Harley v. Dempster

2017 Ark. App. 159, 512 S.W.3d 698, 2017 Ark. App. LEXIS 162
CourtCourt of Appeals of Arkansas
DecidedMarch 8, 2017
DocketCV-15-918
StatusPublished
Cited by2 cases

This text of 2017 Ark. App. 159 (Harley v. Dempster) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Harley v. Dempster, 2017 Ark. App. 159, 512 S.W.3d 698, 2017 Ark. App. LEXIS 162 (Ark. Ct. App. 2017).

Opinions

BART F. VIRDEN, Judge

| jThis child-support case comes before us again as a result of our having granted a petition for rehearing. The case began with a complaint for support filed on December 13, 2007, against appellee Wynd-ham Dempster as to his two minor children with appellant Chelsea Harley. The plaintiff in the action was listed as the Office of Child Support Enforcement (OCSE), and Harley was listed on the pleadings as the assignor. Although Demp-ster was served with the petition to establish support, he did not answer or appear at the hearing. The circuit court issued an order on January 31, 2008, which stated that “[t]he OCSE is involved in establishment of a support order herein pursuant to its responsibilities under Ark. Code Ann. § 9-14-210(d) and § 9-10-104 under which the Assignor is the recipient of services under Title IV-D of the Social Security Act.”

I ¿The order found that Dempster owed a continuing duty to support his children and ordered him to pay child support. Support payments were to be paid through the Child Support Clearinghouse. Harley was listed in the order as a lienholder.

Dempster did not pay his child support as ordered, and in March 2015, the OCSE filed a petition to modify the amount due and sought a judgment for the arrears, which were over $26,000. Dempster' was served with the petition, but again, he failed to file an answer. He did, however, appear at the hearing on the matter in the Pulaski County Circuit Court on July 8, 2015. After a hearing, the circuit court issued an order of modification on July 16, 2015, which will be discussed below in greater detail. The point of contention before us is the circuit court’s finding that Dempster would receive credit toward the arrears in the amount of $6,000 — a portion of money paid by his parents for private-school tuition for the children. Harley filed an appeal from that order.

An opinion was issued by this court on December 7, 2016, by a nine-judge panel on a vote of 5-4 dismissing the appeal based on a finding that Harley did not have standing to appeal the lower court’s decision to our court. Three dissents were issued along with the majority opinion. Upon petition for rehearing, that opinion is vacated, and this opinion is substituted as the majority opinion.

I. Standard of Review

Our review of the trial court’s decision is de novo on the record, and we will not reverse findings of fact by the circuit court unless they are clearly erroneous. Ward v. Doss, 361 Ark. 153, 205 S.W.3d 767 (2005). We have further stated that a circuit court’s finding is clearly erroneous when, despite supporting evidence in the record, the appellate court |sviewing all of the evidence is left with a definite and firm conviction that a mistake has been committed. Daniel v. Spivey, 2012 Ark. 39, 386 S.W.3d 424. In reviewing a circuit court’s findings, we give due deference to that court’s superior position to determine the credibility of the witnesses and the weight to be accorded to their testimony. Ward, swpra. A circuit court’s conclusion of law, however, is given no deference on appeal. Id. As a rule, when the amount of child support is at issue, we will not reverse the circuit court absent an abuse of discretion. Id. This court has traditionally reviewed matters that sound in equity de novo on the record with respect to factual questions and legal questions. Daniel, supra.

II. Standing

Neither Harley nor Dempster raised the issue of standing at the trial court level or in this appeal. It is the opinion of some members of the court that standing to bring the appeal is not jurisdictional; thus, it may be waived. In that event, we would proceed to address the merits of the appeal. The supreme court has held that to be the case. See Pulaski Cty. v. Carriage Creek Prop. Owners Improvement Dist. No. 639, 319 Ark. 12, 888 S.W.2d 652 (1994). The supreme court, however, has raised the issue of standing on its own. See Swindle v. Benton Cty. Cir. Ct., 363 Ark. 118, 211 S.W.3d 522 (2005). The distinction may lie in the difference between standing at the trial court level and standing at the appellate court level. In either case, as a result of our previous decision and our grant of rehearing, it must be discussed.

Obviously, if Harley is considered a party, she has standing. This opinion addresses two aspects of the standing question: First, was Harley a party? Second, did she have a pecuniary interest in the litigation to give her standing to bring this appeal?

| ¿While Ark. Code Ann. § 9-14-109 (Repl. 2015) does grant party status to the OCSE in an enforcement case, and it is referred to as the “real party in interest,” it does not follow that the custodial parent is not also a party to the litigation. In fact, there can be other issues in a domestic case, such as visitation, property, and custody. The OCSE makes it clear that it does not represent the custodial parent in these cases, so how would the dissent characterize the custodial parent? Harley is listed throughout the case as the “OSCE Assign- or” in the case style, along with the OCSE as the plaintiff and Dempster as the defendant. Many cases have more “parties” than just one plaintiff and one defendant. There can be a claimant, counterclaimant, inter-venor, garnishee, third-party defendant, etc. There is no argument that they are not parties. Why should it be so for an assignor with a direct interest in the outcome?

A review of the record shows that Harley’s status as a party to the litigation is further supported by the following references:

• 2008 Default Judgment of Support refers to her and the OCSE as lien-holders.
• 2015 Motion to Modify Support and for Judgment: In this motion, it was alleged in paragraph 2 “[t]hat since the entry of the last Order, a material change in the circumstances of the parties ha[d] occurred” (Emphasis added.) Paragraph 3 states “[t]hat WYNDHAM S. DEMSPTER SR has accrued a total past due child support in this matter in the amount of $26036.00 as of FEBRUARY 28, 2015 and that OCSE and/or its assignor is entitled to a judgment for said amount[.]” There was nothing that indicated a change in circumstances regarding the OCSE had occurred, leaving only the appellant and appellee to be “parties.”
• Certainly, the OCSE considered Harley to be a party. The attorney for the OCSE sent a letter to the court along with a draft of the order for modification and referenced the case as: “Re: State of Arkansas, OCSE/Chelsea Harley vs. Wyndham Dempster, Sr.”
|s* The Circuit Court also considered Harley to be a party. It was only after her consultation and consent that the arrears were reduced for the time period that “the parties” lived together.

If Harley had a pecuniary interest in the outcome, she also would have standing to bring this appeal. See Swindle, supra; In re $3,166,199, 337 Ark. 74, 987 S.W.2d 663 (1999).

Does the custodial parent of children owed child support have a pecuniary interest in the amount of the child support? At first blush, that might seem to be a simple question.

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Harley v. Dempster
2017 Ark. App. 159 (Court of Appeals of Arkansas, 2017)

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Bluebook (online)
2017 Ark. App. 159, 512 S.W.3d 698, 2017 Ark. App. LEXIS 162, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harley-v-dempster-arkctapp-2017.