Jacob Van Pelt v. Sharon Van Pelt

ca00-808

DIVISION III

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

JOHN F. STROUD, JR., Chief Judge

CA00-808

March 28, 2000

AN APPEAL FROM PULASKI COUNTY

JACOB VAN PELT CHANCERY COURT

APPELLANT NO. DV88-3925

V. HONORABLE MACKIE PIERCE,

CHANCELLOR

SHARON VAN PELT

APPELLEE REVERSED and DISMISSED

This is an appeal from an order of the Pulaski County Chancery Court finding a 1991 qualified domestic relations order ("QDRO") to be ambiguous and subject to clarification.

Appellee Sharon Van Pelt and appellant Jacob Van Pelt were divorced in 1989, and on May 21, 1991, a hearing was held concerning appellee's interest in appellant's federal civil service benefits. On July 29, 1991, the chancellor entered an order in which appellee's survivor annuity benefits were addressed as follows: "[Appellee] has not waived her right to survivor annunity [sic] benefits as available under either the civil service retirement system or the military retirement system." Appellee met with difficulty in obtaining her benefits from the federal authorities and, in 1999, filed a petition for an amended QDRO that would satisfy the federal requirements. Appellant resisted her petition, arguing that, underArkansas Rule of Civil Procedure 60, the chancery court lost jurisdiction to amend the order after ninety days of its entry in 1991. Appellee asserted in response that she sought a clarification, rather than a modification, of the previous order and that the chancery court had jurisdiction to clarify the earlier order.

At the conclusion of the hearing, the chancellor found that the issue of survivor annuity benefits had been litigated before the previous chancellor in 1991. He also found that, in 1991, appellee's attorney had objected to the precedent drafted by appellant's attorney because it had not addressed the issue of survivor benefits. The chancellor quoted appellee's attorney's letter to the former chancellor expressing this objection:

"I object to the precedent as follows: Number one, the [appellee], Sharon E. Van Pelt, pursuant to 5 U.S.C., Section 8339(j)(1) is entitled to a survivorship annuity unless affirmatively waived by her. Testimony presented at court was that Ms. Van Pelt did not desire and would not waive her right to a survivorship annuity as available in either the civil service retirement system or the military retirement system."

The chancellor then quoted appellant's attorney's response to that letter:

"Section 8339(j)(1) of the U. S. Code cited by the [appellee] provides inter alia that the election of survivor benefits are [sic] irrevocable. As testified at the May 21st [1991] hearing, the survivorship election has been made. Therefore, that issue does not need to be addressed in the precedent. However, if the [appellee] is adamant that it be included in the precedent, [appellant] does not object, but the precedent should provide only the amount of the benefit that accrued during the marriage. Ms. Van Pelt is not entitled to any more than that."

The chancellor also admitted into evidence Defendant's Exhibit 6, which is a May 13, 1991, letter from the United States Office of Personnel Management to appellant's counsel, wherein a benefits specialist stated: "Mr. Van Pelt's annuity is being reduced for fullsurvivor benefits, in the amount of $120.00 per month. He has elected Sharon R. Van Pelt to receive survivor benefits."

The chancellor then entered an order in which he stated:

5. The Court finds that survivor benefits were an issue before the Court in the 1991 hearing and 1991 Order. The matter of survivor benefits was addressed in the previous hearing and addressed by the Court, and the Court retained jurisdiction. Therefore, the Court does have jurisdiction to modify such Order to enforce the intent of the 1991 Order. See Beavers v. Vaughn, 41 Ark. App. 96, 849 S.W.2d 6 (1993); Jones v. Jones, 26 Ark. App. 1, 759 S.W.2d 42 (1988); Cox v. Cox, 17 Ark. App. 93, 704 S.W.2d 171 (1986). The case cited by [appellant], Harrison v. Bradford, 9 Ark. App. 156, 655 S.W.2d 466 (1983) is inapplicable. That case dealt with disposition with [sic] property which was not involved in the original action.

6. The appropriate federal authorities have determined that the 1991 Order is insufficient to establish the [appellee] as an alternate payee; therefore, said order is hereby amended to include the requirements and standard terminology provided in Part 838 of Title 5, Code of Federal Regulations. The terminology used in the provisions of this Order that concern benefits under the Civil Service Retirement System are governed by the standard conventions established in that part.

7. [Appellant] is eligible for retirement benefits under the Civil Service Retirement System based on employment with the United States Government. Under § 8341(h)(1) of Title 5, United States Code, [appellee] (former spouse) is awarded a former spouse survivor annuity under the Civil Service Retirement System in the same amount to which [appellee] would be entitled if the divorce had not occurred. The retirement annuity of [appellant] shall be reduced to provide for such survivor annuity.

