Maxwell v. State Child Support Enforcement Unit

SAM BIRD, Judge. This case stems from a paternity action in which Vincent Maxwell, the appellant, was adjudicated in May 1995 to be the father of a child born out of wedlock and ordered to pay child support, past-due and current. Because the child’s mother, Jozetta Halton, had received Aid to Families with Dependent Children (AFDC) benefits from the State of Arkansas, the paternity case was prosecuted by attorneys for the Arkansas Child Support Enforcement Unit (CSEU), the appellee, through the Jefferson County Office of Child Support Enforcement. In November 1995, six months after the paternity action had been concluded, Maxwell and Halton entered into an agreement by which Halton accepted a $2,300 lump-sum payment from Maxwell in full satisfaction of Maxwell’s child-support obligations, past, present, and future. They filed a joint petition in the case that had been opened originally for prosecution of Halton’s paternity action against Maxwell, and, on November 15, 1995, received from the court an order approving their agreement. Six months later, CSEU petitioned the court to set aside the November 15 order, contending: (1) that at the time the order was entered Halton was receiving AFDC and had an open child-support case with CSEU; (2) that Halton had assigned her child-support rights to CSEU; (3) that Maxwell owed child support to the State of Arkansas; (4) that Halton lacked authority to enter into the agreement; and (5) that the agreed order was void as against public policy. CSEU later amended its motion to add allegations that CSEU was the real party in interest, and that Maxwell had practiced fraud upon the court in obtaining the agreed order without notice to CSEU. On February 19, 1997, a hearing was convened, but when Halton faded to appear, the court rescheduled the hearing for May 7, 1997, and ordered Halton to appear on that date with the child or risk being sanctioned for contempt of court. On May 7, Halton again failed to appear, and counsel for CSEU and the child’s attorney ad litem argued that the agreed order was void ab initio and that the court should set it aside notwithstanding Halton’s failure to appear. A lengthy report filed by an attorney ad litem for the child outlined numerous attempts (some successful and some unsuccessful) to communicate with Halton in Texas by telephone. However, despite clear indications that Halton received notices of the hearings, she never attended any of them. Finally, at a scheduled hearing on January 12, 1998, the court heard the testimony of a witness called by CSEU, a child-support investigator, that revealed the following, in significant contrast to the allegations of CSEU’s petition: (a) That Halton had been an AFDC recipient “off and on,” but that she was not on AFDC in November 1995 (when the joint petition was filed and the agreed order entered); (b) That the only document CSEU had bearing Halton’s signature was a copy of a notice from Halton to the Jefferson County Circuit Clerk stating that she had contracted with CSEU for non-AFDC assistance and directing that all child-support payments collected by the clerk’s office be forwarded to CSEU; (c) That CSEU did not have a contract as referred to in the above-mentioned notice, nor did CSEU have an assignment of child-support payments from Halton; and (d) That when the agreed order of November 15, 1995, was entered, all AFDC benefits had been repaid and there were no unreimbursed grants owed to the State on Halton’s account. Following the January 12, 1998, hearing, the court entered the order of February 10, 1998, that is the subject of this appeal.1 In that order the court held: (1) that it had jurisdiction to modify or set aside the November 15, 1995, order; (2) that CSEU had standing to challenge the validity of the November 15, 1995, order; (3) that Maxwell had practiced fraud upon the court in obtaining the November 15, 1995, order by his failure to give notice to CSEU before obtaining Halton’s signature on the joint petition; and (4) that the November 15, 1995, order was void as against public policy inasmuch as it permanently terminated the rights of the child to receive support. Because we have found no authority that would permit CSEU to challenge the validity of the court’s order of November 15, 1995, we reverse and remand with instructions to reinstate that order. In reaching this decision, we are not unmindful of the broad language in State Office of Child Support Enforcem’t v. Terry, 336 Ark. 310, 985 S.W.2d 711 (1999), relied upon by the dissenting judges, that would appear to support the chancellor’s conclusion that CSEU has standing to challenge the court’s agreed order. However, we do not find Terry to be controlling in the case at bar. In Terry, Joey Terry challenged the ethical propriety of CSEU’s representation of his ex-wife in proceedings to collect child support from him, where CSEU had previously represented him in the same case in his efforts to collect child support from his ex-wife. The chancellor found that these circumstances resulted in a conflict of interest on CSEU’s part, and prohibited CSEU from representing Terry’s ex-wife. On appeal, our supreme court held that no conflict of interest existed because, under Ark. Code Ann. § 9-14-210 (Repl. 1998), CSEU’s attorneys do not represent the assignors whom it is undertaking to assist in receiving child support, but represent only the interests of the State; thus, no attorney-client relationship existed between CSEU and its assignors. Although, in Terry, the supreme court stated in dicta that, “The State is the real party in interest when there has been an assignment of support rights to CSEU, regardless of whether