concurring. The decision to-day arguably reaches a grossly unfair result by saddling a person with a past-due support debt when that person has never claimed to be the father of the child and when he has been found, after paternity tests, not to be the biological father. Two previous cases are cited as authority for this conclusion. See Littles v. Flemings, 333 Ark. 476, 970 S.W.2d 259 (1998) (statute only allows relief from back child support for non-father if he had physical custody of the child); State v. Phillippe, 323 Ark. 434, 914 S.W.2d 752 (1996) (proven non-father married to the mother could not claim refund for previous support payments made pursuant to valid court order where money had already been distributed).
I question in my own mind whether these cases are on all fours factually with the case before us. In addition, I question whether this court has actually held that non-biological fathers (1) who have never held themselves out as a parent, (2) who have not paid child support, and (3) who have willingly taken a paternity test must pay accrued child support. The facts of the instant case appear to be different from the facts of our previous cases.
Two points occur to me in this regard. First, there is a policy issue of whether non-biological fathers have a duty to pay back child support in all instances. See, e.g., Walter v. Gunter, 367 Md. 386, 788 A.2d 609 (2002) (without paternity, there is no legal duty to pay accrued debt or arrearages). Secondly, by its interpretation today, this court is legislating by inference because the operative statute, Ark. Code Ann. § 9-10-115(jE)(1) (Supp. 2005), is actually silent on the obligation of a non-father to pay back child support.
Two months ago in a case where the operative statute was silent on requirements relating to postnuptial agreements, we said:
By its terms, the statute only applies to agreements made prior to marriage. If the legislature had intended for this statute to also apply to postnuptial agreements, it presumably would have included the appropriate language. We have noted, “[i]t is not the business of the courts to legislate, and if a change in the law in this respect is desired, the General Assembly is the branch of government whence change must come.” Dick v. State, 364 Ark. 133, 217 S.W.3d 778 (2005) (citing Southern Telephone Co. v. King, 103 Ark. 160, 146 S.W. 489 (1912)).
Stewart v. Combs, 368 Ark. 121, 125, 243 S.W.3d 294, 298 (2006). Similarly, had the legislature intended to require proven non-fathers to pay past support, it seems that it would have clearly and precisely said so. It has not.
There is continued confusion over the issue of child-support arrearages under § 9-10-115(f) (1) among the bench and bar, as evidenced by the case at hand. I urge the General Assembly, which is now in session, to clarify § 9-10-115(f) (1) once and for all on whether child-support arrearages must be paid by a non-biological father in all instances.