Sublett v. Mallett

2013 Ark. App. 676

• Court: Court of Appeals of Arkansas
• Decided: November 13, 2013
• Docket: CV-12-1109
• Status: Published

Opinion

Cite as 2013 Ark. App. 676

ARKANSAS COURT OF APPEALS DIVISION II No.CV-12-1109

Opinion Delivered November 13, 2013

JOSEPH SUBLETT APPEAL FROM THE FAULKNER APPELLANT COUNTY CIRCUIT COURT [No. 23DR-03-366] V. HONORABLE DAVID L. REYNOLDS, JEREMY JAY MALLETT and JUDGE JENNIFER LINN TULLOS APPELLEES AFFIRMED

LARRY D. VAUGHT, Judge

Appellant Joseph Sublett appeals from the trial court’s order holding that he was not

permitted to intervene in a lawsuit between appellees Jeremy Jay Mallett and Jennifer Linn Tullos

involving the paternity of a child born during the marriage of Sublett and Tullos. On appeal,

Sublett argues that the trial court erred in its refusal to allow him “any chance of establishing his

paternal rights.” We disagree and affirm.

The facts preceding this appeal are unusual. On May 31, 2001, GMM was born during

the marriage of Sublett and Tullos. However, at the time that the child was born, the parties

were separated. And, in fact, Tullos had been in a relationship and living with Mallett for

approximately eighteen months prior to the child’s birth. However, during the time that Mallett

and Tullos were living together, Sublett and Tullos had a sexual encounter that opened the

possibility that Sublett was the child’s biological father. However, in their divorce proceeding, Cite as 2013 Ark. App. 676

Sublett and Tullos specifically stated and agreed that only one child, TAS, was born of their

marriage and that TAS was given up for adoption.

Sublett, Tullos, and Mallett all agreed and accepted that the child born in 2001 was

fathered by Mallett, and his name appeared on the child’s birth certificate. After filing a petition

to establish paternity and visitation with his daughter in 2003, the court issued an order on May

21, 2004, decreeing Mallett “to be the legal father of [GMM]” and awarded Tullos and Mallett

joint custody, with GMM spending one-half of her time with each parent. The same order

designated Mallett’s house as the child’s primary residence for school purposes and established

Mallett’s parents as the primary care givers for the child. Later, following further litigation

concerning GMM between Mallett and Tullos, the trial court awarded Mallett full custody of the

child and ordered Tullos to pay child support.

However, on November 22, 2011, appellant Sublett attempted to intervene in the lawsuit

between Mallett and Tullos, claiming that he—not Mallett—was the child’s biological father.

The trial court refused, noting that in “years of litigation between [Tullos and Mallett], this

allegation that Mallett is not the biological father of the child was raised only after Mr. Mallett

was granted full custody and [Tullos] was ordered to pay child support.” The court concluded

that Sublett’s and Tullos’s “recent collusion for the [paternity] testing further suggested that they

are seeking to dissolve the parental bond of [Mallett] for financial or for other self-serving

reasons.” Relying on the doctrines of judicial and equitable estoppel, the court refused to allow

Sublett to intervene. Specifically, the court found that both theories applied to prevent Sublett

from asserting a right to interrupt the relationship between the child and Mallett. The court

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further found that allowing the intervention would cause great injury to both the child and to

Mallett. Following this order, Sublett lodged a timely appeal urging that we reverse the trial

court’s denial of his motion to intervene.

A trial court’s ruling denying a motion to intervene will be overruled only if appellant can

establish that the trial court abused its discretion by making an arbitrary and groundless decision

to deny intervention. Emp’rs Nat’l Ins. Co. v. Grantors to Diaz Refinery PRP Comm. Site Trust, 313

Ark. 645, 855 S.W.2d 936 (1993). The right to intervene depends upon a determination of the

threshold question of whether the motion to intervene was made in a timely manner. Carton v.

Missouri Pac. R.R., 315 Ark. 5, 865 S.W.2d 635 (1993). Further, timeliness under Rule 24(a) is a

matter lying within the discretion of the trial court and will not be subject to reversal absent

abuse of that discretion. Cupples Farms Partner v. Forrest City Prod. Credit Ass’n, 310 Ark. 597, 839

S.W.2d 187 (1992). Timeliness of intervention under Rule 24 of the Arkansas Rules of Civil

Procedure is to be determined from all the circumstances, with special consideration of (1) how

far the proceedings have progressed; (2) any prejudice to other parties caused by the delay; and

(3) the reason for the delay. Milberg, Weiss, Bershed, Hynes, and Lerach, LLP v. State, 342 Ark. 303,

28 S.W.3d 842 (2000).

Here, a petition to establish paternity was filed by Mallett in 2003. At that time, Sublett

was aware that he could have fathered the child; that the child was born of his marriage to

Tullos; and that he specifically did not mention the child in his divorce from Tullos. Sublett also

admitted that since her birth, he was aware of the child’s existence and thought the child bore

a resemblance to him. Further, since the initial motion to establish paternity was filed by Mallett

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in 2003, there have been a number of other legal disputes between he and Tullos involving the

custody, visitation, and support of the child.

Sublett was required to act in a timely fashion to establish his alleged paternity. Instead,

he waited until he (and Tullos) were not satisfied with the way the litigation was

progressing—Tullos being ordered to pay child support—and only then attempted to assert his

parental rights. Further, there have been ten-plus years of progress in the case involving not only

the financial and logistic details of the parties’ custody arrangement, but the stability and well-

being of a child. There is also a great risk of resulting prejudice in accommodating Sublett’s

motion to intervene, which the trial court found to be an eleventh-hour attempt to manipulate

a child-support award. The right to intervene must be weighed against the harm, and here the

potential harm is immeasurable.

Based on the facts of this case, we conclude that the trial court did not abuse its

discretion when it refused to allow Sublett to intervene, (1) because his motion to intervene was

untimely under Rule 24(a) of the Arkansas Rules of Civil Procedure. Ark. R. Civ. P. 24(a) (2013);

Sublett waited until the litigation had progressed too far before filing his motion to intervene;

(2) the granting of his untimely motion would have caused the other parties to the litigation to

suffer great prejudice; and (3) Sublett failed to provide a valid reason for his delay in filing the

motion to intervene. Further, we note that although the trial court resolved this case using

theories of estoppel, we are free to affirm the case under an alternative theory—in this case,

timeliness. Thomas v. Avant, 370 Ark. 377, 260 S.W.3d 266 (2007) (holding that it is axiomatic

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that we can affirm a circuit court’s decision if the right result is reached even if for a different

reason).

Affirmed.

WYNNE and GLOVER, JJ., agree.

Worsham Law Firm, P.A., by: Richard E. Worsham, for appellant.

Helen Rice Grinder, for appellees.