Steven M. Rondeau v. Brenda L. Rondeau

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

KAREN R. BAKER, JUDGE

DIVISION III

STEVEN M. RONDEAU

APPELLANT

V.

BRENDA L. RONDEAU

APPELLEE

CA01-00429

JANUARY 16, 2002

APPEAL FROM THE UNION COUNTY CHANCERY COURT

[NO. E2000-333-1]

HONORABLE HAMILTON HOBBS SINGLETON, CHANCELLOR

AFFIRMED

Appellant, Steven M. Rondeau, appeals a decision by the Chancery Court of Union County, finding that appellant's military retirement pay was marital property and that appellee was entitled to eighteen percent of the monthly payments. Appellant has two points on appeal. First, appellant argues that the trial court erred in granting a new trial under Arkansas Rule of Civil Procedure 60(b), where the court approved the settlement after announcement of its terms and questioning the parties in open court. Second, appellant argues that the trial court erred in making a division of his military pay, as the benefits were not "marital property" within the meaning of Arkansas law. We affirm.

Appellee, Brenda L. Rondeau, filed for divorce against appellant, and a final hearing was set on July 19, 2000. At the hearing, the parties submitted to the court the proposed terms of a settlement agreement, and both parties assented. The divorce decree was filed on August 21, 2000. The agreement made no mention of appellant's military retirement pay. On August 24, 2000, appellee made a motion for a new trial pursuant to Arkansas Rule of Civil Procedure 60(b). The motion alleged that the terms of the settlement agreement were based on inaccuracies and

misunderstandings as to the law and failed to consider the issue of division of appellant's military retirement pay. By order on September 29, 2000, the chancellor set aside the divorce decree and issued a letter opinion. The letter opinion acknowledged that the settlement agreement made no mention of the retirement pay and that the court was bound to address the retirement pay. The order was entered on October 2, 2000.

At a hearing on November 17, 2000, the parties agreed that appellant was on active duty with the U.S. Military from July 30, 1973, to July 31, 1993. Further, the parties stipulated that the two were married on August 8, 1986. The chancellor held that appellant's military retirement benefits were marital property and appellee was entitled to eighteen percent of the monthly benefit. From that decision, comes this appeal.

Cases on appeal from the chancery court are tried de novo but we do not reverse unless the findings of the trial judge are clearly against the preponderance of the evidence, giving due deference to the trial judge's superior position to determine the credibility of the witnesses, and the weight to be given to their testimony. Day v. Day, 20 Ark. App. 48, 723 S.W.2d 378 (1987) (citing Stover v. Stover, 287 Ark. 116, 696 S.W.2d 750 (1985)).

First, appellant argues that the trial court erred in granting a new trial under Arkansas Rule of Civil Procedure 60(b), where the court approved the settlement after announcement of its terms and questioning the parties in open court.1 Arkansas Rules of Civil Procedure 60(b) (1999) provides the chancellor with the authority to set aside the divorce decree entered in this case. Rule 60(b) states that, "To correct any error or mistake or to prevent the miscarriage of justice, a decree or orderof a circuit, chancery, or probate court may be modified or set aside on motion of the court or any party, with or without notice to any party, within ninety days of its having been filed with the clerk." Here, appellee filed a motion for a new trial four days after the decree was entered, and appellant responded to the motion. Pursuant to his authority under Rule 60(b), the chancellor set aside the divorce decree and issued a letter opinion, stating that the settlement agreement made no mention of the retirement pay.

Moreover, a decision on whether to grant a motion for a new trial calls for an exercise of discretion on the part of the trial court. Whisnant v. Whisnant, 68 Ark. App. 298, 6 S.W.3d 808 (1999). The supreme court has described this standard as requiring a showing of "clear" or "manifest" abuse of discretion by acting improvidently or thoughtlessly without due consideration. Nationwide Mut. Fire Ins. Co. v. Bryson, 60 Ark. App. 293, 962 S.W.2d 824 (1998). We find that the chancellor did not abuse his discretion in granting the motion for a new trial.

Second, appellant argues that the trial court erred in making a division of his military pay, as the benefits were not "marital property" within the meaning of Arkansas law. Our supreme court has held that military retirement pay, provided that it is vested, can be determined to be marital property. Day v. Day, 281 Ark. 261, 663 S.W.2d 719 (1984). Appellant cites Burns v. Burns, 312 Ark. 61, 847 S.W.2d 23 (1993), as authority for his proposition that his military retirement pay was not vested. However, Burns is factually distinguishable from this case. In Burns, at the time of the divorce, the husband had been active in the military for almost fifteen years; his military pension would not vest until he had served twenty years. Here, there is no dispute that appellant had served on active duty with the military from July 30, 1973, to July 31, 1993, nor that the parties were married on August 6, 1986, and were divorced on November 17, 2000. The appellant retired in 1993, and his retirement pension vested at that point.

Based on the testimony, the chancellor determined that appellee was entitled to eighteen percent of appellant's total monthly retirement benefit. The chancellor based his finding on the method used in Marshall v. Marshall, 285 Ark. 426, 688 S.W.2d 279 (1985). Therefore, we hold that the chancellor did not err in determining that the military retirement pay was marital property, nor in his division of the military retirement pay.

Affirmed.

Bird and Crabtree, JJ., agree.

1 Rule 60(b) was amended effective January 2000. The amended rule was in effect at all times relevant to this case; however, both parties argued the prior rule both in the trial court and on appeal.