Parker v. Sebourn

• Decision Date: 23 January 2003
• Docket Number: No. 02-803.,02-803.
• Citation: 95 S.W.3d 762,351 Ark. 453
• Parties: Betty Ann PARKER v. David Allen SEBOURN.
• Court: Arkansas Supreme Court

95 S.W.3d 762

351 Ark. 453

Betty Ann PARKER v. David Allen SEBOURN.

No. 02-803.

Supreme Court of Arkansas.

January 23, 2003.

Griffin J. Stockley, for appellant.

One brief only.

W.H. "DUB" ARNOLD, Chief Justice.

This is an appeal from the denial of a motion to set aside an order terminating the parental rights of the appellant, Betty Ann Parker. Arkansas Code Annotated § 16-13-304 (Repl.1999) permitted the trial court to terminate the parental rights upon the appointment of a guardian ad litem to represent the child. Appellant asserts that the trial court lacked subjectmatter jurisdiction to terminate her parental rights and that Ark.Code Ann. § 16-13-304, as applied, violated the public policy of the State of Arkansas against bastardization of children and is, therefore, void. We hold that appellant's motion to set aside, filed nearly four years after the order of termination was entered, was untimely and affirm the trial court's denial of the motion.

The history of the case is as follows: Appellee, David Allen Sebourn, filed a petition on March 24, 1998, in Lonoke County Chancery Court, in which he sought to terminate the parental rights of the appellant, Betty Ann Parker. David Sebourn alleged that he and Betty Parker were the parents of Megan Sebourn, born June 6, 1992. He alleged that he and Betty Parker were not married at the time of the birth of Megan and had never married. Mr. Sebourn alleged that he had sole responsibility for the care and custody of Megan. He did not allege that he was seeking to establish paternity or any other underlying cause of action. He alleged that Betty Parker had indicated her desire to terminate her relationship with her daughter. Mr. Sebourn requested that a guardian ad litem be appointed to represent the child's interests, pursuant to Ark. Code Ann. § 16-13-304. On May 12, 1998, the Court appointed attorney Michael Stuart as guardian ad litem to represent the best interests of the child.

On September 14, 1998, the court issued an order terminating the parental rights of Betty Parker; the order stated that the court was basing its decision on the "pleadings filed herein, the consent to terminate parental rights executed by Betty Ann Parker, the oral report of the attorney ad litem, and all other evidence before the Court."¹ No appeal was taken. Then, nearly four years later, Ms. Parker filed a motion to set aside the court's order terminating her parental rights. Ms. Parker alleged that the trial court had lacked subject-matter jurisdiction to terminate her parental rights. Mr. Sebourn responded that Ark.Code Ann. § 16-13-304(d)(1), as then codified, gave the court subject-matter jurisdiction.

On May 20, 2002, the motion to set aside the court's order was argued to the trial court. Ms. Parker argued that the court's order terminating her parental rights served to "bastardize" the child and was, therefore, against public policy and that the court did not have subject-matter jurisdiction. Mr. Sebourn, as well as the guardian ad litem, argued that the motion to set aside was not brought in a timely manner, as it was brought nearly four years after the termination order had been entered; they further argued that the original matter of termination was, in fact, "properly before the court" at that time (four years prior) and that, therefore, the court did have jurisdiction to terminate Ms. Parker's parental rights under the statute.

The trial court denied Ms. Parker's motion to set aside its order. Ms. Parker now appeals that decision. We affirm.

Appellant is procedurally barred to proceed in this matter. Rule 60(a) of the Arkansas Rules of Civil Procedure allows that, upon motion, the court may modify or vacate a judgment within ninety days of its having been filed with the clerk. There are, under Rule 60(c), grounds listed for setting aside a judgment after ninety days, but the appellant herein asserts none of those exceptions as a reason for setting aside the order outside of the ninety-day period.

Appellant does assert that the trial court did not have subject-matter jurisdiction. However, we have held that unless one of the seven exceptions listed in Rule 60(c) is asserted and applies, even a motion to set aside for lack of subject-matter jurisdiction must be filed within ninety days from the date the order is entered. See Summers v. Griffith, 317 Ark. 404, 878 S.W.2d 401 (1994). We have further held that it is only when the lower court lacks jurisdiction in any and all circumstances that the challenging party will be excused from objecting to the jurisdiction in the trial court. J.W. Reynolds Lumber Co. v. Smackover State Bank, 310 Ark. 342, 836 S.W.2d 853 (1992); Chapin v. Stuckey, 286 Ark. 359, 692 S.W.2d 609 (1985); Crittenden County v. Williford, 283 Ark. 289, 675 S.W.2d 631 (1984).

