Court of Appeals of Arkansas, Divisions II, III, IV
CHELSEA S. HARLEY APPELLANT
WYNDHAM S. DEMPSTER, SR. APPELLEE
FROM THE PULASKI COUNTY CIRCUIT COURT, FOURTEENTH DIVISION
[NO. 60DR-07-5833] HONORABLE VANN SMITH, JUDGE
Ballard & Ballard, P.A., by: Andrew D. Ballard, for
& Associates, P.A., by: Carrol Ann Hicks, for appellee.
F. VIRDEN, Judge
child-support case comes before us again as a result of our
having granted a petition for rehearing. The case began with
a complaint for support filed on December 13, 2007, against
appellee Wyndham Dempster as to his two minor children with
appellant Chelsea Harley. The plaintiff in the action was
listed as the Office of Child Support Enforcement (OCSE), and
Harley was listed on the pleadings as the assignor. Although
Dempster was served with the petition to establish support,
he did not answer or appear at the hearing. The circuit court
issued an order on January 31, 2008, which stated that
"[t]he OCSE is involved in establishment of a support
order herein pursuant to its responsibilities under Ark. Code
Ann. § 9-14-210(d) and § 9-10-104 under which the
Assignor is the recipient of services under Title IV-D of the
Social Security Act."
order found that Dempster owed a continuing duty to support
his children and ordered him to pay child support. Support
payments were to be paid through the Child Support
Clearinghouse. Harley was listed in the order as a
did not pay his child support as ordered, and in March 2015,
the OCSE filed a petition to modify the amount due and sought
a judgment for the arrears, which were over $26, 000.
Dempster was served with the petition, but again, he failed
to file an answer. He did, however, appear at the hearing on
the matter in the Pulaski County Circuit Court on July 8,
2015. After a hearing, the circuit court issued an order of
modification on July 16, 2015, which will be discussed below
in greater detail. The point of contention before us is the
circuit court's finding that Dempster would receive
credit toward the arrears in the amount of $6, 000-a portion
of money paid by his parents for private-school tuition for
the children. Harley filed an appeal from that order.
opinion was issued by this court on December 7, 2016, by a
nine-judge panel on a vote of 5-4 dismissing the appeal based
on a finding that Harley did not have standing to appeal the
lower court's decision to our court. Three dissents were
issued along with the majority opinion. Upon petition for
rehearing, that opinion is vacated, and this opinion is
substituted as the majority opinion.
Standard of Review
review of the trial court's decision is de novo on the
record, and we will not reverse findings of fact by the
circuit court unless they are clearly erroneous. Ward v.
Doss, 361 Ark. 153, 205 S.W.3d 767 (2005). We have
further stated that a circuit court's finding is clearly
erroneous when, despite supporting evidence in the record,
the appellate court viewing all of the evidence is left with
a definite and firm conviction that a mistake has been
committed. Daniel v. Spivey, 2012 Ark. 39, 386
S.W.3d 424. In reviewing a circuit court's findings, we
give due deference to that court's superior position to
determine the credibility of the witnesses and the weight to
be accorded to their testimony. Ward,
supra. A circuit court's conclusion of law,
however, is given no deference on appeal. Id. As a
rule, when the amount of child support is at issue, we will
not reverse the circuit court absent an abuse of discretion.
Id. This court has traditionally reviewed matters
that sound in equity de novo on the record with respect to
factual questions and legal questions. Daniel,
Harley nor Dempster raised the issue of standing at the trial
court level or in this appeal. It is the opinion of some
members of the court that standing to bring the appeal is not
jurisdictional; thus, it may be waived. In that event, we
would proceed to address the merits of the appeal. The
supreme court has held that to be the case. See Pulaski
Cty. v. Carriage Creek Prop. Owners Improvement Dist. No.
639, 319 Ark. 12, 888 S.W.2d 652 (1994). The supreme
court, however, has raised the issue of standing on its own.
See Swindle v. Benton Cty. Cir. Ct., 363 Ark. 118,
211 S.W.3d 522 (2005). The distinction may lie in the
difference between standing at the trial court level and
standing at the appellate court level. In either case, as a
result of our previous decision and our grant of rehearing,
it must be discussed.
if Harley is considered a party, she has standing. This
opinion addresses two aspects of the standing question:
First, was Harley a party? Second, did she have a pecuniary
interest in the litigation to give her standing to bring this
Ark. Code Ann. § 9-14-109 (Repl. 2015) does grant party
status to the OCSE in an enforcement case, and it is referred
to as the "real party in interest, " it does not
follow that the custodial parent is not also a party to the
litigation. In fact, there can be other issues in a domestic
case, such as visitation, property, and custody. The OCSE
makes it clear that it does not represent the custodial
parent in these cases, so how would the dissent characterize
the custodial parent? Harley is listed throughout the case as
the "OSCE Assignor" in the case style, along with
the OCSE as the plaintiff and Dempster as the defendant. Many
cases have more "parties" than just one plaintiff
and one defendant. There can be a claimant, counterclaimant,
intervenor, garnishee, third-party defendant, etc. There is
no argument that they are not parties. Why should it be so
for an assignor with a direct interest in the outcome?
review of the record shows that Harley's status as a
party to the litigation is further supported by the following
• 2008 Default Judgment of Support refers to her and the
OCSE as lienholders.
