{ "id": 703801, "name": "Darryl A. LITTLES v. Gina Felicia FLEMINGS (Foster)", "name_abbreviation": "Littles v. Flemings", "decision_date": "1998-06-11", "docket_number": "97-1099", "first_page": "476", "last_page": "488", "citations": [ { "type": "official", "cite": "333 Ark. 476" }, { "type": "parallel", "cite": "970 S.W.2d 259" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "278 Ark. 621", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1748068 ], "weight": 2, "year": 1983, "opinion_index": 0, "case_paths": [ "/ark/278/0621-01" ] }, { "cite": "226 Ark. 853", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8725390 ], "weight": 2, "year": 1956, "opinion_index": 0, "case_paths": [ "/ark/226/0853-01" ] }, { "cite": "253 Ark. 267", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1627403 ], "weight": 2, "year": 1972, "opinion_index": 0, "case_paths": [ "/ark/253/0267-01" ] }, { "cite": "Ark. Code Ann. \u00a7 9-14-234", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1997, "opinion_index": 0 }, { "cite": "328 Ark. 133", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 50405 ], "weight": 2, "year": 1997, "opinion_index": 0, "case_paths": [ "/ark/328/0133-01" ] }, { "cite": "809 S.W.2d 822", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 1900953, 6141346 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "825-28", "parenthetical": "Rogers, J., dissenting" } ], "opinion_index": 0, "case_paths": [ "/ark/306/0178-01", "/ark-app/34/0250-01" ] }, { "cite": "34 Ark. App. 250", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6141346 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "255-60" } ], "opinion_index": 0, "case_paths": [ "/ark-app/34/0250-01" ] }, { "cite": "228 Ark. 936", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8725335 ], "weight": 2, "year": 1958, "opinion_index": 0, "case_paths": [ "/ark/228/0936-01" ] }, { "cite": "292 Ark. 259", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1871329 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "262-63", "parenthetical": "quoting Chism v. Phillips, 228 Ark. 936, 311 S.W.2d 297 (1958)" }, { "page": "404", "parenthetical": "quoting Chism v. Phillips, 228 Ark. 936, 311 S.W.2d 297 (1958)" } ], "opinion_index": 0, "case_paths": [ "/ark/292/0259-01" ] }, { "cite": "18 S.W.2d 359", "category": "reporters:state_regional", "reporter": "S.W.2d", "year": 1929, "opinion_index": 0 }, { "cite": "179 Ark. 837", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8725931 ], "year": 1929, "opinion_index": 0, "case_paths": [ "/ark/179/0837-01" ] }, { "cite": "110 S.W.2d 497", "category": "reporters:state_regional", "reporter": "S.W.2d", "year": 1937, "opinion_index": 0 }, { "cite": "194 Ark. 916", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8725392 ], "year": 1937, "opinion_index": 0, "case_paths": [ "/ark/194/0916-01" ] }, { "cite": "197 Ark. 480", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8721251 ], "weight": 2, "year": 1939, "opinion_index": 0, "case_paths": [ "/ark/197/0480-01" ] }, { "cite": "43 S.W.2d 225", "category": "reporters:state_regional", "reporter": "S.W.2d", "year": 1931, "opinion_index": 0 }, { "cite": "184 Ark. 655", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1438500 ], "year": 1931, "opinion_index": 0, "case_paths": [ "/ark/184/0655-01" ] }, { "cite": "254 Ark. 75", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1624034 ], "weight": 3, "year": 1973, "pin_cites": [ { "page": "77", "parenthetical": "citing Berry v. Sale, 184 Ark. 655, 43 S.W.2d 225 (1931)" }, { "page": "610", "parenthetical": "citing Berry v. Sale, 184 Ark. 655, 43 S.W.2d 225 (1931)" } ], "opinion_index": 0, "case_paths": [ "/ark/254/0075-01" ] }, { "cite": "332 Ark. 49", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 377674 ], "weight": 3, "year": 1998, "pin_cites": [ { "page": "52" } ], "opinion_index": 0, "case_paths": [ "/ark/332/0049-01" ] }, { "cite": "292 Ark. 385", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1871351 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "390" }, { "page": "241" } ], "opinion_index": 0, "case_paths": [ "/ark/292/0385-01" ] }, { "cite": "Ark. Code Ann. \u00a7 9-10-115", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 8, "year": 1995, "pin_cites": [ { "page": "(c)" }, { "page": "(d)" }, { "page": "(a)" }, { "page": "(d)", "parenthetical": "emphasis added" }, { "page": "(c)" }, { "page": "(d)" } ], "opinion_index": 0 }, { "cite": "325 Ark. 367", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 369240 ], "weight": 2, "year": 1996, "pin_cites": [ { "parenthetical": "\"Flemings 7\"" }, { "parenthetical": "\"Flemings 7\"" } ], "opinion_index": 0, "case_paths": [ "/ark/325/0367-01" ] }, { "cite": "253 Ark. 267", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1627403 ], "year": 1972, "pin_cites": [ { "parenthetical": "Brown and Roaf, JJ., dissenting" } ], "opinion_index": 1, "case_paths": [ "/ark/253/0267-01" ] }, { "cite": "325 Ark. 367", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 369240 ], "weight": 2, "year": 1996, "pin_cites": [ { "parenthetical": "Flemings I" }, { "parenthetical": "Flemings I" } ], "opinion_index": 1, "case_paths": [ "/ark/325/0367-01" ] }, { "cite": "317 Ark. 111", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1443763 ], "weight": 2, "year": 1994, "pin_cites": [ { "parenthetical": "same" }, { "parenthetical": "same" } ], "opinion_index": 2, "case_paths": [ "/ark/317/0111-01" ] }, { "cite": "962 S.W.2d 349", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 1604762, 377543 ], "year": 1998, "pin_cites": [ { "parenthetical": "decision on first appeal is conclusive of every question of law or fact decided on former appeal" } ], "opinion_index": 2, "case_paths": [ "/ark/331/0386-01", "/ark/332/0372-01" ] }, { "cite": "331 Ark. 386", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1604762 ], "year": 1998, "pin_cites": [ { "parenthetical": "decision on first appeal is conclusive of every question of law or fact decided on former appeal" } ], "opinion_index": 2, "case_paths": [ "/ark/331/0386-01" ] }, { "cite": "240 Ark. 288", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1727398 ], "weight": 2, "year": 1966, "opinion_index": 2, "case_paths": [ "/ark/240/0288-01" ] }, { "cite": "263 Ark. 580", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1672640 ], "weight": 2, "year": 1978, "opinion_index": 2, "case_paths": [ "/ark/263/0580-01" ] }, { "cite": "242 Ark. 923", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8724570 ], "weight": 2, "year": 1967, "pin_cites": [ { "parenthetical": "Supp. op. den. reh'g" }, { "parenthetical": "Supp. op. den. reh'g" } ], "opinion_index": 2, "case_paths": [ "/ark/242/0923-01" ] }, { "cite": "Ark. Code Ann. \u00a7 9-10-115", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 2, "year": 1995, "pin_cites": [ { "page": "(d)" }, { "page": "(d)", "parenthetical": "emphasis added" } ], "opinion_index": 2 } ], "analysis": { "cardinality": 850, "char_count": 22135, "ocr_confidence": 0.755, "pagerank": { "raw": 2.576138704901166e-07, "percentile": 0.8167074605507889 }, "sha256": "0b48fe647a7059ca5f2349741a2cfc2a09bdfbbc0c5a5644e300de97c1e0bc5c", "simhash": "1:bb9a6765e26bd5a3", "word_count": 3655 }, "last_updated": "2023-07-14T20:30:04.030411+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Brown, J., concurs.", "Glaze and Imber, JJ., dissent.", "Glaze, J., joins in this dissent." ], "parties": [ "Darryl A. LITTLES v. Gina Felicia FLEMINGS (Foster)" ], "opinions": [ { "text": "David Newbern, Justice.\nWe must decide in this case whether one who has been adjudicated to be the father of a child is entitled to relief from future child-support obligations if scientific testing proves that he is not the child\u2019s biological father. We hold that he is. We also hold, however, that in the circumstances presented he is not entitled to relief from his obligation for support already accrued.\nGina Felicia Flemings (now Foster), the appellee, sued Darryl A. Littles, the appellant, alleging that he was the father of her infant daughter. The Chancellor ordered a blood test for which Mr. Littles was to pay. Mr. Littles failed to pay for the test, and it was not conducted at that time. Therefore, the Chancellor entered judgment on February 2, 1982, adjudicating Mr. Littles to be the father of Ms. Foster\u2019s daughter, and ordering him to pay $50 per month in child support. Mr. Littles did not appeal from that judgment.\nIn August 1994, Mr. Littles moved the Chancellor to order a paternity test and asserted that he had been unable to pay for the test ordered prior to the 1982 judgment. His motion was granted in October 1994, and the test proved that he was not the biological father of the child. Citing the test results, Mr. Littles moved the Chancellor in July 1995 to set aside the February 1982 paternity judgment. The Chancellor granted Mr. Littles\u2019s motion in November 1995. We reversed in Flemings v. Littles, 325 Ark. 367, 926 S.W.2d 445 (1996)(\u201cFlemings 7\u201d).