Powell v. Lane, 08-282.

• Decision Date: 11 December 2008
• Docket Number: No. 08-282.,08-282.
• Parties: Jason Joeseth POWELL, Appellant, v. Davelynn Felkel LANE, Wendell Ray Lane, Appellees.
• Court: Arkansas Supreme Court

289 S.W.3d 440

375 Ark. 178

Jason Joeseth POWELL, Appellant, v. Davelynn Felkel LANE, Wendell Ray Lane, Appellees.

No. 08-282.

Supreme Court of Arkansas.

December 11, 2008.

Mary M. Rawlins, Mena, for appellant.

Bob Keeter, Mena, for appellees.

JIM HANNAH, Chief Justice.

This is an appeal of an adoption decree granted to the appellees, Wendell Ray Lane and Davelynn Felkel Lane, permitting Wendell to adopt Davelynn's minor son, D.P., whom she conceived with appellant Jason Powell. The court of appeals reversed and remanded to the circuit court in a 5-4 decision. See Powell v. Lane, 101 Ark.App. 295, 275 S.W.3d 666 (2008). The Lanes petitioned this court for review, which we granted pursuant to Arkansas Supreme Court Rule 2-4 (2008). Because this appeal is before us on a petition for review, our jurisdiction of the case is pursuant to Arkansas Supreme Court Rule 1-2(e) (2008). Upon the grant of a petition for review, we consider the case as though it had been originally filed in this court. See, e.g., Tucker v. Office of Child Support Enforcement, 368 Ark. 481, 247 S.W.3d 485 (2007). We affirm the circuit court's order granting the petition for adoption, and we reverse the court of appeals.

It is undisputed that on December 31, 1996, Davelynn and Jason went to the First Baptist Church in Pencil Bluff where they were married by Reverend Bruce Tidwell. The ceremony was traditional in that Jason stood at the head of the church and Davelynn walked down the aisle in a creme-colored dress. When Davelynn reached the front of the church, she and Jason exchanged marriage vows while family and friends witnessed the ceremony. Davelynn's mother was among those present. Davelynn was pregnant with Jason's child at the time of the ceremony and later gave birth to a son, D.P., on July 9, She and Jason lived together as husband and wife, from the date of the ceremony until their separation in the spring of 2004, almost eight years later.

It is also undisputed that Davelynn and Powell obtained a marriage license before the ceremony. The marriage license was not signed by Reverend Tidwell and was never returned to the county clerk for filing. Davelynn and Jason have never obtained a divorce.

On June 9, 2004, Davelynn petitioned the Montgomery County Circuit Court to establish paternity of her son, D.P. Davelynn alleged that Jason was the natural father of D.P., a minor child who was born out of wedlock to her on July 9, On June 9, 2004, Davelynn petitioned the Montgomery County Circuit Court to establish paternity of her son, D.P. Davelynn alleged that Jason was the natural father of D.P., a minor child who was born out of wedlock to her on July 9, 1997. In addition, she averred that she and Jason were not married to each other or any other persons at the time of the conception and birth of D.P. The petition and summons were served on Jason, but he failed to answer and a default judgment was entered on July 23, 2004. In the order, the circuit court found that Jason was the natural father of D.P., and that Davelynn and Jason were not married to each other or any other persons at the time of the conception and birth of D.P. The order set a visitation schedule, required Jason to pay child support in the amount of seventy-five dollars per week, and required Jason to pay one-half of D.P.'s medical expenses. Jason did not appeal the default order. Subsequently, Jason moved to set aside the default judgment, but that motion was denied.

Davelynn and Wendell were married on September 4, 2004. On March 28, 2006, they petitioned the Polk County Circuit Court for a decree allowing Wendell to adopt D.P. without the consent of Jason. Davelynn consented to the adoption and alleged that Jason had failed significantly without justifiable cause to communicate with or support D.P. for at least one year. Jason answered, denying the allegations and refusing to consent to the adoption.

On May 12, 2006, Jason filed a petition for divorce against Davelynn in Montgomery County Circuit Court in the same cause of action as the paternity action. Davelynn moved to dismiss the petition, asserting that the issue of the validity of the marriage had already been resolved. The cases were consolidated in the Polk County Circuit Court and heard on July 5, 2006.

