Taylor v. Finck

211 S.W.3d 532, 363 Ark. 183

• Court: Supreme Court of Arkansas
• Decided: July 1, 2005
• Docket: 04-422
• Status: Published

Opinions

Betty C. Dickey, Justice.

Isabelle Taylor (Isabelle) appeals the denial of certain lying-in expenses in a paternity action, contending that the trial court’s order violates Ark. Code Ann. § 9-10-110 (Repl. 2002). This court previously dealt with these parties in In the Matter of Adoption of SCD, 358 Ark. 51, 186 S.W.3d 225 (2004). Isabelle is the mother of the child, and the DePriests are the couple who sought to adopt Isabelle’s baby. Travis Finck (Travis) is the father, who, prior to the baby’s birth, registered as the baby’s father under the Arkansas Putative Father Registry on May 15, 2003.

On September 16, 2003, the Polk County Circuit Court held trials on Travis’ paternity action and the DePriests’ adoption petition. The trial court declared Travis the biological father of the baby after admitting a test that established paternity to a 99.99% degree of certainty. Later the same day, the trial court denied the adoption petition, finding that Travis had legitimated the baby in accordance with § 9-9-206 (a) (2), and that, consequently, Isabelle and the DePriests should have obtained Travis’ consent prior to the adoption. The trial court dismissed the petition for adoption, the DePriests appealed, and this court affirmed. In the Matter of Adoption of SCD, supra.

At the paternity proceeding, the trial court stated that “the contested issues now are the lying-in expenses and the matter of custody, visitation and support.” Isabelle’s mother, Brenda Taylor (Mrs. Taylor), testified that she prepared a list of lying-in expenses that she paid during Isabelle’s pregnancy, including blood work, lab work, ultrasound, medications, and psychological counseling. In addition, she asked for related non-medical expenses caused by the pregnancy, namely, maternity clothing, travel from Mena to Little Rock for treatment, Isabelle’s room and board during the pregnancy, and Isabelle’s schooling in the form of correspondence courses. Mrs. Taylor also listed loss of work income because of driving Isabelle to and from Little Rock, the cost of telephone calls made to doctors, Medicaid, and other related expenses. Finally, Mrs. Taylor listed “After Pregnancy Expenses Due” for private schooling, since Isabelle was unable to return to high school “because of damage to her reputation.”

Mrs. Taylor also added expenses that the DePriests had paid, saying “they paid bills that were owed by us and were directly related to the birth of the baby, including one of $750.00 for anesthetic during delivery.” Mrs. Taylor testified that if the DePriests “turn out not to be adoptive parents, I expect to have to pay them.”

On cross-examination, Mrs. Taylor admitted that Isabelle was covered on her health insurance, “however, from the very beginning they told us there was no insurance. We didn’t file every claim because they told us they did not pay anything related to a diagnosis of pregnancy. . . I did not continue to submit claims to the insurance company. I sent a $225 bill and received a denial on that, but I did not submit the other bills because I did not want Isabelle’s file full of denials regarding her pregnancy.”

The trial court found that the legitimate lying-in expenses included the Pathology Labs of Arkansas for $35, Cornerstone Clinic for $442, and the $85.86 medication expense. The trial court also determined that neither counseling nor long distance telephone calls were lying-in expenses, saying:

There is no evidence, however, supporting the content or payment status of the counseling, so that is not allowed. In addition, I don’t know of any cases that state the maternity clothes, or any of the other listed expenses, are lying-in expenses. The statute specifically says lying-in expenses and not everything involved with the birth of the child. Therefore, the total amount of lying-in expenses is $562.86. I think you should try to use your insurance ... I believe you have made an adequate record on the items that are labeled ‘DePriests paid.’ The DePriests haven’t filed a claim for lying-in expenses that they paid because they are not parties here and they’re not involved in this in any way, shape or form whatsoever.

The trial court also found that Travis would pay the attorney ad litem’s fee of $2,000.

