# Clemmons v. Office of Child Support Enforcement > Supreme Court of Arkansas · June 21, 2001 · 345 Ark. 330 URL: https://www.frixlaw.com/law-library/cases/9677197 ## Case - **Full name:** Stephen CLEMMONS v. OFFICE of CHILD SUPPORT ENFORCEMENT - **Court:** Supreme Court of Arkansas - **Decided:** June 21, 2001 - **Citations:** 345 Ark. 330; 47 S.W.3d 227; 2001 Ark. LEXIS 386 - **Precedential status:** Published - **Opinion:** Concurrence by Imber - **Judges:** Jim Hannah - **Cited by:** 44 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9677197 ## How later opinions describe it (automated extraction) - holding that, while a decision of the court will not be disturbed because it is law of the case under res judicata, the court is not bound by a conclusion stated as obiter dictum ## Opinion text Annabelle Clinton Imber, Justice, concurring. I agree with the result reached by the majority; however, I would affirm the trial court by applying the doctrine of the law of the case. That doctrine bars consideration in a second appeal of issues that were or should have been decided in the first appeal, where there has been a decision on the merits in the first appeal. Vandiver v. Banks, 331 Ark. 386 , 962 S.W.2d 349 (1998). 1 According to Justice Holmes, the law of the case merely expresses the practice of courts generally to refuse to reopen what has been decided. Messenger v. Anderson, 225 U.S. 436 (1912). The application of the law-of-the-case doctrine is not limited to issues actually raised in prior appeals, because it was developed to maintain consistency and avoid reconsideration of matters once decided during the course of a single continuing lawsuit. Miller County v. Opportunities, Inc., 334 Ark. 88 , 971 S.W.2d 781 (1998). For that reason, even those issues that might have been but were not actually presented in the first appeal are barred from reconsideration in the second appeal. Vandiver v. Banks, 331 Ark. at 394 . On January 22, 1998, the Pope County Chancery Court entered an Order finding that: 1. the assignment by Mrs. Shelia Clemmons to the Office of Child Support Enforcement was proper; 2. the statute of limitations is ten years unless the action was filed prior to the child becoming 24 years of age, then all arrearages would be collectible; and, 3. regardless of the preceding findings, both Mrs. Clemmons and OCSE were estopped from obtaining a judgment for arrearage in child support because of Mrs. Clemmons’ concealment of the minor child from its biological father, Stephen Clemmons. OCSE appealed the trial court’s finding of estoppel. Mr. Stephens filed no cross-appeal from the trial court’s findings of proper assignment and statute of limitations. The Court of Appeals determined that the trial court erred in refusing to enforce an order for child support and determine the amount owed in arrearage based upon a theory of estoppel. The appellate court reversed and remanded the case with instructions to the trial court “to determine the proper amount of child-support arrearage due pursuant to the March 27, 1978, California order, taking into consideration the applicable statute of limitations and the propriety of the mother’s assignment.” Office of Child Support Enforcement v. Clemmons, 65 Ark. App. 84, 88 , 984 S.W.2d 837, 839 (1999). Upon remand, the trial court determined that Mr. Stephens owed child support in the amount of $20,757.00 and refused to reopen the issue of assignment. Mr. Clemmons then filed the appeal that is before us today, arguing that the trial court erred in not considering the propriety of Mrs. Clemmons’ assignment of child support to OCSE. An argument that could have been raised in the first appeal and is not made until a subsequent appeal is barred by the law of the case. Alexander v. Chapman, 299 Ark. 126 , 771 S.W.2d 744 (1989); McDonald’s Corp. v. Hawkins, 319 Ark. 1 , 888 S.W.2d. 649 (1994). When there is no cross-appeal, the order from which cross-appeal is not taken becomes the law of the case. Van Houten v. Pritchard, 315 Ark. 688 , 870 S.W.2d 377 (1994); Moore v. Robertson, 244 Ark. 837 , 427 S.W.2d 796 (1968). In Moore v. Robertson, supra, Robertson alleged on cross-appeal that the decision of the trial court in favor of his co-defendants should have enured to his benefit despite his failure to file an answer in the case. The failure to answer ultimately resulted in a default judgment against him. We refused to address the issue because it should have been raised by cross-appeal in the first appeal of the case. In declining to address the merits of Robertson’s argument, we stated: The case at bar confirms the wisdom of the [law-of-the-case] rale. If the appellee’s contention has merit — a point which we do not decide —■ its assertion on the first appeal would have done away with the necessity for a second trial and a second appeal, with their attendant expenditure of time and money. Such waste can be effectively prevented only by a strict adherence to the principle that points not urged upon the first appeal are not available later on. Moore v. Robertson, 244 Ark. at 839-40. As in Robertson, the case at bar demonstrates the wisdom of the law-ofi-the-case doctrine. Had Mr. Clemmons cross-appealed the trial court’s adverse assignment and limitations rulings, those issues could have been addressed in the first appeal and, if successful, would have done away with the necessity for a remand and second appeal. Because Mr. Clemmons failed to cross-appeal the first time around, the trial court’s findings with regard to the propriety of the assignment and applicable statute of limitations became the law of the case. Upon remand, the trial court noted that it had already determined that Mrs. Clemmons’ assignment to OCSE was proper and that the action was brought within the applicable statute of limitations. Despite these findings, the trial court denied relief in the first trial based upon