Patterson v. Isom, 98-969

• Decision Date: 24 June 1999
• Docket Number: No. 98-969,98-969
• Citation: 992 S.W.2d 792,338 Ark. 234
• Parties: Brian PATTERSON, Appellant, v. Steve ISOM, Appellee.
• Court: Arkansas Supreme Court

Page 792

992 S.W.2d 792

338 Ark. 234

Brian PATTERSON, Appellant, v. Steve ISOM, Appellee.

No. 98-969.

Supreme Court of Arkansas.

June 24, 1999.

Dunham & Faught, P.A., by: James Dunham, Russellville, for appellant.

Dennis C. Sutterfield, Russellville, for appellee.

DONALD L. CORBIN, Justice.

This appeal presents a conflict involving the concurrent jurisdiction of chancery and juvenile courts to hear paternity cases. The case was certified to us from the Arkansas Court of Appeals as presenting issues requiring further development or clarification of the law; hence, our jurisdiction is pursuant to Ark. Sup.Ct. R. 1-2(b)(5).

Appellant Brian Patterson and Sheila Judkins were married on June 6, 1985. One child, Brandi Patterson, was born of the marriage on May 20, 1987. On August 27, 1991, the couple was granted a divorce by the Pope County Chancery Court (chancery court). Judkins was granted custody of Brandi. Miscellaneous petitions were subsequently filed in the chancery court by both parties, culminating in Patterson's petition for a change of custody filed on April 19, 1996. Judkins responded to the petition by filing a petition for paternity testing, asserting for the first time that Patterson was not Brandi's biological father. In a letter to counsel filed August 6, 1996, the chancery court denied the petition for paternity testing and found that Patterson was the child's father. The final order was not entered until August 13, 1997. In the meantime, Appellee Steve Isom filed a motion to intervene in the chancery action on August 5, 1997, asserting that DNA testing had established him as Brandi's biological father. On that same date, Isom filed a complaint for adjudication of paternity in the Juvenile Division of the Pope County Chancery Court (juvenile court). The juvenile court found Isom to be the biological father of Brandi. It is from that decision that Patterson appeals.

Before we address the points on appeal, we are compelled to respond to Isom's argument that Patterson's jurisdictional arguments are barred by the law-of-the-case doctrine, which "prevents an issue raised in a prior appeal from being raised in a subsequent appeal unless the evidence materially varies between the two appeals." Richardson v. Rodgers, 334 Ark. 606, 611, 976 S.W.2d 941, 944 (1998) (quoting Vandiver v. Banks, 331 Ark. 386, 391-92, 962 S.W.2d 349, 352 (1998)). This argument stems from the fact that prior to the final determination of this matter in the juvenile court, Patterson petitioned this court for a writ of prohibition, raising the same jurisdictional arguments that he now raises on appeal. This court denied the writ, but issued no opinion on the matter. Isom asserts that the denial prevents Patterson from raising those issues on appeal. We disagree.

A writ of prohibition is an extraordinary writ that is only appropriate when the lower court is wholly without jurisdiction. Young v. Smith, 331 Ark. 525, 964 S.W.2d 784 (1998). The purpose of the writ of prohibition is to prevent a court from exercising a power not authorized by law when there is no adequate remedy by appeal or otherwise. Id. A writ of prohibition is never issued to prohibit an inferior court from erroneously exercising its jurisdiction. Id. Given that Arkansas Code Annotated § 9-10-101(a)(1) (Repl.1998) provides that chancery and juvenile courts have concurrent jurisdiction of paternity cases, a writ of prohibition to prevent either court from acting is not the appropriate remedy, as neither court would be acting "wholly without jurisdiction." See Hall v. Pulaski County Chancery Court, 320 Ark. 593, 898 S.W.2d 46 (1995). Furthermore, a writ of prohibition is inappropriate when the trial court has not resolved a factual dispute necessary to the determination of jurisdiction. Hudson v. Purifoy, 337 Ark. 146, 986 S.W.2d 870 (1999). Here, when Patterson filed for a writ of prohibition in this court, it was unclear whether the juvenile or chancery court had jurisdiction, as the facts for such a determination had yet to be developed. Accordingly, our earlier denial of the writ of prohibition does not serve as a bar to our consideration of the jurisdictional issues on direct appeal.

