State of Arkansas, Office of Child Support Enforcement v. Tyaleah M. Leach
Annotate this Case
Download PDF
ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
ROBERT J. GLADWIN, JUDGE
DIVISION II
CA06-1451
JUNE 20, 2007
STATE OF ARKANSAS, OFFICE of
CHILD SUPPORT ENFORCEMENT
APPELLANT
V.
APPEAL FROM THE POLK COUNTY
CIRCUIT COURT
[NO. DR96-316]
HON. J.W. LOONEY,
JUDGE
TYALEAH M. LEACH
APPELLEE
REVERSED AND REMANDED
Appellant State of Arkansas, Office of Child Support Enforcement, appeals from the
Polk County Circuit Court’s decision that retroactively modified appellee Tyaleah Leach’s
child-support obligation.
On appeal, appellant argues that the circuit court erred in
retroactively abating child-support accrual from July 18, 2001, through December 31, 2004.
We reverse and remand.
Appellee and Darrell E. Page were married on April 8, 1995, and they divorced on
February 5, 1997. They had one child, a son K.P., D/O/B: November 29, 1994, and Mr.
Page was granted full custody at the time of the divorce. On February 10, 1999, appellant
intervened and filed a motion in the matter, and on May 3, 1999, the circuit court entered
a decree requiring, among other things, appellee to pay twenty-four dollars per week in child-
support payments.
On May 24, 2000, appellant filed a motion for citation regarding
appellee’s non-payment of court-ordered child support. Copies of the motion and notice of
hearing were served on appellee via first-class mail at her then current address in Gasden,
Alabama. On August 16, 2000, appellee and her attorney, Orvin Foster, appeared before the
circuit court on the motion, and on August 29, 2000, the circuit court entered an order that
temporarily abated appellee’s weekly child-support obligation because of her inability to work
while caring for her critically ill child.1 The order required appellee to provide appellant with
documentation of the child’s medical condition, and further provided that “this cause may be
reviewed after a six-month period from the filing of the order herein, and notice of said
hearing may be served upon [appellee] by first class mail.”
On April 25, 2001, and again on May 16, 2001, notice of a review hearing on the
matter was mailed, via first-class mail, to appellee’s attorney, Mr. Foster, in an attempt to serve
notice on appellee. Apparently, by that time, appellee had taken up residence in Rainbow
City, Alabama, unbeknownst to either Mr. Foster, appellant, or the relevant court personnel,
and she never received notice of the review hearing. The review hearing was held on July
18, 2001, and appellee was not present. There is no transcript of that hearing in the record,
and there is no evidence as to whether or not appellee’s attorney was present. On August 7,
1
The child was born with brain damage, had a tracheotomy and a feeding tube, and
required constant care from appellee to the point that she was unable to work. He passed
away on April 7, 2004.
-2-
2001, the circuit court entered an order reinstating appellee’s child-support obligation and,
among other things, relieving Mr. Foster as her counsel of record.2
The next pleading in the record is a subsequent motion for citation filed by appellant
on March 17, 2006, requesting that appellee be ordered to pay an arrearage of child-support
payments in the amount of $7,704, as of the last day of February 2006. That motion was
served by certified mail, restricted delivery, return receipt requested, to appellee at an address
in Mena, Arkansas, where she stayed with friends from time to time after moving to
Oklahoma in 2004 after the death of her child. On May 18, 2006, an order to appear and
show cause was entered by the circuit court, and served on appellee through her previous
attorney, Mr. Foster. A hearing on the matter was ultimately held on July 10, 2006, with
both appellee and Mr. Foster in attendance, and on September 21, 2006, the circuit court
entered an order abating retroactively the accrued child-support between July 18, 2001, and
the end of December 2004, leaving a balance due as of July 10, 2006, in the amount of
$3,345. The circuit court based the abatement on the reasoning that if appellee had not failed
to appear at the previous hearing on July 18, 2001, the court would have continued the
temporary abatement, and accordingly, he did so at that point in an attempt to balance the
equities. Appellant filed a timely notice of appeal on October 10, 2006.
2
The circuit judge and Mr. Foster discussed this issue at the final hearing and
neither could remember whether Mr. Foster filed a motion to be relieved, verbally
expressed his request during court, or asked appellant to add the provision in the order,
but Mr. Foster indicated that he likely sought to be relieved as counsel because he had
been unable to contact appellee. There is no supporting documentation on this matter in
the record.
-3-
Our standard of review for an appeal from a child-support order is de novo on the
record, and we will not reverse a finding of fact by the circuit court unless it is clearly
erroneous. Tucker v. Office of Child Support Enforcem’t, 368 Ark. 481, __ S.W.3d __ (2007).
