Cole v. Harris
Annotate this Case
Sharon Harris COLE v. Olen D. HARRIS
97-421 ___ S.W.2d ___
Supreme Court of Arkansas
Opinion delivered October 30, 1997
1. Divorce -- child-support arrearages -- applicable statute of
limitations. -- Act 870 of 1991, codified at Ark. Code Ann.
section 9-14-236 (Supp. 1995), has been interpreted to mean
that the statute of limitations for child support now
commences with an initial order of support and extends until
the child reaches the age of twenty-three.
2. Limitation of actions -- general limitation on judgments and
decrees ten years -- five year limitation applicable to child-
support payments. -- The general limitation for filing actions
on all judgments and decrees, enacted in 1844, provides that
actions on all judgments and decrees shall be commenced within
ten (10) years after the cause of action accrues, and not
afterward; Ark. Code Ann. 16-56-114; however, in 1957 this
ten-year statute of limitations was held inapplicable to
child-support payments since the order for child support was
not a final decree; instead, a general five-year statute of
limitations applied.
3. Divorce -- adoption of Act 1057 of 1987 -- act adopted for
specific purpose -- no intent to revive ten-year provision. --
When, in 1987, the legislature adopted Act 1057 of 1987
concerning child-support payments and stated that 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 shall be final judgment 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, the Act was adopted
to ensure that child-support programs of the State of Arkansas
would qualify for future federal funding; there was no
expression of any legislative intent to contemporaneously
revive the ancient, general ten-year provision.
4. Divorce -- limitations on collection of child-support
arrearages -- Act 525 of 1989 set ten-year limit -- act would
have been redundant had appellant's argument had merit. -- The
legislature enacted Act 525 of 1989 to set a ten-year statute
of limitations on collection of child-support arrearages; this
Act would have been redundant if the 1987 statute had revived
the effectiveness of the ten-year general statute of
limitations under Ark. Code Ann. section 16-56-114.
5. Divorce -- Act 525 did not operate retroactively to extend
five-year limit on actions already barred -- general five-year
limit applicable to action already accrued as of date new
statute enacted. -- In 1990, it was found that, although the
legislature clearly extended the statute of limitations to ten
years prospectively, Act 525 did not operate retroactively to
extend the five-year limit on actions that were already barred
because it did not repeal the former statute of limitations
provision; because of the issue of retroactivity, the general
five-year statute of limitations at Ark. Code Ann. section 16-
56-115 was held applicable to causes that had already accrued
as of the date that the new statute was enacted.
6. Divorce -- ten-year limitation repealed in 1991 -- new
limitation five years beyond date child for whose benefit
order of support entered reaches eighteen. -- In Act 870 of
1991 the legislature enacted provisions repealing the ten-year
statute of limitations and provided that child-support actions
can be "brought at any time up to and including five (5) years
beyond the date the child for whose benefit the initial
support order was entered reaches the age of eighteen (18)
years"; furthermore, the Act repealed all laws in conflict
with its provisions and included a clause for the changes to
apply retroactively to all child-support orders existing as of
March 29, 1991; this expanded statute of limitations remains
in effect.
7. Statutes -- statutes of limitation dealing with same subject
matter -- applicable rule of statutory construction. -- When
two or more statutes of limitation deal with the same subject
matter, the statute which is more recent and specific will
prevail over the older and more general one; in fact it has
been held that where two constructions concerning the
limitation period are possible, the courts prefer the one that
allows the longer period.
8. Divorce -- legislative intent not to revive ten-year
limitation under general limitation statute -- limitation
period found in Ark. Code Ann. 9-14-236 applicable. -- By
specifically repealing the ten-year statute of limitations
that was previously enacted under Act 525 of 1989, the
legislature made clear its intention that a ten-year statute
of limitations should not apply to actions for child-support
arrearages; the effect of the legislature's action in adopting
Act 870 of 1991 was to expand the time in which a cause of
action could be maintained, thereby affording a greater
opportunity for a parent or child to collect child-support
payments than the ten-year statute that it repealed; the
limitation period found at Ark. Code Ann. section 9-14-236
applied to this action; the chancellor applied the correct
statute of limitations and because appellant brought this
cause of action after her child turned twenty-three, the
decision of the chancery court granting appellee's petition to
terminate child-support collections was not in error.
Appeal from Nevada Chancery Court; Jim Gunter, Chancellor;
affirmed.
William F. Cavenaugh, for appellant.
Harrell & Lindsey, P.A., by: Searcy W. Harrell, Jr., for
appellee.
Ray Thornton, Justice.
The issue in this case is whether the statute of limitations
bars the action for child-support arrearages brought by appellant
Sharon Harris Cole on behalf of her child, Brian Lynn Harris.
Brian was born on July 11, 1972. On July 9, 1974, the chancery
court granted appellant a divorce from appellee Olen Dale Harris
and awarded her weekly child support of $15.00.
Eleven months after Brian turned twenty-three years of age,
appellant filed a notice of income withholding for child support.
Appellee petitioned to terminate the child-support collections,
claiming that appellant's action was barred by the statute of
limitations, which had run at Brian's twenty-third birthday. The
trial court granted the petition, and appellant brings this appeal.
Appellant contends that the trial court committed reversible error
in applying the wrong statute of limitations. We find no error and
affirm.
We have recently addressed the question of what statute of
limitations applies in actions to collect child-support arrearages.
Branch v. Carter, 326 Ark. 748, 933 S.W.2d 806 (1996). We
interpreted Act 870 of 1991, codified at Ark. Code Ann. section 9-
14-236 (Supp. 1995), as follows: "The statute of limitations for
child support thus now commences with an initial order of support
and extends until the child reaches the age of twenty-three."
