Bean v Office Child Support Enforcement

• Decision Date: 03 February 2000
• Docket Number: 99-131
• Citation: 9 S.W.3d 520
• Parties: Gary BEAN v. OFFICE of CHILD SUPPORT ENFORCEMENT 99-131 ___ S.W.3d ___ Opinion delivered
• Court: Arkansas Supreme Court

Gary BEAN v OFFICE of CHILD SUPPORT ENFORCEMENT

99-131 ___ S.W.3d ___

Opinion delivered February 3, 2000

Supreme Court of Arkansas

Appeal from Nevada Chancery Court; Philip Bruce Purifoy, Chancellor; affirmed.

1. Appeal & error -- chancery cases -- standard of review. -- The supreme court reviews chancery cases de novo on the record, but does not reverse a finding of fact by the chancellor unless it is clearly erroneous; a finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed.

2. Parent & child -- affidavit of birth acknowledgment -- sufficient to comply with statute's intent. -- Although statutes relied upon by appellant were not in effect in 1990 when the "Affidavit of Birth Out of Wedlock" was signed by the child's mother and the man with whom she was cohabiting, there was in effect at that time a statute, Ark. Code Ann. § 9-10-120(a), which also allowed a "similar acknowledgment" to suffice if it was executed during the child's minority; where the notarized signatures of both the cohabitor and the mother of the child appeared on the form; where the form noted that the child was to carry the surname of the cohabitor; and where that was the surname that appeared on the child's birth certificate, the affidavit complied with the intent of section 9-10-120(a) as a "similar acknowledgment."

3. Statutes -- retroactive application -- statutes presumed to apply prospectively. -- Retroactivity is a matter of legislative intent; unless it expressly states otherwise, the supreme court presumes that the legislature intends for its laws to apply only prospectively; any interpretation of an act must be aimed at determining whether retroactive effect is stated or implied so clearly and unequivocally as to eliminate any doubt; in determining legislative intent, the court has observed a strict rule of construction against retroactive operation and indulged in the presumption that the legislature intended statutes, or amendments thereof, enacted by it, to operate prospectively only and not retroactively.

4. Statutes -- construction -- when strict rule inapplicable. -- The strict rule of construction does not apply to remedial statutes which do not disturb vested rights, or create new obligations, but only supply a new or more appropriate remedy to enforce an existing right or obligation; procedural legislation is more often given retroactive application; the cardinal principle for construing remedial legislation is for the courts to give appropriate regard to the spirit which promoted its enactment, the mischief sought to be abolished, and the remedy proposed; in addition, retroactive application of civil statutes has been approved, especially those concerning the fiscal affairs of government.

5. Statutes -- Ark. Code Ann. § 9-10-115 -- not retroactively applied. -- Where the federal statute, 42 U.S.C. §668, did not require, but only encouraged, compliance with the provision to establish a simple civil process for voluntarily acknowledging paternity and, in fact, such language was removed from § 668 a year after the passage of Act 1091 of 1995; the Emergency Clause of Act 1091 did not state that the statute was to be applied retroactively; and retroactive application of Act 1091 to any type of "acknowledgment" signed before the Act's effective date would have created a new obligation because the man signing the form, by operation of law, would become the father conclusively when, before Act 1091 was passed, such evidence could only be used as persuasive, presumptive evidence of paternity, the statute was determined to be effective prospectively, not retroactively.

6. Limitation of actions -- statute applied prospectively only -- limitations period applicable to statute not triggered. -- Because Ark. Code Ann. § 9-10-115 could not be applied retroactively, the five-year statute of limitations found in the then existing version of § 9-10-115(c)(2) did not apply to the affidavit; if the voluntary acknowledgment of paternity was not conclusive by operation of law under the law as it existed in 1990, which it was not, then paternity was not established in order to trigger the running of the statute of limitations.

7. Parent & child -- award of support from date of complaint -- not clearly erroneous. -- Because paternity was never established in the cohabitor, there was never a finding of paternity for the court to set aside under Ark. Code Ann. § 9-10-115; therefore, Ark. Code Ann. § 9-10-111 (Supp. 1995), which allows the chancery court to award support from as early as the date of the birth of the child, applied; the trial court had the option to award past support from the child's birth forward, but chose instead to award past support from the date of the filing of the complaint against appellant to the time the judgment was entered; because the chancellor could have awarded support from the child's date of birth, his decision to award support from the date of the filing of the complaint was not clearly erroneous.

