ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

CHIEF JUDGE JOHN F. STROUD, JR.

DIVISION IV

CA00-1118

September 12, 2001

THEO DICKERSON, JR., and

MARY DICKERSON AN APPEAL FROM JEFFERSON COUNTY CHANCERY COURT

APPELLANTS NOS. E-91-1668, 2499

V.

HONORABLE THOMAS E. BROWN,

STATE OF ARKANSAS CHILD CHANCELLOR

SUPPORT ENFORCEMENT UNIT

APPELLEE AFFIRMED

This case is the second appeal arising from efforts by appellee, Child Support Enforcement Unit, to collect child-support payments from appellants, Theo Dickerson, Jr., and Mary Dickerson, as a result of their agreement to guarantee the child-support debts of their son, Theo Dickerson III (hereafter "Theo"). Theo is the father of two children born out of wedlock to two different women. Theo's child-support obligations for these children were established in two paternity actions in the Fourth Division of the Jefferson County Chancery Court. Appellants have appealed from that court's refusal to set aside two March 1997 orders, which joined them as parties in the paternity actions. Appellants argued that the orders were obtained by appellee's fraud. On April 19, 2000, this court reversed and remanded a default foreclosure decree that had been entered against appellants by the First

Division of the Jefferson County Chancery Court in an action on the child-support debt that appellants had guaranteed. According to the briefs filed in this case, the foreclosure case is in abeyance pending the outcome of this appeal.

In June 1996, appellee had Theo jailed for nonpayment of child support. In order to secure Theo's release from jail, appellants signed two documents prepared by appellee that were in the form of court orders, which provided that appellants would guarantee Theo's child-support obligations in the paternity cases. The documents were titled "Order to Release Defendant From Custody of Sheriff," and they were filed in the paternity cases. The documents recited that Theo had been incarcerated and that upon the payment of approximately one-half of his child-support arrearages he should be released. The orders set forth Theo's future child-support obligations and stated that appellants "agree[d] to act as guarantor[s] of the arrearages owed by Theo Dickerson ... and further agree[d] to act as guarantor[s] of future child support ... until the arrearages owed herein are paid in full." Located below the signatures of the chancellor, and above appellants' signatures, the following statement appeared in both documents: "I understand that I am agreeing to guarantee the payment of the arrearages owed and regular support until the arrearages are paid in full should the Defendant herein fail to make such payments."

In December 1996, appellee filed motions for contempt against Theo in both paternity cases, naming appellants as "guarantors" in the styles of the cases. A hearing was set for January 22, 1997. On that date, appellants appeared with attorney John Kearney, who

represented them for that hearing only. He was allowed to withdraw as their counsel on February 4, 1997. On January 24, 1997, appellee moved to have appellants joined as defendants in the paternity actions because they had guaranteed Theo's child-support debts. A hearing was held on the joinder issue on February 5, 1997, at which appellants appeared pro se. At the conclusion of this hearing, the Fourth Division chancellor found appellants liable for the arrearages that had accrued before they signed the June 10, 1996, orders, but stated that they were not liable for Theo's regular support obligations. He also noted that he had previously held that appellants could not be held in contempt of court for failing to make the payments. The chancellor directed appellee's counsel, Sandra Harris, to prepare orders reflecting his findings. The March 1997 orders that she prepared, which were subsequently signed by the chancellor, differed somewhat from his bench findings. The two March 1997 orders joined appellants as party defendants in both of the paternity cases, stating:

1. That the guarantors herein signed an agreement on June 10, 1996, with the Plaintiff to make child support payments as a condition precedent to releasing the defendant, Theo Dickerson, III, from the custody of the Jefferson County Sheriff.

2. That said agreement, which was a contract, and was not in the nature of a court order by which the guarantors were obligated to abide.

3. That since there was no court order, the court does not find the guarantors to be in contempt pursuant to their June 10, 1996 agreement.

