State v. Willis

• Decision Date: 15 November 2001
• Docket Number: 01-238
• Citation: 59 S.W.3d 438
• Parties: STATE OF ARKANSAS OFFICE OF CHILD SUPPORT ENFORCEMENT, APPELLANT, VS. CHRISTOPHER WILLIS, APPELLEE.SUPREME COURT OF ARKANSAS 15 November 2001 APPEAL FROM THE HEMPSTEAD COUNTY CHANCERY COURT, NO.JIM GUNTER, JUDGE, REVERSED AND REMANDED. ROBERT L. BROWN, Associate Justice This appeal involves paternity. The sole question presented is whether the chancery court erred in dismissing the paternity complaint of the appellant, which is the State of Arkansas Office of Child Support Enforcement (OCSE). We believe that the chancery court did err in dismissing that complaint, and we reverse the dismissal order and remand the case for further proceedings associated with the paternity complaint. On
• Court: Arkansas Supreme Court

STATE OF ARKANSAS OFFICE OF CHILD SUPPORT ENFORCEMENT, APPELLANT VS CHRISTOPHER WILLIS, APPELLEE

No. 01-238

SUPREME COURT OF ARKANSAS

15 November 2001

APPEAL FROM THE HEMPSTEAD COUNTY CHANCERY COURT, NO. E-98-246-1, HON. JIM GUNTER, JUDGE, REVERSED AND REMANDED.

ROBERT L. BROWN, Associate Justice

This appeal involves paternity. The sole question presented is whether the chancery court erred in dismissing the paternity complaint of the appellant, which is the State of Arkansas Office of Child Support Enforcement (OCSE). We believe that the chancery court did err in dismissing that complaint, and we reverse the dismissal order and remand the case for further proceedings associated with the paternity complaint.

On February 13, 1982, John and Merigayle Triplett married. On November 23, 1988, Merigayle had a daughter, Megan. On February 26, 1992, the Tripletts divorced. In the resulting divorce decree entered by the chancery court (1992 decree), the court approved the parties' agreement regarding custody of Megan. Specifically, the decree stated:

The parties hereby have one (1) child, Megan Elizabeth Triplett, born November 23, 1988, and the Plaintiff [Merigayle Triplett] shall have sole custody of said child with Defendant [John Triplett] having reasonable and seasonable visitation rights.

The Defendant shall pay child support for the said child of $60.00 per week.

The Defendant shall be responsible for all ordinary doctor, hospital, dental and prescription drug bills for the child.

On February 14, 1993, John and Merigayle married for a second time. At some point during the late summer of 1997, Merigayle told John that he might not be Megan's father, and Merigayle named appellee Christopher Willis as Megan's putative father. In September of 1997, John called Willis and confronted him about the 1988 affair. Two days later, Merigayle called Willis and told him that he was Megan's father.

When Willis first knew of his biological relationship to Megan is a matter of factual dispute in this case. According to Willis's affidavit, Willis and Merigayle had a romantic relationship which lasted from January of 1988 to March of1988. Although Willis saw Merigayle at various social engagements and restaurants after March 1988, he asserts that the two did not speak again until September of 1997. Willis claims that it was not until September of 1997 that he first knew of a possible biological link with Megan.

Merigayle disputes this in her affidavit. She avers that she told Willis that she thought the child was his as early as May of 1989, six months after Megan was born. She asserts that at that time, Willis called her to discuss personal matters, and he heard a child crying in the background. He asked about the baby, and Merigayle told him that the timing of her pregnancy indicated that the child was his. According to Merigayle, Willis was shocked to hear this and hurriedly got off the telephone. Merigayle adds that she and Willis again discussed the situation in the winter months of 1992. According to Merigayle, the next time she spoke with Willis concerning his being Megan's biological father was in September of 1997.

On March 14, 1997, Merigayle filed her complaint for divorce from John. In his answer to Merigayle's petition for divorce, SDU_8SDU_8John asserted that he was not Megan's biological father, and he requested DNA testing to establish his biological relationship to Megan. Merigayle did not object to this testing. The chancery court granted his request, and the testing excluded John as Megan's biological father. Following this testing, in a divorce decree entered on January 20, 1998 (1998 decree), the chancery court found that John was not Megan's biological father. The 1998 decree did not order John to pay child support for Megan. No reference was made in the 1998 decree to the 1992 decree. Merigayle did not appeal the 1998 decree. After the 1998 decree, OCSE paid support to Merigayle.

On June 4, 1998, Merigayle averred in an affidavit to OCSE that Willis was Megan's biological father. On June 22, 1998, OCSE ordered Willis, Megan, and Merigayle to submit to genetic testing to determine paternity. Willis did not challenge this testing. On July 22, 1998, the test results were returned, which showed that there was a 99.98% probability that Willis was Megan's biological father.

