Hardy v. Hardy

Decision Date24 February 2011
Docket NumberNo. 10–698.,10–698.
Citation380 S.W.3d 354,2011 Ark. 82
CourtArkansas Supreme Court
PartiesJeffrey J. HARDY, Appellant, v. Diana HARDY, Appellee.


Betty J. Hardy, Little Rock, for appellant.

Pamela S. Osment, Conway, for appellee.

KAREN R. BAKER, Justice.

Appellant Jeffrey J. Hardy appeals from orders of the Faulkner County Circuit Court entered on February 18, 2009, and April 9, 2010. Jeffrey argues that the trial court erred in finding that res judicata foreclosed his challenge to the paternity of, and duty to pay child support for, T.H., a child conceived prior to, but born during his marriage to appellee Diana Hardy; quashing discovery he propounded to show that Diana committed fraud under Ark. R. Civ. P. 60(c)(4) and denying his motion for acknowledgment of DNA test results excluding him as the father of T.H.; and finding that Ark.Code Ann. § 9–10–115 and other statutes, as applied, are constitutional. Our jurisdiction is pursuant to Ark. Sup.Ct. R. 1–2(b)(4), (5) (2010). We affirm the decision of the circuit court.

I. Background Facts and Prior Litigation

Jeffrey and Diana were married on April 15, 1995. Diana filed for divorce on July 11, 2002, and alleged that two sons were born of their union—T.H. on May 21, 1995, and W.H. on July 17, 1996. In his answer filed on July 25, 2002, Jeffrey denied that two children had been born of their union, and, on February 3, 2003, he moved for a paternity test relating to T.H. and asserted: (1) that prior to the marriage, Diana stated that she was pregnant and that although she had recently engaged in sexual intercourse with another person, that Jeffrey was the father of the minor child, and that she has continued that representation; and (2) that although T.H. was born during the marriage, Jeffrey has substantial reason to believe that he is not the father of the minor child. Diana filed a response to Jeffrey's motion for paternity testing in which she asserted that he did not have substantial reason to believe that he was not T.H.'s father.

On February 10, 2003, a hearing was held on the divorce petition and on the paternity motion. Jeffrey testified that he questioned Diana one or two days before they were married about the birth date of her unborn child T.H. He stated that he wanted testing done at that time to determine paternity, but Diana asserted that she would not marry him if he sought testing. He stated that the only other time he sought DNA testing was shortly prior to the hearing. He testified that Diana admitted to having unprotected sex with someone other than him shortly before he met her.

Diana testified that she told Jeffrey about her pregnancy as soon as she knew. She also said that she told Jeffrey about the prior sexual contact on the night she first met him. She stated that the first time the topic of the father of her child came up was on the day of their marriage. She declared that she told him that they could cancel the wedding, she could have the baby, have paternity testing done, and then determine if they would get married, but Jeffrey declined. She said this discussion took place on April 12, 1995, and never surfaced again until one week before the hearing.

On March 4, 2003, a divorce decree was entered. The decree awarded custody of the two minor children to Diana, granted Jeffrey visitation, and ordered him to pay child support; however, it made no express finding regarding the paternity of T.H. On March 12, 2003, the circuit judge entered an order denying Jeffrey's motion for paternity testing, finding that it was not in T.H.'s best interest.

II. The Current Litigation

On November 8, 2007, Diana filed a petition for contempt against Jeffrey, who had begun paying a reduced amount of monthly child support. Jeffrey answered on December 3, 2007, and stated that he had obtained a paternity test confirming that he was not the biological father of T.H. and moved to set aside the establishment of paternity under Ark.Code Ann. § 9–10–115(f)(1). Jeffrey served Diana with discovery requests, including interrogatories and requests for admission, regarding the paternity of T.H. On January 22, 2008, Diana objected to the discovery requests and moved for a protective order on February 1, 2008, arguing that the discovery requests were made for purposes of embarrassment and harassment.

Jeffrey next filed a motion to compel Diana to respond to his discovery requests. On February 13, 2008, he served Diana's prenatal-care physician, Paul McChristian, and the Custodian of Records of Conway Regional Medical Center with subpoenas requesting that they appear for depositions and that they produce Diana's prenatal records. Diana moved to quash the subpoenas on the same day.