• 2015 Motion to Modify Support and for Judgment: In
this motion, it was alleged in paragraph 2 "[t]hat since
the entry of the last Order, a material change in the
circumstances of the parties ha[d] occurred"
(Emphasis added.) Paragraph 3 states "[t]hat WYNDHAM S.
DEMSPTER SR has accrued a total past due child support in
this matter in the amount of $26036.00 as of FEBRUARY 28,
2015 and that OCSE and/or its assignor is entitled to a
judgment for said amount[.]" There was nothing that
indicated a change in circumstances regarding the OCSE had
occurred, leaving only the appellant and appellee to be
• Certainly, the OCSE considered Harley to be a party.
The attorney for the OCSE sent a letter to the court along
with a draft of the order for modification and referenced the
case as: "Re: State of Arkansas, OCSE/Chelsea Harley vs.
Wyndham Dempster, Sr."
• The Circuit Court also considered Harley to be a
party. It was only after her consultation and consent that
the arrears were reduced for the time period that "the
parties" lived together.
Harley had a pecuniary interest in the outcome, she also
would have standing to bring this appeal. See
Swindle, supra; In re $3, 166, 199,
337 Ark. 74, 987 S.W.2d 663 (1999).
the custodial parent of children owed child support have a
pecuniary interest in the amount of the child support? At
first blush, that might seem to be a simple question. While
we believe the answer is yes, the path is not as short and
direct as one might expect. The dissenting judges assert that
because of Harley's assignment of her rights to pursue
child-support arrears, she has no pecuniary interest, and
hence no standing. As a recipient of Title IV-D benefits, she
is required to assign those rights to the State of Arkansas.
Taking that finding to its conclusion would mean that Harley
would not receive any of the child-support payments or the
arrears. That simply is not the case. Granted, there is
nothing in the record specifically finding that she is
entitled to the child support for her children, but there is
no doubt that she is so entitled. It was never a question at
the trial court level, and it should not be one here.
In re $3, 166, 199, our supreme court applied the
pecuniary-interest exception in a civil-forfeiture action in
which both the Crittenden County Prosecuting Attorney and the
Arkansas Highway Police each claimed ownership of money
seized in a drug-related traffic stop. Id. The
Arkansas Highway Police, though not a party below, appealed
the circuit court's award of the funds to the prosecuting
attorney. Id. The supreme court found that the
Arkansas Highway Police had standing to bring the appeal due
to its pecuniary interest in the funds.
pecuniary interest, as established by the record in the
following instances, entitles her to standing: in the
original default judgment, the circuit court listed both
Harley and the OCSE as lienholders; in its motion to modify
support and for judgment for past-due child support, the OCSE
requested that Dempster be required to provide proof of
previous years' income to Harley; at a hearing, Harley
was consulted and agreed to give credit to Dempster for the
period of twenty-one months that they had lived together; and
in an affidavit dated January 29, 2008, OCSE Child Support
Investigator Jonathan McFadden stated that, due to
Dempster's failure to pay the $968 of support required,
"[t]he State of Arkansas is entitled to $0.00 of said
amount as reimbursement of AFDC or TEA benefits."
addition to the real-world understanding that the custodial
parent is the recipient of the child support, there is also
law to support and even mandate such a conclusion. The
circuit court found that Harley received services under Title
IV-D of the Social Security Act or had signed a contract for
services with the OCSE. In exchange for receiving certain
federal money, Arkansas promises to provide particular
services to people like Harley. 42 U.S.C. § 602 (2012).
Under Title IV, the attorneys who enforce private
child-support orders are employed by the State. The State, in
turn, receives federal funding to pay for the enforcement.
See 42 U.S.C. § 651; see also 42
U.S.C. § 652(a)(7)-(8); Ark. Code Ann. § 9-14-210.
Any child-support arrearages that the OCSE collects must be
paid to Harley directly within two business days under the
federal-funding requirements. See 42 U.S.C.
§§ 654, 657. Being a state governmental agency, the
OCSE has enacted regulations that recognize that "state
and federal law requires OCSE to make payment directly to the
custodial party." 006-25-1 Ark. Code R. 8.4.1 (Weil
2012); see also Ark. Code Ann. § 9-14-213.