\nThe law applicable in 1995 when the Chancellor set aside the judgment was Ark. Code Ann. \u00a7 9-10-115(c) (Supp. 1995). It provided:\n(1) Upon request for modification of a judicial finding of paternity or a support order issued pursuant to \u00a7 9-10-120, if the court determines that the original finding of paternity or support order did not include results of scientific paternity testing, consent of the parents, or was not entered upon a party\u2019s failure to comply with scientific paternity testing ordered by the court, the court shall, upon request when paternity is disputed, direct the biological mother, the child, and the adjudicated or presumed father to submit to scientific testing for paternity, which may include deoxyribonucleic acid testing or other tests as provided by \u00a7 9-10-108.\n(2) In no event shall the adjudication or acknowledgement of paternity be modified later than five (5) years after such adjudication or execution of such acknowledgement.\nWe held that the Chancellor had no authority under subsection (c)(1) to order the test in view of Mr. Littles\u2019s failure to comply with the original testing order. Perhaps more important, we quoted subsection (c)(2), which precluded any modification of the \u201cadjudication\u201d after the passage of five years.\nOn September 23, 1996, upon remand, Mr. Littles petitioned to modify the child-support award on the basis of \u201cchanged circumstances.\u201d Citing Ark. Code Ann. \u00a7 9-10-115 (Supp. 1995), he sought modification of the support award, as opposed to modification of the \u201cadjudication\u201d of paternity. He maintained that the support award should be reduced to zero, or to a nominal amount, because (1) the scientific testing proved he was not the child\u2019s father; (2) he had married, fathered two children, divorced, and was paying $33 per week in court-ordered support of those children; and (3) he lived with his fiancee and was helping to support her five children.\nThe Pulaski County Child Support Enforcement Unit (\u201cCSEU\u201d), which had intervened in the case as Ms. Foster\u2019s assignee, contested Mr. Littles\u2019s petition. The CSEU also sought an increase in Mr. Littles\u2019s support obligation, citing his increased wages, and an award for child-support arrearage. Mr. Littles claimed that Ms. Foster\u2019s \u201cunclean hands\u201d barred the requested relief.\nIn an order filed on May 30, 1997, the Chancellor, relying on the fact that Mr. Littles was supporting his own children, refused to increase Mr. Litdes\u2019s support obligation to Ms. Foster\u2019s child. The CSEU does not appeal that decision.\nThe Chancellor also denied Mr. Littles\u2019s request to reduce the child-support award to zero or a nominal sum on account of the scientific testing that established he was not the child\u2019s biological father. The Chancellor stated that she \u201crecognized the inequity\u201d of requiring Mr. Litdes \u201cto pay child support for a child that is not his.\u201d She held, however, that she was constrained by our opinion in Flemings I to deny his request. In addition, the Chancellor ordered Mr. Littles to pay $4,436.50 in child-support arrearage and held that the \u201cunclean hands doctrine,\u201d advanced by Mr. Littles, did not apply.\nOn appeal, Mr. Litdes asserts that the Chancellor misinterpreted our decision in Flemings I and erred by refusing to reduce or eliminate his child-support obligation on account of the test results. He further claims that the Chancellor should have applied the\nAlthough we affirm the Chancellor\u2019s decision with respect to the arrearage, we must reverse the denial of the modification petition. Scientific testing proved that Mr. Littles is not the biological father of Ms. Foster\u2019s daughter, and thus he was entitled under Ark. Code Ann. \u00a7 9-10-115(d) (Supp. 1995) to relief from any future child-support obligation.\n\u00cd. Modification of future child support\nA chancery court \u201calways has the right to review and modify child support payments in accordance with changing circumstances and may increase or reduce the payments as warranted in each case.