Holmes v. Jones

Decision Date14 December 2022
Docket NumberCV-21-516
Citation2022 Ark. App. 517,658 S.W.3d 462
Parties Terry HOLMES, Appellant v. Staci JONES, Appellee
CourtArkansas Court of Appeals

Dobson Law Firm, P.A., Sheridan, by: R. Margaret Dobson, for appellant.

One brief only.

MIKE MURPHY, Judge

In this one-brief appeal, appellant Terry Holmes argues that the Saline County Circuit Court erred in reforming the 2016 divorce decree between him and appellee Staci Jones to contemplate the care and custody of their biological child born during the marriage. On appeal, he argues that res judicata barred the relitigation of paternity. We affirm.

Staci and Terry were married on April 29, 2015. In April 2016, Staci gave birth to a daughter. Terry was told the child was not his, and he was not named on the birth certificate. Terry and Staci were divorced by decree of the Saline County Circuit Court on May 24, 2016. The parties, acting pro se, used an online legal form to create their petition for divorce and the form decree. That form, corresponding pleadings, and decree provided there were no children born of the marriage.

In October 2020, Staci petitioned the court to reform the decree to reflect a child born of the marriage and award the corresponding custody and support. Terry moved to dismiss, arguing that res judicata barred any reformation of the decree and future awards of support or custody because the issues could have been litigated in the 2016 divorce but were not. The circuit court denied the motion to dismiss. A paternity test established Terry as the father of the child. Without waiving his objections and arguments concerning res judicata, Terry agreed to an order modifying the original decree reflecting him as the biological father, awarding custody to Staci, and ordering child support. Terry now appeals, arguing the circuit court erred in not dismissing the petition under principles of res judicata.

In reviewing a circuit court's decision on a motion to dismiss regarding the application of the legal doctrine of res judicata, our review is de novo. Skinner v. Shaw , 2020 Ark. App. 407, at 5, 609 S.W.3d 454, 457–58. We presume that the circuit court acted properly and made such findings of fact as were necessary to support its judgment.

Wyatt v. Wyatt , 2018 Ark. App. 177, at 7, 545 S.W.3d 796, 802. The primary consideration in cases involving the welfare of a child is the best interest of that child. Ark. Dep't of Hum. Servs. v. Couch , 38 Ark. App. 165, 169, 832 S.W.2d 265, 267 (1992).

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. Hardy v. Hardy , 2011 Ark. 82, at 10, 380 S.W.3d 354, 359. Res judicata bars not only the relitigation of claims that were actually litigated in the first suit but also those that could have been litigated. Id. Res judicata is an affirmative defense provided in Arkansas Rule of Civil Procedure 8(c). There are limits on its applicability. For example, if fraud or collusion is used in the procurement of the first judgment, res judicata may not apply. McGee v. McGee , 100 Ark. App. 1, 4, 262 S.W.3d 622, 625 (2007). Additionally, the doctrine of res judicata is not strictly applicable in child-custody matters. Bamburg v. Bamburg , 2014 Ark. App. 269, 435 S.W.3d 6. The supreme court has held that in proceedings concerning custody and support, the rules of civil procedure do apply, but they must be balanced with public policy. See id. ; see also Davis v. Off. of Child Support Enf't , 322 Ark. 352, 356, 908 S.W.2d 649, 652 (1995). The welfare of the child is paramount. Davis , supra.

Terry argues that Staci is attempting to relitigate the decree, and Arkansas precedent consistently holds that res judicata bars parents from challenging paternity once it has been established through a prior action. This is not a misstatement of the law; Terry is correct that there is no shortage of cases applying the doctrine of res judicata to bar relitigation of paternity when it was established under a divorce decree. McCormac v. McCormac , 304 Ark. 89, 799 S.W.2d 806 (1990) ; State Off. of Child Support Enf't v. Williams , 338 Ark. 347, 995 S.W.2d 338 (1999) ; Hardy v. Hardy , 2011 Ark. 82, 380 S.W.3d 354 ; Putt v. Suttles , 2011 Ark. App. 688, 386 S.W.3d 623. The case before us today, however, is distinguishable. First, paternity was never actually litigated. The court never even knew a child existed. And second, while it is also true that res judicata bars litigation of issues that could have been litigated but were not, no precedent has ever applied res judicata to delegitimize a child born during wedlock. As the supreme court explained in Williams , supra , doctrines of res judicata and collateral estoppel were observed "[b]ecause of the potentially damaging effect that relitigation of a paternity determination might have on innocent children." 338 Ark. at 352, 995 S.W.2d at 340 (quoting In re Paternity of JRW & KB , 814 P.2d 1256, 1265 (Wyo. 1991) ); see also Martin v. Pierce , 370 Ark. 53, 60, 257 S.W.3d 82, 88 (2007) (applying res judicata despite fraud allegations due to the policy implications of delegitimizing a child).