4. That pursuant to the Plaintiff's Motion, the court orders that the guarantors are hereby joined as party defendants pursuant to Rule 19 of the Arkansas Rules of Civil Procedure as complete relief cannot be accorded to the Plaintiff and Custodial Parent without their being joined.

5. That upon filing of a Motion by the Plaintiff, the court may, by presenting sufficient proof, order the party defendants to pay certain sums of money as child support payments pursuant to the June 10, 1996, agreement.

In 1999, appellants filed motions to set aside these March 1997 orders. They asserted that appellee's attorney, Eugene Hunt, had been untruthful and had misrepresented to them that they had to sign the letters of guaranty before Theo could be released from jail in June 1996. They argued that under Arkansas Rule of Civil Procedure 60, Mr. Hunt's conduct constituted misconduct and fraud practiced by the prevailing party in obtaining the judgment. They also asserted that the court had exceeded its authority in joining them as defendants in the paternity cases.

Meanwhile, in its foreclosure action that was filed in the First Division of the Jefferson County Chancery Court, appellee asserted that in the June 10, 1996, orders appellants had agreed to guarantee or pay the arrearages and Theo's regular child-support obligations until the arrearages were paid in both paternity actions. The First Division chancellor agreed, and on September 18, 1998, entered a default order of foreclosure. This court reversed and remanded that decision because appellants were not given three days' notice of the default judgment. This court also noted that appellants' motions to set aside the March 1997 orders in Fourth Division were apparently still pending.

Following a hearing on the motions to set aside the March 1997 orders, the Fourth Division chancellor noted that, insofar as that court was concerned, no judgment had yet been entered against appellants, but he also found that appellants had failed to prove that appellee obtained the March 1997 orders by fraud. He noted that the facts were not greatly in dispute:

The Dickersons ... contacted the Child Support Enforcement Unit and were told that in order to secure the release of their son they would have to pay ½ of the amount of the arrearage owed as of June, 1996. Mrs. Dickerson wentto the Child Support Office with a check which was not acceptable then later cashed the check and returned with cash which was tendered to the child support unit. Then they were given a document for their signature. Mrs. Dickerson contacted her husband who came down and signed the document without reading it. Immediately thereafter their son was in fact released from the Jefferson County Jail. Both parties testified that neither one of them ever spoke with or saw Mr. Eugene Hunt, the attorney for the child support enforcement unit. Mrs. Dickerson testified, as did Bonnit Morgan, a child support enforcement Unit employee, that it was she that told Mrs. Dickerson that they would require payment of ½ of the arrearage prior to releasing their son from Jail. There was no testimony showing that Mrs. Morgan met with, talked with or consulted with Mr. Hunt prior to making these statements to Mrs. Dickerson. Mrs. Dickerson testified, as did Mr. Dickerson, that the papers were on a desk in the office of Ms. Chris Hopkins and that she signed the document without reading or understanding what she was signing. She admitted that she never asked Mrs. Hopkins or Mrs. Morgan to explain the documents to her or to her husband. Mr. Dickerson testified that he was called to come up to the office by his wife to sign some documents, that he was not feeling well and he did not wish to talk with anyone that day and he simply signed the documents without reading them and left. Neither of the Dickersons asked to speak with Mr. Hunt or with any other representative from the Child Support Enforcement Unit. The testimony was clear that they were not coerced or forced to either tender the monetary payment to secure their son's release or sign the documents placed before them. Both Mr. and Mrs. Dickerson testified that they have run a very successful cleaning business in this town for many years and are apparently familiar with documents, contracts and things of this nature.

The chancellor found that, even if appellants had been improperly joined as parties, that would not constitute fraud. He also found no merit in their arguments that they had been denied due process and that the court lacked subject-matter jurisdiction.

Appellants have appealed from the chancellor's refusal to set aside the March 1997 orders joining them as parties in the paternity actions. They contend that the chancery court, juvenile division, lacked subject-matter jurisdiction over any claims appellee might have against them, that they have been denied due process, and that appellee committed fraudsufficient to set aside the orders pursuant to Rule 60(c)(4) of the Arkansas Rules of Civil Procedure.

