Evelyn Chism v. James R. Chism

2021 Ark. App. 373

• Court: Court of Appeals of Arkansas
• Decided: October 6, 2021
• Status: Published

Opinion

Cite as 2021 Ark. App. 373 Elizabeth Perry I attest to the accuracy and ARKANSAS COURT OF APPEALS integrity of this document DIVISION III 2023.07.12 11:29:29 -05'00' No. CV-19-838

2023.003.20215 OPINION DELIVERED October 6, 2021 EVELYN CHISM APPELLANT APPEAL FROM THE CONWAY COUNTY CIRCUIT COURT V. [NO. 15DR-14-18]

JAMES R. CHISM HONORABLE DAVID H. APPELLEE MCCORMICK, JUDGE AFFIRMED IN PART; REVERSED AND REMANDED IN PART

ROBERT J. GLADWIN, Judge

This divorce case returns to us. See Chism v. Chism, 2018 Ark. App. 310, 551 S.W.3d

394 (Chism II).1 This time, the dispute is over the circuit court’s denial of appellant Evelyn

Chism’s postremand motion to clarify its earlier orders awarding appellee James R. Chism

(Jim) a portion of her postal service retirement pay and other sums. The court ruled that it

did not have jurisdiction to do so. Evelyn also raises an evidentiary issue. We agree with

Evelyn that the circuit court had jurisdiction to consider her motion and reverse and remand

for further proceedings. We affirm the circuit court’s evidentiary ruling.

1 As explained in more depth below, this is actually the third appeal between the parties. The first appeal was Chism v. Chism, No. CV-16-337 (Chism I) (Ark. App. filed April 15, 2016). No briefs were filed in Chism I. Instead, Evelyn filed a motion to remand the case to the circuit court because there were further judicial actions waiting to be taken, making the decree not final. We granted the motion and dismissed the appeal on June 8, 2016. I. Background

This case has had a long and tortured history, all of which is necessary to understand

the issues in this appeal. As we stated in Chism II, this was the second marriage between

Evelyn and Jim. Their first marriage ended in divorce in 1987. They remarried in 1993. During

the marriage, Evelyn worked for the postal service. The parties were divorced for the second

time pursuant to a decree entered on December 17, 2015. The circuit court found that any

retirement benefits Evelyn had earned from her employment with the postal service were

marital property and awarded Jim one-half of those benefits as well as any retirement benefits

Evelyn had drawn during the pendency of the divorce. The decree also required Evelyn to

provide the court with a statement showing the total amount of retirement benefits she had

drawn since the divorce complaint was filed in January 2014 through the effective date of a

qualified domestic-relations order (QDRO). Jim was awarded judgment for one-half this

amount, but no amount of the judgment was stated.

On March 14, 2016, the court entered a QDRO to effectuate the division of

Evelyn’s retirement benefits. The QDRO provided, in pertinent part, “The Defendant,

James R. Chism, is entitled to one-half (1/2) of the Plaintiff, Evelyn Chism’s (a.k.a. Mary

E. Chism’s) gross annuity under the Federal Employees Retirement System.” The U.S.

Office of Personnel Management (OPM) was directed to pay Jim’s share directly to him.

We dismissed the appeal and cross-appeal from those orders for lack of a final order

on June 8, 2016. Chism I, supra (Ark. App. June 8, 2016) (order dismissing appeal without

prejudice).

2 On remand, the circuit court entered an order on October 28, 2016, that included

an Arkansas Rule of Civil Procedure 54(b) certificate to resolve the finality issues that were

identified in Chism I. This order granted judgments in favor of Jim for approximately $6,400

for his payment of marital expenses such as mortgage and utility payments, taxes, insurance,

and the like during the pendency of the divorce. The order also noted that this judgment

had been satisfied. Evelyn was also ordered to pay approximately $3,800 for the September

expenses. The order further provided that Jim was entitled to one-half of Evelyn’s gross

monthly retirement benefits of $1,280 and that he would have judgment for that amount

through the sale of the parties’ property. No amount of this judgment was stated.

On February 1, 2017, the circuit court entered an order disposing of Jim’s third-

party complaint attempting to set aside the conveyances of a surface interest to their son

James Gregory Chism (Greg) and the remainder mineral interest to both Greg and Evelyn.

This order also included a Rule 54(b) certificate.