Branch, 326 Ark. at 751, 933 S.W.2d at 807.
Appellant contends that the trial court erred in applying Ark.
Code Ann. section 9-14-236 in this case. She argues that the 1987
legislative enactment of Ark. Code Ann. section 9-14-234 (Supp.
1995), stating that accrued child-support arrearages are
enforceable as final judgments, makes Ark. Code Ann. section 16-56-
114 (1987), a ten-year limitation period for general collection of
civil judgments, applicable to actions to collect child-support
arrearages. This is a novel argument, and we proceed with our
review of the legislative actions and judicial principles that
guide our analysis.
The general limitation for filing actions on all judgments and
decrees, enacted in 1844, provides the following: "Actions on all
judgments and decrees shall be commenced within ten (10) years
after [the] cause of action shall accrue, and not afterward." Ark.
Code Ann. 16-56-114. In Brun v. Rembert, 227 Ark. 241, 297 S.W.2d 940 (1957), we determined that this ten-year statute of
limitations did not apply to child-support payments since the order
for child support is not a final decree. Instead, we held that a
general five-year statute of limitations applied. Id. at 243, 297 S.W.2d at 943 (applying Ark. Stat. Ann 37-213, later replaced by
Ark. Code Ann. 16-56-115 (1987)).
In 1987, the legislature adopted the following language
concerning child-support payments:
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 shall be final judgment 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.
1987 Ark. Acts 1057 (codified at Ark. Code Ann. 9-12-314(b);
readopted in 1989 at 9-14-234(a)) (emphasis added). This Act was
adopted to ensure that child-support programs of the State of
Arkansas would qualify for future federal funding. Sullivan v.
Edens, 304 Ark. 133, 137, 801 S.W.2d 32, 34 (1990). We note,
however, that there was no expression of any legislative intent to
contemporaneously revive the ancient, general ten-year provision
that appellant urges us to adopt now.
The legislature then enacted "AN ACT to Set a Ten-Year Statute
of Limitations on Collection of Child Support Arrearages; and for
Other Purposes." 1989 Ark. Acts 525, repealed by 1991 Ark. Acts
870 and 1995 Ark. Acts 1184, 30. The legislature had never
before specifically provided a limitation on child-support actions,
and Act 525 provided the following, in pertinent part:
In all cases where the support of any child or
children is involved, an action for the enforcement of
child support or for judgment of arrearages shall be
limited to ten (10) years prior to the filing of the
action.
Id. 1 (codified at Ark. Code Ann. 9-56-129 and 9-14-236).
This Act would have been redundant if the 1987 statute had revived
the effectiveness of the ten-year general statute of limitations
under Ark. Code Ann. section 16-56-114.
In Sullivan v. Edens, we stated that although the legislature
had clearly extended the statute of limitations to ten years
prospectively, the Act did not operate retroactively to extend the
five-year limit on actions that were already barred because it did
not repeal the former statute of limitations provision. Sullivan,
304 Ark. at 135, 801 S.W.2d at 33. Of course, if the 1844
limitation had been revived, there would have been no issue of
retroactive effect. Because of the issue of retroactivity, we held
that the general five-year statute of limitations at Ark. Code Ann.
section 16-56-115 was applicable to causes that had already accrued
as of the date that the new statute was enacted. Id.
After Sullivan, the legislature enacted provisions repealing
the ten-year statute of limitations and providing that child
support actions can be "brought at any time up to and including
five (5) years beyond the date the child for whose benefit the
initial support order was entered reaches the age of eighteen (18)
years." 1991 Ark. Acts 870, 1 and 2 (current version at Ark.
Code Ann. 9-14-105 and 9-14-236). Furthermore, the Act repealed
all laws in conflict with its provisions and included a clause for
the changes to apply retroactively to all child-support orders
existing as of March 29, 1991. Id. 1, 2, and 5. This expanded
statute of limitations remains in effect.
It is clear to us that the legislative intent was not to
revive the ten-year limitation under the 1844 general limitation
statute. The rules of statutory construction give a result that is
harmonious with this legislative history. The following rule of
statutory construction is instructive on this point:
When two or more statutes of limitation deal with the
same subject matter, the statute which is more recent and
specific will prevail over the older and more general
one. In fact it has been held that where two
constructions concerning the limitation period are
possible, the courts prefer the one that allows the
longer period.
3A Norman J. Singer, Sutherland Stat. Const. 70.03 (5th ed. 1992)
(emphasis added).
By specifically repealing the ten-year statute of limitations
that was previously enacted under Act 525 of 1989, the legislature
made clear its intention that a ten-year statute of limitations
should not apply to actions for child-support arrearages. The
effect of the legislature's action in adopting Act 870 of 1991 was
to expand the time in which a cause of action could be maintained,
thereby affording a greater opportunity for a parent or child to
collect child-support payments than the ten-year statute that it
repealed. Branch, 326 Ark. at 752, 933 S.W.2d at 808. We hold
that the limitation period found at Ark. Code Ann. section 9-14-236
applies to the action before the court.
Appellant also contended before the trial court that her use
of the 1844 general ten-year statute of limitations to collect
payments eleven months after Brian turned twenty-three tolled the
ten-year statute of limitations with respect to all other
arrearages. Because we have determined that the ten-year statute,
section 16-56-114, does not apply to actions for child-support
arrearages, we do not reach this argument.
We conclude that the Chancellor applied the correct statute of
limitations and that because appellant brought this cause of action
after her child turned twenty-three, the decision of the chancery
court was not in error.
Affirmed.
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