dissenting. The majority has chosen to read Ark. Code Ann. §9-14-105 (Supp. 1991) narrowly so as to defeat the claims of Sonya and Daniel Chunn for child support which their biological father failed to pay pursuant to an order of the chancery court. A more plausible reading, and more consistent with the clear legislative intent, is to give viability to claims for unpaid child support if brought within five years following the 18th birthday of such dependent children.
The majority concludes that these claims are barred because before paragraphs (e) and (f) of § 9-14-105 were added in 1991 (Section 1 of Act 870) the claim of Betty D’Agostino, the mother of these appellants, lapsed by the running of the statute of limitations and under the holding of Johnson v. Lilly, 308 Ark. 201, 823 S.W.2d 883 (1992), claims which have become barred cannot be resurrected by subsequent legislation.
I disagree that the tenet of that case governs this one. The cause of action of minor children dealt with in § 9-14-105(3) and made retroactive “to all child support orders now existing” inures directly to Sonya and Daniel Chunn and is not subject to defeat because their mother permitted her own claim to lapse. I am aware of no rule of law that permits the claim of one individual to be barred by the inaction of another. See Wilson v. Wilson, 464 So.2d 496 (Sup. Ct. Miss. 1985), and Biggs v. St. Louis, Iron Mountain & Southern Railway Co., 91 Ark. 122, 120 S.W. 970 (1909).
I disagree, as well, that these appellants had no cause of action prior to § 9-14-105(3). The law generally recognizes a cause of action by a child against a parent for support. See Simonds v. Simonds, 154 F.2d 326 (Ct. of App., D.C. 1946), 13 ALR 2d 1138 [“The duty of parents to provide support for their minor children is regarded in practically all American jurisdictions as a legal as well as a moral duty. The legal problems arising in this connection relate namely to the means and methods for enforcing the performance of such duty.”] This court has recognized a cause of action directly by children against a father for nonsupport. See Upchurch v. Upchurch, 196 Ark. 324, 117 S.W.2d 339 (1938) [“The chancery court did not pass on the question of support of the children, but merely denied the wife alimony. Of course, the children are not barred from bringing a suit against their father, and whether they could recover or not would depend upon all the facts and circumstances.”] I believe the order appealed should be reversed and the cause remanded.
Glaze, J., joins in this dissent.