\u201d Thurston v. Pinkstaff, 292 Ark. 385, 390, 730 S.W.2d 239, 241 (1987). By statute, the Chancellor may modify an award ior future support, Ark. Code Ann. \u00a7\u00a7 9-10-115(a); 9-12-314(b) (Supp. 1997), but she may not \u201cset aside, alter, or modify any decree, judgment, or order which has accrued unpaid support prior to the filing\u201d of the modification petition. \u00a7\u00a7 9-12-314(c); 9-14-234(b).\nFlere, the main \u201cchanged circumstance\u201d cited by Mr. Littles in support of his modification petition was the discovery, 'through scientific testing, that he is not the biological father of Ms. Foster\u2019s daughter. His argument, both in the Chancery Court and in this Court, is that the test results entitle him to a modification of the decree relieving him from future child-support obligations. As mentioned, Mr. Littles\u2019s petition was filed on September 23, 1996, and the Chancellor\u2019s order denying the petition was filed on May 30, 1997. On those dates, the following statute, which is dispositive of this point, was in effect:\nIf the court determines, based upon the results of scientific testing, that the adjudicated or presumed father is not the biological father, the court shall, upon the request of an adjudicated or presumed father, set aside a previous finding of paternity and relieve the adjudicated or presumed father of any future obligation of support or any back child support as authorized under \u00a7 9-14-234 as of the date of entry of the order of modification.\nArk. Code Ann. \u00a7 9-10-115(d) (Supp. 1995) (emphasis added).\nAlthough a chancellor generally has discretion in support-modification cases, \u00a7 9-10-115(d) (Supp. 1995) removes such discretion where the change in circumstances is scientific proof that the \u201cadjudicated father\u201d is not the \u201cbiological father\u201d of the child in question. In that situation, the statute mandates that an adjudicated father in Mr. Littles\u2019s position receive prospective relief from a child-support judgment. Therefore, considering the plain language of \u00a7 9-10-115(d) (Supp. 1995), and the unrefuted scientific proof that Mr. Littles is not the biological father of Ms. Foster\u2019s child, we hold that the Chancellor erred when she declined to terminate Mr. Littles\u2019s obligation for future child-support payments.\nThe termination of Mr. Littles\u2019s future child-support obligation is not, as the Chancellor seemed to believe, contrary to our decision in Flemings I. In that case, as mentioned, we reversed the Chancellor\u2019s order setting aside the 1982 paternity judgment, holding that she lacked authority to do so under Ark. Code Ann. \u00a7 9-10-115(c) (Supp. 1995). As a result of that decision, the paternity judgment remains extant, and Mr. Littles remains the adjudicated father of Ms. Foster\u2019s daughter.\nEven an \u201cadjudicated father,\u201d however, is entitled by \u00a7 9-10-115(d) (Supp. 1995) to relief from future child-support obligations upon scientific proof that he is not the \u201cbiological father.\u201d Mr. Littles\u2019s right to relief under \u00a7 9-10-115(d) (Supp. 1995) is unaffected by his status as the \u201cadjudicated father\u201d of Ms. Foster\u2019s child or by our holding in Flemings I precluding Mr. Littles from having the 1982 paternity judgment set aside.\nThe dissent contends that Mr. Littles has waived the point on which we reverse by not citing subsection (d) of \u00a7 9-10-115 in particular. Although we do not reverse a chancellor\u2019s decision on the basis of an argument not raised by the appellant in the trial court and on appeal, Mr. Littles, in his petition for modification, argued that he was entitled to relief from future child-support obligations because scientific testing proved that he was not the child\u2019s biological father. That is the very point that Mr. Littles has made on appeal, and it is the point on which we reverse. Although Mr. Littles failed to pinpoint subsection (d) of the statute, he cited \u00a7 9-10-115 (Supp. 1995), and we read all of it.\nThis is not a \u201csua sponte reversfal],\u201d as the dissent claims. A court acts sua sponte when it takes action of \u201cits own will or motion; voluntarily; without prompting or suggestion.\u201d Black\u2019s Law Dictionary 1424 (6th ed. 1990). Our reversal of the Chancellor is \u201cprompted\u201d by the argument that Mr. Littles made below and on appeal and that we determined to be meritorious in light of statutory authority.