Subject-Matter Jurisdiction

A court that acts without subject-matter jurisdiction or in excess of its power produces a result that is void and cannot be enforced. Young v. Smith, 331 Ark. 525, 964 S.W.2d 784 (1998). Subject-matter jurisdiction is the power to hear and determine the subject-matter in controversy between the parties to the suit. Id.

The rule of almost universal application is that there is a distinction between want of jurisdiction to adjudicate a matter and a determination of whether the jurisdiction should be exercised. Jurisdiction of the subject matter is power lawfully conferred on a court to adjudicate matters concerning the general question in controversy. It is power to act on the general cause of action alleged and to determine whether the particular facts call for the exercise of that power. Subject matter jurisdiction does not depend on a correct exercise of that power in any particular case. If the court errs in its decision or proceeds irregularly within its assigned jurisdiction, the remedy is by appeal or direct action in the erring court. If it was within the court's jurisdiction to act upon the subject matter, that action is binding until reversed or set aside.

Banning v. State, 22 Ark. App. 144, 149, 737 S.W.2d 167, 170 (1987) (citations omitted). Unless the trial court has no tenable nexus whatever to the claim in question, the appellate court will consider the issue of whether the claim should have been heard there to be one of propriety, which can be waived, rather than subject-matter jurisdiction, which cannot be waived. In re Adoption of D.J.M., 39 Ark. App. 116, 839 S.W.2d 535 (1992).

Arkansas Code Annotated sections 9-14-105(a) (Repl. 1998) and 16-13-201(a) (Repl. 1999) give chancery courts exclusive jurisdiction in all cases and matters relating to the support of minor children. See also Granquist v. Randolph, 326 Ark. 809, 934 S.W.2d 224 (1996); Boren v. Boren, 318 Ark. 378, 885 S.W.2d 852 (1994). The juvenile court is a division of chancery court. Ark. Code Ann. § 16-13-602 (Repl. 1999). Arkansas Code Annotated sections 9-10-101(a)(1) (Repl. 1998) and 16-13-304(b) (Repl. 1999) evince a strong preference by the General Assembly for concurrent jurisdiction in chancery court and in chancery court, juvenile division, over matters relating to paternity. See Hall v. Pulaski County Chancery Court, 320 Ark. 593, 898 S.W.2d 46 (1995); Barnes v. Barnes, 311 Ark. 287, 843 S.W.2d 835 (1992).

Appellee's claims against appellants, based upon their agreements to guarantee Theo's child-support payments for his two children born out of wedlock, are matters relating to paternity, over which the juvenile division of chancery has jurisdiction. Because we cannot say that the trial court had "no tenable nexus" to the claims in question, we conclude that it had subject-matter jurisdiction.

Due Process

Due process requires that one be given a meaningful opportunity for a hearing, appropriate to the nature of the case and preceded by notice, before he is deprived of any significant property interest, except where some valid, overriding state interest justifies postponing the hearing until after the event. Bright v. Gass, 38 Ark. App. 71, 831 S.W.2d 149 (1992). The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner. State of Washington v. Thompson, 339 Ark.417, 6 S.W.3d 82 (1999). The concept of due process requires neither an inflexible procedure universally applicable to every situation nor a technical concept with a fixed content unrelated to time, place, and circumstance. Id. What process must be afforded is determined by context, dependent upon the nature of the matter or interest involved. Id.

Here, appellants appeared with counsel at the January 22, 1997, hearing, appeared pro se at the February 5, 1997, hearing, and were given ample opportunity to contest the propriety of their being joined as parties in the paternity actions. We hold that appellants were afforded due process before the March 1997 orders were entered.

