Eaves v. Dover, 86-220

• Decision Date: 23 March 1987
• Docket Number: No. 86-220,86-220
• Citation: Eaves v. Dover, 726 S.W.2d 276, 291 Ark. 545 (Ark. 1987)
• Parties: William Edward EAVES, II, Appellant, v. Edith Day DOVER, Appellee.
• Court: Arkansas Supreme Court

Page 276

726 S.W.2d 276

291 Ark. 545

William Edward EAVES, II, Appellant, v.Edith Day DOVER, Appellee.

No. 86-220.

Supreme Court of Arkansas.

March 23, 1987.

Gregory E. Bryant, Little Rock, for appellant.

T.B. Patterson, Jr., Jacksonville, for appellee.

GLAZE, Justice.

Appellant, the father, filed a paternity petition, seeking a paternity determination of his son.Appellee, the mother, answered, admitting appellant was the father of the child but seeking a denial of his visitation rights and recovery of her lying-in expenses, child support and attorney's fees.An order was issued by the juvenile referee, determining appellant to be the natural father, and ordering him to pay lying-in expenses of $3,113.65 and attorney's fees of $500.00.The circuit court affirmed the referee's order and awarded an additional attorney's fee of $350.00.Appellant appeals, contending that Ark.Stat.Ann. § 34-706(Supp.1985) is a gender-based statute that violates the equal protection clause of the fourteenth amendment to the U.S. Constitution.¹He further argues that, because the statute is unconstitutional, the award of lying-in expenses and attorney's fees should be reversed.We hold § 34-706 is constitutional, and, therefore, affirm the trial court.

Section 34-706 provides in relevant part:

If it is found by the court that the accused is the father of the child, the court shall render judgment against him for the lying-in expenses in favor of the mother, or person who incurred the same, if required or claimed, for a sum not less than twenty-five dollars ($25.00), and if the same shall not be paid upon the rendition of such judgment, together with all costs which may be adjudged against him in said case, then the court shall have the power to commit the accused person to jail until the same shall be paid, with all costs; ...

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Provided, however, that the court may at any time, enlarge, diminish, or vacate any order or judgment in the proceedings under this Act[§§ 34-701--34-714] as justice may require and on such notice to the defendant as the court may prescribe.

Appellant argues § 34-706 denies him equal protection and, in effect, is a civil punishment in that all costs fall squarely on him.Appellant relies upon Orr v. Orr, 440 U.S. 268, 99 S.Ct. 1102, 59 L.Ed.2d 306(1979) wherein the Supreme Court held unconstitutional Alabama alimony statutes which provided that husbands, but not wives, may be required to pay alimony upon divorce.To this same effect, seeHatcher v. Hatcher, 265 Ark. 681, 580 S.W.2d 475(1979).The Orr Court determined that the statutory scheme in question created a constitutionally-suspect classification wherein the distinctions made were gender-based without serving important governmental objectives.That Court's holding and its underlying rationale in no way apply here.

We first are obliged to point out that appellant reads § 34-706 too narrowly when arguing that statute affords the trial court no discretion and requires it to impose all lying-in expenses upon the father.²As early as 1910, this court, in construing § 34-706, held that the award of lying-in expenses must be confided largely to the discretion of the trial court.Belford v. State, 96 Ark. 274, 131 S.W. 953(1910).In 1979, the General Assembly amended § 34-706, empowering the trial court with the discretion at any time...