Annelyse Marie Roe and Deborah Roe v. Ronald Wright, Jr.

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION IV

ANNELYSE MARIE ROE AND

DEBORAH ROE

APPELLANTS

V.

RONALD WRIGHT, JR.

APPELLEE

CA05-880

FEBRUARY 22, 2006

APPEAL FROM THE FRANKLIN COUNTY CIRCUIT COURT

[NO. DR 2005-9]

HON. DENNIS SUTTERFIELD,

CIRCUIT JUDGE

APPEAL DISMISSED

Josephine Linker Hart, Judge

Annelyse Marie Roe and Deborah Roe (hereinafter "the Roes") attempt to appeal from an order of the Franklin County Circuit Court that established that Ronald Wright was the biological father of Annelyse's two-year-old son and concomitantly transferred custody to Wright. On appeal, the Roes argue that the trial court erred by not setting aside the paternity decree; by failing to provide the child's grandmother, Deborah Roe, with notice and an opportunity to be heard; and by taking judicial notice of disputed facts. We dismiss this appeal because this case is not yet ripe for our review.

Annelyse Marie Roe is the biological mother of Cody Brian Roe, born May 10, 2003. On January 19, 2005, Wright filed a petition to establish that he was the biological father and transfer custody to him, purportedly with the consent of Annelyse. The next day, Annelyse, who was eighteen years old and not represented by counsel, signed an acknowledgment of receipt of Wright's petition, waiver of service, and entry of appearance. These documents were prepared by Wright's attorney. On January 28, 2005, Deborah Roe filed a motion to

intervene in the paternity case, and she filed a motion for permanent guardianship of Cody that same day. Hearings were twice set on these motions, but continued at the request of the Roes' attorney. Meanwhile, a paternity decree that also provided that Wright would assume custody of Cody was entered on April 7, 2005.

The Roes moved to set aside that portion of the paternity order that awarded custody to Wright. On April 19, 2005, the Roes came before the trial judge and argued that the paternity order should not have been entered without Deborah Roe being given notice and an opportunity to be heard as required by Arkansas Code Annotated section 9-13-101(Repl. 2002). After hearing arguments of counsel, the trial judge decided that there were factual issues that he would have to resolve, and he set a future hearing for May 3, 2005, to take evidence.

At the May 3, 2005, hearing, the trial judge read the pleadings and stated that the waiver that Annelyse signed proved that it was "simply not true" that she did not know that she was giving up custody. The trial judge then asked the Roes' attorney what her clients' position on this matter was, and the attorney asserted that there was "some question . . . about the defendant's signature, the validity of it, whether or not it was actually her signature on the decree of paternity." The Roes' counsel, however, conceded that she had not made this allegation in the pleadings that she had filed, and asked the court for leave to amend the pleadings to include this new allegation. Nonetheless, the Roes also requested that the trial judge take up the issue concerning Wright's failure to give Deborah Roe notice of the prayer for change of custody that was included in the paternity petition. The trial judge granted the request to amend the pleadings, but refused to take up the notice issue at that time so that he would not resolve the issues "piece meal." He ordered that the matter be heard at a later date, and entered a temporary order establishing visitation for the Roes. The Roes then filed a notice of appeal, challenging the entry of the April 7, 2005, paternity order.

Under these facts, we believe that an appeal in this matter is premature. While it may well be true that Deborah Roe was entitled to notice in accordance with Arkansas Code Annotated section 9-13-101,1 any decision to set aside the paternity order in this case must necessarily rest upon a factual determination that Deborah Roe met the criteria set out in the statute. The Roes have not yet taken the opportunity to present evidence to this effect. In fact, we are aware that at the time that the Roes filed their notice of appeal, a hearing on this very issue had been scheduled for September 8, 2005. Arkansas courts subscribe to the ripeness doctrine that allows matters to be heard on appeal if the legal issues involved are sufficiently evolved to allow a clear decision in the case. See generally Ford v. Arkansas Game & Fish Com'n, 335 Ark. 245, 979 S.W.2d 897 (1998). We therefore dismiss this appeal and reinvest jurisdiction in the trial court for the further development of the factual issues in this case.

We are mindful that Wright has asserted in his appellee brief that "even if the statute was not strictly complied with" Deborah Roe's attorney received notice of his intent to enter the paternity order and, in accordance with Rule 60(a) of the Arkansas Rules of Civil Procedure, the trial court lost jurisdiction to set aside the paternity order after the expiration of ninety days. Because this argument concerns jurisdiction, we will briefly address why we find this argument to be unpersuasive.

Wright asserts that he sent to the Roes' attorney two facsimiles indicating his intention to get the paternity order entered and therefore this correspondence "constitute[s] proper notice." However, it is settled law that the technical requirements of Rule 4 of the Arkansas Rules of Civil Procedure must be strictly complied with. Williams v. Citibank (South Dakota), N.A., 80 Ark. App. 42, 90 S.W.3d 451 (2002). While it is true that Rule 5 of the Arkansas Rules of Civil Procedure allows service upon a person represented by counsel via "electronic transmission," suffice it to say that these so-called "communications" do not comply with Rule 4 because they did not include the paternity petition with its custody provisions that Rule 4 requires to be served. As to Wright's contention that the trial court lost jurisdiction to set aside the decree after ninety days, when a decree is entered without proper notice to an affected party, the ninety-day limitation in Rule 60 does not apply. Gilbreath v. Union Bank, 309 Ark. 360, 830 S.W.2d 854 (1992).

Appeal dismissed.

Neal and Bird, JJ., agree.

1 In pertinent part, the statute provides:

(2)(B)(i) A grandparent shall be entitled to notice and shall be granted an opportunity to be heard in any child custody proceeding involving a grandchild who is twelve (12) months of age or younger when:

(a) A grandchild resides with this grandparent for at least six (6) continuous months prior to the grandchild's first birthday;

(b) The grandparent was the primary caregiver for and financial supporter of the grandchild during the time the grandchild resided with the grandparent; and

(c) The continuous custody occurred within one (1) year of the date the child custody proceeding was initiated.

(ii) A grandparent shall be entitled to notice and shall be granted an opportunity to be heard in any child custody proceeding involving a grandchild who is twelve (12) months of age or older when:

(a) A grandchild resides with this grandparent for at least one (1) continuous year regardless of age;

(b) The grandparent was the primary caregiver for and financial supporter of the grandchild during the time the grandchild resided with the grandparent; and

(c) The continuous custody occurred within one (1) year of the date the child custody proceeding was initiated.

(iii) Notice to a grandparent shall be given by the moving party.

(3) For purposes of this section, "grandparent" does not mean a parent of a putative father of a child.

(4)(A) The party that initiates a child custody proceeding shall notify the circuit court of the name and address of any grandparent who is entitled to notice under the provisions of subdivision (a)(1) of this section.

(B) The notice shall be in accordance with § 16-55-114.