A chancery case is reviewed de novo on the record, but we will not reverse a finding of fact by the chancellor unless it is clearly erroneous. Bean v. Office of Child Support Enforcement, 340 Ark. 286, 9 S.W.3d 520 (2000); Moon v. Marquez, 338 Ark. 636, 999 S.W.2d 678 (1999); Office of Child Support Enf. v. Eagle, 336 Ark. 51, 983 S.W.2d 429 (1999). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court, based on the entire evidence, is left with a definite and firm conviction that a mistake has been committed. Id.; Huffman v. Fisher, 337 Ark. 58, 987 S.W.2d 269 (1999).

Ark. Code Ann. § 9-10-110 provides:

(a) If it is found by the court that the accused is the father of the child, the court shall render judgment against him for the lying-in expenses in favor of the mother, person, or agency incurring the lying-in expenses, if claimed.

(b) If the lying-in expenses are not paid upon the rendition of the judgment, together with all costs which may be adjudged against him in the case, then the court shall have the power to commit the accused person to jail until the lying-in expenses are paid, with all costs.

(c) (1) Bills and invoices for pregnancy and childbirth expenses and paternity testing are admissible as evidence in the chancery court or juvenile division thereof without third-party foundation testimony if such bills or invoices are regular on their face.

(2) Such bills or invoices shall constitute prima facie evidence of amounts incurred for such services or for testing on behalf of the child.

There is a dearth of reported cases in Arkansas that discuss Ark. Code Ann. § 9-10-110, with the main case being Eaves v. Dover, 291 Ark. 545, 726 S.W.2d 276 (1987). In Eaves, the father filed a petition seeking a paternity determination of his son. The mother answered, admitting appellant was the father of the child, but sought a denial of his visitation rights and recovery of her lying-in expenses, child support, and attorney’s fees. The court determined appellant to be the natural father, and ordered him to pay lying-in expenses of $3,113.65 and attorney’s fees of $500. The trial court also affirmed the referee’s order and awarded an additional attorney’s fee of $350. Appellant contended that Ark. Stat. Ann. 34-706 (Supp. 1985)¹ was a gender-based statute that violated the equal protection clause of the Fourteenth Amendment to the U.S. Constitution, arguing that, because the statute was unconstitutional, the award of lying-in expenses and attorney’s fees should be reversed. This court held that § 34-706 was constitutional, and affirmed the trial court.

As early as 1910, this court, in construing § 34-706, held that the award of lying-in expenses must be confided largely to the discretion of the trial court. Belford v. State, 96 Ark. 274, 131 S.W. 953 (1910). In 1979, the General Assembly amended § 34-706, empowering the trial court with the discretion to, at any time, enlarge, diminish or vacate any order or judgment in these filiation proceedings as justice may require. See Act 718 of 1979. Thus, if any doubt existed that a trial court possessed discretion in the award of lying-in expenses, attorney’s fees, or support prior to 1979, the General Assembly clearly eliminated that doubt by enacting Act 718. In 1997, the General Assembly rewrote sections (a) and (c), leaving the present-day statute.

The major purpose of Arkansas’ filiation laws is to provide a process by which the putative father can be identified so that he may assume his equitable share of the responsibility for his child. However, a trial court, in awarding lying-in expenses or attorney’s fees, may exercise its discretion in determining the amount that the father should bear. Furthermore, the trial court may even consider the mother’s financial means when making an award. Eaves, supra. Ark. Code Ann. § 9-10-110 does not dictate that a father pay for everything that may be considered to be involved in the birth of a child.

Among the few reported Arkansas appellate cases that discuss Ark. Code Ann. § 9-10-110, none either defines “lying-in expense,”or discusses what items may or may not constitute such expenses, or says who may claim the expense. Lying-in expenses could include those expenses that are paid to ensure a safe birth and healthy infant. Such expenses are not for the benefit of the mother, even though the mother certainly receives an indirect benefit. Baby Girl D, 517 A.2d 925, 512 Pa. 449 (1986). “Thus, payment by adoptive parents for counseling natural mothers in preparation for relinquishment of parental rights falls outside the guideline that permissible payments directly benefit the child.” Id. “Lamaze classes, pre-natal care and sonograms. These expenses were all disallowed. Again, these expenses are not directly connected with the birth, and, thus, are outside the parameters of the traditional allowable expenses in adoption.” Id. “The fact that the child may enjoy an indirect benefit from these services cannot provide a basis for permitting their provision for the mother at the expense of prospective adopters.” Id.