\nWe must also reject the dissent\u2019s interpretation of \u00a7 9-10-115(d) (Supp. 1995) to the effect that the statute does not entitle Mr. Littles to relief from future child-support obligations because he is precluded by our holding in Flemings I from having the judgment of paternity set aside. According to the dissenting opinion, the \u201cplain language\u201d of the statute contains a \u201crequirement\u201d that the paternity judgment must be set aside \u201cbefore\u201d a father in Mr. Littles\u2019s position may obtain relief from future child-support obligations. As the paternity judgment against Mr. Littles has not been set aside, the dissent argues, he is not entitled to relief from future child-support obligations.\nWe have quoted \u00a7 9-10-115(d) (Supp. 1995) above in its entirety, and nothing in the text of the statute supports the dissent\u2019s proposed interpretation. We observed in Leathers v. Cotton, 332 Ark. 49, 52, 961 S.W.2d 32 (1998), that \u201c[t]he first rule in considering the meaning of a statute is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language.\u201d \u201c[W]here the intention of the Legislature is clear from the words used, there is no room for construction, and no excuse for adding to or changing the meaning of the language employed.\u201d Vault v. Adkisson, Judge, 254 Ark. 75, 77, 491 S.W.2d 609, 610 (1973)(citing Berry v. Sale, 184 Ark. 655, 43 S.W.2d 225 (1931)).\nBy its terms, \u00a7 9-10-115(d) (Supp. 1995) directs the chancellor, upon scientific proof that the \u201cadjudicated or presumed father\u201d is not the \u201cbiological father,\u201d to do the following two things: (1) \u201cset aside a previous finding of paternity,\u201d and (2) \u201crelieve the adjudicated or presumed father of any future obligation of support or any back child support as authorized under \u00a7 9-14-234 as of the date of entry of the order of modification.\u201d Thus, an \u201cadjudicated father\u201d who proves that he is not the \u201cbiological father\u201d may receive two forms of relief. He is entitled to have the paternity judgment set aside and to be relieved of future child-support obligations. However, nothing in \u00a7 9-10-115(d) (Supp. 1995) conditions one\u2019s right to relief from a child-support obligation upon one\u2019s ability to have the paternity judgment set aside.\nNotwithstanding \u00a7 9-10-115(d) (Supp. 1995), we held in Flemings I that the Chancellor lacked the authority to set aside the paternity judgment because of the requirements found in \u00a7 9-10-115(c). The dissent, however, is incorrect as to the consequences that flow from Flemings I. Mr. Littles was precluded from having the paternity judgment set aside, but nothing in \u00a7 9-10-115(d) (Supp. 1995) supports the dissent\u2019s position that Mr. Littles is therefore precluded from obtaining relief from any future child-support obligation. Only by \u201cadding to or changing the meaning\u201d of the text of the statute, Vault v. Adkisson, Judge, supra, could we accept the dissent\u2019s position that Mr. Littles\u2019s inability to have the paternity judgment set aside means that he cannot be relieved from his future child-support obligations. Our duty is to interpret \u00a7 9 \u2014 10\u2014115(d) (Supp. 1995) \u201cjust as it reads,\u201d Leathers v. Cotton, supra, and thus we must reject the interpretation advanced by the dissenting opinion.\nClosing on this point, we note that Ark. Code Ann. \u00a7 9-10-115 (Supp. 1995) was amended by Act 1296, \u00a7 8, of 1997, and that \u00a7 9-10-115(d) (Supp. 1995) has been recodified at \u00a7 9-10-115(g)(1) (Supp. 1997). One of the changes effected by the 1997 amendments concerns the point at which relief from the child-support obligation becomes effective. Under \u00a7 9-10-115(d) (Supp. 1995), the termination of the support obligation is effective only \u201cas of the date of entry of the order of modification.\u201d Under \u00a7 9-10-115(g)(1) (Supp. 1997), termination may take effect at an earlier point, i.e., \u201cas of the date of the filing of the motion for modification.