dissenting.
This is the second time we have had this issue before the court. See Arkansas Office of Child Support v. House, 320 Ark. 423, 897 S.W.2d 565 (1995). In House, we did not address the issue because it had not been precisely raised before the chancery court. Now the Arkansas Court of Appeals has certified the same issue to us for resolution. I would decide this case on the merits.
With regard to a dismissal for failure to abstract material portions of the record under Ark. Sup. Ct. R. 4-2(a)(6), there is enough in the abstract to decide the issue. The abstract contains:
• The Missouri divorce decree stating the required child support of $128 per month for Michael Harris.
• Missouri certificate for the divorce decree filed in Arkansas on March 19, 1993.
• Answer by Robert Harris admitting the matter was filed on March 19, 1993, with summons, notice of hearing and other Missouri documents. He also raised as affirmative defenses the fact that the support obligation had ceased owing to the son’s attaining the age of majority and the statute of limitations.
• Order of the court finding (a) the five-year statute of limitations bars all child support accruing five years prior to March 19, 1993, and (b) the minor child reached his majority on November 26, 1988. The court awarded Human Services $1,152 for child support arrearages accruing from March 1988 (5 years back from the filing of the notice of hearing) through November 1988 (the age of majority).
The issue on appeal is whether the chancellor used the correct statute of limitations. I conclude that the essential facts are before us for purposes of addressing that issue.
Twice in the past six years, the General Assembly has sought to expand the time period for collecting arrearages for child support. See Act 525 of 1989, now codified at Ark. Code Ann. § 16-56-129 (Supp. 1993) (established a ten-year limitation on the arrearage period for child support); Act 870 of 1991, now codified at Ark. Code Ann. § 9-14-236 (Repl. 1993) (established an expanded limitations period for commencing child support actions beyond the date that the child reaches age 18 and set no limit on the arrearage period).
In Sullivan v. Edens, 304 Ark. 133, 801 S.W.2d 32 (1990), we interpreted Act 525 of 1989 and stated that prior to 1989 the statute of limitations for child support arrearages was five years under the general limitations statute, Ark. Code Ann. § 16-56-115 (1987). In interpreting Act 525 of 1989 with its 10-year limitation period for arrearages, we held (1) that the Act was prospective only, and (2) that the Act did not repeal the existing five-year statute of limitations.
Following the enactment of Act 870 of 1991 with its expanded statute of limitations and arrearage period, we decided Johnson v. Lilly, 308 Ark. 201, 823 S.W.2d 883 (1992). In Johnson, we held that the General Assembly could not revive a cause of action that had already been barred under an existing limitations statute at the time the new act became effective. Thus, under the previous five-year limitations statute, collectible support was restricted to five years. We reiterated the Johnson holding in Chunn v. D’Agostino, 312 Ark. 141, 847 S.W.2d 699 (1993).
The case before us is one of first impression for this court, and it involves two policy considerations. A new, expanded statute of limitations became effective with the enactment of Act 870 of 1991, which included a specific provision for retroactive application. This court, however, has made it abundantly clear that a new statute of limitations cannot revive a barred cause of action. Both parties agree in the instant case that the action was timely filed under the time period allowed by Act 870. They further agree that a five-year statute of limitations applied to those arrearages which had accrued prior to the effective date of Act 870. The issue then is what arrearages were barred under the previous limitations statute and, thus, are not collectible under Act 870.
The previous five-year statute of limitations applied up to the effective date of Act 870 which was March 29,1991. A cause of action commenced as of that date under the prior limitations statute would have allowed recovery for arrearages back to March 29, 1986 — five years prior to the filing of the action. Accordingly, on the date Act 870 became effective, accrued arrearages during that time period (March 29, 1986, to March 29, 1991) would not have been barred under the existing statute of limitations. Hence, the retroactive application of Act 870 permits an action for arrearages for that time period because at the time Act 870 came into effect the action had not yet been barred by the five-year statute of limitations. All arrearages accrued prior to that five-year period were barred and could not be revived under Act 870. The chancellor, accordingly, should have calculated the past due child support from March 29, 1986, to November 26, 1988. That would have increased the award of child support from $1,152 to $4,224.
I respectfully dissent.