Graves v. Stevison

Decision Date05 March 2003
Docket NumberNo. CA 02-600.,CA 02-600.
Citation98 S.W.3d 848
PartiesJerome GRAVES v. Loran Graves STEVISON.
CourtArkansas Court of Appeals

William Marshall Prettyman, Jr., Fayetteville, for appellant.

Joseph S. Baker, West Helena, for appellee.

SAM BIRD, Judge.

This appeal is from an order denying appellant Jerome Graves's motion, on the ground of fraud, to abate his child-support obligation for a child who was born to his ex-wife, appellee Loran Graves Stevison, a few weeks before the parties' divorce was final. The Crittenden County circuit judge denied his motion on the basis of res judicata. We affirm the denial of appellant's motion for two reasons not expressed by the judge.

The parties were married in September 1986 and separated in May 1987. On March 14, 1988, appellee filed for divorce and stated in her complaint that she was expecting a "child of the marriage." Although appellant was served with process, he did not file an answer or otherwise defend the action. The child, Julia, was born on July 20, 1988. The judge granted appellee a divorce on August 10, 1988. Finding that the parties had one minor child, the judge awarded appellee custody of Julia and ordered appellant to pay child support in the amount of $20 per week. In a later URESA action from Tennessee filed in the Crittenden County Chancery Court, Case No. E89-1750, the Office of Child Support Enforcement (OCSE) obtained a judgment against appellant for arrearages and an order requiring appellant to pay $20 per week for the support of the child.

On January 26, 2000, appellant filed a petition for relief from judgment in the original divorce action, alleging that, at the time of the divorce he did not doubt that he was Julia's father but had since learned otherwise. He requested that he be relieved of his obligation to pay child support for Julia. To his complaint, appellant attached appellee's affidavit, wherein she stated:

3. During the marriage, one child was born to me, namely Julia Renee Graves, born July 20, 1988. This child was listed as a child of the marriage in the divorce decree. However, Jerome Graves is not the father of Julia Renee Graves. Jerome Graves was listed as the father of the child because we were still married at the time of her birth.

4. Julian Partee is the father of the child. He is also the father of my child Asia Graves, born May 31, 1989. I believe he lives in Memphis, Tennessee, but I do not know his address.

The OCSE's action against appellant in E89-1750 was consolidated with this case, and the OCSE assumed the status of an intervenor. Blood tests that were performed later determined that appellant is not Julia's father.

Appellant argued below that, pursuant to Ark. R. Civ. P. 60(c)(4), he was entitled to have the determination of his paternity in the divorce decree set aside because appellee had committed intrinsic fraud. Formerly, a judgment could be set aside under that rule for extrinsic, but not intrinsic, fraud. Rule 60(c)(4) was amended in January 2000. The amendment abolished the traditional distinction between intrinsic and extrinsic fraud and provided that, after ninety days, a judgment may be set aside for "fraud (whether heretofore denominated intrinsic or extrinsic) by an adverse party." According to appellant, the amendment to the Rule made it possible for the court to set aside the determination of his paternity of Julia. The OCSE argued in response that the determination of the child's paternity was res judicata and could not be relitigated by the parties. It also argued that, although Lord Mansfield's Rule1 had been abrogated, the best interests of the child would not be served in this situation by relitigating her paternity. The OCSE further argued that appellant had failed to prove that any fraud, intrinsic or extrinsic, had occurred.

A hearing was held on the motion. The record does not reveal that any testimony was taken. On December 18, 2000, the judge issued a letter opinion, wherein he stated:

It is true, as defendant asserts, that fraud in procurement of the judgment is a defense against application of the doctrine of res judicata. Wells v. Ark. Public Service Commission, [272] Ark. 481, 616 S.W.2d 718 (1981). The query here, is the non-disclosure of plaintiff to defendant that he may not be the father, such fraud as to defeat the defense of res judicata? Clearly, prior to amendment of Rule 60(c), it was not, the extrinsic/intrinsic rule holding sway. Alexander v. Alexander, 217 Ark. 230, 229 S.W.2d 234 (1950).

The holding, tone and tenor of OCSE v. Williams, 338 Ark. 347, 995 S.W.2d 338 (1999), suggests that this type fraud is tolerated in Arkansas, as well as other jurisdiction[s], on some public policy basis that children of such marriages are entitled to be supported. To this Court, it is bad policy to reward an adulterous, deceitful, nefarious, lying litigant to saddle an unsuspecting man with such a burden, but it appears to be the law, and this Court is obliged to enforce it, as distasteful as it is. It is not as though the child will remain in blissful ignorance of the true fact. Here, her mother has filed an affidavit, admitting her perjured testimony, and named the true father.

Defendant cites OCSE v. Mitchell, 61 Ark.App. 54, 964 S.W.2d 218 (1998), but that case dealt with a child out-of-wedlock, and Williams seems to hold cases of that sort are on a different footing than children born during a marriage.

In sum, the Court find[s] that Williams controls the outcome here, and the January, 2000 amendment to Rule 60(c) does not offer a reason to escape the effect of res judicata on the prior holding that defendant is the father.

The order denying appellant's motion to abate child support on these grounds was filed on March 8, 2002. It is from that order that this appeal follows.

