Flemings v. Littles

Tom GLAZE, Justice. This is a paternity case which was first decided on February 4, 1982. On that date, the court entered a final judgment declaring appellee Darryl A. Littles to be the father of appellant Felicia Flemings’s (Foster’s) infant child. The court ordered Littles to pay $50.00 per month as child support. Almost twelve and one-half years later, August 10, 1994, Litdes filed a pro se motion in chancery court, requesting the court to order a paternity test, but Flemings objected, complaining the chancery court lacked jurisdiction to modify the 1982 judgment. The court granted Litdes’s motion, and upon finding the test excluded Litdes as the father, set aside the twelve-year-old judgment. The sole issue on appeal is whether the chancery court had authority to grant Littles’s motion and later set aside the earlier 1982 paternity judgment. We hold it did not; therefore, we reverse and remand. Littles cites the case of Little v. Streater, 452 U.S. 1 (1980), where the Supreme Court held a Connecticut statute unconstitutional because it forced an indigent party seeking a paternity determination to pay the cost of testing. Littles contends that, in applying the Streater holding, he, too, was an indigent party when Flemings’s paternity suit was filed and decided in 1982, and because of his inability to pay for a test, he was denied due process and “meaning-fill opportunity to be heard” on the paternity issue. First, we point out significant procedural differences between the Streater case and the case at hand. There, the putative father asserted that he was indigent, and asked that the state be ordered to pay for the paternity tests. The trial court denied the defendant’s request, no tests were performed and the court found the defendant to be the father. The putative father in Streater appealed the trial court’s decision, raising the due process issue he ultimately prevailed on before the Supreme Court. Here, Littles personally appeared at the 1981 county court proceedings, but there is nothing in the record or judgments in that action that shows he ever claimed indigency or asked the state to pay for the paternity test — even though Arkansas’s law (unlike Connecticut’s statute in Streater) permitted such payment by the county. See Ark. Stat. Ann. § 34-705.1 (Repl. 1962).1 Instead, the county court judgment reflects Littles appeared in person, was ordered to deposit the cost of the paternity test and was informed that, if he failed to pay for the test, or if the test failed to exclude him as being the father, paternity would be established and support would be set at $50.00 per month. Accordingly, in its 1982 judgment, the county court found that Littles failed to pay for the paternity test, that he was found to be the infant’s father and that he must pay $50.00 per month in child support. Littles filed no timely appeal from that paternity judgment, nor did he file post-trial motions for a new trial. See Thomas v. Easley, 277 Ark. 222, 640 S.W.2d 797 ( 1982); Epperson v. Sharp, 222 Ark. 456, 261 S.W.2d 267 (1953) (court held an appeal from county court in paternity cases must be filed within thirty days). While Litdes seeks now, twelve years later, to assert he was indigent and unable to pay for a paternity test in the 1981 and 1982 paternity proceedings, this court has held that it will not go behind a judgment which is valid on its face, to raise such factual issues anew.2 Lawrence, Gdn. v. Meux, 282 Ark. 512, 669 S.W.2d 464 (1984). Consistent with the foregoing analysis, we agree with Flemings’s argument that, under Ark. Code Ann. § 9-10-115 (Supp. 1995), the chancellor in these circumstances had no authority to permit Litdes to reopen or relitigate the paternity holding and underlying factual issues. Section 9-10-115 provides, in pertinent part, as follows: (b) The court shall not set aside, alter, or modify any final decree, order, or judgment of paternity where paternity blood testing, genetic testing, or other scientific evidence was used to determine the adjudicated father as the biological father. (c) (1) Upon request for modification of a judicial finding of paternity or a support order issued pursuant to § 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’s 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 § 9-10-108. (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 acknowledgment. (Emphasis added.) As discussed previously, the 1982 judgment reflects the county court’s original finding of paternity was entered upon Littles’s failure to comply with the scientific paternity testing ordered. Thus, under the plain language of § 9-10-115(c)(1), the chancery court had no authority to grant Littles’s motion to modify the original judicial finding of paternity. For the reasons hereinabove, we reverse and remand. Brown and Roaf, JJ., dissent; Dudley, J., not participating. Footnotes [1] In fact, in the 1994 chancery court proceeding to request a paternity test and to set aside the 1982 judgment, Littles testified that the judge in the original paternity proceeding suggested that Litdes should take the test, and Littles said, “I thought I could afford one when I was at the hearing.” [2] The dissenting opinion makes references to Littles as being indigent and to the entering of ex parte orders. Suffice it to say, the dissenting opinion reaches conclusions not established by the 1982 judgment, and the dissenting opinion merely raises factual issues which were put to rest by a valid 1982 judgment and proceeding in which Litdes appeared and participated.