Tyer v. Tyer

Danny W. TYER v. Rebecca A. TYER

CA 96-265                                          ___ S.W.2d ___

                  Court of Appeals of Arkansas
                          Division III
               Opinion delivered January 29, 1997


1.   Divorce -- clerical error -- adding entirely new provision to
     decree significantly more than mere correction of clerical
     error. -- Amending a divorce decree to add a new requirement
     for the division of a retirement plan not mentioned in the
     chancellor's original oral findings or written decree cannot
     be characterized as the correction of a clerical error;
     correcting a clerk's error in addition is significantly
     different from adding an entirely new provision to a decree.

2.   Civil procedure -- action to correct error or mistake in order
     -- applicable time limit in which to modify divorce decree. --
     Under Ark. R. Civ. P. 60(b), action to correct an error or
     mistake in a chancellor's order or decree must be taken within
     ninety days of its filing with the clerk; the ninety-day limit
     referred to in Rule 60(b) for the prevention of miscarriage of
     justice is also a reference to those clerical errors and
     mistakes described in Rule 60(a); a chancellor lacks
     jurisdiction after ninety days from the filing of a divorce
     decree to distribute property that was not mentioned in the
     original decree unless grounds existed under Rule 60(c) for
     modifying a judgment after ninety days.
3.   Divorce -- no record made at trial that would justify
     chancellor's amending decree -- "further orders" as provided
     for in decree must be supported by evidence in record -- case
     reversed and dismissed. -- Where the record contained only a
     brief reference to appellant's retirement plan to the effect
     that he agreed that it was marital property to the extent that
     it accrued during the marriage and that it was divisible, but
     there was no testimony that appellant agreed to any particular
     formula for division or any other details, nor was there
     testimony as to how much of the retirement benefits accrued
     during the parties' marriage, nor any testimony about the
     appropriate formula to be applied in determining how much of
     the pension benefits should be awarded to appellee, there was
     simply no record made at the trial that would justify the
     chancellor in amending the decree to include a provision
     dividing the retirement plan on the strength of a provision in
     the original decree reserving the right to enter "all further
     orders as may be necessary"; such "further orders" must at
     least relate to and be supported by some evidence in the
     record; the matter was reversed and dismissed.


     Appeal from Saline Chancery Court; Robert Garrett, Chancellor;
reversed and dismissed.
     Meredith Wineland, for appellant.
     R. Ted Vandagriff, for appellee.

