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ARKANSAS COURT OF APPEALS DIVISION I No. CV-16-235

BRITTANY WALDEN OPINION DELIVERED: November 30, 2016 APPELLANT APPEAL FROM THE MONTGOMERY V. COUNTY CIRCUIT COURT [NO. 49-DR-15-4] JACOB EDWARD JACKSON APPELLEE HONORABLE JERRY RYAN, JUDGE

REVERSED AND DISMISSED

WAYMOND M. BROWN, Judge

This is a one-brief appeal from the circuit court’s December 15, 2015 order in which

it modified its July 8, 2015 order changing the surname of H.R.W., born 11/11/14, to that

of appellee’s and denying an award of retroactive child support to appellant. On appeal,

appellant argues that the circuit court (1) erred when it determined that it was in H.RW.’s

best interest to change his surname and (2) erroneously shifted the burden of proof to

appellant in conducting its analysis of the Huffman factors.1 We reverse and dismiss.

Appellee filed a petition to establish paternity and other relief on January 12, 2015,

requesting a paternity test to determine if he was H.R.W.’s natural father, and in the case

of a positive test result, seeking a decree from the circuit court declaring the same and

changing H.R.W.’s surname on his birth certificate to appellee’s surname. Appellant

responded on February 5, 2015, denying all allegations and requests by appellee and

1 Huffman v. Fisher,

,

(1999). Cite as

counterclaimed for items that are not pertinent to this appeal. Appellee answered appellant’s

counterclaim on February 19, 2015.

The circuit court entered its order for a paternity test on March 10, 2015. Appellee

filed a notice of paternity test results positively identifying appellee as the father of H.R.W.

on May 26, 2015. The circuit court entered a paternity order on July 8, 2015, finding

appellee to be the father of H.R.W. based on the paternity results, denying retroactive child

support, and changing H.R.W.’s surname to appellee’s surname. On July 30, 2015, appellant

filed a notice of appeal from the circuit court’s July 8, 2015 paternity order in which she

stated the following:

This notice is filed as a precaution in the event that the July 8, 2015 Paternity Order is deemed a final order subject to appeal, although Walden’s position is that it is not final and not subject to appeal because issues remain to be resolved concerning the Court’s decision (a) to change the minor child’s surname and (b) to deny retroactive child support, as set forth in Walden’s Motion to Alter or Amend Paternity Order and to Modify or Vacate Findings of Fact, and Brief in Support thereof, which is currently pending. Walden does not abandon those pending issues or the pending motion, but upon entry of a final order that is subject to appeal, then Walden abandons any pending but unresolved claims pursuant to Rule 3(e)(vi) of the Arkansas Rules of Appellate Procedure—Civil, to the extent she can abandon a claim as a party defendant.

For an order to be final, it must dismiss the parties from the court, discharge them

from the action, or conclude their rights to the subject matter in controversy. 2 The issues

that appellant noted as being unresolved in her notice of appeal were expressly addressed by

the circuit court when it changed H.R.W.’s surname and denied retroactive child support.

The same were not in issue until appellant filed her motion to alter or amend the paternity

2 Allen v. Allen,

,

(2007) (citing Roberts v. Roberts,

,

(2000)).

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order and to modify or vacate findings of fact and brief in support on July 31, 2015.

However, she filed her motion one day after filing her notice of appeal. Accordingly,

contrary to appellant’s assertion, the July 8, 2015 paternity order was a final order, and

appellant’s appeal was timely.3

Decisions rendered by courts of equity are reviewed de novo on appeal and are not

reversed unless we find that the trial judge’s decision is clearly erroneous.4

As previously stated, appellant filed her motion to alter or amend the paternity order

and to modify or vacate findings of fact and brief in support on July 31, 2015. Appellee

answered on August 13, 2015. Appellee then filed a motion to dismiss appellant’s motion

and brief in support on August 31, 2015. Appellant filed an amended response to appellee’s

motion to dismiss and brief in support on September 17, 2015. On September 29, 2015,

the circuit court entered an order noticing the parties that a hearing on the matter had been

set for October 20, 2015. Following the hearing on October 20, 2015, the circuit court

entered a letter opinion outlining its application of the Huffman factors to its finding that

changing H.R.W.’s surname to that of appellee was in H.R.W.’s best interest and vacating

its previous denial of retroactive child support, thereby awarding the same. It entered an

order generally stating the same on December 15, 2015.

3 Because the July 8, 2015 paternity order was final, and for reasons addressed in this opinion, we do not address appellant’s amended notice of appeal of the circuit court’s December 15, 2015 order. 4 Abbott v. Abbott,

,

(2002) (citing Narup v. Narup,

,

(2001)).

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Arkansas Rule of Civil Procedure 60(a) states that a circuit court may modify or

vacate a judgment, order or decree on motion of the court or any party, with prior notice

to all parties, within ninety days of its having been filed with the clerk to correct errors or

mistakes or to prevent the miscarriage of justice.5 Arkansas Rule of Civil Procedure 60(b)

and (c) give a list of exceptions to the ninety-day-limit rule that do not apply in this matter.6

After that ninety-day period, the court loses jurisdiction to modify or vacate the decree.7

Where the circuit court’s December 15, 2015 order was entered 170 days after entry of its

July 8, 2015 paternity order, far exceeding the ninety-day limitation, it lacked jurisdiction

to modify the same. Accordingly, we dismiss.

Reversed and dismissed.

ABRAMSON, J., agrees.

