Johnnie Russell McGee v. Teresa Lynn McGee
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DIVISION IV
CA06-1342
S EPTEMBER 19, 2007
JOHNNIE RUSSELL MCGEE
APPELLANT
APPEAL FROM THE COLUMBIA
COUNTY CIRCUIT COURT
[NO. E92-531-1]
V.
HON. HAMILTON H. SINGLETON,
JUDGE
TERESA LYNN MCGEE
APPELLEE
AFFIRMED
SAM BIRD, Judge
Appellant Johnnie Russell McGee and appellee Teresa Lynn McGee Winkler were
divorced on January 5, 1994. This appeal arises out of an order of the Columbia County
Circuit Court entered on May 11, 2006, holding that the parties’ divorce decree was res
judicata on the issue of paternity, requiring appellant to pay child support, and denying
appellant’s request for paternity testing. Appellant presents three points on appeal: (1) the trial
court erred in applying the doctrine of res judicata where the parties agreed before the divorce
that appellant would not challenge paternity and appellee would not make appellant
responsible for child support or medical bills; (2) the trial court erred in failing to find that
appellee was estopped from seeking child support; and (3) the trial court erred in modifying
appellant’s child-support obligation without requiring appellee to meet her burden of
establishing a change of circumstances sufficient to warrant modification. We find no error
and affirm.
The parties were married on July 12, 1991, and divorced on January 5, 1994. On
August 13, 1993, appellee gave birth to twins. The divorce decree stated that two children
were born of the marriage and awarded custody to appellee but provided that appellant would
pay no child support. This case began in February 2005 when appellee filed a petition
alleging that the circumstances of the parties had changed and requesting the court to order
appellant to pay child support, provide insurance, and be responsible for the children’s medical
expenses. Appellee also asked the court to order restitution from the date of the divorce
decree. Appellant responded, asserting estoppel and fraud because the parties agreed before
they divorced that appellant would not be responsible for child support or medical bills if he
would not contest paternity. Appellant also filed a motion to require appellee and the
children to submit to DNA testing to determine the issue of paternity.
The trial court held a hearing on March 14, 2006. During the hearing, appellee
admitted that she was having an extramarital affair with another man during the time that the
twins were conceived and that she did not know whether he or appellant was the biological
father of the children. She also testified that appellant is listed as the father on the children’s
birth certificates and that the children think that appellant is their father. Appellant testified
that he and appellee both knew at the time of the divorce that he was not the father of the
children. He also said that, when they decided to end their marriage, they reached an
agreement that he would not challenge paternity of the children and, in exchange, she would
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not make him responsible for the payment of any child support or medical bills. Appellee
testified that she let appellant “handle it all,” that he was the only party represented by counsel
at the time, and that she did sign the papers providing that there were two children born of
the marriage and that appellant would not pay child support.
The trial court entered an order holding that the doctrine of res judicata barred relitigation of the finding of paternity in the original divorce decree, finding that appellant had
a full and fair opportunity to litigate the issue of paternity and chose not to do so. The trial
court also held that appellant mandated the terms of the agreement the parties may have
entered into regarding paternity of the children and he therefore could not assert fraud as a
basis for challenging paternity. The trial court rejected appellant’s defense of estoppel, finding
that appellant was aware of the facts regarding the paternity of the children and therefore did
not meet his burden of proving that he was ignorant of the facts. Finally, the court held that
any agreement between the parties regarding the non-payment of child support would not
be binding upon the children, who were not represented in the matter. The trial court then
ordered appellant to pay child support in the amount of $741 per month from February 14,
2005, the date appellee filed the petition for support, until the children reach the age of
eighteen or graduate high school, whichever last occurs. Appellant brought this appeal.
Our standard of review for an appeal from a child-support order is de novo, and we
will not reverse a finding of fact by the trial court unless it is clearly erroneous. Hardy v.
Wilbourne, ___ Ark. ___, ___ S.W.3d ___ (June 21, 2007). In reviewing a trial court’s
findings, we give due deference to that court’s superior position to determine the credibility
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of the witnesses and the weight to be accorded to their testimony. Id. We give no deference
to a trial court’s conclusions of law. Id.