Appeals were again taken, leading to our opinion in Chism II where we reversed the

circuit court’s award to Jim of one-half of Evelyn’s income and retirement benefits that she

had held in a separate account. We held that there was no evidence Evelyn was attempting

to defraud Jim that would support such an award. We also addressed other issues not relevant

to this appeal.

Our opinion in Chism II was issued on May 16, 2018. After we denied rehearing and

the supreme court denied Jim’s petition for review, the mandate issued on September 20,

2018.

3 On November 2, 2018, Jim filed what was styled a “Post Petition Status Petition”

in which he sought a judgment against Evelyn for the sums due from the division of her

retirement benefits. According to Jim, he should have been paid a total of $36,480 from

January 2014 until October 1, 2018, together with interest. He alleged that he received

payments totaling $2,315.22 between April 2017 and July 2018. With interest added and

credit given for payments received, Jim claimed he was owed $37,812.78 as of October 1,

Evelyn moved to modify the amount Jim was to receive under the October 2016

order. She alleged that OPM had advised her that her gross monthly retirement amount was

actually $442 rather than $1,280 as had been stated in the October 2016 order. She further

asserted that her payments had been suspended for a period of time before being reinstated.

Attached to the motion was correspondence from OPM supporting her allegations. Jim

responded to the motion, asserting that it was untimely as a motion under Arkansas Rule of

Civil Procedure 60 and barred by res judicata.

Evelyn filed a reply to Jim’s responses, denying his allegations. She also asserted that

the court had jurisdiction to modify the prior orders under our decision in Treloggen v.

Treloggen, 2018 Ark. App. 596, 567 S.W.3d 515.

At trial, Jim testified that he began receiving payments from OPM in April 2017, and

that he prepared an exhibit showing the payments he had received. According to Jim’s

calculations, he was owed approximately $36,000. However, the court said that it would

disregard that calculation.

4 Evelyn testified that she had filed a statement with the court on December 31, 2015,

styled “Notice of Annuity Adjustment,” advising that the amount of her gross annuity

payment had decreased from $1,280 a month to $425 a month. She said that she had been

drawing the $1,280 amount for five years—back to her 2009 retirement—prior to the

divorce. She testified that the change occurred in August 2015 but that she was unaware of

it until later. She also attempted to introduce documents from OPM that further supported

her testimony, but the circuit court ruled that those documents were hearsay. Evelyn also

testified that her last payment from OPM was received in January 2017. She further said

that her retirement payment had recently increased to $442 a month.

On July 9, 2019, the circuit court entered an order finding that it “does not have

jurisdiction to modify its previous order and Decree of Divorce.” The court noted that

Evelyn had not pointed to anything in the October 2016 order where the court retained

jurisdiction to modify the division of retirement benefits. The court found that Jim was

entitled to judgment of $36,954.90 plus interest, for a total of $40,650.39 in payments that

he failed to receive from OPM pursuant to the QDRO through May 10, 2019. The court

further ruled that any amounts accruing after May 10, 2019, and not paid to Jim by OPM

shall be paid from the sales proceeds held by the clerk and not affect his rights to future

payments of $640.

After filing a timely notice of appeal, Evelyn moved to stay enforcement of the

judgments recited in the July 9 order. She stated that she was not waiving her right to appeal

the July 9 order.

5 On September 6, 2019, the circuit court entered a “Final Distribution Order” that

confirmed the sale of the parties’ real and personal property. As pertinent to this appeal, the

court found that after the appeal resulting in the Chism II opinion, Evelyn owed Jim the

sum of $84,470.19 as of August 20, 2019, together with interest for sums due under the

original decree. As for Evelyn’s retirement benefits, the court found that Jim was entitled to

judgment in the amount of $42,106.25 as of August 31, 2019, based on payments due of

$640 a month. The court also denied Evelyn’s motion for a stay. Evelyn amended her notice

of appeal, and this appeal followed.

II. Arguments on Appeal

On appeal, Evelyn argues (1) that the circuit court had jurisdiction to clarify or

correct its prior orders and (2) that the circuit court erred in excluding records from OPM.

III. Discussion

We start with Jim’s argument relying on the supreme court’s holding in Hall v. Hall,

2012 Ark. 429, that the appeal is moot due to Evelyn’s having voluntarily paid the judgment

out of the proceeds of the sale. We disagree because Jim’s argument ignores the steps Evelyn

took to preserve her right to appeal and the case law considering similar efforts.