Appellant asserts that the chancery court lost jurisdiction under Arkansas Rule of Civil Procedure 60(b) to modify the 1991 order after ninety days. Appellee responds that the chancellor simply clarified it to reflect what the previous chancellor had intended to accomplish thereby. As the cases on this subject demonstrate, the distinction between modification and clarification of an order is important. A chancellor loses the authority to distribute property not mentioned in the original decree after the decree has become final. See Harrison v. Bradford, 9 Ark. App. 156, 655 S.W.2d 466 (1983). In Jones v. Jones, 26 Ark. App. 1, 759 S.W.2d 42 (1988), we held that, under Arkansas Rule of Civil Procedure 60(b), a chancery court lacked 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. At that time, Rule 60(b) provided that action to correct an error or mistake or to prevent the miscarriage of justice in a chancellor's order or decree had to be taken within ninety days of its filing with the clerk; Rule 60(a) stated that the trial court could "at any time" correct clerical mistakes and errors "arising from oversight or omission."

Under former Rule 60, clarification of a decree was permissible even though more than ninety days had passed since its entry. In Ford v. Ford, 30 Ark. App. 147, 783 S.W.2d 879 (1990), we made a distinction between modifying and clarifying a decree, and pointed out that former Rule 60(b) was not applicable where the court simply attempted to correct the record to more accurately reflect its original ruling: "Our appellate courts have long recognized the inherent power of the courts of this state to enter orders correcting their judgments where necessary to make them speak the truth and reflect actions accurately. [McGibbony v. McGibbony, 12 Ark. App. 141, 671 S.W.2d 212 (1984).]" We held that the chancellor's interpretation of the decree was not clearly erroneous and said that we regarded his subsequent order as a clarification of the award that was originally intended and not a modification of the decree.

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 a miscarriage ofjustice was also a reference to those clerical errors and mistakes described in Rule 60(a). We relied on Jones v. Jones, supra; Phillips v. Jacobs, supra; and former Rule 60(b) in Tyer v. Tyer, 56 Ark. App. 1, 937 S.W.2d 667 (1997), to hold that a chancellor's failure to include in the original decree a provision dividing the appellant's retirement plan was a clerical error and that the trial court lost jurisdiction to correct it after the lapse of ninety days following its filing. We also held that the provision in the original decree that appeared to reserve jurisdiction indefinitely "for all further orders as may be necessary" was ineffectual insofar as it would override the provisions of Rule 60. 56 Ark. App. at 6, 937 S.W.2d at 669.

The supreme court later held in Lord v. Mazzanti, 339 Ark. 25, 2 S.W.3d 76 (1999), that "clerical mistakes" can be corrected at any time, and overruled any language to the contrary in Phillips v. Jacobs, supra. Our current version of Rule 60, as amended, reflects the supreme court's decision in Lord v. Mazzanti. Rule 60(a) states that, to correct errors or mistakes or to prevent the miscarriage of justice, the court may modify a decree within ninety days of its having been filed with the clerk. Rule 60(b) provides that a court may, at any time, with prior notice to all parties, correct clerical mistakes in decrees arising from oversight or omission. This rule, however, allows a court only to correct the record to make it conform to action that was actually taken; it does not permit a decree to be modified to provide for action that the court, in retrospect, should have taken but which it in fact did not take. See Holt v. Holt, 70 Ark. App. 43, 14 S.W.3d 887 (2000).

In Holt v. Holt, supra, we reversed a chancellor's decision granting a former husband's petition to modify a divorce decree to exclude his post-divorce salary increases in calculating the former wife's share of his retirement benefits. Holding that the chancerycourt lacked jurisdiction under Rule 60 to modify the decree ten years after it was entered, we noted that the decree did not specify whether post-decree salary increases would be included in the calculation of the former wife's share of the retirement benefits. We also noted that there were no changed circumstances since the decree was initially entered; the federal regulations then in force had provided that, unless the court directly and unequivocally ordered otherwise, a decree dividing an annuity on a percentage basis would be interpreted to entitle the former spouse to salary adjustments occurring after the date of the decree. Additionally, we found no ambiguity regarding the legal effect of the language employed in the decree, and concluded:

In the absence of either changed circumstances or ambiguity, the changes made to the decree were not clarifications of what the court originally intended, but instead modifications that changed the effect that the decree would have had pursuant to its express terms and the law extant at the time it was pronounced.

70 Ark. App. at 45, 14 S.W.3d at 888. Finding no grounds for modifying the decree after ninety days, we held that the chancery court lacked jurisdiction to do so.

In the case before us, we cannot say that the chancellor simply clarified the 1991 order to reflect what the previous chancellor intended to accomplish concerning the survivor benefits. Although the 1991 order stated that appellee had not waived her right to survivor annuity benefits under the civil service retirement system, it did not adjudicate her claim to one, nor did it award her a survivor annuity benefit under the civil service retirement system. In our view, such an omission cannot be labeled a "clerical mistake" within the intent of Rule 60(b). It may be that, in retrospect, the chancellor should have made such an award in the 1991 order. However, the chancellor did not do so, and the record cannot be correctedto conform to action that was not taken. We therefore hold that the amended QDRO must be reversed because the chancery court lacked jurisdiction to modify the 1991 order.

Appellant also argues that the amended order is not acceptable for processing under certain federal civil service statutes and regulations and that appellee did not act equitably in failing to obtain a proper QDRO within one year of the original decree. Because of our holding that the chancery court lacked jurisdiction to amend the 1991 order in this manner, we need not address these other issues.

Reversed and dismissed.

Jennings and Neal, JJ., agree.