I. Res Judicata
For his first point on appeal, appellant argues that the trial court erred in applying the
doctrine of res judicata because the issue of paternity was not fully contested in good faith.
Res judicata bars re-litigation of a claim in a subsequent suit if certain elements are present.
One of these elements is that the first suit was “fully contested in good faith.” State Office of
Child Support Enforcem’t v. Williams, 338 Ark. 347, 350, 995 S.W.2d 338, 339 (1999). Res
judicata bars not only the re-litigation of claims that were actually litigated in the first suit but
also those that could have been litigated. Id. If, however, there was “fraud or collusion in
the procurement of the first judgment,” res judicata does not apply. Nat’l Bank of Commerce
v. Dow Chem. Co., 338 Ark. 752, 759–60, 1 S.W.3d 443, 448 (1999). Appellant explains
that the reason he did not contest paternity in the divorce decree was because of an agreement
between appellee and him that he would not challenge paternity in exchange for her
agreement not to hold him financially responsible for the children. He argues that the trial
court erred in finding that he could not be rewarded for his own fraudulent conduct by being
allowed to relitigate paternity because appellee also perpetrated a fraud and was allowed to
relitigate child support. We disagree.
The supreme court has held that res judicata bars relitigation of the issue of paternity
when paternity was established under a divorce decree. Williams, 338 Ark. at 351, 995
S.W.2d at 339. The critical question regarding res judicata of the divorce decree on the issue
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of paternity is not whether child support was ordered but whether the issue of paternity was
decided and, if so, whether appellant had a full and fair opportunity to litigate the issue. Id.
If it was decided and appellant did have such an opportunity, the divorce decree is res judicata
on that issue.
In the case before us, the divorce decree stated that there were two children born of
the marriage and granted custody to appellee, subject to the reasonable visitation rights of
appellant. The issue of paternity, accordingly, was decided. We reject appellant’s argument
that he did not have a full and fair opportunity to litigate the issue. He testified that he knew
at the time the parties were divorced that paternity was in question and that he did not believe
that he was the father of the twins. In fact, the alleged agreement between the parties suggests
this was foremost on his mind. He simply chose not to litigate the issue. Res judicata bars
not only the relitigation of claims that were actually litigated in the first suit but also those that
could have been litigated. Williams, 338 Ark. at 350, 995 S.W.2d at 339. We agree with the
trial court’s determination that, if there was fraud involved here, appellant cannot be the
beneficiary of his own fraudulent conduct. Moreover, Williams strongly suggests that this is
not the type of fraud that will provide a “defrauded” father the opportunity to relitigate the
issue of paternity. Id. at 352, 995 S.W.2d at 340; see also Graves v. Stevison, 81 Ark. App. 137,
98 S.W.3d 848 (2003). We affirm the trial court’s holding that res judicata bars relitigation
of the finding of paternity in the original divorce decree.
II. Estoppel
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For his second point on appeal, appellant argues that the trial court erred in failing to
find that appellee was estopped from seeking child support because appellant relied to his
detriment on appellee’s promise not to seek child support in exchange for his promise not to
challenge paternity. First and foremost, it is settled law in this state that the duty of child
support cannot be bartered away permanently to the detriment of the child. Storey v. Ward,
258 Ark. 24, 523 S.W.2d 387 (1975); Paul M. v. Teresa M., 36 Ark. App. 116, 818 S.W.2d
594 (1991). The trial court always retains jurisdiction and authority over child support as a
matter of public policy and, no matter what an independent contract states, either party has
the right to request modification of a child-support award. Crow v. Crow, 26 Ark. App. 37,
759 S.W.2d 570 (1988) (holding agreement not to seek any increases or decreases in child
support void as against public policy). Child support is an obligation owed to the child and,
even in the absence of a court order requiring a parent to support his or her minor child, a
parent continues to have a legal and moral duty to do so. Akins v. Mofield, 355 Ark. 215,
225–26, 132 S.W.3d 760, 767 (2003) (citing Fonken v. Fonken, 334 Ark. 637, 976 S.W.2d 952
(1998)).
