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SUPREME COURT OF ARKANSAS
No. CV-17-474
Opinion Delivered: September 14, 2017
DANIELLE BLAIR
APPELLANT APPEAL FROM THE GARLAND
COUNTY CIRCUIT COURT
V. [NO. 26DR-15-686]
RANDALL WILLIS HONORABLE LYNN WILLIAMS,
APPELLEE JUDGE
DISSENT ON DENIAL OF
PETITION FOR REVIEW.
JOSEPHINE LINKER HART, Associate Justice
I would grant appellant’s petition asking that this court review the decision of the
Arkansas Court of Appeals in Blair v. Willis, 2017 Ark. App. 324, 521 S.W.3d 535. As noted
by the court of appeals, the issues raised by appellant on appeal were (1) whether appellee’s
petition for child support should be considered a request for modification of child support,
and (2) whether equitable principles barred appellee’s request for child support.
Nevertheless, in a paragraph that is dicta and addresses issues not argued on appeal, the court
of appeals cites to Fonken v. Fonken, 334 Ark. 637, 976 S.W.2d 952 (1998), and concludes
that the case supports the circuit court’s decision to award retroactive child support from
2002 to 2007 to a parent who no longer has physical custody of the children. The gist of
Fonken is its interpretation of Arkansas Code Annotated § 9-14-105(c) (Repl. 2015), which
provides that “[a]ny person eighteen (18) years of age or above to whom support was owed
Cite as 2017 Ark. 250
during his or her minority may file a petition for a judgment against the nonsupporting
parent or parents.”
Unlike Fonken, there is no child in this case seeking child support. Thus, Fonken has
no bearing on the case at bar. Rather, the circuit court is awarding child support to a parent
who does not have physical custody of the children. This award is plainly contrary to
Arkansas Code Annotated § 9-14-105(b)(1), which provides that the person seeking child
support must have “physical custody of a minor child.” See Hardy v. Wilbourne, 370 Ark.
359, 365, 259 S.W.3d 405, 410 (2007) (stating that the “plain language of subsection (b)(1)
requires that the parent petitioning for an order of child support have physical custody of
the child”). Thus, the court of appeals has taken money out of the household in which two
teenage children physically reside and transferred the funds to a household where the
children do not physically reside. This result is the exact situation that the statute was
designed to prevent. Given the court of appeals’ troubling analysis, I would grant the
petition for review.
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