The trial court indisputably had subject-matter jurisdiction to enter the order of termination in this case. Arkansas Code Annotated § 16-13-304(d) gave the chancery court concurrent jurisdiction to hear termination of parental rights cases. A motion to set aside an order of termination brought some four years after the fact and asserting no exceptions under Rule 60(c) allowing for the motion to be brought outside of ninety days cannot be entertained in this instance because the chancery court was not wholly without subject-matter jurisdiction. Appellant's motion to set aside was untimely. As appellant is procedurally barred from proceeding on appeal, we need not address the merits of appellant's public policy argument.

Affirmed.

CORBIN, J., concurs.

GLAZE, J., dissents; IMBER, J., joins.

DONALD L. CORBIN, Justice, concurring.

I concur in the judgment reached by the majority that Appellant Betty Ann Parker's challenge to the order terminating her parental rights is untimely. At the time of the termination in this case, Ark. Code Ann. § 16-13-304(d) (Repl.1999) provided chancery courts with concurrent jurisdiction to hear termination cases; however, where the parties to the chancery court proceedings are also parties to a juvenile proceeding, the juvenile court has exclusive jurisdiction. Because chancery's jurisdiction over termination cases is concurrent, Parker's challenge to the court's subject-matter jurisdiction brought some four years after the fact is barred.

It is well settled that subject-matter jurisdiction may not be stipulated by the parties and, "if lacking, cannot be induced simply because there is no objection." J.W. Reynolds Lumber Co. v. Smackover State Bank, 310 Ark. 342, 352, 836 S.W.2d 853, 858 (1992). However, that general rule applies only where jurisdiction does not exist under any circumstances. Id. (citing Crittenden County v. Williford, 283 Ark. 289, 675 S.W.2d 631 (1984)). In Crittenden County, this court explained:

It is true our cases hold that since jurisdiction of the subject matter cannot be conferred by consent of the parties, the absence of an objection on that basis is not ordinarily fatal. However, it must be said the rule applies only in those instances where such jurisdiction could not, under any circumstances, exist.

Id. at 291, 675 S.W.2d at 633 (citations omitted) (emphasis added). See also Chapin v. Stuckey, 286 Ark. 359, 692 S.W.2d 609 (1985). Because section 16-13-304(d) gave chancery courts concurrent jurisdiction to hear termination cases, it cannot be said that the chancery court in this case lacked subject-matter jurisdiction under any circumstances. Accordingly, Parker may not raise this issue for the first time some four years after the fact.

Moreover, I agree with the majority that under Ark. R. Civ. P. 60, Parker was required to file her motion to set aside the order of termination within ninety days from the date that the order was entered. Rule 60(a) provides that the trial court may modify or vacate an order within ninety days of the date that the order is entered. The only exceptions to the ninetyday limit are set out in provisions (b) and (c) of the rule. Provision (b) provides that, after the ninety-day deadline, a court only has jurisdiction to correct clerical errors, while provision (c) enumerates seven different grounds, including fraud and newly discovered evidence, by which a court may set aside or modify a judgment. See also Blackwood v. Floyd, 342 Ark. 498, 29 S.W.3d 694 (2000). None of the seven grounds listed in provision (c) involve an allegation of improper exercise of concurrent subject-matter jurisdiction. As such, under the plain language of Rule 60, the trial court in this case lost the power to vacate the termination order ninety days after it was entered.

A similar issue was considered by this court in Summers Griffith, 317 Ark. 404, 878 S.W.2d 401 (1994), cert. denied, 514 U.S. 1065, 115 S.Ct. 1696, 131 L.Ed.2d 559 (1995). There, the father filed a motion to set aside an adoption decree, which was entered four years earlier, on the ground that the, probate court lacked subject-matter jurisdiction. This court held that the motion was barred under both Ark.Code Ann. § 9-9-216 (Repl.1993) (prohibiting any attack on an adoption decree after the expiration of one year) and Rule 60. This court held: "In addition, Summers did not allege that extrinsic fraud occurred which is required in these circumstances in order to vacate or modify a decree which had been entered for more than ninety days. Rule 60(c)(4)." Id at 406, 878 S.W.2d at 402.

In sum, at the time of the termination in this case, the legislature had specifically empowered chancery courts to hear and determine cases involving a termination of parental rights. Section 16-13-304(d)(1) specifically provided. that chancery courts "shall have the power to terminate parental rights in matters properly before the chancery court," unless the parties to the termination action are also parties to an action in the juvenile division of chancery court, in which case the juvenile court shall have exclusive jurisdiction. Given this concurrent...