On August 12, 1998, after learning of the test results, OCSE filed a paternity complaint against Willis pursuant to its statutory authority. See Ark. Code Ann. § 9-10-104(a)(4) (Repl. 1998); Ark. Code Ann. § 9-12-210(d)(2) (Repl. 1998). In Willis's amended answer to OCSE's petition, he denied that he was Megan's father and raised affirmative defenses to the petition, including res judicata and collateral estoppel. Both affirmative defenses were based on the 1992 decree. Willis also named John as a defendant to the paternity complaint and cross-claimed against Merigayle and John for fraud and the tort of outrage. He sought injunctive relief and money damages against Merigayle and John. Willis concluded with multiple prayers for relief, including a prayer that the paternity complaint against him be dismissed.

On April 21, 1999, the chancery court dismissed OCSE's paternity petition against Willis. OCSE appealed the dismissal, and this court dismissed the appeal pursuant to Ark. R. Civ. P. 54(b), because the chancery court's order did not dispose of Willis's tort claims against Merigayle and John. See Office of Child Support Enforcement v. Willis, 341 Ark. 378, 17 S.W.3d 85 (2000).

After dismissal of the first appeal, Willis agreed to voluntarily nonsuit the cross-claims against John and Merigayle pursuant to Ark. R. Civ. P. 41(a).¹ On November 11,2000, the chancery court entered an order reflecting this nonsuit and found as follows:

That based upon the entry of a 1992 Divorce Decree establishing John Triplett as the legal father of the child, Megan Elizabeth Triplett, born November 23, 1998, [sic] the Court hereby finds that paternity of the child was established in 1992. Thus, the pending action for paternity, is improper.²

The chancery court dismissed OCSE's paternity complaint.

OCSE's sole point on appeal is that the chancery court erred in dismissing OCSE's paternity complaint as improper on grounds that paternity had been established under the 1992 decree. Initially, we refer to the precepts that govern our review. We review chancery cases de novo on the record, but we do not reverse a finding of fact by the chancery court unless it is clearly erroneous. Moon v. Marquez, 338 Ark. 636, 999 S.W.2d 678 (1999); Office of Child Support Enforcement v. Eagle, 336 Ark. 51, 983 S.W.2d 429 (1999). A finding of fact by the chancery court is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed. Huffman v. Fisher, 337 Ark. 58, 987 S.W.2d 269 (1999); RAD-Razorback Ltd. Partnership v. B.G. Coney Co., 289 Ark. 550, 713 S.W.2d 462 (1986). It is this court's duty to reverse if its own review of the record is in marked disagreement with the chancery court's findings. Dopp v. Sugarloaf Mining Co., 288 Ark. 18, 702 S.W.2d 393 (1986) (citing Rose v. Dunn, 284 Ark. 42, 679 S.W.2d 180 (1984); Walt Bennett Ford v. Pulaski County Special Sch. Dist., 274 Ark. 208, 624 S.W.2d 426 (1981)).

In support of its argument for reversal, OCSE emphasizes that the 1992 decree did not address the issue of paternity. Nor, it contends, was paternity an issue in that divorce. Moreover, OCSE claims that when the parties remarried in 1993, this had the effect of annulling the 1992 decree as it related to Megan. OCSE cites Oliphant v. Oliphant, 177 Ark. 613, 7 S.W.2d 783 (1928), in support of this proposition. Furthermore, OCSE maintains, when John requested blood testing in 1997 to determine whether he was Megan's father, Merigayle did not object to that or raise res judicata as a bar to the testing. It was not until the paternity complaint was filed in 1998 against Willis that he raised the affirmative defenses of res judicata and collateral estoppel. Because of this, OCSE contends that res judicata based on the 1992 decree does not bar the paternity action. The agency further contends that because Merigayle did not raise this affirmative defense as part of the paternity testing of John which led to the 1998 decree, she waived that defense and collateral estoppel as well. This, according to OCSE, resulted in the 1998 decree, which was inconsistent with the 1992 decree on the issues of John's paternity and his obligation to support Megan. Only the later divorce decree should control, OCSE urges, and only that later decree should be given res judicata effect. OCSE concludes that it is the 1998 decree that left Megan with no legal father and no support, which opened the door to a paternity action.

Willis responds that the chancery court really relied on the principle of collateral estoppel and not res judicata in dismissing OCSE's paternity complaint and that collateral estoppel applies in this case. Collateral estoppel governs this case, he argues, and supports reliance on the 1992 decree rather than OCSE's theory of inconsistent decrees. He maintains that Oliphant v. Oliphant, supra, does not control this case, because that case dealt with a change of circumstances caused by a second marriage and the effect on child custody. Finally, he urges that the 1992 decree, as it related to paternity, could not be modified after three years under Ark. Code Ann. § 9-10-115(f) (Repl. 1998).

We agree with Willis that the Oliphant case does not control this paternity issue. In Oliphant, even though two marriages and two divorces were also involved, the issue was whether a redetermination of child custody was necessary. The father urged that a review was unnecessary. This court held, however, that the second marriage constituted a...