8. Parent & child -- original action to establish paternity -- chancellor's determination not clearly erroneous. -- Because appellee's claim against appellant was actually an original action to establish paternity, as opposed to an action to modify a paternity order, the judge correctly found that appellant was the child's father pursuant to Ark. Code Ann. § 9-10-108(a)(6)(B); here, two paternity tests established that appellant was the child's father; those tests, along with the corroborating evidence offered witnesses at trial, constituted a prima facie case of the establishment of paternity; as such, the burden shifted to appellant to rebut that evidence, which he attempted to do by offering the Affidavit of Birth Out of Wedlock and birth certificate as evidence of the male signatory's parentage of the child; however, under law, the applicable when those documents were executed, they constituted presumptive evidence of paternity only, not conclusive evidence; the chancellor's determination that appellant did not rebut the presumption that he was the child's father was not clearly erroneous; affirmed.

James, Yeatman, & Carter, by: Holly E. Isaac, for appellant.

Greg L. Mitchell, for appellee.

Lavenski R. Smith, Justice.

Appellant Gary Bean appeals a Nevada County Chancery Court decision which found Bean to be the father of M.N. Bean contends that the trial court erred because another man had acknowledged paternity two days after the child was born some six years prior to this action. The Arkansas Court of Appeals certified this matter to us as a case presenting an issue of significant public interest and involving a legal principle of major importance. We, therefore, have jurisdiction under Ark. Sup. Ct. R. 1-2(d)(2) and 1-2(b)(4), (5) and (6). Facts

Donna Kay Hale, M.N.'s mother, married Jeffery Bryant Smith on November 21, 1988, in San Jose, California. Hale soon separated from Smith because of alleged abuse in the marriage. Hale moved from California to Arkansas in June 1989 after which she began working at Delta Express in Russellville, Arkansas. Within a week of starting her new job, Hale met Bean at work, and the two began dating sometime in early July 1989. According to Hale, their relationship became intimate within a week of their initial meeting, and the couple were sexually involved until mid-November 1989. Bean, however, testified at trial that he met Hale in 1988, and last saw her in June 1989. Hale found out she was pregnant in December 1989, and she apparently called Bean at his place of work to inform him of the news. According to Hale, Bean did not want to have anything to do with the child.

While pregnant with Bean's child, Hale met Stanley Ross Nichols. Hale testified that the two became friends in January 1990 but admitted on cross-examination that they actually met in November 1989. Within two months, Hale moved in with Nichols. Hale and Nichols became sexually intimate. On May 3, 1990, Hale secured a divorce from Smith. Two days after M.N.'s birth, on June 28, 1990, Hale and Nichols executed an "Affidavit of Birth Out of Wedlock" stating that they were M.N.'s natural parents. In particular, the Department of Health form provided that the child would bear Nichols's surname and that Nichols was "acknowledging possible financial and legal responsibilities to the child herein." Nichols agreed to assume the obligations of being M.N.'s father. Nichols's name appears on the birth certificate as M.N.'s father. According to Hale, she and Nichols continued to cohabit until late July 1990 when Hale went to a rodeo with Bean causing Nichols to end the relationship with Hale. Soon thereafter, Hale moved to Gloucester, New Jersey. There, she filed a paternity action against Nichols in December 1990. In April 1991, Hale married David Dibartolo in New Jersey. The couple divorced in October 1995. During this time, Hale indicated at trial that she contacted Bean about twice between 1993 and 1995. Bean acknowledged that he first learned about M.N. in 1993 when Hale called him.

Hale subsequently returned to Arkansas and filed for and received Medicaid benefits for M.N. Appellee, Arkansas Child Support Enforcement Unit ("CSEU"), brought a paternity action against Bean based upon Hale's allegations on April 22, 1996, alleging paternity and seeking past child support for M.N.'s birth, lying-in expenses from the birth, health insurance, future child support, and attorney's fees and costs. Bean answered this complaint on May 29, 1996, denying that he was M.N.'s father and moving to dismiss the action against him. In an order entered October 8, 1996, the chancery court denied Bean's motion to dismiss and ordered DNA testing of Hale, M.N., and Bean pursuant to Ark. Code Ann. § 9-10-108(Repl. 1995).

On December 23, 1996, Bean filed a motion for...