VAUGHT, J., concurs.

LARRY D. VAUGHT, Judge, concurring. I agree that the appeal of Brittany Walden

should be reversed and dismissed, but I reach that conclusion by a different route from the

majority. As set out in the majority opinion, Walden filed a motion on July 31, 2015, asking

the court to alter or amend the paternity order or to modify or vacate the findings of fact as

set forth in its July 8, 2015 order. In her motion, she argued that (1) the court failed to apply

the required Huffman factors and failed to conclude that a name change would be in the child’s

5 (2015). 6 See Ark. R. Civ. P. 60(b) & (c). 7 Lowder v. Gregory,

,

(citing Stuart v. Stuart,

,

).

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best interest, and (2) the court erred in declining to award retroactive child support. Walden

alleged her motion was pursuant to Rule 60 to prevent a miscarriage of justice.

The trial court accepted the motion as a Rule 60 motion and, after “reserving

jurisdiction” to rule outside of the ninety-day limit, granted the motion, held two subsequent

hearings, and changed its conclusions in an order entered December 15, 2015. I would hold

that the motion filed by Walden was actually a Rule 59 motion for a new trial, which was filed

more than ten days after the order and was, therefore, untimely.

Rule 60 provides that, in order “to correct errors or mistakes or to prevent the

miscarriage of justice, the court may modify or vacate a judgment, order or decree on motion

of the court or any party, with prior notice to all parties, within ninety days of its having been

filed with the clerk.” Ark. R. Civ. P. 60. It provides exceptions for specific situations in which

the court may set aside judgments after the expiration of the ninety-day period, none of which

apply here.

Rule 59 states that a party may file a written motion for a new trial not more than ten

days after the entry of judgment and that a new trial may be granted for any of a number of

grounds materially affecting the substantial rights of any party, including that “the verdict or

decision is clearly contrary to the preponderance of the evidence or is contrary to the law.”

Ark. R. Civ. P. 59(a)(6). The rule goes on to state that “[o]n a motion for a new trial in an

action tried without a jury, the court may open the judgment if one has been entered, take

additional testimony, amend findings of fact and conclusions of law or make new findings and

conclusions, and direct the entry of a new judgment.” Ark. R. Civ. P. 59(a).

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In this case, Walden presented her motion as arising under Rule 60, and the court

treated it as such. This is critical because Walden filed her motion on July 31, more than ten

days after the entry of the court’s July 8, 2015 order. Therefore, we must first determine

whether Walden’s “Motion to Alter or Amend” was pursuant to Rule 59 or Rule 60 in order

to determine whether it was timely filed.

In Slaton v. Slaton,

,

(1997), our supreme court specifically

addressed the issue of whether a circuit court retained jurisdiction to modify a divorce decree

based on one party’s “motion to reconsider,” analyzing whether that motion was made

pursuant to Rule 59 or Rule 60. It stated that appellate courts are to look at the substance of

such motions “to ascertain what they seek” rather than being “blinded by titles.” Slaton,

,

. Specifically, the supreme court noted that in a previous case,

Jackson v. Arkansas Power & Light Co.,

,

(1992), it had held that,

because the motion to vacate rested on the argument that the judgment “is contrary to the

facts, public policy and is clearly contrary to the preponderance of the evidence,” it was “really

a motion for a new trial under Ark. R. Civ. P. 59(a)(6).” Id. at 293,

. Likewise,

in Slaton, the court determined that the motion for reconsideration stated that the decision was

contrary to the preponderance of the evidence, which is an enumerated ground for a new trial

specifically laid out in Rule 59 and that, therefore, the motion was filed pursuant to Rule 59,

not Rule 60.

,

.

In Stickels v. Heckel,

,

, we relied on Slaton in holding

that a party’s purported Rule 60 motion was, in fact, a motion for new trial under Rule 59

because it argued that the decision had been “incorrect and wholly against the facts.” Stickels,

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,

. We stated that “Rule 60 may not be used to

breathe life into an otherwise defunct Rule 59 motion,” and held that because the motion for

reconsideration had been filed more than ten days after the entry of judgment, the circuit court

had lacked jurisdiction to enter the subsequent order. Id. at 6,

.

Here, Walden’s motion specifically argued that the court’s paternity order was contrary

to the law and the facts. She stated that the court had failed to consider the Huffman factors

and had failed to conduct a best-interest analysis, as required by Huffman. She also argued that

the court’s decision to deny her request for retroactive child support was contrary to Arkansas

law and was based on a misapprehension of the evidence (since Jackson had agreed that

Walden had repeatedly offered to let him see the child and he had chosen not to). She cannot

convert her motion into one under Rule 60 simply by attempting to fit her specific challenges

under the more general umbrella of a “miscarriage of justice.” We explicitly rejected this

approach in Stickels. Moreover, the court ultimately granted Walden the exact remedy provided

in Rule 59(a), which allows the circuit court to “open the judgment if one has been entered,

take additional testimony, amend findings of fact and conclusions of law or make new findings

and conclusions, and direct the entry of a new judgment.” Here, the court granted Walden a

new hearing, at which it placed the burden on Jackson to present new evidence regarding the

Huffman factors. Therefore, I would reverse and dismiss this appeal because the trial court had

no jurisdiction to grant an untimely Rule 59 motion.

Robin Smith Law Firm, P.A., by: Robin C. Smith; and Walas Law Firm, PLLC, by: Breean

Walas, for appellant.

No response.

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