (UIFSA). Mr. White filed an answer and a request for a paternity test on July 31, 1998. The hearing on the petition for support took place on January 20, 1999. Both parties were represented by counsel, although appellant did not appear in person. On March 10, 1999, the trial court ordered that appellant pay child support in the amount of $54.00 per week. A copy of the March 10th order was sent by the Office of Child Support Enforcement (OCSE) to Mr. White's counsel on March 11, 1999.

OCSE and Ms. Hogan filed a motion for contempt on May 31, 2000, alleging that Mr. White had failed to comply with the March 10th order by failing to pay child support. At the time the motion was filed, OCSE stated that Mr. White owed $658.80 in back support. In response, Mr. White admitted knowledge of the March 10th order, but denied knowledge of its contents until the motion for contempt had been filed. Mr. White contended that he did not willfully fail to comply with the order because he did not receive it. Subsequently, on July 19, 2000, Mr. White filed a motion to vacate the March 10th order based on the following: (1) that the order does not include the calculations on which the support order is based as required by Ark. Code Ann. § 9-17-305(c) and without such calculations the order is invalid; (2) that Mr. White did not personally attend the January 20th hearing having been told by his attorney that he did not have to attend; (3) that the order incorrectly stated that Mr. White attended the hearing; and (4) that the March 10th order was not sent to Mr. White as required by Ark. Code Ann. § 9-17-305 and was therefore invalid. It was further alleged that the non-compliance of the order with Ark. Code Ann. § 9-17-305(c) & (e) and the insufficiency of process of the order was not discovered until the motion for contempt was filed, and thus the trial court had the authority to vacate the order under Ark. R. Civ. P. 60. OCSE responded by asking that the motion be dismissed.

A hearing was held on September 19, 2000, and the trial court entered an order on October 5, 2000, dismissing Mr. White's motion to vacate and finding that appellant failed to comply with the March 10th support order. However, the trial court found that Mr. White was not in contempt because his failure to comply was not willful. The court further granted OSCE and Ms. Hogan a judgment against Mr. White in the amount of $1522.80 for unpaid child support and ordered, inter alia, that Mr. White pay $54.00 per week in child support. From that decision, comes this appeal.

For his first and second points of appeal, appellant contends that the trial court erred in denying his motion to vacate the March 10th order on the grounds it did not comply with Ark. Code Ann. § 9-17-305(c) because it did not contain the calculations that served as the basis for the order and therefore the order was void and unenforceable. Arkansas Code Annotated section § 9-17-305(c) provides: "A responding tribunal of this state shall include in a support order issued under this chapter, or in the documents accompanying the order, the calculations on which the support order is based." Because this provision uses the word "shall," appellant argues that the requirement is mandatory and that the court's failure to provide the calculations as part of the order renders the order void and unenforceable.

As a threshold issue, appellant argues that the chancellor's order is void because he failed to comply with Ark. Code Ann. § 9-17-305(c) & (e). We have long recognized the difference between void and voidable judgments. See, e.g., Davis v. Schimmel, 252 Ark. 1201, 482 S.W.2d 785 (1972); see also Filk v. Beatty, 298 Ark. 40, 764 S.W.2d 454 (1989). In Davis, the supreme court, quoting McDonald v. Ft. Smith & W.R. Co., 105 Ark. 5, 150 S.W. 135 (1912), addressed the distinction:

`When a judgment is not a mere nullity, but only contains some defect which may become fatal and render it invalid, then it is only voidable, and, until it is actually annulled, it has all the force and effect of a perfectly valid judgment. Until by a proper proceeding such judgment is reversed or vacated, it will be effective ... as an estoppel or as a source of title.A judgment rendered by a court without jurisdiction is void; and, to have such jurisdiction, the court must have jurisdiction both over the subject matter of the suit and the parties thereto.

...

A judgment pronounced against one without notice is void; and section 4424 of Kirby's Digest [Ark. Stat. Ann. 29-107] is a statutory declaration of that principle.'

Here, the chancellor had jurisdiction over the subject matter and the parties. In addition, appellant was provided with notice of the proceedings and received notice of the child-support order. Therefore, any failure by the trial court to comply with the statutory requirements of Ark. Code Ann. § 9-17-305 would not render the order void, but merely voidable.