the custodial parent is receiving public assistance on behalf of the child....,” we do not find that language applicable here. In Terry, it was undisputed that Joey Terry had assigned his child-support rights to CSEU and had entered into a contract by which he agreed for CSEU to collect his child-support benefits. In the case at bar, CSEU produced neither an assignment of child-support benefits from Halton nor a contract providing that Halton had agreed for CSEU to collect her child-support benefits. Arkansas Code Annotated section 9-14-210(d)(l) — (3)(Supp. 1995)2 sets forth the following circumstances under which the State is the real party in interest: (1) Whenever aid under §§ 20-76-410 or § 20-77-109 is provided to a dependent child; or (2) Whenever a contract and assignment for child support services has been entered into for the establishment or enforcement of a child support obligation for which an assignment under § 20-76-410 is not in effect; or (3)Whenever duties are imposed on the state pursuant to the Uniform Interstate Family Support Act, § 9-17-101 et seq. Arkansas Code Annotated section 20-77-109 (Supp. 1995), referred to in subsection (1) of the above-quoted statute, provides that child-support rights are deemed to have been assigned to the state when the recipient has accepted medicaid assistance for or on behalf of the child. However, this section is not applicable in this case because there is no indication in the record that Halton ever accepted medicaid assistance for or on behalf of the child here involved. Arkansas Code Annotated section 20-76-410 (Repl. 1991), also referred to in subsection (1), provides that child-support rights are deemed to have been assigned to the State by a recipient of public assistance grants, but only to the extent of rights that have “[a]ccrued at the time such assistance, or any portion thereof, is accepted.” Ark. Code Ann. § 20-76-410(c)(2). The evidence presented by the child-support investigator is that, while Halton had previously been a recipient of AFDC benefits “off and on,” all of those benefits had been repaid, and that, in November 1995, Hal-ton was not recieving any public-assistance benefits and there were no unreimbursed AFDC grants. While, under § 20-76-410(c), there had been an automatic assignment of Halton’s child-support rights, that assignment had been satisfied by the repayment of all the public assistance that Halton had received. Subsection (2) of the above-quoted statute is applicable only when a contract and assignment have been entered into with the State for the establishment and enforcement of a child-support obligation. The state produced neither a contract nor an assignment in this case. Therefore, subsection (2) is not applicable. Likewise, subsection (3) is not applicable to this case because it relates only to cases under the Uniform Interstate Family Support Act, which is not involved in this case. Even if it could be said Halton had previously contracted with and assigned her child-support rights to CSEU, we do not read Terry as authority for the State to continue to prosecute child-support collection on behalf of a former AFDC recipient, such as Halton, on whose behalf all benefits previously received from the state have been repaid, who subsequently entered into a private agreement with the child-support obligor for the compromise of her personal child-support claims, who is currently neither receiving nor claiming any public assistance benefits, and who has expressed no interest in modifying or setting aside her private agreement with, or receiving child support from, Maxwell. Although, in Terry, the supreme court quoted from Haney v. State, 850 P.2d 1087 (Okla. 1993), that “the Social Security Act ‘was not only enacted in order to recoup payments made for AFDC recipients, but also to help families avoid becoming dependent on the State through lack of support from the absent parent,”’ Terry, 336 Ark. at 317, 985 S.W.2d at 715 (emphasis in original), we do not interpret this language to mean that, in cases where all public assistance has been repaid, the CSEU is empowered to prosecute child-support cases on behalf of former public-assistance recipients against their will, in the absence of some showing that the former recipient is still in need of public assistance, or is at risk of becoming dependent on the State in the foreseeable future. If that were the interpretation to be given to the Social Security Act, we do not see what would prevent the CSEU from targeting a child-support obligor and prosecuting a claim against him or her on the basis of its unsupported, subjective expectation that the child in question may, someday, be in need of some form of public assistance. In the case at bar there was no evidence presented as to the financial needs of Halton or the child. There was no evidence that the child is a potential candidate for the receipt of public-assistance benefits. While it may be true that CSEU has standing to enforce the child-support obligations of its assignors, past and present, we do not interpret Terry as granting to CSEU the unfettered authority to exercise its right of standing in the absence of some showing that the State has some interest, current or potential. Regarding the chancellor’s finding that the agreed order of November 15, 1995, is void as against policy we do not believe that our case law supports this position. A careful analysis of Storey v. Ward, 258 Ark. 24, 523 S.W.2d 387 (1995), and Paul M. v. Teresa M., 36 Ark. App. 116, 818 S.W.2d 954 (1991), reveals that agreements for the termination of child support are not void, but that the court retains jurisdiction to modify such agreements when they are shown to be detrimental to