     Sam Bird, Judge.
     This case involves an amended decree of divorce that
undertakes to make division of appellant's retirement account that
was not divided in the original divorce decree.  The record reveals
that Danny W. Tyer and Rebecca A. Tyer (Poole) were divorced by
decree rendered on July 14, 1994, following a trial.  Before the
trial there had obviously been some discussions between the
parties' counsel in an effort to reach a settlement.  Among the
subjects covered in the discussions was the division of appellant's
retirement account.  However, the discussions did not lead to a
settlement, and the case proceeded to trial.
     During direct examination of appellant at the trial, he stated
that he had been employed by Pitney-Bowes for nineteen-and-one-half
years and that he had a retirement plan there.  He stated that he
understood that the part of his retirement plan earned during his
marriage to appellee was divisible by the court, and he
acknowledged his marriage to appellee on October 30, 1981.  A
letter from Pitney-Bowes was introduced that described appellant's
retirement plan as being 100% vested; that monthly benefits would
become payable at age sixty-five; that distributions were not
allowed prior to attainment of age sixty-five; and that the plan
contained no loan or lump-sum distribution features.  No further
evidence was presented at the trial regarding appellant's
retirement plan.
     At the conclusion of the testimony, the court orally announced
its findings by which it (a) granted the divorce to appellant, (b)
approved the property division except bills charged to third party
credit cards, and (c) granted $200 monthly alimony to appellee for
not exceeding eighteen months, terminating upon appellee's
remarriage.  No mention was made of appellant's retirement account. 
Likewise, the written divorce decree signed by the chancellor and
approved as to form by the parties' attorneys contained no mention
or reference to the appellant's retirement plan.  In fact, the only
mention at all in the divorce decree about the division of property
was the statement that "each party shall have that property which
is currently in their possession as their separate property and
shall be responsible for the indebtedness incurred with the
property...."  The divorce decree closes with the statement, "this
Court maintains jurisdiction for all further orders as may be
necessary."
     On September 28, 1995, more than thirteen months after entry
of the decree of divorce, appellee filed her motion that is the
subject of this appeal in which she alleged that appellant's
Pitney-Bowes retirement plan was an item of marital property that
should have been divided in her divorce from appellant.  Appellee
alleged in her motion that appellant had admitted through his
counsel in a letter before trial that appellee was entitled to one-
half of the Pitney-Bowes retirement plan; that pretrial discovery
had resulted in a letter from the plan manager setting forth the
terms of the plan, including the fact that it was vested and the
dates and amount of distributions; that the appellant had
acknowledged during his testimony that he understood that the
retirement plan was divisible; and that the Court had approved the
property division.  The motion also alleged that the retirement
plan is a "qualified plan" within the meaning of section 401 of the
1986 Internal Revenue Code and Ark. Code Ann.  9-18-101(3) (Repl.
1992), that the court has jurisdiction to enter orders dividing
qualified plans pursuant to Ark. Code Ann.  9-18-102, and that the
court retained jurisdiction in the divorce decree for the entry of
all further orders as may be necessary.  Appellee's motion prays
for an order compelling appellant to "make coordination for
drafting the Qualified Domestic Relations Order," and for other
relief not pertinent to this appeal.
     Appellant responded with a motion to dismiss in which he
alleged that pursuant to Ark. R. Civ. P. 60, the court lacked
jurisdiction to amend the divorce decree because a final order had
been entered more than twelve months earlier in which the court
made no division of the retirement plan.  
     Following a hearing, which consisted of arguments by counsel,
the court rendered a letter opinion in which it is stated that the
court had reviewed the tape from the divorce trial on July 14,
1994, and concluded that the omission from the divorce decree of
provisions dividing the appellant's retirement plan was clerical
error and that the decree should be amended to reflect that the
portion of appellant's retirement benefits acquired during the
marriage  should be divided one-half to each party.  An amended
decree of divorce containing a provision dividing the retirement
plan was entered on November 3, 1995.
     We disagree with the conclusion of the chancellor that the
omission of a provision dividing the retirement plan from the 1994
decree was "clerical error" within the meaning of Rule 60(a), and
we hold that the chancellor lacked authority to amend the divorce
decree to include a provision to divide the retirement plan more
than ninety days after entry of the original divorce decree.
     Rule 60 of the Arkansas Rules of Civil Procedure sets forth
the circumstances under which the trial courts can correct
judgments and orders.  Paragraph (a) deals with the authority of
the court to correct clerical mistakes and provides that they "may
be corrected by the court at any time on its motion or on the
motion of any party after such notice, if any, as the court orders
...."
     First, we do not believe that amending a divorce decree to add
a new requirement for the division of a retirement plan not
mentioned in the chancellor's original oral findings or written
decree can be characterized as the correction of a clerical error. 
In Luckes v. Luckes, 262 Ark. 770, 561 S.W.2d 300 (1978), the
supreme court held that clerical error had occurred when a clerk
made a mistake in adding up a column of numbers on an adding
machine and gave the incorrect total to the chancellor, who
accepted the total as correct and included it in his order.  An
amended order changing the incorrect total was allowed.  Correcting
a clerk's error in addition is significantly different from adding
an entirely new provision to a decree.
     Secondly, under  Ark. R. Civ. P. 60(b), action to correct an
error or mistake in a chancellor's order or decree must be taken
within ninety days of its filing with the clerk.  In Phillips v.
Jacobs, 305 Ark. 365, 807 S.W.2d 923 (1991), the supreme court held
that the ninety-day limit referred to in Rule 60(b) for the
prevention of miscarriage of justice is also a reference to those
clerical errors and mistakes described in Rule 60(a).  We earlier
held, in Jones v. Jones, 26 Ark. App. 1, 759 S.W.2d 42 (1988), that
a chancellor lacks jurisdiction after ninety days from the filing
of a divorce decree to distribute property that was not mentioned
in the original decree unless grounds existed under Rule 60(c) for
modifying a judgment after ninety days.  Therefore, in the present
case, even if the chancellor's failure to include in the original
decree a provision dividing appellant's retirement plan was
clerical error, he lost jurisdiction to correct it after the lapse
of ninety days following the filing of the original decree with the
clerk.  The provision in the original decree that appears to
reserve jurisdiction indefinitely "for all further orders as may be
necessary," was ineffectual insofar as it would override the
provisions of Rule 60.
     Appellee cites Cox v. Cox, 17 Ark. App. 93, 704 S.W.2d 171
(1986), in support of the chancellor's authority to reserve
jurisdiction over property division issues in a divorce action for
more than ninety days after the filing of a decree.  In Cox, the
chancellor had entered a divorce decree making detailed findings as
to the division of marital property and debts, but not including
any finding as to the income-tax liability of the parties.  The
decree concluded with a provision by which the court retained
jurisdiction "for the entry of other and further orders as may be
necessary herein...."   More than ninety days later the chancellor
modified the decree to require Mrs. Cox to either sign a joint 1983
tax return or to pay half of the additional tax liability that
would result from her refusal to sign it.  We upheld that
modification, finding that Rule 60 was not applicable in that
situation.  However, in Cox there was extensive testimony in the
record to support the chancellor's finding that Mrs. Cox had agreed
during her testimony that she would file a joint income tax return
for 1983 and pay any tax liability.  The chancellor found that in
drafting the original divorce decree he relied upon Mrs. Cox's
testimony and that it led him to believe that she would sign the
tax returns.  
     In the present case, however, the record contains only a brief
reference to appellant's retirement plan to the effect that he
agreed  that it was marital property to the extent that it accrued
during the marriage, and that it was divisible.  There was no
testimony that appellant agreed to any particular formula for
division or any other details.  There was no testimony as to how
much of the retirement benefits accrued during the parties'
marriage nor any testimony about the appropriate formula to be
applied in determining how much of the pension benefits should be
awarded to appellee.  There was simply no record made at the trial
that would justify the chancellor in amending the decree to include
a provision dividing the retirement plan on the strength of a
provision in the original decree reserving the right to enter "all
further orders as may be necessary."  If such a reservation is to
be given any validity, the "further orders" must at least relate to
and be supported by some evidence in the record.  The evidence here
is simply not sufficient to support the chancellor's action.
     The other points argued by appellee are found to be without
merit.  Therefore, we reverse and dismiss.
     Jennings and Griffen, JJ., agree.