Arkansas Office of Child Support Enforcement v. Walter Robinson

2021 Ark. App. 427

• Court: Court of Appeals of Arkansas
• Decided: November 3, 2021
• Status: Published

Opinion

Cite as 2021 Ark. App. 427 Elizabeth Perry ARKANSAS COURT OF APPEALS I attest to the accuracy and integrity of this document DIVISION III 2023.07.13 12:10:36 -05'00' No. CV-20-700

2023.003.20244 Opinion Delivered November 3, 2021

ARKANSAS OFFICE OF CHILD APPEAL FROM THE PULASKI SUPPORT ENFORCEMENT COUNTY CIRCUIT COURT, APPELLANT NINTH DIVISION [NO. 60DR-01-427] V. HONORABLE MARY SPENCER MCGOWAN, JUDGE WALTER ROBINSON APPELLEE DISMISSED

LARRY D. VAUGHT, Judge

The Office of Child Support Enforcement (OCSE) appeals the orders entered by the

Pulaski County Circuit Court on July 20 and September 1, 11, 21, and 25, 2020. OCSE argues

that the circuit court erred in not granting its motion for new trial or, alternatively, its motion

to set aside a default judgment. Because there is no final order in this case, we must dismiss

the appeal for lack of jurisdiction.

On January 26, 2001, OCSE 1 filed a complaint for paternity and for child support

against Walter Robinson. On May 4, the circuit court entered a default judgment against

Robinson finding him to be the father of the children and ordering him to pay $35 a week in

child support. In September 2007, a notice of an order to withhold income was issued to the

1OCSE was the assignee of Carla Thompson, the mother and physical custodian of

Jamison Robinson (born on January 17, 1997) and Jasmine Robinson (born on September 16, 1998). Social Security Administration (SSA) requiring it to deduct $35 a week from Robinson’s

income for child support and $3.50 a week for his past-due child support. On December 30,

2011, OCSE closed its file due to Thompson’s noncooperation; however, the SSA deductions

continued.

On March 5, 2020, Robinson filed a pro se motion to terminate his child-support

obligation, arguing that his children are above the age of majority. Robinson did not serve his

motion on either OCSE or Thompson.

The circuit court, on July 20, entered an order terminating Robinson’s child-support

obligation, finding that by operation of law the obligation terminated in 2015 and 2016 when

his children reached the age of majority. The circuit court also ordered OCSE to reimburse

Robinson any child support he paid beyond his children’s eighteenth birthdays.

On July 31, within ten days of the entry of the July 20 order, OCSE moved for a new

trial pursuant to Rule 59(a) of the Arkansas Rules of Civil Procedure or, alternatively, a motion

to set aside the default judgment pursuant to Rule 55(c). OCSE argued, among other things,

that it was entitled to a new trial or to have the July 20 order, if construed as a default judgment,

set aside on the bases of insufficiency of process, the doctrine of sovereign immunity, and

Robinson’s child-support arrearages. The motion for new trial was deemed denied on August

31. 2

2Rule 59(b) provides that if the court neither grants nor denies the motion for new trial

within thirty days of the date on which it is filed or treated as filed, it shall be deemed denied as of the thirtieth day. Ark. R. Civ. P. 59(b) (2021). Arkansas Rule of Appellate Procedure– Civil 4(b)(1) also provides that if the circuit court neither grants nor denies a Rule 59(a) motion for new trial within thirty days of its filing, the motion shall be deemed denied by operation of law as of the thirtieth day. Ark. R. App. P.–Civ. 4(b)(1) (2021).

2 On September 1, the circuit court entered an order granting OCSE’s motion for new

trial, finding that OCSE had not been afforded the ability to make its arguments to the court

and that it had evidence to introduce. On September 11, the court entered an order setting the

matter for a hearing on September 21.

Before the September 21 hearing began, the circuit court entered an order, pursuant to

Arkansas Rule of Civil Procedure 60(a), setting aside and vacating its July 20 order. The

September 21 hearing followed with OCSE presenting arguments and evidence on the merits

of Robinson’s motion to terminate child support. OCSE argued that because it closed its case

in 2011, it did not have standing to enforce or amend the collection order against Robinson

and that child-support payments continued to be collected from Robinson after his children

had reached the age of majority because he had child-support arrearages of $12,602.70. The

court took the matter under advisement.