In Fonken, the supreme court held that Mrs. Fonken’s actions in telling Mr. Fonken
to stop paying child support, and his reliance thereupon, were insufficient to relieve Mr.
Fonken of his legal obligation to his minor child. In Paul M., we held that, to the extent the
father’s theory was founded upon the mother’s alleged agreement to take full responsibility
for their child when she refused to have an abortion, such an agreement was not enforceable
because it was not supported by consideration and it violated public policy. Paul M., 36 Ark.
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App. at 118, 818 S.W.2d at 595. We explained that “the interests of minors have always been
the subject of jealous and watchful care by courts of chancery, and that a chancery court
always retains jurisdiction over child support as a matter of public policy . . .. Insofar as the
agreement at issue here represents an attempt to permanently deprive the child of support, it
is void as against public policy, and thus cannot form the basis for an actionable claim against
appellee.” Id. at 119, 818 S.W.2d at 595–96. See also Erwin L.D. v. Myla Jean L., 41 Ark.
App. 16, 847 S.W.2d 45 (1993) (holding that a mother’s agreement or assurances that she
would not pursue a paternity action to request support could not validly be interposed by a
putative father as a defense in paternity proceeding). We hold that the trial court did not err
in failing to find that appellee was estopped from seeking child support.
III. Change in Circumstances
Finally, appellant contends that the trial court erred in modifying appellant’s childsupport obligation without requiring appellee to meet her burden of showing a change in
circumstances sufficient to warrant modification. A change in circumstances must be shown
before a court can modify an order for child support, and the party seeking modification has
the burden of showing a change in circumstances. Reynolds v. Reynolds, 299 Ark. 200, 771
S.W.2d 764 (1989). Ordinarily, the amount of child support lies within the sound discretion
of the trial court, and that determination may be reviewed and modified to serve the best
interests of the children when there are changed circumstances. Ross v. Ross, 29 Ark. App.
64, 776 S.W.2d 834 (1989). A trial court’s determination as to whether there are sufficient
changed circumstances to warrant an increase in child support is a finding of fact, and we will
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not reverse this finding unless it is clearly erroneous. Roland v. Roland, 43 Ark. App. 60, 859
S.W.2d 654 (1993).
In determining whether there has been a change in circumstances warranting an
adjustment in support, the court should consider remarriage of the parties, a minor’s reaching
majority, change in the income and financial conditions of the parties, relocation, change in
custody, debts of the parties, financial conditions of the parties and families, ability to meet
current and future obligations, and the child-support chart. Woodson v. Johnson, 63 Ark. App.
192, 195, 975 S.W.2d 880, 881 (1998) (quoting Roland, 43 Ark. App. at 63–64, 859 S.W.2d
at 656). It is mandatory that a trial court refer to the family-support chart in making a
determination of what is a reasonable amount of child support. Ark. Code Ann. § 9-14-106
(Repl. 2002). This statute creates a rebuttable presumption that the amount contained in the
family-support chart is the correct amount of child support to be awarded. Id.
In reviewing a trial court’s findings regarding child support, we give due deference to
that court’s superior position to determine the credibility of the witnesses and the weight to
be accorded to their testimony. Hardy v. Wilbourne, ___ Ark. ___, ___ S.W.3d ___ (June 21,
2007). Over twelve years have passed since the divorce decree awarding no child support was
entered in this case. Appellee testified that the children had gotten older, that they played
ball, had medical expenses, and quickly outgrew clothing and shoes. She added that “the
need is never ending.” The parties agreed on the amount of appellant’s income for purposes
of the family-support chart. Moreover, the only deviation that the trial court made from the
family-support chart was a credit given to appellant for his two children that live in his home.
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See Freeman v. Freeman, 29 Ark. App. 137, 778 S.W.2d 222 (1989) (noting that the fact that
the child support ordered was in conformity with the chart was an indication that it was not
clearly erroneous). We have examined the evidence in the record and, affording the trial
court the deference to which it is entitled, we cannot say that its determination that there
were sufficient changed circumstances to warrant an increase in child support is clearly
erroneous.
Accordingly, we affirm.
M ARSHALL and H EFFLEY, JJ., agree.
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