\u201d\nWe are obliged in this case to apply \u00a7 9-10-115(d) (Supp. 1995) rather than the current version of the statute. The Act containing the 1997 amendments was approved without an emergency clause by the General Assembly. Therefore, the Act did not become effective until ninety days after the adjournment of the legislative session at which it was enacted. Steele v. Gann, 197 Ark. 480, 123 S.W.2d 520 (1939); Gentry v. Harrison, 194 Ark. 916, 110 S.W.2d 497 (1937); Jumper v. McCollum, 179 Ark. 837, 18 S.W.2d 359 (1929). The session in which Act 1296 was approved adjourned on May 2, 1997, and thus the Act took effect on August 2, 1997, well after the filing of Mr. Littles\u2019s petition for modification and the order denying it.\nWe cannot, at this point, apply Act 1296 retroactively to Mr. Littles\u2019s benefit. Our duty is to construe statutes \u201cas having only a prospective operation unless the purpose and intention of the Legislature to give them a retroactive effect is expressly declared or necessarily implied from the language used.\u201d Arkansas Rural Med. Prac. Student Loan & Scholarship Bd. v. Luter, 292 Ark. 259, 262-63, 729 S.W.2d 402, 404 (1987) (quoting Chism v. Phillips, 228 Ark. 936, 311 S.W.2d 297 (1958)). We find nothing in the text of Act 1296 to suggest that the General Assembly intended the Act to operate retroactively.\nWe reverse the Chancellor\u2019s order denying Mr. Littles\u2019s petition to modify the child-support award and direct the Chancellor upon remand to enter an order pursuant to Ark. Code Ann. \u00a7 9-10-115(d) (Supp. 1995) relieving Mr. Littles of any future child-support obligation as of the date of the entry of such order.\n2. Arrearage\nBefore discussing Mr. Littles\u2019s argument for relief from back child support, we must mention the language of \u00a7 9-10-115(d) (Supp. 1995) that required the setting aside of \u201cany back child support as authorized under \u00a7 9-14-234 as of the date of entry of the order of modification.\u201d Mr. Littles is entitled to no relief from back support pursuant to that provision because \u00a7 9-14-234 only allows, as an offset against future child support, any back support that accrued \u201cduring time periods, other than reasonable visitation, in which the noncustodial parent had physical custody of the child with the knowledge and consent of the custodial parent.\u201d \u00a7 9-14-234(c) (Supp. 1995). There is no evidence or contention that Mr. Littles has ever had \u201cphysical custody\u201d of the child.\nMr. Littles\u2019s assertion is that the Chancellor erred by awarding $4,436.50 in arrearage to Ms. Foster and the CSEU because of Ms. Foster\u2019s \u201cunclean hands\u201d resulting from her insistence that Mr. Littles is the father of her child despite the scientific evidence. He also cites her failure to have revealed, until she responded to discovery concerning the current petition, that Mr. Littles\u2019s cousin was \u201cpossibly\u201d the father of her child.\nThe \u201cunclean hands\u201d conduct alleged here is not of the sort referred to in Roark v. Roark, 34 Ark. App. 250, 809 S.W.2d 822 (1991), cited in support of Mr. Littles\u2019s argument on this point. In that case, a former wife frustrated her former husband\u2019s right to visitation pursuant to a divorce decree. Nor is the situation here like the other cases in which we have allowed the equitable defenses of estoppel or unclean hands to have an effect on the payment of child-support arrearage when the noncustodial parent\u2019s rights under the divorce decree have been frustrated. Those cases are listed and summarized in Roark v. Roark, 34 Ark. App. at 255-60, 809 S.W.2d at 825-28 (Rogers, J., dissenting). See also Stewart v. Norment, 328 Ark. 133, 941 S.W.2d 419 (1997), in which we discussed the effect of Ark. Code Ann. \u00a7 9-14-234 (Supp. 1997), which makes court-ordered child-support payments final judgments as they become due.\nMr. Littles argues that Ms. Foster \u201ccame into court with unclean hands and committed fraud on the court.\u201d Even if Ms. Foster\u2019s testimony was false, it was intrinsic fraud and thus not a ground for reversal. Lee v. Westark Inv. Co., 253 Ark. 267, 485 S.W.2d 712 (1972); Croswell v. Linder, 226 Ark. 853, 294 S.W.2d 493 (1956). See Sumter v. Allton, 278 Ark. 621, 648 S.W.2d 55 (1983).\nAffirmed in part; reversed and remanded in part.\nBrown, J., concurs.