In Arkansas, lying-in expenses continue to be left to the discretion of the trial court after the complaining party sufficiently meets its burden of proof. Such expenses should include, but are not limited to, medical costs. Lying-in expenses normally would not include items such as maternity clothes, lost wages, or counseling.

Isabelle argues that the lying-in expenses were properly claimed and judgment should have been rendered against Travis for those amounts. At trial, Mrs. Taylor presented a summary of expenses relating to Isabelle’s pregnancy and delivery, which, although not itemized, appear to be:

Counseling $ 280.00

Maternity clothes 596.62

DePriests paid:

Baptist Health Med. Center 6,573.06

Cornerstone Clinic 2,604.00

Ark. Health G Anesthesia — Labor & Del. 750.00

Path, of Ark. — Lab 45.55

Path, of Ark. — Lab 14.55

Medicaid Pending — unpaid:

Baptist Health 763.35

LR Children’s Clinic 108.00

TOTAL: $11,735.13

Mrs. Taylor testified that she had a $280 bill for counseling, but nothing that indicated that the counseling was for her daughter. Therefore, the trial court found that there was “no evidence whatsoever what the counseling consisted of.” The issue was not whether counseling may or may not be a reasonable and necessary expense relating to pregnancy and childbirth, but whether Isabelle met her burden of proof. We cannot say that the trial court erred with regard to denying counseling as a lying-in expense. There are no Arkansas cases that consider maternity clothes as a lying-in expense, and this court will not do so now.

Isabelle seeks an award of $9,987.16 for the expenses the DePriests paid, however, the DePriests never made a claim for those medical expenses. The trial court stated that it would have considered such a claim if the DePriests had made one. We affirm on this point, but for a different reason than that relied upon by the circuit court. See, e.g., Hill v. Carter, 357 Ark. 597, 184 S.W.3d 431 (2004); Ferguson v. Kroger Co., 343 Ark. 627, 37 S.W.3d 590 (2001). The trial court denied the lying-in expenses based on an erroneous interpretation of who may receive payment. Ark. Code Ann. § 9-10-110 states that the father shall pay lying-in expenses “in favor of the mother, person, or agency incurring the lying-in expenses, if claimed.” (Emphasis added). Here, Mrs. Taylor did not provide adequate proof that she incurred the expenses allegedly paid by the DePriests.

Finally, Isabelle asserts she should be awarded $871.35 for a hospital bill and children’s clinic bill, under “Medicaid Pending - Unpaid.” The trial court found, “[w]ith respect to the last two items, they have not been paid. If they have been paid, I would allow them with adequate proof on them. I can’t just accept blind words here. There’s just not sufficient proof. You have the burden of proof showing that this is something that has been paid or should be paid by them, Baptist Health, in the amount of $763.35 and Little Rock Children’s Clinic in the amount of $108.1 want to be sure that you understand the judgment. I am trying to allow every lying-in expenses the law allows.” The trial court then denied the “Medicaid Pending - Unpaid” expenses, stating, “If there’s insurance to cover part of it, I think it is foolish not to let the insurance pay for it.”

The issue was not whether the “Medicaid Pending — unpaid” expenses were legitimate lying-in expenses relating to pregnancy and childbirth, but whether Isabelle met her burden of proof. The trial court stated that he was trying to approve every lying-in expense allowable, but that Isabelle failed to meet her burden that the Baptist Health bill and the Little Rock Children’s Clinic bill had been paid. The trial court used the word “paid” instead of “incurred,” as the statute provides, however, we cannot say that the court abused its discretion in not awarding the Medicaid expenses, because Isabelle did not prove that the expenses had either been paid or incurred.

Affirmed.

Brown and Imber, JJ., concur in part and dissent in part.

1 Section 34-706 provided in relevant part:

If it is found by the court that the accused is the father of the child, the court shall render judgment against him for the lying-in expenses in favor of the mother, or person who incurred the same, if required or claimed, for a sum not less than twenty-five dollars ($25), and if the same shall not be paid upon the rendition of such judgment, together with all costs which may be adjudged against him in said case, then the court shall have the power to commit the accused person to jail until the same shall be paid, with all costs; ...