Kevin Martin v. Melissa Martin Pierce
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SUPREME COURT OF ARKANSAS
No.
06-950
Opinion Delivered May
KEVIN MARTIN,
17, 2007
APPELLANT,
VS.
MELISSA MARTIN PIERCE,
APPELLEE,
A PPEA L FR O M T H E A SH L E Y
COUNTY CIRCUIT COURT,
NO. DR97-249-2,
HON. ROBERT C. VITTITOW,
JUDGE,
AFFIRMED.
JIM HANNAH, Chief Justice
Appellant Kevin Martin and Lisa Pierce were married in 1988. Pierce filed a
complaint for divorce on June 2, 1997. The divorce was uncontested, and on July 8, 1997,
on Pierce’s complaint and Martin’s waiver, a divorce decree was entered, finding, inter alia,
that two children, C.M. and M.M., were born of the marriage. A property settlement
agreement whereby Martin was to pay child support for C.M. and M.M. to Pierce was
incorporated into the decree by reference.
On November 8, 2004, Pierce filed a petition for contempt against Martin for his
alleged failure to pay child support. Martin responded, contending that Pierce’s petition for
contempt was barred by her fraud in representing to him during the marriage that C.M. was
his child. Martin claimed that, prior to the entry of the divorce decree and unbeknownst to
him, Pierce told an acquaintance that Martin was not C.M.’s father. Martin also contended
that, subsequent to the divorce, Pierce had angrily stated to him, in C.M.’s presence, that
C.M. was not his child.
Martin filed a counterclaim against Pierce, alleging fraud and requesting a paternity
test as to C.M. He also requested that the support order concerning C.M. be vacated. The
circuit court granted the petition for paternity testing. The results of the genetic testing
established that Martin could not be the biological father of C.M.
Later, Martin amended his counterclaim to include damages for outrage and requested
a jury trial. Because Martin also sought to vacate his legal obligations with respect to C.M.,
Pierce filed a motion for the appointment of an attorney ad litem. Martin responded that,
because C.M. was not a party to the action, no ad litem should be appointed. The circuit
court appointed an ad litem, concluding that, although C.M. was not a named party, he
stood to be affected by the decisions rendered in the case.
On January 13, 2006, the attorney ad litem filed a motion for declaratory judgment,
requesting that the circuit court declare that Martin was C.M.’s father. Martin responded,
contending that declaratory relief was not appropriate for a nonparty. He supplemented his
response to the motion to include the argument that it would be a violation of equal
protection under the law if divorced men were not permitted, pursuant to Ark. Code Ann.
§ 9-10-115 (Repl. 2002), to challenge the paternity of children born during a previous
marriage.
The circuit court concluded that Ark. Code Ann. § 9-10-115 was inapplicable to the
present case, as it was a part of the Paternity Code, which does not apply to divorce decrees.
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Thereafter, the circuit court entered an order granting the ad litem’s motion for declaratory
judgment; thus, Martin was declared to be the father of C.M. In addition, the circuit court
dismissed all of Martin’s challenges with respect to the paternity of C.M. Martin now brings
this appeal, arguing that the circuit court erred: (1) in appointing an attorney ad litem for a
person not a party to the action and granting affirmative relief to that person; (2) in holding
that Martin is foreclosed by res judicata from challenging his paternity of, and duty to pay
child support for, C.M.; and (3) in finding that Ark. Code Ann. § 9-10-115, as amended in
2001, did not operate to allow Martin to challenge his paternity of, and duty to pay child
support for, C.M. We find no error and, accordingly, we affirm.
We first address Martin’s contention that the circuit court erred in appointing an
attorney ad litem for C.M. because C.M. is not a party to the action. Martin argues that the
circuit court misapprehended the claims embraced in the pleadings of the proper parties to
this action. Specifically, Martin states that Pierce filed the motion for contempt for failure
to pay child support, and he responded that any failure to pay was not wilful and
counterclaimed for Pierce’s “fraudulent and outrageous conduct in misleading him into
believing he was C.M.’s biological father, asking that any orders to pay support be vacated
and for damages.” Thus, he contends that he and Pierce alone are the proper parties.
