Barnes v. Barnes

• Decision Date: 14 December 1992
• Docket Number: No. 92-658,92-658
• Citation: 311 Ark. 287,843 S.W.2d 835
• Parties: Billy Joe BARNES, Appellant, v. Anna M. BARNES, Appellee.
• Court: Arkansas Supreme Court

Page 835

843 S.W.2d 835

311 Ark. 287

Billy Joe BARNES, Appellant, v. Anna M. BARNES, Appellee.

No. 92-658.

Supreme Court of Arkansas.

Dec. 14, 1992.

John Lloyd Johnson, Russellville, for appellant.

Stephen R. Cobb, Little Rock, for appellee.

NEWBERN, Justice.

This is a paternity and child support case in which the Chancellor determined the appellant, Billy Joe Barnes, to be the natural father of Jordan Barnes and required him to pay $51 weekly child support and overdue support owed in the amount of $1,700. Barnes raises ten issues on appeal. We find no grounds for reversal and affirm the judgment.

Barnes was married to the child's mother, the appellee, Anna M. Barnes, now Anna Barnes Hicks, until they divorced in January of 1989. Two children were born during the marriage. Hicks testified that on December 24, 1989, Barnes returned from Oklahoma with their children who had been visiting their grandparents. Hicks stated Barnes stayed at her home that night so he could open presents with the children on Christmas morning. Hicks testified she and Barnes had sexual intercourse at approximately 2:00 a.m. Christmas morning. After the incident, Hicks realized she was pregnant, and the child was delivered on September 14, 1990, approximately nine months from the alleged date of conception. Hicks claimed Barnes was the child's father and stated he was the only man with whom she was sexually involved for a month and a half before and after she became pregnant.

Hicks admitted having sexual intercourse with two other men, Richard Piggott and Bob Smith, after she divorced Barnes. She testified she stopped seeing Piggott in September of 1989, and she used birth control the entire time they dated. Hicks stated she did not remember the exact dates when she had sexual intercourse with Smith. Smith later testified he had been sexually active with Hicks in 1990 and 1991. He testified, however, that he had had a vasectomy in June of 1984, implying he could not have been Jordan's father.

In January of 1991, Hicks filed a paternity suit in the Juvenile Division of Pulaski County Chancery Court, claiming Barnes was Jordan's father. The parties agreed prior to trial that a blood test would be administered to determine paternity. The agreement also provided the test would be admissible at trial. The test, which was later admitted over Barnes's objections, showed a 99.59% probability that he was the child's father. Based on the results of the blood test, coupled with Hicks's testimony regarding access during the probable period of conception, the Chancellor determined Barnes to be Jordan's natural father.

1. Subject matter jurisdiction

Barnes relies on Ark.Code Ann. § 9-10-101(a)(2) (Repl.1991) and argues the Juvenile Division of Chancery Court was without subject matter jurisdiction, and the paternity case should have been transferred to Chancery Court. He contends the Pulaski County Chancery Court had exclusive jurisdiction over the case. Section 9-10-101(a)(2) states that a chancery court has exclusive jurisdiction of paternity matters arising during the pendency of original equity proceedings. The proper interpretation of this section of the statute is that exclusive jurisdiction will lie in a chancery court when a paternity matter arises during the pendency of an action already within its jurisdiction. This provision is simply inapplicable to the facts of this case.

The more relevant provision is Ark.Code Ann. § 9-10-101(a)(1) (Repl.1991) which provides that a chancery court exercises concurrent jurisdiction with the juvenile division of chancery court in paternity cases. Furthermore, Ark.Code Ann. § 16-13-304(b) (Supp.1991) states, "Notwithstanding the provisions of the Arkansas Juvenile Code of 1989, or any other enactment which might be interpreted otherwise, the chancery court or any division of chancery court shall have jurisdiction for all cases and matters relating to paternity." (Emphasis added). The Juvenile Court is a division of Chancery Court, each exercising concurrent jurisdiction over paternity cases. Ark.Code Ann. § 16-13-602 (Supp.1991); Schuh v. Roberson, 302 Ark. 305, 788 S.W.2d 740 (1990).

2. Transfer of paternity case

Barnes's second point relates to the transfer of his paternity case among several Chancery and Juvenile Court Judges in the Sixth Judicial District. Barnes argues the intra-district exchange violated our holding in Lee v. McNeil, 308 Ark. 114, 823 S.W.2d 837 (1992).

