State v. Phillippe

STATE of Arkansas v. Michael PHILLIPPE

95-529                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered February 12, 1996


1.   Parent & child -- child support -- modification of order --
     statute providing for relieving non-biological adjudicated
     father of future support held applicable. -- The supreme court
     held applicable to the present case Ark. Code Ann.  9-10-
     115(d) (Repl. 1993), which provides for modification of a
     child-support order to relieve of any future obligation of
     support an adjudicated father who is determined, based upon
     the results of scientific testing, not to be the biological
     father; although appellant initially filed an action that only
     sought child support, appellee and the mother of the child
     were married, and the issue of paternity was raised by the
     appellee as a defense to the support action.

2.   Statutes -- unambiguous language -- no need to resort to rules
     of statutory construction. -- Where the language of a statute
     is plain and unambiguous, there is no need to resort to rules
     of statutory construction; here, Ark. Code Ann.  9-10-115(d)
     plainly directs the court to relieve the alleged father only
     of future obligation of support.

3.   Parent & child -- child support -- order of refund reversed --
     contrary to preponderance of evidence and the law. -- The
     supreme court reversed the portion of the trial court's order
     of dismissal that required appellant to refund support
     payments and costs to appellee, concluding that the order of
     refund was contrary to the preponderance of the evidence and
     contrary to the law; the trial court was not authorized to
     relieve appellee of past support by the applicable statutes,
     which specifically set out the course of action the trial
     court shall take when an adjudicated father is later
     determined not to be the biological father.


     Appeal from Randolph Chancery Court; Tom L. Hilburn, Judge;
reversed and dismissed.
     Murrey L. Grider, for appellant.
     Steve Inboden, for appellee.

     Andree Layton Roaf, Justice.February 12, 1996 *ADVREP14*









STATE OF ARKANSAS,
                    APPELLANT,

V.

MICHAEL PHILLIPPE,
                    APPELLEE,





95-529



APPEAL FROM THE RANDOLPH COUNTY
CHANCERY COURT,
NO. E-92-27,
HON. TOM L. HILBURN, JUDGE,




REVERSED AND DISMISSED.



                  Andree Layton Roaf, Justice.

     The appellant, State of Arkansas, Child Support Enforcement
Unit (CSEU), appeals from the denial of a new trial in a child
support action in which the state was ordered to refund all child
support paid by appellee Michael Phillippe, following a blood test
which excluded him as father of the minor child for whom the
support had been paid.  The appellant asserts that the trial court
abused its discretion in failing to grant the new trial and that
the trial court lacked jurisdiction to award a judgment against the
state.  We reverse the award of refund.
     On February 21, 1992, appellant, as assignee of Glenda
Phillippe, an Aid for Families with Dependent Children (AFDC)
recipient, filed a petition for child support alleging appellee was
the father of Michael A. Phillippe, Jr., born on October 10, 1986. 
Appellee first answered pro se, admitting he was the father of the
child and that he and the mother of the child, Glenda Phillippe,
were married at the time.  Appellant filed an amended answer
through an attorney on August 10, 1992, denying that he was the
biological father of Michael A. Phillippe, Jr., and demanded that
a blood test be ordered by the court.  The court entered an order
for blood testing on September 29, 1992.  On December 3, 1992, the
trial court entered an order for support which recited that the
defendant did not appear, although he was served with summons and
his attorney had been notified of "this proceeding."
     On February 25, 1993, the appellee, through a new attorney,
moved to set aside the support order, alleging that his previous
attorney had failed to advise him of the order for blood test and
the notice of hearing.  The support order was not set aside and
appellant continued to collect support payments from appellee.  On
September 16, 1993, the court again ordered genetic testing to be
performed on the parties.  On January 13, 1994, appellee petitioned
the court to enter a finding of no paternity and asked that all
child support payments, past and future, be abated and all payments
made to the Child Support Enforcement Unit from February 25, 1993,
be refunded to appellee, because the mother and minor child had
refused to submit to paternity testing.  The appellant CSEU
obtained a contempt citation against the mother on June 8, 1994 for
refusing to obey the order for blood testing, the test was
subsequently performed, and DNA test results concluded that
appellee could not be the biological father of the child.  The
appellant CSEU then moved to dismiss the child support case against
the appellee.  The trial court dismissed the action against the
appellee with prejudice and also ordered the appellant to refund
all child support payments made by the appellee since November 22,
1992, in the sum of $5,939.00, plus clerk's cost totaling $48.00
and court costs totaling $65.77.
     The appellant moved for a new trial pursuant to A.R.C.P. Rule
59 on the basis that the order for refund was "contrary to the
preponderance of the evidence as well as contrary to the law." 
This motion was denied.  
     On appeal, the appellant raises two arguments.  Appellant
first contends that it was abuse of discretion for the trial court
to deny its motion for new trial.  Appellant argues that appellee
and his original attorney caused the support order to be entered by
default.  Appellant also submits that Ark. Code Ann.  9-10-115(d)
(Repl. 1993), found in the chapter dealing with paternity actions,
only allows the court to relieve appellee of future obligations of
support.  Appellant further contends that it was merely a "conduit"
for the support payments, and that Glenda Phillippe received all of
the funds as support or AFDC payments.
     We first note that the abstract and record do not contain any
transcripts of the hearings conducted in this matter.  However,
from the pleadings, blood test results, and orders contained in the
abstract, it appears that the following facts are not in dispute. 
A default order of child support was entered when neither appellee
nor his attorney appeared at trial; the default order found
appellee to be the father of his wife's minor child; appellant
collected child support from appellee pursuant to the order until
a court ordered paternity test revealed that he was not the
biological father of his wife's child; the trial court entered an
order dismissing the support action with prejudice and requiring
appellant to refund to appellee the support money it collected.  
     Furthermore, after entry of the order, appellant moved for a
new trial pursuant to Ark. R. Civ. P. 59(a)(6), which provides in
material part:
     A new trial may be granted to all or any of the parties
     on all or part of the claim on the application of the
     party aggrieved, for any of the following grounds
     materially affecting the substantial rights of such
     party: ... (6) the verdict or decision is clearly
     contrary to the preponderance of the evidence or is
     contrary to the law....

