dissenting. This is a child-support case. Appellant is the father and was ordered to pay child support. He did for some time but stopped and failed to pay for nine years. Child Support Enforcement sued him for arrears. Appellant testified that his failure to pay was pursuant to and in reliance on an agreement with his ex-wife, whereby the ex-wife agreed that he should no longer pay child support, and he agreed that she could have the tax deduction for one of the children and would care for and support the children one-half of the time. Appellant’s ex-wife disputed this, stating that they had an agreement but that it only extended to back child support, not future child support.
Appellant cites numerous unpublished cases in his brief and, while acknowledging that this is expressly forbidden by Ark. Sup. Ct. R. 5-2 (d), argues that the rule is unconstitutional. This calls for a determination of the constitutional validity of the supreme court’s rule, and I believe that we should have certified this case to the supreme court for them to decide the issue.
We have once before certified a case for resolution of this issue. Although it was accepted by the Arkansas Supreme Court, that court decided the case on other grounds, and the question remains unresolved. See Lloyd v. Butts, 343 Ark. 620, 37 S.W.3d 603 (2001).
The question in the present case is of the utmost public interest. Appellant’s argument is based on reasons stated in Judge Richard Arnold’s opinion in Anastasoff v. United States, 223 F.3d 898, vacated 235 F.3d 1054 (8th Cir. 2000), in which the court initially held that its rule denying precedential value to unpublished opinions violated the constitution, was contrary to practice that has existed throughout the development of the common law and extends back to Roman times, and corrupted the very essence of the judicial decision-making process by substituting the arbitrary discretion of judges for legal precedent.
I believe that the issue raised by appellant calls into question the integrity of the judicial process as practiced by our court, and should thus have been certified to the Arkansas Supreme Court pursuant to Ark. R. Sup. Ct. 1-2(d)(2). See Ark. R. Sup. Ct. 1-2(b)(1), (3), (4), (5), and (6).
My view regarding the need for certification precludes consideration of the merits. Nevertheless, I do not agree that the chancellor clearly erred in failing to find equitable estoppel to be applicable in this case. Here, despite appellant’s assertions to the contrary, the evidence of the terms of the agreement and the extent of the consideration were in sharp dispute. I think that the judge could simply have found appellant, as the party most interested in the outcome, to be lacking in credibility, and that the evidence was sufficient to support the conclusion reached.
I respectfully dissent.
Robbins, J., joins in this dissent.