\nGlaze and Imber, JJ., dissent.", "type": "majority", "author": "David Newbern, Justice." }, { "text": "Robert L. Brown, Justice,\nconcurring. Both the majority opinion and the dissent make the point that in Flemings v. Littles, 325 Ark. 367, 926 S.W.2d 445 (1996) (Flemings I), the issue of Littles\u2019s paternity was decided against him, and that decision is law of the case. I joined a dissenting opinion in Flemings I because I was convinced that Littles did not have a blood test done in 1982 to establish paternity because he did not have the wherewithal to pay for it. The trial court found this to be the case in Flemings I. See Flemings I, supra (Brown and Roaf, JJ., dissenting). Of course, when DNA testing was eventually done, it proved conclusively that Littles was not the child\u2019s father. I continue to adhere to that dissent and believe that the adjudication of his paternity was wrong. Hence, Littles should have no obligation to pay child support. For that reason alone, I concur with the result reached in the majority opinion.", "type": "concurrence", "author": "Robert L. Brown, Justice," }, { "text": "Annabelle Clinton Imber, Justice,\ndissenting. Although I agree with that part of the majority opinion which addresses Mr. Littles\u2019s unclean-hands argument, I must respectfully dissent from that part of the opinion which addresses the modification of future child support. Neither party, either below or on appeal, has ever cited or argued Ark. Code Ann. \u00a7 9-10-115(d) (Supp. 1995), upon which the majority relies to reverse the Chancellor\u2019s order denying Mr. Littles\u2019s petition to modify the child-support award. Rather, the majority has sua sponte reversed on a ground not argued by appellant. In Cummings v. Boyles, 242 Ark. 923, 415 S.W.2d 571 (1967) (Supp. op. den. reh\u2019g) (per curiam), this court reiterated that, although chancery cases are tried de novo, we do not reverse an order upon a statutory ground not argued by appellant. See also Country Gentleman, Inc. v. Harkey, 263 Ark. 580, 569 S.W.2d 649 (1978). Mr. Littles failed to cite or argue section 9-10-115(d), and thereby waived that point for reversal. The observation made by this court in Fancher v. Baker, 240 Ark. 288, 399 S.W.2d 280 (1966), is equally applicable to this case: \u201cNot one line of the brief is devoted to that point[.]\u201d\nIn any event, the majority\u2019s application of section 9-10-115(d) to this case ignores that statute\u2019s requirement that the previous finding of paternity must be set aside before the \u201cadjudicated\u201d father is entitled to relief from future child-support obligations: \u201cthe court shall, upon the request of an adjudicated or presumed father, set aside a previous finding of paternity and relieve the adjudicated or presumed father of any future obligation of support . . . .\u201d Ark. Code Ann. \u00a7 9-10-115(d) (Supp. 1995) (emphasis added). In fact, the majority properly notes that the parties have not asked this court to reconsider Flemings I, in which we held that the chancellor lacked authority to set aside the 1982 paternity judgment. I agree with the majority that \u201cthe paternity judgment remains extant, and Mr. Littles remains the adjudicated father of Ms. Foster\u2019s daughter.\u201d Flemings I is the law of the case and the parties have not asked us to reconsider the Flemings I decision. See Vandiver v. Banks, 331 Ark. 386, 962 S.W.2d 349 (1998) (decision on first appeal is conclusive of every question of law or fact decided on former appeal); Larimore v. State, 317 Ark. 111, 877 S.W.2d 570 (1994) (same).\nPursuant to section 9-10-115(d), the previous finding of paternity must be set aside in order for Mr. Littles to be entitled to relief from future child-support obligations. Mr. Littles\u2019s previous paternity judgment should not be and is not set aside by the majority opinion. Therefore, Mr. Littles is not entitled to relief from future child-support obligations under the plain language of section 9-10-115(d).\nBecause I would affirm the Chancellor\u2019s order denying Mr. Littles\u2019s petition to modify the child-support award, I must respectfully dissent.\nGlaze, J., joins in this dissent.", "type": "dissent", "author": "Annabelle Clinton Imber, Justice," } ], "attorneys": [ "Perroni & James, by: Samuel A. Perroni and Carla Rogers Nadzam, for appellant.", "Kimberly D. Burnette, for appellee." ], "corrections": "", "head_matter": "Darryl A. LITTLES v. Gina Felicia FLEMINGS (Foster)\n97-1099\n970 S.W.2d 259\nSupreme Court of Arkansas\nOpinion delivered June 11, 1998\nPerroni & James, by: Samuel A. Perroni and Carla Rogers Nadzam, for appellant.\nKimberly D. Burnette, for appellee." }, "file_name": "0476-01", "first_page_order": 506, "last_page_order": 518 }