Arkansas Rule of Civil Procedure 59(f) further provides that  "A
motion for a new trial shall not be necessary to preserve for
appeal an error which could be the basis for granting a new trial." 
We can thus review the proceedings as abstracted to determine if
the decision of the trial court is clearly contrary to the
preponderance of the evidence or is contrary to law.
     Appellant argues that this court should follow the law as set
forth in Ark. Code Ann. 9-10-115(d), Modification of orders or
judgments, which states in pertinent part:
          (a) The chancery court may, at any time,
          enlarge diminish, or vacate any such order of
          judgment in the proceedings under this
          section, except in regard to the issue of
          paternity, as justice may require and on such
          notice to the defendant as the court may
          prescribe.  

          . . .

          (c)(1) Upon request for modification of the
          issue of paternity, if the court determines
          that the original finding of paternity did not
          include results of scientific paternity
          testing, consent of the natural parents, or
          was not entered upon any party's failure to
          comply with scientific paternity testing
          ordered by the court, the court shall direct
          the biological mother, the child, and the
          adjudicated father to submit to one (1) or
          more blood tests or other scientific
          examinations or tests as provided by  9-10-
          108.

          . . .

          (d) If the court determines, based upon the
          results of scientific testing, that the
          adjudicated father is not the biological
          father, the court shall relieve the
          adjudicated father of any future obligation of
          support. 
(Emphasis added.)  Appellant further argues that it was contrary to
the law for the trial court to order all past child support under
the judgment to be refunded, because Ark. Code Ann.  9-10-115(d)
allows only for relief of future support, and because the support
had been properly paid by the appellee pursuant to a valid court
order, and properly received and distributed by the State.  We hold
that the statute is applicable because, although appellant
initially filed an action which only sought child support, the
Phillippes were married, and the issue of paternity was raised by
the appellee as a defense to the support action.
     When the language of a statute is plain and unambiguous, there
is no need to resort to rules of statutory construction. Arkansas
Dep't of Human Serv. v. State, 312 Ark. 481, 850 S.W.2d 847 (1993). 
Here, the statute plainly directs the court to relieve the alleged
father of only future obligation of support. 
     Although we have not yet done so, other jurisdictions have
considered the identical issue.  In State v. Wilmore, 624 So. 2d 30
(La. App. 1993), the defendant did not answer the petition for
child support or otherwise appear, and a default judgment was
entered declaring him the biological father of the minor child. 
The Louisiana Court of Appeals affirmed the lower court's decision
not to order reimbursement of child support paid by the defendant
after a blood test determined that the defendant could not be the
father of the minor child.  The court reasoned that when the child
support payments were made, they were legally owed under a valid
final judgment and therefore did not have to be reimbursed. 
     We conclude that the order of refund was contrary to the
preponderance of the evidence and contrary to the law.  The trial
court was not authorized to relieve the appellee of past support by
the applicable statutes, which specifically set out the course of
action the trial court shall take when an adjudicated father is
later determined not to be the biological father.
     Because we reverse on the denial of the motion for new trial,
it is not necessary that we decide the appellant's remaining
argument raising the defense of sovereign immunity.
     We reverse only that portion of the order of dismissal which
provides that appellant refund the support payments and costs to
appellee.
     Dudley, Glaze, and Corbin, JJ., dissent.





STATE OF ARKANSAS,
                    APPELLANT,

V.

MICHAEL PHILLIPPE,
                    APPELLEE.



