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                 SUPREME COURT OF ARKANSAS
                                        No.   CV-17-474


                                                  Opinion Delivered:   September 14, 2017
DANIELLE BLAIR
                                 APPELLANT APPEAL FROM THE GARLAND
                                           COUNTY CIRCUIT COURT
V.                                         [NO. 26DR-15-686]

RANDALL WILLIS                              HONORABLE LYNN WILLIAMS,
                                   APPELLEE JUDGE

                                                  DISSENT ON DENIAL OF
                                                  PETITION FOR REVIEW.


                         JOSEPHINE LINKER HART, Associate Justice

        I would grant appellant’s petition asking that this court review the decision of the

 Arkansas Court of Appeals in Blair v. Willis, 2017 Ark. App. 324, 521 S.W.3d 535. As noted

 by the court of appeals, the issues raised by appellant on appeal were (1) whether appellee’s

 petition for child support should be considered a request for modification of child support,

 and (2) whether equitable principles barred appellee’s request for child support.

 Nevertheless, in a paragraph that is dicta and addresses issues not argued on appeal, the court

 of appeals cites to Fonken v. Fonken, 334 Ark. 637, 976 S.W.2d 952 (1998), and concludes

 that the case supports the circuit court’s decision to award retroactive child support from

 2002 to 2007 to a parent who no longer has physical custody of the children. The gist of

 Fonken is its interpretation of Arkansas Code Annotated § 9-14-105(c) (Repl. 2015), which

 provides that “[a]ny person eighteen (18) years of age or above to whom support was owed
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during his or her minority may file a petition for a judgment against the nonsupporting

parent or parents.”

       Unlike Fonken, there is no child in this case seeking child support. Thus, Fonken has

no bearing on the case at bar. Rather, the circuit court is awarding child support to a parent

who does not have physical custody of the children. This award is plainly contrary to

Arkansas Code Annotated § 9-14-105(b)(1), which provides that the person seeking child

support must have “physical custody of a minor child.” See Hardy v. Wilbourne, 370 Ark.

359, 365, 259 S.W.3d 405, 410 (2007) (stating that the “plain language of subsection (b)(1)

requires that the parent petitioning for an order of child support have physical custody of

the child”). Thus, the court of appeals has taken money out of the household in which two

teenage children physically reside and transferred the funds to a household where the

children do not physically reside. This result is the exact situation that the statute was

designed to prevent. Given the court of appeals’ troubling analysis, I would grant the

petition for review.




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