Brun v. Rembert, 5-1145

• Decision Date: 28 January 1957
• Docket Number: No. 5-1145,5-1145
• Citation: 227 Ark. 241,297 S.W.2d 940
• Parties: Frank J. BRUN, Jr., Appellant, v. Juanita S. (Brun) REMBERT, Appellee.
• Court: Arkansas Supreme Court

Page 940

297 S.W.2d 940

227 Ark. 241

Frank J. BRUN, Jr., Appellant, v. Juanita S. (Brun) REMBERT, Appellee.

No. 5-1145.

Supreme Court of Arkansas.

Jan. 28, 1957.

Hardin, Barton, Hardin & Garner, Ft. Smith, for appellant.

Holland & Holland, Ft. Smith, for appellee.

HARRIS, Chief Justice.

Appellee (plaintiff below) was awarded a decree of divorce from appellant on September 12, 1944, by the Sebastian Chancery Court. The custody of the minor child, Juanita Marie Brun, was given to appellee, but no support payments for the child were ordered by the court at that time. Subsequent thereto, (May 31, 1946) the court entered an order directing appellant to pay the sum of $32.50 per month for the support of the child, then 13 years of age, and two payments were made under the order. No further payments were made, and on November 2, 1950, Juanita Marie attained her majority. The proof shows that she is presently married, and has a child of her own. On December 31, 1955, more than five years after the last payment became due, appellee filed suit against appellant seeking to reduce to judgment the delinquent payments in the amount of $1,657.50. The amount sought was not questioned, but appellant filed answer setting up other defenses. At the conclusion of the hearing the Chancellor granted the relief sought and entered judgment against appellant in the sum of $1,657.50, together with costs, and providing that execution might issue if judgment was not paid within ten days. From such holding of the Chancellor, comes this appeal.

For reversal, appellant primarily urges that this action is barred by the Statute of Limitations. This is evidently a case of first impression under this defense. Appellee argues that the court in Pence v. Pence, 223 Ark. 782, 268 S.W.2d 609, held against this contention. The opinion in the Pence case did not go into the matter of limitations, but rather was decided on the question of the mother removing the child without authority to a place unknown to the father, and thus depriving him of the opportunity to see and visit with said child. While the three-year statute of limitations was pleaded in that cause, it was not passed upon by the trial court, and definitely was not passed upon by this court. It might be also stated that the facts in that case were vastly different from those here on appeal. There the child was still a minor so there was a present and continuing duty upon the father to support said child. It is recognized that child support is a family duty, and one which would be incumbent upon a father, even though there were no order requiring such support. McCall v. McCall, 205 Ark. 1123, 172 S.W.2d 677. In the case before us, the order for support payments was not a current cause; the child had attained her majority more than five years before the institution of this suit. Worthington v. Worthington, 207 Ark. 185, 179 S.W.2d 648. This is an action for the benefit of the ex-wife; the amount sought will not go to the child. It is no more than an effort by a former wife to collect a debt.

All agree that some statute of limitations must apply. The sole question is 'Which statute?' Appellant argues both the three and five year periods. The three-year statute is set forth at Sec. 37-206, Ark.Statutes Annotated. The ten-year statute, Sec. 37-212, reads as follows: 'Judgments and decrees--Ten years.--Actions on all judgments and decrees shall be commenced within ten (10) years after cause of action shall accrue, and not afterward.' Section 37-213 provides: 'Actions not otherwise provided for--Five years.--All actions not included in the foregoing provisions shall be commenced within five (5) years after the cause of action shall have accrued.' The three-year statute obviously was not meant to apply in matters of this nature, but appellant earnestly argues that the five-year limitation does apply.

Section 29-101, headed 'Judgments and Decrees,' reads as follows: 'Judgment defined.--A judgment is the final determination of the rights of the parties in an action.' 1 Bouv.Law Dict., Rawle's Third Revision, p. 803, defines a final decree as 'One which finally disposes of a cause, so that nothing further is left for the court to adjudicate.' Thus we find that a final decree is conclusive--nothing remains to be done. Appellee insists that the effect of the holding in Sage v. Sage, 219 Ark. 853, 245 S.W.2d 398, wherein it was held that past-due payments vest in the payee as they accrue, is to declare such vested payments a judgment as contemplated under Section 37-212. Since this section provides a ten-year limitation period, appellee contends that her suit was brought in time. We do not concur with this thinking. It is true that in the Sage case, supra, we held that the trial court had no authority to modify payments which had already become due. The right of...