Arguments

Appellant contends on appeal as he did below that, pursuant to the January 2000 amendment to Ark. R. Civ. P. 60(c)(4), which abolished the distinction between intrinsic and extrinsic fraud, he was entitled to relief from the judge's finding that he is the father of the child and to abatement of his child-support obligation. He argues that judicial determinations of paternity are no exception to the remedy provided by Rule 60(c)(4) to litigants who have been defrauded. He also asserts that he did not have a fair opportunity to litigate the issue of paternity prior to the entry of the divorce decree because of the application of Lord Mansfield's Rule, which has since been abrogated by Ark. Code Ann. § 16-43-901 (Repl.1999). Appellant further contends that Office of Child Support Enforcement v. Williams, 338 Ark. 347, 995 S.W.2d 338 (1999), on which the judge relied, is factually and legally distinguishable from this situation. We need not decide these issues because Rule 60 does not apply in this case and appellant failed to establish fraud.

Rule 60(c)(4), Rule 55(c), and Fraud

Appellant's reliance upon Rule 60 is misplaced because the divorce decree was a default judgment, to which Rule 60 does not apply. Although appellant was served with process, he did not file an answer or otherwise appear in the divorce action before the decree was filed. Arkansas Rule of Civil Procedure 55(a) states: "When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules, judgment by default may be entered by the court." Rule 60(c)(4) expressly provides that it does not apply to default judgments:

(c) Grounds for Setting Aside Judgment, Other Than Default Judgment, After Ninety Days. The court in which a judgment, other than a default judgment [which may be set aside in accordance with Rule 55(c)] has been rendered or order made shall have the power, after the expiration of ninety (90) days of the filing of said judgment with the clerk of the court, to vacate or modify such judgment or order:

. . . .

(4) For misrepresentation or fraud (whether heretofore denominated intrinsic or extrinsic) by an adverse party.

Additionally, the Reporter's Notes to Rule 55 state that it is "the exclusive basis for setting aside a default judgment" and that, "[a]s amended in 1990, Rule 60 does not apply to default judgments." The court may, upon motion, set aside a default judgment previously entered for the reason of fraud. See Rule 55(c)(3).2 Unlike Rule 60(c)(4), Rule 55(c) was not amended to include intrinsic fraud as a basis for setting aside a judgment. Therefore, we conclude that extrinsic fraud is still required to set aside a default judgment.

Our next question is whether appellant established extrinsic fraud. In Ward v. McCord, 61 Ark.App. 271, 966 S.W.2d 925 (1998), we discussed extrinsic fraud, which was then required to set aside a decree under Rule 60(c)(4):

[T]he fraud for which a decree will be canceled must consist in its procurement and not merely in the original cause of action. First Nat'l Bank v. Higginbotham Funeral Serv, Inc., 36 Ark.App. 65, 818 S.W.2d 583 (1991). It is not sufficient to show that the court reached its conclusion upon false or incomplete evidence, or without any evidence at all, but it must be shown that some fraud or imposition was practiced upon the court in the procurement of the decree, and this must be something more than false or fraudulent acts or testimony the truth of which was, or might have been, an issue in the proceeding before the court which resulted in the decree assailed. Id.... The party seeking to set aside the judgment has the burden of showing that the judgment was obtained by fraud, and the charge of fraud must be sustained by clear, strong, and satisfactory proof. [Id.] Whether the procurement of a judgment amounted to fraud upon the court is a conclusion of law. Hardin v. Hardin, 237 Ark. 237, 372 S.W.2d 260 (1963).

61 Ark.App. at 279-81, 966 S.W.2d at 928-30 (citations omitted). The only evidence offered by appellant was Ms. Stevison's affidavit, quoted above. The record...

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6 cases
  • Parker v. Parker
    • United States
    • Florida Supreme Court
    • November 30, 2005
    ...Temple, 161 S.W.3d at 225-26 (citations omitted). Although not as developed, Arkansas law is similar. See Graves v. Stevison, 81 Ark.App. 137, 98 S.W.3d 848 (2003); State Office of Child Support Enforcement v. Mitchell, 61 Ark.App. 54, 964 S.W.2d 218 The Vermont Supreme Court's decision in ......
  • Harrison v. Harrison
    • United States
    • Arkansas Court of Appeals
    • September 17, 2008
    ...bad policy: "To this Court, it is bad policy to reward an adulterous, deceitful, nefarious, lying litigant." Graves v. Stevison, 81 Ark.App. 137, 141, 98 S.W.3d 848, 850 (2003) (referencing a mother who admitted the father she sued for paternity was not the true father of the child). The tr......
  • Parker v. Parker
    • United States
    • Florida Supreme Court
    • February 1, 2007
    ...intrinsic fraud, not extrinsic fraud. See, e.g., Anonymous v. Anonymous, 473 So.2d 502 (Ala.Civ.App.1984); Graves v. Stevison, 81 Ark.App. 137, 98 S.W.3d 848 (2003); Miller v. Miller, 956 P.2d 887, 905 (Okla.1998); Mr. G. v. Mrs. G, 320 S.C. 305, 465 S.E.2d 101, 103 (App.1995); Temple v. Ar......
  • McGee v. McGee
    • United States
    • Arkansas Court of Appeals
    • September 19, 2007
    ...a "defrauded" father the opportunity to relitigate the issue of paternity. Id. at 352, 995 S.W.2d at 340; see also Graves v. Stevison, 81 Ark. App. 137, 98 S.W.3d 848 (2003). We affirm the trial court's holding that res judicata bars relitigation of the finding of paternity in the original ......
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