Arkansas Rule of Civil Procedure 60(c)(4)

Appellants' primary argument on appeal is that appellee committed fraud sufficient to warrant the setting aside of the March 1997 orders in the following ways: (1) appellee's attorney and employees misled appellants into believing that the only way they could secure Theo's release from jail was by signing the June 1996 documents of guaranty, and (2) appellee's attorney prepared the precedents for the March 1997 Fourth Division orders in such a manner as to omit the chancellor's findings that were favorable to appellants, thereby enabling appellee to use those orders in First Division to pursue its foreclosure action against appellants. While it seems clear that appellee has overreached in its pursuit of child support against appellants, we cannot say that the chancellor erred in refusing to set aside the March 1997 orders pursuant to Arkansas Rule of Civil Procedure 60(c)(4).

After the passage of ninety days, a court has no power to modify or set aside an order without the showing of one of the exceptions listed in Arkansas Rule of Civil Procedure 60. See Blackwood v. Floyd, 342 Ark. 498, 29 S.W.3d 691 (2000). Rule 60 was amended by Inre Arkansas Rules of Civil Procedure, 340 Ark. 738 (January 27, 2000). Subsection (c)(4) now provides that, after ninety days, a court has the power to vacate a judgment "[f]or misrepresentation or fraud (whether heretofore denominated intrinsic or extrinsic) by an adverse party." The reporter's notes to this rule explain the reasons for the amendment:

Under the prior rule, only extrinsic fraud was a ground for setting aside or modifying a judgment. This has resulted in unfairness. See, e.g., Ward v. McCord, 61 Ark. App. 271, 966 S.W.2d 925 (1998) (husband's concealment of bank account from wife during negotiations leading to property settlement in divorce action was not extrinsic fraud); Office of Child Support Enforcement v. Mitchell, 61 Ark. App. 54, 964 S.W.2d 218 (1998) (mother's failure to mention in affidavit filed in paternity case that a man other than defendant could have been the father of her child was not extrinsic fraud); Office of Child Support Enforcement v. Offutt, 61 Ark. App. 207, 966 S.W.2d 275 (1998) (conduct of attorney in preparing precedent containing findings not made by the court and mailing it to the judge with a letter requesting that he sign the order if no objection was received from opposing counsel did not constitute extrinsic fraud).

Regardless of the addition of intrinsic fraud as a ground for vacating a judgment, the party seeking to set aside the judgment still has the burden of showing that the judgment was obtained by fraud, and the charge of fraud must be sustained by clear, strong, and satisfactory proof. See Ward v. McCord, 61 Ark. App. 271, 966 S.W.2d 925 (1998).

Although neither appellee's attorney nor its other employees informed appellants of other means by which they could secure Theo's release from jail, appellants have cited no case holding that appellee had a legal or equitable duty to do so. Certainly, they completely failed to prove that appellee's agents made any material misrepresentation of fact to them. Therefore, appellants failed to prove intrinsic or constructive fraud in the procurement of their signatures on the June 1996 orders.

Moreover, appellants are correct in asserting that the March 1997 orders, as prepared by appellee, differed somewhat from the chancellor's oral findings. For example, the orders did not report the chancellor's finding that appellants were not contractually bound to guarantee Theo's regular child-support payments. Instead, the March 1997 orders stated: "That upon filing of a Motion by the Plaintiff, the court may, upon presenting sufficient proof, order the party defendants to pay certain sums of money as child support payments pursuant to the June 10, 1996 agreement." Additionally, the chancellor stated at the February 5 hearing that appellants owed $3,637 in Theo's arrearages, but this specific amount was not set forth in the March 1997 orders. However, the written orders do not actually contradict the chancellor's findings from the bench at the February 5, 1997, hearing. Therefore, we cannot say that the chancellor erred in refusing to find fraud on the part of appellee's attorney in preparing the precedents. See Davis v. Davis, 291 Ark. 473, 725 S.W.2d 845 (1987). Accordingly, we find no error in the chancellor's refusal to set aside the March 1997 orders.

Affirmed.

Griffen and Neal, JJ., agree.