For his part, C.M. contends that the circuit court’s appointment of an attorney ad
litem was “certainly within the spirit of the creation of attorneys ad litem.” In support of his
argument, he cites the following statute: “When a circuit judge determines that the
appointment of an attorney ad litem would facilitate a case in which custody is an issue and
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further protect the rights of the child, the circuit judge may appoint a private attorney to represent
the child.”
Ark. Code Ann. § 9-13-106(b) (Repl. 2002) (emphasis added).
C.M.
acknowledges that, while the exact issue of custody may not have been in question in the
circuit court, the corresponding issue of support was raised below. He states that Martin’s
counterclaim against Pierce for fraud and outrage brought to issue his paternity; therefore,
it was prudent and proper for the circuit court to appoint an attorney ad litem to guard the
individual interests of a minor child. We agree, and we cannot say that the circuit court
abused its discretion in appointing an attorney ad litem to protect the interests of C.M.
Martin next contends that C.M. is not a person entitled to intervene in this action,
and that to the extent that his motion for declaratory judgment is a petition for child support,
he is not one of the parties prescribed by statute as having standing to bring a child support
action. First, we do not view the motion as a petition for child support because C.M. makes
no request for child support in the motion.
Further, while C.M. captioned his pleading as a motion for declaratory judgment, it
appears that it was actually a motion for summary judgment. In his motion, C.M. stated that
“paternity is a question of law and not fact. Therefore, there is no issue of fact with regard
to the paternity of C.M. that should be presented to the finder of fact.” A pleading should
be construed to give effect to the substance of the pleading rather than the form. Wright v.
City of Little Rock, 366 Ark. 96, ___ S.W.3d ___ (2006). Here, C.M. filed the motion in
an effort to bring an end to the litigation. Because he argued that there was no fact question
at issue, we will treat the motion as one for summary judgment.
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As to Martin’s argument that the attorney ad litem should not have been permitted
to file a pleading for C.M. in this case, we disagree. The circuit court has the inherent
authority to appoint an attorney ad litem to represent a child’s interests in disputes between
divorcing parents. See Kimmons v. Kimmons, 1 Ark. App. 63, 613 S.W.2d 110 (1981). C.M.
had an interest in his continued support and his legitimacy. An attorney ad litem “should be
allowed an adequate opportunity to investigate the case, should be permitted to call his
witnesses at trial and to cross examine those witnesses called by the parties. In short, he
should be permitted to represent his child client as he would any client in preparation for and
at trial.” Kimmons, 1 Ark. App. at 68, 613 S.W.2d at 114. Here, by filing a pleading on
behalf of C.M., the attorney ad litem represented C.M. as he would any client.
Martin argues that the circuit court erred when it held that he was foreclosed by res
judicata from challenging his paternity of, and duty to pay child support for, C.M. In Office
of Child Support Enforcement v. Williams, 338 Ark. 347, 995 S.W.2d 338 (1999), we held that
a former husband’s agreement to a divorce decree which stated that children were born of
the marriage and his signing an agreed order on child support foreclosed a later action to
establish that he was not the biological father for purposes of abating child support. Relying
on Williams in the instant case, the circuit court concluded that, because the paternity of
C.M. had been established pursuant to Martin and Pierce’s divorce decree, the issue of
C.M.’s paternity could never be relitigated. In Williams, we stated:
Res judicata bars relitigation of a subsequent suit when: (1) the first suit resulted
in a final judgment on the merits; (2) the first suit was based upon proper
jurisdiction; (3) the first suit was fully contested in good faith; (4) both suits
involve the same claim or cause of action; and (5) both suits involve the same
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parties or their privies. See Miller County v. Opportunities, Inc., 334 Ark. 88, 971
S.W.2d 781 (1998); Hamilton v. Arkansas Pollution Control & Ecology Comm’n,
333 Ark. 370, 969 S.W.2d 653 (1998). 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. See Wells v. Arkansas Pub. Serv. Comm’n, 272 Ark. 481, 616
S.W.2d 718 (1981). Where a case is based on the same events as the subject
matter of a previous lawsuit, res judicata will apply even if the subsequent lawsuit
raises new legal issues and seeks additional remedies. See Swofford v. Stafford, 295
Ark. 433, 748 S.W.2d 660 (1988).
In the past, we have applied the doctrine of res judicata to the issue of paternity
when paternity was established under a divorce decree. See McCormac v.
