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Wilcoxon v. Thomas

Court of Appeals of Arkansas, Division IV

May 13, 2015

TAMMY WILCOXON, APPELLANT
v.
WILLIAM TONY THOMAS, APPELLEE

APPEAL FROM THE ASHLEY COUNTY CIRCUIT COURT. NO. DR-2011-98-2.

Owings Law Firm, by: Tammy B. Gattis, for appellant.

Laurie A. Bridewell; and Brian G. Brooks, Attorney at Law, PLLC, by: Brian G. Brooks, for appellee.

BART F. VIRDEN, Judge. GRUBER and WHITEAKER, JJ., agree.

OPINION

Page 706

BART F. VIRDEN, Judge

Tammy 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 condition precedent included in the antenuptial 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

Page 707

November 18) explaining that an order had ...


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