On September 25, the circuit court entered an order that stated: “This Court will issue

a ruling in this case but at this time, there is no final Order.” On September 28, OCSE filed a

notice of appeal from the July 20 and September 1, 11, 21, and 25 orders.

Before we can reach the merits of OCSE’s argument on appeal, we must first determine

whether we have jurisdiction. While OCSE does not raise this issue, the question of whether

an order is final and subject to appeal is a jurisdictional question that this court will raise sua

sponte. McKinney v. Bishop, 369 Ark. 191, 194, 252 S.W.3d 123, 125 (2007). 3

3OCSE addresses a different jurisdictional issue: whether its notice of appeal was timely

filed. Our review of this appeal reveals that OCSE’s notice of appeal of the five orders entered by the circuit court is timely. Ark. R. Civ. P. 59(b); Ark. R. App. P.–Civ. 4(a), (b)(1).

3 Arkansas Rule of Appellate Procedure–Civil 2(a)(1) provides that an appeal may be

taken only from a final judgment or decree entered by the circuit court. Ark. R. App. P.–Civ.

2(a)(1) (2021). This court will not reach the merits of an appeal if the order being appealed is

not final. Dunahue v. Culclager, 2021 Ark. 83, at 2. For an order to be final and appealable, it

must terminate the action, end the litigation, and conclude the parties’ rights to the matter in

controversy. Id. Without a final order on the merits, this court does not have appellate

jurisdiction. Id.

None of the five orders from which OCSE has appealed are final, appealable orders.

Because OCSE focuses its arguments on the appeal of the July 20 order, we address it first.

The July 20 order is not a final, appealable order because it was set aside and vacated by the

order entered by the circuit court on September 21. A recap of the relevant procedural history

is necessary.

OCSE’s motion for a new trial pursuant to Rule 59(a) or, alternatively, to set aside a

default judgment pursuant to Rule 55(c) was filed on July 31, 2020. The circuit court did not

rule on the motion within thirty days; therefore, the motion for new trial was deemed denied

on August 31. One day later, on September 1, the circuit court entered an order granting

OCSE’s motion for new trial. However, because the September 1 order was entered after the

thirty-day period under Arkansas Rule of Appellate Procedure–Civil 4(b)(1), the court lost

jurisdiction to consider the motion for new trial. Williams v. Office of Child Support Enf’t, 2013

Ark. App. 472, at 1; see also Cincinnati Ins. Co. v. Johnson, 367 Ark. 468, 471, 241 S.W.3d 264, 266

(2006) (holding that the circuit court lost jurisdiction to rule on a motion for new trial because

4 it failed to act on the motion within the thirty-day period following its filing). Therefore, the

court’s September 1 order granting OCSE a new trial is void.

OCSE’s July 31 motion also included a request pursuant to Rule 55 to set aside the July

20 order. Arkansas Rule of Appellate Procedure–Civil 4(b), (c), and (d) does not contemplate

motions to set aside default judgments, and the time constraints mandated by those provisions

are inapplicable. DePriest v. Carruth, 334 Ark. 378, 379, 974 S.W.2d 471, 471 (1998); see also

Eliasnik v. Y&S Pine Bluff, LLC, 2018 Ark. App. 138, at 13, 546 S.W.3d 497, 505. Therefore,

OCSE’s July 31 motion to set aside the default judgment was not deemed denied on August

31. This motion was never ruled on by the circuit court.

Therefore, as of August 31, OCSE had not received relief from the July 20 order: its

motion for a new trial had been deemed denied, and its motion to set aside the default

judgment had not been ruled upon. That changed on September 21 when the circuit court—

on its own motion—entered an order setting aside and vacating the July 20 order pursuant to

Arkansas Rule of Civil Procedure 60(a). 4 The September 21 order was filed within the ninety-

day period set forth in Rule 60(a) 5 and, therefore, is operative. Accordingly, the September 21

order set aside and vacated the July 20 order.

Citing Williams v. Office of Child Support Enforcement, OCSE argues that the circuit court

was without jurisdiction to enter the September 21 order after its motion for new trial was

4Rule 60(a) provides: “To correct errors or mistakes or to prevent the miscarriage of

justice, the court may modify or vacate a judgment, order or decree on motion of the court . . . with prior notice to all parties, within ninety days of its having been filed with the clerk.” Ark. R. Civ. P. 60(a) (2021).

5Ninety days after the entry of the July 20 order was October 19, 2020.