A finding is clearly erroneous when the reviewing court, on the entire evidence, is left with
a definite and firm conviction that a mistake has been made. Id. We give due deference to
the trial court’s superior position to determine the credibility of the witnesses and the weight
to be given their testimony. Id. In a child-support determination, the amount of child
support lies within the sound discretion of the trial court, and the lower court’s findings will
not be reversed absent an abuse of discretion. Id. However, a trial court’s conclusions of law
are given no deference on appeal. Id.
Arkansas Code Annotated sections 9-12-314 (b), (c) and 9-14-234 (b), (c) are identical
and state:
(b) Any decree, judgment, or order which contains a provision for the payment of
money for the support and care of any child or children through the registry of the
court or the Arkansas child support clearinghouse shall be final judgment subject to
writ of garnishment or execution as to any installment or payment of money which
has accrued until the time either party moves through proper motion filed with the
court and served on the other party to set aside, alter, or modify the decree, judgment,
or order.
(c) The court may not set aside, alter, or modify any decree, judgment, or order which
has accrued unpaid support prior to the filing of the motion. However, the court may
offset against future support to be paid those amounts accruing during time periods
other than reasonable visitation in which the noncustodial parent had physical custody
of the child with the knowledge and consent of the custodial parent.
Both our court and the supreme court have held that these provisions prohibit the
modification of a child-support order for a period prior to the filing of a motion requesting
-4-
a modification. See Burnett v. Burnett, 313 Ark. 599, 855 S.W.2d 952 (1993); Martin v. Martin,
79 Ark. App. 309, 87 S.W.3d 817 (2002).
Appellant admits that this court has recognized an equitable estoppel exception to the
prohibition against retroactive modification. See Taylor v. Payne, 95 Ark. App. 185, __
S.W.3d __ (2006); Office of Child Support Enforcem’t v. King, 81 Ark. App. 190, 100 S.W.3d
95 (2003); Barnes v. Morrow, 73 Ark. App. 312, 43 S.W.3d 183 (2001); Ramsey v. Ramsey, 43
Ark. App. 91, 861 S.W.2d 313 (1993); Roark v. Roark, 34 Ark. App. 250, 809 S.W.2d 822
(1991). However, appellant contends that appellee neither pled nor proved that Mr. Page had
taken any action that would be the basis of an equitable estoppel exception, which has been
applied only where a custodial parent has taken some action that would have led the payingnon-custodial parent to believe that support payments were no longer expected or required.
See Martin, supra. Appellant asserts that this was not the basis of the circuit court’s ruling,
which was based purely on speculation as to what the then-sitting circuit judge would have
done had appellee appeared for the July 18, 2001, hearing.
Appellee contends, and we agree, that the statutes to which appellant refers are not
applicable in this particular situation because the August 7, 2001, order reinstating her childsupport obligation was void from its entry. On April 25, 2001, appellant filed a notice of
hearing and attempted to notify appellee through first-class mail sent to her attorney, and
repeated the same notification process on May 15, 2001. There is no evidence before us that
service by first-class mail was ever sent directly to appellee, as specifically allowed in the order,
-5-
or that she ever had notice of the hearing, was represented there by counsel, filed any type of
responsive pleading, or was in any manner properly before the court.
At the June 10, 2006, hearing, appellee’s first appearance before the court since the
August 16, 2000, hearing that resulted in the original abatement of child support, appellee’s
attorney raised the issue of proper notice, which prompted a conversation between the circuit
judge and the parties’ attorneys as to whether Mr. Foster was still the attorney of record for
appellee at the time in question, whether it was proper to notify appellee of the review
hearing by notifying appellee’s attorney via first-class mail, and the lack of recollection and
information between all of them as to how, why, and when Mr. Foster requested to be
relieved as attorney of record. Additionally, the following colloquy occurred between
appellee and the circuit judge:
COURT: I need to ask you a question. Where were you living in 2001?
MS. LEACH: I was living at Cambridge Court - Cambridge Court.
COURT: Where might that be?
MS. LEACH: In Alabama, it’s a disability place for people that have disabilities. I
lived there because of my son.
COURT: On August 29 th you were living in Alabama?
MS. LEACH: Yes, sir.
COURT: Well, now, I’m just kind of curious. 506 Herzberg Circle.
MS. LEACH: Okay, that’s where I was living when I was pregnant withCOURT: Ma’am, I don’t need to know those things.
MS. LEACH: Oh.
-6-
COURT: I just need to knowMS. LEACH: Yes.
COURT: The answers to the questions. Well, apparently you got a letter from Mr.
Woodville.
MS. LEACH: That was the last time I received anything in 2000.
COURT: Well, I presume you employed Mr. Foster to represent you.
MS. LEACH: Yes.
COURT: You didn’t tell Mr. Foster where you lived?
