The opinion
Tom Glaze, Justice, dissenting. While Angela Cleveland has legal custody of the parties’ child, K.B., Angela has never had physical custody of K.B. K.B. has lived with Darryl or his mother, so Angela has never been awarded child support. The state has made medicaid payments in K.B.’s behalf, and the Pulaski County Child Support Enforcement Unit, obtaining assignment of Darryl’s rights, brought this action requesting that Angela should now be ordered to pay child support.
At the hearing in this matter on December 20, 1995, the chancellor determined that Darryl had had physical custody of K.B. since K.B. was two years old 1 , but the chancellor held she could not require Angela to pay child support until Darryl filed a motion seeking legal custody of K.B. 2 The chancellor’s ruling is in direct conflict with Ark. Code Ann. § 9-14-105 (Supp. 1995), which in pertinent part provides as follows:
(b) The following may file a petition to require the noncustodial parent or parents of a minor child to provide support for the minor child: (1) Any person having physical custody of a minor child;
The foregoing provision could not be clearer. Angela is a noncustodial parent 3 , and Darryl indisputably has physical custody of K.B. . Thus, under § 9-14-105(b)(l), Darryl is authorized to seek child support from Angela.
The chancellor tried to explain away § 9-14-105(b)’s plain language by stating the statute’s purpose is to aid parents and other relatives who obtained physical custody of a child, but who did not have the opportunity or appropriate judicial forum available to obtain legal custody of a child. Section 9-14-105 simply contains no language which supports the chancellor’s construction of that provision and to accept such an explanation is merely judicial legislation. In addition, the chancellor’s suggestion that § 9-14-105 could be employed only by relatives who obtained physical custody of the child, but did not have access to the judicial forum to obtain legal custody, is a red herring. Nothing prohibits a relative, like Darryl’s mother, from seeking legal custody, even if she already has physical custody.
In conclusion, the majority court’s decision is contrary to modern-day child-support provisions, which are designed to make parents, not the state, responsible for the care of their children. Darryl meets the clear requirements of § 9-14-105, and should be permitted to request that Angela meet her responsibility of supporting K.B. Whether the chancellor decides Angela has the ability to pay child support is another issue; but irrespective of that issue, the chancellor was wrong in deciding § 9-14-105 automatically barred Darryl from seeking child-support payments until he obtained legal custody of K.B.
I respectfully dissent.
Brown, J., joins this dissent. K.B. was eleven years old at the time of this litigation.
In the chancellor’s findings of facts and conclusions of law, she stated the following:
[the court] is cognizant of Ark. Code Ann. section 9-14-105 but the Court doósn’t agree that it is required to set support since Ms. Cleveland has legal custody and it has the authority to require the father to first effect a change of custody and it is not unreasonable or contrary to statute or case law. (Emphasis added.)
Section 9-14-105(d)(2) defines “noncustodial parent” as one who resides outside the household or institution in which the minor child resides.