FROM THE PULASKI COUNTY CIRCUIT COURT NO. 60DR-07-5833
HONORABLE HOBSON VANN SMITH, JUDGE
JOSEPHINE LINKER HART, ASSOCIATE JUSTICE
this matter on a petition for review filed by Appellee,
Wyndham Dempster. We dismiss this appeal and reinstate the
decision of the circuit court.
Harley ("Harley") and Wyndham Dempster
("Dempster") have two children together. On
December 13, 2007, the Office of Child Support Enforcement
initiated an action in Pulaski County Circuit Court to
collect child support from Mr. Dempster. The case style
listed OCSE as "Plaintiff, " Dempster as
"Defendant, " and Harley as "Assignor."
The circuit court entered a support order on January 31,
14, 2011, a letter from OCSE was filed in the circuit court
reflecting a header of: "Assignment of Child Support
Rights." The body of the letter contained two separate
messages, each with a box that could be "checked."
The message with the "checked" box read as follows:
The custodial parent in the above styled cause of action is a
recipient of cash or medical assistance from the State of
Arkansas. All child support collected by your office in this
cause of action must be paid over to the Arkansas Child
message with the "unchecked" box read as follows:
The custodial parent in the above styled cause of action has
executed a contract with the Office of Child Support
Enforcement for child support enforcement services. Pursuant
to Arkansas Code, all child support payments collected by
your office in this cause of action must be forwarded to the
Arkansas Child Support Clearinghouse.
on March 19, 2015, OCSE filed a "Motion to Modify
Support and for Judgment for Past Due Child Support."
The Motion alleged that Dempster's income had increased
as to warrant a material change of circumstances, and that
Dempster had accrued an arrearage of $26, 036 in past due
child support. The circuit court scheduled a hearing on
OCSE's Motion for July 8, 2015.
the hearing, the circuit court ruled to give Dempster a $9,
465 credit toward his arrearages for a period of time during
which he and Harley were living together, as well as a $6,
000 credit for payments made by Dempster's parents toward
the children's schooling, leaving a total arrearage of
$7, 079.00. Harley then filed a Notice of Appeal on August
December 7, 2016, the Arkansas Court of Appeals issued a 5-4
opinion dismissing Harley's appeal for lack of standing.
Harley filed a Petition for Rehearing, which the Court of
Appeals granted. On March 8, 2017, the Court of Appeals
issued a substituted opinion by a panel of nine judges. Four
of those judges felt that Harley had standing to bring the
appeal and that the circuit court should be reversed on the
merits. Two other judges did not address whether Harley had
standing to bring the appeal, and felt that the Cite as 2018
Ark. 43 circuit court should be affirmed on the merits. The
three other judges did not address the merits, but felt that
Harley lacked standing to bring the appeal based upon the
contents of the record. For whatever reason, the Court of
Appeals' March 8, 2017 substituted opinion reflected a
disposition of "reversed and remanded." Dempster
then filed a petition for review, which this court granted.
However, Harley then failed to timely file a brief for this
the Supreme Court grants a petition for review following a
decision of the Court of Appeals, the Supreme Court treats
the appeal as if it were filed in the Supreme Court
originally. Ark. Sup. Ct. R. 2-4; Robinson v. State,
348 Ark. 280, 72 S.W.3d 827 (2002). "When the Supreme
Court grants a petition for review, the Clerk shall promptly
notify all counsel and parties appearing pro se. Within two
weeks of the notification, eighteen additional copies of the
briefs previously submitted to the Court of Appeals shall be
filed with the Clerk." Ark. Sup. Ct. R. 2-4(e).
Harley failed to timely file a brief for this court's
consideration. Harley's obligation to do so is made clear
by Rule 2-4(e). Additionally, this court's June 1, 2017
letter order directed the parties to refer to Rule 2-4
regarding briefing schedules in cases where petitions for
review have been granted, and specified that the briefs for
this case would be due on June 15, 2017. As such, even if
Harley's appeal would not be barred for lack of standing
(an issue which this court does not address), there still
would be no argument for reversal on the merits ...