Patterson first argues that the juvenile court erred in refusing to dismiss Isom's paternity complaint on the ground that the chancery court has exclusive jurisdiction over the matter, as the issue of paternity arose in the chancery case. He relies on section 9-10-101(a) which provides:

(1) The chancery court shall have concurrent jurisdiction with the juvenile division of chancery court in cases and matters relating to paternity.

(2) The chancery court shall have exclusive jurisdiction of paternity matters which arise during pendency of original proceedings brought under equity jurisdiction.

(3) The juvenile division of chancery court shall have exclusive jurisdiction of paternity matters which arise during pendency of original proceedings brought pursuant to the Arkansas Juvenile Code of 1989, § 9-27-301, et seq. [Emphasis added.]

The proper interpretation of section 9-10-101(a)(2) is that "exclusive jurisdiction will lie in a chancery court when a paternity matter arises during the pendency of an action already within its jurisdiction." Barnes v. Barnes, 311 Ark. 287, 292, 843 S.W.2d 835, 837 (1992). In short, the issue of paternity must be raised or developed in some way in the chancery action. Hall, 320 Ark. 593, 898 S.W.2d 46.

In Hall, the facts showed that Doug Freeman and Jamie McFall were divorced in 1988. Some six years later, Doug filed a paternity complaint in juvenile court against Jamie, alleging that a third party, Tod Hall, was the father of the one child born to the marriage. Hall petitioned this court for a writ of prohibition, arguing that the chancery court had exclusive jurisdiction over this matter under section 9-10- 101(a)(2). This court denied the writ, holding:

[B]ased on what we have before us, the paternity issue did not arise during the original 1988 divorce action, and that is what § 9-10-101(a)(2) requires for exclusive jurisdiction to reside in chancery court. To be sure, there was some proof in the paternity suit that Doug Freeman suspected Tod Hall was the father of S.F. prior to the divorce, but, according to the record, that issue was not raised in chancery court by either Doug Freeman or Jamie McFall or developed in that action in any way. The divorce was concluded in 1988, though the court did retain jurisdiction to modify and enforce the rights of the parties. Under these facts, there are insufficient grounds for finding exclusive jurisdiction in chancery court.

Id. at 596, 898 S.W.2d at 48 (emphasis added). The facts in the present case are distinguishable from those in Hall.

Here, the parties were granted a divorce by the chancery court in 1990. Between the time they were divorced until April 1996, both parties filed various petitions regarding modification of visitation and support. On April 19, 1996, Patterson filed a petition for change of custody. In response, Judkins filed a petition asking the chancery court to order paternity testing to determine that Patterson was not the biological father of the child. In an order entered on August 13, 1997, the chancery court denied Judkins's request for tests and specifically found that Patterson was the father of the child.

Based upon these facts, we conclude that the chancery court had exclusive jurisdiction under section 9-10-101(a)(2) to determine the issue of paternity. The matter clearly arose during the pendency of an action already within its jurisdiction. Thus, unlike the situation in Hall, the issue of paternity had been raised and developed in the chancery court. Indeed, the chancellor ruled upon the matter, finding specifically that Patterson was the child's father. Accordingly, it was error for the juvenile court to deny Patterson's motion to dismiss.

It was also error for the juvenile court to deny Patterson's motion to dismiss pursuant to Rule 12(b)(8) of the Arkansas Rules of Civil Procedure, which provides a defense where there is "pendency of another action between the same parties arising out of the same transaction or occurrence." This court has repeatedly held that Rule 12(b)(8) prohibits identical cases from proceeding between identical parties in different courts within this state. See, e.g., National Bank of Commerce v. Dow Chem. Co., 327 Ark. 504, 938 S.W.2d 847 (1997); Tortorich v. Tortorich, 324 Ark. 128, 919 S.W.2d 213 (1996) ¹. Under Rule 12(b)(8), the trial court has no choice but to dismiss the complaint where another case is pending in a different court. Mark Twain Life Ins. Corp. v. Cory, 283...