A circuit court may modify a divorce decree after ninety days has passed from its entry pursuant to Arkansas Rule of Civil Procedure 60 when that decree contains a general reservation of jurisdiction with respect to issues considered in the original action. Toney v. Burgess , 2018 Ark. App. 54, at 3, 541 S.W.3d 469, 471. Arkansas Code Annotated section 9-12-312(a)(1) (Repl. 2020) provides that when a decree is entered, the court shall make an order concerning the care of the children. Divorces have no effect on the legitimacy of children born before the entry of the decree. Ark. Code Ann. § 9-12-311 (Repl. 2020).

Here, a strict application of res judicata would effectively delegitimize a child born of a marriage. We do not think that this tracks with the spirit of the law. Courts are encouraged to take a more flexible approach to res judicata in settings involving children so that they may be able to best assess what is in the best interest of the child. Bamburg , supra. Nor is child support something that may be obstructed by clever implementation of civil procedure. Davis , 322 Ark. 352, 908 S.W.2d at 656 ("This case therefore requires us to balance the application of ARCP Rule 41 against the public policy that a minor's right to support cannot be permanently settled by his parent."). Put another way, res judicata is a viable defense to a challenge to an established paternity finding, but only insofar as it is not wielded to the affected child's detriment. A child was born of the marriage, and the circuit court was required to make an order concerning her care and custody. It was not erroneous for the court to deny the motion to dismiss.

Affirmed.

Klappenbach, Gruber, and Brown, JJ., agree.

Abramson and Gladwin, JJ., dissent.

Robert J. Gladwin, Judge, dissenting.

In an effort to reach a desired result, the majority makes an argument for the appellee that was not made to the trial court nor to this court. That error is compounded by the fact that it also disregards clear established precedent that res judicata should apply in this case. I would reverse the trial court's failure to apply res judicata; therefore, I dissent.

I. Facts

A more thorough examination of the procedural history of this case is necessary for an understanding of the issues presented.

Holmes and appellee Staci Jones were married on April 29, 2015. The parties separated on or about July 15, 2015, and Jones filed a pro se complaint for divorce in the Saline County Circuit Court on April 20, 2016. She alleged in her verified divorce complaint that there were no minor children born of the marriage and that none were expected. Holmes entered his appearance and waived service and notice. The divorce decree was filed on May 24, 2016, stating that "[t]here are no children born during this marriage and none are expected."

On October 26, 2020, Jones filed a petition alleging that the parties had entered into an "agreed Divorce" and had utilized a "do it yourself" kit. She claimed, "Everything was correct in that Divorce proceeding ... but the parties did have a child that was theirs biologically and which was born during the marriage." The child's birth certificate was attached to the petition, and it reflects that the child was born on April 5, 2016, two weeks before Jones's divorce complaint was filed. Jones asked that the divorce decree be "reformed" to reflect that the parties had a child born to them during the marriage. She asked that she be awarded custody and child support and that medical and insurance expenses for the child be divided equally.

Holmes responded that the parties had lived together for approximately two months and that when the child was born on April 5, 2016, Jones told him that the child was not his. He is not listed on the child's birth certificate, and Jones "has the child call someone else ‘Daddy.’ " He affirmatively pled the defenses of Rules 12(b) and 8(c) of the Arkansas Rules of Civil Procedure in addition to judicata, laches, estoppel, and failure to state facts upon which relief can be granted.

On December 14, 2020, Holmes moved to dismiss Jones's petition, alleging that Jones's boyfriend had been present for the child's birth and that Holmes was not named on the birth certificate. He also alleged that two weeks after the child's birth, Jones filed a notarized deposition in the divorce action and stated under oath that there were no children of the marriage and that none were expected. The May 24, 2016, decree reflects the same. He argued that res judicata has been applied to the issue of paternity when paternity is addressed under a divorce decree. State Office of Child Support Enf't v. Williams , 338 Ark. 347, 995 S.W.2d 338 (1999) ; McCormac v. McCormac , 304 Ark. 89, 799 S.W.2d 806 ...

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