First, Evelyn filed a motion to stay the judgment. She made it clear in the motion

that she was not waiving her right to appeal. She also did not admit that her payments were

voluntary as the husband did in Hall. Second, the circuit court specifically found in its order

denying the motion to stay

that any amounts paid by [Evelyn] pursuant to this Order or the prior Orders and Decree entered herein shall not be deemed to be voluntary and shall not abrogate any right of [Evelyn] to pursue an appeal of this Order or any other Orders entered herein.

6 In both Brave v. Brave, 2014 Ark. 175, at 6–7, 433 S.W.3d 227, 231–32, and Myers v. Ridgley,

2017 Ark. App. 411, at 5, our courts held that payments made under circuit court orders

containing similar language were not voluntary and did not constitute waivers of an appeal.

Under these circumstances, we cannot deem Evelyn’s actions a voluntary acquiescence to

the judgment to bar this appeal.

We now turn to the merits of the appeal. Evelyn first argues that the circuit court

had jurisdiction to clarify or correct its prior orders. We agree.

Here, the circuit court ruled that it did not have jurisdiction to modify the October

2016 order because, unlike both the original divorce decree and the QDRO, there was no

express reservation of jurisdiction contained in the October 2016 order.

After ninety days, without the showing of one of the exceptions listed in Arkansas

Rule of Civil Procedure 60, a court has no power to modify or set aside an order. Treloggen,

supra; Abbott v. Abbott, 79 Ark. App. 413, 90 S.W.3d 10 (2002); Narup v. Narup, 75 Ark.

App. 217, 57 S.W.3d 224 (2001). A circuit court, however, has inherent power to enter an

order for the purpose of correcting a judgment to ensure that the judgment is truthful and

that it accurately reflects the court’s original ruling. Narup, supra. The power is not absolute,

and the court is limited to correcting the order to reflect the action the court actually took

as demonstrated by the record rather than the action the court should have taken. Id. This

being so, a circuit court has the power to correct a decree to accurately reflect its original

ruling or to interpret its prior decision. Id. When a divorce decree is ambiguous, the circuit

court has jurisdiction to make changes that clarify what the court originally intended. Holt

v. Holt, 70 Ark. App. 43, 14 S.W.3d 887 (2000).

7 Jim argues that the October 2016 order is not ambiguous on its face because the

order provides that Jim is entitled to one-half of the gross amount of Evelyn’s retirement

payment of $1,280 a month from January 1, 2014, until the QDRO becomes effective and

OPM begins making payments. Although Jim is correct that there is no ambiguity on the

face of the October 2016 order, that does not end our inquiry because the ambiguity here

is a latent ambiguity resulting from the existence of collateral facts—the reduction in the

amount of Evelyn’s monthly retirement payments—that make the order’s meaning

uncertain. See Abbott, supra; Oliver v. Oliver, 70 Ark. App. 403, 19 S.W.3d 630, 633 (2000).

It was the October 2016 order itself that introduced the ambiguity into the case. Both the

divorce decree and the QDRO provided that Jim was to receive one-half of Evelyn’s gross

retirement benefits, while the October 2016 order calculated Jim’s share as one-half of a

fixed sum ($1,280). The October 2016 order is ambiguous because someone reading the

order does not know whether the percentage controls or the dollar amount controls.

Because the court’s orders are ambiguous in the division of Evelyn’s retirement benefits, the

court has inherent power to enter an order to correct the judgment. Narup, supra. Thus, the

circuit court erred in concluding that it lacked jurisdiction to clarify or interpret the October

2016 order.

Because the circuit court erred in concluding that it lacked jurisdiction to consider

Evelyn’s motion, we reverse both the circuit court’s July 2019 order granting judgment to

8 Jim and the court’s September 2019 distribution order and remand for further proceedings

consistent with this opinion. 2

For her second point, Evelyn argues that the circuit court erred in excluding the

correspondence from OPM. At issue here is whether the circuit court abused its discretion

in sustaining Jim’s objections and excluding the OPM correspondence on hearsay grounds.

According to Evelyn, these documents show that her retirement payments have decreased

from $1,280 a month, were erroneously suspended for a period, and were then reduced to

$425 a month. Evelyn had the burden of showing the admissibility of the evidence. Jones v.

