Wilcoxon v. Thomas

2015 Ark. App. 311, 462 S.W.3d 705, 2015 Ark. LEXIS 317, 2015 Ark. App. LEXIS 401
CourtCourt of Appeals of Arkansas
DecidedMay 13, 2015
DocketCV-14-368
StatusPublished
Cited by1 cases

This text of 2015 Ark. App. 311 (Wilcoxon v. Thomas) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wilcoxon v. Thomas, 2015 Ark. App. 311, 462 S.W.3d 705, 2015 Ark. LEXIS 317, 2015 Ark. App. LEXIS 401 (Ark. Ct. App. 2015).

Opinion

BART F. VIRDEN, Judge

| TTammy Wilcoxon appeals from an order modifying a divorce decree. The issue we must first decide is whether the circuit court erred in amending its original order in light of Arkansas Rule of Civil Procedure 60(a) (2010). We hold that under Rule 60(a) the circuit court abused its discretion, and we reverse its ruling.

I. Facts and Procedural History

On October 1, 2012, the circuit court tried the divorce case of the parties. Following the trial, the circuit court conducted a phone conference with the attorneys for the parties concerning various issues relating to the decree. Believing all the parties were in agreement, the circuit court entered the divorce' decree on October 18, 2012, in which it determined that Wilcoxon was not entitled to additional alimony payments because she failed to meet a 12condition precedent included in the ante-nuptial agreement. The order also set child-support payments and visitation. The decree was not signed by Wilcoxon and was inadvertently faxed to the wrong number.

On December 14, 2012, Wilcoxon filed a motion to set aside the divorce decree. In her motion she claimed that her attorneys had no reason to believe that an order had been provided to the court or that a signed decree could have been filed. Wilcoxon asserted that on November 20, 2012, thirty-two days after the decree had been filed, she received the first notice from Thomas’s attorneys that an order had been entered. She asserted that Rule 60(a) “provides that in order ‘to correct errors or mistakes or to prevent the miscarriage of justice, the court may modify or vacate a judgment, order or decree on motion of the court or any party, with prior notice to all parties within ninety days of its having been filed with the clerk’ ” and that “allowing this order to be controlling over the parties will ... be a miscarriage of justice.”

On January 2, 2013,' Wilcoxon filed a motion for extension of time to file her appeal. In her motion she asserted that she contacted the clerk of the court in person and by phone several times over the course of October and November, and she was told in error that an order had not been entered. Thomas contradicts this assertion in his response brief. Thomas argues that in the first week of November, he and his ex-wife discussed the issue of whether health insurance premiums would be included in child-support payments. He asserted that when Wilcoxon said she did not have a copy of the decree, he told her to contact her attorney.

| .¡In his brief in opposition to the motion to set aside the decree, Thomas also claims that he sent both a letter and an email on November 15 (the notice of appeal was due November 18) explaining that an order had been entered:

While Ms. Gattis would like to give the impression that she was not retained until after the appeal time expired (November 18), that is not true. She contacted Defendant’s lawyer by letter dated November 13. The undersigned immediately wrote her back by email and mail dated November 15, 2012, pri- or to the expiration of the time for appeal. In the email correspondence, Ms. Gattis was told that an order had been entered. A copy of the order was mailed to her.

On January 7, 2013, the circuit court held a hearing on Wilcoxon’s motion to set aside the divorce decree. On January 18, 2013, ninety-two days after the original order, the circuit court denied Wilcoxon’s motion to extend time for filing and her motion to set aside the decree of divorce, and it entered an amended decree of divorce. In the order, the circuit court cited Rule 60 generally, not identifying precisely which subsection it was relying upon:

Pursuant to Rule 60 of the Arkansas Rules of Civil Procedure, the Court on its own motion, hereby amends the original decree entered of record on October 18, 2012, to correct a mistake. The Court intended to include an order which provided that the parties would equally share in the cost of health insurance premiums for major medical, dental and vision presently covering the minor child which the Plaintiff has through her employer and that the parties shall equally share in the cost of all uncovered medical expenses for the minor child. This Order will be retroactive back to the date of October 18, 2012.

Thomas argues that Arkansas Rule of Civil Procedure 60 did not confer to the court the authority to modify the decree of divorce. 1 We agree.

|4II. Standard of Review

It is within the discretion of the circuit court to determine whether it has jurisdiction under Rule 60 to set aside a judgment, and 'the question on appeal becomes whether there has been an abuse of that discretion. Watson v. Connors, 372 Ark. 56, 57, 270 S.W.3d 826, 828 (2008). In an appellate court’s review of a circuit court’s order to determine whether there has been an abuse of discretion, the appellate court will not substitute its own decision for that of the circuit court but will merely review the case to see whether the decision was within the latitude of decisions which a judge or court could make in a case. Scales v. Vaden, 2010 Ark. App. 418, 376 S.W.3d 471.

III. Arkansas Rule of Civil Procedure 60(a)

Arkansas Rule of Civil Procedure 60(a) concerns the circuit court’s ability to modify an order due to mistake:

(a) Ninety-Day Limitation. To correct errors or mistakes or to prevent the miscarriage of justice, the court may modify or vacate a judgment, order or decree on motion of the court or any party, with prior notice to all parties, within ninety days of its having been filed with the clerk.

As we set forth above, the circuit court entered a new order on January 18, 2013, in which it stated, “Pursuant to Rule 60 of the Arkansas Rules of Civil Procedure, the Court on its own motion, hereby amends the original decree entered of record on October 18, 2012, to correct a mistake.” Subsection (a) governs the correction of mistakes within ninety days. As the amended' order was entered past the ninety-day time limit, subsection (a) cannot apply here. However, the circuit court also states in its order that the amendment deals with the disposition of issues that it intended to include in the original order, which indicates that | sit might have intended to amend the order pursuant to subsection (b) of Rule 60.

IV. Arkansas Rule of Civil Procedure 60(b)

Subsection (b) permits the court to correct clerical errors at any time. In Linn v. Linn, 99 Ark. App. 407, 261 S.W.3d 471 (2007), this court held that Rule 60(b) did not allow the circuit court to correct an error very similar to the one in the present case because the error was not clerical in nature. In Linn, the appellee did not realize that the divorce decree entered by the circuit court awarded a strip of land to her ex-husband that prevented her from accessing the road from her land.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Bonnie Monk v. Union County Industrial Board
2024 Ark. App. 285 (Court of Appeals of Arkansas, 2024)

Cite This Page — Counsel Stack

Bluebook (online)
2015 Ark. App. 311, 462 S.W.3d 705, 2015 Ark. LEXIS 317, 2015 Ark. App. LEXIS 401, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wilcoxon-v-thomas-arkctapp-2015.