Kupers v. Kupers, CA

• Decision Date: 01 April 1987
• Docket Number: No. CA,CA
• Citation: 726 S.W.2d 686,20 Ark.App. 198
• Parties: Ronald KUPERS, Appellant, v. Julia KUPERS, Appellee. 86-420.
• Court: Arkansas Court of Appeals

Page 686

726 S.W.2d 686

20 Ark.App. 198

Ronald KUPERS, Appellant, v. Julia KUPERS, Appellee.

No. CA 86-420.

Court of Appeals of Arkansas Division I.

April 1, 1987.

Frank W. Booth, Fort Smith, for appellant.

Gant & Gant by H. Zed Gant, Van Buren, for appellee.

COOPER, Judge.

The appellant and Julia Kupers were divorced in 1970. Julia Kupers was awarded custody of the parties' two minor children, and the appellant was ordered to pay child support to her until each child reached the age of twenty-one years. Julia Kupers died on November 22, 1985. Julia Kupers' mother, Julia Woolley, was appointed guardian of the minor children after the death of Julia Kupers. On behalf of the minor children, Julia Woolley filed a motion in the chancery case against the appellant seeking enforcement of the minors' right to support. The appellant defended, claiming that, since Julia Kupers was deceased, all matters between the appellant and Julia Kupers had ceased, and Julia Woolley could not maintain the action to enforce support orders against him on behalf of the minor children because she was not a party to the original divorce.

First, the appellant claims that the court lacked jurisdiction because of lack of service of process. The supplemental record filed in this case reveals that the appellant was served by certified letter in compliance with ARCP Rule 4. We affirm as to this point.

For his second point for reversal, the appellant argues that the jurisdiction of the chancery court terminated upon Julia Kupers' death, relying on Brown v. Brown, 218 Ark. 624, 238 S.W.2d 482 (1951). Brown, however, involved a matter of custody. The situation in the case at bar is more similar to that found in McLaughlin v. Todd, Guardian, 201 Ark. 348, 145 S.W.2d 725 (1940). In McLaughlin, the parties were divorced in 1927, and Mary Belle McLaughlin was awarded custody of the parties' minor child along with child support. Only a few payments were ever made by the appellant to Mary Belle, who died in 1936. In 1938, the appellee was appointed guardian of the child of the appellant and Mary Belle McLaughlin. The guardian then sought to intervene in the original divorce case seeking recovery of accrued child support. The chancellor awarded the guardian judgment for accrued child support, and, on appeal, the appellant claimed that, when Mary Belle McLaughlin died, the chancery court lost jurisdiction of the subject matter of their divorce action because the action abated upon her death. The court stated:

This is not a suit on the judgment in favor of Mary Belle McLaughlin for the support of the child, granted in the divorce action, but it is an attempt by appellee as guardian to intervene in the old action and to require appellant to make the payments to her that were ordered to be made to Mary Belle.

There can be no doubt that on the death of Mary Belle payments that otherwise would have accrued in the future stopped. Up to her death appellant's liability for the support of his child was limited to the decree, but after her death his common-law liability for the support of his child intervened and supplanted the decree.

Id. at 350-51, 145 S.W.2d 725. Further, the court in McLaughlin said "... upon the death of one of the parents ... the divorce decree ceases to...