The case was originally filed in the Juvenile Division of Pulaski County Chancery Court with Chancellor Joyce Williams Warren presiding and set for trial on Friday, September 27, 1991. Because the Juvenile Judges had a backlog of pending paternity cases, the other Sixth District Chancellors were assisting them in deciding these cases. Although the cases were technically not reassigned, the Chancellors assisted the Juvenile Judges by hearing their cases on Fridays on a rotation basis. The Barnes case was originally scheduled to be heard by one of the six rotating Chancellors, but due to scheduling conflicts, the case was sent back to Chancellor Warren's Court where it had been filed originally.

In the Lee case, three judges in the Twentieth District entered into an exchange agreement which created within the District three divisions each of chancery, circuit, and juvenile courts. The practical effect of the agreement was that a criminal case could be heard by a duly elected chancery judge. In granting a writ of mandamus to prohibit this action, we held Ark.Code Ann. § 16-13-403 (1987), which addresses the exchange of districts among judges, did not authorize the exchange of divisions among circuit and chancery judges within a district. The exchange contemplated by the statute was inter-district, as opposed to intra-district.

We recognize that the exchange of paternity cases among the Sixth District Juvenile and Chancery Courts was intra-district in nature. The exchange was, however, expressly authorized by statute. Arkansas Code Ann. § 16-13-1403(b)(2) (Supp.1991) provides:

The circuit judges and chancery judges subject to this subsection [Sixth District] may by agreement, hold either of the circuit or chancery courts and may hear and try matters pending in any of those courts or may hear or try matters in the same court at the same time. The judges subject to this subsection may adopt such rules as they deem appropriate for the assignment of cases in the circuit and chancery courts of their district.

We therefore find the Lee case distinguishable. There is a substantial difference between an agreement which allows a chancellor to preside over a criminal case and an agreement which allows a chancellor to preside over a paternity case which is clearly within the jurisdiction of a chancery court.

3. Separation of powers

Barnes contends the General Assembly violated the separation of powers doctrine, Ark. Const. art, 4, § 2, by enacting Ark.Code Ann. § 9-10-108 (Supp.1991) which governs the admissibility of blood tests in paternity cases. He relies on State v. Sypult, 304 Ark. 5, 800 S.W.2d 402 (1990), and Ricarte v. State, 290 Ark. 100, 717 S.W.2d 488 (1986), in arguing that Section 9-10-108 impermissibly conflicts with this Court's established Rules of Evidence. The Chancellor held Barnes essentially waived his right to raise this constitutional issue because he and his former attorney agreed that the blood test would be admissible. In response to this ruling, Barnes testified his former attorney had not informed him that the test would be admitted in evidence.

The record supports the Chancellor's conclusion that by agreeing that the test would be admissible, Barnes voluntarily abandoned the right to later argue the test was inadmissible because the statute under which it was performed was unconstitutional. See generally Bethell v. Bethell, 268 Ark. 409, 597 S.W.2d 576 (1980) (stating waiver is "the voluntary abandonment or surrender by a capable person of a right known by him to exist, with the intent that he shall be forever deprived of its benefits"). The agreement which was signed by Barnes' counsel specifically stated the blood test would be admissible in evidence. It shows the test was requested by Barnes who signed a form authorizing the test to be administered.

Although Barnes testified he was not informed of the details and effect of the agreement, a client is bound by the actions of his attorney upon matters concerning which the attorney is employed or held out to be the spokesman of the client. Liles v. Liles, 289 Ark. 159, 711 S.W.2d 447 (1986). General rules of agency law apply to the attorney-client relationship. McCullough v. Johnson, 307 Ark. 9, 816 S.W.2d 886 (1991); Peterson v. Worthen Bank & Trust, 296 Ark. 201, 753 S.W.2d 278 (1988); White & Black Rivers Bridge Co. v. Vaughan, 183 Ark. 450, 36 S.W.2d 672 (1931).

4. Sufficiency of the evidence

Barnes argues in his fourth point that there was insufficient evidence to establish paternity. To support his argument, Barnes cites testimony from other witnesses who indicated they had a sexual relationship with Hicks.

In a paternity proceeding brought against a living putative father, the mother's burden of proof is a mere preponderance of the evidence, as the proceeding is civil in nature. McFadden v. Griffith, 278 Ark. 460, 647 S.W.2d 432 (1983). The statute, Ark.Code Ann. § 9-10-108(c)(2)(B) (1987), in effect at the time this cause of action arose, provided:

If the results of the paternity tests establish a ninety-five percent (95%) or more probability of inclusion that the defendant is the natural father of the child and after corroborating testimony of the mother in regard to access during the probable period of conception, such shall constitute a prima facie case of establishment of paternity and the burden of proof shall shift to the defendant to rebut such proof.

The blood test showing a 99.59% probability that Barnes was the natural...