McCormac, 304 Ark. 89, 799 S.W.2d 806 (1990). In McCormac, a mother sought
to relitigate the paternity issue following a divorce decree. The request was
included in her response to her ex-husband’s motion to hold her in contempt
for failing to comply with visitation. In the original divorce decree, the
chancery court had found that it had subject-matter jurisdiction and had
awarded custody, set child support, and fixed visitation. On appeal, we held
that the mother’s paternity claim was barred by res judicata because the mother
pled in the divorce action that the child was born of the marriage, and the
father admitted this fact. Our court of appeals has held similarly in several cases.
See, e.g., Golden v. Golden, 57 Ark. App. 143, 942 S.W.2d 282 (1997); Scallion
v. Whiteaker, 44 Ark. App. 124, 868 S.W.2d 89 (1993); Department of Human
Servs. v. Seamster, 36 Ark. App. 202, 820 S.W.2d 298 (1991); Benac v. State, 34
Ark. App. 238, 808 S.W.2d 797 (1991).
The weight of authority in other jurisdictions is in accord with this view of the
res judicata effect of divorce decrees on the paternity issue. See, e.g., In re
Paternity of Rogers, 697 N.E.2d 1193 (Ill. App. Ct. 1998); Love v. Love, 959 P.2d
523 (Nev. 1998); Godin v. Godin, 725 A.2d 904 (Vt. 1998); Gann v. Gann, 705
So.2d 509 (Ala. Civ. App.1997); Grice v. Detwiler, 488 S.E.2d 755 (Ga. Ct.
App. 1997); Beyer v. Metze, 482 S.E.2d 789 (S. C. Ct. App. 1997); In re A.L.J.,
a/k/a A.L.E., 929 S.W.2d 467 (Tex. Ct. App. 1996); see also Donald M.
Zupanec, Annotation, Effect, In Subsequent Proceedings, Of Paternity Findings Or
Implications In Divorce Or Annulment Decree Or In Support Or Custody Order Made
Incidental Thereto, 78 A.L.R.3d 846.
The Vermont Supreme Court set out succinctly the policy considerations
which favor this principle:
Although we understand plaintiff’s interest in ascertaining the true genetic
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makeup of the child, we agree with the many jurisdictions holding that the
financial and emotional welfare of the child, and the preservation of an
established parent-child relationship, must remain paramount . . . . Whatever
the interests of the presumed father in ascertaining the genetic “truth” of a
child’s origins, they remain subsidiary to the interests of the state, the family,
and the child in maintaining the continuity, financial support, and psychological
security of an established parent-child relationship. Therefore, absent a clear and
convincing showing that it would serve the best interests of the child, a prior
adjudication of paternity is conclusive.
Godin, 725 A.2d at 910 (citations omitted). The Vermont Supreme Court
further noted that its holding would deter parents who might seek to dissolve
their parental bonds for financial or for other self-serving reasons. See Hackley
v. Hackley, 395 N.W.2d 906, 913-14 (Mich. 1986) (best interests of child in
maintaining stability and preventing psychological trauma must prevail over
unfairness to father; contrary decision would result in chaos and humiliation);
In re Paternity of JRW & KB, 814 P.2d 1256,1265 (Wyo. 1991) (“Because of the
potentially damaging effect that relitigation of a paternity determination might
have on innocent children, the doctrines of res judicata and collateral estoppel
are rigorously observed in the paternity context.”).
In the case before us, the divorce decree stated that the children were born of
the marriage, and the chancery court awarded custody, ordered child support,
and set visitation. The issue of paternity, accordingly, was decided. See
McCormac v. McCormac, supra; Anderson v. Anderson, 552 N.E.2d 546 (Mass.
1990) (a divorce decree is an adjudication of the paternity of a child of the
marriage); Godin v. Godin, supra (paternity necessarily determined in original
divorce proceeding, which awarded child support). Moreover, the appellee had
the opportunity to raise and litigate the paternity issue, but he failed to do so.
In this regard, there was some evidence, based on Brenda Williams’s testimony,
that he knew that the two boys were not biologically his much earlier. He also
signed an agreed order in 1996, admitting that he was the father of the children.
Under these circumstances, we hold that the principle of res judicata applies and
that the chancery court erred in failing to do so.
Williams, 338 Ark. 347, 350-52, 995 S.W.2d 338, 339-41 (1999).