Following a hearing, the circuit judge entered orders on February 15, 2008, quashing the subpoenas issued to Dr. McChristian and the Custodian of Records and denying Jeffrey's motion to compel responses to his discovery requests. Jeffrey then filed an amended response to Diana's motion for contempt and filed a motion for acknowledgment of the paternity test of T.H. and to set aside the 2003 divorce decree under Ark. R. Civ. P. 60(c)(4). Jeffrey asserted that he was entitled to relief from the divorce decree under Rule 60(c)(4) because Diana had committed fraud upon the court by misrepresenting that there was no substantial reason to believe that he was not the father of T.H.

After receiving notice that Jeffrey intended to depose an expert regarding his paternity test of T.H., Diana filed a motion to quash the deposition on February 20, 2008. On February 21, 2008, the circuit judge quashed the deposition and ordered that [n]o depositions shall be taken regarding the issue of paternity without approval of the Court.” On February 28, 2008, following a hearing on the matter, the circuit judge entered an order finding Jeffrey in willful contempt for his failure to pay child support as ordered by the divorce decree.

On July 16, 2008, Jeffrey moved for a declaratory judgment seeking a declaration that the common-law presumption that a child born to a married couple is the child of the husband is unconstitutional. He also requested the circuit judge to reconsider the order denying his discovery request for Diana's prenatal records and asserted that there was a likelihood that he would succeed on the merits of his claim to set aside the divorce decree under Rule 60(c)(4) if his request for the records was granted. Diana responded that Jeffrey's motion for declaratory judgment was untimely because the issues it raised had been addressed in the 2003 orders from which he had not appealed.

After hearing arguments from the parties, the circuit judge entered an order on February 18, 2009, denying Jeffrey's motion for a declaratory judgment. The circuit judge also denied Jeffrey's motion for reconsideration of his discovery request for Diana's prenatal records. Jeffrey then appealed to this court; however, he never obtained a ruling on his motion to set aside the divorce decree on the grounds of fraud and this court dismissed the appeal without prejudice because a claim for relief remained outstanding and there was no Rule 54(b) certification from the circuit court. Hardy v. Hardy, 2010 Ark. 41, 2010 WL 322996. A final order dismissing the remaining claim has now been entered, and the appeal is properly before this court.

III. Res Judicata

The purpose of res judicata is to put an end to litigation by preventing a party who has already had a fair trial on the matter from litigating it again. Skallerup v. City of Hot Springs, 2009 Ark. 276, 309 S.W.3d 196;Powell v. Lane, 375 Ark. 178, 289 S.W.3d 440 (2008). Res judicata consists of “two facets, one being issue preclusion and the other claim preclusion.” Carwell Elevator Co. v. Leathers, 352 Ark. 381, 388, 101 S.W.3d 211, 216 (2003). Collateral estoppel, the issue preclusion aspect of res judicata, bars relitigation of issues of law or fact previously litigated, provided that the party against whom the earlier decision is being asserted had a full and fair opportunity to litigate the issue in question and that the issue was essential to the judgment. Morgan v. Turner, 2010 Ark. 245, 368 S.W.3d 888. To apply collateral estoppel, the following elements must be present: (1) the issue sought to be precluded must be the same as that involved in the prior litigation; (2) the issue must have been actually litigated; (3) the issue must have been determined by a valid and final judgment; and (4) the determination must have been essential to the judgment. Id. Although collateral estoppel may be asserted by a stranger to the first judgment, the party against whom it is asserted must have been a party to the earlier action and must have had a full and fair opportunity to litigate the issue in the first proceeding. Id.

The claim-preclusion aspect of res judicata bars relitigation when five factors are present: (1) the first suit resulted in a final judgment on the merits; (2) the first suit was based on proper jurisdiction; (3) the first suit was fully contested in good faith; (4) both suits involve the same claim or cause of action; and (5) both suits involve the same parties or their privies. Powell, 375 Ark. 178, 289 S.W.3d 440;Moon v. Marquez, 338 Ark. 636, 999 S.W.2d 678 (1999); Looney v. Looney, 336 Ark. 542, 986 S.W.2d 858 (1999); State Office of Child Support Enforcement v. Williams, 338 Ark. 347, 995 S.W.2d 338 (1999). Where a case is based on the same events as the subject matter of a previous lawsuit, res judicata will apply even if the subsequent lawsuit raises new legal issues and seeks additional remedies. Beebe v. Fountain Lake School Dist., 365 Ark. 536, 231 S.W.3d 628 (2006); Office of Child Support Enforcement v. Willis, 347 Ark. 6, 59 S.W.3d 438 (2001). Also, res judicata bars a subsequent lawsuit that raises issues resolved in a final judgment from which an appeal was not taken in a previous lawsuit. Hunt v. Perry, 357 Ark. 224, 162 S.W.3d 891...

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