the child. In Storey, a divorcing party entered into an agreement under which the husband would pay support to the wife “so long as she shall remain unmarried....” After the wife had twice remarried (during which periods of marriage the husband quit paying support), she petitioned for retroactive support for the periods during which she was married. In discussing the question of the validity of the agreement, Justice George Rose Smith said: In a number of cases, such as Robbins v. Robbins, 321 Ark. 184, 328 S.W.2d 498 (1959), we have said that the duty of child support cannot be bargained away by the parents. That does not mean, however, that the duty of support cannot be affected by the contract. What our cases actually hold is that the duty cannot be bartered away permanently to the detriment of the child. There is certainly no principle of public policy making such a contract absolutely void, because upon remarriage a divorced mother may have no need for child support payments from her former husband, who may himself be destitute. On the other hand, the parents’ inability to permanently bargain away the children’s right to support preserves the court’s power to modify the original decree to meet subsequent conditions. Storey v. Ward, 258 Ark. at 26-27, 523 S.W.2d at 390 (emphasis added). Similarly, in Barnhard v. Barnhard, 252 Ark. 167, 174, 477 S.W.2d 845, 849 (1972), an action by a former wife to modify an order approving an agreement by which she was to pay child support to her former husband, the supreme court stated that, “there is no sound policy reason why she may not enter into a contract with her husband governing such contributions, ... so long as the agreement is not adverse to the welfare of the child....” Barnhard v. Barnhard, 252 Ark. 167, 174, 477 S.W.2d 845, 849 (1972) (emphasis added). In the case at bar there has been no evidence presented that the agreement between Halton and Maxwell to terminate child support is detrimental to the welfare of their child. We should not presume that the child or the mother needs the money, especially where she refuses to return to Arkansas to present any evidence of such need. If evidence is hereafter presented that Halton is in need of support from Maxwell for the benefit of their child, the court, acting pursuant to Storey and Barnhard, has the authority to modify its November 15, 1995, agreed order; but it is not void. While the statistics referred to in the dissenting opinion from the Fordham Law Review article are informative and interesting, we do not see their relevance to this case. No doubt, the child-support caseload, AFDC and non-AFDC, has grown significantly in the past twenty-five years. But this increase in the number of child-support cases should serve as a basis for restricting CSEU’s responsibilities to cases in which the State has an interest, not to enlarge its responsibility into cases where there is no showing of the need for CSEU’s assistance. The dissenting opinion’s suggestion that Halton has failed to “wrest control” of this case from CSEU by substitution or intervention puts form over substance. Contrary to the dissenting opinion, Halton’s involvement in this case entails far more than “simply signing a joint motion which merely added her name at the top.” After all, Halton is the mother of the child whose paternity was established in this case, she is the person to whom Maxwell was ordered to make child-support payments, by a check payable to her, and she was identified as a plaintiff in the initial summons and in some of the pleadings and papers filed in the paternity case. Also, with the state having now been fully reimbursed for all benefits previously paid to Halton, she is the only person who would be entitled to receive any child support payments from Maxwell for the benefit of their child. While CSEU contended that it was the real party in interest, it did not contend that Halton was not a proper party. Furthermore, the chancellor’s action in ordering Halton to appear at the May 7, 1997, hearing or face sanctions for contempt is a clear indication that the chancellor treated her as a party to the action. Except in cases involving this court’s jurisdiction, we should not dispose of cases on the basis of issues neither entertained by the trial court nor briefed by the parties. Leinen v. Arkansas Dep’t of Human Servs., 47 Ark. App. 156, 886 S.W.2d 895 (1994). It is apparently the position of the dissenting opinion that Halton and MaxweE could have properly obtained the court’s approval of their settlement without notice to CSEU by simply filing their joint petition as a new case instead of proceeding in the case that was opened originally by CSEU for the prosecution of the original paternity and child-support action. Regardless of any technical deficiencies in the procedure followed by Halton and Maxwell in obtaining the court’s approval of their agreement, the fact remains that after Halton stopped receiving AFDC benefits and all AFDC benefits previously paid to her had been repaid, the State no longer had an interest for CSEU to protect in this case. The chancellor’s order of January 12, 1998, is reversed and this matter is remanded for the entry of an order consistent with this opinion. Hart, Koonce, Neal, and Crabtree, JJ., agree. Robbins, C.J., and Jennings, Meads, and Roaf, JJ., dissent. Footnotes [1] Some of the holdings set forth the chancellor’s order of February 10, 1998, were originally contained in an earlier order entered January 17, 1997, and restated in the February 10, 1998, order. [2] All references to statutes in this opinion shall refer to the statutes as they existed in 1995 when the paternity action was prosecuted and the agreed order was entered.