MS. LEACH: Yes, yes, I did. But, then after I received this abandonment or
whatever that I didn’t have to pay child support, I didn’t know that I was going to
have to do anything else.
COURT: You didn’t read it?
MS. LEACH: Yes, yes, I read it, but my - I had an attorney in Alabama to send
papers to Mr. Woodville stating everything. From my understanding offrom [sic] they
said, I didn’t have to do anything else.
COURT: Well, that order dated August 29, 2000 that the Defendant’s current child
support of $24 per week is hereby temporarily - do you know what temporary means?
MS. LEACH: Yes, sir.
COURT: Abated for a period of six months. Now you got that, didn’t you?
MS. LEACH: That part I did, yes.
COURT: Yes.
MS. LEACH: But, I never received anything after that.
COURT: Oh, what were you supposed to have received after that?
MS. LEACH: I don’t know. I didn’t know.
-7-
COURT: Well, you knew it was stopped for six months, right?
MS. LEACH: Yes.
COURT: You didn’t think it was stopped forever, did you?
MS. LEACH: Yes, I did.
COURT: You did?
MS. LEACH: Yes.
COURT: You thought six months meantMS. LEACH: I thought after the six months they were going to send me more stuff
and tell me what I was supposed to do and I never received anything.
*****
COURT: Well, I believe that Mr. Foster and I - I can’t help but believe that he tried
to make an attempt - but it looks like you moved after you hired Mr. Foster.
MS. LEACH: Yes, sir.
COURT: Did you tell him where you moved to?
MS. LEACH: I think he knew that I was at Cambridge Courts.
COURT: How would he know that?
MS. LEACH: I had told him.
COURT: Well, I believe you got notice and I find it hard to accept your testimony
that you thought six months meant forever.
MS. LEACH: I didn’t quite understand it.
COURT: But you had a lawyer down there, why didn’t you ask your lawyer? Did
your lawyer tell you six months meant forever?
MS. LEACH: He told me that he would take care of it.
-8-
COURT: Yes, well, he’s not here to defend himself.
Rule 5(b)(1) of the Arkansas Rules of Civil Procedure provides in part that whenever
service is required or permitted to be made upon a party represented by an attorney, the
service shall be upon the attorney, except that service shall be upon the party if the court so
orders. The record is devoid of any evidence that appellee was ever sent copies of notices
of hearing on April 7, 2001, or May 15, 2001, via first-class mail, in compliance with the
specific allowances set out in the circuit court’s order entered on August 29, 2000.
Additionally, even if service upon appellee’s attorney had been proper under these
circumstances, there is insufficient evidence before us for this court to make a determination
as to whether Mr. Foster represented appellee at the time in question. There is simply no
evidence that appellee received any type of notice, written or otherwise, from Mr. Foster,
appellant’s counsel, or the circuit court informing her of another proceeding in the case. After
the hearing in 2000, appellee received a copy of the first order that temporarily abated her
support payments and she had an attorney in Alabama send the required information to
appellant’s attorney regarding her son’s medical condition and pending lawsuits; however, the
next communication she received on the case apparently was not until April 2006.
The standard of review reflects an extremely heavy burden upon an entity who
attempts service of process and notice of impending default. Meeks v. Stevens, 301 Ark. 464,
785 S.W.2d 18 (1990). Our supreme court has stated that the statutory service requirements,
being in derogation of common law rights, must be strictly construed, and compliance with
them must be exact; the same reasoning applies to service requirements imposed by court
-9-
rules. See Shotzman v. Berumen, 363 Ark. 215, 213 S.W.3d 13 (2005); Smith v. Sidney Moncrief
Pontiac Buick GMC Co., 353 Ark. 701, 120 S.W.3d 525 (2003). The only proof of service
offered with respect to the notice of the hearing that resulted in the reinstatement of child
support were two certificates of service showing that appellant had notified Mr. Foster, on
behalf of appellee, of the scheduled review hearing. Appellee argues that neither she nor Mr.
Foster had agreed that he could accept service on her behalf, and the question remains as to
whether he was representing her at the time in question. While this case does not deal with
the initial service at the beginning of the case, but rather notice of a subsequent review
hearing, the August 29, 2000, court order specifically stated that “notice of [a review] hearing
may be served upon the [appellee] by First Class Mail.” Appellant failed to obtain notice
upon appellee.
Accordingly, appellee contends, and we agree, that the circuit court was not obligated
to enforce the support provisions contained in the August 7, 2001, order, as it was void
because she was not properly before the court. We reverse the circuit court’s September 21,
2006, order in its entirety, and remand for further proceedings on the issue of appellee’s childsupport obligation subsequent to the August 29, 2000, order that originally abated her weekly
child-support obligation on a temporary basis.
Reversed and remanded.
M ARSHALL and M ILLER, JJ., agree.
-10-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