In the instant case, Martin failed to contest any issues in the divorce, including the
paternity of C.M. That issue was decided in the divorce decree. Nevertheless, Martin argues
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that the fraud committed by Pierce excuses him from the finding of paternity in the divorce
decree. Specifically, Martin claims that, pursuant to Arkansas Civil Procedure Rule 60, he
is entitled to relief. Rule 60(c)(4) provides that a judgment may be set aside any time after
ninety days “[f]or misrepresentation or fraud (whether heretofore denominated intrinsic or
extrinsic) by an adverse party.” Martin points out that in Dickson v. Fletcher, 361 Ark. 244,
206 S.W.3d 229 (2005), this court extended the operation of Rule 60(c)(4) to include
constructive fraud where a husband failed to disclose his ownership of securities in his
discovery responses and the divorce decree entered in 1994 did not address division of the
nondisclosed securities as marital property. Martin argues that, like the appellant in Dickson,
he should have an opportunity to modify his divorce decree because his ex-spouse
committed fraud.
C.M. contends that Dickson is inapplicable to the facts of the instant case because the
public policy against the bastardization of a sixteen-year-old child is not analogous to the
intentional concealment of marital property. We agree, and we decline to extend our
decision in Dickson, supra, to the facts of the instant case. In light of the policy considerations
discussed in Williams, supra, we hold that, under the facts of the case at bar, Rule 60(c)(4)
cannot be used as a means to modify a divorce decree.
We now turn to Martin’s argument that the circuit court erred in its reliance on
Williams because that case has been abrogated by Act 1736 of 2001, which substantially
amended Ark. Code Ann. § 9-10-115 to allow a legal father to have an absolute right to a
paternity test and have his child-support obligation terminated if it is determined that he is not
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the biological father. In Williams, we addressed a prior version of Ark. Code Ann. § 9-10115, stating:
Although it is not briefed by OCSE and seemingly was not relied on by the
chancery court, we feel constrained to address Ark. Code Ann. § 9-10-115(d)
(Supp.1995), which addresses modification of a child-support order when it is
determined in a paternity suit that a man is not the biological father of a child.
See, e.g., Littles v. Flemings, 333 Ark. 476, 970 S.W.2d 259 (1998). In Littles,
this court relied on § 9-10-115(d) and held that a man who had been
adjudicated the father of a child in a paternity suit was entitled to relief from
future child-support obligations, after scientific testing proved that he was not
the child’s biological father. We said: “[T]he statute mandates that an
adjudicated father in Mr. Littles’s position receive prospective relief from a
child-support judgment.” Littles, 333 Ark. at 481, 970 S.W.2d at 262.
Section 9-10-115, however, is part of the Paternity Code and was intended to
apply only to judicial findings of paternity or to acknowledgments of paternity
by both parents under Ark. Code Ann. § 9-10-120 (Supp.1995). There is
nothing in § 9-10-115 to even suggest that its applicability extended to divorce
decrees. Furthermore, we view an adjudication of paternity in a paternity suit,
as well as an acknowledgment of paternity by both parents under the Paternity
Code as being vastly different from an adjudication of paternity in a divorce
decree. In the latter situation, there has been a marriage and in most situations,
the children have known the husbands as their fathers. A parental relationship
has, thus, been established with the child or children. In a paternity suit, the
parent-child relationship has not been forged, and the stability of the family unit
is not an issue. This distinction lies at the heart of the disparate treatment
accorded scientific testing after a finding of paternity under the Paternity Code
and scientific testing which occurs after a divorce decree under our caselaw.
Williams, 338 Ark. at 353, 995 S.W.2d at 341 (emphasis added) (footnote omitted).
Subsequent to our decision in Williams, the General Assembly passed Act 1736 of
2001, entitled, “AN ACT TO PROVIDE THAT AN ADJUDICATED FATHER IS
ENTITLED TO ONE PATERNITY TEST AT ANY TIME DURING THE PERIOD
OF HIS CHILD SUPPORT OBLIGATION.” Act 1736 amended Ark. Code Ann. § 9-10-
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115 to include the following relevant provisions:
(e)(1)(A) When any man has been adjudicated to be the father of a child or is
deemed to be the father of a child pursuant to an acknowledgment of paternity
without the benefit of scientific testing for paternity and as a result was ordered
to pay child support, he shall be entitled to one (1) paternity test, pursuant to
§ 9-10-108, at any time during the period of time that he is required to pay
child support upon the filing of a motion challenging the adjudication or
acknowledgment of paternity in a court of competent jurisdiction.