At the hearing, Davelynn testified that she was pregnant at the time of the wedding. She stated that she and Jason were not married; rather, she testified that they "went through a ceremony." Davelynn added: "You do lots of things of play acting that's not legal and it's my understanding that that wasn't legal." She claimed that, at the time, Jason did not want to be married because he felt "trapped," but that they had already gotten the marriage license, her grandfather was dying, and she was an overwhelmed pregnant teenager who did not know what to do. Davelynn testified that she and Jason never intended to file the license and that the preacher never saw the marriage license. In addition, Davelynn stated that she "made a very bad decision," and that she and Jason were never married.

Davelynn also provided testimony regarding her marriage to Wendell. She stated that they were married on September 4, 2004, in Branson, Missouri. She further stated that Jason had not paid child support since December 2004 and that he had not paid any portion of D.P.'s medical bills.

Jason testified that D.P. had been diagnosed with aseptic optic dysplasia with hypopanpituitarism. Jason stated that he was his son's "primary shot-giver" and "primary medication-giver" during the first eight years of his son's life. Jason admitted that he stopped paying support to Davelynn through the Child Support Clearinghouse, but he denied that he quit paying support, stating that, instead, he deposited payments into a fund that he was maintaining for D.P. Jason said that he stopped paying money to the clearinghouse because he knew that doing so would cause the Child Support Enforcement Office to bring him into court. Jason stated that he believed that once he was brought into court, he could resolve all of the other issues with Davelynn.

Jason's sister-in-law, Melissa Powell, testified that she witnessed the marriage ceremony in which Jason and Davelynn were married. She stated: "We had a wedding, they kissed, they went down the aisle, they said, I do. That's what I seen."

Wendell testified that he and Davelynn were married on September 4, 2004, and have one child together. He further testified that D.P. had resided with him and Davelynn since they were married. Wendell stated that he wanted to adopt D.P. because he loved him and because he felt like D.P. was his son. Wendell also testified that he and Davelynn had received no financial support for D.P. from Jason since their marriage.

The circuit court dismissed Jason's divorce petition. In doing so, the circuit court ruled that Davelynn and Jason were never married because they failed to have the preacher who performed their marriage ceremony sign the marriage license and because they also failed to file the license with the county clerk.

The circuit court then granted the adoption petition of Davelynn and Wendell. In its order granting the petition, the circuit court found that Jason and Davelynn were not married at the time D.P. was conceived or at any time thereafter. The circuit court further concluded that, while there was much testimony and conflict over whether Jason had attempted to communicate with D.P., there was no dispute that, in excess of one year, Jason had failed significantly, without justifiable cause, to pay child support for D.P. Accordingly, the circuit court determined that Jason's consent to the adoption was not necessary. Jason filed a motion for reconsideration, which was denied by the circuit court. Jason appealed to the court of appeals, which reversed and remanded the circuit court. The court of appeals held that Davelynn and Jason were validly married and that the circuit court erred in finding otherwise. See Powell, 101 Ark.App. at 296, 275 S.W.3d at 667. Further, the court of appeals held: "In that the trial court's finding that [Jason] and Davelynn were never married was the determinating factor regarding the remaining issues, we reverse and remand all issues presented." Id., 275 S.W.3d at 667. Davelynn and Wendell now petition for review.

The Validity of the Marriage

Jason first contends that the circuit court erred in concluding that he and Davelynn were not validly married. Davelynn claims that the issue of the validity of the marriage was decided in the circuit court's July 23, 2004 default order. She points out that Jason took no appeal from that order and that he did not raise the issue of the validity of the marriage until nearly two years after the entry of the order, in a petition for divorce. Accordingly, Davelynn contends that Jason's arguments regarding the validity of the marriage are barred by res judicata. For his part, Jason asserts that Davelynn's paternity complaint did not address the validity of the marriage and, therefore, the default order could not have resolved the issue.

Res judicata bars relitigation of a claim in a subsequent suit when five factors are present. These include: (1) the first suit resulted in a final judgment on the merits; (2) the first suit was based upon 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. Moon v. Marquez, 338 Ark. 636, 999 S.W.2d 678 (1999). Furthermore, 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. The purpose of res judicata is to put an end to litigation by preventing a party who had one fair trial on a matter from relitigating the matter a second time. Id. This court has applied the doctrine of res judicata in the context of...