95-529


Opinion Delivered:  2-12-96





DISSENTING OPINION




                  TOM GLAZE, Associate Justice

     Glenda and Michael Phillippe were married but separated when
Michael Jr. was born.  The state later paid aid for dependent
children (AFDC) payments on behalf of Michael Jr., and, on February
21, 1992, the state brought this action against Mr. Phillippe for
reimbursement.  Phillippe initially acknowledged Michael as his
son, but later hired an attorney and denied paternity.  He also
demanded that the parties be administered a blood test.  The
chancellor ordered tests, but the parties failed to comply.  On
November 21, 1992, the chancellor declared Phillippe to be Michael
Jr.'s father and ordered him to pay $53.00 per week in child
support.  While Phillippe and his attorney failed to appear at the
November 21 hearing, the chancellor found Phillippe had been
summoned and his attorney notified of the proceeding.  The
chancellor's decisions announced on November 21 were included in
his order entered on December 3, 1992.
     On February 25, 1993, Phillippe and a new attorney filed a
motion to set aside the chancellor's December 3rd order, alleging
his previous attorney had not notified him of the November 21
hearing which resulted in his having been determined Michael Jr.'s
father.  On September 16, 1993, nearly seven months after
Phillippe's motion to set aside the December 3rd order, the
chancellor issued a new order directing blood tests and DNA typing
be given the Phillippes and Michael Jr., and these test results
excluded Phillippe as Michael Jr.'s father.  This resulted in the
chancellor entering a new order on February 11, 1995, finding
Phillippe was not Michael Jr.'s father and directing the state to
refund Phillippe the child support payments he had paid under the
court's December 3rd order.  The February 1995 order was entered
over three years after the chancellor's original December 3, 1992
order which established Phillippe was the father.
     The chancellor simply had no authority or power under our
rules or statutory law to enter his February 1995 order.  First,
Phillippe filed no timely appeal from the chancellor's December 3,
1992 order, nor timely motion for new trial under ARCP Rule 59. 
Second, he filed no ARCP 60(b) motion which complied with the
mistake or miscarriage of justice required to modify or set aside
an order.  See Ingram v. Wirt, 314 Ark. 553, 864 S.W.2d 237 (1993)
["miscarriage of justice" referred to in Rule 60(b) is a reference
to the clerical errors or mistakes described in subsection (a)]. 
And when the chancellor failed to modify or vacate its December 3rd
order within ninety days, he lost all power to act under Rule
60(b).  Cigna Ins. Co. v. Brisson, 294 Ark. 504, 744 S.W.2d 716
(1988).  Third, the chancellor here was left only with the general
reservation of jurisdiction to modify his earlier December 3rd
order pursuant to the special grounds set out in Rule 60(c), and
none of these grounds were alleged by Phillippe or shown to exist. 
     Finally, I mention Ark. Code Ann.  9-10-115 (Repl. 1993)
which provides that, under certain circumstances, a chancellor may
vacate a paternity order at any time.  Whether or not  9-10-115
might be in conflict with Rule 60 in some situations is
insignificant here because  9-10-115(c)(1) is entirely consistent
in establishing the chancellor had no authority to enter his
February 1995 order.  That provision provides as follows:
          Upon request for modification of the issue of
     paternity, if the court determines that the original
     finding of paternity did not include results of
     scientific paternity testing, consent of the natural
     parents, or was not entered upon any party's failure to
     comply with scientific paternity testing ordered by the
     court, the court shall direct the biological mother, the
     child, and the adjudicated father to submit to one (1) or
     more blood tests or other scientific examinations or
     tests as provided by  9-10-108.
(Emphasis added.)
     In the present case, the chancellor entered his December 3,
1992 order declaring Phillippe to be Michael's father and did so
only after having ordered genetic testing to be performed on the
Phillippes and Michael Jr.  Nowhere in the record is it reflected
that any of the parties subjected themselves to the blood tests
ordered by the chancellor prior to or by the time he held his
hearing and entered his December 3rd order.  Phillippe's attempt to
blame his attorney does not relieve Phillippe in failing to be
tested as ordered or excuse him from making an appearance at the
court's November 11, 1992 hearing concerning the paternity and
child support issues reduced to order on December 3rd.  An
attorney's acts of omission, as well as his commissions, are to be
regarded as the acts of the client he represents.  Self v. Self,
319 Ark. 632, 893 S.W.2d 775 (1995).  In addition, this court has
emphasized that it is the duty of a litigant to keep himself
informed of the progress of his case.  United S. Assurance Co. v.
Beard, 320 Ark. 115, 894 S.W.2d 948 (1995).  
     In sum, the chancellor's December 3, 1992 order was a final
order which was never appealed, nor timely or properly requested to
be set aside.  The chancellor simply had no authority to wait over
three years to vacate the order legitimating Michael Jr. and
establishing child support for him.  For the reasons above, the
chancellor's February 25, 1995 order should be dismissed.
     DUDLEY and CORBIN, JJ., join this dissent.