the affirmative defense of estoppel. The majority concludes that the finding of estoppel rendered the first two findings unnecessary dicta not subject to the law-of-the-case doctrine. That conclusion ignores the defensive nature of an estoppel claim. “Equitable estoppel is a judicial remedy by which a party may be precluded by its own act or omission from asserting a right to which it otherwise would have been entitled, or pleading or proving an otherwise important fact.” 28 AM.JUR.2d Estoppel and Waiver, § 28 (2000). The trial court’s findings effectively determined that OCSE had a claim that could properly be asserted. Thus, contrary to the majority’s conclusion, the findings did have something to do with the trial court’s order and were not merely obiter dicta. The affirmative defense of estoppel would have been moot if OCSE had no right to be asserted. The trial court’s findings as to assignment and limitations were, therefore, integral to its ultimate holding and not merely comments on the evidence. Mr. Clemmons did not raise these issues in the first appeal, but sought to reopen the issues upon remand to the trial court based upon the court of appeals’ instructions. The trial court refused to reopen the issues in the proceedings on remand, wherein the following exchange occurred: By THE Court: Okay. Well, Mr. Hodges basically wants to relitigate the findings that I made earlier, and says that the propriety of the assignment, or the assignment of the interest was improper, and that the statute of limitations has run because of the improper assignment. I think that’s basically what we are getting to. MR. HODGES: Yes, sir. I was just following the decision of the Court of Appeals. By THE COURT: Well, I don’t agree with either one of you, and I don’t want to cut off any argument that you might want to make, but let me tell you how I see this. In my decision — Letter decision to you I found that the statute of limitations was ten (10) years. Well, that would cause ■— it’s in excess of the time that would cut off some of the support period. And based on that the arrearages, ten years of arrearages would be Fifteen Thousand dollars ($15,000.00). I had already made my decision on the issues that you raised again, Mr. Hodges, in regard to the propriety of the assignment and the statue (sic) of limitations, and I’m not going to change my mind about that, nor do I want to hear anymore proof on that. I think that all was produced at the trial. Now, is there anything else? Mr. Helms: Your Honor, I — the, uh — the letter ruling that you referred to— By the Court: uh-huh. Mr. Helms: —I guess I’m reading that wrong. You said under the statute of limitations in this case is ten (10) years, unless the action was filed prior to the child becoming twenty-four (24) years of age— By the Court: Yes. MR. Helms: —and then all arrearage accrued would be collectible. * * * By THE COURT: Unless I’m wrong about his age, I believe he was — he was born on June 5th of ’73, and it was filed in ’95. That’s twenty-two (22). You may be right, Mr. Helms. Mr. Helms: I never claimed to be good at math, your Honor. By THE COURT: "Well, I was doing it on my — in my head, and I put it on the calculator. He would have been twenty-two (22). So in that case your figures as to the arrearages would be correct.... (Emphasis added.) Thus, the trial court recognized that the issues of assignment and limitations had been conclusively determined at the first trial and did not reopen those issues in its deliberations on remand. Taking into account the propriety of the assignment and the applicable statute of limitations as had previously been determined, the trial court awarded arrearages. By doing so, the trial court followed the directive of the appellate court, which, contrary to the majority’s conclusion, did not reopen the issues of assignment and limitations in its remand order. The court of appeals issued a limited remand order, instructing the trial court to determine “the proper amount of child-support arrearage....” In doing so, the appellate court did instruct the trial court to “tak[e] into consideration the propriety of the assignment and the proper statute of limitations.” The appellate court did not instruct the trial court to redetermine the propriety of the assignment and the proper statute of limitations. Those issues had already been determined. The remand order issued by the court of appeals was no more than a directive to the trial court to apply the findings it had previously made in determining the proper amount of child support to award in arrearage. If Mr. Clemmons thought those findings were made in error, he could have submitted the issues to the court of appeals for determination on cross-appeal and preserved those issues in case he lost on direct appeal. He failed to do so. Mr. Clemmons cannot now reopen findings that could have been addressed in the first appeal of this matter simply because he is dissatisfied with the manner in which those findings are now being applied. Because I believe that the law-of-the-case doctrine bars the appellant from raising in this second appeal an issue that could have been raised in the first appeal, I concur with the majority in affirming the trial court. BROWN, J., joins in this concurrence. One exception to the law-of-the-case doctrine arises where evidence is presented during the period between two appeals that materially varies from the evidence presented prior to the first appeal. In this situation, the law-of-the-case doctrine will not bar the second appeal, whereas otherwise the appellant would have been barred. Fairchild v. Norris, 317 Ark. 166 , 876 S.W.2d 588 (1994). This exception does not apply to the case at bar because no new evidence has materialized that would substantially change the outcome of this case. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9677197. Public record. Not legal advice.