OSCE challenges Mr. White's appeal of the motion to vacate because he did not comply with the requirements of Ark. R. Civ. P. 60. Rule 60(a) provides "To correct errors or mistakes or to prevent the miscarriage of justice, the court may modify or vacate a judgment, order or decree on motion of the court or any party, with prior notice to all parties, within ninety days of its having been filed with the clerk." Notwithstanding subsection (a), the court may correct clerical errors at any time. In addition, subsection (c) provides that the ninety-day rule does not apply under certain circumstances, none of which are applicable to the present case. Appellant did not file his motion to vacate until July 19, 2000, more than a year after the March 10, 1999 order was entered. Appellant claims that he did not discover the court's failure to comply with the statutory requirements until the motion for contempt was filed; however, as discussed below, there was testimony that a copy of the order was sent to his attorney and to him by his attorney. Likewise, Mr. White did not provide a valid defense to the order in his motion to vacate or make a prima facie showing of a valid defense at the hearing, which are requirements of Ark. R. Civ. P. 60(d). To reverse the trial judge's decision on the motion to vacate, we must find that he abused his discretion. Grubbs v. Hall, 67 Ark. App. 329, 999 S.W.2d 693 (1999). Because Mr. White's motion to vacate was untimely and did not comply with Rule 60, we cannot say that the trial court abused itsdiscretion in denying the motion to vacate.

Even if Mr. White had filed a timely motion to vacate, we could not say that the trial court abused its discretion in denying the motion. Appellant is now trying to avoid paying child support on purely technical grounds after he paid support for over a year. Upon questioning by the court, Mr. White admitted that it was wrong for him to stop paying support and that he wanted to pay support. Victoria Morris, the attorney who represented him at the January 20, 1999, hearing, testified that the parties reached a resolution of the support issue and that the resolution was written into the order. Appellant executed an affidavit of financial means the day following the hearing, which indicated that he earned $233.90 per week.

Pursuant to the Family Support Chart provided in In re Administrative Order Number 10, 329 Ark. Appx. 668 (1997), if a payor earns $230 dollars a week, the amount of support to be paid for one child is $54.00 per week. Administrative Order Number 10 states as follows:

It is a rebuttable presumption that the amount of child support calculated pursuant to the most recent revision of the Family Support Chart is the amount of child support to be awarded in any judicial proceeding for divorce, separation, paternity, or child support. The court may grant less or more support if the evidence shows that the needs of the dependents require a different level of support.

Id. at 669. Based upon a review of the affidavit of financial means, the amount Mr. White was ordered to pay was in compliance with the chart. Moreover, there is no dispute as to the amount of child support awarded or that the amount awarded was not consistent with the family-support chart. Therefore, the trial court did not abuse its discretion in denying the motion to vacate because there was substantial compliance with Ark. Code Ann. § 9-17-305(c).

For his third and fourth points of appeal, Mr. White argues that the trial court erred in denying his motion to vacate the March 10th order on the grounds that it did not comply with Ark. Code Ann. § 9-17-305(e) and because of this the order was void and unenforceable. Again,appellant's argument lacks merit. Arkansas Code Annotated section 9-17-305(e) provides: " If a responding tribunal of this state issues an order under this chapter, the tribunal shall send a copy of the order to the petitioner and the respondent and to the initiating tribunal, if any." At the hearing on the motion for contempt, Ms. Morris testified that she mailed the order to Mr. White on April 8, 1999. The cover letter attached to the order was introduced at the hearing. While appellant claims he did not receive the letter, he recalled Ms. Morris calling him and telling him that he was to pay $54.00 per week in support. Additionally, he informed his employer that such amount needed to be deducted from his paycheck, and his employer deducted that amount from his paycheck from April 14, 1999, until March 8, 2000.

The Commentary to § 9-17-305 provides that subsection (e) introduces the policy that the petitioner, the respondent, and the initiating tribunal, if any, shall be kept informed of the responding tribunal's actions. It further states that first-class mail is sufficient for this purpose. Mr. White's attorney testified that she sent the order to him, and that it was not returned. The trial court stated at the hearing that the Court does not send notice to individual litigants, but rather sends orders through the attorneys if they are represented. Based on the facts of this case, we hold that there was compliance with Ark. Code Ann. § 9-17-305(e), and thus, the trial court did not abuse its discretion in denying the motion to vacate.

Affirmed.

Neal and Pittman, JJ., agree.