John B. Dozier Land Tr., 2017 Ark. App. 23, 511 S.W.3d 869. Evidentiary rulings are a

matter of discretion and are reviewed only for abuse of that discretion. See Taylor v. Taylor,

345 Ark. 300, 47 S.W.3d 222 (2001).

Evelyn first argues that the correspondence is admissible as a business record. Arkansas

Rule of Evidence 803(6) provides that records of a regularly conducted business activity are

not excluded from evidence by the hearsay rule. To be admissible under the business-record

exception, the offering party must meet seven requirements. Jones, supra. The evidence must

be (1) a record or other compilation, (2) of acts or events, (3) made at or near the time the

act or event occurred, (4) by a person with knowledge, or from information transmitted by

a person with knowledge, (5) kept in the course of a regularly conducted business, (6) which

2 We point out that Evelyn’s retirement benefits are marital property, and Arkansas Code Annotated section 9-12-315(a)(1)(A) (Repl. 2020) provides that all marital property shall be valued and distributed at the time the divorce decree is entered. Skokos v. Skokos, 344 Ark. 420, 40 S.W.3d 768 (2001); Barnes v. Barnes, 2010 Ark. App. 821, at 9, 378 S.W.3d 766, 772. Here, the circuit court based its calculations on the value of Evelyn’s retirement when the complaint for divorce was filed in January 2014.

9 has a regular practice of recording such information, (7) as shown by the testimony of the

custodian or other qualified witness. Id. at 8.

Clearly, the OPM correspondence was hearsay offered to prove the truth of the

matter asserted therein––namely, that Evelyn’s postal retirement payments are not $1,280 a

month but are instead $425 a month. The fact that the correspondence was from a federal

agency and has the appearance of a business record does not satisfy the explicit requirements

of the rule. That a piece of evidence falls within an exception to the rule against hearsay

does not equate to automatic admissibility. See Lovell v. Beavers, 336 Ark. 551, 556, 987

S.W.2d 660, 663 (1999). Evelyn failed to present any admissible testimony whatsoever from

the custodian or other qualified witness from OPM as to whether the business-record

requirements were met. See Jones, supra; Paine v. Walker, 76 Ark. App. 217, 61 S.W.3d 925

(2001). Evelyn was the sponsoring witness; however, she was neither the custodian of the

records nor a qualified witness because she was under no business duty required by the

business-record-exception rules. 3 The circuit court did not abuse its discretion in refusing

to admit the correspondence under the business-record exception.

Evelyn also contends that the correspondence from OPM is admissible under the

residual hearsay exception of Arkansas Rule of Evidence 803(24). That rule provides that a

statement should not be excluded as hearsay, even though the declarant is available, when

the statement is trustworthy and reliable. Ward v. State, 298 Ark. 448, 770 S.W.2d 109

3 Although Arkansas Code Annotated section 16-46-108 (Repl. 1999) permits certain business records to be admitted on the basis of an affidavit if certain conditions are met, Evelyn did not raise this statute as a basis for the admission before the circuit court, nor does she argue on appeal that this section is applicable.

10 (1989). The residual hearsay exception was intended to be used very rarely and only in

exceptional circumstances. Barnes v. Barnes, 311 Ark. 287, 843 S.W.2d 835 (1992); Ward,

supra. In narrowly construing this residual-exception clause, our supreme court has

admonished that this exception is not meant to authorize circuit courts to admit hearsay

statements that do not fall within one of the other exceptions contained in Rules 803 and

804(b). See Hill v. Brown, 283 Ark. 185, 672 S.W.2d 330 (1984).

Here, Evelyn’s argument again amounts to a request for automatic admissibility.

Lovell, supra. Admission of the correspondence under the residual hearsay exception in this

case would swallow the hearsay rule, especially where Evelyn made no effort to comply

with the requirements of either Rule 803(6) or section 16-46-108 for the admission of the

correspondence. See Barnes, supra. Therefore, there is no need to admit the correspondence

under Rule 803(24).

Affirmed in part; reversed and remanded in part.

MURPHY and BROWN, JJ., agree.

Taylor & Taylor Law Firm, P.A., by: Andrew M. Taylor and Tasha C. Taylor, for

appellant.

Branscum Law Offices, by: Herby Branscum, Jr., and Elizabeth Branscum Burgess, for

appellee.