...
(f)(1) If the test administered under subdivision (e)(1)(A) of this section excludes
the adjudicated father or man deemed to be the father pursuant to an
acknowledgment of paternity as the biological father of the child and the court
so finds, the court shall set aside the previous finding or establishment of
paternity and relieve him of any future obligations of support as of the date of
the finding.
Ark. Code Ann. § 9-10-115 (Repl. 2002).
The issue before us is one of statutory construction. This court reviews issues of
statutory construction under a de novo standard. Cooper Clinic, P.A. v. Barnes, 366 Ark. 533,
___ S.W.3d ___ (2006). Because it is for this court to decide the meaning of the statute, we
are not bound by the circuit court’s determination of the statute’s meaning. Id. The basic
rule of statutory construction is to give effect to the intent of the General Assembly. Id. The
first rule in determining the meaning of a statute is to construe it just as it reads, giving the
words their ordinary and usually accepted meaning in common language. Id. This court will
construe a statute so that no word is left void, superfluous or insignificant, with meaning and
effect given to every word in the statute if possible. Id. When the language of the statute is
plain and unambiguous, conveying a clear and definite meaning, we need not to resort to the
rules of statutory construction. Id. A statute is ambiguous only where it is open to two or
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more constructions, or where it is of such obscure or doubtful meaning that reasonable minds
might disagree or be uncertain as to its meaning. Id.
Upon review of the language in Act 1736 of 2001, we are not convinced that the
General Assembly intended to overrule our decision in Williams. In Williams, we made it
clear that Ark. Code Ann. § 9-10-115 is a part of the Paternity Code and is intended to apply
only to judicial findings of paternity or to acknowledgments of paternity by both parents
under Ark. Code Ann. § 9-10-120 (Supp. 1995). Williams, 338 Ark. at 353, 995 S.W.2d at
341. Further, we stated that there is nothing in § 9-10-115 to indicate that it applies to
divorce decrees. Id.; 995 S.W.2d at 341.1 Although the statute has been amended since we
handed down our decision in Williams, the fact remains that the statute is still a part of the
Paternity Code. The legislature is presumed to know the decisions of the supreme court, and
it will not be presumed in construing a statute that the legislature intended to require the
court to pass again upon a subject where its intent is not expressed in unmistakable language.
Books-A-Million, Inc. v. Ark. Painting & Specialties Co., 340 Ark. 467, 10 S.W.3d 857 (2000).
Despite the fact that the Williams court made a distinction between adjudicated fathers under
the paternity code and adjudicated fathers under divorce decrees, the legislature did not see
fit to enact legislation outside the Paternity Code regarding adjudicated fathers. We hold that
1
See also Office of Child Support Enforcement v. Willis, 347 Ark. 6, 16, 59 S.W.3d 438, 445
(2001) (“[W]e do not view what occurred in the 1992 divorce as either an adjudication of
paternity or voluntary acknowledgment of paternity as required under the Paternity Code. See
Ark. Code Ann. §§ 9-10-101 through 202 (Repl. 1998). See also Office of Child Support
Enforcement v. Williams, supra (provisions of the Paternity Code do not apply to determinations
arising as matter of presumption under a divorce decree). It stands to reason that without a prior
adjudication of paternity or an acknowledgment of the same, there can be no modification of
paternity.”).
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Act 1736 of 2001 did not abrogate our decision in Williams.2 Section 9-10-115, as amended
in 2001, does not apply to a paternity determination arising as a matter of presumption under
a divorce decree.
Finally, Martin argues that if he is not allowed to question the paternity of a child he
did not sire, but was deceived into acknowledging, he, as a divorced man, will be denied
equal protection of the law. He states that Pierce, as the biological mother, has a right to
challenge paternity, pursuant to Ark. Code Ann. § 9-10-104 (Repl. 2002), and that a person
claiming to be the biological father of a child to a married woman who was not his wife when
the child was conceived is entitled to challenge the presumption of paternity. See R.N. v.
J.M. and B.M., 347 Ark. 203, 61 S.W.3d 149 (2001). Martin fails to develop his equalprotection argument; therefore, we do not address it. This court will not research or develop
an argument for an appellant. See, e.g., Baker v. Norris, ___ Ark. ___, ___ S.W.3d ___ (Apr.
