Sublett v. Mallett

Cite as 2013 Ark. App. 676
ARKANSAS COURT OF APPEALS
DIVISION II
No.CV-12-1109
Opinion Delivered November 13, 2013
JOSEPH SUBLETT APPEAL FROM THE FAULKNER
APPELLANT COUNTY CIRCUIT COURT
[No. 23DR-03-366]
V.
HONORABLE DAVID L. REYNOLDS,
JEREMY JAY MALLETT and JUDGE
JENNIFER LINN TULLOS
APPELLEES AFFIRMED
LARRY D. VAUGHT, Judge
Appellant Joseph Sublett appeals from the trial court’s order holding that he was not
permitted to intervene in a lawsuit between appellees Jeremy Jay Mallett and Jennifer Linn Tullos
involving the paternity of a child born during the marriage of Sublett and Tullos. On appeal,
Sublett argues that the trial court erred in its refusal to allow him “any chance of establishing his
paternal rights.” We disagree and affirm.
The facts preceding this appeal are unusual. On May 31, 2001, GMM was born during
the marriage of Sublett and Tullos. However, at the time that the child was born, the parties
were separated. And, in fact, Tullos had been in a relationship and living with Mallett for
approximately eighteen months prior to the child’s birth. However, during the time that Mallett
and Tullos were living together, Sublett and Tullos had a sexual encounter that opened the
possibility that Sublett was the child’s biological father. However, in their divorce proceeding,
Cite as 2013 Ark. App. 676
Sublett and Tullos specifically stated and agreed that only one child, TAS, was born of their
marriage and that TAS was given up for adoption.
Sublett, Tullos, and Mallett all agreed and accepted that the child born in 2001 was
fathered by Mallett, and his name appeared on the child’s birth certificate. After filing a petition
to establish paternity and visitation with his daughter in 2003, the court issued an order on May
21, 2004, decreeing Mallett “to be the legal father of [GMM]” and awarded Tullos and Mallett
joint custody, with GMM spending one-half of her time with each parent. The same order
designated Mallett’s house as the child’s primary residence for school purposes and established
Mallett’s parents as the primary care givers for the child. Later, following further litigation
concerning GMM between Mallett and Tullos, the trial court awarded Mallett full custody of the
child and ordered Tullos to pay child support.
However, on November 22, 2011, appellant Sublett attempted to intervene in the lawsuit
between Mallett and Tullos, claiming that he—not Mallett—was the child’s biological father.
The trial court refused, noting that in “years of litigation between [Tullos and Mallett], this
allegation that Mallett is not the biological father of the child was raised only after Mr. Mallett
was granted full custody and [Tullos] was ordered to pay child support.” The court concluded
that Sublett’s and Tullos’s “recent collusion for the [paternity] testing further suggested that they
are seeking to dissolve the parental bond of [Mallett] for financial or for other self-serving
reasons.” Relying on the doctrines of judicial and equitable estoppel, the court refused to allow
Sublett to intervene. Specifically, the court found that both theories applied to prevent Sublett
from asserting a right to interrupt the relationship between the child and Mallett. The court
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further found that allowing the intervention would cause great injury to both the child and to
Mallett. Following this order, Sublett lodged a timely appeal urging that we reverse the trial
court’s denial of his motion to intervene.
A trial court’s ruling denying a motion to intervene will be overruled only if appellant can
establish that the trial court abused its discretion by making an arbitrary and groundless decision
to deny intervention. Emp’rs Nat’l Ins. Co. v. Grantors to Diaz Refinery PRP Comm. Site Trust, 313
Ark. 645, 855 S.W.2d 936 (1993). The right to intervene depends upon a determination of the
threshold question of whether the motion to intervene was made in a timely manner. Carton v.
Missouri Pac. R.R., 315 Ark. 5, 865 S.W.2d 635 (1993). Further, timeliness under Rule 24(a) is a
matter lying within the discretion of the trial court and will not be subject to reversal absent
abuse of that discretion. Cupples Farms Partner v. Forrest City Prod. Credit Ass’n, 310 Ark. 597, 839
S.W.2d 187 (1992). Timeliness of intervention under Rule 24 of the Arkansas Rules of Civil
Procedure is to be determined from all the circumstances, with special consideration of (1) how
far the proceedings have progressed; (2) any prejudice to other parties caused by the delay; and
(3) the reason for the delay. Milberg, Weiss, Bershed, Hynes, and Lerach, LLP v. State, 342 Ark. 303,
28 S.W.3d 842 (2000).
Here, a petition to establish paternity was filed by Mallett in 2003. At that time, Sublett
was aware that he could have fathered the child; that the child was born of his marriage to
Tullos; and that he specifically did not mention the child in his divorce from Tullos. Sublett also
admitted that since her birth, he was aware of the child’s existence and thought the child bore
a resemblance to him. Further, since the initial motion to establish paternity was filed by Mallett
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in 2003, there have been a number of other legal disputes between he and Tullos involving the
custody, visitation, and support of the child.
Sublett was required to act in a timely fashion to establish his alleged paternity. Instead,
he waited until he (and Tullos) were not satisfied with the way the litigation was
progressing—Tullos being ordered to pay child support—and only then attempted to assert his
parental rights. Further, there have been ten-plus years of progress in the case involving not only
the financial and logistic details of the parties’ custody arrangement, but the stability and well-
being of a child. There is also a great risk of resulting prejudice in accommodating Sublett’s
motion to intervene, which the trial court found to be an eleventh-hour attempt to manipulate
a child-support award. The right to intervene must be weighed against the harm, and here the
potential harm is immeasurable.
Based on the facts of this case, we conclude that the trial court did not abuse its
discretion when it refused to allow Sublett to intervene, (1) because his motion to intervene was
untimely under Rule 24(a) of the Arkansas Rules of Civil Procedure. Ark. R. Civ. P. 24(a) (2013);
Sublett waited until the litigation had progressed too far before filing his motion to intervene;
(2) the granting of his untimely motion would have caused the other parties to the litigation to
suffer great prejudice; and (3) Sublett failed to provide a valid reason for his delay in filing the
motion to intervene. Further, we note that although the trial court resolved this case using
theories of estoppel, we are free to affirm the case under an alternative theory—in this case,
timeliness. Thomas v. Avant, 370 Ark. 377, 260 S.W.3d 266 (2007) (holding that it is axiomatic
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that we can affirm a circuit court’s decision if the right result is reached even if for a different
reason).
Affirmed.
WYNNE and GLOVER, JJ., agree.
Worsham Law Firm, P.A., by: Richard E. Worsham, for appellant.
Helen Rice Grinder, for appellees.
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