5 deemed denied. We disagree. This court in Williams stated that when a circuit court fails to act

within the thirty-day period under Rule 4(b)(1), “it loses jurisdiction to consider a motion for new

trial.” Williams, 2013 Ark. App. 472, at 1 (emphasis added). Williams does not stand for the

proposition that the circuit court is without jurisdiction to enter orders unrelated to the motion

for new trial. The September 21 order was entered pursuant to Rule 60(a) and is unrelated to

the Rule 59 motion.

OCSE also argues that pursuant to Brinkley School District v. Terminix International Co.,

2019 Ark. App. 445, 586 S.W.3d 694, the circuit court was without authority to enter the

September 21 order because Rule 60(a) cannot be used to avoid or suspend Rule 4(b)’s

provisions once the latter rule has been triggered. OCSE claims that its motion for new trial

triggered Rule 4(b)’s deemed-denial rule and time deadlines; therefore, the court was not

permitted to enter an order pursuant to Rule 60(a) to amend those deadlines. Again, we

disagree.

In Brinkley School District, the appellant failed to appeal from both an order dismissing

its complaint and the deemed denial of its Rule 60(a) motion seeking to vacate the order of

dismissal. 2019 Ark. App. 445, at 2–3, 586 S.W.3d 694, 695–96. More than forty days after its

Rule 60(a) motion had been deemed denied, the appellant filed an amended Rule 60(a) motion.

Five days later, the circuit court entered an order denying the amended motion, and the

appellant filed a notice of appeal from that order. Id., 586 S.W.3d at 695–96. The appellees

moved to dismiss the appeal, contending that the appellant failed to timely appeal from both

the order of dismissal and the deemed denial of its posttrial motion under Arkansas Rule of

Appellate Procedure–Civil 4(b). The appellant responded that its notice of appeal was timely

6 because the notice was filed within ninety days of the order dismissing the complaint and

within thirty days of the order denying the amended motion to vacate.

This court disagreed with the appellant and dismissed the appeal, holding that appeal

deadlines associated with a postorder/judgment motion that is filed within ten days of the

order being challenged proceed in accordance with Arkansas Rule of Appellate Procedure–

Civil 4(b) and not under Rule 60’s ninety-day period. Id. at 11, 586 S.W.3d at 699–700. We

stated:

Given the history of Rule 4(b) and the cases that have addressed it, we hold that Rule 60 does not avoid or suspend Rule 4(b)’s provisions, once the latter rule has been triggered by the filing of any motion to alter, amend, or vacate an order or judgment within ten days of the order or judgment’s entry, as calculated by Ark. R. Civ. P. 6. Moreover, amending a motion to alter, amend, or vacate an order or judgment already on file does not avoid or suspend Rule 4(b)’s timing/deadline provisions. This is especially so when the filing of an amended postjudgment motion is an attempt to breathe life into a parent motion that has already been deemed denied by operation of law.

Id. at 10–11, 586 S.W.3d at 699 (internal citations omitted) (emphasis in original).

The facts in the case at bar are very different from those in Brinkley School District. In

the instant case, OCSE did not file a Rule 60(a) motion in an effort to extend the time in which

to file a notice of appeal. In fact, OCSE filed a timely notice of appeal from all the orders

entered by the circuit court; therefore, unlike Brinkley School District, timeliness of the notice of

appeal is not the issue in the case at bar. Accordingly, there is no conflict in the instant case

between Arkansas Rule of Civil Procedure 60(a) and Arkansas Rule of Appellate Procedure–

Civil 4(b) as there was in Brinkley School District.

In the case at bar, the circuit court sua sponte entered an order on September 21,

pursuant to Rule 60(a), within ninety days of the July 20 order, setting aside and vacating the

7 July 20 order. Therefore, the July 20 order is void and cannot serve as a final, appealable order

from which to appeal.

The remaining four orders from which OCSE has appealed are not final, appealable

orders either. As explained above, the September 1 order (granting OCSE a new trial) is void.

The September 11 order (setting Robinson’s motion for a hearing) is not a final, appealable

order. The September 21 order (vacating the July 20 order) is not a final, appealable order.

And the September 25 order is not a final, appealable order as expressly declared by the court

in the order. Robinson’s motion to terminate child support is still pending. Without a final

order concluding the rights of the parties to the subject matter in controversy, this court does

not have jurisdiction over this appeal. Accordingly, we must dismiss it.

Dismissed.

BARRETT and MURPHY, JJ., agree.

Gil Dudley, OCSE Attorney, for appellant.

One brief only.