12, 2007).
Affirmed.
C ORBIN and B ROWN, JJ., dissent.
R OBERT L. B ROWN, Justice, dissenting. Because the General Assembly has expressly
and unambiguously relieved an adjudicated father of the obligation to pay child support, after
scientific testing shows he is not the father, I dissent from the majority opinion.
2
If the General Assembly had intended that Act 1736 of 2001 overrule Williams and apply
to divorce decrees as well as actions to determine paternity under the Paternity Code, it could
have expressly stated so.
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The majority holds that once there is a divorce decree adjudicating a man to be the
father, that adjudication is irrevocable regardless of future scientific testing showing the man
could not be the father. I disagree. Act 1736 of 2001 amended Ark. Code Ann. § 9-10-115
(Supp. 1999), by adding the following language in an attempt to clarify the Paternity Code:
(e)(1)(A) When any man has been adjudicated to be the father of a child or is
deemed to be the father of a child pursuant to an acknowledgment of paternity
without the benefit of scientific testing for paternity and as a result was ordered
to pay child support, he shall be entitled to one (1) paternity test, pursuant to
§ 9-10-108, at any time during the period of time that he is required to pay
child support upon the filing of a motion challenging the adjudication or
acknowledgment of paternity in a court of competent jurisdiction.
. . .
(f)(1) If the test administered under subdivision (e)(1)(A) of this section
excludes the adjudicated father or man deemed to be the father pursuant to an
acknowledgment of paternity as the biological father of the child and the court
so finds, the court shall set aside the previous finding or establishment of paternity and
relieve him of any future obligations of support as of the date of the finding.
Ark. Code Ann. § 9-10-115(e)(1)(A) and (f)(2) (Repl. 2002) (emphasis added).
Act 1736 of 2001 was passed at the next general legislative session after this court’s
decision in Office of Child Support Enforcement v. Williams, 338 Ark. 347, 995 S.W.2d 338
(1999). In Williams, we held:
•
Res judicata bars relitigation of paternity where paternity was
established in the prior divorce decree.
•
Previous § 9-10-115(d), which addresses modification of child
support when an adjudicated father is proven not to be the
biological father of the child, after scientific testing, is part of the
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Paternity Code and is vastly different from an adjudication of
paternity in a divorce decree.
•
The child support obligation of the adjudicated father should
continue.
The broad language added to § 9-10-115 by Act 1736 states that the section applies
to “any man” adjudicated to be the father of a minor child. In McCormac v. McCormac, 304
Ark. 89, 799 S.W.2d 806 (1990), this court specifically said that a divorce decree is an
adjudication of paternity. Section 9-10-115(e)(1)(A) is unambiguous, and we construe it by
giving the words their ordinary and usually accepted meaning. See Weiss v. Maples, __ Ark.
__, __ S.W.3d __ (March 22, 2007). The words “any man” clearly indicate that the General
Assembly intended for the subsection to apply to any man previously adjudicated to be the
father of a child, whether in a paternity action or as part of a divorce proceeding. To draw
a distinction between the two flies in the face of the clear and exact language of Act 1736.
Furthermore, by Act 1736, the General Assembly expanded the time frame for
challenging a paternity adjudication. Under the previous version of the statute, an adjudication
could only be modified within three years of its entry. See Ark. Code Ann. § 9-10-115(f)
(Supp. 1999). Act 1736 now provides that an adjudication may be challenged “at any time
during the period of time that [the adjudicated father] is required to pay child support. . . .”
Ark. Code Ann. § 9-10-115(e)(1)(A) (Repl. 2001). The statute thus applies to Mr. Martin,
as he was still obligated to pay child support at the time he challenged his paternity.
The General Assembly has now mandated that Mr. Martin, though the adjudicated
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father in a divorce decree, be relieved of his obligation to pay future child support under Act
1736 by expanding the pertinent section to apply to “any man.” The breadth of the language
in Act 1736 manifestly encompasses divorce decrees. The circuit court did not interpret the
new act that way, but instead dismissed Mr. Martin’s challenge to the child-support
obligation. This was error in my judgment. Yet, the majority affirms the error.
I respectfully dissent.
C ORBIN , J., joins this dissent.
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