dissenting. On July 21, 1981, a warrant was issued for the arrest of the appellee, Darryl A. Littles, as a result of the complaint filed against him by the appellant, Gina Felicia Flemings. The complaint falsely alleged that Littles was the father of Flemings’s five-month-old daughter. Flemings and Littles were not married; Littles was nineteen years old, unemployed and living with his grandmother at the time.
A hearing was held on November 16, 1981; Littles appeared at this hearing without counsel. An order was entered on November 31, 1981, which reflected that Littles had been granted until January 16, 1982 to deposit the cost of a blood test with the child Support Enforcement Unit (CSEU) of Pulaski County. The amount to be deposited was not specified in this order. The order further provided that in the event Littles failed to pay by January 16, 1982, paternity would be established and support set at $50 per month.
On January 28, 1982, the paternity referee signed a judgment which established that Littles was the father of Flemings’s child. The judgment further stated that Littles had “failed to pay for blood test.”
In August 1994, Littles sent a handwritten letter to the chancellor in this case requesting that a blood test be done. He stated in his letter that he “strongly” believed that he was not the father of Flemings’s child, and that he did not have the money to pay for the paternity test when it was ordered in 1981. He was charitable to Flemings in his letter; he said that he believed that Flemings had made an “honest mistake” and that only a paternity test could clear up the matter.
The trial court treated this letter as a motion and Flemings, through the Pulaski CSEU, responded and asserted that because the original paternity judgment was entered “upon defendant’s failure to comply with scientific testing,” the trial court had no jurisdiction to modify the paternity judgment, pursuant to Ark. Code Ann. § 9-10-115 (1993 Repl).
In this instance, the trial court considered Litdes’s request for genetic testing more than twelve years after the judgment of paternity was entered in 1981. The chancellor, after a hearing, granted the request; a review of the abstract and record makes it abundantly clear why she did so in this case.
Litdes was unemployed at the time of the entry of judgment. He appeared before the court without counsel at the initial hearing held on November 16, 1981. He testified that the hearing “went so quick” and that he agreed to the blood test because he did not believe that he was the father of Flemings’s child. However, he was not told by the paternity referee or by the attorney for Flemings how much the test would cost. When he contacted CSEU after the hearing, he was told that he would have to pay the sum of $625 in advance to obtain this test. He could not afford to do so. Litdes earned only $90.46 in 1981 and entered the Job Corps in Texas shordy after the initial hearing in November 1981. It is interesting to note that the test finally conducted in 1993 cost him only $238. This test conclusively determined that Litdes could not be the father of Flemings’s child.
In 1981, Ark. Stat. Ann. § 34-705.1 (Supp. 1985), provided that a trial court could direct that the parties submit to one or more blood tests to determine whether or not a defendant could be excluded as being the father of a child. The statute further provided that the cost of the test “shall be taxed as other costs in the case” or, in the court’s discretion, “may be taxed against the county.” Id. The statute further stated that whenever the court ordered such blood tests to be taken and one of the parties “shall refuse to submit to such tests,” such facts shall be disclosed upon the trial unless good cause is shown to the contrary. Id. The paternity referee obviously did not comply with this statute in any respect when he ordered the paternity testing in November 1981 and entered the judgment of paternity ex parte in January 1982. The paternity judgment did not find that Litdes refused to submit to the blood test, only that he failed to pay for the test. The paternity referee in 1981 gave an indigent young man, unrepresented by counsel, some sixty days to post the substantial sum of $625, and entered judgment against him ex parte twelve days after he missed the sixty-day deadline.
In her arguments to the trial court, Flemings’s counsel acknowledged that the United States Supreme Court had declared unconstitutional a Connecticut paternity statute which required the defendant to pay the costs of paternity testing in advance. Little v. Streater, 452 U.S. 1 (1981). She further stated that the Arkansas statute in effect in 1981 was constitutional because it provided for taxing the cost of the test to the case. Flemings’s counsel conceded to the trial court that Littles “possibly was not given his rights — his due process rights under the statute, but his remedy was to appeal to the Supreme Court.” However, she admitted that the file did not indicate that Littles was ever sent a copy of the paternity judgment entered against him.
The trial court found that Littles was precluded in 1981 from the testing due to his age and his inability to pay the cost of the test, and that the statute which required that the State advance the cost of testing was not followed. She set aside the judgment pursuant to Ark. Code Ann. § 9-10-115, which provides that the chancery court may vacate a paternity judgment when the original finding of paternity did not include results of scientific paternity testing or was not entered upon a party’s failure to comply with scientific paternity testing ordered by the court.
The trial court determined that Litties’s inability to pay for the blood test in advance did not constitute a “failure to comply with scientific testing ordered by the court.” We review chancery cases de novo, and reverse only if the chancellor’s findings are clearly erroneous. Perryman v. Hackler, 323 Ark. 500, 916 S.W.2d 105 (1996). Chancellors have broad powers to fashion any remedy that is reasonable and justified by the proof. Id. If the paternity referee in 1981 had followed the statute which mandated that the cost of blood testing be taxed in the case, no judgment of paternity would have ever been entered against Littles. Under the circumstances of this case, it was not clearly erroneous for the chancellor in 1995 to determine that Litties’s inability to make a $625 payment ordered in flagrant violation of Arkansas law did not constitute the “failure to comply” with paternity testing contemplated by Ark. Code Ann. § 9-10-115(c)(1). It is the paternity referee, not Littles, who failed to comply with the paternity-testing statute in 1981. This failure constituted an abuse of discretion, and resulted in a denial of Litties’s right to due process in a very important and quasi-criminal proceeding. I would affirm.
BROWN, J., joins this dissent.